WP/6123/2002 of Smt. Jupalli Jayaprada, Vs The District Collector, on 27 December 2004

ORDER:

The petitioner is the widow of a freedom fighter. It is not in dispute that anextent of 10 acres situated in Sy.No.79 of M.Chintagurthi Village was assignedto her by the then Tahsildar, Khammam, by proceedings dated 26-07-1971, butphysical possession was not given to her on the ground that the said land issituated in the reserve forest area. However, the assignment itself wascancelled by the 3[rd] respondent herein by proceedings dated 04-08-1998 on theground that the land was not brought under cultivation within three years asrequired under the law. Against the said order the petitioner preferred an appealbefore the 2[nd] respondent which was disposed of by order dated 29-05-2000with a direction to the Mandal Revenue Officer, Khammam, Urban Mandal toselect suitable land in any village of his Mandal and assign the same to thepetitioner. In the meanwhile, the 3[rd] respondent-Mandal Revenue Officer,Khammam Urban Mandal, on the basis of the report of the Mandal Revenue Inspector dated 30-07-1999 assigned 5 acres of land situated in Sy.No.266 ofM.Chintagurthi Village vide proceedings dated 02-08-1999.

While so, the petitioner filed W.P.No.14994 of 2000 seeking a declaration thatthe alleged inaction on the part of the respondents in identifying and assigningthe land to the petitioner as arbitrary and illegal. This Court though declined togrant the direction as sought by the petitioner to assign and put her inpossession of any particular land chosen by her, keeping in view of thesubsequent order passed by the Revenue Divisional Officer, Khammam, dated29-05-2000 wherein, the Mandal Revenue Officer was directed to select asuitable land and assign the same to the petitioner, disposed of the writ petitionwith a direction to the respondents to implement the order passed by theRevenue Divisional Officer, Khammam, dated 29-05-2000 and to identifysuitable land in terms of the said order and assigne the same to the petitionerand put her in possession expeditiously, within four months from the date ofreceipt of the said order.

In pursuance thereof, the Mandal Revenue Officer, Khammam, byproceedings, dated 14-02-2001 assigned an extent of 5 acres of land inSy.No.266/1 of Mallepally M.Chintagurthi Village which is in addition to the 5acres of land already assigned under the proceedings dated 02-08-1999. Consequently by notice dated 07-04-2001 the petitioner wasdirected to appear in person to take delivery of possession of the total extent of10 acres assigned land situated in Sy.No.266/1 M.Chintagurthi Village.

The said action of the respondents is under challenge in this writ petitioncontending that the land assigned under the proceedings dated 02-08-1999 and07-04-2001 is barren, and rocky hillock which is unfit for any cultivation. It isalleged that the 3[rd] respondent-Mandal Revenue Officer has deliberatelyassigned the said land which is unfit for cultivation to wreak vengeance againsther since she approached this Court for redressal of her grievance. It isclaimed that as a matter of fact, suitable Government vacant lands areavailable in Sy.Nos.66 and 37 of Khanapuram Haveli Village and Sy.Nos.79/1

and 79/119 of M.Chintagurthi Village and there is absolutely no justifiablereason for not assigning the said land to the petitioner.

Thus, the petitioner seeks a declaration that the action of the respondentNo.3 in assigning the land which is unfit for cultivation in spite of the availabilityof the cultivable land is arbitrary and illegal and in violation of Article 14 and 21of the Constitution of India.

On behalf of the respondents the Mandal Revenue Officer, Khammam (U)Mandal filed a counter affidavit denying all the allegations made by thepetitioner and stating that the land assigned to the petitioner in Sy.No.266/1 ofM.Chintagurthi Village is fit for cultivation. The allegation that the said land isbarren and rocky hillock and unfit for cultivation and that the same wasdeliberately assigned to her by the 3[rd] respondent, has been specifically deniedand it is stated that the land assigned in favour of the petitioner is fit forcultivation as per the certificate issued by the Agricultural Officer, Khammam(U). It is further stated that 2 acres 23 cents situated in Sy.No.66 ofKhanapuram Haveli is acquired for the purpose of Aerodrome and also for thepurpose of offices of the Government, and as such, there is no land availablefor assignment for agricultural purpose in the said Village. So far as the landspecified by the petitioner in Sy.No.37 of Khanapuram Haveli Village, it isstated that the said land was already assigned to the Scheduled Castes andScheduled Tribes and Backward Classes and therefore, no such land isavailable for assignment. It is further stated that 10 acres of land situated inSy.Nos.79/1 and 79/119 of M.Chintagurthi Village has been grabbed by the poortribals who have brought the land into cultivation and as such the said land isalso not available for assignment.

On the basis of the said counter affidavit, the learned GovernmentPleader contends that the writ petition is misconceived and liable to bedismissed. He also contends that the petitioner being an assignee does nothave any vested right to claim the assignment and she cannot insist forallotment of any particular land in a particular place and therefore, the writ petition is liable to be dismissed in limini.

Along with the counter affidavit, a certificate dated 13-09-2002 issued by the Agricultural Officer, Khammam (U) Mandal has beenproduced before this Court which shows that the Agricultural Officer hasinspected the land to an extent of 10 acres situated in Sy.No.266/1 ofM.Chintagurthi Village on 13-09-2002 and during the inspection it was foundthat the land is situated at the hill slope and occupied with small bushes andthat the land can be put to use for cultivation after removing the bushes andleveling the land. It is also stated that the adjacent lands are being cultivatedwith dry crops like green gram, red gram and arched crops like Mango tamerindand Amla.

Having heard the learned counsel appearing for both the parties and on aperusal of the material on record, it is clear that in lieu of the land assigned tothe petitioner initially in the year 1971, the respondents have assignedalternative land situated in Sy.No.266/1 of M.Chintagurthi Village. As can beseen from the certificate issued by the Agricultural Officer, dated 13-09-2002,the said land is situated in hill slope and is occupied with small bushes.Whereas the petitioner alleges that the said land is not fit for cultivation, therespondents contend that it can be brought under cultivation by removing thebushes and leveling the land and that dry crops are being raised in adjacentlands, which are also of similar nature. The question whether the said land is fitfor cultivation or not, being a disputed question of fact cannot be investigatedinto by this Court while exercising the jurisdiction under Article 226 of theConstitution of India. Similarly, the question whether the land in Sy.No.66 and37 of Khanapuram Haveli Village, as claimed by the petitioner, is available forassignment also cannot be decided by this Court, particularly when the saidplea has been categorically denied by the respondents. At any rate, as alreadyheld by this Court in W.P.No.14994 of 2004, the respondents cannot bedirected to assign and put the petitioner into possession of any particular landchosen by her and such course is not permissible under law.

In the circumstances, I am not inclined to issue a mandamus as prayedfor. However, having regard to the facts and circumstances of the case, thesecond respondent-Revenue Divisional Officer, Khammam (U), is directed toenquire into the nature of the land assigned to the petitioner and to decidewhether it is fit for cultivation. Needless to mention that the 2[nd] respondentshall afford an opportunity to the petitioner to raise her objections, before takingany decision. It is also made clear that in case, it is found that the said land isnot fit for cultivation, the 2[nd] respondent shall take immediate steps foridentifying any other suitable land, particularly the land in Sy.No.66 and 37 ofKhanapuram Haveli, if available for assignment, and assign the same to thepetitioner. The entire exercise shall be completed as expeditiously as possiblepreferably within a period of eight weeks from the date of receipt of a copy ofthis order.

The writ petition is accordingly disposed of. No order as to costs.

Dated: 27-12-2004

LSK

______________

G. ROHINI, J

To

1. The District Collector, Khammam.

2. The Revenue Divisional Officer,

Khammam Urban, Khammam.

3. The Mandal Revenue Officer,

Khammam Urban Mandal, Khammam.

4. Two C.Cs. to the Government Pleader for Revenue, High Court Buildings, Hyderabad. (OUT).

5. Two C.D. copies.