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2011 DIGILAW 496 (AP)

Akkem Anjaiah v. Deputy Collector and Tahsildar

2011-07-05

C.V.NAGARJUNA REDDY

body2011
Judgment At the interlocutory stage, the Writ Petition is taken up for hearing and disposal with the consent of the learned Counsel for the parties. 2. This Writ Petition is filed for a Certiorari to quash Proceedings No.A/1448/07, dated 24-05-2008, served on the petitioners on 10-06-2008. The petitioners sought for a consequential direction to the respondents not to interfere with their possession and enjoyment of the land admeasuring Ac.10-34 guntas in Survey No.67/2 of Jellipalli Village, Saroornagar Mandal. 3. The undisputed facts of the case are as under: The aforementioned land was, originally, granted in favour of one Maqdoom Shareef vide proceedings No.A1, 152/11/56, dated 20-12-1956 under Laoni Rules, 1950, which were in force at that time. The assignee, in turn, sold the said land in favour of the petitioners under a registered sale deed, dated 17-02-1967. Apprehending that the respondents may dispossess them from the said land, the petitioners have filed W.P.No.27997 of 2007, which came to be disposed of by this Court, on 29-01-2008, with a direction to the respondents to follow the due process of law, if they intend to dispossess the petitioners therefrom. Accordingly, showcause notice, dated 14-02-2008, was issued by respondent No.1, proposing resumption of the said land under the provisions of the Andhra Pradesh Assigned Lands (Prohibition of Transfers) Act, 1977 (for short ‘Act 9 of 1977’) and the Rules made thereunder. The petitioners submitted their explanation, dated 06-05-2008, wherein, while initially denying that the land in question is an assigned land, they have, however, stated that even assuming that it was so, the said land was given to one Maqdoom Shareef as a patta under Laoni Rules, 1950, on 20th December, 1956 i.e., much before the issuance of G.O.Ms.No.1406, dated 25-07-1958, by which the Assignment Rules, replacing Laoni Rules, 1950, was brought into force. Purporting to consider the said explanation, respondent No.1 passed the impugned order whereunder it was held that the land in question is a Government Land and that it was assigned to one Maqdoom Shareef through Takhata (statement) Laoni Patta in 1956 and that the purchasers i.e., the petitioners herein failed to prove that the same is not an assigned land. It was also held that the petitioners did not file the patta to prove that the condition of non-alienability was imposed therein. It was also held that the petitioners did not file the patta to prove that the condition of non-alienability was imposed therein. On these premises, respondent No.1 has resumed the subject land in purported exercise of his powers under the provisions of Section 3 of Act 9 of 1977 and directed the eviction of the petitioners therefrom. 4. At the hearing, Sri Vedula Venkataramana, learned Senior Counsel for the petitioners, submitted that the fact that the petitioners’ vendor viz., Maqdoom Shareef was granted a Laoni Patta in the year 1956 is borne out by the impugned order itself. He further stated that for the first time, the condition of non-alienability was incorporated by the State Government though its revised assignment policy introduced in G.O.Ms.No.1406, dated 25-07-1958, and that therefore, respondent No.1 committed a serious error in placing the burden on the petitioners to prove that the patta granted in favour of their predecessor-in-title did not contain the condition of non-alienability. The learned Senior Counsel further submitted that a Division Bench of this Court in Letter sent from Plot No.338, Parvanth Nagar, Borbanda, Hyderabad and others vs. Collector & District Magistrate, Ranga Reddy District at Hyderabad, and others 2008 (5) ALT 313 (D.B.), after an exhaustive consideration of the entire issue, held that the provisions of Act 9 of 1977 will not apply to the alienation of lands covered by pattas/occupancy rights granted under Laoni Rules, 1950, unless the patta contained a condition of non-alienation, and that therefore, unless respondent No.1 has found a condition against alienation in the Laoni patta granted in favour of the petitioners’ predecessors-in-title, he ought not to have resumed the land. 5. The learned Assistant Government Pleader for Assignments advanced her submissions in support of the impugned order. 6. I have carefully considered the respective submissions of the learned Counsel for the parties. 7. In Letter sent from Plot No.338 (cited supra), a Division Bench of this Court has exhaustively considered the provisions of the Andhra Pradesh (Telangana Area) Land Revenue Act, VIII of 1317 Fasli, the Laoni Rules made thereunder and the revised assignment policy of the Government brought into force vide GO.Ms.No.1406, dated 25-07-1958. 7. In Letter sent from Plot No.338 (cited supra), a Division Bench of this Court has exhaustively considered the provisions of the Andhra Pradesh (Telangana Area) Land Revenue Act, VIII of 1317 Fasli, the Laoni Rules made thereunder and the revised assignment policy of the Government brought into force vide GO.Ms.No.1406, dated 25-07-1958. The learned Division Bench inter alia held that the provisions of Act 9 of 1977 will not be applicable to the cases where assignments were made on collection of market value or under circular 14 except where the pattas were granted to the landless poor persons. In paragraph Nos.49 to 51 of the said judgment, the Division Bench held as under: “49. The next issue, which falls for our consideration, is whether the provisions of Act No.9/1977 are applicable to all types of pattas/occupancy rights granted under various rules issued under Telangana Area Land Revenue Act. 50. Section 2(1) of the Act No.9/1977 defines “assigned land”, which reads as under: “Assigned land” means lands assigned by the Government to the landless poor persons under the rules for the time being in force, subject to the condition of non-alienation and includes lands allotted or transferred to landless poor persons under the relevant law for the time being in force relating to land ceilings; and the word “assigned” shall be construed accordingly. “Landless poor person” has also been defined under sub-section (3) of Sec.2, which means a persons, who owns an extent of land not more than 1.011715 hectares (two and half acres) of wet land or 2.023430 hectares (five acres) of dry land or such other extent of land as has been or may be specified by the Government in this behalf, from time to time and who has not other means of livelihood. 51. Sec.3 prohibits transfer of assigned lands after commencement of the Act of any land assigned by the Government to a landless poor person for purposes of cultivation or as a house-site. Sub-section (2) of Section 3 declares that no landless poor person shall transfer any assigned land and no person shall acquire any assigned land , either by purchase, gift, lease, mortgage, exchange or otherwise. Sub-section (3) of Section 3 adumbrates any transfer or acquisition made in contravention of the provisions of subsection (1) or sub-section (2) shall be deemed to be null and void. Sub-section (3) of Section 3 adumbrates any transfer or acquisition made in contravention of the provisions of subsection (1) or sub-section (2) shall be deemed to be null and void. Sub-section (5) of section 3 engrafts an exception to the retrospective operation of Sec.3(1) in favour of those landless poor persons who have already purchased the land prior to the commencement of the Act No.9/1977 from landless poor persons in violation of condition of inalienability, provided purchaser is a landless poor persons purchased in good faith for valuable consideration from the original assignee or his transferee prior to the commencement of the Act No.9/1977. Further the provisions of Act No.9 of 1977 will not apply to the alienation of pattas/occupancy rights granted under Laoni Rules or under Revised Assignment Policy issued in G.O.Ms.No.1406 dt. 25-7-1958 since Act No.9/77 prohibits transfer of assigned land which is defined under Sec. 2(1). Laoni Rules as well as the rules issued under G.O.Ms.No.1406 dt. 25-7-1958 deal with two types of assignments, ie., assignment on payment of market value and assignment to the landless poor persons. Act No.9/77 deals with assignment by Government to the landless poor persons subject to the condition of inalienability. Further Under Sec. 58-A of the Telangana Area Land Revenue Act issuance of notification in the official gazette notifying in respect of any village or tract of the area to which the Act extends, sanction of Collector for transfer of dry land is compulsory and any right of occupation of any land under Sec. 54 given after the date of notification shall not be transferable without obtaining previous sanction of the Collector. Since no such notification has been issued making it a condition to obtain sanction of the Collector for possession of unoccupied land compulsory in respect of any village or tract, the condition under Form-G which is contrary to the main statue cannot be invoked for invalidating the transfer of the assigned land in whose favour patta is granted either under Laoni Rules or under G.O.Ms.No.1406 on collection of market value.” (Emphasis supplied) 8. The Division Bench gave general directions to all the revenue authorities to follow the following norms before initiating resumption proceedings: “The revenue authorities have to specify: (a)the nature of occupancy rights granted, namely, whether occupancy rights were granted on collection of market value or free of market value in favour of the landless poor persons; (b)whether the said land falls within the notified area restricting inalienability as per the notification issued under Sec. 58-A of the Telangana Area Land Revenue Act; (c)whether Act No.9 of 1977 applies to the nature of occupancy right/assignment granted; (d)if any changes in the revenue records are effected, reasons for change from the original entries in khasra pahani of 1954-55 or subsequent to the same; in the notice to be issued for enabling them to make an effective explanation to meet the contentions and submit their explanation to the action proposed. Unless such particulars are furnished for submitting an effective explanation, lands cannot be resumed merely basing upon the revenue entries so made.” 9. In the instant case, respondent No.1 has not given any finding that he has perused the patta granted in favour of Maqdoom Shareef under the Laoni Rules, 1950. Curiously, he placed the burden on the petitioners to show that the patta does not contain any condition against alienation. Indeed, it is for respondent No.1 to be first satisfied that the land, which was alienated is “assigned land” within the meaning of Section 2 (1) of Act 9 of 1977, which defined “assigned land” as the lands assigned by the Government to the landless poor persons under the Rules for the time being in force subject to the condition of non-alienation. In my opinion, the jurisdiction of respondent No.1/competent authority, under the provisions of Act 9 of 1977, for cancellation of the assignment and resumption of the land, can be exercised only on the prima facie satisfaction that the said land is an assigned land, which necessarily means that the assignment made in respect thereof contains a condition against alienation. Respondent No.1 was, therefore, not expected to issue the showcause notice without looking into the patta granted under the Laoni Rules. He has completely misdirected himself in throwing the burden on the petitioners to show that the Laoni patta does not contain the condition against the alienation. Respondent No.1 was, therefore, not expected to issue the showcause notice without looking into the patta granted under the Laoni Rules. He has completely misdirected himself in throwing the burden on the petitioners to show that the Laoni patta does not contain the condition against the alienation. On the contrary, the initial burden is on him to show that the said patta contained such a condition. In the light of the admitted fact that the patta granted in favour of Maqdoom Shareef, who is the predecessor-in-title of the petitioners, was much prior to the commencement of the revised policy vide G.O.Ms.No.1406, dated 25-07-1958, and in the absence of any finding that the said patta contained the condition against alienation, the very invocation of the provisions of Act 9 of 1977 by respondent No.1 is wholly without jurisdiction and therefore, the impugned proceedings cannot be sustained. As a consequence thereof, Proceedings No.A/1448/07, dated 24-05-2008, issued by respondent No.1, is quashed. 10. The Writ Petition is, accordingly, allowed. 11. As a sequel, WVMP.Nos.1057 and 1408 of 2009 in/and WPMP.No.15701 of 2008 are disposed of.