Andhra HC (Pre-Telangana)
Uppu Pandaiah vs The Mandal Revenue Officer, Sydapuram ... on 10 February, 1992
Equivalent citations: AIR1993AP132, AIR 1993 ANDHRA PRADESH 132, (1992) 1 APLJ 434, (1992) 1 LS 244, (1992) 1 ANDHWR 791
ORDER Mohd. Sardar Ali Khan, J.
1.This writ appeal is directed against the judgment of the learned single Judge in W. P. No. 1988 of 1986 dated 4-3-1986.
2. The essential facts which may be mentioned briefly for the purpose of this writ appeal are as follows : The writ petition was filed by the petitioner in respect of the land ad-measuring ac. 3-40 cents in S.No. 601 /1 of Changanam Village, Sydapuram Revenue Mandal, Nellore, district against the proceedings in Rc.No. B. 1401/85 dated 14-2-1986 issued by the Mandal Revenue Officer, Sydapuram (first respondent) cancelling the patta granted to the petitioner earlier as an assignee of the said land. The petitioner claims to be a member of the Backward Caste and is a landless poor person who had been eking out his livelihood as an agricultural labourer. The Tahsildar, Rapur assigned an extent ac. 3-40 cents of dry land in S. No. 601 /1 of Chaganam village about 25 years back and since then the petitioner had been cultivating the said land by spending amounts of his own. It seems he raised a lemon-garden in an extent of ac.0-50 cents and the rest of the land is being used for raising dry crops. The case of the petitioner is that due to his indigent conditions he was forced to execute a registered sale deed dated 9-12-1980 in favour of one N. Syamalamma (the second respondent) for a consideration of Rs. 3,400/- in connection with the said land. As a result of the alienation of the land by the petitioner, he received a notice dated 22-10-1985 issued by the first respondent as to why the patta of the said land should not be cancelled and the land be resumed by the Govt. The petitioner submitted his explanation through his counsel and admitted the execution of the registered sale deed, but requested the first respondent to restore the land in question to him under the provisions of Section 4(1)(b) of the Andhra Pradesh Assigned Lands (Prohibition of Transfers) Act IX of 1977 (hereinafter referred to as the 'Act') by evicting the vendor from the said land. Nevertheless the first respondent passed an order impugned in the writ petition cancelling the patta granted in favour of the petitioner and directed the Village Assistant to submit the proposals for the assignment of the said land to some other landless poor person. Since the proceedings had become final, the petitioner challenged the proceedings so issued by virtue of a writ seeking a direction to declare the said orders as illegal and to restore the land to the petitioner.
3. The learned single Judge, after an elaborate discussion of the matter, held inter alia that the terms of the grant of the land in favour of the petitioner require him to hold the land for purpose of cultivation and to eke out his livelihood from it. Since the petitioner had violated the terms of the grant without any justification, the authorities would be justified in refusing to restore possession to him of the land originally assigned in his favour and to assign the land to some other eligible landless poor in the village. The learned single Judge, while deciding the matter, relied upon two decisions of this Court.
In the decision of a Division Bench reported in V. China Kondayya v. Dist. Collector, Eluru, , he relied upon the observations made therein to substantiate the contention that the possession of the land need not be given to the petitioner. He also relied on the decision of a single Judge reported in T. Onnuramma v. Tahsildar, Kadiri, for arriving at the conclusion that the cancellation of patta and resumption of the land by the Govt. is not assailable.
4. In order to examine the question-as to whether the lands can be resumed by the Govt. under the facts and circumstances stated above, it would be necessary to examine the relevant provisions of the Act before embarking upon the discussion of what has been held in the cases referred to above. Under Section 3 of the Act it is stated as follows (at page AP 64) :
"3. Prohibition of transfer of assigned lands :- (1) Where before or after the commencement of this Act any land has been assigned by the Government to a landless poor person for purposes of cultivation or as a house-site then, notwithstanding anything to the contrary in any other law for the time being in force or in the deed to transfer or other document relating to such land, it shall not be transferred and shall be deemed never to have been transferred; and accordingly no right or title in such assigned land shall vest in any person acquiring the land by such transfer.
(2) 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.
(3) Any transfer or acquisition made in contravention of the provisions of sub-section (1) or sub-section (2) shall be deemed to be null and void.
(4) The provisions of this section shall apply to any transaction of the nature referred to in sub-section (2) in execution of a decree or order of a civil court or of any award or order of any other authority.
(5) Nothing in this section shall apply to an assigned land which was purchased by a landless poor person in good faith and for valuable consideration from the original assigneee or his transferee prior to the commencement of this Act and which is in the possession of such person for purposes of cultivation or as a house-site on the date of such commencement."
It is evident from a reading of the above section that if after the commencement of the Act, any land has been assigned to the landless poor person for purpose of cultivation or as a house-site, it shall not be transferred and shall never be deemed to have been transferred and accordingly no right or title in such assigned land shall vest in any person acquiring the land by such transfer. It is also provided 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. However nothing contained in the section applies to the assignment of a land which was purchased by a landless poor person in good faith and for valuable consideration from the original assignee or his transferee prior to the commencement of the Act. In other words under Section 3 (5) of the Act if a purchase comes within the definition of a bona fide purchase for value in good faith, such transfer in favour of such person cannot be hit by the provisions of the Act. Under Section 4 of the Act, which is the crucial section, for purpose of decision of this case, it is provided as hereunder :
"Consequences of breach of provisions of Section 3 :-- (1) If in any case, the District Collector or any other officer not below the rank of a Tahsildar, authorised by him in this behalf, is satisfied that the provisions of subsection (1) of Section 3, have been contravened in respect of any assigned land, he may, by order--
(a) take possession of the assigned land, after evicting the person is possession in such manner as may be prescribed; and
(b) restore the assigned land to the original assignee or his legal heir, or where it is not reasonably practicable to restore the land to such assignee or legal heir, resume the assigned land to Government for assignment of landless poor persons in accordance with the rules for the time being in force :
Provided that the assigned land shall not be so restored to the original assignee or his legal heir more than once, and in case the original assignee or his legal heir transfers the assigned land again after such restoration, it shall be resumed to the Government for assignment to any other landless poor person.
(2) Any order passed under sub-section (1) shall be final and shall not be questioned in any court of law and no injunction shall be granted by any court in respect of any proceeding taken or about to be taken by any officer or authority or Government in pursuance of any power conferred by or under this Act.
(3) For the purposes of this section, where any assigned land is in possession of a person, other than the original assignee or his legal heir, it shall be presumed, until the contrary is proved, that there is a contravention of the provisions of sub-section (1) of Section 3."
It would be necessary to read the provisions of Section 4 of the Act carefully to seek an answer for the (question) which has been raised in this writ appeal. It would be necessary to state that under section 4 of the Act it is stated that the District Collector or any other officer so authorised may, by order, take possession of an assigned land after evicting the person in possession in such manner as may be prescribed and restore the same to the original assignee or his legal heir or where it is not reasonably practicable to restore the land to such assignee or legal heir, resume the assigned land to Govt. for assignment to landless poor persons in accordance with the rules for the time being in force. The Proviso to the above section which follows clause (b) of sub-section (1) of Section 4 of the Act is of great importance. It is provided that the assigned land shall not be restored to the original assignee or his legal heir more than once and in case the original assignee or his legal heir transfers the assigned land again after such restoration, it shall be resumed to the Govt. for assignment to any other landless poor person. A clear analysis of Section 4 of the Act leads to the following conclusion. If a land has been alienated by the assignee, then the District Collector or any other person authorised in that behalf may, by order, take possession of the assigned land after evicting the person in possession in such manner as may be prescribed. Indeed the word 'may' in this case has to be read in the context of what has been provided under Section 4(1)(a) of the Act which leads to the conclus: on that if the District Collector comes to the conclusion that it is worth-while to take possession of the assigned land after evicting the person, he may do so taking into consideration the facts and circumstances of the case before him. After taking possession, it is provided under Section 4(1)(b) of the Act that the land should be restored to the original assignee or his legal heir or where it is not reasonably practicable to restore the land to such assignee or legal heir, the Govt. may resume the land for assignment to another landless poor persons. The analysis so far reveals the point clearly that the whole emphasis of Section 4 of the Act is that in case the possession of the assigned land is taken over by the District Collector or any other officer authorised in that behalf, then it is necessary to restore the said land to the original assignee. If for any reason the original assignee is not traceable or is not in existence, then the land has to be restored to his legal heir. However if it is not possible to trace the legal heir of the original assignee, then the said land may be resumed by the Govt. for assignment to another landless poor person. It has to be noted that the restoration of the land in favour of the original assignee or his legal heir may not be made only when it is not reasonably practicable to restore the land to such person. But if it is possible and reasonably practicable to restore the land, then Section 4 of the Act makes it incument on the authorities to restore the land to the original assignee or his legal heir as the case may be. The above situation becomes clearer when the Proviso to Section 4(1)(b) of the Act is read to see the real intention of the Legislature in promulgamating Section 4 of the Act. The Proviso stales that the assigned land shall not be so restored to the original assignee or his legal heir more than once and in case the original assignee or his legal heir transfers the assigned land again after such restoration, it shall be resumed to the Govt. for assignment to any other landless poor person. The obvious conclusion to be drawn from the grammatical interpretation of Section 4 of the Act is that if the original assignee has committed the error of alienating the assigned land for the first time in his life and if the land is taken possession of by the authorities under Section 4 of the Act, then it is obligatory on the part of the authorities to restore the said land in favour of the original assignee or his legal heir as the case may be. However if the original assignee again commits the error of alienation of the land in favour of any other person, then the said land shall not be restored to such original assignee or his legal heir and may be resumed by the Govt. for purpose of assignment of the said land in favour of another landless poor person. To put it in a nut-shell the principle to be deducted from the above situation is : that it is necessary on the part of the authorities to see whether in the facts and circumstances of the case, they can take possession of the assigned land after evicting the person in possession in such manner as may be prescribed and if that is done, then they shall assign the land in favour of the original assignee, if the alienation is made by him for the first time, unless it is not reasonably practicable to restore the land in favour of the original assignee or his legal heir. In this scheme of Legislature the situation which was judged by the learned single Judge in Onnuramma v. Tahsildar (above) was in the following manner. In the said case before the learned Judge the question which was mainly considered was : whether the Provisions of the Act can be given retrospective effect? It is held in that case in para 6 of the judgment thereof that the policy of the Legislature is diametrically opposed to the policy underlying the executive instructions contained in G.O. Ms.No. 1142 dated 18-6-1954. Before the promulgation of the Act under G.O. Ms.No. 1142 dated 18-6-1954 the policy was one of resumption of land.
Under the G.O. Ms. No. 1142 the policy adopted was one of resumption of lands; under Act IX of 1977 the policy adopted is one of restoration of lands both for violation of the condition of inalienability. It is further stated in the said judgment that under G.O. Ms. No. 1142 it is open for the executive to resume the lands from the landless poor persons on the ground that they have alienated the lands. But under the provisions of the Act it is not open to the executive to resume those lands and on the other hand it is the duty of the authorities to restore back the alienated lands to the grantee. In view of this clear enunciation of law, it cannot be said that the decision is in anyway contrary to what has been stated above in this order. Indeed the analysis of Sections 3 and 4 of the Act appears to be in consonance with the reasons adopted by the learned single Judge in the said case. However by a over-sight the learned Judge in this matter read the judgment of the learned Judge in a different context. Relying upon the said decision it is held in the order under appeal that the observations of the learned Judge, particularly with regard to the use of the word 'may' do not make it obligatory on the part of the authorities to necessarily restore possession to the original assignee after taking possession of the said land from the person in whose favour it has been alienated. The discussion of Section 4 of the Act and the word 'may' in that context in the said judgment is clearly confined to the question of taking over possession of the land. That is why the learned Judge in para 11 of the judgment gave instance as to when it may not be necessary to take over possession of the land which is in the hands of alienee. For instance when the alienation has been made a long time back and the said land is in the hands of the alienee for a considerable period of time; Furthermore it is also stated that if the alienee has spent time and energy in the development of the land and in the similar circumstances the authorities may come to conclusion that it may not be practicable to take over the possession of the land from the hands of the alienee of the original assignee of the lands. This cannot be stretched to cover the situation that when once the lands have been taken over possession by the District Collector or by any officer authorised in that behalf, they need not be restored to the original assignee. Any such interpretation would be in the teeth of the provisions of Section 4(1)(a) and (b) of the Act read with the Proviso which has been discussed in detail above in this judgment, In any case it is being made clear by the Legislature that if the land has been transferred for the first time by the original assignee and if the said land has been taken possession by the District Collector, then unless it is not reasonably practicable to so do, the land shall be restored to the original assignee. The Only two conditions therefore which can come in the way of restoration of the land to the original assignee are : (1) that on a consideration of the matter it is not reasonably practicable to do so; and (2) that the alienation has been made more than once by the original assignee. It will be obligatory on the part of the authorities to restore the land to the original assignee. The other decision which was heavily relied upon by the learned single Judge is the Division Bench judgment reported in China Kondayya's case (above). In this case the Division Bench held that the purpose of Section 3 (5) of the Act is to see whether on the date a person purchased the land, he was a landless poor person and whether he purchased it in good faith and whether it was for valuable consideration. The point of time with reference to which the above facts must be determined is the date of purchase of by the person proceeded against. The Division Bench held that within the meaning of Section 3(5) of the Act any purchase of the said land which comes within the definition of a bona fide purchase for value in good faith will be protected and his interests are not hit by the Provisions of Section 3 of the Act. That appears to be the ratio desidendi of the judgment. The Division Bench further opined that the assignment of the land is made to further the cause of the landless poor and to help them in eking out their livelihood. This obviously is the aim of the social legislature which has been pro-mulgamated in the shape of the Act. We do not find any justification in reading the Division Bench judgment to come to the conclusion that the land taken over by the District Collector from an alienee need not be restored to the original assignee even if he has assigned the land for the first time as provided under Section 4 of the Act. We are therefore constrained to hold that the reliance placed by the learned single Judge on both the above said judgments was altogether on a different point which was not germane to the issue of restoration of land to the original assignee arising in this case.
5. In view of the above discussion we set aside the judgment of the learned single Judge and allow the writ appeal with a direction that the land in question shall he restored to the original assignee in accordance with the provisions of Section 4 of the Act within one month from the date of receipt of this judgment. In the circumstances of the case there will be no order as to costs. Advocate's fee Rs.250/-.
6. Appeal allowed.