Andhra HC (Pre-Telangana)
D.Koti Reddy vs M/S. Auriferous Aqua Farms Ltd.,(In ... on 28 July, 2014
Author: C.V. Nagarjuna Reddy
Bench: C.V. Nagarjuna Reddy
HON'BLE SRI JUSTICE C.V. NAGARJUNA REDDY COMPANY APPLICATION No.1528 of 2011 28-7-2014 D.Koti Reddy.. Applicant M/s. Auriferous Aqua Farms Ltd.,(In Liquidation), represented by The Official Liquidator,High Court of A.P., Hyderabad and others .. Respondents !Counsel for applicant : Sri P. Roy Reddy Counsel for respondent No.1 : Sri M. Anil Kumar, Official Liquidator Counsel for respondent No.2 : Sri Chitturu Srinivas Counsel for respondent No.3 to 6 : Special Government Pleader Counsel for respondent No.7 : <GIST: >HEAD NOTE: ?CASES REFERRED : Nil The Court made the following : COMMON ORDER:
As the subject matter of both these applications is common, they are heard and being disposed of together.
Company Application No.1528/2011 is filed by the auction- purchaser of land admeasuring Ac.350-00 in Ulichi and Devarampadu villages, Prakasam District, in the auction held on 21-1-2010 in pursuance of the order passed by this Court in C.P.No.69/1998, inter alia impleading the Assistant Director, Survey and Land Records as respondent No.3. For convenience, the applicant is referred to as the auction purchaser. The State of Andhra Pradesh, the Revenue Divisional Officer, Ongole and the Tahsildar, Ongole, have filed Company Application No.108/2012 for their impleadment. By order dated 15-2-2012, this Court ordered their impleadment.
Company Application No.6 of 2013 is filed by the State of Andhra Pradesh, represented by the District Collector, Prakasam District, Ongole, the Revenue Divisional Officer, Ongole and the Tahsildar, Ongole, to set-aside the auction in respect of Ac.239-85 cents of Ulichi village and delivering vacant possession of the said land to the Government. For easy reference, the applicants in this application are referred to as the State.
The facts leading to the filing of the present applications are briefly stated hereunder:
M/s. Auriferous Aqua Farms Ltd., purchased Ac.350-00 of land in various survey numbers of Ulichi and Devarampadu villages, Prakasam District from the purported owners of the lands under registered sale deeds. For convenience the said company is referred to as the company in liquidation. In a creditors winding up petition, this Court has ordered winding up of the company in liquidation. The company in liquidation has mortgaged Ac.350-00 of land purchased by it to the Federal Bank Limited and obtained loan. In the auction held by the Official Liquidator on 21-1-2010 the auction purchaser has offered the highest bid of Rs.3-06 crores. This Court, by order dated 26-2-2010 in Company Application No.1697/2009 confirmed the sale. The auction purchaser has paid the entire sale consideration along with interest @ 6% per annum on the delayed payment by 9-8-2010.
The auction purchaser sought for survey and demarcation of the land purchased by him. As the correspondence exchanged between himself, the Official Liquidator and the Bank did not bear fruition, the auction purchaser has filed Company Application No.1528/2011 for a direction to the State and its subordinates, in particular, the Assistant Director, Survey and Land Records, to cause survey, demarcation and preparation of Field Measurement Sketch in respect of Ac.350-00 of land purchased by him in Ulichi and Devarampadu villages.
The State has filed Company Application No.108/2012 for impleadment in Company Application No.1528/2011. This application was supported by an affidavit filed by the Revenue Divisional Officer, Ongole. This Court, by order dated 15-2-2012 ordered impleadment of the State, the Revenue Divisional Officer and the Tahsildar, Ongole as respondent Nos.4 to 6 in Company Application No.1528/2011. Thereafter, the State has filed Company Application No.1023/2012 for setting aside the auction held by the Official Liquidator in respect of Ac.239-85 cents at Ulichi village. As the said application was found bereft of proper details, this Court dismissed the same by order dated 20-11-2012 with liberty to the State to file a fresh application. Accordingly, the State has filed Company Application No.6 of 2013 for a similar relief.
As noted above, the first application i.e., Company Application No.108/2012 for impleadment filed by the State, was supported by an affidavit of the Revenue Divisional Officer, Ongole, wherein it is inter alia averred that as per the Re-survey and Re-settlement Register (RSR), an extent of Ac.200-00 purchased by the company is an assigned/Government land; that in the year 1994, the company in liquidation purchased assigned lands/Government lands through various registered sale deeds from the assignees and also third parties; that though the name of the company was not incorporated in the revenue records after purchase of the lands, it has mortgaged the lands with the Federal Bank and that in the auction held for recovery of debt due to the Bank, the Official Liquidator has sold the property which was purchased by the auction purchaser; that the Government issued G.O.Ms.No.1110, dated 15-9-2008 for alienation of Ac.6406.14 cents in favour of Vodarevu and Nizampatnam Industrial Corridor (VANPIC), which includes Ac.2079.15 cents of Devarampadu village and Ac.165.27 cents of Ulichi village; that before finalisation of alienation in favour of VANPIC a part of the said land was assigned to landless poor persons; that the Assignment Committee has approved the assignment on 20-9- 2008; that, however, VANPIC purchased the lands from the assignees in the year 2008; that under G.O.Ms.No.233, dated 21-2-2009, the market value for payment of ex-gratia to the assignees was fixed and VANPIC has paid the amount to the assignees and taken over the land and that a CBI enquiry is pending on the allotment of lands to VANPIC. He has further stated that all the records relating to the lands are being looked into and the Revenue Department reserves its right to file a detailed affidavit.
The District Collector, Ongole has filed an affidavit in support of Company Application No.1528/2011. She has stated that the persons who sold large extents of lands to the company in liquidation have no title over the lands and they have fraudulently got their names incorporated in the revenue records such as 10(1) Account by rounding off the existing names, extents and survey numbers; that the said corrections did not contain attestations of the competent authority and that large extents of those lands are classified as assessed waste, porambokes, foot paths etc., as shown in Annexures I to IV. The Collector has given out the background of Resurvey and Re-settlement of the lands during the years 1900-1908. She has sought to explain the significance of dots in the remarks column of the RSRs as lands not being under enjoyment of any person. She has stated that the assessed waste lands which were fit for cultivation were assigned by way of grant of D-Form pattas and the unassessed waste lands were also available for assignment. She has further stated as under:
After preparation of Resurvey & Resettlement Register the then Govt. has assigned land to the landless poor persons during the year 1921, 1936 etc., on darakast. As all these lands are treated as Government lands, after formation of State of Andhra Pradesh the Government has taken up some crash programmes to distribute all these lands which are fit for cultivation and assigned the land to the landless poor people on darakast from 1950 onwards in a phased manner. Now the Govt. has proposed to distribute available Government land to the landless poor people on darakast form under 6th phase during this year. (Emphasis added) The Collector further averred that under Board Standing Order-15, only landless poor persons who do not have more than Ac.2-50 of wet land or Ac.5-00 of dry land are eligible for assignment, but the executants of the registered sale deeds in favour of the company in liquidation are owning more than Ac.5-00 of dry lands and that therefore the validity of the said documents itself is questionable. She has reiterated the averment of the Revenue Divisional Officer that the lands were alienated to VANPIC vide G.O.Ms.No.1110, dated 15-9-2008, of which Ac.165-27 of Ulichi village is also a part. She has further averred that an extent of Ac.239-85 cents purchased by the company in liquidation includes porambokes, footpaths etc., required for the present and future use by general public and the registered sale transactions in respect thereof are contrary to the provisions of the A.P. Assigned Lands (Prohibition of Transfers) Act, 1977 (for short the 1977 Act) and that the same shall be treated as null and void.
Adverting to the above mentioned counter-affidavit, this Court, by order dated 7-6-2012 observed that the counter-affidavit is silent as to the lands assigned in the years 1921, 1936 and from 1950 onwards. The learned Judge further observed that prior to the formation of the State of Andhra Pradesh, w.e.f. 1-10-1953, BSO-15 did not prohibit alienation of assigned lands and that the said BSO was amended w.e.f. 18-6-1954, from which date alienation of assigned lands was prohibited; that if the lands were assigned prior to 18-6-1954 they could not have been re- assigned from the year 1970 in the absence of prohibition on alienation and except 10(1) Account Register from November 1969 onwards, the Collector has not produced any other record and that having admitted in her counter-affidavit that the lands were assigned in the years 1921, 1936 and from 1950 onwards, the Collector ought to have placed the relevant records before the Court, based on which she has made the said assertion. The learned Judge further directed that if the lands were assigned earlier and were resumed, those details with relevant records shall also be placed for perusal of the Court.
In the affidavit filed in Company Application No.6/2013 by the District Collector, she has resiled from her stand taken in her affidavit dated 4-6-2012. In this affidavit, the Collector has asserted that the lands were assigned for the first time in the year 1969-70. She has taken a complete U-turn in this affidavit by stating that she did not mean to say that the subject lands in the present Company Petition were assigned in the year 1921, 1936 or 1950 and that the contra plea taken by her in her previous affidavit is due to inadvertence. In this affidavit, the Collector has categorised the lands in Ulichi village under Sl.Nos.1 to 162 and took pains to impress upon this Court that the assignments in respect of those lands were made from 1969 onwards. She has further stated that out of Ac.239-85 cents claimed by the Government as covered by assignments, an extent of Ac.165-27 cents was allotted to VANPIC Projects. She has filed copies of RSR, extracts of Assignment Registers and Village Accounts, in order to fortify her plea that the assignments were made after 1969 and that the revenue record has been tampered by rounding off the names and entering different names.
In Company Application No.6 of 2013, the State has let in oral evidence by examining K.M. Rosemond, Tahsildar, Ongole, as PW-1. She has filed her evidence affidavit in lieu of chief-examination and marked Ex.A-1 to A-5. Ex.A-1 is the Assignment Register (D.K. Register), Ex.A-2 is the Re-Survey and Re-Settlement Register of 1908, Ex.A-3 is 10(1) Accounts Register (Vol.II), Ex.A-4 is 10(1) Accounts Register (Vol.III) and Ex.A-5 is D.K. File (F.Dis.No.163/79). The Counsel for Federal Bank marked Ex.B-1 letter dated 23-1-2012 of the Assistant Director addressed to the Commissioner of Survey, Settlement and Land Records, through PW-1.
In her affidavit filed in lieu of chief-examination, PW-1 has reiterated the stand taken by the District Collector in her affidavit filed in support of Company Application No.6 of 2013. PW-1 was cross- examined by the Counsel for the auction purchaser, the Counsel for the Official Liquidator and the Counsel for the Federal Bank. In her cross- examination by the Counsel for the auction purchaser, PW-1 admitted that she has not produced any record pertaining to assignment of lands of the years 1921, 1936 and from 1950 onwards as directed by this Court. She has admitted that in column No.13 of Ex.A-2-RSR, the names of several pattadars have been shown and that she is unable to explain as to why column No.4 has shown the lands as belonging to the Government. PW-1 feigned ignorance whether by the time of preparation of RSR, pattas were granted to private individuals and that because of that reason, the names of private persons have been mentioned in column No.13 of Ex.A-2. She admitted that there is variation in extents mentioned between Ex.A-2-RSR and the affidavit filed by her in lieu of chief-examination in respect of Sy.No.421. PW-1 admitted that she has not mentioned the details of the assignments made in respect of the lands stated to have been assigned in the year 1968. She has stated that she does not know the reason for not producing the Village Accounts prior to the year 1956. She further explained that as the records for the said period were kept in old records room, they could not be traced. She further deposed that as the names in Ex.A-3 were changed, she has stated in her chief-affidavit that 10(1) Account Register was tampered. She has also pleaded ignorance for not producing the Record of Holdings by the District Collector though a direction was given by this Court for such production. PW-1 has also deposed that she is not aware whether any proceedings were initiated under the provisions of the 1977 Act for alienation of the assigned lands.
In the cross-examination made by the Counsel for the Official Liquidator, PW-1 deposed that Assignment Registers are maintained for the years 1921 and 1936 onwards and that they are not presently available; that the Government is not in possession of Ac.165-27 cents of land which was allotted to M/s.VANPIC Projects Pvt. Ltd. in the year 2008 and that possession of the land was handed over to the said company. She has deposed that as the allotment made to M/s. VANPIC Projects Pvt. Ltd. was under cancellation, prayer for delivery of vacant possession of the entire extent of Ac.239-00 was made in Company Application No.6 of 2013. She has however admitted that no evidence is produced to show that the allotment of land made to M/s. VANPIC Projects Pvt. Ltd. was under cancellation. PW-1 has admitted that she has not filed any document to show that the assignments of lands made even prior to 1956 contained a clause prohibiting alienation. She has pleaded ignorance of the publication made by the Official Liquidator on 6-1-2010 inviting tenders for sale of lands. She has denied that Exs.A-1 to A-4 were recently prepared with a view to favour M/s. VANPIC Projects Pvt. Ltd.
In the cross-examination made by the Counsel for the Federal Bank, PW-1 stated that though the Adangals in respect of the lands in dispute are available, they have not been filed and that she has not verified the Adangals to know whether in the year 1993-94 itself, the name of the company in liquidation was mentioned as pattadar. PW-1 denied the suggestion that she has been wilfully withholding the Assignment Registers of the years 1921 and 1936. She stated that Ex.A-1 is not the only register covering the assignments made upto the year 1979 and that some of the assignments involved in these cases were made even after the year 1979 and those Registers have not been filed. PW-1 admitted the suggestion that the name of the company in liquidation was in existence in the revenue record in 1994 itself and that the Department ought to have initiated proceedings for cancellation of the assignments under the provisions of the 1977 Act. She has admitted that as per letter dated 23-1-2012 of the Assistant Director addressed to the Commissioner of Survey and Settlements (Ex.B-1), Ac.150-00 is in possession of M/s. VANPIC Projects Pvt. Ltd. and that the same is fenced.
From the pleadings of the parties and the evidence on record, the only issue that needs to be considered is whether the extent of Ac.239.85 cents purchased by the auction purchaser is liable to be deleted from the auction sale in favour of the State?
The bone of contention of the State is that the lands purchased by the company in liquidation from various private persons are assigned lands which contained a clause on prohibition of alienation. It is not disputed that the assignments granted in respect of the lands in the Andhra Area prior to issuance of G.O.Ms.No.1142, dated 18-6-1954, did not contain a clause prohibiting their alienation and that for the first time such a prohibition was incorporated in the said G.O. Obviously, realising this settled legal position, the Collector, who has initially committed herself in her affidavit filed in Company Application No.1528/2011 that the assignment of the lands in question was started from the year 1921, has made a complete volte face in her affidavit filed in Company Application No.6 of 2013. She has come out with a totally new plea that assignments were made from the year 1969, obviously to suggest that all these assignments contained a clause on prohibition of alienation and are consequently hit by the provisions of the 1977 Act. Despite the specific direction given by this Court, the State failed to produce the Assignment Registers for the period prior to 18-6-1954. Sri P. Roy Reddy, learned Counsel, has filed old Village Account No.2 showing the details of Sy.No.415 and its sub-divisions. Though these documents do not bear the dates, it is not disputed by the learned Special Government Pleader that they are very old and they relate to the period much prior to the year 1969. As per the said documents, Sy.No.415 is sub-divided into Sy.No.415/1 to 6 with different extents. In respect of Sy.No.415/1, an extent of Ac.1-40 cents is shown in the name of Kommu Raghavulu. Same extent of land was included by the State Government in Sl.No.50 of the evidence affidavit wherein it was shown to have been assigned in the year 1970 to Kommu Peda Raghavulu. Based on this, the learned Counsel has pleaded that the said land was assigned much prior to the year 1970 and that the same has been shown to have been once again assigned in the year 1970. Similarly, the name of Kommu Chinna Raghavulu is shown at Sl.No.51 of the evidence affidavit as the assignee in the year 1970, whereas old Village Account No.2 has shown the name of the same person as having been granted assignment much prior to 1970. Several such instances have been shown by the learned Counsel for the auction purchaser with reference to old Village Account No.2, a perusal of which would show that the names of the persons who were shown to have been assigned land prior to 1970 have again been shown in the Assignment Register of the year 1970. A perusal of Ex.A-3 i.e., 10(1) Account Register shows that the names of owners have been rounded off in respect of several survey numbers and different names have been written. This fact is admitted by the State. While the auction purchaser, the Official Liquidator and the Federal Bank alleged that the record was tampered with a view to set up false claim by the State to help M/s. VANPIC Projects Pvt. Ltd., a counter allegation is made by the State that the revenue records were tampered at the instance of the company in liquidation. It is not possible for this Court to decide in these applications as to who is responsible for the alleged tampering. However, the State, being the custodian of record, burden lies on it to explain as to who tampered the record. The State should take the responsibility for tempering of the record and benefit of doubt in this regard must go to the claimants of the land.
What this Court is unable to comprehend is the failure of the State to produce the Assignment Registers for the period prior to 1969. As noted above, PW-1 in her evidence stated that these records are kept in old record room. Substantial time was granted to the State to produce the Assignment Registers. Despite availing such time, the State failed to produce these records. The non-production of the Assignment Registers for the earlier periods would give rise to an adverse inference against the State that it has deliberately withheld the record to suppress the fact that the lands were assigned prior to 18-6-1954 and that once again they are being shown as having been assigned from the year 1969 onwards. This inference is supported by the following circumstances : (1) That till now no proceedings have been initiated for cancellation of assignments.
(2) Under Section 5 of the 1977 Act, a list of assigned lands shall be furnished to the Registering Officer having jurisdiction over the area and the Registering Officer shall not accept any document for registration relating to transfer of or creation of any interest in any assigned lands.
(3) Under Section 2(1) of the 1977 Act, an assigned land is defined as the land assigned by the Government to the landless poor persons subject to the condition of non-alienation. Had the assignments been made for the first time in the year 1969, they would have contained a condition of non-alienation and there was no reason for the Collector not to have included these lands in the prohibited list under Section 5 of the 1977 Act. It is not the pleaded case of the State that these lands were included in the prohibited list and communicated to the Registering authorities.
(4) Though vide publicity was given by the Official Liquidator by way of paper publication of the notification inviting bids, in pursuance of which the auction was held, no Revenue functionary has raised any objection to the auction.
(5) That the fact that all these lands were registered under various registered sale transactions by the registering authority without any demur would also give rise to a presumption that they were not assigned for the first time in the year 1969 and that on the contrary they were assigned prior to issuance of G.O.Ms.No.1142 dated 18-6-1954.
(6) Assuming that the lands fall within the definition of Section 2(1) of the 1977 Act, even if they were sold in violation of the provisions thereof, they will not automatically get re-vested in the State. Unless the lands were resumed from the possession of the persons who were allegedly in unlawful occupation of the same, the State cannot assert its right over the lands. Admittedly, the assignments stated to have been made in or after 1969, have not been cancelled and the lands have not been resumed so far. The State cannot therefore claim its right over the lands as of now, more so after the auction held by the Official Liquidator was confirmed by this Court. There is another interesting aspect i.e., out of Ac.239-00 of land claimed by the State, an extent of Ac.165-27 cents was stated to have been alienated to M/s.
VANPIC Projects Pvt. Ltd. under G.O.Ms.No.1110, dated 15-9-2008. It has come out in the pleadings as well as the evidence adduced by the State that possession of the land was handed over to the said company. It is also not in dispute that the said alienation has not been cancelled by the Government so far. Though M/s. VANPIC Projects Pvt. Ltd. has been impleaded as respondent No.7 and notice has been served on it, no one appeared for the said company. Therefore, the State, which parted with the title vested, if any, in it on account of alienation made to M/s. VANPIC Projects Pvt. Ltd. cannot maintain the application in respect of Ac.165-27 cents.
The State has got the Darkhast file marked as Ex.A-5 and also produced a few assignment copies in order to fortify their plea that the assignments were made after 18-6-1954. As observed earlier, Ex.A-5- Register contains several corrections regarding the names of the alleged assignees by rounding off the names originally written and writing fresh names. It is the common case of both the parties that revenue records have been tampered with. As the State has failed to prove that the assignments containing the condition of non-alienation were made for the first time after 18-6-1954, it is not possible for this Court to invalidate the sales purportedly on the ground that such sales are in violation of the condition of non-alienation contained in the assignments.
For the above mentioned reasons, I do not find any merit in Company Application No.6 of 2013.
With respect to the prayer in Company Application No.1528/2011, the Assistant Director, District Survey and Land Records, Prakasam District, Ongole, in his counter affidavit, inter alia stated that the land for which survey is sought is located in two villages; that the said lands are covered by big trees, shrubs, bushes and looks like a jungle, which needs to be cleared before proceeding with the work of survey. He has also referred to the expenses required to be incurred for survey of the said land as per the A.P. Survey and Boundaries Act, 1923. In the light of these averments, the Assistant Director, District Survey and Land Records, Prakasam District, Ongole, is directed to inform the applicant/auction purchaser of the expenses required for jungle clearance as well as for undertaking survey of the lands within one month from the date of receipt of this order. On such intimation, the applicant/auction purchaser shall remit the costs within one month thereafter. Within three months of remittance of the costs, the Tahsildar, Ongole and the Assistant Director, District Survey and Land Records, Ongole shall ensure that all necessary works are undertaken and survey is concluded. On completion of the survey, a report thereof shall be furnished to the applicant/auction purchaser.
In the result, Company Application No.1528/2011 is allowed and Company Application No.6 of 2013 is dismissed.
________________________ Justice C.V. Nagarjuna Reddy Date : 28-7-2014