Andhra HC (Pre-Telangana)
G. Amrutha Rao & Others vs Government Of Andhra Pradesh And Others on 14 September, 2012
Author: L. Narasimha Reddy
Bench: L. Narasimha Reddy
THE HON'BLE SRI JUSTICE L. NARASIMHA REDDY WRIT PETITION No.34867 OF 2011 14-09-2012 G. Amrutha Rao & Others Government of Andhra Pradesh and Others Counsel for the Petitioners: Sri Pulla Rao Yellanki Counsel for the Respondents:Government Pleader for Revenue <Gist: >Head Note: ?Cases referred:2008(5)ALT 313D.B.) ORDER:
The petitioners 1 to 5 purchased plots of 200 square yards each, carved out of survey No.233 of Nizampet Village, Kukatpally, in the year 1989 and the 6th petitioner purchased a plot of similar size from the same survey number in the year 1991. The Deputy Collector & Tahsildar, Qutubullapur Mandal, 4th respondent herein, initiated proceedings under the A.P. Assigned Lands (Prohibition of Transfer) Act 1977 (for short 'the Act') against the petitioners and certain others. It was mentioned that an extent of Acs.4.00 each, in Sub- division Nos.24, 25 and 26 in Survey No.233 were assigned in favour of Seetharam Reddy, Yella Reddy and Ramakrishna Reddy, respectively, vide orders, dated 15-06-1961, the said assignees have divided the lands into plots and sold them to various persons, including the petitioners. Explanations were submitted stating inter alia that the land was purchased for consideration from the Government and that the provisions of the Act do not apply. Not satisfied with that, the 4th respondent passed an order, dated 10-03-2010, directing resumption of the land. The same is challenged in this writ petition.
2. The petitioners contend that the land was assigned/ transferred under the A.P. (Telangana Area) Rules 1950 (for short 'the Rules') in Form-G and that no condition prohibiting alienation of such land was incorporated in the orders. They submit that the very initiation of the proceedings under the Act vis--vis the land, was untenable.
3. On behalf of the respondents, a detailed counter - affidavit is filed. It is admitted that the land was assigned under the Rules. It is, however, stated that once the Government land is assigned in favour landless poor, alienation of the same would attract the provisions of the Act. According to them, a policy decision was taken by the Government through G.O.Ms.No.406, dated 25-07-1958, to the effect that prohibition against transfer of assigned lands must be incorporated and since the assignment in favour of the vendors of the petitioners was subsequent to that G.O., the condition applies.
4. Sri B. Narayan Reddy, learned counsel for the petitioners submits that the transfer of the lands under Rules stands on a footing different from the ordinary assignment. He submits that even according to the respondents, conferment of the rights upon the vendors of the petitioners was under Rule 9
(g) of the Rules, and a perusal of Rule 10 of the Act demonstrates that such allotments or transfers are on consideration. He further submits that there did not exist any condition prohibiting alienation in the proceedings issued in favour of the vendors of the petitioners. He places reliance upon the judgment rendered by a Division Bench of this Court in Letter sent from Plot No.338, Parvant Nagar, Borbanda, Hyderabad and others v. Collector & District Magistrate, Ranga Reddy District at Hyderabad and others1.
5. Learned Government Pleader for Revenue, on the other hand, submits that the petitioners have an alternative remedy by way of an appeal before the Revenue Divisional Officer and that the writ petition is not maintainable. It is also urged that once the assignment was made whether under the Rules or other provision, after the G.O.Ms.No.406 was issued; a condition prohibiting alienation is deemed to have been incorporated and that no exception can be taken to the impugned order. It is also pleaded that the judgment relied upon by the petitioners does not apply to the facts of this case.
6. At the out set, the contention raised by the respondents as to maintainability of the writ petition, needs to be taken into account. It is, no doubt, true that an appeal is provided for under Section 4 - A of the Act against any order of resumption passed by the Tahsildar. In the ordinary course of things, this Court would have required the petitioners to avail that remedy. In the instant case, however, an important question raised by the petitioners, viz., whether the provisions of the Act can be applied to the lands covered under the Rules; needs to be considered. Since the question goes to the very root of the matter, filing of the writ petition, without availing the remedy of appeal, cannot be found fault with.
7. The total extent of the land in survey No.233 is said to be Acs.112-27 guntas. Out of that, an extent of Acs.93-11 guntas was assigned in favour of 25 persons in the year 1961. Supplementary Sethwar has been issued to that effect and the same was implemented in the records. The plots purchased by the petitioners are from the lands assigned to Seetharam Reddy, Yella Reddy and Ramkrishna Reddy in sub-divisions 24, 25 and 26 of Survey No.233. Once it emerged that the land, till 1961, was owned by the Government and it was assigned to various individuals, one would certainly gain an impression at the first blush, that they are covered by the provisions of the Act. That, however, would be so if the assignment is ordinary in nature and in favour of a landless poor. The petitioners assert and respondents do not deny that the assignment was made under the Rules. In para-5 of the counter, the 4th respondent stated as under:
"I submit that regarding the claim of the petitioners, that the assignment patta certificates were issued under Rule 9(g) of Laoni Rules 1950, it is submitted that the present assignment was made in the year 1961 which is after introduction of the revised assignment policy. Hence, there is no validity to the certificate stated to be issued under rule 9 (g) of Laoni Rules."
8. Once it emerges that the assignment was under Rule 9(g) of the Rules, it needs to be verified as to what was the nature of assignment and whether initiation of proceedings under the Act in respect of the said lands is permissible.
9. The Rules were framed by the erstwhile State of Hyderabad in the year 1950 in exercise of powers under Section 172 of the A.P. (Telangana Area) Land Revenue Act 1317 Fasli and they came into force with effect from 07-12-1950. The Rules deal with the manner in which rights can be conferred upon the citizens in respect of unoccupied Government lands. The application in this regard is required to be made to the Tahsildar in writing. Detailed procedure is prescribed as regards processing of the applications. Report from the Girdawar (Revenue Inspector) about availability of the land is to be called for. An inspection on the spot is required to be undertaken. Rule 9 of the Rules stipulates the nature of steps to be taken by the Tahsildar after the report is received. The Tahisldar is placed under obligation to ensure that the lands that are earmarked for holding fairs, Jatras, worship, reserved forest, those set apart for Public Works Department or for manufacturing salt, or taking clay for purposes of pottors trade, and that are needed for cattle, for grass- reserves, for any Government purposes or for the benefit of public, are not assigned. He has to ensure that atleast 10 percent of the total area under cultivation in village is set up as grazing lands for cattle etc. The assignment under these Rules is to be invariably on payment of the value. This is evident from sub-Rules (a) & (b) of Rule 9 of the Rules. It reads:
"9. The Tahsildar shall, on receipt of the report from the Girdawar decide whether the request of the applicant for grant of land may be complied with, after giving due consideration to the following matters:-
(a) if the land applied for is reserved for public purposes, such as sources of irrigation, lands with groves of trees where people are in the habit of assembling periodically for purposes of fairs, jatras or worship, or when the lands are treated as reserved forests or are set apart for the use of the Public Works Department or for manufacturing salt, or taking clay for purposes of potters trade, etc., the application shall be rejected and the applicant be informed accordingly within a month of the report from the Girdawar of the halqa.
(b) Before passing any orders on applications for grant of lands out of small scattered numbers of poramboke and kharij khata, the Tahsildar shall ascertain whether the land is required to be set apart under Section 25 of the A.P. (Telangana Area) Land Revenue Act for pasturage, for cattle, for grass-reserves, for any government purposes or for the benefit of the public. Atleast, 10 per cent of the total area under cultivation in a village shall be set apart as grazing lands for cattle, etc. No lands shall be assigned unless these minimum requirements have been provided for."
10. It is rather unfortunate that the so called progressive Governments, which claim that they are serving the interests of the people at large, have given a complete go bye to this, and resorted to indiscriminate sale or assignment of the lands without leaving any open place for the common benefit of the villagers. That the assignment under these Rules can be made only on payment of value of the land as is evident from sub-Rule (c) of Rule 9. It reads as under:
9. ......
(a).........
(b)..........
(c) If from the panchanama and the report of the Girdawar it is apparent that the land applied for is only an assessed waste, whether from the commencement of the period of settlement or has become waste land subsequently due to the resignation or resumption, the Tahsildar shall proceed to dispose of the land as follows:--
(i) If the land is dry land and has long lain waste, the Tahsildar shall fix a date for the sale of such land to the village where it is situate.
(ii) If the value of such land, mentioned in clause (i) above, is estimated to be less than Rs.100, the Tahsildar may allow the sale to be conducted on the spot by the Girdawar.
(iii) If the value of the land exceeds Rs.100 but does not exceed Rs.500 according to the panchanam sent up by the Girdawar with his report, the Tahsildar shall conduct the sale personally on a specified date after giving due publicity thereto in the village where the land is situate and after affixture of a copy of the notice to the Notice board of the Tahsil Office.
(iv) In all cases where the value of the land is estimated to be Rs.500 or more, but within Rs.2,000 the Tahsildar shall submit a recommendation to the Deputy or Assistant Collector to conduct the sale personally. The Deputy or Assistant Collector, after passing orders for disposal of such land by public auction shall conduct the sale personally on a specified date after giving due publicity thereto in the village where the land is situate and after affixture of copies of the notice to the Notice boards in the offices of Tahsil and Division.
(v) If the estimated value of the and is Rs.2,000 or more, the recommendation shall be submitted by the Deputy or Assistant Collector to the Collector. The Collector after passing orders for the disposal of such land by public auction, shall conduct the sale personally on a specified date after giving due publicity thereto in the village where the land situate and affixture of copies of the notice boards in the respective offices of Tahsil Division and District."
Clause (g) of Rule 9 reads as under:-
9.......
.........
(g) When it is decided to dispose of the land by auction the auction amount of the land and the trees standing thereon shall be recovered as follows:
On the date of auction, after the auction is held or within a period of a week from the date of order of allotment where lands are allotted without auction the party to whom the land is allotted shall deposit 25 per cent, of the value of the land and the auction amount of the trees thereon and the balance of 75 per cent within 15 days thereafter. On receipt of the full amount, permission to occupy the land shall be given to the party in the Form 'G' in duplicate and the signature of the allottee shall be obtained thereon along with date. One copy of the permission shall be given to the allottee and the other copy with necessary endorsement of service shall be returned along with record to the Tahsildar by the Girdawar. The Girdawar shall personally serve all such notices and obtain acknowledgments. A memo shall also be given to the village officers to note in the village records the particulars of the land, the name of the person, and the assessment to be recovered, etc., and revenue shall be collected on the land, according to the rates so fixed till the akarband is finally corrected by the Survey and Settlement Department."
Rule 10, inter alia, provides:
"10. ..................
The Tahsildar shall in case of confirmation of the sale, issue a permission for occupation in Form 'G' prescribed in sub-rule (g) of Rule 9, otherwise, an order of rejection shall be issued to the party intimating that the land cannot be granted, for the reasons assigned in such order. In cases where the recommendation for grant is rejected the amount realized from the party whose bid has been accepted, shall also be refunded without any delay and the fact of such refund be entered in the connected records of the office."
11. From a perusal of this, becomes clear that an assignment made under rule 9
(g) of the Rules is invariably through auction and the fact that the assignment is made or rights are conferred in Form-G would provide a clinching proof to the effect that the assignment was made under Rule 9 (g).
12. Once this important factual aspect is clear, it now needs to be seen as to whether the proceedings under the Act can be initiated vis--vis such lands.
13. Section 3 of the Act manifests the policy underlying it and the intention of the Legislature. The Section provides for annulment of transfers of land assigned in favour of the landless poor. It is important to note that proceedings can be initiated under the Act, if only there existed a condition prohibiting alienation of the land. In other words, even if a land is assigned in favour of a landless poor or others but no condition is incorporated prohibiting alienation, the very invocation of the provisions of the Act in respect of such land becomes untenable. In a catena of judgments, this Court held so. In fact a plain reading of the provision makes this aspect clear. A Division Bench of this Court in the judgment cited supra, held that the lands assigned under Rule 9 (g) of the Rules are not amenable to the proceedings under the Act. The ratio laid down in that case squarely applies to the facts of this case.
14. When the provisions of the Act cannot be applied even where the land is assigned free of cost to a landless poor, if no condition prohibiting alienation is incorporated, it is just incomprehensible as to how a land which is sold, may be by the government, for consideration, can be the subject matter. For all practical purposes, what accrues in sub-Rule (g) of Rule 9 of the Rules, on an outright sale of the land an absolute right, except that the Government happens to be the vendor. The rights of a purchaser under such transaction cannot be curtailed simply because a certificate in Form-G is issued, instead a sale deed is executed. Viewed from any angle, the impugned order cannot be sustained in law.
15. The Writ Petition is, accordingly, allowed. There shall be no order as to costs. The miscellaneous petition filed in this writ petition also stands disposed of.
____________________ L. NARASIMHA REDDY, J September 14, 2012.