Andhra Pradesh High Court - Amravati
Deddam Suramma, vs State Of Andhra Pradesh, on 20 September, 2021
Author: M.Satyanarayana Murthy
Bench: M.Satyanarayana Murthy
THE HON'BLE SRI JUSTICE M.SATYANARAYANA MURTHY
WRIT PETITION NO.14058 OF 2021
ORDER:
One Deddam Suramma filed this writ petition under Article 226 of the Constitution of India, to declare the action of the second respondent in refusing to delete the land of an extent of Ac.4-80 cents in Sy.No.272 of Sabbavaram Village and Mandal, Visakhapatnam District, from the list of prohibitory properties under Section 22-A(1)(a) & (b) of the Registration Act vide proceedings Rc.No.1598/2020/E7 dated 22.03.2021, as illegal, arbitrary and violative of the provisions of Andhra Pradesh Assigned Lands (Prohibition of Transfer) Act, 1977 (for short „Act 9 of 1977‟) and consequently direct the respondents to de-notify the land of this petitioner from the list of prohibited properties and mutate the petitioner‟s name in the revenue records pertaining to Acs.4-80 cents in Sy.No.272 of Sabbavaram Village and Mandal, Visakhapatnam District and to communicate the same to the fifth respondent.
The petitioner is a member of Scheduled Caste Community. As the petitioner‟s husband was a landless poor, he made an application to Tahsildar, Anakapalli, Visakhapatnam District for allotment of land. After considering his request and after due enquiry, the revenue officials allotted an extent of Ac.4-80 cents in Sy.No.272 of Sabbavaram Village. Since then, the petitioner‟s husband was in possession and enjoyment of the said land. After demise of the petitioner‟s husband, the pattadar passbook which stood in his name was transferred to petitioner‟s name in 2009.
MSM,J WP_14058_2021 2 Since then she has been in continuous possession and enjoyment of the said land without any interruption from the Government.
While the matter stood thus, on 09.04.2020, the third respondent without issuing any notice trespassed into petitioner‟s land and demolished temporary sheds raised by her for the purpose of ripening mangoes. As there is threat of dispossession from Respondent Nos.2 to 4, the petitioner filed W.P.No.8174 of 2020 before this Court and this Court granted order dated 20.04.2020 directed to maintain status quo and the same is pending adjudication. Questioning the act of the fifth respondent, as her land will not attract the provisions of Act 9 of 1977, the petitioner filed W.P.No.12845 of 2020 and this Court vide order dated 05.11.2020 directed the second respondent therein to consider the application made by the petitioner dated 14.05.2020 along with the material papers by deleting the subject land from the list of prohibited properties within two months from the date of receipt of order.
As the second respondent did not take any steps for removal of petitioner‟s land from the list of prohibited properties, even after lapse of nearly three months, the petitioner filed C.C.No.403 of 2021 before this Court to punish the second respondent for his wilful disobedience. After filing the above contempt case, the second respondent passed order in Rc.No.1598/2020/E7 dated 22.03.2021 rejecting the petitioner‟s application dated 14.05.2020 to delete her land from the list of prohibited properties under Section 22-A of the Registration Act, 1908. Against the order dated 05.11.2020 in W.P.No.12845 of 2020, the respondents filed W.A.No.269 of 2021 and the Division Bench of this Court dismissed the appeal as MSM,J WP_14058_2021 3 infructuous. As the second respondent passed the impugned order dated 22.03.2021, C.C.No.403 of 2021 filed by the petitioner will not be pressed before this Court, thereby, the second respondent passed the impugned order dated 22.03.2021 depriving the petitioner‟s benefit to de-notify her land from the list of prohibited properties and to avoid complications from the order dated 05.11.2020 in W.P.No.12845 of 2020.
The contention of the petitioner is that, the second respondent passed the impugned order dated 22.03.2021 without considering the scope of Act 9 of 1977 and verifying the signature of the then Tahsildar, Anakapalli Mandal, who issued D-Form Patta to the petitioner‟s husband with other records and made a baseless statement that the signature of the Tahsildar is giving scope for doubt and contrary to the law laid down by the High Court in Nimmagadda Rama Devi v. The District Collector1, Rambagh Satyanarayana v. The Joint Collector, R.R. District2 and Shyam Sunder v. Government of Andhra Pradesh3.
On the strength of the above judgments, it is contended that the impugned order passed by the second respondent is not only contrary to the law laid down by this Court in the judgments referred supra, but also violative of Article 300-A of the Constitution of India and when such order is contrary to the law depriving this petitioner from enjoying the property by recording a finding, this Court can interfere with the order passed by the second respondent to issue necessary directions and therefore, the petitioner requested to declare the impugned order vide proceedings Rc.No.1598/2020/E7 1 1996 (4) ALD 433 2 2000 (2) ALD 433 3 2001 (5) ALD 766 MSM,J WP_14058_2021 4 dated 22.03.2021 as illegal, arbitrary and violative of Articles 14 and 300-A of the Constitution of India and consequently to issue writ of a direction to the respondents to delete the subject land from the list of prohibited properties under Section 22-A(1)(a) & (b) of the Registration Act.
The second respondent/District Collector, filed detailed counter affidavit, denying material allegations, inter alia contending that, the land admeasuring Ac.4-80 cents in Sy.No.272 of Sabbavaram Village and Mandal stands classified as Assessed Waste Dry (Gayalu) and vested with the Government under the provisions of Section 3(b) of the A.P. Estates (Abolition and Conversion into Ryothwari) Act, 1948. Subsequently, Deddam Appalaswamy, s/o (late) Rajababu was assigned an extent of Ac.4-80 cents in Sy.No.272 of Sabbavaram Village under D-Form Patta as per the provisions of Para-15 of Board Standing Order for the purpose of cultivation. The assignee was also issued Pattadar passbook for the said assigned land under ROR 1-B Khata No.7 and after his demise, the said pattadar passbook was transferred in the name of his wife Deddam Suramma. Out of the said extent of Ac.4-80 cents in Sy.No.272 of Sabbavaram Village, an extent of Ac.1-00 cents was covered by mango tope and the rest of the extent is kept vacant since long time. During the last week of March 2020, the writ petitioner raised as many as 15 sheds in the vacant portion of the said assigned land with a malafide intention to utilize the assigned land for non- agriculture purpose by taking advantage of the fact that the Revenue Authorities would be busy in implementing the lockdown, announced by the Government of India, due to spread of Covid Pandemic. The revenue authorities have demolished the 7 sheds out MSM,J WP_14058_2021 5 of the 15 sheds raised in the vacant portion of the assigned land in order to ensure utilization of the assigned land for agriculture purpose only by the legal heir of the assignee. At this stage, Smt. Deddam Suramma, wife of the original assignee filed W.P.No.8174 of 2020 before the High Court and this Court vide order dated 20.04.2020 directed to maintain status quo. Counter was filed by the Tahsildar, Sabbavaram in the matter and the said writ petition is still pending.
It is submitted that Smt. Deddam Suramma filed W.P.No.12845 of 2020 before the High Court with a prayer to issue order, directing the respondents to de-notify the land from the list of prohibited properties on the ground that there is no condition of non-alienation in the patta granted and this Court vide order dated 05.11.2020 directed the District Collector to consider application of the petitioner dated 15.05.2020 along with the material papers and judgments relied on by the petitioner and pass appropriate order by deleting the subject land from the list of prohibited properties from transfer list within two months from the date of receipt of copy of the order. Meanwhile, contempt case was also filed by Smt. Deddam Suramma in C.C.No.403 of 2021 in W.P.No.12845 of 2020 on 05.02.2021 before this Court for wilful disobedience of the order passed by this Court in W.P.No.12845 of2020 dated 05.011.2020 and the same is pending adjudication.
In pursuance to the orders of the High Court in W.P.No.12845 of 2020 dated 05.11.2020, a notice was issued to the petitioner to attend before the Joint Collector, Visakhapatnam on 08.02.2021 at 4:00 P.M with all relevant documents in the office MSM,J WP_14058_2021 6 Rc.No.1598/2020/E7 dated 05.02.2021. Accordingly, the petitioner appeared before the Joint Collector (RB&R), Visakhapatnam and submitted a printed statement along with a copy of D-patta and other enclosures on 08.02.2021. After verification of documents submitted by the petitioner, it was proved beyond doubt that the assignment made to the husband of the petitioner is under land less poor category with normal conditions of assignment (i.e. assignment is heritable but not alienable) and thereby the patta produced by the petitioner without condition is dubious one since no assignments were made without condition in terms of G.O.Ms.No.1142 dated 18.06.1954 which was in force at the time of grant of assignment to petitioner‟s husband in 1961. Accordingly, the request of the petitioner to de-notify the land admeasuring an extent of Ac.4-80 cents in Sy.No.272 of Sabbavaram village from the list of prohibited properties under Section 22-A of the Registration Act, 1908 was rejected by the District Collector, Visakhapatnam vide Proceedings Rc.No.1598/2020/E7 dated 22.03.2021. W.A.No.269 of 2021 was also filed against the orders dated 05.11.2020 in W.P.No.12845 of 2020 and the appeal was disposed of by the High Court on 25.06.2021 as infructuous.
The second respondent admitted about passing of various orders in various writ petitions and passing of impugned order after following necessary procedure. It is also contended that, after verification of the documents submitted by this petitioner, the respondents were able to prove beyond doubt that the assignment made to the husband of this petitioner is under landless poor category with normal conditions of assignment only (i.e. the assignment is heritable but not alienable) and the patta produced by MSM,J WP_14058_2021 7 the petitioner without non-alienable condition is dubious one, since all the assignments were made with such condition under G.O.Ms.No.1142 dated 18.06.1954, which was in force at the time of grant of assignment to petitioner‟s husband in 1961 and that, there are no specific rules and regulations/Acts governing the grant of assignment without non-alienation condition at the time of assignment to the petitioner‟s husband. Therefore, the alleged patta granted in favour of this petitioner‟s husband is doubtful.
It is the specific contention of the second respondent that, under Rule 4 of the Andhra Pradesh Assigned Lands (Prohibition of Transfers) Rules, 2007 (for short „Rules‟), the list of all Assigned lands including the subject land were communicated to the respective Sub-Registrar concerned in terms of Section 5(1) of Act 9 of 1977 directing the Registering Officers not to accept any documents for registration relating to transfer of assigned lands which was assigned to landless poor person. As such, the contention of the petitioner that the land of this petitioner would not fall within the provisions of Act 9 of 1977 cannot be accepted.
Finally, it is contended that, the petitioner Smt. Deddam Suramma filed a Mee-Seva Application No.TTA012000050607 dated 14.05.2020 with a request to de-notify the land admeasuring Ac.4-80 cents covered by Sy.No.272 of Sabbavaram Village, from the list of prohibited properties under Section 22-A of the Registration Act, 1908. Accordingly, the Tahsildar, Sabbavaram and Revenue Divisional Officer, Visakhapatnam submitted their reports stating that as per the Settlement Fair Adangal available in their office, the land in Sy.No.272 measuring an extent of Ac.4-80 cents is classified as „Gayalu‟ which is Government land and the same was included MSM,J WP_14058_2021 8 under Section 22(A)(1)(a) of the Registration Act of Sabbavaram Village and Mandal.
Sy.No Extent Classification Reasons for prohibition (Ac.cts) 272 4-80 Gayalu Government land The Tahsildar, Sabbavaram also reported that, as per Form-III Assigned land list of Sabbavaram Village, the land in Sy.No.272 is recorded as detailed below:
Sy.No Extent Name of the assignee
(Ac.cts)
272 4-80 Doddi Appala Swamy
The Tahsildar, Sabbavaram reported that, as seen from the Meebhoomi website, the details of land in Sy.No.272 of Sabbavaram Village is recorded as follows:
Sy.No Extent Classification Name of the Name of the (Ac.cts) pattadar enjoyer 272 4-80 Government Gayalu Gayalu land It is further submitted that, as per the manual 1-B record of Sabbavaram Village, Sri Deddam Appalaswamy s/o late Rajayya was issued pattadar passbook under ROR 1B Khata No.7 for the land said to have been assigned to Sri Deddam Appalaswamy and after his demise, the said pattadar passbook was transferred in the name of his wife Smt. Deddam Suramma i.e. the petitioner. The Tahsildar, Sabbavaram also reported that the Darkhast Register, D.R. Files, 10(1) account of Sabbavaram Village are not available in their office and that as per the old adangals of Sabbavaram Village, the oldest available fasli is 1413 in their office, the subject land in Sy.No.272 was recorded as „Government Land‟, nature of enjoyment as „D-Patta‟ in favour of Deddam Appalaswamy.
MSM,J WP_14058_2021 9 Finally, it is contended that, the alleged assignment is contrary to G.O.Ms.No.1142 dated 18.06.1954 and that the patta was issued in favour of Appala Swamy after seven years from the date of issue of G.O.Ms.No.1142 dated 18.06.1954. Hence, it appears that the applicant approached the High Court with an irregular patta and with a malafide intention to grab the valuable government land. After issue of specific guidelines and orders for issue of the assignment by issuing G.O.Ms.No.1142 dated 18.06.1954, the assignment granted to the petitioner with no condition of alienation indicates that the assignment is invalid, incorrect and irregular, consequently, the land in dispute shall be deemed to be governed by the provisions of Act 9 of 1977 and inclusion of the property in the list of prohibited properties is in consonance with the provisions of Act 9 of 1977 and Rules framed thereunder read with Section 22-A of the Registration Act and finally requested to dismiss the writ petition.
During hearing, Sri Dammalapati Srinivas, learned Senior Counsel for the petitioner mainly contended that, the land is an assigned land and it is included in the registers maintained by the revenue department. The report submitted by the Tahsildar would clinchingly establish that it is an „assigned land‟. But, for one reason or the other, the second respondent doubted the issuance of patta in favour of the husband of this petitioner Appala Swamy during his lifetime. The second respondent himself addressed letter to the Sub- Registrar, Sabbavaram directing not to register any transactions pertaining to the land of an extent of Ac.4-80 cents in Sy.No.272 of Sabbavaram Village and Mandal, on the ground that it is „assigned land‟. When the second respondent addressed letter to the Sub- Registrar, Sabbavaram that it is assigned land, expressing doubt to MSM,J WP_14058_2021 10 issue patta granted in favour of husband of this petitioner and recording a finding that, on verification of the signature of the Tashildar on the pattta, the very issuance of patta is doubtful, is indicative of his malafides to deprive this petitioner from enjoying the immovable property. Such observations in the order impugned and objections raised in the counter affidavit is without any basis and contrary to the report submitted by the Tahsildar and letter addressed to the Sub-Registrar, Sabbavaram by the second respondent himself.
It is further contended that, when there is no clause creating restraint against alienation of the property in patta granted in favour of the husband of this petitioner - Appala Swamy, alienation cannot be prohibited and thereby, the provisions of Act 9 of 1977 has no application, since alienation is not prohibited by the terms and conditions of patta, as such, the original assignee - Appala Swamy or this petitioner (after death of original assignee) is entitled to deal with the property, as there was no condition prohibiting alienation. Therefore, on the ground that the land is assigned, very inclusion in the list of prohibited properties under Section 22-A of the Registration Act, 1908, is illegal, arbitrary and placed reliance on Nimmagadda Rama Devi v. The District Collector (referred supra), Rambagh Satyanarayana v. The Joint Collector, R.R. District (referred supra) and Shyam Sunder v. Government of Andhra Pradesh (referred supra). On the strength of the principles laid down in the above judgments, learned Senior Counsel for the petitioner contended that the impugned order is illegal and violative of various provisions of law, as stated in the petition and that the order is arbitrary and consequently violative of Articles 14 and 300-A of the MSM,J WP_14058_2021 11 Constitution of India and requested to set-aside the impugned proceedings and direct the second respondent to delete the property from the list of prohibited properties.
Whereas, learned Assistant Government Pleader for Revenue vehemently contended that, the second respondent recorded a specific finding that, very issue of patta is doubtful, as it is contrary to the conditions of G.O.Ms.No.1142 dated 18.06.1954. Even assuming that the patta was granted and issued in favour of husband of this petitioner - Appala Swamy, issue of patta without condition prohibiting the alienation creates any amount of doubt as to the genuineness of the patta and in that process, the second respondent verified the signature of the Tahsildar, who signed on the patta and concluded that the patta is not genuine. Hence, issue of patta is doubtful. Moreover, inclusion of the property in the list of prohibited properties under Section 22-A of the Registration Act is in terms of Rule 4 of the Rules framed under Act 9 of 1977 and Section 5(1) of Act 9 of 1977 read with Section 22-A(1) of the Registration Act, 1908, thereby, there is no error in the order passed by the second respondent and requested to dismiss the writ petition.
Considering rival contentions, perusing the material available on record, the point that arises for consideration is as follows:
"Whether patta granted in favour of original assignee - Appala Swamy, husband of this petitioner without the condition „prohibiting alienation of the property‟ invalidates the patta. If not, whether, inclusion of the land in Sy.No.272 of Sabbavaram Village and Mandal of Visakhapatnam District to an extent of Ac.4-80 cents in the list of prohibited properties list in compliance of Section 5 of Act 9 of 1977 and Rule 4 of the Rules framed under the Act read with Section 22-A of the Registration Act, 1908, is illegal, arbitrary and violative of Articles 14 & 300-A of the Constitution of India?"
MSM,J WP_14058_2021 12 P O I N T:
It is an undisputed fact that the second respondent addressed letter to the Sub-Registrar, Sabbavaram to prohibit alienation of the property of land to an extent of Ac.4-80 cents in Sy.No.272 of Sabbavaram Village and Mandal on the ground that, it is an „assigned land‟. But, the petitioner made an application through Mee Seva bearing No.TTA012000050607 dated 14.05.2020. Since it was not disposed of, this petitioner approached this Court and filed W.P.No.12845 of 2020 which was allowed by this Court directing the second respondent to dispose of the application of this petitioner dated 14.05.2020, in accordance with law, considering the legal position based on record. But, the second respondent disobeyed the order. Thereupon, the petitioner was constrained to file C.C.No.403 of 2021 for wilful disobedience of violation of orders passed by this Court. During pendency of the contempt case, the second respondent passed the impugned order to avoid consequences of contempt case.
The specific observations made by the second respondent is that, the patta itself is doubtful and issue of patta without condition restraining alienation is contrary to G.O.Ms.No.1142 dated 18.06.1954, thereby, the very issue of patta is doubtful and even if any patta is issued, without such condition, contrary to G.O.Ms.No.1142 dated 18.06.1954 is illegal, thereby, supported the action of the second respondent. A copy of the patta is placed on record by this petitioner to substantiate her contention that there was no condition restraining alienation of the property. The second respondent also did not dispute the absence of condition restraining MSM,J WP_14058_2021 13 alienation, in the patta allegedly granted in favour of Appala Swamy
- husband of this petitioner.
When once a condition prohibiting alienation is not incorporated in the patta, the effect is that, the assignee can alienate the property or deal with the property like a private patta land. Issue of D-Form Patta, though governed by B.S.O.15 it is a government grant indirectly. When a grant is made by the Government, such grant is governed by conditions incorporated in the grant which is reduced into writing. Therefore, in the absence of any condition, restraining alienation of the property, though violative of G.O.Ms.No.1142 dated 18.06.1954, will not invalidate the patta.
B.S.O.15 deals with the procedure for grant of lands for occupation, subject to payment of assessment, including minimum extent and conditions to be incorporated in such patta, order of preference to be given to the applicants and terms and conditions to be incorporated in the patta. Para 12 of B.S.O.15 deals with „communication of orders on darkhasts‟. As per G.O.Ms.No.123 Revenue dated 18.01.1928, B.P.5 dated 31.01.1928, in case of each conditional assignment, the Tahsildar should specify in the order communicating to the karnam the fact that the assignment has been made, and he should specify all the special conditional grants relating to it that are to be entered in the village register of conditional grants. The Tahsildar should also see that the file in the Taluk Office is not closed until a report supported by the Revenue Inspector‟s certificate that the entry has been made in the village register has been received by him. The assignment of lands shall be subject to the following conditions:
MSM,J WP_14058_2021 14
a) Land assigned shall be heritable but not alienable.
b) Lands assigned shall be brought under cultivation within three years.
c) No land tax shall be collected for the first three years except for the extent, if any, which has already been brought under cultivation. Water rate shall, however be charged if the lands are irrigated with Government water; and
d) Cultivation should be by the assignee or the members of his family or with hired labour under the supervision of himself or a member of his family.
For breach of any of the conditions (a), (b), (c), above, the Government is at liberty to resume the land and assign it to whomsoever they like. (vide G.O.Ms.No.1142 Revenue dated 18.06.1954).
Since the condition „prohibiting alienation‟ is not part of patta granted in favour of this petitioner‟s husband, it does not invalidate the patta itself. Earlier to G.O.Ms.No.1142 dated 18.06.1954, no such restriction was imposed in any of the pattas granted to the landless poor. Even assuming for a moment that the patta is invalidated, there is a procedure to be followed for cancellation of such patta issued by the Tahsildar. Moreover, for the reasons best known to the second respondent, he doubted the signature of the Tahsildar on the patta issued in favour of the petitioner‟s husband - Appala Swamy. But, such conclusion is without any basis and nobody raised such contention and recording such finding without issuing any notice to this petitioner is illegal, arbitrary and the same is hereby set-aside.
MSM,J WP_14058_2021 15 Merely because, no restriction prohibiting alienation is incorporated in the patta, that would not invalidate the patta and that can be treated as „government land‟ for all practical purposes and such grant is governed by the conditions incorporated therein, in view of Sections 2 and 3 of the Government Grants Act, 1895. Therefore, it is only a government grant and in view of the terms of the patta, the original assignee or his/her legal heirs are entitled to alienate the property, as no such restriction was imposed prohibiting alienation of the property.
A strange finding was recorded by the second respondent about the genuineness of the patta without affording any opportunity to this petitioner before recording such conclusion. But, surprisingly, the second respondent himself addressed letter to the Sub-Registrar, Sabbavaram that, it is „assigned land‟ based on the report, entries in the assignment register, pattadar passbook and title deed, Form-1B ROR etc. When the second respondent addressed a letter to the Sub-Registrar, Sabbavaram prohibiting alienation of the property in terms of Section 5(1) of Act 9 of 1977 and Rule 4 of the Rules, read with Section 22-A of the Registration Act, and when the second respondent admitted about the assignment of land in favour of the husband of this petitioner, it is not open to the second respondent to record said finding about the genuineness and validity of the patta. In the counter affidavit, the second respondent in different paragraphs admitted about assignment in favour of this petitioner‟s husband, but contended that, in contravention of G.O.Ms.No.1142 dated 18.06.1954 till date, no order is passed cancelling the patta on the ground that it is in violation of G.O.Ms.No.1142 dated 18.06.1954, as such, the patta is valid till it is cancelled by MSM,J WP_14058_2021 16 competent authority. Therefore, the findings recorded by the second respondent/District Collector doubting the genuineness and validity of the patta are hereby set-aside.
The main grievance of this petitioner is that, when there was no condition restraining alienation of the property by the assignee or legal heir, the question of inclusion of the property in the prohibited property list does not arise.
According to Section 2(1) of Act 9 of 1977, "assigned lands"
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.
On analysis of the definition of „assigned land‟, any land assigned by the Government as per the Rules for the time being in force, "subject to the condition of non-alienation" alone will fall within the definition of Sub-section (1) of Section (2) of Act 9 of 1977 and this Act applies even to lands assigned prior to commencement of Act under the Rules then in force. When there is no clause creating restraint against alienation, it would not attract the definition of „assigned lands‟ under Section 2(1) of Act 9 of 1977.
Therefore, the provisions of Act 9 of 1977 are not applicable.
Section 3 of Act 9 of 1977 prohibits transfer of assigned lands.
According to it, (1) Where, before or after the commencement of this Act any land has been assigned by the Government to a landless poor MSM,J WP_14058_2021 17 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 of 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 assignee 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.
Therefore, violation of condition restraining prohibition of alienation amounts to violation of conditions and for such violation, the concerned authority is competent to take action resuming the land under Section 4 of Act 9 of 1977. But, here, in this case, the land would not fall within the definition of „assigned land‟ under Section 2(1) of Act 9 of 1977 and that there is no condition restraining alienation of the property assigned to the petitioner‟s husband. In such case, question of contravention of Section 3 of Act 9 of 1977 does not arise.
MSM,J WP_14058_2021 18 According to Section 5 (1) of Act 9 of 1977, the District Collector or any other Officer, not below the rank of a Mandal Revenue Officer authorized by him in this behalf, shall within 45 days from the date of commencement of the Andhra Pradesh Assigned Lands (Prohibition of Transfers) (Amendment) Act, (2007) furnish to the Registering Officer having jurisdiction over the area a list of lands assigned to the landless poor persons with all particulars of assignment and further furnish such particulars of new assignment forthwith.
(2) Notwithstanding anything contained in the Registration Act, 1908, no Registering Officer shall accept for registration of any document relating to the transfer of or creation of any interest in any assigned lands as furnished in the list under sub-section (1).
Rule 4 of the Rules prescribes the procedure. According to it, the District Collector or the Authorised Officer not below the rank of Mandal Revenue Officer/Tahsildar shall furnish the particulars of lands assigned in his jurisdiction in Form No.ILI to the Registering Officer concerned, within (forty five) 45 days from the date of commencement of the Andhra Pradesh Assigned Lands (Prohibition of Transfers) (Amendment) Act, 2007 and further continue to furnish such particulars in the same proforma whenever new assignments are made from time to time. Therefore, as per Section 5(1) of Act 9 of 1977 read with Rule 4 of the Rules, the second respondent issued letter to the District Registrar prohibiting registration of documents pertaining to the subject land.
Similar issue came up before High Court of Andhra Pradesh in Nimmagadda Rama Devi v. The District Collector (referred supra), MSM,J WP_14058_2021 19 wherein the Division Bench of High Court while adverting to the definition of „assigned lands‟ under Section 2(1) of Act 9 of 1977, concluded as follows:
"6. To appreciate the above requirements, it would be relevant to read certain provisions of the Act there. Section 2(1) defines "assigned land" which reads:
"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 25 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."
Section 3 prohibits transfer of assigned lands; Section 4 provides consequences of breach of provisions of Section 3, empowering the person authorised by the Collector to take action for resumption of the land, Section 4-A provides for appeal and Section 4-B provides for revision; Section 5 provides prohibition of registration of assigned lands; Section 7 provides for penalty and Section 9 deals with powers to make rules by the Government.
7. By reading the above provisions, it is apparently clear that the scheme of the Act is to prohibit alienation of assigned lands except those on payment of market value because the whole idea of the Act is to make free gift of the lands to the landless poor persons, whereas the lands were originally assigned to the assignees as per G.O.Ms. No. 1142 dated 1-6-1954 on payment of market value under unavoidable circumstances. Further the definition of 'assigned land' makes it clear that lands assigned 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. From the above, it has to be construed that if there is a condition of non-alienation while assigning the lands or the land is assigned under the provisions of the Andhra Pradesh Land Reforms (Ceiling on Agricultural Holdings) Act, 1973, then only it is deemed as assigned land under Act No.IX of 1977. In the case on hand, there is no condition barring alienation of lands. On the other hand the note appended to Condition No. 1 of 'D' form patta specifically says that "this condition will not apply to cases of assignment made on collection of market value under para 1(8) of G.O.Ms. No. 1142 of 18-6-1954". By that condition, it is evident that there is no bar for alienation of lands. Therefore, it cannot be said that the lands are assigned lands. When the lands are not assigned lands, the Act No. IX of 1977 has no applicability to the assignments made to the assignees. In Ravuri Tulisamma v. Mandal Revenue Officer, 1991 (1) An.W.R. 533 a learned single Judge of this Court held that cancellation of assignment of land and grant of 'D' form patta on receiving consideration, on the ground of alienation, is illegal." In Rambagh Satyanarayana v. The Joint Collector, R.R. District (referred supra), the learned single Judge of High Court of Andhra Pradesh at Hyderabad, held as follows:
MSM,J WP_14058_2021 20 "5. The entire argument of the petitioners' Counsel proceeded on the assumption that the land assigned to the petitioners and/or their fathers, as the case may be, is subject to the condition of non-
alienation, but he, inspite of persistent questioning by this Court, could not and did not produce the original assignment orders, nor could he show any other documentary proof to show that the assignment was subject to the condition of non-alienation. In fact, as rightly pointed by Sri C. V, Mohan Reddy, the petitioners did not mention either in the application filed by them before the Collector or in the affidavit filed in support of the present writ petition that the original assignment was subject to such a condition. In the absence of such a condition, the land cannot be considered as an assigned land within the definition of Section 2(1) of the Act, which reads as under:-
"Section 2(1). 'Assigned land' means land 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 ceiling; and the word 'assigned' shall be construed accordingly."
From the above it is clear that unless the assignment is subject to the condition of non-alienation, the land that is assigned cannot be treated as an 'assigned land' for the purpose of the Act.
6. A careful reading of the Act clearly shows that the prohibition under Section 3 of the Act comes into operation only in cases where the land is assigned subject to condition of non-alienation. When once the petitioners could not prove that the land is 'assigned land' within the meaning of the definition of the Act, there is no question of the 1st respondent restoring the land under Section 4 of the Act. In this view of the matter, the decisions relied upon by the learned Counsel for the petitioners cannot lend any support. Further, there is nothing in the decision of this Court in Majjari Pullanna's case (supra) to the effect that the District Collector, while exercising his powers under Section 4 of the Act is bound to restore the assigned land to the original owner even though he lost possession of the same several decades back. In this case, undisputedly the petitioners or their ancestors, as the case may be, lost possession of the lands way back in December, 1965. On expiry of 12 years limitation period by December, 1977, their right to that property has extinguished according to Section 27 of the Indian Limitation Act, 1963. Long thereafter, they approached the Collector in March, 1995. Therefore, the order of the 1st respondent rejecting their claim on the ground of delay cannot be faulted." In Shyam Sunder v. Government of Andhra Pradesh (referred supra), learned single Judge of High Court of Andhra Pradesh at Hyderabad, held as follows:
"10. Under Section 2(1) of the A.P. Assigned Lands (Prohibition of Transfers) Rules, 1977, the definition of assigned lands has been defined as follows:
"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 MSM,J WP_14058_2021 21 law for the time being in force relating to land ceilings, and the word "assigned" shall be construed accordingly.
11. This definition came to be considered by a learned single Judge of this Court in N. Jagadish Babu v. Geeta Bai (supra) which was followed by another learned single Judge of this Court reported in Rambagh Satyanarayana v. Joint Collector, R.R. District, Hyderabad (supra). The definition itself contains a condition that it should be subject to the condition of non-alienation. Inasmuch as such a condition is not mentioned in the assignment, the provisions of this Section would not apply. Admittedly in Laoni Rules of 1357-Fasli and subsequent rules the condition of non-alienability was not contained, till G.O. Ms. No. 1406, dated 25-7-1958 was issued.
Under those circumstances, a learned single Judge of this Court held that unless such a condition is contained. Section 3 of the Act cannot be invoked for resumption of the lands. The learned Government Pleader, however, tried to humbly rely on the judgment of the Full Bench reported in Dharma Reddy v. Sub-Collector, Bodhan, Nizamabad District (supra) and submits that Section 3(1) of the Act not only prohibits the transfer of assigned lands on or after the commencement of the Act. It also declares that all transfers of such assigned lands, which took place prior to the commencement of the Act shall be deemed to be null and void." In Dasari Narayana Rao v. Deputy Collector and Mandal Revenue Officer4, learned single Judge of High Court of Andhra Pradesh at Hyderabad, held as follows:
"29. In view of the definition of the expression "assigned land" in Section 2(1) of the 1977 Act, lands assigned by the Government to landless poor persons under any rules for the time being in force, which are assigned subject to a condition of non-alienation, are assigned lands. Thus lands assigned under the 1950 Rules would be "assigned land" within the meaning of the expression under the 1977 Act, if and only if the land is assigned with a condition in the deed of assignment prohibiting its alienation. (emphasis added)
30. In Nimmagadda Rama Devi v. District Collector, Machilipatnam and Anr. 1996 (4) ALD 572 (D.B), a Division Bench of this Court held, on an analysis of the provisions of the 1977 Act, that only if there is a condition of non-alienation while assigning the lands or the land is assigned under the provisions of the A.P. Land Reforms (Ceiling on Agricultural Holdings) Act, 1973, it would be "assigned land" within the meaning of the 1977 Act; where the assignment is without any such condition as to non-alienation, it would not be "assigned land" under the 1977 Act and the said Act has no applicability. When such is the position, the authorities under the Act have no jurisdiction to deal with the lands under the provisions of the 1977 Act, held the Division Bench.
31. In G.V.K. Rama Rao and Anr. v. Bakelite Hylam Employees Co- op. House Building Society, Hyderabad (1997 (4) ALD 294), this Court was considering a fact situation where land was assigned on 4.1.1953 under the 1950 Rules. In 1953 there was no condition of non-alienability in the assignment. The condition of non-alienability was seen to have been incorporated in the 1950 Rules by the revised assignment policy issued in G.O. Ms. No. 1406 Revenue, dated 25.7.1958. Under this G.O. the provisions relating to assignment of Government land in Andhra and Telengana regions of the State were 4 2010 (4) ALT 655 MSM,J WP_14058_2021 22 integrated. On this analysis and conclusion as to the position of the 1950 Rules, the learned single Judge of this Court held that since there was no prohibition of alienation in the assignment in 1953 the land would not constitute "assigned land" within the meaning of the expression under the 1977 Act and therefore sale of such land is not hit by the provisions of the 1977 Act.
32. In Rambagh Satyanarayana and Ors. v. Joint Collector, R.R. District, Hyderabad and Ors. (2000 (2) ALD 433), this Court reiterated that the prohibition Under Section 3 of the 1977 Act comes into operation only in case where the land is assigned subject to the condition of non-alienation.
33. Again in Shyam Sunder v. Government of A.P and Ors. (2001 (5) ALD 766) this Court recorded that in the Laoni Rules 1357 Fasli as well as the subsequent Rules (the 1950 Rules) there was no condition of non-alienability, till G.O. Ms. No. 1406 dated 25.7.1958 was issued. This Court clearly held that in considering whether a transfer is hit by the provisions of the 1977 Act, the relevant fact is whether the transfer is of a land which has been assigned by the Government with a condition of non-alienability incorporated in the deed of assignment. On an analysis of the evolution of the Rules with regard to alienation this Court observed that neither under the 1357-F Rules nor the 1950 Rules was there a condition of non- alienability. Having identified this lacuna, the Government issued comprehensive rules in 195 in G.O. Ms. No. 1406 in supersession of the earlier Rules relating to assignment. It is only thereafter that the Rules enjoined that assigned lands are heritable but not transferable. This Court in Shyam Sunder (supra) held that the condition of non-alienability was incorporated in assignments made subsequent to 25.7.1958 and that no such condition may be presumed to have been attached to assignments made prior to 25.7.1958.
34. In the light of the above precedents, the authorities implementing the provisions of the 1977 Act must record a finding that there was an assignment by the Government to a landless poor person under the Rules for the time being in force with a condition prohibiting alienation; and that such "assigned land" was alienated by such assignee, in contravention of Section 3 of the 1977 Act."
An identical issue with reference to Darkasth Laws, permissibility and definition of „assigned lands‟ was considered in Sudalagunta Sugars Limited v. Joint Collector, Chittoor5, wherein the learned single Judge of High Court of Judicature at Hyderabad for the State of Telangana and State of Andhra Pradesh, wherein, it is held as follows:
"22. This Court in A.P. State Electricity Board Employees Union v. Joint Collector, Chittoor, MANU/AP/0777/2007 : 2008 (1) ALD 29 :
2008 (4) ALT 638, has considered the definition of assigned land in Section 2(1) of the Act and held as follows:
"A plain reading of the above definition shows that the land, which was assigned by the Government subject to the condition of non-5
2017 (2) ALD 529 MSM,J WP_14058_2021 23 alienation can only be treated as an assigned land for the purpose of Act 9 of 1977. As a natural corollary, the prohibition of transfer as contained under Section 3 of Act 9 of 1977 is attracted only in cases where the land is assigned subject to the condition of non- alienation."
23. Unless and until this jurisdictional fact is decided with reference to assignment, order of assignment, conditions on which assignment made, the mere issuance of notice in Form-II to transferee will not serve the purpose of hearing or considering the objections. The forms under the Rules cannot guide literal meaning of Rule 3 of the Rules. On the other hand, if a restricted meaning as sought to be canvassed by the learned Government Pleader is accepted, then transferee is heard only on the eviction but not on the valuable defences available to him in the enquiry conducted by the District Collector or authorized officer. After considering the totality of scheme of Act, Rules and the content of notices in Form-I and Form-II, this Court is of the view that whenever action under Section 4 of the Act is initiated by the District Collector or authorized officer, the authority is required to issue notices in Form-I and Form-II to the assignee and the transferee from the assignee."
In Koneru Nageswara Rao v. State of Andhra Pradesh6, the learned single Judge concluded as follows:
"In view of the principle laid down in the aforesaid decisions, and also in view of above facts and circumstances of the case on hand, this Writ Petition deserves to be allowed by setting aside the impugned order of the District Collector-3rd respondent in eofc.No.10053/2018/E1, dated 12.11.2018. Accordingly, same is allowed. There shall be no order as to costs. Consequently, miscellaneous petitions, if any, pending in this Writ Petition shall stand closed."
Following the judgments referred above, the learned single Judge in an unreported batch of writ petitions W.P.Nos.17191 of 2009 & batch dated 25.07.2018 expressed a similar view.
The law is consistent that, when there was no condition of restraining alienation in the patta, such land cannot be treated as „assigned land‟. When the land is not assigned land, the provisions of Act 9 of 1977 and Rules framed thereunder have no application.
As discussed above in the earlier paragraphs, when the provisions of Act 9 of 19767 and Rules framed thereunder are not applicable, question of sending list of prohibited properties in 6 2019 (4) ALD 149 MSM,J WP_14058_2021 24 compliance of Section 5 of Act 9 of 1977 and Rule 4 of the Rules by the Collector or any other officer authorized by him to the Registration Department to include land in Ac.4-80 cents in Sy.No.272 of Sabbavaram Village and Mandal does not arise, as it is without jurisdiction and refusal to delete the property from the list of prohibited properties under Section 22-A of the Registration Act, 1908, on the application made by this petitioner through online by the second respondent under the impugned order is tainted by grave illegality and it is an arbitrary act of the second respondent somehow to deprive this petitioner from enjoying the property assigned to this petitioner‟s husband Appala Swamy by granting D-Form Patta.
The second respondent included the land of this petitioner in the list of prohibited properties under Section 22-A(1)(a) of the Registration Act, without any reason and contrary to the law. Still, the second respondent invented a different story and expressed doubt about genuineness of the patta issued in favour of the husband of this petitioner without incorporating clause creating restraint against alienation of the property, as mandated under G.O.Ms.No.1142 dated 18.06.1954. Therefore, the order passed by the second respondent is contrary to the settled law and consequently the same is liable to be set-aside declaring the same as illegal, arbitrary and against the settled principles of law.
Accordingly, the point is answered in favour of the petitioner and against the respondents.
In view of my foregoing discussion, I find that, it is a fit case to declare the impugned proceedings in Rc.No.1598/2020/E7 dated 22.03.2021 as illegal, arbitrary and consequently set-aside the same.
MSM,J WP_14058_2021 25 In the result, writ petition is allowed, declaring the impugned proceedings in Rc.No.1598/2020/E7 dated 22.03.2021 as illegal, arbitrary and consequently set-aside the same, while directing the District Collector, Visakhapatnam to delete the land to an extent of Ac.4-80 cents in Sy.No.272 of Sabbavaram Village and Mandal, assigned to the husband of this petitioner from the list of prohibited properties under Section 22-A of the Registration Act, 1908 and mutate the same in the name of this petitioner. Further, the fifth respondent/ Sub-Registrar, Sabbavaram is directed to register the document/ instrument, if any presented by this petitioner for registration, alienating the land in Ac.4-80 cents in Sy.No.272 of Sabbavaram Village and Mandal, notwithstanding the order of the second respondent impugned in this writ petition and set-aside by this Court in this writ petition, subject to satisfying the requirements under Indian Stamp Act, 1899 and Registration Act, 1908. No costs.
Consequently, miscellaneous applications, pending if any, shall also stand dismissed.
__________________________________________ JUSTICE M. SATYANARAYANA MURTHY Date:20.09.2021 SP