Telangana High Court
Sk. Yanurrus Yanush vs The State Through Authorized Officer, on 1 May, 2018
HON'BLE SRI JUSTICE S.V. BHATT
C.R.P.No.7252_OF 2017
ORDER:
Heard Mr.R.R.Kalyan, holding for Mr.Gajanand Chakravarthy, counsel for revision petitioners, and Mr.Imran Khan, learned Government Pleader for Arbitration.
This revision is directed against the order dated 23.11.2017 in L.R.A.No.2 of 2008 in the Court of the Chairman, Land Reforms Appellate Tribunal-cum-III-Additional District Judge, Karimnagar.
The appellants/objectors in the Courts below are the revision petitioners.
The issue arises under the A.P. Land Reforms (Ceiling on Agricultural Holdings) Act, 1973 and Rules, 1974 (for short "COAH Act" and "COAH Rules" respectively).
One Mohd.Zakaria and his siblings, children of Hafeez Mohd Ibrahim filed declaration under the COAH Act. The declarations are taken on file as L.C.No.729/734/735/730/731/732/U/75. For the present, this Court is of the view and can proceed with consideration that the surplus ceiling held by declarants had become final, and thereby resulted in issuing notice under Rule 8 (1) in Form IX of the COAH Rules to declarants to handover possession of surplus ceiling land. The notice refers to the order dated 27.03.2008 of Land Reforms Tribunal finally determining excess agricultural ceiling land held by the declarants. The petitioners/objectors raised objection to the steps initiated by respondent No.1 for taking possession of Sy.Nos.10, 11, 12, 18, 19, 41, 2 71, 72 and 82 corresponding to old Sy.Nos.17, 19, 67, 52, 72, 79/4, 92, 100/2, 101 of Nagalkonda Village of Narnoor Mandal (for short 'the petition land'). The objections filed by the revision petitioner are substantially same or similar excepting for the change of survey number which is claimed by the objector. The consideration of grounds in the revision petition has bearing on the stand taken by objectors in the objection petition dated 21.11.2007. Hence, for convenience, at the outset, one of the objection petitions is excerpted hereunder:
"Between:
Shaik Yunus s/o Moinuddin age 25 Occ: Agriculture R/o Nagalkonda, Mandal Narnoor, Dt; Adilibad.
...Objection Petitioner AND
1. The State of A.P.,
2. Md.Zakiria ...Respondents OBJECTION PETITION FILED UNDER SECTION 10(60 OF THE APLR (COAH) ACT May it please your Honour,
1. That the petitioner is having objection for acceptance of suit land bearing Sy.No.10 & 11 measuring 2-00 A & 0/>-31 situated at village Nagalkonda, Mandal Narnoor.
2. That the petitioner being a landless poor is in possession of the suit land as owner since more than 55 years i.e., since forefathers. Moreover the respondent No.2 gifted before the Ceiling Act came into force. So the suit land has to be deleted from the holding of the R-2 or R-2 may kindly be ordered to surrender alternate land in lieu of the suit land as the suit land is not free from encumbrance.
3. That the petitioner being a landless poor and large family to maintain entitled to maintain possession of suit land as there is no other land except suit land. Thus the petitioner is entitled for assignment of the suit land being landless poor as per GO.Ms.No.41, Revenue Department, dated 12.10.1971.
4. That the other grounds will be urged at the time of enquiry.
PRAYER Therefore it is prayed that the Hon'ble Court may kindly be pleased to not to accept the surrender of suit land and order for retention of the suit land in favour of petitioner, in the interest of justice"
Sd/-
Dated : 21.11.2007 Objection Petitioner 3 The Land Reforms Tribunal through order dated 27.03.2008 overruled the objections and the gist of the findings is that the revision petitioners/objectors claim to be donees from the declarants; they have filed xerox copies of gift documents; or in possession of the property for more 20-30 years. Respondent No.1 overruled the objections to exempt taking possession of the land on the ground that the transfer by way of gift is not valid as the lands are ceiling surrendered lands. Further, the transactions (sic) sales are between non-tribal to non-tribal is void and the transactions have been entered into during the pendency of ceiling proceedings. Therefore, the plea of objectors for deletion of lands from taking possession was rejected. The petitioners filed appeal under Section 20 of the COAH Act before the Chairman, Land Reforms Tribunal-cum-III-Additional District Judge, Karimnagar and the Appellate Tribunal through judgment dated 23.11.2017 dismissed the appeal filed by objectors.
The Appellate Tribunal framed the following point:
"Whether the appellants are entitled for setting aside the order passed by the primary Tribunal dated 27.03.2008".
The Appellate Tribunal answered the point by recording the following findings:
"Since the appellants are basing their claim on the alleged gifts made by the declarant and as according to Regulation 1 of 1959 any alienation of the immoveable property between non tribal is not valid as observed by the primary tribunal, the possession of the appellants on the basis of the gifts in their favour cannot be taken into account as they are not at all valid. The appellants cannot 4 rely on Section 7 of the Act also, under Section 7 of the Act in respect of alienation prior to 24.01.1971 the burden is on the person to show that transfer is not made to defeat the object of the Act. But the gifts in this case are invalid in view of Regulation 1 of 1959 Section 7 of the Act is not applicable. For the above reasons, the tribunal holds that the appellants are not entitled for setting aside the order passed by the primary tribunal and this appeal has to be dismissed and the order of the primary tribunal dated 27.3.2008 has to be confirmed. Point is answered accordingly"
Hence, the revision under Section 21 of the COAH Act.
Mr.R.R.Kalyan for petitioners contends that the orders of the Primary and Appellate Tribunals are completely vitiated by error of law and amounts to erroneous exercise of jurisdiction. According to him, the petitioners are admittedly in possession of petition land for nearly 20-30 years and their possession is accepted by respondents as well. Therefore, the Land Reforms Tribunal ought not to accept surrender of petition lands towards surrender of ceiling surplus land. He further submits that the petitioners are all small farmers eking out their livelihood and brought the petition land under cultivation. According to him, the rejection of petitions by referring to the transfer in favour of objectors as void under the Scheduled Areas Land Transfer Regulation 1/1959 read with 1/1970 is erroneous, for Regulation is prospective in operation and the transfer in the case on hand is around 1967-68 and, therefore, the findings recorded by the Tribunals below suffer from patent illegality and the case on hand attracts the jurisdiction of this Court under Section 21 of the COAH Act. He prays for setting aside the orders impugned in the revision.
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Mr.Imran Khan contends that the objections raised by the revision petitioners are considered from two perspectives viz., if there is a transfer subsequent to the cut off date stipulated under the COAH Act and another perspective is whether the transfer of petition land by a non-tribal in favour of another non-tribal is legal and valid under Regulations 1/1959 and 1/1970. According to him, the objections or legal grounds raised by revision petitioners do not warrant consideration if primary circumstances are taken note of from the declaration file, the objections now raised ex facie appear to be pleas raised to prevent Government from taking possession of excess agricultural ceiling land from declarants. He contends that the objections filed by the petitioners do not refer to the date of transfer/gift in favour of each one of the petitioners from the declarants. The alleged deed of transfer/gift is not filed before the Courts below. The details furnished by Mohd.Zakaria and others (declarants) in file in L.C.No.729/734/735/730/731/732/U/75, the possession or transfer in favour of petitioners in any manner could not be either considered or accepted as a circumstance at all. In other words, he contends that in the preliminary reports prepared by revenue officials under COAH Act, the names of petitioners/objectors are not found. The declarants have not stated that the petition lands are under encumbrance or gifted, and transferred in favour of petitioners herein. In appreciating the possession or transfer of title in favour of petitioners, the statements of the declarants do play vital role. The application of law is built on the foundation of facts pleaded and proved by a party to the proceeding. Determining the facts, 6 according to him, is the initial important step in every judicial proceeding. The facts once established, the rights and liabilities arise could be determined or law applied correctly. The facts which are to be proved by petitioners are possession anterior to coming into force of the COAH Act and that the possession is traceable to the gift or deed of transfer executed by the declarants. In the case on hand, the petitioners rely on gift deeds executed by the declarants. According to him, even assuming the parties are mohammedans, still the gift pleaded by revision petitioners is not pleaded or proved in accordance with law. Therefore, transfer prior to coming into force of the COAH Act and possession earlier to the COAH Act, since is not proved, the scope of review of this Court, even assuming Section 21 confers relatively wide jurisdiction of this Court, still no case is made out warranting interference. He finally concludes that, if the revision petition is accepted and objections upheld, then this Court would be accepting the gift which is not stated even by the declarants and possession traceable to such transfer of property. He contends that the objectors unilaterally assume transfer by way of gift of petition land without the declarants stating anything on alleged gift etc. According to him, such course is impermissible. He prays for dismissing the revision.
I have taken note of rival submissions. Perused the record in the revision and the original record produced from the office of respondents in L.C.No.729/734/735/730/731/732/U/75.
Now, the point for consideration is -
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"whether the petitioners have made out ground for setting aside the orders dated 27.03.2008 & 23.11.2017 of the Tribunals below"?
The contention of petitioners is that the petitioners are in possession of property for nearly 20-30 years and the Tahsildar accepts the possession of petitioners. The prohibition of transfer of property in Agency Area under Regulations 1/59 and 1/70 is not attracted to the facts of the present case, for the prohibition is prospective and the transfer is anterior to coming into force of Act 1/70. Therefore, taking possession of petition land from petitioners towards surrender of ceiling surplus land is illegal, unsustainable and beyond the jurisdiction of respondent No.1.
The case of respondent No.1 is that the transfer is hit by the regulations. The transfer and possession claimed by petitioners/objectors are void ab initio. The further grounds while sustaining the orders in the revision urged are that the possession claimed by petitioners is not anterior to the date of declaration and that the so called gift/transfer in favour of petitioners is prior to the COAH Act, is a convenient plea introduced by petitioners to defeat the provisions of COAH Act.
Let me first take up the case of petitioners on possession admitted by the Revenue Divisional Officer/Mandal Revenue Officer. The case of petitioners is that they are in possession of petition land for more 20-30 years. The Revenue Divisional Officer, the Court adds emphasis, admits possession of the petitioners of petition land. The declarants have furnished the details of survey 8 numbers for which the declarations are filed, the actual enjoyment of various survey numbers and also enjoyment by third parties. The declarations were filed in the year 1975. The original record produced by 1st respondent does not show the enjoyment of petitioners as on the date of filing of the declaration of petition land. The admission, to have legal effect, must be by a person concerned with the circumstances admitted by him and includes one that can be inferred from the facts and circumstances of the case without any dispute. In the facts of this case, inference available is that the declarants did not admit possession of petitioners herein of petition land. The possession of petitioners of petition land is not admitted by declarants and tracing the possession of petitioners to any anterior date of coming into force of COAH Act is impermissible. Therefore, the possession, if any, of petitioners, as rightly held by the Tribunal, is subsequent to the COAH Act and is not binding on the obligation under the COAH Act.
The next circumstance relied on by petitioners is the gift said to have been executed by the declarants in favour of petitioners herein. The objections raised by the petitioners are already excerpted. Without reproducing the objections once again, it can be held that the objections do not refer to the date, month or year of transfer in favour of petitioners and which one of the declarants gifted the land to petitioners. The petitioners refer to a deed to evidence transfer and the deed is not exhibited as one of the documents before the tribunals below. The objections do not even inspire the consideration of transfer in favour of petitioners 9 under a transfer deed/gift. The pleas are completely inadequate and also are not proved with semblance of documentary evidence. There is yet another legal infirmity in the plea of gift relied on by the petitioners. Gift means - the transfer by one person to another of any existing moveable and immoveable property, voluntarily and without consideration in money and includes transfer of any property referred to in Section 4 of the Transfer of Property Act deemed to be a gift. The three indispensable essential requisites for valid gift are viz., (i) a declaration of gift by donor
(ii) acceptance of the gift, express or implied by donee
(iii) delivery of possession of the subject gift by the donor to the donee. These requisites if are taken up in the order referred to above to the facts of the case, it appears from the original record produced by the learned Government Pleader that the declarants who are stated to be the donors of revision petitioners herein have not declared the transfer of property by gift at the earliest point of time while filing the declaration or at any stage in the long enquiry under COAH of more than three decades. As rightly contended by Mr.Imran Khan, the learned Government Pleader, the rights and liabilities of parties are determined on the foundation laid in pleading and proof of pleadings. The acceptance of gift in favour of petitioner without a declaration to that effect by the donors at any point of time in the ceiling proceedings, excluding ceiling surplus land by referring to such transfer of gift would defeat the object of the COAH Act. On Section 21 of the COAH Act, the Government Pleader contended that the findings recorded by the Tribunals below do not attract any one of the grounds for 10 interference by this Court. This Court is of the view that no ground is made out warranting interference against the orders impugned in the revision.
Before parting with the case, this Court, after taking note of the fact that the revision petitioners are small and landless poor farmers, directs the 1st respondent herein to consider assigning land to revision petitioners subject to the revision petitioners making an application for assignment of land in their possession. On receipt of such application, orders are passed as per eligibility and entitlement and in accordance with law.
The revision fails and is, accordingly, dismissed with the above observations. There shall be no order as costs.
Miscellaneous petitions, if any pending, stand closed.
____________ S.V.BHATT, J 01st May, 2018 Lrkm