Andhra Pradesh High Court - Amravati
Sri Jada Srinivasulu, vs The State Of Andhra Pradesh on 9 November, 2020
Author: Ninala Jayasurya
Bench: Ninala Jayasurya
1
HONOURABLE SRI JUSTICE NINALA JAYASURYA
WRIT PETITION No.17554 of 2020
ORDER:(Heard and pronounced through Blue Jeans App (Virtual) mode, since this mode is adopted on account of prevalence of COVID-19 pandemic) Heard learned counsel for the petitioner and the learned Government Pleader for Stamps and Registration appearing for respondents.
The present writ petition is filed interalia questioning the action of the 4th respondent in treating the land admeasuring Ac.0.51 cents or 970 square links in Plot Nos.1, 19, 19-A, 24, 30, 34-A, 38, 44, 45, 50, 55, 58 & 68 in S.No.252 in Gundluru Revenue Village, Rajampet Mandal, YSR Kadapa District as DKT lands as illegal, arbitrary and contrary to the Judgment of this Court reported in 2009(2) ALD 250 apart from violative of petitioner's constitutional rights guaranteed under Articles 19, 21 and 300-A of the Constitution of India and for other reliefs.
The petitioner's case is that he is the absolute owner and possessor of above mentioned property. His vendor viz., Geethala Prathap Reddy purchased land admeasuring Ac.3.49 cents in Survey No.252 through public auction held by the Supervisor/Sales Officer, Kadapa District Co-operative Central bank Limited, Kadapa and a Sale Certificate dated 29.06.2012 was issued in his favour. The petitioner claims that the respondents failed to register the above said property in favour of his vendor and he filed W.P.No.22440 of 2012 before this Court and an order dated 24.12.2012 was passed by this Court, directing the registering authority to receive the documents for sale presented for registration by the petitioner's vendor. Subsequently, the vendor of petitioner laid plots in Survey No.252 to an extent of Ac.0.51 cents and the same was purchased by the petitioner through document bearing No.2875/2014 dated 10.10.2014. The petitioner 2 states that he intended to sell some of the plots for the necessities of his family expenses and higher education of his children, but the 4th respondent refused to issue valuation certificate on the ground that the above said properties were included in the Prohibited Property list which is against the orders passed by this Court in W.P.No.22440 of 2012 and contrary to the reported decision of a Division Bench of this Court reported in 2009(2) ALD 250. Hence, the writ petition.
The learned counsel for the petitioner contends that the original assignee appears to have mortgaged the assigned land in favour of a Co- operative Bank and when the property is mortgaged, interest in the property is transferred by the Mortgager to the Mortgagee and if the mortgage money is not repaid, the consequences provided under the Transfer of Property Act would follow. He further submits that in the present case, the petitioner's vendor purchased the subject land in the public auction conducted by the Bank and the Bank has also given the sale certificate. The 4th respondent earlier pursuant to the orders of this Hon'ble Court in Writ Petition No.22440 of 2012 registered the land in favour of the petitioner's vendor and subsequently in favour of the petitioner. Therefore he cannot refuse to register the transactions in respect of the said property basing on the prohibited list furnished by the revenue authorities.
Learned counsel for the petitioner placed reliance on the judgement of the Division Bench of this Court in Sub-Registrar, Srikalahasthi, Chittoor District v. K.Guruvaiah1 and contends that as per the judgment(1 supra), the lands which were assigned by the State can be mortgaged in favour of Primary Agriculture Cooperative Society and if the mortgager commits default in payment of the loan amount, the said lands 1 2009(2) ALD 250 = 2009(3) ALT 85 3 can be sold for recovery of the same and that such a sale is valid in Law. He contends that once there is a sale of the land by way of an auction conducted by a Cooperative Bank, the property ceased to be the property of the State, loses its character as assigned land and the auction purchaser gets valid title over the property. He submits that in view of the legal position, the action of the respondents is contrary to law, unjust, untenable and that the petitioner is entitled to the reliefs sought for.
As seen from the said judgment, the Hon'ble Division Bench opined that when the original assignee mortgaged the land assigned to him in favour of a bank or a financial institution or cooperative society under A.P.Cooperative Societies Act, 1964 and if the money is not paid, the consequences provided in the Transfer of Property Act, 1982 would naturally follow; that it is permissible to put the said land to public auction under the said Act and recover the dues to the financial institution by way of sale and such a sale is valid in law. It is also held that as per Section 2(1) of the A.P.Assigned Lands (Prohibition of Transfers) Act, 1977, mortgage in favour of a bank or a cooperative Society does not amount to alienation.
It may be pertinent to mention here that similar issues fell for consideration before two other Division Benches subsequently in State of A.P. v. P.Usha Rani2 and Government of A.P. v. T.Krishna Murthy3. In the above said case of P.Usha Rani, the Hon'ble Division Bench was not inclined accept the submission of the appellants/State to refer the issues to a Full Bench on the premise that the law laid in K.Guruvaiah's case referred to supra needs reconsideration. Further, in the above said case of T.Krishna 2 2018(2) ALT 62 3 2018(3) ALT 676 4 Murthy, the Hon'ble Division Bench while concurring with the Law laid down in K.Guravaiah's case held as follows:
"6. The Act, 1977, creates an embargo against alienation of the assigned lands. However, the assigned land will be heritable, once it is in the hands of the assignee. The prohibition against alienation imposed on the assignee is built with the exclusion that such restriction as to alienation would not apply to creation of mortgages in Act, 1977. The purpose of such exclusion and the legislative wisdom in making such exclusion are explicit on a reading of the provisions of Act, 1977, the assigned lands to which those rules apply are those lands which are assigned to landless poor persons under the rules for the time being in force. The condition of non- alienation and other matters are brought into the basket of the description of the term assigned land with the explanation that mortgages in favour of the different institutions enumerated in that sub-section shall not be regarded as alienation. The purpose is to enable the landless poor persons who have assigned lands to generate funds, fundamentally for their agricultural operations and also for other purposes, by putting that lands to mortgages with institutions which are enumerated under Section 2(1) of Act, 1977.
7. Once mortgages are created by the assignees of Government lands and when those mortgages stand with the support of the exclusionary provision in the definition of assigned land in Act, 1977, it cannot be contended that the mortgagees are not eligible to bring the mortgaged property to sale for the purpose of recovering the amounts paid under the mortgage. There is no inhibition in Act, 1977, or is there any principle referable to the provisions of the T.P.Act, which results in any such embargo. That being the position, the eligibility of the mortgagee to bring the property to sale leads to the resultant issuance of the sale certificate in terms of Sub-Rule 14(v) of Rule 52 of the A.P.Co-operative Societies Act, which enjoins, among others, that such certificate of sale shall be conclusive evidence of the fact of purchase, in all courts and tribunals where it may be necessary to prove it and no proof of the seal or signature of the Registrar of the district shall be necessary unless the authority before whom it is produced shall have reason to doubt its genuineness. The said statutory provision making the sale certificate as conclusive proof 5 necessarily obliges the statutory authorities under the different provisions of law to act upon such sale certificates."
Having perused the judgment referred to supra, this Court is in complete agreement with the contentions raised by the learned counsel for the petitioner and bound by the law laid down therein. In view of the above legal position and authoritative pronouncements of the Hon'ble Division Benches referred to above, the inclusion of the land in question purchased in an auction conducted by a Bank in the list of prohibited properties is unsustainable and the petitioner is therefore entitled for a Writ of Mandamus.
Accordingly the writ petition is allowed as prayed for. The respondents are directed to delete the land of the petitioner from the prohibitory properties list issued under Section 22-A of the Registration Act, 1908 forthwith. As and when the petitioner presents document in respect of the plots in question for registration, the 4th respondent shall receive and process the same for the purpose of registration without reference to the prohibited property list under Section 22-A of the Registration Act, 1908 and proceed in accordance with law. The said exercise shall be completed within three weeks from the date of submission of the document by the petitioner. There shall be no order as to costs.
As a sequel, all the pending miscellaneous applications, if any, shall stand closed.
______________________ NINALA JAYASURYA, J Date: 09.10.2020 BLV 6 HON'BLE SRI JUSTICE NINALA JAYASURYA WRIT PETITION No.17554 of 2020 Dt: 09.10.2020 BLV