Andhra HC (Pre-Telangana)
Harijana Bazarappa vs H. Chakarala Ranganna on 14 October, 2003
Equivalent citations: 2004(1)ALD284A
ORDER G. Yethirajulu, J.
1. This revision petition is filed against the order of the Senior Civil Judge, Adoni in E.P. No. 20 of 2000 in O.S. No. 60 of 1995 dated 20-12-2001.
2. The revision petitioner brought a house property and a landed property of the judgment debtor for sale through the above execution petition. The judgment debtor pleaded that they are the lands assigned to him by the Government, therefore, they cannot be brought to sale under Court auction. The Execution Court while going through the xerox copies of the assignment deeds observed that the judgment-debtor has not filed the original assignment orders to verify whether the land was assigned to him subject to the condition of non-alienability. The Court while further observing that those questions of fact have to be proved by evidence including the plea of the judgment-debtor that he is a small farmer and the debt stood discharged and regarding the correctness of the decree-holder's claim etc, posted the matter for enquiry on 2-1-2002. The revision petitioner being aggrieved by the order of the lower Court preferred this revision petition contending that the lower Court ought not to have passed the said order and should have conducted the auction for the sale of the property.
3. The learned Counsel for the revision petitioner submitted that even if it is considered that properties which are proposed to be brought to sale are the lands assigned by the Government, unless there is a clause that the property is inalienable and not transferable permanently, there cannot be any bar for bringing those properties in Court auction sale. The learned Counsel for the revision petitioner relied on a judgment of the Single Judge of this Court in Rambagh Satyanarayana v. Joint Collector, R.R. District, Hyderabad, , wherein this Court while considering the scope of Section 2(1) of the Andhra Pradesh Assigned Lands (Prohibition of Transfers) Act, 1977 (for short 'the Act') held that when there is no condition imposed in the order of assignment prohibiting transfer of land, the land is not assigned land, and therefore, the subsequent transfer is not invalid. The learned Single Judge laid stress for the presence of a condition that the assigned land is not transferable. There is another judgment of this Court rendered by another Single Judge in Vaka Punnamma v. Yadavali Jurala Narasimham, , wherein this Court while considering the scope of Section 4 of the Act held that simply because ten years elapsed from the date of assignment of a land to the judgment debtor, it cannot be said that he acquired a saleable interest in the land, therefore, the land cannot be sold in execution of a decree.
Section 3 of the Act reads of follows:
Prohibition of transfer of assigned lands :--
(1) Where before or after the commencement of this Act any land has been assigned by the Government to a landless poor 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 to 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.
4. It is also essential to extract Section 4 of the Act, which reads as follows:
Consequences of breach of provisions of Section 3 :--(1) If in any case, the District Collector or any other officer not below the rank of a (Mandal Revenue Officer), authorized by him in this behalf, is satisfied that the provisions of Sub-section (1) of Section 3, have been contravened in respect of any assigned land, he may, by order--
(a) take possession of the assigned land, after evicting the person in possession in such manner as may be prescribed; and
(b) restore the assigned land to the original assignee or his legal heir, or where it is not reasonably practicable to restore the land to such assignee or legal heir, resume the assigned land to Government for assignment to landless poor persons in accordance with the rules for the time being in force:
Provided that the assigned land shall not be so restored to the original assignee or his legal heir more than once, and in case the, original assignee or his legal heir transfers the assigned land again after such restoration, it shall be resumed to the Government for assignment to any other landless poor person.
(2) Any order passed in revision under Section 4-B, and subject to such order, the decision in appeal under Section 4-A and subject to the said orders in revision and appeal, any order passed under subsection (1) shall be final and shall not be questioned in any Court in respect of any Court of law and no injunction shall be granted by any Court in respect of any proceeding taken or about to be taken by any officer or authority or Government in pursuance of any power conferred by or under this Act.
(3) For the purposes of this section, where any assigned land is in possession of a person, other than the original assignee or his legal heir, it shall be presumed, until the contrary is proved, that there is a contravention of the provisions of subsection (1) of Section 3.
5. A perusal of the above mentioned provisions clearly indicate that the landless poor persons to whom the assignments were made cannot transfer the assigned lands and the transferee cannot acquire such lands either by purchase, gift, lease, mortgage, exchange or otherwise except for the purposes of mortgaging the property with the Government or a Co-operative Society for getting loan etc. In the above judgments the learned Single Judges did not specifically deal with Sub-section (4) of Section 3 of the Act, which prohibits the sale of assigned land in execution of a decree or order of a Civil Court or of any award or order of any other authority. When there is a statutory bar to bring the assigned land to sale, it is immaterial whether there is a condition prohibiting the transfer of the property or not. It is for the Execution Court to examine the relevant documents and to come to a conclusion whether the properties that are being brought for sale are assigned lands or not and pass appropriate orders in the execution petition. The sale to a landless poor person is also prohibited subsequent to the Act came into force, either through Court auction or private sale.
6. In the light of the above circumstances, the Execution Court is directed to proceed with the enquiry regarding the nature of the lands and other aspects and pass appropriate orders. The revision petition is accordingly dismissed.
No order as to costs.