Andhra HC (Pre-Telangana)
Gade Ramulu And Ors. vs District Collector And Ors. on 20 November, 2002
Equivalent citations: 2003(1)ALD393, 2003(1)ALT473, 2003 A I H C 903, (2003) 1 ANDHLD 393 (2003) 1 ANDH LT 473, (2003) 1 ANDH LT 473
Author: Goda Raghuram
Bench: Goda Raghuram
ORDER Goda Raghuram, J.
1. Six petitioners-residents of Mukundapuram Village, Srikakulam District are aggrieved by the order of the 3rd respondent dated 23.10.1990 declaring the acquisition of land by the petitioners from the original assignees in violation of the A.P. Assigned Lands (Prohibition of Transfers) Act, 1977 (for short 'the Act'), as null and void and consequently ordering their ejectment from the lands and restoration to the assignees as also the orders of the 2nd and 1st respondents affirming the aforesaid order of the 3rd respondent in appeal and revision by the orders dated 18.2.1991 and 2.12.1991 respectively - seek certiorari on a plurality of grounds but substantially on the following:
(a) that the order of the 3rd respondent had been passed pursuant to an enquiry behind the back of the petitioners and without notice and opportunity to them;
(b) that the 3rd respondent had patently no jurisdiction to adjudicate upon the matter under the provisions of the Act inasmuch as the acquisition of the lands by the petitioners in the 1950s brings them within the provisions of Section 3(5) of the Act and therefore no proceedings under the Act will lie for their ejectment; and
(c) that in the alternative the petitioners having perfected their title to the lands by adverse possession, they could not be ejected.
2. A brief over-view of the background facts is necessary:
The State of Andhra Pradesh assigned small extents of lands in favour of Gunapa Simmadu, Mandarada Garikayya, Vaddi Narayya and Gunupu Simmanna in 1924 and 1939. It is the petitioners' case that their respective fathers purchased these lands from the assignees in 1952 and 1953 and since then their fathers and thereafter, the petitioners have been in possession and enjoyment of the lands. It is asserted that the purchasers were landless poor as on the date of purchase from the original assignees. After these general assertions, in paragraph 4 of the affidavit filed in support of the writ petition, it is stated that the purchasers did not possess any land in the years 1952 and 1953. While so, the legal representatives of the initial assignees filed O.S.No. 188 of 1989 on the file of the Junior Civil Judge, Rajam against the petitioners for perpetual injunction in respect of the lands in question and obtained ad interim injunction on 20.9.1989 which was however eventually vacated in May, 1990.
3. Thereafter, proceedings under the Act were initiated by the 3rd respondent by the issuance of a show-cause notice on 9.5.1990. This notice stated that the grant of patta was in favour of the named original assignees; sensitized the notice that the patta was heritable but not transferable and that the lands would be resumed by the State without payment of compensation. The notice asserted that it had come to the notice of the 3rd respondent that the addressee has purchased the assigned land from the assignee, that the said act constitutes violation of Section 3(2) of the Act, the transaction is null and void and that the addressee is also consequently liable for penal action under Section 7 of the Act. The notice also stated that the Government had decided to resume the land since it is required by the Government for its own use. The notice gave the addressee an opportunity to file a representation by the specified date failing which the land in question would be assigned to the original assignee after resumption to the Government free from all encumbrances. The petitioners assert to have filed their objections on 2.6.1990 to the effect that they purchased the land in question from the vendors about 40 years back and to have been in continuous possession and enjoyment of the land ever-since.
4. Thereupon, the 3rd respondent by the order dated 23.10.1990 concluded that the acquisition of lands by the petitioners was in violation of the provisions of the Act and therefore null and void. In coming to this conclusion, the 3rd respondent recorded that from the available records, the petitioners appear to have purchased the lands by un-registered sale deeds on various dates during the period 1952 to 1976. Therefore, the transfers were prior to the date of commencement of the Act i.e., prior to 21.1.1977. However, as the provisions of the Act operate both in respect of transfers prior and subsequent to the Act except in cases falling within Sub-section (5) of Section 3, the 3rd respondent addressed himself to the question whether the petitioners had made out a case that the transfers from the assignees in their favour fell within the exempted category enumerated in Section 3(5) of the Act. The 3rd respondent recorded that the several un-registered sale deeds incorporate a recital that the several assignees themselves would have to bear the costs in the event of action by the Government against the vendees failing which criminal and civil action could be taken against the vendors, therefore these recitals lead to an inference that the vendees had an intention of dispossessing the Scheduled Caste assignees. Another reason recorded by the 3rd respondent is that the petitioners were not landless poor persons and according to the revenue records they were in possession of lands which placed them outside the definition of landless poor persons under Section 2(3) of the Act. Consequent on the above findings of fact, the 3rd respondent concluded that the petitioners had violated the provisions of the Act and directed their ejectment.
5. As against the 3rd respondent's order, the aggrieved petitioners preferred Appeal No. 1 of 1990 to the 2nd respondent under Section 4 (a) of the Act. The 2nd respondent affirmed the conclusions arrived at by the 3rd respondent by his appellate order dated 18.2.1991. The 2nd respondent also affirmed the reasoning of the 3rd respondent insofar as the inference of bad faith of the petitioners is concerned on the basis of the recitals in the un-registered sale deeds. The 2nd respondent-appellate authority, with regard to cultivation accounts of the Mandal Revenue Officer, recorded as under:
"Moreover the cultivation accounts of the Mandal Revenue Officer clearly establish that the assignees are the pattadars and the caste Hindus are the cultivators after F.1398 i.e., year 1989 and 90. Thus it is quite clear that the vendees are not sure of winning over the rights of property and thereby did not bring the fact of their possession and title of the lands to the Revenue Authorities and tried for inclusion of their names rightly in the right, manner."
6. The appellate authority also affirmed that the claims submitted by the appellants in Form 1-A to the R.O.R. recording authority sets out particulars of their ancestral acquired property which discloses that they were landed rich. With regard to the appellants grievance about denial of reasonable opportunity by the 3rd respondent, the appellate authority/2nd respondent found that the records of the 3rd respondent disclosed that the petitioners were issued a show-cause notice and an opportunity to make a representation. The appellate authority further recorded that the petitioners had failed at the time of filing their representation dated 2-6-1990 to adduce any material to substantiate the fact that the transaction by which they claimed title to the property is saved under Section 3(5) of the Act and that they have also failed to produce any such evidence on 4.6.1990 on which date the 3rd respondent had called upon the petitioners to appear in person or through their Counsel, for hearing. On a holistic analysis of the facts on record, the 2nd respondent/appellate authority declined to interfere and rejected the appeal affirming the findings and conclusions of the 3rd respondent.
7. Thereafter, the petitioners preferred a revision to the 1st respondent which was disposed of by the order dated 2.12.1991. The 1st respondent concurred with the reasons and conclusions of the 3rd respondent-primary authority as affirmed by the 2nd respondent-appellate authority both on the factum of the illegality of the petitioners' acquisition of the lands qua the provisions of the Act as well as the reasons for such conclusions.
8. Aggrieved thereby, the petitioners seek judicial review in this writ petition.
9. The provisions of the Act insofar as they are relevant and material for the purposes of the lis herein are as under:
10. Section 2(1) defines assigned lands to mean lands assigned by the Government to the landless poor persons under the rules, subject to a condition of non-alienation. Section 2(3) defines landless poor person to mean person who owns an extent of land not more than two and half acres of wet land and five acres of dry land or such other extent of land as has been or may specified by the Government in this behalf from time to time, and who has no other means of livelihood. Section 3 of the Act enacts prohibition of transfer of assigned lands and reads as under:
"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 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."
11. Section 4(1) sets out the consequences of breach of the provisions of Section 3 and in a case where the specified officer is satisfied that the provisions of Sub-section (1) of Section 3 have been contravened in respect of any assigned land, such officer is empowered to lake possession of the assigned land after evicting the person in possession of such land in the prescribed manner and to restore it to the original assignee or his legal heir or to resume the land to the Government for assignment to other landless poor persons. Section 4-A(1) provides for an appeal against an order passed by the Mandal Revenue Officer to the Revenue Divisional Officer and Section 4-A(2) for an appeal to the District Collector against the order of the Revenue Divisional Officer passed under Section 4-A(1). Section 4-B enacts a revisional power in the District Collector in respect of orders other than those covered by the appellate provisions under Section 4-A (2). Section 7 incorporates the penalty for the contravention of the provisions of the Act and Section 10, by a non-obstante provision, effectuates the provisions of the Act against any inconsistent provision in any other law in force or against any custom, usage or contract or decree or order of a Court, Tribunal or other authority.
12. In the context of the text and structure of the Act, it is clear that the Act reaches out to all transactions specified by the Act, whether such transactions are prior or subsequent to the commencement of the Act. This is clear from Section 3(1) of the Act. Section 3(1) also enacts that no right or title in the assigned land shall vest in any person who acquires the land by such transfer. Sub-section (3) of Section 3 enacts a declaration that on contravention, such transfer or acquisition shall be deemed to be null and void. Sub-section (5) of Section 3 is in the nature of an exception clause and exempts the provisions of the Act to a purchase of assigned land by a landless poor person in good faith and for valuable consideration, if such purchase is from the original assignee or transferee prior to the commencement of the Act and if it is in the possession of such transferee for the purpose of cultivation or as a house-site, on the date of the commencement of the Act. The date of commencement of the Act is 21.1.1977 (Section 1(3)).
13. On an interactive analysis of the sub-sections of Section 3 and on a true and fair construction of the provisions of the Act, to sustain a claim to a title in a land acquired by transfer from a person who has been assigned such land, four circumstances must exist. (1) The purchase should be prior to the date of the commencement of the Act (2) the purchaser must be a landless poor person (3) the purchase must be in good faith and for valuable consideration and (4) the land should be in the possession of the purchaser for the purposes of cultivation or as a house-site on the date of commencement of the Act. Since Section 3(5) is in the nature of an exception and Section 4(3) incorporates the legislative presumption that 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 Sub-section (1) of Section 3, the burden is upon the person claiming the benefit of the exception in Sub-section (5) of Section 3 to affirmatively demonstrate that the purchase by him of the assigned lands satisfies all the relevant parameters for application of Sub-section (5) of Section 3. On the failure of a person to discharge this burden, the legislative presumption enacted in Sub-section (3) of Section 4 comes into play proprio vigore and the consequences for the breach of the provisions of Sub-section (3) as enacted in Section 4(1) necessarily follow.
14. On the aforesaid analysis of the provisions of the Act, it is to be seen whether the order of the 3rd respondent as affirmed by the 2nd and 1st respondents suffer any infirmity, warranting judicial review.
15. The parameters of judicial review of administrative and quasi-judicial action are too well known to require a dilatory reiteration.
16. Apropos the circumstances and facts on hand, the applicable principle of judicial review is that if there is some evidence, which rationally permits the conclusion by a quasi judicial Tribunal, such conclusion is not to be disturbed on an appellate reappreciation of the evidence. In the absence of any infirmity in the procedure followed by such Tribunal an infirmity which has pejorative effect on the affected party, no interference is called for.
17. On the above parameters, it is to be seen whether the orders impugned are stricken with the vice of an infirmity warranting interference.
18. On the admitted factual platform, the petitioners have purchased lands, which have been assigned to their predecessors-in-title. The petitioners claim such purchases to be in the years 1952 and 1953. Be that as it may, on the admitted position, the purchases by the petitioners prima facie attract the provisions of the Act. In view of the presumption enacted in Section 4(3), the possession of the assigned lands by the petitioners is to be facially considered as in contravention of the provisions of Section 3(1). It is, therefore, the burden of the petitioners to affirmatively demonstrate before the authority of the first instance-the 3rd respondent, that their possession of the lands in question falls outside the pale of the provisions of the Act in view of the provisions of Sub-section (5) of Section 3. This burden can only be discharged by the petitioners by proving to the rational satisfaction of the 3rd respondent that they are landless poor persons who had purchased the lands in good faith and for valuable considerations and were in possession of the lands for the purpose of cultivation or as house-sites on the date of the commencement of the Act i.e. 21.1.1977.
19. Neither before the 3rd respondent nor before the appellate authorities, respondents 2 and 1, nor even before this Court have the petitioners asserted any specifics in support of what is merely a bald assertion in the affidavit filed in support of the writ petition that they are landless poor persons. Before the 3rd respondent, the seminal case of the petitioners is that they had purchased the lands from the original assignees in the years 1952 and 1953 and were in continuous and long possession and occupation thereof. Such assertion by itself does not amount to discharge of the burden the Legislature places upon the purchasers of assigned lands, under Section 3(5). On this failure of the petitioners to discharge the legislatively ordained burden under Section 3(5), the presumption under Section 4(3) springs into play so also the sanctions under Section 4(1). There is no escape from these syllogisms of Sections 3 and 4 of the Act.
20. Sri Addepalli Suryanarayana, learned Counsel for the petitioners would alternatively and in extremis contend that the petitioners must be held to be perfected their title over the lands by adverse possession since 1952 and 1953. This contention is urged to be rejected. A finding of perfection of a title by adverse possession is not a finding that can be read on a tabula rasa and an open textured pleadings. As reiterated by the Supreme Court in Annasaheb Bapusaheb Patil v.
Balwant Babusaheb Patil, , a person who bases his title on adverse possession must show by clear and unequivocal evidence that his possession was hostile to the real owner and amounted to a denial of his title to the property claimed. In deciding whether the acts alleged by a person constitute adverse possession, regard must be had to the animus of the person doing those acts which must be ascertained from the facts and circumstances of each case. The person who bases his title on adverse possession, therefore, must show by clear and unequivocal evidence that his possession was hostile to the real owner and amounted to denial of his title to the property claimed. The proof on these necessary facts for permitting a conclusion of perfection of title by adverse possession presupposes a specific pleading of such claim and adduction of evidence, oral or documentary in substantiation of the claim.
21. In the case on hand, before none of the statutory authorities below, the primary and appellate, was there any whisper of a claim of perfection of title by adverse possession nor has any evidence been led to prove all the necessary ingredients that would justify a conclusion that the petitioners had perfected their title by adverse possession.
22. On the ratio, enunciated by the Supreme Court in Sri Manchegowda v. State of Karnataka, , in respect of analogous provisions of the Karnataka Scheduled Castes and Scheduled Tribes (Prohibition of Transfer of Certain Lands) Act, 1979, the provisions of the Act would apply to transfers of assigned lands made in breach of the condition of assignment only in those cases where the title acquired by the transferee was defeasible at the date when the Act came into force and the transferees of granted lands having a perfected and not voidable title at the commencement of the Act must be held to be outside the pale of the provisions of the Act. Therefore, as on the date of the commencement of the Act i.e., by 21.1.1977, the transferees of assigned lands must be able to affirmatively demonstrate that they had acquired title in the lands by adverse possession. On the admitted position of the petitioners, they had purchased the lands in 1952 and 1953 and thus cannot be held to have even completed even the chronological period of 30 years by 21.1.1977 from the date of their purchase by unregistered sale deeds, earliest of which is dated 3.5.1952 in respect of an extent of Ac.0.99 cents in Sy.No. 156/2B.
23. It is alternatively contended on behalf of the petitioners that the petitioners' present alternative claim to the title in the land by adverse possession must be computed from the date of their purchase to the date of initiation of the proceedings under the Act Such plea does not commend itself to the acceptance by this Court. The Legislature clearly and unequivocally declares all transfers which fall foul of the Act to be null and void and if the petitioners have but a defeasible title as held in Manchegowda's case (supra) such defeasible title cannot be fed by the occupation after the date of the Act to render such defeasible title a perfect title. Such a construction would be artificial and in subversion of the legislative intent expressed by the text and structure of the Act and would also serve no public policy.
24. One other contention urged on behalf of the petitioners is that the primary and appellate orders of the authorities under the Act are flawed on account of the failure to record a finding that the petitioners are landless poor persons as on the date of their acquisition. In the preceding analysis, this Court has come to the conclusion that it is a positive burden on the petitioners to affirmatively demonstrate that they are the landless poor persons to escape the rigors of the Act and that they have failed to do so. On the same analysis, in the absence of the petitioners discharging the burden that inheres on them by virtue of the provisions of the Act, there is no obligation on the adjudicators, respondents 1 to 3 to record a finding that the petitioners are landless poor persons. In fact, very clearly the 3rd respondent has recorded that the petitioners are seen to have been in possession of the lands, extents of which have also been recorded in the order of the 3rd respondent, which as recorded by the 3rd respondent demonstrate that the petitioners-vendees are not landless poor persons. As a nuance of this contention, it is urged that an affirmative finding that the petitioners do not fall within the exceptions enumerated in Section 3(5) would alone clothe the Tribunals under the Act with the initial jurisdiction to adjudicate upon and apply the provisions of the Act. Such a contention is fallacious. It is well recognised that even Tribunals of limited jurisdiction are empowered to adjudicate upon jurisdictional facts to determine the existence or otherwise of their jurisdiction. While Superior Courts can conclusively determine the limits of their jurisdiction, the inferior Court or a Tribunal of limited jurisdiction would only determine the existence of its jurisdiction on establishment of jurisdictional facts in the first instance. In view of the provisions of Section 3(1) read with Section 4(3), the inference is clear that on the establishment of the fact that a person is in possession of lands and that such possession has been derived by a transfer from a person who has been assigned the lands, a rebuttable presumption comes into being that the transferee holds the lands in violation of the provisions of the Act. Such presumption would have to be rebutted by the person in possession of such lands; in the case on hand, the petitioners. On this analysis, the authorities under the Act, respondents 1 to 3, did have prima facie jurisdiction, which the petitioners were at liberty to displace. They have chosen not to do so either through pleadings or by leading evidence in support of such pleading. Consequently, the exercise of jurisdiction by the respondents cannot be interdicted by any presumptive facts neither pleaded, urged or demonstrated before any of the authorities.
25. It must also be noticed that from the record of the case, the acquisition of the lands by the petitioners was by unregistered sale deeds in the years 1952 and 1953 and at values over Rs. 100/- in each case. The instruments by which the petitioners claim transfer of title in them are not recognised in law. In the circumstances, the petitioners cannot be heard to contend that though the transfers in their favour were by unregistered sale deeds, the transfers are otherwise valid, for the purpose of either their current claim to title by adverse possession or on equities on the basis of long uninterrupted possession. At any rate, the legislative provisions leave no interstices for the play of equities. Certain transfers are invalid by legislation and sanctioned by resumption and reallocation to the original assignees or resumption in the Government. Certain transactions like those arising under Section 3(5) are outside the purview of the Act. There are no mid way transactions which could be saved by application of principles of equity. The legislation has covered the field and has left no scope for equitable considerations within the area occupied by the legislation. Equity follows the law, is the received verity. There is another reason why even the claim of adverse possession requires to be rejected, as held in Annasaheb's case:
"Where possession could be referred to a lawful title, it will not be considered to be adverse. The reason being that a person whose possession can be referred to a lawful title will not be permitted to show that his possession was hostile to another's title. One who holds possession on behalf of another does not by mere denial of that other's title make his possession adverse so as to give himself the benefit of the statute of limitation. Therefore, a person who enters into possession having a lawful title, cannot divest another of that title by pretending that he had no title at all."
26. In the case on hand, the petitioners claim title to the land by transfer from the assignees. In the circumstances, they could not be heard to contend that their possession was adverse to the assignees who had a mere possessory right or to the Government, which was the owner of the land and had assigned a possessory though limited heritable but not transferable right in favour of the assignees.
27. In any view of the matter as the petitioners have neither pleaded nor proved adverse possession, they cannot be heard to urge such a claim for the first time before this Court in judicial review.
28. Another attack on the orders of the authorities under the Act is on the ground that no adequate opportunity was given to the petitioners and that an enquiry was conducted behind their back. In this regard, the petitioners' plea is set out in paragraphs 7 and 11(a) of the affidavit. In brief, they contend that the 3rd respondent without conducting any enquiry and without giving any opportunity to the petitioners to adduce evidence, passed the order on 23.10.1990. This plea is inconsistent with their own assertion in the earlier part of paragraph 7 where they assert that the 3rd respondent issued them notices dated 9.5.1990, to which they filed their objections on 2.6.1990. Such a plea of violation of principles of natural justice appears to have been urged before the appellate authority, the 2nd respondent also. The 2nd respondent-appellate authority records that as seen from the records, the appellants-petitioners were issued a notice followed by a statutory notice in Form No. 1 under the provisions of Section 3 of the Act and that they have filed their representations on 2..6.1990 after receiving the notice and that they have not filed any documents to prove that their transactions are saved under Section 3(5) of the Act. The 2nd appellate authority, the 1st respondent has also framed a specific issue as to the opportunity afforded to the petitioners herein in respect, of the very grievance urged in paragraphs 7 and 11(a) of the writ petition and held that Form-I notices have been issued to the petitioners and they were served in the prescribed manner, they have filed their explanations before the 3rd respondent and that they did not put forth any claim before the said respondent seeking any enquiry to establish that they were landless poor persons eligible for protection under Section 3(5) of the Act. In the circumstances, held the 1st respondent, the petitioners' allegation as to denial of opportunity is vacuous.
29. In response to the same allegation in this writ petition, the 1st respondent has filed a counter-affidavit unequivocally asserting that notices in Form-I as required by Rule 3 of the 1977 Rules have been served on the petitioners and their explanations received and that they were given an opportunity for a personal hearing also. And only thereafter, was the order dated 23.10.1990 passed by the 3rd respondent. The petitioners' vague assertion of denial of opportunity has been met with specific assertion that opportunity has been given. These specific counter assertions of the respondents have not been denied by the petitioners. In this state of the record, this Court is unable to upheld the grievances of the petitioners that they have been denied just and fair opportunity before the 3rd respondent.
30. On the analysis above, I find no merits in the writ petition and it is accordingly dismissed. There shall, however, be no order as to costs.