1 D. Parthasaradhi Sarma v. Gowri Sankara Sastry

Order

The petitioners thirteen (13) in number are aggrieved that the fourth respondent is not receiving the documents presented by them for registration in respect of the lands claimed to be owned and possessed by them in survey Nos. 352/2, 352/2B and 2C of Patha Chirala village (Patha Jandrapet panchayat formed Kothapalem panchayat). They are also aggrieved by a memo bearing No.411182/Assn.II(2)/2003-1

dated 13-08-2003 issued by the first respondent and seek a consequent direction to the fourth respondent to receive the documents presented by them for registration in accordance with the provisions of the Registration Act, 1908 (for short ‘the 1908 Act’). The petitioners further seek a declaration that the proceedings dated 20-07-2002 issued by the Registration and Stamps Department, Government of Andhra Pradesh on the basis of the first respondent’s Memo dated 13-08-2003 is illegal. The petitioners purchased various extents of land in the survey numbers referred to above from various persons who had purchased the same from their predecessors in title. According the petitioners, their predecessors purchased the properties under sale deeds dated 18-04-1970 and 14-06-1968 from the heirs of original owner – one G. Venkata Subbaiah. Venkata Subbaiah settled the property in favour of Burla Subbamma wife of Yanadi in 1944 by a registered Settlement Deed dated 19-04-1944. Subbamma’s family members partitioned the property under a Partition Deed dated 09-01-1945. According to the petitioners, a large number (nearly twenty) of transactions had been entered into and conveyances of the property occurred since 1944 till 1990. The petitioners claim to be retired or working in several government departments, judicial department, banks etc., Some of the petitioners desiring to sell their property in the aforementioned survey numbers approached fourth respondent for registration in the year 2000. The fourth respondent informed that he had received a communication from the third respondent that the land in question is covered by the provisions of the Andhra Pradesh Assigned Lands (Prohibition of Transfer) Act, 1977 (Act 9 of 1977) (for short ‘the 1977 Act’). Therefore, no registration could be entertained in view of the provisions of Section 5 of the 1977 Act. The petitioners thereupon made a representation dated 25-08-2002 the second respondent and the second respondent is claimed to have recommended for deletion of these lands from the ‘register of assigned lands’. In this recommendation, the second respondent is stated to have held a view that the assignment appears to have been in the year 1928 and the Board Standing Orders came into force on 18-06-1954 while the Act 9 was enacted in 1977 and meanwhile a number of transactions had taken place in respect of the land and therefore the lands be deleted from the ‘list of assigned lands’. The petitioners claim that a similar recommendation was made by the Commissioner of Land Revenue in a proceeding dated 15-04-2003 and on the petitioners’ representation. The petitioners categorically assert that the land is not assigned land and that they are bona fide purchases for value. They further assert that the original owner –Venkata Subbaiah was not a landless poor person and the State could not have assigned land to such a person. The prohibition of transfer enjoined by the provisions of the 1977 Act is inapplicable to these lands is also a contention by the petitioners. The first respondent by the Memo dated 13-08-2003 addressed to the second respondent informed that the lands in survey No.352/2B and 2C are assigned lands implicating the provisions of the 1977 Act and there is no provision for deletion of land once it is included in the ‘list of assigned lands’ and therefore the proposal of the second respondent contained in his communication dated 25-02-2003 to permit petitioner and seven others to sell their lands, cannot be considered. As a consequence of the respondent Nos. 1 to 3 treating lands as ‘assigned lands’ falling within prohibition on transfers enjoined by the provisions of the 1977 Act, the petitioners are unable to obtain registration of the conveyances they intend to make of these lands and are also at considerable and unabated threat of dispossession of their properties. Hence the writ petition claiming the reliefs already adverted to. Though the Government of Andhra Pradesh represented by the Secretary to the Government and the District Collector, Prakasam district are impleaded as respondent Nos. 1 and 2 to the writ petition, as is customary, the third respondent – Mandal Revenue Officer, Chirala alone had filed a counter affidavit. Though the issue raised is somewhat important having wider implications having regard to the fact that any declaration by this Court on principle would have a precedential value impacting similar transactions or orders of the government, it is distressing that the appropriate level of State officials do not find it convenient to file a counter affidavit addressing the larger issues and are content to relegate this important function to the last official in the hierarchy of the administration. Be that as it may. The third respondent’s counter states that the land in survey No.352/2B and 2C in an extent of Ac.01-41 cents is classified as ‘Assessed Waste land’ as per the Resettlement Register of Chirala village. The land was conditionally assigned to one G. Venkata Subbaiah vide D.T’s Dis. 32, D.K. 38 dated 17-10-1928. In a Government Memo No. 2855/B1/79-1 dated 27-08-1979 it was clarified that the lands assigned prior or after 21-01-1977 cannot be transferred and any such transfers are void under Section 3 (1) of the 1977 Act and therefore action must be taken to resume the lands from the petitioners and return them to the original assignee. According to the third respondent all transfers of lands in survey No.352/2B and 2C are void. The third respondent admits that the ‘list of Government Assigned lands’ was communicated to the fourth respondent with a direction not to effect registration in respect of government assigned lands. The third respondent also admits that the second respondent had submitted a report to the Chief Commissioner of Land Administration, Hyderabad on 25-02- 2003 seeking a clarification whether the land in question can be deleted from the ‘list of assigned lands’; that the Chief Commissioner of land Administration in his report dated 15-04- 2003 had recommended to the first respondent to permit the petitioners to sell the lands in question; but the government after examining the matter had issued a Memo dated 13-08- 2003 declining the proposals. Except reiterating that the land is assigned land, the third respondent has not chosen to make good that plea with any evidence or material. The learned Government Pleader for Revenue relies on what is purported to be a Xerox copy of ‘Karanam’s copy of Re-settlement Adangal of village of Chirala’ wherein in column No.13 it is recorded ‘352/2B conditionally assigned to G. Venkata Subbaiah in D.Ts. Dis. 32, D.K 38 dated 17-10-1928’. The learned Government Pleader would state that the original order of assignment or any secondary evidence of such assignment or the terms of such assignment in 1928 to G. Venkata Subbaiah are not available and the above copy is the only document on the basis of which the respondent Nos. 1 to 3 chorus that the land is ‘assigned land’ within the meaning of the provisions of the 1977 Act. Section 3 (2) of the 1977 Act prohibits any landless poor person from transferring of any assigned land and any person from acquiring any land either by purchase, gift, lease, mortgage, exchange or otherwise. Section 3 (3) of the Act 1977 enjoins that 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. Sub-section (1) of Section 3 of the 1977 Act enjoins that before or after the commencement of this Act if any lands have been assigned by the Government to a landless poor person for the purpose 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. Section 3(5) of the 1977 Act dis-applies the provisions of Section 3 to ‘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 the purpose of cultivation or as a house site on the date of such commencement. Section 2 (1) of the 1977 Act defines ‘assigned land’ to mean 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 the land ceilings; and the word ‘assigned’ shall be construed accordingly. (Emphasis supplied) From an interactive analysis of Section 2 (1) and Section 3 of the 1977 Act, the conclusion is compelling and clear that the provisions of the 1977 Act do not apply to all lands assigned. The assignment should be with a clog on alienation or on condition of ‘non-alienability’. The copy of the Karanam’s copy of Re-settlement Adangal of village of Chirala’ presented by the third respondent along with his counter affidavit as the trump card for the respondents’ claim that the land is ‘assigned land’ does not even spell out the conditions subject to which the land in an extent of Ac.01-41 cents in survey No. 352/2B and 2C was conditionally assigned to G. Venkata Subbaiah. As is clear from the legislative presents, to be assigned lands the assignment must be with a condition of ‘non-alienability’. Learned Government Pleader for Revenue states that except the copy of ‘Karanam’s copy of Re-settlement Adangal of village of Chirala’ there is no other document in the possession or custody of the respondents with regard to assignment in 1928 in favour of G. Venkata Subbaiah. There is nothing in the provisions of the 1977 Act which enjoins a legislative fiction that of every land assigned by the Government to an individual should be deemed to be ‘assigned land’ within the meaning of the 1977 Act. In the absence of any such fiction enjoined by a legislative prescription and there being therefore no such presumption, the burden of proving that the land in possession of an individual is ‘assigned land’ within the meaning of the provisions of the 1977 Act is on that authority who wants to propound such a conclusion, in this case, the respondent Nos. 1 to 3. Except in ipsi dixit, the respondent Nos. 1 to 3 have produced no material to justify a rational conclusion that the land is an ‘assigned land’. In the absence of any such material, the respondent Nos. 1 to 3 cannot gainfully contend that the land in survey Nos. 352/2; 352/2B and 2C of Patha Chirala village (Patha Jandrapet Panchayt, newly formed Kothapalem Panchayat) is assigned land as defined in Section 2 (1) of the 1977 Act; or that the transfer of such land to the petitioners or the endeavor of the petitioners to transfer such land is transgressive of the provisions of Section 3 of the 1977 Act. On the above analysis, the action of the respondents in addressing the fourth respondent not to register the lands in survey No. 352/2, 352/B and 2C of Patha Chirala village is a directive without any legal basis. The fourth respondent cannot act on the basis of such an unlawful directive issued by respondent Nos. 1 to 3. The fourth respondent must perform his statutory functions and obligations under the provisions of the 1908 Act and register the documents of conveyance presented by the petitioners in respect of the lands in survey Nos. 352/2, 352/2B and 2C of Patha Chirala village (Patha Jandrapet Panchayt, newly formed Kothapalem Panchayt), if otherwise in order, but clearly eschewing and ignoring any directive by respondent Nos. 1 to 3 to the contrary. The respondent Nos. 1 and 2 are also directed to delete the lands of the petitioners owned and possessed by them pursuant to the registered sale deeds in their favour from the ‘register of assigned lands’ maintained under the provisions of the 1977 Act forthwith. The writ petition is allowed as above. In circumstances of the case however, there shall be no order as to costs. ____________________ GODA RAGHURAM, J Dated: 15-04-2008 Pvks/*