Andhra Pradesh High Court - Amravati
The State Of Ap vs Madanapalle Ex Service Man Association on 4 January, 2024
Author: R. Raghunandan Rao
Bench: R. Raghunandan Rao
IN THE HIGH COURT OF ANDHRA PRADESH: AMARAVATI
HON'BLE MR. JUSTICE DHIRAJ SINGH THAKUR, CHIEF JUSTICE
&
HON'BLE MR. JUSTICE R. RAGHUNANDAN RAO
WRIT APPEAL No.955 of 2023
Between:
The State of Andhra Pradesh,
Represented by the Secretary Revenue
Department Secretariat, Hyderabad,
Now Principal Secretary, Revenue Department,
Secretariat, Velagapudi,
Amaravathi & 3 others.
...Appellant
Versus
Madanapalle Ex-servicemen Association,
Represented by its Secretary K.Srinivasulu,
S/o.Munirathnam Naidu,
Residing at Madanapalle,
Annamayya District.
...Respondent
Counsel for the Appellants :Sri P. Subhash, G.P for
Assignment
Counsel for respondent : Devalaraju Anil Kumar
JUDGMENT
Dt:04.01.2024 (per Hon'ble Sri Justice R. Raghunandan Rao) 2 HCJ&RRR,J W.A. No.955 of 2023 Heard Sri P. Subhash, the learned Government Pleader for Assignment, appearing for the appellants and Sri Devalaraju Anil Kumar, learned counsel appearing for the respondent.
2. The respondent, which is an Ex-servicemen Association, was allotted Ac.0.03 cents of land in Sy.No.298/2 and Ac.0.03 cents of land in Sy.No.298/3, by way of proceedings dated 26.03.1982 bearing R.Dis.No.16583/80, issued by the District Collector, Chittoor. The said lands were granted for the purposes of construction of a Sainik Bhavan, for the welfare of the Ex-service men of the area. The said proceedings also stated that the land is being alienated to the respondent "subject to the usual conditions appended in the annexure". The respondent after obtaining the said land is said to have constructed five shops and had leased out the said shops on a twenty year lease.
3. The Mandal Revenue Officer, Madanapalle issued proceedings bearing ROC.No.A/1115/93, dated 15.09.1993 resuming the said land. Aggrieved by the said resumption, the respondent had approached the erstwhile High Court of Andhra Pradesh, by way of W.P.No.24779 of 1995 which was disposed on 24.03.2005, leaving it open to the respondent-association to avail all the remedies available under law. Subsequently the respondent- 3
HCJ&RRR,J W.A. No.955 of 2023 association filed an appeal before the Sub-Collector, Madanapalle against the order of the Mandal Revenue Officer. This appeal was dismissed on 11.05.2006 in proceedings D.Dis.(B1)/2503/2005. Aggrieved by the said order of dismissal, the respondent-association had approached the Joint Collector and Additional District Magistrate, Chittoor, by way of a revision. This revision also got dismissed by an order dated 05.02.2011 in proceedings bearing D.Dis.(E2)7608/2006. Aggrieved by the said order of dismissal, the respondent-association had approached this Court, by way of W.P.No.18203 of 2014, which was allowed, by a learned Single Judge of this Court, on 02.09.2022. Aggrieved by the said Judgment, the respondents in the Writ Petition, has now filed the present appeal.
4. It is the case of the appellants that the appellants are entitled to resume the land upon violation of the conditions of the grant and the resumption of the land on account of the violation of the condition of construction of a Sainik Bhavan cannot be faulted.
5. It is the case of the respondent-association that the initial grant was made on payment of market rate of the land and no conditions were attached to the grant, as the statement in the grant that the grant would be subject to usual conditions contained in the 4 HCJ&RRR,J W.A. No.955 of 2023 annexure to the proceedings, has no meaning, as no such annexure was attached to the proceedings of the grant of land. It is further contended by the respondent-association that even if any such conditions are to be admitted, the same would fall foul under Section 11 of the Transfer of Property Act which stipulates that any restriction on the right of enjoyment of an absolute transfer of land would have to fail.
6. Sri P. Subhash, the learned Government Pleader appearing for the appellants would contend that Board Standing Order 24, which regulates the grant of land, with or without payment of market value, stipulates that the land granted, under Board Standing Order 24, can be used only for the purposes that are stipulated in the order of grant and any violation of the said condition would result in resumption of the land. He would submit that these are the conditions which are usually attached in the annexure and the petitioner taking advantage of the fact that such annexure is not available in the records of the appellants, has now contended that no such annexure was attached to the proceedings of the grant of land.
7. Sri Devalaraju Anil Kumar, learned counsel appearing for the respondent-association, on the other hand, contends that no 5 HCJ&RRR,J W.A. No.955 of 2023 such annexure was attached to the proceedings of grant of land and in any event there is no provision for assumption of land on violation of any condition. He would also submit that construction of the shops is for the benefit of the Ex-servicemen in the area as the shops have been let out and the rents so collected would be used for the benefit of Ex-service men in the area. However, no details of any such application of the rental amounts have been placed before this Court.
8. In reply to these arguments, Sri P. Subhash, the learned Government Pleader would also rely upon Section 31 of the Transfer of Property Act to contend that once there is a condition of resumption upon violation of the terms of the grant, the said land can be resumed, as the grant of land stands invalidated.
9. A perusal of the facts and material placed before this Court would show that there has been a grant of land in favour of the respondent-association wherein the grant is said to have been made for the purpose of constructing the Sainik Bhavan subject to the usual conditions which are attached in the annexure to the said proceedings. However, no annexure has been placed before this Court to consider the said conditions. In the circumstances, this Court would have to hold that no conditions have been stipulated as such in the proceedings granting the land.
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HCJ&RRR,J W.A. No.955 of 2023
10. In the absence of any such conditions, the general guidelines or law relating to such grant of land would have to be looked into. The grant of government land, to private or public institutions or persons is regulated by Board Standing Order 24. Regulation 6 of Board Standing Order 24 reads as follows:-
Condition for the grant of State land \~(i) Lands at the disposal of Government :-A grant of State land whether for religious, educational or other public purpose should always contain the following conditions (1) The land shall be used....................................and for no other purpose.(2)
The Government may resume the land wholly or in part with any buildings thereon, in the event of the infringement of any of the conditions of the grant. In the event of such resumption no compensation shall be payable for any improvements that may have been effected, or other works that may have been executed on the land by the grantee and the grantee shall not be entitled to the repayment of any amount that may have been paid to the Government for the grant. If there are buildings on the land the Government may direct the grantee to remove them.(3)
The Government may resume the land wholly or in part, with any buildings thereon, if in the opinion of the Government the land is required for a public purpose or for conducting mining operations. In the event of such resumption or in the event of the acquisition of the land for any reason, the compensation payable for the land and trees, shall in no case exceed the amount paid for them by the grantee or their value at the time of resumption or acquisition whichever may be less.7
HCJ&RRR,J W.A. No.955 of 2023 (4) In the event of resumption under condition (3), if there are buildings on the land, the Government shall pay compensation for them in accordance with the provisions of condition (5).
...........
11. This regulation stipulates that land granted under Board Standing Order 24 can be used only for the purpose, set out in the order granting the land, and any violation of such condition would result in resumption of the land.
12. Section 11, 31 & 32 of the Transfer of Property Act, 1882 which are relevant in the present purpose, are extracted below:
11. Restriction repugnant to interest created.--Where, on a transfer of property, an interest therein is created absolutely in favour of any person, but the terms of the transfer direct that such interest shall be applied or enjoyed by him in a particular manner, he shall be entitled to receive and dispose of such interest as if there were no such direction.
1[Where any such direction has been made in respect of one piece of immoveable property for the purpose of securing the beneficial enjoyment of another piece of such property, nothing in this section shall be deemed to affect any right which the transferor may have to enforce such direction or any remedy which he may have in respect of a breach thereof.] 8 HCJ&RRR,J W.A. No.955 of 2023
31. Condition that transfer shall cease to have effect in case specified uncertain event happens or does not happen.--Subject to the provisions of section 12, on a transfer of property an interest therein may be created with the condition superadded that it shall cease to exist in case a specified uncertain event shall happen, or in case a specified uncertain event shall not happen.
Illustrations
(a) A transfers a farm to B for his life, with a proviso that, in case B cuts down a certain wood, the transfer shall cease to have any effect. B cuts down the wood. He loses his life-interest in the farm.
(b) A transfers a farm to B, provided that, if B shall not go to England within three years after the date of the transfer, his interest in the farm shall cease. B does not go to England within the term prescribed. His interest in the farm ceases.
32. Such condition must not be invalid.--In order that a condition that an interest shall cease to exist may be valid, it is necessary that the event to which it relates be one which could legally constitute the condition of the creation of an interest.
13. These provisions, namely Section 11 on one hand and Sections 31 and 32 of the Transfer of Property Act, operate in different fields. Section 11 stipulates that if, while transferring an interest in property absolutely, a direction is attached that the said property can be applied or enjoyed by the transferee in a particular manner, the said direction can be ignored and the transferee would 9 HCJ&RRR,J W.A. No.955 of 2023 be entitled to receive and dispose of such interest in the property as if there was no such direction. This would mean that no restriction on the enjoyment of the property can be imposed while transferring the property or interest in the property absolutely. In such circumstances, the question of resumption of property or cancellation of the transfer on account of the refusal of the transferee to abide by the direction restricting the enjoyment would not arise.
14. However, Sections 31 and 32 read together are to be understood to have stipulated that while transferring property, if a condition is added, that the interest created in the property would cease in the event of any specified uncertain event happening with the additional qualification that such event would be treated as a condition for the creation of the interest itself, the land can be resumed on such event happening. This would mean, as in the present case, if Board Standing Order 24 is applicable, that the interest in the property can be treated as extinguished, in the event of the respondent-association constructing anything other than a Sainik Bhavan in the said property.
15. The respondent was aware that the land was being granted to him, under Board Standing Order No.24. It must be held 10 HCJ&RRR,J W.A. No.955 of 2023 that the Respondent was aware of the condition under the Board Standing Order and was bound by it. The violation of the said condition would revert the land to the Government.
16. Accordingly, the Judgment of the learned single Judge is set aside and the writ appeal is allowed.
As a sequel, pending miscellaneous petitions, if any, shall stand closed.
DHIRAJ SINGH THAKUR, CJ R. RAGHUNANDAN RAO, J RJS 11 HCJ&RRR,J W.A. No.955 of 2023 HON'BLE MR. JUSTICE DHIRAJ SINGH THAKUR, CHIEF JUSTICE & HON'BLE MR. JUSTICE R. RAGHUNANDAN RAO WRIT APPEAL No.955 of 2023 (per Hon'ble Sri Justice R. Raghunandan Rao) Dt:04.01.2024 RJS