HIGH COURT FOR THE STATE OF TELANGANA
THE HON'BLE THE CHIEF JUSTICE HIMA KOHLI
AND
THE HON'BLE SRI JUSTICE B. VIJAYSEN REDDY
WRIT APPEAL No.91 of 2020
Date: 10.08.2021
BETWEEN
State of Telangana,
Rep. by its Principal Secretary,
Revenue Department,
Secretariat, Hyderabad
and others.
... PETITIONERS
AND
Dakoji Durgapathy and others.
...RESPONDENTS
Counsel for the Petitioners : GP for Revenue
Counsel for the Respondents : Mr. L. Ravichander, Senior Counsel
for Mr. C. Naresh Reddy
The Court made the following:
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JUDGMENT: (Per Hon'ble Sri Justice B. Vijaysen Reddy) This writ appeal is filed challenging the order of the learned Single Judge dated 13.07.2018 allowing WP.No.40402 of 2017 filed by the respondents.
2. The appellants were the respondents in the writ petition. The relief sought in the writ petition was to declare the action of the respondents in treating the land in Sy.No.228, to an extent of Ac.4.20 guntas situated at Choutuppal Village, Bhongir District as Government land and including the same in the prohibited list as illegal, arbitrary and unconstitutional; to direct the respondents to delete the subject land from the list of prohibited properties under Section 22-A of the Registration Act, 1908 and to direct the respondent No.5 to register and release the documents presented by the petitioners in respect of the subject land.
3. The claim of the petitioners in the writ petition is that they belong to the barber community; their grandfather had applied for assignment of the subject land in the year 1955; the then Tahsildar, Choutuppal Mandal, had recommended assignment of the land in favour of their grandfather; the then Deputy Collector had recommended assignment of land in favour of their grandfather through proceedings No.680/55/A4 dated 13.05.1955. After complying with all the requisite formalities, vide proceedings in Rc.No.5439/55/B-3 dated 03.06.1955, the then District Collector, Nalgonda, had assigned an extent of Ac.18.00 guntas of land in Sy.No.228 of Choutuppal Mandal in favour of their grandfather, late Mangali Narayana. The said land was assigned without imposing any conditions and it was an unconditional assignment. The land was 3 assigned to their grandfather on payment of upset price equal to 16 times of the land revenue.
4. It is stated by the petitioners that the land was not fit for cultivation; their grandfather had spent huge amount for bringing the land under cultivation; after the death of their grandfather, his four sons including the father of the petitioners partitioned the said land, applied for mutation and they were issued pattadar passbooks and title deeds; their family members had been cultivating their respective share of the land. While so, under proceedings No.D4/2823/85 dated 02.06.1985, the District Collector directed the Revenue Divisional Officer, Nalgonda, to take steps to review and cancel the assignment granted in favour of the petitioners. Aggrieved thereby, the petitioners had filed WP.No.7843 of 1985, which was disposed of by order dated 02.01.1988, directing the RDO to conduct an enquiry and submit a report to the District Collector and further, directed the respondents not to disturb the possession of the petitioners till final disposal by the District Collector.
5. It is the case of the petitioners that pursuant to the order passed in the said writ petition, vide Lr.No.E/6241/88 dated 05.06.1989, the RDO submitted a report to the District Collector, stating that the subject land was assigned in favour of the grandfather of the petitioners without imposing any conditions and it was an unconditional assignment. Further, it was stated that the land was assigned on payment of upset price equal to 16 times of the land revenue and the assignment order cannot be reviewed or revised. Based on the aforesaid report, the District Collector withdrew the Proc.No.D4/2823/85 dated 02.06.1985. Thereafter, the petitioners intended to sell a part of the land for their family necessities. 4 However, the respondent No.5 refused to receive the sale documents on the premise that the land is shown in the prohibited list under Section 22-A of the Registration Act.
6. The petitioners contended that the assignments made prior to issuance of G.O.Ms.No.1406 dated 25.07.1958 in the Telangana Area and the assignments made on collection of market value of land, cannot be treated as assigned land so as to the prohibit them from alienation under Section 22-A of the Registration Act. The Government cannot claim rights over such lands. The prohibited list including the subject land was sent by the respondent No.4, who is not the competent authority. It is only the District Collector, who is the competent authority under Section 22-A(1)(b) of the Registration Act.
7. A counter affidavit in opposition was filed by the respondent No.5 stating that the subject land was included in the prohibited list under Section 22-A of the Registration Act on the basis of the list sent by the respondent No.4 and as per Section 5 of the Assigned Lands (Prohibition of Transfers) Act, 1977 (for short 'POT Act'), the subject land is prohibited from registration. It was submitted that as per the Full Bench decision of this Court in VINJAMURI RAJAGOPALA CHARY v. STATE OF A.P. [2016 (1) ALT 550 (FB)] no notification is necessary for Section 22-A(1) (a) to (d) and the subject land, which is an assigned land, comes under the purview of Section 22-A (1)(d) of the Registration Act. Apart from prohibition under the Registration Act, the subject lands are prohibited from registration under Section 5 of the POT Act. Sub-Section (2) of Section 5 of the POT Act mandates that the Registering Officer shall not accept any document relating to transfer of assigned land. Therefore, the authority cannot take up registration of the document.
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8. Under the impugned order, the writ petition was allowed with costs of Rs.1,000/- each to be paid by the respondent No.1 to the petitioners. The learned Single Judge referred to the order dated 03.06.1955 issued by the District Collector, Nalgonda, in proceedings No.5439/55/B-3 assigning Ac.18.00 guntas of dry land in Sy.No.228 of Choutuppal Mandal to the grandfather of the petitioners; report of the RDO dated 05.06.1989 submitted to the District Collector stating that the land was assigned on 03.06.1955 and there were no conditions prescribed in the assignment. The learned Single Judge held that the proceedings dated 15.09.1990 of the RDO, Bhongir, do not support the plea of the respondents that the assigned was made in 1961-1962; merely because it was stated in the said report that there was an entry made in the revenue records in 1961-62, it cannot be presumed that assigned of land to Mangali Narayana was made in 1961-62. A patta would be referred as Laoni Patta if the assignment was made under the Laoni Rules, 1954, but such a nomenclature would not apply to pattas granted after G.O.Ms.No.1406 came into operation with effect from 25.07.1958. The learned Single Judge repelled the argument of the respondents that the assignment made to Mangali Narayana was not in the year 1955, but after issuance of G.O.Ms.No.1406 dated 25.07.1958. Further, noting that the assignment made prior to 25.07.1958 did not mention the condition of non-alienation, the learned Single Judge held that there was no impediment at any point of time for alienation of the subject land and that is why the report dated 15.09.1990 of the RDO had recorded that some alienations of small bits were made by Mangali Narayana, without facing any problem.
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9. Heard Mr. C.V. Bhaskar Reddy, learned Government Pleader for Revenue for the appellants and Mr. L. Ravichander, learned Senior Advocate, appearing with Mr. C. Naresh Reddy, learned counsel for the respondents.
10. The learned Government Pleader contended that the land was assigned in the year 1961-62. As per the revised assignment policy enunciated under G.O.Ms.No.1406 dated 25.07.1958, even the subject lands are prohibited from transfer, as such, they are included in the prohibited list of properties under Section 22-A of the Registration Act. Even the lands assigned under Laoni Rules, 1954, prior to coming into force of the revised assignment policy under G.O.Ms.No.1406 dated 25.07.1958, are prohibited from alienation. The subject lands are heritable, but not alienable. Section 3 of the POT Act not only provides for transfer of assigned lands on or after commencement of the Act, but also declares all transfers of such assigned lands, which took place prior to the commencement of the Act, to be null and void in view of the Registration Act. Under Rule 9(g) of Laoni Rules, 1954, the assignee is only entitled to occupy the land after Podi Work (Sub- Division) is completed; issuance of the patta certainly does not make the petitioners absolute owners; there are no entries in the revenue records from the year 1955-1961 onwards, after the assignment of land. A presumption has to be drawn that the assignment order has been implemented in the year 1961-62 and as such, the conditions prescribed in G.O.Ms.No.1406 dated 25.07.1958, would be applicable to the subject lands.
11. Per contra, the learned Senior Advocate for the respondents submitted that there is no material to show that the subject lands were assigned under the revised assignment policy. It has been held in 7 a catena of decisions by this Court that an assignment under the Laoni Rules do not mention a condition of non-alienation and they fall outside the purview of the POT Act. The report of the RDO dated 05.06.1989, clearly states that there was no condition of non- alienation. Thus, inclusion of the subject lands under the prohibited list is patently illegal.
12. The core issue which falls for consideration in this writ appeal is whether there was a condition of non-alienation or not so as to bring the subject lands under the purview of the POT Act and consequently, include the subject lands in the prohibited list under Section 22-A of the Registration Act.
13. It is considered necessary to examine Section 2(1) of the POT Act which is extracted below for the sake of convenience:
2. Definitions:- In this Act, unless the context otherwise requires,-
(1) "assigned land" means [lands or house sites assigned] by the Government to the [landless or homeless or homeless 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 or homeless poor persons under the relevant law for the time being in force relating to land ceilings; and the word "assigned" shall be construed accordingly;
The above definition makes it clear that a land to be treated as an assigned land, within the meaning of POT Act, should be burdened with a condition of non-alienation.
14. The contention of the learned Government Pleader that the pahani entries in the year 1961-62 show that Laoni Patta was granted to Mangali Narayana is devoid of merits. It is the assignment patta and conditions imposed therein, which will determine the nature of the assignment. The Government, being a custodian of the revenue 8 records including records pertaining to the assignment etc., is duty bound to produce the relevant records to establish the nature of the assignment.
15. The submission made by learned Government Pleader is not supported by any document. On the other hand, the respondents have convincingly established that the assignment of the subject lands was not under the Laoni Rules, 1954 and there was no condition of non-alienation. Moreover, in the report of the RDO dated 05.06.1989, it was clearly pointed out that the assignment did not contain any condition of non-alienation. The assignment granted to Mangali Narayana to an extent of Ac.18.00 guntas under proceedings dated 03.06.1955, is a part of the record and it is clearly mentioned that the patta is granted on collection of upset price equal to 16 times the land revenue.
16. In LETTER SENT FROM PLOT No.338, PARVANT NAGAR, HYDERABAD v. THE COLELCTOR AND DISTRICT MAGISTRATE, R.R. DISTRICT1, it has been held that the land, which is assigned on payment of upset price cannot be treated as an assigned land. We may reproduce para 50 of the judgment as below:-
"50. We are of the view that provisions of Act No. 9 of 1977 will not be applicable to the cases where assignments were made on collection of market value or under Circular 14 except it were granted to the landless poor persons free of market value. Point No. 2 is answered accordingly."
17. For the reasons recorded above, the argument of the learned Government Pleader runs contrary to the report dated 05.06.1989 and is without any legal basis.
1 2008 (4) APLJ 6 9
18. For the reasons stated above, this court does not find any infirmity in the order passed by the learned Single Judge. The writ appeal is devoid of merits and is accordingly dismissed. Pending miscellaneous petitions, if any, shall stand closed with no order as to costs.
_____________ HIMA KOHLI, CJ __________________ B. VIJAYSEN REDDY, J August 10th, 2021 DSK