Order vs The Property Admeasuring An ...
2021 Latest Caselaw 4239 AP

       THE HON'BLE SRI JUSTICE U.DURGA PRASAD RAO

                         Contempt Case No.33 of 2020

ORDER:

This contempt petition is a sordid example of how some public

officers impertinently violate the orders of a constitutional Court with utter

disdain but still cleverly pretend to have tried to implement but were

prevented by some rules which made them helpless.

2. The factual matrix of the case which led the petitioner to file instant

contempt case is thus:

The property admeasuring an extent of Ac.4.93 cents in Sy.No.304/4,

5, 6, 7 and 304/2B situated at Vikruthamala Village, Yerpedu Mandal,

Chittoor District was a Government land assigned to the mother of the writ

petitioner under Ex-Servicemen quota, as she being the widow of ex-

serviceman P. Rangappa, vide DKT No.39/4/1408, dated 10.08.1998 with a

condition not to alienate for a period of 10 years from the date of

assignment. After the death of his mother, the petitioner succeeded the said

land being her son. While so, the petitioner in or about 2016 intended to

alienate his land for his necessities and for that purpose sought market value

particulars from the office of the cotemnor / 2nd respondent but the said

office refused his request on the ground that the land in question was

included in the list of Government lands and insisted the petitioner to obtain

No Objection Certificate (NOC) from the revenue authorities to receive and

process the document for registration.

3. Aggrieved, the petitioner filed W.P.No.25764/2016 before the High

Court of Judicature at Hyderabad for the State of Telangana and the State of

Andhra Pradesh. A learned Single Judge considering the argument of the

petitioner that the Government in G.O.Ms.No.279 Revenue (Assign.I)

Department, dated 04.07.2016 dispensed with the grant of NOC in respect of

the lands assigned to ex-servicemen and freedom fighters where 10 years

period has elapsed from the date of assignment and also considering the

earlier order in W.P.No.23523/2016 on similar subject, allowed the writ

petition in terms of the order passed in W.P.No.23523/2016 meaning thereby

the Sub Registrar was directed to receive and register the document

presented by the petitioner.

4. Thereafter, the petitioner submitted sale deed to contemnor / 2nd

respondent. However, he kept registration pending by assigning number as

P.135/2018. Having awaited for considerable time, the petitioner filed

W.P.No.12491/2019 seeking writ of mandamus declaring the action of the

respondents in not releasing the document in P.135/2018 by registering the

same, as illegal and arbitrary and for consequential direction. This court

having found that assignment was not in dispute and more than 10 years

have elapsed since the date of assignment, and as no NOC was required for

alienation in view of G.O.Ms.No.279, allowed the writ petition against the

respondents, inasmuch as the submission on behalf of respondents,

particularly the contemnor / 2nd respondent that he was waiting for the

communication from Tahsildar, Yerpedu was baseless and untenable. This

Court reiterated that in view of G.O.Ms.No.279, no NOC shall be insisted

for alienation of the subject land and accordingly directed the 2nd respondent

to register the document i.e., P.135/2018 submitted by the petitioner if it is

otherwise in order, within eight weeks from the date of receipt of a copy of

the order.

5. In spite of the 2nd writ order, the contemnor / 2nd respondent did not

register the sale deed. Hence, the instant contempt case.

6. On receiving the notice before admission, the cotemnor / 2nd

respondent filed counter opposing the contempt case. His explanation is as

follows:

Pursuant to the order in W.P.No.23523/2016, the writ petitioner

presented the sale deed and the then Sub Registrar, Thottembedu kept the

document pending by assigning P.No.135/2018 as the subject properties are

prohibited from registration as per the list of prohibitory properties

communicated by the Revenue Authorities. He addressed a letter dated

07.03.2018 to the Tahsildar, Yerpedu seeking clarification as to whether the

Revenue Department has filed any appeal against the order in

W.P.No.23523/2016 and obtained any stay and reply from the Tahsildar was

awaited.

His further explanation is that in the meanwhile, the writ petitioner

filed W.P.No.12491 of 2019 praying to release the pending document

No.P.135/2018 and the High Court passed order dated 11.12.2019 directing

the contemnor / 2nd respondent to register the pending document submitted

by the petitioner. However, as the subject properties are prohibited from

registration as per the latest list of prohibitory properties communicated by

the District Collector, Chittoor vide letter No.Roc.F7/4495/2013, dated

07.08.2018 pursuant to the full bench judgment of High Court of Andhra

Pradesh in W.A.Nos.343 of 2015, 232 of 2012 and 352 of 2013, the

contemnor / 2nd respondent cannot proceed with the registration of the

document in respect of the prohibitory properties unless those properties are

deleted from the prohibitory properties list. He sought for legal opinion with

regard to registration and thereafter passed order dated 01.02.2020 under

Section 71 of the Registration Act refusing to register the properties. His

submission is that as a Sub Registrar he is bound by the provisions of the

Stamp Act and Registration Act and the instructions issued by the authorities

from time to time. As the subject properties are not deleted from the list of

prohibitory properties, he could not proceed further with the registration of

the subject properties. He further submitted that the petitioner without

waiting for eight weeks time granted by this Court, filed the present

Contempt Case on 07.01.2020 itself. Finally, he stated that unless the

subject properties are deleted from the prohibitory properties, the CCA

system of the Registration Department will not accept registration and

documents that are presented for registration of the prohibitory properties.

He would thus submit that there is no violation or disobedience muchless

wilful disobedience on his part in respect of the orders passed by this Court

and he has great respect and highest regard to the orders passed by this Court

and prayed to close the contempt case.

7. Heard Sri Srinivasulu Kurra, learned counsel for the petitioner and

learned Government Pleader for Registration and Stamps representing

Contemnor / 2nd respondent.

8. On a conspectus of law and facts, this Court is in total disagreement

with the explanation offered by the contemnor / 2nd respondent for non

registration of the document. It must be said that instead of being supported

by a plausible legal explanation, the disobedience on the part of the

contemnor / 2nd respondent was backed by sheer obstinacy and contumacy.

Now it is to be seen how fallacious the explanation-cum-argument of the

contemnor /2nd respondent is.

9. History shows, the proposal for assignment of land to ex-servicemen

was mooted in G.O.Ms.No.743, Revenue (B) Department, Government of

Andhra Pradesh, dated 30.04.1963. The Government considering the heavy

responsibilities cast on the Indian Jawans to safeguard the Country against

the aggression in our boarders by the Chinese army, have decided to assign

unassigned waste land at its disposal to the Jawans after their demobilization

and also to the families of the Jawans who have laid down their lives while

defending the boarders, with certain conditions. With this avowed object

G.O.Ms.No.743 was brought forth. It was stated in the said G.O that each

Jawan would be eligible for grant an extent of Ac.2.50 cents of wet or

Ac.5.00 cents of dry land provided that the total extent of land already

owned plus the land assigned to him, shall not exceed Ac.2.50 wet or

Ac.5.00 dry. It is further mentioned that the grant of lands will be subject to

certain conditions one of which is that the land assigned should not be sold

or otherwise alienated for a period of 10 years.

10. Be that it may, when ex-serviceman proposed to alienate the assigned

lands after the efflux of restricted period, it appears the Registration

Department took objection on the ground that the assigned lands were

prohibited from alienation despite the clear tone of G.O.Ms.No.743. So the

assignees started seeking No Objection Certificate (NOC) from the

Government through concerned District Collectors for alienation. In that

context, the Collector, Visakhapatnam addressed a letter to the Government

seeking clarification whether at all the ex-serviceman / assignee was

required to obtain NOC for alienating his assigned land 10 years after

alienation. Clarifying the same, the Government issued G.O.Ms.No.1117,

Revenue (Assignment-I) Department, dated 11.11.1993 stating thus:

"3. The Commissioner of Land Revenue, has requested to confirm his presumption to the effect that, Ex-servicemen may be permitted to sell away the assigned lands after 10 years from the date of assignment, as per the provisions of G.O.Ms.No.743 Revenue (B) Department, dated 30.04.1963.

4. Government have examined the matter in detail. In partial modifications of the orders in G.O.1st read above, Government accordingly direct that Ex-servicemen are free to sell away their assigned lands after a period of ten years.

5. All other conditions specified in the G.O. 1st read above shall continue.

6. These orders shall come into force with immediate effect"

11. In spite of above G.O, it appears NOCs were sought for by the Ex-

servicemen and freedom fighters to alienate their assigned lands and a

situation had arisen where some Tahsildars / Revenue Divisional Officers

issued NOCs without observing the genuineness of the records and also

issuing NOCs to the third parties who purchased the land basing on the

bogus records. In that context, G.O.Ms.No.307, Revenue (Assignments.I)

Department, dated 06.06.2013 was issued by the Government of Andhra

Pradesh with certain directions. It was stated, District Collector shall be the

authority competent to issue NOCs and not any authority below him; the

District Collector shall get enquiry report from the departmental officials

about the genuineness of the assignees and status of the land on ground etc;

in case the market value of the land is less than Rs.50 lakhs, the District

Collector is competent to issue NOC and exceeding that value the District

Collector shall send proposals to the Chief Controller of Land

Administration seeking permission to issue NOCs and the Chief

Commissioner of Land Administration in turn forward the proposal to the

Government who will take a decision on the desirability of issuing NOCs;

the District Collector shall verify the grounds put forth by the applicant and

take a decision on the grant of NOCs, keeping in view the financial

condition of the applicant and the genuineness of the grounds that have been

cited by him; he shall also assess whether any alternative means are

available to meet the expenses; NOCs shall not be issued to the third party

applicant who had purchased the land from the original assignees or their

legal heirs without obtaining NOC from the District Collector earlier.

12. After issuance of G.O.Ms.No.307, representations from 3rd party

purchasers have been flooded to the Government stating that they were not

being issued NOCs although they were genuine purchasers from the original

assignees or subsequent purchasers and thereby they were facing difficulty

in further alienation of assigned lands. Considering their plight

G.O.Ms.No.279 Revenue (Assign.I) Department, dated 04.07.2016 was

passed by the Government of Andhra Pradesh as follows:

"5. In view of the above difficulties faced by the general public, Government have reviewed the entire policy after obtaining necessary proposal from the Chief Commissioner of Land Administration and consulting the District Collectors.

6. Accordingly, Government after careful examination of the matter, issue the following orders in supersession of the orders issued in G.O.Ms.No.307, Revenue (Assn.I) Department, dt: 06.06.2013:-

(i) The procedure of issuing 'NOC' shall be dispense with. There shall be no need for obtaining 'NOC' in all cases of assignment of Ex-Servicemen and Freedom Fighters in which a period of 10 years has expired and there is no dispute on the land with the Government.

(ii) All such cases without dispute shall be deleted from the prohibitory list under Section 22-A of Registration Act, 1908 and furnished to the Registration Department.

(iii) In respect of cases in which there is a dispute with Government about the genuineness of the assignment or otherwise a list of such cases shall be prepared by District Collector and furnished to Registration Department by following the procedure U/s 22-A. the Sub-Registrar shall enter the details of such disputed lands in the online records deleting all other lands in which there is no dispute.

7. The Spl.C.S & Chief Commissioner of Land Administration and the District Collectors shall take further necessary action accordingly in the matter."

13. Thus, a perusal of chronology of events and G.Os issued from time to

time would show that though earlier NOC was required for alienation of

assigned lands by ex-servicemen / freedom fighters even after restriction

period of 10 years was over, however, the same was ultimately dispensed

with by virtue of G.O.Ms.No.279, dated 04.07.2016 making it clear that

there shall be no need for obtaining NOC in the case of ex-servicemen and

freedom fighters where the period of 10 years has expired after assignment

and where there was no dispute on the land with the Government. It is

further made clear that in all such cases where there was no dispute

regarding assignment, such property shall be deleted from the list of

prohibitory properties under Section 22A of the Registration Act and furnish

to the Registration Department. Only in cases where there is a dispute

regarding the genuineness of the assignment, the District Collector shall

furnish the list of properties to Registration Department for following

procedure under Section 22A.

14. It should be noted that G.O.Ms.No.279, dated 04.07.2016 is

admittedly in vogue and it is not brought to the notice of this Court that the

same has either been modified or superseded by any subsequent G.Os.

15. The efficacy of G.O.Ms.No.279 was discussed in a number of

decisions. In W.P.No.17338/2019, this Court in its order dated 27.11.2019

held that if an ex-serviceman intends to sell his assigned land 10 years after

assignment, no NOC is required from the concerned authority as

G.O.Ms.No.279, exempted such NOC and accordingly allowed the writ

petition directing the registering authority to receive the sale deed and

register the same. In W.P.No.18332/2019 also this Court passed the similar

order dated 19.11.2019 qua G.O.Ms.No.279.

16. Coming to the present case, as already noted supra, admittedly the

subject land was assigned to the mother of the writ petitioner under ex-

servicemen quota vide DKT No.39/4/1408, dated 10.08.1998 and the

assignment is not in dispute. It is also not in dispute that after lapse of 10

years, the petitioner who succeeded the subject property from his mother

proposed to alienate the land in favour of the 3rd parties. Though there could

be no objection for alienation in view of G.O.Ms.No.279, still the

predecessor of 2nd respondent objected and directed the petitioner to obtain

NOC. After petitioner obtained an order dated 27.08.2016 in W.P.No.

25764/2016, the contemnor / 2nd respondent kept the document pending

registration on the very same ground that subject land was an assigned land

and it is included in the list of prohibitory properties and drove the petitioner

to the Court once again. This Court again passed an order directing the

contemnor / 2nd respondent to register the document within eight weeks. At

this juncture, on the pretext that the Collector has sent latest list of

prohibitory properties in terms of the judgment in Vanjamuri Rajagopala

Chary v. Principal Secretary, Revenue Department, Hyderabad1 which

list contains the subject property also, the contemnor / 2nd respondent passed

an order under Section 71 of the Registration Act refusing to register the

document. In the refusal order dated 01.02.2020 also the case of the

contemnor / 2nd respondent is that the subject land is classified as assigned

land in the list of prohibitory properties furnished by the District Collector,

Chittoor under Section 22A(1) of the Registration Act and therefore he has

no other go except refusing registration.

17. The pertinent question is whether the cotemnor / 2nd respondent is

legally justified to pass an order under Section 71 of the Registration Act

refusing to register the document on the very same ground that the subject

land is classified as assigned land and it has been incorporated in the list of

prohibitory properties under Section 22A(1) of the Registration Act sent by

the District Collector, Chittoor, in spite of the fact that the Constitutional

2016(1)ALT550 = MANU/AP/0791/2015

Court, not once but twice, has held that though the subject property is an

assigned land at the inception and was included in the list of prohibitory

properties under Section 22A(1) of the Registration Act, still by virtue of

G.O.Ms.No.279 Revenue (Assign.I) Department, dated 04.07.2016, there

could be no objection for its alienation and consequent registration.

18. In view of such clear pronouncement, the cotemnor / 2nd respondent

has no legal authority to reject the document subsequently on the same

ground. This is an act of clear violation. Vanjamuri Rajagopala Chary's

(1 supra) case referred to by the contemnor / 2nd respondent is of no avail to

him. In the said judgment, the full bench of Common High Court of Andhra

Pradesh has held that so far as the properties covered by Section 22A(1) (a)

(b) (c) (d) which are sought to be registered are concerned, there was no

requirement of Gazette Notification for their prohibition and suffice that the

concerned authorities may send the list of such properties to the concerned

registration authorities to refuse registration. However, properties

mentioned in Section 22(A)(1) (e) are concerned, Gazette Notification is

essential. The full bench further held that the registrar would be justified in

refusing the registration of documents in respect of properties covered by

Clauses (a) to (d) of Sub Section (1) of Section 22A, provided the authorities

contemplated under guidelines have communicated the list of prohibitory

properties under these clauses.

19. There is absolutely no demur about the ratio in the above judgment.

When lists of the properties sent by the concerned authorities cover a

particular property under Clauses (a) to (d) of Section 22A(1), the registering

authority can refuse registration. In the instant case the subject property

being an assigned land, the same is covered by Section 22A(1)(a). However,

the Full Bench judgment has not ended there. On the other hand, it has

given liberty to a person who is aggrieved by the enlistment of property in

any of the categories under (a) to (e) to seek appropriate relief. The

judgment says that he can either apply to concerned authorities to delete

such property from the list or he can approach to appropriate forum

including civil Court for seeking appropriate declaration for deletion of his

property / land from the list of prohibitory properties or for any other

appropriate relief. So when a particular property is listed in any one of the

categories of prohibitory properties and registration is refused on that

ground, the matter will not be ended there. Aggrieved person can approach a

court of law for suitable relief. In the instant case, running the risk of

pleonasm, it must be said that the petitioner has invoked the writ jurisdiction

twice and obtained a suitable direction to the contemnor / 2nd respondent to

register the document. In the teeth of those orders, the contemnor / 2nd

respondent is not expected under law to pass order under Section 71 of the

Registration Act refusing to register the document projecting the very same

ground which was rejected twice. It must be noted that orders in this case

are passed not only against the registering authority but also against the State

Government. Therefore, an obligation is cast on all the concerned

departments of the Government to act upon and delete the subject property

from the list of prohibitory properties and facilitate the registration. It

should be an inter departmental cohesive action of cohorts with which, the

petitioner is not concerned. An avid citizen only awaits for an intime

implementation of a Court order. Therefore, the contemnor / 2nd respondent,

upon knowing about passing of the order by this Court, should have obtained

expeditious order from concerned revenue authority deleting the subject

property from list of prohibitory properties to enable him to affect the

registration. Instead of undertaking such exercise, on the guise that the

subject property is covered by the list of prohibitory properties sent by the

Collector, Chittoor, he simply passed the order under Section 71 of the

Registration Act rejecting the registration. Such tergiversative act cannot be

countenanced and should be dealt with firmly since it amounts to civil

contempt under the provisions of Contempt of Courts Act, 1971.

The Contempt Case is accordingly allowed and contemnor / 2nd

respondent is directed to appear in person before this Court on 09.11.2021

for hearing on imposition of punishment.

_________________________ U. DURGA PRASAD RAO, J

25th October, 2021 krk

THE HON'BLE SRI JUSTICE U.DURGA PRASAD RAO

Contempt Case No.33 of 2020

25th October, 2021 krk