Andhra Pradesh High Court - Amravati

Pulla Nageswara Rao, vs Government Of Andhra Pradesh, Rep ... on 14 July, 2022

    THE HON'BLE SRI JUSTICE G. RAMAKRISHNA PRASAD

               WRIT PETITION No. 7528 OF 2009


ORDER:

Heard Smt. S. Parineetha, learned counsel for the Writ

Petitioner and Sri Y.Subba Rao, learned Government Pleader for

Revenue.

2. The prayer in the Writ Petition is as follows:

"The Writ Petitioner seeks mandamus to set aside the Orders of the 3rd Respondent (The Tahsildar, Madanapalli Mandal, Chittoor District) in proceedings in ROC.A/1560/2007, dated 03.01.2008 served on the Writ Petitioner on 06.02.2009, after declaring the same as illegal, arbitrary and violative of principles of natural Justice and Article 300-A of Constitution of India and consequently refrain the Respondents from interfering with and taking possession of the land in Sy.No.758/4 of Basinikonda Village, Madanapalli Mandal, Chittoor District to an extent of Ac.2-80 cents".

3. Smt. S.Parineetha, learned counsel for the Writ

Petitioner submits as under:

a) The Writ Petitioner is the bonafide auction purchaser of an extent of Ac.2-80 cents of land situated in Sy.No.758/4 of Basinikonda Village, Madanapalli Mandal, Chittoor District. She has purchased this property in a public auction dated 25.05.2006.

            b) This     land     originally      belonged        to      one
               Smt.C.Vimalamma.           Smt. C.Vimalamma was an

assignee and holder of DKT patta under the Andhra Pradesh Assigned Lands (Prohibition of Transfers) Act, 1977 (for short, 'the Act of 1977').

c) She has mortgaged this land of an extent of Ac.2-80 cents before the District Cooperative Central Bank,

Madanapalli Branch for obtaining loan and defaulted in repaying the said loan amount.

d) Proceedings bearing certificate No.25/05-06, dated 09.03.2006 was issued under Section 71 of A.P. Cooperative Societies Act by the Sale Officer of the District Cooperative Central Bank, Madanapalli Branch.

e) E.P.No.42/05-06 was filed by the Secretary, Vempally P.A.C.S. and consequently Ac.2-80 cents of land which was mortgaged by Smt.C.Vimalamma was sold in an open auction held on 25.05.2006, which was purchased by the present Writ Petitioner as being the successful bidder.

f) The Cooperative Society namely the Vempally P.A.C.S. has confirmed the sale in the name of the Writ Petitioner under Section 70 of the A.P. Cooperative Societies Act and accordingly proceedings were issued to the Registrar of the Cooperative Societies, Chittoor District under Rule 52 of A.P. Cooperative Societies Rule, 1964 vide R.C.No.E.P.No.42/05-06, dated 28.06.2006.

g) Possession of property was handed over to the Writ Petitioner on 28.06.2006 on payment of total sale consideration. The Writ Petitioner was in possession of the property ever since that date and was enjoying the property without any interference from any quarters whatsoever. The Writ Petitioner has also raised coconut trees in this land by setting up a bore well for supplying water.

h) When the Writ Petitioner approached the Revenue Authorities to get her name mutated in the Revenue Records, her attempts were in vain.

i) While these attempts approaching the Revenue Authorities continued for a considerable time, the

Writ Petitioner has learnt through the Tahsildar that by proceedings dated 03.01.2008 the DKT patta granted in the name of Smt C.Vimalamma were cancelled by the Tahsildar, Madanapalli in ROC.A/1560/2007, dated 03.01.2008.

4. It is pertinent to note that while the auction took place

on 25.05.2006, the DKT Patta of the original owner was cancelled

on 03.01.2008 by proceedings bearing ROC.A/1560/2007. It is

further pertinent to state that in this proceeding it has also been

mentioned that a Notice was issued to the assignee proposing

cancellation of the assigned DKT patta by letter dated 16.11.2007

and seeking her presence on 30.11.2007 for an enquiry; whereas

the assignee has not received the Notice and not attended before

the Tahsildar. The relevant portion of the proceeding reads:

"Accordingly, a notice was issued to the assignee in this office even No. Dt. 16-11-2007 with a direction to attend this office before Tahsildar, Madanapalle on 30.11.2007 to offer her explanation as to why the DKT patta granted should not be cancelled and resumed to Government for public purpose i.e. providing house sites to the weaker section people. The assignee has not received the notice and not attended before Tahsildar, Madanapalle, for filing of explanation on the above notice".

5. This cancellation of DKT patta vide proceedings

bearing ROC.A/1560/2007, dated 03.01.2008 are now challenged

by the Writ Petitioner.

6. Section 6 of the Act of 1977 reads as under:

"6. Exemption: Nothing in this Act shall apply to the assigned lands held on mortgage by the State or Central Government, any local authority, a co-

operative society, a scheduled bank or such other financial institution owned, controlled or managed by a State Government or the Central Government, as may be notified by the Government in this behalf ".

7. Sri Y.Subba Rao, learned Assistant Government

Pleader for Revenue has stated across the bar, on instructions,

that the land in question in Sy.No.758/4 of an extent of Ac.2-80

cents stood in the name of S.Imambi as pattadar and enjoyer vide

1-B Khatha No.13 which was not tallied with manual ROR 1-B

on record the confirmation of sale by the respective Cooperative

Society.

8. As seen from the record, the Writ Petitioner has filed

Annexure P1 bearing E.P.No.42/05-06 issued by the Special

Category Deputy Registrar, Officer on Special Duty, The Chittoor

District Cooperative Central Bank Limited, Chittoor, dated

28.06.2006 confirming the sale. It is, further, needless to state

that this confirmation of sale is much prior to the proceedings of

the 3rd Respondent bearing ROC.A/1560/2007, dated 03.01.2008.

9. Section 6 of the Act of 1977 exempts the assigned

lands held on mortgage by a Cooperative Society from the purview

of the Act of 1977. This means, the moment the lands which are

assigned under the Act of 1977 are mortgaged by the Assignee, the

Revenue Authorities would have no domain or control over such

lands. Therefore, post mortgage, any proceedings initiated by the

Revenue to resume the land against the interest of assignment

would be non-est in the eye of law. Hence, the proceedings bearing

ROC.A/1560/2007, dated 03.01.2008 have to be declared as non-

est in the eye of law and therefore void.

10. In support of the submissions of the Writ Petitioner,

Smt. S.Parineetha, learned counsel for the Writ Petitioner has cited

a Judgment dated 03.01.2022 passed in Writ Appeal No.921 of

2021, wherein a Division Bench of this Hon'ble Court had held at

para No.9 as follows:

"9. Thus, when mortgage of an assigned land in favour of a co-operative society registered or deemed to have been registered under the Act of 1964 does not amount to alienation, in terms of Explanation to Section 2(1) of the Act of 1977, mortgage of the subject land in favour of the bank, which is a co-operative society under the provisions of the Act of 1964, cannot be considered as illegal. Once the mortgage in favour of the bank is considered as legal and valid, the consequences provided for recovery of mortgage money would follow, including sale of mortgaged property by the bank, and in such circumstance, the land would lose the character of assigned land. Further, it is to be noted that Section 6 of the Act of 1977 exempts application of the said Act to the assigned lands held on mortgage by the State or Central Government, any local authority, a co-operative society, a scheduled bank or such other financial institution owned, controlled or managed by a State Government or the Central Government, as may be notified by the Government in this behalf. In that view of the matter, the bar under Section 3(2) of the Act of 1977 would not apply to the subject land".

11. This Judgment was rendered by relying on an earlier

Judgment of this Court reported in 2009 (2) ALD 250 (DB) titled

as Sub Registrar, Srikalahasti, Chittoor District v.

K.Guravaiah. The learned counsel for the Writ Petitioner also

cited another Judgment of this Court rendered by a learned Single

Judge in Writ Petition No.13586 of 2019, dated 08.03.2021.

12. In view of the foregone discussion, the Writ Petition is

allowed. The proceedings bearing ROC.A/1560/2007, dated

03.01.2008 passed by the 3rd Respondent are held to be arbitrary

and illegal and hence set aside as being non-est in the eye of law.

The Official Respondents are directed to effect mutation in the

Revenue records in favour of the Writ Petitioner within a period of