Andhra Pradesh High Court - Amravati

The Avilala Cooperative House ... vs The State Of Andhra Pradesh, on 1 March, 2023

          HONOURABLE SMT. JUSTICE V. SUJATHA

              WRIT PETITION No.40087 of 2015


ORDER:

The present writ petition came to be filed under Article

226 of the Constitution of India seeking the following relief:

"...to issue writ, order or a direction, more particularly one in the nature of Writ of Mandamus declaring the action of the respondents 2 & 3 in including the lands admeasuring Ac.1.92 cents in Sy. No.497/2B, Ac.1.92 cents in Sy. No.497/3B, Ac.2.56 cents in Sy. No.497/4, Ac.0.78 cents in Sy. No.497/5B, Ac.0.80 cents in Sy. No.497/6B, Ac.0.70 cents in Sy. No.497/7B, Ac.0.80 cents in Sy. No.497/8B, Ac.2.25 cent in Sy. No.499/2A of Avilala Village accounts, Tirupathi Rural Mandal, Chittoor District in the list of prohibited lands under the provisions of A.P. Assigned Lands (Prohibition of Transfers) Act, 1977 and communicating it to the 4th respondent as wholly arbitrary, illegal, unjust, void, contrary to law and unconstitutional and to issue a consequential direction to the 4th respondent not to refuse registration of documents in respect of the lands, Ac.1.92 cents in Sy. No.497/2B, Ac.1.92 cents in Sy. No.497/3B, Ac.2.56 cents in Sy. No.497/4, Ac.0.78 cents in Sy. No.497/5B, Ac.0.80 cents in Sy. No.497/6B, Ac.0.70 cents in Sy. No.497/7B, Ac.0.80 cents in Sy. No.497/8B, Ac.2.25 cent in Sy. No.499/2A of Avilala Village

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accounts and to pass such other and further orders..."

2. The brief facts of the case are that, the Avilala Co-

operative House Building Society Limited is a Society registered

under the A.P. Co-operative Societies Act, having registered

No.S.835 and that the Society is represented by its Secretary,

who is empowered to represent, to sue or to be sued and to

defend the interest of the Society. On 17.09.1992, i.e., initially,

the Society submitted proposals to the Divisional Co-operative

Officer, Tirupathi, with 40 members to accord permission to

form a Co-operative House Building Society under the name and

style of "The Avilala Co-operative House Building Society" and

the said request was considered by the competent authority,

and directed the Chief Promoter of the petitioner-Society to

deposit a sum of Rs.15,000/- towards share capital and submit

an agreement of sale of the land, which is to be not less than

Ac.5-00 cents to be distributed among the members of the

Society.

3. Accordingly, the Chief Promoter of the petitioner-

Society deposited the said amount towards registration fee of

the Society and also entered into an agreement of sale for the

purchase of lands in Sy. Nos.497/2, 497/3 and 497/4 with one

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B. Narayanaswamy and Yasodamma, who were the absolute

owners and enjoyers of the lands in the said survey numbers

and submitted all the relevant documents to the Divisional Co-

operative Officer, Tirupathi. Thereafter, the proposals of the

petitioner-Society have been forwarded through proper channel

to the Commissioner of Co-operation & Registrar of Co-operative

Societies, Hyderabad, who in turn, permitted the Divisional Co-

operative Officer, Tirupati to register the Society and thereafter,

the Divisional Co-operative Officer, Tirupathi provisionally

registered the Society as Regd.No.S.62 and issued certificate,

with certain conditions, namely that the Society shall get the lay

out approved by TUDA and also admit the members not less

than 50 and further directed the petitioner-Society to deposit an

additional share capital of Rs.35,000/-, which was also

deposited by the petitioner-Society.

4. Subsequently, the strength of the members of the

Society increased and the members are more than 200 and in

view of the same, the Chief Promoter thought of purchasing

more land than the extent that was already secured by way of

agreement of sale with the said B. Narayanaswamy and

Yasodamma. Consequently, the petitioner-Society requested the

Deputy Registrar of Co-operative Societies, Tirupathi, to accord

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permission for the purchase of more land in Sy. Nos.499/2,

497/5, 497/6, 497/7 and 497/8.

5. After duly obtaining permission from the Divisional

Co-operative Officer, the petitioner-Society have purchased the

above stated lands under separate registered sale deeds in good

faith and for valuable consideration. After purchase of the said

properties, the Society spent considerable amounts for leveling

and developing the lands, requested the vendors to obtain a

certificate from the Revenue Divisional Officer, Tirupathi in

order to get an approved lay-out from TUDA. The land

owners/vendors applied for a certificate from the Revenue

Divisional Oficer, Tirupathi and the said authority after due

enquiry furnished the certificate in L.Dis.3993/92, dated

03.03.1993, holding that the subject lands of Avilala Village are

patta lands, which are under the possession and enjoyment of

the vendors of the petitioner-Society.

6. On the request of the petitioner-Society to change

the use of land from agriculture to house plots, the TUDA,

accepted the same, vide endorsement in R.O.C.

No.1361/G1/93, dated 16.09.1993, and directed the petitioner-

Society to submit lay-out plan, xerox copies of sale deeds along

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with a certificate from the R.D.O., Tirupathi. In terms of the said

direction of TUDA, the petitioner-Society, submitted all the

relevant documents, along with plan and also remitted a

scrutiny fee of Rs.600/- vide Challan No.209, dated 16.12.1993.

Thereafter, TUDA after perusing all the documents approved the

lay-out tentatively in ROC.No.24/G/93, dated 18.02.1994. After

the tentative approval, the petitioner-Society approached the

Divisional Co-operative Officer, Tirupathi for grant of final

registration and accordingly, the Deputy Registrar of Co-

operative Societies, Tirupathi forwarded the proposals to the

District Co-operative Officer, Chittor, who in turn, submitted

the same to the Commissioner of Co-operative Societies, Andhra

Pradesh, Hyderabad, through the District Collector, Chittoor

and after the grant of permission by the Commissioner, the

Deputy Registrar of Co-operative Societies, Tirupati had issued

a final Registration Certificate under Registration No.S.835, in

Rc.No.3012/92-D, dated 17.08.1994. Thus, the petitioner-

Society converted the lands, so purchased, into plots by

obtaining necessary permission and clearance from the

authorities.

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7. Thereafter, the Society transferred several plots in

favour of its members under registered sale deeds, which were

entertained by the 4th respondent herein.

8. While the matter being so, when the 3rd respondent

herein illegally tried to interfere with the possession and

enjoyment of the members of the Society and tried to dispossess

them, the petitioner's Society instituted a suit O.S. No.13 of

2000 on the file of the Court of the V Additional District Judge,

Tirupati and on contest by the defendants therein and the

respondents 2 and 3 herein and after duly conducting and

enquiry , the suit was decreed vide decree and judgment dated

20.11.2012 and the said judgment has become final since no

appeal has been preferred against the above said decree and

judgment by the respondents 2 and 3. As such, the judgment

and the observations thereon are binding on the respondents 2

and 3 and TUDA.

9. The main grievance of the petitioner is that in spite

of all these facts, when the Society intended to execute sale

deeds in favour of its remaining other members by transferring

the plots, the Sub-Registrar i.e., the 4th respondent herein had

refused to register the said properties on the ground that the

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said properties are included in the prohibitory list prepared by

the Revenue Department and communicated the same to him

and insisted to obtain NOC from the competent Revenue

authorities and delete the subject land from the prohibitory list

prepared and communicated by the Revenue Department,

challenging which the present writ petition is filed.

10. The 3rd respondent filed counter affidavit stating

that Avilala village of Tirupati Rural Mandal is ryothwari village

and survey settlement operations were completed in the year

1916 and as per Resurvey Settlement Register of Avilala village,

the land in Sy.No.497 admeasuring an extent of Ac.18.69 cents

is classified as Assessed Waste Dry. It is also stated that the

land was sub-divided for eventual assignment and the subject

lands in Sy.No.497/2 admeasuring an extent of Acs.2.28,

Sy.No.497/3 admeasuring an extent of Acs.2.28 cents,

Sy.No.497/4 admeasuring an extent of Acs.2.56 cents,

Sy.No.497/5 admeasuring an extent of Acs.1.06 cents,

Sy.No.497/6 admeasuring an extent of Acs.1.06 cents and

Sy.No.497/7 admeasuring an extent of Acs.1.06 cents,

Sy.No.497/8 admeasuring an extent of Acs.1.07 cents and

Sy.No.499/2 admeasuring an extent of Acs.3.26 cents were

granted DKT Pattas with non-alienable condition under normal

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dharakasth rules after issuance of G.O.Ms.No.1142, dated

18.06.1954.

11. It is further stated that since the lands are assigned

lands, all the rights are vested with the Government and

transactions over the lands are prohibited and the petitioner-

Society based on the sale transactions is claiming right over the

subject lands and without having any right over the properties

covered in the registered sale deeds does not provide any right

and title to anybody.

12. It is also further stated that having regard to the

suit in O.S.No.13 of 2000, the said suit was allowed and limited

to the permanent injunction only, but not for right and title over

the subject lands and further stated that on filed inspection of

the subject lands, the lands are covered with thorny bushes and

no house site lay out has been formed, and not existing on

ground even today, therefore the injunction orders does not

apply.

13. It is further stated in the counter affidavit that since

the subject lands were assigned after 18.06.1954 with non-

alienable condition, the lands were kept under Section 22A(1)(a)

i.e. category of assigned lands and 22A(1)(b) i.e. under category

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of Government lands prohibiting registration and since the

lands were assigned after G.O.Ms.No.1142, dated 18.06.1954,

with non-alienable condition, all rights are vested with the

Government.

14. The 4th respondent had filed counter affidavit

stating that the survey numbers 497/2B, 497/3B, 497/4,

497/5B, 497/6B, 497/7B, 497/8B, 499/2A Situated at Avilala

Revenue Village of Tirupati Rural Mandal are included in the list

of prohibited properties communicated by the Tahsildar,

Tirupati Rural Mandal vide his letter No.Roc/D/291/2012,

dated 24.03.2012 and the properties covered by the above said

survey numbers are published in District Gazette No.07/2015,

dated 29.04.2015, vide District Collector, Chittoor File

No.F2/7509/2014, dated 07.07.2015, in pursuance of a

notification issued under Section 22A of the Registration Act,

1908 and therefore the said lands are prohibited from

Registration.

15. It is further stated that it is true that a document

purporting to be a gift deed executed on 07.03.2015 by Sri C.

Rama Chandra Naidu in favour of his son Babu Naidu and

presented for Registration of a plot No.56 in survey numbers

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497/2, 497/3, 497/4, 497/5, 497/6, 497/7, 497/8 and 499/2

situated in Avilala revenue village of Tirupati Rural Mandal,

Chittoor district and as per the titles in the document, the said

Gift Deed has been executed in pursuance of orders dated

11.03.2014 issued by this Court in W.P. No.2868 of 2014,

Which is held as under;

"Having regard to the submissions made, there shall be an interim direction directing the Sub-Registrar, Tirupati Rural, Chittoor district (third respondent), to receive and process the Deed of Conveyance in respect of lands in Sy. Nos.497/2, 497/3, 497/4, 497/5, 497/6, 497/7, 497/8 and 499/2 of Avilala village, Tirupati Rural Mandal, Chittoor District, if the letter of the Revenue Divisional Officer wide letter No.L.Dis.3993/92, dated 03.03.1993, to the Vice-Chairman, Tirupati Urban Development Authority, Tirupati, is in force and release the same if the same is in accordance with the Registration Act, 1908 and the Indian Stamps Act, 1899. However, it is made clear that any such registration shall abide the result of the writ petition."

16. It is further stated that the said Gift Deed kept

pending and assigned pending document No.23 of 2015 and in

pursuance of directions of this court, a letter has been

addressed by this office to RDO, Tirupati, seeking clarification

whether the letter No.L.DIS.3993/92, dated 03.03.1993 in

respect of Avilala Revenue Village pertaining to Sy.Nos.497/2,

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497/3, 497/4, 497/5, 497/6, 497/7, 497/8 and 499/2

addressed to TUDA, Tirupati by their office was true and if so,

whether it is still in force and no reply was received from

the RDO, Tirupati.

17. It is also stated that Tahsildar, Tirupati Rural, vide

his Letter No.ROC/D/291/2012, dated 24.03.2012

communicated the updated and latest list of prohibited

properties in supersession of previous lists furnished by the

Revenue authorities and the said latest list is in force and is

being followed by this office for registration purpose and the Sy.

Nos.497/2B, 497/3B, 497/4, 498/5A, 497/5B, 497/5C,

497/6A, 497/6B, 497/6C, 497/7A, 497/7B, 497/7C, 497/8A,

497/8B, 497/8C and 499/2A, 499/2B are classified as

Government lands and are included in the above said latest

prohibited property list i.e. on 2403.2012.

18. It is further stated that the registration of Plot

No.56 covered by survey numbers 497/2, 497/3, 497/4, 497/5,

497/6, 497/7, 497/8 and 499/2 of Avilala village of Tirupati

Rural Mandal is prohibited and as such, the said document

related to transfer of immovable property classified as

government land which is prohibited for registration as per

section 22A(1)(b) of the Registration Act, 1908 (as amended by

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ACT 19 of 2007) and therefore, registration of the said pending

document was refused.

19. It is further stated in the counter affidavit that the

Registering Officer, has no power to adjudicate the title of the

property and he is strictly bound by the provisions of the Indian

Stamp Act, 1899 and Registration Act, 1908 and in the instant

case, the survey numbers 497/2B, 497/3B, 497/4, 497/5B,

497/6B, 497/7B, 497/8B, 499/2A of Avilala village are

classified as Government Lands/Assigned Lands which are

prohibited from registration.

20. On perusal of the counter affidavits of both the

respondent Nos.3 and 4, it is clear that the lands have been

notified and the survey numbers have been published in the

District Gazette No.07/2015, dated 29.04.2015, vide District

Collector, Chittoor File No.F2/7509/2014, dated 07.07.2015, in

pursuance of the notification issued under Section 22A of the

Registration Act, 1908.

21. The point to be considered in this case is that

whether the 4th respondent can refuse to register the document

presented by the petitioner relying upon the Letter

No.ROC/D/291/2012, dated 24.03.2012 communicated by the

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3rd respondent-Tahsildar, Tirupati Rural, herein, who does not

have any jurisdiction to issue such instructions or including the

properties in the prohibitory list. The State Government issued

certain guidelines vide Circular Memo No.G1/19131/05, dated

14.09.2007, 2nd para of the memo is relevant for the purpose of

deciding the real controversy, which reads as follows:

".. For the purposes of Section 22-A(1)(b), the District Collectors shall furnish the lists of immovable properties owned by the State or Central Government as the case may be to the Registering Officers having jurisdiction over such property and also the District Registrar, Deputy Inspector General (R&S) concerned and Commissioner & Inspector General of Registration and Stamps in the proforma appended in Annexure-II. The list must be signed by the concerned authorized representative of Central/State Government as the case may be."

22. Hence, the letter sent by Tahsildar, vide

No.ROC/D/291/2012, dated 24.03.2012 communicated by the

3rd respondent-Tahsildar, Tirupati Rural, including the property

in the prohibitory properties list under Section 22-A of the

Registration Act, 1908 is illegal, arbitrary and without authority

as per law and without jurisdiction. This Court also feels that it

is appropriate to direct the Sub-Registrar-respondent No.4 to

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receive and register the document(s) presented by the petitioner,

in accordance with Section 71 of the Registration Act, 1908,

which reads as follows:

"(1) Every Sub-Registrar refusing to register a document, except on the ground that the property to which it relates is not situate within his sub-district, shall make an order of refusal and record his reasons for such order in his Book No. 2, and endorse the words "registration refused" on the document; and, on application made by any person executing or claiming under the document, shall, without payment and unnecessary delay, give him a copy of the reasons so recorded.

(2) No registering officer shall accept for registration a document so endorsed unless and until, under the provisions hereinafter contained, the document is directed to be registered."

23. In view of the above stated reasons, this writ

petition is allowed by setting aside the letter vide

No.ROC/D/291/2012, dated 24.03.2012 and thereafter, the 4 th

respondent is directed to receive and process the documents

presented by the petitioner in respect of the subject property,

within a period of three (3) months from the date of receipt of a

copy of this order.

24. Accordingly, this Writ Petition is allowed. There

shall be no order as to costs.

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As a sequel thereto, miscellaneous petitions, if any, shall

stand closed.