Andhra Pradesh High Court - Amravati

Setti Appala Naidu vs The State Of Andhra Pradesh on 24 June, 2024

       IN THE HIGH COURT OF ANDHRA PRADESH AT
                          AMARAVATI

              WRIT PETITION No.31105 OF 2022

Setti Appala Naidu, S/o Konda, aged about 75
years, Occ: Agriculturist, R/o H.No.47-117, P.B.
Palem,      Balighattam     Post,   Balighattam,
Anakapalli, Andhra Pradesh and two others.
                                                       ... Petitioners
            Versus

The State of Andhra Pradesh, Rep. by its
Principal Secretary, Revenue (Ass.I) Department,
Velagapudi, Amaravathi, Guntur District, Andhra
Pradesh and four others.

                                                 ... Respondents

DATE OF ORDER PRONOUNCED :                   24.06.2024

SUBMITTED FOR APPROVAL:

     HONOURABLE SRI JUSTICE SUBBA REDDY SATTI

1. Whether Reporters of Local Newspapers
   may be allowed to see the order?                :       Yes/No

2. Whether the copy of order may be
   marked to Law Reporters/Journals?               :       Yes/No

3. Whether His Lordship wish to
   see the fair copy of the order?                 :       Yes/No




                                     ___________________________
                                     JUSTICE SUBBA REDDY SATTI
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                                                                  SRSJ
                                                    WP No.31105 of 2022




     * HONOURABLE SRI JUSTICE SUBBA REDDY SATTI

               + WRIT PETITION No.31105 OF 2022

                           % 24.06.2024


                WRIT PETITION No.31105 OF 2022


Setti Appala Naidu, S/o Konda, aged about 75
years, Occ: Agriculturist, R/o H.No.47-117, P.B.
Palem,      Balighattam     Post,   Balighattam,
Anakapalli, Andhra Pradesh and two others.
                                                   ... Petitioners
               Versus

The State of Andhra Pradesh, Rep. by its
Principal Secretary, Revenue (Ass.I) Department,
Velagapudi, Amaravathi, Guntur District, Andhra
Pradesh and four others.

                                              ... Respondents
! Counsel for Petitioner            : Sri T.D. Phani Kumar

^ Counsel for Respondents           : GP for Revenue

< Gist:

> Head Note:

? Cases referred:
1) (2008) 1 ALD 29
2) 2009 SCC Online AP 88 / (2009) 3 ALD 385
3) 2014 (4) ALD 358
4) (2017) 2 ALD 214
5) AIR 2002 SC 33
6) AIR 2019 SC 1706 : (2019) 4 SCC 500 : LNIND 2019 SC 252

This Court made the following:
    Page 3 of 17
                                                                         SRSJ
                                                           WP No.31105 of 2022




        IN THE HIGH COURT OF ANDHRA PRADESH: AMARAVATI

          HONOURABLE SRI JUSTICE SUBBA REDDY SATTI

                        WRIT PETITION No.31105 of 2022

   Setti Appala Naidu, S/o Konda, aged about 75
   years, Occ: Agriculturist, R/o H.No.47-117, P.B.
   Palem,      Balighattam     Post,   Balighattam,
   Anakapalli, Andhra Pradesh and two others.
                                                          ... Petitioners
                  Versus

   The State of Andhra Pradesh, Rep. by its
   Principal Secretary, Revenue (Ass.I) Department,
   Velagapudi, Amaravathi, Guntur District, Andhra
   Pradesh and four others.
                                                   ... Respondents

Counsel for the petitioners             : Sri T.D. Phani Kumar

Counsel for respondents                 : GP for Revenue

                                 :: ORDER :

Impugning the endorsement issued by the Joint Collector

vide Rc.No.1618/2019/E1 dated 27.09.2020, the above writ

petition is filed.

2. The case of the petitioners, in brief, is that originally Jalli

Atchayya was assigned land of an extent of Ac.4-51 cents in

survey No.676 of Balighattam Village, in 1921. Said Jalli

Atchayya, along with his sons mortgaged the property to one

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G. Appalanaidu, in the year, 1931 and later alienated the property

to one Setti Kannaya, under an unregistered sale deed, in the

year, 1952, who, in turn, along with his sons alienated Ac.1-00,

Ac.2-51 cents and Ac.1-00 cents in survey No.676-2 in favour of

the petitioners under registered documents bearing Nos.2744 of

2005, 2742 of 2005 and 2743 of 2005 respectively. The names of

the petitioners were updated in the Records of Rights. They were

also issued title deeds vide patta Nos.636, 631, and 1687

respectively. Subsequently, the aforementioned lands were

included in the prohibited list of properties under Section

22(A)(1)(a) of the Registration Act, 1908 (for short 'the Act').

Therefore, petitioners made an application vide application

No.TTA0118000032165 and sought deletion of the property from

the list of prohibited properties and the same was rejected vide

impugned endorsement. Earlier, the request made by one

S. Krishna Babu to de-notify the land admeasuring Ac.4-51 cents

in survey No.676/2 of Baligattam Village from the list of prohibited

properties under Section 22-A of the Act, was rejected by the

District Collector, vide proceedings in Computer

No.31532/2017/E1 dated 10.02.2019. Later Joint Collector by the

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proceedings impugned rejected the claim of the petitioners.

Hence, the writ petition.

3. Separate counter affidavits were filed on behalf of

respondent Nos.2, 4, and 5.

4. In the counter affidavit filed on behalf of respondent No.2, it

was contended that the request made by the petitioners does not

come under the purview of G.O.Ms.No.575 Revenue

(Assignment-1) Department dated 16.11.2018. Though the

authority has not disputed the assignment of land in favour of Jalli

Atchayya, it was concluded that there is no document available

regarding the transfer of land from Jalli Atchayya to Setti

Kannayya. Though Setti Kannyya's name was shown as

Pattadar, he was considered an encroacher. Setti Kannyya's

name has been recorded from 1967 onwards. There is no

substantial evidence to show that Jalli Atchayya sold said land to

Setti Kannayya.

5. Though a separate counter affidavit is filed by respondent

No.4, the same is nothing but a reiteration of the counter affidavit

filed by respondent No.2.

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6. The authorities eventually, prayed to dismiss the writ

petition.

7. Heard Sri T.D. Phani Kumar, learned counsel for the

petitioner, and Sri Dilip Naik, learned Assistant Government

Pleader for Revenue for respondents Nos.1 to 5.

8. Learned counsel for the petitioners submits that since the

assignment of land, in favour of Jalli Atchayya, was made in the

year, 1921, i.e. before 1954, rejecting the petitioners' application

seeking deletion of the property from the list of prohibited

properties, is illegal and arbitrary. He would further submit that

survey Nos.675 to 696 of Ballighattam village, were carved out

from survey No.301 and land in survey No.301 is recorded as

Government land. He would further submit that the Record of

Holdings reflects the name of Jalli Atchayya against Ac.1-80

cents and Ac.3-22 cents of land in survey Nos.676/1 and 676/2.

The encumbrance, in the Record of Holdings, reflected the name

of Jalli Atchayya and G. Appalanaidu(mortgagee). Thus, he would

submit that since the assignment was made in the year, 1921, the

property ought not have been included in the prohibited list of

properties, under Section 22-A(1)(a) of the Act.

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9. Learned Assistant Government Pleader reiterated the

contentions as per the averments of the counter-affidavits.

10. The point for consideration is whether the endorsement

issued by the Joint Collector vide Rc.No.1618/2019/E1 dated

27.09.2020 and the proceedings of the District Collector issued

vide Computer No.31532/2017/E1 dated 10.02.2019, are

sustainable?

11. As seen from the material available on record, there is no

dispute that land in survey No.301 of Balighattam village in an

extent of Ac.207.23 cents is shown as "Forest". It is also an

undisputed fact that land of an extent of Ac.1-80 cents and Ac.3-

22 cents in survey Nos.676/1 and 676/2 was assigned to one Jalli

Atchayya, in the year, 1921. Jalli Atchayya, along with his sons

mortgaged the property to G. Appalanaidu, vide registered

document bearing No.1140 of 1931, dated 17.12.1931. As seen

from the Record of Holdings filed along with the writ petition at

pages 90 and 93, the name of Jalli Atchayya is shown as the

owner of the property and mortgage in favor of G. Appalanaidu.

Thus, the aforementioned property was assigned to Jalli

Atchayya in the year 1921.

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12. Whether any clause existed/incorporated in the assignment

deed of 1921, restraining the assignee from alienating the land?

The answer to this question is no longer res integra.

13. Before proceeding further, it is apt to extract the definition

of assigned land under Section 2(1) of the A.P. Assigned Lands

(Prohibition of Transfer) Act 1977 (for short 'the Act').

"assigned land" means lands assigned by the Government to the landless 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 poor persons under the relevant law for the time being in force relating to land ceilings; and the word "assigned" shall be construed accordingly"

(emphasis is mine)

Thus, to attract the provisions of the Act, there should be a

condition of non-alienation in the deed of assignment. The case

at hand, in view of the discussion infra, since the assignment was

made in 1921 no condition restraining alienation could have been

made.

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14. In A.P. State Electricity Board Employees Union,

Chittoor District v. Joint Collector, Chittoor and Others1, it

was held as under:

"58. "A plain reading of the above definition shows that the land, which was assigned by the Government subject to the condition of non-alienation can only be treated as an assigned land for the purpose of Act 9 of 1977. As a natural corollary, the prohibition of transfer as contained under Section 3 of Act 9 of 1977 is attracted only in cases where the land is assigned subject to the condition of non- alienation. In the case on hand, the specific case of the petitioner is that the assignment in favour of K. Obulappa in the year 1933 was not subject to the condition of non- alienation. To substantiate the said plea, the learned counsel for the petitioner has relied upon the instructions issued by the Government of Andhra Pradesh in G.O. No. 1142, Revenue Department, dated 18.06.1954, under which, the terms and conditions of assignment were promulgated by the State Government for the first time.

Clause 5 of G.O. No. 1142, dated 18.06.1954, is as under:

The assignment of lands shall be subject to the following conditions:"(1) Lands assigned shall be heritable but not alienable...."

(2008) 1 ALD 29

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It is submitted by the learned counsel for the petitioner that since the assignment in favour of K. Obulappa was made much prior to G.O. No. 1142, dated 18.6.1954, the said assignment was not subject to the condition of non- alienation.

I find force in the submission of the learned counsel for the petitioner, since, admittedly, the condition that the land assigned shall not be alienable was not in force in the year 1933 when the assignment was made in favour of K. Obulappa.

Nothing has been placed before this Court to show that the Order promulgated in G.O.Ms. No. 1142 dated 18.4.1954 has retrospective application, muchless any material is produced to show that the 'D Form Patta' granted in favour of K. Obulappa contained such a condition.

As a matter of fact, even the impugned order dated 12.6.1998 did not reflect that the second respondent had taken any steps to verify as to whether the assignment granted to K. Obulappa in the year 1933 contained any such condition prohibiting alienation.

Hence, the impugned order of cancellation of assignment is vitiated by non-application of mind to the relevant aspects and liable to be set aside on that ground alone."

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15. In K.M. Kamallula Basha and Others v. District

Collector, Chittoor District, Chittoor and Others2 it was held

that conditions prohibiting alienation were incorporated by the

State Government for the first time vide G.O.Ms. No. 1142 dated

18.06.1954 and that, such a condition imposed under this G.O.

cannot operate in respect of assignments made long prior

thereto.

16. In G. Satyanarayana v. Government of A.P.3 it was held

that;

"The ratio that could be culled out from the slew of authorities of this Court is that assignments made prior to issue of G.O. Ms. No. 1142, dated 18.6.1954, in Andhra Area and that were made prior to issue of G.O. Ms. No. 1406, dated 25.7.1958, in Telangana Area, did not contain prohibition on alienation that the assignees are entitled to exercise all the rights including transfer of lands; that the initial burden lies on the Government and its functionaries to show that the assignments contain a condition against alienation of the land and that unless the revenue functionaries are first satisfied that the land is an assigned land within the meaning of sub-section (1) of Section 2 of Act

2009 SCC Online AP 88 / (2009) 3 ALD 385

2014 (4) ALD 358

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9 of 1977, no proceeding for cancellation of assignment can be initiated."

17. In Boya Ramappa v. Joint Collector4, it was held that as

per G.O.Ms. No. 1142, dated 18.6.1954, non-alienation of

assigned lands was introduced only in 1954; by virtue of the said

G.O., the Government has introduced the condition of non-

alienation of assigned lands; and when once the assignment was

made before that date initiation of proceedings under the Act of

1977 is without jurisdiction, as the provisions of the Act have no

application in respect of lands assigned before 1954.

18. Thus, the expressions in the judgments referred to supra,

signify that a clause of alienation was incorporated or introduced

in the assignment deed for the first time as per G.O. No. 1142,

dated 18.06.1954.

19. In the proceedings of the District Collector, filed as Ex.P2,

the name of Setti Kanayya also reflected as pattadar from 1967

onwards. The said proceedings were issued rejecting the request

of one Krishna Babu for deletion of Ac.4-51 cents of land in

(2017) 2 ALD 214

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survey No.676/2 of Baligattam Village, Narsipatnam Mandal on

the ground that there is no document executed by Jalli Atchayya

in favour of Kannaya. It is pertinent to mention here that revenue

authorities being custodians of records, should have explained

how the name of Kannayya was recorded as pattadar. No reason

is forthcoming from the authorities except stating that Kannayya

is an encroacher. The authorities cannot depose contrary to the

entries made in the records, about 6 decades back.

20. Thus, the record maintained by revenue authorities

portrays the name of Setti Kannayya Naidu from 1967 onwards

as a pattedar. Prior to that, Jelli Achayya's name was shown in

the year, 1934 as a Pattedar. The revenue authorities cannot

claim and plead non-availability of record in their office. Since the

names of Achayya and Setti Kannyya are portrayed as pattadars,

a presumption can be drawn that unless Setti Kannayya

purchased the property, the authorities might not have recorded

his name as the owner of the property. Thus, this Court holds that

after purchase only, Kannayya's name was recorded in the

revenue records as Pattedar. Despite the availability of relevant

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material, for the reasons best known the authorities failed to

consider the same in a proper perspective.

21. This Court while exercising jurisdiction under Article 226 of

the Constitution of India, will not normally act as appellate

authority. This Court shall perceive as to whether the decision

making process is vitiated on the ground of non-application of

mind or failure to consider the relevant aspects. Indeed the

authorities failed to consider the material available on record.

22. The Hon'ble Apex Court in Roshan Deen Vs Preeti Lal5

held that the power of the Court under Article 226 of the

Constitution of India should be to advance the cause of justice

and not to thwart it. Even where justice is the by-product of an

erroneous interpretation of law, court ought not to wipe out such

justice in the name of correcting the error of law.

23. In Sarvepalli Ramaiah (Dead) v. District Collector,

Chittoor District6, the Hon'ble Supreme Court held as follows:

AIR 2002 SC 33

AIR 2019 SC 1706 : (2019) 4 SCC 500 : LNIND 2019 SC 252

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"26. Judicial review under Article 226 is directed, not against the decision, but the decision making process. Of course, a patent illegality and/or error apparent on the face of the decision, which goes to the root of the decision, may vitiate the decision making process. In this case there is no such patent illegality or apparent error. In exercise of power under Article 226, the Court does not sit in appeal over the decision impugned, nor does it adjudicate hotly disputed questions of fact."

24. It is also an undisputed fact that petitioners, three in

number, purchased the aforementioned respective extents of land

in the year, 2005. As per G.O.Ms.No.575 dated 16.11.2018, the

lands assigned before 18.06.1954, do not come under the

purview of Section 22-A of the Act. Thus, in view of the

discussion supra, in the considered opinion of this court, the

authorities ought to have deleted the properties from the list of

prohibited properties.

25. Notwithstanding the above legal position, respondent No.2

failed to exercise the jurisdiction vested with its office and

declined to delete the subject property from the list of prohibited

properties under Section 22-A(1)(a) of the Act.