State Of Telangana vs Dakoji Durgapathy
2021 Latest Caselaw 2319 Tel

           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:

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

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.

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.

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.

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

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

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.

2008 (4) APLJ 6

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