IN THE HIGH COURT OF JUDICATURE, ANDHRA PRADESH AT HYDERABAD (Special Original Jurisdiction) THURSDAY, THE SEVENTEENTH DAY OF MARCH TWO THOUSAND AND ELEVEN PRESENT THE HON'BLE MR JUSTICE V.ESWARAIAH WRIT PETITION No.4705 of 2005 Between: Nadiminti Pedda Ramulu and 3 others ..... PETITIONERS AND The Joint Collector, Mahaboobnagar District and 7 others .....RESPONDENTS The Court made the following: THE HON'BLE MR JUSTICE V.ESWARAIAH WRIT PETITION No.4705 of 2005 O R D E R: Petitioners question the impugned proceedings of the 1st respondent-Joint Collector dated 22.01.2005 in revising the orders of the Mandal Revenue Officer, Thimmajipet dated 12.10.1998 in resuming the lands in question which order was confirmed by the orders of the 2nd respondent-Revenue Divisional Officer, Nagarkurnool dated 02.11.2002. Heard both the counsel. It is the case of the petitioners that the land in Sy.No.235 of Yedrepally village of Timmajipet Mandal, Mahaboobnagar District being the Government land was assigned in favour of ancestors of the petitioners, namely Meesala Narasaiah and Balaiah and the said land was inheritable, but not alienable. Their legal heirs have succeeded the said land and accordingly, it is stated that the names of the petitioners have been entered in the revenue records as legal heirs of the original assignees with possession during the year 1980. It is stated that the total extent of the land that was assigned in favour of the original assignees is Ac.5.00 which was divided thereafter as Sy.No.235/4/1, 235/3/1, 235/4/2 and 235/4 and the said land was occupied by Respondents Nos.4 to 8 based on the sale deed dated 10.02.1984 for an extent of Ac.1.00 and unregistered sale deeds for the remaining extent of Ac.4.00, total of Ac.5.00 said to have been executed by some of the shareholders, claiming from the original assignees. It is stated that the father of Respondents Nos.7 and 8 and other occupiers filed suit in O.S.23/1997 on the file of the District Munisif, Nagarkurnool for permanent injunction in respect of Ac.5.00 of land based on the alleged purchase of the land in the year 1984. The trial Court while granting interim injunction against the defendants therein directing not to interfere with the property in question, gave liberty to the concerned authority to take appropriate action to evict respondents Nos.7 and 8 herein, in accordance with law. It is the case of the petitioners that since the said land being assigned land covered by the provisions of the A.P.Assigned Land (Prohibition of Transfers) Act 9/1997 (hereinafter referred to as “the Act”) and the alleged claim of sale/purchase by respondents Nos.4 to 8 in the year 1984 being null and void, they filed an application before the 3rd respondent-Mandal Revenue Officer, and accordingly, the 3rd respondent- Mandal Revenue Officer issued a notice dated 09.04.1997 for resumption of the land from the illegal occupation of Respondents Nos.4 to 8. The Mandal Revenue Officer by the impugned proceedings No.I/405/97 dated 12.10.1998 rejected the claim of Respondents Nos.4 to 8 with regard to their bona fide purchase of the assigned land and held that Sec.3(1) of the Act prohibits the transfer of any land assigned to the landless poor persons by way of sale, gift, mortgage and exchange. As the sale deeds entertained are in contravention of Sec.3 of the said Act and accordingly, ordered for resumption of the said land into the Government custody and directed the Mandal Revenue Inspector Thimmajipet to resume the said land from the possession of respondents Nos.4 to 8 and handover the same to the Village Administrative Officer until further orders. The said order was questioned by respondents Nos.4 to 8 herein before the Revenue Divisional Officer, Nagarkarnool under Sec.4(A) of the Act. The Revenue Divisional Officer in proceedings No.K1210/99 dated 02.11.2002 dismissed the appeal rejecting the contention of respondents Nos.4 to 8 and directed to implement the orders of the Mandal Revenue Officer. Thereafter, the orders of the Mandal Revenue Officer dated 12.10.1998 as confirmed by the Revenue Divisional Officer by orders dated 02.11.2002 was implemented by the 3rd respondent-Mandal Revenue Officer by handing over the possession of the said land in favour of the petitioners under Panchanama proceedings dated 13.03.2003. The panchanama proceedings indicates that an extent of Ac.1.10 gts each was handed over to the petitioners who were the legal heirs of the original assignees. A revision was filed against the said orders before the Joint Collector and the 1st respondent-Joint Collector by the impugned proceedings dated 22.01.2005 while considering the contentions of the learned counsel appearing for respondents Nos.4 to 8 that they being landless poor purchased the assigned lands bona fidely and therefore such sales cannot be effected by the provisions of Sec.3 of the Act, held that as the lands were purchased by respondents Nos.4 to 8 through the sale deed during the year 1984 and the Mandal Revenue Officer had initiated action under the Act on 12.10.1998 i.e. after a gap of 14 years between the violation of the rules and initiation of action for resuming the land, and that as they have purchased the said land from the original assignees in good faith and they have developed the land by spending some amounts, and accordingly allowed the appeal and the order of the Revenue Divisional Officer, confirming the orders of the Mandal Revenue Officer was set aside, and directed the Mandal Revenue Officer to consider and to take action accordingly. Questioning the said orders dated 22.01.2010 this writ petition is filed. This Court while issuing notice before admission on 10.03.2005, granted interim suspension of the impugned order. Vacate stay petition was filed by respondents Nos.4 to 8 in WVMP Nos.1978/2005 and 594/2006 and the same were also dismissed while making the interim order dated 10.03.2005 be absolute by order dated 04.01.2007. The learned counsel appearing for the petitioners submits that the impugned orders of the Joint Collector dated 22.01.2005 are admittedly subsequent to the Act 9/1977 and the assigned lands are not alienable and that the said Act, in fact, has come into force with retrospective effect, and however, even according to respondents Nos.4 to 8 they have purchased the said land after the Act 9/1977 alone i.e. during the year 1984, and therefore, even assuming that they are landless poor, the said alienation is hit by the provisions under Sec.3 of the said Act and therefore, the impugned revisional order is illegal and unsustainable. Sri K.S.Murthy, learned counsel appearing for respondents Nos.4 to 8 submits that they have purchased the said lands in February 1984 and from the date of purchase they are in possession and enjoyment of the same, and they have purchased the said land from the successors of the original assignees, and after purchase of the said land, their names have been recorded in the revenue records and after the lapse of 13 years of the purchase, the proceedings have been initiated for resumption of the land. It is further stated that though the Government have the powers under the said Act for resumption of the land, it has to be done within a reasonable time not exceeding more than one year of violation of the terms and conditions of the assignment order, but it could not resume the land after long lapse of 13 years. It is stated that the Mandal Revenue Officer as well as the Revenue Divisional Officer did not consider the delay factor in initiating the resumption proceedings after the lapse of 13 years and therefore, initiation of resumption proceedings after long lapse of 13 or 14 years is illegal and unsustainable. During course of the arguments, Sri K.S.Murthy, learned counsel appearing for respondents Nos.4 to 8 submits that as per the judgment of this Court in the case of K.M.Kamallula Basha and ors. V District Collector, Chittoor[1] if the lands are assigned prior to 1954, there was no any condition prohibiting the alienation, and the Government incorporated the condition prohibiting the alienation for the first time in the year 1954 and therefore, if it is assigned land prior to 1954, there cannot be any prohibition for alienation of the said land. He further relied on a judgment of a Division Bench of this Court in the case of Letter taken up as writ petition v Collector & District Magistrate[2] wherein the Division Bench of this Court held that Sec.3 of the Act, after commencement of the Act, prohibits transfer of any land assigned by the Government to a landless poor for the purpose of cultivation or house sites. However, the provisions of the said Act would not apply in respect of alienation of pattas/occupancy rights granted under the Laoni Rules or under the revised assignment policy issued in G.O.Ms.No.1406 dated 25.07.1958, since Act 9/1977 prohibits assignment of land which is defined under Sec.2(1) of the Act 9/1977. Laoni Rules as well as the Rules issued under G.O.Ms.No.1406 dated 25.07.1958 deal with two types of the assignment i.e. assignment on payment of market value and assignment to the landless poor persons. Act 9/1977 deals with assignment by the Government to the landless poor persons, subject to the conditions of inalienability. It is stated that if it is an assigned land on payment of market value, the provisions of the Act 9/1977 have no application. It is not the case of respondents Nos.4 to 8 either before the Civil Court or before the Mandal Revenue Officer or before the Revenue Divisional Officer/Joint Collector that it is the assigned land on payment of market value, but not assigned in favour of the landless poor. In fact, it is the contention of respondents Nos.4 to 8 before the Mandal Revenue Officer that they purchased the assigned lands from the shareholders in good faith. It is not in dispute that the said land is assigned land. It is not the case of either parties that the original assignment was not in favour of the landless poor. If the said assignment was on payment of market value, even now it is open for respondents Nos.4 to 8 to allege and establish the same by placing the relevant material, but having not taken such a plea throughout the proceedings, it cannot be said that the said assigned land was not assigned in favour of the landless poor. If that be the case or defence of the respondents, they would have raised the same plea before the Civil Court. Therefore, the Civil Court while granting temporary injunction gave liberty to the concerned authority for their eviction, in accordance with law. Therefore, I am of the opinion that there cannot be any hesitation to uphold the contentions of the learned counsel for the petitioners that the said land was assigned in favour of the landless poor persons i.e. in favour of the ancestors of the petitioners and that the petitioners have inherited the said assigned land and therefore, the revenue records were never changed in the name of the purchasers. “Assigned Land” as defined under Sec.2(1) of the Act means that the lands assigned by the Government to the landless poor persons under the Rules for the time being in force, subject to condition of non-alienation and included the land allotted or transferred to landless poor persons under the relevant law for the time being in force relating to the land ceilings, and the word “assigned” shall be construed accordingly. Sec.3 of the Act defines prohibition of transfer of the assigned land. Under Sec.3(1) of the Act the assigned lands are not alienable and shall not be transferred and shall be deemed never to have been transferred, and accordingly, no right or title in such assigned lands shall vest in any person acquiring the land by such transfer. Under Sec.3(2) of the Act no landless poor person shall transfer any assigned land, and no person shall acquire any assigned land, either by purchase, gift, lease, mortgage, exchange or otherwise. Under Sec.3(3) of the Act any transfer or acquisition made in contravention of the provisions of Sub-Sec.(1) of Sec.3 of the Act shall be deemed to be null and void. The provisions of Sec.3 of the Act shall also apply in execution of a decree or order of a Civil Court or any award or order of any authority. However, under Sec.3(5) of the Act if the assigned land was purchased by the landless poor person in good faith and for valuable consideration from the original assignee or his transferee prior to the commencement of the Act and, which is in the possession of such person for the purpose of cultivation or otherwise from the date of such commencement, entitle to retain the said land. Admittedly, in the instant case, the alleged purchase is not prior to the said Act, but much after commencement of the Act i.e., in the year 1984. Therefore, Sec.3(5) of the Act is not applicable to the present facts of the case. As this Court is of the opinion that the said land is admittedly assigned land and as the learned counsel appearing for respondents Nos.4 to 8 has not placed and contended before any authority that the said assignment made in favour of the original assignees was on payment of market value, they cannot be permitted before this Court to raise the said issue for the first time, that too without placing any material. Therefore, I am of the opinion that the land in question is the assigned land in favour of the landless poor and provisions of the Act would apply. If that be so, the so called claim of the petitioners pursuant to the sale deeds during the year 1984 is in contravention of Sec.3 of the Act, and therefore, the impugned order of the Joint Collector is contrary to the provisions of the Act as well as contrary to the decision of the Full Bench judgment of this Court in the case of Dharma Reddy v Sub- Collector, Bodhan (FB)[3]. The Full Bench of this Court in the said case held that the assigned lands shall never to have been transferred under Sec.3(1) of the Act, and Sec.3(1) of the Act not only prohibits transfer of the assigned land on or after commencement of the Act, but also declares retrospectively that all transfers of such assigned lands which took place prior to coming into force of the Act shall also be null and void, non est in the eye of law, and no right or title in such assigned land shall vest in any person acquiring the land by such transfer. In view of the aforesaid rule position, as laid down by the Full Bench of this Court, I am of the opinion that the impugned order is illegal and unsustainable and is liable to be set aside. Accordingly, the Writ Petition is allowed, as prayed for. No order as to costs. ________________ V.ESWARAIAH,J Dated: 17.03.2011 Dsr [1] 2009 (3) ALD 385 [2] 2008 (5) ALT 313 (D.B) [3] 1987(1) ALT FB 124