*THE HON’BLE SRI JUSTICE C.V. NAGARJUNA REDDY +WRIT PETITION No.27381 of 2005 % Dated: 11-07-2008 # Kusampudi Sarada. Petitioner VERSUS $ Mandal Revenue Officer, Bapatla, Guntur District & others. Respondents ! Counsel for Petitioner: Mr. V. Venkatramana ^Counsel for the Respondents : GP for Revenue. <GIST: > HEAD NOTE: ? Cases referred 1. (2003) 2 SCC 107 IN THE HIGH COURT OF JUDICATURE, ANDHRA PRADESH AT HYDERABAD (Special Original Jurisdiction) FRIDAY, THE ELEVENTH DAY OF JULY, TWO THOUSAND EIGHT ONLY PRESENT: THE HON’BLE MR. JUSTICE C.V.NAGARJUNA REDDY WRIT PETITION No.27381 of 2005 Between: Kusampudi Sarada … Petitioner AND Mandal Revenue Officer, Bapatla, Guntur District & others. … Respondents Counsel for the petitioner : Sri V. Venkatramana Counsel for the respondents: GP for Revenue This Court made the following: THE HON’BLE SRI JUSTICE C.V.NAGARJUNA REDDY WRIT PETITION No.27381 of 2005 ORDER:- This writ petition is filed calling in question proceedings No.1084/2004/A dated 28.11.2005 issued by respondent No.1 and seeking quashing of the same by issuing a writ of Certiorari. Briefly stated, the facts are that the petitioner purchased agricultural land admeasuring Ac.4.50 cents comprised in Sy.Nos.1401/2A, 1401/2B and 1401/3A of Bapatla Village, Guntur District in the name of her minor daughter Lakshmi and two minor sons Shanukha Varma and Surendra Varma under three registered sale deeds dated 29.04.1986. According to her, the vendors of the property Kusampudi Sundara Rama Raju and Thotakura Subbaraju were the owners and pattadars of the said lands. Respondent No.1 issued notice dated 10.08.2005 under Section 3 of the A.P. Assigned Lands (Prohibition of Transfers) Act, 1977 (for short, ‘the Act’), wherein it was alleged that the said lands were originally assigned to Paddisonpet Tenants Cooperative Society (for short, ‘the society’) in the year 1982 and that consequent on the liquidation of the said society, the said lands were reassigned in favour of three persons, namely, Nallamolu Nageswara Rao son of Subbaiah, Tanta Rosamma wife of Ankamma and Bellamkonda Durgamma wife of Bapaiah. The petitioner submitted her explanation dated 04.10.2005 inter alia contending that the said land is not the assigned land and therefore the provisions of the Act do not apply. After considering the explanation of the petitioner, respondent No.1 issued the impugned proceedings, whereby he ordered for eviction of the petitioner from the land in question. Respondent No.1 filed a counter affidavit in which he pleaded that an extent of Ac.6.14 cents in the abovementioned survey numbers was the Government land and was assigned as a depressed classes grant to the Society by the Sub-Collector, Tenali in the year 1932, that consequent on liquidation of the Society, the said land was assigned and pattas were issued to three persons, whose names were mentioned above and the changes by way of sub-division were incorporated in the FMBs in the year 1982, that later in the year 2003, the Vigilance and Enforcement Officials, after verification of the relevant records, found that the names of certain assignees in Sy.No.1401 of East Bapatla Village were struck off and substituted with certain names in the Survey and Sub-Division record. He stated that in place of Nallamulu Nageswara Rao, Tanta Rosamma and Bellamkonda Durgamma, the original assignees, the names of Kusampudi Sundara Rama Raju, Totakura Subbaraju and Mudunuri Kanakaraju respectively were substituted and that the said three persons disposed of the said land of Ac.4.50 cents in the names of the minor children of the petitioner and that the purported assignees were found to be non-residents of Bapatla Town and managed to get their names incorporated in the record by manipulating the same. It is further stated that since the petitioner had acquired the assigned land in contravention of the provisions of sub-section (2) of Section 3 of the Act, notice dated 10.08.2005 was issued for resumption of the land and that the petitioner gave a vague reply by taking the stand that the land is a patta land and not an assigned land. The answering respondent asserted that the land in question is a Government land, which was assigned as mentioned above, as evident from Basic Register of East Bapatla Village of 1989, which fact was communicated by the Sub- Registrar, Bapatla vide his letter dated 17.02.2006 while sending a true extract of page No.44 of the said Basic Register. At the hearing, Sri V. Venkataramana, learned counsel for the petitioner strenuously contended that even accepting the allegation contained in the show cause notice and the impugned order that the petitioner purchased the assigned land from the persons, who are not the assignees, the action of respondent No.1 in invoking the provisions of Section 3 of the Act is without jurisdiction. In order to initiate proceedings under Section 3 of the Act and resume the land, contends the learned counsel, it is necessary to show that the original assignees sold the assigned land and on the respondent No.1’s own showing, the purported assignees have not sold the property to the petitioner. The learned counsel alternatively contended that the petitioner denied the allegation that the land is an assigned land and the respondents failed to discharge the burden placed on them to prove that it is an assigned land and hence, the respondents are denuded of the jurisdiction to resume the land by invoking the provisions of the Act. Opposing these contentions, the learned Assistant Government Pleader for Revenue (Assignments) submitted that the writ petition filed bypassing the effective alternative remedy of appeal is liable to be dismissed. He also contended that the impugned order does not suffer from any illegality warranting interference of this Court. I have carefully considered the respective submissions of the learned counsel for the parties and perused the record. At the outset, I would like to dispose of the contention of the learned Assistant Government Pleader on the issue of alternative remedy. Article 226 of the Constitution of India does not contain any limit on the High Courts to exercise the jurisdiction to issue prerogative writs. However, the superior Courts imposed upon themselves certain limitations to exercise their jurisdiction under Article 226. One such limitation is the doctrine of alternative remedy. By applying this doctrine, ordinarily the High Courts decline to entertain writ petitions, which are filed bypassing the effective alternative remedy. The Supreme Court in a catena of judgments, however, held that this is only a rule of procedure and not a rule of law and that in appropriate cases the High Court can entertain a writ petition despite availability of such alternative remedy. (see Harbans Lal Sahnia vs. Indian Oil Corporation Limited[1]) The petitioner filed this writ petition without availing the remedy of appeal on the ground that she raised jurisdictional issues, namely, that the land is not an assigned land and at any rate Section 3 of the Act is not attracted to the purchases made by the petitioner from the persons other than the assignees. In my considered view, the petitioner could have conveniently raised these two issues before the appellate forum, because answer to these issues depends on the adjudication of the facts. But, I am not inclined to throw out this writ petition on that ground simply for the reason that the writ petition having been admitted and pending for more than 2½ years, I do not feel it appropriate to non-suit the petitioner at this length of time and relegate her to avail the remedy of appeal. Coming to the two contentions advanced by the learned counsel for the petitioner, as noted above, it is necessary to refer to the relevant provisions of the Act. The long title of the Act reads as under: “An Act to prohibit transfers of certain lands assigned to landless poor persons in the State of Andhra Pradesh.” A reading of the statement of objects and reasons indicates that the Act has been made with a view to enforce the objective of prohibition of alienation of assigned lands and to prescribe a punishment to the persons, who have purchased the said lands. Section 2(1) of the Act defined ‘assigned land” as 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. Section 2(6) defined ‘transfer’ as any sale, gift, exchange, mortgage with or without possession, lease or any other transaction with assigned lands not being a testamentary disposition and includes a charge on such property or a contract relating to assigned lands in respect of such sale, gift, exchange, mortgage, lease or other transaction. Section 3(1) of the Act prohibits transfer of land, which was assigned either before or after commencement of the Act and it contains a deeming clause that such a transfer shall be deemed never to have been made and declares that no right or title in such assigned land shall vest in any person acquiring the land by such transfer. Section 3(3) declares that any transfer or acquisition made in contravention of the provisions of sub-section (1) or sub-section (2) shall be deemed to be null and void. Section 3(5) carved out an exception to the said prohibition in cases where the assigned lands were purchased by landless poor persons 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 purposes of cultivation or as a house site on the date of such commencement. Section 4 envisages consequences of breach of provisions of Section 3, which include taking possession of the assigned land after evicting the person in possession and restoring the assigned land to the original assignee, if he or she is eligible as per the norms fixed in this behalf or assigned to other eligible landless poor persons. The provision relating to restoration of grant to the original assignee has undergone an amendment in recent times and it is not necessary to discuss the same in the present context of the case. From the abovementioned statutory provisions, it is clear that the Act was made with the objective of prohibiting the transfers of assignments and for punishing the purchasers, subject to the only exception under Section 3(5). Irrespective of whether the purchaser purchases the assigned land from the original assignee or anybody else, transfer of assigned land is prohibited. It is significant to notice that the prohibition of transfer contained in Section 3 is not confined either to the transfer by an assignee or his transferee alone. The only two ingredients necessary to attract the provisions of Section 3 are that the land must be an assigned land given to a landless poor person for the purposes of cultivation or as a house site and such a land is transferred or acquired in contravention of the provisions of Section 3(1). That the person, who transferred the assigned land, is not relevant is further clear from the peremptory language of Section 3(3), which says that any transfer or acquisition made in contravention of provisions of sub-section (1) or sub-section (2) shall be deemed to be null and void. The emphasis is therefore on transfer of the assigned land and not the person who transfers it. In the instant case, the allegation is that the vendors of the petitioner manipulated the record by substituting their names in the Survey and Sub-Division record for the names of original assignees and sold the assigned land to the petitioner. If the land purchased by the petitioner is found to be an assigned land, sale of such land by whosoever attracts the prohibition contained in Section 3(1) and is liable for action under Section 4. If the contention of the learned counsel for the petitioner that since the petitioner has not purchased the alleged assigned land from the original assignees, the provisions of the Act are not attracted is accepted, the purpose and object for which the Act is made will be rendered otiose, because the sale transactions will be entered in the name of the persons other than the assignees to make such transfers fall out side the provisions of the Act. Therefore, this contention runs contrary to the Legislative intent and mandate contained in the provisions of the Act. Hence, the first contention of the learned counsel is rejected. As regards the second contention, namely, that the land is not an assigned land, in the show cause notice dated 10.08.2005 issued by respondent No.1, it is specifically alleged that the petitioner purchased the assigned land, which was originally included under “D.C. Grants”. In the reply got issued through her lawyer, the petitioner denied the allegation that she purchased the assigned land and maintained that even if it is an assigned land, she perfected her right over the property by long continued and uninterrupted possession and enjoyment. In the impugned order, respondent No.1 traced the history of the land in holding that it was an assigned land. In particular, respondent No.1 referred to incorporation of changes by way of sub-division in FMBs in the year 1982. In her affidavit, the petitioner pleaded that the Sub-Registrar, Bapatla through his letter dated 10.04.2003 called for information from Panchayat Secretary as to whether the land in Sy.No.1401 is an assigned land or Government land and that in response to the said letter, the Panchayat Secretary replied to the effect that the land in Sy.No.1401 is neither an assigned land nor Government land. It is further pleaded that the Panchayat Secretary, East Bapatla, has further clarified that the land bearing Sy.No.1401/2A, 2B, 3A, 3B, 3C and 1402/1 is neither an assigned land nor Government land. The petitioner also averred that respondent No.1 has not referred to any authentic revenue record to conclude that the land in Sy.Nos.1401/2A, 2B and 3A is an assigned land. In paragraph 7 of the counter-affidavit, these allegations are specifically controverted by respondent No.1 by stating that if the land is classified as a patta land of private persons, the Sub- Registrar, Bapatla would not have asked for clarification from the Panchayat Secretary of East Bapatla, that the petitioner managed with the Panchayat Secretary to get a false certificate, that the Vigilance and Enforcement officials recommended stern action against the said Panchayat Secretary for giving improper certification about classification of the land in question and that the Sub-Registrar, Bapatla in reply to the query made by respondent No.1 stated in his letter dated 17.02.2006 that the classification of the land in Sy.No.1401/1, 2 and 3 of East Bapatla Village is an assigned land as per the Basic Register of East Bapatla Village of 1989 and he enclosed true extract of page No.44 of the Basic Register to his letter sent to respondent No.1. In my considered opinion, respondent No.1 discharged the initial burden of proving that the land in question is an assigned land by placing reliance on the fact that the property was classified as a Depressed Classes Grant and initially assigned to the Society by the Sub-Collector, Tenali in the year 1932 and the same was specifically assigned to three persons, namely, Nallamolu Nageswara Rao son of Subbaiah, Tanta Rosamma wife of Ankamma and Bellamkonda Durgamma wife of Bapaiah and that the changes made by way of sub-division incorporated in the FMBs in the year 1982. The onus has thus shifted to the petitioner to prove that the land in question is not an assigned land. Neither in her reply to the show cause notice nor in her affidavit, the petitioner, except making a denial of the allegation that the land is an assigned land, has explained as to how the land is not an assigned land, but is a patta land. If the land was really a patta land, it could not have been difficult at all for the petitioner to rely on the documents of title of her predecessors-in-interest and the relevant revenue record. By the petitioner’s mere bald denial of the respondents’ allegation and in the absence of any supporting material produced either before respondent No.1 or this Court barring the correspondence between the Sub-Registrar and the Panchayat Secretary, I am not prepared to accept her contention that the land in question is not an assigned land. To discredit the certificate issued by the Panchayat Secretary, respondent No.1 had given cogent reasons in para 7 of the counter-affidavit, as noted supra, and therefore no credence can be given to such a certificate. At any rate, respondent No.1 in the counter-affidavit referred to letter dated 17.02.2006 sent by the Sub-Registrar, wherein it is allegedly stated that the subject land is an assigned land. The petitioner has not filed any reply affidavit controverting this averment contained in the counter-affidavit. From the abovementioned reasons, I have no hesitation to hold that the land purchased by the petitioner and resumed by respondent No.1 by the impugned order is an assigned land, whose transfer is prohibited by the provisions of Section 3 of the Act and respondent No.1 has not committed any jurisdictional, legal or factual error in resuming the land. On the premises as above, the writ petition is dismissed. As a sequel to dismissal of the writ petition, WPMP.No.35174 of 2005 filed by the petitioner for interim relief is disposed of as infructuous. C.V. NAGARJUNA REDDY, J Date: 11.07.2008 ES LR copies to be marked. [1] (2003) 2 SCC 107