THE HONOURABLE SRI JUSTICE GODA RAGHURAM WRIT PETITION Nos.10933 & 10934 OF 2006 W.P.No. 10933/06: Between: Dasari Narayana Rao S/o Sai Raju, Jubilee Hills, Hyderabad … Petitioner And: The Deputy Collector and Mandal Revenue Officer, Serilingampalli, RR District and others. … Respondents W.P.No. 10934/06: Between: Smt. Hemalaya Kumari Jubilee Hills, Hyderabad … Petitioner And: The Deputy Collector and Mandal Revenue Officer, Serilingampalli, RR District and others. … Respondents THE HONOURABLE SRI JUSTICE GODA RAGHURAM WRIT PETITION Nos.10933 & 10934 OF 2006 COMMON ORAL ORDER : The petitioners are the father and the daughter. The 1st respondent’s order dated 16.5.2002 is challenged. This order is affirmed in the appellate order of the 2nd respondent dated 28.10.2002. The revision there against was dismissed by the 3rd respondent’s order dated 27.9.2003 and thereafter by the 4th respondent’s order dated 16.6.2005. The facts and the legal position involved being similar to the two writ petitions, the facts in W.P.No. 10933 of 2006 are recorded for analysis. The 1st respondent issued a brief and laconic show cause notice dated 16.2.2002. It reads as under: “ Whereas you are found to have assigned lands specified in the scheduled below, in contravention of the provisions of sub section (2) of section 3 of the Andhra Pradesh Assigned Lands (Prohibition of Transfers) Act, 1977. You are hereby directed to show cause within (15) days fifteen days of receipt of this notice as to why you should not be summarily evicted from the said land and as to why any crop or their product raised on the land/lands and any building or other construction erected or nay thing deposited there on should not be forfeited. Village Sy. No. Sub- Div No. Description of land Entire extent Occupant extent N a t u r e of Occupation Nanakram Guda 115/29 Govt. Assigned land 5-00 5-00 Assignee/ Purchaser/ Plot owner/ interested person Sd/ ” By the order dated 16.5.2002 the 1st respondent concluded that the petitioner is in possession of assigned lands sold by the original assignee to the petitioner by a registered sale deed, in violation of the conditions of assignment (as to prohibition of alienation); that the sale deed is void in view of Sec.3 of the Andhra Pradesh Assigned Lands (Prohibition of Transfers) Act (hereinafter ‘the 1977 Act’); ordered resumption of the land of Ac.5.00 to the custody of the Government and directed the petitioner’s eviction, with a further direction to the Additional Revenue Inspector to take over possession from the petitioner. The petitioner preferred an appeal to the 2nd respondent. By the order dated 28.10.2002 the 2nd respondent reiterated the conclusions of the 1st respondent and dismissed the appeal. The petitioner then preferred a revision to the 3rd respondent, who by the order dated 27.9.2003 rejected the revision. The petitioner preferred a further revision to the 4th respondent, who by the order dated 16.6.2005 dismissed the revision and confirmed the orders of the respondents 1 to 3. The petitioner is thus before this court seeking Certiorari of the orders of the 1st respondent as confirmed by the respondents 2 to 4. Facts :- The petitioner purchased Ac.5.0 in Sy.No. 115/15 (Old 115/16), Nanakramguda village, Serilingampalli Mandal under a registered sale deed dated 21.9.1995 from one B. Mahadoba. The other petitioner, the daughter, similarly purchased Ac.5.0 in Sy.No. 115/29 under a registered sale deed dated 21.12.2005 from Ganga Bai and others. These are the undisputed facts. In response to the show cause notice the petitioner submitted his explanation asserting: i) That the notice dated 16.2.2002 is vague; ii) That the Government had issued a patta certificate under the Laoni Rules, 1950 (for short “the 1950 Rules”) in respect of Sy. Nos. 115/16, 115/29 along with 16 others at Nanakramguda village without any condition of prohibition of alienation and as per the patta certificates the said lands are alienable; iii) That the petitioner (having purchased the shares of the original assignees under a lawfully and duly executed registered sale deed for valuable consideration), is a bona fide purchaser from the lawful owner, in lawful possession of the property and is also paying land revenue to the Government apart from being in enjoyment and exclusive possession of the property uninterrupted for long years; iv) That the provisions of the 1977 Act have no application as the land in question is not an “assigned land” within the meaning of the expression in the 1977 Act; and v) That the notice and initiation of proceedings under the 1977 Act is “illegal, void and without jurisdiction” and “continuation of the proceedings by your office is without jurisdiction, illegal and abuse of process of law.” According to the petitioner, his vendor purchased the land in a public auction conducted under Rule 9 of the 1950 Rules. It is the petitioner’s consistent claim that no condition of prohibition of alienation of the land is incorporated in the assignment deed in favour of his vendor. On this assertion the petitioner contends that the land in question is not “assigned land” within the meaning of the said expression as defined in the 1977 Act. Therefore, contends the petitioner, the respondents have no jurisdiction to initiate proceedings under the 1977 act. In the light of the petitioner’s categorical assertions above, it was incumbent on the respondents to record a conclusion that the land in question was an assigned land within the meaning of the expression as defined in the 1977 Act. Such a conclusion on a jurisdictional fact is a condition precedent for exercise of jurisdiction under the 1977 Act. As the respondents are Tribunals of a limited jurisdiction, their jurisdiction is defined by the existence of the jurisdictional fact viz., alienation of assigned land which is declared void under the provisions of the 1977 Act. As we have noticed, the show cause notice dated 16.2.2002 is wholly laconic and hopelessly devoid of any factual assertions which would enable a rational response by the petitioners. The show cause notice does not state who the original assignee is; does not specify the date of the deed of assignment; does not assert that the deed of assignment incorporated a clause prohibiting alienation, with or without a condition and that therefore the petitioners’ possession of the land under a registered sale deed executed by such original assignee is illegal as the sale itself is void under the provisions of the 1977 Act. The 1st respondent was required, as the primary authority to have first dealt with, adjudicated and then recorded a finding on the existence of the jurisdictional fact (of the land in question being ‘assigned land’). Such conclusion was required to be arrived at by the 1st respondent on the basis of credible and preponderating oral or documentary evidence. In any event since the assignment was not subsequent to the coming into force of the 1977 Act but presumably prior thereto, the 1st respondent was required to first conclude that the land was ‘assigned land’ as defined in the 1977 Act before proceeding to adjudicate whether there was a transgression of the provisions of Sec.3 of the 1977 Act. In this writ petition, this court is exclusively and narrowly required to determine whether the order of the 1st respondent is in conformity with the minimal forensic discipline of lawfully recording a correct conclusion on a jurisdictional fact. If the answer to this issue be in the negative, then the whole edifice of the 1st respondent’s order suffers a fatal infirmity and the orders of the respondents 2 to 4, appellate and revisional in character, would perish with it, as the very foundation of their appellate and revisional jurisdiction would perish with the incurable infirmity of the primary order. Sec.4 of the 1977 Act empowers the District Collector or any other Officer not below the rank of a Mandal Revenue Officer, authorized by him in this behalf, if satisfied that the provisions of Sec.3(1) have been contravened in respect of any assigned land, to take possession of the assigned land after evicting the person in possession; and to restore the assigned land to the original assignee or his legal heir…….” Sec.4(3) enacts a presumption of a contravention of the provisions of Sec.3(1),when an assigned land is in possession of person other than a original assignee. Sec.4- A(1) provides an appellate remedy to a person aggrieved by an order passed under Sec.4(1); and a further appellate remedy to the District Collector [Sec. 4-A(2)] and Sec.4-B provides a revisional remedy to the State government. As is apparent from the text and context of the provisions of the 1977 Act, in particular the provisions of Sec.4, 4-A and 4-B, the Mandal Revenue Officer, the Revenue Divisional Officer, the Collector or the State Government as the case may be, as primary, appellate or revisional authorities are statutory Tribunals of a limited jurisdiction. They are created by and under the Act subject to specified limitation on their powers and jurisdiction. Their powers are limited and conditioned by the limits specified by the Act. These Tribunals therefore cannot arrogate to themselves jurisdiction, by a wrong decision on the facts or a wrong conclusion as to the conditions upon which their jurisdiction depends, according to the terms and conditions of the statute. I n Vatticherukuri Village Panchayat Vs. Nori V.Deekshithulu([1]) the Supreme Court explained the principle:- “23. The jurisdiction of a tribunal created under statute may depend upon the fulfillment of some condition precedent or upon existence of some particular fact. Such a fact is collateral to the actual matter which the tribunal has to try and the determination whether it existed or not is logically temporary prior to the determination of the actual question which the tribunal has to consider. At the inception of an enquiry by a tribunal of limited jurisdiction, when a challenge is made to its jurisdiction, the tribunal has to consider as the collateral fact whether it would act or not and for that purpose to arrive at some decision as to whether it has jurisdiction or not. There may be tribunal which by virtue of the law constituting it has the power to determine finally, even the preliminary facts on which the further exercise of its jurisdiction depends; but subject to that, the tribunal cannot by a wrong decision with regard to collateral fact, give itself a jurisdiction which it would not otherwise have had.” Much earlier, a Constitution Bench of the Supreme Court in T.C.Basappa Vs. T.Nagappa( [2] ), while dealing with the scope of a writ of Certiorari approved the principle evolved in Bunbury Vs. Fuller([3]); and R Vs. Income Tax Special Purposes Commissioners([4]) and held that when the jurisdiction of the Court depends upon the existence of some collateral fact, the Court cannot by a wrong decision of the fact give itself jurisdiction which it would not otherwise possess. In the light of the above principles as to the jurisdictional limits of a Tribunal of limited jurisdiction, it is clear that a correct conclusion as to the land in the possession of the petitioners being “assigned land” (as this expression is defined in Sec.2(1) of the 1977 Act); and the such conclusion arrived at on the basis of the evidence on record; such evidence having been recorded after due opportunity to the aggrieved petitioners, is a condition precedent to the exercise of power under Sec.4(1) of the Act. In view of the skeletal show cause notice issued by the 1st respondent dated 16.2.2002 and in the context of the petitioner’s clear assertion that there was no condition prohibiting alienation in the assignment order in favour of his vendor, this court is required to consider whether the 1st respondent’s order dated 16.5.2002 declaring the sale in favour of the petitioner void under the provisions of the 1977 Act, is valid. According to the order dated 16.5.2002 : (i) As per the Khasra Pahani (1954-55) of Nanakramguda village, the land in an extent of Ac.273.12 gts, in Sy.No. 115 is classified as poramboke sarkari; (ii) the pattadar column of the Pahani upto 1977-78 records the land as belonging to the Government; and (iii) in 1978-79 the names of Mahadoba in an extent of Ac.5.00 in Sy.No. 115/16 and the name of Udayman Singh in an extent of Ac.5.00 in Sy.No.115/29 were recorded along with others (in respect of other Sy.Nos) through Faisal Patti for 1977-78 as the supplementary sethwar. The order dated 16.5.2002 all of a sudden records a conclusion that Mahadoba is an assignee of Government land in Sy.No. 115/16 and Smt. Chagabai w/o Udayaman Singh and the sons of late Udayaman Singh are assignees of Government land in Sy.No.115/29; and these persons sold the lands assigned to them in favour of the petitioners by registered sale deeds dated 21.9.1995 and 21.12.1995 respectively, in contravention of the provisions of Sec.3 (2) of the 1977 Act. This conclusion is based neither on evidence nor a logical correlation of facts on record. The order dated 16.5.2002 states that under the 1950 Rules as well as under the revised policy published in 1958, alienation of assigned lands was prohibited. While under the 1950 Rules alienation or transfer without the previous sanction of the District Collector was prohibited, under the revised 1958 policy assigned lands were heritable but could not transferred. According to the 1st respondent, this court in judgment dated 21.11.2001 in WA No. 1514 of 2001 had held that a original certificate issued by the Tahsildar in Form-G contained a condition that the respondent is not empowered to transfer the occupancy without the previous sanction of the Taluqdar (Collector). The order dated 16.5.2002 also states that since neither of the petitioners had applied to the District Collector for permission or sanction for purchasing the lands and the District Collector did not pass any orders under the 1950 Rules, the possession and occupation of the petitioners pursuant to their purchase of the lands under the registered sale deeds was illegal, the sale itself void under the provisions of Sec.3(2) of the 1977 Act and therefore the land should be resumed in favour of the Government and they should be evicted. In the considered view of this court the show cause notice dated 16.2.2002 is itself invalid. The minimum requirement of a show cause notice, in the context of an action initiated under the provisions of the 1977 Act is (a) it should assert that there was an assignment of land either under the provisions of the 1977 Act or under any Rules for the time being in force subject to a condition of non-alienation; that such “assigned land” was transferred by such assignee in contravention of the prohibition of alienation clause contained in the deed of assignment; (b) it should assert that the respondent’s to the show cause notice had entered upon possession of “assigned land” under a deed of transfer which is invalid under the provisions of Sec.3 of the 1977 Act. The show cause notice must of necessity contain such factual assertions to enable the recipient (of the notice) to rationally respond and submit his objections, if any, to the proceedings initiated against him under the provisions of the 1977 Act. Issuance of a show cause notice is not an empty ritual. It should provide a reasonable and fair opportunity to the recipient of the show cause notice to defend his title and possession of, the valuable right to property. Without stating any facts whatsoever in the show cause notice dated 16.2.2002 the 1st respondent in the order dated 16.5.2002, spelt out an elaborate factual matrix i.e., the classification of the land in the Khasra Pahanis (1954-55); recording of the names of Mahadoba and Udayaman Singh in the Faisal Patti in 1977-78 and in the supplementary sethwar. These facts were not put to the petitioners nor their response elicited on these. These facts were gathered by the 1st respondent without the knowledge of the petitioner, behind his back and without giving the petitioners an opportunity to deny or rebut this factual assertion. There is another infirmity, a fatal infirmity, in the order of the 1st respondent dated 16.5.2002. The 1st respondent concludes that the vendors of the petitioners were assignees of Government land who had sold the assigned lands in favour of the petitioners under a registered sale deed and in contravention of the provisions of Sec.3(2) of the 1977 Act. There is no basis for this ipsi dixit , neither in evidence nor in logic and reason. Sec.3 of the 1977 Act reads as under: “ 3. Prohibition of transfer of assigned lands :- (1) Where before or after the commencement of this Act any land has been assigned by the Government to a landless poor person for purposes of cultivation or as a house-site then, notwithstanding anything to the contrary in any other law for the time being in force on in the deed to transfer or other document relating to such land, it shall not be transferred and shall be deemed never to have been transferred; and accordingly no right or title in such assigned land shall vest in any person acquiring the land by such transfer. (2) 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. (3) 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. (4) The provisions of this section shall apply to any transaction of the nature referred to in sub-section (2) in execution of a decree or order of a civil court or of any award or order of any other authority. (5) Nothing in this section shall apply to an assigned land which was purchased by a landless poor person in good faith and for valuable consideration from the original assignee or his transferee prior to the commencement of this Act and which is in the possession of such person for purposes of cultivation or as a house-site on the date of such commencement.” Sec. 4(3) enacts that where any assigned land is in possession of a person, other than the original assignee or his legal heir, it shall be presumed, until the contrary is proved, that there is a contravention of the provisions of sub-section (1) of Section 3. It therefore requires to be considered what the expression “assigned land” means. Sec.2(1) of the 1977 Act defines “assigned land” to mean “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”. The explanation to Sec.2(1) is to the effect that a mortgage in favour of the specified institutions shall not be regarded as an alienation. We are not concerned in this case with the explanation, as this would not be applicable to the case. In view of the definition of the expression “assigned land” in Sec.2(1) of the 1977 Act, lands assigned by the Government to landless poor persons under any rules for the time being in force, which are assigned subject to a condition of non-alienation, are assigned lands. Thus lands assigned under the 1950 Rules would be “assigned land” within the meaning of the expression under the 1977 Act, if and only if the land is assigned with a condition in the deed of assignment prohibiting its alienation. (emphasis added) In Nimmagadda Rama Devi v District Collector, Machilipatnam and Anr. ([5]), a Division Bench of this court held, on an analysis of the provisions of the 1977 Act, that only if there is a condition of non-alienation while assigning the lands or the land is assigned under the provisions of the AP Land Reforms (Ceiling on Agricultural Holdings) Act, 1973, it would be “assigned land” within the meaning of the 1977 Act; where the assignment is without any such condition as to non-alienation, it would not be “assigned land” under the 1977 Act and the said Act has no applicability. When such is the position, the authorities under the Act have no jurisdiction to deal with the lands under the provisions of the 1977 Act, held the Division Bench. In G.V.K.Rama Rao and Anr. V Bakelite Hylam Employees Co- op. House Building Society, Hyderabad ([6]), this court was considering a fact situation where land was assigned on 4.1.1953 under the 1950 Rules. In 1953 there was no condition of non- alienability in the assignment. The condition of non-alienability was seen to have been incorporated in the 1950 Rules by the revised assignment policy issued in G.O. Ms. No. 1406 Revenue, dated 25.7.1958. Under this G.O. the provisions relating to assignment of Government land in Andhra and Telengana regions of the State were integrated. On this analysis and conclusion as to the position of the 1950 Rules, the learned single Judge of this court held that since there was no prohibition of alienation in the assignment in 1953 the land would not constitute “assigned land” within the meaning of the expression under the 1977 Act and therefore sale of such land is not hit by the provisions of the 1977 Act. In Rambagh Satyanarayana and others v Joint Collector, R.R. District, Hyderabad and others ( [7] ), this court reiterated that the prohibition u/Sec. 3 of the 1977 Act comes into operation only in case where the land is assigned subject to the condition of non- alienation. Again in Shyam Sunder v Government of A.P and others ( [8] ) this court recorded that in the Laoni Rules 1357 Fasli as well as the subsequent Rules (the 1950 Rules) there was no condition of non- alienability, till G.O. Ms. No. 1406 dated 25.7.1958 was issued. This court clearly held that in considering whether a transfer is hit by the provisions of the 1977 Act, the relevant fact is whether the transfer is of a land which has been assigned by the Government with a condition of non-alienability incorporated in the deed of assignment. On an analysis of the evolution of the Rules with regard to alienation this court observed that neither under the 1357- F Rules nor the 1950 Rules was there a condition of non- alienability. Having identified this lacuna, the Government issued comprehensive rules in 195 in G.O. Ms. No. 1406 in supersession of the earlier Rules relating to assignment. It is only thereafter that the Rules enjoined that assigned lands are heritable but not transferable. This court in Shyam Sunder (4 supra) held that the condition of non-alienability was incorporated in assignments made subsequent to 25.7.1958 and that no such condition may be presumed to have been attached to assignments made prior to 25.7.1958. In the light of the above precedents, the authorities implementing the provisions of the 1977 Act must record a finding that there was an assignment by the Government to a landless poor person under the Rules for the time being in force with a condition prohibiting alienation; and that such “assigned land” was alienated by such assignee, in contravention of Sec. 3 of the 1977 Act. The proceedings under the 1977 Act are in the nature of civil proceedings. The conclusion that the land in question is assigned land may also be arrived at by a compelling inference preponerating from the circumstantial evidence on record. If the assignment in question is under certain Rules for the time being in force (within the meaning of this clause as employed in Sec. 2(1) of the 1977 Act); if such Rules (under which the assignment is made) enjoin a prohibition on alienation; and such statutory prohibition was in operation on the actual date of assignment, it might perhaps be an indicator justifying an inference that the land in question is an “assigned land”. For such a presumption to be legitimately drawn, the respondents must establish the date