THE HON’BLE SRI JUSTICE SANJAY KUMAR WRIT PETITION NO.23855 OF 2003 DATED JULY, 2011 BETWEEN Chintalapati Venkata Rama Satyanarayana and others. …Petitioners And The Zilla Parishad, West Godavari, Represented by its Chief Executive Officer, Eluru, West Godavari District and another. …Respondents THE HON’BLE SRI JUSTICE SANJAY KUMAR WRIT PETITION NO.23855 OF 2003 O R D E R Late Sri Chintalapati Seetharama Raju was granted a tree patta over the road margins of Suraparajupeta by the Gram Panchayat, Tholeru, West Godavari District, with permission to plant coconut trees and enjoy the usufruct therefrom. An agreement was entered into by the Gram Panchayat with him on 11.01.1971 in this regard. The road thereafter vested in the control of the Zilla Parishad, West Godavari, Eluru, which confirmed the grant under a fresh lease agreement dated 17.02.1976. Sri Chintalapati Seetharama Raju having died on 01.05.1999, disputes arose amongst his heirs as to the subject grant. The Zilla Parishad, West Godavari, Eluru, therefore cancelled the tree patta under proceeding dated 23.02.2000. Challenging the same, the first and second petitioners herein, the sons of the deceased grantee, filed Writ Petition No.4499 of 2000 before this Court. One of his daughters, the second respondent herein, along with her daughter filed Writ Petition No.3509 of 2000 independently, challenging the cancellation and asserting exclusive rights under a will said to have been executed in their favour by late Sri Chintalapati Seetharama Raju. Both the writ petitions were disposed of by common order dated 20.12.2002, whereby a learned Judge of this Court, taking note of Condition No.20 of the original grant which recognized succession on the death of the grantee, set aside the cancellation of the tree patta and directed the petitioners in both cases to produce the necessary documents, including a legal heir certificate, and upon such production the Zilla Parishad, West Godavari, Eluru, was directed to pass appropriate orders. The learned Judge observed that if all the petitioners were entitled to succession, necessary directions may be passed in the order earmarking the number of trees that each legal heir is entitled to. Pursuant to the aforestated order, the Chief Executive Officer of the Zilla Parishad, West Godavari, Eluru, passed orders dated 21.09.2003 whereby, acting upon the will said to have been executed by late Sri Chintalapati Seetharama Raju, he allotted 131 trees in favour of the second respondent, 19 trees in favour of the first petitioner and 21 trees in favour of the second petitioner. Aggrieved by the said allotment, the first and second petitioners along with the other two daughters of the deceased grantee, the third and fourth petitioners, filed this case. The dispute thus is between the two sons and two daughters of late Sri Chintalapati Seetharama Raju, the petitioners herein, on the one hand and his other daughter, the second respondent, who claims exclusive rights pursuant to the will said to have been executed by late Sri Chintalapati Seetharama Raju in her and her daughter’s favour. Sri M.Adinarayana Raju, learned counsel for the petitioners, contended that as per the conditions of the grant, the same could not be assigned without the written consent of the Zilla Parishad and therefore, it was not open to the grantee to will it in favour of one heir to the exclusion of the others. The learned counsel submitted that all the heirs of the original grantee would be entitled to succeed to the grant and therefore the trees ought to be distributed equally amongst them. Per contra, Sri Polisetty Radha Krishna, learned counsel for the second respondent, sought to support the impugned proceeding contending that once the grantee had bequeathed the grant in favour of his client exclusively, the action of the Zilla Parishad, West Godavari, in respecting and implementing the same did not warrant interference by this Court. It is pertinent to note that pursuant to the common order of this Court in the earlier litigation, the petitioners produced family member certificate dated 16.05.2003 issued by the Mandal Revenue Officer, Veeravasaram Mandal, certifying that the petitioners and the second respondent were the sons and daughters of the original grantee. The Chief Executive Officer, Zilla Parishad, West Godavari, however did not put stock in this certificate and acted solely upon the will produced by the second respondent. The grant in favour of late Sri Chintalapati Seetharama Raju by the Zilla Parishad, West Godavari, was governed by the ‘Rules relating to the Acquisition and Transfer of Immovable Property by Mandal Praja Parishads and Zilla Praja Parishads’ framed in G.O.Ms.No.492, Planning and Local Administration (S&P), dated 10.04.1962. Rule 8 of these Rules deals with lease of road sides and street margins vested in the Zilla Praja Parishad and the lease deed in this regard has to be in Form (b) in Schedule-III appended to the Rules. The conditions in Form (b) posit that the lessee shall not assign, under-let or part with the possession of the demised land or any part thereof without first obtaining the written consent of the lessor or its authorised officers. The issue of heritability of the subject grant having been settled by this Court in the earlier round of litigation, the only question that remains for consideration is whether it was open to the original grantee to bequeath the said grant in favour of one heir to the exclusion of the others. Sri M.Adinarayana Raju, learned counsel, placed reliance upon the Division Bench Judgment of the Bombay High Court in DR.ANANT TRIMBAK SABNIS V/s. VASANT PRATAP PANDIT[1] in this regard. That case arose under the Bombay Rents, Hotel and Lodging House Rates Control Act, 1947. The connotation of the words ‘assign’ and ‘transfer’ used in the said legislation fell for consideration. The Division Bench held that in its generic sense, the words ‘assign’ and ‘transfer’ include every kind of transfer of property. Though conscious that the word ‘transfer’ ordinarily would mean transfer inter vivos and not testamentary disposition, the Bench observed that merely because a bequest becomes effective only after the death of the testator, it would not make the transaction anything other than a ‘transfer’. The Bench therefore confirmed that even a bequest would be a ‘transfer’ in its generic sense. The learned counsel would therefore urge that in the light of the prohibition as to assignment contained in the conditions of the grant it was not open to the grantee to assign it by way of a testamentary disposition. The adjudication by this Court in the earlier round of litigation has attained finality. In the common order dated 20.12.2002, this Court acted upon Condition No.20 of the original grant which recognized the right of succession of the legal heirs upon the death of the grantee. This Condition read with the Condition prohibiting assignment of the grant would lend itself to the meaning that the grantee had no right to transfer the grant by way of a will. This may be further illustrated by a hypothetical example. In the present case, the will was said to have been executed in favour of one of the daughters but it may well be possible that a grantee could execute a will in favour of a stranger. Recognizing such a bequest would nullify the prohibition of assignment of the grant under the Rules. In that view of the matter, this Court is inclined to adopt the principle laid down in DR.ANANT TRIMBAK SABNIS for the purpose of construing the word ‘assign’ used in the conditions of the lease in the present case. Once the petitioners produced a succession certificate naming all the children of the grantee, as directed by this Court in the earlier round of litigation, the Zilla Parishad, West Godavari, Eluru, ought to have considered the same in the proper perspective. Without reference to the said certificate and completely overlooking the condition which prohibited assignment of the grant, the Zilla Parishad seems to have blindly accepted the will produced by the second respondent and allotted the trees accordingly. The impugned proceeding dated 21.09.2003 is accordingly set aside. The Zilla Parishad, West Godavari, Eluru, shall pass fresh orders allotting the trees equally amongst the legal heirs of late Sri Chintalapati Seetharama Raju. This exercise shall be completed within three (3) months from the date of receipt of a copy of this order. The Writ Petition is allowed. Miscellaneous petitions filed in the writ petition shall stand dismissed in the light of this final order. Parties shall bear their own costs. ---------------------------- SANJAY KUMAR, J. _______ JULY, 2011 PGS [1] AIR 1980 BOMBAY 69