IN THE HIGH COURT OF JUDICATURE, ANDHRA PRADESH AT HYDERABAD (Special Original Jurisdiction) THURSDAY, THE TWENTY THIRD DAY OF APRIL TWO THOUSAND AND NINE PRESENT THE HON'BLE MR JUSTICE GODA RAGHURAM WRIT PETITION NO : 8805 of 2008 Between: 1 Khambampati Yarukalaiah, S/o.Sri Prasad, R/o.Andukur(V) Krosur(M) Guntur Dist 2 Sikha Mozes S/o.Sri Ratnam R/o.Velpur(V) Achampet(M) Guntur Dist ..... PETITIONER(S) AND 1 The Tahasildar Edlapadu(M) Guntur Dist 2 The Revenue Divisional Officer Narasaraopeta Guntur Dist .....RESPONDENT(S) Petition under Article 226 of the constitution of India praying that in the circumstances stated in the Affidavit filed herein the High Court will be pleased to to issue a writ of Madamus or any other appropriate writ,order or direction directing the respondents not dispossess the petitioners from possession of the property to the extent of Ac.1-00 cents in Sy.No.520A1z21 in relation to the 1st petitioner and ac-2-99 cents property in Sy.Nos 520AIV 520AIY& 520A1 in relation to the 2nd petitioner of Mydhavole(V) Edlapadu(M) Guntur Dist without following the procedure stipulated under the A.P Assignment Lands (Prohibition of Transfers) act 1977 and the Rules made thereunder and pass Counsel for the Petitioner:MR.C.RAGHU Counsel for the Respondent No.: GP FOR REVENUE The Court made the following: THE HON’BLE SRI JUSTICE GODA RAGHURAM W.P.No. 8805 of 2008 23-04-2009 Oral Order: A direction to the respondents not to dispossess the petitioners of property of an extent of Ac.1-00 in survey No. 520A1Z21 in relation to the 1st petitioner and an extent of Ac.02-99 cents of land in survey Nos. 520A1V, 520A1O, 520A1Y & 520A1 in relation to the 2nd petitioner of Mydhavole village, Edlapadu Mandal, Guntur District, without following the procedure under the provisions of the Andhra Pradesh Assigned Lands (Prohibition of Transfers) Act, 1977 (for short ‘the Act’) and the Rules made thereunder, is the relief sought in this writ petition. The 1st petitioner claims to have purchased the land in an extent of Ac.01-00 cents from one Dadi Veeranjaneyulu on 16-11-2006 after paying Rs.80,000-00 and to have obtained possession of the property from Veeranjaneylu. Eversince which he claims to be in possession. The 2nd petitioner claims to have purchased land in an extent of Ac.2-99 cents also from Veeranjaneylu on 31-10- 2006 for a consideration of Rs.2,39,200-00; to have been delivered possession of the property and to be in continuous possession thereof. The 1st respondent issued a notice dated 19-04-2007 under the provisions of the Act to Dadi Veeranjaneyulu, but no notice was issued to the petitioners. The notice to Veeranjaneylu was issued alleging violation of the provisions of the Act and proposing resumption of the lands assigned to Veeranjaneylu. According to the petitioners on 05-04-2008 the 1st respondent accompanied by the Mandal Revenue Inspector came on to the property and tried to dispossess the petitioners. Though in paragraph No.3 of the affidavit filed in support of the writ petition, the petitioners claim to have purchased the property from Veeranjaneylu, but in paragraph No.5 of the affidavit filed in support of the writ petition they state that Veeranjaneylu had himself purchased various small extents of lands in different survey numbers in 1988 under registered sale deeds and they were sold to the petitioners as mentioned above by unregistered agreements of sale dated 16-11-2006 and 31-10-2006. In substance the petitioners plead that the Act and the Rules made thereunder contemplate notices to be issued in Forms-I and II. The notice in Form-I should be issued to an assignee and notice in Form-II to the person in possession of the assigned property. As the petitioners are persons in possession of the property, they should have been issued notices in Form-II and no such notices having been issued, any determination of the illegality of the conveyance of assigned property by Veeranjaneylu or for resumption of land to the Government is unsustainable and on the basis of such illegal conduct, the petitioners cannot be dispossessed, is the sum and substance of the petitioners’ case. The 1st respondent has filed a counter affidavit stating that prior to 1977 an extent of Ac.03-99 cents of land in the specified survey number of Mydavolu village of Edlapadu Mandal was assigned to several persons belonging to Scheduled Castes and Backward Classes of the village. This assigned land, notwithstanding the prohibition under the Act, was alienated in favour of Veeranjaneylu. Thereupon notices were issued in favour of the assignees and alienees for violation of the conditions of Section 3 (2) of the Act in January, 2007 by notice sent by registered post as also by way of affixture. No explanation having been offered either by the alienees or assignees, the land was resumed. In paragraph No.5 of the counter affidavit, it is specifically averred that as per the revenue records Veeranjaneylu is in possession and enjoyment of the schedule property but not the petitioners. In the circumstances, the respondents deny any obligation to issue a notice, as the petitioners are not in possession of the property. In paragraph No.10 of the counter, the 1st respondent sates that the original assignee sold the land to various persons at various times, therefore notices were issued in Form-II on 22-04-2007. They received the notices, but failed to respond. Thereupon the answering respondent passed orders on 19-04-2007 resuming the land in favour of the Government. The resumption orders were also served on the alienees on 22- 04-2007 and possession of the land was taken on behalf of the State on 20-08-2007. The alienees neither preferred an appeal before the Revenue Divisional Officer nor have submitted representations. Notices were served on the alienee, Veeranjaneylu, is the sum and substance of the counter affidavit by the 1st respondent. Though the counter affidavit was filed on 20-06-2008 there is no affidavit in rebuttal on behalf of the petitioners. In the circumstances, the averments in the counter affidavit will have to be treated as un-traversed by the petitioners and un- rebutted. In the factual matrix above, the petitioners have not made out a case for grant of any relief. They failed to establish that they were in possession of the lands in question. Admittedly they are alienees from Veeranjaneyulu who himself was an alienee from persons who were assigned land subject to a condition of inalienability. The alienation in favour of Veeranjaneylu itself is in transgression of the provisions of Section 3 (2) of the Act and by virtue of the declaration under Section 3 (2) of the Act confers no right on Veeranjaneyulu. What Veeranjaneyulu does not have, he cannot transmit to the petitioners and the petitioners are also not entitled to any due process since they failed to establish that they were in possession of the lands in question. The learned counsel for the petitioners would strenuously urge that the provisions of Section 53-A of the Transfer of Property Act aid the petitioners’ in resisting dispossession and protecting their current possession. This contention is stated to be rejected. The provisions of Section 53-A of the Transfer of Property Act, would aid the petitioners if they are in possession of the property pursuant to a transfer, though not in accordance with law governing such transfers with regard to the registration, only as a shield against the transferor or those claiming under the transferee. It is not a shield in rem. It is nobody’s claim that the State Government is claiming the right of resumption of the land on account of the transgression of the provisions of Section 3 (2) of the Act qua the petitioners’ transferor – Veeranjaneylu. The right of the Government to resumption of the lands is consequent on the legislative declaration of invalidity of a prohibited transaction qua the provisions of Section 3(2) of the Act. Section 53-A of the TP Act is therefore a non sequitor. On the aforesaid analysis, there are no merits. The writ petition is accordingly dismissed. No costs. ____________________ GODA RAGHURAM, J Dated: 23-04-2009 Pvks