THE HON’BLE MR JUSTICE L. NARASIMHA REDDY + W.P.No.8511 of 2009 % -06-2009 Between: G.Sarvaiah Goud and others. …Petitioners And Government of A.P. and others …Respondents ! Counsel for Petitioners : Sri K.Vivek ^ Counsel for Respondents: G.P for Revenue < Gist: > Head Note: ? CITATIONS: (1997) Supreme Court Cases 151 THE HON’BLE SRI JUSTICE L.NARASIMHA REDDY WRIT PETITION No.8511 of 2009 JUDGMENT: The petitioners feel aggrieved by a memo, dated 18.01.2008, issued by the Joint Collector-I, Ranga Reddy District, the 2nd respondent herein. The relevant facts that gave rise to filing of the Writ Petition, as stated by the petitioners, are: Petitioners 1 to 4, father of petitioner No.5 and husband of petitioner No.6 are the sons of one Gouni Agaiah Goud of Turkayamjal Village. Agaiah Goud was in possession and occupation of an extent of Acs.9.27 guntas of Government land in Survey No.557 of Turkayamjal Village, Hayathnagar Mandal, Ranga Reddy District, since 1930. Recognizing his possession, the authorities of the revenue department issued proceedings, dated 03.05.1955, for assignment of the land as “Louni Khas”. Subsequently, the land was partitioned among the members of the family. The Mandal Revenue Officer, Hayathnagar, the 4th respondent herein, filed a case, being O.P.No.681 of 1994, before the District Court, Ranga Reddy District, under the A.P. Land Grabbing (Prohibition) Act, 1982 (for short ‘the 1982 Act’), against the father of the 5th petitioner, by name Balaraj Goud, alleging that he grabbed the Government land in Survey No.557. The O.P. was dismissed on 30.10.1998, holding that Balaraj Goud cannot be treated as a land grabber, in view of the proceedings issued in favour of his father Agaiah Goud in the year 1955, for assignment of the land. The 4th respondent filed an appeal before the Special Court, along with I.A.No.1320 of 1999 for condonation of delay of 310 days. The Special Court refused to condone the delay, and accordingly, dismissed the appeal, through order, dated 23.06.2000. The petitioners and Agaiah Goud approached this Court by filing W.P.No.8344 of 2007, complaining that, (a) the action of the respondents in not issuing pattadar pass books (for short ‘pass books’) in respect of the land, and (b) initiating steps for assignment of the land in favour of third parties, is illegal, arbitrary and contrary to law. The writ petition was disposed of through order, dated 27.09.2007, directing that the District Collector shall take decision on the letter dated 05.07.2003, addressed by the 4th respondent, and depending on decision, the 4th respondent shall take further steps. Acting on the directions issued by this Court, the 2nd respondent issued the impugned memo, stating that the request of the petitioners for issuance of pass books and title deeds is not feasible of compliance, since there has been no valid transfer of land in their favour by the Government. The petitioners contend that their possession over the land as well as their entitlement to enjoy it, has been accepted by the District Court in O.P.No.681 of 1994, filed by none other than the 4th respondent, and hardly any doubt exists, as to the ownership of the petitioners, over the land. They state that, whatever may have been vulnerability of the petitioners to be evicted, till the matter is landed before the District Court, once a specific order is passed on the basis of the evidence on record, that the land was assigned to them, under Ex.B.1, marked in the O.P., the respondents cannot refuse to comply with the formality of issuance of pass books under the A.P. Rights in Land and Pattadar Pass Books Act, 1971 (for short ‘the Act’). Sri K.Vivek, learned counsel appearing for the petitioners, submits that issuance of pass books and title deeds under Section 6-A of the Act, is nothing, but a formality of recognition of ownership, and once the petitioners have fulfilled the facets and trappings of owners, vis-à-vis the land, there is no justification on the part of the respondents to, withhold the same. He further contends that the 4th respondent himself addressed a letter in the year 2003, to the effect that a supplementary setwar can be issued in favour of the petitioners, and despite the same, the impugned memo was issued on hyper- technical grounds. He places reliance upon a judgment of the Supreme Court in Charan Singh v. State of Punjab[1]. Learned Government Pleader for Revenue, on the other hand, submits that the petitioners have not acquired ownership in respect of the land, and in the absence of the same, pass books cannot be issued. He contends that sub-section (5) of Section 6-A of the Act declares that a pass book and title deed, issued under sub-section (1), is equivalent to any instrument, through which title is acquired, and unless a valid transfer takes place, the pass books cannot be issued. Agaiah Goud occupied Acs.9.27 guntas of Government land in Survey No.557 of Turkayamjal Village, Hayathnagar Mandal, Ranga Reddy District, way back in the year 1930. Though the revenue records are silent, as to the nature of enjoyment over the land up to the year 1955, the pahanies for the years 1955-58 show that Agaiah Goud was in possession and enjoyment of the land. The Assignment Committee of the area has taken a decision, at its meeting held on 11.02.1955, for grant of pattas as “Louni Khas”. The possession, in so far as it relates to the land, under enjoyment of petitioners, was also recorded in the concerned revenue records. It was only in the year 1994 that the 4th respondent filed O.P.No.681 of 1994 against Balaraj Goud, one of the sons of Agaiah Goud, under the 1982 Act. It was alleged that Balaraj Goud occupied Acs.3.08 guntas of Government land in Survey No.557, without any legal entitlement. Counter-affidavit was filed stating, inter alia, that Acs.9.27 guntas of land was assigned in favour of Agaiah Goud, and that the allegation against them is without basis. A detailed trial was conducted and evidence was recorded. Ex.A.1 is the pahani, filed by the 4th respondent himself. In Ex.A.1, the name of Agaiah Goud was shown as enjoyer of the land, admeasuring Acs.9.26 guntas in Survey No.557. On his part, Balaraj Goud filed Ex.B.1, Photostat copy of Louni certificate, and Ex.B.2 is its English translation. He has also filed a bunch of land revenue receipts, marked as Ex.B.5. Ex.B.6 is a letter, addressed by the Turkayamjal Co-operative Society, which advanced loan to Agaiah Goud by mortgaging the land. The proceedings through which the land was mortgaged were marked as Exs.X.1 and X.2. The District Court took note of these documents and dismissed the O.P. with the following observations: “Ex.B.1 is the certified copy of the Launi. Certified copy of Ex.B.1 has been produced by RW.3 who is the father of the respondent before the Farmers Cooperative Service Society while obtaining loan. Ex.X.1 file contains certified copy. Ex.B.2 is the true English translation of Ex.B.1. As can be seen from Ex.B.2, a decision was taken by the committee in 1952 A.D. to allot the lands to beneficiaries. Ex.B.3 is the Photostat copy of the list of beneficiaries. Certified copy of Ex.B.3 has been filed by the father of the respondent before the Farmers Cooperative society while obtaining loan. Ex.X.1 file contains the certified copy. Ex.B.4 is the true English translation of Ex.B.3. As can be seen from Ex.B.4 the lands were assigned to the beneficiaries in the year 1955 AD. The documents brought on record and ocular testimony of RW1 to RW3 clearly establish that the father of the respondent came into possession of the land bearing S.No.557 admeasuring Acs.9.26 guntas in the year 1952 itself under launi khas. The petition schedule property is part and parcel of the land which the father of the respondent came in possession in the year 1952 itself. Therefore, the respondent cannot be termed as land grabber.” An appeal was also filed before the Special Court constituted under the 1982 Act, against the judgment in O.P.No.681 of 1994, along with an application for condonation of delay. The Special Court was not satisfied with the explanation offered for the delay and dismissed the application, through order, dated 23.06.2000. While refusing to condone the delay, the Special Court discussed the merits, though not in detail. Taking Ex.B.1 into account, the Special Court also took the view that Balaraj Goud cannot be said to be a land grabber. After the proceedings under the 1982 Act assumed finality, Agaiah Goud and the petitioners herein made their efforts to obtain pass books, obviously with a view to put an end to the uncertainty and to enjoy the property effectively. Acting on their application, the 4th respondent addressed a letter, dated 05.07.2003, recommending that supplementary setwar be issued in favour of the petitioners. When that was not acted upon, the petitioners filed W.P.No.8344 of 2007 before this Court. The writ petition was disposed of, with the following directions: “Having regard to the facts and circumstances of the case, the writ petition is disposed of directing the District Collector, Ranga Reddy District, to take appropriate decision, pursuant to the report submitted by the Deputy Collector and Tahsildhar, Hayathnagar Mandal, Ranga Reddy District, vide letter No.C/3147/94, dated 05.07.2003, without any undue delay. On such decision taken by the District Collector, Ranga Reddy District, the Deputy Collector and Tahsildhar, Hayathnagar Mandal, Ranga Reddy District, shall take appropriate steps for issuance of pattadar pass book and title deed in favour of the 1st petitioner, without any undue delay. However, the whole exercise shall be completed within a period of eight weeks from the date of receipt of a copy of this order. There shall be no order as to costs.” As a measure of compliance with the directions issued by this Court, the 2nd respondent issued the memo. The factors that were taken into account and the result of consideration thereof, are reflected in the following paragraphs: “The Dy. Collector & Tahsildar, has reported that the petitioner Sri Gouni Agaiah Goud, S/o Late Sarvaiah is in possession of the land in Sy.No.557, Adm.Ac.9-26 gts of Turkayamjal Village. It was also reported that no assignment certificate was issued to Sri Gouni Agaiah and others. The issue was examined with reference to the material available on record and noticed as under: a) that the land was recommended for assignment in favour of Gouni Agaiah, S/o Sarvaiah, but no assignment was made. b) That the LG Court and Spl Court also held that the applicant is not a land grabber, since the assignment was recommended in his favour. But no assignment is made, and as such he is not an assignee. c) The status of the applicant is no more than that of an occupant, if not an encroacher.” The only ground on which the 1st respondent refused to accede to the request of the petitioners is that, no valid transfer of land has taken place from the Government, in favour of the petitioners. Ownership and possession are two independent attributes of a tangible property, recognized in almost every legal system. While in some cases, both of them vest in the same individual, it is not uncommon that one individual enjoys the rights of ownership, and another right of possession, vis-à-vis the same property. There is hardly any well-recognized jurist, who did not bestow his best part of attention to these concepts, or legal attributes, as one may chose to refer to them. Assumption of possession of any property may take place with or without the consent and participation of the owner thereof. Transfer of ownership, however, can take place through methods recognized in law. Unilateral acts of a person, who can assume possession of a property, hardly can be of any help, in change or transfer of ownership. Till the advent of agrarian reforms, more particularly, in India, transfer of title over an item of immovable property invariably depended upon the volition, or inclination on the part of the existing recognized owner. With the advent of such reforms and successive enactment of relevant laws, in that direction possession of a person over a property particularly the land, at a given point of time, by itself constituted a factor, to confer ownership upon him, irrespective of the opposition and resistance, on the part of the recognized owner of property. Reference in this context may be made to relevant legislations, such as A.P. (T.A.) Tenancy and Agricultural Lands Act, A.P. (T.A.) Abolition of Inams Act, A.P. (A.A.) Inams (Abolition and Conversion into Ryotwari) Act, A.P. (A.A.) Estates (Abolition and Conversion into Ryotwari) Act etc. Apart from legislating laws to confer ownership on occupants as regards private lands, Government has also recognized as its obligation, to assign its own land, in favour of landless poor. Committees were constituted to verify the eligibility of the persons to be granted pattas. While in some cases the grant of patta constituted the basis to induct the assignee into possession over a piece of land, in other cases, it was only an exercise to recognize the existing possession or occupation of the Government land, by a landless poor. Conditions of assignment varied, in the sense that, it was either free of cost, or on payment of a token amount towards consideration. Reverting to the facts of the present case, the respondents did recognize the fact that Agaiah Goud was in possession of an extent of Acs.9.27 guntas of Government land in Survey No.557 of Turkayamjal Village, Hayathnagar Mandal, Ranga Reddy District. The true translation of endorsement made in Column No.14 of proceedings filed as Ex.B.1 in O.P.No.681 of 1994 reads as under: “As per the decision taken in the Committee held on 11th March, 1955 A.D. at Hayath Nagar, the Riyots of the village, whose names are shown in this thakhtha, the Dry lands as detailed in columns 8 to 11 have been given. It would be proper if the sanction is accorded for the grant of patta as LAUNI KHAAS.” Consequences that have flown from Ex.B.1 were reflected in Ex.A.1, which is a pahani for the years 1955-58. Agaiah Goud’s name was shown as possessor over the land for that period. The subsequent entries are not at variance. The District Court treated Ex.B.1 as the source of title, and accordingly, refused to hold that the occupant of the land does not have legal entitlement for it. This view was affirmed by the Special Court. The 4th respondent also felt that the supplementary setwar deserves to be issued for it. In the light of the above, the view taken by the 2nd respondent that regular transfer of the land has not taken place from the Government, cannot be accepted. The reason is that the 2nd respondent did not mention as to in what particular manner the transfer ought to have taken place. He did not state as to why the ‘Launi Khas’, marked as Ex.B.1 in O.P.No.681 of 1994 cannot be treated as transfer from the Government. Whatever may be the requirement in law for transfer of title between two private individuals, the manner in which a Government property can accrue to a private individual, and in particular a landless poor, cannot be expected to be in a particular mode. It has already been mentioned that the Government itself recognized its obligation under the Directive Principles of State Policy, enshrined in the Constitution, to ensure that the property at its disposal is distributed to the deserving poor. In Charan Singh’s case (supra), the Hon’ble Supreme Court held as under: “It is now settled policy of the Government as enjoined under Article 46 of the Constitution and the Directive Principles, particularly Articles 38 and 39(b) and the Preamble of the Constitution that economic and social justice requires to be done to the weaker sections of the society, in particular to the Scheduled Castes and Scheduled Tribes and to prevent them from social injustice and prevention of all forms of exploitation. In the light of that constitutional objective of economic empowerment, the Government have rightly taken the policy to assign the lease either to a Cooperative Society composed of the Scheduled Castes or individual members of the Scheduled Tribes, as the case may be, in accordance with their policy then in vogue at the rate of Rs.20 per acre or 90 times the land revenue, whichever is less. Under these circumstances, the appellants having been inducted into possession reclaimed the land and remained in possession after the expiry of the lease, the Government is required to regularize their possession and assign the lands in their possession in accordance with its policy. The appellants, therefore, are directed to make necessary application within four weeks from today to the competent authority and the authorities are directed to regularize their possession imposing necessary conditions for their continuance in possession and enjoyment of the same in the light of the constitutional objective of rendering them socio-economic justice, putting restrictions on sub-letting or selling, all the relevant conditions in that behalf may be imposed so that they remain in possession and enjoy the same to improve their social and economic status as enjoined under the Constitution. The authorities also are directed to dispose of the applications within a period of two months from the date of the receipt of the same. The appellants shall remain in possession until the regularization is done and shall enjoy the lands without any sub-letting or alienation thereof.” The facts of the present case are similar, if not identical to those, in that case. The matter can be viewed from another angle also. Issuance of pass books and title deeds under Section 6-A of the Act is not by itself an act of conferment of ownership. Sub-section (5) thereof attaches evidentiary value to them, exclusively for the purpose of equitable mortgage under the Transfer of Property Act, 1882, and treats it on par with a document, registered in accordance with the provisions of the Registration Act, 1908. In the ultimate analysis, the exercise is, one of recognition of the jural relationship, which is already in existence as regards, the land in question. To be precise, if the transfer of a land, by way of a sale, is a primary act, issuance of pass books and title deeds under Section 6-A of the Act, in favour of the transferee, is a secondary or consequential step. Further, Section 6-A of the Act itself enables issuance of pass books and title deeds in favour of a person, other than an owner also. Even a tenant is entitled to be issued pass book and title deed, may be, for a limited purpose. Section 6-A of the Act reads as under: “6-A .Pass Book holder to have entries of alienation etc. recorded in Pass Book :- (1) Every Owner, Pattadar, mortgagee, or tenant of any land shall apply for the issue of a pass book and title deed to the Mandal Revenue Officer on payment of such fee as may be prescribed. The owner-pattadar shall apply for the issue of a title deed in addition to a pass- book. Provided that an occupant of an inam land is also eligible to apply for the issue of a pass book and title deed as an occupant; Provided further that where no application is made under this sub-section the Mandal Revenue Officer may suo motu issue a Pass Book after following the procedure prescribed under sub-section (2) and collect the fee prescribed therefor. (2) On making such application, the Mandal Revenue Officer shall cause an enquiry to be made in such manner as may be prescribed and shall issue a title deed and pass book in accordance with the Record of Rights with such particulars and in such form as may be prescribed: Provided that no such title deed and pass book shall be issued by the Mandal Revenue Officer unless the Record of Rights have been brought up to date. (3) The entries in the title deed and pass book may be corrected either suo motu or on an application made to the Mandal Revenue Officer in the manner prescribed. (4) The Government may prescribe by rules the manner in which the title deed and pas book may be issued to all owners, pattadars, mortgagees or tenants and to such other person in accordance with the record of rights. (5) The title deed issued under sub-section (1) and duly certified by the Mandal Revenue Officer, or such other authority as may be prescribed, shall be the title deed in respect of an owner- pattadar and it shall have the same evidentiary value with regard to the title for the purpose of creation of equitable mortgage under the provisions of the Transfer of Propety Act, 1882 as a document registered in accordance with the provisions of the Registration Act, 1908 has under the law.” Under the 1st proviso to sub-section (1), even an occupant of an inam land can be issued pass book, though he is not the owner, nor any transfer has taken place in his favour. The main purpose of issuance of pass books and title deeds is mentioned in sub-section (5) of the Act. It is, principally, to enable the holder thereof, to create mortgage, which happens to be one of the important facets of exercise of rights over immovable property. Sir John Salmond, in his ‘Salmond on Jurisprudence’ emphasized the importance of recognition of possession over a property. He observed, “Few relationships are as vital to man as that of possession, and we may expect any system of law, however primitive, to provide rules for its protection. Human life and human society, as we know them, would be impossible without the use and consumption of material things. We need food to eat, clothes to wear and tools to use in order to win a living from our environment. But to eat food, we must first get hold of it; to wear clothes, we must have them; and to use tools, we must possess them. Possession of material things then is essential to life; it is the most basic relationship between men and things. Nor is it just the acquisition of possession that is essential. A society lacking all respect for individual possession would quite clearly be unviable. If a man could never be sure that the food before him, the coat on his back and the tool in his hand will not be snatched from him by his neighbour, then obviously life in society would be completely impracticable. Simple economics dictates that, as a minimum, some measure of uninterrupted enjoyment is a prerequisite to man’s deriving any benefit or value from material objects and that such temporary possession must be respected by, and protected from, his neighbours. For this reason, law must provide for the safeguarding of possession. Human nature being what it is, men are tempted to prefer their own selfish and immediate interests to the wide and long-term interests of society in general. But since an attack on a man’s possession is an attack on something which may be essential to him, it becomes almost tantamount to an assault on the man himself; and the possessor may well be stirred to defend himself with force. The result is violence, chaos and disorder. In so far therefore as a legal system aims to replace self-help and private defence by institutionalized protection of rights and maintenance of order, it must incorporate rules relating to possession.” (See Salmond on Jurisprudence, Twelfth Edition, by P.J.Fitzgerald, page 265) Unwillingly or otherwise, Section 6-A proposes, in a way, to institutionalize possession, a desire expressed by the jurist named above. The importance of possession over the property, particularly the land, has its own significance. Permissive possession, or that of a tenant, may not be that much harmful to owner. Even if such a possessor is not inclined to return it to the actual owner on expiry of the tenancy or permission, the latter may institute proceedings in accordance with law, and recover it. A person in possession