IN THE HIGH COURT OF JUDICATURE, ANDHRA PRADESH AT HYDERABAD (Special Original Jurisdiction) MONDAY, THE TWENTY EIGHTH DAY OF APRIL TWO THOUSAND AND FOURTEEN PRESENT THE HON'BLE SRI JUSTICE VILAS V. AFZULPURKAR WRIT PETITION No.36894 of 2013 BETWEEN V. Siva Prasada Rao and two others.
AND
... PETITIONERS The State of Andhra Pradesh, Rep. by its Principal Secretary, Revenue Department, Secretariat, Hyderabad and two others.
...RESPONDENTS Counsel for the Petitioners: MR. V. SURYA KIRAN KUMAR Counsel for the Respondents: GP FOR REVENUE The Court made the following:
ORDER:
Petitioners herein seek a Writ of Mandamus declaring the action of the third respondent in treating the land of the petitioners as ‘assigned land’ within the meaning of the Andhra Pradesh Assigned Lands (Prohibition of Transfers) Act, 1977 (for short ‘the Act’) as well as impugned endorsement dated 05.12.2013 as illegal and without jurisdiction.
2. Petitioners claim that they are all brothers and claim to be absolute owners of Ac.1.72 cents in Sy.No.572/1A3 of Chirala Village and Mandal, Prakasam District. It is stated that the mother of the petitioners purchased the aforesaid land under a registered sale deed, being No.2213/1983 dated 10.06.1983 and that the vendor of the mother of the petitioners had purchased the said land under document No.2301/1973 dated 20.10.1973 form one Dogarthi Venkateswarlu. The said Venkateswarlu claimed the land under a registered settlement deed No.269/1960 dated 11.02.1960. As per the resettlement register, sub-division No.572/1B to the extent of Ac.4.44 cents was assigned by the then Deputy Tahsildar vide Dis.93-DK 38 dated 22.11.1928.
3. Petitioners, therefore, contend that the original grant was made under Board Standing Order 15 by the then Government of Madras and at that point of time, there was no prohibition for alienation of assigned land and for the first time, such condition was imposed under G.O.Ms.No.1142 dated 18.06.1954. Petitioners claim that when they requested to enter their names in the record of right, the impugned endorsement was given while refusing to issue pattadar pass books and making entries in the name of the petitioners in the revenue record. Under the aforesaid endorsement, the third respondent stated that, as per the records, Sy.No.572/1A3 is recorded as Banjar land, being part of Ac.4.00 cent in Sy.No.572/1A3 and the land is already assigned to others. Aggrieved by the same, the present writ petition is filed.
4. While this Court called upon the official respondents to file counter, particularly, for placing on record the purported assignment of land to the predecessor in title of the petitioners, the official respondents have since filed a counter affidavit through the third respondent.
5. The counter affidavit states that the entire Sy.No.572/1A admeasuring Ac.10.43 cents was originally classified as ‘Assessed Waste’, as per Revenue Settlement Account of Chirala village and that land was sub-divided subsequently. As per the ‘D’ Register the land admeasuring Ac.4.00 cents in Sy.No.572/1A3 was assigned in favour of Doguparthi Venkateswarlu vide R.Dis.9/DK/1361 dated 25.10.1951 and hence, the contention of the petitioners that it was assigned in the year 1920 was denied. Para 4 of the counter, however, states that though condition of non-alienation was introduced in 1954 vide G.O.Ms.No.1142 dated 18.06.1954, the Act has got retrospective effect, hence, the impugned endorsement was justified.
6. Learned counsel for the petitioners placed strong reliance upon a decision of this Court in POLAVARAPU VEERA RAGHAVA SARMA v.
[1]
STATE OF ANDHRA PRDESH wherein this Court considered a similar question and held that since assignment, in that case, was prior to G.O.Ms.No.1142 dated 18.06.1954, no condition prohibiting alienation was stipulated and thereby, the land, in question, would not fall within the definition of assigned land under the Act. Learned counsel for the petitioners, further, contended that the assignment in the present case was as per BSO 15 and in view of that, subsequent amendment thereafter by G.O.Ms.No.1142 dated 18.06.1954 or the enactment of AP Act 9 of 1977 could not be made applicable. Reliance is also placed on two others decision of this court in K.M. KAMALLULA
[2]
BASHA v. DISTRICT COLLECTOR, CHITTOOR and an unreported judgment of a Division Bench in WA.No.187 of 2013 dated 13.02.2013 (to which I am a party).
In the aforesaid two decisions also, it was noticed that assignment prior to 1954 in Andhra area without the condition of non-alienation did not bring the said land within the definition of assigned land under the Act.
7. The pleadings of the parties show that the respondents do not deny the claim of the petitioners that the aforesaid land was assigned prior to G.O.Ms.No.1142 dated 18.06.1954 and while the petitioners claim the assignment dated 22.11.1928 under BSO 15, according to the third respondent, as stated in the counter affidavit, the said assignment is of the year 25.10.1951. In any case, the assignment being prior to 1954 and since it is not the case of the respondents that there was any condition of non- alienation attached to it, in the light of the said admitted position, it has to be seen whether the land falls within the definition of ‘assigned land’ under the Act. The said definition reads as follows:
“"Assigned Land" means 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”
8. It would be evident from the above, therefore, that in order to classify the land as an assigned land under the Act, the assignment must be burdened with the condition of non-alienation. Since in the present case, on facts, the counter affidavit does not claim that there is any condition of non- alienation attached to the said land, it is apparent that the said land does not fall within the definition of assigned land.
9. The aforesaid question is no more res integra in view of various decision, referred to above, including the decision relied upon by the learned counsel for the petitioners in POLAVARAPU VEERA RAGHAVA SARMA’s case (1 supra). In para 7 of the said decision reference to the other decisions was also made, which have consistently held that the assignment made prior to G.O.Ms.No.1142 dated 18.06.1954 did not contain any clause prohibiting alienation, hence, such land, though assigned, would not fall within the definition of assigned land under the Act.
In view of the above, the writ petition deserves to be allowed and is accordingly allowed. The impugned endorsement is set aside. The third respondent shall examine the claim of the petitioners with regard to issuance of pattadar pass books and pass appropriate orders with regard to grant of mutation in their favour. As a sequel, miscellaneous applications, if any, shall stand closed. There shall be no order as to costs.
VILAS V. AFZULPURKAR, J April 28, 2014 DSK
[1] 2014 (1) ALT 452
[2] 2009 (3) ALD 385