Judgment:
Vilas V. Afzulpurkar, J.
W.A. No. 1894 of 2002:
1. This appeal is preferred by the Joint Collector, Ranga Reddy District, the Revenue Divisional Officer, Ranga Reddy District and the Mandal Revenue Officer, Uppal, Ranga Reddy District against the order of the learned single Judge in W.P. No. 10278 of 2000. By the order impugned herein the learned single Judge has decided two writ petitions i.e. W.P. No. 10278 of 2000 filed by the respondent No. 1 herein and W.P. No. 18905 of 2000 filed by the respondents 2 and 3 herein, which have been dismissed. The said respondents 2 and 3 have not preferred any appeal and as such the issue involved in the present appeal is only with regard to W.P. No. 10278 of 2000.
2. The brief facts in this appeal are as follows:
(a) In the year 1961, the Government assigned an extent of Ac.3.25 guntas in Sy. No. 87/4 of Nagole village to one Somaiah. The said original assignee sold the said land to the first respondent herein (petitioner in W.P. No. 10278 of 2000) under a registered sale deed dated 20.04.1978 and the said sale was reflected in all the revenue records and mutations were made in favour of the first respondent. Later, it appears that the said original assignee died and his legal heirs - respondents 2 and 3 herein sought restoration of possession of the said land by approaching the Revenue Divisional Officer alleging that the original assignee sold the land to the first respondent in contravention of the conditions of assignment. On enquiry and by order dated 08.04.1998 the Mandal Revenue Officer passed an order directing resumption of land and restoration thereof in favour of respondents 2 and 3. Questioning the said order the first respondent preferred an appeal before the RDO, which was, however, dismissed and further appeal was preferred to the Joint Collector, which was also dismissed by order dated 13.03.2000.
(b) However, while dismissing the appeal, the Joint Collector directed that the possession of the land shall be taken over and resumed by the Government and the respondents 2 and 3 are not entitled to restoration of possession. Questioning the said order of the Joint Collector, the first respondent filed W.P. No. 10278 of 2000 and the respondents 2 and 3 filed W.P. No. 18905 of 2000 to the extent of denying restoration of the land to them.
3. Learned single Judge considered the issues raised in the said writ petition viz.
(i) whether the Andhra Pradesh Assigned Lands (Prohibition of Transfers) Act, 1977 (for short 'the Act') is applicable and (ii) whether the proceedings for resumption are maintainable after lapse of almost more than two decades. On the two issues the learned single Judge found in favour of the first respondent and consequently entitlement of respondents 2 and 3 for resumption did not arise for consideration and the writ petition filed by respondents 2 and 3 was dismissed in view of the writ petition of the first respondent, being W.P. No. 10278 of 2000, having been allowed. The said impugned order of the learned single Judge is in question in this appeal.
W.A. No. 720 of 2003:
4. The facts in this case are that the writ petitioners i.e. respondents 1 to 10 herein are owners of the plots 1,3,5, 8,17,18,27, 29,30, 53 and 53 being part of Sy. No. 49/7, Gajularamaram, Qutubullapur Mandal, Ranga Reddy District. The said respondents had alleged in the affidavit that an extent of Ac.5.00 guntas in Sy. No. 49 was allotted to one Sharada Bai under the proceedings of the Tahsildar No. A3/9765/1960 dated 21.03.1961 under the Laoni Rules, 1950. The said original allottee sought permission of the Tahsildar under Section 47 and 48 of the Andhra Pradesh (Telangana Area) Tenancy and Agricultural Lands Act, 1950 and was granted permission by Tahsildar on 30.10.1967 whereupon she sold the said property to one Bhagavanth Rao Mashalkar under registered sale deed dated 18.12.1967. Thereafter, the said purchaser obtained layout and divided the land into different plots and sold the said plots as referred to above to each of the respondents under various registered sale deeds on various dates from 1979 -1982. The Collector, however, issued proceedings dated 17.08.1996 seeking resumption of the entire land on the ground that the condition of assignment was violated by Sharada Bai when she alienated the said land and proceedings for resumption thereof were issued.
5. Questioning the same, the respondents 1 to 10 filed WP. No. 4874 of 1997 before this Court challenging the order of the District Revenue Officer and Additional District Magistrate, Ranga Reddy dated 17.08.1996. In this writ petition also similar questions were raised (i) whether the Andhra Pradesh Assigned Lands (Prohibition of Transfers) Act, 1977 is applicable and (ii) whether the said order of resumption can be passed after long lapse of time. The said writ petition was allowed by another learned single Judge, questioning the same, the District Revenue Officer and Mandal Revenue Officer, Ranga Reddy District have filed the present appeal.
6. We have heard the learned Advocate General on behalf of the learned Government Pleader for Assignment for the appellants and Sri D. Prakash Reddy, learned senior counsel for the contesting first respondent in W.A. No. 1894 of 2000 and Sri M.V.S. Suresh Kumar, learned Counsel appearing for respondents in W.A. No. 720 of 2003.
7. At the outset, we may mention that similar question was considered by another Division Bench of this Court in W.P. No. 14795 of 2005 and batch under judgment dated 02.09.2008, which is also reported as Letter Sent From Plot No. 338, etc. v. Collector & District Magistrate : 2008 (5) ALT 313 : 2008 (5) ALD 626 (D.B.). Keeping in view the aforesaid decision, the respective learned Counsel have made their submissions.
8. Learned Advocate General has contended that the original policy of assignment under Laoni Rules underwent a change after the revised assignment policy vide G.O.Ms. No. 1406 dated 25.07.1958 and under the said later policy, the lands assigned are heritable but not alienable. It s contended that the assignment in the present case is of 1961, which is after the revised assignment policy referred to above and as such the Laoni Rules or the assignment thereunder has no application to the present case. It is also contended that the plea of adverse possession taken on behalf of the respondents is not sustainable nor it can be decided in proceedings under Article 226 of the Constitution of India.
9. Learned Advocate General relied upon a decision of the Supreme Court in B. Leelavathi v. Honnamma and Anr. : 2005 (4) SCJ 347 : (2005) 11 SCC 115 : 2005 (5) ALT 1.3 (DN SC) for the proposition that adverse possession must be specifically pleaded and established and is a question of fact, which has to be proved on evidence.
10. Sri D. Prakash Reddy, learned senior counsel and Sri M.V.S. Suresh Kumar, learned Counsel appearing for the contesting respondents respectively have contended that the Act has no application inasmuch as the assigned land defined under the Act must be a land which is subject to a condition of non-alienation. Section 2 Sub-clause (1), which defines assigned land is relied upon and the same is extracted below:
2(1). '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.
11. it is also contended that the orders of assignment in both the matters are issued under Form-G referable to Rule 9(g) under the Laoni Rules. However, one of the conditions of the said order of assignment specifically declares that the grantee is not empowered to transfer the occupancy sanctioned without previously obtained permission from the Tahsildar and thereby it is contended that the grant specifically permits alienation subject to permission of Tahsildar. So far as W.A. No. 720 of 2003 is concerned specific written permission of the Tahsildar is referred to and relied upon and it is contended that when the transfer was as per previous permission granted by the Tahsildar, it cannot be said that there was any violation. It is also contended that the impugned proceedings for resumption were taken up by the appellants in April 1999 so far as W.A. No. 1894 of 2002 is concerned whereas the assignment in that case was of the year 1961, thus the period of almost 40 year has elapsed. Similarly, in W.A. No. 720 of 2003 though the assignment was of 1961 the impugned proceedings for resumption were taken up in 1996 after a lapse of almost 35 years.
12. It is also contended that the power of revision is exercised by the District Revenue Officer by invoking Section 166-B of the Andhra Pradesh (Telangana Area) Land Revenue Act while passing the order of resumption, which is subject matter of W.A. No. 720 of 2003 and the learned Counsel for the respondents contends that such power of revision under Section 166-B cannot be resorted to after almost 40 years of assignment.
13. We have considered the aforesaid submissions with reference to the records in the respective appeals as well as the decision of this Court referred to above. In both the appeals, the order of assignment is clearly under the Laoni Rules, which specifically permits alienation subject to prior permission of Tahsildar. On the face of it, therefore, when the order of assignment permits alienation, we cannot read the said order as prohibiting alienation, as contended by the learned Advocate General. The assignment policy under the Laoni Rules does not prohibit alienation and it is only under the revised assignment policy issued under G.O.Ms. No. 1406 dated 25.07.1958 that such a condition of non-alienability was introduced in all assignments. It is also to be noticed that the revised assignment policy aforesaid does not repeal the earlier assignments made under the Laoni Rules.
14. The other aspect viz. power of resumption, even if available, having been exercised after long length of time is also not permissible in view of the ratio in the decision of the Supreme Court in Ponnala Narsing Rao v. Nallolla Pantaiah and Ors. : (1998) 9 SCC 183 : JT 1998 (7) SC 600. It is evident that during the interregnum, several developments have taken place with reference to the lands in question and at this length of time the names of the purchasers are mutated in the revenue records and respective purchaser has been enjoying the property as owner thereof for several years. Thus, even without going into the question of adverse possession and its applicability, it is evident that the petitioners have altered their position based upon long length of time, therefore, it cannot be allowed to be nullified at such distance of time. In view of that also the proceedings for resumption impugned in these matters, having not been exercised within a reasonable time, the appellants are not entitled to any relief.
15. This Court in the decision Letter Sent From Plot No. 338, Etc.'s (1 supra) referred to above also found that assignment, which is not made with a condition of non-alienability does not fall within the definition of assigned lands as contemplated under the Act. The grant of 1961, which is the subject matter of both these appeals, therefore, does not fall within the definition of assigned land under the aforesaid Act and as such, the said Act has no application. This Court even went further and found in the above decision that the condition of alienation can be enforced only in the event of there being a notification under Section 58-A of Andhra Pradesh (Telangana Area) Land Revenue Act with reference to transfer of occupied lands in respect of notified villages. The said entire aspect including Laoni Rules vis-a-vis revised assignment policy was duly considered by the Division Bench and it was held as follows:
We are of the view that provisions of Act No. 9 of 1977 will not be applicable to the cases where assignment were made on collection of market value or under Circular 14 except it were granted to the landless poor persons free of market value.
The ratio in the above decision squarely applies to the facts of the present case and as such, the issues raised on behalf of the appellants in this appeal are liable to be answered against the appellants and the appeals are liable to be dismissed and accordingly dismissed. There shall be no order as to costs.