Boga Satyanarayana Vs. the Mandal Revenue Officer (Tahasildar) - Court Judgment

THE HON'BLE MR JUSTICE L.NARASIMHA REDDY WRIT PETITION No.25382 OF 201.17.08.2012 Boga Satyanarayana The Mandal Revenue Officer (Tahasildar) and others.

Counsel for petitioner: Sri Ghanshyamdas Mandhani Counsel for Respondents : GP for REvenue HEAD NOTE: ?Cases referred 2008 (5) ALD 62.(DB) ORDER: The petitioner purchased Ac.0.10 guntas of land in survey No.735 of Kothapally Village, Karimnagar District, through a sale deed, dated 29.08.2006.

He has traced the origin of his title to the land and submits that much prior to 25.07.1958, the land was assigned, and thereafter, several transactions of civil have taken place.

According to him, the prohibition contained under Section 3 of the A.P.

Assigned Lands (Prohibition of Transfers) Act, 1977 (for short 'the Act') does not apply to the land, since no condition was imposed prohibiting alienation of the land in survey No.735, when it was assigned.

Reference is made to G.O.Ms.No.1406 dated 25.07.1958, through which, conditions prohibiting alienation of the land are incorporated.

The Tahasildar, Karimnagar, the 1st respondent, issued a notice, dated 12.07.2012, to the petitioner and one K.Narsaiah, under Section 3 of the Act, requiring them to explain as to why the land be not resumed, since it was transferred in violation of the condition of assignment.

The same is challenged in this writ petition.

Sri Ghanshyamdas Mandhani, learned counsel for the petitioner, submits that the notice is silent as to the date on which the land was assigned or as to existence of conditions prohibiting alienation.

He contends that a Division Bench of this Court in a taken up case, being W.P.No.14795 of 2005 and batch,1 held that the notice issued under the Act for resumption of the land must specify various aspects, including the nature of entries in the Khasra pahani for the year 1954-55, the changes thereof, the date of notification, date of assignment etc.

He submits that the impugned notice is contrary to law.

Learned Government Pleader for Revenue, on the other hand, submits that a notice was issued in the form prescribed under the Act and the Rules and the information that is directed by the Division Bench can certainly be furnished, in case the petitioner raises an objection in this regard.

The Act prohibits alienation of assigned lands, in contravention of the conditions of assignment.

Certain exceptions are also provided.

The Act was included in the IX schedule of the Constitution of India, and its constitutional validity was upheld.

Forms I and II prescribed under the Act and the Rules are to be issued to the assignee and the purchaser, whenever steps are initiated for resumption.

Except the name of the person to whom it is issued, two paragraphs are almost standard in nature and are to the effect that the noticee is found to be transferor/transferee of the assigned land in contravention of sub-section (2) of Section 3 of the Act and he is directed to show cause within 15 days as to why he be not merely evicted form the land.

The schedule provides for the description of the property in detail as well as the name of the transferor/transferee.

On receipt of a notice, the defences of various categories can be taken, be it either by the assignee or the transferee.

From the point of view of the assignee, it may be that the land was not assigned, or if assigned, there did not exist any condition prohibiting the alienation.

Since the impact is felt mostly by the transferee, the defences open to him are more.

In addition to the defences that are available to the assignee, a transferee can take the plea that he himself is a small farmer or that the transfer is not prohibited, such as when it was mortgaged, to a cooperative society or a nationalised bank and it was sold for foreclosure of the mortgage.

Special conditions, such as where the land was assigned to ex-servicemen or political sufferers, can also be pressed into service.

The Division Bench in the judgment referred to above, dealt with two types of cases, one was a taken up case, being W.P.No.14795 of 2005 on the basis of a letter, dated 05.07.2005, addressed to the Chief Justice, alleging that 15000 acres of assigned land was grabbed by real estate persons.

The other category comprised of, four writ petitions, filed challenging the orders passed in an appeal by the Revenue Divisional Officer; one writ petition was filed seeking direction for enforcement of the provisions of the Act and another was filed challenging the entries in the revenue records.

The Bench framed two questions, viz., 1.

"Whether the land in question was assigned in the year 1960, 1961 in favour of the petitioners' predecessors in title under the Telangana Area Land Revenue Act read with Laoni Rules made thereunder or whether the grant of patta is attributable to Revised Assignment Policy issued in G.O.Ms.No.1406 dated 25.07.1958? 2.

Whether the provisions of Act No.9/77 can be applicable to all types of pattas granted under Laoni Rules after collection of market value under Chapter V of the Telangana Area Land Revenue Act?" In the course of answering the questions, it observed: "We are of the view that provisions of Act No.9 of 1977 will not be applicable to the cases where assignments were made on collection of market value or under Circular 14 except it were granted to the landless poor persons free of market value." On the basis of the interim orders passed at various stages, notices were issued in the taken up case, to as many as 7,000 persons under Section 3 of the Act.

The notices so issued were taken note of and it was left open to the parties to proceed further.

Other writ petitions were disposed of on merits.

Before concluding the judgment, Their Lordships observed: "Whenever any proceedings are to be initiated by the revenue authorities for resumption of the land, they have to specify a) the nature of occupancy rights granted, namely, whether occupancy rights were granted on collection of market value or free of market value in favour of the landless poor persons; b) whether the said land falls within the notified area restricting inalienability as per the notification issued under Section 58-a of the Telangana Area Land Revenue Act; c) whether Act No.9 of 1977 applies to the nature of occupancy right/assignment granted; d) if any changes in the revenue records are effected, reasons for change from the original entries in khasra pahani of 1954-55 or subsequent to the same; in the notice to be issued for enabling them to make an effective explanation to meet the contentions and submit their explanation to the action proposed.

Unless such particulars are furnished for submitting an effective explanation, lands cannot be resumed merely basing upon the revenue entries so made." It may be true that from a perusal of this, it is evident that the Division Bench felt that notice to be issued under the Act must be comprehensive and dealt with various aspects mentioned above.

The fact, however, remains that neither the form of notice, was ordered to be changed, nor any notice issued in the matters dealt with by it, were set aside on the ground that they did not contain the particulars referred to above.

At any rate, the observations were not incorporated in the operative portion of the judgment and thereby tend to become obiter than the ratio.

It has already been mentioned that the Act was included in the IX Schedule of the Constitution of India, and it has got its own significance.

Any interpretation warranting modification of the provisions or the forms stipulated thereunder, must be specific.

The judgment can be understood in such a way that if a recipient of notice raises an objection on any aspects, referred to in para 54 of the judgment, the Tahasildar shall be under obligation to clarify the matter or furnish the information and proceed only thereafter.

As long as the form was not directed to be altered, and the authority, who issued the notice, is conferred with the jurisdiction to do so, a writ petition filed against a notice cannot be entertained.

The petitioner can raise objections on these aspects, before the Tahasildar.

Hence, the writ petition is dismissed, leaving it open to the petitioner to submit his explanation within 15 days from today, if not already submitted.

The miscellaneous petition filed in this writ petition also stands disposed of.

There shall be no order as to costs.

____________________ L.NARASIMHA REDDY, J.

Dated:17.08.2012