Abdul Khayoom vs The Mandal Revenue Officer, Amrabad Mandal and Another

Y. Bhaskar Rao, J.—The petitioner seeks a writ of Certiorari to quash the order dated 1-6-1987 passed by the first respondent resuming Ac. 4-00 of land in Survey No. 283/13/ 2 of Mannanoor Village to the Government under the provisions of the A.P. Assigned Lands (Prohibition of Transfers) Act, 1977.

The case of the petitioner is that his father purchased Ac. 4-00 of land in S. No. 283/13/2 of Mannanoor Village in the year 1958 under an unregistered sale deed for valuable consideration under the bona fide impression that the said land is not an assigned land. On the application of the father of the petitioner, the Tahsildar of Achampet had validated the sale under the provisions of Section 50(B) of the A.P. (Telangana Area) Tenancy and Agricultural Lands Act, 1950 after conducting enquiry and issued validation certificate in his proceedings dated 12-3-1965. During his life time, the father of the petitioner was in possession of the land and after his death the petitioner is continuing in possession and is cultivating the same. The petitioner received a notice dated 5-9-1987 from the first respondent addressed to his father, asking him to show cause why he should not be evicted from the land on the ground that the transfer in favour of petitioner''s father is in violation of the provisions of the Andhra Pradesh Assigned Lands (Prohibition of Transfers) Act, 1977, hereinafter referred to as ''the A.P. Act No. 9 of 1977''. The petitioner submitted his explanation stating that he and his father are landless poor, that they purchased the land under the bona fide impression in the year 1958 before the commencement of the A.P. Act No. 9 of 1977 and that the sale has been validated under the provisions of the A.P. (Telangana Area) Tenancy and Agricultural Lands Act, 1950 in the year 1965 itself. The grievance of the petitioner is that without conducting any enquiry as to whether he and his father, during his life time, were landless poor when the land was purchased under the bona fide impression, the first respondent passed the impugned order stating that the explanation submitted by the petitioner is not convincing.

It is contended by the learned counsel for the petitioner that no enquiry is conducted to find out whether the petitioner''s father was a landless poor at the time of purchase and whether he was a bona fide purchaser or not. He further contended that if the enquiry had been conducted prior to passing of impugned order, it would have been clear that the petitioner''s family was landless and that the sale transaction is saved by the exception u/s 3(5) of the A.P. Act No. 9 of 1977.

On the other hand, the learned Government Pleader contended that the first respondent passed the impugned order after conducting enquiry, that there are no merits in the writ petition and that the same is liable to be dismissed.

In view of the above contentions, the point to be decided is, whether the transfer of land by the original assignee in favour of the father of the petitioner is to be exempted u/s 3 (5) of the A.P. Assigned Lands (Prohibition of Transfers) Act, 1977.

There is no dispute that the land in question is an assigned land. The case of the petitioner is that his father purchased the land in the year 1958 under bona fide impression that it is not an assigned land and that they are landless poor. Therefore, the question is whether the father of the petitioner was landless poor when the said land was purchased and if so the said transaction is liable to be exempted u/s 3(5) of the Act No. 9 of 1977. In the impugned order, it is stated that the land about Ac. 21-05 guntas in S. No. 283 of Mannanur Village was assigned to one Narsaiah and Baini Buchaiah and they have alienated the land to three persons, one of whom is the father of the petitioner, who purchased four acres of land. The order further states that the explanation of the alienees was examined and was found to be not a genuine one for consideration and therefore order of resumption is passed.

It is relevant to refer to some of the provisions of the Act No. 9 of 1977. Section 2(3) defines ''landless poor person'' to be a person who owns an extent of land not more than 1.011715 hectares (two and half acres) of wet land or 2.023430 hectares (five acres) of dry land or such other extent of land as specified by the Government and who has no other means of livelihood. Section 2(6) provides the definition of ''transfer'':

"Transfer means any sale, gift, exchange, mortgage with or without possession, lease or any other transaction with assigned lands, not being a testamentary disposition and includes a charge on such property or a contract relating to assigned lands in respect of such sale, gift, exchange, mortgage, lease or other transaction."

Section 3(1) says that no land assigned to poor person for cultivation or as a house-site shall be transferred and no right or title accrues to any person acquiring the land by such transfer. Section 3(2) provides that no landless poor shall transfer and no person shall acquire any assigned land by way of purchase, gift, lease, mortgage, exchange or otherwise. Section 3(5), which is relevant, reads:

"Nothing in this Section shall apply to an assigned land which was purchased by a landless poor person in good faith and for valuable consideration from the original assignee or his transferee prior to the commencement of this Act and which is in the possession of such person for purposes of cultivation or as a house-site on the date of such commencement."

Transfer of assigned lands, as prohibited under Sub-sections (1) and (2) of Section 3, is saved where the land assigned has been purchased by another landless poor in good faith and for valuable consideration from the original assignee prior to the commencement of the Act. To decide if the transfer is in contravention of Section 3(1) and (2) of the Act, the questions whether the transfer was prior to or after the commencement of the Act, in case it is prior to commencement of the Act whether the purchaser was landless poor on the date of purchase, whether he purchased it in good faith and whether it was for valuable consideration or not have to be considered. According to Sub-section (1) of Section 4, if the District Collector or any other officer authorised by him is satisfied that the provisions of Section 3(1) are contravened in respect of any assigned land, he may take possession of the assigned land after evicting the person in possession and restore the assigned land to the original assignee or his legal heir or resume the land to Government for assignment to landless poor. Section 4(2) says that the order passed under Sub-section (1) shall be final and shall not be questioned in any Court of law. From the impugned order, it is clear that the first respondent has not discharged his statutory obligation to find out whether the petitioner''s father was landless poor person at the time of purchase as it is prior to commencement of the Act and whether he purchased the land in good faith for valuable consideration or not. It is settled principle of law that where a statute prescribes a procedure for doing a thing, it must be done according to the said prescription, unless there is contrary indication. Further, it is also well settled that where a statute confers power to be exercised or performed in a particular manner, other mode of exercise of performance is impliedly barred.

Thus, it is clear that where a statute imposes obligation on the concerned authority to conduct proceedings in the method prescribed by the statute, it must follow the said method. If Sections 3(5) and 4 of Act No. 9 of 1977 are read together, it is evident that the concerned officer has to conduct enquiry as to whether a person is a landless poor at the time of purchase or not, whether the land was purchased prior to the commencement of the Act or not when such plea is taken in explanation filed by the party and whether the purchase was made in good faith and for valuable consideration or not. If he fails to conduct such enquiry, it amounts to violation of statutory obligation cast upon him and consequently any order passed will be violative of statutory provisions of the Act and is amenable to judicial review under Article 226 of the Constitution.

In the present case, the impugned order is passed without conducting any enquiry. Therefore, the impugned order is quashed and the first respondent is directed to conduct fresh enquiry as stated supra after giving opportunity to the petitioner herein and pass orders according to law. The first respondent shall complete the exercise within three months from the date of receipt of a copy of this order. The writ petition is allowed accordingly. No costs.