Bonnareddipalli Seetharamamma vs The Govt. of A.P. and Others

Mr. Kondaiah, J.—This writ petition by the petitioner gives rise to a short question of law relating to the scope and application of Section 3 (1) of the Andhra Pradesh Assigned Lands (Prohibition of Transfers) Act, 1977 (hereinafter referred to as ''the Act''). In order to understand the scope of the question, it is necessary to briefly state the admitted facts, which gave rise to it. One Noothalapati Nagadu of Nallajecla village. Tadepalligudem taluk in the district of West Godavari was assigned an extent of 7 acres 24 cents in R.S No. 793/3A of Nallajerla village by the Tahsildar, Tadepalligudem on September 8, 1936 under ''D'' Form Datta subject to the terns and conditions indicated therein. One of the terms and conditions was that no assignment or sale of Government land shall be made to a person other than a British subject or a subject in any native State without the permission of the Government; otherwise the grant shall be null and void. The assigned land was in the possession and enjoyment of the grantee Noothalapati Nagaiah till May 29, 1955 when he had sold the same for a sum of Rs. 400/- to Bommaraddipalli Jogiraju, village Karnam who bad, under a registered settlement deed dated September 30, 1957, gifted this land to his wife, the writ petitioner, who is in possession and enjoyment of the same till now. The impugned notice dated 22 9-1977 was issued by the Tahsildar as to why the transfer of the land in favour of her husband by Noothalapati Nagaiah, the assignee should not be cancelled as the same was illegal and void. She was asked to make her representation, if any on or before 28-9-1977. The petitioner submitted her explanation, within the time granted to her, to the effect that Act 9 of 1977, under which the impugned notice for cancellation of the assignment was issued, was not retrospective, that the pat a granted originally to Nagaiah was not a conditional one and that after such long lapse of time, there is not justification for cancelling the assignment and prayed for dropping further proceedings. The Tahsildar, Tadepalligudem, however, by his proceedings dated 29-9-1977 resumed the land restored the same to the legal heirs of the original grantee, holding that the alienation by the original grantee to the husband of the writ petitioner is deemed to be null and void u/s 3 of the Act, that the vendee was neither a landless poor nor a bonafide purchaser for valuable consideration but was powerful, rich and influential karanam who had grabbed the land from the heirs of the assignee without any consideration and that, therefore, the petitioner cannot acquire any legal and valid rights in the land. Hence this writ petition.

The submission of Mr. V. Venkatarami Reddy, counsel for the petitioner is that Act 9 of 1977 is not applicable to the case on hand as it came into effect only on January 21, 1977, that the original ''D'' from patta, a copy of which has been filed before me, did not indicate that the original assignment was to a person belonging to a depressed class community, that there was no condition not to alieneate the land, that the transfer was for valid and valuable consideration and that the impunged, unjust and without jurisdiction.

This claim of the petitioner is resisted by the learned Government Pleader contending inter alia that Section 3 (1) of Act 9 of 1977, which according to him is retrospective, would apply to every assignment and subsequent transfer even if they were before the commencement of the Act, that the original assignee was a person belonging to depressed class community and the assigned land cannot be transferred without the permission of the Government, that the present transfer made by the original grantee in favour of the petitioner''s husband in the year 1955 was in violation of the condition in Para 12, sub-para (3) of B.S.O. 15, which states that all Government lands are only heritable but not alienable, and the transfer is null and void, that the petitioner would not get any valid and legal rights in the property, that, therefore, the impugned order of resumption and regrant of the land to the heirs of the original grantee is perfectly valid, just and proper and that there is no merit in this writ petition. On consideration of the respective contentions of the parties, the following questions arise for consideration :

(1) Whether the provisions of Section 3 (1) of Act 9 of 1977 are or are not applicable to the case on hand ?

(2) Whether the provisions of B.S.O. 15, Para 12, sub-para (3) would make the transfer by the original grantee, of the land assigned to him in the year 1936, to the petitioner''s husband in the year 1955 null and void ?

(4) Whether on the facts and in the circumstances the impugned order of resumption is liable to be quashed ?

I shall first deal with the question relating to the application of Section 3 (1) of Act 9 of 1977 to the case on hand. Act 9 of 1977 shall be deemed to have come into force on January 21, 1977 (See Section 1(3)) Section 2 (1) defines "assigned lands". "Assigned lands" means lands assigned by the Government to the landless poor persons under the rules for the time being in force subject to the conditions of non-alientation. It also includes lands allotted or transferred to landless poor persons under the relevant law for the time being in force relating to land ceilings. The latter part of the definition does not apply to the case on hand as the allottment or assignment bad not been made under the law relating to land ceilings to the original grantee. The first part of the definition of "assigned lands" is sought to be made applicable to the case on hand. Thus, the assignment had been made in favour of Noothalapati Nagaiah in the year 1936, but the ''D'' Form patta, which has been referred to earlier, does not indicate that the grant was to a landless poor person. Further, it was not subject to the condition of non-alienation. ''D'' Form patta indicates that the application of Noothala pathi Nagaiah for the land indicated therein has been approved subject to the terms specified therein. Condition 3 makes the grant invalid in case any land is assigned to a person who is not a British subject or a subject in any native State, without the permission of the Government. I have no hesitation to hold that Nagaiah, the assignee was a British subject and condition 3 would not make the grant invalid. The submission of the Government Pleader is that a British subject must be construed as a person who was a British citizen from the United Kingdom and was residing in India at that time. Such an interpretation cannot be acceded to. In those days, all the Indians or persons who were residing in British India were considered to be British subjects, whereas persons living in Native States were known as native subjects. During the earlier period, there were a few colonies of Portuguese such as Goa, Pondichery, etc., Hence the nomenclatures of "British subject'''' and ''native'' were used in term 3 of ''D'' Form patta granted to Noothalapati Nagaiah in the year 1936. This view of mine derives support from a Paragraph 23 (1) of Order 15 of Board''s Standing Orders, which were in force in the year 1936, which reads thus :

"No land belonging to Government shall be assigned or sold under this Standing Order to any person other than a British subject or a subject of an Indian State, except by the Collector or the Board and with the previous permission of Government. Every assignment or sale made under this Standing Order shall be subject to the condition, that, if the land is alienated without the sanction of Government in favours of any person other than a British subject or a Indian State, the grant shall Subject of an thereupon become null and void".

Except this, there is no other prohibition to alienate the land assigned to the original grantee in the case on hand in the year 1936. In this view, I must hold that the land in question does not come within the meaning of "assigned lands" as defined u/s 2 (1) of the Act. Hence, this Act itself cannot be applied to the case on hand.

Even assuming for the sake of argument that the land in question falls within the definition of "assigned lands" sub-section (3) of section 1 specifically states that the Act shall be deemed to have come into force on January 21, 1977. The very intendment of the Act was to prohibit transfer of certain lands assigned to landless poor persons in the State of Andhra Pradesh. The assignment might have been before or after the commencement of the Act, but nonetheless the transfer must have been made by the original grantee sub sequent to the coming into force of Act, in order to seek the aid of the Act. The statement of objects and reasons for enacting this Act indicate that the intendment of the Act is to prohibit alienation of lands assigned to landless poor persons and to provide for punishment of purchasers of such lands as such protective legislation is necessary in view of past experience which revealed that substantial extends of lands assigned to landless poor persons have been actually alienated and are in possession of well-to-do persons and as the existing rules did not have any provisions for punishment of persons who purchased such lands. The statement of objects and reasons also indicates that the prohibition of transfer sought to be made null and void under this Act, is prosepective but not retrospective. Section 3 (1), on which reliance has been placed by the learned Government Pleader in support of his submission that it will take in cases of assignment and transfer of the land even before the commencement of the Act, may be noticed herein :

"Sec. 3 (1) : Where before or after the commencement of this Act any land has been assigned by the Government to a landless poor person for purposes of cultivation or as a house-site, then notwithstanding anything to the contrary in any other law for the time being in force or in the deed, of transfer or other document relating to such land, it shall not be transferred and shall be deemed never to have been transferred; and accordingly. no right or title in such assigned land shall vest in any person acquiring the land by such transfer".

True, as contended by the Government Pleader this section will apply to cases of lands which have been assigned by the Government either before or after the commencement of the Act. It only refers to assignment of lands made even before the commencement of the Act, but does not indicate that even in respect of transfers, of the assigned lands effected prior to the commencement of the Act also this section would be attracted. The operative portion of the section that "it shall not be transferred and shall be deemed never to have been transferred; and accordingly no right or title in such assigned land shall vest in any person acquiring the land by such transfer" would clinch the issue in favour of the writ petitioner. On a careful reading of Section 3 (1), I am of the firm view that it applies to all cases where the assignment of land was made either before or after the commencement of the Act by the Government to a landless poor person for purposes of cultivation or as a house-site, but it does not come in aid to make the transfers made before the commencement of the Act by the original assignee, null and void. It prohibits transfers, of lands assigned either before or after the commencement of the Act to the landless poor, only subsequent to the coming into force of the Act No doubt, the prohibition enacted in Section 3 (1) would apply even if there is anything to the contrary in any other law for the time being in force or in the deed of transfer or other document relating to such land. A reading of sub-sections (2) and (3) of Section 3 would clearly indicate that stress is laid on the ''transfer'' of the assigned land. Any transfer or alienation made in contravention of the provisions of sub-sections (1) or (2) of Section 3 shall be deemed to be null and void. Sub-section (5) of Section 3 is a kind of exception to the prohibition of transfer which indicates that where the land assigned has been purchased by another landless poor person in good faith and for valuable consideration from the original assignee or his transferee prior to the commencement of the Act, such transfer shall be saved. On a careful reading of the entire section 3 and other provisions of the Act, I have no hesitation to hold that Section 3 (1) is not applicable to the case on hand as the assigned land had been transferred even in the year 1955 by the original grantee to the petitioner''s husband under a registered sale deed, and Section 3 (1) is only prospective but not retrospective in so far as the transfer of the assigned lands are concerned. The main intendment of the Act, as pointed out earlier, is to prohibit the transfer or alienation of the assigned land from the date of the commencement of the Act as a protective measure and it did not contemplate the application of the provisions of this Act to cases of transfer made even before the commencement of the Act. Section 3 (1) is retrospective only to take in cases of assignment before the commencement of the Act, but not transfers made prior to the coming into force of the Act. Hence, this question must be answered in the negative and in favour of the writ petitioner. This brings roe to examine the second question pertaining to the application of the provisions of sub-para (3) of Para 12 of Boards'' Standing Order 15, which indicates the terms and conditions of assignment ''of lands. Paragraph 3 (a) reads thus:

"3. Terms and conditions of assignment:-

The assignment of lands shall be subject to the following conditions, (a) Lands assisgned shall be heritable but not alienable".

This term and condition of assignment is not applicable to the case on hand. Terms and conditions of assignment have been for the first time promulgated by the State Government in G.O.Ms. No. 1142, Rev. dated 18-6-54. Admittedly, this condition was not in force or prevalent in the year 1936 when the original grant or assignment of the lands in question was made to Noothalapati Nagaiah by the Tahsildar, Tadepalligudem. No authority has been brought to my notice to establish that the aforesaid Board''s Standing Order which was promulgated on 18-6-54 has retrospective application. That apart, the very ''D'' Form patta granted to the original grantee did not indicate that the land was inalienable. Hence, this objection of the Government Pleader cannot be sustained. The further submission of the Government Pleader, that the transferee of the land, in the year 1955, was an influential and rich landlord and the village Karnam and that no valid consideration was paid to the original grantee and he had grabbed the land from the heirs of the original grantee unjustly, cannot be taken into account to sustain the impugned order. It is not open to the Tahsildar to hold that the original transfer was not for valid consideration and the same was not voluntary. In any event, there is] no material to support such a finding. That apart, the Tahsildar has sought to invoke the provisions of Act 9 of 1977 in the instant case after 41 years of the original assignment and 22 years after the transfer of the assigned land. If the original transfer of the assigned land by the original grantee to the husband of the writ petitioner was without valid consideration or that it was not bona fide, it was open to the heirs of the transferor to take appropriate action within the period of limitation permissible under law. It is therefore not possible for me to agree with the view expressed by the Tahsildar with regard to the nature of transfer of the assigned land as there is absolutely no material worth mentioning for such a conclusion. Judged from any angle, I am satisfied that the impugned order must be and is hereby quashed. There shall be no order as to costs.