Yerranchani Ramappa Reddy vs Mandal Revenue Officer and another

Syed Shah Mohammed Quadri, J.—The petitioner is an alienee from the transferee of land in question, which was originally assigned in favour of the second respondent under Darkasth Rules. As per the proceedings in R. Dis, No. 1147 /1986 dated 31-12-1988, the first respondent directed restoration of land to the assignee, the second respondent herein, which is assailed in this writ petition.

On Feb. 28, 1957 an extent of AC. 5-25 in survey number 13/1 in Kollalbylu village of Mandanapalie Revenue Mandal, Chittoor district was assigned in favour of the second respondent under Darkasth Rules. The second respondent alleges that while she was cultivating the land with the the assistance of Mr. Gudla Chinna Reddeppa and Mr. G. Gopal Reddy, they obtained her signature on a sale deed dated 27-12-1963 misrepresenting that it was only a lease deed. The consideration for the said sale is alleged to be Rs. 150-00. Mr. Gudle Chinna Reddappa sold one half of the land in favour of one Mr. Yerrajanu Rami Reddy for a consideration of Rs. 2,000.00 on March 06, 1972. The State Legislation passed the A.P. Assigned Lands (Prohibition of Transfer) Act, 1977 (for short ''the Act''), which was gazetted on March 28, 1977 and came into force with effect from January 21, 1977. In exercise of the power u/s 3 of the Act, the first respondent passed the impugned order directing the restoration of possession of land in favour of the second respondent. It is the validity of this order that is challenged in the writ petition on the ground that before passing the impugned order, no show cause notice was served on the petitioner and no enquiry was conducted. It is further averred that the petitioner is a bona fide purchaser for consideration, that he is a small farmer and, therefore, entitled to the benefit of sub-section (5) of Section 3 of the Act. On these contentions, the petitioner seeks a writ of certiorari to call for the records and quash the impugned order.

The first respondent filed the counter-affidavit stating that the petitioner purchased the land from one Mr. Gudte Chinna Reddeppa for a sum of Rs. 2,000-00 on 6-3-1972 and that he ought to have ascertained whether the land was an" assigned land or patta, land, but he failed to do so. It is denied that no show cause notice was served on the petitioner. It is stated that notices were served thrice on the petitioner on 9-7-1988; 16-7-1988 and 1-8-1988. It is stated that a detailed enquiry was conducted before passing the impugned order. It is also stated that the petitioner is not a landless poor, but an affluent rich person and it is prayed that the writ petition may be dismissed.

The second respondent also filed the counter-affidavit making almost the same allegations and averments projected by the first respondent.

Mr. K.V. Reddy, the learned counsel for the petitioner, contents that no notice of enquiry was served on the petitioner, therefore, the order being in violation of the Rules as well as the principle of natural justice, is void and has to be so declared.

From a perusal of the counter-affidavit of the first respondent, it is clear that notices were served on the petitioner. In paragraph 2 of the counter-affidavit, the said fact was mentioned, which needs to be noted:

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"Notices were served on all the purchasers were appeared for enquiry and given their statements, except the writ petitioner Yerrachani Ramappa Reddy. Subsequently notices were issued to the writ petitioner alone to attend the enquiry on the following dates.

Though sufficient opportunity was given to the writ petitioner he did not choose to attend the enquiry and simply stated that he was not served with any notice."

From the above, it is clear that notices of enquiry were served on the petitioner, not once but thrice, and, therefore, I am not inclined to accept the contention of the petitioner that the impugned order was passed without service of notice on the petitioner and without conducting any enquiry. This contention, therefore, fails.

It is next contended by Mr. K.V. Reddy, the learned counsel for the petitioner, that the petitioner is a small farmer and he has made a specific averment to that effect in paragraph 3 of his affidavit, but, however, this fact was not denied, as such, the impugned order is liable to be quashed. The learned counsel for the second respondent Mr. E. Kalyanaram, on the other hand, has submitted that the petitioner did nothing to claim the benefit of sub-section (5) of Section 3 of the Act, therefore, he cannot now say that he is a small farmer and that the title to and possession over the land are said to be not to have been disturbed.

Section 3 of the Act contains five subsections. Sub-section (1) contains prohibition of transfer of assigned land. It further declares that, 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. Sub-section (2) contains a mandate that no landless poor person shall transfer any assigned land and no person shall acquire any assigned land either by purchase, gift, lease, mortgage, exchange or otherwise. Sub-section (3) further declares that any transfer or acquisition made in contravention of the provisions of the sub-section (1) or subsection (2) shall be deemed to be null and void. Sub-section (4) contains that the provisions of this section shall apply to any transaction of the nature referred to in subsection (2) in execution of a decree or order of Civil Court or of any award or order of any other authority. Sub-section (5) in so far as it is relevant for our purpose, of which the petitioner is claiming benefit, reads as follows:

"(5) 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 for purpose of cultivation or as a house-site on the date of such commencement."

From a perusal of the provision extracted above, it is clear that the provision of subsections (1) to (4) shall not apply to any assigned land, provided (i) the assigned land was purchased by a landless poor person; (ii) the landless poor himself purchased in good faith for valuable consideration; (iii) the purchase ought to have been made either from the original assignee or his transferee; (iv) the purchase ought to have been before the commencement of this Act viz., January 21, 1977; and (v) the land should be in possession of such purchaser either for the purpose of cultivation or house-site as on the date of commencement of the Act. This section is in the nature of an exemption. The burden of proving the requirements of the section is on the person who claims the benefit of the said provisions. A person, who had either responded to the notice nor filed his claim nor participated in the enquiry to prove the requirements of the section, cannot, for the first time, try to make out a case for claiming benefit of exemption in the writ proceedings. Therefore, even if the averment in the affidavit with regard to the petitioner being landless poor is not categorically denied by the respondents, the fact remains that the petitioner, not having claimed the benefit of exemption before the original authority, cannot be allowed to set up a new case for claiming exemption. In this view of the matter, I am not inclined to interfere with the impugned order.

The writ petition is, therefore, dismissed. But in the circumstances of the case, without costs.

Petition dismissed.