WP/32055/2012 of Yanamala Jayaram, Vs The State of Andhra Pradesh, on 31 December 2012

COMMON JUDGMENT:

Broadly, these cases arise on account of the action ofthe Registering Officers of the Registration and StampsDepartment in different parts of the State of Andhra Pradeshin not receiving and registering sale deeds or otherdocuments executed for transfer of immovable properties. The acts of refusal are based on different reasons. Whensome of these cases came up before this Court on 14-11-2012, this Court has noticed alarming rise inthe number of cases being filed with the complaint of non-registration of the properties in recent times. This Court hasalso noticed that most of the cases of refusal to register aredue to reasons, which this Court has, on many earlieroccasions, held as unsustainable and falling outside thescope of the provisions of Section 22-A of the RegistrationAct, 1908 (for short "the Act"). That even though the law iswell settled on several aspects, the Registering authoritieshave been again and again raising the same objections for registration of the properties which were earlier rejected bythis Court. As the spate of the litigation was continuingunabated, as evident from the fact that in the year 2012itself, as many as 3360 Writ Petitions, which constitutealmost 10% of the total number of Writ Petitions filed in thatyear, this Court felt that it is high-time that a quietus must beplaced on this unnecessary and avoidable litigation.

A detailed interim order was made on 14-11-2012wherein this Court has made a broad classification of thecases based on the reasons for rejection to register theproperties and directed the Principal Secretary (Revenue),to lay down specific criteria to be followed by the Sub-Registrars in the State based on the decided case law.

A counter-affidavit was filed by the Principal Secretary,Revenue Department, on perusal of which this Court hasexpressed its dissatisfaction as he has sought to point outthat he has no control over the Registration and StampsDepartment, which is headed by a separate PrincipalSecretary and without whose involvement it is not possibleto lay down guidelines. This Court has adjourned the caseswith the direction to both the Principal Secretaries ofRevenue and Revenue (Stamps & Registration)Departments to make a joint exercise for framing theguidelines. A further affidavit was filed by the PrincipalSecretary to the Government, Revenue Department,wherein he has inter alia requested for an adjournment by

stating that as per the A.P. Government Rules andSecretariat Instructions, the issues pertaining to policydecisions which have administrative importance, have to becirculated to the Hon’ble Chief Minister. As this Court wasconvinced that in view of the settled legal position onvarious aspects it was quite unnecessary for the issues toundergo the above mentioned process suggested by thePrincipal Secretary, Revenue Department, and instead thisCourt itself can pronounce a Judgment in the light of the wellsettled legal position, the cases were heard at length. Onthe direction of this Court, the learned Government Pleaderhas categorized the cases on the basis of the nature of thereasons for refusal to register the properties and furnishedthe list to the Court.

I have heard the learned counsel for the petitionersand the learned Government Pleader for Revenue.

Before adverting to the different categories of cases, itis felt necessary to give a brief historical background leadingto the present litigation.

Section 22-A of Act was incorporated by theLegislature of the State of Andhra Pradesh by Act 4 of1999. The said provision, as it stood then, read as under:

“22-A: Documents registration of which isopposed to public policy:-

(1) The State Government may, by notificationin the Official Gazette, declare that, the registration ofany document or class of documents is opposed to public policy.”

(2) Notwithstanding anything contained in thisAct, the registering officer shall refuse to register anydocument to which a notification issued under sub-section (1) is applicable”.

The above reproduced provision was a reproduction ofsome of the State amendments to the Act and the same isipsissima verba of the Rajasthan State Amendment (Act 16of 1976). A Division Bench of the Rajasthan High Court, in Basant Nahata Vs. State of Rajasthan[[1]], has declaredSection 22-A of the Act as unconstitutional and hasaccordingly struck down the said provision. The SupremeCourt has affirmed the said Judgment in State of Rajasthan Vs. Basant Nahata[[2]]. The Supreme Court, in the saidJudgment, has however observed that the Legislature of aState may lay down as to which acts would be immoralbeing injurious to the society and that such a legislationbeing substantive in nature must receive the legislativesanction specifically and cannot be made through asubordinate legislation or executive instructions.

Challenge to Section 22-A of the Act, as inserted bythe A.P. State Amendment, was made in this Court as well. Following the Judgment of the Supreme Court in State ofRajasthan (2-supra), this Court in its Judgment dated 7-12-2005 in W.P.No.14099/2003 & batch, has struck downSection 22-A of the Act. Taking a cue from the observations of the Supreme Court referred to above on the power of theLegislature to make legislation of substantive nature and toovercome the Judgment of this Court which has struckdown Section 22-A of the Act, the A.P. State Legislature haspassed Act 19 of 2007, which re-introduced Section 22-A of the Act, with a different phraseology. The said provision reads as under:

“Prohibition of Registration of certain documents:

(1) The following classes of documents shall beprohibited from registration, namely:prohibited from registration, namely:

(a) documents relating to transfer of immovableproperty, the alienation or transfer of which isprohibited under any statute of the State orCentral Government;property, the alienation or transfer of which isprohibited under any statute of the State orCentral Government; (b)documents relating to transfer of property byway of sale, agreement of sale, gift, exchangeor lease in respect of immovable propertyowned by the State or Central Government,executed by persons other than thosestatutorily empowered to do so;way of sale, agreement of sale, gift, exchangeor lease in respect of immovable propertyowned by the State or Central Government,executed by persons other than thosestatutorily empowered to do so;

(c) documents relating to transfer of property byway of sale, agreement of sale, gift, exchangeor lease exceeding (ten) 10 years in respect ofimmovable property, owned by Religious andCharitable Endowments falling under thepurview of the Andhra Pradesh Charitable andHindu Religious Institutions and EndowmentsAct, 1987 or by Wakfs falling under the WakfsAct, 1995 executed by persons other thanthose statutorily empowered to do so;way of sale, agreement of sale, gift, exchangeor lease exceeding (ten) 10 years in respect ofimmovable property, owned by Religious andCharitable Endowments falling under thepurview of the Andhra Pradesh Charitable andHindu Religious Institutions and EndowmentsAct, 1987 or by Wakfs falling under the WakfsAct, 1995 executed by persons other thanthose statutorily empowered to do so; (d)agricultural or urban lands declared as surplusunder the Andhra Pradesh Land Reforms(Ceiling on Agricultural Holdings) Act, 1973 orthe Urban Land (Ceiling and Regulation) Act,1976;under the Andhra Pradesh Land Reforms(Ceiling on Agricultural Holdings) Act, 1973 orthe Urban Land (Ceiling and Regulation) Act,1976; (e)any documents or class of documentspertaining to the properties the StateGovernment may by notification prohibit theregistration in which avowed or accruedinterests of Central and State Governments,Local Bodies, Educational, Cultural, Religiousand Charitable Institutions, those attached byCivil, Criminal, Revenue Courts and Direct andIndirect Tax Laws and others which are likely toadversely affect these interests.pertaining to the properties the StateGovernment may by notification prohibit theregistration in which avowed or accruedinterests of Central and State Governments,Local Bodies, Educational, Cultural, Religiousand Charitable Institutions, those attached byCivil, Criminal, Revenue Courts and Direct andIndirect Tax Laws and others which are likely toadversely affect these interests.

(2) For the purpose of clause (e) of sub-section (1),the State Government shall publish a notificationafter obtaining reasons for and full description ofproperties furnished by the District Collectorsconcerned in the manner as may be prescribed.the State Government shall publish a notificationafter obtaining reasons for and full description ofproperties furnished by the District Collectorsconcerned in the manner as may be prescribed.(3)Notwithstanding anything contained in this Act,the registering officer shall refuse to register anydocument to which a notification issued underclause (e) of sub-section (1).the registering officer shall refuse to register anydocument to which a notification issued underclause (e) of sub-section (1).

(4) The State Government either suo motu or on anapplication by any person or for giving effect tothe final orders of the High Court of AndhraPradesh or Supreme Court of India may proceedto denotify, either in full or in part, the notificationissued under sub-section (2).application by any person or for giving effect tothe final orders of the High Court of AndhraPradesh or Supreme Court of India may proceedto denotify, either in full or in part, the notificationissued under sub-section (2).

This re-inserted Section 22-A of the Act has now becomethe breeding ground for litigation, for, the Revenueauthorities at the levels of Tahsildar or District Collector,have been preparing what are known as ‘lists of prohibitedproperties for registration’ and sending the same to the Sub-Registrars concerned, who are the Registering authorities,and the District Registrars. The Registering authorities havebeen strictly following these lists and refusing even to receive the documents, leave alone, registering them, if thetransactions under the documents pertain to immovableproperties included in the prohibitory lists. The Registeringauthorities have not been mindful whether any notification ispublished prohibiting registration as envisaged underSection 22-A(1)(e) of the Act and they have been givingundue weight to the opinion of the Revenue authorities onthe aspect whether the property belongs to the Government,or Charitable or Hindu Religious Institutions andEndowments, or Wakfs or the Local Bodies. This unilateralassumption by the officials of the Registration & Stamps,and the Revenue Departments and refusal to receive andregister the documents on that basis, is resulting in theaggrieved parties bee-lining this Court day in and day out. This Court has in many a case conclusively adjudicated theissues and the Judgments therein have attained finality. Notwithstanding the legal position settled by this Court ondifferent aspects, the Registering officers have beenignoring these Judgments and driving the parties toapproach this Court again and again.

One or the other of the following reasons for which theRegistering authorities/Sub-Registrars, have been refusingto receive and register the documents:

(a) that the Re-Settlement Register (RSR) containsdots against the column “owner/occupant of theland”; dots against the column “owner/occupant of theland”; (b)that the Registers maintained by the RevenueDepartment have described the lands asAssessed Waste Dry (AWD); Department have described the lands asAssessed Waste Dry (AWD);

(c) that the lands are assigned lands;

(d) that the lands belong to the Hindu Religious orCharitable Endowments, Wakfs, ChristianMissionaries and Local Bodies.Charitable Endowments, Wakfs, ChristianMissionaries and Local Bodies.

It is pertinent to notice the Judgment of this Court in

T. Yedukondalu Vs. Principal Secretary to Government[[3]]wherein a learned Judge of this Court hasconsidered the re-enacted provisions of Section 22-A of theAct vis-à-vis the lands which are claimed to belong to theGovernment. While repelling the argument advanced onbehalf of the State Government that in respect of thedocuments falling under clause (b) of Section 22-A(1) of theAct no notification is required to be issued under sub-section

(2) thereof, the learned Judge held as under:

“The argument of the learned GovernmentPleader is that there is no necessity to publish anotification in respect of the subject land underSection 22-A(2) of the Registration Act, 1908 asSection 22-A(1)(b) would have application and notSection 22-A(1)(e). However this contention, ifaccepted, would mean that all lands claimed to beGovernment lands which are sold by any privateparty can be brought within the ambit of Section 22-(A)(b). Such a construction would render superfluousSection 22-A(1)(e) to the extent it speaks ofprohibition of registration of documents pertaining to lands in which the State Government may haveavowed or accrued interests.

That, obviously, could not have been theintention of the legislature. Further, clause (b) ofSection 22-A(1), on a plain reading, indicates that itrelates to prohibition of registration of documents inthe context of the executants thereof not beingstatutorily empowered to execute them. Thus, thesaid clause would not have application in a casewhere the Government claims a particular land to beits own on the basis of revenue records or otherwise. Had that been so, there would have been nonecessity for clause (e) of Section 22-A(1) of the Actof 1908, which states that there shall be a prohibitionof registration in respect of documents pertaining toproperties in which the State Government hasavowed or accrued interests, which would beadversely affected by such registration. Thus, wherethe State Government stakes a claim that a particularland belongs to it and seeks to put in place aprohibition with regard to registration of documents inrespect thereof, the same would invariably fall withinSection 22-A(1)(e) of the Act of 1908 alone and theGovernment must necessarily publish a notificationunder Section 22-A(2) of the Act giving full descriptionof the property concerned. The sanctity of such anotification is spelt out by Section 22-A(3) of the Act of1908 which places an embargo upon the RegisteringOfficers from registering any document falling withinthe ambit of the notification. In the present case, thereis no dispute that no such notification has beenpublished under Section 22-A(2) of the Act of 1908 inrespect of the subject land.”

In Gaddam Lingaiah Vs. The District Collector, Kadapa[[4]], this Court has distinguished the two categoriesof documents falling under clauses (b) and (e) of Section 22- A(1) of the Act, and held as under:

“…A list sent by the Tahsildar or the District Collectorto the registering authority showing the properties asbelonging to the Government does not have thesame efficacy or binding force as a notification issuedunder sub-section (2) of Section 22-A of the Act. Notwithstanding the inclusion of the properties in thelist of the revenue officials, the registering authorityshall apply its mind to the material that may be placedby the private party as well as the revenue officialsand arrive at its own conclusion.”

This Court further held :

“Instances galore where the persons, who arerecognized as rightful owners not only by beingallowed to purchase under registered documentsdecades ago but also by using the pattadarpassbooks, are being deprived of their right totransfer the properties by way of sale, mortgage etc. While the efforts of the official functionaries forprotecting the Government properties always deserveto be appreciated, in the guise of such protection,they cannot be permitted to harass the innocentcitizens by driving them to the courts again and againby styling the private lands as Government landswithout any shred of evidence in support thereof...”

It was also further held :

“If respondent Nos.1 to 3 really felt that the property inquestion is the Government land, it defies any logicand reason as to why they have been keeping quietwithout recovering the property from the petitioner. Far from doing so, the rights of the petitioner werewell recognized by them by issuing pattadarpassbooks as far back as the year 1994. This Courtis unable to comprehend as to by merely preventingregistration, will the Government gain anything? Except curtailing the right of a private party to enjoy the property as he likes, it results in nothing. Only atthe time of registration, the revenue authoritiesappear to be preventing registration without doinganything further to safeguard and protect the socalled Government properties and to recover thepossession thereof. This attitude of the revenueauthorities being supported by the registeringauthorities is creating a situation where needlesslitigation is being promoted driving the citizens toresort to needless and frivolous litigation.

Time and again this Court has been holding thatmere registration of the document will not create anytitle in the purchaser, unless such title is vested in thevendor himself.

While preventing registrations on frivolousobjections, Government is only denying itself of therevenue without doing anything else. As observedabove, there are no instances where the possessionof the properties, which are found to be in theGovernment list, is sought to be recovered by therevenue authorities. Not only that the litigants arevexed with this sort of litigation, but this court feelsthat it is time that litigation of this nature is put an endto. Unless the Chief Secretary of the State of AndhraPradesh intervenes and finds a proper solution to thisvexed problem, the litigation of this nature maycontinue unabated.”

Where a notification as envisaged under sub-section(2) of Section 22-A of the Act is issued, the Registeringauthority has no option except to refuse to register thedocument in view of the prohibition contained in sub-section(3) thereof. However, in the absence of a notification, evenif any communication is sent by the Revenue authoritiesclaiming the land as belonging to the Government, such a

Precedents

communication does not bind the Registering authority. TheRegistering authority can, at best, consider whether anymaterial in support of the claim of the Revenue Departmentis available and take appropriate decision under Section 71of the Act after considering the material that may besubmitted by the party presenting the document tosubstantiate his plea that the land is a private land. In theabsence of a notification, the Registering officer cannotrefuse to receive the document by elevating the status of the‘prohibitory lists’ sent by the Revenue Department to that ofstatutory notifications issued under sub-section (2) ofSection 22-A of the Act.

With this legal position in view, let me now considereach of the categories of cases.

Cases relating to RSR dots:The following Writ Petitionspertain to this category where the Sub-Registrars concernedhave either refused to receive the documents or register thesame after receiving such documents only on the groundthat the relevant column of the RSR relating to ownership,contains dots:

W.P.Nos.24468, 33025, 33461, 34075, 34099, 34545,34905, 34965, 35338, 35441, 35473, 35598, 35737, 35868,35997, 36084, 36430, 36471, 36859, 37359, 37906, 28461,34231, 35505 and 38844 of 2012.

Judicial precedents are not wanting on the aspectwhether the RSR containing dots in the ownership column, constitutes conclusive proof of title. In P. Suresh Vs. A.P.State, represented by its District Collector, Kadapa and others[[5]],this Court considered the issue as to whether therefusal of registration only on the basis of the entry in theRSR to the effect that the land belongs to the Government,is sustainable? This Court has answered the said questionin the negative by observing that the land cannot be treatedas belonging to the Government on the basis of an entrymade in the RSR in the year 1909 without taking intoconsideration various subsequent registered saletransactions in respect of the said land.

In Shaik Ali Vs. District Collector, Chittoor[[6]],I hadan occasion to deal with this aspect. Referring to earliercase law, I have held, at para-5, as under:

“This court in P. Suresh and A.P. State and others(2009(3) ALT 419=2009(3) ALD 802, K.M. KamullaBasha Vs. District Collector, Chittoor (W.P.No.27249and 28393 of 2007, dt. 16-2-2009, MedaSubbarayudu Vs. Sub-Registrar, Rayachoty(W.P.No.11675/2008, dt. 30-7-2008) and S. ZakhirVs. District Collector, Anantapur(W.P.No.19419/2008, dt. 16-2-2009) held that mereentries in R.S.R. do not constitute conclusive proof oftitle. In a recent Judgment in Shaik Dudekula PyariJan @ Lal Bi and others Vs. The Revenue DivisionalOfficer, Madanapalli (W.P.No.6016 of 2010, dt. 2-7-2010),this Court reiterated this position following theabove mentioned Judgments of this Court.”

On the strength of the above quoted reasoning, this Court held that mere entries in the RSR or A-Register will not offerconclusive proof of ownership of the land and the action ofthe Sub-Registrar in refusing to receive and register thedocument was declared as illegal. I have also consideredthis issue in another Judgment in Madiga Papanna Vs.State of A.P., represented by its Principal Secretary,Revenue Department and others[[7]],wherein at paras 5, 6

and 7, it was held as under:

“On many occasions, this Court had considered theeffect of entry in the R.S.R. In a recent Judgment,which was rendered on the basis of the previousJudgments, in W.P.No.6016/2010, dated 2-7-2010,this Court has held as under:

Conclusion

“In the present case, except for stating thatentries in the Village Account R.S.R. of DoddipalliVillage indicate the lands in Survey No.1969/2,1972, 1969/1B and 1971 as Government lands,there is no other basis for the revenue authoritiesto stake a claim over the lands. To the contrary,the evidence on record, being registeredtransactions dating back to 1942, 1938, 1959and 1972, as the case may be, clearly negatesthe unilateral claim of the revenue authorities thatthis land is Government land. It is of course forthe Government to assert and prove its title if itchooses to do so, in a properly constitutedproceeding before the appropriate forum inaccordance with law. Without doing so, it is notopen to the revenue authorities or the registrationauthorities to deny persons claiming rights oversuch land on the basis of mere revenue entries.The action of the Respondents in treating thesubject land as Government land and the actionof the registration authorities in refusing to receive and register documents in respect of thisland is therefore unsustainable in law.”

The learned Assistant Government Pleader forRevenue submitted that since there is a disputeregarding title, the Petitioner will have to get his titledeclared by approaching the competent civil court.

I am afraid, I cannot accept this contention. In viewof the settled legal position that mere entry in R.S.R.will not constitute proof of title and in the absence ofany other revenue record showing the land asGovernment land, it cannot be said that there is adispute regarding title. At any rate, mere registrationof a conveyance deed does not create title in thetransferee. If the Government feels that the propertybelongs to it, it can always avail appropriate remedyto assert its title and claim the property.Mereregistration of the sale deed would not come in theway of the Government in asserting its right andavailing appropriate remedy.” (Emphasis added)

Despite pronouncement of the legal position inunequivocal terms as noted above, regrettably, the Sub-Registrars concerned have been refusing to receive andregister the documents based on the RSR entries. Eventhough the directions given in each of these cases were withreference to the parties who approached the Court, still theJudgments operate as precedents and consequently theybind the State and all its functionaries. There cannot be anyexcuse whatsoever for the Sub-Registrars who are notparties to the cases already decided, to ignore the law laiddown by this Court and repeat the same illegality ascommitted by the other Registering officers whose actions inrefusing to register the documents on the said ground were declared as illegal by this Court. As the refusal ofregistration by the concerned Sub-Registrars in these WritPetitions is based only on the RSR entries, their action is inthe teeth of the Judgments of this Court referred to above. Accordingly, the action of the Sub-Registrars concerned inrefusing to receive and register the documents in these WritPetitions is declared as illegal.

Cases relating to Assessed Waste Dry (AWD) lands:

The following Writ Petitions fall under this category: W.P.Nos.30016, 32176, 33370, 33453, 33535, 33923,34535, 34596, 34604, 34898, 34959, 35476, 35483, 36918,36937, 37291, 38067, 39740, 37607, 33282, 33267, 33272,33872, 34254, 34969, 34523, 35257 and 35166 of 2012

This category of cases also falls in the previous category,the only difference being, instead of showing dots, therelevant RSR entries in the respective cases, classified thelands as “AWD”. In each of these cases, the petitionersclaim that the lands are private lands and in support of theirplea, they have filed documents such asAdangals/Pahanies/Pattadar Passbooks. I n GaddamLingaiah (4-supra), this Court observed as under:

“As noted above, it is the specific case of thepetitioner that the revenue record clearly shows thatthe land is a private land. In support of his plea that itwas a private land, the petitioner filed a copy of theRegister of Holding, a perusal of which would showthat the name of Guduru Rachaiah is shown as theowner of the property admeasuring Ac.4.84 cents inSy.No.147/2. This extract shows that the same has been issued by the Office of the Sub-Registrar. Thepetitioner has also filed a copy of the pattadarpassbook issued by the Mandal Revenue Officer asfar back as 30.06.1994. It is not disputed that thepetitioner has purchased the property under aregistered sale deed on 12.04.1972. In the face ofthis overwhelming documentary evidence to showthat the petitioner is the owner of the property, theonly ground on which respondent No.5 declined toregister the sale deed and respondent No.4confirmed the refusal order of respondent No.5 is thatin the list furnished by the then Tahsildar in the year2007, the property was shown as AW belonging tothe Government. Respondent Nos.4 and 5, being theindependent functionaries exercising powers anddischarging duties under the provisions of theRegistration Act, 1908 (for short ‘the Act’), are boundto act independently by exercising their mind withoutbeing blindly guided by the instructions of theTahsildar or the other revenue officials of the District. The mere fact that in the opinion of the Tahsildar, theproperty is the Assessed Waste belonging to theGovernment and he has accordingly included theproperty in his list sent to the registering authoritywould not make the land truly belonging to theGovernment. A list sent by the Tahsildar or the DistrictCollector to the registering authority showing theproperties as belonging to the Government does nothave the same efficacy or binding force as anotification issued under sub-section (2) of Section22-A of the Act. Notwithstanding the inclusion of theproperties in the list of the revenue officials, theregistering authority shall apply its mind to thematerial that may be placed by the private party aswell as the revenue officials and arrive at its ownconclusion.

A question often troubles this Court, namely, that if the

A question often troubles this Court, namely, that if the lands which are proposed to be transferred belong toGovernment, why then no steps are being taken by theexecutive apparatus to recover possession of such lands byfollowing due process of law? In none of the cases beforethis Court, is any plea raised by the respondents that anyeffort is made to recover possession, or that at least, thereare proposals to recover possession of the lands inquestion. As held by this Court time and again, mereregistration of a property will not create title in the vendeewhich otherwise does not exist in its vendor and that bymerely preventing registration, neither the Revenue nor theRegistering authorities would be doing any favour to theGovernment towards protecting the public properties. Ifthese lands really belong to the Government, no explanationis forthcoming from the respondents as to why they haveallowed several registrations to take place in respectthereof. In my opinion, the Registering authorities have nopower to refuse registration of the lands only on the basis ofthe entries in the RSRs or similar revenue record showingthe same as “AWD” unless notifications are published inrespect of these lands under Section 22-A(3) of theAct.

Assigned lands:

(a) Cases relating to the lands assigned to the landless poor persons:W.P.Nos.30526, 27915, 32179, 32408,33956, 34197, 34202, 34513, 34521, 34544, 34559, 34611, 34732, 34820, 34821, 34828, 34830, 35019, 35058, 35156,35499, 36083, 31426, 32030, 32055, 34774, 35043, 35344,35559, 35808, 38385 and 32690 of 2012 fall in thiscategory.

It is conceded by the learned Government Pleader forRevenue that in all these cases which pertain to landssituated in the non-Telangana Area, assignments weremade either prior to the issuance of G.O.Ms.No.1142, dated18-6-1954, or no evidence exists as to the actual dates ofassignment. It is not in dispute that in respect of the landssituated in the Andhra Area (non-Telangana Area), acondition prohibiting transfer of lands was incorporated forthe first time under G.O.Ms.No.1142, dated 18-6-1954. Inrespect of the lands situated in the Telangana Area, such acondition was first incorporated under G.O.Ms.No.1406,dated 25-7-1958. Dealing with the lands situated in theTelangana Area, a Division Bench of this Court in Lettersent from Plot No.338, Parvanth Nagar, Borabanda,Hyderabad and others Vs. Collector & DistrictMagistrate, Ranga Reddy District, Hyderabad andothers[[8]],on an exhaustive consideration of the legalposition held that unless the patta granted to the assigneecontained a condition against non-alienation, the landcovered by such patta does not fall within the definition of“assigned land” under Section 2(1) of the A.P. Assigned Lands (Prohibition of Transfers) Act, 1977 (Act 9 of 1977). The Division Bench has also taken note of the fact that theassignments are of two types, namely, assignment onpayment of market value, and assignment to landless poorpersons, and that only in the latter category of cases that thebar imposed on alienation under the provisions of Act 9 of1977 would apply.

I n Akkem Anjaiah Vs. Deputy Collector and Tahsildar, Saroornagar Mandal, Ranga Reddy District[[9]],I had an occasion to consider a similar issue as was dealtby the Division Bench in Letter sent from Plot No.338 (8-supra). In the said case, this Court held that as theassignment patta was granted prior to the issuance ofG.O.Ms.No.1406, dated 25-7-1958, the initial burden lies onthe Revenue officials to show that the patta contained acondition against alienation of the land and that unless theRevenue officials are first satisfied that the land is an“assigned land” within the meaning of sub-section (1) ofSection 2 of the Act 9 of 1977, no proceedings forcancellation of the assignment for alienation of the assignedland can be initiated.

In P.V. Rajendra Kumar Vs. Government of Andhra Pradesh[[10]],I have held, at para-4, as under:

“…..The term ‘assigned land’ is defined by Section2(1) of the Act to the effect that the lands assigned bythe Government to the landless poor persons under the rules for the time being in force subject to thecondition of non-alienation and includes lands allottedor transferred to landless poor persons under therelevant law for the time being in force relating to landceilings. In order to attract the bar of registration, theland must be an assigned land within the abovementioned definition. Unless the patta under whichthe assignment is made contains a condition of non-alienability, such land cannot be treated as assignedland within the provisions of the Act…..”

In several Judgments, various learned Judges of thisCourt have taken similar views (See: K.M. KamallulaBasha and others Vs. District Collector, Chittoor District, Chittoor and others[[11]], The A.P. State Electricity BoardEmployees Union, Madanapalli Division, MadanapalliVs. The Joint Collector, Chittoor[[12]]andD.Parthasaradhi Sarma Vs. Government of A.P., Revenue(Assn.II) Department[[13]]). The above noted Judgementsare only illustrative of a slew of Judgments in which theabove mentioned consistent view is taken by this Court. Most unfortunately, the precedential value of theseJudgments is persistently being ignored by the Revenueofficials as well as the Registering authorities. While on onehand the Revenue authorities, such as, Tahsildars,Revenue Divisional Officers, and in some cases evenDistrict Collectors, have been sending the lists styling themas “prohibitory lists” by including the lands which are not notified under Section 22-A(2) of the Act without verifyingwhether the assignment was made prior to issuance ofG.O.Ms.No.1142, dated 18-6-1954, orG.O.Ms.No.1406, dated 25-7-1958, or that the lands wereassigned on payment of market value, or assigned topolitical suffers or ex-servicemen or freedom fighters, inwhose cases prohibition of alienation only for a limitedperiod of ten years is imposed, on the other hand, theRegistering authorities have been refusing to receive thedocuments unless the party who sought to present thedocument produces No Objection Certificate (NOC) from theRevenue authorities. This fundamentally flawed approachof both the Revenue and the Registering authorities, hasbecome the root cause for sprouting up of the litigation, andI am afraid, unless the flood gates are closed, there is adanger of this litigation reaching morbid proportions.

-(b) Assignments made to Exservicemen/Politicalsufferers:W.P.Nos.33218, 33442 and 35225 of 2012 fallunder this category. The Government of Andhra Pradeshissued G.O.Ms.No.743, Revenue (B) Department, dated 30-4-1963 wherein it has provided for assignment of lands toan extent of Ac.2-50 wet or Ac.5-00 dry, to the Ex-servicemen. The said G.O. also contained a condition tothe effect that the lands assigned shall not be sold orotherwise alienated for a period of ten years. When the Ex-servicemen assignees started applying for NOCs for alienation of the lands assigned to them after expiry of thestipulated period of ten years, the Commissioner, LandRevenue, addressed letter No.B1/3155/93, dated 18-9-1993, to the Government to clarify as to whether the formercan sell the lands assigned to them after the expiry of tenyears. Accordingly, the Government issuedG.O.Ms.No.1117, Revenue (Assignment-I) Department,dated 11-11-1993, whereby while modifyingG.O.Ms.No.743, dated 30-4-1963, it has clarified that the Ex-servicemen are free to sell away their assigned lands after aperiod of ten years. In Ande Narasimha Rao Vs. State of Andhra Pradesh[[14]], this Court has, in some detail,considered both these G.Os. and observed as under:

“The petitioner is an ex-serviceman, who wasgranted a DKT patta in respect of the abovementioned land. On 25-1-1993, when the petitionersought to sell the said land and presented sale deedfor registration, respondent No.6 refused to receivethe same on the ground that the same is covered bya DKT patta containing prohibition on transfer of theland. Feeling aggrieved by the said action, thepetitioner filed the present Writ Petition.

In support of his plea that he is entitled to transfer the land in question 10 years after the assignmentwas made, he has placed reliance onG.O.Ms.No.1117, dated 11-11-1993. A perusal of thesaid G.O. shows that the State Government hasearlier issued G.O.Ms.No.743, Revenue (B)Department, dated 30-4-1963, whereunder conditionswere framed for assignment of the lands in favour ofex-servicemen. One such condition was to the effectthat the lands assigned shall not be sold or otherwise alienated for a period of 10 years. In order to clarifythe said condition, the State Government issuedG.O.Ms.No.1117, dated 11-11-1993, whereunderG.O.Ms.No.743, dated 30-4-1963, was modified anda positive condition was incorporated to the effect thatthe ex-servicemen are free to sell away theirassigned lands after a period of 10 years. In otherwords, the condition, which was in the form ofprohibition against alienation for a limited period of 10years was modified by incorporating a positivecondition by permitting sale of lands of ex-servicemenon the expiry of 10 years period after assignment. Thus, the purport of both the G.Os. is the samethough the form in which the condition wasincorporated varied.

A perusal of the DKT patta granted to thepetitioner shows that the land was assigned to him inhis capacity as ex-serviceman. However,unfortunately, the assignment patta has notincorporated the condition as envisaged byG.O.Ms.No.743, dated 30-4-1963. Instead, conditionNo.1 therein has prohibited transfer of the propertywhile permitting enjoyment of the same byinheritance. Despite existence of the said condition,the petitioner is still entitled to the benefit ofG.O.Ms.No.1117, dated 11-11-1993, which wasissued a few months after issuance of patta in favourof the petitioner, as the said G.O. has, in categoricalterms, permitted the ex-servicemen to sell away theirassigned lands after 10 years.”

It is not disputed that in W.P.No.35225/2012, an extentof Ac.4-72 cents in Sy.No.4-2 of Bukkarayasamudramvillage and Mandal, Anantapur District, was assigned to oneKoppalakonda Venkata Swamy, an Ex-serviceman. He hassold away the land to Smt. M. Lakshmamma w/o.

Venkataramudu through registered documentNo.3008/1971. The said M. Lakshmamma sold an extent ofAc.0-50 cents to one C. Govind Reddy under registereddocument No.6361/1992, Ac.1-00 to G.M.H. Guptha throughregistered document No.4101/1991, Ac.0-40 cents to ViswaBharathi Steels Pvt. Ltd., and Ac.1-20 cents to the BSNL. When some of the purchasers sought to sell the properties,the Sub-Registrar, Anantapur insisted on NOC from theRevenue authorities. Similar is the case inW.P.No.33442/2012 wherein an extent of Ac.2-00 inSy.No.395/1 at Srikantapuram village Polam, HindupurMandal, Anantapur District, was assigned to one C.A.B.Murthy, the husband of the petitioner, under patta No.DARDis.132/86(RR), dated 8-6-1978. When she intended to sellthe said land, the Sub-Registrar, Hindupur, is stated to haveinsisted on production of NOC from the Revenueauthorities. It is not in dispute that the lands were assignedmore than 10 years back. In the light of the order in AndeNarasimha Rao (14-supra) as reproduced above, there isno legal impediment for transfer of the lands involved in boththese Writ Petitions and the Registering officers havecommitted a serious illegality in refusing to receive andregister the documents.

In W.P.No.33218/2012, an extent of Ac.10-00 inSy.No.310/2 of Ananthapalli Revenue village and Mandal,West Godavari District, was assigned to one Vedantham Venkata Subrahmanyam @ Vedantha Kavi, under PoliticalSufferers’ quota by the Tahsildar, Tadepallegudem, videRoc.No.A2-20/LD/79, dated 13-2-1970 on collection ofmarket value as fixed by the Government in 20 annualinstallments, without interest. After the demise of theassignee, his wife and two children sold the property to thepetitioner under registered sale deed dated 4-12-2007. When the petitioner wanted to sell the property, the Sub-Registrar, Ananthapalli Mandal, West Godavari District,insisted on production of NOC.

Clause (iv) of para (3) of Order-15 of the BoardStanding Orders defined ‘political sufferers’ as persons whohad gone to jail for a period of six months in connection withIndian Independence as a result of taking part in thefollowing movements inaugurated by the Indian NationalCongress or under its sanction :

1. Non-Co-operative Movement, 1921.

2. Nagpur Flag Satyagraha.

3. Saimon Commission Boycot 1928-29.

4. Salt Satyagraha 1930.

5. Civil Disobedience Movement 1932.

6. Individual Disobedience Movement 1932.

7. Individual Disobedience Movement 1940-41.

8. Quit India Movement of 1942.

9. Hyderabad Congress Movement started forintegration of Hyderabad State with the UnionGovernment leading to police action of September1948.

By G.O.Ms.No.1745, Revenue Department, dated 28- 8-1959, the Government of Andhra Pradesh has deleted thefollowing conditions which were till then incorporated in the assignments granted to political sufferers:

(a) that the lands assigned should not be alienated fora period of ten years;a period of ten years; (b)that cultivation should be by the assignee ormembers of his family or with hired labour underthe supervision of himself or members of his familybut the lands cannot be leased out or sub-let;members of his family or with hired labour underthe supervision of himself or members of his familybut the lands cannot be leased out or sub-let;

(c) that where the land is resumed for purpose ofproject or any public purpose no compensation willbe paid to the assignee for any improvementsmade by him.project or any public purpose no compensation willbe paid to the assignee for any improvementsmade by him.

Paragraph-2 of the said G.O. specifically permitted thepolitical sufferers to sell away the lands assigned to themwithout imposing any conditions. Despite the said G.O.being in force, the Revenue officers concerned have beengranting assignments to political sufferers in the standardformat which are generally applicable to the landless poorpersons without deleting the condition prescribingprohibition on transfer of lands. In the face of the policydecision of the State Government contained inG.O.Ms.No.1745, dated 28-8-1959, such a condition is notenforceable. Accordingly, I hold that the political sufferersare free to sell the lands assigned to them without anyprohibition or inhibition. The respondents in this Writ Petitionwere therefore wholly unjustified in objecting to the sale ofthe properties.

(c) Assignments made to Freedom fighters:

Even though the present batch of cases does notinvolve the cases of Freedom fighters, as several casesconcerning refusal to receive and register the documentspertaining to the assignments made to them are being filedbefore this Court, it is felt appropriate to deal with thiscategory of cases as well.

Under G.O.Ms.No.1045, Revenue (Asn.I) Department,dated 15-12-2004, prohibition on alienation by theFreedom Fighters contained in G.O.Ms.No.185, Revenue(Asn.I) Department, dated 11-3-1997 and G.O.Ms.No.917,Revenue (Asn.I) Department, dated 31-10-1997, was lifted,and para-3(3) of the said G.Os. which contained prohibitionwas substituted with the following clause : “The FreedomFighters are free to sell away their assigned land and housesites after a period of ten years”. Therefore, as in the casesof ex-servicemen, the lands assigned under the FreedomFighters quota could be sold after ten years of assignment. (d)Assignments made on collection of market value:

I n Letter sent from Plot No.338 (8-supra), theDivision Bench held that one of the aspects to be kept inmind is the nature of the occupancy rights, namely, whetherthey were granted on collection of market value or free ofmarket value. The Division Bench drew a distinctionbetween the assignments made to the landless poorpersons and the assignments made on payment of market value and held that only in the former category, the land fallswithin the definition of “assigned land” under Section 2(1) ofthe A.P. Assigned Lands (Prohibition of Transfers) Act,1977.

If the assignment was made on market value, therecan be no justification to curtail the right of the assignee totransfer the property forever and that if the assignmentcontains a condition prohibiting transfer for a specifiedperiod, the assignee cannot be permitted to transfer the landin contravention of such condition. In such cases,documents shall be registered after the expiry of the periodstipulated prohibiting the transfers.

Cases relating to NOCs: The following cases fall underthis category:

W.P.Nos.34018, 34635, 34662, 35110, 35144, 35165,35183, 35235, 38221 and 38231 of 2012.

The scheme underlying Section 22-A of the Act does notauthorize the Registering officers to insist on NOCs from theRevenue Department. From the detailed discussionundertaken above, it is evident that unless a notification ispublished under sub-section (2) of Section 22-A of the Act,no fetters can be placed on the Registering authorities toregister the documents unless the claim made by theRevenue authorities is supported by clear evidence to showthat the properties sought to be registered belong to the Government and the documents fall within the category ofclause (b) of Section 22-A(1) of the Act. Therefore, theconcept of insistence on NOCs from the Revenueauthorities is alien to the Act. As the instances of insistenceon NOCs by the Registering authorities were on the rise, thisCourt has taken exception to such insistence on the part ofthe Registering authorities. As a result of the same, thePrincipal Secretary to the Government, Revenue (Regn.I)Department, issued Memo No.49938/Regn/1/A1/2012-4, dated 6-12-2012, to the following effect:

“The attention of the Commissioner and InspectorGeneral of Registration and Stamps, Andhra Pradeshis invited to the references cited. He is requested toissue instructions to all the Registering Officers not toask for NOCs from the Revenue Authorities beforeregistration of prohibited properties and not to act onany such NOC.

Any exclusion from the list furnished earlier shouldstrictly be by way of a modification/exclusion listsigned by the District Collector himself and sent to theCommissioner and Inspector General of Registrationand Stamps as laid down in the referenceNo.G1/19131/2007, dated 14-9-2007 ofCommissioner and Inspector General of Registrationand Stamps, Andhra Pradesh”.

When cases of similar nature have come up before thisCourt after 6-12-2012, the learned GovernmentPleader for Revenue has assured this Court that with theissuance of the above mentioned Memo, the Sub-Registrarshave no longer been insisting on production of NOCs and that if and when the documents are presented, they will bereceived without insisting on NOCs and dealt with under theprovisions of Section 71 of the Act. On the basis of theseassurances, this Court has disposed of several WritPetitions with the direction to the Registering authorities toreceive the documents without insisting on production ofNOCs by the parties and process the same under Section71 of the Act. It was further directed that if the Registeringauthorities find no legal impediment for registering theproperties, they shall do so, subject to the parties presentingthe documents complying with the provisions of theRegistration Act, 1908 and the Indian Stamp Act, 1899, andthat conversely, if the Registering authorities find legallysustainable objections for registering the documents, theyshall pass appropriate orders under Section 71 of the Actand communicate the same to the parties, who, if feelaggrieved by such orders, shall be free to file appeals underSection 72 of the Act.

For all the above mentioned reasons, all these WritPetitions are allowed.

For all the above mentioned reasons, all these WritPetitions are allowed.

In order to see that the litigation of this nature iscurbed once and for all, I feel it not only appropriate, but alsoimperative to issue the following directions, which shall be ofgeneral application throughout the State of Andhra Pradeshand govern all transactions of registration, to take place infuture:

(A)The Registering officers shall not insist onproduction of NOCs as a condition forreceiving the documents for registration. production of NOCs as a condition forreceiving the documents for registration.

(B)The Registering officers shall not refuse toreceive the documents for registration onlyon the ground that the properties wereincluded in the prohibitory lists sent by theRevenue authorities, for reasons such asthat the ownership column of the RSRcontains dots, or that the lands are shownas AWD lands in the Revenue Records orthat the lands are assigned lands.receive the documents for registration onlyon the ground that the properties wereincluded in the prohibitory lists sent by theRevenue authorities, for reasons such asthat the ownership column of the RSRcontains dots, or that the lands are shownas AWD lands in the Revenue Records orthat the lands are assigned lands.

(C)In cases of entries in RSRs containing dotsor describing the lands as AWD, unless anotification has been issued under Section22-A(2) of the Act, the Registering officersshall not refuse to receive and register thedocuments. The registration of suchdocuments, however, shall be withoutprejudice to the right of the Government andits functionaries to initiate appropriateproceedings for recovery of possession ofthe properties covered by such documents,if in their opinion they belong to theGovernment. or describing the lands as AWD, unless anotification has been issued under Section22-A(2) of the Act, the Registering officersshall not refuse to receive and register thedocuments. The registration of suchdocuments, however, shall be withoutprejudice to the right of the Government andits functionaries to initiate appropriateproceedings for recovery of possession ofthe properties covered by such documents,if in their opinion they belong to theGovernment.

(D)In cases of assigned lands, if there is clear proof to the effect that such assignmentswere made prior to the issuance ofG.O.Ms.No.1142, dated 18-6-1954 in theAndhra Area and G.O.Ms.No.1406, dated25-7-1958 in the Telangana Area, theRegistering officers shall receive andregister the documents, notwithstanding thefact that the properties were included in theprohibitory lists sent by the Revenueauthorities. In respect of the documentsinvolving properties assigned subsequent tothe issuance of the above mentioned G.Os.,in view of the embargo contained in Section5(2) of the A.P. Assigned Lands (Prohibitionof Transfers) Act, 1977, the Registeringofficers shall make an endorsement whilerefusing to receive the document specifyingthe reason. If the parties feel aggrieved bysuch orders, they are entitled to availappropriate remedy as available in law.

(E)Wherever there is no specific evidence thatassignments of lands were madesubsequent to the issuance ofG.O.Ms.No.1142, dated 18-6-1954 in theAndhra Area and G.O.Ms.No.1406, datedassignments of lands were madesubsequent to the issuance ofG.O.Ms.No.1142, dated 18-6-1954 in theAndhra Area and G.O.Ms.No.1406, dated 25-7-1958 in the Telangana Area, benefit ofdoubt should be extended in favour of theparties who intend to transfer the lands. Insuch cases, the Registering officers shallwrite to the Revenue authorities to produceproof of the fact that the assignments weremade subsequent to 18-6-1954 or 25-7-1958, as the case may be, within astipulated time. If within such time, theRevenue authority concerned fails to sendsuch proof, the Registering officers shallregister the documents.

(F)

In cases of documents pertaining toassignments made to Ex-servicemen andFreedom fighters, the Registering officersmust consider whether ten years period hasexpired from the date of assignment andshall register the documents if the saidperiod has expired. In other cases, theRegistering officers shall pass an orderunder Section 71 of the Act andcommunicate the same to the partiesconcerned.Freedom fighters, the Registering officersmust consider whether ten years period hasexpired from the date of assignment andshall register the documents if the saidperiod has expired. In other cases, theRegistering officers shall pass an orderunder Section 71 of the Act andcommunicate the same to the partiesconcerned.

(G)In cases pertaining to assignments made toPolitical Sufferers, the assignees or thepersons claiming through them are entitledPolitical Sufferers, the assignees or thepersons claiming through them are entitled to transfer the lands by sale or otherwisewithout any restrictions and the Registeringofficers shall receive and register thedocuments whenever they are presented.

(H)Where assignments are made on paymentof market value, the Registering officersshall not refuse to register unless theassignment deed stipulated any periodduring which the land shall not be sold andthe stipulated time has not expired.of market value, the Registering officersshall not refuse to register unless theassignment deed stipulated any periodduring which the land shall not be sold andthe stipulated time has not expired.

(I)

In cases of alienation of properties whichare claimed to belong to Religious andCharitable Endowments falling under theA.P. Hindu Religious Institutions andEndowments Act, 1987, or Wakfs fallingunder the Wakfs Act, 1995, unless relevantmaterial is available before the Registeringofficers to show that they are owned by suchInstitutions, registration of the documentsshall not be refused. Even if evidence isavailable to show that the properties soughtto be alienated belong to the Institutionsreferred to above, the Registering officersshall receive the documents, pass ordersassigning reasons for rejection andcommunicate the same to the parties concerned, who shall be free to assail suchorders by availing the remedy of appealunder Section 72 of the Act.

(J)

In cases where notifications are issuedunder sub-section (2) of Section 22-A(1) ofthe Act prohibiting registration of thedocuments pertaining to the propertiesfalling under clause (e) of sub-section (1) ofSection 22-A of the Act, the Registeringofficers shall make an endorsement whilerefusing to receive the document specifyingthe reason for such refusal. Needless toobserve that if the parties feel aggrieved bysuch rejection orders, they can availappropriate remedies as available in law.

The above directions shall bind all the Revenue authoritiesand the Registering officers in the State of Andhra Pradesh,irrespective of whether they are parties to this batch of WritPetitions or not. Violation of the above directions by theofficers concerned will be viewed as contempt of Court. Ifsuch instances come to the notice of this Court, it mayexercise the option of initiating contempt proceedings suomotu against such officers even though they are not partiesto these cases.

The Principal Secretaries of the Departments of Revenue and Revenue (Registration & Stamps),Government of Andhra Pradesh, shall circulate thisJudgment to the officers under their respective jurisdictionsunder separate circulars to be issued in this regard.

As a sequel to disposal of the Writ Petitions, all thepending miscellaneous applications filed for interim relief inthese Writ Petitions, are disposed of as infructuous.

________________________

Justice C.V. Nagarjuna Reddy

Date : 31-12-2012

L.R. copies

Note: Registry shall communicate this Judgment to:

(1) Principal Secretary to Government,

Revenue Department, Secretariat, Hyderabad.(2) Principal Secretary to Government, Revenue (Registration & Stamps) Department, Secretariat, Hyderabad.(2) Principal Secretary to Government, Revenue (Registration & Stamps) Department, Secretariat, Hyderabad.

AM

[1]AIR 2001 Rajasthan 127 (D.B.)AIR 2001 Rajasthan 127 (D.B.)

[2](2005) 12 SCC 77(2005) 12 SCC 77

[3]2011(4) ALT 82[4]W.P.No.38148/2012, dated 11-12-2012

[5]2009(3) ALT 419

[6]2011(1) ALT 474

[7]2011(2) ALT 2

[8]2008(5) ALT 313 (D.B.)

[9]2012 ALT (Rev.) 83

[10]2011(3) ALD 5712011(3) ALD 571

[11]2009(3) ALD 3852009(3) ALD 385

[12]W.P.No.19258 of 1998, dt. 14-9-2007W.P.No.19258 of 1998, dt. 14-9-2007

[13]W.P.No.27217 of 2003, dt. 15-4-2008W.P.No.27217 of 2003, dt. 15-4-2008

[14]W.P.No.38504/2012, dt. 21-12-2012W.P.No.38504/2012, dt. 21-12-2012