WP/27335/2007 of Chinnamsetty Murali Krishna S/o Krishna Murthy Vs The District Collector, on 27 December 2007

ORDER:

Heard learned counsel appearing for the petitioner as wellas the learned Government Pleader for Revenue appearing forthe respondents.

2. Petitioner seeks a writ of mandamus declaring theaction of the 1[st] respondent in rejecting the petitioner’s revisionin his Ref.No.E3/2594/2007, dated 06-08-2007, as illegal, unjust,arbitrary, and contrary to proviso to Section 9 and 8(2) ofA.P.Records of Rights in Land Act, 1971 ( for brevity, ‘the Act’)and consequently set aside the order of the 1[st] respondentpassed in his Ref.No.E3/2594/2007, dated 06-08-2007, withfurther direction to entertain the revision of the petitioner as perSection 9 of the Act.

3. It is the case of the petitioner that he has purchased anextent of Ac.4.28 cents of the agricultural land in Sy.No.608 ofPedapalli village, Sidhout mandal, Kadapa District in publicauction conducted on behalf of the District Co-operative CentralBank Limited., Kadapa for Rs.90,000/- and the sale wasconfirmed in favour of the petitioner on 26-04-2002. Pursuant tothe sale the said land was registered in favour of the petitioner on 22-05-2002. Thus, it is the case of the petitioner that he has gotabsolute right, title, and possession over the said property. It isstated that the petitioner has obtained permission from theGram Panchayat, Pedapalli vide its resolution No.5, dated 30-11-2004, for construction of daba but the 3[rd] respondentobstructed the construction of the daba and therefore, petitionerfiled O.S.No.25 of 2005 on the file of the Junior Civil Judge,Sidhout against the 3[rd] respondent-Commandant, XI Battalion,Andhra Pradesh Special Police, Bhakarapet, Sidhout mandal forpermanent injunction and in the said suit temporary injunctionwas also granted.

4. While so, the 3[rd] respondent filed a petition before the 2[nd]respondent-Revenue Divisional Officer, Rajampet forcancellation of the pattadar pass book and title deed issued infavour of the petitioner in respect of the said land on the groundthat the said land purchased by the petitioner was assigned infavour of the landless poor and the said assignee mortgaged thesaid land in favour of the District Co-operative Central Bank andfor the non-payment of the mortgaged amount the bank sold thesaid property. It is further stated that the said land was resumedby the Government for the establishment of A.P.S.P.XIBattalian, and the 1[st] respondent-District Collector vide hisproceedings, dated 07-03-2002, in R.Dis.No.5786/94 transferredthe said land in favour of the 3[rd] respondent. It is stated thatafter the transfer of the said land in favour of the 3[rd] respondentpetitioner purchased the said property in the public auctionconducted by the District Co-operative Central Bank, Kadapa and obtained the pattadar pass book and title deeds on 05-06-2002. Accordingly, 3[rd] respondent requested the 2[nd] respondentto cancel the pattadar passbook and title deeds granted infavour of the petitioner.

5. After hearing both the parties 2[nd] respondent cancelledand suspended the issuance of the pattadar pass books andtitle deeds in favour of the petitioner, and has taken a view thatuntil the auction conducted by the Central Bank in respect of theassignment of the land is set aside by the competent authority,cancellation of the pattadar pass books already issued in favourof the petitioner becomes superfluous and accordingly 3[rd]respondent was given a liberty to file an appeal before theRegistrar of Co-operative Societies or Co-operative Tribunal,Hyderabad for setting aside the auction conducted by theDistrict Co-operative Central Bank. Aggrieved by the said orderof the Revenue Divisional Officer, dated 16-05-2007, inD.Dis.637/2006 petitioner filed a revision before the 1[st]respondent under Section 9 of the Act and the revisionalauthority dismissed the revision on the ground that admittedlythe suit filed by the petitioner is pending, and pending the suit,revision is not maintainable as it is not open for the petitioner topursue parallel proceedings.

6. The endorsement of the District Collector, inRef.No.E3/2594/2007, dated 06-08-2007, rejecting the revisionon the ground that the suit filed by the petitioner is pending andtherefore revision is not maintainable as it amounts to parallelproceedings is unsustainable and the said action of the DistrictCollector cannot be approved. The issue in the instant case before the 2[nd] respondent is to cancel the pattadar pass booksand title deeds granted in favour of the petitioner. The 2[nd]respondent while exercising his powers under Section 5(5) ofthe Act suspended the pattadar pass books and title deedsgranted in favour of the petitioner advising the 3[rd] respondent tofile an appeal or revision against the auction conducted by theDistrict Co-operative Central Bank. Admittedly, revision ismaintainable against the order passed by the 2[nd] respondentunder Section 9 of the Act. The suit filed by the petitioner is forpermanent injunction and therefore it cannot be said that therelief claimed in the suit and the relief claimed in the revision isone and the same. Therefore I am of the opinion that revision ismaintainable. Though the revision is maintainable I am of theopinion that this Court cannot grant any relief to the petitionerand this Court is also of the opinion that the order passed by theRevenue Divisional Officer suspending the grant of pattadarpass book and title deeds instead of cancellation is also not inaccordance with law and the Revenue Divisional Officer oughtto have cancelled the pattadar pass books and title deedsgranted in favour of the petitioner for the following reasons:

Admittedly, the said land is assigned in favour ofthe landless poor. It is not known whetherthe lands were resumed by the Governmentafter following due procedure prescribed inlaw under the A.P.Assigned Lands(Prohibition of Transfers) Act, but there isno dispute that the said land wastransferred in favour of the 3[rd] respondentby the proceedings of the District Collectorin R.Dis.No.5786/94, dated 07-03-2002.The said proceedings of the District Collector have not been questioned by thepetitioner. After the transfer of the said land by the Collector in favour of the 3[rd]respondent by proceedings dated 07-03-2002 only, the assigned land whichwas mortgaged in favour of the District Co-operative Central Bank by the originalassignee was put to sale on 26-04-2002 i.e., after the transfer of the landin favour of the 3[rd] respondent and the salewas confirmed on 06-04-2002 and the pattadar pass bookand title deeds were issued only on 05-06-2002.

7. The question that arises for consideration is whether themortgage of the assigned land by the landless poor in favour ofthe Central bank can be alienated even in the public auction fornon-payment of the mortgaged money.

8. As per the provisions of the A.P.Assigned Lands(Prohibition of Transfers) Act the lands assigned in favour of thelandless poor are not alienable but only inheritable. The“assigned land” has been defined under section 2(1) of theA.P.Assigned Lands (Prohibition of Transfers) Act as follows:

2(1) “assigned land” means lands assigned by the Government to the landless poorpersons under the rules for the time beingin force, subject to the condition of non-alienation and includes lands allotted ortransferred to landless poor persons underthe relevant law for the time being in forcerelating to land ceilings; and the word“assigned” shall be construed accordingly.persons under the rules for the time beingin force, subject to the condition of non-alienation and includes lands allotted ortransferred to landless poor persons underthe relevant law for the time being in forcerelating to land ceilings; and the word“assigned” shall be construed accordingly.

Explanation:- A mortgage in favour of the following shall not be regarded as an alienation, namely __

(i) the Central Government or the StateGovernment or any local Authority.Government or any local Authority.

(ii) Any Co-operative society registered ordeemed to be registered under theAndhra Pradesh Co-operativeSocieties Act, 1964; anddeemed to be registered under theAndhra Pradesh Co-operativeSocieties Act, 1964; and

(iii) Any bank which includes__

(a) The Agricultural DevelopmentBank;Bank; (b)The Reserve Bank of Indiaconstituted under the ReserveBank of India Act, 1934;constituted under the ReserveBank of India Act, 1934;

(c) The State Bank of India constitutedunder the State Bank of India Act,1955;under the State Bank of India Act,1955; (d)A subsidiary bank as defined in theState Bank of India (SubsidiaryBanks) Act, 1959; andState Bank of India (SubsidiaryBanks) Act, 1959; and (e)A corresponding new bankconstituted under Section 3 of theBanking Companies (Acquisitionand Transfer of Undertakings ) Act,1970;constituted under Section 3 of theBanking Companies (Acquisitionand Transfer of Undertakings ) Act,1970;

9. Under Section 2(6) of the A.P.Assigned Lands(Prohibition of Transfers) Act “transfer” means any sale, gift,exchange, mortgage with or without possession, lease or anyother transaction with assigned lands, not being a testamentarydisposition and includes a charge on such property or a contractrelating to assigned lands in respect of such sale, gift,exchange, mortgage, lease or other transaction.

10. Therefore, the assigned lands are not alienable eitherby way of sale, gift, mortgage, with or without possession, leaseor any other transaction with assigned lands, not being a testamentary disposition and includes a charge on suchproperty or a contract relating to assigned lands in respect ofsuch sale, gift, exchange, mortgage, lease or other transaction.

11. The only exception for mortgage in respect of theassigned lands are in favour of the State or Central Governmentor any bank including the agricultural development bank,Reserve Bank, State Bank etc., as the aim and object of the Actis to protect the lands assigned in favour of the landless poorpermanently and therefore Section 3 of the A.P.Assigned Lands(Prohibition of Transfers) Act prohibits the transfer or alienationof the assigned land in any manner including the mortgage buteven if the said lands are mortgaged in favour of the State,Central or the Cooperative Central Banks, the scheme of theAct does not contemplate the sale of the mortgaged land infavour of the State or Cooperative Central Bank. Only apermission has been granted to mortgage the land in favour ofthe bank for the purpose that any mortgage in favour of theCooperative Central Bank shall not be treated as transfer.Section 2 Explanation clearly indicates that mortgage in favourof the Central Government, State Government, any localauthority, or Cooperative Central Bank or banks shall not beregarded as alienation. Therefore, if the mortgage is not treatedas alienation even the banks are also not entitled to sell the saidassigned land in realization of the mortgaged money. Therefore,I am of the opinion that the sale of the assigned land by thebank pursuant to the mortgage by the landless poor is illegaland unsustainable. The course open for the petitioner is to takeappropriate steps for recovery of the sale consideration paid tothe bank.

12. I have elaborately considered about prohibition of thealienation of the assigned lands in W.P.Nos.2985 of 2003 &batch, dated 17-12-2007. Having regard to the facts andcircumstances of the case, and for these and other reasonsstated in the above Writ Petitions, this Writ Petition isdismissed. No order as to costs.

27[th] December, 2007.LR copy to be marked. B/o Tsy _________________

V.ESWARAIAH,J