Telangana High Court
Dantuluri Avinash And 7 Others vs The State Of Telangana And 5 Others on 5 June, 2023
Author: K. Lakshman
Bench: K. Lakshman
HON'BLE SRI JUSTICE K. LAKSHMAN
WRIT PETITION No.6844 OF 2022
ORDER:Heard Sri Vedula Venkata Ramana, learned senior counsel representing M/s.Bhardwaj Associates, learned counsel for the petitioners and Sri Harender Pershad, learned Special Government Pleader attached to the office of learned Advocate General for the respondents. Perused the record.
2. This Writ Petition is filed seeking to declare the endorsement of Respondent No.2-District Collector, Sangareddy District, contained in letter No.D1/829/2020 dated 20.10.2021 rejecting to delete the land admeasuring Ac.28.22 Guntas in Survey No.146 of Kothlapur Village, Sangareddy District (hereinafter referred as to 'the subject land') from the list of prohibited lands under Section 22(A) of the Registration Act, 1908 as illegal and to set aside the impugned endorsement.
3. The petitioners are claiming that they have purchased the subject land in Survey No.146 of Kothlapur Village, Sangareddy Mandal and District, under different registered sale deeds (pending registration). The details of the extent, survey number, etc., are specifically mentioned in a tabular form of this writ affidavit.
4. When the registration of the sale deeds was kept pending on account of the endorsement contained in letter No.D1/829/2020 of respondent No.2-District Collector, petitioners have filed writ petitions vide W.P.No.9880 of 2021 and batch. Vide Order dated 28.04.2021, this Court disposed of the said writ petitions setting aside the impugned endorsement and remitted the matter back to respondent No.2-District Collector to consider the issue of deletion of the subject land from the list of prohibitory properties uninfluenced by the decision dated 18.01.2021 communicated vide endorsement dated 03.04.2021. This Court further observed that it is open to the petitioners to place before respondent No.2-District Collector any additional submissions and the legal position as it stands now, within two (2) weeks from the date of receipt of a copy of the said Order. Respondent No.2-District Collector shall consider the claim of the petitioners objectively, including additional submissions, if any, made, and take a decision as warranted by law duly considering the submissions of the petitioners and by assigning reasons in support of the decision. The entire exercise shall be completed within six (6) weeks from the date of receipt of a copy of the said order.
5. In compliance with the said Order, respondent No.2-District Collector vide endorsement contained in letter No.D1/829/2020 dated 20.10.2021 rejected the request made by the petitioners seeking deletion of the said subject land from the prohibitory list. Impugning the said endorsement, the petitioners have filed this Writ Petition.
6. Vide Order dated 21.04.2022 in I.A.No.1 of 2022 in W.P.No.6844 of 2022, this Court granted interim Order directing the respondents to register the pending sale deeds concerning the subject land and release the registered sale deeds. However, such registration shall be treated as a provisional one and the same shall be subject to the outcome of this Writ Petition. The petitioners are directed not to alienate the subject land without permission of this Court.
7. Feeling aggrieved by the said interim Order, the petitioners herein have preferred an appeal vide W.A.No.420 of 2022. Vide Order dated 20.07.2022 a Division Bench of this Court dismissed the said writ appeal with an observation that the pleadings are complete and therefore a request can be made to this Court to hear and decide the related writ petition expeditiously.
8. Both Sri Vedula Venkata Ramana, learned senior counsel appearing for the petitioners and Sri Harender Pershad, learned Special Government Pleader attached to the office of learned Advocate General made their submissions extensively and also placed reliance on the Judgments, which will be considered in the below paragraphs.
9. The contentions of Sri Vedula Venkata Ramana, learned senior counsel appearing for the petitioners are fourfold and the same are as follows:
i) To apply the provision contained in Section 22(A) of the Registration Act, 1908 and consequently prohibit the registration of sale of the assigned lands by the Government to landless poor persons subject to the condition of non-
alienation.
ii) Impugned endorsement of respondent No.2 only refers to the Special Laoni Rules of Laoni Rules, 1950, which are issued under Section 172 of the Telangana Land Revenue Act 1317 Fasli. The Laoni Rules do not anywhere specify that the grant thereunder is non-alienable. The rules are to be read in conjunction with Section 58 of the Telangana Land Revenue Act 1317 Fasli.
iii) The reasons mentioned in the impugned
endorsement is more in the nature of
imagination/assumption. There is no condition of inalienability in the grant of the year 1953. If any condition of inalienability was incorporated, it could have got mentioned in the impugned endorsement. Further, the reasons mentioned in the impugned endorsement are baseless.
iv) There is no consideration of the observations/findings and directives given by this Court in the Order dated 28.04.2021 in W.P.No.9880 of 2021.
10. Sri Harender Pershad, learned Special Government Pleader representing learned Advocate General contended as follows:
i) The lis involved in the present writ petition is clearly covered by the Judgment dated 31.12.2021 in W.P.No.202 of 2010.
ii) The assignment was made to the original assignees in the year 1953 exercising powers vested in Government under Section 172 of Andhra Pradesh (Telangana Area) Land Revenue Act, 1317 Fasli.
iii) In the case of land assignment under Laoni Rules, the auction is conducted in respect of the land to be assigned and highest bidder in the laoni auction is given the patta certificate.
iv) In the case of land assigned under Special Laoni, the beneficiaries are selected by the Tahsildar concerned, who are poor landless persons who could not participate in the laoni auction and purchase the land.
v) In the present case, the land being claimed by the petitioners, was originally assigned under Special Laoni Rules under Laoni Rules, 1950 which were on free of cost and meant for bringing up the land to agricultural use and to provide livelihood to the assignees by way of agriculture.
vi) Thus, the lands in question are assigned by Government to the poor landless persons on free of cost and shall be treated as Government land. Therefore, the same are placed under the prohibitory properties.
vii) The said aspects were considered by respondent No.2 in the impugned endorsement. He has issued the impugned endorsement by considering the observations, findings and directives of learned Single Judge in the Order dated 28.04.2021 in W.P.No.9880 of 2021 and there is no error in it.
11. In view of the aforesaid rival submissions, the only issue to be considered is:
Whether the inclusion of the subject property under the prohibitory list by respondent No.2-District Collector is in accordance with law and also the law laid down by this Court, if any, to what relief the petitioners are entitled ?
12. It is relevant to note that when the subject land was mentioned in the prohibitory list, the petitioners have filed writ petitions vide W.P.No.9880 of 2021 and batch. This Court disposed of the said writ petitions vide Order dated 28.04.2021 considering the rival contentions of the parties and also the principle laid down by this Court in various writ petitions. Relevant paragraphs of the said Judgment are extracted below:
"18. The view taken by the Division Bench in Letter sent from Plot No. 338 and view taken by learned single Judge in Akkem Anjaiah is consistently followed. Therefore, prima facie, there is merit in the contentions of the learned senior counsel. It is not in dispute that Loani Rules, 1950 did not prescribe the non-alienation condition on assigned land. This was introduced for the first time in the year 1958. Prima facie, unless a notification under Section 58-A of Telangana Area Land Revenue Act was issued, no restriction can be imposed on alienation of the land. Further, as held in Akkem Anjaiah the District Collector can not shift the burden on petitioners to prove that there was no non-alienation clause. As held by this Court in the decisions noted above, prior to1958 there was no restraint on alienation of assigned land. If that is so, it is not just and proper to harass subsequent purchasers by merely looking into status of land as SARKARI. The District Collector ought to have conducted the enquiry more objectively.
19. Therefore, it is apparent from the material placed on record that there was no proper exercise undertaken by the District Collector. He ignored material on record without recording reasons. By merely referring to the status of the land as Government land, and pattas were granted under the Laoni Rules, the claim was rejected. It thus amounts to non application of mind.
20. The District Collector ought to have looked into the reports of the Tahsildar and the Revenue Divisional Officer. If he was not satisfied by those reports, he ought to have thoroughly looked into the record independently to form an opinion on the status of the land. It is within his competence to refuse to delete the subject land from the prohibited list of properties if laoni patta was burdened with non-alienation clause. As held by this Court in Akkem Anjaiah, the District Collector cannot shift the burden on applicants to prove non-alienation clause, more so, when in the first round transactions were allowed to be registered. The District Collector has also not looked into the provisions of the Telangana Area Land Revenue Act and the Laoni Rules and the law declared by this Court. He failed in discharging his statutory obligations effectively.
21. Having regard to the law laid down by this Court as affirmed by the Hon'ble Supreme Court, it is elementary for the District Collector to thoroughly verify the record to ascertain as to how patta was granted to the vendors of vendors of petitioners under Laoni Rules while considering the request of petitioners to delete the subject extents of land from prohibited list.
22. In the representation made by the petitioner in W.P.No. 9988 of 2021 on 12.3.2021 though he was trying to make a claim that patta was granted to the vendor under Rule 9 in Form-G and there was no non- alienation clause, he has not placed before the Collector the pattas granted to vendors of vendors of petitioner nor has he highlighted the legal position as evolved by several decisions of this Court as sought to be urged in these writ petitions. Same is the case with other petitioners.
23. Having regard to the infirmities noticed in the decision making process, the learned Senior Counsel for petitioners and the learned Assistant Government Pleader agree to remand the matters to the District Collector to consider the issue denovo.
24. Having regard to said submissions, the impugned endorsements are set aside and matters are remitted to the District Collector to consider the issue of deletion of subject properties from the list of prohibited properties uninfluenced by the decision dated 18.01.2021 communicated vide endorsement dated 03.04.2021. It is open to petitioners to place before the District Collector any additional submissions and the legal position as it stands now, within two weeks from the date of receipt of copy of this order. The District Collector shall consider the claim of the petitioners objectively, including additional submissions, if any, made, and take a decision as warranted by law duly considering the submissions of petitioners and by assigning reasons in support of the decision. The entire exercise shall be completed within six weeks from the date of receipt of copy of this order."
13. It is also relevant to note that a Division Bench of this Court in State of Telangana, represented by its Principal Secretary, Revenue Department v. Dakoji Durgapathy 1 had an occasion to deal with the subject matter including provisions of Assigned Lands (Prohibition of Transfers) Act, 1977 (for brevity 'POT Act') and Laoni Rules. In the said case, assignment of lands was not under the Laoni Rules, 1954 and there was no condition of non- alienation. On examination of the facts therein and also considering the provisions of the POT Act and Laoni Rules, Division Bench held that a land to be treated as an assigned land, within the meaning of POT Act, should be burdened with a condition of non-alienation. In the absence of the said clause, the property cannot be included in the prohibitory list.
14. Assailing the said Judgment dated 10.08.2021 in W.A.No.91 of 2020, the State has preferred a Special Leave to Appeal (C) No.8615 of 2022 before the Hon'ble Supreme Judgment dated 10.08.2021 in W.A.No.91 of 2020 Court and the same was dismissed as withdrawn with liberty to file review petition vide Order dated 10.10.2022.
15. In Dasari Narayana Rao v. Deputy Collector and Mandal Revenue Officer 2, learned Single Judge of High Court of Andhra Pradesh, considered the conditions of POT Act, 1977 in paragraph no.43 and the same is relevant, so, extracted below:
"43. From the text of Form-G, the inference is compelling that prior to the revised assignment policy (1958), under the unamended 1950 Rules, the assignment could be with or without a condition as to prohibition of alienation. If the assignment specified a prohibition, then and then alone must a grantee not transfer the occupancy without the previous sanction from the Collector."
16. In Government of Andhra Pradesh, represented by its Secretary v. Mallarapu Jangaiah 3 (W.A.No.202 of 2010 dated 31.12.2021) a Division Bench of this Court considering the fact that the land in question 2010 (4) ALT 655 2021 SCC Online TS 1846 was having a clause restraining the grantee to transfer the land without previous sanction of the Collector. No sanction was obtained at any point of time and therefore the same cannot be transferred.
17. In view of the same, few provisions of the relevant acts for the purpose of deciding the lis in this writ petition such as Section 58 of the Land Revenue Act (Act No.VIII of 1317 Fasli) is relevant and the same is extracted:
58. An occupancy right to land shall be deemed to be heritable and transferable.
58-A (1). Notwithstanding anything contained in the preceding section the Government may by [Official Gazette] notify the respect of any village or tract of [the area to which this Act extends] that the right of occupation of any land under section 54 given after the date of the notification shall not be transferable without obtaining the previous sanction of the [xxx] [Collector] [xxx].
18. In exercise of the powers conferred by Section 172 of the A.P. (Telangana Area) Land Revenue Act, 1317 Fasli, Laoni Rules, 1950 were issued and Rules 15 to 24 are relevant, the same are extracted below:
"15. No lands in the special area notified under Section 58-A of A.P. (Telangana Area) land Revenue Act, shall be assigned except in accordance with the following rules:--
(a) The object of the special laoni is to make land available in certain areas to such landless persons of agricultural and backward classes as may be notified from time to time, and who have not sufficient means to purchase land either at the ordinary laoni auctions or otherwise. The selection of the most deserving applicant should be made by Tahsildar after due publicity in the village or at the place fixed for the allotment proceedings.
(b) Special laoni, proceedings may ordinarily take place twice a year in the months of April and September, and may also take place at other times when the Tahsildar is visiting the locality.
16. In making selection for special laoni preference shall be given to persons who reside in the village, but do not possess any patta or shikmi rights in any land in the village or elsewhere or who have insufficient land but possess bullocks and agricultural implements. Persons who are already cultivating lands are 'asamis' or 'bataidars' shall be given preference over other labourers.
18. The selection by the Tahsildar of any person for special laoni shall be confirmed by the Collector within a month from the date of the proposal for such selection, after satisfying himself that there has been no material irregularity in the proceedings.
19. The allottee of the land shall prepare the land for cultivation within three years of being placed in possession and commerce cultivation of the land thereafter. The pattadar may be rejected by the order of the Collector for breach of any of the above conditions :
Provided that he has been served with a notice calling upon him to comply with the conditions which he has violated and he fails to comply with it within three months of the date of service thereof. If lands has been transferred in contravention, the conditions, the Collector may eject the transferee.
20. After sanction has been accorded by the Deputy or Assistant Collector in the case of ordinary laoni and by the Collector in the case of special laoni, the Tahsildar shall obtain an agreement from the person to whom land is to be allotted and after recovering any amounts due shall give him permission in writing to occupy the land.
23. The special laoni provisions shall apply to all applications for assessed land which are not reserved. The Tahsildar may grant pattas under the rules laid down above.
24. A register shall be maintained as in Form I in respect of all lands granted under Special Laoni Rules."
This procedure is prescribed in Laoni Rules.
19. Section 2(1) of POT Act deals with definition of assigned land and it is extracted below:
2. Definitions:- In this Act, unless the context otherwise requires,-
1) "assigned land" means [lands or house sites assigned] by the Government to the [landless or homeless poor persons] under the rules for the time being in force, subject to the condition of non-
alienation and includes lands allotted or transferred to landless or homeless poor persons under the relevant law for the time being in force relating to land ceilings; and the word "assigned" shall be construed accordingly.
20. Therefore, to declare or treat a land to be assigned land within the meaning of assigned land as per POT Act, there should be a condition of non-alienation. In the earlier endorsement dated 18.01.2021 there is no consideration of the aforesaid rules and law laid down by this Court in the above referred Judgments. Therefore, this Court vide Order dated 28.04.2021 in W.P.No.9880 of 2021 and batch directed respondent No.2-District Collector to consider the said aspects and decide the said matters afresh.
21. Sri Harender Pershad, learned Special Government Pleader representing learned Advocate General has produced kasra pahani for the year 1954-1955, in respect of the subject land, wherein it was mentioned that land in Sy.No.146 (Old Survey No.243) of Kothalapur, Sangareddy District, is a gairan land. He has also filed copy of District Collector file No.A/1/375/52 along with notes and list of 27 serial numbers in respect of said property i.e., land in Survey No.146 (old No.243), wherein, it was mentioned that land in Survey No.146 of Kothalapur Village admeasuring 251.22 is 'gairan' and 26 families, their details are mentioned therein, as they belongs to BC (Backward Class), they may be given land shown there and the recommended acreage of land given is figured adjacent to their names. The said recommendation was agreed on 16.08.1952. Referring to the same, learned Special Government Pleader would submit that the said assignment was made under Special Laoni Rules and the object of the same is to make land available in certain areas to such landless persons of agricultural and backward classes as may be notified from time to time, and who have no sufficient means to purchase land either at the ordinary laoni auctions or otherwise. The selection of the most deserving applicant should be made by the Tahsildar after due publicity in the village or at the place fixed for the allotment proceedings.
22. Laoni Rules, 1950 are very clear that when the land is occupied with prior written permission of the competent authority on payment of an up-set price equal to 16 times of the land revenue, the permanent patta will be granted and the same will be treated on par with the other patta lands and can be transferred.
23. On the other hand, the Government had made special provisions under the Special Laoni Rules for the landless persons and backward classes, who are not capable of purchasing lands in laoni auctions wherein the lands will be assigned to such persons on free of cost so as to bring the Government vacant lands into cultivation and providing livelihood to the landless persons. The said lands are not alienable as the very purpose of bringing the Special Laoni Rules in existence is to provide opportunity to do agriculture and to derive its benefits from the lands so assigned. If the lands are made alienable, the very objective of the Government to provide lands to the landless persons will be defeated. The title of the said lands always vests with the Government and they are prohibited from alienation to the third parties. Therefore, considering the said aspects respondent No.2-District Collector rejected the request made by the petitioners.
24. It is relevant to note that the scope and ambit of the Telangana Area and Land Revenue Act, and Laoni Rules was considered, in letter sent from plot No.338 by a Division Bench of this Court. On consideration of the same and also G.O.MsNo.1406 dated 25.07.1958, the Division Bench held that unless a notification is issued as required by Section 58-A of the Act in respect of any village or tract that right of occupation in land under Section 54 of the Act given after the date of notification shall not be transferable without obtaining previous sanction of the Collector, no restriction can be imposed on alienation.
25. In Akkem Anjaiah v. Deputy Collector and Tahsildar, Saroornagar Mandal, Rangareddy District 4 considering Mr.Maqdom Shareef was assigned land on 20.12.1956 under the Laoni Rules, 1950. The said assignee sold the land in favour of the petitioners therein under 2011 (5) ALT 420 registered sale deed dated 17.02.1967. Alleging that sale was in violation of the assignment conditions, show cause notice was issued on 14.02.2008 to show cause why land should not be resumed under the provisions of Act 9 of 1977. The petitioners therein contended that even if the land was treated as assigned under the Laoni Rules, much before G.O.Ms.No.1406 dated 25.07.1958 was issued, there can be no restriction on alienation. Considering the said aspects learned Single Judge held that in the absence of non-alienation clause, placing the said property in prohibitory list is illegal. Challenging the said order, an appeal vide W.A.No.1728 of 2013 was filed and the same was dismissed by Division Bench confirming the Judgment of the learned Single Judge. Special Leave Petition (Civil) No.12198 of 2016 preferred against the Writ Appeal was also dismissed by Hon'ble Supreme Court on 07.10.2016.
26. Considering the said aspects, in the Judgment dated 28.04.2021 in W.P.No.9880 of 2021 and batch, this Court directed respondent No.2-District Collector to conduct thorough enquiry and pass appropriate orders in accordance with law. There is no consideration of the principle laid down in the aforesaid Judgment and the only contention of respondent No.2-District Collector is that the assignment was under Special Laoni Rules, therefore the subject land cannot be alienable and if the subject land is alienated, the very object of the Laoni Rules will be defeated. The Government is having right over the subject land. Therefore, the impugned endorsement is in not on consideration of the aforesaid principle, findings and directives of this Court in the aforesaid Order dated 28.04.2021 in W.P.No.9880 of 2021.
27. As rightly contended by Sri Vedula Venkata Ramana, learned senior counsel appearing for the petitioners, the rules do not anywhere specify that the grant thereunder is non-alienable. The rules are to be read in conjunction with the Telangana Land Revenue Act 1317 Fasli and Section 58 of POT Act.
28. An occupancy right to land shall be deemed to be heritable and transferable. In Section 58(A) of the POT Act which is applicable to the notified areas, the occupancy is not transferrable without obtaining the previous sanction of the Collector. Therefore, the parent statute clearly specifies laoni rules, shall be heritable and transferrable. Thus, the parent statute i.e., Telangana Land Revenue Act permits transferability of the occupancy. The Special Laoni Rules are part of Loani Rules, 1950. Rules 15 to 20 do not contain any condition of non-alienability. On a combined reading of the Telangana Land Revenue Act, 1317 Fasli, Laoni Rules, 1950 and Section 5 of POT Act, it is crystal clear that in the case of grant under Laoni Rules or Special Laoni Rules, there is any statutory prescription of condition of inalienability of the land covered by the Laoni patta or special laoni patta. Therefore, in respect of the subject properties section 22A(1)(a) of the Registration Act did not attract. The said principle was also held by two division benches viz., Letter sent from Plot No.338, Parvant Nagar, Hyderabad v. The Collector and District Magistrate, Rangareddy District 5 and State of Telangana (1 supra).
29. There is no mention about the condition of non- alienability in grant of the year 1953 in the impugned endorsement as held by this Court in W.A.No.91 of 2020 dated 10.08.2021. The Government is the custodian of the record and if any condition of non-alienability is incorporated, it get mentioned in the impugned endorsement. There is no such mention in the impugned endorsement. Thus, viewed from any angle, the impugned endorsement is not on consideration of the aforesaid provisions of law and the principle laid down in the aforesaid Judgments. Therefore, the impugned endorsement is liable to be set aside.
30. Accordingly, the impugned endorsement of Respondent No.2-District Collector, Sangareddy District contained in letter No.D1/829/2020 dated 20.10.2021 is (2008) 5 ALT 313 (DB) set aside. However, Respondent No.2-District Collector shall take steps to delete subject land from the prohibitory list as expeditiously as possible, preferably within a period of four (4) weeks from the date of receipt of a copy of this Order, so that respondent Nos.4 to 6 shall entertain the registration in respect of the subject land.
31. With the aforementioned observations, this Writ Petition is disposed of. As a sequel, miscellaneous petitions, if any, pending in this Writ Petition shall stand closed.
__________________ K. LAKSHMAN, J 05.06.2023 YNK HON'BLE SRI JUSTICE K. LAKSHMAN WRIT PETITION No.6844 OF 2022 Dated 05.06.2023 YNK
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