APHC010186882024 IN THE HIGH COURT OF ANDHRA PRADESH

AT AMARAVATI

[3488]

(Special Original Jurisdiction)

THURSDAY, THE THIRD DAY OF OCTOBER

TWO THOUSAND AND TWENTY FOUR

PRESENT

THE HONOURABLE SRI JUSTICE R. RAGHUNANDAN RAO THE HONOURABLE SRI JUSTICE HARINATH. N WRIT APPEAL NO: 424/2024

Between:

Acharya N G Ranga Agricultural University ...APPELLANT

AND

Ch V V Satyanarayana and Others ...RESPONDENT(S)

Counsel for the Appellant:

1.YELLA REDDY RAJANALA (SC FOR ANGRAU)

Counsel for the Respondent(S):

• 1.S PARINEETA
• 2.C SUDESH ANAND
• 3.Y V ANIL KUMAR
• 4.GP FOR SERVICES III
• 5.GP FOR SERVICES I
• 6.GP FOR SERVICES II
• 7.T S RAYALU

The Court made the following Judgment:

(Per Hon"ble Sri Justice R. Raghunandan Rao)

Heard Sri B. Abhay Siddanth Mootha, learned counsel appearing

for the appellant and Smt. P. Priyanvita, representing Sri Vedula Srinivas,

learned counsel appearing for respondents 1 to 5.

2. The brief facts in the case are –

a) About Ac.0.78 cents of land in Sy.No.920/1, of Kallur Village, was assigned, in favour of late Sri Ganganna, Jammanna, Marenna and Naganna, in the year 1922, by the then Tahsildar, Kurnool. These assignees had mortgaged this land at various points of time in 1942, 1944 and 1950. The last mortgage resulted in sale of the land, as the loan was not repaid. The land was sold, by way of a deed of sale dated 22.11.1953, registered as document No.2190/1953. Thereafter, the land changed hands at various points of time and subsequently, a layout of the land was made and the plots therein were sold to the respondents 1 to 5 herein (hereinafter referred to as the private respondents).

b) At that stage, the appellant herein, claiming to be the legal heir of late Sri Ganganna, approached the Joint Collector, Kurnool for recovery of possession of the land on the ground that alienation of land by the original assignee violates the provisions of the A.P. Assigned Lands (Prohibition of Transfer) Act, 1977 (for short "the Act") and the descendants of the assignees would be entitled to possession after the alienations have been set aside. The appellant had also produced an affidavit from all the legal heirs of the original assignees stating that they had no objection of assignment of pattadar passbooks and title deeds in favour of the appellant herein.

c) The Joint Collector, after receiving this application, treated the same as a revision and issued notices to the private respondents herein, as they were the ultimate purchasers who were in possession of the land. After hearing both sides, the Joint Collector by an order dated 22.11.2014 in Rc.E2/2830/2014 had held that the original alienation of the land was in 1953 and all subsequent alienations fall foul of the provisions of the Act, and consequently, the land should be restored in favour of the appellant after cancellation of the pattadar passbooks and title deeds given to the vendor of the private respondents.

3. Aggrieved by the said order, respondents 1 to 5 approached this Court by way of W.P.No.37062 of 2014. A learned Single Judge of this Court, after hearing both sides, allowed the writ petition by way of an order dated 02.02.2023. The learned Single Judge took the view that, in the absence of the assignment patta, it would have to be treated that the necessary condition of non-alienation would not be available, to attract the provisions of the Act. He took this view on the ground that the change in condition of non-alienation was introduced only by virtue of G.O.Ms.No.1142, dated 18.06.1954 and all assignments of land prior to this date did not have any such condition of non-alienation which would attract the provisions of the Act. He also took the view that BSO 15(37)(4)(i) would not be attracted on the ground that the land was shown to have been assigned to the depressed classes of people. On this basis,

and following the judgment, of a learned Single Judge of erstwhile High Court of Andhra Pradesh, in Shaik Abdul Kalam Azad and Ors., vs. A. Babu and Ors., 1 had held that the order of the Joint Collector was incorrect and set aside the same. The learned Judge also took the view that the Joint Collector had no power to cancel the pattadar passbooks and title deeds issued to the vendor of private respondents, under the provisions of the Act.

4. Aggrieved by the said order, the appellant moved the present writ appeal.

5. Sri B. Abhay Siddanth Mootha, learned counsel for the appellant assails the order of the learned Single Judge on the following grounds.

a) The assignment, in the year 1922, was given in favour of persons belonging to depressed classes, wherein there was a condition of non-alienation. This aspect was not taken into account by the learned Single Judge who held that all assignment pattas granted before 1954 did not have a condition of non-alienation.

b) The learned Single Judge did not notice the effect of BSO 15 (37)(4)(i), which states that assignments made to persons belonging to the depressed classes is subject to the condition of non-alienation to any

¹ Manu/0575/2017

person other than those belonging to depressed classes and that this condition was incorporated much prior to the year 1954.

c) The learned Single Judge had also not noticed the difference between the pattas issued under BSO 15(9) for persons belonging to landless poor and pattas issued in BSO 15(37) and for lands reserved for depressed classes, wherein there was a clear condition of non-alienation.

6. Smt. P. Priyanvitha, representing Sri Vedula Srinivas, learned counsel appearing for the private respondents contends that the provisions of BSO 15 do not have the force of law, and are only executive instructions given to the officers of the revenue department, and as such any condition of non-alienation set out in this Board Standing Order would have no legal effect. She further contends that even if the said condition is to be applied, the said condition is not an absolute bar on alienation and consequently, the provisions of the Act will not apply.

7. In the present case, then provisions of the Act are sought to be invoked, to restore possession of the land to the appellant. The provisions of the Act are available in relation to land which falls within the definition of "assigned land".

8. The term "assigned land" is defined under Section 2(1) of the Act in the following manner.

2(1) - "assigned land" means [lands or house sites assigned] [Substituted 'lands assigned' by Act No. 11 of 2019.] by the Government to the [landless or homeless poor persons] [Substituted 'landless poor persons' by Act No. 11 of 2019.] 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] [Substituted 'landless poor persons' by Act No. 11 of 2019.] under the relevant law for the time being in force relating 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 State Government or any local authority;

(ii) any co-operative society registered or deemed to be registered under the Andhra Pradesh Co-operative Societies Act, 1964; and

(iii) any bank which includes,-

(a) the Agricultural Development Bank;

(b) the Reserve Bank of India constituted under the Reserve Bank of India Act, 1934;

(c) the State Bank of India constituted under the State Bank of India Act, 1955;

(d) a subsidiary bank as defined in the State Bank of India (Subsidiary Banks) Act, 1959; and

(e) a corresponding new bank constituted under Section 3 of the Banking Companies (Acquisition and Transfer of Undertakings) Act, 1970 ;

9. This provision brings into its fold all such land which had been assigned by the Government with a condition of absolute nonalienation. The language of the definition, set out above, is not qualified by any condition nor is any relaxation given in the definition. However, the explanation states that mortgage of the land to the Land Development Banks or other institutions shall not be treated as alienation. Subject to this exception, there is no other qualifying term. Only such land which cannot be alienated in any manner can be treated as "assigned land" under the Act.

10. The contention of the learned counsel for the appellant is that the non-alienation clause can be available either in the patta or can be imposed by virtue of the provisions of Board Standing Order, under which the assignment of land is done.

11. It is the admitted case on all sides that, the land was assigned in the year 1922, and that the original patta or even a copy of the said patta, assigning the land, is not available with anybody. The revenue department has stated that all these records were destroyed or lost in the floods which occurred in 1977. In the absence of the patta, no inference can be drawn that there is a condition of absolute nonalienation in the patta.

12. The absence of condition in the patta, relegates us to the question of whether there is such a clause of non-alienation available in BSO 15 and whether such conditions set out in BSO 15 would be binding on the assignees or subsequent alienees.

13. BSO 15 provides for two kinds of assignees. Under BSO 15(9) an assignment of land could be done under Darkast patta for the persons belonging to landless poor, political sufferers, ex-servicemen, exaudit, depressed and institutions.

14. Under BSO 15 (37) land could be assigned to the depressed classes. It is contended that while BSO 15(9) did not contain clause of non-alienation, until the same was incorporated by way of G.O.Ms.No.1142 dated 18.06.1954. Secondly, any land assigned under BSO 15(9) prior to 18.06.1954 would fall outside the stipulation in BSO 15(9). When such land had been alienated, even prior to 1954, it would definitely not fall within the meaning of "assigned land" under the Act.

15. The contention of the appellant is that BSO 15(37) provided for non-alienation and as such the land assigned under BSO 15(37) would attract the provisions of the Act.

16. BSO 15 (37) (4)(i) reads as follows:

(4) (i) Conditions of Alienation:- Assignments whether of ordinary land or of valuable land in these areas, will be subject to the condition that the lands shall not be alienated to any person ( whether a member of the depressed classes or not) in any manner.

17. Apart from this, the learned counsel for the appellant also produced certain G.Os issued by the revenue department to the

Government of Madras from 1891 onwards. The learned counsel for the appellant also relied upon the judgment of a learned Single Judge of the Hon"ble High Court at Madras dated 07.11.2008 in W.P.No.17476 of 1976 and batch and the order of the Division Bench dated 05.04.2010 in W.A.Nos.1446 to 1448 of 2008 are arose out of the orders of the learned Single Judge.

18. The learned Single Judge, on the basis of the documents produced by the learned counsel for the appellant, had held that the lands assigned to the depressed classes of society are called "panchami land" with a condition of restricted alienation, which, if violated, can empower the Government to resume those lands. This judgment of the learned Single Judge was taken up in appeal in W.A.Nos.1446 to 1448 of 2008 wherein the Division Bench affirmed the findings of the learned Single Judge and dismissed the writ appeals.

19. With due respect to the said judgments, it must be held that they are only of persuasive value and are not binding on this Court. The State of Tamil Nadu does not appear to have an enactment, in the nature of the Act, which is available in the State of Andhra Pradesh. In view of the provisions of the Act, the right of resumption has been regulated and this Court would have to consider the question of whether the provisions of the said Act would apply or not. BSO 15 (37) originally stipulated that any land assigned to depressed classes can be alienated to other

persons who also belong to depressed classes. The bar for alienation was only restricted to persons who do not belong to depressed classes. The said provision was amended subsequently to extend the bar of alienation to even the members of depressed classes. This amendment was after the issue of the patta in 1922. The clause of non alienation contained, in the special form D patta extracted by the learned single judge, of the Hon"ble High Court at Madras, in the above judgement is a conditional prohibition, as the clause prohibits sale of the land for the first ten years, from the date of the grant and to any person who is not a member of the depressed classes. This qualified bar of alienation does not meet the requirements of the definition under Section 2(1) of the Act, which stipulates absolute non-alienation as the requirement to attract the definition of "assigned land".

20. Apart from this, a learned single judge of the erstwhile High Court of Andhra Pradesh, in C. Rajamma v. District Collector² , following a judgment of a division bench of the erstwhile high Court had held that BSO 15 does not have the force of law and it is, at best, a set of executive instructions, to the officers of the revenue department, in the following manner:

12. According to all the learned counsel appearing for the private parties as well as the learned Government

² 1995 SCC OnLine AP 117 : (1995) 1 AP LJ 334 : 1995 AIHC 4159 : (1995) 1 ALD 768 : (1995) 1 ALT 681 at page 341

Pleader for Revenue, the Andhra Pradesh Board of Revenue Standing Orders are only administrative instructions, issued by the Board of Revenue from time to time to regulate internal administration and they do not have any statutory force. In other words, the Standing Orders are not statutory instruments and they do not have force of law. It was submitted by the learned High Court Government Pleader for Revenue that Standing Orders are nothing but resolutions passed by the Board of Revenue from time to time for the purpose of guiding and regulating the internal administration of the Department.

13. In fact a Division Bench of this Court also in the case of Kanumuri Anji Raju v. State of Andhra Pradesh (1) 1960 (2) An. W.R. 272 held that the Standing Orders are merely executive instructions issued for the guidance of officers who are to carry out the policy of the Government. Further, a learned single Judge of this Court in the case of Katta Rattamma v. Gannamaneni Kotaiah (2) 1975 (2) An. W.R. 122 held that the Standing Orders are only administrative instructions and they do not have any statutory force, or force of law. At this stage itself it may also be noted that the Division Bench in Kanumuri Anji Raju's case (1 supra) also held that there is no provision at all for making a temporary assignment either in the Standing Orders issued by the Board of Revenue or in any instructions issued by the Government from time to time. In other words, the Division Bench held S.O. No. 15 provides only for a permanent assignment of the lands. Therefore, it should be held that the assignments made by the Tahsildar in favour of the original assignees were on permanent basis or in other words they were permanent assignments.

21. In that view of the matter, even if the provisions of Board standing order 15 contain a prohibition of transfer, the same does not have the force of law.

22. Accordingly, the writ appeal is dismissed. Before parting with the appeal, this Court would also like to place on record its appreciation of the efforts made by Sri B. Abhay Siddanth Mootha, the learned counsel for the appellant to place the law before this Court. There shall be no order as to costs.

As a sequel, pending miscellaneous applications, if any, shall stand closed.

R. RAGHUNANDAN RAO,J

HARINATH.N,J

Js.

HONOURABLE SRI JUSTICE R. RAGHUNANDAN RAO And HONOURABLE SRI JUSTICE HARINATH.N

W.A.No.424 of 2023

3 rd October, 2024

Js.