Respondents WITH CIVIL APPEAL NO.4836 OF 2023 [Arising out of Special Leave Petition (Civil) No.2060 of 2022] WITH CIVIL APPEAL NO.4837 OF 2023 [Arising out of Special Leave Petition (Civil) No.2350 of 2022] WITH CIVIL APPEAL NO.4838 OF 2023 [Arising out of Special Leave Petition (Civil) No.2110 of 2022] Leave granted.
It may also be mentioned before embarking into the factual matrix that this Court vide order dated 06.09.2022 had impleaded the Greyhounds Commando Force through the Additional Director General of Police as a Party- Respondent for effective adjudication since the land in dispute has been statedly allotted and is being used for training its forces. The Collector after this communication, vide letter dated 07.11.1959, finally submitted a report of eligible individuals and directed that ‘phodi’ or sub- division of the Subject Land be conducted before its assignment. The said order provided exhaustive guidelines for assignment and alienation of Government lands, the relevant part whereof as applicable to the Subject Land reads as follows:– “ 5. It would be appropriate for proper analysis of the controversy to reproduce the contents of one such Temporary Patta dated 21.10.1961 granted to an Assignee which is as follows:– “FORM-G (Under Rule 9 (g) Written permission to occupy land (to be given by the Tahsildar under Loani Rules) Temporary patta is granted to Shri Mylarapu Pedda Gandaiah S/o.
The Pattadar is bound to pay the assessment so fixed, but this change will take effect only form the year following in which such change has been made as a result of the compk1jon of phodi work by the Dept.
Baksh the following amongst other powers in respect of the Subject Land:– “5. To negotiate and agree to and/or to enter into agreement, to sell/develop/lease/ mortgage the said property or to sell, convey, lease, mortgage, assign or to otherwise transfer the said property or any portion thereof to such person(s) or body and for such consideration arid upon such terms and conditions and for such purpose(s) as the said attorney may in his absolute discretion deem fit and to collect and receive the considerations thereof and to give a valid receipts therefor. Baksh was carrying out the process of the sale of the Subject Land as a residential colony, he came across the provisions of Andhra Pradesh Assigned Lands (Prohibition of Transfers) Act of 1977 [ Hereinafter, ‘1977 Act’ ] which prohibited transfer of land assigned to landless poor by the Government.
As per rule 9(g) of the Laouni rules 1950 the written permission in form (G) is issued only after confirmation of sale; The sale of such lands is not hit by the provision of A.P. Baksh in October 1992, probably fearing that the state authorities would cancel the allotment of the Subject Land. The relevant extracts of the First SCN containing the grounds of cancellation are to the following effect:– “ The issue was examined in details with reference in rule position and other aspect and found that the alleged assignment is irregular, illegal and liable to be cancelled on the basis of following grounds: (i) The Form-G Certificate issued are for temporary occupation and thereby implementation in Falsalpatti 1961-62 is illegal.
(vi) The alleged assignees have not put the land for cultivation and kept in fallow and thereby they have violated the condition laid down in Rule 19 of Laoni Rules, 1950. On account of this development, the District Collector through an order dated 03.01.1995, exercised his suo motu revisionary powers under Section 166-B of the Telangana Land Revenue Act of 1317 Fasli [ Hereinafter, ‘1317 Fasli Act’ ] and suspended the order dated 15.09.1994 passed by the District Revenue Officer pending further examination/orders. It must be noted that the intra-court appeal against the order dated 01.09.1997 was also dismissed by a Division Bench of the High Court through its order dated 14.09.1998. Since a mandamus was issued to the Collector, Rangareddy District, to hear and dispose of the explanation, which was required to be submitted by the respondents in reply to the show cause notice issued to them, the District Revenue Officer had no jurisdiction to consider the matter in violation of the direction of the High Court.
We, therefore, dispose of this appeal finally with the direction to the Collector to complete the proceedings, initiated by him by his order dated 3rd of January, 1995 as ratified by the Government by its,order dated 24th of January, 1996, at an early date in accordance with law.” (Emphasis Applied) 18. The Appellants furnished fresh explanation(s) on 27.08.2001 and consequently the office of the Joint Collector passed a resumption order dated 22.12.2001 in favour of the State noticing that:– “In view of the circumstances explained above and since the assignment itself is irregular and the assignees sold the land in conttavention of the conditions of assignment and also the assigned land has become urbanized and no longer subserves the purpose of cultivation, I find no reason either to upheld the orders of the District Revenue Officer, Ranga Reddy passed in Procds. The Joint Collector’s order dated 22.12.2001 came to be challenged before the High Court, which vide its order dated 04.04.2002 opined that in view of this Court’s judgement in Gudepu Sailoo, the Joint Collector had no jurisdiction to adjudicate the First SCN and directed the District Collector to conduct the proceedings and pass appropriate orders after notice to all parties.
The principal ground on which the assignments soght to be cancelled by invoking the review powers under section 166-B of the Act is execution of GPA by the assignees in favour of the predecessor in interest. Taking note of the above-reproduced liberty granted by the High Court, the Deputy Collector- cum-Mandal Revenue Officer issued a fresh show cause notice dated 11.12.2006 [ Hereinafter, ‘Second SCN’ ] wherein the factum of the sale deeds entered by M.A. The relevant part of the Second SCN is as follows:– “The Sale transaction above shown are impermissible and void as same are in contravention of the provision of sub- section (2) of section-3 of the Andhra Pradesh assigned land (Prohibition of Transfer) Act, 1977. The Appellants assailed the resumption order dated 27.01.2007 before the High Court in a writ petition which came to be decided in their favour by a learned Single Judge vide judgment dated 05.02.2010 primarily on two grounds – firstly that the Second SCN and the resumption order dated 27.01.2007 raised the identical issues in respect of Subject Land which stood already decided by the High Court vide its order dated 21.04.2006.
It is also useful to mention that accordingly to the learned Single Judge, the liberty granted in the previous High Court order dated 21.04.2006 regarding cancellation of Subject Land was only concerned with future contravention’ of the assignment conditions. It was also held that this interpretation virtually amounted to re-writing the order dated 21.04.2006, especially in view of the fact that the review petition against the same, seeking to delete the relevant part granting liberty was specifically dismissed by the High Court. While under the Laoni Rules, 1950, the alienation or transfer without the previous sanction of the Collector was prohibited, under the Revised Policy, it was clearly provided that though the assigned lands would be heritable, they would not be transferred… Baksh executed the sale deeds in favour of subsequent purchasers for the small plots of land. Baksh by some of the Assignees was immaterial as the sale deeds executed by him by then already constituted violation of the assignment condition. Secondly, he argued that when unoccupied land is permanently granted or assigned under Section 54 of the 1317 Fasli Act as done in the present case, then Section 58 of the said Act expressly provided that the resultant occupancy right shall be ‘deemed to be heritable and transferable’. Sanction of Collector for transfer of occupied land compulsory in certain cases : (1) Notwithstanding anything contained in the preceding section the Government may by Official Gazette notify in 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 Collector.
(2) The Government may also at its discretion from time to time notify by Official Gazette, that any part or person or class of persons of such village or tract of the area to which this Act extends to which the provisions of sub-section (1) have been made applicable shall be exempt from the said provisions.” Similarly, we may also refer to the relevant rules regarding ‘Special Laoni’ as mentioned in the Laoni Rules of 1950 which are as follows:– “ Special Laoni 15. 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. Gupta, learned senior counsel drew our attention to this Court’s judgement in Gudepu Sailoo which we have already reproduced at Para 17 above, to contend that the impugned decision erroneously concuded that this Court had already decided the issue of alienability. Gupta submitted that the Subject Land has been in possession with the Assignees from 1953 as noted in the High Court’s order dated 21.04.2006 as well as the documents which have been brought on record and therefore even if the Temporary Pattas were given in 1961, the applicable law vis–vis the assignment should relate back to 1953 itself. With reference to the Circular dated 08.11.1954 [ Hereinafter 1954 Circular], it was submitted that the same was not retrospectively applicable and in any event, it referred to Section 58-A only in respect of lands which were granted for ‘Eksala’ ( one year ) cultivation or to lands which have been set apart as provided in Paragraph 8 of the 1954 Circular. In case of occupation by the Harijans, Scheduled Castes, Backward Classes, of poor landless persons, patta shall, subject to the provisions contained in Section 58- A of the A.P. As far as possible each family shall be entitled to patta shall primarily be assigned lands which were being cultivated by them…..” dated 25.07.1958 [ Hereinafter, ‘1958 Circular’] which was subsequently clarified by G.O. 25 July, 1958: Provided that the extent of land to be assigned in all such cases shall not exceed the limits of 6 acres of dry or 2- 1/2 acres of wet land inclusive of the land already passed (b) Cases in which the right of patta was given to the occupants according to Circular No 14, and other circulars issued in clarification of it and cases in respect to which there is evidence in Government Records either of application presented by the encroacher for grant of patta or of his possession of the lands should not be treated as pending cases but should be decided under Circular No 14 and other circulars issued in clarification of it.”
Fourthly, it was submitted that evocation of suo motu revisionary powers through the Second SCN was not permissible as the sale deeds were of 1992 while Second SCN was of 2006, which would violate the temporal aspects as argued by Mr. While lending his support to the abovementioned arguments, he made the following submissions – Firstly, that the issue of applicable law over the Subject Land can no longer be opened in light of the High Court’s order dated 21.04.2006 wherein it was categorically held that the State could not agitate over the applicability of correct regulatory regime after a gap of 30 years post assignment.
Baksh as a GPA holder, he is mentioned as the vendee which showcases that the Appellants were unaware or were not actively involved in carrying out sale of the Subject Land. Tripurari Ray learned counsel appearing on behalf of the Appellants raised a contention for the first time at this stage by relying on the decision of this Court in Yeshwant Deorao Deshmukh v Walchand Ramchand Kothari. Thirdly, he contended that under the regular assignment as per Laoni Rules of 1950, an auction mechanism was in place, and it was only through this process that an alienable right could be granted in respect of the assigned land. He also submitted that the Assignees were hand in glove with the land mafia as well as the corrupt revenue officers, who had set their sights on the Subject Land. To say it differently, it only bars the government from resuming the land after thirty years on the ground that the Subject Land was assigned under an incorrect law, but it nowhere resolves the legal regime under which the conditions applicable on the assignment are to be governed.
He submitted that even otherwise, the assignment was in the nature of Special Laoni and was governed by the condition of bar on sale without Collector’s permission as well as cultivation of the land. In other words, he argued that though the Temporary Pattas granted in the present case to the Assignees erroneously mentioned that the form was issued under Laoni Rules of 1950, the pattas were in fact, governed by the revised legal regime. He furthermore submitted that even if there is a restriction on the transfer of land independent of Section 58-A of the 1317 Fasli Act, as contained in the Temporary Pattas regarding need of permission of the Collector, then such restriction indicates a permissive regime instead of a prohibitory regime which is a necessary corollary for invoking the provisions of 1977 Act. d) Whether the assignment of Subject Land comes under the purview of 1977 Act? In W.P.Nos.13165 and L.3639 of 2003, the issues raised therein pertained to the legality of the assignment orders issued in favour of the respondents/assignees and the execution of the GPA in favour of one M.A.Baksh to transfer the lands and consequent violation of the assignment orders.
Meaning thereby in respect of assigned lands, sale deeds were executed which were impermissible in law. It was urged that since the First SCN was set aside by the High Court through its order dated 21.04.2006, the observations in the resumption order dated 10.05.2003 would effectively merge with the findings of the High Court order dated 21.04.2006 and therefore the Second SCN alleging identical violations should be held to be barred by the doctrine of res judicata. Baksh making the GPA redundant, it is may be noticed that the same is materially different from the violations as alleged in the Second SCN and held in the impugned order. Only those findings, without which the Court cannot adjudicate a dispute and also form the vital cog in the reasoning of a definite conclusion on an issue on merits, constitute res judicata between the same set of parties in subsequent proceedings.
553 to say: “The difficulty in the actual application of these conceptions is to distinguish the matters fundamental or cardinal to the prior decision on judgment, or necessarily involved in it as its legal justification or foundation, from matters which, even though actually raised and decided as being in the circumstances of the case the determining considerations, yet are not in point of law the essential foundation of a groundwork of the judgment.”
It is well settled, say the above authors, “that a mere step in reasoning is insufficient. What is required is no less than the determination of law, or fact or both, fundamental to the substantive decision”. On a plain reading of the High Court’s order dated 21.04.2006 in conjugation with the application of the test formulated above, we find that the observation in respect of GPA in the said order was indeed a mere collateral finding. The other aspect which needs our attention is whether the second SCN would be barred by the extended doctrine of constructive res judicata.
437], it may be said to be “the broader rule of evidence which prohibits the reassertion of a cause of action”. 257] : “I think that on the authorities to which I will refer it would be accurate to say that res judicata for this purpose is not confined to the issues which the court is actually asked to decide, but that it covers issues or facts which are so clearly part of the subject-matter of the litigation and so clearly could have been raised that it would be an abuse of the process of the court to allow a new proceeding to be started in respect of them.” That is why this other rule has some times been referred to as constructive res judicata which, in reality, is an aspect or amplification of the general principle.” (Emphasis Applied) 47. We thus hold that in light of the liberty granted by the High Court vide order dated 21.04.2006, the Second SCN would neither constitute an abuse of process of court nor will attract the doctrine of constructive res judicata. Hence, it appears that without stating from what date the period of limitation starts and within what period the suo motu power is to be exercised, in sub-section (4) of Section 50-B of the Act, the words “at any time” are used so that the suo motu power could be exercised within reasonable period from the date of discovery of fraud depending on facts and circumstances of each case in the context of the statute and nature of rights of the parties. If one has to simply proceed on the basis of the dictionary meaning of the words “at any time”, the suo motu power under sub-section (4) of Section 50-B of the Act could be exercised even after decades and then it would lead to anomalous position leading to uncertainty and complications seriously affecting the rights of the parties, that too, over immovable properties. However, the period till 2006, in our considered opinion, could not be counted because the parties were engaged in litigation pursuant to the First SCN and it was only after the liberty was accorded by the High Court in its order dated 21.04.2006 that the Second SCN could be issued. Once we have determined the validity of the Second SCN in affirmative, the next question that falls for our consideration is whether the subject land was assigned in the year 1953 as claimed by the Appellants or in 1961 when the Temporary Pattas were issued. It is well settled that inter- departmental communications are in the process of consideration for appropriate decision and cannot be relied upon as a basis to claim any right. Before something amounts to an order of the State Government, two things are necessary.
Until such an order is drawn up the State Government cannot, in our opinion, be regarded as bound by what was stated in the file. Once it is determined that the regulatory regime which was in vogue and held the field as on 21.10.1961 will govern the assignments, then it also stands crystalised that the 1958 Circular as well as GOM 1122 being in force at that time, are clearly applicable to the Subject Land. Section 58-A of the Telangana Area Land Revenue Act puts a restriction for transfer of occupied land notified in respect of any village or tract of the area to which Act extends that the right of occupation of any land under Sec.
58-A of the Telangana Area Land Revenue Act where State Government has to notify any village or tract of the area, to which this Act extends, for obtaining previous sanction of the Collector. 58-A notifying any village or tract of the area where sanction of the Collector for transfer of land is necessary, rules cannot be enforced. The former is the case of assignment under Section 54 of the 1317 Fasli Act and the latter is covered within the ambit of Section 58 of the 1317 Fasli Act. This is the precise reason because of which the decision in Letter sent from Plot No.338 concludes that 1977 Act was applicable in respect of the land assigned to landless individuals and the same was governed by the conditions of non- alienability as incorporated in the 1958 Circular. Ray regarding violation of Article 14 in respect of ‘regular assignment’ and ‘special laoni assignment’ becomes irrelevant and out of context and the same need not be gone into by us.
Definitions -In this Act, unless the context otherwise requires,- (1) “assigned lands” 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 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” (Emphasis Applied) We have already concluded that the Subject Land was governed by the law which existed on the date of issuance of Temporary Pattas, i.e. The other issue that comes up for determination is whether the contravention of Subject Land would fall within the entirety of Section 3 of the 1977 Act which, inter alia, provides that:- “Section 3 – Prohibition of transfer of assigned land – (1) Where, before or after the commencement of this Act any land has been assigned by the Government to a landless poor person for purposes of cultivation or as a house-site then, notwithstanding anything to the contrary in any other law for the time being in force or in the deed of transfer or other document relating to such land, it shall not be transferred and shall be deemed never to have been transferred; and accordingly no right or title in such assigned land shall vest in any person acquiring the land by such transfer. (2A)
No assignee shall transfer any assigned house site, and no person shall acquire any assigned house site, either by purchase, gift, Lease (except in the case of Lease to the Andhra Pradesh Green Energy Corporation Ltd., for use as deemed fit and including for usage of non- agriculture purpose), mortgage, exchange or otherwise, till completion of the period of 20 years from the date of assignment. In order to appreciate sub-Section (2) of Section 3 of the 1977 Act in its correct perspective, the expression ‘landless poor person’ and ‘transfer’ also become important, which are defined in the 1977 Act as follows:– “Section 2(3) – “landless poor person” means a person who owns an extent of land not more than 1.011715 hectares (two and half acres) of wet land or 2.023430 hectares (five acres) of dry land or such other extent of land as has been specified by the Government in this behalf from time to time and who has no other means of livelihood. Explanation: – For the purposes of computing the extent of land under this clause, 0.404686 hectares (one acre) of wet land shall be equal to 0.809372 hectares (two acres) of dry land; x-x-x Section 2(6) – “Transfer” means any sale, gift, exchange, mortgage with or without possession, lease (except in the case of Lease to the Andhra Pradesh Green Energy Corporation Ltd., for use as deemed fit and including for usage of non- agriculture purpose) or any other transaction with assigned lands, not being a testamentary disposition and includes a charge on such property or a contract relating to assigned lands in respect of such sale, gift, exchange, mortgage, Lease (except in the case of Lease to the Andhra Pradesh Green Energy Coproration Ltd., for use as deemed fit and including for usage of non-agriculture purpose) or other transaction.” (Emphasis Applied) 63. However, we must note that the term ‘transfer’ as defined under the 1977 Act is much more inclusive than the one employed in the Transfer of Property Act, 1882. Rama Naika wherein an ‘agreement to sale’ was held to be included within the definition of ‘transfer’ as provided under the Karnataka Scheduled Castes and Scheduled Tribes (Prohibition of Transfer of Certain Lands) Act, 1978.
A bare reading of the definition of “transfer” as defined in Section 3(1)(e) of the Act would show that an “agreement for sale” of any “granted land” is included within the meaning of “transfer”. Narayan Bapuji Dhotra [(2004) 8 SCC 614].) Therefore, it is clear that under the general law, that is, under the Transfer of Property Act, an “agreement for sale” is not the same as “sale” and in the case of an agreement for sale, the title of the property agreed to be sold still remains with the vendor but in the case of “sale”, title of the property is vested with the vendee. to protect the right and interest of the Scheduled Castes and Scheduled Tribes in respect of the granted lands and the relevant provisions of the Act, it is pellucid that the definition of “transfer” under Section 3(1) (e) of the Act includes an agreement for sale also and “transfer” has been so defined to protect the right, title and interest of the Scheduled Castes and Scheduled Tribes so that possession of the lands could be restored to them even if they had entered into an agreement for sale.” (Emphasis Applied)
The relevant part of the said provision, as amended from time to time, reads as follows:– “Section 4 – Consequence of breach of Section 3 – (1) If in any case, the District Collector or any other officer not below the rank of a Mandal Revenue Officer, authorised by him in this behalf; is satisfied that the provisions of sub-section (1) of section 3, have been contravened in respect of any assigned land, he may, by order- (a) take possession of the assigned land after evicting the person in possession after such written notice as the Collector or Mandal Revenue Officer may deem reasonable and any crop or other produce raised on such land shall be liable to forfeiture and any building or other construction erected or anything deposited, thereon shall also be forfeited, if not removed by him, after such notice, as the Collector or the Mandal Revenue Officer may direct Forfeitures under this section shall be adjudged by the Collector or Mandal Revenue Officer and any property forfeited shall be disposed of as the Collector or Mandal Revenue Officer may direct; and; (b)(i) reassign the said resumed land, other than those lands/areas as may be notified by the Government from time to time in public interest and for public x-x-x-x (5) For the purposes of this section, where any assigned land is in possession of a person, other than the original assignee or his legal heir, it shall be presumed, until the contrary is proved, that there is a contravention of the provisions of sub- section (1) of section 3.” (Emphasis Applied) 67. The 2007 Amendment Act in its Section 1(3) expressly states that:– “Section 1 – Short title, extent and commencement – x-x-x-x (3) Section 2 shall be deemed to have come into force with effect on and from 21st, January, 1977 and the remaining provisions shall come into force from the date as the Government may, by notification, appoint.” (Emphasis Applied) It is significant to note that Section 4(1)(c) was introduced through Section 2 of the 2007 Amendment Act.
The legislative intention can be further illuminated from the relevant part of the Statement of Object and Reasons in the Bill which introduced the 2007 Amendment and the same reads as follows:– “x-x-x-x On account of rapid urbanization in certain areas i.e., Hyderabad, Visakhapatnam, Ranga Reddy Districts etc., most of the assigned lands have been alienated by the original assignees and the lands were converted to non- agricultural use. It deserves to be mentioned
Case Title: YADAIAH Vs. THE STATE OF TELANGANA (2023 INSC 664)
Case Number: C.A. No.-004835-004835 / 2023
