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Judgment
Heard learned counsel for the petitioner and the learned Government Pleader for Stamps and Registration appearing for the respondents.
The present writ petition is filed interalia questioning the action of respondents in including the land admeasuring Ac.3.20 cents out of an extent of Ac.4.78 cents in R.S.No.780/1 of T.Narasapuram Village, West Godavari District in the prohibited property list under Section 22-A of the Registration Act as illegal, arbitrary, contrary to the well established legal principles laid down 2009(3) ALT 85, 2018(1) ALT 62 and 2018(5) ALT 676 apart from violative of petitioner's constitutional rights guaranteed under Articles 14, 19, 21 and 300-A of the Constitution of India and for other reliefs.
The petitioner states that he is the absolute owner and possessor of the above mentioned property. He purchased the said property in the auction held by the District Cooperative Central Bank, Eluru on 18.09.1992 and a Sale Certificate dated 10.02.1993 was issued to him. Pattadar pass book was issued to him and he has been paying land cist regularly in respect of the said property.
The petitioner states that he intended to gift the said land to his daughter as 'pasupu kumkuma' and requested the 4th respondent to furnish the details of Stamp Duty & Registration Charges. However, it was informed that the land is in the Prohibited Property list prepared under Section 22-A of the Registration Act as "assigned land" and registration cannot be done. As the petitioner's representations to delete the said land from the list of prohibited properties did not yield any positive response and as attempts are being made to allot the same for house site pattas, the present writ petition is filed.
The learned counsel for the petitioner contends that the original assignee appears to have mortgaged the assigned land in favour of the Bank and when the property is mortgaged, interest in the property is transferred by the Mortgager to the Mortgagee and if the mortgage money is not repaid, the consequences provided under the Transfer of Property Act would follow. He further submits that in the present case, the petitioner purchased the subject land in the auction conducted by the Bank and the Bank has also given the sale certificate. Accordingly, the 4th respondent cannot refuse to register the transactions in respect of the said property basing on the prohibited list furnished by the revenue authorities.
Learned counsel for the petitioner placed reliance on the judgement of the Division Bench of this Court in Sub-Registrar, Srikalahasthi, Chittoor District v. K.Guruvaiah 2009(2) ALD 250 = 2009(3) ALT 85 and contends that as per the said judgment, the lands which were assigned by the State can be mortgaged in favour of Primary Agriculture Cooperative Society and if the mortgager commits default in payment of the loan amount, the said lands can be sold for recovery of the same and that such a sale is valid in Law. He contends that once there is a sale of the land by way of an auction conducted by a Cooperative Bank, the property ceased to be the property of the State, loses its character as assigned land and the auction purchaser gets valid title over the property. He submits that in view of the legal position, the action of the respondents is contrary to law, unjust, untenable and that the petitioner is entitled to the reliefs sought for.
As seen from the said judgment, the Hon'ble Division Bench opined that when the original assignee mortgaged the land assigned to him in favour of a bank or a financial institution or cooperative society under A.P.Cooperative Societies Act, 1964 and if the money is not paid, the consequences provided in the Transfer of Property Act, 1982 would naturally follow; that it is permissible to put the said land to public auction under the said Act and recover the dues to the financial institution by way of sale and such a sale is valid in law. It is also held that as per Section 2(1) of the A.P.Assigned Lands (Prohibition of Transfers) Act, 1977, mortgage in favour of a bank or a cooperative Society would not amount to alienation.
The learned counsel for petitioner further relied on judgments of two other Division Benches reported in 2018(2)ALT 62 and 2018(5) ALT 676 wherein identical issues were dealt with. It may be pertinent to mention here that the Hon'ble Division Bench in State of A.P., v. P.Usha Rani 2018(2) ALT 62 was not inclined to accept the submission of the appellants/State to refer the issues to a Full Bench on the premise that the law laid in K.Guruvaiah's case referred to supra needs reconsideration. The Hon'ble Division Bench in Government of A.P. vs. T.Krishna Murthy 2018(3) ALT 676 while concurring with the Law laid down in K.Guravaiah's case held as follows:
"6. The Act, 1977, creates an embargo against alienation of the assigned lands. However, the assigned land will be heritable, once it is in the hands of the assignee. The prohibition against alienation imposed on the assignee is built with the exclusion that such restriction as to alienation would not apply to creation of mortgages in Act, 1977. The purpose of such exclusion and the legislative wisdom in making such exclusion are explicit on a reading of the provisions of Act, 1977, the assigned lands to which those rules apply are those lands which are assigned to landless poor persons under the rules for the time being in force. The condition of non- alienation and other matters are brought into the basket of the description of the term assigned land with the explanation that mortgages in favour of the different institutions enumerated in that sub-section shall not be regarded as alienation. The purpose is to enable the landless poor persons who have assigned lands to generate funds, fundamentally for their agricultural operations and also for other purposes, by putting that lands to mortgages with institutions which are enumerated under Section 2(1) of Act, 1977.
Once mortgages are created by the assignees of Government lands and when those mortgages stand with the support of the exclusionary provision in the definition of assigned land in Act, 1977, it cannot be contended that the mortgagees are not eligible to bring the mortgaged property to sale for the purpose of recovering the amounts paid under the mortgage. There is no inhibition in Act, 1977, or is there any principle referable to the provisions of the T.P.Act, which results in any such embargo. That being the position, the eligibility of the mortgagee to bring the property to sale leads to the resultant issuance of the sale certificate in terms of Sub-Rule 14(v) of Rule 52 of the A.P.Co-operative Societies Act, which enjoins, among others, that such certificate of sale shall be conclusive evidence of the fact of purchase, in all courts and tribunals where it may be necessary to prove it and no proof of the seal or signature of the Registrar of the district shall be necessary unless the authority before whom it is produced shall have reason to doubt its genuineness. The said statutory provision making the sale certificate as conclusive proof necessarily obliges the statutory authorities under the different provisions of law to act upon such sale certificates."
Having perused the judgments referred to supra, this Court is of the considered opinion that the same squarely applies to the facts of the present case. Therefore, the contentions raised by the learned counsel for the petitioner are upheld. In view of the above legal position and authoritative pronouncements of the Hon'ble Division Benches referred to above, the inclusion of the land in question purchased in an auction conducted by a Bank in the list of prohibited properties is unsustainable and the petitioner is therefore entitled for a Writ of Mandamus.
Accordingly, the writ petition is allowed as prayed for. The respondents are directed to delete the land of the petitioner from the prohibited properties list issued under Section 22-A of the Registration Act, 1908 forthwith. As and when the petitioner presents document in respect of the land in question for registration, the 4th respondent shall receive and process the same for the purpose of registration without reference to the prohibited property list under Section 22-A of the Registration Act, 1908 and proceed in accordance with law. The said exercise shall be completed within three weeks from the date of submission of the document by the petitioner. There shall be no order as to costs.
As a sequel, all the pending miscellaneous applications, if any, shall stand closed.