Jeevan Reddy, J.
1. Over the fast few decades, the Government has been assigning Government lands to landless poor persons, with the object of improving their economic lot. Certain Rules have been framed by the Government from time to time, governing such assignment. It is unnecessary for the present purposes to refer to them in any detail, except to mention that most often these Rules and the pattas granted thereunder contained a condition of non-alienability. While the assigned land was heritable, it was made non-transferable. The idea was to ensure that the assignees continue to derive benefits from the lands assigned to them. If the money lenders or other ryots in the village were allowed to take advantage of the helplessness and misery of these landless poor persons, it was assumed, they would take away the land, thus reducing the assignees to their original status of landless poor. But, the Government appears to have found in practice that the said condition of non-alienability has been honoured more in breach.
A large extent of land assigned to the landless poor found its way into possession of better placed ryots and money-lenders, thus defeating the very object behind the assignment which was almost universaly free. When action was taken for resuming or restoring the land to the original assignees the transferees raised several legal objection, delaying and defeating those efforts. Accordingly, it appears, the Legislature of Andhra Pradesh found it advisable to make a law, prohibiting transfer of such assigned lands. In the first instance, an Ordinance called the 'Andhra Pradesh Assigned Lands (Prohibition of Transfers) Ordinance' was issued in 1977, which was later replaced by an Act, called 'Andhra Pradesh Assigned Lands (Prohibition of Transfers) Act' being Act, No. 9 of 1977. The statement of objects and reasons appended to the Bill discloses the reasons behind, and the objects sought to be achieved by, the enactment. It reads:
'The Government have launched, with effect from the 1st Nov., 1969, a special crash programme for assignment of Government waste lands to the landless poor persons. The rules regarding assignment of land and the conditions incorporated in 'D' Form pattas prohibit alienation of such lands and provide for its resumption as well as re-grant to eligible persons. However, past experience has shown that substantial extents of lands assigned to landless poor persons have been actually alienated and are in possession of well-to-do persons. As the existing rules do not have any provisions for punishment of persons who have purchased such lands, efforts made for assigning large extents of lands to landless poor persons are going waste. With a view to enforce the objective more effectively, it is considered that a protective legislation is necessary so as to prescribe a punishment to persons who have purchased such lands. Further, there have been requests, from time to time, for enacting a protective legislation against transfers and alienations of assigned land on the model of legislation existing in regard to the Scheduled Tribes in the scheduled areas of Andhra Pradesh, which prohibits alienation of lands and provides for restoration of such land to the assignees. It has therefore been decided to undertake legislation immediately to prohibit alienation of lands assigned to landless poor persons and to provide for punishment of purchasers of such lands.
As the State Legislature was not then in session as it was decided to give effect to the above decision immediately, the Andhra Pradesh Assigned Lands (Prohibition of Transfers) Ordinance 1977 was promulgated by the Governor on 21st Jan., 1977.
This Bill seeks to replace the said Ordinance ...... ...... ...... ......'
2. A brief reference to the provisions of the enactment would be appropriate at this stage. The expression 'assigned lands' is defined by Clause (1) in Section 2 of the Act It means 'lands assigned by the Government to the landless poor persons wider the rules for the time being in force, subject to the condition of non-alienation and includes lands allotted or transferred to landless poor persons under the relevant law for the time being in force relating to land ceiling; and the word 'assigned' shall be construed accordingly'. However, mortgages ia favour of certain institutions are exempted.
3. The expression 'landless poor person' is defined by Clause (3). It 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 or may be specified by the Government in this behalf from time to time and who has no other means of livelihood'. The Explanation to this clause says that one acre of wet land shall be treated as equivalent to 2 acres of dry land. The expression 'transfer' has been defined by Clause (6), to mean 'any sale, gift, exchange, mortgage with or without possession, lease 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 or other transaction'.
4. Sections 3 and 4 constitute the essence of the enactment and may, therefore, be set out:--
'3. Prohibition of transfer of assigned lands:
(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.
(2) No landless poor person shall transfer any assigned land, and no person shall acquire any assigned land, either by purchase, gift, lease, mortgage, exchange, or otherwise.
(3) Any transfer or acquisition made in contravention of the provisions of Sub-section (1) or Sub-section (2) shall be deemed to be null and void.
(4) The provisions of this section shall apply to any transaction of the nature referred to in Sub-section (2) in execution of a decree or order of a Civil Court or of any award or order of any other authority.
(5) Nothing in this section shall apply to an assigned land which was purchased by a landless poor person in good faith and for valuable consideration from the original assignee or his transferee prior to the commencement of this Act and which is in the possession of such person for purposes of cultivation or as a house-site on the date of such commencement.
4. Consequences of breach of Provisions of Section 3 :
(1) If, in any case, the District Collector or any other officer not below the rank of a Tahsildar, authorised by him in this behalf, is satisfied that the provisions of Sub-section (1) of Section 3 have been contravened in repect of any assigned land, he may, by order:
(a) take possession of the assigned land, after evicting the person in possession in such manner as may be prescribed, and
(b) restore the assigned land to the original assignee or his legal heirs, or where it is not reasonably practicable to restore the land to such assignee or legal heir, resume the assigned land to Government for assignment to landless poor persons in accordance with the rules for the time being in force:
Provided that the assigned land shall not be so restored to the original assignee or his legal heir more than once, and in case the original assignee or his legal heir transfers the assigned land again after such restoration, it shall be resumed to the Government for assignment to any other landless poor person. (2) Any order passed under Sub-section (1) shall be final and shall not be questioned in any court of law and no injunction shall be granted by any court in respect of any proceeding taken or about to be taken by any officer or authority or Government in pursuance of any power conferred by or under this Act.
(3) For the purposes of this section, where any assigned land is in possession of 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-sec. (1) of Section 3 .. ..'.
5. A reading of Section 3 shows that transfer of an assigned land is prohibited, and any transfer so made is declared to be null and void. Section 3 clearly governs not only the transfers to be made after the commencement of the Act, but also those made earlier thereto. The language of Sub-sections (1) and (5) of Section 3 leaves no doubt that the Act is clearly intended to be retrospective. It applies to all transfers of assigned lands, whether made before or after the commencement of the Act. Section 4 prescribes the machinery and the mode of redressing the violation and for restoring the land to the original assignee. Section 7 provides for penalties for violation of Section 3. It says that whoever acquires any assigned land in contravention of Section 3 (2) shall be punished with imprisonment which may extend to six months or with fine which may extend to Rs. 2,000/-, or with both. Similarly, whoever opposes or impedes the District Collector or any other authorised person in taking possession of an assigned land, is liable to be punished with imprisonment which may extend to six months, or with fine which may extend to Rs. 5,000/- or with both. Section 9 provides for making rules to carry out the purpose of the enactment, while Section 10 gives the Act an overriding effect over other laws. (The Act was reserved by the Governor for consideration and assent of the President, and the President's assent was received on 29th Apr., 1977).
6. Sarvasri G.R. Subbarayan, Y.B. Tata Rao, P. Rajagopala Rao and K.N. Jwala, the learned counsel for the petitioners, addressed arguments to us on various questions which we shall deal with hereinafter.
7. The first question raised before us, is whether the Act is retrospective, or only prospective. Kondaiah, J., (as he then was) sitting singly held in Writ Petn. No. 4044 of 1977, disposed of on 9-11-1978, that the Act is only prospective. The learned Judge held :--
'.. .. ... The main intendment of the Act, as pointed out earlier, is to prohibit the transfer or alienation of the assigned land from the date of the commencement of the Act as a protective measure and it did not contemplate the application of the provisions of this Act to cases of transfer made even before the commencement of the Act. Section 3 (1) is retrospective only to take in cases of assignment before the commencement of the Act, but not transfers made prior to the coming into force of the Act ... ..'.
With respect, we are unable to agree with the learned Judge. If the Act did not apply to transfers made earlier to the commencement of the Act, Sub-section (5) has no meaning. It would be whofly otiose. Similarly, there would have been no purpose in Sub-section (1) saying, inter alia, that the land 'shall be deemed never to have been transferred'. The objects and reasons accompanying the Bill, clearly go to show that the Act waa intended to apply to alienations made prior to the commencement of the Act as well. Be that as it may, the language of Section 3 is clear and, in our opinion, does not admit of any doubt. The learned Judge was, therefore not right in holding that the Act has no application to the alienation made prior to the commencement of the Act. We find that our brother, P.A. Chowdary, J., in T. Oniiurartia v. Tahsildar Kadiri, : AIR1980AP267 , sitting singly, has also come to the conclusion that the Act is retrospective and applies to transfers made before the commencement of the Act, as well.
8. The second question canvassed by the learned counsel pertains to Sub-section (5) of Section 3, Sub-section (5) is in the nature of an exception to the several provisions contained in Section 3. While Sub-sections (1) to (4) declare that transfer of assigned land, in whatever manner, is void, Sub-section (5) declares that nothing in Section 3 shall apply to an assigned land which was purchased by landless poor person in good faith and for valuable consideration from the original assignee or his transferee prior to the commencement of the Act and which is in the possession of such person for purposes of cultivation or as a house-site, on the date of commencement of the Act. Now, the question is: what is the point of time with reference to which the Tribunal has to see whether the purchaser is a landless poor person, and whether he acted in good faith in purchasing the land? On a careful reading of Sub-section (5), we are of the opinion that the point of time with reference to which the above facts must be determined, is the date of purchase by the person proceeded against. It must have to be seen whether, on the date of purchase, he was a 'landless poor person' as defined by the Act; and whether he acted in good faith, and whether he purchased for valuable consideration. He must satisfy the above three conditions, and must also show that he was in possession of the said land for the purpose of cultivation, or as a house-site, as the case may be on the date of commencement of the Act. In such a case, he will be protected by Sub-section (5), and the transfer in his favour will not be hit by the other provisions in Section 3. We are clarifying this aspect because cases may arise where a purchaser, who is being proceeded against under the Act, may have been a landless poor person on the date of his purchase, but may not be a landless poor person on the date of commencement of the Act, or on the date on which proceedings are taken against him under Section 4. For purposes of Section 3 (5) what has to be seen is whether, on the date he purchased the land, he was a landless poor person, and whether he purchased it in good faith, and whether it was for valuable consideration.
9. It is suggested that according to Section 3 (5), the purchaser must also be a landless poor on the date of commencement of the Act. This argument is based upon the words 'such person' occurring in the subsection. After giving our due consideration, we are of the opinion that this contention cannot be accepted. An illustration would suffice A, landless poor, is assigned 5 acres of dry land in 1960. He sells it to B, a landless poor person, for valuable consideration, in 1961. B let us say, purchases it in good faith and is personally cultivating it Now, if it is insisted that the purchaser should be a landless poor even on the date of commencement of the Act, then B cannot have the benefit of Section 3 (5), since he cannot be called a landless poor on that date, inasmuch as he is holding 5 acres of dry land. If so, be would lose all the 5 acres. Now take a .slightly different case. Suppose, B purchases 41/2 acres of land from A, and then purchases half an acre of land with the aid of 41/2 acres purchased from A, and thus he is holding 5 acres on the date of commencement of the Act. Now, according to the interpretation suggested, he will lose 41/2 acres. He would, however, have not lost it, had he not purchased the half acre later. It would, in effect, amount to penalizing thrift and efficiency.
10. The next question is, what is the meaning of 'person' occurring in Section 3 (5)? The expression has not been denned in the Act. The General Clauses Act defines 'person' merely as including any Company of association of individuals whether incorporated or not, and thus is of no help herein. A look at the several meanings assigned to this expression (see Stroud's Judicial Dictionary, Vol IV, at 1997 to 2003, and Venkataramaiya's Law Lexicon, Vol. II, at 1148 to 1153) would show that this expression has been understood and interpreted having regard to the context to which it occurs. Now, the context in the present case is not only the Act, but also the Rules relating to assignment. These rules generally speak of and refer to 'a single individual' as the unit for assignment. For example, the statutory lutes in G.O.Ms. No. 1406 of 1958 and G.O.Ms. 1724 of 1959 (application in the Telangana area) speak of the 'Maximum extent of land which may be assigned to a single individual' in paras. 5 and 3 respectively. Same is the case with the rules in vogue in Andhra Area. It would, therefore, be consistent and reasonable to construe the word 'person' occurring in the Act as a 'single individual' referred to in the assignment rules and as carrying the same meaning.
11. The fourth question urged before us pertains to the meaning of the expression 'in good faith', occurring in Sub-section (5) of Section 3. The expression 'good faith' is defined in Clause (ii) of Section 3 of the Andhra Pradesh General Clauses Act, 1891. It says, 'nothing is said to be done or believed in good faith which is done or believed without due care and attention'. To the same effect is the definition in the Central enactment contained in Sub-section (22) of Section 3. Whether a purchaser was acting in good faith while purchasing the property is really a question of fact to be decided on the facts and circumstances of a given case. It is not possible to lay down any hard and fast rules on the question. The learned Government Pleader argued that since the definition requires 'due care and attention', a purchaser who says that he did not know that the land was an assigned land at the time of his purchase, cannot be said to be acting in good faith. We do not wish to express any opinion on this submission. We can only reiterate that, it being a question of fact, it has to be decided in each case, having regard to the facts and circumstances of that particular case. Suffice it to add that like every other expression, this expression too is bound to be coloured by the context in which it occurs.
12. Bearing the above aspects in mind, we shall now take up each case for consideration.
13. W.P. No. 3972 of 1977: In this case, Ac. 5-00 concerned herein, was granted on patta on 29-7-1952 to one Paidayya. The petitioner obtained an agreement of lease for 99 years in 1972 in respect of the said land, and also instituted a suit, O. S. 182/75, for specific performance of the agreement. The suit was decreed. On 24-5-1975, the petitioner obtained a sale deed also from the assignee. The impugned order was passed on 15-9-1977.
14. We have perused the record, from which we find that the show cause notice issued to the petitioner was not served upon him. The endorsement of the Village Karnam on the notice says that the addressee is not in the Village. Of course, during the enquiry, the statement of the petitioner was recorded, wherein he stated that he is in possession of this land for about 10 years, personally cultivating the same.
15. We are of the opinion that the petitioner cannot be said to have been afforded a reasonable and adequate opportunity of putting forward his case, in this case. When the notice sent to the petitioner was returned with the aforesaid endorsement, the Tahsildar should have made another effort to serve the petitioner, but he did no such thing. The petitioner is a villager who may not have been aware of the precise aspects of taw. He was also not represented by a counsel. The mere recording of his statement by the authority cannot cure the above defects. If the show cause notice had been served upon him, it is quite likely that he would have consulted a lawyer and could have raised the defences open to him in law. Also because we have clarified the relevant legal aspects in this judgment, it is but appropriate that the case should be disposed of in the light of the same.
16. W.P. No. 3972/77: is, accordingly, allowed, the impugned order is set aside, and the matter is remitted back to the Tahsildar for disposal afresh according to law, and in the light of the observations contained in this judgment. A copy of the show cause notice shall be served upon the petitioner and he shall be given an opportunity of putting forward his explanation.
17. W.P. No. 5649/1977: In this case, proceedings for violation of the condition of inalienability were commenced before the commencement of the Act, but orders were passed after the commencement of the Act. The petitioner is the purchaser of assigned land. This case arises from Nizamabad District, i.e., from Telangana Area, where the assignment of Government land is governed by statutory rules contained in G.O.Ms. No. 1406, dated 25-7-1958, as modified in G.O.Ms. No. 1724. dated 26-8-1959, made under Section 172 of the Andhra Pradesh (Telangana Area) Land Revenue Act, 1317F. Clause (iv) in G.O.Ms. No. 1406 defines what the expression 'Landless poor person' means. It says that a landless poor person is one who owns not more than one acre of wet or five acres of dry land, and is also poor. Under Clause (v), the maximum extent of land which was assignable to a single individual was one Acre wet, or 5 acres dry.
Clause (vi) sets out the terms and conditions of assignment, and one of the conditions is that the land assigned shall be heritable but not transferable and that, the cultivation should be done by the assignee or a member of his family, or with hired labour under the supervision of himself or a member of his family. Under G.O.Ms. No. 1724, the definition of 'landless poor' was varied. According to it, a person owning not more than 21/2 acres of wet, or 5 acres of dry land is treated as landless poor person. The maximum extent of land which can be assigned to a single individual is raised to 21/2 acres wet or 5 acres of dry as the case may be.
18. The rules, while providing that the land assigned is not transferable, do not specifically provide the action to be taken for violation of that condition. It could, however, be said that since the assignment itself was subject to the condition, the violation of that condition renders the assignment void, empowering the assigning authority to resume the land. Be that as it may, once the Act No. 9 of 1977 has come into force any action on account of violation of the condition of non-alienability should be taken only in accordance with the Act. As pointed out by our learned brother, P.A. Chowdary J., in T, Onnurama v. Tahsildar Kadiri, : AIR1980AP267 under the previous rules the consequence of violation of the condition of non-alienability was the resumption of (and by the assigning authority. Whereas under the present Act, it is restoration of the assigned land to the assignee.
Though the case dealt with by our learned brother pertained to Andhra Area the position in Telangana area does not appear to be different. Moreover, against an order of resumption, the affected person (in Telangana area) had right of appeals and revision under the Hyderabad Land Revenue Act, wheres under the present Act, the order of the Tahsildar is final. In the Andhra Area too, appeals and revisions were provided against the orders of Tahsildar. It is thus clear that all proceedings taken under the previous Rules for resumption except those which have become final pending on the date of commencement of the Act, have to be dropped and action taken under the Act. It must also be noticed that there is no savings clause in the Act. saving the pending proceedings. Nor is the General Clauses Act attracted herein, for the reason that the Act does not purport to repeal any earlier enactment providing for resumption, restoration of assigned lands.
In Andhra area, there are no statutory provisions on this subject which could have been repealed and in Telangana area, the statutory Rules do not expressly provide for resumption, restoration, in case of alienation. It is thus clear that the proceedings initiated under the previous Rules, prior to the commencement of the Act, for resumption of land, or for cancellation of assignment and pending on the date of commencement of the Act cannot be proceeded with under those Rules and that, all action on account of violation of the condition of non-alienability has to be taken only in accordance with the Act. It, therefore, follows that, if any such proceedings are pending before an authority who is not the authority under the Act, they have naturally got to be either dropped, or, if found feasible, transferred to the appropriate authority under the Act.
19. Now coming to the facts of this writ petition, the authority resumed the land under previous Rules, and when his attention was drawn to the Act, he appears to have taken the stand that since he was not taking any action under the Act but under the previous Rules, he is entitled to resume the land. It is obvious that, in view of what we have stated above, the order passed by the Sub-Collector is unsustainable in law.
20. We, therefore, allow this writ petition, W.P. No. 5649 of 1977 and direct that the proceedings already initiated should be dropped, or, if found feasible, transferred and disposed of in terms of, and under the provisions of the Act and by the authority prescribed thereunder. The writ petition is, accordingly, allowed in the manner indicated.
21. W.P. No. 5164 of 1977: The petitioner in this case purchased the land under three separate sale deeds, from the assignee. He was served with a notice dated 10th Aug., 1976, calling upon him to show cause why he should not be evicted from the said land, for violating the relevant condition in 'D' Form Patta. The petitioner was served with the notice on 24th August, 1976, but he did not submit any explanation. The Tahsildar made an enquiry, during which he recorded the statement of the Karnam and also looked into the relevant revenue records, and passed orders on 10-10-1977, i.e., after the coming into force of the Act. Under the said order, which is impugned herein, the pattas granted earlier were cancelled and the land was resumed by the Government.
It is true that the petitioner failed to furnish any explanation; but, it must be remembered that when the show cause notice was served upon the petitioner, the Act or the preceding Ordinance was not in force and, therefore, the petitioner could not have raised a defence in terms of Sub-section (5), of Section 3. Inasmuch as the orders have been passed in this case after the coming into force of the Act, they have to be consistent with, and in accordance with the provisions of the Act. In the circumstances, we set aside the order, impugned herein, and direct that the Tahsildar shall serve a notice in Form I, upon the petitioner to enable him to submit explanation, if any, and pass appropriate orders according to law after considering the same and after making such enquiry as he thinks appropriate in the circumstances of the case. It may also be noted that, under the impugned order, the land has been directed to be resumed, whereas under the Act, the land has to be restored to the original assignee.
22. W.P. No. 5164/1977 is, accordingly, allowed in part, as indicated above.
23. W.P. Nos. 5709 of 1978 and 5841/78: These two writ petitions arise from the same matter. Fourth respondent in W.P. No. 5709/78 is the writ petitioner in the other writ petition (WP. 5841/78). We shall first take up W.P. No. 5709/78. This is a petition for issuance of a writ of prohibition restraining the Government from entertaining the revision against the orders of the Tahsildar, passed under the Act. Undoubtedly, the Act, does not confer any revisory power upon the Government. The Government therefore, acted without jurisdiction in entertaining the revision and in granting stay of operation of the Tahsildar's Order. On this ground alone, this writ petition is liable to be allowed and is, accordingly, allowed. The Government is restrained from entertaining or proceeding with the revision against the orders of the Tahsildar, dated 28-10-1978, referred to in the writ petition.
24. Now coming to Writ Petition No. 5841/78, the petitioner herein (4th respondent in W.P. 5709/78), is the purchaser of the lands concerned herein, which are, admittedly, assigned lands. The petitioner was served with a notice dated 14-8-1978, calling upon him to show cause why he should not be evicted from the said lands, inasmuch as his purchase is in contravention of the provisions of the Act. The petitioner submitted an explanation, expressly invoking Sub-section (5) of Section 3. He stated that he is a landless poor person; that, he had purchased the lands in good faith for valuable consideration and that, he has also spent substantial amounts in improving the same. The Tahsildar, by his order dated 28-10-1978, impugned herein, directed the petitioner to be evicted. It would be appropriate to set out the points raised by the petitioner in his explanation to the show cause notice, and the findings of the Tahsildar thereon. The impugned order sets out the five defences raised by the petitioner. They are, in the words of the Tahsildar:
1. He is managing member of joint Hindu family consisting of his wife, 2 major sons and 3 daughters who are depending on cultivation and as the little extent of land of 2.24 acres inherited by the property was not sufficient for the maintenance of this family he purchased the lands under reference by raising loans from rich people during the year 1970.
2. He was not aware at the time of purchasing these lands that they were lands conditionally assigned to the seller and he came to know of this fact when he was served with the show cause notice only.
3. He, after purchasing these lands, had to spend good lot of money in getting these lands under cultivation and also in sinking an irrigation well in S. No. 21/3E at a huge cost before he could reap the result of these investments, he is issued with the present show cause notice.
4. He, being the member of joint Hindu family he is entitled to a share of 2.37 acres of land only which is apportioned on the total extent of land owned by the family (ancestral property) of 2.24 acres plus lands now covered by the notice, 4.87 acres and out of which I /3rd share. Thus he is a landless poor person; and
5. He, therefore, pleads that this case does not fall under the provisions of Section 3(1) to (3) but attracts provisions under Section 3 (5) ... ...' The tahsildar agreed with the petitioner on points 1, 3 and 4 but did not agree with him on points 2 and 5 and, on that basis came to the conclusion that the petitioner is not a landless poor person and that, he has also not purchased the lands in good faith. We find that the conclusion drawn by the Tahsildar is self-contradictory. The Tahsildar has accepted the 4th point raised by the petitioner, which means that the petitioner is a landless poor person. But, while stating his conclusion, the Tahsildar stated that the petitioner is not a landless poor. Further, the Tahsildar, has not given any reasons for holding that the petitioner did not purchase the lands in good faith. We do not want to say more, in view of the fact that we are inclined to remit the matter back to the Tahsildar. We accordingly set aside the order of the Tahsildar and remit the matter back to him for disposal afresh according to law and in the light of the observations contained in this judgment.
25. W.P. No. 5841/1978 is, accordingly, allowed in part. Advocate's fee Rs. 100/- in each.