ORDER
B. Subhashan Reddy, J.
1. This writ petition seeks for issuance of a writ to set aside the impugned proceedings dated 30-3-1992 passed by the Mandal Revenue Officer, Bodhan, the 1st respondent herein, as being arbitrary, illegal, void and against the principles of natural justice and to declare that the petitioner is entitled to hold the property as a bona fide purchaser for a valuable consideration under Sub-section (5) of Section 3 of A.P. Act No. 9 of 1977.
2. The undisputed facts are that the land bearing Sy. No. 233/3, ad measuring 27 guntas situated at Penta Kurd village was a Government land and was assigned to one Mr. Patan Moulali, the 2nd respondent herein. The said land was assigned to the 2nd respondent herein. The said land was assigned to the 2nd respondent in accordance with the beneficial scheme under Section 58-A of A.P. (Telangana Area) Land Revenue Act, 1317 Fasli on the ground that he was a landless poor person. There is also no dispute that one of the essential conditions of the said grant was that the said land was heritable, but not alienable.
3. As the conditions with regard to non-alienability of the Government lands assigned were honoured more in breach, the legislature in its wisdom, has taken note of that and enacted A.P. Assigned Lands (Prohibition of Transfers) Act, 1977 (A.P. Act No. 9 of 1977) thereby making the transactions of transfer with regard to assigned lands attached with the condition of non-alienation as void.
4. Mr. Govind, the learned counsel, appearing for counsel for the petitioner, raised the following contentions:
(1) That the impugned order suffers from violation of the principles of natural justice as no show cause notice was issued and no opportunity was afforded to the petitioner before directing her eviction from the land in question;
(2) That the possession of the petitioner through her husband was only that of a Bataidar and that the same does not amount to lease and that the same is not hit by A.P. Act No. 9 of 1977 as it is not a transfer within the meaning of the said Act; and
(3) That in any event of the matter, as the petitioner has got only Ac. 1-20 guntas of dry land, apart from 0.27 guntas of land and the total holding being less than 5 acres of dry land even after conversion in terms thereof, the same is protected under Sub-section (5) of Section 3 of A.P. Act No. 9 of 1977.
5. Ms Nanda, appearing for the Government Pleader for revenue, replies:
(1) That there is enough compliance of principles of natural justice inasmuch as the show-cause notice dated 12-2-1991 in case No. A5/4463/91 on the file of the 1st respondent was issued and pursuant to the same, the petitioner’s husband Mr. Gade Ankama Rao, appeared before the 1st respondent and instead of filing a written reply, he had chosen to give a sworn statement voluntarily and that the same was recorded by the 1st respondent which contains a clear admission of his possession over the land in question;
(2) That Bataidar is a lessee and that the same is covered by definition under Section 105 of Transfer of Property Act and that consequently, it is a transfer within the meaning of A.P. Act No. 9 of 1977 and as such the same is void and the possession, be it of the petitioner or her husband, is illegal and unauthorised; and
(3) That the benefit under Sub-section (5) of Section 3 of A.P. Act No. 9 of 1977 is not available to the petitioner herein as she has not pleaded the same before the 1st respondent and that there is no document of purchase and that the unauthorised possession as a lessee do not come within the ambit of protection envisaged under Sub-section (5) of Section 3 of A.P. Act No. 9 of 1977.
6. The first contention of Mr. Govind, appearing for the counsel for the petitioner, that the show cause notice was not served upon the petitioner and that the was not afforded an opportunity of filing a reply and participating in the enquiry, cannot be believed as she had never stated that her husband is inimically disposed towards her or that there is strained relationship between them or that her husband went on his own to cause loss or injury to her rights. It is beyond any doubt that the petitioner’s husband went to the office of the first respondent on 4-2-1992 pursuant to the show cause notice which was served on 14-12-1991 and instead of filing a written reply he had opted to give a sworn statement and the said sworn statement was recorded by the 1st respondent. In view of this, I cannot countenance the argument that there was any violation of the provisions of the statute as regards opportunity or violation of principles of natural justice.
7. The second contention is that even if the petitioner’s husband had been in possession, he had been in possession only as a Bataidar and as Batai is a sharing of crop, it does not tantamount to lease and as such, the same is not prohibited under A.P. Act No. 9 of 1977. I am afraid, I cannot accede to this contention that Batai is not contained under Section 105 of the Transfer of Property Act, as ‘lease’ includes even sharing of crops. Section 105 of Transfer of Property Act, which reads:
“A lease of immovable property is a transfer of a right to enjoy such property, made for a certain time, express or implied, or in perpetuity, in consideration of a price paid or promised or of money, share of crops, service or any other thing of value, to be rendered periodically or on specified occasions to the transferor by the transferee, who accepts the transfer on such terms.”
is manifest of the same. As such, admittedly, the petitioner’s husband had been in possession as a lessee of the original owner. The definition clause in A.P. Act No. 9 of 1977 is so sweeping that it takes all kinds of transactions of sale, gift, exchange, even a simple mortgage without possession, lease or any other transaction with assigned lands including that of charge on such property or a contract relating to sale, gift, exchange, mortgage, lease or other transactions. Nothing is left out of this definition of ‘transfer’ excepting a testamentary disposition i.e. a will. Concisely speaking, excepting the devolution of right either by inheritance or by a testament in the shape of a Will, parting of possession of the assigned lands by any means and by whatever name called is totally prohibited and that is the avowed object of assignment of land belonging to the Government to the landless poor persons. Otherwise, the very scheme will be scuttled and becomes redundant.
8. The third contention that the petitioner is protected under Section 3(5) of the said Act, on the ground that her holding is only Ac. 2-07 guntas including the land in question and even if it is a wet land, it is not even 21/2 acres equivalent to 5 acres of dry land and as such her rights are protected under the said provision, also falls to ground. For attracting the said provision, it has to be proved that the petitioner is a landless poor person, that she had purchased the land in good faith for valuable consideration, that the purchase was prior to the commencement of the Act and that the same was for the purpose of cultivation or for house site. The first pre-condition for invoking this exception clause under Section 3(5) of A.P. Act No. 9 of 1977 is that there shall be a purchase by the person in possession and the other considerations arise only later. In the instant case, there is absolutely no document of purchase and it is not produced either before the first respondent herein who was the authority to enquire into the matter or before this court. It is ununderstandable as to how there could be a conveyance of immoveable property comprising agricultural land even without a document and even without the said document being registered. Even the date of purchase is not forthcoming. Across the Bar, Mr. Govind has submitted before me a patta pass-book said to have been issued by the 1st respondent herein. But, this patta pass book is not a document of title. By seeing into the contents of this patta pass book, no presumption can be drawn under Section 114 of the Indian Evidence Act, that there had been a valid transfer of the land in question in accordance with the provisions contained under Transfer of Property Act, as also Indian Registration Act, as the petition and her husband had miserably failed to prove that a purchase has been made of the land in question. Therefore, the question of invoking Section 3(5) of A.P. Assigned Lands Prohibition of Transfer Act, 1977 in the instant case does not arise at all. On the other hand, it was specifically pleaded by the husband of the petitioner before the 1st respondent in his statement recorded that he was in possession as a Bataidar of original assignee. Further, for proving that the petitioner is a landless poor person, it is not sufficient only to project her holding without disclosing the holding of her husband. In any event of the matter, as admittedly, the land is not in possession of the assignee and the same was given on lease to the petitioner or her husband, there is a glaring infraction of Section 3(2) of A.P. Act No. 9 of 1977 and as the exception clause contained under Section 3(5) of the said Act is not applicable, the petitioner and her husband are liable to be evicted from the land in question. This land is also not liable to be restored to the original assignee as his whereabouts are not known and as such the land after resumption should be distributed to other eligible landless poor persons.
9. Under the above circumstances, the writ petition is not only devoid of merits, but also bona fides, and the same deserves dismissal. Therefore, the writ petition is dismissed at the admission stage. No order as to costs.