Yerikala Sunkalamma & Anr. v. State of Andhra Pradesh, Department of Revenue & Ors.

p. 1058

48. Section 2(3) defines who is a “landless poor person” and the same reads thus: “(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 or may be specified by the Government in this behalf from time to time, and who has no other means of livelihood.”

49. Section 2(6) defines the term “transfer” as under: “(6) “transfer” means 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.”

50. A plain reading of the above provisions would show that three types of land are treated as assigned lands for the purpose of the Act of 1977 : (i) the land assigned by the Government to a landless poor person under the rules for the time being in force; (ii) the land allotted/transferred to the landless poor person under relevant law relating to land ceilings; (iii) the land which is allotted or transferred subject to the condition of non-alienation. Any person who owns an extent of less than 1.011715 hectares (2.50 acres) of wet land or 2.023430 hectares (5.00 acres) of dry land is a landless poor person. Assigned land is heritable and it can be transferred by testamentary disposition. However, any sale, gift, exchange, lease, or any other transaction in relation to assigned land is treated as transfer and Section 3(1) declares that such land shall not be transferred and shall be deemed never to have been transferred. Any such transfer of assigned land shall not confer any right on the purchaser of such assigned land and the land shall not vest in any person acquiring the land by any such transaction.

51. Section 3 of the Act of 1977 reads thus: “Section 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

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Yerikala Sunkalamma & Anr. v. State of Andhra Pradesh, Department of Revenue & Ors.

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, 1ease, mortgage, exchange or otherwise. (3) Any transfer or acquisition made in contravention of the provisions of subsection (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.”

52. Section 3(2) of the Act of 1977 declares that no landless poor person shall transfer any assigned land and no person shall acquire any assigned land. Sub-section (3) of Section 3 declares that 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. Sub-section (5) carves out an exception and a plain reading of sub-section (5) would show that nothing in sub-sections (1) to (4) of Section 3 shall apply to the 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 the Act provided that such person is in possession of the land “as a person cultivating the land or uses it as a house-site” on the date of such commencement.

p. 1060

53. Section 4 of the Act of 1977 reads thus: “Section 4. Consequence 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 respect 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 heir, 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 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.”

54. Section 4 deals with consequences of breach of provisions of Section 3 and mandates that the District Collector or any other officer not below the rank of a Tahsildar can take possession of the assigned

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Yerikala Sunkalamma & Anr. v. State of Andhra Pradesh, Department of Revenue & Ors.

land after evicting the person in possession when provisions of sub- section (1) of Section 3 are contravened. Clause (b) of sub-section (1) of Section 4 requires the land to be restored to the original assignee or his legal heirs, or where it is not reasonably practicable, the same can be resumed for assignment to landless poor persons in accordance with the rules which are in force. Such restoration of land to the original assignee after resumption from the purchaser shall not be more than once. Even after restoration, if the land is transferred again, it shall be resumed to the Government for assignment to any other landless poor person. Sub-section (3) of Section 4 throws the burden on the person who is in possession of the assigned land to show that he has not contravened the provisions of Section 3(1) of the Act of 1977.

55. Few other provisions of the Act of 1977 namely, Sections 5, 6 and 7 respectively are also relevant for appreciating the question raised in this appeal and read as under: “Section 5. Prohibition of registration of assigned lands:--Notwithstanding anything in the Registration Act, 1908 on or after the commencement of this Act, no registering officer shall accept for registration any document relating to the transfer of, or the creation of any interest in, any assigned land included in a list of assigned lands in the district which shall be prepared by the District Collector and furnished to the registering officer except after, obtaining prior permission of the District Collector concerned for such registration. Section 6. Exemption:--Nothing in this Act shall apply to the assigned lands held on mortgage by the State or Central Government, any local authority, a Co-operative Society, a scheduled bank or such other financial institution owned, controlled or managed by a State Government or the Central Government, as may be notified by the Government in this behalf. Section 7. Penalty: - (1) Whoever acquires any assigned land in contravention of the provisions of sub-section (2) of section 3 shall be punished with imprisonment which may extend to six months or with fine which may extend to two thousand rupees or both.

p. 1062

(2) Whoever opposes or impedes the District Collector or any person authorised, in taking possession of any assigned land under this Act shall be punished with imprisonment which may extend to six months or with fine which may extend to five thousand rupees or with both. (3) No court shall take cognizance of an offence punishable under this section, except with the previous sanction of the District Collector.”

56. Section 5 contains a non-obstante clause. It lays down that notwithstanding anything in the Registration Act, 1908, after coming into force of the Act of 1977, no registering officer shall accept registration of any document relating to transfer of any assigned land. Nonetheless, as per the second part of Section 5, if the transfer of assigned land is effected after obtaining prior permission of the District Collector concerned for registration, it is open for any registering officer to accept any document for registration relating to transfer of an assigned land. Section 6 enables the assignee to mortgage the assigned land to a Co-operative Society, scheduled bank and any financial institution owned, controlled or managed by the State Government or the Central Government as may be notified by the State Government. It is also necessary to notice that Section 7 prescribes imprisonment upto six months and fine up to Rs. 2,000/- in case when there is contravention of the provisions of Section 3(2) of the Act of 1977.

57. It may be noted that the word “Tahsildar” occurring in sub-section (1) of Section 4 was later substituted with the words “Mandal Revenue Officer” vide Act No. 32 of 1989 which amended the Act of 1977. The amendment was published in the Official Gazette on 05.12.1989. However, it has been brought to our attention that there neither exists any difference in rank nor in functions between these two officers and that the terms “Tehsildar” and “Mandal Revenue Officer” are used interchangeably. Therefore, the existence of the expression “Tahsildar” during the time of the alleged resumption proceedings No. R.C.C. 184/89 dated 03.02.1989 and its subsequent substitution with the words “Mandal Revenue Officer” at a later point in time, does not bear any significant importance as far as the issue at hand is concerned.

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Yerikala Sunkalamma & Anr. v. State of Andhra Pradesh, Department of Revenue & Ors.

iii. Oral Evidence on record

58. We must now look into the oral evidence on record. A perusal of the transcripts thereof, shows that the entire approach of the courts below in the present litigation was wrong. The Trial Court all throughout proceeded to consider whether the resumption of the subject land was in accordance with law, whereas, the High Court all throughout proceeded on the footing that since the subject land was an assigned land and there was a breach of conditions on which the land was assigned, the government was well within its power to resume the land for the purpose of construction of building for the Education Department. The High Court seems to have totally ignored or rather overlooked the fact that the appellants herein were indisputably in possession of the land from the year 1970 till the subject land was resumed and the appellants came to be dispossessed. The High Court failed to consider the legal effect of this period of twenty years.

59. It is in the aforesaid context that we must first look into the oral evidence of P.W.1- Y.Sunkalamma, the appellant no.1 (second plaintiff) and thereafter, we shall look into the oral evidence of D.W.1 – B.L. Chinnakesava Rao, Mandal Revenue Officer, who led evidence on behalf of the State.

60. The oral evidence of PW1 reads thus: “CHIEF – EXAMINATION: First plaintiff is my husband, 3rd plaintiff is my son. I am 2nd plaintiff in this suit. First plaintiff died after filing of the suit. Hence, myself and 3rd plaintiff are brought on record as L.Rs. of deceased first plaintiff. The suit land called ‘Thippalanaduma Chenu’ is in our possession even prior to my marriage i.e., 10 to 15 years prior to my marriage. My marriage took place more than twenty years back. The plaint schedule land originally belonged to one Madiga Govindu and he is resident of Dinnedevarapadu. The said Govindu subsequently alienated the suit schedule property to one Perugu Swamy Reddy. Again witness says the said Govindu mortgaged the suit schedule property to Swamy Reddy even ten years prior to my marriage. The said Govindu did not pay the amount under mortgage to Swamy Reddy and hence he filed a suit against said Govindu. Hence, the suit is decree.

p. 1064

At request for continuation of chief-examination posted to 20.1.1999. 10.06.99: P.W. recalled and sworn in for continuation of chief examination: Accordingly preliminary decree was passed the properties were brought to sale. In the said sale one K. Ramanna purchased the said property in the court auction and took delivery of the same through court. Ex.A1 registration extract of sale certificate in E .P. 51/69 in O.S. 178/67. In turn Kurva Ramanna sold the schedule property to Yerikala Rosanna my father in law. Ex.A2 is the registration extract of sale deed dt. 10.12.70 for having conveyed sale by K. Ramanna in favour of Y. Rosanna my father in law. Yerikala Rosanna my father in law was in possession and enjoyment of said property during his life time. Considering the possession and enjoyment the Government has issued patta pass book in favour of my father in law in respect of suit schedule property and other properties. Ex.A3 is the such pass book issued by revenue authorities. My father in law has paid revenue during his life time. Ex.A4 to A6 are such land revenue receipts. Rosanna my lather in law died about 15 years back and after his death my husband has succeeded the suit schedule property being the legal representative of my father in law. My husband was in possession and enjoyment of suit schedule property during his life time. My husband died about two years back. My father in law and after him husband were in exclusive possession of the suit schedule property one have raised any objection to our peaceful possession including the defendants for suit schedule property. The suit schedule property is an agricultural land and we are raising crops in the suit schedule property. The Govt. took the possession of the suit schedule land for the purpose of constructing a school without our consent. The Govt. have no right what so ever to take possession of our land without our consent. 1st plaintiff my husband also gave application to the District Collector, Kurnool for taking possession of suit land without our consent by the defendants. Ex.A7, is copy of such

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Yerikala Sunkalamma & Anr. v. State of Andhra Pradesh, Department of Revenue & Ors.

petition sent my husband to the Dist. Collector, Kurnool. The Dist. Collector did not act on Ex.A 7. I issued Sec. 80 CPC notice prior to filing of the suit. Ex.A8 is such notice dt. 4.1.96. Ex.A9 is served acknowledgment relating to Ex.A8 .notice. The Dist. Collector Kurnool also issued replied to our notice dt. 28.4.96, 31.5.96 and 6.5.96 Exs. A10 to A12 are copies of notices. We belong to Yerikala Community which is a Schedule Tribes Caste. The M.R.O., Kurnool has issued caste certificate to us. Ex.A13 is the caste certificate issued by M.R.O., Kurnool. Ex.A14 is the nativity certificate issued by M.R.O., Kurnool. The allegation that we never in possession and enjoyment of suit schedule property is false. The suit land is not a assigned land. The defendants have no right what so ever to interfere our peaceful possession and enjoyment of our property. We pray the court declare our title and also deliver possession of the suit schedule property. Hence I pray the court to pass decree as prayed for. Cross-examination: Deferred. 8.7.99: P.W. 1 recalled and sworn in for cross-examination by AGP:- I do not know how Govindu the original owner acquired the suit schedule property. I do not know whether the Govt. has assigned the suit property to the said Govindu. I do not know the conditions mentioned in the D. Form patta assigned to Govindu in respect of suit schedule property. I do not know whether the Govt. Properties are situated surrounding the suit land in question. The suit schedule property and other properties situated near the suit property are not same level. It is not true to say that the suit land is not fit for cultivation. The Govt. has taken over the suit property to construct school building. It· is not true to say that the concerned MRO and revenue inspector enquired prior to taken over the suit property and they thought that the suit property is suitable to construct District Institution of Education Training Centre. I do not know whether the suit property is not fit for cultivation even as per village

p. 1066

accounts. It is not true to say that the Govt. also made proclamations in the village prior to taken over of the suit land. It is not true to say that nobody has raised any objections including we the plaintiffs at any point of time for taking over the suit property by Government for the above said purpose. The suit property is situated within the limits of Dinnedevarapadu village. It is not true to say that since the suit land is a Govt. land it is free from encumbrances and the Govt. had every right to take back the suit land for the public purpose. It is not true to say that we the plaintiffs have no right in the suit schedule property whatsoever. I do not know whether the concerned M.R.O. handed over the suit property to District Educational Officer, Kurnool on 1.5.1989. I do not know whether the MRO has transferred the suit property to Dist. Educational Officer, Kurnool in the year 1989. It is true that the buildings were constructed in the year 1995 in the suit property. It is not true to say that the Govt. has constructed the buildings in the suit property for the purpose of interest of general public. It is not true to say that the Govt. constructed the buildings in the suit property as per board standing orders within their limits. It is not true to say that we the plaintiffs neither owners nor possessors of suit property. It is not true to say that we filed the present suit only to harass the Govt. with a view to extract money. It not true to say that our claim is barred by limitation. It is not true to say that the suit is also barred by limitation.” (Emphasis supplied)

61. Thus, P.W.1 in her examination-in-chief gave more than a fair idea as to how her father-in-law, Y. Rosanna acquired the subject land by way of a registered sale deed. She has deposed that the Government had issued Pattadar Passbook in favour of her father-in-law. Ex. A3 is the passbook that she produced before the Trial Court. Ex. A4 to Ex. A6 are the land revenue receipts produced in evidence. She has deposed that about fifteen years back her father-in-law passed away and her husband succeeded the subject land. Two years before the date of deposition, her husband also passed away. However,

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Yerikala Sunkalamma & Anr. v. State of Andhra Pradesh, Department of Revenue & Ors.

she along with her children remained in peaceful possession of the subject land. She has deposed about the issue of statutory notice to the State under Section 80 of the CPC. She has categorically deposed that the Subject Land is not an assigned land. In her cross examination, she deposed that she had no idea if the government had assigned the Subject Land to Harijana Govindu and that she was also unaware of the conditions mentioned in the alleged “D” Form Patta assigned to Harijana Govindu.

62. We shall now look into the evidence of D.W.1 B.L. Chinnakesava Rao, the Mandal Revenue Officer. In his examination in chief, he has deposed as under: “CHIEF - EXAMINATION: I have been working as M.R.O., Kurnool from 25.3.1998. I am acquainted with the facts of the case. We were not aware that one Govindanna mortgaged the suit schedule property to one Perugu Swamy Reddy of Dinnedevarapadu village. We were not aware the suit in O.S. 178/ 1967 which was filed by L. Rs of Swamy Reddy against L.Rs of Govindanna. The plaintiffs were never in possession and enjoyment of suit schedule properties. The Government assigned the suit schedule survey number to Harijana Govindanna. Similarly the Govt. have assigned lands to others in S. No. 451/23, 451/4 and 451/3, 549/1, 449/2, 449/3 and 449/4. The properties covered in the above said survey numbers are Government lands. The land was assigned to Harijana Govindu subject to certain conditions one among them the Government may resume land for any public purpose. The assignees have no right whatsoever to alienate D. Form patta lands. The suit land is a waste land, comprising rocky and pits. The suit land is sloppy land. The suit land is not fit for cultivation Govindu had no right whatsoever to mortgage assigned land to P. Swamy Reddy. The Government had resumed Ac. 31.19 cents from assignees for the purpose of construction of Dist. Institution of Education Training Centre. In the year 1989 the Govt. resumed the lands under RCB 184/89, dt. 3.2.1989. The M.R.O. and Mandal Surveyor inspected the suit land prior to resume of the suit land. The M.R.O. and surveyor have also prepared a report for resuming land for

p. 1068

public purpose. Sub-Division records were also prepared and scrutinized by Dy. Inspector of survey for resuming of the land. There was a general notice and proclamation in the village inviting any objections for transfer of lands in favour of Educational Department. None have given any objections nor submitted anything in writing objecting for resuming the lands. The Grampanchayat, Dinnedevarapadu also gave consent for transfer of above land in favour of Education Department. The Education Department took possession of the suit land on 1.5.1989. The Education Department started construction in the year 1995 and entire buildings were constructed and the buildings are in operation. Govindanna the assignee have no right whatsoever over the suit schedule property or to alienate to anybody. We followed board standing orders and entire process was done in accordance with rules. The suit is barred by limitation. Since the Education Department running buildings in the suit property the question of declaring the plaintiff’s title in respect of suit property does not arise. The plaintiff’s are no way connected or related to original assignee Govindu. The plaintiffs are strangers and they have no way connected or related to suit property. Hence I pray the court to dismiss the suit.” (Emphasis supplied)

63. In his cross examination, he deposed as under: “Cross-examination: We has record to show that in which year the Government assigned the suit land to Govindanna. I do not have patta readily on which the land was assigned to Govindanna. As per Board standing orders 15 we issue pattas on some conditions to assignees. The conditions embodied the BSO 15 only administrative conditions. Ex.A3 patta pass book was issued by our department in favour of first plaintiffs father. Ex.A4 to Ex.A6 land revenue receipts were issued by our department. The suit land is a Government land. After assigning the Government land to any body such land being called patta land. I do not know whether any notices were given to occupiers of suit land

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Yerikala Sunkalamma & Anr. v. State of Andhra Pradesh, Department of Revenue & Ors.

prior to resumption. We did not conduct any enquiry u/s 3 of A.P. assigned land prohibition Act as the assignee has violated the conditions embodied in D.Form patta. It is not true to say that the suit land assigned to Govindanna on market value and that the suit land is patta land of Govindanna. I do not know whether the said Govindanna mortgaged the suit property to one P. Swamy Reddy in the year 1944. I do not know whether as the Govindanna did not redeem the mortgage, a suit was filed by P. Swamy Reddy and brought the suit property for sale and suit property was put into court auction in the year 1970. I was not aware whether one K. Ramanna purchased the suit property in the court auction. I was not aware whether the father of first plaintiff purchased the suit property from K. Ramanna in the year 1970. It is not true to say that the plaintiff’s family were in possession and enjoyment of suit schedule property from 1970 onwards. I was not aware whether any reply was given by our department to the sec. 80 C.P.C. issued by the first plaintiff which is. Ex. A8. it is not true to say that we have not followed correct procedure and manipulated records and occupied the lands forcibly from the possession of the plaintiff. It is not true to say that the plaintiffs are owners of the suit schedule land. It is not true to say that the Government had highhandedly occupied the suit land from the possession of the plaintiffs. It is not true to say that the suit land is a cultivable land and the plaintiff were raising crops in the suit land. The suit land is situated near to G. Pulla Reddy Engineering College, Kurnool. Recently house plots raised around the suit land. It is not true to say that the we the Government highhandedly occupied the suit property which belongs to plaintiffs. Re-examination with permission: The other assignees never raised any objections for resuming their lands to construct buildings by Education Department. Further cross-examination: I do not know the names of other assignees.” (Emphasis supplied)

p. 1070

64. Thus, the first admission on the part of the Mandal Revenue Officer in his examination-in-chief is that the State had no idea or knowledge that Harijana Govindu had mortgaged the subject land in favour of one Perugu Swami Reddy of Village Dinnedevarapadu. He pleaded absolute ignorance of the Original Suit No. 178 of 1967 instituted by the legal heirs of Swamy Reddy against the legal heirs of Govindanna for enforcement of mortgage. He has thereafter said that the appellants herein (plaintiffs) were never in possession of the Subject Land. He has deposed that the Government had assigned the suit land in favour of Harijana Govindu. However, his cross examination is important. In his cross examination, he has stated that the State has the record to show the year in which the Government assigned the land to Harijana Govindu. However, the fact remains that no such record was produced. He has admitted that he does not have the “D” Form Patta said to have been issued in favour of Harijana Govindu and had no idea of the terms and conditions on which the land was assigned to Harijana Govindu. He admitted that Ex. A3 Patta Passbook was issued by the revenue department in favour of the first plaintiffs’ father, i.e., the father-in-law of PW1 - Y. Sunkulamma. He admits that Ex. A4 to Ex. A6 are the land revenue receipts issued by the revenue department in favour of the appellants. He admitted that if a government land is assigned to any person, the same assumes the character of being a Patta Land. He has said that he had no idea whether any notice was issued to the occupiers of the suit land prior to its resumption. He has admitted that no inquiry under Section 3 of the Act of 1977 was undertaken for the purpose of ascertaining whether the assignee had violated the conditions laid in the “D” Form Patta. He deposed that he had no knowledge whether any reply was given by the department to the Section 80 CPC notice or not. He denied that the family of the plaintiffs were in possession and enjoyment of the said schedule property from 1970 onwards.

65. Having regard to the oral as well as documentary evidence on record, the picture that emerges is as under: a. The Subject Land belonged to Harijana Govindu. Whether it was an assigned land or was of his ownership, is not clear. If it is the case of the State that the same was an assigned land, the State has miserably failed to establish the same. They could have produced the record while asserting that in fact it was an

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Yerikala Sunkalamma & Anr. v. State of Andhra Pradesh, Department of Revenue & Ors.

assigned land and there was a “D” Form Patta issued in favour of Harijana Govindu. b. Harijana Govindu had borrowed money from one Perugu Swamy Reddy. Harijana was not in a position to repay the money he had borrowed and in such circumstances, Perugu Swamy Reddy enforced the mortgage by filing civil Original Suit no. 178 of

1967. The same came to be decreed. The Subject Land was ultimately put to auction by the court. In the court auction, one Kuruva Ramanna purchased the same and Kuruva Ramanna in turn sold the subject land in favour of PW1’s father-in-law by way of a registered sale deed dated 10.12.1970. To this extent, the State has no say in the matter. c. Indisputably, since the date of the registration of sale deed by Kuruva Ramanna in favour of Y. Rosanna i.e., the father-in-law of PW1, the plaintiffs remained in possession of the Subject Land till the time they were dispossessed by the State Authorities. Even this cannot be disputed in any manner by the State. d. It appears that the State conceived the idea of putting up construction on few parcels of land owned by it other than the Subject Land. However, as the Subject Land is in between the parcels of land owned by the Government, they exerted pressure on the appellants herein to give up their land saying that the Subject Land was assigned to Harijana Govindu and he could not have mortgaged the land. Harijana Govindu, according to the State, could be said to have violated the terms and conditions of assignment. e. Why did the State maintain silence all throughout or why the State has no answer to the issue of “D” Form Patta Passbook in favour of the appellants? f. What is the explanation of the State in so far as the Ex. A4 to Ex. A6, i.e., the land revenue receipts are concerned? Why is the State silent on all this? g. What is the basis for the State to say that the appellants at no point of time were in possession of the suit land? h. The crux of the matter is that the State could not have taken over the land in a highhanded and arbitrary manner? In other words, could the State have resumed the land saying that the appellants

p. 1072

were in illegal possession of the same without following due process of law? It goes without saying that be it an assigned land or of individual ownership, if the State is in need of the land for any public purpose, it can always acquire the same in accordance with law, more particularly in accordance with the provisions of the Land Acquisition Act by paying appropriate compensation in terms of money. However, what the State did in the present case was nothing but an exhibit of raw power by taking over the possession forcibly. The matter of concern is that the State knew very well that the appellants were in lawful possession of the land for more than 20 years. Well, if the State was in need of the land occupied by the appellants, it could have informed the appellants that the land is required for public purpose and that the State intends to acquire the same and that they would be paid adequate compensation in terms of money in accordance with law. However, the intention of the State was to take over the possession without paying any compensation. In the process, what the State did was that it conveniently shut its eyes towards four things, viz. (i) the civil suit filed by the original mortgagee, (ii) the decree passed by the competent Civil Court, (iii) sale of the land by court auction and the sale certificate issued by the court, and (iv) the appellants purchasing the land in question by a sale deed from the person who had participated in the court auction and purchased the land in question. i. It appears that way back in 1995, the construction was completed, and, in such circumstances, the appellants were left with no choice but to institute the suit.

66. We have been able to lay our hands on a very lucid and erudite decision rendered by the Bombay High Court more than a century ago i.e., in 1912, in Narayan Anandram Marwadi v. Gowbai, widow of Dhondiba reported in ILR 37 Bom. 415. We could not resist the temptation to refer to and rely upon this decision of the Bombay High Court. In the said case, the property of an agriculturist mortgagor was sold in an execution of money decree by the civil court and the auction purchaser’s rights subsequently came to be vested in the mortgagee. As Section 22 of the Dekkhan Agriculturists’ Relief Act, 1879 prohibited execution of sale of agriculturists’ properties, the mortgagor treated the sale as void and sued to redeem the mortgage.

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Yerikala Sunkalamma & Anr. v. State of Andhra Pradesh, Department of Revenue & Ors.

The mortgagee, in turn, relied on the court-sale to contend that the mortgagor had no right to redeem. The Subordinate Judge, the District Judge on appeal and the High Court in second appeal held that the court-sale was void ─ but on Letters Patent Appeal, Scott, C.J., speaking for himself and Chandavarkar, J., held: “Now the provisions of section 22 of the Dekkhan Agriculturists’ Relief Act are provisions conferring upon members of a certain class great privileges in litigation. The section confers upon a person who is shown to be a member of the privileged class the right to resist the attachment or sale of any of his immovable property and to contend that if an attachment or sale took place in violation of the provisions of the section, such attachment or sale shall be held to be void. How then is the Court to know when it is authorized to attach and sell property and when it is not? The ordinary rule is that set out in the Civil Procedure Code, section 60, which reproduces section 266 of the Code of 1882. It provides that property liable to attachment and sale in execution of a decree is lands, houses, etc., belonging to the judgment-debtor. An agriculturist in order to resist the application of that general rule must, we think, show that he belongs to the privileged class so as to render section 22 of the Dekkhan Agriculturists’ Relief Act applicable to his case. That conclusion seems to follow from the provisions of Sections 101, 102 and 103 of the Evidence Act. In the absence of proof we, therefore, hold that there is no reason to treat the immovable property sold by the Vinchur Court as the property of an agriculturist.” (Emphasis supplied)

67. Consequently, the suit was dismissed adopting the following dictum of Sir Lawrence Jenkins in Pandurang Balaji v. Krishnaji Govind reported in (1903) 28 Bom. 125: “It is a general rule that in Courts of law only those facts can be taken to exist which are proved; so that it is manifest that in the absence of proof the exemption from liability to attachment or sale did not exist for the purpose of the

p. 1074

execution proceedings. Therefore the executing Court had complete jurisdiction to make the order it did.” (Emphasis supplied)

68. The dictum as laid down in the decision referred to above of the Bombay High Court accords with our own view of the matter.

69. Having regard to the aforesaid, is there anything to indicate that the Subject Land is of the ownership of the Government? If there is a Pattadar Pass Book issued in favour of the appellants and if they have been able to establish that land revenue was also being paid over a period of years, then the appellants could be said to be owners of the suit land as Pattadars. Unfortunately, even the “D” Form Patta admitted by the State to have been issued in favour of the Harijana Govindu is not on record. Had it been on record, we could have looked into its terms and conditions. It appears from the evidence on record that the Pattadar Passbook was issued in favour of the appellants keeping in mind their long-standing possession and occupancy on the Subject Land by virtue of the sale deed dated 10.12.1970. Why the State remained silent right from the time Harijana Govindu mortgaged the land? Why no action was taken from 1943 onwards till the time the State decided to put up construction of a building for the Education Department? It is difficult to believe that the State Authorities had no idea of the developments that had taken place over a period of almost forty-five years.

70. The oral and documentary evidence should now be tested on the anvil of Section 113 of the Bhartiya Sakshya Adhiniyam, 2023 (for short, the “BSA”) which corresponds to Section 110 of the repealed Indian Evidence Act, 1872 (for short, the Evidence Act”).

iv. Section 113 of the Bhartiya Sakshya Adhiniyam, 2023

71. Section 113 of the BSA reads as follows: “When the question is whether any person is owner of anything of which he is shown to be in possession, the burden of proving that he is not the owner is on the person who affirms that he is not the owner.”

72. The Section embodies the well-recognised principle that possession is prima facie proof of ownership. A person in possession is entitled

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to remain in possession until another person can disclose a better title under Section 113 of the BSA. Therefore, once the plaintiff proves that he has been in possession of the suit property, the burden of proving that the plaintiff is not the owner is on the defendant who affirms that the plaintiff is not the owner. The Section does not make a distinction between the Government and a private citizen. Section 113 is, therefore, equally applicable where a Government claims to be the owner or challenges the ownership of the plaintiff who is in possession of the property. It is not disputed that before the possession of the Subject Land was taken over, the plaintiffs were in possession of the property for more than twenty years. The onus, therefore, under section 113 of the BSA was on the State to prove that the Government had a subsisting title to the Subject Land.

73. In M. Krishna Aiyar v. The Secretary of State for India reported in (1910) I.L.R. 33 Mad. 173, a Bench of the Madras High Court held that: “Where in a suit for declaration of title against the Government the plaintiff proves possession for a period of more than 12 years, the Government must prove that it has a subsisting title. When the Government fails to prove such title or possession within sixty years, the plaintiff is entitled to a declaration of title and not merely to a declaration that he is lawfully in possession of such land.” (Emphasis supplied)

74. It must be remembered that what Section 113 of the BSA does is to raise a statutory presumption in favour of a person who is in possession that he is the owner and places a burden upon the other persons who say that the plaintiff is not the owner.

75. Section 113 of the BSA provides that when the question is whether any person is the owner of anything of which he is shown to be in possession, the burden of proving that he is not the owner is on the person who affirms that he is not the owner. The application of this Section to lands claimed by the Government or the Municipality has been considered by the Madhya Pradesh High Court in Jagannath Shivnarayan v. Municipal Commissioner, City Municipality, Indore reported in AIR 1951 MB 80.

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76. Sanghi, J., discussed the case law on the subject and held that to apply the provisions of Section 110 of the Evidence Act (now section 113 of the BSA), to a plaintiff’s possession, the possession must be founded on a ‘prima facie’ right. According to the learned Judge, mere acts of the user would not lead to a presumption of title in case the possession was ‘prima facie’ not proved to be lawful.

77. The same view was taken by a Division Bench of the Bombay High Court in Suraji Fulaji v. Secretary of State reported in AIR 1937 Bom 193. It was a suit against the Government for declaration that the plaintiff was the owner of certain plots in a village. The plaintiff adduced oral evidence to show that he had been using a large area of land for the purposes of tethering cattle and storing grass and that he had been in possession thereon for a number of years. It was also proved by him that he had erected badges to the west and south of the plot.

78. In the aforesaid case, it was held that although the Government had not succeeded in rebutting the plaintiff’s evidence as to its act of user, yet it could not be said that the plaintiff had been able to prove such possession as would raise a presumption of title in his favour. Broomfield, J., approved the view taken by Ranade, J. in Hanmantrao v. Secretary of State reported in (1901) 25 Bom 287 and held that to come within the scope of Section 110 of the Evidence Act, the possession of the plaintiff must be based on a ‘prima facie’ right. This case was followed by another Division Bench of the same High Court in The Secretary of State for India in Council v. Chimanlal Jamnadas and others reported in AIR 1942 Bom 161.

79. Chimanlal Jamnadas (supra) was also a suit against the Government for declaration that certain property consisting of land was of the absolute ownership of the plaintiff. The plaintiff had proved some kind of possession, and the question arose whether it was sufficient to give rise to a presumption under Section 110 of the Evidence Act. Divatia, J., discussed the case law on the subject and observed as follows: “[…] It is necessary, in my opinion, therefore for the plaintiffs to prove that their possession was of such a character as would lead to the presumption of title, and not such a sort of possession as would be regarded as wrongful in its origin. In my opinion it could not be the

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law that a man might usurp somebody else’s land and without the plea of adverse possession say that ‘I am in long possession of this land. I have erected buildings on it, and although, I have no title in my favour and even though I have got possession of the land by usurpation or encroachment, I am entitled to remain in possession under Section 110 and that nobody can oust me’. The presumption under Section 110 would apply only if the conditions are satisfied, viz., that the possession of the plaintiff is not ‘prima facie’ wrongful, and, secondly, the title of the defendant is not proved.” (Emphasis supplied)

80. In Gurunath Manohar Pavaskar v. Nagesh Siddappa Navalgund reported in (2007) 13 SCC 565 this Court held as under: “12. A revenue record is not a document of title. It merely raises a presumption in regard to possession. Presumption of possession and/or continuity thereof both forward and backward can also be raised under Section 110 of the Evidence Act.”

81. In Nair Service Society Ltd. v. Rev. Father K.C. Alexander reported in AIR 1968 SC 1165, dealing with the provisions of Section 110 of the Evidence Act, this Court held as under: “17. […] possession may prima facie raise a presumption of title no one can deny but this presumption can hardly arise when the facts are known. When the facts disclose no title in either party, possession alone decides.” (Emphasis supplied)

82. In Chief Conservator of Forests, Govt. of A.P. v. Collector reported in (2003) 3 SCC 472, this Court held that: “20. … presumption, which is rebuttable, is attracted when the possession is prima facie lawful and when the contesting party has no title.” (Emphasis supplied)

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83. The principle enshrined in Section 110 of the Evidence Act (now Section 113 of the BSA) is based on public policy with the object of preventing persons from committing breach of peace by taking law into their own hands, however good their title over the land in question may be. It is for this purpose that the provisions of Section 6 of the Specific Relief Act, 1963, Section 145 of the Code of Criminal Procedure, 1973, and Sections 154 and 158 of the India Penal Code, 1860, were enacted. All the aforesaid provisions have the same objective. The said presumption is read under Section 114 of the Evidence Act and applies only in a case where there is either no proof, or very little proof of ownership on either side. The maxim “possession follows title” is applicable in cases where proof of actual possession cannot reasonably be expected, for instance, in the case of wastelands, or where nothing is known about possession one way or another. Presumption of title as a result of possession can arise only where facts disclose that no title vests in any party and the possession of the plaintiff is not prima facie wrongful. It certainly does not mean that because a man has title over some land, he is necessarily in possession of it. It, in fact, means, that if at any time a man with title was in possession of the said property, the law allows the presumption that such possession was in continuation of the title vested in him. A person must establish that he has continued possession of the suit property, while the other side claiming title, must make out a case of trespass/encroachment, etc. Where the apparent title is with the plaintiffs, it is incumbent upon the defendant, that in order to displace this claim of apparent title and to establish beneficial title in himself, he must establish by way of satisfactory evidence, circumstances that favour his version. Even a revenue record is not a document of title. It merely raises a presumption in regard to possession. Presumption of possession and/or continuity thereof, both forward and backward, can also be raised under Section 110 of the Evidence Act. [See: State of Andhra Pradesh and Ors. v. Star Bone Mill and Fertiliser Company reported in (2013) 9 SCC 319]

84. Section 113 of the BSA as discussed aforesaid, embodies the principle that possession of a property furnishes prima facie principle of ownership of the possessor and casts burden of proof on the party who denies his ownership. The presumption, which is rebuttable, is attracted when the possession is prima facie lawful and when the contesting party has no title.

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85. The appellants could be said to have established their possession over the suit land in question right from the year 1970. There is cogent and convincing evidence in this regard. They were in peaceful enjoyment of the suit land in question. In our opinion, the respondent State has not been able to prove its title to the suit land. Just because the suit land is surrounded by few other parcels of land owned by the Government, that by itself will not make the suit land of the ownership of the Government. If the Government claims title over the land, it has to establish it by producing relevant records in the form of revenue records etc. In our opinion, the State has failed to advance any credible evidence on record to rebut the presumption. Consequently, the appellants have Pattadars’ title to the suit land in question.

86. There was no need for the High Court to look into and follow the dictum as laid in its Full Bench decision in the case of Dharma Reddy (supra). The Full Bench decision in Dharma Reddy (supra) has only discussed the retrospective effect of the Act, 1977.

v. How is the Court expected to consider title suits against the Government

87. In the case of R. Hanumaiah v. Secretary to Govt. of Karnataka, Revenue Department reported in (2010) 5 SCC 203, this Court has explained as to how the Trial Courts are expected to consider title suits against the Government. This Court held as follows: “19. Suits for declaration of title against the Government, though similar to suits for declaration of title against private individuals differ significantly in some aspects. The first difference is in regard to the presumption available in favour of the Government. All lands which are not the property of any person or which are not vested in a local authority, belong to the Government. All unoccupied lands are the property of the Government, unless any person can establish his right or title to any such land. This presumption available to the Government, is not available to any person or individual. The second difference is in regard to the period for which title and/or possession has to be established by a person suing for declaration of title. Establishing title/possession

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for a period exceeding twelve years may be adequate to establish title in a declaratory suit against any individual. On the other hand, title/possession for a period exceeding thirty years will have to be established to succeed in a declaratory suit for title against the Government. This follows from Article 112 of the Limitation Act, 1963, which prescribes a longer period of thirty years as limitation in regard to suits by the Government as against the period of 12 years for suits by private individuals. The reason is obvious. Government properties are spread over the entire State and it is not always possible for the Government to protect or safeguard its properties from encroachments. Many a time, its own officers who are expected to protect its properties and maintain proper records, either due to negligence or collusion, create entries in records to help private parties, to lay claim of ownership or possession against the Government. Any loss of government property is ultimately the loss to the community. Courts owe a duty to be vigilant to ensure that public property is not converted into private property by unscrupulous elements.

20. Many civil courts deal with suits for declaration of title and injunction against the Government, in a casual manner, ignoring or overlooking the special features relating to government properties. Instances of such suits against the Government being routinely decreed, either ex parte or for want of proper contest, merely acting upon the oral assertions of plaintiffs or stray revenue entries are common. Whether the Government contests the suit or not, before a suit for declaration of title against a Government is decreed, the plaintiff should establish, either his title by producing the title deeds which satisfactorily trace title for a minimum period of thirty years prior to the date of the suit (except where title is claimed with reference to a grant or transfer by the Government or a statutory development authority), or by establishing adverse possession for a period of more than thirty years. In such suits, courts cannot, ignoring the presumptions available in favour of the Government, grant declaratory or injunctive decrees against the Government by relying upon one of the principles underlying pleadings

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that plaint averments which are not denied or traversed are deemed to have been accepted or admitted.

21. A court should necessarily seek an answer to the following question, before it grants a decree declaring title against the Government: whether the plaintiff has produced title deeds tracing the title for a period of more than thirty years; or whether the plaintiff has established his adverse possession to the knowledge of the Government for a period of more than thirty years, so as to convert his possession into title. Incidental to that question, the court should also find out whether the plaintiff is recorded to be the owner or holder or occupant of the property in the revenue records or municipal records, for more than thirty years, and what is the nature of possession claimed by the plaintiff, if he is in possession—authorised or unauthorised; permissive; casual and occasional; furtive and clandestine; open, continuous and hostile; deemed or implied (following a title).” (Emphasis supplied)

88. We are of the view that the following principles, as elucidated in R. Hanumaiah (supra), must govern the adjudication of declaratory title suits against the Government: i. Suits for declaration of title against the government differ from suits against private parties on two counts: a. First, there is a presumption in favour of the Government in such suits, as all lands which are unoccupied or not vested in any individual or local authority, are presumed to belong exclusively to the Government. b. Secondly, there is an additional burden of proof on the party seeking declaration of title against the Government. The plaintiff has to establish its possession over the land in question for a period of thirty years as opposed to twelve years in the case of adverse possession against a private party. ii. A decree declaring title against the Government must not be passed casually. Before granting any such decree, the trial

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court must ensure that the plaintiff has furnished adequate documentary evidence, either through title deeds tracing ownership for over thirty years or by establishing adverse possession for a period of thirty years. iii. The trial court must verify whether the name of the plaintiff has been recorded as the owner, holder, or occupant in the relevant revenue or municipal records for more than thirty years. iv. Finally, the trial court must carefully scrutinize the nature of the possession as may be asserted, determining whether the same is authorized or unauthorized, permissive or casual, furtive or clandestine, as well as open, continuous, and hostile, or implied by title, to ensure that public property is not inadvertently converted into private ownership by unscrupulous elements.

89. As held by this Court in R.V.E Venkatachala Gounder v. Arulmigu Viswesaraswami & V.P. Temple and Another reported in (2003) 8 SCC 752, whether a civil or a criminal case, the anvil for testing of “proved”, “disproved” and “not proved”, as defined in Section 3 of the Evidence Act, is one and the same. A fact is said to be “proved” when, considering the matters before it, the court either believes it to exist, or considers its existence so probable that a prudent man ought to, under the circumstances of a particular case, act upon the supposition that it exists. It is the evaluation of the result drawn by the applicability of the rule, which makes the difference. The relevant portion of the said judgment is reproduced below: “The probative effects of evidence in civil and criminal cases are not, however, always the same and it has been laid down that a fact may be regarded as proved for purposes of a civil suit, though the evidence may not be considered sufficient for a conviction in a criminal case. Best says: ‘There is a strong and marked difference as to the effect of evidence in civil and criminal proceedings. In the former a mere preponderance of probability, due regard being had to the burden of proof, is a sufficient basis of decision: but in the latter, especially when the offence charged amounts to treason or felony, a much higher degree of assurance is required.’ (Best, § 95) While civil cases may be proved by a mere preponderance of evidence, in criminal cases the prosecution must prove

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the charge beyond reasonable doubt.” (See Sarkar on Evidence, 15th Edn., pp. 58-59.)” (Emphasis supplied)

90. In the words of Denning, L.J. (Bater v. Bater reported in (1950) 2 All ER 458): “[…]It is of course true that by our law a higher standard of proof is required in criminal cases than in civil cases. But this is subject to the qualification that there is no absolute standard in either case. In criminal cases the charge must be proved beyond reasonable doubt, but there may be degrees of proof within that standard. As Best, C.J., and many other great judges have said, “in proportion as the crime is enormous, so ought the proof to be clear”. So also in civil cases, the case may be proved by a preponderance of probability, but there may be degrees of probability within that standard. The degree depends on the subject-matter. A civil court, when considering a charge of fraud, will naturally require for itself a higher degree of probability than that which it would require when asking if negligence is established. It does not adopt so high a degree as a criminal court, even when it is considering a charge of a criminal nature; but still it does require a degree of probability which is commensurate with the occasion. Likewise, a divorce court should require a degree of probability which is proportionate to the subject-matter.” (Emphasis supplied)

91. Agreeing with this statement of law, Hodson, L.J. said: “Just as in civil cases the balance of probability may be more readily tilted in one case than in another, so in criminal cases proof beyond reasonable doubt may more readily be attained in some cases than in others.” (Hornal v. Neuberger Products Ltd. [(1956) 3 All ER 970 : (1957) 1 QB 247 : (1956) 3 WLR 1034 (CA)] , All ER at p. 977 D).

92. In a suit for recovery of possession based on title, it is for the plaintiff to prove his title and satisfy the court that he, in law, is entitled to

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dispossess the defendant from his possession over the suit property and for the possession to be restored to him. However, as held in Addagada Raghavamma v. A. Addagada Chenchamma reported in AIR 1964 SC 136, there is an essential distinction between burden of proof and onus of proof. Burden of proof lies upon a person who has to prove the fact and which never shifts. Onus of proof shifts. Such a shifting of onus is a continuous process in the evaluation of evidence. In our opinion, in a suit for possession based on title once the plaintiff has been able to create a high degree of probability so as to shift the onus on the defendant, it is for the defendant to discharge his onus and in the absence thereof, the burden of proof lying on the plaintiff shall be held to have been discharged so as to amount to proof of the plaintiff’s title.

vi. Section 80 of CPC

93. Before we close this matter, we must say something as regards Section 80 of the CPC. It is not in dispute that in the case on hand, before the institution of the suit by the appellants herein, they had issued statutory Notice under Section 80 of the CPC. However, there is nothing on record to indicate that any reply to the same was given by the State Authorities.

94. Sections 79, 80 and Order XXVII respectively of the CPC deal with the procedure where the suits are brought by or against the Government or Public officers acting in an official capacity. Section 79 is a procedural provision and contains provisions in relation to the suits by or against the Government. It states that in a suit by or against the Government, the authority to be named as plaintiff or defendant, as the case may be, shall be— (a) in the case of a suit by or against the Central Government, the Union of India, and (b) in the case of a suit by or against a State Government, the State.

95. Section 80 of the CPC deals with the provisions relating to notice which is a condition precedent before filing a suit against the government or against a public servant. It states that – “(1) Save as otherwise provided in sub-section (2), no suits shall be instituted against the Government or against a public officer in respect of any act purporting to be done

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by such public officer in his official capacity, until the expiration of two months after notice in writing has been delivered to, or left at the office of— (a) in the case of a suit against the Central Government, except where it relates to a railways, a Secretary to that Government; (b) in the case of a suit against the Central Government where it relates to railway, the General Manager of that railway; (c) in the case of a suit against any other State Government, a Secretary to that Government or the Collector of the district and, in the case of a public officer, delivered to him or left at his office, stating the cause of action, the name, description and place of residence of the plaintiff and the relief which he claims; and the plaint shall contain a statement that such notice has been so delivered or left. (2) A suit to obtain an urgent or immediate relief against the Government or any public officer in respect of any act purporting to be done by such public officer in his official capacity, may be instituted, with the leave of the Court, without serving any notice as required by sub-section (1); but the Court shall not grant relief in the suit, whether interim or otherwise, except after giving to the Government or public officer, as the case may be, a reasonable opportunity of showing cause in respect of the relief prayed for in the suit. Provided that the Court shall, if it is satisfied, after hearing the parties, that no urgent or immediate relief needs to be granted in the suit, return the plaint for presentation to it after complying with the requirements of sub-section (1). (3) No suit instituted against the Government or against a public officer in respect of any act purporting to be done by such public officer in his official capacity shall be dismissed merely by reason of any error or defect in the notice referred to in sub-section (1), if in such notice—

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(a) the name, description and the residence of the plaintiff had been so given as to enable the appropriate authority or the public officer to identify the person serving the notice and such notice had been delivered or left at the office of the appropriate authority specified in sub-section (1), and (b) the cause of action and the relief claimed by the plaintiff had been substantially indicated.”

96. Order XXVII, CPC enumerates the following: i. This Order deals with the Suits by or against the government or public officers in their official capacity. ii. Rule 1 of Order XXVII states that in any suit by or against the Government, the plaint or written statement shall be signed by such person as the Government may, by general or special order, appoint in this behalf, and shall be verified by any person whom the Government may so appoint and who is acquainted with the facts of the case. iii. Rule 2 of Order XXVII states that the persons being ex-officio or otherwise authorized act for the Government in respect of any judicial proceeding shall be deemed to be recognized agents by whom appearances, acts and applications under this Code may be made or done on behalf of the Government. iv. Rule 3 of Order XXVII states that in suits by or against the Government, instead of inserting in the plaint the name and description and place of residence of the plaintiff or defendant, it shall be sufficient to insert the appropriate name as provided in section 79 of CPC. v. Rule 4 of Order XXVII provides that the Government Pleader shall be the agent of the Government for the purpose of receiving processes against the Government by the Court. vi. Rule 5 of Order XXVII provides that the Court shall, in fixing the day for the Government to answer the plaint, allow a reasonable time for the necessary communication with the Government through the proper channel. a. Rule 5A of Order XXVII provides that the Government will be joined as a party in a suit against a public officer

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in respect of any act alleged to have been done by him in his official capacity. b. Rule 5B of Order XXVII deals with the duty of the Court in suits against the Government or a public officer to assist in arriving at a settlement. vii. Rule 6 of Order XXVII provides that the Court can direct the attendance of a person who is able to answer any material question relating to the suit against the Government. viii. Rule 7 of Order XXVII deals with the extension of time to enable public officers to make reference to the Government. ix. Rule 8 of Order XXVII provides that where the government undertakes a defense of suit against a public officer, the government pleader will apply to the Court for the same and the Court upon such application shall cause a note of his authority to be entered in the register of civil court. If no application is made by a government pleader, then the case shall proceed as in a suit between private parties: a. Rule 8A of Order XXVII provides that no such security as is mentioned in rules 5 and 6 of Order XLI shall be required from the Government. b. Rule 8B of Order XXVII contains the definitions of Government and Government pleader.

vii. Object of Notice in Government Suits

97. The primary objective behind Section 80 of the CPC is to provide the Government or a public officer with an opportunity to assess the legal merits of a claim and potentially settle it if it appears to be just and reasonable.

98. Unlike private parties, the Government is expected to objectively and impartially evaluate the matter, seek appropriate legal advice, and make decisions in public interest within the two-month period mandated by the section. This serves to save both time and taxpayer’s money by preventing needless litigation.

99. The legislative intent is to ensure that public funds are not squandered on unnecessary legal battles. The provision of the notice is intended to prompt the Government or public officer to engage in negotiations

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for a fair settlement or, at the very least, to explain to the potential plaintiff why their claim is being contested.

100. In the case of Bihari Chowdhary and another v. State of Bihar and others reported in (1984) 2 SCC 627, this Court emphasised the purpose of the provision, stating that it is a measure of public policy aimed at allowing the Government or the relevant officer to scrutinise the proposed claim and, if deemed just, take prompt action to settle it, thereby avoiding protracted litigation and saving public resources.

101. The Government’s obligation differs from that of private parties, as it is expected to objectively assess the claim, seek legal advice as necessary, and make decisions in public interest within the stipulated two-month timeframe

102. The overarching goal of this mandatory provision is to promote justice and the public good by minimising unnecessary legal disputes.

viii. Essentials of Section 80 CPC

103. A notice issued under Section 80 must include: i. The name, description, and place of residence of the person providing the notice. ii. A statement outlining the cause of action. iii. The relief sought by the plaintiff.

104. When determining whether the essential requirements of the Section have been met, the court should consider the following questions: (i) Has the notice provided adequate information to allow the authorities to identify the person issuing the notice? (ii) Have the cause of action and the relief sought by the plaintiff been sufficiently detailed? (iii) Has the written notice been delivered to or left at the office of the appropriate authority as specified in the section? (iv) Has the suit been initiated after the expiration of two months following the delivery or submission of the notice, and does the plaint include a statement confirming that such notice has been provided as required?

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105. A statutory notice holds significance beyond mere formality. Its purpose is to provide the Government or a public officer with an opportunity to reconsider the matter in light of established legal principles and make a decision in accordance with the law. However, in practice, such notices have often become empty formalities.

106. The administration frequently remains unresponsive and fails to even inform the aggrieved party why their claim has been rejected.

107. In the case of State of Punjab v. Geeta Iron & Brass Works Ltd. reported in (1978) 1 SCC 68, Krishna Iyer J. emphasised the need for accountability of Governments regarding wasteful litigation expenses borne by the community due to governmental inaction. It was highlighted therein that the statutory notice under Section 80 of the CPC is meant to prompt the State to negotiate a fair settlement or, at the very least, to explain to the affected party why their claim is being resisted.

108. However, Section 80 has become more of a ritual due to the administration’s lack of responsiveness, despite recommendations from the Central Law Commission for its removal from the Code.

109. Krishna Iyer J. further noted that opportunities for dispute resolution through arbitration are often missed due to governmental inaction. He advocated for a litigative policy that prioritises conciliation over confrontation, suggesting that it should be a directive for the State to empower its legal officers to resolve disputes rather than prolonging them in court.

110. In Geeta Iron & Brass Works Ltd. (supra) referred to above, this Court observed thus: “3. While dismissing the Special Leave petition for the reasons mentioned above, we would like to emphasise that the deserved defeat of the State in the Courts below demonstrates the gross indifference of the administration towards litigative diligence. In the present case a notice under Section 80 CPC was sent. No response. A suit was filed and summons taken out to the Chief Secretary. Shockingly enough, the summons was refused. An ex parte proceeding was taken when the lethargic Government woke up.

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4. We like to emphasise that Governments must be made accountable by Parliamentary social audit for wasteful litigative expenditure inflicted on the community by inaction. A statutory notice of the proposed action under Section 80 CPC is intended to alert the State to negotiate a just settlement or at least have the courtesy to tell the potential outsider why the claim is being resisted. Now Section 80 has become a ritual because the administration is often unresponsive and hardly lives up to the Parliament’s expectation in continuing Section 80 in the Code despite the Central Law Commission’s recommendations for its deletion. An opportunity for settling the dispute through arbitration was thrown away by sheer inaction. A litigative policy for the State involves settlement of governmental disputes with citizens in a sense of conciliation rather than in a fighting mood. Indeed, it should be a directive on the part of the State to empower its law officer to take steps to compose disputes rather than continue them in Court. We are constrained to make these observations because much of the litigation in which Governments are involved adds to the case load accumulation in Courts for which there is public criticism. We hope that a more responsive spirit will be brought to bear upon governmental litigation so as to avoid waste of public money and promote expeditious work in Courts of cases which deserve to be attended to.” (Emphasis supplied)

111. In Bihari Chowdhary (supra), this Court observed thus: “3. … The effect of the section is clearly to impose a bar against the institution of a suit against the Government or a public officer in respect of any act purported to be done by him in his official capacity until the expiration of two months after notice in writing has been delivered to or left at the office of the Secretary to Government or Collector of the concerned district and in the case of a public officer delivered to him or left at his office, stating the particulars enumerated in the last part of sub-section (1) of the section. When we examine the scheme of the section it becomes

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obvious that the section has been enacted as a measure of public policy with the object of ensuring that before a suit is instituted against the Government or a public officer, the Government or the officer concerned is afforded an opportunity to scrutinise the claim in respect of which the suit is proposed to be filed and if it be found to be a just claim, to take immediate action and thereby avoid unnecessary litigation and save public time and money by settling the claim without driving the person, who has issued the notice, to institute the suit involving considerable expenditure and delay. The Government, unlike private parties, is expected to consider the matter covered by the notice in a most objective manner, after obtaining such legal advice as they may think fit, and take a decision in public interest within the period of two months allowed by the section as to whether the claim is just and reasonable and the contemplated suit should, therefore, be avoided by speedy negotiations and settlement or whether the claim should be resisted by fighting out the suit if and when it is instituted. There is clearly a public purpose underlying the mandatory provision contained in the section insisting on the issuance of a notice setting out the particulars of the proposed suit and giving two months’ time to Government or a public officer before a suit can be instituted against them. The object of the section is the advancement of justice and the securing of public good by avoidance of unnecessary litigation.

4. When the language used in the statute is clear and unambiguous, it is the plain duty of the Court to give effect to it and considerations of hardship will not be a legitimate ground for not faithfully implementing the mandate of the Legislature.

5. The Judicial Committee of the Privy Council had occasion to consider the scope and effect of Section 80 CPC in an almost similar situation in Bhagchand Dagadusa v. Secretary of State [AIR 1927 PC 176 : 54 IA 338, 357] . In that case though a notice had been issued by the plaintiffs under Section 80 CPC on June 26, 1922, the suit was instituted before the expiry of

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the period of two months from the said date. It was contended before the Privy Council, relying on some early decisions of High Court of Bombay, that because one of the reliefs claimed in the suit was the grant of a perpetual injunction and the claim for the said relief would have become infructuous if the plaintiffs were to wait for the statutory period of two months prescribed in Section 80 CPC before they filed the suit, the rigour of the section should be relaxed by implication of a suitable exception or a qualification in respect of a suit for emergent relief, such as one for injunction. That contention did not find favour with the Privy Council and it was held that Section 80 is express, explicit and mandatory and it admits no implications or exceptions. The Judicial Committee observed: “To argue, as the appellants did, that the plaintiffs had a right urgently calling for a remedy, while Section 80 is mere procedure, is fallacious, for Section 80 imposes a statutory and unqualified obligation upon the Court....” This decision was subsequently followed by the Judicial Committee in Vellayan v. Madras Province [AIR 1947 PC 197 : (1946-47) 74 IA 223] . The dictum laid down by the Judicial Committee in Bhagchand Dagadusa v. Secretary of State for India [AIR 1927 PC 176 : 54 IA 338, 357] , was cited with approval and followed by a Bench of five Judges of this Court in Sawai Singhai Nirmal Chand v. Union of India [AIR 1966 SC 1068 : (1966) 1 SCR 986 : 1966 Mah LJ 371] .

6. It must now be regarded as settled law that a suit against the Government or a public officer, to which the requirement of a prior notice under Section 80 CPC is attracted, cannot be validly instituted until the expiration of the period of two months next after the notice in writing has been delivered to the authorities concerned in the manner prescribed for in the section and if filed before the expiry of the said period, the suit has to be dismissed as not maintainable.

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112. In Raghunath Das v. Union of India and another reported in 1968 SCC OnLine SC 199, this Court observed that the object of notice contemplated by Section 80 of the CPC was to give to the concerned Government and public officers, an opportunity to reconsider the legal position and to make amends or settle the claim, if so advised, without litigation.

113. The purpose of law is the advancement of justice. The least that was required in the present case was for the State Authorities to acknowledge the notice issued by the appellants herein and inform them as regards their stance. We make it abundantly clear that the Public Authorities must take statutory notice issued to them in all seriousness. The Public Authorities must not sit over such notices and force the citizens to the vagaries of litigation. They are expected to let the plaintiff know their stand within the statutory period or in any case before he embarks upon the litigation. In certain cases, courts may be obliged to draw adverse presumption against the Public Authorities for not acknowledging the notice or telling the plaintiff of its stand and in the absence of that, a stand taken during the course

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of trial may be considered as an afterthought. This is exactly what has happened in the present case.

114. In view of the foregoing discussion, we should have allowed this appeal and decreed the suit in favour of the appellants herein. We could have directed the State Authorities to put the appellants back in possession. However, it is too late in the day to pass such a decree as it is going to be extremely difficult to give effect to such a decree. The construction stood completed almost thirty years back. It would be too much for this Court to ask the State Authorities to demolish that part of the construction made over the suit land. In such circumstances, we have reached the conclusion that the State must be asked to compensate the appellants in terms of money.

ix. Payment of compensation in cases of resumption of land.

115. In Land Acquisition Officer-cum-R.D.O. v. Mekala Pandu, reported in 2004 SCC OnLine AP 217, a Full Bench comprising of 7 Judges had to be constituted in the High Court of Andhra Pradesh for the purpose of answering the reference – “whether the claimants are entitled to payment of compensation under the provisions of the Land Acquisition Act, 1894 (for short, the Act, 1894”) when the assigned lands are resumed by the Government for a public purpose?”

116. For the sake of clarity, we find it necessary to give a background of how the aforesaid question came to be referred to the High Court in Mekala Pandu (supra). The High Court had the occasion to address the issue of compensation in lieu of assigned lands resumed by the Government initially in State of A.P. and Anr. v. P. Peda Chinnayya & Ors., reported in 1996 SCC OnLine AP 60, wherein it held thus: “Where the Government resorts to the provisions of the Act for acquisition of the patta lands without resorting to the terms of the grant for resumption, it is liable to pay compensation under the Act, but such compensation will be only the market value of the interest of the owner or the assignee of the land, subject to the clog. In such cases of acquisition, the claimant would also be entitled to consequential reliefs, such as those of solatium and interest etc., under the Act. In a case where the patta lands are resumed by the Government, the assignees cannot claim compensation under the Act, but can claim

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compensation equal to the market value of their interest in the land, subject to the clog. In such cases, no solatium may be payable but interest may be claimed on the amount of compensation from the date of dispossession and till the date of payment of compensation. In a case where the assignees are dispossessed from their patta lands without resuming the lands in terms of the grant and/or initiation of proceedings under the Act, the Government may be directed to initiate proceedings under the Act and to pay compensation under the Act as indicated.”

117. The very same issue as above once again was referred to and came up for consideration before another Full Bench of the Andhra Pradesh High Court in State of Andhra Pradesh v. Bondapalli Sanyasi, reported in 2001 SCC OnLine AP 1037. The reference in the matter reads thus: “Furthermore, we are prima facie of the opinion that that part of the law laid down by the judgment of the Full Bench that the plaintiffs would be entitled to the market value together with interest may not be correct, particularly, in view of the fact that the right of assignees of the Government land is subordinate to the State. The lands assigned under such patta are resumable. In that view of the matter, they may not be treated to be owners of the lands so as to claim entire compensation calculated at the market value for acquisition thereof under the Land Acquisition Act.”

118. That is how the matter once again came up for consideration before a larger five Judge Bench in Bondapalli Sanyasi (supra). While answering the reference, the High Court observed and held that: “34. (…) the Full Bench committed error insofar as it held that where patta lands are resumed by the Government, the assignee would be entitled to compensation which would be equal to the market value of their interest in the land subject to the clog. Quantum of damages has to be ascertained having regard to the fact situation of each case. The right of the State to resume land is conditional only to the extent referred to in D-Form patta. Once such conditions are fulfilled, which have been done in the

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instant case, no grant of compensation would be payable towards resumption of land. Compensation may, however, be payable if lands have not been resumed by following due process of law. The act of the State in such cases would be tortuous in nature.”

119. However, the correctness of the view taken in Bondapalli Sanyasi (supra) came to be challenged before a Division Bench, which once again referred the matter to another Bench consisting of five Judges. When the matter was taken up, objections were raised by the Government Pleader inter alia contending that the Division Bench is bound by the decision of the five Judge Bench in Bondapalli Sanyasi (supra) and, therefore, it was not correct to make a Reference to a Bench of five Judges.

120. As a consequence, the Bench of five Judges, having regard to the fact that the subject matter that arose for its consideration was of very great public importance, placed the matter before the Chief Justice for constitution of a larger Bench of seven Judges to resolve the issue in public interest. That is how the matter came to be heard by seven Judges in Mekala Pandu (supra).

121. The question that fell for the consideration in Mekala Pandu (supra) was whether the terms of grant or patta enabling the State to resume the assigned land for a public purpose without paying compensation equivalent to the market value of the land to the assignees, are valid in law. In other words, whether such restrictive conditions or covenants suffer from any constitutional infirmity? Answering the question, the Full Bench (seven Judges) held as under: “81. The State while directing no compensation be paid equivalent to the market value of the assigned lands never took into consideration and had any regard to the length of time the land held by the grantee or assignee, the social objectives for which the assignment had been made by the State in discharge of its constitutional obligation of providing public assistance to the weaker sections of the society, the improvements or developments upon the land made by the assignees on any legitimate expectation of continuance of the assignment, heritable nature of the right under the grant, etc.

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82. The question is whether the ‘no compensation clause’ imposed in the grant of assignment, in effect, requires the assignee to relinquish some constitutional right? Whether the conditions imposed at the time of assignment are “unconstitutional conditions”?

83. The assignees are constitutional claimants. The constitutional claim cannot be subjected to governmental restrictions or sanctions except pursuant to the constitutionally valid rule or law. There is no legislation enacted by the State compelling it to assign the lands to the weaker sections of the society. The State obviously assigned and granted pattas as a measure of providing public assistance to the weaker sections of the society. The proposition is that as a general rule the State may grant privilege upon such conditions as it sees fit to impose; but the power of the State in that regard is not unlimited, and one of the limitations that it may not impose conditions which require the relinquishment of constitutional rights. That whenever State is required to make laws, regulations or policies, it must do so consistently with the directive principles with a view to securing social and economic freedom so essential for establishment of an egalitarian society. The Directive Principles of State Policy reflect the hopes and aspirations of people of this great country. The fact that they are not enforceable by any Court in no manner reduces their importance. They are nevertheless fundamental in the governance of the country and the State is under obligation to apply them in making laws and framing its policies particularly concerning the weaker sections of the society.

84. Dr. Ambedkar characterised the Directive Principles of State Policy enshrined in Part IV of the Constitution of India as “Instruments of Instructions”. He said “whoever captures power will not be free to do what he likes with it. In exercise of it, he will have to respect these “Instruments of instructions”, which are called Directive Principles. He cannot ignore them.”

85. The Directive Principles fix the socio-economic goals, which the State must strive to attain. By incorporating

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unconstitutional clause of ‘no compensation’ the State kept the democles sword suspended over the head of the assignee forever. The State cannot act as a private giver.

86. In Ahmedabad St. Xavier’s College Society v. State of Gujarat, 1974 (1) SCC 717, Mathew, J., expounded the doctrine of ‘unconstitutional condition’: “The doctrine of “unconstitutional condition” means any stipulation imposed upon the grant of a governmental privilege which in effect requires the recipient of the privilege to relinquish some constitutional right. This doctrine takes for granted that ‘the petitioner has no right to be a policeman’ but it emphasizes the right he is conceded to possess by reason of an explicit provision of the Constitution, namely, his right “to talk politics”. The major requirement of the doctrine is that the person complaining of the condition must demonstrate that it is unreasonable in the special sense that it takes away or abridges the exercise of a right protected by an explicit provision of the Constitution.”

87. After referring to the decision in Frost and Frost Trucking Co. v. Railroad Comm., of the Supreme Court of United States (271 US 583), the learned Judge observed: “ ……..though the State may have privileges within its control which it may withhold, it cannot use a grant of those privileges to secure a valid consent to acts which, if imposed upon the grantee in invitum would be beyond its constitutional power.”

88. In Jilubhai Nanbhai Khachar v. State of Gujarat, 1995 Supp.(1) SCC 596, the Supreme Court observed: “Those without land suffer not only from an economic disadvantage, but also a concomitant social disadvantage. In the very nature of things, it is not possible to provide land to all landless persons but that cannot furnish an alibi for not undertaking at all a programme for the redistribution of agricultural land. Agrarian reforms therefore require, inter alia, the reduction of the larger holdings and distribution

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of the excess land according to social and economic considerations. We embarked upon a constitutional era holding forth the promise that we will secure to all citizens justice, social economic and political, equality of status and of opportunity; and, last but not the least, dignity of the individual …….. Indeed, if there is one place in an agriculture dominated society like ours where citizens can hope to have equal justice, it is on the strip of land which they till and love, the land which assures to them dignity of their person by providing to them a near decent means of livelihood.” It is further held: “Property, therefore, accords status. Due to its lack man suffers from economic disadvantages and disabilities to gain social and economic inequality leading to his servitude. Providing facilities and opportunities to hold property furthers the basic structure of egalitarian social order guaranteeing economic and social equality. In other words, it removes disabilities and inequalities, accords status, social and economic and dignity of person ……. Property in a comprehensive term is an essential guarantee to lead full life with human dignity, for, in order that a man may be able to develop himself in a human fashion with full blossom, he needs a certain freedom and a certain security. The economic and social justice, equality of status and dignity of person are assured to him only through property.” (Emphasis is supplied)

89. The purpose of assignment of land either under the Board Standing Orders or under the land reforms legislations to the weaker sections of the society by the State is obviously in pursuance of its policy to empower the weaker sections of the society. Having assigned the land, the State cannot deprive him of the welfare benefit or public assistance. Deprivation of assignee’s right to enjoy the property assigned to him may affect his dignity

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and security. It may adversely affect the equality of status and dignity.

90. It is said that the institution called property guards the troubled boundary between individual man and the State. Even if the assignment granted is considered to be government largess it should not be able to impose any condition on largess that would be invalid if imposed on something other than a “gratuity”. The most clearly defined problem posed by government largess is the way it can be used to apply pressure against the exercise of constitutional rights. A first principle should be that government must have no power to “buy up” rights guaranteed by the Constitution. The forms of largess, which are closely linked to status, must be deemed to be held as of right. These interests should be “vested”. If revocation is necessary, not by reason of the fault of the individual holder, but by reason of overriding demands of public policy, perhaps payment of just compensation would be appropriate. The individual should not bear the entire loss for a remedy primarily intended to benefit the community. The benefits granted are based upon a recognition that misfortune and deprivation are often caused by forces far beyond the control of the individual, such as technological change, variations in demand for goods, depressions, or wars. The aim of these benefits is to preserve the self-sufficiency of the individual, to rehabilitate him where necessary, and to allow him to be a valuable member of a family and a community; in theory they represent part of the individual’s rightful share in the commonwealth. Only by making such benefits into rights can the welfare State achieve its goal of providing a secured minimum basis for individual well- being and dignity in a society where each man cannot be wholly the master of his own destiny.

91. There is an interesting article in Harvard Law Review — Volume 73 — Page 1595: “Conditioning the extension of a governmental benefit or “privilege” upon the surrender of constitutional rights has long appealed to Congress and the State Legislatures

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as a means of regulating private conduct. This appeal is principally attributable to the superficially compelling logic of the arguments upon which the validity of such conditions is supposed to rest. It is contended that if the government may withhold the benefit in the first instance, without giving a reason, it may withhold or revoke the benefit even though its reason for doing so may be the individual’s refusal to surrender his constitutional rights. This argument is often phrased in syllogistic terms; if the Legislature may withhold a particular benefit, it may grant it in a limited form since the greater power of withholding absolutely must necessarily include the lesser power of granting with restrictions. As a corollary to this argument, the contention is made that the recipient of the benefit is not deprived of a right since he may retain it simply by rejecting the proffered benefit. Were this logic accepted in all cases, dangerous consequences would follow. The rapid rise in the number of government regulatory and welfare programs, coupled with the multiplication of government contracts resulting from expanded budgets, has greatly increased the total benefits extended, thus affording the government countless new opportunities to bargain for the surrender of constitutional rights. The potential erosion of fundamental liberties through the use of this bargaining technique has prompted the development of the doctrine of “unconstitutional conditions”. Since the government is under no obligation to grant a benefit, failure to grant may appear to be a positive power to withhold. The arbitrary character of this apparent power seems to justify the withholding or revocation of benefits where the individual fails to comply with conditions requiring the surrender of constitutional rights. But withholding is really a non-exercise of power, and the absence of a requirement that there be constitutional justification for inaction offers no logical support for the positive assertion of an authority to extend benefits and impose conditions which limit the rights of the recipient. In the latter case, the State is asserting its spending power which is limited

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by the due process clause of the fourteenth amendment. The cases limiting State spending power draw a dichotomy between spending for public and for private uses; however, they seem to imply a broader limitation, namely that the fourteenth amendment limits spending to purposes related to the general welfare. Despite the wide discretion this term suggests, it is at least arguable that State spending power cannot be exercised to “ buy up” rights guaranteed by the Constitution. Since federal spending power is explicitly restricted to general welfare purposes, this limitation is even more likely to apply to the national government. Its application to either governmental entity would require the invalidation of conditions unrelated to the achievement of the benefit’s objective since in such cases the spending power is being exercised to encourage, through subsidies the non-assertion of constitutional rights, as well as to finance a “welfare” program. Although the individual deprived of the benefit does not have standing to assert this misuse of the spending power in his capacity as taxpayer, he should have it as a beneficiary, since in that capacity he has suffered as immediate and measurable injury; it is evident that, but for the assertion of the right, he would have received the benefit.”

92. ‘No compensation’ clause which virtually enables the State to withdraw the privilege granted without payment of just compensation is an “unconstitutional condition” imposed by the State adversely affects the life, liberty, equality and dignity guaranteed by the Constitution. The assignment of lands to the exploited and vulnerable sections of the society is neither a formality nor a gratis. The privilege granted is with a view to ensure and protect the rights of the exploited sections of the people to live with human dignity free from exploitation. The privilege or largesse once granted acquires the status of vested interest. The policy to assign the government land by the State was obviously designed to protect the socio-economic status of a vulnerable citizenry; its deprivation would be universally perceived as a misfortune.” (Emphasis supplied)

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