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2022 DIGILAW 1209 (AP)

DADI MOHAN TRINATH v. THE STATE OF AP

2022-11-04

RAVI CHEEMALAPATI

body2022
ORDER: 1. This Writ Petition has been filed by the petitioner invoking the jurisdiction of this Court under Article 226 of the Constitution of India for the following relief: “…to issue writ order or direction more particularly one in the nature of writ of Mandamus, declaring the action of the respondents 1 to 4 in including the land in an extent of Ac. 0-54 cents forming part of Acres 350 cents in Sy.No.579/4 of Venkannapalem Village, Chodavaram Mandal, Visakhapatnam District, in the list of prohibitory properties under Section 5(2) of Andhra Pradesh Assigned (Prohibition of Transfers) Act, 1977 and Rules made thereunder at S.No.237 vide list No. Nil dated Nil issued by the respondents 2 to 4 and subsequent proceedings of the 2nd respondent in rejecting the petitioner’s representation for de-notification of land vide proceedings REV-ESECOLND (CC)/6/2018-JA(E7)-VSKPCO dated 11.10.2018 as wholly illegal, arbitrary, whimsical, contrary to the provisions of Andhra Pradesh Assigned (Prohibition of Transfers), Act, 1977, G.O.Ms.No.743 dated 30.04.1963 and G.O.Ms.No.1117/1993 dated 11.11.1993 issued by the 1st respondent besides being violative of the petitioner’s rights guaranteed under Art.14 & 300A of the Constitution of India and consequentially direct the respondents to remove the said land of the petitioner from the list of prohibitory properties under Sec.5(2) of Andhra Pradesh Assigned (Prohibition of Transfers) Act, 1997 and Rules made thereunder and to set aside the proceedings of the 2nd respondent dated 11.10.2018 ..…..….” 2. The case of the petitioner, in brief, is that on a requisition made by his superior during service probably after being demobilized under the category of allotment of vacant cultivated land to serving soldiers, the 1st respondent, in terms of G.O.Ms.No.743 dated 30.04.1963 assigned an extent of Ac.0-54 cents out of Ac.3-50 cents in Sy.No.579/4 of Venkannapalem village, Chodavaram mandal, Visakhapatnam District, to one Jampana Rama Prasada Raju in the year 1999 vide D-Form patta vide D.R.No.165/945 on 18.02.1999 and subsequently he was granted Pattadar passbook and title deed bearing No.323669 vide 1-B khata No.293 on 20.06.1999 by the respondent authorities and he was put in possession and enjoyment of the said land. It is the further case of the petitioner that the said Prasada Raju intended to sell the property and made a representation to the revenue authorities to issue No Objection Certificate and the th respondent-The Tahsildar, Chodavaram, Visakhapatnam District, after considering the said representation issued No Objection Certificate vide proceedings in Dis.No.123/2007 dated 28.03.2007 stating that as more than 10 years have lapsed from the date of granting D-form patta to the Ex-service man, he is entitled to sell the land in terms of the provisions of G.O.Ms.No.1117 of 1993 dated 11.11.1993 issued by the 1st respondent and the said NOC was confirmed by the 3rd respondent vide proceedings L.Dis.No.731/2010/A dated 03.02.2010 and thereafter the said Prasad Raju sold the land assigned to him to Dadi Suri Satyanarayana vide document No.1021 of 2010. The said Satyanarayana gifted the said property to his sister Smt. Thanakala Bhushanam vide document No.1434/2012 dated 22.02.2012 and she was put in possession of the said property. Thereafter, the said Bhushanam sold an extent of Ac.2-00 out of the property covered under the gift deed to three individuals viz., Sri Annamreddy Bhaskara Rao, Sri Vaddadi Siva Prakash and Sri Yallapu Kumar for a valuable consideration of Rs.7,00,000/-. The above three individuals divided the said Ac.2-00 among themselves with mutual consent and an extent of Ac.0-67 was allotted to the share of Sri Vaddadi Siva Prakash and after verification of the documents, the revenue authorities issued pattadar passbook bearing No.679 and his name was also mutated in the revenue records. The above three individuals divided the said Ac.2-00 among themselves with mutual consent and an extent of Ac.0-67 was allotted to the share of Sri Vaddadi Siva Prakash and after verification of the documents, the revenue authorities issued pattadar passbook bearing No.679 and his name was also mutated in the revenue records. It is the further case of the petitioner that he purchased an extent of Ac.0-54 cents out of Ac.0-67 cents for a sale consideration of Rs.3,78,000/-and the said Vaddadi Siva Prakash executed a sale deed on 26.03.2015 and the th petitioner and the said Siva Prakash approached the respondent-Sub Registrar, Chodavaram and presented the document for registration, the 5th respondent informed them that the said document cannot be registered as the property covered under it is in prohibited list and kept the document pending by assigning pending registration number P.47/2015 and the 5th respondent issued proceedings dated 22.11.2017 stating that the land is Government land and it is shown in prohibitory list under Section 22A list of Registration Act, 1908 and the petitioner was informed that the respondents 2 to 4 exercising power under Section 5 of the Andhra Pradesh (Prohibition of Transfer) Act, 1977 has furnished a list of Assigned lands to the Sub Registrars and requested them not to register the said properties and the subject property is listed as item 237 in the said list. It is the further case of the petitioner that he got filed Writ Petition No.44173 of 2018 and this Court disposed of the writ petition by order dated 07.02.2018 granting liberty to him to approach the designated committee for deletion of entries from 22A Register and the committee shall dispose of the claim made within a period of three months. It is the further case of the petitioner that he got filed Writ Petition No.44173 of 2018 and this Court disposed of the writ petition by order dated 07.02.2018 granting liberty to him to approach the designated committee for deletion of entries from 22A Register and the committee shall dispose of the claim made within a period of three months. Pursuantly, the petitioner made a representation to the 2nd respondent, who is the head of the committee, in the month of April,2018 and the 2nd respondent, basing on the report of the 3rd respondent, rejected the request of the petitioner for de-notification vide impugned proceedings dated 11.10.2018 on the flimsy ground that as allotment was made to late Sri J.Rama Prasad Raju while he was in service in the year 1999, who was discharged from service on 31.08.2004 and since the assignment was made to a service soldier, the same cannot be treated as issued under Ex-servicemen category but has to be treated as one granted under land less poor category and thus the Tahsildar has mistakenly given NOC in the year 2007. Aggrieved by the same, the petitioner filed the present writ petition. 3. The 4th respondent-Tahsildar filed counter denying the averments of the writ petition inter alia contending that the subject land was assigned to Jampana Rama Prasad Raju in the year 1999 while he was in service under Service Soldiers category, but not under Ex-servicemen category. The said Jampana Rama Prasad Raju was discharged from service on 31.08.2004. Thus, the assignment of the land given to the said Prasad Raju cannot be treated as an assignment to Ex-serviceman and the same has to be treated as one granted to a landless poor person. The then Tahsildar had mistakenly issued No Objection Certificate as if the assignee was an ex-service man without properly verifying the record. It is further submitted that since the provisions of the G.O.Ms.No.1117 of 1993, dated 11.11.1993 are not applicable to the D-form patta issued to a serving soldier, the subject property has rightly been included in prohibitory sale/transfer list under Section 22-A of the Registration Act. Hence, prayed to dismiss the writ petition. 4. Heard Sri S.V.S.S.Siva Ram, learned counsel for the petitioner, and the learned Assistant Government Pleader for Revenue. 5. Sri S.V.S.S.Siva Ram, learned counsel for the petitioner, in elaboration would submit that, as per the terms of G.O.Ms.No.1117, Revenue (Assignment. Hence, prayed to dismiss the writ petition. 4. Heard Sri S.V.S.S.Siva Ram, learned counsel for the petitioner, and the learned Assistant Government Pleader for Revenue. 5. Sri S.V.S.S.Siva Ram, learned counsel for the petitioner, in elaboration would submit that, as per the terms of G.O.Ms.No.1117, Revenue (Assignment. I) Department, dated 11.11.1993, the beneficiary of the assignment made under ex-servicemen quota is free to sell away the assigned land after lapse of ten years from the date of assignment and as per the terms of G.O.Ms.No.279, Revenue (Assignment. I) Department, dated 04.07.2016, No Objection Certificate is not required to sell assigned lands after ten years from the date of assignment. It is further submitted that a perusal of No Objection Certificate issued by the then Tahsildar, Chodavaram vide Dis.No.123/2007 A-1, dated 28.03.2007 makes it clear that after lapse of 10 years from the date of assignment, the original assignee was issued No Objection Certificate and accordingly the original assignee has sold the land to his vendee. Thus, there is no violation of the conditions of assignment. 6. It is further submitted that BSO 15(11)(2)(ii)(g) specifies that serving soldiers are eligible for assignment and the date of discharge is of no consequence and the ex-serviceman assignee is allowed to sell the land assigned to him. Thus, no distinction can be drawn between the assignment made to ex-servicemen to that of a serving soldier and the assignment made to a serving soldier cannot be treated as an assignment made to a landless poor as observed by the collector in the impugned proceedings. Thus, the action of the respondents in issuing impugned proceedings including the land purchased by the petitioner in prohibitory list under Section 22-A is unsustainable. It is further contended that the material placed on record amply demonstrates that pursuant to the No Objection Certificate issued to the original assignee by the competent authority, multiple registered sale transactions have taken in respect of the land assigned to the original assignee. However, the 2nd respondent-District Collector under misconception that assignment made to a serving soldier does not stand on par with the assignment made to an ex-serviceman and treating it as an assignment to a landless poor person passed the impugned proceedings dated 11.10.2018. Thus, the impugned proceedings are liable to be set aside. Hence, prayed to allow the writ petition. 7. Thus, the impugned proceedings are liable to be set aside. Hence, prayed to allow the writ petition. 7. On the other hand, the learned Assistant Government Pleader for Revenue would submit that since the assignment was made to the assignee while he was in service, the said assignment cannot be treated as issued under ex-servicemen category but to be treated under landless poor category and hence the subject property was included in prohibited property list under section 22-A of the Registration Act, but the then Tahsildar, Chodavaram issued NOC under misconception that assignment was made under ex-servicemen category and thus the sales held pursuant to the NOC is of no consequence and the petitioner cannot get any benefit out of it and thus prayed to dismiss the writ petition. 8. The crux of the contentions of the respondents as well as the basis for passing the impugned orders is that the assignment made to Sri Jampana Rama Prasada Raju was under serving soldier quota and hence the assignment cannot be treated as issued under Ex-servicemen category but to be treated as landless poor category. However, the then Tahsildar, Chodavaram under misconception that the assignment was made under Ex-servicemen quota has issued No Objection Certificate dated 28.03.2007. 9. The facts emanated from the record clearly show that the subject land forms part of the land assigned to one Jampana Rama Prasada Raju while he was in service under D-form patta bearing D.R.No.165/94/A1. As per the No Objection Certificate issued by the then Tahsildar, Chodavaram, the said assignment was made in the year 1993. According to the respondents the assignee was discharged from service on 31.08.2004. In the absence of any material or even an allegation to the effect that the said Prasada Raju was either court martialled or dismissed, it can be safely concluded that he was discharged from service in normal course. 10. As per Board Standing Order-15(11)(2)(ii)(g) even serving soldiers are eligible for assignment. If they were not demobilized in the normal course, but were court martialled or dismissed, land assigned to the soldier shall be resumed to the Government. 11. As per the terms of G.O.Ms.No.743, Revenue (B) Department, dated 30.04.1963 the lands assigned to the Ex-servicemen/serving soldier shall not be sold or otherwise alienated for a period of ten years. Further, G.O.Ms.No.1117, Revenue (Assignment. 11. As per the terms of G.O.Ms.No.743, Revenue (B) Department, dated 30.04.1963 the lands assigned to the Ex-servicemen/serving soldier shall not be sold or otherwise alienated for a period of ten years. Further, G.O.Ms.No.1117, Revenue (Assignment. I) Department, dated 11.11.1993 states that the Ex-servicemen are free to sell away their assigned lands after a period of ten years and further as per G.O.Ms.No.279, Revenue (Assignment. I) Department, dated 04.07.2016 makes it clear that there is no need for obtaining NOC in all cases of assignment of Ex-servicemen in which a period of 10 years has been expired and there is no dispute on the land with the Government. 12. No Objection Certificate issued to Sri Jampana Rama Prasada Raju, original assignee, issued by the then Tahsildar, Chodavaram vide Dis.No.123/2007 dated 28.03.2007 is to the effect that since more than 10 years have lapsed from the date of granting D-form patta to the Ex-serviceman, the assignee is entitled to sell the land in terms of G.O.Ms.No.1117 of 1993, dated 11.11.1993. 13. Thus, the Board Standing Orders coupled with the above G.Os. makes it amply clear that assignment can also be made to serving soldiers and the land so assigned can be alienated after lapse of a period of ten years and the said assignment shall not be treated as one made to a landless poor person. 14. The circular issued by the Chief Commissioner of Land Administration, A.P., Mangalagiri, Guntur District in CCLA’s Lr.No.Assn. I(1)/350/2022, dated 04.05.2022 was placed on record. Vide the said circular, certain guidelines were given regarding assignment to the ex-servicemen/serving soldiers for deletion of lands from the list of prohibited properties notified under Section 22-A(1) of the Registration Act, 1908. 15. Para-6 of the said circular reads as follows: “6. AP Assigned Land (Prohibition of Transfer) Act, 1977 not to apply: It is clarified that in cases of assignment made to an ex-servicemen/serving soldier, it shall be presumed that the assignee ex-servicemen/serving soldier is not a “landless poor person” for the purposes of the AP Assigned Lands (Prohibition of Transfer) Act, 1977. It is reiterated that ex-servicemen/serving soldier will be eligible for the grant of land and extent of Ac.2-50 Cts. Wet land or Ac.5.00 Cts dry land provided that the total extent of land already owned plus the land assigned to him, shall not exceed Ac. It is reiterated that ex-servicemen/serving soldier will be eligible for the grant of land and extent of Ac.2-50 Cts. Wet land or Ac.5.00 Cts dry land provided that the total extent of land already owned plus the land assigned to him, shall not exceed Ac. 2.50 wet or Ac.5.00 dry as per G.O.Ms.No.743 Revenue Dept., dated 30.04.1963. Hence, no assignment made to ex-service men, at any point of time, shall attract the provisions of the AP Assigned Lands (Prohibition of Transfer) Act, 1977. However, reiterated that no alienation of permitted in case of lands assigned to ex-servicemen/serving soldiers within ten years of assignment. All assignments made to ex-servicemen, at whatever point of time were they have been made, shall be alienable Ten years after the date of assignment.” 16. The above circular clarifies that assignment made to ex-service men at any point of time shall not attract the provisions of the AP Assigned Lands (Prohibition of Transfer) Act, 1977 and the said assignment shall not be presumed to be an assignment made to a “landless poor person”. Thus, the observations made in the impugned order that the assignment made to a serving soldier has to be treated as one granted under landless poor category, is unsustainable and the same is contrary to the circular issued by the Chief Commissioner of Land Administration, the Board Standing Order and the Government Orders referred to above. 17. In view of the above, this Court feels it appropriate to set aside the impugned proceeding, give liberty to the petitioner to submit representation afresh and to direct the 2nd respondent to consider the case of the petitioner afresh. 18. Accordingly, the writ petition is allowed in part, setting aside the proceedings dated 11.10.2018 passed by the District collector, Visakhapatnam vide File No.REV-ESECOLND(CC)/6/2018-JA(E7)-VSKPCO. The petitioner is at liberty to make fresh representation in consonance with the earlier representation along with the material in support of his claim within a period of two weeks from the date of receipt of copy of this order. The petitioner is at liberty to make fresh representation in consonance with the earlier representation along with the material in support of his claim within a period of two weeks from the date of receipt of copy of this order. On receipt of such representation, the 2nd respondent-District Collector, Visakhapatnam District is directed to consider the said representation after affording the petitioner an opportunity of being heard and pass appropriate orders taking into consideration the Circular issued by the Officer of the Chief Commissioner of Land Administration, A.P., Mangalagiri, Guntur District dated 04.05.2022 and relevant G.Os., within a period of four (04) weeks thereafter. There shall be no order as to costs. As sequel thereto, miscellaneous petition, if any, pending shall stand closed. Interim orders, if any, shall stand vacated.