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2023 DIGILAW 199 (AP)

Rayachoti Venkatramana v. State of Andhra Pradesh

2023-01-25

NINALA JAYASURYA

body2023
ORDER : 1. Heard Mr. Mahadeva, learned counsel for the petitioner and learned Assistant Government Pleader for Revenue appearing for the respondents. 2. The Writ Petition is filed seeking to declare the proceedings dated 20.08.2022 of the 2nd respondent rejecting the petitioner’s request for ‘No Objection Certificate’ for sale of the land to an extent of Ac. 4.63 cents in Survey No. 716/2 of Valasapalle Village, Madanapalle Mandal, Annamayya District, as illegal, unjust, arbitrary, contrary to Law and to set aside the same and permit the petitioner to alienate the said land taking into consideration that the petitioner is an Ex-service man and pass such other orders as may be just and appropriate. 3. Learned counsel for the petitioner submits that the petitioner is an Ex-service man and served the Nation for about 28 years in the Indian Military Service. He submits that pursuant to the representations/requests made to the concerned revenue-authorities, an extent of Ac. 5.40 cents in S. No. 660/3-1 was assigned to the petitioner vide proceedings dated 25.05.1979 and the possession was delivered to him. He submits that the said land was not fit for cultivation, the petitioner made it cultivable by spending huge amounts. The learned counsel also submits that as the above said land was required for construction of Navodaya Public School, in the year 1987 the petitioner handed over the same to the Government and considering his representations for assignment of alternative land, the subject land of an extent of Ac. 4.63 cents in Survey No. 716/2 of Valasapalle Village, Madanapalle Mandal was assigned to the petitioner on 31.12.1991 by the 4th respondent and possession was handed over to the petitioner. He submits that the petitioner is in continuous possession and enjoyment of the subject land from the date of assignment. 4. Learned counsel for the petitioner further submits that as there was interference by the revenue officials with the above said property, the petitioner was constrained to file O.S. No. 370 of 2007 on the file of the Court of Senior Civil Judge, Madanapalle for declaration of right and title and permanent injunction against the State represented by the District Collector and other revenue officials. He submits that the suit was contested by the defendants therein and by a well considered Judgment, the suit was decreed on 07.12.2012 and that the same has become final as no appeal was preferred. He submits that the suit was contested by the defendants therein and by a well considered Judgment, the suit was decreed on 07.12.2012 and that the same has become final as no appeal was preferred. The learned counsel submits that the petitioner is a senior citizen and was in requirement of money to meet family needs like performance of marriages of children, medical expenses etc. Therefore, he executed Sale Agreements in favour of 3rd parties as Ex-service men are entitled to alienate the land assigned to them, as provided in G.O.Ms. No. 1117 dated 11.11.1993. The counsel submits that as 10 years period stipulated in the G.O. prohibiting alienation of assigned land by an Ex-service man from the date of issuance of D.K.T. patta was expired, and more particularly in the light of the Judgment and Decree in the suit, the petitioner is entitled to sell the subject matter property, but the concerned Sub-Registrar refused to register the Sale Deed. He submits that under the said circumstances, the petitioner earlier filed a W.P. No. 16078 of 2020 and by an Order dated 14.09.2020 in I.A. No. 1 of 2020, a learned Judge issued directions to the 2nd respondent to consider the representation of the petitioner dated 12.07.2020. The learned counsel further submits that as no action was taken pursuant to the said Order dated 14.09.2020, the petitioner was constrained to file C.C. No. 2037 of 2022 and in view of institution of the said case, the Order dated 20.08.2022 impugned in the present Writ Petition was passed with a prejudicial mind. The learned counsel for the petitioner referring to the various findings recorded in the Judgment in O.S. No. 370 of 2007 contends that in the light of the said Judgment and Decree passed by the competent Civil Court on recording evidence and contest by the concerned revenue authorities, the Order passed by the 2nd respondent under challenge is unsustainable and liable to be set aside. 5. 5. Learned Assistant Government Pleader for Revenue, on the other hand while referring to the averments made in the counter-affidavit submits that pursuant to the earlier direction in W.P. No. 16078 of 2020 filed by the petitioner, a notice was issued to the petitioner to attend the enquiry on 30.07.2022 and as the petitioner failed to produce any documentary evidence in support of his claim that the land was assigned under Ex-service men category, the order impugned in the Writ Petition was passed. He submits that after due enquiry and verification of records, the Order under challenge was passed, that too by giving due opportunity to the petitioner and therefore, no relief as sought for may be granted. He submits that the Writ Petition is devoid of merits and liable to be dismissed. 6. Learned counsel for the petitioner in his Reply denies the allegation that the petitioner failed to produce any documentary evidence in support of his claim and contends that the petitioner attended the enquiry on 30.07.2022 and produced the entire material including the said Judgment of the Civil Court referred to supra. Reiterating his earlier submissions, he prays for allowing the Writ Petition. 7. This Court has considered the submissions made and perused the material on record including the Judgment and Decree dated 07.12.2012 in O.S. No. 370 of 2007, wherein Issue No. 1 and additional Issue Nos.1 and 2 framed by the learned Senior Civil Judge reads as follows: “Whether the plaintiff is entitled for permanent injunction as prayed for? Whether the plaint schedule property are the assigned lands to the plaintiff as D.K.T. land, as such, the plaintiff has no right to claim title over the same? Whether the plaintiff is entitled for benefit under G.O. 1117 as Ex-Service man?” 8. Answering the said issues in favour of the petitioner, the learned Judge recorded his findings, which reads thus: “21. Whether this land was assigned to the plaintiff in the capacity of individual or in the capacity of Ex-service man has also to be addressed. Here is no specific pleading in the written statement that this land was assigned to the plaintiff not in the capacity of Ex-service man, though there is an admission in the written statement that the land was assigned to this plaintiff. Here is no specific pleading in the written statement that this land was assigned to the plaintiff not in the capacity of Ex-service man, though there is an admission in the written statement that the land was assigned to this plaintiff. When the plaintiff had claimed in the plaint that as Ex-service, he was assigned with the land, then, it is for the defendants to plead specifically whether it was assigned in the capacity of Defense personnel or in the capacity of individual. Under these circumstances, I am of the opinion that the revenue officials are the best persons to produce the record to show that it was not granted in the capacity of Ex-service man. Since the plaintiff had proved that the he was an Ex-service man, since the defendant had admitted that the land was assigned, then, it can be said that the land was assigned to the plaintiff in the capacity of Defense personnel.” 9. While decreeing the suit by declaring the right and title of the petitioner in respect of the above said extent of Ac. 4.63 cents in Survey No. 716/2 of Valasapalle Village i.e. the suit schedule property and granting consequential permanent injunction against the State and the revenue authorities at Para No. 25, the learned Judge categorically held as follows: “25. When the Government, which is the actual owner of the property assigned the land with a condition that the assignee can sell away the same after ten (10) years, then, subsequent to period of ten (10) years, I am of the opinion that it absolutes vests with assignee. As far as granting of injunction is concerned, as per Section 38 of Specific Relief Act, a person in possession is entitled for a relief of injunction if his possession is interfered without having any right. The written statement filed by the defendants show that they resumed the land, but they failed to prove the resumption. Then, I am of the opinion that it is sufficient to say that there is interference of the defendants with the possession and enjoyment of the plaintiff. Therefore, by virtue of above discussion, I hold that the plaintiff is entitled for declaration of his title and consequential injunction. However, for taking over of the property, it is always for the State under different provisions of law. For that, there is no need to make any endorsement. Therefore, by virtue of above discussion, I hold that the plaintiff is entitled for declaration of his title and consequential injunction. However, for taking over of the property, it is always for the State under different provisions of law. For that, there is no need to make any endorsement. Hence, I answer all these issues in favour of plaintiff.” 10. As seen from the appendix of evidence, it would appear that the original D-Form patta was marked as Ex.A11 and the Certificate showing that original patta is with Primary Agricultural Co-operative Society is marked as Ex.A13, apart from Ex.A12 - Award given by the President of India to the plaintiff. In the light of the said documentary evidence and the Judgment of the learned Senior Civil Judge recording categorical findings in favour of the petitioner, which have become final, as admittedly no appeal was preferred by the State/revenue authorities against the said judgment, this Court finds merit in the submissions made by the learned counsel for the petitioner in support of the petitioner’s claim in respect of the subject matter property. However, there is a factual controversy with regard to submission of the relevant material before the 2nd respondent while availing opportunity of hearing afforded to the petitioner by him. While, the learned Assistant Government Pleader contends that the petitioner failed to prove his claim by placing cogent material/documents, the learned counsel for the petitioner submits that relevant documents including the above said Judgment of the competent Civil Court was produced before the 2nd respondent, but he failed to take the same into consideration. 11. Under the said circumstances, more particularly in the light of the material available on record to meet the ends of justice, this Court deems it appropriate to direct the 2nd respondent to consider the case of the petitioner afresh, by duly taking into consideration the relevant documents including the Judgment and Decree in O.S. No. 370 of 2007 on the file of the Court of Senior Civil Judge, Madanapalle. 12. Accordingly, the Order dated 20.08.2022 is set aside and the matter is remanded back to the 2nd respondent for conducting enquiry and passing appropriate orders, within a period of six (6) weeks from the date of receipt of a copy of this Order, after taking into account the documents/material produced/to be submitted by the petitioner. 12. Accordingly, the Order dated 20.08.2022 is set aside and the matter is remanded back to the 2nd respondent for conducting enquiry and passing appropriate orders, within a period of six (6) weeks from the date of receipt of a copy of this Order, after taking into account the documents/material produced/to be submitted by the petitioner. The 2nd respondent shall also give an opportunity of personal hearing to the petitioner before passing orders as indicated above. 13. The Writ Petition is allowed, with the above directions. There shall be no order as to costs. 14. As a sequel, pending miscellaneous petitions, if any, shall stand closed.