HON'BLE SRI JUSTICE R. RAGHUNANDAN RAO
W.P.Nos.37514 of 2018, W.P.No.9270 of 2019
and
W.P.No.880 of 2020
COMMON ORDER:
These three writ petitions have been filed by two persons. As the
issues raised in all the three writ petitions are interconnected they are
being disposed of by this common order. The petitioners and the
respondents in these three writ petitions are referred to as they are
arrayed in W.P.No.37154 of 2018.
2. The husband of the 1st petitioner, who had served in the Indian Air Force, had been allotted Ac.3.00 of land in R.S.No.534/4 of Pathatungapadu Village, Rajanagaram Mandal, East Godavari District, under the Ex-Servicemen quota by way of proceedings in R.Dis.D.3437/2000, dated 08.02.2001. Subsequently, a D-Form patta vide REF(B)677/2000, dated 19.02.2001 was issued by the 6th respondent. Consequently, pattadar passbooks and title deeds were also issued. The husband of the 1st petitioner died on 30.09.2017.
3. The 2nd petitioner, who had served in the Border Security Force had been allotted Ac.2.87 cents in R.S.No.534/3 of Pathatungapadu Village, Rajanagaram Mandal, East Godavari District under the Ex- Servicemen quota by proceedings of the 3rd respondent in R.Dis.D.3437/2000 dated 08.02.2001. D-Form patta was also issued by the 6th respondent vide No.REF(B)677/2000, dated 19.02.2001. Consequently, pattadar passbooks and title deeds were also issued in favour of the 2nd petitioner.
4. The petitioners had taken possession of the said lands and had taken up agricultural activities in the said lands. At that stage, the 7th 2 RRR,J W.P.No.37514 of 2018 W.P.No.9270 of 2019 & W.P.No.880 of 2020 respondent came to the lands of the petitioners, claiming that the Government had granted mining lease to the 7th respondent for 20 years over these lands vide G.O.Ms.No.14 dated 19.02.2013 and executed a lease deed dated 07.08.2013, registered as document No.9020/2013, in favour of the 7th respondent.
5. The enquiries of the petitioners revealed that the said mining lease had been granted to the 7th respondent on the basis of a NOC given by the 6th respondent, assuming the land was still with the government and had not been assigned to anybody. It also transpired that the revenue authorities, without verifying the records, in a mechanical manner, had given the NOC, which resulted in grant of mining lease in favour of the 7th respondent. Aggrieved by the said grant, the petitioners had moved this Court by way of W.P.No.37514 of 2018.
6. After this writ petition had been filed, the revenue authorities took up proceedings to cancel the pattas given in favour of the petitioners. The 2nd respondent issued a show cause notice to the 2nd petitioner to show cause as to why the assignment of land given to the 2nd petitioner should not be cancelled. In reply to this show cause notice, the 2nd petitioner stated that as he had served in the Border Security Force, and would also be eligible for allotment of land under Ex- Servicemen quota as per G.O.Ms.No.931, which specified that even persons who have served in the Border Security Force are to be treated as Ex-Servicemen. The 2nd petitioner also took the plea that G.O.Ms.No.743 dated 30.04.1963 and G.O.Ms.No.681 dated 18.06.1964 would not be applicable to his case. The 2nd respondent had, there upon, cancelled the patta given to the 2nd petitioner by way of proceedings No.REV.ESECOLAS (POT)/1/2019-SA (E5)-CLO-EG, dated 06.06.2019. Aggrieved by the said 3 RRR,J W.P.No.37514 of 2018 W.P.No.9270 of 2019 & W.P.No.880 of 2020 order of cancellation, the 2nd petitioner had filed W.P.No.9270 of 2019 challenging the said order of cancellation.
7. The contention of the 2nd petitioner is that G.O.Ms.No.931 issued by the Karnataka Government classifies the persons serving in the Border Security force also as Ex-Servicemen. The 2nd respondent relied upon a clarification said to have been issued by the Sainik Board on 14.10.2018 without serving a copy of the said clarification on the petitioner. The petitioner contends that the said clarification could not have been relied upon by the 2nd respondent and in any event the said clarification relates to the year 2018 whereas the 2nd petitioner was given patta in the year 2001. The said clarification has neither been given to the 2nd petitioner, while calling for his explanation, nor has it been produced before this court.
8. The 1st petitioner was served with a show cause notice by the 2nd respondent for cancellation of the patta given in favour of her husband. This show cause notice stated that the husband of the 1 st petitioner was not eligible to be given land under the Ex-Servicemen quota as he had worked as a Junior Commissioned Officer and as such he would have to be treated as an officer who is excluded from the eligibility criteria. The 1st petitioner appeared before the 2nd respondent on 19.10.2019 and had given her explanation along with a judgment of the erstwhile High Court of Andhra Pradesh in Lt. R.S. Rebecamma, Ex. MNS vs. Zilla Sainik Welfare Officer, B. Camp, Kurnool and ors.,1. The 2nd respondent without going into any of these issues, cancelled the patta of the husband of the 1st petitioner by proceedings vide Computer No.238657 dated 1 (2004) 6 ALD 329 4 RRR,J W.P.No.37514 of 2018 W.P.No.9270 of 2019 & W.P.No.880 of 2020 02.01.2020. The 1st petitioner assails this order of cancellation in W.P.No.880 of 2020.
9. It is the contention of the 1st petitioner that a learned Single Judge of the erstwhile High Court of Andhra Pradesh in Lt. R.S. Rebecamma, Ex. MNS vs. Zilla Sainik Welfare Officer, B. Camp, Kurnool and ors. had considered the question whether a Junior Commissioned Officer is to be treated as an Ex-Serviceman or he would be treated as an officer who would not be eligible for various benefits and had held that Junior Commissioned Officers cannot be equated with the officers of Armed Forces and that such Junior Commissioned Officers would be eligible for the benefits given to Ex-Servicemen.
10. After receipt of notice, the official respondents have filed their counter affidavits, contending that the pattas granted to the husband of the 1st petitioner and the 2nd petitioner are invalid for the reasons set out above and consequently they are not entitled to object to the allotment of the land in favour of the 7th respondent for mining purpose.
11. The 7th respondent also filed a counter affidavit. He contended that the initial grant of the pattas to the petitioners was invalid. He submits that personnel serving in the border security force are not eligible to the benefits given to ex servicemen. Similarly, junior commissioned officers are not eligible to benefits given to ex servicemen. He states that he had given an application, under the Right to Information Act, to the District Sainik welfare officer, West Godavari regarding this issue and had received a reply , dated 28.10.2017, stating that persons who had served in the Border Security Force are not eligible for the benefits given to ex servicemen. This reply was said to have been given on the basis of a letter, dated 28.06.1976, issued by a deputy secretary of 5 RRR,J W.P.No.37514 of 2018 W.P.No.9270 of 2019 & W.P.No.880 of 2020 the Government of Andhra Pradesh to the Director A.P. Rajya Sainik Board, Hyderabad. However, a perusal of this letter, filed along with the counter affidavit, would show that the letter speaks only about Junior Commissioned Officers not being eligible for these benefits. The 7th Respondent submits that, in view of the grant of mining lease over the said land by way of G.O.Ms.No.14 dated 19.02.2013, the 7th respondent is entitled to undertake mining operations and the same cannot be stalled by the petitioners.
12. Heard Sri Challa Dhanamjaya, learned counsel appearing for the petitioners, learned Government Pleader for Revenue and Sri P. Prabhakar Rao, learned counsel appearing for the 7th respondent.
13. It is clear that the husband of the 1st petitioner and the 2nd petitioner had been allotted land by the revenue authorities and the 7th Respondent was subsequently granted a mining lease over the said property. The A.P. Minor Mineral concession Rules, 1966 stipulate that a mining lease over patta land cannot be given without the consent of the pattadar. It is nobody's case that such consent was obtained. In such circumstances, the grant of the mining lease, in favour of the 7th respondent, would not be permissible. It appears that the official respondents, having recognised this fact, initiated the process of cancellation of the said pattas.
14. The question that arises before this Court is, whether the cancellation of pattas given to the petitioners is valid or invalid.
15. The 2nd petitioner had served in the Border Security Force. It is the case of the respondents that persons, who had served in the Border Security Force cannot be brought under the category of Ex-Servicemen. The petitioner relies upon G.O.Ms.No.931 said to have been issued by the 6 RRR,J W.P.No.37514 of 2018 W.P.No.9270 of 2019 & W.P.No.880 of 2020 Karnataka Government to contend that even the persons who have served in the Border Security Force would be entitled to be treated as an Ex- Servicemen. However, it must be remembered that the G.O., issued by the State of Karnataka would not be applicable to the State of Andhra Pradesh and as such the said G.O., would not come to the assistance of the 2nd petitioner.
16. The respondents rely upon G.O.Ms.No.743, dated 30.04.1963, G.O.Ms.No.681, dated 19.04.1964 and G.O.Ms.No.912 dated 02.08.1985 to contend that the 2nd petitioner is not entitled to the benefits given to the Ex-Servicemen and the Collector can cancel the Patta.
17. The Respondents, including the 7th respondent, took the plea that the District Sainik Board officer had clarified that persons serving in the Border Security Force are not eligible for ex servicemen benefits. However, the said clarification had not been produced before this court. The rehabilitation scheme is by a Government Order of the State government. There is no role for the district Sainik Board officer in the above Government Orders, except to act as a facilitator. The clarification given by the District Sainik Board officer is only an opinion, which has no special weight. Further, this Court, while interpreting a Government Order is not bound by the interpretation given by other authorities.
18. G.O.Ms.No.743 dated 30.04.1963 sets out the policy of the Government for allotment of land to Ex-Servicemen. This G.O., states that all Jawans domiciled in Andhra Pradesh and serving in the defence forces of India, will after demobilization, be eligible for the assignment of land in their own villages or elsewhere. Neither the term "defence force of India" nor the term Jawan, have been defined under this G.O. However, G.O.Ms.No.681 dated 19.04.1964, clarified that the term Jawan used in 7 RRR,J W.P.No.37514 of 2018 W.P.No.9270 of 2019 & W.P.No.880 of 2020 G.O.Ms.No.743 would include non-commissioned ranks of all the three armed services and also non-combatants and would exclude officers. G.O.Ms.No.912 dated 02.08.1985 deals with the power of the collector and does not have any relevance to this case, as the petitioners are challenging the cancellation of pattas on the merits of their case.
19. The Petitioners have produced a circular issued by the Government of India, Ministry of Home Affairs to all the State Governments. In this circular, the central government called upon the State Governments to extend all facilities given to the defence personnel to serving and Ex-BSF personnel also for the purpose of resettlement and rehabilitation. The respondents are seeking to take a highly technical view of the entire matter and cancel the allotment of the land to the 2 nd petitioner on the ground that he is not a member of the armed forces of India. However, it must be remembered that the policy of allotment of land to Ex-Servicemen commenced on the ground that the members of the armed forces, who are guarding the Borders of India require to be given a generous scheme for resettlement and rehabilitation. As the Border Security Force also guards the frontiers of India, both in times of peace and war, the circular issued by the Government of India seeking parity in resettlement and rehabilitation of BSF Jawans, requires to be accepted.
20. In that view of the matter, cancellation of the patta given to the 2nd petitioner cannot be accepted and has to be set aside.
21. As far as the case of the husband of the 1st petitioner is concerned, the patta given to the husband of the 1st petitioner is sought to be cancelled on the ground that the husband of the 1st petitioner had retired from the Air force as a junior commissioned officer and as such, he 8 RRR,J W.P.No.37514 of 2018 W.P.No.9270 of 2019 & W.P.No.880 of 2020 is not eligible for the benefits being extended to Ex-Service Man. In a similar situation a learned Single Judge of this Court in Lt. R.S. Rebecamma, Ex. MNS vs. Zilla Sainik Welfare Officer, B. Camp, Kurnool and ors., considered the eligibility of a former Lieutenant in the military nursing service to be given the benefits given to Ex-Servicemen. The petitioner therein had sought assignment of land in Kurnool District as an Ex-Service person under G.O.Ms.No.743 dated 30.04.1963. The learned Judge after referring to both G.O.Ms.No.743 dated 30.04.1963 and G.O.Ms.No.681 dated 19.04.1964 and after considering the expressions Junior Commissioned Officer, Non-Commissioned Officer and Officer, under the Army Act, 1950, had held that the expression "officer" would relate only to commissioned and gazetted officers in the regular army and junior commissioned officers, Warrant officers, paid officers or non-commissioned officers cannot be treated as officers of the regular army. On the basis of this finding, the learned Single Judge had held that the petitioner therein is entitled for allotment of land as an Ex-Service person. The said ratio would apply squarely to the facts of the present case and the rank of the husband of the 1st petitioner as Junior Commissioned Officer would not exclude him from the benefits available to Ex-Service men under G.O.Ms.No.743 dated 30.04.1963. The letter of the Deputy Secretary, Government of Andhra Pradesh, dated 28.6.1976, excluding non commissioned officers and junior commissioned officers from the benefits of the scheme under G.O.Ms.No.743, dated 30.04.1963, has to be treated as overruled by this judgement of the learned single judge.
22. In the circumstances, the cancellation of the patta granted to the husband of the 1st petitioner is clearly not permissible under law.
9 RRR,J
W.P.No.37514 of 2018
W.P.No.9270 of 2019 &
W.P.No.880 of 2020
23. The allotment of the mining lease in favour of the 7th respondent, when the title to the lands is with the petitioners, is clearly impermissible in law and would have to be set aside.
24. Accordingly all the three writ petitions are allowed setting aside all the proceedings challenged in these writ petitions, including Proceedings No.27455/R2-1/2006, dated 16.10.2016; Proceedings No.REV.ESECOLAS (POT)1/2019-SA (ES)-CLO-EG, dated 06.06.2019; and proceedings vide Computer No.238657 dated 02.01.2020. There shall be no order as to costs.
As a sequel, pending miscellaneous petitions, if any, shall stand, closed.
_________________________ R. RAGHUNANDAN RAO, J.
5th May, 2022 Js.
10 RRR,J
W.P.No.37514 of 2018
W.P.No.9270 of 2019 &
W.P.No.880 of 2020
HON'BLE SRI JUSTICE R. RAGHUNANDAN RAO
W.P.Nos.37514 of 2018, W.P.No.9270 of 2019
and
W.P.No.880 of 2020
5th May, 2022
Js.