O. Narasimhulu vs The State Of Ap
2021 Latest Caselaw 2004 AP

              HON'BLE SRI JUSTICE U.DURGA PRASAD RAO

                       Writ Petition No.4978 of 2019
ORDER:

The petitioner prays for a mandamus declaring the action of 5th

respondent-Sub-Registrar, Sri Kalahasthi, Chittoor District in failing to

consider the registration of land by the petitioner to third-party on the

ground that as per the letter dated 31.10.2018 of 2nd respondent, the subject

land i.e., Ac.3.48 cents in S.No.171/1 and Ac.1.18 cents in S.No.171/2

totalling Ac.4.66 cents situated in Yerpedu Mandal, Chittoor District was

placed in prohibitory list under Section 22A(1)(a) of the Registration Act,

1908 is illegal and consequently direct the 2nd respondent to delete the

petitioner's land from the prohibitory list.

2. The petitioner's case succinctly is thus:

The petitioner is an Ex-serviceman, enrolled on 29.09.1983 and

served Indian Army as Combatant and was discharged from service

voluntarily on 30.06.2014 with unblemished record. On his application to

4th respondent for allotment of land at Pagali Village under Ex-serviceman

quota, 4th respondent allotted him Ac.3.48 cents in S.No.171/1 and Ac.1.18

cents in S.No.171/2 totalling Ac.4.66 cents in Pagali Village, Yerpedu

Mandal vide DKT Patta No.53/4/1416 dated 28.08.2006 (wrongly

mentioned as 222/4/1418 dated 09.08.2008) in terms of the

G.O.Ms.No.1117 dated 11.11.1993. Ever since the petitioner has been in

possession and enjoyment of the said land and he was issued pattadar

passbook and title deed also.

While so, for his personal needs the petitioner wanted to alienate the

said land and in that regard he approached 5th respondent on 16.03.2019 for

issuing valuation certificate to enable the petitioner to effect the Sale Deed

in favour of third-party. However, the 5th respondent informed him that the

subject land was placed in prohibitory list under Section 22A(1)(a) of the

Registration Act vide letter dated 04.06.2018 issued by 2nd respondent. The

objection of the respondents 2 & 5 is against the G.O.Ms.No.1117,

G.O.Ms.No.307 and G.O.Ms.No.279 whereunder it was made clear that an

Ex-serviceman can alienate his assigned land 10 years after the assignment.

Hence, the writ petition.

3. The 4th respondent filed counter opposing the writ petition inter alia

contending thus:

Originally the land in S.No.130 in an extent of Ac.217.28 cents was

classified as Taka Adavi (UAW) Poramboke as per Fair Adangal of Pagali

Village. Thereafter, the said survey number was split up into Sy.Nos.155 to

188 for eventual assignments. Verification of records shows that the writ

petitioner was granted assignment vide Office DKT Patta 53/4/1416 dated

28.08.2006. Admittedly, the petitioner was discharged from military service

in the year 2014 which implies that he obtained the DKT patta 8 years prior

to the date of his discharge. This is against the procedure laid down in

G.O.Ms.No.743, Revenue Department dated 30.04.1963. As per the said

G.O., the applicant for grant of assignment under Ex-serviceman quota has

to submit an application, which should be routed through Zilla Sainik

Welfare Officer to the District Collector, who has to forward the same to

concerned Tahsildar for taking further action. Further, the application for

grant of assignment has to be submitted within 12 months from the date of

discharge of the Ex-serviceman. However, in the instant case the application

was filed 8 years prior to the discharge of the petitioner and the same was

not routed through the proper channel. Hence, it is clear that the assignment

was made irregularly without following due process of law. On that ground,

permission cannot be granted to the petitioner to alienate the land. Even

otherwise, the assignment made in favour of the petitioner is taken as normal

DKT patta assignment, even then the assignment is not valid because the

petitioner was not a landless poor person and not coming under BPL (below

the poverty line) as he was a military employee during the relevant time.

Hence, on that ground also he was not entitled to get DKT patta which is

liable to be cancelled under BSO 15(18). Considering these aspects the

subject land was kept in prohibitory property list published under Section

22A(1)(a) of the Registration Act. The 4th respondent eventually prayed to

dismiss the writ petition.

4. The 5th respondent also filed counter opposing the writ petition on the

main ground that since the subject property was an assigned land and placed

in the prohibitory list under Section 22A(1)(a) of the Registration Act,

registration was refused.

5. Heard Sri A.M.Krishna, learned counsel for petitioner, and learned

Assistant Government Pleader for Stamps & Registration representing the 1st

respondent, and learned Assistant Government Pleader for Revenue

representing the respondents 2 to 5.

6. During the arguments, both the counsel reiterated their respective

pleadings.

7. The point for consideration is whether there are merits in the writ

petition to allow?

8. Point: The admitted facts in this case are that the petitioner worked in

Indian Army as Combatant between 29.09.1983 and 30.06.2014. It is also

an admitted fact that on his application 4th respondent has granted him the

land of Ac.3.48 cents in S.No.171/1 and Ac.1.18 cents in S.No.171/2

totalling Ac.4.66 cents in Pagali Village, Yerpedu Mandal vide DKT Patta

No.53/4/1416 dated 28.08.2006. It is also an admitted fact that by the time

DKT patta was issued in the year 2006 the petitioner was still in military

service and not discharged. Owing to these facts it is contended by the

Revenue that the subject land was not assigned to him under Ex-serviceman

quota, but it was a regular assignment and therefore, the concession given to

the Ex-serviceman to alienate their respective assigned lands 10 years after

the assignment is not applicable to the petitioner. It is also contended that

the application of the petitioner was not routed through Zilla Sainik Welfare

Officer to the District Collector and then to the Tahsildar for enquiry and

due to all these procedural violations also, patta of the petitioner is liable to

be cancelled. The above argument though apparently sounds laudable,

however, legally it is hollow. As already stated supra, admittedly the

petitioner was in military service by the time the DKT patta was issued to

him. It is not the case of the respondents that the petitioner suppressed the

fact that he was in military service and obtained DKT patta by projecting

himself as a landless poor or as a person below the poverty line. On the

other hand, on the top of the DKT patta, a copy of which is filed along with

material papers, it is written as Ex-serviceman in telugu. It implies that the

petitioner must have applied for assigning land to him and after enquiry

having found that he was in military service, the Revenue Department might

have assigned the land which is earmarked under the quota of Ex-

serviceman. As otherwise, the petitioner being an employee cannot claim

himself as landless poor or as a person below the poverty line. So the

circumstances would show that the petitioner was assigned the land under

the quota of Ex-serviceman in the year 2006. Not only that he was issued

pattadar passbook and title deed, the copies of which are filed along with

material papers. So when once the land was assigned to the petitioner under

the quota of Ex-serviceman, it does not now lie in the mouth of the revenue

to contend that the land was assigned to him while he was in service and

therefore, the assignment cannot be treated as the one for Ex-serviceman. In

similar circumstances, a Division Bench of the common High Court for

Andhra Pradesh, in its order dated 29.08.2018 in W.A.No.1029/2017 while

discarding the argument of the Revenue that the assignment made in favour

of the petitioners was not under Ex-serviceman quota but the same was a

regular assignment, observed thus:

"Once the assignment is admitted, the distinction now sought to be introduced namely, that the assignment made in favour of petitioners 1 and 2 is not under the category of Ex-Servicemen, but DKT assignment, is unacceptable. The reason being, a person either drawing pension or salary does not satisfy the eligibility criteria for assignment of Government land. Therefore, once assignment is made such persons drawing pension means, their cases have been considered under Ex-servicemen quota."

9. The above judgment applies with all its fours to the case on hand.

That being the law, the respondents cannot object the petitioner alienating

his land and 5th respondent cannot refuse to register the document.

10. In the result, this writ petition is allowed as under:

(a) the land to an extent of Ac.3.48 cents in S.No.171/1 and Ac.1.18 cents in S.No.171/2 totalling Ac.4.66 cents situated in Yerpedu Mandal, Chittoor District, assigned to the petitioner shall be treated as an assignment under the category of Ex-serviceman;

(b) the continuation of the subject matter of the writ petition in the prohibitory list maintained and communicated under Section 22A(1)(a) of the Registration Act is illegal and arbitrary;

(c) the respondents 1 to 4 are directed to issue appropriate communication to the petitioner deleting the subject land from the prohibitory list maintained under Section 22A(1)(a) of the Registration Act within eight (8) weeks from the date of receipt of a copy of this order;

(d) If the petitioner presents the document for registration, the 5th respondent is directed to consider the same in accordance with the provisions of the Indian Stamp Act and the Registration Act without reference to the communication or notification received under Section 22A(1)(a) of the Registration Act and take appropriate action as per law.

There shall be no order as to costs. As a sequel, interlocutory

applications pending, if any, shall stand closed.

_________________________ U.DURGA PRASAD RAO, J 16 .06.2021 MVA NOTE:- Issue C.C. by 17.06.2021 (B/o) MVA

THE HON'BLE SRI JUSTICE U.DURGA PRASAD RAO

Writ Petition No.4978 of 2019

16th June, 2021 MVA

C.C by 17.06.2021