Smt. Vemana Rathnamma, Kadapa ... vs The District Collector, Chittoor ...
2022 Latest Caselaw 5274 AP

        HON'BLE SRI JUSTICE D.V.S.S.SOMAYAJULU


                      W.P.No.6923 of 2019
                               And
                      W.P.No.2507 of 2006
COMMON ORDER :


      This writ petition is filed questioning the action of the

respondents in particular respondent No.4 in directing the

petitioners to hand over their bits of land in Sy.No.471/1,

Avilala Village, Tirupathi pursuant to the proceedings dated

07.01.2006 of the 3rd respondent and for other reliefs.

This Court has heard Sri L.J.Veera Reddy, learned counsel

for the petitioners and the learned Government Pleader for

Revenue for the respondents.

The 10 petitioners before this Court are the purchasers of

small bits of land which were acquired over a period of time.

Their vendor has purchased the property on 20.06.2001 from

V.Krishnamurthy Nainar and others. It is stated in the writ

affidavit that the land measuring Ac.4.34 cents in Sy.No.471/1

was assigned to Sri V.Govindaswami by a patta dated

22.01.1968. The said V.Govindaswami was enjoying the land

and raising crops till his death on 10.12.1976. Thereafter, by

virtue of consensus among three legal heirs, who gave their No

Objection Certificate, the entire extent of Ac.4.34 cents was

assigned to V.Krishnamurthy Nainar on 10.07.1992 with

retrospective effect from 10.12.1976 under the 'ex-servicemen

quota'. As there was a transfer of the assigned land in the form

of house sites, department took action and W.P.No.2507 of 2006

was filed. This writ petition was pending till 30.10.2006, when

it was dismissed for default. Learned counsel submits that the

petitioners were promised by the writ petitioner in W.P.No.2507

of 2006 that the case was pending and therefore, they did not

take action on their own. When they realized that the writ

petition was dismissed for default, the present writ petition had

to be filed. Learned counsel also submits that the

allotment of land in the name of V.Krishnamurthy Nainar under

the ex-servicemen quota with retrospective effect would cover

the GPA executed on 29.06.2000 and the sale deed of the vendor

in 2001. Learned counsel therefore submits that the sale deeds

executed in 2003 and 2004 are valid documents since the

allotment under ex-servicemen quota is with retrospective effect.

Learned counsel points out that the wife of the original allottee

sold Ac.0.65 cents of land and the rest of the land was not sold.

Therefore, he questions the cancellation of the entire

assignment. Latter, he also points out that the Tahsildar

assigned the entire land in favour of V.Krishnamurthy Nainar

under the ex-servicemen quota. Therefore, learned counsel

points out that the entire action taken by the respondents and

in particular, the order dated 07.01.2006 of the 3rd respondent

by which the order dated 27.07.2005 of the 4th respondent was

confirmed is totally incorrect and contrary to law. Learned

counsel points out that the petitioners are innocent purchasers

of the value and that they cannot be penalized by the

respondent-State. He also points out that contradictory orders

are being passed by the respondents.

In reply to this, learned Government Pleader highlights

that the issue has been pending since 1987 when the first sale

by the wife of V.Govindaswami was noticed. He contends that

assigned land cannot be sold. Learned counsel points out that

thereafter continuous action was taken by the respondent-State

including the two orders which are impugned directly at present

namely the order dated 27.07.2005 which was confirmed on

07.01.2006. Learned Government Pleader points out that the

assignment of land in the name of V.Govindaswami was a

normal assignment of land to a landless poor person. The land

was therefore heritable and could not be transferred. The three

children of Govindaswami could only inherit the land. It is

pointed out that the allotment was wrongly made to one son by

name V.Krishnamurthy Nainar under the ex-servicemen quota

and that too with retrospective effect. It is pointed out that both

of these are incorrect as Krishnamurthy Nainar is not an eligible

ex-servicemen and the allotment is not made as per the relevant

G.O. applicable. It is also stated that there is no power vested in

the Mandal Revenue Officer to grant assignment with

retrospective effect. Learned Government Pleader points out

that the petitioners are aware of the pendency of W.P.No.2507 of

2006 which is filed by their vendor as can be seen from the writ

affidavit itself and in particular paras 5 to 7. It is also pointed

out that as can be seen from para 6, some of the petitioners filed

W.P.No.27085 of 2014 requesting the Government to consider

the recommendation made by respondent Nos.2 and 3 for

regularization by payment of market value. This is according to

the order dated 06.08.2013 passed by the Revenue Divisional

Officer. Therefore, learned Government Pleader submits that the

entire theory of the vendor stating that W.P.No.2507 of 2006 is

pending etc., is incorrect and that it is only an excuse invented

to get over the dismissal order of the said writ petition. He also

submits with great force that the allotment made to

V.Krishnamurthy Nainar is totally illegal and that he does not

fulfill the pre-requisite for being allotted the land under the ex-

servicemen quota. He relies upon G.O.Ms.No.743 dated

30.04.1963 for this submission.

At the request of this Court, the original file was also

produced and with the consent of the counsels, a Xerox copy of

the file is retained. Copies of the file are with the learned

counsels. The Government Pleader points out that a perusal of

the file shows that Govindaswami was issued a patta under the

regular DKT provisions only and that Krishnamurthy Nainar

was discharged from army service in December, 1950.

G.O.Ms.No.743 for allotment of sites under ex-servicemen quota

was issued on 30.04.1963 and it contained a methodology for

allotment of sites. It is pointed out that clauses 7 and 8 of this

G.O. in particular have not been fulfilled by Krishnamurthy

Nainar.

In reply to this issue, Sri Veera Reddy submits that from a

reading of the file and in particular, the letter of the Mandal

Revenue Officer, Tirupathi dated 06.01.1988, makes it clear that

(a) Krishnamurthy Nainar is an ex-serviceman and after his

discharge from the military service, he was working in the

survey of land records department till September 1987. (b) Since

1964, he has been applying for assignment of land as ex-

serviceman. Relying on this, learned counsel submits that the

contention of the learned Government Pleader that

Krishnamurthy Nainar is not entitled to such allotment is not

correct.

After considering the submissions, this Court opines that

the crux of the question is that whether the land was validly

allotted to V.Krishnamurthy Nainar under the category of ex-

servicemen. If this is held to be so, he could sell the land to

others after expiry of the time fixed as per the relevant

Government Order.

As can be seen from the documents which are mentioned

in the counter filed and the file produced, the original allotment

to Govindaswami was a regular allotment under G.O.Ms.No.114

subject to the darakasth rules only. Therefore, this is a normal

DKT patta that is issued to Govindaswami. The land is therefore

heritable and cannot be transferred. This is as per the settled

law on the subject and the conditions of allotment. As far as his

son Krishnamurthy Nainar is concerned, it is admitted that the

father Govindaswami died in 1976. The allotment of land in the

name of the son 'Krishnamurthy Nainar' is on 10.07.1992. It is

given with retrospective effect and under the ex-servicemen

quota with effect from 1976. Despite the long arguments that

were advanced and the objection raised by the Revenue, it is not

pointed out as to how the land could be granted to

Krishnamurthy Nainar with 'retrospective effect' from

10.12.1976. Neither a legal ruling nor a statutory provision is

pointed out to justify this grant with retrospective effect.

Apart from this, the issue that Krishnamurthy Nainar was

not allotted the land under the ex-servicemen quota is an issue

that is figured in all the orders mentioned above. In the order

dated 07.01.2006, it is mentioned that ex-serviceman is not an

inscribed status, it is achieved status. It is also specifically

mentioned that the Mandal Revenue Officer, for the reasons best

known to him, has mentioned that Krishnamurthy is an ex-

serviceman in terms of G.O.Ms.No.743 dated 30.04.1963.

Similarly, in the order dated 27.07.2005 of the Mandal Revenue

Officer also in sub-para 8 of page 2, it is clearly mentioned that

Krishnamurthy Nainar was not assigned the land under the

provisions of ex-servicemen quota. Even the same is mentioned

in page 14 para 9 of this order, wherein the explanation of Sri

V.Krishnamurthy Nainar was considered. It is clearly mentioned

that the assignment is never been made to Krishnamurthy

under the ex-servicemen quota.

Under G.O.Ms.No.743 dated 30.04.1963 for the welfare of

personnel of armed forces and their dependents assignment of

agricultural land was commenced, particularly the assignment

lands to families of jawans, who laid down their lives and who

are otherwise eligible. As per this Government Oder, the

application for assignment of land under the rule should clearly

give the details of the land and should be routed through the

Secretary, State Soldiers, Sailors and Airmen's Board. The

application should be certified by the Officer under the Regiment

in which the jawan is serving. The application should also be

made within 12 months from the date of discharge or in case of

death, from the date of intimation of the death. The Government

Pleader in the course of his argument has produced the G.O.

and relied upon the same, which is also referred to in the

proceedings dated 10.07.1992 by which the property was

assigned with retrospective effect in the name of

V.Krishnamurthy Nainar. This Court finds that there is

absolutely no documentary evidence to show that this procedure

was in fact followed.

The law on the subject is very clear. Whenever land is to

be allotted under any ground, contrary to normal rule of land

transfer by the Government, it should be strictly in public

interest and in accordance with the relevant criteria or the rule.

The Government or any other authority cannot act arbitrarily or

at its own sweet will. New India Public School v. HUDA1,

Union of India v. Jain Sabha2 Akhil Bharatiya Upbhokta

Congress v. State of Madhya Pradesh3 and State of Odisha

(1996) 5 SCC 510

(1997) 1 SCC 164 3 (2011) 5 SCC 29

v. Pratima Mohanty4 are some of the many judgments on this

issue.

Para 27 of Pratima Mohanty (4 supra) is reproduced

hereunder:

"27. When a democratic government in exercise of its discretion selects the recipients for its largess, then discretion should be exercised objectively, rationally, intelligibly, fairly and in a non-arbitrary manner and it should not be subjective and according to the private opinion and/or the whims and fancies of the persons in power and/or the public servants. Even if guidelines are issued to be followed while allotment of the plots under the discretionary quota and it is found that many a time they are hardly followed or are manipulated to suit the particular circumstances. Therefore, the best thing is to do away with such discretionary quota and allotments of the public properties/plots must be through public auction by and large. Even in the case where the policy decision is taken to allot the plots to a particular class - downtrodden class etc. in that case also the guidelines must be strictly followed and as observed hereinabove the allotment must reflect the fair play and non-arbitrariness and should have objective, criteria/procedure. (emphasis supplied)

This Court on an examination of the writ affidavit and after

considering the submissions, does not find that the petitioner

relies upon any such material which would show that

G.O.Ms.No.743 was in fact correctly and scrupulously followed.

The files produced show that Krishnamurthy was discharged on

14.12.1956 itself as he was found medically unfit for further

2021 SCC Online 1222

service. His discharge is thus much before G.O.Ms.No.743 was

issued.

Learned counsel for the petitioner relied upon letter

addressed by the Mandal Revenue Officer to the Collector stating

that since 1964, Krishnamurthy Nainar has been applying for

allotment of land under the ex-servicemen quota and the matter

is pending finalization. This letter is dated 06.01.1988.

Unfortunately, in the order dated 10.07.1992 assigning the land

retrospectively to Krishnamurthy Nainar, there is no reference to

the 'application' said to have been submitted or the approval of

the Revenue Authorities for the same. Even by 1998, some

correspondence is pending with the Board of Revenue only. The

proceedings of the Mandal Revenue Officer Tirupathi dated

10.07.1992 only refer to the objection given by Krishnamurthy

Nainar on 15.10.1991 and the consent letters given on

18.06.1992 by the two other legal heirs of late Govindaswami.

The letters under reference do not quote any application made in

terms of G.O.Ms.No.743 to the Tahsildar in terms of clauses 7

and 8. Once the procedure is stipulated by law, it must be

followed. All actions must conform to the rule position.

Therefore, this Court has to hold that the original allotment

dated 10.07.1992 itself is contrary to law. In addition, the

power of the Mandal Revenue Officer to issue such an allotment

with retrospective effect is also not spelt out anywhere. It is not

supported by any rule or law.

Lastly, this Court also notices the proceedings dated

06.08.2013 issued by the Revenue Divisional Officer, Tirupathi

upholding the allotment of Ac.4.34 cents and the findings

therein. The petitioners therein (including the present writ

petitioners who impleaded themselves) were given an option to

request the Government to regularize the land purchased by

them as per G.O.Ms.No.166 or for market value. It is admitted

in the writ affidavit itself that pursuant to this order, the writ

petitioners filed W.P.No.27085 of 2014 seeking regularization by

payment of market value. Since the petitioners have already

been party to the order of 06.08.2013 by impleading themselves

and as they have already sought a direction to the Government

to consider the recommendation made in this order, this Court

is of the opinion that the writ petitioners cannot now file the

present writ petition and question the order dated 07.01.2006.

The prayer made in W.P.No.27085 of 2014 is to consider the

recommendation made to the Government in the order dated

06.08.2013 and its further recommendation dated 08.11.2013

and 31.12.2013. They clearly want their sales to be 'regularized'

and to 'allot' the sites on fixation of market value. Therefore,

having adopted a particular stand they cannot turn around now

to pray to the contrary. They are clearly estopped by their

conduct. Land is also said to be vacant and unoccupied except

for one house and thus even the possession of the present

petitioners is seriously doubted.

Therefore, for all the above reasons, this Court is of the

opinion that the petitioners have not made out a case for

interference. The writ petition is accordingly dismissed.

In W.P.No.2507 of 2006, the factual situation is the same.

The first petitioner has acquired Ac.1.25 cents of land out of the

total Ac.4.34 cents. She sold the plots of land to petitioners 2 to

8. Therefore, the first petitioner and others claim title through

V.Krishnamurthy Nainar. It is asserted that Krishnamurthy

Nainar is allotted the land under the ex-servicemen quota with

retrospective effect.

In the counter affidavit filed on behalf of the respondents,

it is very clearly stated that the said allotment of land is not

under ex-servicemen quota and that Krishnamurthy Nainar

cannot sell the land which was assigned to him. It is clearly

pleaded that the allotment made in favour of Krishnamurthy

Nairnar with retrospective effect is without any statutory power.

It is clearly stated that there is no rule to assign any

Government land with retrospective effect.

Since the issues of law and fact are the same, in view of

the order pronounced in WP.No.6923 of 2019, this writ petition

is also dismissed. No order as to costs. As a sequel, the

miscellaneous petitions if any shall stand dismissed.

________________________ D.V.S.S.SOMAYAJULU,J

Date: 18.08.2022 KLP