Bhamidi Jaya Lakshmi vs The State Of Andhra Pradesh
2022 Latest Caselaw 2354 AP

                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

(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.