Andhra Pradesh High Court - Amravati
K.Narayana Swamy, vs The State Of Ap on 16 September, 2021
Author: M.Ganga Rao
Bench: M.Ganga Rao
THE HON'BLE SRI JUSTICE M.GANGA RAO
Writ Petition No. 4297 of 2019
ORDER:
This writ petition is filed to issue a Writ of Mandamus declaring the Endorsement made by the 3rd respondent dated 31.10.2018, as illegal and in contravention of G.O.Ms.No.1117, Revenue (Assignments-I) Department, dated 11.11.1993, G.O.Ms.No.307, Revenue (Assignments-I) Department, dated 06.06.2013 and G.O.Ms.No.279, Revenue (Assn.I) Department, dated 04.07.2016 and consequently to direct the respondents 1 to 5 to delete the land owned by the petitioner to an extent of Ac.5.00 cents situated in Sy.Nos.172-2 and 172-4 of Pogali Village, Yerpedu Mandal, Chittoor District from the prohibited list published under Section 22-A(1)(a) of the Registration Act, 1908 (for short 'the Act').
2. The case of the petitioner is that he was an Ex-serviceman. On 28.08.2006, the land to an extent of Ac.5.00 cents in Survey Nos.172-2 and 172-4 of Pogali Village, Yerpadu Mandal, Chittoor District was assigned in his favour by the 5th respondent - Tahsildar, Yerpadu Mandal, Chittoor District. He was also issued pattadar passbook and title deed under the provisions of the Andhra Pradesh Rights in Land and Pattadar Pass Books Act, 1971 and the Rules made thereunder. Since then, he has been in possession and 2 enjoyment of the same. Due to old age, he could not able to cultivate the land and he is in need of money to meet the medical expenses of his mother and education of his children. When he enquired with the registration authorities with an intention to sell away his land about the market value of the land and stamp duty required, he was informed by the registration authorities that the land is included in the prohibited property list maintained under Section 22-A(1)(a) of the Act and there is a prohibition to register the land. Then, he made Mee-Seva application along with other ryots of Pogali village seeking deletion of land to an extent of Ac.5.00 cents situated in Sy.Nos.172-2 and 172-4 of Pogali Village from the prohibited property list. On the report submitted by the 4th respondent - Revenue Divisional Officer, Tirupati, Chittoor District, the 3rd respondent while referring to the Circular instructions issued by the Chief Commissioner of Land Administration and the Commissioner and IG, Stamps & Registration, rejected the petitioner's application stating that the Revenue Divisional Officer, Tirupati and the Tahsildar, Tirupati Rural have reported that as per Fair Adangal of Pagali Village, the land to an extent of Ac.217.28 cents situated in Survey No.130 of Pagali Village is classified as 'Taka Adavi (UAW)'. The subject land got sub-divided from Survey Nos.155 to 188 for eventual assignments. On verification, the land to an extent Ac.4.71 cents situated in Survey No.169 of Pagali Village was assigned to 3 K.Subramanyam S/o.K.Kuppuswamy vide DKT No.495/4/ 1417 dated 07.12.2007 as Serving Soldier discharged on 31.03.1993. The petitioner was assigned land to an extent of Ac.4.52 cents situated in Survey No.172 of Pagali village vide DKT No.50/4/1416 dated 28.08.2016 under the category of 'Ex-Serviceman' discharged on 07.12.1983. Sri K.Subramanyam was assigned land while in service and assignment was made in favour of petitioner after 25 years of discharge from service. Hence, the Tahsildar, Yerpedu has construed that both the assignments were granted under normal DKT rules. Therefore, the application of the petitioner was rejected. Finally, the Tahsildar, Yerpedu and the Revenue Divisional Officer, Tirupati have recommended to include the subject lands in the lists prepared and proposed for notification under Section 22-A(1)(a) of the Act. The application of the petitioner was rejected stating that deletion of land from the list does not arise. Being aggrieved by the rejection of his application insofar as land extent Ac.5.00 cents situated in Sy.Nos.172-2 and 172-4 of Pogali Village, Yerpedu Mandal, Chittoor District, the petitioner filed this writ petition.
3. Sri N.Subba Rao, learned counsel for the petitioner, would contend that the petitioner was assigned land to an extent of Ac.2.06 cents situated in Survey No.172-2 and Ac.2.94 cents situated in Survey No.172-4 of Pagali Village, Yerpedu Mandal vide DKT Patta No.50/4/1416 dated 4 28.08.2006 duly endorsing on the patta that the assignment was made to an Ex-Serviceman. The assignment was made to the petitioner on the recommendation of the Sainik Welfare Department, Government of Andhra Pradesh vide proceedings dated 19.06.2006. He was also issued pattadar passbook and title deed and since then he has been in possession and enjoyment of the subject land. Now, the land being assigned under the category of 'Ex-Serviceman' and he is in need of money to meet the medical expenses of his mother and for education of his children, he intended to sell away the land. He would further contend that inclusion of the subject land in the prohibited property list under Section 22-A(1)(a) of the Act is illegal, arbitrary and contrary to the provisions of Section 22-A(1)(a) of the Act. The application of the petitioner for deletion of the land from the prohibited property list has been illegally rejected on the ground that the land was assigned to the petitioner after 23 years of discharge from the Army service and the assignment shall be presumed as general assignment and the same could not be alienated in view of the prohibition of sale of assigned lands.
4. Per contra, learned Assistant Government Pleader for Revenue referring to the impugned Endorsement dated 31.10.2018 states that the 3rd respondent based on the report submitted by the Revenue Divisional Officer, Tirupati and the Tahsildar, Tirupati Rural stating that the land was assigned to the petitioner after 23 years of his retirement and the 5 assignment shall be presumed to be made under general assignment rules but not under quota of 'Ex-Serviceman'. The respondent authorities rightly presumed that the land was assigned to the petitioner under general DKT rules based on the evidence available on record. The petitioner failed to prove the contrary by adducing evidence. The land assigned to the petitioner was given under terms and conditions of general DKT patta. Hence, the land assigned is inalienable and not transferable as per the provisions of Section 3 of the Andhra Pradesh Assigned Lands (Prohibition of Transfers) Act, 1977 and the Rules made thereunder and as per Board Standing Order 15. Hence, the contention of the learned counsel for the petitioner that the petitioner can alienate the land assigned to him after expiry of 10 years as there no prohibition as per G.O.Ms.No.1117 dated 11.11.1993, G.O.Ms.No.307 dated 06.06.2013 and G.O.Ms.No.279 dated 04.07.2016, is untenable as the said Government Orders are not applicable to the case of the petitioner.
5. Having considered the facts and circumstances of the case and considering the submissions of the learned counsel, and on perusal of the record, this Court found that the petitioner was assigned land to an extent of Ac.2.06 cents situated in Survey No.172-2 and Ac.2.94 cents situated in Survey No.172-4 of Pagali Village, Yerpedu Mandal vide DKT Patta No.50/4/1416 dated 28.08.2006 duly making an endorsement on the patta that the land was assigned to an 6 Ex-Serviceman on the recommendation made by the Sainik Welfare Department, Government of Andhra Pradesh vide proceedings dated 19.06.2006. In the absence of any maximum period of time prescribed for assignment of land to Ex-servicemen, within such period assignment shall be made, merely on the ground that the assignment was made after 23 years of retirement from the Army service could not be said to be that the land was assigned under general terms and conditions of DKT patta and that the assigned land is prohibited from alienation.
6. The presumption of the respondent authorities that the land was assigned under general assignment rules like that of land assigned to landless poor person, is unsustainable and such hypothecated presumption is not supported by any provision of law. Hence, this Court came to the conclusion that the assignment was made to the petitioner under Ex- Serviceman category. In view of G.O.Ms.No.1117 dated 11.11.1993, the Ex-servicemen are free to sell away the assigned land after expiry of 10 years period of assignment and as per G.O.Ms.No.279 dated 04.07.2016, there is no necessity to obtain NOC in cases of assignment of land given to Ex-Servicemen and Freedom Fighters after expiry of 10 years period. As such, the prohibition contained under general DKT rules is not applicable to the case of the petitioner and inclusion of the petitioner's land in the 7 prohibited property list maintained under Section 22-A(1)(a) of the Act is illegal and arbitrary.
7. Accordingly, the Writ Petition is allowed setting aside the impugned Endorsement dated 31.10.2018. The respondents are directed to delete the land owned by the petitioner to an extent of Ac.5.00 cents situated in Sy.Nos.172-2 and 172-4 of Pogali Village, Yerpedu Mandal, Chittoor District from the prohibited property list maintained under Section 22-A(1)(a) of the Act. On such deletion, the 6th respondent - Sub-Registrar, Srikalahasti, Chittoor District is directed to receive the document to be submitted by the petitioner in respect of the subject land and process the same as per the provisions of the Act, if it is otherwise in order. No order as to costs.
8. Miscellaneous Petitions, if any, pending in this writ petition shall stand closed.
___________________________ JUSTICE M.GANGA RAO 16-09-2021 anr 8 THE HON'BLE SRI JUSTICE M.GANGA RAO Writ Petition No. 4297 of 2019 16-09-2021 anr