Andhra Pradesh High Court - Amravati
The State Of Ap vs Kancherla Yashodha on 29 August, 2019
Author: C. Praveen Kumar
Bench: C.Praveen Kumar, M.Satyanarayana Murthy
THE HON'BLE THE ACTING CHIEF JUSTICE C. PRAVEEN KUMAR
AND
THE HON'BLE SRI JUSTICE M. SATYANARAYANA MURTHY
WRIT APPEAL No. 147 of 2019
JUDGMENT:{Per the Hon'ble the Acting Chief Justice C. Praveen Kumar} This appeal, under Clause 15 of the Letters Patent, is preferred, assailing the order in Writ Petition No.1135 of 2019, dated 29.03.2019, wherein a learned single Judge of this Court held that continuation of subject matter of the writ petition in the prohibitory list, maintained and communicated under Section 22-A of the Indian Registration Act, 1908 (for short "the Act"), is illegal and arbitrary and, consequently, directed the 5th respondent to process registration of the document that is presented by the writ petitioner and her vendee in respect of the subject lands and register the same, if it is otherwise in order.
2. In order to appreciate the arguments advanced by the learned Government Pleader, it would be necessary to refer to the facts in issue.
The writ petitioner is the wife of the deceased ex-serviceman. The 4th respondent allotted her husband Acs.3.00 of land in Sy.No.459/3, Ac.1.26 cents in Sy.No.462/1, and Ac.0.48 cents in Sy.No.463/2 situated at Pallam Village, Yerpedu Mandal, Chittoor District. This allotment was made vide DKT patta No.292/4/1415, dated 10.08.2005. Long thereafter, the writ petitioner is said to have executed a Sale Deed in favour of the 6th respondent on 25.01.2019 and, consequent thereto, she approached the 5th respondent for furnishing valuation of the said land so as to enable 2 HACJ & MSM,J W.A.No.147 of 2019 her to register the document after paying necessary stamp duty. Annexure-II, dated 25.01.2019, came to be issued by the 5th respondent stating that the lands referred to above are in prohibitory list under Section 22 (1)(A) of the Act, vide District Collector's Orders, dated 04.06.2018. It is averred in the writ affidavit that inclusion of the property in the said prohibited list is contrary to the terms of G.O.Ms.No.1117, dated 11.11.1993, whereunder the Government directed to continue G.O.Ms.No.743, dated 30.04.1963, with certain conditions specified therein. It is further pleaded that as per the said G.O., an ex-serviceman is eligible for assignment of either Acs.2.50 cents of went land or Acs.5.00 of dry land and that the total land to be assigned should not exceed the said extents. The G.O. further postulates that the ex-servicemen cannot alienate the land for a period of ten years. As the period of ten years stipulated in the G.O. has expired, the writ petitioner would submit that she is entitled to sell the said land.
3. It is also to be noted here that as per G.O.Ms.No.279, dated 04.07.2016, which is issued in supercession of G.O.Ms.No.307, dated 06.06.2013, the procedure for issuing No Objection Certificate (NOC) is dispensed with and there is no need for obtaining NOC in all cases of assignments made to ex-servicemen and freedom fighters in which the period of ten years has expired and when there is no dispute on the land with the Government. It is further pleaded that G.O.Ms.No.279, dated 04.07.2016, states that in all such cases, the assigned lands included in the prohibitory list shall be deleted and such list deleting the lands shall be furnished to the Registration Department. The action of 3 HACJ & MSM,J W.A.No.147 of 2019 the respondent officials is sought to be challenged by way of seeking a writ of mandamus, declaring the inaction of the 5th respondent in considering the registration of the land by refusing to accept the documents executed by the petitioner in favour of the 6th respondent in respect of the lands referred to above, as illegal and arbitrary.
4. After hearing the Government Pleader for Stamps and Registration appearing for the respondents 1 and 5 and the learned Government Pleader for Revenue appearing for the respondents 2 to 4, the learned single Judge allowed the writ petition. Challenging the same, the present writ appeal came to be filed by the State of Andhra Pradesh represented by its Principal Secretary, Stamps and Registration Department.
5. The main ground urged by the learned Government Pleader for Assignment appearing for the appellants is that the learned single Judge erred in holding that the land was assigned to the husband of the writ petitioner under ex-servicemen quota. According to him, the husband of the writ petitioner was discharged from service on 19.10.1978 and 27 years after his discharge, he made an application in the year 2005 requesting to assign the land in Sy.No.459/2. The said application was not received through proper channel i.e., through the Synik Welfare Officer of the District and that he has not submitted any certificate to show that he did not obtain patta in any other area, as required under G.O.Ms.No.743, dated 30.04.1963. He further pleads that the application for assignment of land to ex-servicemen should be made within 12 months from the date of discharge or in the case of 4 HACJ & MSM,J W.A.No.147 of 2019 death on active service from the date of initiation to the family of the deceased. He further pleaded that condition No.1 of the DKT patta granted to the petitioner's husband stipulates that the assigned land should be heritable but not alienable, and that the DKT patta does not establish that the land was assigned under ex-servicemen quota and as such the writ petitioner is not entitled to alienate the land to third parties. Another ground urged by the learned Government Pleader is that without giving any opportunity to file counter, the writ petition came to be allowed.
6. On the other hand, learned counsel appearing for the 1st respondent/writ petitioner mainly submits that once the land is assigned to ex-servicemen, it is to be presumed that it was allotted under the ex-servicemen quota only.
7. The point that arises for consideration is, whether the order of the learned single judge warrants interference?
8. It is no doubt true that no counter was filed before the learned single Judge. But, the order impugned clearly shows that the Government Pleader for Revenue and the Government Pleader for Stamps and Registration were heard. It is also to be noted that the writ petition was not disposed of on the date when it was posted for admission. Initially, it was adjourned on the request of Government Pleader to place all the necessary documents on which he intends to rely before the Court and, thereafter, the order impugned came to be passed. Reiterating the grounds raised in the writ appeal, the learned Government Pleader would contend that the land was allotted to the husband of the writ petitioner 5 HACJ & MSM,J W.A.No.147 of 2019 under ex-servicemen quota, but it was only assigned to him which fact is disputed by the learned counsel for the writ petitioner.
9. The fact that the land was assigned to the husband of the writ petitioner in the year 2005, is not in dispute. It is also not in dispute that the land was assigned to an ex-serviceman and the writ petitioner is the wife of the deceased ex-serviceman. Further, obtaining NOC from the District Collector is also dispensed with, as per the G.O. referred to earlier. The question is, whether it was assigned under ex-servicemen quota or was it simply assigned to the husband of the writ petitioner as landless poor person. It is no doubt true that certain guidelines have been laid down by way of Circulars and G.Os. relating to assignment of land to ex-servicemen under ex-servicemen quota. A perusal of the documents relied upon by the Government Pleader shows that allotment was made to the husband of the writ petitioner vide DKT patta No.292/4/1415, dated 10.08.2005. On the top of the D-form, there is a reference to DKT number in respect of the land allotted and the description of the writ petitioner. The document titled "for use in substitution of a lost discharge certificate" shows the reason for discharge as on extreme compassionate grounds and the character on discharge was referred as "exemplary". The record shows that after the discharge from the armed services on 19.10.1978 and after the death of her husband, the writ petitioner made an application for assignment of Government waste land under defence personnel quota. Subsequent to allotment of land and issuance of DKT patta, these documents came to be issued in favour of the petitioner. Prima facie, a perusal of the documents, which are now placed before this Court, would show that the 6 HACJ & MSM,J W.A.No.147 of 2019 petitioner was allotted land under ex-serviceman quota. The documents also show that the husband of the petitioner was discharged from military service and the discharge was on extreme compassionate grounds. Similar issue came up for consideration before a Division Bench of the High Court of Judicature at Hyderabad for the State of Telangana and for the State of Andhra Pradesh in Writ Appeal No.1029 of 2017 by its order dated 29.08.2018. The Division Bench, after dealing with the Circulars and G.Os. issued from time to time, held as under:
"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. The explanation carved out in favour of Ex-servicemen is that after they retired from service by considering their status of working in the armed forces assignment was made."
10. Having regard to the judgment referred to above; taking into consideration the fact that the allotment was made to an ex-serviceman; and keeping in view the ratio in the decision in M.Ramakrishna Vs. State of Andhra Pradesh (2016 (6) ALT 755), which permits alienation of assigned land by an ex-serviceman after expiry of ten years, we see no merits in the writ appeal and the same is liable to be dismissed.
11. Accordingly, the writ appeal is dismissed. There shall be no order as to costs.
7 HACJ & MSM,J W.A.No.147 of 2019 Consequently, miscellaneous petitions, if any, pending in the appeal shall stand closed.
___________________________ C. PRAVEEN KUMAR, ACJ __________________________________ M. SATYANARAYANA MURTHY, J 29th August, 2019 cbs 8 HACJ & MSM,J W.A.No.147 of 2019 THE HON'BLE THE ACTING CHIEF JUSTICE C. PRAVEEN KUMAR AND THE HON'BLE SRI JUSTICE M. SATYANARAYANA MURTHY Writ Appeal No.147 of 2019 (Judgment delivered by the Hon'ble the Acting Chief Justice C. Praveen Kumar} 29.08.2019 cbs