WRIT PETITION 19838 of 2019 on 31 December 2019

ORDER:

The petitioners who are respondents 1 to 7 in W.P.No.19838 of 2019 filed the instant review petition seeking to set aside the order dated 31.12.2019 in W.P.No.19838 of 2019.

2. The 1[st] respondent herein filed W.P.No.19838 of 2019 seeking writ of mandamus against the respondents 1 to7, particularly the respondent 7 declaring the action of the 7[th] respondent in refusing to register the gift deed executed by him in favour of the 8[th] respondent who is his daughter, on the ground that subject property is an assigned land notified as prohibitory list of properties under Section-22(A) of the Registration Act, 1908.

(a) The writ petitioner’s case is that he is an Ex-serviceman served in Indian Air Force for 15 years i.e., from 1976 to 1991 and obtained voluntarily retirement in the year 1991. The 5[th] respondent in writ petition assigned him a house site on 03.11.1993 to an extent of Ac.0.02 cents in Plot No.68 in Revenue Survey No.246 situated at Vedanthapuram Village, Tirupati Rural Mandal under Ex-serviceman quota. The petitioner is in possession and enjoyment of the same and when the 3[rd] parties tried to meddle with his property, he filed O.S.No.271/1997 on the file of Principal Junior Civil Judge, Tirupati and O.S.No.424/2017 on the file of Additional Junior Civil Judge, Tirupati and obtained decrees. His case is that when he proposed to gift the assigned land to the 8[th] respondent, as there was no prohibition for alienation of the assigned property after 10 years of assignment in favour of Ex-serviceman as per G.O.Ms.No.279 of Revenue (Assignment-I) Department, dated 04.07.2016, the 7[th] respondent refused to receive and register on the ground that it is a Government property and notified in the list of prohibitory properties under Section 22A of the Registration Act, 1908.

(b) In the said writ petition notice was served on the Government Pleader for Stamps and Registration representing respondents 1 to 7. He did not file any counter.

(c) This Court there upon heard the arguments of the writ petitioner/party-in-person and learned Government Pleader for Stamps and Registration.

(d) During the course of argument the petitioner produced the copy of house site patta No.V.H.S/61/93, dated 03.01.1993 which showed that the petitioner was assigned Ac.0.02 cents of house site patta in lay out No.246 and Plot No.68 of Vedanthapuram Village, Tirupati Mandal under Ex-serviceman quota and the said patta was not disputed by the respondents. This Court then considered the G.O.Ms.No.1117 of Revenue (Assignments I) Department dated 11.11.1993 wherein it was clarified that the Ex-serviceman were free to alienate their assigned lands after a period of 10 years and also considered G.O.Ms.No.279, dated 04.07.2016 which held that there was no need to obtain NOC for alienation of land assigned to Ex- serviceman and Freedom Fighters after expiry of 10 years. Having considered the above G.Os and noting that the respondents have not disputed factum of assignment, this Court held that the petitioner was at liberty to alienate the assigned property in the light of aforesaid G.Os. Accordingly, this Court allowed the writ petition and directed the 7[th] respondent to receive and register the gift deed submitted by the petitioner and process the same for registration.

3. Hence, the review application filed by the respondents 1 to 7 to set aside the order in W.P.No.19838 of 2019.

4. The case of the petitioners/respondents is that the land in an extent of Ac.0.02 cents in Sy.No.246 of Vedanthapuram Village of Tirupati Rural Mandal was originally classified as Kaluva (Channel) Poramboke as per village accounts of Vedanthapuram Village of Tirupati Rural Mandal and hence the said land was notified under Section 22(A) of the A.P. Registration Act, 1908 prohibiting transactions.

(a) It is further pleaded that this Court allowed the writ petition at the stage of admission and directed the Sub-Registrar, Tirupati Rural to process the document for registration of gift deed in good faith without giving any opportunity to the revenue authorities to submit the real facts involved in the case. This Court ought to have called for records/counter from the revenue authorities to ascertain the genuineness of house site patta said to have granted in favour of the 1[st]respondent / writ petitioner under Ex-serviceman quota. On enquiry by the revenue authorities it is noticed that the 1[st] respondent was not granted any house site patta under Ex-serviceman quota as per the records available in the office except an entry in the house site register. The said entry in the register appears to be a bogus and fabricated one. No files were emanated with regard to grant of house site pattaa in favour of the 1[st] respondent under Ex-serviceman quota and therefore genuineness of the patta needs to be ascertained. As such the contention of the 1[st] respondent that he was granted house site patta under Ex-serviceman quota by the Tahsildar in the year 1993 is fake and bogus contention.

(b) It is further stated that there are specific rules envisaged under G.O.Ms.No.743, dated 30.04.1963 for grant of land / house site patta to Ex-serviceman. As per those rules, Ex-serviceman has to render prescribed service and must be a pensioner and the application for grant of land shall enroute through the Sainik Welfare Officer, Chittoor to District Office and then only further action for grant of assignment will be initiated by the revenue authorities. In the instant case such connected files are not existing. Therefore, the District Sainik Welfare Officer, Chittoor was enquired as to whether such prescribed procedure has been followed and whether the 1[st]respondent herein was a genuine Ex-serviceman and eligible for grant of assignment as per rules. It was ascertained from the District Sainik Welfare Office that such details of the 1[st] respondent are not traced out. Therefore, the District Sainik Welfare Officer has issued notice to the 1[st] respondent herein vide Memo No.493/2020-A2, dt:

09.03.2020 and the genuineness of the 1[st] respondent is under enquiry. The water body poramboke tank should always be retained as water body and revenue authority should take necessary steps to preserve such water channel and this fact was reiterated in many judgments. Therefore the registration of such properties is prohibited. Thus petitioners prayed to allow the review application.

5. The 1[st] respondent filed counter opposing the review application contending thus:

(a) Firstly it is contended that the writ petition was disposed of on 31.12.2019 and review petition was not filed within 30 days and hence the petition is time barred. It is further stated that if this Court permit the petitioner to file application to condone the delay, the respondent herein has no objection for allowing the same.

(b) It is further contended that as per order 47 Rule 1 of CPC review petition can be filed only under certain grounds however, the review petition filed by the petitioner does not come within the purview of any of the grounds envisaged in Order 47 Rule 1 of CPC.

(c) Thirdly it is contended that the averments in the petition that the land covered by Sy.No.246 of Vedanthapuram Village of Tirupati Rural Mandal was originally classified as Kaluva (Channel) Poramboke and 1[st] respondent was not granted any house site patta under Ex-serviceman quota is totally wrong. In W.P.No.12362 of 1996 the office of the petitioner while submitting the reply, stated before the High Court of Andhra Pradesh that Sy.No.246 in an extent of Ac.2.91 cents of Vedanthapuram Village is classified as Channel Poramboke to supply water from Avilala Tank to the fields. Since the tank was abandoned during congress plenary sessions held in the year 1992, the existence of the channels ceased. Therefore previous MRO, has assigned house site pattas to 68 Ex-servicemen on 31.01.1993. Hence the present contention of the petitioner is totally wrong and misconceived.

(d) It is further contended that the allegation that patta filed by the respondent was not emanated from the petitioner’s office is totally wrong as in the W.P.No.551 of 2015 the Government has not refuted that the patta was granted to the petitioner.

6. Heard learned Government Pleader for petitioners and Dr. A.M. Krishna, party-in-person-cum-respondent.

7. The point for consideration is whether there are merits in the writ petition to allow?

8. POINT: At the outset so far as the delay in filing review application is concerned, the petitioner filed I.A.No.3 of 2021 to condone the delay of 45 days in filing the review petition and same was allowed on 03.09.2021. The main plank of argument of learned Government Pleader is that the land in Revenue Survey No.246 is a water body and classified as Kaluva (Channel) Poramboke as per village accounts of Vedanthapuram Village and therefore it is included in the list of prohibitory properties under Section 22(A) of the Registration Act, 1908. Learned Government Pleader argued as if, this Court disposed of the writ petition at the admission stage without granting time for counter and therefore the respondents in the writ petition could not bring the said fact to the notice of the Court. He further submitted that in the case of the writ petition, for granting house site patta to Ex-serviceman due procedure was not followed and his application was not routed through District Sainik Welfare Officer. He prayed to allow the review petition and set aside the order in writ petition and permit the respondents therein to file counter.

9. While so, severely opposing the review petition Dr. A.M. Krishna, party-in-person-cum-respondent argued that review petition is liable to be dismissed in limini as there is no error apparent on the face of the record to entertain the review petition. He would argue that the writ petition was filed on 05.12.2019 and the matter came up for hearing on 31.12.2019 and during the course of hearing the Government Pleader neither sought time for filing counter nor disputed the house site patta of the petitioner. In those circumstances, this Court having regard to the fact that the house site patta was issued to the writ petitioner who was an Ex-serviceman and the patta was granted more than 10 years back and hence there could be no objection for alienation of the said property, allowed the writ petition. He vehemently argued that in the entire process there was no illegality or irregularity in the order and there is no error either in facts or law so as to entertain the review petition. By producing photos in the site covered by Revenue Survey No.246, he argued that most of the allottees have already constructed houses in their respective plots and the site does not have appearance of the water channel or Kaluva as claimed by the respondent authorities. Some of the allottees are Ex-servicemen filed W.P.No.32642 of 2018 seeking writ of mandamus declaring the action of the respondent authorities in trying to dispossess them from their respective plot Nos.3, 4, 17, 18. and 48 and learned Judge of Common High Court of Andhra Pradesh in his order dated 19.09.2018 allowed the writ petition directing the respondent authorities not to interfere with the possession and enjoyment of the petitioners therein, except in accordance with the due procedure laid down by law. Dr. A.M. Krishna argued that till now no action has been initiated against any of the allottees for the reason that the allotments were made long back and the allottees have constructed houses and residing.

10. I gave my anxious consideration to the facts and law. I find no force in the contention of the review petitioners. As submitted by Dr. A.M. Krishna, party-in-person/respondent, the writ petition was filed on 05.12.2019 and the matter came up for hearing on 31.12.2019 and on that day learned Government Pleader was present in the Court and he did not seek for any time for filing counter. Had it been so, this Court would have certainly granted time. On the other hand, during the course of hearing, he did not dispute about the issuance of the patta in favour of the petitioner who is an Ex-serviceman. In those circumstances, this Court having considered the fact that the patta was granted in favour of the petitioner who is an Ex-serviceman about 10 years back and in view of G.O.Ms.No.279 of Revenue (Assignment-I) Department, dated 04.07.2016 which says that there was no obstruction for alienation of assigned land by Ex-serviceman after 10 years, allowed the writ petition and directed the 7[th] respondent to receive the gift deed and register the same. Therefore, I find no error, much less error apparent on the face of the record.

11. Now in this review petition, the respondent authorities came up with an averment that originally Revenue Survey No.246 was classified as Kaluva (Channel) Poramboke and since it is a water body, no assignment can be granted under BSO-15 and other allied laws and rules and therefore the house site patta claimed by the petitioner is highly doubtful and further the application was not routed through the District Sainik Welfare Officer. All these averments do not hold water for the reason that the materials such as photos produced along with the memo by the party-in-person on 06.07.2021 show that in Survey No.246 house sites were allotted and road was laid and most of the allottees constructed small houses. Electric poles are also visible around the houses indicating that Survey No.246 was long back ceased its character as a water body. Further the order copy in the W.P.No.32642 of 2018 (a copy of which is filed along with counter by the party-in-person) shows that some allottees of Plot Nos.3, 4, 17, 18, 22 and 48 in Survey No.246 filed the said writ petition for writ of mandamus declaring the action of the respondent authorities in trying to dispossess them from their houses as illegal. In that context, a learned Judge of this Court while disposing the writ petition directed the respondent authorities not to interfere with the possession of the petitioners without following due process of law. The review petitioners did not file any material to show that any action has been initiated against any of the allottees of the house plots.

12. So on a holistic view of the subject matter, the plea of the revenue authorities that the subject land in Survey No.246 is still a water body and house sites cannot be granted is preposterous. Consequently, keeping this property in prohibited list is also untenable. I find no merits in the review petition and accordingly review petition is dismissed. No costs.

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U.DURGA PRASAD RAO, J

02[nd] March, 2022 krk

krk

HON'BLE SRI JUSTICE U.DURGA PRASAD RAO

REVIEW I.A.No.1 OF 2021 IN WP.No.19838 of 2019

02[nd] March, 2022