HONOURABLE SRI JUSTICE ASHUTOSH MOHUNTA WRIT PETITION No. 29094 OF 2009 . DATED 7th February, 2011. BETWEEN B.Ravi Shankar …Petitioner And Government of AP, rep. by Secretary (Revenue-assignment), Secretariat, Hyderabad and others. ….Respondents. HONOURABLE SRI JUSTICE ASHUTOSH MOHUNTA WRIT PETITION No. 29094 OF 2009. ORDER: The petitioner’s father, namely, Late B.Penchalaiah, was an ex-serviceman. He was assigned land to the extents of Ac.2.66 cts in Sy.No.731/1 and Ac.2.33 cts in Sy.No.731/2 of Mamillapalli village, Chinthakommadinne Mandal, Kadapa District, by way of patta bearing DKT. No. 74/1405, dated 16.12.1995. It is stated that after the death of his father on 18.11.2001, the petitioner and his mother continued the cultivation of the said land. By the impugned order dated 9.3.2009, the fourth respondent resumed the aforesaid land to the Government on the ground that the petitioners’ father misrepresented the facts and got the aforesaid land assigned in his favour and that the petitioners have violated the conditions of the D-form patta. The learned Counsel for the petitioner submits that under G.O.Ms.No. 1117, Revenue (Assignment-1) Department, dated 11.11.1993, alienation of the assigned land by the ex-serviceman is prohibited for a period of ten years from the date of issue of DKT patta and after the expiry of the prohibitory period, its character will change and the provisions of the A.P. Assigned Lands (Prohibition of Transfers ) Act, 1977, can no longer apply to the said land. He submits that question of misrepresentation of facts by the petitioner’s father in getting the subject land assigned in his favour does not arise. He further submits that the fourth respondent has passed the impugned order without issuing prior notice and conducting any enquiry and without verifying the status of the subject land as to possession. He lastly submits that the competent authority to pass an order for cancellation of patta granted on misrepresentation of facts is the second respondent under B.S.O. 15(8) and not the fourth respondent and therefore the impugned order is null and void in the eye of law. The fourth respondent filed counter affidavit. In the counter affidavit, the fourth respondent-M.R.O. admitted the assignment of the subject land in favour of the petitioner’s father under ex-serviceman quota. It is stated that as the subject land was not brought under cultivation, notice dated 25.02.2009 was issued to the petitioner calling for his explanation; however, it is stated, the petitioner refused to take the said notice. It is stated that mining lease was granted over the subject land vide G.O.Ms.No. 234, Industries and Commerce (M.III) Department, dated 22.05.1985, for a period of twenty years and the petitioner’s father misrepresenting the facts, obtained assignment from the department. Having heard the learned Counsel appearing on either side and gone through the case file, I find force in the contentions of the learned Counsel for the petitioner. The Government vide G.O.Ms.No. 1117, Revenue (Assignment. I) Department, dated 11.11.1993, while clarifying its earlier orders, directed that ex-servicemen are free to sell away their assigned lands after a period of ten years. In the present case, the assignment of the subject land in favour of the petitioner’s father was made on 16.12.1995. However, the fourth respondent, after lapse of more than thirteen years, initiated action for cancellation of the said assignment. Nothing prevented the respondent authorities to initiate action against the assignee within the prohibitory period, in case there is any violation of the conditions of the DKT patta. As can seen from the Government Order dated 11.11.1993, after expiry of the prohibitory period, the character of the assignment will be changed and the provisions of the A.P. Assigned Lands (Prohibition of Transfers ) Act, 1977 can no longer apply to the said land. Therefore, on this ground alone, the fourth respondent is not justified in cancelling the assignment made in favour of the petitioner’s father after expiry of the prohibitory period. With regard to the contention of the respondents that the petitioner’s father misrepresenting the facts, obtained the assignment from the department, it is to be seen, the petitioner’s father being an ex-serviceman made an application for assignment of land and he did not demand any particular land to be given to him as assignment and it is for the respondents to conduct necessary enquiry and thereafter only, assign the land to the eligible person. Therefore, the contention of misrepresentation of facts against the official respondents by the petitioner’s father cannot be countenanced. Further, it is manifest that the mining lease granted over the land for a period of twenty years was over by 2005, and it is learnt that no mining operations were conducted in the land assigned to the petitioner’s father. The proceedings of the Tahsildar, CK.Dinne, dated 12.02.2009 supports the same. Further, with regard to the statement in the impugned order that that the possession of the subject land was taken over for public purpose and the municipal authorities have taken up construction of houses under the Indiramma Housing Programme, it is to be seen, the information furnished under the Right to Information Act vide proceedings dated 20.02.2009 shows that the petitioner is in possession of the subject land pursuant to the grant of DKT patta and that entries were made to that effect in the DKT records. In Shaik Bade Vs. District Collector, Visakhapatnam {2005 (5) ALT 635}, this Court, while dealing with Section 3 of the A.P. Assigned Lands (Prohibition of Transfers ) Act, 1977, and G.O.Ms.No. 1117, dated 11.11.1993 held that an assignee, who is an ex-serviceman is not prohibited to sell the assigned land after ten years from the date of issuance of patta. That was a case where after thirty years of assignment, the original assignee executed sale deed in favour of his vendee. As the sale took place after the prohibitory period, i.e. after lapse of thirty years from the date of assignment, this Court held that the said sale is in conformity with the terms of G.O.Ms.No. 1117, dated 11.11.1993. It is stated that the said order of this Court has attained its finality. In the case on hand also, the fourth respondent initiated action for cancellation of the DKT patta in favour of the petitioner after the prohibitory period, i.e. after lapse of 14 years from the date of assignment of the DKT patta. Therefore, the aforesaid decision fully supports the case of the petitioner. In another case in L.Uma Maheswar Reddy and ors Vs. The District Collector ( Writ Petition No. 8536 of 2009, dated 24.4.2009), when the Sub-Registrar refused to register the sale deed on the ground that the land kept for registration is an assigned land on earlier occasion, this Court observed that though the land was assigned at the initial stages, with the transfer thereof in favour of the vendors of the petitioners after expiry of the prohibitory period, its character has changed and the provisions of A.P. Assigned Lands (Prohibition of Transfers ) Act, 1977 no longer apply to the said land and therefore the respondents are not justified in insisting for NOC to register the document. From the above, it is needless to observe that the competent authority to pass an order of cancellation of patta granted on misrepresentation of facts, is the District Collector and inasmuch as the impugned order passed by the fourth respondent is without jurisdiction, the same is null and void in the eye of law and therefore the same is unsustainable. It is pertinent to note that in view of the Government order vide G.O.Ms.No. 1117, dated 11.11.1993, the assignee, who is an ex-serviceman is free to sell away his assigned land after the prohibitory period of ten years inasmuch as he becomes as an absolute owner of the subject land. For the foregoing discussion, the impugned order passed by the fourth respondent vide Ref.B/449/2007, dated 9.3.2009 resuming the subject land, which was earlier assigned to the father of the petitioner under ex-serviceman quota, is liable to be set aside and accordingly the same is set aside. The Writ Petition is allowed. There shall be no order as to costs. ------------------------------------ -- JUSTICE ASHUTOSH MOHUNTA Dated 7th February, 2011. Msnro