THE HON’BLE SRI JUSTICE N.V. RAMANA W.P. No. 1773 of 2008 Oral order: The petitioner, who is an ex-serviceman and claims to have been assigned the land in question under a DKT patta dated 29.06.1976 in an extent of Acs. 5.02 cents in Sy. No. 236/A2 of Rameswaram village, Proddatur Mandal, Kadapa District, has filed this writ petition questioning the order dated 29.12.2007, passed by the Joint Collector, Kadapa District, confirming the order dated 25.08.2005, passed by respondent No.2, namely the Revenue Divisional Officer, Jammalamadugu, which confirmed the order dated 24.04.2005, passed by respondent No.3, namely the Mandal Revenue Officer, Proddatur, canceling the said DKT patta on the ground that he never cultivated the land, and ordering initiation of proceedings for regularization of the land in question, in favour of respondent Nos. 4 and 5, as illegal and arbitrary. The learned counsel for the petitioner submitted that even though the petitioner submitted detailed explanation to the show cause notice issued by respondent No.3, supported by documentary evidence to show that he has brought the land assigned to him under cultivation within three years and was in possession of the same, respondent No.3 without considering the same, has committed an error in canceling the D-Form patta granted to the petitioner, after lapse of nearly 30 years. He further submitted that even respondent Nos. 2 and 1, who the appellate and revisional authorities, have committed a grave error in confirming the order of respondent No.3 in appeal and revision. He submitted that the cancellation of the patta granted to the petitioner is at the instance of respondent Nos. 4 and 5, who is inimical to the petitioner, is evident from the fact that the petitioner filed suit against respondent Nos. 4 and 5 for declaration of title over the property as they tried to encroach the property, and the notice for cancellation of the D-Form patta, has been issued by respondent No.3, based on the application made by respondent Nos. 4 and 5, who claimed that they are in possession of the land in question and prayed for grant of patta in respect thereof. He submitted that respondent Nos. 4 and 5, who are the sons of his brother are inimical to him, and at their instance canceling the patta, and taking steps to assign the said land to them at market value, is illegal and arbitrary. In support of his argument that cancellation of patta after long lapse of time by issuing show cause notice is bad, relied on the judgments of this Court in Sekhari Aruna Kumari v. Dist. Collector, Visakhapatnam[1] and Madamaneni Chinnaswamy (died) per LRs. v. Joint Collector, Chittoor[2]. Hence, he prayed that the impugned order passed by respondent No.1 confirming the order of respondent No.2, which confirmed the order of respondent No.3, canceling the D-Form patta granted to the petitioner, be quashed and set aside, and the writ petition be allowed. On the other hand, the learned Government Pleader for Revenue and the learned counsel for respondent Nos. 4 and 5 reiterating the counter averments submitted that the petitioner was never in possession and enjoyment of the land in question, much less cultivated the same, and it is evident from the fact that in the enquiry conducted by respondent No.3 as also in his deposition in O.S. No. 474 of 2002, the petitioner admitted that he was out of town from 1960 to 1999. They submitted that since the petitioner did not produce any material to show that he developed the land and brought the land under cultivation, respondent No.3 issued notice, and after conducting enquiry and considering the material placed, passed orders for cancellation of the DKT patta, which was confirmed in appeal and revision by respondent Nos. 2 and 1, and no interference is called for therewith. He further submitted that the impugned orders having canceled the patta, directed assignment of the land in question to landless poor person as per BSO 15. The learned counsel for respondent Nos. 4 and 5 submitted that since respondent Nos. 4 and 5 have developed and cultivated the land in question, respondent Nos. 1 to 3 should be directed to assign the land to them. They thus prayed to dismiss the writ petition. Heard the learned counsel for the petitioner, the learned Government Pleader for respondent Nos. 1 to 3 and the learned counsel for respondent Nos. 4 and 5, perused the impugned orders and also the record produced by the learned Government Pleader for Revenue. As can be seen from the pleadings and the material placed before the Court, the petitioner, who is an ex-serviceman, claims that he was assigned land in question, which is in an extent of Acs. 5.02 cents in the year 1976, while his brother was also assigned an extent of Acs. 1.81 cents. He claims that himself and his brothyer have brought the land under cultivation within three years of its assignment and that it was in joint cultivation of their family. After the death of his brother, the petitioner states that respondent Nos. 4 and 5 cultivated the same. While so, certain disputes arose between the petitioner and respondent Nos. 4 and 5, which led to the petitioner filing suit against respondent Nos. 4 and 5 in O.S. No. 474 of 2002 on the file of Principal Junior Civil Judge, Proddatur, claiming declaration of title and delivery of possession. While the suit was pending, respondent Nos. 4 and 5 filed petition before respondent No.3 for assignment of the land which was assigned to the petitioner on payment of market value, on the ground that they have developed and cultivated the same. Acting on the said petition of respondent Nos. 4 and 5, respondent No.3 issued notice dated 17.02.2005 calling upon the petitioner to show cause as to why the D-Form patta should not be cancelled. Responding to the said notice, the petitioner submitted detailed explanation stating that he was assigned land in an extent of Acs. 5.02 cents in the year 1976 and that he developed the land and that it is in his possession and enjoyment, and that after the death of his brother, respondent Nos. 4 and 5, who are his sons, are creating problems, and that they have wrongfully claimed compensation in respect of the land acquired, which was recovered from respondent Nos. 4 and 5 at his instance. Even though the petitioner submitted detailed explanation, respondent No.3 upon considering the material observed that the petitioner has himself admitted in his evidence in civil suit as also in the revenue enquiry that the land was in possession and enjoyment of the father of respondent Nos. 4 and 5, however, the petitioner has contradicted his stand stating that he was in cultivation of the same, but did not produce any documentary evidence. He further observed that as per BSO 15, DKT patta is issued for landless poor person and that the petitioner being an ex- serviceman is not entitled to grant of DKT patta, and that the DKT patta produced by the petitioner does not contain the number, and that even if it is assumed that it is genuine, the petitioner was required to bring the land under cultivation, which he did not do, and on the other hand, the material produced by respondent Nos. 4 and 5 show that they are in possession and enjoyment of the same since 1970. Having observed so, respondent No.3 vide orders dated 24.04.2005 cancelled the D-Form patta granted to the petitioner on the ground that he never entered into the land and personally cultivated and violated the conditions 1 to 4 of D-Form patta, and further held as respondent Nos. 4 and 5 do not come under BPL, the land under their enjoyment has to be regularized on payment of market value and that action has to be initiate in that regard separately. Aggrieved by the said order, the petitioner filed appeal before respondent No.2, supported by adangals, pattadar pass book, electricity bills, and revenue receipts etc., which is evident from the record produced by the learned Government Pleader for Revenue. Even though the petitioner produced documentary evidence to show that he has cultivated the land and was in possession and enjoyment of the same, the fact remains, respondent No.2 in the appeal observed that D-Form patta granted to an ex-serviceman or serving soldier is different from the D-Form produced by the petitioner, and that the revenue record shows that respondent Nos. 4 and 5 were in possession and enjoyment of the same, and having observed so concluded that the petitioner never cultivated the land or entered into the same since 1976, even if it is presumed that patta was assigned to him. Holding so, respondent No.1, vide orders dated 25.08.2005 dismissed the appeal and confirmed the order of respondent No.3. Questioning the order passed by respondent No.2 dismissing his appeal, the petitioner filed revision before respondent No.1, who having regard to the observations made by the Court of the Principal Junior Judge, Proddatur, in its judgment dated 17.01.2007 passed in O.S. No. 464 of 2002, held that the petitioner was never in possession of the land in question and that he has not produced any material, much less adangals to show that he was in continuous possession and enjoyment of the land since 1976. Having observed so, respondent No.1 vide orders dated 29.12.2007, dismissed the revision, confirming the order of respondent No.3 as confirmed by respondent No.2 in appeal and directed respondent No.3 to take steps to assign the land to eligible landless poor as per provisions of BSO 15. From the findings arrived at by the authorities above, and as is evident from the record produced, the official respondent Nos. 1 to 3 are not sure for themselves as to whether the D-Form patta produced by the petitioner is genuine or not. Though the petitioner, produced the D-Form patta, adangals, land tax receipts, electricity bill etc., along with his explanation to the show cause notice, the fact remains, neither respondent No.3 nor the appellate or revisional authorities, namely respondent Nos. 2 and 1 respectively in appeal or revision, have considered the same. If according to respondent Nos. 1 to 3, the D- Form patta produced by the petitioner is not genuine, respondent Nos. 1 to 3 ought to have conducted an enquiry, by issuing notice to the petitioner, which they did not do. As can be seen from the record placed before the Court, respondent No.3 issued the show cause notice calling upon the petitioner to show cause as to why the D-Form patta should not be cancelled at the instance of respondent Nos. 4 and 5, who requested grant of the said land to them on payment of market value. The notice issued by respondent No.3 to the petitioner, evidently is at the instance of respondent Nos. 4 and 5, who according to the petitioner, are inimical to him. If according to respondent Nos. 1 to 3, the petitioner has violated the conditions of D-Form patta by not putting the land to cultivation, they ought to have issued notice to the petitioner calling upon him to explain the violations and why action for such violations should not follow, but they did not do so, and instead, respondent No.3, without pointing out the violations, alleged to have been committed by the petitioner, issued notice to the petitioner, directing him to show cause as to why the D-Form patta should not be cancelled. It is the specific case of the petitioner that by reason of his employment, he had to be elsewhere and that the land assigned to him, was brought under cultivation by his family members, and in fact, BSO-15 also permits cultivation of the land by the assignee or any member of the family. But, unfortunately, all the authorities, namely the original, appellate and revisional authorities, did not look into this aspect of the matter. Be that as it may, the petitioner claims that the land in question was assigned to him in the year 1976, and if according to respondent No.3, the land, as per the conditions of D-Form patta, was required to bring the land under cultivation within three years from the date of its issuance, and if the petitioner failed to bring the land under cultivation, within three years from the date of its issuance, then respondent No.3, ought to have issued notice calling upon him to show cause as to why the D-Form patta should not be cancelled, immediately after expiry of three years from the date of issuance of the D-Form patta, and instead of doing that, he has issued the show cause notice on 17.02.2005 i.e. after lapse of nearly 30 years. He further submitted that since respondent No.3 issued the show cause notice after lapse of nearly 30 years, it will not be possible to ascertain as to whether the land was brought under cultivation within three years from the date of issuance of D-Form patta or not. This Court in Sekhari Aruna Kumari v. Dist. Collector, Visakhapatnam and Madamaneni Chinnaswamy (died) per LRs. v. Joint Collector, Chittoor, held that power to cancel the D-Form patta or resume the land, by the revenue authorities must be exercised within a reasonable time and that if D-Form patta was to be cancelled, the grounds on which it is sought to be cancelled have to stated, to enable the assignee to show cause. In the instant case, the D-Form patta was cancelled after lapse of 30 years, and the show cause notice issued in that regard, did not specify the ground on which the DKT was to be cancelled, and in fact, it is very clear from the proceedings as well as the record produced, the show cause notice, which led to passing of cancellation of D-Form patta granted in favour of the petitioner, is at the instance of respondent Nos. 4 and 5. Merely because respondent Nos. 4 and 5 have been in possession of the land in question since several years, it is not open for them to seek cancellation of patta granted to some other person and seek assignment of the same in their favour. For the foregoing reasons, I am of the considered opinion that the impugned order dated 29.12.2007, passed by respondent No.1 dismissing the revision filed by the petitioner against the order dated 25.08.2005 passed by respondent No.2 dismissing the appeal and confirming the order dated 24.04.2005, passed by respondent No.3, canceling the D-Form patta granted in favour of the petitioner and ordering initiation of proceedings for regularization of the land in question in favour of respondent Nos. 4 and 5 on payment of market value, cannot be sustained and is set aside. Accordingly, the writ petition is allowed and the impugned order dated 29.12.2007 passed by respondent No.1 is set aside. This order, however, does not preclude respondent Nos. 1 to 3 to initiate action against the petitioner, if according to them the D-Form patta produced by the petitioner is not genuine or he has violated any of the conditions thereof. However, before conducting any enquiry with regard to the genuineness or otherwise of the D-Form patta or violations of conditions of D-Form patta, if any, by the petitioner, respondent Nos. 1 to 3 shall issue notice to the petitioner and provide him an opportunity to show cause against the action proposed. No costs. ________________ N.V. RAMANA, J. Dated: 21st October, 2010 KSR [1] 2002 (3) ALT 571 [2] 2009 (1) ALT 424