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2012 DIGILAW 771 (AP)

P. v. Satyanarayana Murthy VS State of Andhra Pradesh

2012-08-27

L.NARASIMHA REDDY

body2012
Judgment : The petitioners feel aggrieved by the order, dated 20.05.2011, passed by the Joint Collector, Visakhapatnam, the 2nd respondent herein. The facts, in brief, that gave rise to the filing of the writ petition are as under: The petitioners were issued house site pattas, in respect of plots, varying in size from 293 square yards to 355 square yards, in survey No.164 of Chingadila Village, Visakhapatnam Mandal and District, on 31.05.1979. They were also put in possession of the plots. One of the conditions imposed was that, houses must be constructed, within a period of 12 months from the date of allotment. The Tahasildar of the Mandal, the 4th respondent, sought to cancel the pattas, on the ground that houses were not constructed within the stipulated time. The petitioners filed W.P.No.8648 of 1982. An interim order was passed in that writ petition. However, during the pendnecy of that, the 4th respondent issued notices proposing cancellation of the allotment, on the same ground viz., that houses were not constructed within the stipulated time. That gave rise to filing of W.P.No.14177 of 1990. The writ petitions were disposed of, observing that the 4th respondent shall pass orders, in pursuance of the show cause notice, after considering the explanation that may be offered by the petitioners. Orders of cancellation were passed by the 4th respondent, on 31.08.1991. Assailing the same, the petitioners filed appeals before the Revenue Divisional Officer, Visakhapatnam, the 3rd respondent herein. The appeals were allowed through order, dated 18.06.1994, and the orders of cancellation were set aside. The 3rd respondent directed the 4th respondent to fix the market value of the plots within one month, since the house sites were assigned on payment of market value. The 4th respondent filed a revision against the order, dated 18.06.1994, passed by the 3rd respondent, in the year 2001, after a lapse of seven years, before the Joint Collector, the 2nd respondent. An interim order, dated 23.02.2001, was passed by the 2nd respondent, staying the operation of the order passed by the 3rd respondent. Challenging the very filing of revision by the 4th respondent, and passing of interim orders by the 2nd respondent, petitioners filed W.P.No.18357 of 2001 and batch. An interim order, dated 23.02.2001, was passed by the 2nd respondent, staying the operation of the order passed by the 3rd respondent. Challenging the very filing of revision by the 4th respondent, and passing of interim orders by the 2nd respondent, petitioners filed W.P.No.18357 of 2001 and batch. The writ petitions were disposed of by this Court, setting aside the order, dated 23.02.2011, passed by the 2nd respondent and directing that he shall take into account all the contentions that may be advanced by the petitioners and decide the matter. Thereafter, the 2nd respondent passed the impugned order dismissing the revision and, confirming the order, dated 18.06.1994, passed by the 3rd respondent. However, he directed that the market value, prevailing as on the date of his order, dated 20.05.2011, shall be ascertained, with reference to the lands within the vicinity and the same must be submitted to the Government for confirmation. The petitioners submit that the initial allotment of the plots was made in 1979 and the houses could not be constructed within one year for want of permission etc. They submit that taking advantage of the fact that there was some delay in construction of the houses, proceedings were initiated, one after the other. They submit that the 4th respondent has no basis or competence to file a revision against an order passed by the superior and that the 2nd respondent ought not to have entertained the revision. It is also their case that, even while confirming the order passed by the 3rd respondent, the 2nd respondent has placed heavy burden, on them. They submit that due to unprecedented growth in market value, they cannot afford to pay the huge amounts. The 4th respondent filed a counter-affidavit, narrating the circumstances that led to filing of revision against the order, dated 18.06.1994, passed by the 3rd respondent. It is also stated that the 2nd respondent has taken into account various aspects and passed the impugned order and that the same does not warrant any interference. Sri P. Venugopal, learned counsel for the petitioners, submits that the impugned order passed by the 2nd respondent, in so far it directs the payment of current market value for the land, cannot be sustained in law. Sri P. Venugopal, learned counsel for the petitioners, submits that the impugned order passed by the 2nd respondent, in so far it directs the payment of current market value for the land, cannot be sustained in law. He contends that the revision filed by the 4th respondent was not maintainable at all, and he ought not to have played the role of an adversary in the litigation. He further submits that the aspect of delay was not at all considered by the 4th respondent. Another contention advanced by him is that even while dismissing the revision, the 2nd respondent imposed a condition, which travels beyond the scope of the proceedings. Learned counsel submits that the very basis for the proceedings, viz., the order, dated 31.08.1991, passed by the 4th respondent, is without jurisdiction and that the subject proceedings are untenable. Learned Government Pleader for Revenue, on the other hand, submits that the condition as to payment of market value is imposed, as per the terms of assignment, and the petitioners cannot be said to have suffered any detriment. He further submits that there is no prohibition in law, which disables the 4th respondent, from filing a revision against the order of the 3rd respondent. It is not in dispute that the petitioners have been granted pattas in respect of house sites of different sizes, way back in the year 1979. The only ground on which the pattas were cancelled was that they did not construct houses within the stipulated time. The petitioners challenged the orders of cancellation, initially by filing a writ petition. On the basis of the observations made by this Court, they filed an appeal before the 3rd respondent. The Appellate Authority, the 2nd respondent, has set aside the orders of cancellation. However, a direction was issued to the effect that market value, prevailing at the relevant point of time, may be collected from the petitioners. The 4th respondent was directed to fix the same. The basis for this in the words of the 3rd respondent was: “The assignments were made, on payment of market value, to be fixed later.” The petitioners have been making efforts to remit the amount and requested the 4th respondent to fix the same. The matter was dodged for years together by the 4th respondent. The basis for this in the words of the 3rd respondent was: “The assignments were made, on payment of market value, to be fixed later.” The petitioners have been making efforts to remit the amount and requested the 4th respondent to fix the same. The matter was dodged for years together by the 4th respondent. Without complying with the directions issued by his superior, the 4th respondent has filed a revision before the 2nd respondent, after a lapse of seven years. The 2nd respondent dismissed the appeal through order, dated 20.05.2012, by discussing the matter extensively. He referred to various developments as well as the orders passed by the 3rd respondent, on earlier occasion. It was also mentioned that at one stage, the 4th respondent fixed the market value at Rs.9/-, per square yard, and submitted the same for approval by the 3rd respondent. Reference was also made to the efforts made by the petitioners seeking permission to deposit the amount fixed in 4th pursuance of the orders passed by the 2nd respondent. He found that the respondent did not make out any case for interference. The 2nd respondent, however, directed the 3rd respondent to fix the market value as per the rates prevailing as on the date of order i.e. 20.05.2011, after obtaining the details of the rates for the lands in the vicinity. Two questions arose for consideration in this regard. The first is whether it was competent for the 4th respondent to file a revision against the order, dated 18.06.1994, passed by the 3rd respondent. The second is whether it was proper on the part of the 2nd respondent to direct the fixation of the market value prevailing as on the date of the order, even while rejecting the revision. The orders of assignment of house sites were passed by the 4th respondent, on 31.05.1979, in favour of the petitioners. It is clearly mentioned that the assignments are made under the Board Standing Order (BSO) No.21 and in the form, Appendix 18. Once the assignment is made under BSO No.21, the only authority competent to cancel it, if at all, is the Revenue Divisional Officer. This is evident from Clause 7(iii). It is clearly mentioned that the assignments are made under the Board Standing Order (BSO) No.21 and in the form, Appendix 18. Once the assignment is made under BSO No.21, the only authority competent to cancel it, if at all, is the Revenue Divisional Officer. This is evident from Clause 7(iii). The provision reads: “Right of re-entry: The right of re-entry, whether under the provisions of the order of assignment or under those of any subsidiary agreement, should be enforced only under the orders of the Divisional Officers. Before ordering such re-entry, Divisional Officers may, as a matter of grace, give notice (a) to the grantee if he can be found, and (b) in the District Gazette.” The 4th respondent exercised the power of resumption and passed orders. The orders passed by him, were patently without jurisdiction. The appeals preferred by the petitioners were allowed by the 3rd respondent. Any statute, which provides for the conferment of benefits or adjudication of disputes either through Courts or by Quasi-judicial or administrative authorities, would also provide for remedies of different purport. The nature and extent of power conferred upon the concerned authority is clearly delineated. Remedies of appeal, or revision, unless provide, for under the statute, cannot be claimed as of right. Such remedies are not inherent in a citizen. In the instant case, as observed earlier, the assignment was under BSO No.21. Clause 14-A thereof reads: “Appeal and revision: An appeal to the Collector shall be allowed against an order passed by the Divisional Officer in the case of sales in auction. The Board may exercise its powers of revision both in the case of sales in auctions and sales by private negotiation. The provisions as regards appeals and revision contained in paragraphs 15 to 20 of Standing Order No.15 will apply to the orders in this section.” Barring this, there is no other provision dealing with the appeals or revisions. There are several precedents on this. One such is the judgment of the Supreme Court in Collector of Central Excise, Kanpur v. Flock (India) Private Limited ( (2000) 6 SCC 650 ). There are certain general enactments such as the Andhra Pradesh (Telangana Area) Land Revenue Act, that confer general power of superintendence upon certain authorities. There are several precedents on this. One such is the judgment of the Supreme Court in Collector of Central Excise, Kanpur v. Flock (India) Private Limited ( (2000) 6 SCC 650 ). There are certain general enactments such as the Andhra Pradesh (Telangana Area) Land Revenue Act, that confer general power of superintendence upon certain authorities. Section 166-B thereof reads: “Revision: (1) Subject to the provisions of the Andhra Pradesh (Telangana Area) Board of Revenue Regulation, 1358 F., the Government or any Revenue officer not lower in rank to a Collector the Settlement Commissioner of Land records may call for the record of a case or proceedings from a subordinate department and inspect it in order to satisfy himself that the order or decision passed or the proceedings taken is regular, legal and proper and may make suitable order in that behalf: Provided that no order or decision affecting the rights of the ryot shall be modified or annulled, unless the concerned parties are summoned and heard. (2) Every Revenue Officer lower in rank to a Collector or Settlement Commissioner may call for the records of a case or proceedings from a subordinate department and satisfy himself that the order or decision passed or the proceedings taken regular, legal and proper and if, in his opinion, any order or decision or, proceedings should be modified or annulled, he shall put up the file of the case with his opinion to the Collector or Settlement Commissioner as the case may be. Thereupon the Collector or Settlement Commissioner may pass suitable order under the provisions of sub-section (1). (3) the original order or decision or an authentic copy of the original order or decision sought to be revised shall be filed along with every application for revision.” This provision applies only to the matters in Telangana area and there is no analogous provision that applies to Andhra area. Further, in the matter of availing the remedies of appeal and revision, particularly in the realm of quasi-judicial adjudication, a clear distinction needs to be maintained between the reliefs that can be claimed by the aggrieved citizens, on the one hand, and the officials of the department, on the other hand. It is only when the concerned statute specifically provides for appeals or revisions at the instance of the concerned officials, that the same can be availed. It is only when the concerned statute specifically provides for appeals or revisions at the instance of the concerned officials, that the same can be availed. For example, under the Andhra Pradesh (Andhra Area) Estates Abolition and Conversion into Ryotwari Act, 1948, the Tahasildar is conferred with the power to prefer an appeal against the order passed by the Settlement Officer. Similarly, under the Andhra Pradesh (Telangana Area) Abolition of Inams Act, 1955, the Tahasildar is conferred with the power to prefer appeals. So is the case with the Andhra Pradesh Land Reforms (Ceiling on Agricultural Holdings) Act, 1973. Sections 20(5) and 21 thereof read: “Section 20 (5): Where the Government are aggrieved by an order passed by the Tribunal or the Revenue Divisional Officer, they may file an appeal to the Appellate Tribunal against that order.” Section 21: An application for revision from any party aggrieved, including the Government, shall lie to the High Court, within the prescribed period, from any order passed on appeal by the Appellate Tribunal on any of the following grounds namely,- (a) that it exercised a jurisdiction not vested in it by law, or (b) that it failed to exercise a jurisdiction so vested, or (c) that it acted in the exercise of its jurisdiction illegally or with material irregularity.” Examples can be multiplied. By and large, such remedies to State also, are provided under the enactments that bring about vesting of properties in the State, by operation of law. Whenever exceptions are carved out to the vestiture through process of interpretation or application of the provisions of law, the State would figure, almost as an adversary, before the Tribunal may be for and on behalf of the public at large. In the instant case, the State itself has conferred the benefit on the citizens, through specific orders, transferring pieces of land. Obviously, for this reason, BSO No.21 did not confer any power upon the Tahasildar, to challenge an order passed by his superior. Therefore, the act of the 4th respondent in preferring revision against the order, dated 18.06.1994, passed by the 3rd respondent, was untenable and the revision was not maintainable at all. Obviously, for this reason, BSO No.21 did not confer any power upon the Tahasildar, to challenge an order passed by his superior. Therefore, the act of the 4th respondent in preferring revision against the order, dated 18.06.1994, passed by the 3rd respondent, was untenable and the revision was not maintainable at all. The principle that if law requires a thing to be done in a particular manner, it should be done in that manner or not at all (see Gujarat Electricity Board v. Girdharlal Motilal ( AIR 1969 SC 267 )), gets attracted. Added to that, the revision was preferred after enormous delay. Now comes the second question. Assuming that the revision preferred by the 4th respondent was in order, and maintainable, it needs to be seen as to whether the 2nd respondent committed any illegality. He has undertaken extensive discussion and recorded a finding to the effect that the 4th respondent did not make out any case for interference with the order passed by the 3rd respondent. On the basis of this finding, he ought to have dismissed the revision, and left the matter at that. However, he proceeded to direct that the market value for the plots assigned to the petitioner be determined as on the date of the order. It is fairly well settled that whenever an appeal or revision is dismissed, the authority or the Court cannot place additional burden or put onerous conditions on the successful party. The respondent appears to have proceeded on the assumption that a request was made by the petitioners, in this regard. The request was that since the 4th respondent was avoiding fixation of market value, despite the directions issued by the 3rd respondent, quietus be given to that issue by the 2nd respondent. By no stretch of imagination, such a request can be construed as readiness on the part of the petitioners to pay the cost for their plots, at the prevailing market value. Neither law, nor logic would support such an approach. The petitioners have been subjected to untold misery and hardship for the past three decades. A patently wrong step initiated by the 4th respondent without jurisdiction gave rise to such a protracted litigation. Neither law, nor logic would support such an approach. The petitioners have been subjected to untold misery and hardship for the past three decades. A patently wrong step initiated by the 4th respondent without jurisdiction gave rise to such a protracted litigation. The occasion to direct payment of market value at the current rates would have arisen, if there was any default, or refusal on the part of the petitioners, to pay the costs of the plots. Strictly speaking, the consideration is to be paid according to the rates that prevailed in 1979, when the plots were assigned. As a matter of fact, the 3rd respondent did not indicate any date with reference to which, the market value must be fixed. His observation reads: “The Mandal Revenue Officer, Visakhapatnam (Rural) is hereby directed to fix the market value within a period of one month from the date of receipt of this order.” The petitioners were ready to comply with the direction. The default was on the part of the 4th respondent. The writ petition is accordingly allowed, and the order, dated 20.05.2011, passed by the 2nd respondent, in so far as it directed payment of market value, at the prevailing rates, is set aside. The 3rd respondent shall verify the record, and if it is found that the market value as on the date of the order passed by him, i.e. 18.06.1994, is available, he shall communicate the same to the petitioners for deposit of the same. If, on the other hand, the record is silent, he shall determine the market value with reference to that date, within a period of six weeks and inform the petitioners. The petitioners shall be entitled to deposit the market value so communicated to them, within a period of 8 weeks from the date of receiving the information, in writing. The miscellaneous petition filed in this writ petition shall also stand disposed of. There shall be no order as to costs.