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2023 DIGILAW 1254 (AP)

T. Venkateswarlu v. State of Andhra Pradesh

2023-08-31

D.V.S.S.SOMAYAJULU

body2023
ORDER : 1. This Writ Petition is filed for the following relief: “........to issue a Writ of Certiorari or any other appropriate direction or directions, to quash the proceedings of the 2nd respondent dated 10.03.2014 in Rc. No. E2/4081/2013 and to set aside the consequential proceedings of the 3rd respondent dated 15.06.2014 in Rc. No. B45/2013 and pass such other order or orders as this Hon’ble Court may deem fit and proper in the circumstances of the case.” 2. This Court has heard the learned counsel for the petitioner, learned Government Pleader for Revenue and Sri Ch. Laxmi Narayana, learned counsel for the 4th respondent. 3. The case of the writ petitioner is that the petitioner has been allotted land measuring Ac. 4-00 cents in Sy. No. 70/2B/1 of Kallur Mandal, Kurnool in January, 1995 and he has paid the market value for the same also. He has been in possession and enjoyment of the same since then. He has filed a civil suit against the attempt of encroachment by the third party and obtained an interim order. Subsequently he was called to the office of the 3rd respondent and informed that the land was to be taken back. Therefore, he filed a writ petition and this Court directed that the petitioner should not be dispossessed except by due process of law. Thereafter, the petitioner was asked to appear before the 3rd respondent and also the 2nd respondent, who have conduced some sort of an enquiry, but most of which was behind the back of the writ petitioner. It is very categorically asserted that the impugned order was passed without giving adequate opportunity to the writ petitioner and that the statements were recorded behind his back. D-Form patta granted to the petitioner was also cancelled relying upon the BSO 15 (18) and Section 9 of the A.P. Rights in Land and Pattadar Pass Books Act, 1971. Questioning the same, the present writ petition has been filed. 4. Learned counsel for the petitioner relied upon the documents annexed to the writ petition including the counter affidavit filed in the earlier writ petition, wherein the possession of the petitioner etc. was admitted. 5. Learned Government Pleader for Revenue appeared for the official respondents also argued the matter at length and stated that the impugned order is correct in the circumstances of the case. was admitted. 5. Learned Government Pleader for Revenue appeared for the official respondents also argued the matter at length and stated that the impugned order is correct in the circumstances of the case. He also points out that as fraud was discovered the cancellation is correct. It is pointed out that none of the revenue records established that a valid patta was in fact given to the writ petitioner. Therefore, it is urged that the action taken is correct. Learned Government Pleader relies upon the counter affidavit and makes his submission in line thereof. 6. Learned counsel for the 4th respondent also raised very similar grounds and argues the matter. He also relied upon the judgment reported in Munganda Venkataratnam v. Joint Collector and Another, 2006 (1) ALD 547 to submit that if fraud is perpetuated there is no question of limitation for the delay as urged by the writ petitioner is not at all correct. 7. This Court after examining the records notices that assignment of the land to the writ petitioner in 1995 is not really disputed. The payment of market value is also not disputed although it is urged that it is deliberately paid by the writ petitioner to cover up his illegality and to strengthen his case. 8. Apart from this, this Court notices that the writ petitioner has also filed the possession certificate dated 10.01.2012, which is issued by the Tahsildar which states that the petitioner is in possession of the property. The next document relied upon is the counter in the W.P. No. 10559 of 2012 in which the Tahsildar clearly admits that the petitioner was assigned the land in 1995 and was also issued Pattadar Passbook and title deeds. It is also admitted that O.S. No. 98 of 2012 was also filed in the Civil Court for injunction. It is also stated that since the land is close to some local colonies, which need a burial ground, steps are being taken to resume the land after following the due process. The next document is a notice issued by the Tahsildar, dated 25.10.2013, directing the writ petitioner to appear before him as the land is proposed to be resumed for the public purpose. A letter dated 23.11.2013 addressed by the Tahsildar, Kallur, to the Collector is also relied upon. This letter reveals that the petitioner is in possession and enjoyment of the land. A letter dated 23.11.2013 addressed by the Tahsildar, Kallur, to the Collector is also relied upon. This letter reveals that the petitioner is in possession and enjoyment of the land. The verification of the revenue records also reveals that the Pattadar passbook and title deeds have been issued in favour of the writ petitioner. The Tahsildar, therefore, seeks directions from the Collector for further action in view of the interim stay obtained by the writ petitioner in W.P. No. 10559 of 2012. 9. Ultimately, on 10.03.2014 the impugned order is passed. In the opinion of this Court the impugned order is legally unsustainable. A simple facile explanation of “fraud” is used to set aside the assignment. In the opinion of this Court, if the fraud was actually perpetuated in creating Dform patta, Pattadar Passbook and title deeds, the Joint Collector, who passed the impugned order, had a duty to spell out with clarity why and how the fraud was perpetuated. Creation of a patta, pattadar passbook and title deeds is stated in this order who did this is not explained anywhere. The earlier letter dated 11.10.2013 shows a Tahsildar has examined the revenue record and come to a conclusion that the pattadar Passbook and title deeds have been issued to the writ petitioner. Therefore, it is not clear as to who played the fraud in the creation of this document. This Court has been noticing that an explanation of fraud is used to simply justify such orders. Despite earlier orders on the same, same pleas are being continued over and over again. Along with the counter affidavit no documents are filed to show why and how the fraud is perpetuated when the fraud was discovered and the action taken against the perpetrators of the fraud is not disclosed. No details are furnished also to enable this Court to appreciate the same. 10. Even the impugned order shows that the statements were recorded in the absence of the writ petitioner. On 18.01.2014, the Tahsildar Smt. Anjanadevi stated certain facts to the Joint Collector. Apparently she stated that she has attested the documents viz. adangal extracts etc. prepared by Sri N.C. Govind Reddy while she was busy in distributing house site pattas. She also believed the VRO and attested the same. On 18.01.2014, the Tahsildar Smt. Anjanadevi stated certain facts to the Joint Collector. Apparently she stated that she has attested the documents viz. adangal extracts etc. prepared by Sri N.C. Govind Reddy while she was busy in distributing house site pattas. She also believed the VRO and attested the same. As far as the Pattadar Passbooks were concerned she submits that the Photostat copies were attested by her as she was informed that the originals were produced in the High Court. The possession certificate was also issued by her only at the instigation of VRO. None of these statements are actually recorded and no proof is filed to show that the recorded statements are on the file of the Joint Collector. No opportunity was also given to the writ petitioner to cross examine or test the veracity of such statement. It is necessary and imperative in such cases that when statements made earlier are being assailed and admissions made earlier are being withdrawn the party should be put in notice of the same and should be given an opportunity to cross-examine the witness. Even more appalling is the fact that an admission made in the course of a sworn affidavit before the High Court in W.P. No. 10559 of 2012 is being treated as “withdrawn.” Admissions in pleadings have a greater weight. They cannot be so easily resiled from. Similar statements of Sri S. Yellareddy, VRO are also relied upon. Again it is not clear if this statement is in the form of a deposition; whether an opportunity was given to the writ petitioner to cross-examine the witnesses etc. Sri Govinda Reddy, the then VRO, has also given a statement. He submits that he has signed on the extracts of the adangals at the instances of the Tahsildar Smt. Anjanadevi, whose statement was recorded on 18.04.2014. It is not clear if either of these statements were given to the petitioner and or if he was given an opportunity to cross-examine the witnesses or to contradict the same. 11. The rules of natural justice are sacrosanct. They have to be followed in letter and spirit. If a statement is to be relied upon by an officer exercising quasi-judicial powers it must be taken down in a proper form and a copy must be supplied to the party likely to be affected by it. 11. The rules of natural justice are sacrosanct. They have to be followed in letter and spirit. If a statement is to be relied upon by an officer exercising quasi-judicial powers it must be taken down in a proper form and a copy must be supplied to the party likely to be affected by it. If necessary an opportunity of cross-examination should also be given. All the statements must be recorded in the present of the petitioner. If that is not possible, then a copy of the recorded statement must be furnished to the opposite parties before it is relied upon at least to enable him to answer/contradict the contents. The same was not done in this case. The writ petitioner is before this Court stating that the statements were recorded behind his back without offering the parties for cross-examination. This aspect is also not denied in the counter statement. It is thus clear that there is a gross and abject failure of law in this case. 12. In addition, the submission of the learned counsel relying upon BSO 15 and time barred appeals is also noted. BSO 15 is annexed as a document to the writ petition. Basing on this rule it is argued that the power was exercised. An assignment made in 1995 was cancelled in the year 2014 without the issue of delay even being considered, let alone condoned. This Court finds that in BSO 15 the timelines stipulated are 30 days and 40 days. The appeal within these periods can be entertained by the concerned officers if the appeal is stamped with Court fee and filed in time. The time barred appeals can also be condoned by the appellate authority if good and sufficient cause is made out. It does not appear if such an exercise was carried out at all. 13. The procedure for hearing of appeals is also stipulated in BSO 17. It is categorically stated that no order should be reversed or modified by a Collector or Divisional Officer without giving the respondent a notice to “show cause against action proposed to be taken adversely to him.” Therefore, this clearly involves a pre-decissional hearing before an adverse order is passed. 14. It is categorically stated that no order should be reversed or modified by a Collector or Divisional Officer without giving the respondent a notice to “show cause against action proposed to be taken adversely to him.” Therefore, this clearly involves a pre-decissional hearing before an adverse order is passed. 14. Under BSO 18 a period of three years is given for the presentation of a revision, if the Collector is satisfied that there has been material irregularity, that the decision was inequitable; that the Officer exceeded his powers or there is a mistake of fact, fraud etc. Even here the upper limit is three years. The Board of Revenue also can act within three years for similar reasons as per BSO 18 (1). It is only the State Government which has been given the power to act suo moto or otherwise without a prescription of limitation. But even here the judicial interpretation is that such matters cannot be reopened at the sweet will and pleasure of the Government. 15. Although this BSO has been pressed into service along with the Section 9 of the ROR Act this Court is of the firm opinion that there is no provision either in the BSO or under Section 9 to entertain a revision or appeal by whatever name it is called challenging on assignment of 1995 in 2014. 16. Learned counsel for the 4th respondent relied upon the judgment, which is referred to earlier, to argue that in case of fraud the period of limitation to commence from the date of discovery of a fraud. There is no dispute with the proposition of law. In the case on hand even as on date fraud is neither pleaded with certainty nor proved. Who played the fraud and in what manner the fraud is perpetuated is not at all clear. When the fraud was discovered and how it was discovered is not proven. Loosely the words like fraud etc. are used to set aside the settled legal possession and enjoyment. In the opinion of this Court the order passed suffers from very serious infirmities. It is, therefore, set aside. 17. The Writ Petition is allowed. There shall be no order as to costs. 18. Consequently, Miscellaneous Applications pending, if any, shall also stand closed.