Tadepalli Surya Venkata Subbayya ... vs The State Of Andhra Pradesh
2021 Latest Caselaw 40 AP

  THE HON'BLE SRI JUSTICE M. SATYANARAYANA MURTHY

                       WRIT PETITION No.24935 OF 2020

ORDER:

This writ petition is filed under Article 226 of the

Constitution of India to issue Writ of Mandamus, declaring the

action of the respondents in interfering into the peaceful

possession and enjoyment of the petitioner by way of erecting

board in the petitioner's residential plot admeasuring 348.38

sq.yds, situated in Revenue Ward No.8, Block No.43,

N.T.S.No.2663, Municipal Ward No.20 A, Old Assessment

No.166694, New Assessment No.119302, D.No.23-8-9, Aadi

Seshaiah Street, Satyanarayanapuram, Vijayawada, as illegal,

arbitrary, violation of Articles 14, 21 and 300-A of the Constitution

of India and violation of principles of natural justice and violation

of A.P. Protection of Depositors of Financial Establishment Act,

1999 and consequently, set-aside the said notice.

The petitioner is the absolute owner and possessor of

residential plot admeasuring 348.38 sq.yds, situated in Revenue

Ward No.8, Block No.43, N.T.S.No.2663, Municipal Ward No.20 A,

Old Assessment No.166694, New Assessment No.119302, D.No.23-

8-9, Aadi Seshaiah Street, Satyanarayanapuram, Vijayawada,

having purchased the same by way of Registered Sale Deed Doc

No.4644 of 2013 dated 05.07.2013. The said property is self

acquired property earned out of his hard earnings. The vendor of

the petitioner i.e. Agri Gold Constructions Private Limited MSM,J WP No.24935 of 2020

purchased the said property under registered sale deed document

No.2306 of 2005 dated 02.03.2005. After satisfying the legality of

the title and permissions from all the concerned departments, the

property was purchased.

The C.I.D officials attached all the properties of Agri Gold

Company and attached personal properties of the Directors and

key persons of the company vide G.O.Ms.No.23 Home (ARMS&SPF)

Department dated 20.02.2015 (henceforth, G.O.Ms.No.23 dated

20.02.2015), wherein, various properties of the company in

different districts were provisionally attached under Section 3 and

Section 4(1) of the Andhra Pradesh Protection of Depositors of

Financial Establishments Act, 1999 (for short 'the Act'). It is

contended that, the property of the petitioner was not shown and

his name was also not referred in the G.O.Ms.No.23 dated

20.02.2015 and no notice was served till date, on this petitioner.

While the things stood thus, Respondent No.3 with the help

of local police erected a board at the land of the petitioner in the

last week of October, 2020, stating that the property is under

attachment by virtue of the orders in G.O.Ms.No.23 dated

20.02.2015 and directed that no sale transactions shall be done in

respect of the petitioner's property and if anyone violates the same,

they will take legal action. But, fact remains that Respondent No.3

has not at all issued any notice to the petitioner though he is the

registered purchaser of the subject property and the said property

has nothing to do with G.O.Ms.No.23 dated 20.02.2015.

MSM,J WP No.24935 of 2020

As per the provisions of Sections 3 and 4 of the Act, the

Crime Investigating Department has issued ad-interim attachment

orders and also filed petition before the Special Court to make the

attachment absolute with regard to company properties.

Accordingly, under Section 7 of the Act, the Special Court, Eluru

the ad-interim orders of Attachment was made absolute over the

properties of the company and the trial of the case is pending.

Further, it is contended that, Respondent Nos. 2 and 3 have no

power, authority or jurisdiction to erect a board in the land of the

petitioner, which has nothing to do with the properties owned and

possessed by the Agri Gold Company. In the year 2013 itself, the

petitioner purchased the property from the said company and the

said company is no more owning or possessing the said property

and it has no interest. It is also contended that, by the date of

issuance of G.O.Ms.No.23 dated 20.02.2015, the property of this

petitioner is not included in the said G.O. The date of purchase of

the property is nearly two years from the date of attachment. It is

contended that, G.O.Ms.No.23 dated 20.02.2015 does not cover

the property of this petitioner. Apart from that, G.O.Ms.No.23

dated 20.02.2015 made it clear that the alienations made by the

Agri Gold Company by the date of registration of Crime No.3 of

2015 at Pedapadu Police Station, West Godavari District and

therefore, the property is not under attachment, but erecting such

board at the land of this petitioner is a grave illegality committed

by the respondents and that, it violates the constitutional right

guaranteed under Article 300-A of the Constitution of India, MSM,J WP No.24935 of 2020

besides the Human Rights of the Citizens of India and requested to

issue direction as prayed for.

The respondents did not file any counter, but filed their

written instructions dated 28.12.2020 received from the Chief

Investigation Officer, Additional Superintendent of Police, CID, RO,

Rajamahendravaram, wherein, it is stated that, Agri Gold

Construction Private Limited is also a sister concerned company in

the group of Agri Gold Farms and Estates India Private Limited

Companies. The Managing Director to the Agri Gold Construction

Private Limited is Sri Kamireddy Sree Rama Chandra Rao, who is

arrayed as Accused No.12 n Crime No.3 of 2015 of Pedapadu Police

Station. It is also submitted that, Agri Gold Farms and Estates

India Private Limited was established in the year 1995. Later,

basing on the profits, the Agri Gold Construction Private Limited

Company was established in the year 1997. Thus, the funds/

deposits collected from depositors were invested by the accused

companies in different forms of assets, the present petitioner

property is one among. As such, the property was attached and

then made absolute. The Government of Andhra Pradesh issued

G.O.Ms.No.23 dated 20.02.2015 and made attachments on the

properties related to Agri Gold Group of Companies in which the

above mentioned property was also attached as per the said G.O.

in annexure serial No.8.14 in an extent of 764-38 sq.yds and

G.O.Ms.No.23 dated 20.02.2015 was made absolute vide Crl.MP

No.998 of 2015 on the file of Principal District and Sessions Judge,

Eluru on 23.09.2015. The case is pending trial before the MSM,J WP No.24935 of 2020

Principal District and Sessions Judge Court, Eluru, for trial. In

PIL No. 193 of 2015 High Court of Telangana directed about the

disposal including auction of the properties in the said case. It is

submitted that, as such, the petition is not maintainable and

requested to dismiss the writ petition.

During hearing, Sri P.S.P. Suresh Kumar, learned counsel

for the petitioner mainly contended that, the issue involved in this

matter is squarely covered by the earlier common order of this

Court in W.P.No.11795 of 2020 and batch dated 25.08.2020 and

another judgment of the learned single Judge of this Court in

W.P.No.15669 of 2020 dated 07.09.2020 and consequently, as

G.O.Ms.No.23 dated 20.02.2015 has no application to the

properties purchased prior to registration of Crime No.3 of 2015 of

Pedapadu Police Station, thereby, attachment of the property

amounts to violation of constitutional right guaranteed under

Article 300-A of the Constitution of India and such arbitrary action

is liable to be struck down by this Court by exercising power under

Article 226 of the Constitution of India and also it amounts to

violation of Human Right guaranteed under various intentional

conventions and requested to set-aside the same.

Whereas, learned Government Pleader for Home vehemently

contended that the property is part of Item Nos. 8.14 of the

annexure to G.O.Ms.No.23 dated 20.02.2015 in an extent of extent

of 764-38 sq.yds, it was sold by Agri Gold Constructions Private MSM,J WP No.24935 of 2020

Limited and the said property was attached by exercising power

under Section 3 and 4(1) of the Act.

It is an undisputed fact that this petitioner has purchased

this property under the registered sale deed dated 05.07.2013 from

Agri Gold Constructions Private Limited and it is arrayed as

Accused No.12 in Crl.MP No.998 of 2015 on the file of Principal

District and Sessions Judge, Eluru. Apart from that, identity of

the property is not in dispute and it is part and parcel of the land

which is shown in Item Nos. 8 to 14 (As Agri Gold Constructions

Private Limited extent is extent of 764-38 sq.yds). Learned counsel

for the petitioner also did not dispute the same.

In any view of the matter, the short question that falls for

consideration is:

"Whether the property purchased by this petitioner under Registered Sale Deed Doc No.4644 of 2013 dated 05.07.2013 is covered by G.O.Ms.No.23 dated 20.02.2015, issued under Sections 3 and 4(1) of the Act?"

P O I N T:

G.O.Ms.No.23 dated 20.02.2015 was issued by exercising

power under Sections 3 and 4(1) of the Act, basing on ad-interim

attachment i.e attachment without notice to the accused in various

crimes as if the property belonging to M/s. Agri Gold Farms and

Estates India Private Limited and other sister concern. Curiously,

though for one reason or the other, a specific mention is made at

the end of Annexure-I of G.O.Ms.No.23 dated 20.02.2015, which MSM,J WP No.24935 of 2020

decides the core issue involved in this matter and therefore, it is

apposite to extract the same. Accordingly, it is extracted

hereunder:

* In the above lands Agri Gold Company has layouts and in these layouts, some plots were allotted to the subscribers, who paid 100% of money.

Except the plots that were registered in the respective Sub-Registrar Offices before the criminal cases were registered i.e. 1-3-2015 at Pedapadu, West Godavari Dist., the rest of the land shall cover under the above G.O."

On close analysis of G.O.Ms.No.23 dated 20.02.2015 and the

specific sentence at the end of the said G.O, it is clear that, the

attachment is applicable only to transactions that effected after

01.03.2015 when Crime No.3 of 2015 was registered against the

Agri Gold Farms and Estates India Private Limited at Pedapadu

Police Station, West Godavari District. When the property was

purchased by this petitioner admittedly under registered sale deed,

registered with the Joint Sub-Registrar's office, Vijayawada on

05.07.2013, the G.O.Ms.No.23 dated 20.02.2015 does not cover

the properties register prior to 01.03.2015 i.e. the date on which

Crime No.3 of 2015 was registered on the file of Pedapadu Police

Station, West Godavari District. Thus, when the property is

exempted from the application of G.O.Ms.No.23 dated 20.02.2015,

erecting a board stating that the property of this petitioner is under

attachment will cause serious prejudice to the interest of this

petitioner and ordering attachment of the property exercising

power under Section 3 of the Act is a serious illegality.

MSM,J WP No.24935 of 2020

Learned counsel for the petitioner also circulated Memo

dated 04.01.2021 to this Court, annexing the Photostat of the

"caution board" issued by the Crime Investigation Department, by

referring G.O.Ms.No.23 dated 20.02.2015. But, the Memo dated

04.01.2021 does not contain any notice issued either by the Crime

Investigating Department or by the State Government, as such,

caution board cannot be treated as notice.

However, an identical issue came up for consideration before

this Court in W.P.No.15669 of 2020 wherein this Court upheld the

similar contention, on 07.09.2020 and observed as follows:

"In the Annexrue-I of the G.O.Ms.No.23, it was mentioned thus. "Except the plots that were registered in the respective Sub-Registrar Offices before the Criminal cases were registered i.e. 01.03.2015 at Pedapadu, West Godavari District, the rest of the land shall cover under the above G.O". The aforementioned stipulation shows that the plots which were belonging to Agri Gold company and which were sold under registered documents prior to 01.03.2015 were excepted from the purview of the G.O.Ms.No.23. It goes without saying that any constructions made on those plots and sold prior to 01.03.2015 will also be exempted from G.O.Ms.No.23"

Thus, the Court accepted the contention of the petitioner

therein and allowed the writ petition.

In view of the judgment of the learned single Judge in

W.P.No.15669 of 2020 dated 07.09.2020, which is not assailed in

any appeal as on date, the same is binding on this Court.

Therefore, applying the principle laid down in the above judgment,

keeping in view G.O.Ms.No.23 dated 20.02.2015 and exemptions

contained thereunder, it can safely be held without any hesitation MSM,J WP No.24935 of 2020

that the G.O.Ms.No.23 dated 20.02.2015 does not cover the

property of this petitioner which is purchased on 05.07.2013.

Hence, erection of notice board at the property of this petitioner is

a serious illegality and violative of Article 300-A of the Constitution

of India.

No doubt, as discussed above, right to livelihood of a person

can be deprived by authority of law. Article 300-A of the

Constitution of India, protects right of an individual, but such right

in the property can be deprived of save by authority of law.

The right to property is now considered to be not only a

constitutional or a statutory right, but also a human right.

Though, it is not a basic feature of the constitution or a

fundamental right, human rights are considered to be in realm of

individual rights, such as the right to health, the right to

livelihood, the right to shelter and employment etc. Now, human

rights are gaining an even greater multi faceted dimension. The

right to property is considered, very much to be a part of such new

dimension (Vide: Tukaram Kanna Joshi Vs. M.I.D.C.1)

Right to property of a private individual, though, permitted

to be deprived of, it must be by authority of law. Still, Article 25 (1)

of the Universal Declaration of Human Rights recognized such

right in property as human right, which reads as follows:

"Everyone has the right to a standard of living adequate for the health and wellbeing of himself and of his family, including food, clothing, housing and medical care and necessary social services, and the right to security in the event of

1 AIR 2013 SC 565 MSM,J WP No.24935 of 2020

unemployment, sickness, disability, widowhood, old age or other lack of livelihood in circumstances beyond his control."

India is a State Party to the declaration, but the right to

property is not being considered as human right till date by many

Courts. Right to property in India at present protected not only

under Article 300-A of the Constitution of India, but also

recognized as human right under Article 25 (1) of the Universal

Declaration of Human Rights. A liberal reading of these two

provisions, the intention to protect the owners of either movable or

immovable only from Executive fiat, imposing minimal restrictions

on the power of the State. This is in sharp contrast to the language

adopted in the Indian Constitution.

If, the principle laid down in the above judgments is applied

to the present facts of the case, erection of notice also amounts to

violation of human rights of a citizen of the country.

The main contention of the respondents is that, if the

petitioner is aggrieved by any order of attachment passed under

Section 3 of the Act, the petitioner can file a claim before the

competent court or else, he may challenge the order passed by

Crl.MP No.998 of 2015 on the file of Principal District and Sessions

Judge, Eluru before the competent court. But, without challenging

the order in Crl.MP No.998 of 2015, this Court cannot exercise the

power under Article 226 of the Constitution of India to set-aside

such order.

MSM,J WP No.24935 of 2020

The undisputed facts are that public interest litigation is

pending before the High Court of Telangana at Hyderabad and

various crimes were registered, as mentioned in the counter filed

by Additional Director General of Police, Criminal Investigation

Department (C.I.D). It is admitted in the counter that Crime No.3

of 2015 is registered against Agri Gold Farm Estates India Private

Limited under the Act on the file of Pedapadu Police Station and

the same as transferred to Criminal Investigation Department

(C.I.D). The Principal District & Session Judge's Court at West

Godavari, Eluru is designated at Special Court for trial of the cases

pertaining to Agri Gold Company. Criminal Investigation

Department (C.I.D) being the competent authority attached the

property by issuing Government Orders.

Crl.MP No.998 of 2015 is filed before the Special Court to

make attachment absolute under the Act i.e. Competent Authority.

In that application, this petitioner set-up his independent claim

over the property and pendency of the petition is not in dispute,

while the petition filed under the Act is pending for making the

attachment absolute filed by the competent authority before the

Special Court, Criminal Investigation Department (C.I.D) issued

notice on various dates. Therefore, absolutely there is no dispute

with regard to registration of crime, pendency of public interest

litigation, filing of application under Section 4 of the Act and

setting-up of independent claim by the petitioner. The subject

matter of property in the present writ petition is not the subject MSM,J WP No.24935 of 2020

matter of attachment by any Government Order under Section 3 of

the Act.

However, no notice was addressed to this petitioner. In fact,

in the event, the respondents interfering with the property of this

petitioner, the petitioner is the ultimate sufferer, as substantial

injury is likely to be caused. Therefore, the petitioner has got locus

to file this writ petition questioning the action of the respondents.

The first and foremost contention raised by Sri P.S.P. Suresh

Kumar, learned counsel for the petitioner is that, when the petition

filed under Section 4 of the Act to pass an order making the

attachment absolute are being contested by this petitioner, setting

up independent claim, interfering into the peaceful possession and

enjoyment of the petitioner by erecting board in the petitioner's

land is illegal and without authority.

The Andhra Pradesh Protection of Depositors of Financial

Establishment Act, 1999, is a self contained code, prescribed

certain procedures and framed Rules thereunder. When such

procedure is prescribed, the procedure laid down in the Act has to

be scrupulously followed. On the other hand, arrangement of

sections in the Act itself is clear as to the step by step procedure to

be followed by the persons connected with those cases under the

Act.

MSM,J WP No.24935 of 2020

Section 3 of the Act deals with attachment of properties on

default in respect of deposits:- Notwithstanding anything contained

in any other law for the time in force--

1) Where, upon complaints received from a depositor or

depositors, that any financial establishment defaulted or is

likely to default in the return of deposits in cash or kind after

maturity, or in any manner agreed upon; or

2) Where the Government have reason to believe that any

financial establishment is acting in a manner prejudicial to

the interests of the depositors with an intention to defraud

the depositors;

and if the Government is satisfied that such financial

establishment is not likely to return the deposits in cash or kind

after maturity, or in any manner agreed upon, the Government

may, in order to protect the interests of the depositors of such

financial establishment, pass an ad-interim order attaching the

money or other property alleged to have been procured either in

the name of the financial establishment or in the name of any

other person from and out of the deposits collected by the financial

establishment, or if it transpires that such money or other property

is not available for attachment or not sufficient for repayment of

the deposits, such other property of the said financial

establishment, or the promoter, manager or member of the said

financial establishment, as the Government may think fit, and

transfer the control over the said money or property to the

competent authority.

MSM,J WP No.24935 of 2020

Thus, the intention of the ad-interim attachment is to

protect the interest of the depositors. The Government is entitled to

pass an ad-interim attachment order of money or either property

alleged to have been procured either in the name of the financial

establishment or in the name of any other person. The words "any

other person" specified in Section 3 of the Act is an inclusive

definition. In the same paragraph, it is specified the persons whose

property can be attached. In any view of the matter, it is for the

Special Court to consider and pass appropriate orders in the

pending applications filed under Section 4(3) of the Act, in

compliance of Sub-section (4), more particularly when this

petitioner set-up an independent claim while contending that the

property is not connected with the affairs of Agri Gold Company.

The next step is, when an application is filed under

Section 4(4) of the Act, the Special Court shall follow the procedure

laid down under Section 7 of the Act. According to Section 7(1) of

the Act, upon receipt of an application under Section 4, the Special

Court shall issue to the financial establishment or to any other

person whose property is attached by the Government under

Section 3, a notice accompanied by the application and affidavits

and of the evidence, if any, recorded, calling upon to show cause

on a date to be specified in the notice why the order of attachment

should not be made absolute.

Section 7(2) of the Act specifies that, the Special Court shall

also issue such notice, to all other persons represented to it as MSM,J WP No.24935 of 2020

having or being likely to claim, any interest or title in the property

of the financial establishment or the person to whom the notice is

issued calling upon such person to appear on the same date as

that specified in the notice and make objection, if he so desires, to

the attachment of the property or any portion thereof on the

ground that he has an interest in such property or portion thereof.

Section 7(3) permits that, any person claiming an interest in the

property attached or any portion thereof may, notwithstanding that

no notice has been served upon him under this Section, make an

objection as aforesaid to the Special Court at any time before an

order is passed under sub-section (4) or sub-section (6).

Sub-section (4) specifies that, if no objections are made and no

cause is shown on or before the specified date the Special Court

shall forthwith pass an order making the ad-interim order of

attachment absolute. According to Sub-section (5), if any objection

is made or cause is shown as aforesaid, the Special Court shall

proceed to investigate the same, and in so doing as regards the

examination of the parties and in all other respects, the Special

Court shall, subject to the provisions of this Act, follow the

procedure and exercise all the powers of Court in hearing a suit

under the Code of Civil Procedure, 1908 (Central Act V of 1908)

and any person making an objection shall be required to adduce

evidence to show that at the date of the attachment, he had some

interest in the property attached. Sub-section (6) specifies that,

After investigation under sub-section (5), the Special Court shall

pass an order making the ad-interim order of attachment absolute MSM,J WP No.24935 of 2020

or varying it by releasing a portion of the property from attachment

or cancelling the ad-interim order of attachment, provided that the

Special Court shall not release from attachment any interest,

which it is satisfied that the financial establishment or the person

referred to in sub-section (1) has, in the property unless it is also

satisfied that there will remain under attachment an amount or

property of value not fess than the value that is required for re-

payment to the depositors of such financial establishment.

Thus, the specific procedure to be followed by the Special

Court by making an application under Section 4 of the Act is

prescribed and it is pending before the Special Court. As on today,

the independent interest claimed by this petitioner is not accepted

by the Special Court exercising power under Section 7(4) of the Act

and order is passed under Sub-section (6) of Section 7 of the Act.

At this stage, the respondents are interfering into the peaceful

possession and enjoyment of the petitioner by erecting board in the

petitioner's land.

When this petitioner is the owner of the property mentioned

above and when it is not the subject matter of attachment of the

property under Section 3 of the Act and no petition is pending

under Section 4 of the Act before the Special Court, the

respondents cannot interfere with the peaceful possession and

enjoyment of the petitioner by erecting board in the petitioner's

land. When the property is not attached, question of vesting the MSM,J WP No.24935 of 2020

property on the competent authority under Section 3 does not

arise and it is without authority of law.

On the other hand, such action of interfering into the peaceful

possession and enjoyment of the petitioner by erecting board in the

petitioner's land is arbitrary exercise of power and it violates the

fundamental right guaranteed under Articles 14 and 300-A of the

Constitution of India, since the property is not the subject matter

of attachment under Section 3 and not part of the property is in

any criminal petition filed before the Special Court, for making

attachment absolute.

As discussed above, the alienation of property in favour of

the petitioner by Agri Gold Construction and Estates was long

prior to attachment (ad-interim) under Section 3 of the Act, which

is exempted. Hence, interference with the property by erecting

board is declared as arbitrary and violative of constitutional right

under Article 300-A of the Constitution of India.

In the result, writ petition is allowed, declaring the action of

the respondents in interfering into the peaceful possession and

enjoyment of the petitioner by way of erecting board in the

petitioner's residential plot admeasuring 348.38 sq.yds, situated in

Revenue Ward No.8, Block No.43, N.T.S.No.2663, Municipal Ward

No.20 A, Old Assessment No.166694, New Assessment No.119302,

D.No.23-8-9, Aadi Seshaiah Street, Satyanarayanapuram, MSM,J WP No.24935 of 2020

Vijayawada, as illegal, arbitrary and violative of Articles 14, 21 and

300-A of the Constitution of India. No costs.

Consequently, miscellaneous applications pending if any,

shall stand closed.

_________________________________________ JUSTICE M. SATYANARAYANA MURTHY

Date:07.01.2021 SP