Smt.T.Lakshmi Theresamma, vs State Of Andhra Pradesh,
2021 Latest Caselaw 4591 AP

  THE HON'BLE SRI JUSTICE M.SATYANARAYANA MURTHY

               WRIT PETITION NO.24159 OF 2016
ORDER:

One Smt. T. Lakshmi @ Theresamma, resident of

Maddilapalm, Visakahapatnam District, filed this writ petition

under Article 226 of the Constitution of India, challenging the

proceedings of the second respondent - District Collector in

Rc.No.1891/2011/E1 dated 12.02.2013 in ignoring the request of

this petitioner to issue 'No Objection Certificate' to sell away the

land admeasuring Ac.4-59 cents in Sy.No.371/1, Kapulappadu

Village, Bheemunipatnam Mandal, Visakhapatnam District,

assigned to the petitioner's husband under Ex-serviceman quota

vide Patta No.225-5/1402 dated 17.11.1992 and declare the same

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

and 300-A of the Constitution of India and principles of natural

justice and consequently, set-aside the same, directing the

respondents to grant 'No Objection Certificate' to the petitioner to

sell-away the land referred above.

The petitioner's husband - Sri T. Nandayya served in the

Armed Forces between the years 1944 to 1961, participated in

World War-II and discharged from service on 06.10.1961. On his

application, the then Tahsildar Bheemunipatnam assigned land

admeasuring Ac.4-59 cents in Sy.No.371/1 of Kapuluppada

Village, Bheemunipatnam Mandal, Visakhapatnam District on

17.11.1992 vide Patta No.225-5. The land was carved out of main

Sy.No.314 and it was formed out of sloppy hill poramboke. The

petitioner's husband made application to the then Tahsildar, MSM,J WP_24159_2016

Bheemunipatnam on 11.05.1996 to mutate his name in the

revenue records, issue pattadar passbooks and title deeds. The

Tahsildar ignored the application of the petitioner's husband and

did not take any action. He further made similar applications on

18.09.2000 and 08.09.2005, but the fourth respondent ignored the

request of petitioner's husband. While so, the petitioner's husband

died on 19.09.2005. Subsequent to his death, the petitioner also

made application to the fourth respondent - Tahsildar on

23.12.2009. Inspite of repeated requests from the petitioner and

her husband, the fourth respondent - Tahsildar had neither

rejected nor accepted the request of the petitioner.

As the petitioner became old, she proposed to sell the land

and approached the Sub-Registrar, Bheemunipatnam along with

prospective buyer. However, the Sub-Registrar, Bheemunipatnam

refused to receive the document of conveyance stating that the

land is recorded as Government Land and included in the

prohibited properties list under Section 22-A of the Registration

Act and refused to register the same.

Aggrieved by the same, the petitioner approached the Court

and filed W.P.No.30568 of 2010 which was disposed of vide order

dated 07.12.2010 directing the Sub-Registrar, Bheemunipatnam to

receive the document presented and to register the same in

accordance with the provisions of Registration Act, 1908. However,

the prospective buyer did not come forward to purchase the same

stating that, unless 'No Objection Certificate' is obtained from the

revenue authorities, he cannot purchase the same, as he would be

suffering a lot due to misery and hardship at every stage of dealing MSM,J WP_24159_2016

with the land subsequent to registration of the same. Therefore,

the petitioner made an application to the respondents for issuing

'No Objection Certificate' to sell the land after expiry of 10 years

from the date of assignment to alienate the same in accordance

with G.O.Ms.No.1117, Revenue (Assignment) Department, dated

11.11.1993. Respondent No.4 - Tahsildar submitted his report vide

letter dated 19.10.2011 categorically stating that the petitioner's

family is in possession of the said land for the last 20 years and

the said land is fenced with cement pillars and barbed wire and

also that cashew, mango and neem trees are existing in the said

land. As the petitioner's application for issue of 'No Objection

Certificate' was not acted upon, she filed W.P.No.33225 of 2011

which was disposed of by this Court vide order dated 16.12.2011

directing the second respondent to dispose of the application dated

19.09.2011 for issue of 'No Objection Certificate' in accordance

with law within eight weeks.

On receipt of the order of the Court, the second respondent

sought report from Respondent Nos. 3 & 4 with respect to the

assignment made to the petitioner's husband of the said land and

also the records pertaining to the said land. In response to the

instructions of the second respondent, the fourth respondent

submitted report on 04.04.2012, categorically stating that the said

land was assigned to the petitioner's husband and they are in

possession of the same for the last 20 years. The third respondent

also reported to the second respondent vide letter dated

13.06.2012. The second respondent thereafter passed the

impugned order dated 12.02.2013 rejecting the application made MSM,J WP_24159_2016

by the petitioner dated 19.09.2011 for issuance of 'No Objection

Certificate' for alienation of the subject land.

Aggrieved by the same, the present writ petition is filed

questioning the order on the following grounds:

(a) The impugned order was passed, rejecting the application

without affording an opportunity to clear the doubts and it

was violative of principles of natural justice;

(b) The second respondent while passing the impugned order

made certain observations without affording an opportunity,

but recorded a finding that the signature on the patta was

not tallying with the signature with the officer who assigned

the land by name T. Mohan Babu and therefore, such finding

based on Photostat copy is illegal and baseless;

(c) The second respondent while passing orders, discriminated

this petitioner from similarly situated person like T. Mohan

Babu who was assigned land in Sy.No.374/2 and land in

Sy.No.373/1 to one Choppala Brahmaiah, an extent of

Ac.5-00 in Sy.Nos.373/2 and 375/3/1 to Tokada Ramulu,

Ac.5-00 in Sy.Nos.373/3 and 374/1 in favour of Sri Sandaka

Venkateswarlu under File No.225/1402 in the month of

November, 1992. The second respondent granted 'No

Objection Certificate' to T. Mohan Babu by the first

respondent vide Memo dated 26.04.2008 and three other

persons were granted 'No Objection Certificate' by the second

respondent vide proceedings dated 07.06.2010. Therefore,

there is any amount of discrimination while passing orders

by the second respondent and it is illegal, arbitrary and MSM,J WP_24159_2016

violative of Article 14 of the Constitution of India.

(d) The second respondent did not consider the sub-division

proceedings of original Sy.No.371/1 for the purpose of

assignment in favour of Chalamsetty Mangaiah freedom

fighter, as indicated in Column No.11 of the Sub-Division

statement appears to be frivolous and prima facie incorrect.

But the third respondent on erroneous consideration of the

facts and circumstances of the case, passed the impugned

order, thereby, it is illegal, arbitrary, discriminatory and

violative of principles of natural justice and requested to

issue a direction as stated above.

The second respondent - District Collector filed counter

affidavit, while admitting passing of order and filing of earlier writ

petitions before the Court and issue of directions. The impugned

order was passed vide proceedings Rc.No.1891/2011/E1 dated

12.02.2013 with the following reasons:

He further submitted that the husband of this petitioner

Sri T. Nanadayya, Ex.No.6260294 had sent a representation

through Registered Letter no.2374 dated 06.07.1996 to the District

Collector stating that, he served in Indian Army from 29.05.1944 to

05.01.1961 and he could not afford to utilize the facilities provided

by the Government and due to his health problems, he is unable to

eke out his financial needs and requested to provide housing

facility. Further represented that, the petitioner's husband filed

several representations before the Mandal Revenue Officer,

Visakhapatnam and Zilla Sainik Officer, but they have not MSM,J WP_24159_2016

considered and finally requested the Collector to provide housing

facility. The representation was forwarded to the Tahsildar,

Visakhapatnam (Urban) Mandal vide Rc.No.4208/1995/A10 dated

13.07.1996. Therefore, the representation itself is sufficient to

disbelieve the patta granted in favour of the petitioner's husband

and no agricultural land or house site was assigned under Ex-

Serviceman quota.

Without grant of assignment of government land, no

question of cultivation of the land or mutation of the name of this

petitioner in the revenue records does not arise and therefore,

question of issue of 'No Objection Certificate' does not arise.

Further, it is contended that from the D.K. Register of the year

1992, there is no entry in the Register with regard to grant of patta

in favour of the petitioner's husband and after due verification of

the signature of the then Tahsildar, the signature on the patta

produced by the petitioner is not tallying to the naked eye.

Therefore, the rejection is based on material and not in violation of

any procedure or principles of natural justice and the same cannot

be declared as illegal, arbitrary and requested to dismiss the writ

petition.

Though Sri J. Rama Rao was impleaded as Respondent No.5

vide order in I.A.No.2 of 2021 dated 23.10.2021, no counter

affidavit is filed.

During hearing, Sri G. Purushotham Reddy, learned counsel

for the petitioner reiterated the contentions urged in the affidavit,

mainly contending that, recording a finding that patta is fake MSM,J WP_24159_2016

without affording an opportunity prior to passing of such order is

violative of principles of natural justice. At the same time, the

recording authority found that the signature on the Photostat copy

of the patta is not tallying with the signature of the Tahsildar who

issued the patta on verification of D.K. Register is illegal and

arbitrary and arriving at a conclusion based on the Photostat copy

of the patta is not recognized mode of comparison of signatures,

thereby, such finding is illegal, arbitrary and requested to set-aside

the impugned proceedings in Rc.No.1891/2011/E1 dated

12.02.2013.

Whereas, learned Assistant Government Pleader for Revenue

would submit that, when the patta was not granted in favour of

petitioner's husband, question of issuing 'No Objection Certificate'

to sell the property, though she is in possession and enjoyment of

the property does not arise and that the order is supported by good

reasons which does not warrant interference of this Court, while

exercising power of this Court and requested to dismiss the writ

petition.

Considering rival contentions, perusing the material

available on record, the points that need be answered are as

follows:

1. Whether the impugned order is passed in violation of principles of natural justice, discriminating the petitioner from other similarly situated persons viz. T. Mohan Babu and others, to whom the pattas were granted under the same proceedings?

MSM,J WP_24159_2016

2. Whether the impugned order is passed by comparing the signature on the Photostat copy of the patta with the signature of the then Tahsildar, without affording reasonable opportunity is in accordance with law. If not, whether the order is liable to be set-aside?

P O I N T Nos.1 & 2:

The first and foremost contention urged by the petitioner is

that, no opportunity was afforded to the petitioner before rejecting

the application of this petitioner for issue of 'No Objection

Certificate', which amounts to violation of principles of natural

justice.

The principles of natural justice should be free from bias and

parties should be given fair opportunity to be heard and all the

reasons and decision taken by the court should be informed by the

court to the respective parties. Supreme Court said that arriving at

a reasonable and justifiable judgment is the purpose of judicial

and administrative bodies. The main purpose of natural justice is

to prevent the act of miscarriage of justice. Natural Justice is an

important concept in administrative law. The term natural justice

signifies basic principles of justice, which are made available to

every litigant during trial. Principles of natural justice are founded

on reason and enlightened public policy. These principles are

adopted to circumstances of all cases. Such principles are

applicable to decisions of all governmental agencies, tribunals and

judgments of all courts. In the present world the importance of

principle of natural justice has been gaining its strength and it is

now the essence of any judicial system. Natural justice rules are MSM,J WP_24159_2016

not codified laws. It is not possible to define precisely and

scientifically the expression 'natural justice'. The principles of

natural justice are those rules which have been laid down by the

courts as being minimum protection of the rights of the individual

against the arbitrary procedure that may be adopted by a judicial,

quasi-judicial and administrative authority while making an order

affecting those rights. The main objective behind the reconciliation

between the inclusion and exclusion of protection of Principles of

Natural Justice is to harmoniously construe individual's natural

rights of being heard and fair procedure as well as the public

interest. Larger public interest is to be allowed to override the

individual's interest where the justice demands After the

discussion of the principles of natural justice it may be concluded

that the Courts both in India and England in relation to

administrative proceedings created various exception to the

requirement of Natural Justice Principles and procedure there off.

However, these exceptions are all circumstantial and not

conclusive, every exception to be adjudged admissible or otherwise

only after looking into the facts and circumstances of each case.

The exceptions to the principles of natural justice in UK and India

mainly relate to administrative proceedings. The Courts in both

these countries especially in India created various exceptions to

the requirement of natural justice principles and procedures taking

into account various circumstances like time, place, and the

apprehended danger and so on prevailing at the time of decision-

making. It must be noted that all these exceptions are

circumstantial and not conclusive. They do not apply in the same MSM,J WP_24159_2016

manner to situations which are not alike. They are not rigid but

flexible. These rules can be adopted and modified by statutes and

statutory rules also by the Constitution of the Tribunal which has

to decide a particular matter and the rules by which such tribunal

is governed. Every action of the authorities to be regarded as an

exception must be scrutinised by the Courts depending upon the

prevailing circumstances. The cases where natural justice

principles have been excluded by implication suggest that the

Courts have accepted the doctrine even though the legislature has

not adopted express words to that effect but those cases appear to

depend so heavily on their particular circumstances that they do

not yield a clear general principle. There are arguable and also

explicable instances where the courts have concluded that natural

justice was not necessary. In order to invoke the exceptions the

decision of the authorities must be based on bonafide Intention

and the Courts while adjudicating the post decision dispute must

find the action of the concerned authorities to be fair and just and

every such exceptions to be adjudged admissible or otherwise only

after looking into the facts and circumstances of each case. The

main objective behind the reconciliation between the inclusion and

exclusion of protection of Principles of Natural Justice is to

harmoniously construe individual's natural rights of being heard

and fair procedure as well as the public interest. Larger public

interest is to be allowed to override the individual's interest where

the justice demands. Thus, exclusion of natural justice should not

be readily made unless it is irresistible, since the Courts act on the

presumption that the legislature intends to observe the principles MSM,J WP_24159_2016

of natural justice and those Principles do not supplant but

supplement the law of the land. Therefore, all statutory provisions

must be read, interpreted and applied so as to be consistent with

the principles of Natural justice.

In D.K. Yadav v. J.M.A. Industries Limited1, the Full

Bench of Supreme Court held as follows:

"The cardinal point that has to be borne in mind, in every case, is whether the person concerned should have a reasonable opportunity of presenting his case and the authority should act fairly, justly, reasonably and impartially. It is not so much to act judicially but is to act fairly, namely' the procedure adopted must be just, fair and reasonable in the particular circumstances of the case. In other words application of the principles of natural justice that no man should be condemned unheard intends to prevent the authority to act arbitrarily effecting the rights of the concerned person.

It is a fundamental rule of law that no decision must be taken which will affect the right of any person without first being informed of the case and be given him/ her an opportunity of putting forward his/her case. An order involving civil consequences must be made consistently with the rules of natural justice. In Mohinder Singh Gill & Anr. v. The Chief Election Commissioner & Ors 2 the Constitution Bench held that 'civil consequence' covers infraction of not merely property or personal right but of civil liberties, material deprivations and non- pecuniary damages. In its comprehensive connotation every thing that affects a citizen in his civil life inflicts a civil consequence. Black's Law Dictionary, 4th Edition, page 1487 defined civil rights are such as belong to every citizen of the state or country they include rights capable of being enforced or redressed in a civil action. In State of Orissa v. Dr. (Miss) Binapani Dei & Ors.3, this court held that even an administrative order which involves civil consequences must be made consistently with the rules of natural justice. The person concerned must be informed of the case, the evidence in support thereof supplied and must be given a fair opportunity to meet the case before an adverse decision is taken. Since no such opportunity was given it was held that superannuation was in violation of principles of natural justice."

1 (1993) 3 Supreme Court Cases 259 2 [1978] 2 SCR 272 at 308F 3 AIR 1967 SC 1269 MSM,J WP_24159_2016

In view of the principle, a reasonable opportunity be granted

to petitioner, it is clear from the record that, no opportunity of

hearing afforded to this petitioner before passing such an order

impugned in the writ petition. Though, no specific procedure is

prescribed affording such opportunity to this petitioner, arriving at

various conclusions without affording an opportunity before

passing such an order is clear violation of principles of natural

justice. A bare look at the order impugned in the writ petition, it is

evident that, no opportunity was afforded to this petitioner, thereby

the order is liable to be set-aside for violation of principles of

natural justice.

Another contention raised by the petitioner is that,

comparison of signature of the Tahsildar on the Photostat copy of

the patta with the signature of the Tahsildar in the D.K. Registrer

physically by the second respondent without affording any

opportunity is a serious illegality. A finding is recorded by the

second respondent that, on comparison of the signature of the

Tahsildar on Photostat copy of the patta with the signature of

Tahsildar in D.K. Register, they are not tallying with each other.

Such power to compare the admitted signature with the disputed

signature is conferred on the Court under Section 73 of the Indian

Evidence Act, but not on the administrative authorities. In addition

to that, a Photostat copy is a copy taken from mechanical process.

If the entries are shown accurately as in the original patta, there is

a possibility of arriving at such conclusion. But, the mechanical

process does not show the accuracy on account of blurred

signatures/defective photo copying. Therefore, such comparison is MSM,J WP_24159_2016

impermissible under law, as there is every possibility of change of

signatures due to passage of time and there is every possibility to

sign on the documents in disguise, so as to obtain a favourable

opinion from the handwriting expert. But, what is required as per

law is that, any authentic contemporaneous document containing

signatures of the parties has to be referred along with the disputed

signatures for comparison and opinion.

A similar question came up before this Court in P. Kusuma

Kumari v. State of Andhra Pradesh and another4 wherein this

Court held that disputed signature is required to be referred to the

expert along with admitted signatures of the party, the Court is

bound to refer the document by exercising power under Section 73.

Section 45 of the Act enables the Court to obtain the opinion

of an expert on various aspects, including the one relating to the

comparison of disputed signatures. An expert would be in a

position to render his opinion, only when the original of the

document containing the disputed signature is forwarded to him.

Further, there can be effective comparison and verification of the

signatures, if only another document containing the undisputed

signatures of the contemporary period are made available to the

expert. The opinion of a hand writing expert involves the analysis

of the slant, which a person uses in the matter of putting his

signature, and in some cases, the point of time, at which it may

have been subscribed. These analyses would become possible only

vis-a-vis an original signature; and the signature mark: on a Xerox

2015 (1) ALD (Crl.) 995 MSM,J WP_24159_2016

copy of a document can never constitute the basis. (vide Bheri

Nageswara Rao v. Mavuri Veerabhadra Rao5).

In view of the law declared by High Court in the judgment

referred supra, comparison of disputed signatures on the Photostat

copy with the original signature of the then Tahsildar in D.K.

Register is erroneous. If really, there is any doubt about the

signature, the second respondent ought to have called upon the

petitioner to produce the original patta for limited purpose of

comparison of disputed signature of the Tahsildar on the patta

with the signature available in the D.K. Register. Instead of

resorting to such procedure, the second respondent himself has

gone to the extent of comparing the signature of the Tahsildar

appearing on the Photostat copy with the signature in D.K Register

without any sanction of law. On the other hand, it is contrary to

the law laid down by High Court of Andhra Pradesh in the

judgment referred supra.

Yet, another contention of learned counsel for the petitioner

is that, the petitioner was discriminated from the similar situated

person T. Mohan Babu to whom a patta was granted vide DR File

No.225/1402. The respondents did not grant 'No Objection

Certificate' to T. Mohan Babu and others, as contended by this

petitioner in Paragraph No.5(b) of the writ affidavit. If really, the

said 'No Objection Certificate' was granted either by the third

respondent in favour of T. Mohan Babu or to three other persons to

whom pattas were granted on the same day vide DR File

No.225/1402, such denial of 'No Objection Certificate' to this

2006 (4) ALD 295 MSM,J WP_24159_2016

petitioner while granting 'No Objection Certificate' to other similarly

situated persons is violative of Article 14 of the Constitution of

India. Therefore, such discrimination is sufficient to set-aside the

order passed by the second respondent.

In any view of the matter, there is change of procedure for

registration of land assigned to Ex-servicemen. Once a property is

assigned to an Ex-service man, after lapse of 10 years, the

Government will not have any control on the said land and the said

land becomes absolute property of the Ex-service man. No reasons

are assigned for inclusion of the said properties in the list under

Section 22-A of the Registration Act, 1908. The respondents are

just dodging the matter instead of following guidelines issued in

G.O.Ms.No.279, Revenue (Assn.I) Department, dated 04.07.2016.

The learned Assistant Government Pleader for Revenue,

contended that in view of G.O.Ms.No.279 dated 04.07.2016,

certain guidelines were issued, in view of the said guidelines, no

objection certificate is not required, for sale of property assigned to

Ex-service man. As per G.O.Ms.No.279, dated 04.07.2016, the

Government clarified in sixth para of G.O as follows:

(i)The procedure of issuing „NOC‟ shall be dispense with. There shall be no need for obtaining NOC in all cases of assignment of Ex- servicemen and freedom fighters in which a period of 10 years has expired and there is no dispute on the land with the Government.

(ii)All such cases without dispute shall be deleted from the prohibitory list under Section 22-A of Registration Act, 1908 and furnished to the Registration Department.

(iii) In respect of cases in which there is a dispute with Government about the genuineness of the assignment or otherwise a list of such cases shall be prepared by District Collector and furnished to Registration Department by following the procedure under Section 22- A. The Sub-Registrar shall enter the details of such disputed lands in the online records deleting all other lands in which there is no dispute.

MSM,J WP_24159_2016

In view of guidelines in G.O.Ms.No.279 dated 04.07.2016,

'No Objection Certificate' is not required for sale of land, assigned

to Ex-servicemen, if necessary, on the application of this petitioner

or otherwise intimate the same that no 'No Objection Certificate' is

required to sell the property, in view of the various G.O.Ms.No.279

dated 04.07.2016 discussed above.

In view of my foregoing discussion, I find that the order

passed by the second respondent/District Collector impugned in

the writ petition i.e. Rc.No.1891/2011/E1 dated 12.02.2013 is in

violation of principles of natural justice, discriminatory hit by

Article 14 of the Constitution of India, as the similarly situated

persons are discriminated. The conclusions arrived by the second

respondent comparing the signatures of the Tahsildar on Photostat

copy of the patta with the signature appearing in the D.K. Register

is without any authority of law and that, no 'No Objection

Certificate' is required to sell the property in terms of various G.Os

referred supra; consequently the order is not sustainable under

law. Hence, the order passed by the second respondent/District

Collector in Rc.No.1891/2011/E1 dated 12.02.2013 is declared as

illegal, arbitrary and consequently set-aside the same while

remanding the matter to the second respondent - District Collector

and afford reasonable opportunity to this petitioner before passing

appropriate orders. In case, 'No Objection Certificate' is necessary

for the petitioner, Respondent Nos. 1 & 2 shall adopt the same

procedure for consideration of the application of this petitioner,

which was similarly applied by T. Mohan Babu and three others

and pass appropriate orders in accordance with law.

MSM,J WP_24159_2016

In the result, writ petition is allowed, declaring the order

passed by the second respondent/District Collector in

Rc.No.1891/2011/E1 dated 12.02.2013 as illegal, arbitrary and

consequently set-aside the same while remanding the matter to the

second respondent - District Collector to pass appropriate orders

after affording reasonable opportunity to this petitioner. No costs.

Consequently, miscellaneous petitions pending, if any, shall

also stand closed.

_________________________________________ JUSTICE M. SATYANARAYANA MURTHY Date:12.11.2021 SP