Lalitesh Kumar Katragadda, vs State Of Andhra Pradesh,
2022 Latest Caselaw 9805 AP

                  THE HON'BLE SRI JUSTICE D.RAMESH

                    WRIT PETITION No.8280 of 2020
ORDER:

This writ petition is filed under Article 226 of the Constitution of

India seeking to a direction calling for the records relating to the order

of the 1st respondent passed in G.O.Ms.No.115 Revenue (Land-IV)

Department dated 23.4.2020 and quash the same and consequently

direct the respondents to pay the damages.

2. It is submitted that property admeasuring an extent of

Ac.0.82cents and an extent of Ac.6.00acres of land in Sy.No.81/1 and

83/3 corresponding to Sy.No.81/3P and governed by Patta No. 165,

Marripalem, Visakhapatnam originally belonged to one

J.Bhuvaneshwar Das. The State Government u/Sec. 3(a) of the Urban

Land (ceiling and Regulation) Repealed Act, 1999 issued G.O.Ms.

No.747 dated 18.06.2008 for allotment of excess land which was taken

by the Government under the Principal Act, 1976 to the land

owners/declarants/third parties subject to the conditions mentioned in

the G.O. The legal heirs of the original owner made applications to the

Government for allotment of land. The Special Officer, Urban Land

Ceiling, Visakhapatnam had sent individual reports on each of the legal

heir's application and the same were considered by the Government

and issued G.O.Ms.No.926 dated 31.8.2009 for an extent of 20,465.10

sq. yds and G.O.Ms.No.123 dated 01.8.2009 for an extent of 2686.1 sq.

yds. After issuance of G.O. in favour of the allottees, all the allottees

have executed a registered agreement of sale cum General Power of

Attorney with possession and petitioner was put in possession. A

compound of fencing wall is constructed around the entire allotted area

and there are various fruit bearing trees and the petitioner has also

constructed two temporary structures. Considering the possession of

the petitioner, GVMC also imposed Vacant Land Tax. Petitioner also

made an application to GVMC seeking permission for construction of a

function hall and the same was granted vide B.A.No.13849/2015/ACP-

IV/G2 dated 20.4.2016 with certain conditions.

3. It is further stated that one Yellapu Nageswara Rao, S/o. Late

Appa Rao, claiming to be in possession is also claiming title to the

property on the basis of an unregistered sale deed and has filed

WP.No.5419/2011 in this Hon'ble High Court questioning the order

issued by the government in GOMs.No.926 dated 31.08.2009 wherein

they sought for a declaration that the issuance of GOMS.No.926 dated

31.08.2009 is without jurisdiction and contrary to GOMS.No.747 dt:

18.06.2008 and also sought for a consequential direction to regularize

the land in favour of the writ petitioners therein. The petitioners therein

have raised certain objection with regard to the suppression of facts.

However, the Hon'ble Court without going into the merits of the

contention raised, the Hon'ble Court observed that-

"It is left open to the 1st respondent to take appropriate action strictly in accordance with law in the event it is found that the impugned GO was issued on account of any fraud or misrepresentation and dismissed the writ petition with costs and found the writ petitioner for guilty of Contempt of Court and imposed a fine of Rs.5,000/- each and that order became final."

4. After dismissal of the WP No. 5419/2011, the writ petitioner in

there Mr. Y. Nageswara Rao have made a representation to the Hon'ble

Minister for Revenue on 21.02.2013 with a reference to the order

passed in W.P.No.5419/2011 and requested the authorities to set aside

GOMS No.926 issued in favour of the vendors of the present writ

petitioner, the Hon'ble Minister has forwarded the same to the 2nd

respondent herein and who in turn has forwarded to the 3rd respondent

herein for enquiry. The 3rd respondent made an enquiry and submitted

a report to the Government. Basing on the said report, the 1st

respondent herein issued a show cause notice dated 05.10.2013 to

petitioner's vendors as to why G.O.Ms.No.926 should not be cancelled.

On that, one of the vendors has filed contempt case in the Hon'ble High

Court in C.C.No.83/2014 contending that the issuance of the show

cause notice on the basis of the report submitted by the 3rd respondent

based on the representation submitted by the petitioner in

W.P.No.5419/2011 and which was dismissed on 03.12.2011 as itself is

illegal. When the contempt petition came up for hearing, the

government issued a Memo No.47786/UC.1/2013 dated 19.04.2014

wherein it is clearly mentioned that "as the proceedings are initiated on

the representation of Sri.Y.Nageswara Rao, whom the Hon'ble High court

seriously reprimanded in W.P.No.5419/2011 the issuance of the said

notice at the instance of Sri.Y.Nageswara Rao may attract the contempt

of the orders of Hon'ble High Court in W.P.No. 5419/2011. Hence the

show cause notice issued vide Memo No.47786/UC.1/2013 dated

05.10.2013 and further action in pursuance of the said show cause

notice is hereby withdrawn". The Hon'ble High Court has recorded the

same in the order and closed the contempt case.

5. It is further submitted that the 1st respondent herein again issued

a Show cause notice dated 25.11.2014 as to why the GO issued in

favour of the vendors of the petitioners should not be cancelled in

Memo No.47786/ULC and L Ref-II/2013 dated 25.11.2014 referring to

orders passed by Hon'ble High Court in W.P.No.5419/2011, wherein

the liberty is given to the 1st respondent to take any action for

cancellation of GOMs. No.926 dated 31.08.2009 if it was issued on

account of fraud or misrepresentation. After referring to the

observations in the said order and the report of the 3rd respondent

submitted on 04.04.2013 and 12.08.2013, the 1st respondent has

observed that the issue was placed before the District Level Committee

and committee has opined that the holders of 8(4) orders were not in

physical possession of the land and five applicants have not paid the

total requisite amount calculated as per the provisions given in GO

(Annexure-II) which is against the provisions of G.O.Ms.No.747 and

finally recommended that the subject land should be retained by the

government duly cancelling the orders issued in GOMS.No.926 dated

31.08.2009 as the applicants obtained regularization orders without

physical possession of the land and subject land is a prime one. Basing

on the recommendations made in the report of 2nd respondent dated

06.09.2013, 1st respondent has issued the show cause notice.

6. Explaining to the said show cause notice, it is submitted that the

report of special officer, Urban Land ceiling, Visakhapatnam dated

04.04.2013, 12.08.2013 and 06.09.2013 is invalid on the ground that

earlier on the basis of the very same report, a memo was issued by the

Government on 05.10.2013 and a contempt case was filed and the said

proceedings were withdrawn by the Government. And also submitted

that the said amount was paid by demand drafts and regarding the

non-disclosure of pendency of writ petition, it was within the knowledge

of the Government at the time of issuance of G.O. and also as per the

report of Special Officer dated 04.04.2013, 12.08.2019 it is clearly

mentioned that land was in petitioner's possession and also submitted

that the said amount was paid by demand drafts and regarding the

non-disclosure of pendency of writ petition, it was within the knowledge

of the Government at the time of issuance of G.O. and also submitted

in the report of Special Officer dated 04.04.2013, 12.08.2019 it is

clearly mentioned that land is in petitioner's possession.

7. After considering the contentions raised by the GPA holders of the

allottees, 1st respondent submitted a report recommending to the

government for cancellation of G.O.Ms.No.926 as it is obtained

fraudulently and misrepresenting the facts. Thereafter, Government

cancelled the orders issued in G.O.Ms.No.926 vide and directed the 3rd

respondent to resume the land following due process of law. Following

which the staff came to the site, erected a board cautioning the public

and sealed the gates without following the due process of law. It is

submitted that the impugned order of the 1st respondent dated

23.04.2020 in G.O.M.S.No.115 was passed after 6 years since the

issuance of show cause notice. The provisions of G.O.Ms.No.747 dated

18.06.2008 nor the Repealed Act empower the government to review

the orders passed in terms of G.O.Ms.No.747. In the show cause notice

issued by the 1st respondent there are no specific details regarding the

alleged fraud and misrepresentation. The respondents issued the show

cause notice dated 25.11.2014 on the very same basis of the earlier

show cause notice which was withdrawn.

8. It is further submitted that admittedly there is no dispute with

regard to title of the allottees and their names are reflected in the

orders passed under Section 8(4) of the ULC Act. In the 2009 reports of

spl officer, he clearly observed that the allottees are in possession of the

property. The two grounds on which the impugned order is passed are

no grounds to exercise the power of review or the said grounds fall

within the parameters laid down by this Hon'ble Court in Writ Petition

No. 5419/2011 and WP.No.27205/2014.

9. With regard to the allegation that besides the

W.P.No.10974/2009, there are two more Writ Petitions 21315 of 2009

and WP. No. 5166 of 2008 were pending and they were not brought to

the notice of the government, it is submitted that in the report sent by

the then special officer, ULC, it was clearly mentioned about the said

writ petitions. However, they were already dismissed as withdrawn. The

aforesaid aspects were clearly mentioned in the explanation, but the 1st

respondent did not take the explanation into consideration. The Zonal

Commissioner, Zone-IV, GVMC, Visakhapatnam has addressed a letter

to the petitioner on 16.04.2020 requesting to give consent for

establishing a temporary vegetable selling market in my premises which

implies the ownership. It is further submitted that the 1st respondent

had not given any reasons for passing the impugned order. This

Hon'ble court was pleased to pass an interim order in W.P.No.8130 of

2020 on 26.03.2020 directing the Revenue, Municipal authorities not to

resort to the acts of dispossession or demolitions for a period of two

months. In spite of the same, respondents high handedly evicted the

watchman and his pregnant wife by using police force and demolished

hoardings of bakery existing in the premises.

10. Considering the said facts this Court has passed the following

interim order on 28.4.2020.

..."The respondent State is also directed to maintain the status quo existing and not to carry out any activity whatsoever in the said site or allot the same to third parties etc. The situation existing on the ground should be preserved till the matter is heard."

11. Reply to the contentions of the petitioner, the 1st respondent has

filed counter in which it is stated that the land admeasuring an extent

of Hec.4.2280 sq.mtrs covered by Sy.No.s 81/1 and 3 of Marripalem

village of Vishakhapatnam Mandal (presently in Gopalapatnam Mandal)

originally belonging to one Sri Josyula Bhuvaneshwar Das, he has filed

declaration u/S.6(1) of the Urban Land(ceiling & Regulation) Act, 1976.

Thereafter S.10(5) notices were issued and on the order under S.10(6)

was issued on 12-10-1992. Later the land was allotted to Society for

Employment and Training, Visakhapatnam (SETVIS) by the government

u/S.23 of the Act vide G.O.Ms.No.1156 Revenue (UC-I) Department

dated 20-12-1991. But the SETVIS did not utilize the same for public

purpose for which it was allotted. As such the same was allotted to

Visakha Urban Development Authority (VUDA) vide G.O.Ms.No. 348

dated 16.4.1994. The petitioner has made a representation after 11

years i.e., on 01.7.2005 and approached this Hon'ble Court in

W.P.No.16711 of 2005 seeking a direction to consider his

representation which was disposed of by directing the respondents to

consider his representation. Pursuant to that he made two more

representations dated 06.01.2006 and 06.11.2006 but the same were

rejected by the Special Officer, ULC vide his order dated 09.11.2006.

On that contempt was filed bearing C.C.No.915 of 2006 and the Hon'ble

Court was pleased to close the contempt on 29.01.2008 giving liberty to

J.Satyanarayana Das and others to pursue appropriate remedy.

Instead of approaching the appropriate forum, J.Satyanarayana Das

and others filed another W.P.No.5166 of 2008. Thereafter, the aforesaid

land was regularised vide G.O.Ms.No.926 in favour of J.Satyanarayana

Das, who was the legal heir of J.Bhubaneswar Das on the

recommendation given by the special officer, even though the

petitioners therein did not satisfy the criteria prescribed for such

regularization.

12. At this juncture, it is pertinent to mention that the above surplus

land was allotted to Andhra Pradesh Industrial Infrastructure

Corporation (APIIC) Limited for establishment of IT Industries Vide

G.O.Ms.No.774 dated 07.06.2007. Subsequently, the same was kept in

abeyance vide G.O.Ms.No.803 dated 12.06.2007 owing to the pendency

of contempt proceedings. As the possession over the subject land was

taken way back in 1994, the land is vested with Government only.

Further, the Government vide G.O.Ms.No.747 dated 18.06.2008 issued

policy guidelines for allotment of excess lands which are already under

occupation of 3rd parties and declarants in core and peripheral areas

subject to fulfilment of certain conditions. Some of the conditions which

are appropriate for the case on hand are reproduced below:

i. These orders shall not apply to the cases where allotment of land has already been made by the Government prior to these orders and decided to be retained by the Government for public purpose.

ii. The allotment shall be subject to withdrawal of all litigations filed either by the occupant of excess land, or the excess land holder, or any other interested person and pending, other than those covered under the Repeal Act relating to the excess land as on the date of this G.O.

iii. The allotment shall be subject to payment of amount to Government at the rates indicated separately for each agglomeration in Schedule-I

iv. Allotment under these orders shall be confined to:

a. Excess land in the occupation of third parties, (other than the excess land holder or his successors) where such occupation is evidenced by a registered document of purchase from the excess land holder or person claiming through him/her regardless of the fact of such land being covered by a structure or not.

b. Excess land in the occupation of land owner / declarant / his or her successor with or without structure where such occupation

i. is evidenced by the latest orders us 8(4) of the repealed Act.

c. Allotment of vacant surplus land in favour of third party occupants, not covered by any registered document of purchase shall not be considered under these orders.

d. Further, as per the last paragraph of the said G.O, the Government shall be competent to refuse or reject any case of allotment of excess land, even though it otherwise satisfies all the conditions prescribed in this order, if such allotment of excess land with or

without structures thereon is not in public interest or if such land is required for a public purpose. The decision of the Government in this regard shall be final and shall not be questioned in any court of law. In cases where allotment is refused or rejected, the compensation amounts paid along with application shall be refunded without any interest to the applicant.

13. In the year 2009, Sri. J.Satyanarana Das and 14 others, who are

declarants/family members of the declarants have applied for

regularization of surplus land admeasuring 17,135 sq. meters in terms

of G.O.Ms.No.747 Dated 18.06.2008 as if they were in occupation of

surplus land resumed to Government. Accordingly, the then Special

Officer & CA, Visakhapatnam has submitted proposals to the

Government. Further, the Government vide G.O.Ms.No.926

Dt.31.08.2009 issued orders regularizing the above said land in favour

of them. Thereafter, one Sri Yellapu Nageswara Rao has filed a

complaint petition before the Principal Secretary to the Government,

Revenue Department, A.P., Hyderabad alleging that his mother Smt.

Yellapu Raghavamma had purchased the land from Sri Josyula

Bhuvaneswar Das in the year 1965, but Sri Josyula Satyanarayana das

and others obtained regularization orders in their favour illegally. The

then Special Officer, Urban Land Ceiling, Visakhapatnam has enquired

into the matter and found that the individuals who have obtained

regularization orders in their favour are not in possession of the land

and obtained orders irregularly.

14. The matter was placed before the District Level Screening

Committee. The Committee has opined that the holders of 8(4) orders

i.e., Josyula family did not have physical possession over the land and

this aspect was also agreed by the then Special Officer, ULC from

10.04.1994 the land has been in the continuous possession of VUDA,

and that 05 applicants namely 1) Srinivas Misra 2) Gowri Prasad

Gripati 3) J.Indira Das 4) J.Manorama Das and 5) J.Manoranjan Das

have not paid the total requisite amount and this is ultravires and

finally recommended that the land should be retained by the

Government duly rejecting the claim of the applicants. The

observations of the district level screening committee were submitted to

the Government by the then S.O. ULC, Visakhapatnam Vide Lr.CC

No.4567176 B2 Dt. 12.08.2013 duly recommending to cancel the

regulation orders issued vide G.O.Ms. No.926 Dt.31.8.2009. Further,

the ACB and Vigilance authorities have also enquired into the matter

and submitted their confidential reports to the Government.

Thereafter, the Govt, vide Memo No.47786/ULC & L.REFs-2/2013

Revenue (ULC & L.REFs.) Department Dated 25.11.2014 have issued

show-cause notice to the allottees as to why the land regularization

orders should not be cancelled since they obtained the same by

misrepresentation of facts without having possession over the land and

also while pending of court cases on the claim land. The original

allottees did not submit reply to the show cause notice. But, one Sri

N.Somasekhar, who is claimed to be GPA holder of allottees has

submitted reply to the Government 10.12.2014. But the present writ

petitioner Sri Lalitesh Kumar Katragaddaa who is also claimed to be

G.P.A holder of the allottees has not submitted any reply to the

Government.

15. Meanwhile a writ petition No.5419/2011 was also filed before this

Hon'ble High Court against the government and also Jyosula family

which was dismissed with costs and liberty is given to 1st respondent

(Prl. Secretary to Government, Revenue Dept.) to take appropriate

action against respondent No.2 if any of these reports indicate latter

(fraud or misrepresentation). The dismissal of this Writ Petition also

shall not be understood as this Court upholding the validity of the

impugned G.O. issued in favour of the private respondents.

16. After passing orders u/s.10(6) of the Urban Land (ceiling

&Regulation) Act, 1976 on 12.10.1992, possession of the land was

taken and handed over to VUDA and the declarants were not in

possession of the land, they deliberately suppressed the facts and got

the regularization orders by misrepresentation. The fencing around the

subject land was also laid down by VUDA and there are only 9 mango

trees and except the name board of Bakery there is no bakery running

in the disputed site. After having obtained the land vide G.O.Ms.

No.926 Dt.31.08.2009 the allottees or the present petitioner might have

occupied the land. But the issue is regarding possession at the time of

regularization.

17. The Government, after having examined all these issues have

issued orders vide G.O.Ms.No.115 Revenue (Lands-IV) Dept.

Dt.23.04.2020 duly cancelling the orders issued vide G.O.Ms.No.926

Revenue (UC.I) Department dt.31-08-2009 and also directed the Special

Officer and the Competent Authority, Urban Land Ceiling,

Visakhapatnam to resume the land by following the due process of law.

Accordingly, the subject land measuring an extent of 17,135 Sq. Mtrs

in Sy.No.81/3 of Marripalem Village of Gopalapatnam Mandal, which

was allotted to Sri Josyula Satyanarayana Das and others, was

resumed to Government on 24.04.2020 in the presence of the

mediators by conducting Pancahnama and at present the land is in the

possession of the Tahsildar, Gopalapatnam Mandal.

18. In the order passed in WP NO.5419/2011 the court also observed

that the dismissal of the writ petition shall not be understood as this

court upholding the validity of the impugned G.O. issued in favour of

the private respondents. The respondent has agreed the withdrawal of

the Show cause notice dated 05.102013 vide Memo

No.47789/UC.I/2013 dated 19.04.2014 and also agreed that upon the

complaint petition filed by Sri Yellapu Nageswararao, the then SO, ULC,

Visakhapatnam has enquired into the matter. It is true that at the time

of enquiry in the year 2013, the petitioner was in possession. But the

question is whether they were in possession at the time of filing for

application for regularization orders and when the matter got enquired

into by the then Special Officer & CA, ULC Visakhapatnam and found

that they were not in possession of the land, this aspect was also

agreed by one of Josyula the family member i.e. Josyula Vijaya Kumar

Das as per statements recorded on 30-03-2013 by the then SO, ULC,

Visakhapatnam. With regard to the issue of payment of amount by 5

applicants, it is submitted that they have not paid the amount at the

time of submission of proposals to the Government for regularization of

surplus land, they paid after issuance of regularization orders vide

G.O.Ms.No.926 dt.31.08.2009. The government has issued show cause

notice and has vacated one watchman residing in site by informing him

the facts and he wilfully vacated the premises. As such respondents

have followed the due process of law.

19. Replying with regard to the allegation that neither the G.O.Ms.No

747 dated 18.06.2008 nor the repealed Act empower the Government to

review the orders passed in terms of G.O.M.S No. 747 it is submitted

that since the government have every right to review the orders

obtained fraudulently on misrepresentation and suppression of facts.

Further the Hon'ble High court has also given the liberty to 1st

respondent. The excess land will be regularized u/s 8(4) only when it is

in the possession of land owner/declarant/his or her successor only

and regularization orders shall not apply to the cases where allotment

of land has already been made by the Government prior to these orders

and decided to be retained by the Government for public purpose. And

the Josyula family did not have physical possession over the land at the

time of making application for regularization of land. It is clearly

mentioned in the show cause notice issued on 25.11.2014 by the 1st

respondent that the subject lands were handed over to the VUDA way

back in 1994.

20. It is submitted that if the cancellation orders were issued basing

on the previous memo dated 05.10.2013, the petitioner can raise

objection. But the cancellation orders were issued after giving an

opportunity as to why it should not be cancelled which was obtained by

fraud and misrepresentation to which neither the petitioner

representing to be the GPA holder of allottees nor the vendors of the

petitioner has submitted any explanation. As Such the government has

cancelled after following the due process.

21. Replying with regard to no specific allegation it is submitted that

there are specific allegations of playing fraud without having possession

over the land which is crucial aspect in terms of G.O.Ms.No.747 and

other aspects were also clearly mentioned. It is submitted that the

petitioner has no locus standi to file present writ petition as he has no

clear title. When the title of his vendors is under dispute, he cannot get

any relief on the plea that he has purchased the same from his vendors

for consideration of value. The Zonal commissioner, GVMC might have

addressed a letter requesting the petitioner to give consent for

establishing a vegetable selling market due to covid-19 situation, but

that would not confer any title over the land. Further, the petitioner has

not resumed the land regularized in G.O.M.S No.123 dt 10.02.2010. It

is submitted that there was no demolition against the interim order

granted in W.P.No.8130 of 2020 on 26.03.2020 and the land was also

resumed peacefully. The possession of the land in dispute was taken

way back in the year 1992 after having passed orders u/s 10(6) of the

ULC Act 1976, and the same was handed over to the VUDA. As such

the land has been in possession of VUDA since 1994. After lapse of 15

years the declarants and their heirs have applied for regularization.

22. It is submitted the petitioner being a GPA holder of original

allottees, he is supposed to act on behalf of the original allottees only,

but deliberately stating that he has obtained Vacant Land Tax

assessment as well as building plan approval in his favour without

having clear title over the land in dispute. As per the provision of

G.O.Ms.No.747 Dt. 18.06.2008, the decision of the Government in

allotting the excess land or to refuse or reject shall be final and shall

not be questioned in any court of law. In cases where allotment is

refused or rejected, the compensation amounts paid along with

application shall be refunded without any interest to the applicant.

Though, the allottees obtained regularization orders fraudulently by

misrepresentation and suppression of facts, it is decided to refund the

amount on humanitarian grounds and action has already been initiated

to refund the total amount of Rs.5,75,91,450/- (Rupees Five Crore

Seventy-five Lakh Ninety-one thousand four hundred and fifty only) to

the allottees. The Notices are also being issued to the allottees to

furnish the details of their bank accounts.

23. Basing on the above pleadings learned senior counsel Sri

O.Manohar Reddy appearing on behalf of the petitioner contended that the

petitioners are claiming the land by virtue of Section 8(4) of Urban Land

Ceiling Act where an order is passed after considering the objections

raised against the regularization of the land. That during hearing of the

W.P.No.20759 of 2009 petitioners in that writ petition sought for vigilance

report from respondent No.1 on allegations made against respondent No.2

including the illegality committed by her in regularizing the subject land in

favour of the private respondents where in the learned Assistant

Government Pleader submitted the ACB report in a sealed cover in which

it is stated that among the allegations levelled against her, the allotment of

subject land relates to item no.12 and the said item no.12 is the subject

property of the writ petition after thorough verification of records it was

found that the allegations relating to item No.12 are not substantiated.

24. The then Special Officer, Urban Land ceiling in his report to the

Principal Secretary dated 18.05.2009 submitted covering the orders

passed under section 10(6) and the allotments of land to different

authorities and also the writ petitions filed against the subject land by the

co declarants and after self-inspection expressed his desirability that the

surplus extent of 1871 sq.mtrs be allotted in favour of Sri Vijaya Kumar

Das. It is pertinent to mention that W.P.27205 of 2013 is filed by original

allottees on apprehension that the official respondents may enlarge the

scope of enquiry, wherein the Hon'ble court declined to interdict and

disposed of the writ petition reiterating the observations made by this

court in W.P.No.5419 of 2011.

25. It is contended that the initial show cause notice dated 05-10-2013

which was initiated on the representation of Sri Y.Nageswara Rao, whom

this Hon'ble court had seriously reprimanded was withdrawn by Principal

Secretary (dated 19.04.2014) for the reason that it may attract contempt

against the official respondents. It is further submitted that G.O.Ms.116

issued cancelling the G.O.Ms.No.926 on the ground that it has obtained

fraudulently and misrepresenting the facts. The main reasons for

withdrawal are 5 allottees have not paid requisite fee and the petitioners

suppressed the facts pertaining to filing of writ petitions. With regard to

the allegation of the deficit fee which was also raised in the earlier show

cause notice fee has already been paid immediately after issuing

G.O.Ms.No.926 and the aspect is very much within the knowledge of

Government at the time of passing the orders. With regard to the

allegation of pendency of writ petitions, a reading of the then Special

Officer's report to the Government clearly shows the disclosure of the writ

petitions 1) W.P.No.21315 of 2008 which was filed by third parties and

was dismissed 2) W.P.No:5166 of 2008 filed by allottees was withdrawn on

09.12.2009 and 3) the other writ petition No.10974 of 2009 filed by

Y.Nageswara Rao and others and the same was disposed of prior to the

issuance of G.O.Ms.No.926 which ought not have taken into account. Out

of three writ petitions, two writ petitions were filed by third parties as such

petitioners are not concerned with them and the writ petition filed by the

allottees was also withdrawn. As there was no writ petition pending at the

time of allotment, respondents cannot say that the petitioner has played

fraud by suppressing the facts. It is further contended that except

repeating the words fraud and misrepresentation there are no specific

details of the alleged fraud played by the allottees for getting the land

allotted in their favour. With regard to the possession of allottees is

concerned surveyor's verification in the presence of the then Special

Officer, Urban Land Ceiling states that the allottees are in possession of

the subject property. Even the latest report of special officer ULC

dt.04.04.2013 states that the land is in occupation of Mr.Lalitesh who is a

subsequent purchaser. The G.O.Ms.No.926 itself speaks withdrawal of

initial allotment of land to State's organization.

27. It is contended that this Hon'ble court specifically directed the 1st

respondent to afford an opportunity of personal hearing before passing

any adverse order but no such opportunity was given and the impugned

order is passed after a period of 6 years from the date of issuance of said

show cause notice. It is further contended that neither the provisions of

G.O.M.S.No.747 dated 18.06.2008 nor the repealed Act empower the

government to review the orders passed in terms of G.O.M.S.No.747.Hence

the 1st respondent has no authority to review the orders passed vide

G.O.M.s No.926 dated 31.08.2009 when the allegations made in the show

cause notice does not fall within the parameters mentioned in WP

No.5419/2011. As such the order passed by the 1st respondent is illegal

and without any jurisdiction. Contrary to the observations of the orders of

this Court in W.P.No.5419 of 2011 to which State is also a party,

Government has passed impugned order cancelling the G.O.Ms.No.926.

28. After withdrawing the 1st Show cause notice, again on the very same

basis, the present impugned show cause notice dated 25.11.2014 was

issued. The 1st respondent has passed orders basing on the findings of

the committee. This Hon'ble court in W.P no 5419 of 2011 filed by third

party has noted that the petitioner therein has suppressed the facts and

the petition is liable to be thrown out for the conduct of the petitioners.

Upon such person's representation a show cause notice was issued to the

vendors of the petitioner. When a contempt is filed against the issuance of

show cause notice basing on the representation of Sri. Y. Nageswara rao,

the notice was withdrawn and thereby the said contempt was closed. The

second report of Special Officer dated 04.04.2013 in which one of the

family members i.e., Josyula Vijayakumar Das(GPA Holder)made a

statement that the land title and orders u/S.8(4) are in favour of the

allottees and the physical possession and enjoyment is in favour of them.

This position should have brought to the notice of the government by the

then Spl. Officer and competent authority through his report while

sending the proposals to take a suitable decision by the government.

29. It is further contended that a person who is likely to face adverse

consequences of any administrative or quasi-judicial order has to be given

notice where in it has to be precisely informed about the allegations upon

which action is proposed and an adequate opportunity has to be given to

explain but in the case at hand no such information was given in the

notice to the petitioner. It is contended that one Smt. Brundavathi

Mahapatro, W/o.Mahadeva Mahapatro APL Applicant of Visakhapatnam

has sought for allotment of an extent of 1870 sq.mts of surplus land in

S.No.81/3D of Marripalem village in terms of G.O.M.s No.747. on that the

special officer, ULC submitted a report to the Principal Secretary

Government wherein she observed that the applicant is in occupation of

the property since 1981 thereby recommending to allot surplus extent of

1870 sq.mts in S.No.81/3D of Marripalem Village, Visakhapatnam in

favour of Smt.Brundavathi Mahapatro.

30. Refuting to the above, the learned Advocate General has made the

following submissions.

The learned Advocate General has contended that the petitioners in

W.P.No.5419 of 2011 have misread the G.O.Ms.No.747 in the sense that

regularization of the excess land in the occupation of third parties, where

such occupation is evidenced by a registered document of purchase from

the excess land owner (or) person claiming through him/her regardless of

the fact of such land being covered by a structure or not and the same has

no application to the declarants or persons claiming through them. Hence

the Respondents therein or his successors are not entitled for

regularization. He further submitted that G.O.M.s 747 specifically

contemplates 2 situations, which are "allotment of land to third parties in

occupation" /or "Land owners" but not only to third parties.

31. As it is the contention of the private respondents in the W.P. 5419 of

2011 that the petitioners there in have not come to the court with clean

hands, and this Hon'ble court keeping in mind the interparty suit, earlier

writ petitions and filing of contempt by suppressing facts has observed

that the writ be dismissed without going into the merits and has given

liberty to the 1st respondent to take appropriate action if the impugned

G.O. was issued on account of any fraud or misrepresentation. In view of

the above said order, the 1st respondent has conducted enquiry and found

that the petitioners obtained the said G.O by suppressing the facts, as

such issued the order vide G.O.M.s 116 cancelling the G.O.M.s 747.

32. In the above said writ petition adjudication happened is about the

conduct of party, and this Court has neither gone into the validity of fraud

nor into the merits of procedure of GO and has given liberty to the 1st

respondent i.e., State to take appropriate action. Then state has looked

into GO and has passed the order on the liberty given by this Court. The

petitioners in W.P.No.5419 made a claim on the subject land on set of

transactions under sale deed dated 18.10.2015 purchased by their mother

from one Josyula Bhuvaneswara Das, When the special officer threatened

to evict them from land without passing any order on their representation,

they filed W.P.No.10947 of 2008 wherein this Hon'ble Court directed to

consider their representation. Despite of the said order, the then special

Officer made a recommendation to government for allotment of their land

to third parties and consequentially government passed G.O.M.s 926

rejecting his representation as he has no document to prove his title.

When writ petitioner seeks enforcement of GO they are required to make

this Court understand their basis to claim such right; the onus is on the

petitioner to show that G.O. 926 is in accordance with G.O.Ms.No.747.

33. The learned Advocate General has further contended that the

present impugned orders are not reviewing but recalling the order passed

by them as it was passed on the basis of fraud and misrepresentation. The

petitioners herein has willfully suppressed the facts regarding the filing of

writ petitions thereby played fraud and misrepresented in obtaining the

G.O.926, hence the State has every power to recall the orders, if it

obtained by playing fraud. To support his contentions he has relied on the

following judgments.

1. Commissioner of Customs v. Essar Oil Ltd.,1 wherein the Hon'ble Supreme Court has recited that:

30. A "fraud" is an act of deliberate deception with the design of securing something by taking unfair advantage of another. It is a deception in order to gain by another's loss. It is a cheating intended to get an advantage.

31. "Fraud" as is well known vitiates every solemn act. Fraud and justice never dwell together. Fraud is a conduct either by letter or words, which includes the other person or authority to take a definite determinative stand as a response to the conduct of the former either by words or letter. It is also well settled that misrepresentation itself amounts to fraud. Indeed, innocent misrepresentation may also give reason to claim relief against fraud. A fraudulent misrepresentation is called deceit and consists in leading a man into damage by wilfully or recklessly causing him to believe and act on falsehood. It is a fraud in law if a party makes representations, which he knows to be false, and injury enures there from although the motive from which the representations proceeded may not have been bad. An act of fraud on court is always viewed seriously. A collusion or conspiracy with a view to deprive the rights of the others in relation to a property would render the transaction void ab initio. Fraud and deception are synonymous. Although in a given case a deception may not amount to fraud, fraud is anathema to all equitable principles and any affair tainted with fraud cannot be perpetuated or saved by the application of any equitable doctrine including res judicata. (See Ram Chandra Singh v. Savitri Devi [(2003) 8 SCC 319] .)

32. "Fraud" and collusion vitiate even the most solemn proceedings in any civilised system of jurisprudence. It is a concept descriptive of human conduct. Michael Levi likens a fraudster to Milton's sorcerer, Comus, who exulted in his ability to "wing me into the easy-hearted man and trap him into snares". It has been defined as an act of trickery or deceit. In Webster's Third New International Dictionary "fraud" in equity has been defined as an act or omission to act or concealment by which one person obtains an advantage

(2004)11 SCC 364

against conscience over another or which equity or public policy forbids as being prejudicial to another. In Black's Legal Dictionary, "fraud" is defined as an intentional perversion of truth for the purpose of inducing another in reliance upon it to part with some valuable thing belonging to him or surrender a legal right; a false representation of a matter of fact whether by words or by conduct, by false or misleading allegations, or by concealment of that which should have been disclosed, which deceives and is intended to deceive another so that he shall act upon it to his legal injury. In Concise Oxford Dictionary, it has been defined as criminal deception, use of false representation to gain unjust advantage; dishonest artifice or trick. According to Halsbury's Laws of England, a representation is deemed to have been false, and therefore a misrepresentation, if it was at the material date false in substance and in fact. Section 17 of the Indian Contract Act, 1872 defines "fraud" as act committed by a party to a contract with intent to deceive another. From dictionary meaning or even otherwise, fraud arises out of deliberate active role of the representator about a fact, which he knows to be untrue yet he succeeds in misleading the representee by making him believe it to be true. The representation to become fraudulent must be of a fact with knowledge that it was false. In a leading English case i.e. Derry v. Peek [(1886-90) All ER Rep 1 : (1889) 14 AC 337 : 58 LJ Ch 864 : 61 LT 265 (HL)] what constitutes "fraud" was described thus (All ER p. 22 B-C):

"[F]raud is proved when it is shown that a false representation has been made (i) knowingly, or (ii) without belief in its truth, or (iii) recklessly, careless whether it be true or false."

But "fraud" in public law is not the same as "fraud" in private law. Nor can the ingredients, which establish "fraud" in commercial transaction, be of assistance in determining fraud in administrative law. It has been aptly observed by Lord Bridge in Khawaja v. Secy. of State for Home Deptt. [(1983) 1 All ER 765 : 1984 AC 74 : (1982) 1 WLR 948 (HL)] , that it is dangerous to introduce maxims of common law as to effect of fraud while determining fraud in relation to statutory law. "Fraud" in relation to statute must be a colourable transaction to evade the provisions of a statute.

" 'If a statute has been passed for some one particular purpose, a court of law will not countenance any attempt which may be made to extend the operation of the Act to something else which is quite foreign to its object and beyond its scope.' Present-day concept of fraud on statute has veered round abuse of power or mala fide exercise of power. It may arise due to overstepping the limits of power or defeating the provision of statute by adopting subterfuge or the power may be exercised for extraneous or irrelevant considerations. The colour of fraud in public law or administrative law, as it is

developing, is assuming different shades. It arises from a deception committed by disclosure of incorrect facts knowingly and deliberately to invoke exercise of power and procure an order from an authority or tribunal. It must result in exercise of jurisdiction which otherwise would not have been exercised. That is misrepresentation must be in relation to the conditions provided in a section on existence or non- existence of which power can be exercised. But non-disclosure of a fact not required by a statute to be disclosed may not amount to fraud. Even in commercial transactions non-disclosure of every fact does not vitiate the agreement. 'In a contract every person must look for himself and ensures that he acquires the information necessary to avoid bad bargain.' In public law the duty is not to deceive." (See Shrisht Dhawan v. Shaw Bros. [(1992) 1 SCC 534] , SCC p. 554, para 20.)

33. In that case it was observed as follows: (SCC p. 553, para 20) "20. Fraud and collusion vitiate even the most solemn proceedings in any civilised system of jurisprudence. It is a concept descriptive of human conduct. Michael Levi likens a fraudster to Milton's sorcerer, Comus, who exulted in his ability to, 'wing me into the easy-hearted man and trap him into snares'. It has been defined as an act of trickery or deceit. In Webster's Third New International Dictionary fraud in equity has been defined as an act or omission to act or concealment by which one person obtains an advantage against conscience over another or which equity or public policy forbids as being prejudicial to another. In Black's Legal Dictionary, fraud is defined as an intentional perversion of truth for the purpose of inducing another in reliance upon it to part with some valuable thing belonging to him or surrender a legal right; a false representation of a matter of fact whether by words or by conduct, by false or misleading allegations, or by concealment of that which should have been disclosed, which deceives and is intended to deceive another so that he shall act upon it to his legal injury. In Concise Oxford Dictionary, it has been defined as criminal deception, use of false representation to gain unjust advantage; dishonest artifice or trick. According to Halsbury's Laws of England, a representation is deemed to have been false, and therefore a misrepresentation, if it was at the material date false in substance and in fact. Section 17 of the Contract Act defines fraud as act committed by a party to a contract with intent to deceive another. From dictionary meaning or even otherwise fraud arises out of deliberate active role of representator about a fact which he knows to be untrue yet he succeeds in misleading the representee by making him believe it to be true. The representation to become fraudulent must be of fact with knowledge that it was false. In a leading English case Derry v. Peek [(1886-90) All ER Rep 1 : (1889) 14 AC 337 : 58 LJ

Ch 864 : 61 LT 265 (HL)] what constitutes fraud was described thus: (All ER p. 22 B-C) 'Fraud is proved when it is shown that a false representation has been made (i) knowingly, or (ii) without belief in its truth, or (iii) recklessly, careless whether it be true or false.' "

34. This aspect of the matter has been considered recently by this Court in Roshan Deen v. Preeti Lal [(2002) 1 SCC 100 : 2002 SCC (L&S) 97] , Ram Preeti Yadav v. U.P. Board of High School and Intermediate Education [(2003) 8 SCC 311] , Ram Chandra Singh case [(2003) 8 SCC 319] and Ashok Leyland Ltd. v. State of T.N. [(2004) 3 SCC 1]

35. Suppression of a material document would also amount to a fraud on the court. (See Gowrishankar v. Joshi Amba Shankar Family Trust [(1996) 3 SCC 310] and S.P. Chengalvaraya Naidu case [(1994) 1 SCC 1] .)

36. "Fraud" is a conduct either by letter or words, which induces the other person or authority to take a definite determinative stand as a response to the conduct of the former either by words or letter. Although negligence is not fraud but it can be evidence on fraud; as observed in Ram Preeti Yadav case [(2003) 8 SCC 311] .

37. In Lazarus Estates Ltd. v. Beasley [(1956) 1 QB 702 : (1956) 1 All ER 341 : (1956) 2 WLR 502 (CA)] Lord Denning observed at QB pp. 712 and 713 : (All ER p. 345 C) "No judgment of a court, no order of a minister, can be allowed to stand if it has been obtained by fraud. Fraud unravels everything." In the same judgment Lord Parker, L.J. observed that fraud vitiates all transactions known to the law of however high a degree of solemnity (p. 722).

2. Bhaurao Dagdu Paralkar v. State of Maharashtra2, wherein the Hon'ble Supreme Court has recited that:

10. A "fraud" is an act of deliberate deception with the design of securing something by taking unfair advantage of another. It is a deception in order to gain by another's loss. It is a cheating intended to get an advantage. (See S.P.Chengalvaraya Naidu v. Jagannath [(1994) 1 SCC 1])

11. "Fraud" as is well known vitiates every solemn act. Fraud and justice never dwell together. Fraud is a conduct either by letters or words, which induces the other person or authority to take a definite determinative stand as a response to the conduct of the former either by words or letters. It is also well settled that misrepresentation itself amounts to fraud. Indeed, innocent misrepresentation may also give

(2005) 7 SCC 605

reason to claim relief against fraud. A fraudulent misrepresentation is called deceit and consists in leading a man into damage by wilfully or recklessly causing him to believe and act on falsehood. It is a fraud in law if a party makes representations, which he knows to be false, and injury ensues therefrom although the motive from which the representations proceeded may not have been bad. An act of fraud on court is always viewed seriously. A collusion or conspiracy with a view to deprive the rights of others in relation to a property would render the transaction void ab initio. Fraud and deception are synonymous. Although in a given case a deception may not amount to fraud, fraud is anathema to all equitable principles and any affair tainted with fraud cannot be perpetuated or saved by the application of any equitable doctrine including res judicata. (See Ram Chandra Singh v. Savitri Devi [(2003) 8 SCC 319] .)

12. In Shrisht Dhawan v. Shaw Bros. [(1992) 1 SCC 534] , it was observed as follows: (SCC p. 553, para 20) "Fraud" and collusion vitiate even the most solemn proceedings in any civilised system of jurisprudence. It is a concept descriptive of human conduct. Michael Levi likens a fraudster to Milton's sorcerer, Camus, who exulted in his ability to, "wing me into the easy-hearted man and trap him into snares". It has been defined as an act of trickery or deceit. In Webster's Third New International Dictionary "fraud" in equity has been defined as an act or omission to act or concealment by which one person obtains an advantage against conscience over another or which equity or public policy forbids as being prejudicial to another. In Black's Law Dictionary, "fraud" is defined as an intentional perversion of truth for the purpose of inducing another in reliance upon it to part with some valuable thing belonging to him or surrender a legal right; a false representation of a matter of fact whether by words or by conduct, by false or misleading allegations, or by concealment of that which should have been disclosed, which deceives and is intended to deceive another so that he shall act upon it to his legal injury. In Concise Oxford Dictionary, it has been defined as criminal deception, use of false representation to gain unjust advantage; dishonest artifice or trick. According to Halsbury's Laws of England, a representation is deemed to have been false, and therefore a misrepresentation, if it was at the material date false in substance and in fact. Section 17 of the Contract Act, 1872 defines "fraud" as an act committed by a party to a contract with intent to deceive another. From the dictionary meaning or even otherwise fraud arises out of the deliberate active role of the representator about a fact, which he knows to be untrue yet he succeeds in misleading the representee by making him believe it to be true. The representation to become fraudulent must be of fact with knowledge that it was false. In a leading English case i.e. Derry v. Peek [(1886-90) All ER Rep 1 :

(1889) 14 AC 337 : 61 Lt 265 (HL)] what constitutes "fraud" was described thus: (All ER p. 22 B-C) "Fraud is proved when it is shown that a false representation has been made (i) knowingly, or (ii) without belief in its truth, or (iii) recklessly, careless whether it be true or false." But "fraud" in public law is not the same as "fraud" in private law. Nor can the ingredients, which establish "fraud" in commercial transaction, be of assistance in determining fraud in administrative law. It has been aptly observed by Lord Bridge in Khawaja v. Secy. of State for Home Deptt. [(1983) 1 All ER 765 : 1984 AC 74 : (1982) 1 WLR 948 (HL)] that it is dangerous to introduce maxims of common law as to the effect of fraud while determining fraud in relation of statutory law. "Fraud" in relation to the statute must be a colourable transaction to evade the provisions of a statute.

" 'If a statute has been passed for some one particular purpose, a court of law will not countenance any attempt which may be made to extend the operation of the Act to something else which is quite foreign to its object and beyond its scope.' Present day concept of fraud on statute has veered round abuse of power or mala fide exercise of power. It may arise due to overstepping the limits of power or defeating the provision of statute by adopting subterfuge or the power may be exercised for extraneous or irrelevant considerations. The colour of fraud in public law or administrative law, as it is developing, is assuming different shades. It arises from a deception committed by disclosure of incorrect facts knowingly and deliberately to invoke exercise of power and procure an order from an authority or tribunal. It must result in exercise of jurisdiction which otherwise would not have been exercised. That is misrepresentation must be in relation to the conditions provided in a section on existence or non- existence of which power can be exercised. But non-disclosure of a fact not required by a statute to be disclosed may not amount to fraud. Even in commercial transactions non-disclosure of every fact does not vitiate the agreement. 'In a contract every person must look for himself and ensure that he acquires the information necessary to avoid bad bargain.' In public law the duty is not to deceive." (See Shrisht Dhawan v. Shaw Bros. [(1992) 1 SCC 534] , SCC p. 554, para 20.)

3. Lambadi Pedda Bhadru v. Mohd. Ali Hussain3 wherein the Hon'ble Supreme Court has recited that:

47.Whether the revisional authority can review its own orders or reopen the proceedings, and if so when and on what grounds?

2003 SCC Online AP 621

49. It is very well settled that once the statutory authority or the Tribunal of a limited jurisdiction has announced its decision, it has, as a general rule, no power to reconsider it or to reopen the case. This applies equally where one of the parties later discovers fresh evidence, which might well alter the decision. But there is an exceptional power to reopen the case where the Tribunal's or authority's decision is the result of fraud played by any of the parties for which purpose the plea of fraud must be specifically stated and proved. The Tribunals of limited jurisdiction or quasi-judicial authorities discharging the functions under the provisions of an enactment exercise only such power as is vested in them under the provisions of the Act under which they discharge their statutory powers. It is a different matter that even the Tribunals and authorities of a limited jurisdiction may have the incidental power to correct the arithmetical and clerical errors which do not amount to reopening or reviewing the proceedings.

73. It is further observed by the Supreme Court that the authorities, be they constitutional, statutory or administrative, (and particularly those who have to decide a lis) possess the power to recall their judgments or orders if they are obtained by fraud as fraud and justice never dwell together (Fraus et jus nunquam cohabitant). It has been repeatedly said that fraud and deceit defend or excuse no man {Fraus et dolusneminipatrocinaridebent).

34. In response to the contention that on the very basis of earlier notice

which was withdrawn the second show cause notice cannot be issued,

learned Advocate General has submitted that former show cause notice

dated 05-10-2013 was withdrawn because the representation of Sri

Y.Nageswara Rao was also placed as reference in that notice. And the

present show cause notice was issued on the liberty given to the 1st

Respondent by this Hon'ble Court in 5419/2011. It is contended that the

government have every right to review the orders obtained fraudulently on

misrepresentation and suppression of facts and also this Hon'ble Court

has given freedom to 1st respondent to take appropriate action strictly in

accordance with the law if it is found that the impugned G.O. was passed

on account of any fraud or misrepresentation.

35. To substantiate his contention he has relied on the G.O.Ms.No.747

dated 18.6.2008, which reads as follows:

"...re-issue the scheme for allotment of excess lands to the third parties in occupation/land owners and accordingly, issue the following guidelines for allotment of excess lands which were vested with Government and possession of which has been taken over by the Government under the provisions of principal Act 1976 to the land owners/declarants/third parties in occupation; subject to the following conditions:

(a) The allotment shall be considered where the excess land already vested with the Government U/s 10(3) and possession of which has been taken over by the Government;

(b) These orders shall not apply to the cases where allotment of land has already been made by the Government prior to these orders and decided to be retained by the Government for public purpose.

(c ) The allotment shall be subject to withdrawal of all litigations filed either by the occupant of excess land, or the excess land holder, or any other interested person and pending, other than those covered under the Repeal Act relating to the excess land as on the date of this G.O.

(d) The allotment shall be subject to payment of amount to Government at the rates indicated separately for each agglomeration in Schedule-I to this order.

(e) Allotment under these orders shall be confined to:

(i) Excess land in the occupation of third parties, (other than the excess land holder or his successors) where such occupation is evidenced by a registered document of purchase from the excess land holder or person claiming through him/her regardless of the fact of such land being covered by a structure or not.

(ii) Excess land in the occupation of third parties, (other than the excess land holder or his successors) on which there is already a structure, though the occupation is not supported by any registered document of purchase. "Structure" for the purpose of this G.O. shall include any construction which is constructed with walls and covered with a roof of RCC/ Titles/A.C.Sheets/Zinc Sheets or tubular structure but does not include a hut or a shed without walls. In Guntur, Vijayawada and Visakhapatnam agglomerations structures with walls and covered with roof of palmyhra leaves traditionally may be considered as structure.

(iii) Excess land in the occupation of land owner / declarant / his or her successor with or without structure where such occupation is evidenced by the latest orders u/s 8(4) of the repealed Act.

(f) In cases covered by clause (e) (i) above, the year of registered document based on which the occupant/applicant came into occupation shall be considered for determining the period of occupation and 3% depreciation will be allowed for each year of occupation subject to a maximum of 25 years i.e. 75% of compensation as per the rates indicated in Schedule-I to this order;

(g) In cases covered by clause (e) (ii) above, the year of coming into occupation shall be the earliest of the years with reference to the dates of any or all of the following primary documents (from Sl.No.1 to 3) pertaining to the structure existing on the excess land and for determining the period of occupation and then to calculate the amount payable with reference to the rates indicated in schedule-I to this order. 3% depreciation shall be allowed for this category of occupations also for each year of occupation subject to a maximum of 25 years i.e., 75% of compensation as per the rates indicated in Schedule-I to this order.

As per the above conditions in application No's: 1 to 3 there is a finding

with regard to possession but applications 4 to 9 there is no finding of

possession as per report of special officer ULC dated 18.05.2009. Hence,

they are not eligible as per G.O.Ms.No.747.

36. The 3rd report of Spl. Officer dated 12.8.2013 and in the report of

the district level screening committee wherein they have expressed opinion

that the subject land should be retained by the Government duly

cancelling the regularization G.O.Ms.No.926 since the subject land is a

prime one and would be useful for construction of office complexes etc.

Out of 6 reports only 2 reports say that vendors of the petitioners are in

possession. It is contended that the possession of land was taken as per

section 10(6) of the ULC Act, following the due process by conducting

panchanama. It is contended that 5 allottees have not paid the total

requisite amount calculated as per the provisions of G.O.Ms.No.747, they

paid only after passing the G.O. and there are 3 writ petitions pending at

the time of passing G.O.Ms.No.926 and they were not brought into the

notice of the Government by the then Special Officer & Competent

Authority. Existence of these two conditions will make the petitioners

disable to obtain the G.O. 926.

37. Reply to the contentions raised by the learned Advocate General,

learned senior counsel Sri O.Manohar Reddy, has submitted that as

directed by this Court in W.P.No.5419 of 2011 giving liberty to the State to

take appropriate action against respondent no.2 if any of these reports are

communicated later and further the Court has not upheld the validity of

G.O. i.e. G.O.Ms.No.926 Revenue Department dated 31.8.2009 and giving

further liberty to take appropriate action in accordance with law in the

event if it is found that the impugned G.O. is given on account of any

fraud. But the present action of the respondent or its impugned

G.O.Ms.No.115 dated 20.3.2020 has no mention about fraud played by

the vendors of the petitioners while obtaining G.O.Ms.No.926. Even in the

report which was relied by the Government i.e. report from Special Chief

Secretary, Chief Commissioner of Land Acquisition except stating that the

elders of 8(4) orders i.e. Josyula family were not in peaceful possession

over the land this itself varies to the provisions of G.O.Ms.No.747. Except

that there are no other grounds for cancellation of the G.O.Ms.No.926

dated 31.8.2009. This Court has given liberty to the respondents only on

the ground that if it is found that any misrepresentation or fraud then

only they are entitled to take action to interdict the G.O. But in the

instant case except stating that they are not in possession of the property

hence regularisation granted in favour of vendees of the petitioner are

recalled, is contrary to the orders of this Court.

38. Further learned senior counsel has submitted that from the

beginning, the contention of the petitioner is that he made an application

pursuant to the G.O.Ms.No.747 dated 18.6.2008 under rights to

declarants. The applicants or the persons those who file declaration under

Section 8(4) of the Urban Land Ceiling Act, even according to

G.O.Ms.No.747 dated 18.6.2008, the Government has considered the

request made by the persons who made application as declarants and

decided to re-issue the scheme for allotment of excess land. According to

the said G.O. both the third parties who are in occupation as well as land

owners are entitled to make an application. Further submitted that the

allotment of excess land which was vested with the Government and

possession of which has been taken over by the Government under

provisions of Principles Act 1976 to the land owners/declarants/third

parties in occupation. That itself clearly shows that the land

owners/declarants as well as third parties in occupation are entitled to

make an application. Hence the contention of the learned Advocate

General is not in accordance with the G.O.Ms.No.747. Here the

applications were made by the vendors of the petitioner as declarants. So

here the parties in occupation applies only to third parties. Hence

whether declarants are in occupation or possession is not at all relevant.

Even according to the condition no.1 of the said G.O the allotment shall be

considered whether the excess land already vests with the Government

and possession has already been taken further by the Government.

Further the allotment shall be subject to withdrawal of all litigations filed

either by the occupants of excess land or excess land owners or any other

interested persons.

39. As indicated in the G.O.Ms.No.747, there is no misrepresentation on

the part of the petitioner or the vendors of the petitioner. To support his

contention learned senior counsel has also placed reliance on the

applications made by the vendors of the petitioner. It clearly discloses

that the applications are made as declarants under Section 8(4) of the Act.

Further he has contended that the petitioner has not filed any writ

petition. Even the vendors of the petitioner have also withdrawn the writ

petition immediately after passing G.O.Ms.No.926 dated 31.8.2009 as per

the conditions imposed in G.O.Ms.No.747. Hence there is no

misrepresentation or fraud played either by the petitioner or vendors of the

petitioner.

40. Learned senior counsel further submitted that the impugned order

does not reflect the fraud played by the parties while obtaining

G.O.Ms.No.926 dated 31.8.2009. On the earlier occasion, this court has

given liberty only on the ground of fraud but in the instant case, there are

no averments with regard to the fraud or no allegations or fraud played

either by the petitioner or by the vendors of the petitioner while getting the

benefit under G.O.Ms.No.926. The entire report of special chief secretary,

CCLA dated 06.9.2013 is with regard to the physical possession over the

land except that no other allegations in the impugned orders. Hence the

impugned orders G.O.Ms.No.115 dated 23.4.20020 is not only contrary to

the directions of this Court in earlier W.P.No.5419 of 2011 and also

contrary to the G.O.Ms.No.747.

41. Learned senior counsel further submitted that however there is a

clear liberty given to take action against the 2nd respondent therein, but on

verification it reveals that no action has been initiated against the 2nd

respondent in W.P.No.5419 of 2011 and without initiating any action

against the concerned officer, after retirement of the said officer, now the

respondents have initiated the present proceedings.

42. Considering the submissions made by both the counsel and also on

perusal of the entire record, this court is of the opinion that the impugned

action/orders of the 1st respondent is quite contrary to the orders issued

by this Court in W.P.No.5419 of 2011.

43. Further on perusal of G.O.Ms.No.747 dated 18.6.2008, the very

issuance of the G.O/policy by the Government is for allotment of excess

lands which were vested with the Government and possession of which

has been taken over by the Government. Hence the principle while issuing

the policy is to consider the applications made by the persons/declarants

where the possession has been handed over to the Government as per

Section 10(3) and those who are not in possession of the property. Clause

(a) also clarifies the issue that the allotment shall be considered where the

excess land already vests with the Government under Section 10(3) and

possession which has been taken over by the Government. As per the said

clause, the contention of the learned Advocate General that basing on the

report of the Special Secretary to CCLA that some of the applicants are not

in possession of the land is not withstanding. As contended by the

learned senior counsel, the applications filed by the vendors of the

petitioner as declarants hence the question of possession of the land by

the vendors of the petitioner would not arise. Hence there is no fraud.

44. On perusal of the conditions in G.O.Ms.No.747 dated 18.6.2008 the

following persons are entitled to make an application i.e. land

owners/declarants/third parties in occupation. That means the

purchasers of the land if any third party purchases the land, declarants

means who file declarations under Section 8(4) of the Act 1976 and third

parties who are in occupation that means if the parties not belong to first

and second category those who are in occupation of the property is also

entitled to make an application. Hence as per the above said clause, it is

clear that the declarants need not be in possession of the property.

45. Further the contention of the learned Advocate General with regard

to misrepresentation of fact is also not in conformity with the conditions

where the condition stipulates that if any allotment shall be subject to

withdrawal of all litigations filed either by the occupant of excess land, or

the excess land holder. According to the facts furnished by the petitioner,

that the petitioner had not filed any writ petitions or litigations. But the

writ petition filed by the vendors of the petitioner has been withdrawn

immediately after issuance of G.O.Ms.No.926. Hence the question of

misrepresentation by the petitioner or vendors of the petitioner would not

arise in the instant case.

46. It is also not out of place to mention that after disposal of the writ

petition immediately the respondents have initiated proceedings/notices to

cancel the G.O.Ms.No.926. But after filing the contempt case, the said

notices have been withdrawn. Hence once the action is initiated and

withdrawn by the State and now without indicating the fraud, again they

are estopped to initiate action after a lapse of seven (7) years. On that

ground also the impugned G.O. has to go.

47. As contended by the learned Advocate General, this Court is not

inclined to go into the aspect of power of review or revision of the orders on

the ground of fraud because in the instant case impugned orders are not

issued on the ground of fraud.

48. Considering the observations made in the earlier writ petition and

also the reasons mentioned in the impugned G.O.Ms.No.115 dated

23.4.2020, the same is not sustainable as per law and also as per the

orders of this Court in earlier writ petition. Accordingly, G.O.Ms.No.115

Revenue (Lands.IV) Department dated 23.4.2020 is hereby set aside.

49. Accordingly, the writ petition is allowed. No costs.

Miscellaneous petitions, if any, pending in this petition shall stand

closed.

_____________________ JUSTICE D.RAMESH Date: 22.12.2022 RD

THE HONOURABLE SRI JUSTICE D.RAMESH

WRIT PETITION No.8280 of 2020

Dated 22.12.2022

RD