M Chinna Papamma vs Usha Rani
2022 Latest Caselaw 860 AP

                                1




          * HON'BLE SRI JUSTICE D.V.S.S. SOMAYAJULU

               + WRIT PETITION No.7980 of 2020
                             and
                      C.C.No.56 of 2020

                      % 16th February, 2022

W.P.No.7980 of 2020

# The State of Andhra Pradesh and 3 others
                                                    ... Petitioners..
AND

$ M.Chinnapapamma and 6 others
                                                  ... Respondents.

! Counsel for the Petitioners : Government Pleader for Revenue

^ Counsel for the 1st to 4th respondents : Sri Subba Rao Korrapati

^ Counsel for the 5th to 7th respondents : Government Pleader for Assignment (AP)

< Gist:

> Head Note:

? Cases referred:

1. (2007) 4 SCC 221

2. AIR 1996 Karnataka 991

3. (2004) 8 SCC 588

4. (1994) 1 SCC 1

5. (2001) 2 SCC 160

HON'BLE SRI JUSTICE D.V.S.S.SOMAYAJULU W.P.No.7980 of 2020 and C.C.No.56 of 2020

COMMON ORDER:

This Writ Petition is filed for the following relief:

"...to issue a Writ, order or direction, especially one in the nature of Writ of Mandamus, declaring the orders dated 11.07.2019 and 02.03.2013 in P1/1315/1999 of the Commissioner of Appeals, Vijayawada i.e., 7th respondent and the order dated 09.06.19999 in R.P.No.9/94HI of the 6th respondent i.e., Director of Settlements AP. And orders dated 13.04.1982 of 5th respondent i.e., Settlement Officer, Nellore at present Joint Collector cum Settlement Officer, Chittoor issued without following the provisions of the A.P. Estate Abolition Act, 1948 as unlawful and unjust suffering the communal interests and principles of Natural Justice and Article 330-A of the Constitution of Indi and consequently set aside the said impugned orders."

This Court has heard the learned Government Pleader

for Revenue appearing for the petitioners, Sri Subba Rao

Korrapati, learned counsel for respondents 1 to 4 and the

learned Government Pleader for Assignment for Respondents

5 to 7.

Learned Government Pleader for Revenue along with his

submissions filed a note mentioning the dates and sequence

of events. It is his contention that the land in Sy.No.91/4 of

Daminedu Village is classified as Government Poramboke

land and is registered is kunta poramboke. The possession of

the petitioner is also strongly denied by the learned

Government Pleader. The crux of the matter as per him is

that the Settlement Officer's order, dated 13.04.1982, is

vitiated by a fraud and very serious allegations are made

against the said Settlement Officer. It is also stated that in

view of the fraudulent activity of the Settlement Officer,

Government also issued orders directing the Collectors not to

implement the orders of the said Officer. It is particularly

asserted that he has granted a ryotwari patta for a water body

ignoring the law on the subject and also the Board Standing

orders. Learned Government Pleader draws the attention of

this Court to all these issues and in particular raises an issue

of delay in entertaining the matter by the Settlement Officer.

It is also asserted that the land in Sy.No.91/4 is vacant land.

Learned Government Pleader also relies upon the well known

judgment of the Hon'ble Supreme Court of India in A.V.

Papayya Sastry and others v Government of A.P. and

others1 to argue that where fraud has been committed it will

vitiate all the transactions and all orders. Learned

Government Pleader, therefore, argues that this is a fit case in

which the Court should interfere and set aside the orders

dated 11.07.2019 of the Commissioner of Appeals (7th

respondent), the order dated 09.06.1999 of the Director of

Settlement along with order of the 5th respondent, dated

13.04.1982. Thus, the prayer in the Writ Petition is to set

aside an order that was passed in 1982 which was confirmed

by two other officers.

(2007) 4 SCC 221

In reply to this learned counsel for the respondent Sri

Subba Rao Korrapati relies upon the counter affidavit filed.

He points out that from 1982 onwards the issue has been

hanging in the air and despite the orders passed by higher-

ups in the department on merits and also the Courts of

competent jurisdiction the issue is still not decided. Learned

counsel also points out that the order of the Settlement

Officer is an order passed on merits of the matter after

considering the oral and documentary evidence. This has

been confirmed more than once by competent officers

including the present respondents. A patta was initially set

aside in April, 1990. The matter was remanded in 1994 and

ultimately on 09.06.1999 the order passed in favour of

Mr.M.Krishna Murthy, the husband of the 1st respondent was

upheld. It is clearly held in that said order that the land is

"ryoti" in nature and has been in possession and enjoyment of

the respondents. Learned counsel points out that against the

order dated 09.06.1999 a revision was filed before the 7 th

respondent, who dismissed the same by his orders dated

15.07.2000. He points out that even the Commissioner of

Appeals held that the possession and title of the present

respondent's predecessors is clear and he find no reason to

interfere with the orders of the 7th respondent. W.P.No.1981

of 2000 was filed, which was disposed of on 09.09.2009

remanding the matter back to the Commissioner of Appeals.

The Commissioner of Appeals, vide his orders dated

02.03.2013, confirmed the orders passed by the Director of

Settlement.

Challenging the same, Writ Petition was filed in

W.P.No.15671 of 2013, which was dismissed. Against the

same a W.A.No.486 of 2016 was filed, which was also

dismissed on 29.06.2016. Learned counsel, therefore, argues

that the State is constantly agitating the matter only with a

view to deny the legitimate claims of the respondents and that

there are no merits in the case. He argues that there is no

fraud in the present case at all. He argues that the same is

not pleaded or proved. He points out that after the Contempt

Application was moved in C.C.No.66 of 2020, the present Writ

has been filed. Therefore, he prays for dismissal of the Writ

Petition.

COURT:

After considering all the facts this Court notices that the

order passed by the Settlement Officer dated 13.04.1982 is an

order passed on merits. It considers the oral and

documentary evidence. Three witnesses were examined and

five documents were exhibited. In the primary order on

13.04.1982 the Settlement Officer noted the pre-abolition

records and also the fact that the lands are ryotwari patta

lands from the beginning. He states that they are known

locally as "Gujjareddy" lands as the Gujjareddy is the name of

the grandfather of PW1. It is clearly noted in the order that

the counter filed by the Tahsildar supported the case of the

petitioner. Therefore, he held that there is no Government

interest in the land. As mentioned in the arguments of the

learned counsel the matter was underwent a number of

revisions / challenges etc. The suo moto revision was

dismissed on 09.06.1999 by a Special Commissioner and

Director of Settlement, who is an officer of the Indian

Administrative Services. In this order also a discussion of the

case and its facts were undertaken before the Commissioner

who came to the conclusion that the land is "ryoti" in nature

and it has been in continuous possession and enjoyment of

the respondents from 1914 onwards. It was also held that

the classification of the land as Kunta Poramboke is contrary

to the facts of the case. A revision was also filed against this

order which resulted in the order dated 15.07.2000, which

was assailed in Writ Petition No.1981 of 2000, in which this

Court remanded the matter to the 7th respondent. Again in

the remand a detailed order was passed on 02.03.2013. the

issue about the orders of the Settlement Officer was

discussed. The fact that this order was upheld was noticed.

In para 11/12 after considering the evidence he came to

definite findings. It is interesting to note that the order was

passed by the Chief Commissioner of Land Administration,

who is also an IAS officer. He did not file any valid reason to

allow the case and it was dismissed. Assailing this Writ

Petition No.15671 of 2013 was also filed. A learned single

Judge of this Court decided the matter by his orders dated

29.02.2016. The counters filed by the State reiterated that

the land is 'Kunta Poramboke' that the claim petition could

have been filed after the stipulated period etc. The allegation

of corruption and fraud against the Settlement Officer was

also raised as a ground. All of these issues raised were

considered by the learned single Judge, who held that he did

not find any merits in the Writ Petition. Against this order a

Writ Appeal was filed in W.A.No.486 of 2016. The Division

Bench vide its orders dated 30.06.2016 dismissed the Writ

Appeal. The finding of the Commissioner after remand that

there is no Government interest in the schedule land is

noticed by the Division Bench. The Division Bench held that

the Government failed to show that it had any interest in the

property. It also stated that it is not explained why the

appellants are coming to the Courts again and again when

they have no interest in the property. As rightly pointed out

by this learned counsel for the respondents, these orders have

become final. Thereafter, a representation was filed by the

respondent as the same was not considered the Writ Petition

No.30710 of 2017 was filed, in which a direction was given to

the respondents to consider the representation made by the

parties. As this order was not complied with C.C.No.799 of

2018 was filed and Tahsildar then passed an order on the

revision. Questioning the same W.P.No.26496 of 2018 was

filed by the 1st respondent. This Writ Petition was allowed

setting aside the endorsement dated 30.03.2018 refusing the

petitioners representation and directing the Tahsildar to

consider the implementation of ryotwari patta after the

revision petition was disposed. As this order was not

complied C.C.No.56 of 2020 was filed.

These facts are being set out in detail to show that the

issue has been kept pending from 1982 when the Settlement

Officer granted a patta and allowed the claim application by

his orders, dated 13.04.1982. An appraisal of all the

proceedings show that even till date the Government did not

file adequate or correct material to show that the initial order

dated 13.04.1982 is vitiated by fraud or otherwise. The

allegations of fraud are made against the officer, who passed

that order in April, 1982. No clear proof is filed to show how

this particular order of 1982 is vitiated by fraud. The State is

also overlooking the fact that two very senior bureaucrats,

holding responsible positions in the State, have confirmed the

orders passed by the Settlement Officer. They did not find

anything incorrect or wrong in the said orders. The State

which had the opportunity to assail the findings of the

Settlement Officer could not succeed before the two officers

who were vested with the immediate jurisdiction to decide the

matter. The same conclusions resulted even after remand.

Thereafter, the State filed the Writ Petitions, in which it was

also held that the orders passed by the Settlement Officer are

correct. The possession of the claimants and their

predecessors from 1914 was noticed. In W.P.No.15671 of

2013 from paragraph 11 onwards the evidence was discussed

and thereafter the conclusions of the Settlement Officer were

upheld. In paragraph 14 the issue of delay was also

discussed. Ultimately, the learned single Judge came to the

conclusion that there are no merits in the Writ Petition. In

W.A.No.486 of 2016 also these findings were confirmed. The

effect of these orders is striking and clear. Once the matter

has been decided by a competent authority and thereafter

upheld by Courts of competent jurisdiction this Court is of

the opinion that the issues cannot be reopened on the

tenuous ground that is now advanced.

The ground that is advanced now is one of fraud. The

law on the subject is very clear and if fraud vitiates a

transaction it can be set aside. Even the most solemn acts

can be vitiated by the fraud. But fraud is not a matter of

simple assertion. It is a matter of clear pleading and proof.

Allegations of fraud are more easily made than they are

proved. In fact, as the Civil Procedure Code also applies to

the writ proceedings as per the Writ Rules, the pleadings with

regard to fraud should be very specific and clear. The fraud

should be pleaded and proved with certainty. In fact, a

learned single Judge of the Karnataka High Court in a

Judgment report in Savithramma v H.Gurrappa Reddy 2

held that standard of proof in matters of fraud is very high. It

AIR 1996 Karnataka 991

borders almost on proof beyond reasonable doubt as in a

criminal trial. The other leading judgments on pleading fraud

and proof with regard to fraud are A.C.Anantha Swamy and

others v Boraiah (Dead) by LRs3, S.P.Chengalvaraya

Naidu V Jagannath4 etc. If the present case is examined

against the backdrop of these cases it is clear that except

some said bald allegations that are made about fraud there

are no clear, categorical pleadings are there. The evidence

necessary to prove fraud is also not there. How and why the

order dated 13.04.1982 is vitiated by 'fraud' is to be proved by

clear evidence. The photocopies of the documents filed

cannot be treated as "proved". Pre-abolition records are not

produced and proved. Even otherwise this Court while

exercising functions under Article 226 of the Constitution of

India cannot enter into such a seriously disputed question of

fact. This finding is supported by the decision in Life

Insurance Corporation of India and others v Smt. Asha

Goel and Another5. The allegations made do not prove that

a fraud occurred in April, 1982 when the impugned order was

passed. A reading of the 1st order shows that the Settlement

Officer consider the oral and documentary evidence before

coming to the conclusion. He also relied upon the counter

filed by the Tahsildar / Revenue which also supported the

case of the claimants before him. How and when "fraud" was

(2004) 8 SCC 588

(1994) 1 SCC 1

(2001) 2 SCC 160

committed in coming to this conclusion is not borne out by

the records. Why the area is called after "Gujjareddy" is

considered in the 1982 order itself. The revenue record of

2017 was not considered to be good evidence to establish the

land is kunta (para 9 of the order dated 11.07.2019). It was

also clearly held that the review petitioners failed to establish

fraud. Even after these findings this Court finds that there is

no clear pleading or proof of the fraud. The documents filed

by the petitioner are not adequate to prove fraud. Documents

ante lite motam or after the case are to be very carefully

viewed. Their probative value is very low. They have to be

necessarily proved. The subsequent confirmation of this

order by the revisional appellate authorities and by the

Courts also goes against the finding of fraud. For all the

above reasons, this Court holds that the petitioners have not

made out a case for interference. The pleading and proof are

both inadequate. This is a case in which exemplary costs

must be awarded. But considering the passion with which

the learned Assistant Government Pleader argued the matter

and his effort to convince the Court costs are not being

imposed. The Writ Petition is, therefore, dismissed.

Coming to C.C.No.56 of 2020 this Court does not find

any merit in the submissions made by the respondents also.

The respondent's perception of fraud is not borne out by the

record. By alleging fraud, the respondents in contempt

application failed to comply with the order of this Court.

The Writ Petition that was filed is being disposed today.

While holding that the respondents has not obeyed this

Court's Order, a chance is given to the respondents in

C.C.No.56 of 2020 to comply with the order of the learned

single Judge, dated 28.01.2019, and for the implementation /

granting of the proper ryotwari patta within six weeks from

the date of receipt of a copy of this order. This chance is

given to the respondents to purge her contempt. With these

observations the Writ Petition is dismissed and the Contempt

Case is allowed. There shall be no order as to costs.

Consequently, the Miscellaneous Applications, if any,

pending shall stand closed.

__________________________ D.V.S.S.SOMAYAJULU, J Date:16.02.2022.

Note: LR Copy be marked B/o Ssv