L.Venkata Subba Reddy, vs The Revenue Divisional Officer, ...
2022 Latest Caselaw 8774 AP

          *HONOURBLE SRI JUSTICE D.V.S.S. SOMAYAJULU
                     + W.P.No.26086 of 2012



% 16.11.2022
#L.Venkata Subba Reddy,
S/o Venkata Subba Reddy,
Age 39 Yrs., R/o Bosireddypalli,
Khajipeta Mandal, Y.S.R.District and 2 others
                                                      ... Petitioners


Vs.

$ The Revenue Divisional Officer,
Rajampet, Kadapa District and another.
                                                     ... Respondents


! Counsel for the petitioner : Sri L.J.Veera Reddy


! Counsel for the Respondent : Government Pleader for Revenue




< Gist:


> Head Note:
? Cases referred:
1 MANU/AP/0276/2005
                                   2




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


                     W.P.No.26086 of 2012
O R D E R:

This writ petition is filed for the following relief:

"...to issue a writ order or direction more particularly one in the nature of writ of Mandamus declaring the order passed by the 1st respondent in his Ref. B/812/2008 dated 08.12.2008 in so far as Sl.No.21, 5 and 3 is concerned canceling the DKT Assignment bearing No.154/1403, dt. 04.05.94, No.153/1403, dt. 04.05.94 and No.252/93, dt. 14.05.93 of the petitioners' respective land of Ac. 1.40 cents in Sy.No.142/7 and Ac.1.40 cents in Sy.No.142/7 and Ac.2.14 cents in Sy.No.139 of Kamakunta village, B.Koduru Mandal of Kadapa District even without issuing notice after 14 and 15 years as illegal, unjust, arbitrary, malafide, misuse of official power, without jurisdiction, against principles of natural justice and against BSO 15, para 18 and consequently set aside the order passed by the 1 respondent in his Ref.B/812/2008, dt. 08.12.2008 in so far as the petitioners assignment is concerned and pass such other order or orders as this Hon'ble Court may deem fit and proper in the circumstances of the case.'

This Court has heard Sri L.J.Veera Reddy, learned

counsel for the petitioners and Government Pleader for

Revenue appearing for the respondents.

Sri Veera Reddy, learned counsel for the petitioners

points out that the petitioners are claiming rights in the

property by virtue of the assignment of land in their favour.

He points out that the first petitioner was granted a DKT

Patta in May, 1994 for Ac.1.40 cents of land in Sy.No.142/7.

The second petitioner was granted a patta in May, 1994 for an

extent of Ac.1.40 cents in Sy.No.142/7 and the third

petitioner's mother L.Veeramma was granted a patta in May

1993 for Ac.2.14 cents in Sy.No.139 of Kamakunta Village,

B.Koduru Mandal of Kadapa District. According to the

petitioners, the land was in cultivation. The mother of the

third petitioner died in December, 2005 and thereafter the

third petitioner succeeded to the property assigned. The first

petitioner has also been given pattadar passbook after due

enquiry before the writ petition is filed. The petitioners came

to realize that the pattas granted to them were cancelled in

December, 2008. Learned counsel for the petitioners points

out that before the impugned order was passed, no notice was

given to the petitioners nor was any enquiry conducted before

cancelling the patta. It is also pointed out that the pattas

granted in 1993 and 1994 were purportedly cancelled in 2008

and this is contrary to the settled law on the subject which

held that the patta should be cancelled within three years. It

is also pointed out that the third petitioner's mother died in

2005 as can be seen from the death certificate filed, but the

order passed in 2008 states that she was 'alive' which clearly

shows that there is non-application of mind. Learned counsel

also points out that the grounds for cancellation of patta as

can be seen from the copy of the impugned order is that the

petitioners are not in possession of the property and are

residents of different villages. However, in the counter

affidavit filed, improvements are brought in and different

reasons are given for the cancellation. Learned counsel relies

upon a Division Bench judgment of the A.P.High Court

reported in Peela Pothi Naidu and others v. State of A.P.,

Irrigation and CAD Department and others1, and in

particular para 43 and other paragraphs of this judgment,

wherein the Bench considered the earlier Constitutional

Bench judgment in the case of Mohinder Singh v. Chief

Election Commissioner(1978) 2 SCR 272, and held that

subsequent improvements in the counter cannot be

considered and the impugned order must be judged on the

basis of the reasons as they existed in the original/impugned

1 MANU/AP/0276/2005

order only. Therefore, he submits that the reasons mentioned

in the counter cannot be considered to be valid.

Learned Government Pleader on the other hand argues

at length and in line with what is stated in the counter

affidavit. He points out that the DKT pattas issued in favour

of the petitioner Nos.1 and 2 and the 3rd petitioner's mother

are fake and fabricated. It is also pointed out that by

misleading the Revenue Authorities, petitioner Nos.1, 2 and 3

have incorporated their names in the revenue records.

Thereafter, it is submitted that after clarifying all the revenue

records including classification of land as 'gayalu', the

cancellation was affected. It is also submitted that the

mother of the third petitioner was not assigned the land at all.

Therefore, learned Government Pleader submits that the

cancellation of the assignment as can be seen from the

impugned order is correct.

This Court after examining the matter notices that the

petitioners have come on record and stated very clearly that

no notice was issued to them before the impugned order was

passed. This is stated in para 4 of the writ affidavit. A

reading of the counter does not disclose that a show Cause

Notice was in fact issued to the writ petitioners or that the

petitioners were heard. Even the impugned order does not

categorically state when the show Cause Notice was issued to

the three particular petitioners, who are before this Court.

There is merely a reference to a show Cause Notice dated

30.07.2008. Details of the service of the said notice are

however not clearly mentioned in the impugned order. It is

also stated that notice was affected by substituted service:

how and when this was done is also not clearly spelt out. The

details of the alleged substituted service are also not clearly

spelt out in the counter affidavit. Hence, it can be concluded

that the petitioners were not served with a prior notice.

It is also noticed that a plea is now raised that the

pattas issued to the petitioners are fake and fabricated.

When and how this was discovered is not spelt out. The

counter was filed in 2022 while the impugned order was

passed in the year 2008. It is not clear how the pattas are

'fake'. It is also not clearly mentioned how the respondents

came to the conclusion that the pattas are fabricated. These

are matters which have to be pleaded clearly and

categorically. Unless and until the pleading and proof is

clear, the plea of fabrication or fake pattas cannot be

countenanced. In the year 2022, the Tahsildar is stating that

the pattas issued in 2008 are fabricated. On what basis and

on what records she came to this conclusion is not borne out

by the record. If the said pattas are fake or fabricated, a duty

was cast upon the State to explain to this Court as to how

these pattas are 'fake or fabricated'. Whether the petitioners

alone or petitioners in conjunction with the revenue

authorities secured/procured the fake and fabricated records

should be categorically established. In the absence of any

such pleading or proof, this Court cannot accept the

contention that the pattas are fake or fabricated. A plea of

fake documents/fabrication raised decades after the

documents are issued must be pleaded with great certainty

and clarity. Discovery of the fraud; details of the fraud; the

parties to the fraud; the action taken pursuant to the

discovery of the fraud against all the players/people involved

must be pleaded and proved. In the absence of such details

this plea cannot be accepted.

Lastly, in view of the settle law including the

Constitution Bench decision of Mohinder Singh (2 supra),

the originally impugned order and its contents alone are to be

seen to test the veracity/correctness of the order subsequent

improvements cannot be used to test the validity of the

impugned order. Lastly, the mere fact that petitioners are

allegedly residing in another village is not a ground for

cancellation of the patta.

Apart from all of the above, this Court notices that

pattas granted in the year 1993 and 1994 are sought to be

resumed/cancelled in the year 2008. The law is well settled

and the reasonable period/the interpretation of the words 'at

any time' has been limited to a period of three years. The

date of discovery of the alleged fabrication is also not spelt

out. Hence, this Court is of the opinion that by merely raising

a plea of a fake and fabricated pattas, the earlier assignments

cannot be cancelled.

Accordingly, there shall be an order as prayed for. It is

made clear however that if respondents are still of the opinion

that the pattas are 'fake and forged', they are always at liberty

to initiate appropriate action. The petitioners have to put on

notice and given an opportunity to defend their case.

With the above observations the writ petition is allowed.

No order as to costs. As a sequel, the miscellaneous petitions

if any shall stand dismissed.

________________________ D.V.S.S.SOMAYAJULU,J

Date: 16.11.2022 Note: L.R. copy be marked KLP