Ch.K.J.K.Paul, vs The State Of Andhra Pradesh
2022 Latest Caselaw 7147 AP

            THE HONOURABLE SRI JUSTICE D.RAMESH

                  WRIT PETITION No.10627 of 2021
ORDER:

This Writ Petition is filed challenging the proceedings of the

respondent No.3 vide Rc.E2/1336/2020 dated 30.03.2021 in ordering

cancellation of the assignment granted in favour of the petitioner through

proceedings in Rc.No.15/DAR/1416/2006, for the land in the extent of

Ac.5.00 cents in Survey No.86 of Tadakanapalle Village, Kallur Mandal,

Kurnool District as arbitrary, illegal and contrary to the procedure

envisaged under B.S.O. 15(18) (1) of the Andhra Pradesh Board of

Revenue Standing Orders.

2. The subject land in an extent of Ac.5-00 cents in Sy.No.86 of

Tadakanapalle Village, Kallur Mandal, Kurnool District has been

assigned in favour of the father of the petitioner in the year 2006 under

Ex-Servicemen quota through the proceedings

Rc.No.15/DAR/1416/2006. Since the granting of patta, the petitioner is

in possession and enjoyment of the same, recognizing said possession,

the revenue authorities have mutated the names of the petitioner, also

the pattadar pass books and title deeds have been issued in favour of

the petitioner and the petitioner's name was also included in the Form IB

Namoona and Adangal.

3. In view of the request made by several persons like the petitioner

herein, the Government has taken a policy decision and issued

G.O.Ms.No.117, Revenue Department dated 11.11.1993, the assignees

under Ex-Servicemen quota are entitled to alienate the same in favour of

the third parties, after completion of 10 years time. Said decision was

reviewed by the Government once again and issued G.O.Ms.No.307,

Revenue Department dated 06.10.2013 wherein the District Collectors

were empowered to issue No Objection Certificate for alienation of the

land assigned in favour of the Ex-Servicemen. Finally, the State

Government has changed its policy and issued G.O. Ms.No.279,

Revenue (Assn.I) Department, dated 04.07.2016 dispensing the

procedure of issuance of NOC by the District Collectors and directed the

District Collectors to delete the lands assigned to Ex-Servicemen and

Political Sufferers from the prohibitory list under Section 22-A of the Act,

1908 and furnish the same to the Registration Department, wherever

there is no dispute about the genuineness of the assignment.

4. Despite the orders issued by the Government vide G.O.Ms.No.279

dated 04.07.2016 the subject properties were included in the prohibiotory

list under Section 22-A (1) (b) of the Act, 1908 and communicated the

same to the Registration Department. Having come to know the same,

the petitioner made an application for deletion of the subject land from

the prohibitory list furnished by the respondents 2 to 4 under Section 22-

A of the Act, based on the said application, the 3rd respondent has called

for a report from the 4th respondent, through proceedings dated

05.08.2019; in turn, the 4th respondent called a report from the Mandal

Revenue Inspector to submit the same to the respondent No.3.

5. When the petitioner constrained to sell the subject land in favour of

third parties in view of their family necessities, approached the Sub-

Registrar, Kallur on 15.09.2020 and the Sub-Registrar, Kallur brought to

his notice that the subject land has been included in the Prohibitory

Lands list furnished by the 2nd respondent exercising the power conferred

under Section 22-A(1)(b) of the Act, 1908. Though the Government has

issued specific instructions under G.O.Ms.No.279, dated 04.07.2016 and

even after the representation made by the petitioner to delete the subject

land from the prohibitory list, the same was not considered by the

respondents. Under the said circumstances, the petitioner filed

W.P.No.18622 of 2022 before this Court seeking to declare the inaction

on the part of the respondent No.2 in not deleting the subject land from

the prohibitory list and also questioning the inaction of the registering

authorities in refusing to entertain the sale deed for registration, referring

to the same that the properties are included in the prohibitory list, as

illegal and arbitrary.

6. At the admission stage, i.e., on 16.10.2020 this court passed

interim order in the above writ petition, directing the respondent No.2 to

consider the application submitted by the petitioner on the basis of the

report submitted by the respondent No.5 to the respondent No.4 and

pass appropriate orders.

7. Instead of considering the request made by the petitioner in terms

of G.O.Ms.No.279, dated 04.07.2016, surprisingly the 3rd respondent

issued notice dated 24.02.2021 calling upon the petitioner to appear

before him on 01.03.2021 along with relevant records, documents

relating to the assignment of subject land, basing on the reports

submitted by the 4th and 5th respondents requesting to take up the case

for enquiry under Board of Revenue Standard Orders [BSO]15(18).

8. Subsequently, enquiry has been adjourned to 20.03.2021 and on

that day when the petitioner appeared and sought time to engage

counsel, but without considering the same, respondents have passed

present impugned orders on 30.03.2021 by cancelling assignment

granted in favour of the petitioner, firslty on the ground that as per

G.O.Ms.No.743, dated 30.04.1963, the application under Ex-Servicemen

should have been made within one year from the date of discharge or in

the case of death on active service from the date of intimation to the

family of the deceased. Secondly, the assignment granted in favour of

the father of the petitioner has not been approved by the Assignment

Committee.

9. Assailing the said orders, present Writ Petition has been filed on

two grounds. Firstly, the impugned orders passed by the Joint Collector

and Additional District Magistrate, Kurnool, who is not the competent

authority for cancellation of the assignment. As per the power conferred

under Section 15 (18) (1) of the A.P. Board Standing Orders [BSO].

Secondly as per the BSO 15(18)(1) the suo moto revision can be

entertained by the 2nd respondent at any time within (03) three years of

original or appellate decisions if he is satisfied that there is a material

irregularity in the procedure or that the decision is grossly inequitable or

that it exceeded the powers of the officer, who passed it or that it was

under a mistake of fact or owing to fraud or misrepresenting in case of

an order passed by an officer subordinates to him, to set aside, cancel or

in any modify the said decision. Whereas in the instant case, the

assignment was granted in favour of father of the petitioner way back in

the year 2006, hence, the respondents cannot cancel the said

assignment, after lapse of more than three (03) years.

10. After notice, the 3rd respondent has filed counter, denying the

allegations made by the petitioner in the affidavit. Replying to the

contentions of the petitioner, the 3rd respondent submitted that the lands

assigned under Ex-Servicemen category are to be deleted from the list of

properties prohibited for registration after lapse of a period of 10 years

from the date of assignment is correct in accordance with the

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

However, said orders are applicable only in cases in which there is no

dispute with regard to the Government about genuineness of

assignment. But in the particular case of the petitioner, the genuineness

of the assignment is critically put into question, which was found to be

irregular after due enquiry and subsequently cancellation orders were

passed by the competent authority.

11. When the petitioner intends to sell away the same and

represented to the Revenue Divisional Officer, Kurnool on 01.08.2019 for

issuance of No Objection Certificate, the Revenue Divisional Officer,

Kurnool has directed the then Tahsildar to conduct enquiry and submit

detailed report along with connected records, for taking further action.

Subsequently, the then Tahsildar, Kallur has submitted proposals to the

Revenue Divisional Officer, Kurnool duly recommending for deletion of

the petitioner's land from the list of properties prohibited for registration

on 13.01.2020. The said proposals are returned on 30.05.2020 to the

Tahsildar, Kallur with a direction to re-examine the proposals with

respect to the eligibility of a Ex-servicemen for assignment of land after

many years of discharge from service and to submit proposals

accordingly.

12. As per the directions of the Revenue Divisional Officer, Kurnool,

the proposals which were submitted by the Tahsildar, Kallur on

31.01.2020 were re-verified by the incumbent Tahsildar and found that,

the assignment which was made in favour of the petitioner's father viz.,

CH.K.J.K. Paul, S/o.Devashikamani is "irregular" in the light of existing

rules in force, as per the following grounds:

i) During enquiry it is known that the assignee viz., Ch.K.J.K.Paul S/o.Devashikamani is discharged from CRPF (Central Reserve Police Force) on 31.05.1998. As per B.S.O. 15 & G.O.Ms.No.87, Revenue Dt.23.01.1967 the CRPF persons are not included under the definition of ex-service men. Hence, the eligibility of discharged CRPF Personnel for assignment of land under ex-service men category is to be obtained from District Sainik Welfare Officer, Kurnool. Even if CRPF Personnel is eligible for assignment of land necessary application for Assignment of land shall be made within 12 months from the date of discharge. Hence, the representation by the Ch.K.J.K.Paul, S/o.Devashikamani should have been made by 31.05.1999 to the Tahsildar for Assignment of land. On verification of records of Tahsilar's office, Kallur it is reported that, no such representation is known to be made by the Assignee within prescribed time.

ii) No procedure prescribed under BSO 15 for assignment of Government land is found to be followed including publishing the fact of application in the village by beat of tom tom, post a notice of it in Form-A1 in the village chavidi and on the darkasth land, preparation of A memorandum in duplicate accompanied by illustrative sketch showing the possession of the land applied for etc.,

iii) No specific recommendation of assignment committee as prescribed under G.O.Ms.No.98 Revenue Department,

dated 17.01.2005 is observed to be made favouring assignment of land in favour of the assignee viz., Ch.K.J. K. Paul, S/o. Devshikamani.

iv) The Assignee was found to be issued Pattadar Pass Book with IB Khata 317 on 28.10.2006. However, on verification of IB Register maintained at Tahsidlar's office it is found that the said Khata was originally allotted in favour of M.Linganna, S/o.M.Naganna for Sy.No.359 to an extent of Ac.0.52 cents. I find no reason in allotting a cancelled khata instead of a new one, while making assignment in favour of ex- service men.

v) The Sy.No.86 of Tadakanapalli Village consisting total extent of Ac.424.35 cents was not sub-divided with an extent of Ac.5.00 cents before making assignment in favour of Ex- serviceman which is against the prescribed procedure.

13. Based on the above lapse, it was construed that the said

assignment is involved material irregularity in the procedure, wrong

assessment of eligibility; thereby it is considered as a fit case after

verification by the Collector and liable for cancellation. In view of the

above said modification, the respondent authorities are entitled to

exercise the suo moturevision power at any point of time, in view of the

same, requested to dismiss the writ petition.

14. Replying to the above averments, learned counsel for the

petitioner submitted that in fact, as per the policy of the Government,

which was enumerated in G.O.Ms.No.279, dated 04.07.2016 the

respondents have to remove the properties which as assigned under Ex-

servicemen quota after lapse of 10 years. Instead of deleting the subject

properties from the list under Section 22-A of the Act, even after making

an application by the petitioner for deletion, instead of considering the

same as directed by this Court in W.P.No.18622 of 2020, the

respondents with an ulterior motive issued the notice under BSO 15(18)

(1), which is contrary to the orders of this Court as well as the ratio

decided by the Supreme Court in catena of cases. In fact, after receipt of

notice, the petitioner appeared and requested time to engage a counsel

but without giving an opportunity, the respondents have passed

impugned orders.

15. On perusal of the impugned orders, it clearly discloses that there

is no whisper about the fraud while granting the patta in favour of the

petitioner, except stating that no procedure prescribed under BSO 15 for

assignment of Government land is found to be followed, and also no

specific recommendation of assignment committee as prescribed under

G.O.Ms. No.98, Revenue Dated 07.01.2005 is observed to be made.

Moreover, Survey No.86 of Tadakanapalli village consisting of total

extent of Ac.424.35 cents was not sub divided with an extent of Ac.5.00

cents before making assignment. Except the above, there are no

allegations against the petitioner with regard to the fraud, and there is no

allegation with regard to the eligibility of father of the petitioner's for grant

of assignment under Ex-servicemen. In the said circumstances, after

lapse of 15 years, now the respondents are not entitled to initiate suo

moto action under BSO 15(18) (1).

16. In view of the above contentions and on perusal of the material

available on record, now the questions that arise for consideration are,

(a) Whether the Joint Collector/respondent No.3, is competent to exercise, suo moto Revision under BSO 15 (18) (1)?

(b) Whether cancellation of patta approximately after a period of 15 years, invoking the provisions of the BSO 15(18) is permissible?

17. To support his contentions learned counsel for the petitioner

placed reliance on the decision passed by the composite High Court of

Judicature at Hyderabad in N.Nagamani @ Paravthi Vs. The State of

Andhra Pradesh1, wherein in paragraphs 61 to 64 it was held as follows:

"61. In the instant case, there is admittedly no allegation of fraud against the petitioner and the impugned order proceeds on the basis that there was a mistake of fact. It is also not open to the respondents to contend that the principle in C.Subash Mudiraj (4 supra) and Habeeb Yahiya (3 supra) and In Re P Shyam Rao (2 supra) which dealt with fraud can also be extended to cases of mistake of fact and material irregularity, and that even in such cases, they can exercise the Revisional powers at any point of time.

62. In view of the above settled legal position, I hold on point (c) that the suo moto revisional powers, having been exercised in May,2018 through show cause notice by the Joint Collector, more than 4 years from the grant of assignment to the petitioner, cannot be said to have been exercised within a reasonable time, since it is not the case of the State that it was precluded from verifying the revenue records and the number of khatas in each survey number before issuing assignment/DKT pattas to the petitioner or at any time thereafter within a reasonable time.

Order dated 31.12.2018 in W.P.No.26046 of 2018

63. Also when the power under BSO 15 (18) is conferred on the Collector, the Joint Collector cannot exercise the said power. So, the exercise of such a power by the Joint Collector is wholly without jurisdiction.

64. When such exercise of power by the Joint Collector is without jurisdiction, there is no need for the petitioner to avail the remedy of appeal to the Chief Commissioner of Land Administration, A.P., Vijayawada, within 40 days in view of the decision of the Supreme Court in Whirlpool Corporation Vs. Registrar of Trade Marks."

18. Learned counsel for the petitioner also relied on the decision

passed in Joint Collector Ranga Reddy Dist. and Anr. vs D.Narsing

Rao and Ors2, while considering the issue with regard to the exercise of

suo moto power by the authorities, the Apex Court held as follows:-

31. To sum up, delayed exercise of revisional jurisdiction is frowned upon because if actions or transactions were to remain forever open to challenge, it will mean avoidable and endless uncertainty in human affairs, which is not the policy of law. Because, even when there is no period of limitation prescribed for exercise of such powers, the intervening delay, may have led to creation of third party rights, that cannot be trampled by a belated exercise of a discretionary power especially when no cogent explanation for the delay is in sight. Rule of law it is said must run closely with the rule of life. Even in cases where the orders sought to be revised are fraudulent, the exercise of power must be within a reasonable period of the discovery of fraud. Simply describing an act or transaction to be fraudulent will not extend the time for its correction to infinity; for otherwise the exercise of revisional power would itself be tantamount to a fraud upon the statute that vests such power in an authority.

32. In the case at hand, while the entry sought to be corrected is described as fraudulent, there is nothing in the notice impugned before the High Court as to when was the alleged fraud discovered by the State. A specific statement in that regard was essential for it was a jurisdictional fact, which ought to be clearly asserted in the notice issued to the respondents. The attempt of the appellant-State

(2015) 3 SCC 695

to demonstrate that the notice was issued within a reasonable period of the discovery of the alleged fraud is, therefore, futile. At any rate, when the Government allowed the land in question for housing sites to be given to Government employees in the year 1991, it must be presumed to have known about the record and the revenue entries concerning the parcel of land made in the ordinary course of official business. In as much as, the notice was issued as late as on 31st December, 2004, it was delayed by nearly 13 years. No explanation has been offered even for this delay assuming that the same ought to be counted only from the year 1991. Judged from any angle the notice seeking to reverse the entries made half a century ago, was clearly beyond reasonable time and was rightly quashed."

19. In another case, Collector and Ors. etc. vs P. Mangamma And

Ors3., wherein the Apex Court has interpreted the reasonable period,

being a relative term is essentially what is rational according to the

dictates of reason and not excessive or immoderate on the facts and

circumstances of the particular case.

20. Relying on the above decisions, learned counsel for the petitioner

argued that even though there is no period of limitation prescribed for

exercise of any power, revisional or otherwise, such power should be

exercised within a reasonable period and this is so even in cases where

allegations of fraud have necessitated the exercise of any corrective

power. It should be within the reasonable time and it cannot be extended

for its correction to infinity; otherwise the very exercise of such power

itself tantamount to a fraud.

2003 4 SCC 488.

21. Even as per the decision passed in N.Nagamani @ Paravthi Vs.

The State of Andhra Pradesh [1 supra], where the Joint Collector has

exercised the suo moto revisional powers after four years of grant of

assignment, the Court has set aside the proceedings only on the ground

of delay, holding that the respondents have not exercised the powers

within a reasonable time. In the instant case, the patta has been granted

in the year 2006 and the respondents have exercised suo moto powers

in 2021, which is after lapse of 15 years.

22. Learned counsel further submitted that even according to the

counter, it clearly envisages that except the procedure irregularity, there

are no finding of fraud against the petitioner or with regard to the

eligibility of the father of the petitioner. In view of the said

circumstances, requested to set aside the order passed by the 3rd

respondent on 13.03.2021 and remanded the matter for fresh

consideration for deletion of the petitioner's property from the prohibited

list.

23. Considering the submissions made by the petitioner and also on

perusal of the material on record, the above decisions relied on by the

petitioner, as held in N.Nagamani @ Paravthi's case [cited supra], the

suo moto revisional powers, having been exercised through show cause

notice by the Joint Collector, more than 4 years from the grant of

assignment to the petitioner, cannot be said to have been exercised.

24. Apart from that the court held that as per the BSO 15(18), the

exercising power conferred on the Collector, hence the joint Collector

cannot exercise such powers and held that the orders passed by the

Joint Collector is without jurisdiction.

25. Learned Government Pleader appearing for the respondents

contended that as per the G.O.Ms.No.77 Revenue dated 22.01.1968

orders were issued distributing the work subject wise among the District

Collectors, Joint Collectors and Personal Assistants to the District

Collectors, as per which, all the correspondence in the Collector's Office

has to be carried out in the name of the District Collector and the subject

relating to 'assignment and transfer of land' is to be dealt with by the

Joint Collector. Thus, the principle laid down in the decision in

N.Nagamani @ Paravthi's case is upheld by the erstwhile High Court of

Andhra Pradesh in Munganda Venkataratnam vs Joint Collector and

Anr4.

26. Though said judgment was not considered by learned single judge in

N.Nagamani @ Paravthi's case, the same was passed based on the

2006 (1) 547

provisions of the BSO 15(18), the court held that the Joint Collector has

no such power and held that it is without jurisdiction.

27. Apart from that, as observed by the Honourable Apex Court that

the Joint Collector Vs. D. Narsing Rao's case, it is clear that the

authorities cannot exercise their jurisdiction after long lapse, which

should be exercised within a reasonable time. Otherwise, the exercising

of power of suo moto jurisdiction would itself tantamount to a fraud upon

the statute that vests such power in an authority. In the instant case, no

doubt, the respondent authorities have not initiated the proceedings suo

moto, but only on the petitioner's application, for deletion for the

prohibitory list, instead of considering the same, the respondents taking

the irrelevant aspects into consideration, issued the present impugned

orders. In fact, as alleged by the petitioner, on perusal of the impugned

orders, it clearly discloses that no opportunity was given to the petitioner

except serving the notice on 24.02.2021.

28. It is not out of place to mention that though patta has been granted

in the year 2006, after 15 years, considering the representation made by

the petitioner, the respondents more specifically the 3rd respondent has

initiated the proceedings under B.S.O.15 (18) (1) issued notices first time

on 24.02.2021, and passed the impugned order within a month i.e., on

30.03.2021, which clearly disclosed the vindictive attitude of the 3rd

respondent. Therefore, it should be construed that the impugned orders

are passed for extraneous considerations.

29. In view of the observations made by Honourable Apex Court in

Joint Collector Ranga Reddy Dist. and Anr. vs D.Narsing Rao and

Ors. as well as the co-ordinate bench of composite High Court of

Judicature at Hyderabad in N.Nagamani @ Paravthi's case, in the

instant case, the cancellation of patta approximately after a period of 15

years, invoking the provisions of the BSO 15(18) is held illegal and in

violation of principles of natural justice. Thus, the questions are

answered accordingly.

30. In view of the above discussion, the impugned proceedings in

Rc.E2/1336/2020, dated 30.03.2021 are set aside, directing the 2nd

respondent to consider the representation made by the petitioner for

deletion of subject land from the list of prohibited properties under 22-A

of the Registration Act, 1908 and take appropriate decision within a

reasonable period.

31. Accordingly, the Writ Petition is disposed of. There shall be no

order as to costs.

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

_____________________ JUSTICE D.RAMESH Date:19-09-2022 Pnr

THE HONOURABLE SRI JUSTICE D.RAMESH

WRIT PETITION No.10627 of 2021 Date: 19-09-2022

Pnr