T. Venkateswarlu vs And
2023 Latest Caselaw 3933 AP

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

                + WRIT PETITION No.20046 of 2014

                           % 31st August, 2023


# T. Venkateswarlu
                                                                  ... Petitioner..
AND
                                 2.
$ State of Andhra Pradesh and 3 others.
                                                            ... Respondents.


! Counsel for the Petitioner              : Sri Vedula Srinivas

^ Counsel for the respondents             : Additional Advocate General
                                           Government Pleader for Revenue
                                           Sri Ch. Laxmi Narayana




< Gist:


> Head Note:



? Cases referred:
2006 (1) ALD 547
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     THE HON'BLE SRI JUSTICE D.V.S.S.SOMAYAJULU

              WRIT PETITION No.20046 of 2014

ORDER:

This Writ Petition is filed for the following relief:

"...to issue a Writ of Certiorari or any other appropriate direction or directions, to quash the proceedings of the 2n respondent dated 10.03.2014 in Rc.No.E2/4081/2013 and to set aside the consequential proceedings of the 3rd respondent dated 15.06.2014 in Rc.No.B45/2013 and pass such other order or orders as this Hon'ble Court may deem fit and proper in the circumstances of the case."

2) This Court has heard the learned counsel for the

petitioner, learned Government Pleader for Revenue and Sri

Ch.Laxmi Narayana, learned counsel for the 4th respondent.

3) The case of the writ petitioner is that the petitioner has

been allotted land measuring Ac.4-00 cents in Sy.No.70/2B/1

of Kallur Mandal, Kurnool in January, 1995 and he has paid

the market value for the same also. He has been in

possession and enjoyment of the same since then. He has

filed a civil suit against the attempt of encroachment by the

third party and obtained an interim order. Subsequently he

was called to the office of the 3rd respondent and informed

that the land was to be taken back. Therefore, he filed a writ

petition and this Court directed that the petitioner should not

be dispossessed except by due process of law. Thereafter, the

petitioner was asked to appear before the 3rd respondent and

also the 2nd respondent, who have conduced some sort of an

enquiry, but most of which was behind the back of the writ

petitioner. It is very categorically asserted that the impugned

order was passed without giving adequate opportunity to the

writ petitioner and that the statements were recorded behind

his back. D-Form patta granted to the petitioner was also

cancelled relying upon the BSO 15 (18) and Section 9 of the

A.P. Rights in Land and Pattadar Pass Books Act, 1971.

Questioning the same, the present writ petition has been

filed.

4) Learned counsel for the petitioner relied upon the

documents annexed to the writ petition including the counter

affidavit filed in the earlier writ petition, wherein the

possession of the petitioner etc., was admitted.

5) Learned Government Pleader for Revenue appeared for

the official respondents also argued the matter at length and

stated that the impugned order is correct in the

circumstances of the case. He also points out that as fraud

was discovered the cancellation is correct. It is pointed out

that none of the revenue records established that a valid patta

was in fact given to the writ petitioner. Therefore, it is urged

that the action taken is correct. Learned Government Pleader

relies upon the counter affidavit and makes his submission in

line thereof.

6) Learned counsel for the 4th respondent also raised very

similar grounds and argues the matter. He also relied upon

the judgment reported in Munganda Venkataratnam v

Joint Collector and Another1 to submit that if fraud is

perpetuated there is no question of limitation for the delay as

urged by the writ petitioner is not at all correct.

7) This Court after examining the records notices that

assignment of the land to the writ petitioner in 1995 is not

really disputed. The payment of market value is also not

disputed although it is urged that it is deliberately paid by the

writ petitioner to cover up his illegality and to strengthen his

case.

8) Apart from this, this Court notices that the writ

petitioner has also filed the possession certificate dated

2006 (1) ALD 547

10.01.2012, which is issued by the Tahsildar which states

that the petitioner is in possession of the property. The next

document relied upon is the counter in the W.P.No.10559 of

2012 in which the Tahsildar clearly admits that the petitioner

was assigned the land in 1995 and was also issued Pattadar

Passbook and title deeds. It is also admitted that O.S.No.98

of 2012 was also filed in the Civil Court for injunction. It is

also stated that since the land is close to some local colonies,

which need a burial ground, steps are being taken to resume

the land after following the due process. The next document

is a notice issued by the Tahsildar, dated 25.10.2013,

directing the writ petitioner to appear before him as the land

is proposed to be resumed for the public purpose. A letter

dated 23.11.2013 addressed by the Tahsildar, Kallur, to the

Collector is also relied upon. This letter reveals that the

petitioner is in possession and enjoyment of the land. The

verification of the revenue records also reveals that the

Pattadar passbook and title deeds have been issued in favour

of the writ petitioner. The Tahsildar, therefore, seeks

directions from the Collector for further action in view of the

interim stay obtained by the writ petitioner in W.P.No.10559

of 2012.

9) Ultimately, on 10.03.2014 the impugned order is

passed. In the opinion of this Court the impugned order is

legally unsustainable. A simple facile explanation of "fraud" is

used to set aside the assignment. In the opinion of this

Court, if the fraud was actually perpetuated in creating D-

form patta, Pattadar Passbook and title deeds, the Joint

Collector, who passed the impugned order, had a duty to spell

out with clarity why and how the fraud was perpetuated.

Creation of a patta, pattadar passbook and title deeds is

stated in this order who did this is not explained anywhere.

The earlier letter dated 11.10.2013 shows a Tahsildar has

examined the revenue record and come to a conclusion that

the pattadar Passbook and title deeds have been issued to the

writ petitioner. Therefore, it is not clear as to who played the

fraud in the creation of this document. This Court has been

noticing that an explanation of fraud is used to simply justify

such orders. Despite earlier orders on the same, same pleas

are being continued over and over again. Along with the

counter affidavit no documents are filed to show why and how

the fraud is perpetuated when the fraud was discovered and

the action taken against the perpetrators of the fraud is not

disclosed. No details are furnished also to enable this Court

to appreciate the same.

10) Even the impugned order shows that the statements

were recorded in the absence of the writ petitioner. On

18.01.2014, the Tahsildar Smt. Anjanadevi stated certain

facts to the Joint Collector. Apparently she stated that she

has attested the documents viz., adangal extracts etc.,

prepared by Sri N.C.Govind Reddy while she was busy in

distributing house site pattas. She also believed the VRO and

attested the same. As far as the Pattadar Passbooks were

concerned she submits that the Photostat copies were

attested by her as she was informed that the originals were

produced in the High Court. The possession certificate was

also issued by her only at the instigation of VRO. None of

these statements are actually recorded and no proof is filed to

show that the recorded statements are on the file of the Joint

Collector. No opportunity was also given to the writ petitioner

to cross examine or test the veracity of such statement. It is

necessary and imperative in such cases that when statements

made earlier are being assailed and admissions made earlier

are being withdrawn the party should be put in notice of the

same and should be given an opportunity to cross-examine

the witness. Even more appalling is the fact that an

admission made in the course of a sworn affidavit before the

High Court in W.P.No.10559 of 2012 is being treated as

"withdrawn". Admissions in pleadings have a greater weight.

They cannot be so easily resiled from. Similar statements of

Sri S. Yellareddy, VRO are also relied upon. Again it is not

clear if this statement is in the form of a deposition; whether

an opportunity was given to the writ petitioner to cross-

examine the witnesses etc. Sri Govinda Reddy, the then VRO,

has also given a statement. He submits that he has signed on

the extracts of the adangals at the instances of the Tahsildar

Smt. Anjanadevi, whose statement was recorded on

18.04.2014. It is not clear if either of these statements were

given to the petitioner and or if he was given an opportunity

to cross-examine the witnesses or to contradict the same.

11) The rules of natural justice are sacrosanct. They have

to be followed in letter and spirit. If a statement is to be relied

upon by an officer exercising quasi-judicial powers it must be

taken down in a proper form and a copy must be supplied to

the party likely to be affected by it. If necessary an

opportunity of cross-examination should also be given. All

the statements must be recorded in the present of the

petitioner. If that is not possible, then a copy of the recorded

statement must be furnished to the opposite parties before it

is relied upon at least to enable him to answer / contradict

the contents. The same was not done in this case. The writ

petitioner is before this Court stating that the statements

were recorded behind his back without offering the parties for

cross-examination. This aspect is also not denied in the

counter statement. It is thus clear that there is a gross and

abject failure of law in this case.

12) In addition, the submission of the learned counsel

relying upon BSO 15 and time barred appeals is also noted.

BSO 15 is annexed as a document to the writ petition.

Basing on this rule it is argued that the power was exercised.

An assignment made in 1995 was cancelled in the year 2014

without the issue of delay even being considered, let alone

condoned. This Court finds that in BSO 15 the timelines

stipulated are 30 days and 40 days. The appeal within these

periods can be entertained by the concerned officers if the

appeal is stamped with Court fee and filed in time. The time

barred appeals can also be condoned by the appellate

authority if good and sufficient cause is made out. It does not

appear if such an exercise was carried out at all.

13) The procedure for hearing of appeals is also stipulated

in BSO 17. It is categorically stated that no order should be

reversed or modified by a Collector or Divisional Officer

without giving the respondent a notice to "show cause against

action proposed to be taken adversely to him". Therefore, this

clearly involves a pre-decissional hearing before an adverse

order is passed.

14) Under BSO 18 a period of three years is given for the

presentation of a revision, if the Collector is satisfied that

there has been material irregularity, that the decision was

inequitable; that the Officer exceeded his powers or there is a

mistake of fact, fraud etc. Even here the upper limit is three

years. The Board of Revenue also can act within three years

for similar reasons as per BSO 18 (1). It is only the State

Government which has been given the power to act suo moto

or otherwise without a prescription of limitation. But even

here the judicial interpretation is that such matters cannot be

reopened at the sweet will and pleasure of the Government.

15) Although this BSO has been pressed into service along

with the Section 9 of the ROR Act this Court is of the firm

opinion that there is no provision either in the BSO or under

Section 9 to entertain a revision or appeal by whatever name

it is called challenging on assignment of 1995 in 2014.

16) Learned counsel for the 4th respondent relied upon the

judgment, which is referred to earlier, to argue that in case of

fraud the period of limitation to commence from the date of

discovery of a fraud. There is no dispute with the proposition

of law. In the case on hand even as on date fraud is neither

pleaded with certainty nor proved. Who played the fraud and

in what manner the fraud is perpetuated is not at all clear.

When the fraud was discovered and how it was discovered is

not proven. Loosely the words like fraud etc., are used to set

aside the settled legal possession and enjoyment. In the

opinion of this Court the order passed suffers from very

serious infirmities. It is, therefore, set aside.

17) The Writ Petition is allowed. There shall be no order as

to costs.

18) Consequently, Miscellaneous Applications pending, if

any, shall also stand closed.

                                     __________________________
                                     D.V.S.S.SOMAYAJULU, J
Date:     .08.2023
Note: LR copy be marked.
               B/o
               Ssv

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

WRIT PETITION No.20046 of 2014 DATE: .08.2023 Ssv