The Asst. Commissioner Of Proh. 2 ... vs K. Anjaiah 3 Ors.,
2022 Latest Caselaw 2306 Tel

 THE HON'BLE THE CHIEF JUSTICE SATISH CHANDRA SHARMA
                           &
       THE HONOURABLE SRI JUSTICE K. LAKSHMAN

                    WRIT APPEAL No.711 OF 2008
                               &
                    WRIT APPEAL No.911 OF 2008

COMMON JUDGMENT: (Per the Honourable Sri Justice K.Lakshman)


      Feeling aggrieved by and dissatisfied with the Order

dated 30-04-2008 passed by the learned Single Judge in

W.P.No.150 of 2001, in so far as learned Single Judge, denied

relief sought by the appellants i.e., direction to the Government

to restore agricultural property admeasuring Ac.09-06 gts., in

Sy.No.117 and 121 (old) and 124, 128/2 (new) assigned in

favour of respondent Nos.4 and 5 along with house property

bearing Door.No.1-42, in Sy.No.117 and 121 (New Survey

Nos.124 and 128/2) of Burugupally Village, Mominpet Mandal,

Rangareddy District, Writ Appeal No.711 of 2008 is filed by the

Writ Petitioners.


      2.    Likewise, aggrieved by and dissatisfied with the

Order dated 30-04-2008 passed by the learned Single Judge in
                                  2



W.P.No.150 of 2001, wherein the learned Single Judge, directed

the respondents No.1 to 3 to re-deliver the land admeasuring

Ac.2-19 gts., in Sy.No.128 to the Writ Petitioners, Writ Appeal

No.911 of 2008 is filed by respondents Nos.1 to 3 in the said

Writ Petition.

      3.    Heard     Sri.S.Sriramachandra     Murthy,     learned

Counsel for the Appellants in W.A.No.711 of 2008, the learned

Government Pleader for Revenue in W.A.No.911 of 2008 for

appellants and Sri.C.V.R.Rudra Prasad, learned Counsel

appearing for respondent No.6 in W.A.No.711 of 2008.

      4.    W.A.M.P.No.1 of 2018 in W.A.No.711 of 2008 is

filed to bring the petitioner therein as appellant No.3 in Appeal.

Having satisfied with the reasons and also considering the

Death Certificate dated 21-06-2016 issued by the Executive

Officer, Ravulapally Kalan Grampanchayath, Shankarpally

Mandal, Rangareddy District, showing the Date of Death of

first petitioner i.e., K.Anjaiah as 18-04-2016, this Application is

ordered.
                                 3



FACTS

:

5. K.Anjaiah and K.Narahari, sons of Sri.K.Rama

Goud, have filed Writ Petition No.150 of 2021, initially, seeking

a direction to respondents therein forthwith hand over to the

petitioners land admeasuring Ac.11.26 gts., along with the

house property bearing Door.No.1-42, in Sy.No.117 and 121

(New Survey Nos.124 and 128/2) of Burugupally Village,

Mominpet Mandal, Rangareddy District. Thereafter, they have

filed an application in W.P.M.P.No.8870 of 2008 seeking to

amend the prayer and the same was allowed. Thus the Writ

Petitioners have sought to declare the alleged auction and

purchasing an extent of Ac.14.21 gts and a house in Sy.Nos.117

and 121 (New Sy.Nos.124 and 128/2) situated at Burugupalli

Village, Mominpet Mandal, Rangareddy District, for an

appalling low rate of Rs.60/- belonging to the petitioners'

father, while he holds Ac.11.26 gts., as per Revenue Records,

without following the mandatory provisions, and assigning the

same to respondent Nos.5 and 6, as illegal and they also sought

consequential direction to the respondents to re-deliver the

possession of Ac.11.26 gts along with house property in

Sy.Nos.117 and 121 (New Sy.Nos.124 and 128/2) situated at

Burugupalli Village, Mominpet Mandal, Rangareddy District,

by cancelling the assignment.

6. The parties are referred as they arrayed in the Writ

Petition, for the sake of convenience.

7. The Writ Petitioners' father Sri.Rama Goud is the

absolute owner and possessor of Ac.11.25 gts. of agricultural

land in Sy.Nos.117 and 121 (new Sy.Nos.124 and 128/2) and a

house bearing Door No.1-42, Burugupalli Village, Mominpet

Mandal, Rangareddy District. He was an Excise Contractor.

He had toddy contract of Marpally Kalan Village of Marpally

Mandal for 1367 fasli, corresponding year of 1957-58, and he

had mortgaged the above said agricultural land and house

properties as security for payment of rentals in respect of the

said toddy shop. He fell arrears of rentals to the Government to

a tune of Rs.3,393/- and therefore, the Government initiated

Recovery Proceedings under the provisions of Revenue

Recovery Act, 1864 for the sale of the mortgaged property, and

recovery of the said amount.

8. Perusal of the record would reveal that the first

auction was conducted in 1958 for a sum of Rs.2,725/-, but the

auction purchaser failed to pay the auction amount and

therefore, after six years, it was decided to conduct auction the

said properties fixing the upset price of Rs.5,000/- for the

agricultural property and Rs.2,000/- for the house property.

The Auction Notification dated 04-05-1964 was published on

25-04-1964 fixing the date of auction of said property on 29-07-

1964 and auction was conducted on the said date.

9. The said agricultural land was auctioned for

Rs.925/- in the name of one Sayanna and the house property

was auctioned for Rs.1,800/- in the name of one Ramaiah, but

the highest bidders were not credited the bid amounts. Hence

the said auction was cancelled and the properties were again

notified for auction, as no one came forward to purchase the

above said properties, the Government by invoking Board

Standing Order No.45 purchased agricultural land for Rs.10/-

and house property for Rs.50/-, for total amount of Rs.60/- the

Government purchased entire property.

10. Perusal of the record would further reveal that Writ

Petitioners have specifically contended that their father owned

land admeasuring Ac.11.25 gts and even though auction was

conducted in respect of land admeasuring Ac.14.58 gts and sale

certificate was also issued for the said extent of land

admeasuring Ac.14-58 gts., No notice was served on the

petitioners.

11. The Writ Petitioners have filed the above said Writ

Petition i.e., W.P.No.150 of 2001 challenging the said auction on

the following grounds:

i. No notice was issued to the petitioners i.e., legal

heirs of the said Rama Goud defaulter, and owner and

possessor of the said property.

ii. Even though auction was conducted in respect of

the land admeasuring Ac.14-58 gts., even Sale Certificate was

also showing the said fact, the petitioners are not aware of the

said auction and also the sale, as they are minors by that time.

iii. Entire auction was held in violation of the

procedure laid down under Revenue Recovery Act, 1864 and

principle laid down by the Hon'ble Supreme Court of India in

catenae of decisions.

iv. The Board of Revenue Standing Orders are not

having any statutory effect and respondent authorities cannot

invoke the same.

vi. The petitioners have cleared the entire excise arrears

of Rs.3,400/- vide Challan No.0006773 dated 30-03-1996 paid at

State Bank of Hyderabad, Gruhakalpa Branch, Hyderabad.

vii. The Government came up with the proposal to

write off the interest, penalties, if the principal amount is paid.

viii. The Government cannot assign the land

admeasuring Ac.04-03 gts., in Sy.No.124, and an extent of

Ac.05-03 gts. in Sy.No.128 in favour of respondent No.5 therein

i.e., G.Gnaneswar, an Ex-Serviceman, leaving the balance of

Ac.02-09 gts under the possession of Government.

With the said submissions, the petitioners sought to

declare the entire auction as illegal and for consequential reliefs

as stated supra.

12. The said Writ Petition was opposed by the official

respondents on the following grounds:

i. Sri.K.Rama Goud, father of the petitioners fell excise

arrears of Rs.3,393/-, therefore, the Government has initiated

Revenue Recovery Proceedings for recovery of said excise

arrears. They have issued auction notice and auction was

conducted and the highest bidders have not paid the entire sale

consideration, therefore, they have cancelled the auction and by

invoking Board Standing Order No.45, the Government has

purchased agricultural land for Rs.10/- and house property for

Rs.50/-, for total amount of Rs.60/-.

ii. The land admeasuring Ac.04-03 gts., in Sy.No.124,

and land admeasuring Ac.05-03 gts., in Sy.No.128 was assigned

in favour of respondent No.5 G.Gnaneswar, an Ex-Serviceman,

leaving the balance of Ac.02-09 gts under the possession of

Government.

iii. The petitioners have cleared the entire excise arrears

of Rs.3,400/- vide Challan No.0006773 dated 30-03-1996 and the

Government came up with the proposal to write off the interest,

penalties if the principal amount is paid.

iv. The Assistant Commissioner of Excise addressed a

Letter dated 05-03-1997 in proceedings No.C3/17346/58,

informing the possession of the lands in question and also to

submit copies of the connected papers.

v. The second petitioner K.Narahari, filed

W.P.No.9485/1995 with similar relief and the said Writ Petition

was dismissed on 09-09-1997 by the Division Bench.

13. Therefore, the present Writ Proceedings operates as

Resjudicata, and the Writ Petitioners have filed the present Writ

Petition with abnormal delay and the same is barred by

limitation. The respondents have conducted auction by

following the procedure laid down under law.

14. The learned Single Judge vide Order dated 30-04-

2008 allowed the said Writ Petition No.150 of 2001 in part, with

following findings:

i. The Division Bench dismissed the writ petition on

the ground that the petitioner has not explained the delay

properly in questioning the auction of the said properties in

1965, auctioned was conducted more than 30 years ago cannot

be set aside after lapse of so many years.

ii. The second petitioner filed W.P.M.P.No.32928 of

2007 seeking permission of the Court to delete the second

petitioner as he is not necessary or proper party to the Writ

Petition and the same was allowed.

iii. Perusal of the Judgment of Division Bench in

W.P.No.9485 of 1995, dated 09.09.1997 goes to show that the

Government made a representation before the Division Bench

stating that the Government secured the lands and the house by

bidding one rupee excess of the amount due. In those

circumstances, the Division Bench dismissed the writ petition.

But the said statement made before the Division Bench is

factually incorrect as the Government did not secure the said

lands for one rupee more than the arrears as the arrears amount

was Rs.3,393/- and if one rupee is added the Government bid

should have been Rs.3,394/-. But the record actually goes to

show that the Government secured the said properties for a

sum of Rs.60/- only.

iv. In view of the above stated factual aspect, more

particularly, misrepresentation made by the Government, the

same Judgment cannot be operated as resjudicata to the present

Writ Petition. The second petitioner came to know the fraud

played by the Government only in the year 1995 and he has

questioned the said auction in the year 1995.

v. The Government Pleader has produced entire

records which goes to show that retention of the said properties

of the defaulter in auction for a paltry sum of Rs.60/- is

contrary to the procedure laid down under Revenue Recovery

Act, the Government could not have purchased the said

property in less than the upset price or less than the arrears of

amount. However, as an extent of Ac.9.06 gts. was already

assigned in favour of the respondent No.5 therein and the

assignment was not at all questioned, and no notice was served

on respondent No.5, the said assignment already made in 1979

cannot be interfered with.

vi. The petitioners have paid the entire arrears of

amount. Therefore, the petitioners are entitled at least for re-

delivery of the remaining land to an extent of Ac.2.19 gts.,

which is said to be in the possession of the Government. The

respondents No.1 to 3 were directed to re-deliver the remaining

land to an extent of Ac.2.19 gts., in Sy.No.128 to the Writ

Petitioners.

      15.      CONTENTIONS           OF   APPELLANTS          IN

W.A.No.711 of 2008:




         i.     Writ Petition is not barred by limitation.

         ii.    Doctrine of Resjudicata will not operate and the

learned Single Judge has given a specific finding to the said

effect.

iii. There is no challenge to the said finding given by

the learned Single Judge, on limitation and Resjudicata by

Appellants in W.A.No.911 of 2008, respondent Nos.1 to 3 in

W.A.No.711 of 2008.

iv. The respondents' authorities have played fraud and

the said contentions were not considered by the learned Single

Judge.

v. The respondents have not followed procedure laid

down under Board of Revenue Standing Order No.45 and

procedure laid down under the Revenue Recovery Act, 1984,

more particularly, Section 36 of the Act.

vi. The Standing Orders are not having any statutory

force.

vii. The learned Single Judge, having came to a

conclusion that the Writ Petitioners herein have paid entire

arrears amounts, no notice was issued, respondents No.1 to 3

have played fraud, they were directed to re-deliver the

possession in respect of remaining land.

viii. The finding of the learned Single Judge that as an

extent of Ac.9.06 gts. was already assigned in favour of

respondent No.5 therein and the assignment was not at all

questioned and no notice was served on respondent No.5, the

said assignment already made in 1979 cannot be interfered

with, are perversed not based on actual facts and law. They are

also contrary to the law laid down by the Hon'ble Supreme

Court of India.

ix. The learned Single Judge failed to appreciate the

contention of the petitioners that fraud vitiates everything. The

learned Single Judge though came to a conclusion that

respondents have played fraud and obtained Judgment in

W.P.No.9485 of 1995 dated 09-09-1997, erred in directing

respondents Nos.1 to 3 to re-deliver possession in respect of

only Ac.02-09 gts., instead of entire land.

x. There is a suppression of fact by the respondents.

The said facts were not considered by the learned Single Judge

Court.

xi. Learned counsel for the Appellants has placed

reliance on several Judgments which will be dealt with

contextually, in the following paragraphs.

16. THE CONTENTIONS OF THE RESPONDENTS

NOs.1 to 3 & 6 in W.A.No.711 of 2008 AND APPELLANTS in

W.A.No.911 OF 2008:

i. The learned Government Pleader for Revenue and

Sri.C.V.R.Rudra Prasasd, learned Counsel for the respondent

No.6 would submit that the respondents No.1 to 3/appellants

in W.A.No.911 of 2008 have followed the entire procedure laid

down under law while conducting auction. They have rightly

assigned above said extent of land to respondent No.6, the said

assignment was not challenged, there are laches, there is delay

in filing the Writ Petition. Questing the auction in W.P.No.150

of 2001 operates as Resjudicata and the learned Single Judge

has considered the said fact in the impugned order. However,

the learned Single Judge erroneously directed the respondent

Nos.1 to 3 to re-deliver the possession of balance land to an

extent of Ac.2.19 gts. in Sy.No.128 to the petitioners herein.

With the said submissions, both of them prayed to dismiss

W.A.No.711 of 2008 and to allow W.A.No.911 of 2008.

17. In view of the rival submissions, the undisputed

facts are as follows:

i. Sri.K.Rama Goud, father of the Writ Petitioners was

the absolute owner of Ac.11.25 gts. of agricultural land in

Sy.Nos.117 and 121 (new Sy.Nos.124 and 128/2) and a house

bearing Door No.1-42, Burugupalli Village, Mominpet Mandal,

Rangareddy District.

ii. He fell arrears in respect of toddy contract of

Marpally Kalan Village of Marpally Mandal for 1367 fasli,

corresponding year of 1957-58 and mortgaged the above said

agricultural land and house properties as security for payment

of rentals for the said toddy shop.

iii. He also fell arrears of rentals to the Government to a

tune of Rs.3,393/- to the Government and the official

respondents have initiated Recovery Proceedings under the

provisions of Revenue Recovery Act, 1864 for the sale of the

mortgaged property.

iv. First auction was conducted in 1958, for a sum of

Rs.2,725/-, but the auction purchaser failed to pay said amount.

v. Six years thereafter, the official respondents have

fixed upset price of Rs.5,000/- for the agricultural property and

Rs.2,000/- for the house property.

vi. The Auction Notification dated 04-05-1964 was

published on 25-04-1964 and auction was conducted on 29-07-

1964 and the said agricultural land was auctioned for Rs.925/-

in the name of one Sayanna and the house property was

auctioned for Rs.1,800/- in the name of one Ramaiah. But they

have not credited the said amounts within stipulated time, the

said auction was cancelled and the properties were again

notified for auction.

vii. The land admeasuring Ac.04-03 gts., in Sy.No.124

and land admeasuring Ac.05-03 gts. in Sy.No.128 was assigned

to respondent No.5 Sri.G.Gnaneswar, Ex-Serviceman, leaving

the balance of Ac.02-09 gts under the possession of

Government.

viii. The respondent No.5 and his son have sold land

admeasuring Ac.05-03 gts., in favour of the respondent No.6

herein vide Registered Sale Deed bearing Doc.No.812 of 2008

dated 15-02-2008.

18. It is relevant to note that the respondents No.4 and 5

were set exparte in W.P.No.150 of 2001 even in the present Writ

Appeals, despite service of notice there is no representation on

their behalf.

19. In view of the above said undisputed facts, and also

rival submissions, this Court will consider the contentions of

that parties.

LIMITATION, RESJUDICATA AND FRAUD:

20. The above stated facts would reveal that second

auction was conducted on 29-07-1964 and the same was not

materialized. The official respondents are claiming that the

Government had purchased the subject properties under a Sale

Certificate No.345/58/D5, in the auction held on 25-07-1964.

21. According to the Writ Petitioners, they came to

know about the said auctions etc., only when the Assistant

Commissioner of Excise addressed a Letter dated 05-03-1997 in

proceedings No.C3/17346/58 to the Mandal Revenue Officer

concerned requesting him to furnish the details with regard to

the possession of the above lands along with records. They

have also paid the entire excise arrears of Rs.3,400/- vide

Challan No.0006773 dated 30-03-1996. Therefore, according to

them, there is suppression of the fact and the respondents have

played fraud.

22. Perusal of the Order dated 09-09-1997 in

W.P.No.9485 of 1995 would reveal that the said Writ Petition

was dismissed by the Division Bench of this Court on the

ground that the petitioner has not explained the delay properly.

During the course of submissions, the official respondents have

not brought to the notice of the Division Bench with regard to

the auction and assignment etc.,

23. The second petitioner filed W.P.M.P.No.32928 of

2007 in W.P.No.9485 of 1995 seeking permission to delete his

name as not necessary or proper party to the Writ Petition and

the same was allowed, and the said fact was not brought to the

notice of the Division Bench. The learned Single Judge

considered the said facts. The official respondents are claiming

that they have retained entire property for a sum of Rs.60/-.

24. The learned Single Judge gave a specific finding

that the proceedings in W.P.No.150 of 2001 in the impugned

Order that the dismissal of W.P.No.9485 of 1995 will not

operate as Resjudicata to the proceedings in W.P.No.150 of 2001

since the Writ Petition was dismissed by Division Bench on the

statement made before it, which is factually incorrect. It is

relevant to note that there is no challenge to the said finding by

the official respondents/appellants in W.A.No.911 of 2008.

ENTRIES IN THE REVENUE RECORDS:

25. In the counter filed by the first and second

respondent in W.P.No.150 of 2001, it was contended by them

that subject property was 'bought in' by the Government in

view of the fact that there were no bidders on account of

combination among the ryots and Kharij Khatha entries in the

relevant records of the Revenue Department, as per the

procedure. Even the said fact was also mentioned by the

Prohibition and Excise Superintendent, Rangareddy District, in

the counter filed in W.P.No.9485 of 1995. Therefore, there is no

dispute with regard to the said entries. There is no dispute

with regard to the assignment of land admeasuring Ac.09-06

gts., in favour of the respondent No.5 in the year 1979.

26. Perusal of record would reveal that the name of the

said Rama Goud was there in the revenue records both in the

pattadar and possessor columns till 1973. In the counter filed

by the respondents No.1 and 2 in W.P.No.150 of 2001, they have

filed proceedings issued by Tahsildar, Vikarabad which shows

that there was change of entries in the revenue records. It is

mentioned as 'Ain Kami' in the Jamabandi and as 'Kharij Khata'.

In view of the same, it is relevant to note that 'Ain' means the

property actually existing, specific sum or value, the most

precious or substantial part of the property. 'Kamia' means as

one kind of "Bandhak Kamia" is one, who is a slave only until he

can repay the money advanced to him for his services, till such

time the money is paid, the land will not be released. "Karij

Zama" means as extra collections and miscellaneous items of

revenue. 'Kharij Khata' means government land i.e., ceiling

surplus land. The said entries in the revenue record is contrary

to the record, arbitrary and illegal. They are not based on

actual facts.

27. Record also would reveal that official respondents

are claiming that the Government has purchased the entire

subject property for Rs.60/- i.e, Rs.50/- towards agricultural

land and Rs.10 towards house property. They have not paid

the said amount to the Excise Department towards rental

arrears of late.K.Rama Goud. However, the Excise Officials

have permitted the petitioners herein to pay the said arrears

and also issued challan to the petitioner herein and they have

paid an amount of Rs.3,400/- towards arrears by Challan

No.0006773 dated 30-03-1996 paid at State Bank of Hyderabad,

Gruhakalpa Branch, Hyderabad. Thus the Excise Department

permitted the petitioners to pay the said arrears and accepted

the said deposit.

28. The said facts would reveal that the Revenue

Department has not paid the said amount of Rs.60/- to the

Excise Department by way of transfer. May be with the said

reason, the Excise Department has allowed/permitted the

petitioner herein to pay the same amount by way of Challan.

Thereafter the Excise Department has decided to write off the

arrears and therefore, vide proceedings dated 08-11-1982

requested the Tahsildar to send write off arrears.

29. The Assistant Commissioner of Excise addressed a

Letter dated 05-03-1997 in proceedings No.C3/17346/58 to the

Mandal Revenue Officer concerned requesting him to furnish

the details with regard to the possession of the above lands

along with records.

30. In the counters filed by the respondents, they have

admitted that the said Rama Goud, father of the petitioners

have mortgaged the above said properties i.e., land

admeasuring Ac.04-03 gts., in Sy.No.124 and land admeasuring

Ac.07-22 gts., in Sy.No.128 and also tiled house bearing No.1-42

of Burugupally Village, Mominpet Mandal, Rangareddy

District. Therefore, the entries were made after 31-03-1973, the

date on which the Tahsildar, Vikarabad issued proceedings to

change the entries. In view of the same, the official respondents

cannot contend that the Writ Petition is barred by limitation.

SUPPRESSION OF FACTS:

31. In the counter filed by the respondents No.1 and 2

in W.P.No.150 of 2001, they have suppressed certain facts i.e.,

conducting of auction twice i.e., in the year 1958, 29-07-1964

and thereafter, fixing of upset price for an amount of Rs.5,000/-

for agricultural property and an amount of Rs.2,000/- for house

property. In the first auction conducted in the year 1958, a sum

of Rs.2,725/- was the price offered by the highest bidder. Six

years thereafter, the official respondents have fixed the upset

price and conducted auction on 29-07-1964. The agricultural

land was auctioned for Rs.925/- and house property was

auctioned for Rs.1,800/- and the highest bidders have not paid

the said amount within stipulated period of time and the said

auction was cancelled. The properties were again notified for

auction. The date of third auction is not mentioned in the

counter filed by the respondents No.1 and 2 in W.P.No.150 of

2001, fixation of nominal prices is also not mentioned.

32. Though the father of the petitioners have

mortgaged the land admeasuring Ac.11-25 gts., and house

property, there is no explanation from the official respondents

with regard to conducting of auction for land admeasuring

Ac.14-58 gts.,. It is relevant to note that one acre of land is equal

to 40 guntas. There can't be Ac.14-58 gts., and it should be

Ac.15-18 gts., Thus, the description of extent of land is also

wrongly mentioned. The said fact was also mentioned in the

sale certificate. But there is no explanation, muchless plausible

explanation from the official respondents with regard to the

said discrepancy. Excise Department Officials have issued

Proceedings dated 17-05-1982, 04-06-1982, 08-11-1982 writing

off arrears.

33. The said facts were suppressed by the respondents

in their counters filed in W.P.No.9485 of 1995 and W.P.No.150

of 2001. Thus, there is clear suppression of facts by the official

respondents. As stated above, the official respondents have

fixed upset prices for land property as Rs.5,000/- and

Rs.2,000/- for house property. In the auction conducted in the

year 1958, the property was auctioned for Rs.2,725/- and after

second auction on 29-07-1964, the land property was auctioned

for Rs.925/- in favour of Sayanna and house property was

auctioned for Rs.1,800/- in the name of Ramaiah. However,

they have not paid the prices within stipulated time and the

auction was cancelled. There is no explanation, muchless

plausible explanation from the official respondents with regard

to the purchase of entire subject property for Rs.60/- i.e.,

Rs.50/- for agricultural land and Rs.10/- for house property i.e.,

'nominal price'. The said amount of Rs.60/- is much less than

the bid amount in respect of first auction conducted in the year

1958 and the second auction conducted on 29-07-1964.

34. It is relevant to note that in the impugned order, the

learned Single Judge specifically mentioned that he has gone

through the entire original record furnished by the learned

Government Pleader.

35. Perusal of the same, in the impugned Order,

learned Single Judge has mentioned that the second auction

was conducted on 29-07-1964, pursuant to the auction

notification dated 04-05-1964, published on 29-05-1964. Whereas

in the Sale certificate, the date of auction was mentioned as 25-

07-1964 and in the Proceedings dated 12-08-2003 issued by the

Prohibition and Excise Superintendent, Rangareddy District

also it is mentioned that since no bidder came forward, the

properties were taken as 'bought in' lands on 25-07-1964 as per

the provisions of Board of Revenue Standing Order No.45 for a

nominal sum of Rs.60/-, the same was confirmed and a sale

certificate under Section 38 of Revenue Recovery Act, 1864 was

also issued by the District Collector vide Proceedings

No.17346/58/D5 dated 13-07-1965.

36. Though the notification for second auction dated 04-

05-1964, was published on 29-05-1964 and auction was

conducted on 29-07-1964, in the sale certificate the public

auction was mentioned as 25-07-1964. There is no explanation

with regard to the said discrepancy from the official

respondents.

37. Board of Revenue Standing Order No.45 deals with

buying in lands for Government, and Clause-I deals with

general procedure, which is as follows:

"In cases of revenue sales when there is good reason to suspect combination to prevent the realisation of the full value of the land, an officer who is authorised by the Collector and who is not the auction conducting officer shall bid on behalf of Government upto an amount not exceeding 50% of the estimated value of the land or an amount equal to the arrears or revenue plus expenses, whichever is less, and purchase the property on behalf of the Government as the highest bidder. But in case of any other bidder in the auction making a bid in excess of 50% of the estimated value of the land or an amount equal to the arrears of revenue plus expenses, the officer bidding on behalf of the Government shall cease to take part in the auction. When land is brought in the Government the certificate should be issued in the name of the Government. (Para (1) of Board of Standing Order No.45 is substituted as per G.O.Ms.No.1041, Revenue, dated 16-09-1976)."

38. Moreover, Clause-I of Board of Standing Order

No.45 says that in cases of revenue sales when there is good

reason to suspect combination to prevent the realisation of the

full value of the land, an officer who is authorised by the

Collector and who is not the auction conducting officer shall

bid on behalf of Government upto an amount not exceeding

50% of the estimated value of the land or an amount equal to

the arrears or revenue plus expenses, whichever is less, and

purchase the property on behalf of the Government as the

highest bidder.

39. It also says that in case of any other bidder in the

auction making a bid in excess of 50% of the estimated value of

the land or an amount equal to the arrears of revenue plus

expenses, the officer bidding on behalf of the Government shall

cease to take part in the auction. When land is brought in the

Government the certificate should be issued in the name of the

Government.

40. As discussed supra, the official respondents are

claiming that after cancellation of second auction, by invoking

Board of Revenue Standing Order No.45, the Government has

purchased the agricultural land for Rs.10/- and house property

for Rs.50/-, for a total amount of Rs.60/-.

41. In view of the same, it is relevant to discuss with

regard to the procedure to be followed under Board of Revenue

Standing Order and the character of the Board of Revenue

Standing Order. In Telangana area, the Board of Revenue was

constituted under the Hyderabad Board of Revenue Regulation

1358 fasli. It became the Chief Controlling Revenue Authority,

at the time of formation of Andhra Pradesh State there were

two Boards of Revenue, one functioning in Telangana area and

another in Andhra Pradesh area. After formation of Andhra

Pradesh State, the Government acting under Section 122 of the

States Reorganization Act, issued G.O.Ms.No.1250 (Revenue

Department) dated 03-07-1957 specifying among the other

things, the Board of Revenue functioning in Andhra Pradesh

area immediately before 01-11-1956 as the Competent Authority

to exercise the functions exercisable under Hyderabad Board of

Revenue Regulation 1358 fasli. Thus, one Board of Revenue

came into existence to entire State of Andhra Pradesh.

42. As the time passed by various departments

entrusted with developmental activities sprang up, with the

result that the importance of the Revenue Department as also

the Board of Revenue started diminishing, the Government

thought that in the context of the present day administration

the Board of Revenue is rather out of tune. The Government

appointed a One Man Committee headed by Sri.S.R.Kaiwar,

I.C.S., (Retired) to examine the proposal to abolish the Board of

Revenue in all its aspects.

43. The Government, after careful examination of the

Report submitted by the said Committee abolished the Board of

Revenue by the Andhra Pradesh Board of Revenue

(Replacement by Commissioners) Act, 1977. The Government

appointed the Commissioners as Independent Heads of

Departments. Now, the Commissioners exercise various

powers under the Board's Standing Orders and therefore,

wherever there is a reference to Board in the Board's Standing

Orders it should be understood as a reference to the concerned

Commissioner.

44. The Board's Standing Orders are a mixture tracing

their origin to various rules as also executive instructions.

Under Madras Act 3 of 1895 power is conferred on the Board to

make rules on various matters with the approval of the

Government after previous publication. Several Boards'

Standing Orders have come into existence in this manner.

45. That apart, the Government have been issuing

various Government Orders on various aspects concerning the

Revenue administration and these Government Orders, also

have been incorporated in the Board's Standing Orders. The

result, therefore, is that it is not possible to say with certainty

that the Board's Standing Orders are either statutory or non-

statutory orders.

46. In Katta Rattamma and others Vs. Gannamaneni

Kotaiah and others1 the High Court of Andhra Pradesh at

(1975) II An.W.R 122

Hyderabad had an occasion to deal with this aspect of statutory

nature of the Board of Standing Orders, and it was held that the

Board of Standing Orders are both statutory and non-statutory

depending upon the Government whether they are issued

under statue or whether they are issued in the form of

Government Order, by the Government in exercise their

Executive Power to issue instructions under Article 162 of

Constitution of India.

47. In Pasupuleti Krishna Murthy Vs. Annadasu

Bapanayya and others2 the Division Bench of High Court of

Judicature at Hyderabad has held as follows:

"....The instructions issued by the Government regulating the grants of lands to political sufferers do not confer rights enforceable in a Court of Law and the propriety of the decision of the Darkhast Authority acting within the scope of its Powers cannot be questioned by the Civil Courts. Even if the decision did not strictly conform to the instructions, a Civil Court cannot set it aside on that ground."

(1956) ALT 566

48. The similar question fell for consideration before the

Hon'ble Supreme Court of India, in respect of Police Standing

Orders, in State of Andhra Pradesh Vs. N.Venugopal3 on

examination of facts of the case, including the Police Standing

Orders, it was held by the Hon'ble Supreme Court of India that

the Police Standing Orders are a mixture. Some of the Police

Orders are issued under the Madras District Police Act, 1859

and some of them are mere incorporations of the instructions

issued by the Government in various Government Orders.

49. The Hon'ble Supreme Court of India further held

that Police Standing Order No.145 which was not issued under

the Madras District Police Act but was issued by the Home

Department do not have the force of law. It is only non-

statutory in character and as such it is not authority of law. The

said Supreme Court decision applies equally to Board's

Standing Orders also.

AIR (1964) SC Page No.33

50. The Hon'ble Supreme Court of India referring to the

principle laid down by the High Court of Andhra Pradesh in

Katta Rattamma's decision cited supra, held that the origin of

Board's Standing Orders has, therefore, to be examined to find

out whether it is statutory or non-statutory.

51. It is also relevant to note that Hon'ble Apex Court in

The Tahasildar, Taluk Office, Thanjore and others Vs.

G.Thambidurai and another4 held that Revenue Standing

Orders under Tamilnadu Revenue Recovery Act, 1864 are

binding and enforceable.

52. In view of the above said law, perusal of the Board

Standing Order No.45 would reveal that the same was not

issued under any statutory and it was issued only in the form of

Government Order, by the Government in exercise of its

Executive Powers to issue instructions under Article 162 of

Constitution of India. Therefore, according to this Court, the

Board of Standing Order No.45 is not having any statutory

(2017) 12 SCC 642

force. It is only an Executive instruction. Therefore, the official

respondents cannot claim that they have invoked the Board of

Standing Order No.45 and the Government has purchased the

agricultural land and house property for a nominal amount of

Rs.60/-. Moreover they have not followed the procedure laid

under the said Board of Standing Order No.45.

53. As discussed supra, the official respondents have

not even followed the said procedure of Clause-I of Board of

Standing Order No.45. Therefore, viewed from any angle, the

action of the official respondents in purchasing the subject

property for a nominal amount of Rs.60/- is in violation of the

said procedure.

54. Section 36 of Revenue Recovery Act, 1864 deals with

Procedure in sale of immovable property, and the same is

extracted below:

In the sale of immovable property under this Act the following rules shall be observed:--

I. The sale shall be by public auction to the highest bidder. The time and place of sale shall be

fixed by the Collector of the district in which the property is situated, or other officer empowered by the Collector in that behalf. The time may be either previous to or after the expiration of the fasli year. II. Previous to the sale the Collector, or other officer empowered by the Collector in that behalf, shall issue a notice thereof in English and in the language of the district, specifying the name of the defaulter; the position and extent of land and of his buildings thereon; the amount of revenue assessed on the land, or upon its different sections; the proportion of the public revenue due during the remainder of the current fasli; and the time, place, and conditions of sale. This notice shall be fixed up one month at least before the sale in the Collector's office and in the Taluk cutcherry, in the nearest police station-house, and on some conspicuous part of the land.

III. A sum of money equal to fifteen per cent of the price of the land shall be deposited by the purchaser in the hands of the Collector, or other officer empowered by the Collector in that behalf, at the time of the purchase, and where the remainder of the purchase- money may not be paid within thirty days, the money so deposited shall be liable to forfeiture.

IV. Where the purchaser may refuse or omit to deposit the said sum of money, or to complete the payment of the remaining purchase-money, the property shall be resold at the expense and hazard of such purchaser, and the amount of all loss or expense which may attend such refusal or omission shall be recoverable from such purchaser in the same manner as arrears of public revenue. Where the lands may, on the second sale, sell for a higher price than at the first sale, the difference or increase shall be the property of him on whose account the said first sale was made.

55. Section 36-A of the Revenue Recovery Act, 1864

says that the provisions of the third and fourth clauses of

Section 36 shall not to apply to cases where immovable

property sold under this Act is purchased by the Government.

However, Clause-I and II of the Section 36 of the Act are

mandatory i.e., public auction and notification one month

before sale.

56. In view of the above discussion and perusal of the

record would reveal that the official respondents have violated

the said procedure laid down in toto.

57. Moreover they have fixed nominal amount at only

Rs.60/-. The revenue entries is contrary to the contentions of

the respondents in the counter. In the counter the respondents

have stated that the entire land is assigned to respondent No.5

and the same is contrary to the entries in the revenue record.

There are contradictions in the counters filed by the official

respondents in W.P.No.9485 of 1995 and W.P.No.150 of 2001.

In the counter filed in W.P.No.9485 of 1995, they have stated

that the land to an extent of Ac.02-20 gts., in Sy.No.128 should

be restored since the petitioner has cleared excise arrears of

Rs.3,400/- and in the counter filed in W.P.No.150 of 2001 it is

mentioned that the petitioner on their own with their interest

paid dues, whereas no demand notice was issued by the

Department. Thus there are contradictions in the counters filed

by the official respondents.

58. Thus the respondents have suppressed several facts

and played fraud on the Court and obtained Order in

W.P.No.9485 of 1995 dated 09-09-1997.

59. The Hon'ble Supreme Court of India in Ramrao

Jankiram Kadam Vs. State of Bombay5 categorically held that

in an auction conducted by the Government authorities

purchase of the property belongs to defaulter by Government at

a nominal bid is not a sale by public auction within Section 167

of Bombay Land Revenue Code. The sale is void. No title

passes to the Government.

60. It was also held that prior notice to the defaulter to

make such purchase is must, in the absence of the same, the

auction is null and void.

61. The Hon'ble Apex Court further held that even

where the fact that a notice is given to the petitioners that the

Government desires to purchase nominally, yet that does not

make such a purchase good and is ab-initio and no title would

pass to the Government.

62. It is also relevant to note that by following said

principle, the High Court of Judicature, Andhra Pradesh at

AIR 1963 SC 827

Hyderabad in Rangareddy and others Vs. State of Andhra

Pradesh represented by Collector, Medak and others6 held

that sale in favour of Government for pre-determined price of

Re.1/- in the absence any bidders for the realization of arrears

of revenue, is not valid. It further held that in the Andhra

Pradesh Revenue Recovery Act, there is no provision

authorizing such a sale. The auction was declared as illegal.

63. As stated above, the official respondents while

conducting auction did not follow the procedure laid down

under Revenue Recovery Act, 1864.

64. It is also relevant to note that the Hon'ble Apex

Court in Shiv Shanker Dal Mills Etc. Vs. State of Haryana and

others7 held that:

"Where public bodies, under colour of public laws, recover people's moneys, later discovered to be erroneous levies, the dharma of the situation admits of no equivocation. There is no law of limitation,

Order dated 24-01-1977 in W.P.No.5578 of 1975

AIR 1980 SC 1037

especially for public bodies, on the virtue of returning what was wrongly recovered to whom it belongs.

65. In Lazarus Estates Limited Vs. Beasley8 it was held

that:

"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".

66. In Express Newspapers Private Limited and others

Vs. Union of India and another9 the Hon'ble Supreme Court of

India held that:

"Fraud on power voids the order if it is not exercised bonafide for the end design. There is a distinction between exercise of power in good faith and misuse in bad faith. The former arises when an authority misuses its power in breach of law, say, by taking into account bona fide, and with best of intentions, some extraneous matters or by ignoring relevant matters. That would render the impugned act or order ultra vires. It would be a case of fraud on powers."

(1956) 2 QB 702

1986 AIR 872

67. The said principle was also reiterated in S. Pratap

Singh vs The State Of Punjab10.

68. In Ram Chandra Singh vs Savitri Devi And Ors11,

the Hon'ble Supreme Court held that:

"Fraud vitiates all solemn acts. Fraud and justice never dwells together. 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 former either by word or letter. It is also well settled that misrepresentation itself amounts to fraud. Indeed, innocent misrepresentations may also give reason to claim relief against fraud. A fraudulent misrepresentation is called deceit and consists in leading a man into damage by willfully 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

1964 SC 733

2003 (8) SCC 319

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 f any equitable doctrine including res-judicata.

69. In S.P.Chengalvaraya Naidu Vs. Jagannath12 it was

held that:

"Fraud avoids all judicial acts, ecclesiastical or temporal" observed Chief Justice Edward Coke of England about three centuries ago. It is the settled proposition of law that a judgment or decree obtained by playing fraud on the court is a nullity and non est in the eyes of law. Such a judgment/decree by the first court or by the highest court has to be treated as a nullity by every court, whether superior or inferior. It can be challenged in any court even in collateral proceedings."

AIR 1994 SC 0 853

70. The said principle was reiterated by the Hon'ble

Supreme Court in Vijay Shekhar and another Vs. Union of

India and others13.

71. The above discussion would reveal that the official

respondents have obtained Order dated 09-09-1997 in

W.P.No.9485 of 1995 by suppressing the facts and playing fraud

on the Court. They have conducted the auction in utter

violation of the procedure laid down under Section 36 of

Revenue Recovery Act, 1864, and also there is fraud and fraud

vitiates everything at every stage. Therefore, the official

respondents cannot claim that the Writ Petition No.150 of 2001

is barred by limitation and the Order in W.P.No.9485 of 1995

dated 09-09-1997, operates as Resjudicata to the proceedings in

W.P.No.150 of 2001.

72. In view of the above discussion and findings, the

assignment lands in the year 1979 in favour of the respondent

(2004) 5 Scale 118

No.5 who in turn sold the land admeasuring Ac.05-03 gts., in

favour of the respondent No.6 i.e., the Gandhi Institute of

Technology and Management (GITAM) in W.A.No.711 of 2008

under Registered Sale Deed bearing No.812 of 2008 dated 05-12-

2008, are illegal and the same are set aside.

73. In the present case, the legal maxim "sublato

fundamento cadit opus" is applicable, meaning thereby, in case a

foundation is removed, the superstructure falls. The said

principle was also held by the Hon'ble Supreme Court of India

held in Chairman-cum-Managing Director, Coal India

Limited and others Vs., Ananta Saha and others14. The said

principle applies in the present case.

74. As discussed supra, the very auction conducted by

the official respondents is illegal and in violation of procedure

laid down under Revenue Recovery Act, 1864, the Sale

Certificate issued by the District Collector in Proceedings

2011 (5) SCC 142

No.17346/58/D5 dated 13-07-1965, subsequent assignment

made by the Government in favour of the respondent No.5 in

respect of land admeasuring Ac.04-03 gts., in Sy.No.124 and

Ac.05-03 gts., in Sy.No.128 and subsequently the Sale by

respondent No.5 in favour of the respondent No.6 in

W.A.No.711 of 2008 vide Registered Sale Deed bearing

Doc.No.812 of 2008 dated 15-02-2008 are set aside.

75. Accordingly, the Writ Appeal No.711 of 2008 is

allowed.

76. The respondents are directed to restore the

agricultural land admeasuring Ac.09-06 gts., in Sy.No.117 and

121 (old) and 124, 128/2 (new) along with house property

bearing Door.No.1-42, in Sy.No.117 and 121 (New Survey

Nos.124 and 128/2) of Burugupally Village, Mominpet Mandal,

Rangareddy District, along with land admeasuring Ac.2-19 gts.,

in Sy.No.128 to the Writ Petitioners herein.

77. Accordingly, the Writ Appeal No.911 of 2008 is

dismissed.

As a sequel, the Miscellaneous Petitions, pending if any,

shall stand closed.

__________________________________________ SATISH CHANDRA SHARMA, HCJ

_________________ K. LAKSHMAN, J Date: 26-05-2022 KHRM

THE HON'BLE THE CHIEF JUSTICE SATISH CHANDRA SHARMA

&

THE HONOURABLE SRI JUSTICE K. LAKSHMAN

WRIT APPEAL No.711 OF 2008 & WRIT APPEAL No.911 OF 2008

26-02-2022 KHRM