9911796707
TMI Blog2022 (8) TMI 1519X X X X Extracts X X X X X X X X Extracts X X X X ..... or, Ranga Reddy District to initiate proceedings for cancellation of supplementary sethwar in respect of lands admeasuring Acs. 26.16 guntas in survey Nos. 4, 5, 8, 9, 10 and 14/9-12 of Khanamet Village, Serilingampally Mandal, Ranga Reddy District (briefly 'the subject land' hereinafter) in terms of Section 166-B(3) of the Andhra Pradesh (Telangana Area) Land Revenue Act, 1317F. 5. Second writ petition i.e., W.P. No. 23913 of 2010 was filed seeking a direction to interdict the action of the revenue authorities in creating a dispute of location and enjoyment and thus unlawfully dispossessing the writ petitioners from part of the subject land; further seeking a direction to the revenue authorities not to interfere with the peaceful possession and enjoyment of the subject land by the writ petitioners. 6. Order dated 09.04.2008 was passed by the Director (Appeals), also referred to as the Commissioner (Appeals), in the office of the Chief Commissioner of Land Administration in proceedings No. T2/1001/2005. The said proceedings were initiated as per request of the District Collector, Ranga Reddy District for according permission under Section 166-B(3) of the Andhra Pradesh (T ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... State of Telangana represented by the Principal Secretary, Revenue was a necessary party, this Court suo motu impleaded State of Telangana as the second appellant in the writ appeal in the place of Commissioner (Appeals). Order dated 21.09.2021 reads as under: When this Appeal is taken up, it is pointed out that the Commissioner (Appeals) could not have been joined as an appellant, since his order was challenged in W.P. No. 9707 of 2009 and the said order had been set aside on 14.02.2017 in the said writ petition. Prima facie, we find force in this contention. Therefore, we hold that the 2nd appellant cannot file this Appeal and the Appeal insofar as he is concerned is not maintainable and he is struck off from the array of appellants. Since the State of Telangana, represented by its Principal Secretary, Revenue, is a necessary party, we suo motu implead the said party as the 2nd appellant in this Appeal. Liberty is given to the State Government and the Additional Advocate General to file fresh affidavit of the competent authority in this matter. Delete from the caption 'for dismissal' and list on 18.10.2021. It is open to the private respondents to take all ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of their vendors. On 25.08.1997, writ petitioners applied for mutation of their names to the Mandal Revenue Officer, Serilingampally Mandal, Ranga Reddy District (referred to hereinafter as 'Mandal Revenue Officer'). Mandal Revenue Officer after obtaining permission from the Joint Collector, Ranga Reddy District (referred to hereinafter as 'Joint Collector') issued pattadar pass books and title deeds to the writ petitioners. On 27.02.2002, District Collector, Ranga Reddy District (referred to hereinafter as 'District Collector') gave permission for mutation and accordingly mutation was effected in the name of the writ petitioners. 14. Writ petitioners wanted to develop the subject land. Therefore, they prepared layout and applied for approval of layout to Hyderabad Urban Development Authority (HUDA) who in turn advised them to obtain 'No Objection Certificate' (NOC) from the Joint Collector. It is in that context, writ petitioners approached Joint Collector for issuance of NOC. Joint Collector vide memo dated 29.04.2004 declined to grant NOC on the ground that there was status quo order granted by this Court in respect of the subject land in C.M.P. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... thaq Hussain and Sri Narsimlu Naik and others from whom the writ petitioners had allegedly purchased the subject land. The patta certificates were found to be not genuine. Accordingly, it was decided to cancel the supplementary sethwar. In this regard, Commissioner (Appeals) was requested on 16.04.2006 to accord permission for initiation of proceedings for cancellation of supplementary sethwar issued in respect of the subject land. It was contended that copies of certificates submitted by the writ petitioners claiming assignment in the category of ex-servicemen was referred to handwriting expert to verify authenticity. As per report of handwriting expert, the patta certificates were not genuine. Director (Appeals) in the course of the proceedings observed that District Collector had created suspicion that fraud was committed by the original assignees during 1992. Reference was made to G.O.Ms. No. 743 dated 30.04.1963 framing guidelines for assigning agricultural lands to armed forces personnel and their dependants. Prior thereto there were no rules to assign Acs. 5.00 of land to ex-servicemen. On due consideration, Director (Appeals) passed the order dated 09.04.2008. 21. Writ Pet ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nts were fraudulently created in connivance with the lower revenue officials. He further submits that learned Single Judge overlooked the fact that the order dated 09.04.2008 was passed under Section 166-B(3) of the Land Revenue Act was a valid and legitimate order which did not suffer from any legal infirmity. Under Section 166-B of the Land Revenue Act, Joint Collector is competent to call for the record from a subordinate authority to satisfy himself that the order or decision passed in proceedings of assignments of lands in favour of the vendors of writ petitioners were proper, legal and valid. Having found that vendors of writ petitioners had manipulated the record and had created fraudulent documents to substantiate their claim of assignment, Joint Collector had sought for permission from the Chief Commissioner to cancel the supplementary sethwar which was rightly granted. Therefore, order dated 09.04.2008 cannot be faulted. Learned Single Judge erred in interfering with such a valid order. 23.1. Reverting back to his initial submission of fraud, learned Additional Advocate General submits that in view of the serious dispute with regard to assignment and genuineness of the p ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... used his influence, whereafter writ petitioners had obtained supplementary sethwar and got their names mutated in revenue records and also obtained pattadar pass books. 23.7. Learned Senior Counsel for the appellants has referred to and relied upon the decision rendered by the Supreme Court in A.V. Papayya Sastry v. Government of Andhra Pradesh (2007) 4 SCC 221, wherein it was held that when fraud was alleged, State was justified in exercising suo motu revisional power under Section 34 of the Urban Land Ceiling Act, 1976 after lapse of ten years. Though no period of limitation is prescribed for exercising revisional jurisdiction under Section 34, in the facts of that case, Supreme Court upheld the exercise of suo motu power of revision after lapse of ten years. 23.8. He further asserts that this is a case which is vitiated by fraudulent acts and therefore, all benefits accruing out of such fraudulent acts are required to be set at naught. Question of limitation would not arise when it is a case of fraud. Delay cannot be a ground to defeat fraud. Fraud vitiates all proceedings, administrative as well as judicial. Reference has been made to a decision of the Supreme Court in S.P. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... and Administration who had thereafter negated the same. Merely creating a suspicion that fraud was played is not enough to dislodge bona fide purchasers from their valuable land. 24.2. Learned Senior Counsel has placed heavy reliance on the decision of the Supreme Court in Joint Collector v. D. Narasinga Rao (supra) (2015) 3 SCC 695 to contend that initiation of suo motu revisional proceedings after lapse of fifteen years is unreasonable. Learned Single Judge has recorded a finding of fact on perusal of the materials on record that no fraud was played by the predecessors-in-interest of the vendors of the writ petitioners. As a matter of fact, even before such findings were recorded by the learned Single Judge, Commissioner of Land Administration had recorded categorical findings of fact based on appreciation of evidence. Such concurrent findings of fact may not be disturbed in writ appeal. 24.3. That apart, learned Senior Counsel has referred to and relied upon the order of this Court dated 21.09.2021 dismissing writ appeal No. 52 of 2018 filed by the Hyderabad Metropolitan Development Authority assailing common judgment and order of learned Single Judge dated 14.02.2017. He subm ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nd title deeds to the writ petitioners. On 27.02.2002 District Collector gave permission for mutation. Accordingly, names of the writ petitioners were mutated in the revenue records in respect of the subject lands. 28. Writ petitioners with an intention to develop the subject land had applied for approval of layout to HUDA, who in turn advised them to obtain NOC from Joint Collector. Joint Collector declined to grant NOC on the ground that litigation was pending with status quo order. Though this was clarified by the writ petitioners it did not have much effect. On the contrary, District Collector on 18.01.2005 wrote to the Chief Commissioner of Land Administration seeking permission for cancellation of supplementary sethwar in respect of the subject land. On 02.02.2006, Chief Commissioner of Land Administration declined to accord permission under Section 166-B of the Land Revenue Act with the observation that if the revisional authority wanted to exercise suo motu power of revision, fresh additional grounds be submitted within a week for according permission, failing which it would be construed that there was no case for revision and order would be passed accordingly. In spite of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... on to initiate action for cancellation of supplementary sethwar was not considered. However, it was observed that if the matter wanted review, it could be taken up suo motu by the revisional authority above the level of District Collector i.e., Commissioner (Appeals) exercising delegated powers of Chief Commissioner of Land Administration under the statute. Therefore, Collector was informed that if he was of the opinion that the case warrants suo motu revision at appeal level, he should send a detailed report justifying such a revision duly explaining such additional grounds other than the grounds already mentioned with supporting materials within a week. It was clarified that if no reply was received within the stipulated period (one week), it would be presumed that there was no case for revision and order(s) would be passed accordingly. Order/letter dated 02.02.2006 being relevant is extracted in its entirety: I invite attention to the reference 1st cited. I have been directed to inform you that the proposal for according permission to the Joint collector under Section 166-B(3) of the A.P. (T.A.) Land Revenue Act, 1317 Fasli for cancellation of supplementary sethwar in respect ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rmission for cancellation of supplementary sethwar. Joint Collector in his letter dated 17.04.2006 which was beyond one week stated that the assignments appeared to be highly dubious and submitted the following five grounds as additional grounds to justify according sanction to cancel supplementary sethwar. These grounds were as follows: (1) Original assignment file could not be traced out; (2) Mandal Revenue Officer had recommended issuance of supplementary sethwar to the writ petitioners on the basis of photocopies of assignment certificates. (3) Photocopies of certificates of the writ petitioners dated 08.04.1961 were not implemented in the Faisal Patti along with Nukala Mallaiah to whom assignment was made in the same file and on the same date. (4) The assignments did not come under the category of ex-servicemen as they belonged to Hyderabad State Force. (5) Certificates issued during the year 1961 were handwritten whereas certificates of the writ petitioners were typed out indicating use of sophisticated typewriter which might not have existed in 1961. 32. It is on that basis that proceedings No. T2/1001/2005 were initiated. Certificates were examined by forensic ex ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ategory of Ex-Servicemen as they belongs to 'Hyderabad State Force'. Perusal of the Memo No. 8136/89-F2, dated 04.11.1989 of the Directorate of Sainik Welfare, Hyderabad reveals that the ISF units of Hyderabad State Forces personnel are to be considered as Ex-Servicemen. 32.3. Regarding the contention of the revenue authorities as to limitation vis-à-vis. fraud, Director (Appeals) concluded as follows: The fact that by the time, the respondents were purchasing the property the revenue records were mutated showing the ostensible owner as vendors of the respondents, the consent of the real owner (Government) appears to have been given by virtue of the letter dated 05.04.1995 which till date has not been withdrawn or commented upon, there is no dispute about the consideration paid by the respondents and that they acted in good faith. Since they have specifically made enquiry in the revenue office and seen the registered documents which are basic requirements for a prospective purchaser, who enquired into, hence the character of the respondent that they are the bona fide purchaser for value cannot be denied. However, since the Joint Collector is able to create reasons ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... erviceman G.O., was issued during 1963. The points 1 to 4 are not proved logically by the District Collector, as was also discussed at para 27 but he created suspicion that fraud was played in this case by the original assignees during 1992. The only point left is the 5th point. The G.O.Ms. No. 743 was issued on 30.04.1963 wherein the Government issued guidelines for assigning agricultural lands to the Armed Forces and their dependents. Prior to this, there are no rules to assign Ac. 5.00 to the Ex-serviceman. But perusal of the Xerox copy of the patta shows the assignees name along with his I.D. number and a copy of the patta was also marked to the 'Major Officer Commanding'. The Xerox copies of the pattas establishes that the Assignment was made to the Ex-serviceman only, which establishes fraud on ground that the G.O., to allot land to the Ex-serviceman is not subsisting as on the date of assignment. It is however, argued by the respondents counsel that assignment for any category need not be spell out by CO., as it is sovereign power of the State. He has also referred to the Board Standing Orders showing that the assignment were being made even earlier to 1961 to the ex ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... cting the rights of the ryot shall be modified or annulled unless the parties concerned are summoned and heard. (2) Every Revenue Officer lower in rank to a Collector or Settlement Commissioner may call for the records of a case or proceedings for a subordinate department and satisfy himself that the order or decision passed or the proceedings taken is regular, legal and proper and if, in his opinion, any order or decision or, proceedings should be modified or annulled, he shall put up the file of the case and with his opinion to the Collector or Settlement Commissioner as the case may be. Thereupon the Collector or Settlement Commissioner may pass suitable order under the provisions of sub-section (1). (3) The original order or decision or an authentic copy of the original order or decision sought to be revised shall be filed along with every application for revision. 35. From a perusal of the above, it is seen that Section 166-B of the Land Revenue Act deals with the power of revision. Sub-section (1) says that the Government or any revenue officer not below the rank of Collector or Settlement Commissioner of Land Records may call for the record of a case or proceedings from ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Revenue Act that too after fifteen years of issuance of supplementary sethwar and after almost five decades of assignment of the subject land. 39. There is no dispute to the proposition that fraud vitiates all proceedings, judicial as well as administrative, and when it is a case of fraud, limitation cannot be put up as defence. Nonetheless, Supreme Court has time and again sounded a note of caution that mere allegation of fraud or suspicion of fraud is not enough. Fraud must not only be pleaded but must also be demonstrated and established. Mere raising of suspicion would not be adequate to draw any conclusion of fraud. As Director (Appeals) has pointed out in his letter dated 09.04.2008 that District Collector and Joint Collector have only created suspicion to justify their request for initiating proceedings for cancellation of supplementary sethwar. This is not adequate, more so when several decades have gone by since the initial assignments which have not been cancelled; subsequent sale transactions of the vendors have also not been cancelled; it is the supplementary sethwar of the writ petitioners which has been targeted. 40. In the previous order dated 02.02.2006, the Chie ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... have established the other conditions. The lower appellate Court appears, however, to have proceeded on the assumption that the "consent express or implied" of the real owner was necessary not only to the transferor holding the property as ostensible owner but also to the transfer sought to be protected under the section. Though, as a matter of grammatical construction, the collocation of the words makes such interpretation possible, it is now generally accepted as the better view that those words have reference only to the transferor holding the property as ostensible owner. This is because, as pointed Out in Fazl Hussain v. Mohamed Khazim (56 ALL. 582), the consent of the true owner to the transfer would by itself estop him under S. 115 of the Evidence Act, and the other requirement of S. 41 as to the transferee taking reasonable care to ascertain that the transferor had power to make the transfer will be rendered nugatory. See also Satyanarayanamurti v. Pydayya (AIR 1943 Madras 459) and Fakruddin Sahib v. Ramayya Setti (AIR 1944 Madras 299). The learned Judge's error is, however of no consequence, as he has found that it was not satisfactorily proved that Palaniappa took an ..... X X X X Extracts X X X X X X X X Extracts X X X X
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