Writ petition seeking quashing of orders confirming land assignment to the petitioner. The court held that the original cancellation of the respondent's father's patta without notice was arbitrary, rendering the subsequent assignment to the petitioner invalid. Petition dismissed.
This page shows the compact analysis of this judgement. The full analysis — procedural history, issue-by-issue holdings with ratio and obiter, advocates, and paragraph-level evidence for every claim — is being added to the record in batches and will appear here when this judgement has been through it.
IN THE HIGH COURT OF JUDICATURE, ANDHRA PRADESH AT HYDERABAD
(Special Original Jurisdiction)
THURSDAY, THE SIXTEENTH DAY OF JULY TWO THOUSAND AND NINE
PRESENT
THE HON'BLE SRI JUSTICE GODA RAGHURAM WRIT PETITION NO : 14115 of 2007
Between:
Giddaluru Ramanaiah S/o Venkata Subbaiah r/o Kattuvapalli Vilalge, Manubolu Mandal, Nellore District.
..... PETITIONER
AND
1 The Government of Andhra Pradesh, Revenue Department, Secretarit, Hyderabad, rep by Special Chief Secretary to Government,
2 The Commissioner of Appeals, Office of the Chief Commissione of Land Administration, Andhra Pradesh, Hyderabad.
3 The Joint Collector, Nellore.
4 The Sub-Collector (Revenue Divisional Officer0 Guduru, Nellore district
5 The Tahsildar (Mnadal Revenue Officer), Manubolu, Nellore District. 6 Smt. G.R.Sugandamma D/o Late Gandam Raju
.....RESPONDENT(S)
Petition under Article 226 of the constitution of India praying that in the circumstances stated in the Affidavit filed herein the High Court will be pleased to issue a Writ of certiorari or anyother appropriate Writ or direction calling for the records relating to the order ofthe 1st respondent in proceedings No. 24567/ASSN.II/(1)/2005 dated 09-02-2007 in Confirmingthe orders of the Respondnets 2 to 4 passed in proceedings BCW.3/687/2001 dated 04-03-2005 and the order of the 3rd respondent Passed in D.Dis (E2) 3592)/2000 dated 22-10-2001 and the order or the 4th Respondent passed in D. Dis. No. 5902/88 dated 06-03-2000 and quashthe same and pass such other order or orders as this Hon'ble Court may deem fit and proper inthe circumstnaces of the case.
Counsel for the Petitioner:MR.O.MANOHER REDDY
Counsel for the Respondent No.: GP FOR REVENUE
The Court made the following:
THE HON’BLE SRI JUSTICE GODA RAGHURAM
W.P.No. 14115 of 2007
16-07-2009
Oral Order:
Heard the learned counsel for the petitioner Sri O. Manoher Reddy; the learned Government Pleader for Revenue for respondent Nos. 1 to 5 and Sri C. Raghu, learned counsel for the 6th respondent.
The order of the 1st respondent dated 09-02-2007 in proceedings bearing No. 24567.Assn.II (1)/05, is assailed. The 1st respondent dismissed the revision preferred by the petitioner and confirmed the order of the 2nd respondent and the Assistant Collector, Gudur, dated 06-03-2000 being the primary proceedings as confirmed by the Joint Collector, Nellore in appeal by the proceedings dated 22-10-2001.
The 6th respondent submitted a representation to the 4th respondent on 15-06-1987 asserting that her father Gandham Raju, an ex-serviceman was assigned Ac.02-47 cents of land in Katvapalli village, Manubolu Mandal by proceedings dated 23-01-1968 of the Tahasildar, Nellore. Gandham Raju reclaimed the barren land, developed it and brought it to cultivation. However, even without a notice or opportunity to Gandham Raju, the Tahasildar, Nellore appears by orders passed in July, 1978, cancelled the assignment and in November, 1980, the Tahasildar, Gudur re-classified the land as ‘A.W.Dry.’ The 6th respondent
sought restoration of land to herself in the circumstances by the application made to the 4th respondent.
Meanwhile, it would appear, the land was assigned to the petitioner in 1987 by the 5th respondent by proceedings dated
03-01-1987. The petitioner is the son of the village servant of Kattuvapalli village. By an order dated 15-04-1988 the 4th respondent cancelled the earlier order of the Tahasildar, Nellore (cancelling the patta granted to Gandham Raju) and ordered restoration of the land to the legal heirs of Gandham Raju viz., the 6th respondent herein. As a consequence, the subsequent assignment in 1987 of this land in favour of the petitioner stood obliterated. The land was restored and reassigned to the 6th respondent in the proceedings dated 19-04-1988.
Aggrieved by the order dated 15-04-1988 of the 4th respondent, the petitioner herein filed W.P.No. 7589 of 1988. By the judgment dated 20-06-1996 this writ petition was disposed of setting aside the order dated 15-04-1988 of the 4th respondent on the ground that the order was passed without notice and opportunity to the petitioner and directing the 4th respondent to decide the matter de novo after issuing notice to the petitioner and the 6th respondent.
Thereupon the petitioner and the 6th respondent were issued notices. The 4th respondent by the order dated 0602-2000 came to the conclusion that the earlier orders dated 13-07-1978 of the Tahasildar, Nellore invalidating the ‘D’ form patta granted in favour of Gandham Raju; the order of the Tahasildar, Gudur dated 27-11-1980 directing implementation of the order dated 1307-1978 and directing reclassification of the land as A.W.D.
was invalid. The 4th respondent also held in this order that the subsequent assignment in 1987 in favour of the petitioner stands cancelled. The 5th respondent was directed to handover physical possession of the land to the 6th respondent, the legal heir of the deceased original assignee – Gandham Raju – and to substitute the name in the patta from Gandham Raju to the 6th respondent.
Aggrieved by the 4th respondent’s order dated 06-032000 the petitioner preferred an appeal to the 3rd respondent. By the order dated 22-10-2001 the 3rd respondent dismissed the appeal. The appellate authority recorded that the cancellation of the assignment in favour of Gandham Raju was without notice; that the petitioner, a son of the village servant, had trespassed into the land in question and later obtained assignment in his favour and that a case for illegal trespass was also lodged against the petitioner in the Police Station, Manubolu in crime No. 16 of 1996 under Sections 447 and 428 IPC; and that the petitioner had occupied the land in question unauthorizedly with the support of his father, a village servant and thus managed to illegally procure a ‘D’ form patta. For these reasons the 3rd respondent saw no justification for interference with the primary order of the 4th respondent and rejected the appeal.
Undeterred the petitioner preferred a revision to the 2nd respondent. By the order dated 04-03-2005 the 2nd respondent dismissed the revision concurring with the findings of the respondent Nos. 4 and 3, that the land was resumed from the father of the 6th respondent without a show cause notice and thereafter assigned to the petitioner, the son of the village servant of the same village. Since this
was an irregular action, the 2nd respondent observed that the primary and appellate orders warranted no revisional interference and dismissed the revision.
Unrelenting the petitioner preferred a further revision to the 1st respondent purportedly under paragraph Nos. 15 and 18 of the Board Standing Orders. The 1st respondent elaborately considered afresh the material on record and rejected the revision petition. Hence the writ petition.
Sri O. Manohar Reddy, the learned counsel for the petitioner would contend that the initial application of the 6th respondent before the 4th respondent in 1987 for a review of the order of resumption of land passed in the year 1978 is improper and is barred by laches. According to the learned counsel for the petitioner, B.S.O. 15 enjoins a sixty (60) days period for preferring an appeal if aggrieved by any order of the primary authority. This contention is stated to be rejected. It requires to be noticed that the B.S.O. are a compilation of administrative orders, practices and procedures and per se do not constitute statutory instruments. The process of primary, appellate or revisional representations while adopting the terminology from judicial or quasi judicial conferment of power, do not constitute judicial power of the State which is a function of the legislative process. In truth and effect therefore the process of representations, appeals or revisions filed, by whatever name called, are administrative processes and cannot be construed as in exercise of the judicial power of the State. However, since even administrative actions having adverse civil consequences on a citizen require to be in conformity with the audi alteram partem principle as an emanation of the doctrine of ‘fairness’ in governance, administrative authorities are require to exercise
administrative powers in conformity with the principles of ‘fairness’ by issuing a notice where any interest is adversely impacted. Prescription of limitation periods is a fundamental policy choice that must be legislatively provided for since it deprives the effectuation of a right by the removal of a remedy. Therefore a rigid interpretation of the periods prescribed in B.S.O. as though it would were a Statute of limitations is impermissible. However even for claiming an administrative review delay and laches principles would apply. The substantive complaint of the 6th respondent is however that the cancellation of the patta in favour of Gandham Raju was without notice or opportunity to Gandham Raju or to the 6th respondent, his legal heir. In the circumstances in the absence of any material on record to show that the 6th respondent was aware of the proceedings but failed to take recourse to the revisional remedy within a reasonable time from the date of knowledge, it would be unjust to deny the 6th respondent a remedy against the wholly irregular and arbitrary exercise of power by the State i.e., against the cancellation of Gandham Raju’s patta without following the due process of law.
On the aforesaid analysis, the contention on behalf of the petitioner that the 6th respondent’s application to the primary authority, the 4th respondent is barred by limitation or by laches and delay is a contention that does not commend acceptance by this Court. It is accordingly rejected.
The primary, appellate, revisional and second revisional authorities, the respondent Nos. 4 to 1 have concurrently found in favour of the 6th respondent viz., that the cancellation of the patta of Gandham Raju by an order of the Tahasildar, Nellore in 1978 was without notice or opportunity either to Gandham Raju or the 6th respondent.
This concurrent finding of fact is not seriously contested on behalf of the petitioner. If that be so, the order of cancellation of the patta in favour of Gandham Raju, an ex-serviceman, who had developed and brought the land to cultivation and for sixty (60) years would be a perverse and arbitrary exercise of executive power. As the cancellation of the assignment in favour of Gandham Raju is a nullity, there was no land of an extent of Ac.02-74 cents available for assignment in favour of the petitioner. Since the assignment in favour of the petitioner is contingent on the availability of land and no land was lawfully available, the assignment in favour of the petitioner is rightly cancelled by the 4th respondent and such cancellation was upheld in appeal, revision and further revision.
This Court finds no illegality in the exercise of jurisdiction or perversity in the exercise of discretion by the primary, appellate and revisional administrative authorities warranting interference by this Court under Article 226 of the Constitution of India. Substantive justice has been done to the 6th respondent and in the absence of any grave procedural or substantive error, no interference is called for.
The petitioner states that the 6th respondent is now a well to do lady and is thus not entitled to assignment. This contention is a non sequitor. The 6th respondent is not claiming relief on the basis of her entitlement for assignment. She is claiming the land as the legal heir of her late husband-Gandham Raju who was indisputably an exserviceman and therefore entitled to assignment of land which in fact was assigned to him in 1968. It is also the conceded legal position that assignment of land in favour of ex-serviceman assumes a character of wholesome ownership in the hands of the ex-serviceman after ten (10) years from the date of assignment and such assigned
property is not only heritable but is also alienable. It is such valuable right of Gandham Raju that was obliterated by a fundamentally misconceived and arbitrary order to the Tahasildar, Nellore which has been reversed by the primary, appellate and revisional authorities. No case for interference is thus made on behalf of the writ petitioner.
Sri O. Manohar Reddy, the learned counsel for the petitioner would in extremis plead that the petitioner is a landless poor person and is entitled for assignment of land. No observation of this Court is called for on this plea of the petitioner. If the petitioner considers himself eligible and desirous of assignment, he is at liberty to apply to the State or the appropriate authority of the State for assignment of land and if any such application is made, the same would be considered in accordance with the plenitude of executive discretion and in accordance with law.
The writ petition is dismissed with the observations above, but in the circumstances without costs.
____________________ GODA RAGHURAM, J Dated: 16-07-2009 Pvks
3 issues framed by the court
Whether the cancellation of patta in favour of an ex-serviceman without notice was arbitrary and required judicial intervention.
Whether the petitioner's subsequent assignment to land stands valid when the original land assignment was a nullity.
Whether the administrative authorities correctly applied the audi alteram partem principle in resuming the land.
Giddaluru Ramanaiah
Government of Andhra Pradesh, Revenue Department
Commissioner of Appeals
Joint Collector, Nellore
Sub-Collector, Guduru
Smt. G.R. Sugandamma
GODA RAGHURAM
As recorded by the court registry
Judgements on the same questions, provisions and authorities, from every court
