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State Of A.P., Revenue Dept., ... vs P.

Bharathi And Others on 5 March, 1998

Andhra High Court Andhra High Court State Of A.P., Revenue Dept., ... vs P. Bharathi And Others on 5 March, 1998 Equivalent citations: 1999 (2) ALD 529, 1999 (2) ALT 210 Author: P V Reddi Bench: P V Reddi, B Nazki ORDER P. Venkatarama Reddi, J. 1. The State Government, Revenue and Police authorities who were respondents in Writ Petition No.11 173 of 1997 are the appellants herein. The said writ petition was filed by respondents (5 in number) questioning the proceedings dated 17-5-1997 issued by the 4th respondent and seeking a direction restraining the respondents in the writ petition from interfering with their possession and enjoyment over an extent of Ac.1.20 cents in S.No.479/1 of Tirupati Urban Village and Mandai. They have also sought for a declaration that the action of the respondents in the writ petition in demolishing the compound wall is illegal and claimed damages. The impugned proceedings issued by the District Revenue Officer under the orders of the District Collector read as follows : "In the circumstances reported by the Mandai Revenue Officer, Tirupati (Urban) in reference read above, permission is hereby accorded to the Mandai Revenue Officer, Tirupati (Urban) for handing over the land in S. No.479/1 of Tirupati village to the Police Department to safeguard the Government land". 2. The said order was passed on the premise that it is a Government land. The Government wanted to allot the same to the Police Department for construction of a building. 3. The case of the writ petitioners is that the petitioners 1 and 2 along with three others purchased an extent of Ac. 1.20 cents in the said S. No. from the assignee of the land by name A. V. Balakrishna Reddy who is an ex-serviceman. According to the writ petitioners, the assignment was made and patta granted to Balakrishna Reddy on 9-9-1978 and thereafter he was paying the land revenue and even Pattadar Passbook was issued to him. It is their further case that by virtue of G.O. Ms. No.1117, Revenue (Assignment-1) dated 12-11-1993, the ex-servicemen were conferred with alienable rights over the assigned lands and therefore, Mr. Balakrishna Reddy became the absolute owner. Thereafter, writ petitioners 1 and 2 and others purchased the land from Balakrishna Ready. When the sale-deeds were presented for registration, the Sub-Registrar refused to register the same on the ground that the assigned lands cannot be alienated to third parties. At that stage, WP No. 19372/94 was filed by Balakrishna Reddy. This Court by its judgment dated 21-12-1994 held that under the terms of G.O. 1117 dated 11-l1-1993, the assignee was entitled to sell the land after a period of 10 years and therefore, there is no bar for registration. The writ petition was disposed of with a direction to receive the documents and register the same in accordance with the provisions of the Registration Act. There was another round of litigation when writ petitioners 1 and 2 along with three other purchasers wanted to sell the land to writ petitioners 3 to 5. The Registration authorities again raised the same objection and refused to register the document. WP No.5311 of 1996 was filed and the same was allowed by this Court on 13-1-1996. The learned Judge observed that there was no reason why the Sub-Registrar should not register the documents inasmuch as the Government permitted the ex-servicemen to sell the assigned lands. Thereafter, proceedings were initiated by Mandal Executive Magistrate under Section 145, Cr.PC on 9-3-1997 on account of the disputes between the vendees from the original assignee and their henchmen. On the ground that there was breach of peace and that several individuals were trying to occupy this Government land, Section 145 proceedings were initiated. However, the said proceedings were cancelled on 12-5-1997. The writ petitioners averred in paragraph 7 of the affidavit that they constructed some small sheds and a compound wall and also dug a borewell and while so, respondents 5 to 9 came to the site and displayed a board that the land belonged to the Police Department. A few days later, the impugned proceedings extracted above were issued by the District Revenue Officer, Chittoor handing over the land to the Police Department. The learned single Judge declared the proceedings as
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State Of A.P., Revenue Dept., ... vs P. Bharathi And Others on 5 March, 1998

being without authority of law and quashed the same and directed the appellants herein not to interfere with the possession of the writ petitioners. Hence, the present appeal. 4. The stand taken by the Revenue authorities in the counter affidavit filed is that the land in question is a Government 'poramboke' (waste land) and it is noted as 'Chakalivani kunta' in the Revenue records. The alleged DKT patta No.621/ 4/1388 dated 9-9-1978 referred to by the writ petitioners is a forged document and that the ex-servicemen Balakrishna Reddy, in order to take advantage of the conditions of G.O. Ms. No.1117, dated 11-11-1993, fabricated the patta documents and managed to place the same in the records of the MRO, Chandragiri. It is further stated that the Tahsildar Chandragiri granted lease of Ac. 1.50 cents of land in S.No.479/1 in favour of G. Gopal Naidu on 15-12-1978. It is pointed out that condition No.2 stipulated in the D. Form patta said to have been issued to him refers to G.O. Ms. No.1142, (Revenue) dated 19-6-1981 whereas the patta was allegedly issued much earlier. It is therefore submitted that the so-called assignment patta is a fabricated document. It is further stated that when WP No. 19372 of 1994 was pending, a notice was issued to Balakrishna Reddy on 7-5-1995 to produce the original DKT patta if possessed by him. Though he received the notice on 7-3-1995, he did not choose to produce the patta document for verification. Thereafter, he withdrew the writ petition filed by him i.e., WPNo.9189/1994 on 26-4-1995. The said writ petition was filed questioning the action of the Revenue authorities in unauthorisedly interfering with his possession and enjoyment of the land in S.No.479/1. It is stated in the additional counter affidavit that at the time of filing of counter in WP No. 1173 of 1997, the deponent - MRO, Chandragiri examined the DKT patta obtained from the erstwhile Taluk Office, Chandragiri and noticed that the application put in by Balakrishna Reddy does not bear any date and Form Al notice calling for the objections was not available on the file and there was no knowing when the notice was published. As the classification of the land in question as 'kunta poramboke' has not been changed, there was no question of assigning the land. Moreover, as already stated, the conditions of assignment were governed by G.O. Ms. No.1142, Revenue dated 18-6-1954 and no reference could have been made in the patta granted in the year 1978 to the G.O. of 1981. For these reasons, it is submitted that the D Form patta on which the writ petitioners place reliance is not a genuine document. 5. The learned single Judge allowed the writ petition mainly on the ground that the Revenue authorities who are parties to the earlier writ petitions filed by Balakrishna Reddy and his vendees could have taken a stand that the patta sought to be relied on by them was a forged document and in the light of the acceptance of the right of the original assignee - A.V.E. Reddy, it is not open to the respondents in the writ petition to deny the genuineness of the patta document at this point of time. According to the learned Judge, the principle of constructive res judicata came in the way of the respondents (appellants herein) from taking the stand that patta was a fabricated one and no rights accrued therefrom. 6. We have perused the original patta produced by the learned Counsel for the respondents writ petitioners as well as the file containing the patta purportedly granted in favour of Sri A. V.B. Reddy produced by the learned Government Pleader. The D Form patta contained in File No.R. Dis. No.2326/78 of the Taluk Office, Chandragiri was signed and issued on 12-10-1978. In Form A Memorandum, it is noted that the date of receipt of the said Memorandum from the village officers was i 0-9-1978 and the date of grant by competent authority was 12-10-1978. The D From palta in the file bears the signature of the applicant Sri A.V. Balakrishna Reddy with the abbreviation "A. V.B. Reddy' (which is also the signature on the un-dated application in the file) in token of having received the patta. If that is taken into account, the version of the writ petitioners that the patta was granted on 9-9-1978, cannot be correct. In that document, condition No.20 refers to G.O. Ms. No.1142, Revenue dated 19-6-1981. On the face of it, reference to the date G.O. dated 19-6-1981 in the patta granted on 12-10-1978 cannot be there. It is either patently wrong or false. It is brought to our notice that no such G.O. pertaining to the subject of assignment exists. 7. Coming to D Form patta produced by the writ petitioners' Counsel, it bears the same number i.e., DKT No.621/4/1388. The said document contains 20 conditions whereas the patta document in the original file contains 23 conditions. In condition No.20, reference is made to G.O. Ms. No.1142, Revenue dated 18-6-1954 (not 19-6-1981). The contents of some of the clauses/conditions in the two documents vary here and there.
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State Of A.P., Revenue Dept., ... vs P. Bharathi And Others on 5 March, 1998

One more point is to be noticed. Three dates are found in the patta produced by the writ petitioners. One is 9-9-1978, probably bearing the signature of the Clerk. Beneath it, the signature of the Tahsildar who is the granting authority with the date 12-9-1978 is found. However beneath the seal, the date 12-10-1978 is found. It may be recalled that in the file, it is noted that Ex.A1 memorandum was received from the village officers on 10-9-1978. In the face of all these facts, whether the patta that is sought to be relied upon by the writ petitioners/respondents is a genuine document is one question. The second question is whether the D Form patta contained in the Taluk Office file bearing dated 12-10-1978 (purportedly received by Sri AVB Reddy making reference to the G.O. of 1981 is a genuine document or it was inserted into the files as alleged in the additional counter. But, what clearly emerges from the above discussion is that the patta which is now produced before us by the writ petitioners' Counsel is not the same as that purportedly received by Sri A.V.B. Reddy on 12-10-1978. Only a full-fledged enquiry would reveal the true state of affairs. However, suffice it to observe for the purpose of this appeal that we are not in a position to accept the patta document that is being relied upon by the writ petitioners on its face value and we are not in a position to act upon it with the doubtful features confronting us. At the same time, we would like to make it clear that we shall not be understood to have expressed a final view on the controversy. 8, The learned single Judge was not prepared to go into the question of genuineness of the patta as according to the learned Judge, the principle of constructive res judicata bars any such enquiry. With great respect, we are unable to accept this part of the reasoning of the learned Judge. First of all, the issue that was involved in the previous writ petitions was whether the Registering authority can refuse the registration. The scope of the present writ petition is different, though it may be that the point to be considered overlaps to some extent. Moreover, in the earlier rounds of litigation, this Court proceeded on the basis that the patta granted to Sri A. V.B. Reddy was a genuine one. At this stage, the respondents could not detect the alleged fraud. It is borne out from the additional affidavit filed by the MRO in the writ appeal that the fraud came to light when the DKT file was perused at the time of filing the counter affidavit in the present writ proceedings. It is true that the concerned Revenue Officials could have been more vigilant even at that point of time. But, that does not mean that the Court cannot take note of the fraud if any merely because at an earlier stage, the plea was not put forward for want of requisite information or lack of vigilance. It is axiomatic that fraud if proved vitiates all the proceedings and the determination earlier made without noticing the element of fraud that came to light subsequently has no legal sanctity. The principle of res judicata or estoppel cannot be invoked to get over the plea of fraud more especially when the commission of fraud was not known to the respondents at the time of disposal of the writ petition. In matters of this nature, the Court cannot prescribe a reasonable standard of time within which the plea of fraud has to be raised. It depends on the facts and circumstances of a particular case. We are therefore of the view that the observations of the learned single Judge that on the principle of constructive rex judicata, the appellants are barred from taking the plea of fraud, cannot be sustained. In our view, an enquiry into the question of genuineness of the patta is still open and such enquiry ought to be held to unravel the real facts before either party proceeds further in the matter. 9. However, the controversy does not end here. The question that remains is whether handing over the disputed parcel of land to the Police Department in order to eventually allot the same to that department is valid in law. The fact that there has been dispute over an extent of Ac. 1.20 cents which the respondent-writ petitioners are claiming by virtue of their purchase from A.B.V. Reddy, cannot be denied. The writ petitioners claimed to have constructed some small sheds and a compound wall by the date of impugned order passed on 17-5-1997. The factum of the existence of some sheds and a compound wall is not denied in the counter. We have called for a report from the revenue official deputed by the District Collector as regards the physical features of the land. It is seen that a shed of 12 x 20 ft. is in the sub division shown as No.2 in the plan. There are four buildings in subdivision No.4 including a two storeyed building. They are either constructed or in the process of construction. However, it is reported that the construction of building in sub-division No.4 and the single shed in sub-division No.3 was taken "just ten months before" and to that effect, a statement from the neighbour was recorded. As the existence of buildings is not mentioned in the affidavit filed in support of the writ petition, it is quite possible that the writ petitioners or their transferees would have constructed them after the present writ petition was filed. Still the fact remains that the existence of compound wall and sheds has not
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State Of A.P., Revenue Dept., ... vs P. Bharathi And Others on 5 March, 1998

been denied in the counter. In these circumstances, it is difficult to believe that the Government (Revenue Department) was in exclusive possession of the land prior to 17-5-1977 when the impugned order was passed. There is every possibility of the writ petitioners being in effective possession of atleast a part of the disputed land pursuant to the ostensible title they derived on account of the registration of document in their favour as a sequel to the orders of the High Court. In these circumstances, we are of the view that the District Collector or the MRO ought not to have without an enquiry and without following the principles of natural justice come to an unilateral decision that the land in question continues to be Government land and that the so-called assignment was fictitious. The question whether the patta/assignment under which A. V.B. Reddy claimed absolute rights was a genuine one is a matter for enquiry, as we already observed. The writ petitioners ought to have been put on notice of the proposed action and appropriate decision could have been taken only after considering the question of genuineness of the patta in the light of the representations made by the affected persons and the material on record. This course of action having not been adopted, the impugned order is not only violative of the principles of natural justice, but also amounts to deprivation of possessory rights of the petitioners without authority of law. Even now, it is open to the District Collector under whose directions the impugned order was issued, to give notice to the respondent - writ petitioners setting out the grounds on which the patta that is being relied upon by them is liable to be ignored and decide the matter afresh after taking into account the written or oral representations of the respondents. If the patta is found to be not genuine on such enquiry, appropriate steps can be taken to evict the writ petitioners or their transferees from the vacant land including sub-division No.3. As regards the buildings constructed with the permission from the Municipality, the question of collecting compensation from the owners of the buildings in case an adverse finding is reached by the Collector, may be considered. We further direct that there shall be no more constructions over the disputed land by any of the parties or their agents or transferees. The vacant land existing as on today can however be protected by the Police and to this extent, necessary steps can be taken. We direct the process of enquiry as indicated above shall be completed within a period of three months from the date of receipt of a copy of this order. 10. As regards the demolition of compound wall, though the allegations are not denied in the counter, the details regarding the portion which was demolished or the cost thereof are not given in the affidavit. It is merely stated that the 9th respondent in the writ petition began to demolish the eastern side of the compound wall. On this vague allegation, we are unable to grant any relief by way of damages. 11. In the result, the order of the learned single Judge passed in the writ petition is set aside and the WP and the WA shall stand disposed of in the light of the directions given and observations made above. We make no order as to costs.

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