Andhra HC (Pre-Telangana)
P. Anasuyamma And Anr. vs The Commissioner Of Land Revenue, Govt. ... on 28 March, 1994
Equivalent citations: 1994(2)ALT329, 1995 A I H C 2082, (1994) 2 ANDH LT 329
Author: B.S. Raikote
Bench: B.S. Raikote
ORDER B.S. Raikote, J.
1. Both these writ petitions are taken together since they involve common questions of fact and law.
2. The petitioner in W.P.No. 18870 of 1987 is an assignee of land to the extent of Ac. 1-07 cents of dry land in S.No. 96/8 of Vengamukkalapalem village, Ongole taluk, Prakasam district, assigned on 15-2-1970, On the same date, the petitioner in W.P.No. 18898 of 1987 was also assigned Ac. 2-50 cents of dry land in S.No. 101/3 of Vengamukkalapalem village, Ongole taluk, Prakasam district. The Collector of Prakasam district issued a show cause notice dated 6-7-1982 to both of them to show cause as to why their assignment should not be cancelled on the ground that the petitioners had misrepresented certain facts and had also suppressed certain materials. To that show cause notice the petitioners have given reply and after considering the reply, it is now submitted that without giving any personal hearing the second respondent passed an order dated 20-3-1984 in respect of both the petitioners cancelling the assignments made in their favour. Being aggrieved by the said order of the second respondent, the petitioners preferred an appeal before the first respondent and the first respondent dismissed the appeal vide his order dated 25-8-1987 confirming the order of the second respondent. It is in these circumstances, the petitioners have invoked jurisdiction of this Court under Article 226 of the Constitution of India.
3. Heard the petitioners' Counsel and the learned Government Pleader for Revenue appearing for the respondents.
4. The learned Counsel for the petitioners submitted mainly that the proceedings were barred by time under paragraph 18 of the Board Standing Order-15. Secondly, he contended that so far as the petitioner in W.P.No. 18870 of 1987 is concerned, the lands held by her husband and the lands assigned to her both together are within the ceiling prescribed under Para-3 (2) (ii) of the Board Standing Order. So far as the petitioner in other writ petition viz., W.P.No. 18898 of 1987 is concerned, he submitted that though her husband had possessed twenty acres of land but by the time the assignment was made she was divorced, there was a partition in the family between her husband and sons, she was living separately, she was not given any properties for maintenance and in those circumstances she applied for assignment and the same was assigned to her. It is further submitted in both the cases there was no either misrepresentation or suppression of facts. Assuming for the sake of arguments, there was mis-representation or suppression of facts the authorities should have initiated the proceedings within three years in terms of Para 18 of the Board Standing Order-15. However, the contention of the learned Government Pleader for Revenue is to the effect that there is violation of the Board Standing Order while making the assignment that due to misrepresentation and suppression of materials on the part of the petitioners and in view of the decision of the Supreme Court reported in State of Maharastra v. Rattanlal, ., the limitation in such cases of suppression or misrepresentation of facts would be three years from the date the authorities discover the same. The proceedings were initiated in the instant case within three years from the date the authorities discovered the misrepresentation or suppression of facts on the part of the petitioners. Therefore, the proceedings are within the time and he contended that the writ petitions have no merits and the same have got to be dismissed. I have given very anxious consideration to the facts of these cases.
5. The learned Counsel on both sides took me through the Board Standing Order-15 under which the assignment and cancellation were made by the authorities. Para-3 (2) (ii) of the Board Standing Order-15, defines "Landless poor person" is one who owns not more than 21 /2 acres of wet or 5 acres of dry land and is also poor. Para-3 (3), further describes the persons eligible for assignment. In that para, only landless and poor persons who directly engage themselves in cultivation, including Harijans, Ex-Toddy Tappers, Backward Communities and Weavers shall be eligible for assignment. Ex-Servicemen, Serving Soldiers (Jawans), Political Sufferers and Co-operative Societies consisting of entirely landless poor persons shall also be eligible for assignment according to the special procedure prescribed in paragraph 11. " 6. Para 3 (5), further prescribes the maximum extent of land which may be assigned to a single individual shall be limited to 21/2 acres wet or 5 acres dry subject to the proviso that in computing the area, lands owned by the assignee shall be taken into account, so that the lands assigned to him together with what is already owned by him does not exceed the total extent of 21/2 acres wet or 5 acres dry land. Variations up to 10 per cent may be allowed wherever necessary.
7. The sub-para further provides, that maximum extent of land to be assigned to each member of the scheduled tribes in the scheduled areas of the State is Ac. 5.00 wet or Ac. 10.00 dry.
8. From these provisions, it is clear that an assignment could be made to Apt individual or person who is landless poor person and who owns not more than 2V2 acres of wet or 5 acres of dry land. Para 4 of the Board Standing Order 15, further provides the form and contents of the application to be made, as follows":
"Form and Contents Applications for assessed land must clearly specify the land desired. They may be written on plain paper and may be presented at any time of the year; but no application can be considered except for land which is actually at the time unoccupied, or has been occupied without proper sanction, or has been formally relinquished whether actually vacated or not............"
From the contents of the application specified by Para-4 of the Board Standing Order-15, it is clear that no particulars are to be furnished except that an individual intends to be assigned a particular land and such application could be even on a plain paper. But from the provisions it is clear that an applicant should not possess the land more than what is prescribed in this Board Standing Order-15.
9. In the case of the petitioner in Writ Petition No. 18870 of 1987, even as per the show cause notice if the lands of her husband clubbed with the lands assigned to the petitioner, the total extent comes to Ac. 4-07 cents dry land and that would be within the ceiling prescribed by the Board Standing Order-15. So far as this petitioner is concerned, prima facie, absolutely there is no violation of any Board Standing Order-15. If there were to be a column to the effect that the applicant was required to show the lands possessed by him or her, suppose either it was written as -nil- or shows lesser land than what actually possessed 'the land, perhaps there would have been a wilful misrepresentation or fraud. In the instant case, the application form itself did not specify any columns and therefore it is very difficult to hold that there was any Suppression or misrepresentation of facts, so far as this petitioner is concerned, having regard to the materials placed before me.
10. However, the petitioner in W.P. No. 18898 of 1987 is concerned, admittedly, her husband possessed the lands to the extent of 20 acres. Prima facie, she was not eligible for the assignment of land if she had disclosed that fact to the authorities as she was not a landless poor person as defined by the Board Standing Order-15. Her contention in the reply to the show cause notice is that she is a divorced woman, there has been a partition in the family and in the said partition no lands were given to her and she has been eking out her livelihood without any assistance from any person including her partitioned son. In those circumstances, she submitted that the assignment was valid and she had not made any misrepresentation or committed fraud.
11. Her further contention is that in Note-2 of Para-3 (2) of the Board Standing Order-15, the rules required that the share of each member of a joint family as also the enjoyment of the income of the joint family by an applicant will be taken into consideration for deciding whether or not he is landless poor person, and according to her there was no joint family on the date of assignment. But as held by the respondents 1 and 2 she has not placed any material either to show that she was divorcee from her husband or there was any partition in the family and in that partition she was not given any share and that being a finding of fact of both the authorities, I take those findings as they stand. Therefore, it is clear from this fact that there is misrepresentation or fraud so far as she is concerned, in the sense she should have disclosed before the authorities that her husband owned 20 acres of land and there was family partition etc., at the time she filed an application for assignment. It is only while giving reply to the show cause notice she has come forward with this theory of partition and divorce and both the authorities have rightly disbelieved the same. Because a person to be eligible for assignment should possess less than 5 acres of dry land or 21 /2 acres of wet land and admittedly her husband possessed the lands more than the prescribed limit under the Board Standing Order, had she disclosed the extent of land possessed by the family perhaps the authorities would not have assigned the land to her. In these circumstances, I hold that there is misrepresentation or suppression of facts so far as this petitioner is concerned. Now the question is whether such assignment on this ground is liable to be cancelled.
12. This now takes me to the last limb of the case as to the period of limitation prescribed for cancellation of such assignment. The learned Counsel on both sides invited my attention to Para 18 of the Board Standing Order-15. Para 18 read as follows:
"(1) The order of the authority making the assignment, if no appeal is presented, or of the appellate authority, if anappeal is presented is final and no second appeal shall be admitted. But if at any time within three years of the original or appellate decision, the Collector is satisfied that there has been a material irregularity in the procedure or that the decision was grossly inequitable or that it exceeded the powers of the officer who passed it or that it was passed under a mistake of fact or owing to fraud or misrepresentation, he may in the case of an order passed by an officer subordinate to him set aside, cancel or in any way modify the decision. The Board of Revenue may set aside, cancel or in any way modify the decision of an officer subordinate to it within three years if it is satisfied that the decision was grossly inequitable; it may also exercise similar powers without any limit of time where there has been a material irregularity in the procedure or where the decision exceeded the powers of the officer who passed it or where it was passed under a mistake of fact or owing to fraud or misrepresentation. All revision petitions in darkhast cases should be stamped with a Court fee liable to the value of two rupees.
(2) The State Government, may, at any time, either suo motu or on application made to them, call for an examine the records relating to any decision or order passed or proceeding taken by any authority or office subordinate to them under the preceding sub-paragraph for the purpose of satisfying themselves as to the legality or propriety of such decision or order or as to the regularity of such proceeding and pass such order in reference thereto as they think fit. The Government may stay the execution of any such decision order or proceeding pending ihe exercise of their powers under this sub-paragraph in respect thereof."
13. With reference to Para 18, the contention of the petitioners was that assuming for the sake of arguments that there is misrepresentation or fraud on the part of the petitioners, the second respondent should nave initiated the proceedings for cancellation of the assignment within three years as provided in this para-18. Since the assignment was made on 15-2-1970 the proceedings for cancellation of the same could not have been initiated vide show cause notice dated 6-7-1982, after 12 years since the period of limitation prescribed is only three years. Therefore, the impugned orders are liable to be set aside. I find considerable force in this contention of the petitioners. Para 18 of the Board Standing Order-15 providing revisional jurisdiction of the authorities, prescribes a period of three years limitation for the Collector, in case the decision of a subordinate officer was grossly inequitable and in case the subordinate officers exceeded their respective powers or where an order has- been passed under a mistake of fact or owing to fraud or misrepresentation. Clause (2) of the said para provides that the State Government may exercise suo motu powers, at any time and revise the said orders of the officers subordinate on the grounds mentioned in Para 18 (1). Though in sub-para (1) of Para 18 it is not stated how the Collector should exercise the powers whether on an application or revision presented to him or suo motu, from the reading of the provision it appears that that is also a suo motu power. But whatever it may be the power conferred in Para 18 (1) shall be exercised only within three years from the date of the order passed, if he finds there has been any misrepresentation or fraud. In the instant case, he has not done so within three years assuming that in case of petitioner in W.P.No. 18898 of 1987 there was misrepresentation or fraud on her part. Therefore, the proceedings initiated by the second respondent are barred by time as per the provisions of Para 18 (1). The Board of Revenue whose powers are now delegated to the Commissioner of Land Revenue has not exercised the revisional jurisdiction and if such powers were to be exercised by the Board of Revenue or Commissioner of Land Revenue there is no prescribed limitation. Para 18 says at any time this revisional power can be exercised. These are not the cases of Board of Revenue exercising the revisional jurisdiction but they are the cases of a Collector exercising the revisional jurisdiction. Therefore, in view of the Para 18 of the Board Standing Order 15,1 hold that the proceedings initiated by the second respondent are barred by time. Accordingly even the order of the Appellate Authority, the first respondent herein, is equally bad in law.
14. In order to reach the conclusion lam fortified by the decision of this Court in G. Munilakshmamma v. District Collector, . In para 11 of this decision while interpreting the very Para-18 of the Board Standing Order-15 a learned Single Judge of this Court held as follows:
"From a perusal of the above provision, it is evident that if at any time within three years of the original or appellate decision, the Collector is satisfied that there has been a material irregularity in the procedure or that the decision was grossly inequitable or that it exceeded the powers of the officer who passed it or that it was passed under a mistake of fact or owing to fraud or misrepresentation, he may in the case of an order passed by an officer subordinate to him, set aside, cancel or in any way modify the decision. A similar power is also conferred on the Board of Revenue, but there is no time limit prescribed for this purpose."
From the law laid down on the point involved in this case by this Court in the decision referred to above, it is clear that the Collector shall exercise the powers within three years from the original or appellate decision, if any. In the instant case, the power is sought to be exercised by the second respondent after twelve years and in view of the law declared by this Court in the decision referred to above, the proceedings are barred by time. There is another decision, a reference is made by the petitioners, reported in B.P. Jangaiah v. Joint Collector R.R. District, . In that decision this Court was interpreting the expression 'at any time' found in Para 18 of the Board Standing Order 15. What should constitute the expression 'at any time' for the purpose of Para 18 was the one involved in the latter decision.
"In P. Narasimha Reddy v. State of A.P. (1989 (2) ALT 700), a Division Bench of this Court to which I was also a member, dealt with a case of exercising suomotu power by the Joint Collector after two and half years. The Division Bench interpreted the expression 'at any time' used in sub-section (4) of Section 50-B of the Act to mean 'reasonably' and held that the power must be exercised within a reasonable time and the expression did not clothe the authorities to exercise the power at any time they liked even after the expiry of a long period; if the power is exercised after the lapse of a long time the persons might not find evidence to support their contentions and settled rights might get unsettled and that an absolute discretion to exercise the power at any point of time could not therefore be sustained merely on the ground that the section contained the words 'at any time'. What could be 'reasonable time' is a question of fact which has to be decided on the facts and in the circumstances of each case. In that case, the power was exercised after 21/2 years after issuing of the certificate by the Tahsildar and that was held to be within the reasonable time.
From the above discussion, it follows that where statute porvides for suo motu power of revision without prescribing any period of limitation the power must be exercised within a reasonable time and that what is 'reasonable time' has to be determined on the facts of each case. In the instant case, the Tahsildar Ibrahimpatnam issued validation certificates under Section 50-B of the Act on 21-12-1974 and that order was questioned in appeal in December, 1987, but the appeal dismissed in December, 1988. Thereafter show cause notice was issued by the Joint Collector on 27-4-1989. Thus the power is exercised after about fourteen years and eight months. In other cases, the power is exercised after 13 to 15 years. There can hardly be any doubt that the object of exercise of power of suo motu revision is laudable. To implement the public policy of equitable distribution of the lands by effectively enforcing the provisions of the Land Ceiling Act, it is necessary to check the misuse of Section 50-B of the Act successfully, but for this reason can the authorities be permitted to take up the stale cases ? In my view the answer to this question is. in the negative. The laudable object justifies conferring the power of suo motu revision, but exercise of this power has to be reasonable, not capricious or arbitrary. If the authorities are allowed to exercise this power after about fourteen years, it would be nothing short of arbitrary exercise of power."
15. From the above it is clear that the term 'at any time' has been so interpreted that such initiation of proceedings at any rate shall not be after twelve years. The term 'at any time' should be understood as a reasonable time and such reasonable time should not be more than twelve years. Though I am not called upon to decide the phrase 'at any time' but I am referring to this decision only for a limited purpose atleast to show that the present proceedings are barred by time in so far as the period of limitation of three years is concerned. However, it has been brought to my notice now that subsequent to these proceedings, there was an amendment to Paragraph-18 of the Board Standing Order-15 regarding limitation by G.O.Ms.No. 812, dated 8-2-1985 as it pertains to the Collector by substituting the phrase 'at any time' to the phrase 'three years'. That Text of the said subsequent amendment effected to the Board Standing Order-15 by the subsequent notification is not brought to my notice, however the Counsel for both sides conceded that the said amendment does not spply to the facts of this case, as it cannot have retrospective operation. Assuming for the sake of argument, that the limitation period of three years is taken away and instead it is read as if the Collector has power to revise the orders at any time, in view of the decision of the Hon'ble Court in G. Munilakshmammi's case (2 supra), to initiate proceedings after 12 years would be unreasonable and unequitable. By that time, the assignee would have invested their life savings and the land would have been developed. In the instant case, the petitioner in Writ Petition No. 18898 of 1987 specifically pleaded that by selling her ornaments and by investing all her life savings, she had developed her land. In these circumstances, it is clear that to set aside her assignment after 12 years from the date of the assignment would be highly unreasonable.
16. However, the learned Counsel for the respondents relied upon the decision of the Supreme Court reported in State of Maharastra v. Rattanlal (1 supra). In that decision, the Supreme Court was interpreting Section 45 of Maharashtra Agricultural Land (Ceiling and Holdings) Act, 1961, particularly with reference to period of limitation. The said Maharashtra Agricultural Land Act also provides for the exercise of suo motu powers under Section 45 'at any time' subject to condition; (1) that the said power shall not be exercised unless an appeal preferred against the decision is disposed of or until three years period has elapsed. From the reading of that section as quoted in the said decision of the Supreme Court, it is clear that the revisional power so exercised was not with reference to misrepresentation or fraud as found in Para 18 of the Board Standing Order-15. The Board Standing Order 15 specifically provides even in the case of misrepresentation of fraud, such powers should be exercised within three years and not beyond three years. The Legislature has taken care of the fact that even where there is misrepresentation or fraud, the period of limitation shall not be more than three years whenever a Collector is exercising his revisional jurisdiction. As I have held in the instant case, the limitation that applies to the facts of these two writ petition would be three years as provided in Paragraph-18 of the Board Standing Order-15. Therefore, the facts and circumstances of the case and the provisions of Law interpreted in the decision of the Hon'ble Supreme Court are entirely different. Therefore, the decision of the Supreme Court is distinguishable both on facts and Law and hence, the same does not apply to the facts of this case.
17. In view of my these conclusions, so far as the petitioner in W.P.No. 18870 of 1987 is concerned, the petition straightaway is liable to be allowed both on facts and Law and so far as the W.P.No. 18898 of 1987 is concerned, though I have held that there is misrepresentation and fraud in the case of this petitioner, even then the writ petition is allowed on the ground that the proceedings are barred by time. Hence, I pass the following Order;-
18. Both the Writ Petitions are allowed and the impugned orders are quashed. Having regard to the facts and circumstances of this case, there shall be no order as to costs.