Telangana High Court
M. Bhadrasena Died And 6 Others vs Gram Panchayat , Sardarnagar Village. on 22 November, 2022
Author: M.Laxman
Bench: M.Laxman
THE HONOURABLE SRI JUSTICE M.LAXMAN
CIVIL REVISION PETITION No.3101 of 2011
ORDER:
1. The present revision has been directed against the order dated 13.10.2010 in case No.F1/2693/1997 on the file of Joint Collector-II, Rangareddy District, wherein and whereby the order dated 04.12.1976 in case No.A1/257/1976 on the file of Revenue Divisional Officer, Chevella Division, Rangareddy District, was partly reversed.
2. The revision petitioner No.1 herein was the sole respondent and the respondent herein was the appellant before the Joint Collector-II, Rangareddy District. By proceedings dated 04.12.1976, the Revenue Divisional Officer, Chevella Division, Rangareddy District, has granted Occupancy Rights Certificate (ORC) to revision petitioner No.1 to an extent of land admeasuring Ac.16-13 guntas situated in Sy.No.435/2 of Kakkulur Village, Shabad Mandal, Rangareddy District. Subsequently, the respondent herein filed an appeal before the Joint Collector-II, Rangareddy District. The Joint Collector-II, Rangareddy District, by impugned order, set aside the Occupancy Rights Certificate (ORC) to an extent of Ac.4-00 (out of Ac.16-13 2 ML,J CRP_3101_2011 gts ) forming part of Sy.No.435/2, situated at Sardarnagar, H/o. Kakkulur Village, Shabad Mandal, Rangareddy District.
3. During the pendency of this revision, revision petitioner No.1 died and his legal representatives were brought on record as revision petitioner Nos.2 to 7.
4. The sum and substance of the case of the respondent herein is that originally, the land in Sy.No.435/2, to an extent of Ac.16- 13 guntas situated of Sardarnagar, H/o. Kakkulur Village, Shabad Mandal, Rangareddy District was maktha inam land. The makthedar of the said land was Mohammed Dil Bahadur Khan. Out of the said total land, an extent of Ac.4-16 guntas (hereinafter called "market land") was set apart for enjoyment of village community from immemorial time for holding of cattle shandi (market) every week. After the death of Makthedar, his son Mohd. Shoukat Khan was recorded as successor to the above inam lands. Leaving such land, the balance land was under the enjoyment of one Mamidi Lingappa. Later, his son Badrasena (revision petitioner) succeeded and enjoyed such land.
5. The Grampanchayat of Kakkulur Village was formed in the year 1958. Even prior to such formation, land to an extent of 3 ML,J CRP_3101_2011 Ac.4-16 guntas in the above said survey number was being enjoyed by the villagers for village community purpose. After formation of the Grampanchayat, the Grampanchayat has been enjoying such property by regularly conducting cattle market. While so, in the year 1979, the Grampanchayat was bifurcated and new Grampanchayat of Sardarnagar (respondent) was formed. Since then, the respondent herein has been enjoying the market land. Over the said land, cattle market was being conducted on every Tuesday.
6. While things thus, Mohd. Shoukath Khan, who is legal heir of the original Makthedar, has filed O.P.No.17 of 1961 on the file of IV Additional Judge, City Civil Court at Hyderabad, claiming the ownership in respect of cattle market land and such case was filed as forma pauparis. The said case was dismissed since he did not pay the Court fee in spite of specific direction from the Court. Then, he filed Civil Revision Petition No.2138 of 1963 before this Court challenging the dismissal of said petition. The said revision was also dismissed. Subsequently, he again filed suit vide O.S.No.12 of 1967 on the file of Munisiff Magistrate, Shadnagar seeking similar relief, which was transferred to Munsiff Magistrate Court, Hyderabad and renumbered as O.S.No.78 of 4 ML,J CRP_3101_2011 1968. During the pendency of said suit proceedings, the said Mohd. Shoukath Khan obtained G.O.Ms.No.344-PR (PTAIII) Department dated 26.07.1972 from the Government declaring him as the owner of land forming part of cattle market and the District Collector, Rangareddy District was directed to take possession and pay the proceeds of the cattle market to Mohd. Shoukath Khan.
7. Respondent herein then filed W.P.No.3831 of 1972 before this Court challenging the above said G.O. and the same was allowed vide order dated 14.02.1974. Aggrieved by the said order, Mohd. Shoukath Khan filed W.A.No.923 of 1974, which was dismissed vide order dated 28.01.1975. Later, Mohd. Shoukath Khan again filed O.S.No.516 of 1976 on the file of II Additional Judge, City Civil Court, Hyderabad, seeking declaration against cattle market land. After his death, his brother came on record and ultimately he obtained ex parte decree.
8. According to the respondent, during the pendency of such proceedings, revision petitioner No.1 manipulated the revenue records and included his name in the revenue records. He also filed a Writ Petition before this Court claiming that the District 5 ML,J CRP_3101_2011 Collector shall not conduct any auction of cattle market land to an extent of Ac.4-16 guntas in Sy.No.435/2 during the year 1996-97. While the matter was pending, revision petitioner No.1 threatened the officers of the respondent with dire consequences and openly proclaimed that land pertaining to cattle market was his own land, on account of the Occupancy Rights Certificate (ORC) issued by the Revenue Divisional Officer, Chevella Division, Rangareddy District. Thereafter, the respondent herein made an application for certified copy of such Occupancy Rights Certificate (ORC) and order copy was furnished on 04.04.1997.
9. It is the further case of the respondent that the Occupancy Rights Certificate (ORC) was granted by the Revenue Divisional Officer, Chevella Division, Rangareddy District without any notice to Grampanchayat and the same was obtained by keeping the Grampanchayat in dark. The Grampanchayat was fighting litigation against the original inamdar, who was resorting to file false proceedings. In fact, the Grampanchayat challenged the G.O., which was obtained by the inamdar in his favour, declaring himself as rightful owner and it was quashed by the Hon'ble High Court.
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10. According to the respondent, the Grampanchayat was enjoying the land market land from immemorial time by conducting cattle market. Conducting of the cattle market has not been disputed by the revision petitioners herein. Further, revenue records clearly demonstrate that the Grampanchayat was in enjoyment of the property by conducting cattle market.
11. The respondent contended that the market land was not under personal cultivation of revision petitioner No.1 and he is not entitled for Occupancy Rights Certificate (ORC) and also on account of conversion of agricultural land into non-agricultural activities. According to the respondent, the case of the revision petitioners falls under Section 9 of Andhra Pradesh (Telangana) Abolition of Inams Act, 1955 (hereinafter referred to as "Inams Act, 1955").
12. According to the respondent herein, the Occupancy Rights Certificate (ORC) issued by the Revenue Divisional Officer, Chevella Division, Rangareddy District, was without any notice or intimation to the respondent. Further, the revision petitioner No.1 was not entitled to get Occupancy Rights Certificate (ORC) for the entire land situated in Sy.No.435/2 which includes the 7 ML,J CRP_3101_2011 land in which cattle market was conducted. Hence, such order of granting Occupancy Rights Certificate (ORC) was result of fraud and prayed to dismiss the present revision petition.
13. The case of the revision petitioners is that the ancestors of the revision petitioners were protected tenants of land to an extent of Ac.16-13 guntas forming part of Sy.No.435/2 of Kakkulur Village, Shabad Mandal, Rangareddy District. The revision petitioners and their ancestors were in continuous possession and enjoyment of the said land. They have given the market land to Grampanchayat for the purpose of conducting cattle market. It was given on license without transfer of any interest over the land.
14. The revision petitioners pleaded that the appeal filed by the Grampanchayat was hopelessly barred by limitation. The Sarpanch, who filed the appeal before the Joint Collector-II, Rangareddy District, has no authorization to file the same. Further, the Grampanchayat was aware of grant of Occupancy Rights Certificate (ORC) by the Revenue Divisional Officer, Chevella Division, Rangareddy District, in favour of the revision petitioner No.1, as part of the land in the said survey number was 8 ML,J CRP_3101_2011 acquired under Land Acquisition Act, 1894 and Gazette was also issued by the Government showing the name of the father of the revision petitioner No.1 as owner of the subject land.
15. According to the revision petitioners, there was no proper explanation with regard to delay. Further, the documents placed on record shows that the Grampanchayat was paying license fees to the revision petitioner No.1. Hence, the Grampanchayat has no right to seek annulment of Occupancy Rights Certificate (ORC). Therefore, prayed to allow present revision and set aside order dated 13.10.2010 in case No.F1/2693/1997 on the file of the Joint Collector-II, Rangareddy District.
16. On the basis of above claims and rival claims, after examination of evidence placed on record and after being satisfied with the explanations offered in detail, the Joint Collector-II, Rangareddy District condoned delay and allowed the appeal setting aside the grant of Occupancy Rights Certificate (ORC) with regard to land to an extent of Ac.4-00 guntas in Sy.No.435/2 of Sardarnagar, H/o. Kakkulur Village, Shabad Mandal, Rangareddy District. Aggrieved by the said order, the present revision is filed at the instance of the respondent in the appeal. 9
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17. The main contention of the revision petitioners is that the Joint Collector-II, Rangareddy District, without any application for condone delay and without assigning any valid reasons has condoned the delay and allowed the appeal. Further, the procedure adopted by the Joint Collector-II, Rangareddy District is illegal and unsustainable.
18. Learned counsel for the revision petitioners in support of his contention relied upon the following judgments Allala Bhagavanth Rao v. Garvandula Vijayalaxmi1, Lanka Venkateswarlu v. State of A.P2 and A. Nagaiah and others v. The Collector, Rangareddy District3.
19. It is also contended by him that the Sarpanch had no competency to represent the Grampanchayat and file appeal since there is no resolution of the executive committee of the Grampanchayat authorizing the Sarpanch to file the appeal. This was not considered by the Joint Collector-II, Rangareddy District. It is further contended that the protected tenant is entitled to register as occupant for the lands under his cultivation and the Inam Tribunal have considered the entitlement of the protected 1 2015 (5) ALD 598 2 Manu/SC/0153/2011 3 1988 (2) APLJ 454 10 ML,J CRP_3101_2011 tenant and has granted the Occupancy Rights Certificate (ORC). The said order of Revenue Divisional Officer, Chevella Division, Rangareddy District granting Occupancy Rights Certificate (ORC) does not suffer from any illegality. The Grampanchayat was only licencee and it is not necessary party to the proceedings and has no interest or right to deny the entitlement of Occupancy Rights Certificate (ORC) by the revision petitioners. According to him, the impugned order suffers from illegality and the same has to be set aside.
20. Learned Advocate General appearing for the respondent has contended that though there is no separate application for condoning the delay, in the appeal itself sufficient explanation has been given for delay in filing of the appeal. The Occupancy Rights Certificate (ORC) was obtained by the revision petitioner No.1 by playing fraud, by not making the respondent as part to the proceedings. After knowing the fraud, the appeal has been filed. Hence, while condoning such delay, the number of days of delay is not matter, but the explanation given for delay only matters. Such delay has no significance when there is a fraud in obtaining orders. The fraud eventually vitiates everything. 11
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21. In support of his contentions, learned Advocate General appearing for respondent relied upon the judgment in cases of Ageer Dasaratham v. The Joint Collector, Mahabubnagar4 and United Bank of India v. Naresh Kumar5.
22. Learned Advocate General further contended that absence of authorization by the executive committee of Grampanchayat is a technical defect and subsequently also, it can be ratified by the Grampanchayat. In fact, the proceedings conducted before the Grampanchayat themselves indicate that the Grampanchayat has ratified the authorization of the Sarpanch. Once such defect is ratified by implication, the technical plea of not giving authorization to Sarpanch has no merit. In support of his contention, he relied upon the decision of Hon'ble Supreme Court in Nagindas Ramdas V. Dalpatram Ichharam alias Brijram6.
23. Learned Advocate General also contended that the entries of mutation have no sanctity to uphold the title of the revision petitioners. Such entries are for the purpose of collection of revenue and the same does not confer any title to the revision petitioners. He further contended that the orders of grant of 4 2009 SCC OnLine AP 117 5 (1996) 6 SCC 660 6 (1974) 1 SCC 242 12 ML,J CRP_3101_2011 Occupancy Rights Certificate (ORC) were obtained by playing fraud without joining the respondent as one of the parties to the said proceedings. Therefore, the order obtained is result of fraud and it shall not be allowed to stand. In respect of said contention, he relied upon the judgment of Apex Court in cases of S.P. Chengal Varaya Naidu V. Jaganath7 and A.V. Papayya Sastry v. Government of Andhra Pradesh8.
24. Learned Advocate General also submitted that the Inam Tribunal ought not to have granted the Occupancy Rights Certificate (ORC) in respect of land held by the respondent which is used for the purpose of cattle market from immemorial time. The revision petitioners and their ancestors were never in cultivation of such land. The plea of license was also created in collusion with some of the officials of Grampanchayat, as if Grampanchayat was licensee and paid amounts to the revision petitioner No.1. Further, the litigation initiated by Mohd. Shoukat Khan, legal heir of original inamdar itself indicates that the inamdar was fighting for rights. The petitioner No.1 never intervened in such proceedings. Prior to the inam proceedings, documents were created in collusion with officers of the 7 (1994) 1 SCC 1 8 (2007) 4 SCC 221 13 ML,J CRP_3101_2011 Panchayat Raj and Grampanchayat, as if the Grampanchayat was in possession of land as licensee. According to him, valuable lands of the Grampanchayat were tried to knock away in the guise of Occupancy Rights Certificate (ORC).
25. In the background of the above contentions, now it has to be seen whether order of the Joint Collector-II, Rangareddy District in condoning the delay in appeal without any application and without detailed reasons requires any interference.
26. Learned counsel for the revision petitioners vociferously contended that without any application to condone delay, the Joint Collector-II, Rangareddy District ought not to have condoned the delay. This argument is unsustainable in the light of recent decision of Apex Court in case of Sesh Nath Singh v. Baidyabati Sheoraphuli Cooperative Bank Limited9 which held as follows:
"62. It is true that a valuable right may accrue to the other party 10. AIR 1962 SC 361, 11. 1890 ILR Mad 269, 12. AIR 1969 SC 575, 13. (1972) 1 SCC 366 by the law of limitation, which should not lightly be defeated by condoning delay in a routine manner. At the same time, when stakes are high, the explanation should not be rejected by taking a pedantic and hyper technical view of the matter, causing thereby irreparable loss and injury to the party against whom the lis terminates. The courts are 9 Manu/SC/10205/2021 14 ML,J CRP_3101_2011 required to strike a balance between the legitimate rights and interests of the respective parties.
63. Section 5 of the Limitation Act, 1963 does not speak of any application. The Section enables the Court to admit an application or appeal if the applicant or the appellant, as the case may be, satisfies the Court that he had sufficient cause for not making the application and/or preferring the appeal, within the time prescribed. Although, it is the general practice to make a formal application under Section 5 of the Limitation Act, 1963, in order to enable the Court or Tribunal to weigh the sufficiency of the cause for the inability of the appellant/applicant to approach the Court/Tribunal within the time prescribed by limitation, there is no bar to exercise by the Court/Tribunal of its discretion to condone delay, in the absence of a formal application.
64. A plain reading of Section 5 of the Limitation Act makes it amply clear that, it is not mandatory to file an application in writing before relief can be granted under the said section. Had such an application been mandatory, Section 5 of the Limitation Act would have expressly provided so. Section 5 would then have read that the Court might condone delay beyond the time prescribed by limitation for filing an application or appeal, if on consideration of the application of the appellant or the applicant, as the case may be, for condonation of delay, the Court is satisfied that the appellant/applicant had sufficient cause for not preferring the appeal or making the application within such period. Alternatively, a proviso or an Explanation would have been added to Section5, requiring the appellant or the applicant, as the case may be, to make an application for condonation of delay. However, the Court can always insist that an application or an affidavit showing cause for the delay be filed. No applicant or appellant can claim condonation of delay under Section 5 of the Limitation Act as of right, without making an application."
27. The above judgment clearly makes out that it is not mandatory to file an application for condonation of delay. There is also no such requirement as per Section 5 of the Limitation Act, 15 ML,J CRP_3101_2011 1963. If sufficient explanation or material is given to condone delay, on technical grounds of non filing of application, appeal cannot be thrown out at the threshold.
28. In the present case, the specific contention of the respondent is that it has been in possession of land to an extent of Ac.4-16 situated in Sy.No.435/2 and such land is being used for enjoyment of village community for cattle market. Such usage is from immemorial time; even prior to formation of Kakkulur Grampanchayat, which was formed in the year 1958. In the year 1978, the respondent Sardarnagar Grampanchayat was formed. It continued to hold rights of over market land. The claim is made by the petitioner after formation of new market.
29. The revision petitioner No.1 has set up a claim that he is entitled for the market land and placed reliance on some acquisition proceedings and some correspondence relating to payment of some amount by the Grampanchayat. Such payment of amounts by the Grampanchayat was almost all contemporaneous to the grant of Occupancy Rights Certificate (ORC). Prior to that, there is no evidence to show that the respondent was allowed to use the land for non-agriculture 16 ML,J CRP_3101_2011 purpose. In fact, he has no such right after vesting of lands with Government under Abolition Inams Act, 1955 until Occupancy Rights Certificate (ORC) is granted. Even prior to abolition, the revision petitioner No.1 being protected tenant cannot create any license or sub-lease the land.
30. In the entire case of the revision petitioner No.1, he is silent with regard to commencement of license. There is a specific plea from the respondent that they are conducting the cattle market from immemorial time i.e., much prior to formation of Kakkulur Grampanchayat. The revision petitioner has not specifically denied the same. The date of license is not given. The only contention was that the possession of respondent was only in the form of licensee. Even going by the fact that the respondent is licensee, by seeing litigation of the Grampanchayat and inamdar, the Grampanchayat is asserting its rights over the market land.
31. Further, Government issued G.O. in favour of inamdar declaring him as owner. The respondent has filed writ petition and was successful in quashing the GO. The respondent had been fighting litigation seriously, the principles of natural justice requires that the respondent should have been given an 17 ML,J CRP_3101_2011 opportunity to put forth its case in Occupancy Rights Certificate (ORC) proceedings. The entire proceedings are behind the back of respondent.
32. So far as, the notification for acquisition of land is concerned, though the respondent might have been given copy of Gazette Notification, but it is not known why grant of Occupancy Rights Certificate (ORC) was referred.
33. The revision petitioners started interference after formation of new market which is established abutting the present market place. Till then, there is no specific interference in the activities of the market place. Under the above circumstance, the respondent filed the present appeal before the Joint Collector-II, Ranga Reddy District, after knowing the proceedings. Though, the Joint Collector-II, Rangareddy District order lacks enough reasons to condone delay, but it cannot be ignored how the orders of quasi judicial authorities are being passed. The order speaks one reason that the appellant authority found that valuable land of respondent was tried to knock away by the revision petitioner No.1 by way of Occupancy Rights Certificate (ORC) without notice to respondent.
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34. The grounds of memorandum clearly show that respondent was ignorant of grant of Occupancy Rights Certificate (ORC) and on knowing the fraud immediately, copy of proceedings is obtained and filed present appeal. The revision petitioners have not filed any evidence to show that respondent is aware of grant of Occupancy Rights Certificate (ORC) in favour of revision petitioners. The reasons in the ground are sufficient explanation in the background of facts though, the order do not give elaborate reasons.
35. The learned Advocate General appearing for respondent has relied upon the decision of Nagindas Ramdas V. Dalpatram Ichharam alias Brijram and others (6th cited supra) to contend that when there are material before the Joint Collector, on the basis of such material, if he is prima facie satisfied about the existence of grounds, it can be presumed that such authority was so satisfied. In the present case, when the Joint Collector-II, Ranga Reddy District condoned delayed, it is implied in such order that he was satisfied with the explanation based on material, though specifically not referred justifying the condonation of delay. Therefore, I do not find any irregularity on the part of the Joint Collector-II, Rangareddy District in condoning the delay, 19 ML,J CRP_3101_2011 even without any application, when there is material before him justifying the condonation. Such contention of the revision petitioners in this regard is rejected.
36. The next contention put forth by revision petitioners is that Sarpanch is not competent to file the appeal. Admittedly, the appeal before the Joint Collector-II, Rangareddy District was filed by the Grampanchayat which itself is juridical entity represented by the executive head of executive committee of Grampanchyath. The previous litigation also shows that the revision petitioners filed Writ Petition against Sarpanch. Further, absence of resolution from the executive committee authorizing the Sarpanch to file case is a technical defect. Such defect can be ratified. Such ratification may also be implied as held by the Apex Court in United Bank of India v. Naresh Kumar (5th cited supra).
37. In the present case, there is no grievance from Grampanchayat that the activities of Sarpanch were against the interest of the Grampanchayat. When the action is taken by the executive head of executive committee of Grampanchayat for the benefit of the Grampanchayat, then there is implied ratification 20 ML,J CRP_3101_2011 with regard to such actions. In this regard, I do not find any merit in the contention of the revision petitioners.
38. In the present case, there is no dispute that the present lands are maktha land which is inam land. The Inams Act, 1955 and rules therein deals with only inam lands for which there was remission of whole or part of revenue thereon. In the entire case of both the parties, it is not clear whether the maktha lands are with condition of remission of revenue or without remission of the revenue.
39. It is relevant to refer to Section 7, 9 and 24 of Inams Act, 1955, which reads as under:
"Section 7: Registration of protected tenants as occupants:
(1) Every protected tenant shall, with effect from the date of vesting, be entitled to be registered as an occupant of such inam lands in his possession as may be left over after the allotment under section 4, which were under his personal cultivation and which, together with any lands he separately owns and cultivates personally, are equal to four and a half times the family holding.
(2) The protected tenant shall be entitled to compensation from the Government as provided for under this Act in respect of inam lands in his possession in excess of the limit specified in sub-section (1) whether cultivated or not:21
ML,J CRP_3101_2011 Provided that--
(a) he continued to be a tenant of such inam lands until the date of vesting; or
(b) if he is not in possession, he has been unlawfully dispossessed of such lands by the inamdar between the 10th of June, 1950 and the date of vesting.
(3) No protected tenant shall be entitled to be registered as an occupant under sub-section (1) unless he pays to the Government as premium an amount equal to forty times the land revenue for dry land and thirteen times for wet land. The amount of premium shall be payable in not more than ten annual instalments along with the annual land revenue and in default of such payment shall be recoverable as arrears of land revenue due on the land in respect of which it is payable. 14 Provided that the protected tenant who is a poor person shall be entitled to be registered as an occupant under sub-section (1), without payment of any premium to the Government.
Section 9: Vesting of certain buildings and inam lands used for nonagricultural purposes:
(1) Every private building, situated within an inam shall, with effect from the date of vesting, vest in the person who owned it immediately before that date. (2) Where an inam land has been converted for any purpose unconnected with agriculture, the holder of such land shall be entitled to keep the land provided that such conversion was not void or illegal under any law in force.
(3) The vestings of private buildings or lands under sub-
section (1) or (2) shall be subject to the payment of non- agricultural assessment that may be imposed by Government from time to time.
Section 24 : Appeals from orders under section 10 to prescribed authority:
22
ML,J CRP_3101_2011 (1) Any person aggrieved by a decision of the Collector under section 10 may, within thirty days from the date of decision, or such further time as the prescribed authority may for sufficient cause allow, appeal to the prescribed authority and its decision shall be final. (2) If any question arises whether any building or land falls within the scope of section 9 the same shall be referred to the prescribed authority whose decision shall be final.
40. A reading of Section 7 clearly makes out that a protected tenant is entitled to make application for registration of his rights in respect of inam lands, if they are under his personal cultivation. Section 9 (2) clearly shows that when inam land has been converted for the purpose unconnected with the agricultural land, the holder of such land is entitled to keep the lands, provided such conversion was not void or illegal under any law in force. Section 24 (2) and rules clearly makes out that if there is any dispute with regard to claims under Section 9, such dispute has to be referred to Special Tribunal created under Section 23 of the Act and such decision shall be final.
41. It is also apt to refer to Rule 5 of the Abolition of Inams Rules, 1975 prescribed under Inams Act, 1955 which reads as under:
"Rule 5: Application, for the purpose of registration of inamdar and the like.......:23
ML,J CRP_3101_2011 Any enquiry for the registration of an inamdar, kabiz-e- kadim, permanent tenant, protected tenant and non- protected tenant or his successors in interest, as an occupant under Sections 4, 5, 6, 7 and 8 of the Act in respect of inam land, which was in his possession on the date of vesting, shall be made by the Collector, either suo motu at any time or on an application is made by an inamdar, kabiz-e-kadim etc. Where an application is made, it shall be in Form 1 and shall be signed by the applicant. Where an application is made by a person other than the inamdar, such inamdar shall be made a party to the application. In respect of inams, for which no application has been filed, the Collector shall take up suo motu enquiry. No person shall be given a certificate of registration as an occupant in respect of communal lands, uncultivated lands, waste lands, pasture lands, grazing lands, forests, mines and minerals, quarries, rivers and streams, tanks, tank beds and irrigation works, fisheries and ferries and land set apart for the village community which vested absolutely in the State free from all encumbrances:
42. A reading of the above rule shows that when application is made by any person entitled to register under Sections 4 to 8, the inamdar shall be made as party to the proceedings. Further, such an occupant is not entitled for certificate or registration as occupant in respect of land which is set apart for village community or non-agricultural purpose.
43. Undisputedly, the market land was not in personal cultivation of revision petitioner No.1 on the date of vesting or on the date i.e., 01.01.1974.
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44. The respondent is claiming that the land is used for cattle market from immemorial time. Even prior to 1958, such land was used for enjoyment of village community. This claim was not seriously disputed by the revision petitioners. Further, revision petitioner No.1 claims that such activity was allowed with his permission. This only means that land was not put to cultivation. The revision petitioner No.1 was not cultivating the land, even though his ancestor held PT Certificate. Therefore, the protected tenant is disentitled for registration as occupant.
45. The contention of the learned counsel for revision petitioners is that lands were not notified as village community lands, so as to exclude the application of Inams Act, 1955. Even though, lands were not notified as such, they were not under personal cultivation on the date of vesting/ on the date of grant of Occupancy Rights Certificate (ORC). Revision petitioner No.1 is only claiming that the lands are in his possession, but he did not plead that it is under his personal cultivation on the date of vesting or even on relevant date or on the date of granting Occupancy Rights Certificate (ORC). It is not seriously in dispute between parties about the running of cattle market on the subject land. Whether such activity was on account of lease/license, it 25 ML,J CRP_3101_2011 has no significance. What is foremost important is that to recognize and register the protected tenant as an occupant, the land must be under his cultivation. Hence, filing of application for issue of Occupancy Rights Certificate (ORC) when lands were not in his personal cultivation is barred. For such lands, Occupancy Rights Certificate should not have been granted.
46. Further, claims have been made that such lands were put to non-agricultural activity which is not seriously in dispute. If any such dispute is there, appropriate forum is Special Tribunal and not Revenue Divisional Officer/Joint Collector. All these questions could have been considered, had the Grampanchayat was made party to the proceedings initiated for granting of Occupancy Rights Certificate (ORC). This was not done.
47. The revision petitioner No.1 has not made inamdar and person in actual possession as party before the Revenue Divisional Officer in violation of Rule 5 of Inam Rules. The order of the Revenue Divisional Officer, Chevella Division, Rangareddy District granting Occupancy Rights Certificate (ORC) suffers from fraud.
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48. In this regard, it is relevant to refer to decision of Apex Court dealing with fraud in A.V. Papayya Sastry v. Government of Andhra Pradesh (8th cited supra). Para Nos.21 to 31 thereunder are relevant which are as follows:
"21. Now, it is well settled principle of law that if any judgment or order is obtained by fraud, it cannot be said to be a judgment or order in law. Before three centuries, Chief Justice Edward Coke proclaimed; "Fraud avoids all judicial acts, ecclesiastical or temporal".
22. It is thus settled proposition of law that a judgment, decree or order obtained by playing fraud on the Court, Tribunal or Authority is a nullity and non est in the eye of law. Such a judgment, decree or order by the first Court or by the final Court has to be treated as nullity by every Court, superior or inferior. It can be challenged in any Court, at any time, in appeal, revision, writ or even in collateral proceedings.
23. In the leading case of Lazarus Estates Ltd. v. Beasley, (1956) 1 All ER 341 : (1956) 1 QB 702 : (1956) 2 WLR 502, Lord Denning observed:
"No judgment of a court, no order of a Minister, can be allowed to stand, if it has been obtained by fraud."
24. In Duchess of Kingstone, Smith's Leading Cases, 13th Edn., p.644, explaining the nature of fraud, de Grey, C.J. stated that though a judgment would be res judicata and not impeachable from within, it might be impeachable from without. In other words, though it is not permissible to show that the court was 'mistaken', it might be shown that it was 'misled'. There is an essential distinction between mistake and trickery. The clear implication of the distinction is that an action to set aside a judgment cannot be brought on the ground that it has been decided wrongly, namely, that on the merits, the decision was one which should not have been rendered, 27 ML,J CRP_3101_2011 but it can be set aside, if the court was imposed upon or tricked into giving the judgment.
25. It has been said; Fraud and justice never dwell together (fraus et jus nunquam cohabitant); or fraud and deceit ought to benefit none (fraus et dolus nemini patrocinari debent).
26. Fraud may be defined as an act of deliberate deception with the design of securing some unfair or undeserved benefit by taking undue advantage of another. In fraud one gains at the loss of another. Even most solemn proceedings stand vitiated if they are actuated by fraud. Fraud is thus an extrinsic collateral act which vitiates all judicial acts, whether in rem or in personam. The principle of 'finality of litigation' cannot be stretched to the extent of an absurdity that it can be utilized as an engine of oppression by dishonest and fraudulent litigants.
27. In S.P. Chengalvaraya Naidu (dead) by LRs. V. Jagannath (dead) by LRs. & Ors. (1994) 1 SCC 1 : JT 1994 (6) SC 331, this Court had an occasion to consider the doctrine of fraud and the effect thereof on the judgment obtained by a party. In that case, one A by a registered deed, relinquished all his rights in the suit property in favour of C who sold the property to B. Without disclosing that fact, A filed a suit for possession against B and obtained preliminary decree. During the pendency of an application for final decree, B came to know about the fact of release deed by A in favour of C. He, therefore, contended that the decree was obtained by playing fraud on the court and was a nullity. The trial court upheld the contention and dismissed the application. The High Court, however, set aside the order of the trial court, observing that "there was no legal duty cast upon the plaintiff to come to court with a true case and prove it by true evidence". B approached this Court. 28
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28. Allowing the appeal, setting aside the judgment of the High Court and describing the observations of the High Court as 'wholly perverse', Kuldip Singh, J. stated:
"The courts of law are meant for imparting justice between the parties. One who comes to the court, must come with clean-hands. We are constrained to say that more often than not, process of the court is being abused. Property-grabbers, tax- evaders, bank-loan- dodgers and other unscrupulous persons from all walks of life find the court - process a convenient lever to retain the illegal- gains indefinitely. We have no hesitation to say that a person, who's case is based on falsehood, has no right to approach the court. He can be summarily thrown out at any stage of the litigation".
(emphasis supplied)
29. The Court proceeded to state:
"A litigant, who approaches the court, is bound to produce all the documents executed by him which are relevant to the litigation. If he withholds a vital document in order to gain advantage on the other side then he would he guilty of playing fraud on the court as well as on the opposite party".
30. The Court concluded: "The principle of 'finality of litigation' cannot be pressed to the extent of such an absurdity that it becomes an engine of fraud in the hands of dishonest litigants".
31. In Indian Bank v. Satyam Fibres (India) Pvt. Ltd., (1996) 5 SCC 550 : JT 1996 (7) SC 135, referring to Lazarus Estates and Smith v. East Elloe Rural District Council, 1956 AC 336 : (1956) 1 All ER 855 : (1956) 2 WLR 888, this Court stated;
"The judiciary in India also possesses inherent power, specially under Section 151 C.P.C., to recall its judgment or order if it is obtained by Fraud on Court. In the case of fraud on a party to the suit or proceedings, the Court may direct the affected party to file a separate suit for setting aside the Decree obtained by fraud. Inherent powers are powers which are resident in all courts, 29 ML,J CRP_3101_2011 especially of superior jurisdiction. These powers spring not from legislation but from the nature and the Constitution of the Tribunals or Courts themselves so as to enable them to maintain their dignity, secure obedience to its process and rules, protect its officers from indignity and wrong and to punish unseemly behaviour. This power is necessary for the orderly administration of the Court's business".
(emphasis supplied)
32. In United India Insurance Co. Ltd. v. Rajendra Singh & Ors., (2000) 3 SCC 581 : JT 2000 (3) SC 151, by practising fraud upon the Insurance Company, the claimant obtained an award of compensation from the Motor Accident Claims Tribunal. On coming to know of fraud, the Insurance Company applied for recalling of the award. The Tribunal, however, dismissed the petition on the ground that it had no power to review its own award. The High Court confirmed the order. The Company approached this Court. Allowing the appeal and setting aside the orders, this Court stated:
"It is unrealistic to expect the appellant company to resist a claim at the first instance on the basis of the fraud because appellant company had at that stage no knowledge about the fraud allegedly played by the claimants. If the Insurance Company comes to know of any dubious concoction having been made with the sinister object of extracting a claim for compensation, and if by that time the award was already passed, it would not be possible for the company to file a statutory appeal against the award. Not only because of bar of limitation to file the appeal but the consideration of the appeal even if the delay could be condoned, would be limited to the issues formulated from the pleadings made till then.
Therefore, we have no doubt that the remedy to move for recalling the order on the basis of the newly discovered facts amounting to fraud of high degree, cannot be foreclosed in such a situation. No Court or tribunal can be regarded as powerless to recall its own order if it is convinced that the order was wangled 30 ML,J CRP_3101_2011 through fraud or misrepresentation of such a dimension as would affect the very basis of the claim.
The allegation made by the appellant Insurance Company, that claimants were not involved in the accident which they described in the claim petitions, cannot be brushed aside without further probe into the matter, for, the said allegation has not been specifically denied by the claimants when they were called upon to file objections to the applications for recalling of the awards. Claimants then confined their resistance to the plea that the application for recall is not legally maintainable. Therefore, we strongly feel that the claim must be allowed to be resisted, on the ground of fraud now alleged by the Insurance Company. If we fail to afford to the Insurance Company an opportunity to substantiate their contentions it might certainly lead to serious miscarriage of justice".
(emphasis supplied)
49. Seeing from the above principles laid down by the Apex Court dealing with fraud, I feel that the Joint Collector-II, Ranga Reddy District, has rightly taken decision to reverse the orders granting Occupancy Rights Certificate (ORC) in favour of revision petitioner No.1 herein in respect of land to an extent of Ac.4-00 situated in Sy.No.435/2.
50. In view of the above, this Court does not find any grounds to interfere into the order dated 13.10.2010 in case No.F1/2693/1997 on the file of Joint Collector-II, Ranga Reddy District. Such orders do not suffer from any illegality. Accordingly, this revision petition is liable to be dismissed. 31
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51. In the result, the civil revision petition is dismissed confirming order dated 13.10.2010 in case No.F1/2693/1997 on the file of Joint Collector-II, Rangareddy District. There shall be no order as to costs. Miscellaneous petitions, if any, pending, shall stand closed.
______________ M.LAXMAN, J Date: 22.11.2022 GVR