Andhra HC (Pre-Telangana)
A. Govindarajulu vs The State Of Andhra Pradesh, ... on 19 April, 2004
Equivalent citations: 2004(4)ALD536, 2004(5)ALT482
JUDGMENT Dharma Rao Elipe, J.
1. Aggrieved by the judgment and decree, dated 18.9.2001, passed by the learned Senior Civil Judge, Penukonda, dismissing the appeal in A.S.No.1 of 1999,confirming judgment and decree, dated 28.7.1998, passed by the learned Junior Civil Judge, Penukonda, in O.S.No.17 of 1981, wherein the learned Junior Civil Judge dismissed the suit which was filed against the order of the Sub Collector, Penukonda, dated 1.12.1980, cancelling the order of allotment of the house, which was allotted to the plaintiff, as void and also for grant of permanent injunction restraining the respondents-defendants from interfering with the plaintiff's peaceful possession and enjoyment of the plaint schedule house bearing Door No.1-81 in Plot No.72, situated at G.I.C. Colony, Penukonda.
2. The facts of the case are that the defendants have constructed G.I.C. Colony and allotted the plots to the weaker sections in Penukonda town and the plaintiff has been allotted house No.1-81 in Plot No.72 and the plaintiff having constructed the house under the instructions of the Block Development Officer has been residing in the said house since 27.12.1979. Thereafter, one Rangappa, brother-in-law of the plaintiff, has been elected as Secretary to the association of G.I.C. Colony Owners, he had made several representations to the concerned authorities regarding the defective constructions of houses and has also published the corrupt practices in respect of the construction of houses in 'Andhra Prabha daily' newspaper. When the Block Development Officer, Penukonda, was in-charge of the construction work, he tried to persuade said Rangappa, but he did not yield to the pressures and that the Block Development Officer bore grudge against the said Rangappa and reported the matter to the Sub Collector, Penukonda, complaining that the said Rangappa had occupied the house in Plot No.72 in the colony instead of plaintiff. Thereafter, a show-cause notice was issued to the plaintiff stating that why the allotment of plot No.72 should not be cancelled. When the plaintiff was attended on his wife, who was admitted in hospital at Bellary for treatment, the notice was affixed to his house and thereafter, he has submitted his explanation with regard to the main allegation that the plaintiff is not residing in the house is false for the reasons mentioned in the plaint and that then the Sub Collector, Penukonda, issued orders, dated 1.12.1980, in RC.No.1201/79, cancelling the allotment of plot No.72 in favour of the plaintiff on the ground that he is not residing therein. Hence, the suit was filed.
3. According to the respondents, the defendant No-2 filed his written statement admitting the construction of the G.I.C. Colony and allotment of plot No.72 to the appellant/plaintiff and construction of a house bearing door No.1-81, but alleged that the appellant/plaintiff did not occupy the building with his family members, on the other hand during the enquiry by the Block Development Officer, it was found that one S.N. Rangappa was in possession of the suit house and that the plaintiff was only name-lender. The said Rangappa is neither eligible for allotment nor entitled to occupy the suit house. The other allegations made by the plaintiff were denied.
4. Basing on the respective pleadings of both the parties, the learned Junior Civil Judge, Penukonda, framed the following issues:
(i) Whether the plaintiff is entitled to the permanent injunction as prayed for?
(ii) Whether this Court has jurisdiction to try the case?
(iii) To what relief?
5. The learned Junior Civil Judge, Penukonda, dismissed the suit by the judgment and decree, dated 14.12.1989, against which the plaintiff preferred an appeal in A.S.No.11 of 1990. The lower appellate Court after considering the evidence on record, both oral and documentary, allowed the appeal and remanded the matter, directing the lower court, to dispose of the suit after framing necessary issue. The trial court, after remand of the matter by the lower appellate court, framed an additional issue, dated 25-11-1992, which is as under:
"Whether the plaintiff is entitled for declaring the Order of the Joint Collector passed in Ex.A.10 as void and not maintainable as prayed for?"
6. The trial Court after framing the above issue, again dismissed the suit on 15.3.1993, against which the plaintiff preferred the appeal in A.S.No.5 of 1994. The lower appellate court on consideration of the matter, again, remanded the matter, directing the lower court to frame the correct issue in respect of the additional issue framed by it on 25.11.1992 and to dispose of the matter, after giving opportunity to both the sides, to adduce evidence on all issues. Accordingly, the lower court framed the correct issue, on 16.6.1998, in place of the additional issue, dated 25.11.1992, as directed by the lower appellate court, which reads as follows:
"Whether the plaintiff is entitled for declaring the Order of the Sub Collector passed in Ex.A.10 as void and not maintainable as prayed for?"
7. In support of the case of the plaintiff, the plaintiff examined himself as P.W.1 and three others as P.Ws.2 to 4 and got marked Exs.A.1 to A.41. On behalf of the defendants, the defendants examined one S.A. Khader, as D.W.1, and got marked Exs.B.1 to B.16.
8. On the scrutiny of both oral and documentary evidence adduced, it was observed by the learned Junior Civil Judge that Exs.A.1 to A.41 were exhibited by the plaintiff in support of his case. There is no denial by the defendants in respect of the documents exhibited by the plaintiff. Ex.A.10 is the crucial document and it is the proceedings of the Sub Collector, Penukonda, cancelling the allotment of house made in favour of the plaintiff in respect of Plot No.72 of G.I.C. Colony. Aggrieved by the said impugned order, the plaintiff preferred an appeal before the Joint Collector, Ananthapur, and the same was dismissed for default. In view of the dismissal of the appeal, Ex.A.10 cancellation order passed by the Sub Collector, has become final. Therefore, the learned Junior Civil Judge while following the Supreme Court's decision cited before him, observed that the civil court has no jurisdiction to decide the validity or otherwise of the order of the Sub Collector under Ex.A.10 and came to the conclusion that filing of the suit itself was improper and accordingly dismissed the suit.
9. Aggrieved by the dismissal of the suit, an appeal was preferred by the plaintiff/appellant before the Senior Civil Judge, Penukonda, and the learned Senior Civil Judge framed the following point for consideration:
"Whether the decree and Judgment in O.S.17 of 1981 dated 28.7.1998 on the file of the Junior Civil Judge, Penukonda is on correct lines or the same is liable to be set aside?"
10. After considering the contention of the appellant/plaintiff that ever since the date of construction of the house thereunder with Door No.1-81, the appellant/plaintiff had been in possession and enjoyment of the said house, observed that at no point of time, the said Rangappa resided in the said house. Further, relying upon various documents, such as the house tax demand notices and the house tax receipts, the learned Senior Civil Judge held that the documents pressed into service by the plaintiff would fairly prove the fact of possession of the appellant/plaintiff over the property and in such circumstances, the plot allotted in favour of the plaintiff cannot be cancelled by the Sub Collector, just relying on the mere report of the Block Development Officer.
11. On the other hand, considering the contention of the Assistant Government Pleader that Ex.A.10 cancellation order was perfect and legal as the same was passed basing on the valid report of the Block Development Officer, who has practically verified the property in question and submitted a report to the Sub Collector stating that the plaintiff did not occupy the plot assigned to him and as such the said authority has every right to cancel the assignment and in such circumstances, the cancellation order cannot be declared as void and the suit is not maintainable.
12. On the basis of the rival contentions raised by both the parties and relying upon the provisions of Order-15 of the Andhra Pradesh Board Standing Orders (for short the "BSO") it is clear that an appeal would lie before the appellate authority. The cancellation order of allotment of the house in favour of the appellant/plaintiff was made by the Sub Collector and in such a case an appeal lies before the Joint Collector, Ananthapur. The plaintiff also preferred an appeal before the Joint Collector and the same was dismissed confirming the order passed by the Sub Collector, Penukonda, under Ex.A.10 and the same has become final. As such, the validity or otherwise of the said order cannot be questioned by the plaintiff stating that the same is null and void. According to the learned Senior Civil Judge the Civil Court has no jurisdiction to entertain the suit and as such the trial Court has rightly denied the relief to the plaintiff.
13. Aggrieved by the above Judgment and decree, the present Second Appeal is preferred contending that in the absence of specific exclusion of the jurisdiction of the civil court, under the provisions of the BSO, the civil court cannot go into the validity or otherwise of the BSO and the same is ousted. It is further contended that the BSO have no statutory force as to whether the court below has acted legally or whether the civil court has no jurisdiction when there is a remedy available by way of an appeal under the BSO. It is further contended that the courts below acted illegally in holding that the civil courts have no jurisdiction to go into the correctness of the order passed by the authorities under BSO.
14. To accept the contention of the learned counsel for the appellant-plaintiff, it is better to have a glance at the Andhra Pradesh Board Standing Order-15, which deals with grant of lands for occupation, is as under:
Order-15: Grant of lands for occupation subject to payment of assessment:
(1)(i) Before making an assignment, the Officer, who is competent to order the assignment, should consider whether the land is likely to be required for public purpose in the near future or whether a permanent grant may be made. In the former case, or when any special reasons exist which make it inadvisable for Government to commit themselves to a permanent grant, the assignment should be on a temporary basis and power should be reserved to Government to resume the land at their pleasure at any time, unless and until the assignment has been declared absolute by them. When such a power of resumption is reserved to Government, the order of assignment should indicate clearly what compensation, if any, would be payable in the event of resumption. When no such power has been reserved, the land would, if required for a public purpose, have to be acquired under the Land Acquision Act and compensation paid to the grantee in accordance with the provisions of that Act.
(ii)..............
(iii) Care must be taken to see, that, in all cases of disposal of land, the conditions of the grant are fully settled and clearly mentioned in the order of assignment. When special conditions are imposed, each such special condition should contain a clause, that Government may resume and re-enter the lands, if the condition is infringed, unless the usual conditions cover this contingency.
(2) Scope of the Standing Order:- (i) This Standing Order applies to land at the disposal of Government other than (a) Building sites, in towns and village (Standing Order No.21); (b) valuable relinquished land on which there are arrears of revenue (Standing Order No. 33-5); (c) land sold for arrears of revenue and bought in by government (Standing order No. 45-2); and (d) land acquired by Government for public purposes but no longer required (standing order No. 90-32)."
15. According to this provision, the Standing Order applies to the land at the disposal of the Government, other than building sites in towns and villages. On the other hand, the BSO 21 deals with the assignment of house sites in villages and towns. It is important to note that as per Standing Order 15.2, which deals with the land at the disposal of the Government, other than building sites, in towns and villages. It is important to note that as per 15.2 Standing Orders deals with the land at the disposal of Government other than building sites, in towns and villages, valuable relinquished land on which there are arrears of revenue, land sold for arrears of revenue and bought in by government and land acquired by Government for public purposes but no longer required.
16. So, as seen from the above, the provisions of Order-15 of the BSO are not applicable to the facts and circumstances of the present case, for the simple reason that plot No.72 was assigned to the appellant/plaintiff as a house site situated in a 'gram panchayath' (village). Therefore, the courts below have misguided and misdirected themselves with regard to applying the provisions of the Order-15 of the BSO to the facts and circumstances of the present case, and holding that the Sub Collector is empowered to cancel the assignment granted to the plaintiff, when he has not occupied the house constructed in plot No.72 bearing Door No.1-87. Therefore, I hold that the entire exercise made by the Joint Collector and the judgments and decrees of both the Courts below holding that the impugned order under Ex.A.10 passed by the Sub Collector is illegal as the same was not passed in accordance with Order 21 of the BSO. Now, the relevant Standing Orders applicable to the facts and circumstances of the case is Order - 21, which contemplates:
21 Assignment of House-site in villages and towns:
(1)This Standing Order applies to the disposal of House Sites for private purposes only whether to individuals, firms or societies and whether the grant is free or is made on payment of the full or a concessional value for the land. Assignments for industrial, commercial or co-operative purposes will in addition to the usual conditions of assignment be subject to conditions on the lines of those prescribed in paragraph 6 of Standing Order No.24 mutatis mutandis, the conditions in sub-paragraph (2) of that paragraph being followed in cases in which the full market value of the land is paid by the assignee and those in sub-paragraph (i) in other cases. The disposal of buildings sites for public purposes is governed by Standing Order No.24.
17. In the present case, the Government land was allotted for the purpose of construction of housing colony i.e. GIC Colony at Penukonga, which is a 'gram panchayath'. Therefore, it comes within the meaning of the 'village' under Section (I) of Order 21 of the BSO (as mentioned below).
Section-I Portions of gramanattam or village-site at the disposal of Government, not being land required for the common use of the villages, may be granted for building purposes to bonafide applicants, the minimum extent to be assigned to any applicant for building houses should ordinarily be 10 cents; but Tahsildars have discretion to grant a smaller extent in special circumstances, if, for instance, the grant of an extent of 10 cents would encroach too much upon the area available for future assignments or the grant is for a mere extension of existing premises. The normal extent of house-site should be taken to include accommodation for cattle. With a view, however, to encourage house-holders to keep their cattle at a distance from dwelling houses, Tahsildars are empowered to grant separate plots of few cents village-site for this purpose to bonafide owners of cattle. The assignment in all cases shall be subject to the conditions of the order of assignment referred to in paragraph 7 below:
The provisions of Section (I) of Order 21 of the BSO contemplates the procedure in dealing with applications as that of applications for house-site should be made in writing and should clearly specify the land required, the purpose for which it is wanted and the name of the Officer to whom the said application is made with regarding to the maintenance of registers by the village officers, publication of the fact that an application has been made for a particular site shall be published in the village by beat of tom-tom and a notice in the form given in Appendix - XV pasted up in the village choultry and on the site applied for a period of 15 days. Thereafter, completion of formalities of preparation of plotted sketches of sites to be granted should invariably be prepared. Applications, received by direct should be referred to the village officers for report. It is the duty of the Tahsildar to dispose of every application by a written order, then the question of allotment to the extent of house-sites arises. Further, the Tahsildar is directed to restrict the assignment site not to exceed 0.10 cents nor sites for separate cattle-sheds in excess of 0.04 cents without the previous sanction of the Divisional Officer. Ultimately, a register of house-sites granted in each village shall be maintained in Tahsildars' Offices and by the village officers in the form given in Appendix - XVIII. The Government has reserves the right of re-entry, whether under the provisions of the order of assignment or under those of any subsidiary agreement, should be enforced only under the orders of the Divisional Officers. Before ordering such re-entry, Divisional Officers may, as a matter of grace, give notice to the grantee if he can be found and in the District Gazette. As seen from the assignment order condition No.2, the power is given to the Divisional Officers to grant grace period of twelve months or six months for construction of the house.
18. Now the crucial point for consideration in this Second Appeal is:
Whether the Revenue Divisional Officer is empowered to cancel the assignment under Ex.A.10 on the ground that the house was not occupied by the plaintiff, on the other hand his brother-in-law was in occupation of the house?
19. There is no clause in the BSO empowering the Revenue Divisional Officer to cancel the assignment. The only power given to the Revenue Divisional Officer is to resume the land without payment of compensation for the development made to the land. On the other hand, the entire proceedings initiated by the Revenue Divisional Officer are to cancel the patta. On that ground, the impugned order passed by the defendants is liable to be set aside.
20. Now I will advert to the main issue in the present Second Appeal that the view taken by the learned Senior Civil Judge and the learned Junior Civil Judge that the civil court has got jurisdiction only to examine whether the provisions of the statute have not been complied with or the authority had not acted in conformity with the fundamental principles of natural justice. In terms of BSO 15, an appeal lies to the appellate authority. In the instant case, the cancellation of allotment has been made by the Sub Collector and in such a case, the appeal lies to the Joint Collector, Ananthapur and, as such, the plaintiff also preferred appeal before the Joint Collector and the same was dismissed. Ex.A.10, dismissal order passed by the Sub Collector, Penukonda, has become final and as such the validity or otherwise of the said order cannot now be assailed by the plaintiff. Therefore, the lower appellate court has held that the civil court has no jurisdiction to entertain the suit and as such confirmed the order of the trial court, negativing the relief to the plaintiff and thus dismissed the appeal.
21. In view of what is observed above, I hold that BSO 15.2 applies to the land at the disposal of Government other than (a) building sites, in towns and villages (b) valuable relinquished land on which there are arrears of revenue (c) land sold for arrears of revenue and bought by the government and (d) land acquired by the Government for public purpose, but no longer required. Further, I hold that an appeal is provided against the order passed under Order -15 of the BSO and no appeal is provided against any order passed by the Revenue Divisional Officer under Section No.I of Order-21 of the BSO, i.e., the house sites assigned to villagers in a village under Section-I, but whereas, as can be seen from the BSO 15.2, it is not applicable to the disposal of the Government lands, house sites in a village, as in the present case. Therefore, the order passed by the Revenue Divisional Officer under Ex.A.10 is without jurisdiction and is liable to be set aside. When there is no provision enabling the assignee to make an appeal against the order of cancellation of the land assigned to the person as a house site in a village. Therefore, making of an appeal by the appellant, which was dismissed on the ground of default and further revision to the Revenue Divisional Officer by the plaintiff, which is misconstrued by law under Order-15 of the BSO, and there is no provisions in Order-21 of the BSO with regard to cancellation or not to grant extension of grace time for construction of the building and the cancellation for not occupying the building within six months, no appeal is provided under this Section. Therefore, the only remedy available to the appellant/plaintiff is to approach the competent civil Court to get redressal of his grievance. Therefore, the appellant has rightly approached the civil Courts i.e. the Junior Civil Judge's Court and the Senior Civil Judge's Court, Penukonda, but both the Courts have taken erroneous view in the matter. Moreover, no proper assistance was given by the learned Assistant Government Pleader, who appeared therein, perhaps, who has misdirected the Court, at best basing on the Order-15 of the BSO as the suit land is assignment of House site in a village, when the subject matter of the suit is covered by Section No.I of the Order-21 of the BSO. Under these circumstances, I have no hesitation to hold that the judgment and decree of the Junior Civil Judge, Penukonda, in O.S.No.17 of 1981, dated 28.7.1998, which were confirmed by the Senior Civil Judge, Penukonda, in A.S.No.1 of 1999, dated 18.9.2001, are liable to be set aside and accordingly they are set aside.
22. Coming to the merits of the proceedings of the Sub-Collector, Penukonda, under Ex.A.10, which was passed without proper understanding of all the conditions in the assignment order and as per the condition No.9, any conditions are violated by the assignee, the only course open to the Revenue Divisional Officer, Penukonda is to resume the land without payment of compensation, but he has cancelled assignment even though proper explanation was submitted by the appellant/plaintiff to the show-cause notice, dated 1.9.1980, stating that his wife was admitted in the hospital at Bellary for treatment. When the appellant/plaintiff was away from the house and after coming to know about the said show-cause notice, he has submitted his explanation but the explanation was not properly considered by the defendants, that is to say that no personal hearing was given, but merely relying on the report of his subordinate, the Sub-Collector, Penukonda, has cancelled the assignment, which is not legal and proper in the circumstances of the case. Therefore, the cancellation proceedings under Ex.A.10 are liable to be set aside and the same are accordingly set aside without any coercion.
23. In the result, the Second Appeal is allowed. The parties shall bear their own costs in this Second Appeal.