Andhra Pradesh High Court - Amravati
Tummala Annayya Choudhary, Nellore ... vs Dist. Collector, Nellore District. 3 ... on 23 November, 2021
THE HON'BLE SRI JUSTICE M.SATYANARAYANA MURTHY
WRIT PETTION NO.7988 OF 2007
ORDER:
This writ petition is filed under Article 226 of the Constitution of India, questioning the proceedings D.Dis.NO.4842/06 dated 22.02.2007 issued by the second respondent under Section 9 of the Andhra Pradesh Rights in Land and Pattadar Pass Books Act, 1971 (for short „the Act‟), deleting the entries in the pattadar pass book and title deed and further, directing the fourth respondent to take possession of the land of this petitioner as illegal, arbitrary and without jurisdiction.
The facts of the case as pleaded in the writ petition are that, the petitioner purchased land admeasuring an extent of Ac.12-73 cents under various registered sale deeds in Nekunampeta, Kondapuram Mandal, Nellore District and he has been in possession of the property. The third respondent issued pattadar passbook and title deed in favour of the petitioner. At the time of purchase of the property, the petitioner verified the records and after fully satisfied about the authenticity of the title of the vendor and entries reflected in the revenue records, he purchased the same.
After lapse of more than eight years, on a complaint made by one Dama Chanchaiah, the third respondent/Revenue Divisional Officer sent a report vide RCF 1339/2005 dated 08.08.2006 stating that the lands which the petitioner has purchased is Government MSM,J WP_7988_2007 2 Lands and the pattadar passbooks and title deeds were issued in favour of the petitioner without following procedure, as the petitioner played fraud deliberately.
It is also averred in the report by the third respondent/Revenue Divisional Officer that the land in
Nekunampeta Village was grabbed by affluent outsiders and therefore, the first and foremost step to be taken is to get the registered documents cancelled and requested to cancel the pattadar pass book as well as title deed issued in favour of the petitioner. The third respondent also stated that, on verification of original records and Diglot, it is evident that the lands are Government Lands/Assessed Waste Lands. Pursuant to the said report submitted by the third respondent on 08.08.2006, the first respondent/District Collector vide Enquiry Notice Rc.7/1148/06 dated 18.08.2006 informed the petitioner and other land owners that the third respondent in his letter dated 08.08.2006 informed that the petitioner purchased government land, obtained pattadar passbook and title deed, requested for cancellation of the same. It is also alleged that, the third respondent is vested with power under Section 9 of the Act to initiate suo motu action, therefore, called upon the petitioner to attend enquiry on 26.08.2006 before the Joint Collector, Nellore, the second respondent herein.
A notice dated 18.08.2006 was issued by the first respondent directing the petitioner to appear before the second respondent for enquiry. A perusal of the definition of „Collector‟ contained in Section 2(2) of the Act means, Collector of a District and includes a MSM,J WP_7988_2007 3 Joint Collector. Obviously, it shows that District Collector and Joint Collector are two different authorities. A perusal of Section 9 shows that the Collector either suo-motu or on application, call for record and enquire about any order passed by any Recording Authority, Mandal Revenue Officer or Revenue Divisional Officer under Sections 3,5,5A or 5B in respect of any record of rights prepared or maintained to satisfy himself as to the regularity, correctness, legality or propriety of the order.
The petitioner further contended that, a conjoint reading of the definition Collector and Section 9 show that, either the District Collector or the Joint Collector can exercise suo-motu power independently, but the District Collector cannot invoke Section 9 and direct the parties to appear before the Joint Collector. In case, if the District Collector invokes Section 9, he himself has to conduct an enquiry or the Joint Collector for the purpose of conducting enquiry himself can invoke Section 9, but the District Collector cannot invoke Section 9 and enquiry be conducted by the Joint Collector.
The contents of the Notice dated 18.08.2006 issued by the first respondent shows that the main allegation is that the property covered under the sale deeds standing in the name of the petitioner is a Government Land. If it is the allegation of the first respondent that it is a Government Land, he cannot invoke Section 9 and conduct an enquiry for two reasons:
(i) Section 9 itself states that it can be invoked only in case of Section 3,5,5A or 5B, in the present case, the first MSM,J WP_7988_2007 4 respondent intends to cancel the pattadar passbooks issued under Section 6-A. The first respondent cannot invoke Section 9 and exercise suo motu power for cancellation of pattadar passbook issued under Section 6-A. Moreover, Section 3,5,5-A and 5-B pertains to inter se rights between private parties and entries made in the record of rights. The issuance of pattadar pass books is under Section 6-A and unless the record of rights prepared under Sections 3,5,5-A & 5B are rectified, the question of cancellation of pass books does not arise.
Therefore, Section 9 pertains only with regard to correction of record of right, but not cancellation of passbooks.
(ii) Section 12 of the Act stipulates that the Act shall not apply to a Government land. The notice dated 18.08.2006 issued by the first respondent shows that the land is „Government land‟. Therefore, as per the case of the first respondent, the Act would not be applicable and he cannot exercise power under Section 9 of the Act to adjudicate as to whether it is a Government land or not. Unless and until the respondents admit that it is not a government land, the first respondent does not have jurisdiction under Section 9 and conduct an enquiry for cancellation of patadar pass books and title deeds. The action of the first respondent is beyond the scope of Section 9 of the Act.
MSM,J WP_7988_2007 5 It is alleged that, the land is a Government land and the only recourse for the first respondent would be under the Land Encroachment Act, 1905, but not under Section 9 of the Act. In case, if the provisions of Land Encroachment Act are invoked, the respondents have ample power to adjudicate with regard to the objections under Sections 6 & 7 of the Land Encroachment Act.
Even the documents relied upon by the third respondent/ Revenue Divisional Officer is Resurvey and Resettlement Register of Nekunampeta No.2, Kavali Taluk, Nellore District. The said record is prepared under the provisions of Andhra Pradesh Survey and Boundaries Act, 1923. There are 14 columns in the Register. 1st column pertains to Resurvey Number, 2nd column relates to Sub-division, 3rd column is old survey number, 4th column is Government or Inam, 5th column is Dry/Wet, 6th column pertains to source of irrigation, 7th column pertains to single or double crop, 8th column pertains to class, 9th column is Taram, 10th column is rate, 11th column is extent, 12th column is Assessment, 13th column is name of the pattadar and 14th column is remarks. A perusal of the Register shows that Column No.14 reflects as "G" and Column No.12 pertaining to Assessment shows that assessment has been made in respect of Survey Numbers mentioned in the Sale Deeds i.e. Sy.Nos.602,69 to 737 including sub-survey numbers.
A perusal of the definition of „Government Land‟ contained in Section 3(ii) of the Andhra Pradesh Survey and Boundaries Act, 1923, shows that, „Government Land‟ means any land not forming MSM,J WP_7988_2007 6 an estate or any portion thereof. Obviously all lands which do not form a part of the estate for the purpose of survey under the Act, 1923 are being termed as „Government Land‟ and this includes the other private lands which do not form a part of the Estate. Obviously, the Resurvey and Resettlement Register does not make any distinction includes both and Column No.4 only differentiates between „Government land‟ and „Inam Land‟. Therefore, the proceedings impugned in the writ petition are illegal, arbitrary, without jurisdiction and requested to set-aside the same.
It is further contended that, aggrieved by the notice issued by the first respondent dated 18.08.2006, the petitioner and others filed W.P.No.25419 of 2006 raising aforesaid objections and vide order dated 06.12.2006, the Court disposed of W.P.No.25419 of 2006 directing the petitioners therein to submit an additional explanation pursuant to the said notice and further directed the second respondent before whom the petitioners therein were directed to appear by the first respondent to consider their additional explanation/representation. In pursuance of the direction of the Court dated 06.12.2006, the petitioner appeared before the second respondent and submitted a detailed additional explanation/representation. The second respondent without taking into consideration the grounds which the petitioners have raised, passed the impugned order dated 22.02.2007.
Respondent No.4 - Mandal Revenue Officer, Kondapuram filed counter affidavit on behalf of the Respondent No.2 - Joint Collector, Nellore, denying material allegations, inter alia MSM,J WP_7988_2007 7 contending that the Joint Collector can exercise Revisional jurisdiction which enables him to call for and examine any record of rights prepared or maintained under Section 3 of the Act and pass any order under Section 9 of the Act, which would result in amending, modifying or annulling such record of rights in case he is of the view that there has been irregularity in amending such record of rights. The lands held by the petitioner are government lands and Section 12 of the Act says that the Act is not applicable to the land belonging to the State or Central Government. The proceedings of the second respondent is unlawful and without jurisdiction. The fourth respondent is competent to take possession of the government lands under A.P. Land Encroachment Act, 1905.
The Diglot Register of the village i.e. Settlement Register and other records would also disclose that this land is government land and that the petitioner is disentitled to claim pattadar pass book and title deed for the land in dispute. As per the practice in vogue, the government land is being verified periodically as and when verification of government land is ordered by the Government and there is no time limit for verification of the government land with reference to the records and it is a regular feature in the district, thereby, through verification it is found that the land is government land as per the records.
It is contended that, the District Collector and Joint Collector are not two different authorities and they are one and the same. The definition of „Collector‟ as stated in the affidavit means MSM,J WP_7988_2007 8 Collector of a District and includes a Joint Collector. It is further contended that, the word includes and clearly leaves the impression that the District Collector and Joint Collector are one and the same in discharging the duties of the department. It is also stated that, as per G.O.Ms.No.77 Revenue dated 22.01.1968, the Government issued orders relating to distribution of work among District Collector, Joint Collector and Personal Assistants to District Collector. Under these orders, the Joint Collector is vested with power to deal with matters relating to pattadar pass books. Further, Rule 13(2) of the Andhra Pradesh Rights in Land and Pattdar Pass Books Rules, 1989 (for short „the Rules‟) states that the Collector of the District and any officer designated by the Collector for this purpose. Therefore, the Joint Collector is the competent authority to pass an order under Section 9 of the Act, as such there is no error or irregularity in the impugned proceedings and the proceedings cannot be set-aside on this ground.
The contention of the petitioner that the pattdar pass book and title deed can never be issued under Section 6-A of the Act is not correct. The land held by the petitioner belongs to the Government and pattdar pass books and title deeds were issued irregularly and a decision over the property is to be arrived at about the land held by the petitioner. Thus, there is material irregularity. The Joint Collector vide D.Dis.4842/06 dated 22.02.2007 initiated proceedings and passed order under Section 9 of the Act. Section 6-A of the Act is only intended to correct entries in title deeds and pattdar passbooks only by the Mandal Revenue MSM,J WP_7988_2007 9 Officer and it is a fit case to invoke provisions under Section 9 of the Act and therefore, it is the contention of the petitioner that, no revision is maintainable against the orders, as it is without any disobedience and requested to reject this contention.
Respondent No.2 also refuted the contention of the petitioner that the government has initiated proceedings only under Land Encroachment Act, 1905, but not under Section 9 of the Act, while contending that, in the absence of issue of pattadar pass book and title deed, it would be a direct recourse to invoke the Land Encroachment Act, 1905. Unless the impediment that the passbooks which have been issued erroneously is removed, it is not possible to initiate action under Land Encroachment Act. In the absence of cancellation of pass books exercising power under Section 9 of the Act, the petitioner would prefer to produce pattadar pass books and title deeds claiming right over the land. Hence, it is necessary to invoke the jurisdiction under Section 9 of the Act and thereby, cancellation of pattadar pass books and title deeds under Section 9 of the Act is proper and in accordance with the power conferred on the second respondent.
It is specifically contended that, cancellation of pattadar pass books and title deeds is an initial step in aid to initiate proceedings under the Land Encroachment Act and therefore, the order cannot be set-aside on that ground.
The respondents also specifically explained the relevancy of entries in Diglot Register prepared under Section 11-A of the MSM,J WP_7988_2007 10 Estate Abolition Act and in the absence of any claim under the Act, the land should be treated as Government Land for all practical purposes. Therefore, the entries are sufficient to conclude that the land is „Government Land‟. Finally, it is contended that the Collector and Joint Collector are vested with the powers under the Act and therefore, the order cannot be said to be without jurisdiction and requested to dismiss the writ petition.
During hearing, Sri C. Raghu, learned counsel for the petitioner would contend that the Joint Collector is not vested with the power when a notice under Section 9 of the Act is issued by the District Collector. Apart from that, exercise of power under Section 9 of the Act after long lapse of time is a serious illegality and on the ground that the petitioner obtained pattadar pass book and title deed by playing fraud on the authorities, the Revisional jurisdiction cannot be exercised suo motu, based on the revision of the third respondent by the District Collector under the provisions of the Act. Therefore, the order itself is illegal and without jurisdiction.
Apart from the above grounds, learned counsel for the petitioner further submitted that, when a direction was issued by the High Court in W.P.No.25419 of 2006 on 22.02.2007, permitting the petitioner to appear before the second respondent to submit additional explanation/representation and when the petitioner submitted the same in obedience of the orders of the Court, the second respondent ought to have considered those contentions in detail, but the contentions urged in the additional MSM,J WP_7988_2007 11 representation/explanation was not considered. This itself is sufficient to set-aside the order impugned in the writ petition and requested to set-aside the same.
Learned Assistant Government Pleader for Revenue contended that, the second respondent/Joint Collector is vested with the power under Section 9 of the Act, as the order was issued by exercising power under Section 3 of the Act; and that, Section 6-A of the Act has no application and it applies to rectify the mistake in the pattadar pass book and title deed. But, it was not the case of the petitioner that the entries in the pattadar pass book and title deed were rectified by exercising power under Section 6-A of the Act. It is the consistent case that the pattadar pass book and title deed was issued under Section 3 of the Act. Even according to the allegations made in the counter affidavit, the respondents intended to initiate proceedings under the Land Encroachment Act, 1905, which will enable the petitioner to putforth his objections with regard to the title by submitting explanations to the show cause notice under Sections 6 or 7 of the Land Encroachment Act, 1905. But, at this stage, this Court cannot undertake such disputed question of title, while exercising power under Article 226 of the Constitution of India.
It is also further contended that, in view of G.O.Ms.No.77 Revenue dated 22.01.1968, relating to distribution of work among District Collector and Joint Collector, the Joint Collector is vested with the power to deal with matters relating to pattadar pass MSM,J WP_7988_2007 12 books; consequently, there is absolutely no merit in the writ petition and requested to dismiss the writ petition.
Considering rival contentions, perusing the material available on record, the points that arise for consideration are as follows:
1. Whether the Joint Collector is competent to pass the impugned order when a notice was issued by the District Collector?. If not, whether the order impugned in the writ petition is vitiated by any irregularity and liable to be set- aside?
2. Whether exercise of power under Section 9 of the Act by the second respondent cancelling the pattadar pass book and title deed of the petitioner and issue of direction to the fourth respondent to take possession of the property is in accordance with law? If not, whether the order passed by the second respondent impugned in this writ petition is liable to be set-aside?
3. Whether the second respondent considered the additional explanation/representation submitted by this petitioner and answered those grounds. If not, whether the order is liable to be set-aside?
P O I N T No.1 The first and foremost contention raised before this Court is that, notice was issued by the District Collector directing the petitioner to submit an explanation to the Joint Collector and the Joint Collector issued the impugned orders. Such practice is not permitted under law and therefore, the order is liable to be set- aside. Whereas, learned Assistant Government Pleader for Revenue would contend that, Collector includes Join Collector and in view of G.O.Ms.No.77 Revenue dated 22.01.1968, work is distributed MSM,J WP_7988_2007 13 among the District Collector and Joint Collector, the Joint Collector is vested with the power to deal with matters relating to pattadar pass books; thereby, Joint Collector is competent to conduct an enquiry and pass impugned order.
The word „Collector‟ is defined under Section 2(2) of the Act and according to it, „Collector‟ means the Collector of a district and includes „Joint Collector‟. Therefore, the Joint Collector is competent to review the orders either on the application of either of the parties or by suo motu to decide the legality, regularity of the order passed by the recording authorities or appellate authority under Section 3,4,5-A or 5-B of the Act.
When G.O.Ms.No.77 Revenue dated 22.01.1968 was passed distributing the work between Collector and Joint Collector; powers under the Act were allotted to the Joint Collector in distribution of work as per the G.O. referred above, the entire proceedings have to be taken up by the Joint Collector himself by issuing notice, taking up suo motu revision. But here, the District Collector issued notice to the petitioner as if he has taken up suo motu revision under Section 9 of the Act. In the absence of distribution of work among the Collector and Joint Collectors in terms of G.O. referred above and allotment of the work i.e. to deal with the matters under the Act, work was allotted to the Joint Collector and the Collector is not entitled to issue notice taking up suo motu revision under Section 9 of the Act, when it is in exclusive domain of the Joint Collector in view of distribution of the work. Issue of notice by the first respondent calling upon this petitioner to appear before the MSM,J WP_7988_2007 14 Joint Collector to pass order, such notice is a procedural irregularity and therefore, the order is irregular. Hence, the point is answered against the respondents and in favour of this petitioner. P O I N T No.2:
The second respondent, based on the notice issued by the first respondent under Section 9 of the Act took up suo motu revision, calling for an explanation from the petitioner to examine the record of recording authority i.e. Mandal Revenue Officer or Revenue Divisional Officer under Sections 3,5,5-A or 5-B in respect of record of rights prepared or maintained to satisfy himself as to the regularity, correctness and legality or propriety of the decision taken. But, preparation and updating of record of rights for all lands is dealt under Section 3 of the Act and therefore, the Joint Collector is vested with the power to examine the issue of validity of orders passed by the recording authority under Section 3 from the date of Act came into force. Therefore, the Joint Collector is competent to examine the legality, propriety and regularity of the order passed under Section 3 in issuing pattadar pass books and title deeds, subject to following the procedure prescribed under the Act.
The second contention of the petitioner is that, the Joint Collector is incompetent to issue a direction to the fourth respondent to take possession of the property, while exercising powers under the Act. Indirectly, the respondents admitted that they intended to initiate proceedings under the provisions of Land Encroachment Act, 1905 and cancellation of pattadar pass books MSM,J WP_7988_2007 15 and title deeds are only a step in aid i.e a preliminary step to prevent the petitioner from raising a plea of prima facie title to the property based on presumption under Section 6 of the Act. The operative portion of the order reads as follows:
"....The sellers of the land has not mentioned from whom the land acquired except saying that as "Pitrarjitham" and obtained without having the title over the land. In view of the fact that no documentary evidence how the title transcended on to the vendors of the respondent was filed, the nature of the land being Government land and as per Section 12 of A.P. Rights in land and Pattadar Pass Books Act, 1971, the rights of records shall not be conferred the land classified as Government Land, I do hereby order under the Authority conferred under Section 9 of A.P. Rights in land and Pattadar Pass Books Act, 1971 that the entries related to the following scheduled land be deleted from the Pattadar Pass Book No.238744 and title deed issued in favour of the respondent.
The Mandal Revenue Officer, Kondapujram is requested to take possession of the schedule mentioned lands and implement in the village and Mandal Accounts suitably and report compliance."
The schedule is annexed to the order consisting of different extents in different survey numbers. Issue of the direction at the last paragraph of the order is questioned while exercising power under the Act that the Joint Collector is incompetent to issue such direction, since the person in unauthorized occupation is to be removed from possession by following the procedure prescribed under the Land Encroachment Act. Even the respondents also admitted in Paragraph No.8 of the counter affidavit and the same is extracted hereunder for better appreciation of the case:
"In reply to Para „10‟ it is submitted that the contention of the petitioner that the only recourse for the respondent would be under the Land Encroachment Act, 1905, but not under Section 9 of the Act, 1971 is not correct. It is submitted that in the absence of issue of passbooks. It would be a direct recourse to invoke provisions under Land Encroachment Act, 1905. Unless the impediment that the MSM,J WP_7988_2007 16 passbooks which have been issued erroneously is removed, it is not possible to initiate the action under Land Encroachment Act. In the absence of cancellation of passbooks under Section 9 before proceeding under the Encroachment Act, the petitioner would prefer to produce pattadar passbooks and title deeds claiming right over the land. Hence it is dire necessity to proceed under Section 9 of the Act at the 1st instance and pass appropriate orders. The cancellation of the passbooks under Section 9 of the Act is appropriate one and this is supposed to be the first step and invoking provisions under Land Encroachment Act is subsequent one. It is step by step procedure. The invoke of provisions under Section 9 of the Act is intended to deal with the irregularity in issuing passbooks and to arrive at a decision over the propriety of the land. The invoke of provisions under Land Encroachment Act is intended to adopt a procedure under the Act in taking possession of the Government lands by evicting the encroacher over the Government Land."
It is evident from the statement made in Paragraph No.8 of the counter affidavit that, the respondents intended to initiate proceedings under Land Encroachment Act and cancellation of pattadar pass books and title deeds are the preliminary steps to prevent the petitioners to raise such plea that they are having title to the property, based on the notice in the revenue records. Even a bare look at the order impugned in the writ petition, the petitioner is an encroacher of the government land. In such case, Mandal Revenue Officer is competent to issue notice under Section 7 (a) &
(b) of the Act, calling upon this petitioner for explanation to the show cause notice within the specified time and after conducting necessary enquiry, Mandal Revenue Officer has to pass an order. Later, a notice under Section 6 is required to be issued, fixing the date calling upon this petitioner to vacate the land, which is in the unauthorized occupation of the encroacher and pass appropriate orders. But, in the present case, the Joint Collector while exercising powers under the Act directed the Tahsildar to take MSM,J WP_7988_2007 17 possession of the property for such power is not vested on the Joint Collector under the provisions of the Act. Therefore, issuing a direction to Mandal Revenue Officer/fourth respondent to take possession of the property is illegal, arbitrary and without authority of law and the direction issued to Mandal Revenue Officer to take possession of the property is hereby set-aside. Accordingly, the point is answered.
P O I N T No.3:
It is an undisputed fact that the petitioner was permitted to file additional explanation/representation by this Court vide order in W.P.25419 of 2006 dated 06.12.2006. In obedience of the direction issued by this Court, the petitioner approached the second respondent and submitted additional explanation/ representation, but it was not considered. A perusal of the entire order impugned in the writ petition, there is absolutely no reference about additional explanation/representation and contentions therein. But, there is a vague reference about the additional explanation/representation filed by the petitioner in Paragraph No.4 of Page No.3 of the order. But, various contentions raised by the petitioner were not dealt with by the second respondent in detail. However, in the last paragraph of the same page, the Joint Collector/second respondent herein referred the order passed in W.P.No.25419 of 2006 dated 06.12.2006, whereunder, the petitioner was permitted to file additional explanation/representation and the orders were received on 20.12.2006. In the first paragraph of Page No.4 of the impugned MSM,J WP_7988_2007 18 order, the second respondent admitted about submission of additional explanation/representations pursuant to the directions issued by the High Court in W.P.No.25419 of 2006 with a request to order the Revenue Divisional Officer and his subordinates to produce all revenue records pertaining to the land in Nekunampeta Revenue Village pertaining to the land of Nekunampeta Revenue Village from 1904 July, 2006 as follows:
1. No.3 Adangal (Previously No.2 Adangal) showing the cultivation particulars of the Sy.Nos. as detailed in the explanations.
2. No.13 and 14 accounts showing the payment of all taxes over the land (corresponding new accounts for the relevant Sy.No.)
3. And other Revenue Records as submitted at the time of bearing to substantiate the contentions of the respondents and to decide all relevant issues includes lack of jurisdiction as contended by the respondent.
In Special Deputy Collector, Land Eviction, Hyderabad v. Konda Lakshman Bapuji1 the Court observed that, if really the Government was keen on summarily evicting the writ petitioners, they should have taken proceedings within a reasonable time after the writ petitioners or their lesser had encroached upon the land. The occupation of the property by the writ petitioners, being open and for an appreciable length of time, can be taken, prima facie to have a bonafide claim to the property requiring an impartial adjudication according to the established procedure of law. Since there is a bonafide dispute of title between the Government and the 1 W.A.Nos.61 & 62 of 1976 dated 14.11.1983 MSM,J WP_7988_2007 19 writ petitioners, it must be adjudicated upon by the ordinary Courts of Law. The Government cannot decide such questions unilaterally in its own favour and evict them summarily on the basis of such decision.
The second respondent/Joint Collector distinguished the judgment in Special Deputy Collector, Land Eviction, Hyderabad v. Konda Lakshman Bapuji (referred supra), but did not issue any direction to the Revenue Divisional Officer to produce the documents for perusal and decide the issue based on various contentious issues. The finding of the second respondent is only ten lines and thus, did not consider the various contentions urged in the additional explanation/representation, as directed by the Court in W.P.No.25419 of 2006 dated 06.12.2006. Therefore, the order of the second respondent/Joint Collector impugned in the writ petition is cryptic, not supported by any reasoning and contrary to law.
What an order shall contain normally is not specified anywhere but the order must be reasoned one since the judgment or order in its final shape usually contains in addition to formal parts:- (i) A preliminary or introductory part, showing the form of the application upon which it was made, the manner in which and the place at which, the writ or other originating process was served, the parties appearing any consent, waivers, undertakings or admissions given or made, so placed as to indicate whether they relate to the whole judgment or order or only part of it, and a reference to the evidence upon which the judgment or order, is MSM,J WP_7988_2007 20 based and (ii) A substantive or mandatory part, containing the order made by the Court" as has been said in Halsbury's Laws of England (4th Edition, Volume 26 P. 260). Thus, in view of the requirements of an order or judgment referred above, an order pronounced on the bench shall contain the reasoning since the judge speaks with authority by his judgment. The strength of a judgment lies in its reasoning and it should therefore be convincing. Clarity of exposition is always essential. Dignity, convincingness and clarity are exacting requirements but they are subservient to what, after all, is the main object of a judgment, which is not only to do but to seem to do justice. In addition to these cardinal qualities of a good order, there are the attributes of style, elegance and happy phrasing which are its embellishments. In the words of Former Chief Justice of the Supreme Court Sabyasachi Mukharji, the requirement of a good order is reason. Judgment/order is of value on the strength of its reasons. The weight of an order/judgment, its binding character or its persuasive character depends on the presentation and articulation of reasons. Reason, therefore, is the soul and spirit of a good judgment. Equity, justice and good conscience are the hallmarks of judging. One who seeks to rely only on principles of law, and looks only for the decided cases to support the reasons to be given in a case or acts with bias or emotions, loses rationality in deciding the cases. The blind or strict adherence to the principles of law sometimes carries away a judge and deviates from the objectivity of judging issues brought before him. Justice M.M. Corbett, Former MSM,J WP_7988_2007 21 Chief Justice of the Supreme Court of South Africa, recommended a basic structural form for judgment writing, which is as follows:
"(i) Introduction section;
(ii) Setting out of the facts;
(iii) The law and the issues;
(iv) Applying the law to the facts;
(v) Determining the relief; including costs; and
(vi) Finally, the order of the Court."
Keeping in view various principles and observations including the definition of order and judgment, the Apex Court laid down certain guidelines for writing judgments and orders in Joint Commissioner of Income Tax, Surat, v. Saheli Leasing and Industries Limited (Civil Appeal No. 4278 of 2010) in para No. 7 of the judgment and they are extracted hereunder:
"7. These guidelines are only illustrative in nature, not exhaustive and can further be elaborated looking to the need and requirement of a given case:-
(a) It should always be kept in mind that nothing should be written in the judgment/order, which may not be germane to the facts of the case; It should have a co-relation with the applicable law and facts. The ratio decidendi should be clearly spelt out from the judgment/order.
(b) After preparing the draft, it is necessary to go through the same to find out, if anything, essential to be mentioned, has escaped discussion."
(c) The ultimate finished judgment/order should have sustained chronology, regard being had to the concept that it has readable, continued interest and one does not feel like parting or leaving it in the midway. To elaborate, it should have flow and perfect sequence of events, which would continue to generate interest in the reader.
(d) Appropriate care should be taken not to load it with all legal knowledge on the subject as citation of too many judgments creates more confusion rather than clarity. The foremost requirement is that leading judgments should be mentioned and the evolution that has taken place ever since the same were pronounced and thereafter, latest judgment, in which all previous judgments have been considered, should be mentioned. While writing judgment, psychology of the reader has also to be borne in mind, for the perception on that score is imperative.
(e) Language should not be rhetoric and should not reflect a contrived effort on the part of the author.
(f) After arguments are concluded, an endeavour should be made to pronounce the judgment at the earliest and in any case not beyond a MSM,J WP_7988_2007 22 period of three months. Keeping it pending for long time, sends a wrong signal to the litigants and the society.
(g) It should be avoided to give instances, which are likely to cause public agitation or to a particular society. Nothing should be reflected in the same which may hurt the feelings or emotions of any individual or society." Hence, a judgment or an order shall contain the above seven minimum requirements i.e., (a) to (g).
In the case of "Allahabad Bank v. Krishna Narayan Tewari2" the Supreme Court has held as under:-
"7. We have given our anxious consideration to the submissions at the Bar. It is true that a writ court is very slow in interfering with the findings of facts recorded by a departmental authority on the basis of evidence available on record. But it is equally true that in a case where the disciplinary authority records a finding that is unsupported by any evidence whatsoever or a finding which no reasonable person could have arrived at, the writ court would be justified if not duty-bound to examine the matter and grant relief in appropriate cases. The writ court will certainly interfere with disciplinary enquiry or the resultant orders passed by the competent authority on that basis if the enquiry itself was vitiated on account of violation of principles of natural justice, as is alleged to be the position in the present case. Non-application of mind by the enquiry officer or the disciplinary authority, non-recording of reasons in support of the conclusion arrived at by them are also grounds on which the writ courts are justified in interfering with the orders of punishment. The High Court has, in the case at hand, found all these infirmities in the order passed by the disciplinary authority and the appellate authority. The respondent's case that the enquiry was conducted without giving a fair and reasonable opportunity for leading evidence in defence has not been effectively rebutted by the appellant. More importantly the disciplinary authority does not appear to have properly appreciated the evidence nor recorded reasons in support of his conclusion. To add insult to injury the appellate authority instead of recording its own reasons and independently appreciating the material on record, simply reproduced the findings of the disciplinary authority. All told, the enquiry officer, the disciplinary authority and the appellate authority have faltered in the discharge of their duties resulting in miscarriage of justice. The High Court was in that view right in interfering with the orders passed by the disciplinary authority and the appellate authority."
The recording of reasons is necessary. It is well known that "conclusions" and "reasons" are two different things and reasons must show mental exercise of authorities in arriving at a particular conclusion.
2 (2017) 2 SCC 308 MSM,J WP_7988_2007 23 In "Breen v Amalgamated Engg. Union3", it was held that the giving of reasons is one of the fundamentals of good administration. In "Alexander Machinery (Dudley) Ltd. v. Crabtress4" it was observed that "failure to give reasons amounts to denial of justice. Reasons are live links between the mind of the decision taker to the controversy in question and the decision or conclusion arrived at".
In "Union of India v. Mohan Lal Kapoor5", the Apex Court held as under:
"Reasons are the links between the materials on which certain conclusions are based and the actual conclusions. They disclose how the mind is applied to the subject matter for a decision whether it is purely administrative or quasi-judicial. They should reveal a rational nexus between the facts considered and the conclusions reached."
The Apex Court in the case of "Uma Charan v. State of Madhya Pradesh6" said:
"Reasons are the links between the materials on which certain conclusions are based and the actual conclusions. They disclose how the mind is applied to the subject matter for a decision whether it is purely administrative or quasi-judicial. They should reveal a rational nexus between the facts considered and the conclusions reached. Only in this way can opinions or decisions recorded be shown to be manifestly just and reasonable"
The Apex Court of India in the case of "Raj Kishore Jha v. State of Bihar7", has held that reasons are the heartbeat of every conclusion and without the same, it becomes lifeless.
The Apex Court also in "Competition Commission of India v. Steel Authority of India Ltd.8" said:
3
1971(1) AIIER 1148 4 1974(4) IRC 120 (NIRC) 5 (1973) 2 SCC 836 6 AIR 1981 SC 1915 7 (2003) 11 SCC 519 MSM,J WP_7988_2007 24 "Reasons are the links between the materials on which certain conclusions are based and the actual conclusions. By practice adopted in all courts and by virtue of judge- made law, the concept of reasoned judgment has become an indispensable part of basic rule of law and in fact, is a mandatory requirement of the procedural law. Clarity of thoughts leads to clarity of vision and therefore, proper reasoning is foundation of a just and fair decision By applying the principles laid down by the Apex Court in the judgments (referred supra) the order impugned in the writ petition is cryptic, without considering various contentions and not supported by sound reasoning to arrive at such conclusion by the second respondent. Hence, the impugned order is liable to be set-
aside, since it is not in consonance with the law referred above, though the order is passed by a quasi judicial authority in discharging his public duty, being a public officer. Hence, the order is liable to be set-aside.
In view of my finding on Point No.1, conduct of enquiry in the earlier revision taken up by the first respondent by issuing notice, though he is incompetent, in view of G.O.Ms.No.77 Revenue dated 22.01.1968, as the powers under the Act were allotted to the Joint Collectors, as admitted by the respondents in the counter affidavit. Therefore, issue of notice by the first respondent under Section 9 of the Act is contrary to G.O.Ms.No.77 Revenue dated 22.01.1968, thereby, further proceedings taken up by the Joint Collector is vitiated by irregularity. At the same time, the direction issued by the second respondent to the fourth respondent to take possession is without any authority of law, as the provisions of the Act does not authorize the second respondent to issue such 8 JT 2010 (10) SC 26 MSM,J WP_7988_2007 25 direction, except to issue or cancel pattadar pass book and title deed under Section 3 and rectify the mistakes under Section 6-B, so also making entries in the revenue records, issuing title deed on receipt of intimation under Section 4(1) of the Act by conducting necessary enquiry under Section 5(3) of the Act and entertain an appeal under those orders, as such, the direction is liable to be set- aside, as discussed above. Similarly, the order is cryptic. Hence, the order impugned in the writ petition deserves to be set-aside, as the second respondent committed an irregularity in conducting enquiry based on the notice issued by the first respondent and issued a direction without any authority of law by passing the impugned cryptic order.
In the result, writ petition is allowed, declaring the proceedings D.Dis.NO.4842/06 dated 22.02.2007 issued by the second respondent as illegal and arbitrary; while setting-aside the same. However, this order will not preclude the respondents to initiate appropriate proceedings against this petitioner strictly adhering to the procedure under the Act, based on G.O.Ms.No.77 Revenue dated 22.01.1968.
Consequently, miscellaneous applications pending if any, shall stand dismissed.
_________________________________________ JUSTICE M. SATYANARAYANA MURTHY Date:23.11.2021 SP