Andhra HC (Pre-Telangana)
The Secretary To Government, Revenue ... vs Mudiki Bhimesh Nanda on 27 April, 2004
Equivalent citations: 2004(4)ALT367, 2004 A I H C 3017, (2004) 4 ANDH LT 367
Author: Goda Raghuram
Bench: Goda Raghuram
JUDGMENT G. Yethirajulu, J.
1. Both the appeals emanate from the Judgment of a Single Judge of this Court dated 13-11-1997 passed in W.P. No. 2097 of 1997.
2. The 1st respondent herein filed W.P. No. 2097 of 1997 under Article 226 of the Constitution of India, praying to issue a Writ of Mandamus directing the appellants to assign the land to an extent of Ac. 4-17 cents in Sy. No. 329 of Avilala Village, Tirupati Rural Mandal, Chittoor District, in his favour in terms of G.O.Ms. No. 492, Revenue (Assignment-IV) Department, dated 25-5-1994.
3. The averments made by the writ petitioner in the affidavit of the writ petition are briefly as follows: -
4. The petitioner was granted Eksal lease (lease for one year) of the schedule land on 31-10-1974. It was renewed from time to time till Fasli 1387(year 1976). The Eksal lease was not cancelled by any authority by the date of the writ petition. Ever since the grant of lease, he brought the land under cultivation by incurring considerable expenditure. He installed a filter point by spending Rs. 10,000/-. The petitioner's father late Dr. Ramakrishna Rao approached the District Collector, Chittoor, to convert the said land as an assigned land on account of his being a political sufferer. The District Collector, Chittoor, through proceedings dated 13-3-1999 directed the Tahsildar to issue D-Form patta in respect of the above land. The Tahsildar without any communication and without conducting any enquiry made a proposal to the higher authorities to reclassify the land from tank Poramboke to burial ground Poramboke. During the pendency of the proposal with the Collector, some third parties tried to interfere with his possession in the year 1991, therefore, he filed a writ petition seeking direction from the High Court and the said writ petition was disposed of with a direction to consider his application for converting the land as an assigned land. However, the Commissioner, Land Revenue rejected his request through the order dated 18-11-1993. Challenging the said order, he preferred a revision to the Government of Andhra Pradesh and the Government through its orders in G.O.Ms. No. 492, dated 25-5-1994 allowed the revision petition and issued directions to the Collector, Chittoor to consider the application of the petitioner for assignment of the land in question, after taking into consideration the eligibility of the writ petitioner. In the said order, the Government observed that dispossession of the petitioner after development of the land causes considerable loss and hardship to him. The petitioner has been approaching the Collector for assignment of the land in question from May, 1994. The Government also through its order dated 13-4-1995 directed the District Collector to consider the application of the petitioner and to dispose of the same in accordance with law. But the Collector did not take any action on the above directions, on the other hand, the revenue authorities were considering assigning the land as house sites to third parties. The petitioner filed W.P. No. 27800 of 1995 before this Court and this Court through its order dated 12-12-1995 directed the District Collector, Chittoor to consider the claim of the petitioner with reference to G.O.Ms. No. 492, dated 25-5-1994 within a period of four months from the date of receipt of the copy of the said order. The High Court also directed the Collector not to disturb the petitioner from the lawful possession of the land. The Collector did not pass the final order on his applications on or before April 1996 and no action was taken as on the date of filing of the writ petition. The Tirupati Urban Development Authority (TUDA) appears to have approached the Collector for alienation of the land in its favour and accordingly the Collector passed orders directing alienation of the land in favour of TUDA. The petitioner did not receive any official communication and the revenue administration is likely to dispossess him. Hence, the writ petition praying to issue a writ of mandamus.
5. The Mandal Revenue Officer, Tirupati filed a counter affidavit opposing the writ petition and it reads as follows:
6. The writ petitioner is one of the sons of late Dr. Ramakrishna Rao. He was granted Eksal Lease of the schedule land which was classified as 'Tank Poramboke' by the then Tahsildar, Chandragiri on 31-10-1974 and the same was renewed from Faslies 1385 to 1387 through the order dated 5-6-1976. The lease patta of the petitioner was cancelled by the Tahsildar, Chandragiri on 22-2-1982 on the ground that:
(1) The lessee was not a landless poor, and (2) The land in question was acquired for public purpose.
7. The petitioner did not prefer any appeal against the cancellation and the order of the Tahsildar became final. On a proposal made by the Tahsildar, Chandragiri, the District Collector, Chittoor, proposed the land as a burial ground through his proceedings dated 12-10-1982. The proposal to reclassify the land was challenged by the writ petitioner by way of an appeal before the Commissioner of Land Revenue and the Commissioner through his order dated 13-9-1983 dismissed the appeal. On a revision preferred by the writ petitioner, the Government through G.O.Ms. No. 492, dated 25-5-1994 set aside the order of the Collector, classifying the land as burial ground poramboke and restored original classification of the land as Cheruvuthattu poramboke and directed assignment after considering the eligibility of the petitioner. In pursuance of the directions of the Government in G.O.Ms. No. 492, dated 25-5-1994 the Collector, Chittoor through his order dated 1-9-1994 opined that the land in question is classified as a tank poramboke and it is prohibited for assignment as per B.S.O. No. 15 (4). Hence the land cannot be assigned to the petitioner.
8. Being aggrieved by the order of the Collector, Chittoor, dated 1-9-1994, the writ petitioner filed W.P.M.P. No. 2700 of 1995 in W.P. No. 27800 of 1995 praying to consider his case in terms of G.O.Ms. No. 492, dated 25-5-1994. In pursuance of the orders of the High Court in W.P. No. 27800 of 1995, dated 12-12-1995, the District Collector, Chittoor examined the matter and passed appropriate orders on 25-1-1997 mentioning that the land cannot be assigned to the petitioner.
9. As Tirupati is one of the fast growing towns, the District Collector apprehended that there is likelihood of grabbing of the land by others. Therefore, he directed the Mandal Revenue Officer, Tirupati (Rural) to handover possession of the land to TUDA on 5-2-1997 under a certificate of land taken over from the Revenue authorities. The Government is at liberty to utilise the land for public purposes and the action of the Collector is perfectly valid. The petitioner was given choice for any alternate land, if he is so desired, for assignment of the land for agricultural purpose. Regarding the land in question, it is not possible to grant patta to the writ petitioner since it was prohibited from assignment as Cheruvuthattu poramboke. The writ petition is, therefore, liable to be dismissed with costs.
10. Despite the several tenable objections raised by the respondents, the learned Single Judge through his Judgment dated 13-11-1997 allowed the writ petition covered by W.P.2097/97 and directed the respondents to assign the land in question in favour of the writ petitioner within two weeks.
11. The respondents representing the Government of Andhra Pradesh, preferred W.A. No. 1626 of 1998 challenging the validity and legality of the order of the learned Single Judge. During the pendency of the appeal, the Government Pleader for Assignments filed a withdrawal letter in the Court and in pursuance of that, a Division Bench of this Court of which my learned brother Sri Justice Goda Raghuram was one of the members, through its order dated 5-9-2000 dismissed the appeal as withdrawn. Subsequently on 26-12-2001 the respondents filed the application on 26-12-2001 W.A.M.P. No. 2021 of 2002 requesting to recall the order of this Court dated 5-9-2000 by permitting the appellant State to withdraw its request for withdrawal of the appeal covered by W.A. No. 1626 of 1998, to set aside the order of dismissal of the writ appeal dated 5-9-2000 and to restore the same for hearing and to dispose of the same on merits.
12. The other appeal covered by W.A. No. 1710 of 2002 was filed by the Tirupati Urban Development Authority (TUDA) with delay against the order of the learned Single Judge, directing to set aside the assignment made by the Collector to TUDA through his proceedings in Roc. No. B1/2037/97,dated 30-1-1997.
13. Since both the appeals arise out of the same order, they are clubbed and this common Judgment is delivered.
14. In the light of the rival contentions and the grounds of appeal, the following points are taken up for consideration by this Court:
(1) Whether there are sufficient grounds to recall the order of this Court dated 5-9-2000 passed in W.A. No. 1626 of 1998 and to restore the appeal to its original number?
(2) Whether the writ petition filed by the petitioner seeking a writ of mandamus is maintainable and whether he is entitled for the reliefs as prayed for?
(3) Whether there are sufficient grounds to condone the delay in filing the Writ Appeal No. 1710 of 2002?
(4) Whether the order of the learned Single Judge passed in W.P. No. 2097 of 1997 passed in the absence of the appellant in W.A. No. 1710 of 2002 is liable to be set aside?
Point Nos.1 and 2:
Genesis of the litigation:
15. The writ petitioner is the son of late Dr. M. Ramakrishna Rao, who retired as Assistant Director of Medical & Health at Tirupati. In the year 1974 he applied for lease of the schedule land of an extent of Ac.4.17 cents situated in Sy. No. 329 of Avilala village claiming that he is a Scheduled Caste educated unemployed and landless poor. The Tahsildar, Chandragiri, through order dated 31-10-1974 granted Eksal Lease to the petitioner for one year for cultivation. Subsequently the lease was renewed for Faslies 1385 to 1387 and the land was granted on lease purely for agricultural purpose under the Board Standing Orders. Subsequently the Tahsildar, Chandragiri, cancelled the lease and directed resumption of the land and communicated the said order to the petitioner. The Tahsildar, Chandragiri, while cancelling the lease, made a proposal for reclassification of the disputed land from Cheruvuthattu poramboke to burial ground poramboke. The proposed classification was approved by the Collector, Chittoor on 12-10-1982. The petitioner kept quiet for a period of four years and ultimately on 10-7-1986 he made a representation to the Government for cancellation of the reclassification. The petitioner also submitted a representation to the Revenue Minister, Government of Andhra Pradesh in 1987 requesting to assign the land in his favour claiming that he was in possession of the land on the strength of the lease. During the pendency of the application for reclassification of the land as Cheruvuthattu poramboke, the petitioner filed a revision petition before the Commissioner, Land Revenue and it was pending with the Commissioner. The petitioner filed a writ petition before this Court and the same was disposed of with a direction to consider the application of the petitioner for converting the land as assigned land. In the meanwhile, the Commissioner, Land Revenue, rejected the request of the petitioner through order dated 18-11-1993 for assigning the land in his favour. Challenging the said order, he preferred a revision to the Government of Andhra Pradesh and the Government by its order in G.O.Ms. No. 492, dated 25-5-1994 issued a direction to the Collector, Chittoor to consider the application of the petitioner for assignment of the land in question, after taking into consideration his eligibility for assignment. The Collector did not pass any order in his favour. Therefore, the petitioner filed W.P. No. 27800 of 1995 before this Court and a learned Single Judge of this Court by order dated 12-12-1995 directed the Collector to consider the claim of the petitioner with reference to G.O.Ms. No. 492, dated 25-5-1994 within a period of four months from the date of receipt of a copy of the order therein. But, the Collector passed orders entrusting the land to TUDA for development. The petitioner, therefore, filed W.P. No. 2097 of 1997 praying to direct the Collector to assign him the land. The learned Single Judge through his Judgment dated 13-11-1997 allowed the writ petition and directed the respondents to assign the land in question, in favour of the writ petitioner within two weeks. Therefore, it has to be tested whether the order of the learned Single Judge is liable to be interfered with?
Family background of the writ petitioner :
16. Dr. M. Ramakrishna Rao worked as a Medical Officer in Tirupati Municipality for about three decades and retired as an Assistant Director, Medical & Health, on 31-8-1978. He had 4 sons and 3 daughters. The writ petitioner is his eldest son. They belong to a Scheduled Caste. The 2 sons of Dr. Ramakrishna Rao were in Government Service since prior to 1974. Dr. Ramakrishna Rao was granted D.K.T. patta for an extent of Ac.3.21 cents in Sy. No. 472/3 of Avilala village in D.K.T. No. 2/4/78, dated 4-12-1968. He purchased D.K.T. land of Ac.3.05 cents situated in Sy. No. 468 under a registered Sale Deed No. 12336, dated 20-8-1969. He also purchased an extent of Ac.3.91 cents in Sy. No. 469 in the name of his wife Smt. Sugunabayamma, through registered Sale Deed No. 1374, dated 5-6-1969 which was assigned to others. Out of the above lands, Dr. Ramakrishna Rao sold away the extent of Ac.3.91 cents in Sy. No. 469 which was purchased in the name of his wife to 56 others as house plots through registered Document Nos.4088 to 4134, dated 5-8-1983 and 6-8-1983. On account of Dr. Ramakrishna Rao indulging in the activity of purchasing the D.K.T. lands and selling them away by converting as house plots, the Mandal Revenue Officer, Tirupati (Rural), cancelled the D.K.T. patta of the land purchased in the name of his wife, through order dated 20-2-1986. On 28-6-1987 Dr. Ramakrishna Rao submitted a representation to the Collector mentioning that he was a political sufferer, that he was in possession of an extent of Ac.14.69 cents viz., Ac.3.26 cents in Sy. No. 472/3, Ac.3.05 cents in Sy. No. 468, Ac.3.91 cents in Sy. No. 469, 0.30 cents in Sy. No. 459, Ac.4.17 cents in Sy. No. 329 and 0.66 cents in Sy. No. 472/4 and as the total extent of land possessed by him is less than Ac.15.00 he requested to assign the schedule land i.e., Ac.4.17 cents in Sy. No. 379 in his name by considering him as a political sufferer.
17. Dr. Ramakrishna Rao claimed that he had participated in the Freedom struggle during pre-independence days. He retired in 1978. After retirement he made an application to the Government of India to declare him as a political sufferer and provide him the political sufferers' pension. The Government of Andhra Pradesh recommended his name on 7-2-1987 for political sufferers' pension. After prolonged correspondence, the Government of India granted Freedom Fighters Pension to Dr. Ramakrishna Rao, through its proceedings No. 112/403/87-F, dated 27-10-1987.
18. On perusal of the said order, it is apparent that for the first time Dr. Ramakrishna Rao was recognised as a political sufferer 37 years after independence. But, Dr. Ramakrishna Rao, prior to the receipt of the said order, submitted a representation to the Collector on 28-6-1987 for granting of patta to all the lands mentioned above in the category of political sufferer, which were in his possession as on that date. In the said representation Dr. Ramakrishna Rao mentioned that a political sufferer of Rayalaseema region is entitled for allotment of Ac.15.00 of land, therefore, he requested to grant patta in his name for the above lands as political sufferer. He also made applications for assignment of lands and political sufferer's pension on 3-7-1989 and 16-1-1990. On his representation dated 16-1-1990, the District Collector, Chittoor, forwarded the said application to the Mandal Revenue Officer concerned for his remarks. The Mandal Revenue Officer submitted his remarks mentioning that an extent of Ac.3.05 cents was assigned to Dr. Ramakrishna Rao in Sy. No. 468 through proceedings dated 19-4-1955 with a condition to cultivate the land on his own and not to alienate the land in favour of others. He however sold away the entire land as housesites to others. Since the assignee violated the Assignment Rules, the then Mandal Revenue Officer, Tirupati, cancelled the D.K.T. patta of Dr. Ramakrishna Rao on 26-4-1987. The Mandal Revenue Officer further mentioned that Dr. Ramakrishna Rao occupied an extent of 0.66 cents in Sy. No. 472/4 and his request for assignment was not considered as he was a retired officer of the Government of Andhra Pradesh and was a pensioner as on that date. Dr. Ramakrishna Rao initially asked for the assignment of the disputed land free of cost, but subsequently requested for assignment on market value through his representation dated 16-1-1990.
Object of assignment of land to political sufferers:
19. During the period of freedom struggle, many people have sacrificed their lives, jobs and properties by dedicating themselves to the cause of the Freedom Movement to get independence to India. There were many genuine cases where the people who participated in the freedom struggle, suffered imprisonment in the hands of the British Government for their participation in the freedom struggle. Since those who sacrificed their lives and properties became vulnerable for poverty after independence and as they suffered a lot for their survival, the Government of India after realising the difficulties of the freedom fighters decided to grant political sufferers pension and to assign lands. By virtue of the decision of the Government of India, many freedom fighters got political sufferers pension and also lands by way of assignment. Dr. Ramakrishna Rao, by realising at a belated stage that he can also make an effort to get the political sufferers pension, made an application 37 years after independence and on the basis of the credentials given by two respectable senior politicians of the State of Andhra Pradesh and on account of non-availability of jail record, the Government of India extended the benefit of political sufferers pension to him.
20. In the application dated 16-1-1990 Dr. Ramakrishna Rao requested the Mandal Revenue Officer, Tirupati (Rural) for expediting the long pending cases relating to him by forwarding the same to the Collector for urgent action regarding freedom fighters pension and for assigning Ac.15.00 of land and also for issuing R.O.R. Pass Book for the lands under his possession. Dr. Ramakrishna Rao at the time of granting pattas was in service, therefore, he did not claim that he is a freedom fighter and his name did not find place in the list of political sufferers communicated by the District Collector through letter dated 1-8-1972. Dr. Ramakrishna Rao never complained about the non-inclusion of his name as a political sufferer and he ultimately died in 1990.
Cancellation of lease:
21. The writ petitioner was unemployed in 1974. Therefore, he made an application to the Tahsildar, Tirupati, for granting of lease of the schedule land. The Tahsildar by considering him as a Scheduled Caste unemployed, granted Eksal Lease in his favour on 31-10-1974. On his further request the lease was extended till Fasli 1387. The lease was granted on a condition that he shall cultivate the land and it shall not be used for any other purpose. But the petitioner did not cultivate the land and he did not raise any crops thereon. On the other hand he sold away a portion of the land by converting it into house plots. The Tahsildar, Tirupati, therefore, through his proceedings in D.Dis. No. 4566/91, dated 25-2-1982 cancelled the lease for the following reasons:-
"The land is vacant for the last 3 years. The respondent is not a landless poor and he is the son of a retired Municipal Health Officer. The Lessee is residing with his father. The disputed land is tank poramboke. It is required for burial ground. I am, therefore, resuming the land by cancelling the lease order."
22. The publication of notice of cancellation of patta was made on 25-2-1982 through a Panchnama. A copy of the order of the cancellation of lease was also sent to the petitioner. The Tahsildar while cancelling the lease made a proposal for reclassification of the disputed land from Cheruvuthattu poramboke to burial ground poramboke. The proposed classification was approved by the District Collector, Chittoor through proceedings Roc. No. B4/7951/82, dated 12-10-1982. For about 4 years the petitioner did not make any effort to get the reclassification cancelled. When he submitted a representation to the Government in 1986, the Mandal Revenue Officer, Tirupati (Rural) submitted a report to the Revenue Divisional Officer, Chandragiri, in reply to the remarks called for from the Revenue Divisional Officer, Chandragiri. The record disclosed that the writ petitioner sold away part of the disputed land as house plots to 13 persons at the rate of 4 cents per individual through registered Sale Deed Nos. 330 to 342, dated 23-1-1982. When it was pointed out that the petitioner violated the conditions of lease, he made an application requesting to assign the land for market value in his name. The assignment was not made in favour of the petitioner for the following reasons:-
1) The father of the writ petitioner was a Gazetted Officer in Tirupati Municipality and he was getting pension after retirement from 31-8-1978.
2) The assignment of the land granted in favour of Dr. Ramakrishna Rao and his wife were cancelled on the ground that they sold away the lands by converting them into house plots.
3) The petitioner is working as a Bank Officer and his wife is also a Government employee.
4) The resumption order of the Tahsildar dated 22-2-1982 became final since the writ petitioner did not prefer any appeal against the said order. The writ petitioner has no vested right to get the land assigned to him.
5) The writ petitioner was not a landless poor person at any time. The land in question is required for public purpose.
6) The land is a tank poramboke. Therefore, it cannot be assigned under B.S.O. No. 15(4).
7) The land is surrounded by well developed colonies and it lost its agricultural value and attracts the house site potentiality.
8) The writ petitioner did not cultivate the land at any time and there was no existing crop on the land on the date of inspection by the Mandal Revenue Officer also.
9) The land was prohibited for assignment through proceedings of the Revenue Divisional Officer in Roc. No. C/4391/87, dated 17-8-1987. The Government of Andhra Pradesh vide Memo No. 134244/VI/88-1, dated 17-12-1988 prohibited assignment of land until further orders in 20 Mandals, including Tirupati Rural Mandal, in view of Galeru-Nagiri Irrigation Project.
10) The land is not in possession of the writ petitioner from 1987. An entry was already made by the Revenue Divisional Officer on 17-8-1987 in the Prohibitory Order Book, prohibiting the land in question for assignment.
11) The petitioner sold away part of the land for house plots to 13 persons at the rate of 0.04 cents in violation of the conditions of Eksal patta lease.
23. The petitioner did not specifically deny the reasons mentioned by the concerned authority for not assigning the land in his name. The petitioner made a general statement that he did not sell the land and he sold some other land. But he failed to produce the copies of those sale deeds, if any, relating to the sale transactions of other lands. If what he said is true, nothing prevented him from producing copies of those documents.
24. The land was leased out to the petitioner with a hope that he would cultivate the land and get some returns for livelihood. His request for assignment of the land was rejected by the concerned authority for the reasons mentioned above. His after getting employment also the petitioner did not stop pursuing the matter. The Board Standing Orders are meant to help the poor and to uplift the down trodden. The rules do not permit people to exploit the Government and to make profit by selling away the lands. If the petitioner is allowed to sell the land as house sites, it becomes a boon for him and curse to the really poor. The writ petitioner did not stop by filing the writ petition; he resorted to play fraud with the connivance of the officials of the Secretariat of the Government of Andhra Pradesh. The petitioner filed the writ petition against the Government without impleading TUDA as a party to the proceedings. He did not explain as to why he did not implead TUDA as one of the parties knowing fully well that the land was entrusted to TUDA for development. The petitioner resorted to file a Civil Suit O.S. No. 179 of 1997 in the Court of the Civil Judge, Tirupati, against TUDA without impleading the Government as a party to the suit and obtained injunction orders by giving a picture to the Court that TUDA was trying to unauthorisedly dispossess him from the land. He suppressed the fact in the suit that the Collector passed order entrusting the land to TUDA for development apprehending that it is likely to be trespassed by others. The petitioner was also conscious that if the Government is added as a party to the suit proceedings, he will not get any injunction in his favour. The petitioner, therefore, resorted to run substantially parallel proceedings, one in the Civil Court and the other in the Writ Court without drawing the attention of the respective Courts about the pendency of the proceedings in the other Courts.
25. In the revision petition to the Government dt.16-10-1993, the petitioner did not describe himself as a Bank employee. He tried to gain the sympathy of the Government by mentioning in the petition as follows:-
"The petitioner belongs to Scheduled Caste, son of a political sufferer and landless poor when the Eksal lease was granted to him in 1974. At that time he was unemployed and got employment 10 years thereafter."
26. The petitioner did not mention in any of the representations, whether he was cultivating the land personally or getting it cultivated through others. He did not mention as to what were the crops raised in the land and what was the return he got annually. The petitioner at this length of time requests to assign the land on the ground that he belongs to Scheduled Caste and was unemployed in 1974.
27 The Mandal Revenue Officer, Tirupati, in his status report mentioned that the land is surrounded by College, Rayalaseema Residential College, dwelling houses in East; Saibaba Temple and vacant house plots on West; residential houses and residential plot on North and South. The land is within 1 km. from Tirupati Municipal limits.
28. The Government in G.O.Ms. No. 492, dated 25-5-1994 mentioned as follows:
The claim of the individual for assignment of land in the capacity of a son of a political sufferer needs closer examination. The records of the lower Court reveal that his father's name is not included in the list of the political sufferers. However, the petitioner has been setting up his claim continuously stating that he is eligible for assignment of the land as the son of a political sufferer. No opportunity was given to him to prove that his father is a genuine political sufferer. If it is proved that the petitioner is the son of a political sufferer and eligible for assignment, his claim for assignment of land in Sy. No. 329 of Avilala village, deserves consideration because he was granted Eksal lease way back in 1974 and continued to be in possession of the land till the Revenue authorities cancelled his patta. Having been in possession of the land for a considerable length of time and spent huge amounts for its development it may not be appropriate to reject his claim. Therefore, the Collector, Chittoor is directed to grant assignment of land after verifying his eligibility.
29. The order passed by the Government indicates that the Collector has to take necessary steps for granting of the patta after considering the eligibility of the petitioner. The Collector after verifying the record and after considering the eligibility of the petitioner passed an order by observing that it is not possible to assign the land in favour of the petitioner for the reasons mentioned therein.
30. The Collector wrote a letter to the Commissioner, Land Revenue, requesting to impress upon the Government that it is not desirable to assign the land in favour of the petitioner. He also mentioned that on a representation from the villagers, the patta given to the petitioner was cancelled and the land was reclassified as a burial ground poramboke. He further mentioned that on verification of the Adangals for Faslies 1398 to 1405 regarding the possession of the land by the petitioner, in the relevant columns no entries have been made as to the person who enjoyed the land during those Faslies. As the land is not in possession of the petitioner since 1987, as he is prohibited for assignment in terms of G.O.Ms. No. 157, dated 13-2-1987, the request of the petitioner for assignment of the land under political sufferers quota cannot be considered. However, he advised the petitioner to apply for an alternative land.
31. The Collector passed those orders in pursuance of the directions of the High Court in W.P. No. 27800 of 1995, dated 12-12-1995 and he made a proposal to alienate the land in favour of TUDA for development. He further mentioned that the petitioner never cultivated the land and as the land is situated in the midst of Tirupati town and as it is a prime and valuable land useful for commercial needs and Government purposes, it is not desirable to assign the land and requested for cancellation of the G.O.Ms. No. 492, dated 25-5-1994.
Fraud on Government and Court:
32. In the affidavit filed in support of the W.P. No. 2097 of 1997, the petitioner while mentioning that his father was a freedom fighter and declared as a political sufferer, did not mention that he was granted patta and he simply mentioned that the Tahsildar granted patta and it was extended from time to time. His father approached the Collector with a request to convert the said land as an assigned land. He further mentioned that the Collector in his proceedings dated 13-3-1979 directed the Tahsildar to issue D-Form patta in favour of his father, and that the Tahsildar without any notice to his father or to himself and without conducting any enquiry sent a proposal to the higher authorities for converting the land into a burial ground poramboke.
33. When his father was not granted a patta and when he was no more, the question of the petitioner getting assignment on the same ground does not arise. The learned Single Judge who passed the impugned order was given to understand that the petitioner's father was granted Eksal patta which is evident from paragraph-4 of the impugned order dated 13-11-1997 which reads as follows:-
"Learned Counsel for the petitioner submits that the petitioner's father being a political sufferer was granted Eksal Lease by the Tahsildar, Chandragiri on 31-10-1974 which was renewed upto 1385 Fasli on Sisth of Rs.15-95 ps. His father also approached the Collector for assignment in the year 1975. The District Collector before issuing the proceedings found on inspection that it is not Cheruvuthattu. As the application of the petitioner's father was not considered, a writ petition was filed in this Court and the same was disposed of with a direction to the Commissioner, Land Revenue, to consider the said application for assignment.
34. The learned Single Judge further observed as follows:
The petitioner was in continuous possession of the property since 1974. The Tahsildar disregarded the order of the Collector dated 13-3-1979 for grant of D-Form patta in favour of the petitioner's father. The proposal of the Collector to convert the land into the burial ground was rejected. Therefore, the order of the Collector cannot sustain.
35. The petitioner made the learned Judge to believe that he is in continuous possession of the land, though he was evicted from the land more than 10 years prior to the date of writ petition. This is another circumstance of the petitioner playing fraud on the Court.
36. The learned Single Judge did not notice that the Government set aside the order of the Collector regarding the conversion of land into the burial ground poramboke observing that as there are residential buildings, colleges etc. surrounding the land, it is not desirable to provide land in the middle of the houses as burial ground. Without taking notice of the said observation of the Collector, the learned Single Judge gave so much importance for the operative portion of the order that the reclassification of the land was set aside. The impugned order of the learned Single Judge does not reflect consideration of the objections raised by the Government for assignment of the land and unless those objections are answered in favour of the petitioner, the petitioner is not entitled for any relief on this ground. The petitioner himself mentioned in his representation dated 25-5-1994 that there is no tank in existence on the ground that the land in question is continuously in the possession of the applicant and his late father Sri M. Ramakrishna Rao from 1974 onwards and the small kunta has been reclaimed by the petitioner's father immediately after getting Eksal lease patta in 1974. It was a barren and submerged land, therefore, nobody wanted it. He invested lot of money and energy to reclaim it. He struggled hard in developing the land for leveling and fencing it with the help of his relatives. The tank is dried up and there is no water since 7 years. He is in continuous possession of the land since more than 7 years and he deserves sympathetic consideration.
37. In the representation dated 10-4-1995 the petitioner mentioned as follows:
S. No. 329 is already a built up area and several housing colonies, schools, temple have come up in and around the above area. The land was under the possession and enjoyment of a political sufferer from the date of lease. The petitioner is the son of a political sufferer having no land anywhere excepting to depend on the above land which has been under his enjoyment from his father's period ... and he is entitled for allotment of the land which was under his father's possession.
38. In the affidavit filed in support of W.P. No. 27800 of 1995 the petitioner mentioned as follows:
.. My father was assigned Ac.4-17 cents in S. No. 329. After the death of my father I continued in possession. ...
39. In para 4 of impugned judgment the learned single Judge mentioned that the petitioner's counsel submits that the petitioner's father was granted Eksal lease as political sufferer. The petitioner did not mention in any application that he is asking for assignment of the land for agricultural purposes. He simply requested to assign the land without mentioning the purpose. The local Revenue officials were keenly observing the conduct of the petitioner and his father in getting assignments and selling away the properties to others. When the petitioner resorted to sell away the property, which was under lease to him, he will go to any extent in knocking away the Government land to make money out of it irrespective of fulfilling the norms for assignment of such lands. The petitioner realizing that he cannot get assignment as an employee of the Bank started raising a slogan from 1989 that he is the son of a political sufferer. Since the petitioner is a Bank Officer, he cannot personally cultivate the land and there is no possibility of cultivating the land which is situated in the middle of the colony.
40. The Tahsildar as well as the Collector recorded all cogent and convincing objections to the allotment of the land. As per the Board Standing Orders, certain norms have been provided as eligibility criteria for the candidates who are entitled for assignment. It is the discretion of the Government either to grant assignment or not, but there is no vested right to anybody. They cannot agitate the matter before a Writ Court. Unless there is a right vested on the petitioner, he cannot seek the relief of Writ of Mandamus and he is not entitled for getting any direction to the concerned authorities to do a particular act irrespective of the merits of the case. Therefore, the High Court was conscious in the earlier Judgments about the powers of the Court in this type of matters and the relief that has to be granted in such matters.
41. The petitioner has been fighting the litigation for more than two decades, sending repeated representations to the concerned authorities and filing Writs in the High Court. Though the Collector and the Commissioner of Land Revenue categorically mentioned the reasons for not assigning the land in favour of the petitioner, the learned Single Judge did not advert to all those objections and made an omnibus observation that the order of the Collector and the Commissioner of Land Revenue cannot sustain. The assignment of land will be made on the basis of subjective satisfaction. Each case has to be weighed on its own merits for making assignment.
42. The learned Advocate General represented that the petitioner in order to meet his selfish ends and in order to make money from out of the land of the Government is seeking assignment of the land. Therefore, the Court has to weigh the merits of the case by keeping in view the public interest against the private interest of the petitioner. He further submitted that the land value in Tirupati town increased so much and there is a lot of demand for every inch of land. There is no breathing place in the city on account of hectic construction activity. Therefore, the Collector thought it fit to develop this land for the use of the community in general and therefore, he entrusted the same to TUDA for development. On the other hand, if the petitioner is assigned this land, he will divide the land into house plots and sell away the same, which he did in respect of a portion of the land. As the petitioner violated the conditions of lease, it was cancelled and as the petitioner failed to fulfill the eligibility criteria, the assignment was not made in his name. Therefore, there cannot be any question of sympathy towards the petitioner on the ground that he was in possession of the property for some time at the cost of the public. The learned Advocate General further submitted that the Government machinery joined hands with the petitioner to see that he is granted assignment irrespective of the fulfillment of the requirements for assignment of the land. He, therefore, requested that though there was delay in filing the recall petition it was only on account of the time lag to understand things in the proper perspective and to take necessary steps to protect the interests of the public. He, therefore, requested that the Court while exercising its inherent power and while weighing the merits and demerits in the matter, has to interfere by setting aside the impugned order passed by the learned Single Judge.
43. The copy of the letter addressed by the petitioner's Counsel Sri Vasudeva Reddy discloses that he wrote a letter to the Government Pleader for assignments on 28-7-2000 informing him about the issuance of G.O.Ms. No. 378, dated 3-6-2000 by the Government and further mentioned that in view of the said G.O., the challenge made by the District Collector in the Writ Appeal no longer survives. Therefore, he requested the Government Pleader to take appropriate action in the Writ Appeal.
44. In pursuance of the said letter, the Government Pleader on 17-8-2000 addressed a letter to the Secretary to the Government, Revenue (Assignments-IV) Department, while enclosing a copy of the G.O.Ms. No. 378, Revenue Department, dated 3-6-2000, and mentioned that the said copy has been furnished by the petitioner's counsel and in view of the orders issued by the Government in the said G.O.Ms. No. 378, dated 3-6-2000 there is no need to proceed with the appeal. Therefore, he requested the Secretary to inform about the G.O. and to take further steps in the Writ Appeal and requested to treat the said letter as specially urgent. It is not known as to when this letter was dispatched or whether it was given to the petitioner's counsel. But it was received in the Secretariat on 18-8-2000. A note was prepared on the said letter mentioning that the Government Pleader opined that there is no need to proceed with the appeal in the light of the orders issued by the Government. The note further discloses that the Government have taken a decision to implement the orders in G.O.Ms. No. 492,dated 25-5-1994 as per the Judgment of the High Court in W.P. No. 2097 of 1997 and the Government have filed W.A. No. 1626 of 1998 before the High Court of Andhra Pradesh and the same is pending. In the meanwhile the Government have taken a decision to implement the Court Judgment and issued orders accordingly. On the same day, this note was circulated to all the concerned, seeking whether the Government Pleader has to be instructed to withdraw the Writ Appeal. The Deputy Secretary to Government, Revenue Department made the following endorsement on the note:-
"In view of the orders passed in paragraph-67 at pre-page in closed File No. 70775/Assignments-IV (2)/94, the writ appeal filed by the Government may be withdrawn as we have issued G.O.Ms. No. 378, dated 3-6-2000 to implement the orders issued by the Government in G.O.Ms. No. 492, dated 25-5-1994."
45. This was signed by the Principal Secretary to Government, Revenue Department, without any further comment and a Memo was issued to the Government Pleader instructing to withdraw the appeal. On the same day, the note was circulated and the Memo was also prepared. The matter was not so urgent as indicated by the Government Pleader in his letter. The bureaucracy normally takes its own time in processing the letter and in obtaining the orders. But astonishingly the letter directly went to the concerned and everything was made ready on the same day. The file does not disclose, whether the Memo was delivered to the petitioner or his Counsel? The Secretary to Government passed the order on the basis of the G.O.Ms. No. 378, dated 3-6-2000.
46. Before issuing G.O.Ms. No. 378, dated 3-6-2000, a note was prepared in the Office of the Secretary for Revenue, which is as follows:
Late Ramakrishna Rao was a freedom fighter and was a "Savoy Jamadar" of an extent of Ac.4.17 cents classified as tank poramboke in Sy. No. 329 of Avilala village and he was in continuous possession of the land from 1974 till it was resumed by the Tahsildar, Chandragiri in 1982. After the death of the freedom fighter, his son Sri Bheemesh Nanda as the legal heir of late Dr. Ramakrishna Rao had requested to alienate the land to him, but the Revenue authorities have declined to consider his request. The Minister for Revenue examined the matter and directed the Collector to grant assignment of land after verifying the eligibility of the petitioner. The Collector did not heed to the Government Orders. The High Court categorically turned down the actions of the Revenue authorities and directed the Collector to implement the orders of the Government for assignment of the land to the petitioner. After the Judgment of the High Court, the Collector approached the Commissioner of Land Revenue to recommend for cancellation of the orders of the Government, stating that it is a prime land and useful for public purpose. It may not be possible to cancel the orders of the Government as requested by the Collector, as it may amount to embarrassment to the orders of the High Court of Andhra Pradesh. It is also difficult to insist upon the Collector to implement the Government orders keeping in view the restrictions imposed by the High Court in respect of tank bed lands. As the disputed land is classified as tank poramboke, in case the Collector does not implement the orders, it may amount to contempt of the Court.
47. Page-17 of the note reads thus:
The Government in its G.O.Ms. No. 492, dated 25-5-1994 stated that the petitioner's father was granted Eksal patta lease way back in 1974 itself and continued to be in possession of the same till the Revenue authorities cancelled the patta.
48. This note does not record the reasons mentioned by the Collector and it was not mentioned that they are not tenable. This is definitely a misleading note, which is nothing but playing fraud against the concerned authority. It is an indication that the Government machinery also joined hands with the petitioner in playing fraud.
49. On the basis of the above note, the Secretary to Government, Revenue Department passed the following order:-
"In view of the facts and circumstances of the case, Collector may be requested to take action to implement the orders issued in G.O.Ms. No. 492, dated 25-5-1994 as the land had been granted on Eksal Lease in 1974 to the father of the petitioner who was a freedom fighter belonging to Scheduled Caste."
50. Though it is an undisputed fact that it was the petitioner who was granted Eksal Lease in 1974, the Revenue Secretariat apparently misled the Secretary by putting up a note as indicated above, mentioning that the petitioner's father was granted Eksal Lease by treating him as a political sufferer. The Secretary, Revenue Department was lead away with the note prepared in his office, which is a misleading note, which weighed with the Secretary as well as the concerned Minister to approve the note. Had the concerned Section brought the real facts to the notice of the Secretary, Revenue and the concerned Minister, the position might have been different and they would have passed a different order. The petitioner was always trying to project himself as the son of a freedom fighter irrespective of his employment and other financial status since prior to the recognition of his father as a freedom fighter and was trying to project that his father was granted Eksal lease in respect of the schedule land to give an impression to the concerned authorities that he is eligible to get the assignment of the land.
51. Subsequent to the issuance of G.O.Ms. No. 378, dated 3-6-2000 and after withdrawal of the writ appeal, the Collector addressed a detailed letter to the Secretary to Government, Revenue Department, requesting to consider for withdrawal of G.O.Ms. No. 492, dated 25-5-1994. The Office note relating to the said letter reads as follows:-
"Government had issued orders twice for assigning a piece of land to the petitioner who is the son of the freedom fighter. Law Department has opined that there is no option except to implement the orders of the High Court and the land can be assigned for agricultural purpose only incorporating the condition that in case the land is not used for the purpose for which it is assigned and if any of the conditions of assignment is violated, the Collector will take necessary action to cancel the assignment. We may, therefore, request the Collector to implement the orders of the High Court which have become final as the appeal filed by the Collector in the High Court was withdrawn by the Government, duly incorporating the conditions as advised by the Law Department."
52. This Office note was signed by the concerned Minister and later the following order was passed by the Hon'ble Chief Minister, Government of Andhra Pradesh, on 10-12-2001.
"A.G. may be requested to appear in this case. Writ Appeal may be revived or a suitable petition may be filed in the Court. Suitable steps may be taken to protect this land. The land proposed is in the Municipal area and suitable for housing, but not for agriculture. If necessary, agricultural land in rural area will be allotted to the applicant for agricultural purpose."
53. This order clearly indicates the mind of the Government to further pursue the matter in the light of the circumstances explained by the Collector.
54. The petitioner was making everybody to believe that he was requesting for assignment of the land for agricultural purpose. He himself conceded that there was no water in the tank, that many colonies have come up around the land, that it is in the middle of the township and there are colleges, temple and colonies abutting the land. But he was always trying to give an impression that he would cultivate the land after the assignment. The petitioner having sold a part of the disputed land to 13 persons at the rate of 4 cents has no case to demand the Government to treat him as a poor man and to assign the land to him. The above circumstances are clearly indicating that there was so much communication gap between the State Secretariat and the Collector and there were elements in the Secretariat to provide distorted version to favour the petitioner. These elements tried to project that the land was leased to Dr. Ramakrishna Rao and the Secretariat has gone a further step by describing Late Ramakrishna Rao as a Savoy Jamadar.
55. In the light of the above circumstances, there is every justification to invoke the powers under Article 226 of the Constitution of India not only to prevent the petitioner from violating the law to meet his personal ends, but also to protect the public property from the clutches of the petitioner.
Maintainability of Writ of Mandamus:
56. The petitioner has no statutory right to get assignment of the disputed land, therefore, the petitioner is not entitled for a writ of Mandamus compelling the authorities to assign the land. It is the discretion of the authorities to consider the merits. The Supreme Court considered the scope for issuing of writ of Mandamus in several judgments.
57. In State of M. P. v. G.C. Mandawar, the Supreme Court while dealing with a matter relating to claim for Dearness Allowance by Government servants seeking Writ of Mandamus under Article 226 of the Constitution of India at paragraph 5 of the judgment held that the writ of Mandamus can be granted only when there is in the applicant a right to compel the performance of some duty cast on the opponent. Rule 44 of the Fundamental Rules confers no right on the Government servants to the grant of dearness allowance; it imposes no duty on the State to grant it. It merely confers a power on the State to grant compassionate allowance at its own discretion. No mandamus can, therefore, issue to compel the exercise of such a power. Nor, indeed, could any other writ or direction be issued in respect of it, as there is no right in the applicant, which is capable of being protected or enforced.
58. In Shivendra Bahadur v. Nalanda College, the Supreme Court while dealing with an appeal against the order in a writ of Mandamus filed under Article 226 of the Constitution regarding the appointment of teachers under University of Bihar Act, 1951 held that according to the Statutes all appointments of teachers and staff have to be made by the Governing Body and no person can be appointed, removed or demoted except in accordance with Rules, but where the petitioner has not shown that he has any right entitling him to get an order for appointment or reinstatement, he cannot come to Court and ask for a writ to issue against the governing body without any legal right to enforce the performance of the alleged duty. In order that mandamus may issue to compel the respondents to do something it must be shown that the statutes impose a legal duty and the appellant has a legal right under the statutes to enforce its performance.
59. In State of Assam v. Ajit Kumar Sarma, the Supreme Court while dealing with the rights of an employee under Assam Aided College Employees Rules, 1960 in a writ of mandamus filed under Article 226 of the Constitution of India held that the executive instructions confer no right of any kind on teachers and they cannot apply to the High Court for a mandamus seeking for enforcement of the Rules.
60. In Union of India v. Orient Enterprises, the Supreme Court while dealing with a matter relating to payment of interest on delayed refund under Customs Act through a writ of mandamus under Article 226 of the Constitution held that there was no statutory right entitling the respondents for payment of interest on delayed refund and the writ petition filed by the respondents was not for the enforcement of a legal right available to them under any statute. The claim for interest was in the nature of compensation for wrongful retention by the appellants of money that was collected from the respondents by way of customs duty, redemption fine and penalty. A writ petition seeking the relief of payment of interest on delayed refund of the amount so collected could not be maintained.
61. The above legal position makes it clear that unless there is a right vested in the petitioner to compel the respondent to perform such duty, he is not entitled for a writ of Mandamus.
Direction to do in a particular manner:
62. Whenever there is a discretion vested on the assigning authority, the Court can direct the authority to exercise the discretion according to law, but cannot direct to exercise in a particular manner. The Supreme Court expressed it in clear terms.
63. In U.P.S.R.T.C. v. Mohd. Ismail, the Supreme Court while dealing with the matter relating to retrenchment of drivers under U. P. State Road Transport Corporation Employees (other than Officers) Service Regulations, 1981 held that the Court cannot direct the authority, on which a statutory discretion is vested, to exercise the discretion in a particular manner not expressly required by law. The Court can only command the statutory authority by a writ of mandamus to perform its duty by exercising the discretion according to law.
64. In Sher Singh v. Union of India, the Supreme Court while dealing with a matter relating to Library staff of Delhi University on the point of equal pay for equal work held that normally the Courts will not dictate decision on the statutory authority in exercise of its discretion and formulation of policies. The Court will not direct the statutory authority to exercise the discretion in a particular manner not expressly required by law. The Court can only command the statutory authority by a writ of mandamus to perform its duty by exercising the discretion according to law.
65. In State of Haryana v. Naresh Kumar Bali, the Supreme Court while dealing with the matter regarding compassionate appointment in a writ of mandamus under Article 226 of the Constitution held that the High Court can only direct consideration of the writ petitioner's claim to compassionate appointment in accordance with the rules. It cannot itself direct the appointment and it is no part of the Court's duty to exercise the power of the authorities itself. The exercise of the extra-ordinary jurisdiction constitutionally conferred on the Apex Court under Article 142 (1) of the Constitution can be of no guidance on the scope of Article 226. The Supreme Court further held that the High Court could have merely directed consideration of the claim of the respondent in accordance with the rules, it cannot direct appointment. Such a direction does not fall within the scope of mandamus.
Power to recall the order:
66. The Government directed the Government pleader to withdraw the appeal on the basis of misleading notes prepared by the lower rung of officers, therefore, it cannot be said that the withdrawal memo was filed consciously after considering the true facts.
67. Unless the Courts give absolute freedom to the concerned authorities to exercise their discretion without fear or favour, there is every likelihood of the public properties going into the hands of the persons like the petitioner and the trust reposed by the people on the concerned officers is likely to be breached. The concerned Mandal Revenue Officer is the Assigning Authority. He is the officer in the field and he is the best person to assess whether the petitioner is eligible for such assignment? Whether the land is free from any legal obstacles for the purpose of assignment? and he is the best person to impose the necessary conditions at the time of granting the assignment. From the beginning the Mandal Revenue Officer and the Collector have been crying to their highest pitch that this is not a fit case where the petitioner can be granted assignment. But unfortunately the Government' as a big Boss, which is supposed to sit on revision over the orders of the Collector, started directly interfering in the matter and instructed the Government Pleader to withdraw the appeal without taking the opinion of the Collector or the concerned Assigning Authority. The continuous protest made by the Collectors in succession is a clear indication that this is a case where the Government as well as the Court has to take a serious note of their anxiety in protecting the land and to prevent the petitioner from selling away the land on the pretext of assignment.
68. In the foregoing discussion we have observed that the petitioner with the connivance of lower rung of officers of Government played fraud in obtaining earlier orders and withdrawal of appeal, therefore, this Court can exercise its inherent power under Section 151 C.P.C. to recall its order.
69. In Indian Bank v. M/s.Satyam Fibres (India) Pvt. Ltd., the Supreme Court held that 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 of 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, especially of superior jurisdiction. These powers spring not from legislation but from the nature and the construction 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. The Supreme Court further observed that since fraud affects the solemnity, regularly and orderliness of the proceedings of the Court and also amounts to an abuse of the process of Court, the Courts have been held to have inherent power to set aside an order obtained by fraud practiced upon that Court. Similarly, where a party misleads the Court or the Court itself commits a mistake, which prejudices a party, the Court has the inherent power to recall its order.
70. In Smith v. East Elloe Rural District Council, 1956 AC 736 the House of Lords held that the effect of fraud would normally be to vitiate any act or order.
71. In another case, Lazarus Estate Ltd. v. Beasley, (1956) 1 QB 702 at 712 Denning LJ said:
No judgment of a Court, no order of a Minister, can be allowed to stand if it has been obtained by fraud. Fraud unravels everything.
72. The petitioner suppressed certain material facts in the affidavit filed in support of the writ petition regarding the assignment of lands in favour of his father by the Government to an extent of 14 acres and odd. He also suppressed the fact that while the Eksal lease was in force he sold away part of the disputed land to 13 persons under registered sale-deeds. He also suppressed the fact that he is gainfully employed, that he is in a good position in a bank and he also went to the extent of getting the land by using the name of his father.
73. The following are some of the instances of misrepresentation and fraud perpetrated by the petitioner against the state to seek assignment without eligibility:
(i) The petitioner suppressed the fact that his father was a Gazetted Officer by the date of granting of lease in favour of the petitioner;
(ii) He misrepresented throughout that the lease was not cancelled till the date of filing the writ petition, though it was cancelled in the year 1982;
(iii) In the affidavit filed in W.P. No. 27800 of 1995 the petitioner mentioned that the land was assigned to his father and after the death of his father he continued to be in possession of the land;
(iv) He described TUDA as a trespasser knowing fully well that the District Collector entrusted the land for protection and maintenance;
(v) He suppressed the fact that he is an employee in Andhra Bank and described himself as a landless poor to gain sympathy from the Government;
(vi) He suppressed the fact that he sold away a portion of the disputed land to 13 persons through Registered Sale Deeds in violation of conditions of lease;
(vii) He prejudiced the court by mentioning that the Government is trying to assign the said land to others for House-sites.
(viii) He misrepresented in the writ petition that he brought the land under cultivation by incurring considerable expenditure, though the revenue record discloses that he never raised any crop and kept the land fallow.
(ix) He misrepresented the Court and obtained orders by stating that he continues to be in possession of the property, though he was dispossessed from the land in the year 1982 after cancellation of Eksal lease.
(x) He did not bring to the notice of the Court that his father sold away so much land assigned to his wife and others by converting the same into house-sites.
(xi) He did not bring to the notice of the Court that he was offered alternative land for assignment under Board Standing Order No. 15 for the purpose of cultivation.
(xii) He also failed to bring to the notice of the Court that the land is not fit for cultivation due to the development of the area as a residential locality due to construction of buildings around the land.
(xiii) He suppressed the fact that the lands assigned in favour of his father and mother were cancelled on the ground that they sold away the lands by converting them into house-sites.
(xiv) He suppressed the fact that the land in Tirupathi Rural Mandal, including the disputed land was prohibited for assignment through the proceedings of the R.D.O. dated 17-8-1987 and the Government of A.P. vide Memo dated 17-12-1988 also prohibited assignment of the land until further orders in 20 Mandals, including the Mandal in which the disputed land is situated.
(xv) He suppressed the fact that an entry was made by the R.D.O. on 17-8-1987 in the prohibitory order book prohibiting the land in question for assignment.
74. The following are some of the instances of the officials of the Secretariat misrepresenting and perpetrating the fraud against the State to help the petitioner in getting the assignment without eligibility:
(i) Described in the office note that the father of the petitioner was the lessee and sevoi-jamadar;
(ii) described the father of the petitioner as a freedom fighter even before he was recognized by the Government of India in the year 1989;
(iii) mentioned in the note that the father of the petitioner was granted Eksal lease, that he enjoyed during his lifetime and that after the death of his father the petitioner came into possession of the same;
(iv) intentionally suppressed the factum of pendency of the Writ Appeal No. 1626 of 1998 in the High Court and the order of status quo pending disposal of the Writ Appeal, with a view to bring pressure on the Secretary to approve the note on the pretext of contempt of Court;
(v) when the secretary pointed out in the file about the pendency of the Writ Appeal, the officer who prepared the note avoided to answer the same and deviated the subject to other aspects to secure the G.O. Ms. No. 378 dt. 3.6.2000. by playing fraud on the State.
75. In S.P. Chengalvaraya Naidu v. Jagannath, the Supreme Court held as follows:
>7. ... 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 whose case is based on falsehood, has no right to approach the court. He can be summarily thrown out at any stage of the litigation. ...
76. The learned counsel for the respondent submitted that the respondent did not add the Tirupathi Urban Development Authority (TUDA) as a party to the writ petition since TUDA has no subsisting interest in the property as on the date of filing the writ petition. The respondent who felt that there is no necessity to add TUDA as a party to the writ petition, did not explain as how he failed to notice the necessity of filing a suit against TUDA when there was no subsisting interest to the TUDA over the property. The respondent herein knowing fully well that the Collector passed orders entrusting the land to TUDA suppressed the said fact and approached the Civil Court describing TUDA as an authority trying to trespass into the land. We have observed in another part of the judgment that the writ petitioner ran parallel proceedings to take advantage of the one in which he gets favourable orders.
77. In Katuri Mahalaxmamma v. Special Commissioner of Land Revenue, 2002 Suppl. (1) ALD 273 (DB) a Division Bench of the A.P. High Court while considering the Board Standing Order No. 15, Paragraph 4(ii) held that the assignment of tank poramboke land is illegal and the Tahsildar has no jurisdiction to assign tank bed lands to any person. Cancellation of such assignment after lapse of considerable time is also valid.
78. In the case on hand, since the disputed land is a tank poramboke, as per the revenue records, it cannot be assigned to anybody, therefore, the Collector was right in intimating the writ petitioner that the land cannot be assigned to him under the Board Standing Orders.
79. In the light of the above circumstances we find sufficient grounds to recall the order of this Court passed in W.A. No. 1626 of 1998, dated 5-9-2000 and restore the writ appeal to its file. As we have already heard the appeal on merits, we dispose of the appeal also. We do not find any merits in the order of the learned Single Judge, therefore, we are inclined to allow the appeal. Point Nos.1 and 2 are answered accordingly.
Point Nos.3 and 4 :
W.A. No. 1710 of 2002 :
80. This appeal is preferred by TUDA expressing its grievance in deciding the writ petition behind its back. The petitioner filed W.P. No. 2097 of 1997 against the Government of Andhra Pradesh. This appellant was now shown as respondent in the writ petition. The learned single Judge in his order dated 13-11-1997 passed the following order:
The very fact that the Collector decided to alienate the land in favour of the Vice-Chairman, TUDA clearly shows that the land can be assigned and therefore, prohibition for such assignment as per the proceedings of the Revenue Divisional Officer, dated 17-8-1987 has no force and the writ petition is allowed by setting aside the assignment made by the Collector in his proceedings in Roc. No. B1/2037/97, dated 30-1-1997 in favour of the Vice-Chairman, TUDA."
81. The Tirupati Urban Development Authority (TUDA), a Statutory Body comes under the definition of the State under Article 12 of the Constitution of India. Entrusting the land to a Government concern is different from assignment of the land in favour of a private individual. The assignment of land in favour of TUDA is for the public purpose for development of the land and to protect the same from the clutches of private land grabbers. Unfortunately the learned single Judge compared the entrustment of the land in favour of TUDA with that of the assignment in favour of the petitioner and the learned Single Judge treated the entrustment of the land to the TUDA as a clearance for assignment of lands to private individuals, despite the prohibitory order issued by the Revenue Divisional Officer on 17-8-1987. The learned Single Judge ought not have made any observation regarding the entrustment of the land to TUDA in its absence, which is against the principles of natural justice and the Constitutional mandate.
82. In the light of the illegality pointed out in the impugned order, we condone the delay in preferring the appeal and as the above mentioned order was passed by the learned Single Judge without TUDA being a party to the proceedings and as TUDA is a proper and necessary party we are inclined to set aside the judgment dated 13-11-1997 in W.P. No. 2097 of 1997. Point Nos.3 and 4 are answered accordingly.
83. Before parting with the judgment, we are constrained to record our distress at the manner in which the Revenue Secretariat has functioned in this case.
84. The district administration, in particular successive District Collectors, have assiduously and with commitment and concern to safeguard this valuable public property are seen to have been pointing out to the secretariat:
a) that the land in question being a tank poramboke cannot be assigned;
b) that the petitioner has been selling the assigned land contrary to the terms of assignment
c) that the land in question is urban land situate as part of Tirupathi Town, buildings have come up all around the land, land is therefore unfit for cultivation purposes and having regard to its strategic location, the land is needed for development for community purposes in the control of the agencies of the State for public benefit.
85. Despite this consistent sensitization of the relevant facts to the Revenue Secretariat, the Secretariat in total abdication of its fiduciary responsibility and obligation to safeguard valuable public property has chosen to turn a nelson's eye to all the relevant facts and as instead ridden rough shod on the district administration, disregarded its objections and without any rational reasons recorded, issued G.O.Ms. No 378 dt.3-6-2000. This assignment was made despite the fact that the judgment of the learned single judge, in W.P. No. 2097 of 1997 dated 13-11-1997 was in fact in eclipse on account of the status quo dated 16-10-1998 granted in W.A. No. 1626 of 1998 there was thus no occasion for the unholy haste to issue the order of assignment by way of G.O. Ms. No 378 dated 3-6-2000.
86. Another distressing factor worth recording is that when the District administration took the initiative to file W.A. No. 1626 of 1998, the secretariat by D.O. letter dated 16-12-1999 called upon the District collector, Chittor, to furnish the information inter alia the authority under which the writ appeal was filed. This D.O. letter permits the inference that the Secretariat was not in favour of the Appeal having been filed. This conduct of Secretariat in our considered view constitutes a structural failure of the administration at the highest echelons in the State-Secretariat.
87. We hope and trust that these critical fault lines in the state administration at the level of Revenue Secretariat in respect of the case on hand will receive serious attention by the Chief Secretary to the State of A.P. in a proper and regular enquiry initiated to ascertain how, at what level and for what reasons the administrative failure had occurred and what measures are necessary to avoid a recurrence of such malignancy in future.
Result:
88. In the result, W.A.M.P. No. 2021 of 2002 in W.A. No. 1626 of 1998 is allowed. The order passed in W.A. No. 1626 of 1998 on 5-9-2000 dismissing the appeal as withdrawn is re-called. W.A. No. 1626 of 1998 is allowed. The order of the learned Single Judge dated 13-11-1997 passed in W.P. No. 2097 of 1997 is set aside. It is declared that in the light of the disqualifications pointed out by the Collector, the petitioner is not eligible for getting assignment of the schedule land. The Collector shall evict the petitioner forthwith, if he continues to be in possession of the land.
89. W.A. No. 1710 of 2002 is also allowed by setting aside the order of the learned Single Judge dated 13-11-1997 passed in W.P. No. 2097 of 1997 in all respects.