THE HON’BLE MR JUSTICE L. NARASIMHA REDDY + W.P.Nos. 2412 & 7715 of 2009 COMMON JUDGMENT: % 28-04-2009 Between: Singireddy Narasimha Reddy and another …Petitioners And Govt. of A.P. rep. By its Principal Secretary, Revenue (Urban Land Ceiling) Department, Secretariat, Hyderabad and others …Respondents ! Counsel for Petitioners : Sri P. Chandrasekhara Reddy &, Sri M.V. Durga Prasad ^ Counsel for Respondents : G.P for Assignments < Gist: > Head Note: ? CITATIONS: AIR 1937 Nagpur 105 THE HON’BLE MR JUSTICE L. NARASIMHA REDDY Writ Petition Nos.2412 & 7715 of 2009 COMMON JUDGMENT: Both the writ petitions are filed challenging the same proceedings, and the petitioners in them are brothers. The respondents 1 and 2 are common in the writ petitions. Hence, they are disposed of through a common judgment. For the sake of convenience, the parties are referred to, as arrayed in W.P.No.2412 of 2009; and the petitioner in W.P.No.7715 of 2009 is hereafter addressed as 2nd petitioner. Singireddi Sathi Reddy owned Ac.43.15 guntas of land in different survey numbers of Nadargul Village, Saroornagar Mandal, Ranga Reddy District. The village is within the Hyderabad Urban Agglomeration, as defined under Urban Land (Ceiling and Regulation) Act, 1976 (for short ‘the Act’). Sathi Reddy died before the Act came into force. His property devolved upon his wife, Nagamma, and his two sons, the petitioners herein, in equal shares. The petitioners and their mother filed separate declarations before the Special Officer and Competent Authority, the 2nd respondent, under Section 6 of the Act. An order under Section 8(4) of the Act was passed on 29-09-1994. It was held that the declarants are entitled to retain an extent of 1,000 sq. meters each, under Section 4(1)(b), and 20,234.3 sq.meters each, as per G.O.Ms.No.733, dated 31-08-1988. They were required to surrender 2642.56 sq. meters each. The 2nd petitioner alone preferred an appeal before the Appellate Authority against the order under Section 8(4) of the Act. The 1st petitioner and their mother did not file any appeal. The petitioners did not receive any communication from the respondents, till the Act was repealed in the State with effect from 27-03-2008. On finding that the officials of the Government were visiting the land in Sy.No.65, they made enquiries. It was revealed that the 2nd respondent issued revised orders under Section 8(4) of the Act, on 31- 01-2008, holding that the three declarants are liable to surrender an extent of 55,521 sq.meters, each. A notification under Section 10(1) of the Act was issued on 08-02-2008, and declaration under Section 10(3) was issued on 23-02-2008. This was followed by a notice dated 05-03-2008, under Section 10(5) of the Act said to have been served on 07-03-2008, the possession is said to have taken on 25-03-2008, by conducting panchanama, on the ground that the petitioners did not surrender the land within the stipulated time. The petitioners submit that there are several inconsistencies and irregularities in the entire proceedings and that the respondents 1 and 2 have acted in haste, with the sole object of taking away the lands of the petitioners, knowing fully well that the Act is going to be repealed in the State. They contend that in his anxiety to take possession of the land, the 3rd respondent had committed a blatant violation of Section 10(6) of the Act. On behalf of the respondents, counter-affidavits are filed. It is stated that though an order was passed under Section 8(4) of the Act, on 29-09-1994, the proceedings were re-opened by the Government, in exercise of power under Section 34 of the Act, and thereafter revised orders under Section 8(4) were passed in accordance with law. It is stated that further steps contemplated under Section 10 were initiated, and the possession of the land was taken by the Government. The allegations as to factual inaccuracy or violation of provisions of law are denied. Heard Sri P. Chandrasekhara Reddy, and Sri M.V. Durga Prasad, learned counsel for the petitioners, and learned Government Pleader for Assignments. The petitioners and their mother filed declarations under Section 6 of the Act, in respect of the lands held by them. Common order under Section 8(4) of the Act was passed on 29-09-1994. Each of the declarants were required to surrender an extent of 26,425 sq.meters. However, the matter did not progress further, till March, 2007, except that the appeal preferred by the 2nd petitioner was pending. Though the respondents state that various steps under Section 10 of the Act were taken, in pursuance of the order dated 29- 09-1994, the petitioners were not dispossessed from the land held by them. The 2nd respondent addressed letter dated 13-03-2007, to the 1st respondent stating that M/s Srinivasa and Company filed a representation dated 08-02-2007, stating that it purchased the land from the petitioners and their mother, and on verification of pahanies for the years 1975-76, it was found that lands in Sy.Nos.144 and 145 were not mentioned in the declaration. On this basis, he sought permission under Section 34 of the Act, to revise the orders passed under Section 8(4), dated 29-09-1994. The 1st respondent did not issue any notice to the petitioners, and straightaway had set aside the order dated 29-09-1994, through their memo dated 26-06-2007, and permitted the 2nd respondent to pass orders under Section 8(4) of the Act, afresh. On the face of it, the said memo is untenable in law. The manner in which power under Section 34 was exercised is objectionable. The provision reads as under: “Sec.34: Revision by State Government:-- The State Government may, on its own motion, call for and examine the records of any order passed or proceeding taken under the provisions of this Act and against which no appeal has been preferred under section 12 or section 30 or section 33 for the purpose of satisfying itself as to the legality of propriety of such order or as to the regularity of such procedure and pass such order with respect thereto as it may think fit: Provided that no such order shall be made except after giving the person affected a reasonable opportunity of being heard in the matter”. It is, mainly with a view to protect the interests of the State, that suo motu powers are conferred on certain authorities. We do not come across such provisions in the statutes, which deal with the disputes between private individuals, pure and simple. The basis for such conferment is that, if the interests of the State suffer any prejudice, in the course of implementation of the provisions of the relevant enactment, a mechanism is to be provided, to rectify the same. A mechanism is provided in such cases, in the form of suo motu revisions. Depending upon the subject-matter of the concerned enactment, the nature and extent of suo motu powers vary from one another. Suo motu powers can be exercised by an authority on its own accord, or on an application filed by any interested person. For instance, Section 9 of the A.P. Rights in Land and Pattadar Pass Books Act, 1971 (for short ‘the ROR Act’) provides for exercise of revisional powers by the Joint Collector, either on his own accord, or on an application made to him against any order passed by the recording authority. The provision reads as under: “Sec.9: Revision:- The Collector may either suo motu or on an application made to him, call for and examine the record of 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 any decision taken, order passed or proceedings made in respect thereof and if it appears to the Collector that any such decision, order or proceedings should be modified, annulled or reversed or remitted for reconsideration, he may pass orders accordingly: Provided that no such order adversely affecting any person shall be passed under this section unless he had an opportunity of making a representation”. In contrast, under certain other enactments, such powers can be exercised by an authority exclusively, on its own motion. Section 34 of the Act, which has been extracted in previous paragraphs, provides an example of this nature. The expression “on its own motion”, has a special significance. In the legal parlance, the word “motion” connotes, submission of an application by one of the parties to a cause, with a specific request. In ‘Law Lexicon’ by P. Ramanatha Aiyar, the following commentary is offered: “A motion in practice means an application to court by one of the parties to a cause, or his counsel, in order to obtain some rule or order of court which he deems to be necessary in the progress of the cause, or to get relieved in a summary manner from some matter which would work injustice”. Understood in this context, the expression, “on its own motion”, employed in Section 34 of the Act, connotes that it is the State Government, that has to act upon its own accord, without there being any application by the third parties. Existence of an application, or proposal, or request by anyone, for exercise of powers under the provisions of this nature, would, in fact, be an antithesis. In the instant case, it is a matter of record, that it did not occur to the 1st respondent to revise the orders dated 29-09-1994 passed by the 2nd respondent, till the latter came forward with a proposal to revise the same, in exercise of power under Section 34 of the Act. There is another angle from which, the issue can be examined. Suo motu powers, pure and simple, i.e., when they are required to be exercised by the authority, on its own motion, partake inquisitorial character. The concerned authority out of his volition, and not prompted by an application or petition, would bestow his attention to verify, as to whether any illegality has crept in to the proceedings, under revision. There is hardly any room for an adversary, to take part in it. The person, who is prone to suffer the detriment, on account of the proposed revision, has to be given an opportunity of being heard. Where, however, powers of this nature can be exercised at the instance of an aggrieved party also, as in the case of revision, under Section 9 of the ROR Act, or Section 166-B of A.P. (Telangana Area) Land Revenue Act, there is a possibility for existence of two parties, opposed to each other, before the authority. In such cases, the proceedings may assume adversarial character. In either case, the authority, whose order is the subject-matter of revision, cannot be expected to play any active role. At the most, he has to support his order, whenever his comments are called for, except where allegations of fraud, collusion and the like, exist. One cannot imagine the instances where, the very authority, which passed an order, in exercise of statutory power, approaches a superior authority vested with suo motu powers, with a request to set aside its own order. This may lead to a situation, where an adjudicator, at one stage of the proceedings, would assume the role of an adversary, at a later stage. That must be the last thing, which can happen in the very concept of adjudication, irrespective of the system. It is relevant to note that the 2nd respondent, who passed order under Section 8(4) on 29-09-1994, himself wanted that to be set aside. The 1st respondent acceded to the request and has set aside that order through memo dated 26-06-2007. The relevant paragraph of the memo reads as under: “The Special Officer & Competent Authority, Urban Land Ceiling, Hyderabad has further stated that as it has come to the notice that Sri Singireddy Sathi Reddy was also holding the lands in Sy.Nos.144 & 145 of Balapur (vg), which were not taken to computation there is every necessity to revise the total holdings of Smt.S.Nagamma W/o.Sathi Reddy and two of her sons and pass revised orders, since these Sy.Nos.were concealed by the declarants knowingly, action U/s 18 of the ULC Act, can also be initiated against the declarants. Therefore, the Special Officer & Competent Authority, ULC., Hyderabad has sought permission U/s 34 of the Act to revise the final order U/s.8(4) of the Act issued on 29-9-94”. The underlined portion gives an impression that the 2nd respondent in exercising the powers of revision, but wanted permission of the 1st respondent for that purpose. It presents a case, either of non- application of mind or of surrender of statutory power by the 1st respondent, in favour of the 2nd respondent. Further, even where the 1st respondent chooses to exercise the power under Section 34 of the Act, the fundamental and basic requirement is that the affected parties must be put on notice. The reason is that with the passing of an order under the provisions of the Act, valuable rights accrue to the concerned persons. The rights that have so accrued can be taken away, only after affording an opportunity of being heard. Apart from being a requirement under principles of natural justice, proviso to Section 34 makes issuance of the notice, obligatory. However, the 1st respondent flouted such a vital requirement and issued the memo without show cause notice. Another important aspect is about limitation. Section 34 of the Act does not prescribe any limitation. In fact, provisions of this nature do not contain any stipulation in this regard. However, the settled principle is that, suo motu powers, particularly when they have the effect of defeating the rights, that have accrued to the parties, must be exercised in a reasonable time, and courts would intervene whenever any attempt is made, to unsettle the things, long after they became final. Here again, existence of allegation of fraud and misrepresentation would make substantial difference. It is relevant to mention that in his order dated 29-09-1994, the 2nd respondent permitted each of the petitioners to retain substantial area, be it under Section 4 of the Act, or G.O.Ms.No.733. Several transactions have taken place thereafter. 13 years later, respondents 1 and 2 have set aside the order dated 29-09-1994, without issuing any notice. There are no allegations of fraud. An altogether different scenario was brought into existence through various proceedings, without any information or notice to the petitioners. Assuming that there existed valid basis for the 2nd respondent to pass orders afresh, under Section 8(4) of the Act, anyone, who has basic knowledge about the purport of the Act, not to speak of the principal Authority, viz., Special Officer and Competent Authority, would know that a draft statement under Section 8(1) and a notice under Section 8(3) of the Act must be issued to the declarants, or the holders of the land. He did not choose to do so. Straightaway, he proceeded to pass order under Section 8(4) of the Act. The petitioners obtained the extracts of note file, by filing application under the Right to Information Act, 2005. A perusal of the same discloses that the then Special Officer did not even care to follow the note, put up by the subordinates. The approach of the officers, who held the post of Special Officer and Competent Authority, at the relevant point, has virtually shocked the conscience of this Court. Therefore, they have been required to explain as to why necessary observations be not made, as regards their functioning. They filed affidavits supporting their approach. In his counter-affidavit, the then Special Officer, Syed Omar Jaleel admitted his mistake. He said in his counter-affidavit, as under: “This is a mistake as the file has been processed up to para 13 on 05-02-2008, therefore it could not have been submitted/dated 04-01-2008 for the 8(1) order. Due to clubbing of files of NOC and 6(2) notice to original pattadar, the mistake has possibly crept in the date of 8(1) notice showing it to have been issued on 04-01-2008”. It was he, who mooted the proposal for review under Section 34 of the Act. He was very much aware that an appeal filed by the 2nd petitioner against the order under Section 8(4) of the Act, dated 29-09- 1994 was pending before the appellate authority. Still, he has chosen to approach the 1st respondent with a request to set aside that order, under Section 34. He felt as though he was a rival claimant for the land, and resorted to every possible step, legal or otherwise, to defeat the rights of the petitioners. It is not even denied that an order under Section 8(4) of the Act was passed on 03-01-2008, without issuing draft statement under Section 8(1), or notice under Section 8(3), or any other kind of notice of hearing. Through this order, he required the petitioners and their mother to surrender about 55,000 sq. metres each. The only basis for him to pass the order was, the memo dated 26-06-2007. The curious part of the matter is that he took note of the pendency of the appeal against the order of his office dated 29-09-1994; before the appellate authority. The same officer carried the proceedings up to the stage of issuing notifications under Section 10(3) of the Act. One Sri Seshadri assumed the charge of the office of the 2nd respondent, on 01-03-2008. He took the steps under Sections 10(5) and 10(6) of the Act. A notice dated 05-03-2008 was issued by him. He too tried to compete with his immediate predecessor, in violating the specific provisions of the Act. Section 10(5) of the Act mandates that the declarant must be given 30 days of notice, to deliver possession of the land. The provision reads as under: “Sec.10(5): Where any vacant land is vested in the State Government under sub-section (3), the competent authority may, by notice in writing, order any person who may be in possession of it to surrender or deliver possession thereof to the State Government or to any person duly authorized by the State Government in this behalf within thirty days of the service of the notice”. The Special Officer and Competent Authority has no option, except to stipulate the period of 30 days in this regard. As a matter of fact, the proforma notice itself mentions that the possession must be delivered to the named official within “30 days” from the date of service of the notice. Sri Seshadri, however, has chosen to issue a notice dated 05-03-2008 by striking off the words “30 days”, printed in the notice, and wrote “15 days”, with pen. This itself is a serious illegality and blatant violation of the specific provisions of the Act. The justification pleaded by the officer is contained in para 7 of his counter- affidavit. It reads as under: “Para-7: It is respectfully submitted that the contention of the petitioner in para 8 of the affidavit that the declarant is entitled to minimum of 30 days’ time to deliver possession of the vacant land is not tenable. It is submitted that with the publication of notification under Section 10(3) of the Act, the land stands absolutely vested in the State Government and the words “within 30 days” in Section 10(5) of the Act, indicate the maximum time (not the minimum time) within which the possession of the surplus land is to be made over to the State Government. The Act does not prescribe the minimum time to be afforded to the declarant in this regard. It is submitted that, therefore, in the instant proceedings, the petitioner herein was afforded a period of fifteen days from the date of service of notice to deliver possession of the excess land”. The word “within”, in its etymological sense, may connote some thing, which is inside a prescribed perimeter or periphery. However, when it is used in the context of time, given to an individual, to do, or undo a particular thing, it signifies that the recipient of the notice must take necessary steps before expiry of the stipulated time. It also means that, he is at liberty to do, or undo, even at the last point of time mentioned in the notice. Conversely, the authority or the person, who issues the notice, must desist from taking any action, until the stipulated period expires. It would be naïve to assume that the recipient of a notice, in which any time is stipulated, must act instantly, and the issuer of the notice can swing into action, before the expiry of the time limit, on the plea of default. Anyone, who is conversant with the administration, in any government department, which involves issuance of notices, followed by corresponding actions, would know this as fundamental. Hardly any judicial precedent is needed in this regard. However, reference to one old precedent may add strength to the discussion. I n Dasrulal Bhagchand Lal v. Narayan Mahadeo and others[1], Pollock Justice, observed the words ‘within one month’, as under: “[T]he words “within one month” would be more reasonably interpreted as meaning not beyond one month and therefore the respondent has a right to file cross-objections at any time up to one month after the date of service”. Any other view is prone to defeat the very purpose of granting time to an individual, to do or undo a particular act. Therefore, the approach of the concerned officer, in this regard, is untenable, and contrary to the basic tenets of issuing notice, stipulating any particular time. The notice under Section 10(5) was followed by the one, dated 24-03-2008, under Section 10(6) of the Act. The petitioners obtained a copy of the same by filing an application under the Right to Information Act. According to that, the notice dated 05-03-2008, under Section 10(5) of the Act was served on the petitioners on 07-03-2008. The last paragraph of the notice reads as under: “The (30) days time given in the notice U/s.10(5) of the Act expired on 29-03-2008. But he/she failed to deliver possession before the expiry date. Hence, Sri Rameshwar Rao Enquiry Officer of this office is authorized to take over possession of land in question U/s.10(6) of the Act and hand over the same to Mandal Revenue Officer concerned and report compliance”. The callousness, in this regard is found from the fact that, 30 days was shown to have expired on 29-03-2008. This would not be so, whether one counts it from 05-03-2008 or 07-03-2008. The matter did not stop at that. A panchanama was prepared on 25-03-2008, stating that possession of land to an extent of 1,66,563.48 sq.meters was taken from the petitioners. If, according to the calculation of the respondents, the time stipulated in notice, under Section 10(5) had expired on 29-03-2008, it is ununderstandable as to how the possession could have been taken on 25-03-2008. The matter assumes significance, in view of the fact that the State Assembly passed a resolution to adopt the repealing Act, with effect from 27-03-2008. Obviously because the date 29-03-2008, mentioned in the notice dated 24-03-2008 is well outside the date on which the Act stood repealed in the State of Andhra Pradesh, the panchanama was either antedated, or was prepared before the expiry of stipulated time. The whole exercise smacks of arbitrariness of highest order. Efforts were made only in the direction of grabbing the property of the petitioners by flouting the specific provisions of law. From the above, it emerges that.-- a) Powers were exercised by the 1st respondent, vis- à-vis the order dated 29-09-1994, contrary to the letter and spirit of Section 34 of the Act; b) Memo dated 26-06-2007 was issued in violation of principles of natural justice, and in contravention of proviso to Section 34 of the Act; c) Fresh orders under Section 8(4) of the Act were passed by the 2nd respondent on 03-01-2008, without following the steps, under Sections 8(1) and 8(4) of the Act; d) The notice dated 05-03-2008 issued by the 2nd respondent is contrary to Section 10(5) of