@JUDGMENTTAG-ORDER
L. Narasimha Reddy, J.@mdashThe ancestors of the petitioner purchased an extent of about Ac.33.00 in various surveys numbers in Chirrakunta village of Asifabad Mandal, Adilabad District, some time during 1932. In the family partition, which is said to have taken place in the year 1954-55, about Ac.11.00 of that land fell to the share of the petitioner. In addition to that, he has succeeded to some more extents of land in other survey numbers, from his father and wife, who are said to have purchased the same from the tribals about 40 years ago.
2. Proceedings were initiated by the Special Deputy Collector, Tribal Welfare, Hyderabad, against the petitioner under the provisions of the Andhra Pradesh Scheduled Areas Land Transfer Regulation, 1959 (for short, ''the Regulation'') alleging that transfer of the lands in survey Nos. 248 and 260, admeasuring Ac.22.00 in his favour from the tribals, is illegal. He was required to submit an explanation, as to why, he shall not be ejected from the land. An explanation was accordingly submitted. Through his order, dated 18.05.1982, the authority took the view that the transfer took place much prior to 01.12.1963, the notified date under the Regulation and the proceedings cannot be continued. It was observed that if the entries made in favour of the petitioner or his father, in the revenue records are in any way improper, necessary steps can be initiated under the relevant provisions of law.
3. The first respondent initiated suo motu proceedings u/s 166-B of the A.P (Telangana Area) Land Revenue Act, 1951 (for short, ''the Act'') against the father of the petitioner. A show cause notice, dated 01.02.1985, was issued alleging that the lands in question were held by the tribals and the transfer thereof is contrary to Rule 9(b) and 10 of the A.P. (Telangana Area) Land Revenue Rules, 1951 (for short, ''the Rules''). Explanation was submitted denying the allegations.
4. Through an order, dated 30.05.1988, the second respondent has not only set aside the transfer in favour of the father of the petitioner, but also directed resumption of the land, to the successors of the original tribal-owner. Initially, the father of the petitioner filed W.P. Nos. 8602 and 10101 of 1988 against the said order. The writ petitions were disposed of on 09.02.1994, leaving it open to him to avail the alternative remedy of appeal u/s 158 of the Act. Accordingly, the father of the petitioner availed the remedy of appeal before the first respondent. Since the father died, during the pendency of the appeal, the petitioner came on record. Similarly, on the death of the tribal-owner, their legal representatives were also brought on record. The appellate authority dismissed the appeal, through its order, dated 07.05.1997. Hence, this writ petition.
5. Sri V. Ravi Kiran Rao, the learned Counsel for the petitioner, submits that initiation of suo motu proceedings u/s 166-B of the Act, 30 years after the transfer was effected in favour of the father of the petitioner, is contrary to the letter and spirit of the said provision. He contends that except stating that the transfer was contrary to Rules 9 and 10 of the Act, neither any acts of misrepresentation, nor of fraud, were alleged and that there was absolutely no basis for the second respondent to initiate the proceedings. He further contends that the entries in the revenue records, by themselves, would neither confer title nor take away the same, and respondents 1 and 2 have exceeded their jurisdiction in deciding the question of title, and directing restoration of possession to respondents 5 to 7. Placing reliance on certain decided cases, learned Counsel submits that exercise of suo motu powers at such length of time, cannot be countenanced, even if there existed any legal and factual basis, particularly when no acts of fraud were alleged against the petitioner.
6. The learned Government Pleader for Assignments submits that it is always competent for the second respondent to initiate suo motu proceedings u/s 166-B of the Act, whenever any serious irregularity in the proceedings under the Act and Rules is noticed. He submits that the very fact that the provisions applicable to situations where the original owners died, were invoked, while effecting transfer in favour of father of the petitioner, would justify the exercise of suo motu powers. According to the learned Government Pleader, fraud would vitiate everything and the petitioner cannot derive benefit from his own acts or omissions.
7. Sri P.V. Narayana Rao, the learned Counsel for respondents 5 to 7, apart from reiterating the contentions of the learned Government Pleader, submits that the petitioner and his father have taken advantage of the illiteracy and innocence of tribals and have got transferred vast extents of land, contrary to law. He contends that the petitioner was given adequate opportunity before the impugned order was passed and clear findings were recorded to the effect that the proceedings were vitiated by fraud.
8. The subject matter of the proceedings before respondents 1 and 2 as well as this writ petition is the land in two survey numbers, namely 248 and 260 of Chirrakunta Village, Asifabad Mandal, Adilabad District admeasuring about Ac.22.00. The village is part of scheduled area. Originally, the lands were held by Pendur Ramu, a tribal. In the khasra pahani for the year 1954-55, the paternal uncle of the petitioner, T.Bheemaiah, was shown as pattedar as well as the occupant. In the subsequent years, the name of the petitioner and other family members were shown as occupants.
The son of the original owner Pendur Ramu, by name Pendur Lingu, moved the authority under the Regulation. Thereupon, proceedings were initiated and notice under the relevant provisions was issued to the petitioner and certain others. Explanations were submitted. On a consideration of the matter before him, the Special Deputy Collector passed an order on 18.05.1982 dropping the proceedings. His finding reads as under:
It is very clear from the records that the transfer of the lands took place prior to 01.12.1963. It is not for this Court to go into the question whether the transfer was in conformity with the existing rules and laws of that time. The Hon''ble High Court of Andhra Pradesh in its judgment in W.P. No. 4204 of 1977, dated 21.08.1981 held that the authorities under 3(2) of Land Transfer Regulation 1959 have no power to adjudicate on that aspect. Hence, I order for dropping further action in respect of the suit lands under APSA Land Regulation 1959.
He made an observation to the effect that his order does not preclude the authorities competent to take action under the relevant laws in force as regards the transfer of immovable property from a tribal to non-tribal.
9. Three years later, the Joint Collector, second respondent, issued a show cause notice to the father of petitioner and various others pointing out that the transfer of lands held by tribals in favour of the said persons is contrary to Rules 9 and 10 of the Rules. The recipients to the notice were also directed to show cause as to why the lands shall not be restored to tribals. The preamble of the notice, discloses that the proceedings were initiated on a representation made by one Karpeta Bheemu, the original pattedar of the lands, stating that his lands in survey Nos. 54, 283, 285, 286, 302, 303, 306 and 329 admeasuring about Ac.60.00 of Chirrakunta Village were forcibly occupied by one Siddamshethi Gangaiah. The second respondent, directed the Sub-Collector, Asifabad, the third respondent, to submit a report about the transfer of lands from non-tribals to tribal in the Division. The third respondent, in turn, submitted a report pertaining to all the transfers in his Division, which included the one in respect of survey Nos. 248 and 260 from Pendur Ramu in favour of T.Bheemaiah. The common allegation in all the notices is that while effecting the transfer in the revenue records, the authority concerned observed that the original pattedars to whom the notices were given, were absconding and that though the observation period in this regard was seven years from the date of absconding, the transfers were effected within five years from the date on which the pattedars were allegedly absconding. The paternal uncle of the petitioner, T. Bheemaiah, who received the notice, submitted his explanation. He stated that he purchased the lands and that no illegality has crept into the transaction.
10. The second respondent has taken up the common hearing of all the cases. A common order was passed on 30.05.1988. The preamble of this order shows that the proceedings were initiated u/s 166-B of the Act. After referring to the explanation submitted by the various parties before him, the second respondent took the view that the changes in the revenue records in favour of transferees were proposed on the ground that the whereabouts of the original owners are not known and that they were absconding for more than seven years, whereas in the written explanation submitted by the transferees, it was stated that the lands were purchased. On this basis, he concluded as hereunder:
Thus, it is very clear on the face of the record that the changes were effected fraudulently taking advantage of illiterating of tribals. In the circumstances, I do hereby order and declare that the changes effected in transferring the lands in favour of the respondents as null and void. Further, I do hereby order for making necessary changes in revenue records in favour of the tribals and to restore the lands to the tribals. It is also clear that the then Tahsildar had mischieviously mutated the names and hence action should be initiated against him.
Apart from, he directed restoration of possession of lands to the tribals. It is not in dispute that the second respondent is vested with the power to initiate suo motu proceedings u/s 166-B of the Act. The controversy is about the exercise thereof. In view of the submissions made by the learned Counsel for the parties, this Court is of the view that the following questions arise for consideration:
(a) Whether the initiation of proceedings against the petitioner herein accords with the letter and spirit of Section 166-B of the Act?
(b) Whether there existed any valid basis for the second respondent in recording a finding that the transfer in favour of the petitioner was vitiated by fraud, particularly in the context of the initiation of proceedings nearly 30 years after the entries in the revenue records were made? and
(c) Whether the second respondent is vested with the jurisdiction to decide the question of title in respect of the lands and to direct restoration of possession?
Conferment of suo motu powers on the authorities under an enactment is an exception, than a rule. It is only under the legislations that are intended to protect the interest of the State or vulnerable sections of the society, that such provisions are made. The underlying object is to ensure that an illegality, if committed at any level, be it by the official machinery or any individual, who derives benefit out of it; is not perpetuated by the mere fact that the further remedy against such illegality is not availed of. Situations of this nature would arise either when there is no identified or specific aggrieved party or where such parties, even if exist, do not have the wherewithal, to pursue their remedies. As a sequel to this protective mechanism, exercise of suo motu powers is relieved from the rigor of limitation. The manner in which the Courts have stuck a decent balance between the need to rectify the illegality on the one hand and to protect the rights of the parties that have accrued over the years on the other, would be dealt in subsequent paragraphs.
11. Inasmuch as the exercise of suo motu power would have its own repercussions and the affected party is exposed to the situations, which are somewhat extraordinary in nature, strict compliance with the relevant provisions is insisted. The requirement becomes essential, particularly when the same authority is conferred with the power to adjudicate the matter suo motu as well as at the instance of an aggrieved party. In the latter case, the person against whom the proceedings are initiated would be entitled to insist on compliance with the provisions of the limitation, locus standi, etcetera, whereas in the case of the former, such a facility would be denied to him. Further, the notice through which the proceedings are initiated must be clear as to the nature of the powers to be exercised by the authority viz., whether suo motu simplicitor, or on a representation by an aggrieved party. A note of caution needs to be added here. An authority can exercise suo motu powers on the basis of the information received by it, from any source whatsoever. Where, however, the sole basis for it to act in the matter is a representation by the very aggrieved party and that the said party was entitled in law, to avail the remedy against the alleged illegality, initiation of suo motu proceedings, in such a case, particularly when the remedy for the complaint or the representationist is otherwise barred in law, would certainly become questionable. It must be noted that while suo motu proceedings are inquisitorial in nature, those at the instance of an aggrieved party, are adversarial. The phenomenal distinction that lies between these two categories of proceedings, ranging from existence of cause of action, to resting the burden of proof cannot be blurred in a casual manner.
12. It cannot be gainsaid that the notice through which an authority intends to invoke suo motu powers, must clearly indicate such intention, mention the factual basis and mention the provision of law, under which the powers are invoked. The reason is that if the proceedings are initiated at the instance of an aggrieved party, the recipient of the notice may require the complainant to substantiate his case, than to deliver his defence straight away. On the other hand, if the notice is specific about the suo motu nature of the proceedings, the noticee has to frame his defence in a different manner. In the instant case, though reference is made to Section 166-B in the show cause notice, there is a clear indication to the effect that the sole basis for the proceedings is a representation from one Karpeta Bheemu. The preamble of the show cause notice issued to the petitioner reads as under:
13. Sri Karpeta Bheemu a tribal has represented that he is the owner of lands bearing S. Nos. 302, 303, 306, 283, 285, 286, 54 and 329, measuring (60.00) acres situated at Chirrakunta Village, Asifabad Taluk; that the lands are at present under the occupation of (10) Sri Siddamshetti Pentaiah S/o. Siddamshetti Gangaiah (2) Siddamshetti Narayana S/o. Paikaiah and (3) Raparthi Venkat Rajam S/o. Achaiah; that the lands bearing S. Nos. 302, 303, 306 and 283 of Chirrakunta Village were restored to him by the orders of Special Deputy Collectgor (TW) Adilabad No. TWA1/1311/76, Dt.30.06.1983; but Sri Siddamshetti Gangaiah forcibly evicted him and occupied the said lands. Under these circumstances, the petitioner, Karpeta Bheemu, has requested to restore the possession of the aforesaid lands to him"
14. On the basis of the representation of the tribal named above, the second respondent directed the third respondent to submit a report after enquiring into the matter. Along with the particulars of the land held by Karpeta Bheemu, the third respondent appears to have furnished the particulars of the transfers that have taken place from the year 1951 onwards and made a request to the second respondent to review the decisions of Nizam-e-Jamabandi u/s 166-B of the Act. The relevant portion of the notice reads as under:
Under these circumstances, the Sub-Collector, Asifabad has referred the case to review the above decisions Nazim-e-Jamabandi, u/s 166-B of A.P. (T.A.) Land Revenue Act 1317 Fasli.
15. All the persons who were issued the show cause notices were directed to show cause not only as to why the transfers in the Jamabandi of 1953 shall not be declared as null and void, but also, as to why the land shall not be restored to the tribals. From a reading of the show cause notice, it becomes evident that the sole basis for initiation of the proceedings was, the representation made by Karpeta Bheemu, with a prayer to restore possession of his lands. He did not complain of any violation of the provisions of the Act or the Rules. His grievance, if at all, fitted into the provisions of the Regulation and admittedly the second respondent is not the authority thereunder. Legality of, treating such a petition, referable to a different and separate provisions of law, as the basis for initiation of suo motu proceedings, becomes somewhat doubtful. At any rate, this question virtually assumes secondary importance, since the proceedings have culminated in a final order.
16. As for the second aspect: Proceeding on the premise that the notice issued to the petitioner or his predecessor does not suffer from illegality or infirmity, it needs to be seen as to whether the finding recorded by the second respondent, had any legal or factual basis. The transfers, which were entered in the revenue records were sought to be set at naught, three decades later. Though no limitation as such is prescribed for exercise of suo motu powers, Courts have always insisted that the powers must be exercised within a reasonable time. Reference in this context may be made to a judgment of the Division Bench of this Court in
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19. From the above, it becomes evident that though the suo motu powers have to be exercised by an authority within a reasonable time, such limit virtually becomes irrelevant, if the acts and omissions sought to be corrected are result of fraud. It is a settled principle of law that a person, who had benefited himself through acts of fraud, cannot be permitted to take any legal or factual plea, to perpetuate the result of fraud.
20. At the same time, it hardly needs any emphasis that fraud as a plea, be it in proceedings before a Court or before an administrative authority, must be specifically pleaded, so that the person accused of it, had a reasonable opportunity to counter the same. In a given case, the impression gained by a third person that an individual committed fraud may change, if the version presented by the person so accused is known. It is not out of place to mention that Order 6 C.P.C. which requires the pleadings in suit must be precise, (Rule 2) mandates that any allegation of fraud must be clearly elaborated (Rule 4). It is only when the allegations are made in detail, that the person against whom they are made would be in a position to answer them properly. In the absence of any specific plea in a notice or pleadings, it becomes untenable for any authority, or Court to record a finding on this aspect. This had a bearing on the adherence to principles of natural justice also. The requirement of the principles of natural justice that a party must be put on notice before any finding is recorded against him is not an empty formality. There would be proper compliance of this principle if only the notice contains the ingredients of the actual indictment, which the authority proposes against the person concerned. If the notice contains one allegation and the finding is about a totally different one, the principles of natural justice come to be violated, notwithstanding the fact that notice as such was issued.
21. In the instant case, the word ''fraud'' does not find place, in the notice, much less any fraudulent acts or omissions were attributed to any individual. The purport of the notice is that the irregularity in the form of non-compliance with the procedure prescribed under the relevant rules, has taken place. Neither the authorities that dealt with the proceedings in the year 1953, nor the parties thereto, were accused of committing fraud against any one.
22. On his part, the ancestor of the petitioner had replied stating that he purchased the land and had applied for mutation in revenue records. Inasmuch as no allegation of fraud was made against him, there was no occasion for him to bestow attention to that aspect. However, the second respondent proceeded to record a finding to the effect that the entire proceedings are vitiated by fraud.
23. It is rather surprising that the second respondent, who dealt with about 15 transactions between tribals and non-tribals, did not make a mention about the individual transactions, nor the manner in which the alleged fraud was played or perpetrated. A sweeping statement that all the transactions are vitiated by fraud cannot be countenanced in law when even according to the allegation in the show cause notice, there is, at the best, an irregularity due to observance of the Rules. Once, it is noticed that the second respondent did not allege any fraud against the petitioner or his ancestor, he cannot take shelter under that phenomenon, to sustain the initiation of proceedings, three decades from the date of alteration of entries in the revenue records or validation of sales. Therefore, this point is answered in favour of the petitioner and against the respondents.
24. Coming to the third aspect, it has already been mentioned that the transfer of lands from a tribal to non-tribal in the scheduled areas, is covered by the Regulations and that the Special Deputy Collector had initiated proceedings against the petitioner in respect of the very lands. It was competent only for that authority, to restore the possession of the land in favour of the tribal, in case a finding was recorded to the effect that the transfer in favour of a non-tribal is vitiated. After holding that the transfer in favour of the petitioner and his ancestor took place much before the notified date under the Regulation, the Special Deputy Collector dropped the proceedings. Neither under the Act nor under the Rules, the second respondent is conferred with the power to restore possession to any one, particularly in respect of the lands in scheduled areas.
When the subject matter is covered by a specific legislation, it was not competent for the second respondent to assume to himself, the power, which does not exist in him under the Act and the Rules. Further, the maximum that the second respondent could have done, if otherwise permissible under the Act and Rules, was to set at naught, the entries or the proceedings under the relevant provisions, and leave the matter, at that. The question of an authority under the Act directing restoration of possession does not arise. Even where an entry in the revenue records, be it as to mutation of ownership or recognition of possession is set aside in the proceedings initiated by an aggrieved party, or suo motu by an authority, it is for the respective parties to work out their remedies, in accordance with law, if recovery of possession becomes necessary. The authority, who sets at naught such entries or proceedings cannot direct the restoration or resumption of possession of the land covered by the proceedings. Several issues such as the plea of adverse possession, the rights, which a party possessed before such entry came to be made, accrual of other rights by operation of law, if any, claims to third parties, need to be adjudicated by a proper forum. Therefore, the direction issued by the second respondent, directing resumption of the possession of the lands from the petitioner, cannot be sustained in law.
25. For the foregoing reasons, the writ petition is allowed, as prayed for. There shall be no order as to costs.
