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Saturday, January 31, 2015

The corporation is a public sector undertaking. When it undertakes direct recruitment, it should be very cautious and careful. If, for any reason, the process of direct recruitment is faulted or vitiated, the candidate who was selected by it and who joined the service will get caught in the cross-fire. A direct recruit candidate cannot be reverted back to any other lower post. He is normally picked up, while competing with the other candidates, from the open market. Therefore, for any reason, the process of direct recruitment is found fault with, then, he will have to be sent out of the service of the Corporation altogther, but cannot be reverted. Same would be the prospect even in case of an internal candidate. An internal candidate offered his candidature only because he satisfied the recruitment criteria in all respects including the upper age limit. He is required to compete with the candidates drawn from the open market. For all practical purposes, he is standing at par with the candidate drawn from the open market. If, for any reason, when the direct recruitment process fails, he will have to be terminated from the employment of the Corporation like any other candidate drawn from the open market. Therefore, keeping this grave consequence in mind, the Corporation would regulate its affairs properly and carefully from now on. Accordingly, a declaration is issued that the principle of reservation in favour of various social sectors segments in so far as single cadre posts is impermissible and it will be violative of the concept of equality enshrined under Articles 14 & 16 of our Constitution. The Corporation would accordingly regulate the entire exercise.

THE HONBLE SRI JUSTICE NOOTY RAMAMOHANA RAO            

WRIT PETITION NOs. 8851 OF 2008 and batch    

19-01-2015

N. Satyanarayana Murthy, S/o N. Sri Ram Murthy Occ: Deputy Manager (Marketing)  
        A.P. Oil Federation, Eluru Petitioner

The A.P. Cooperative Oil Seeds Growers Federation Ltd, Rep by its Vice
Chairman and Managing Director  Parisram Bhavan, Basheerbagh, Hyderabad and 2  
others.. Respondents

Counsel for the petitioners : Sri V. Padmanabha Rao
                                       

Counsel for the respondents : 1. Sri M. Papa Reddy
                               2. G.P. for Cooperation
                               3. Sri V. Raja Manohar
                               4. Mrs. Marie Desai

<GIST:

>HEAD NOTE:  

?Cases referred

1.      AIR 1988 SC 959
2.      2010 (3) SCC pg 119
3.      AIR 1974 SC 532

THE HONBLE SRI JUSTICE NOOTY RAMAMOHANA RAO            

WRIT PETITION NOs. 8851, 11944, 16535 OF 2008    
AND
6453 OF 2011

COMMON ORDER:    


        W.P.No.8851 of 2008 was instituted by one
Sri N. Satyanarayana Murthy who was then working as Deputy
Manager (Marketing) with the first respondent-Andhra Pradesh
Cooperative Oil Seeds Growers Federation Limited, challenging the
appointment of respondents 2 & 3 as Managers through
proceedings dated 26.12.2007 without considering his case. The
same individual has instituted W.P.No.11944 of 2008 challenging
the appointment of the third respondent therein as Manager
through proceedings dated 07.05.2008.  W.P.No.16535 of 2008
was instituted by one Sri K.V. Ranga Reddy challenging the
appointment of the fourth respondent as Manager through
proceedings dated 26.12.2007 as bad. The fourth writ petition
W.P.No.6453 of 2011 has been filed by the Employees Association
of the Andhra Pradesh Cooperative Oil Seeds Growers Federation,
the second respondent therein (henceforth referred to, for short as
Corporation), challenging the appointment of respondents 4, 5, 6
and 7as Managers.  All these four cases substantially deal with the
same question of law and hence, they are heard together and
disposed of by this common order.

        Heard Sri C.V. Mohan Reddy, learned Senior Counsel on
behalf of Sri V. Padmanabha Rao, learned Counsel for the
petitioners and Sri P. Sri Raghu Ram, learned Senior Counsel on
behalf of Ms. Mary Desai, learned counsel for the contesting
unofficial respondents and Sri T. S. Praveen Kumar, learned
counsel on behalf of the Corporation.

        The Corporation is a public sector undertaking which was
established in the year 1981 in collaboration with National Diary
Development Board to increase the oil seeds production. Initially,
the federation used to work at the state level and the cooperative
oil seeds unions used to function at divisional level and
subsequently the primary agricultural societies at each village level
have been added up. Due to the financial crisis, the unions
established at Gadwal in Mahabubnagar District and Piler in
Chittoor District, have been closed down. Thereafterwards, the
cadre strength has been approved by the Registrar of Cooperative
Societies in terms and in accordance with Section 116 (C) of the
Andhra Pradesh Cooperative Societies Act, 1964.  In pursuance of
earlier round of litigation, common seniority list of all categories of
employees has been published on 15.05.2007.  It is the claim of
the petitioners that there are seven different categories of
Manager/Divisional Officer which are approved in the cadre of the
Corporation. They are:

1.      Manager (Personal & Administration or HRD)
2.      Manager (Finance)
3.      Manager (Marketing)
4.      Manager (Plants & Projects)
5.      Manager (Procurement & Inputs)
6.      Manager (Oil Palm Development) and
7.      Manager (Divisional Officer at Field Level)

        It is contended that the job requirement of each of these
posts being vastly different from one another, though they may
carry identical scale of pay, but each is a separate and isolated
post by itself in the cadre concerned. All the posts cannot be added
together for purposes of applying the principles of reservation
amongst various social sectors such as Scheduled Castes,
Scheduled Tribes, etcetera. Sri C.V. Mohan Reddy, learned Senior
Counsel would submit that, when these posts are isolated posts,
they form into a single post cadre and consequently, the question
of applicability of principles of reservation would not arise. Any
attempt to apply the principles of social reservation amongst
various social sectors would amount to reserving 100%, which is
impermissible. The learned Senior Counsel would therefore submit
that the notification issued by the Corporation on 01.11.2007
inviting applications exclusively from members belonging to
Scheduled Castes and Scheduled Tribes treating the vacancies that
have arisen in these isolated cadres as backlog vacancies to be
filled in by candidates belonging to Scheduled Castes or Scheduled
Tribes, as the case may be, is completely illegal. He, therefore,
challenges the very process of recruitment initiated by the
notification dated 01.11.2007 inviting applications which fructified
ultimately in recruiting the respective unofficial respondents in the
writ petitions.

        On behalf of the Corporation, Sri Praveen Kumar would
contend that the Corporation has framed its own services
regulations which were brought into force from 01.06.1983.  As per
Regulation 9 where the appointments are made by direct
recruitment, the Corporation has a right to reserve certain posts
for specified categories or classes of persons in keeping with the
rules or regulations in force. Therefore, Sri Praveen Kumar would
contend that the Corporation and the employees are bound by this
principle and hence, there is no tenability behind the challenge to
the notification issued by the Corporation on 01.10.2007 inviting
applications exclusively from members belonging to SCs/STs Sri
Praveen Kumar would further contend that, when once educational
qualifications and age criteria is notified, if internal employees of
the Corporation satisfy the said norms, they can also respond to
the notification and file their applications. Since the maximum
upper age limit is fixed as 43 years, the petitioners have crossed
the same, therefore lacked the eligibility to respond to the
notification and hence, the petitioners cannot validly challenge the
notification issued by the Corporation making resort to direct
recruitment.

        Sri P. Sri Raghu Ram, learned Senior Counsel would submit
that the petitioners have proceeded on the basis of the provisional
cadre strength in contending that the posts in question are isolated
posts, whereas, the finally approved cadre strength is what is
required to be taken into consideration. According to the learned
Senior Counsel, the cadre strength of Managers has been raised
from 7 to 16 and hence, the principle of reservation in favour of
various social sectors is attracted for filling up the posts of
Managers. Learned Senior Counsel would further contend that the
posts of Manager/Divisional Officer are included in managerial
cadre II services of the Corporation in terms of Regulation 18 of the
service regulations of the Corporation. They carry the same scale of
pay and hence, they occupy the same status in the service
hierarchy of the Corporation and discharge functions and
responsibilities of a comparable nature. In view of their inclusion
in a common cadre, the fact that there were same dissimilarities in
the nature of functions performed by them should not result in
treating all of them as distinct and separate posts. Learned Senior
Counsel would further contend that, as per Regulation 9 of the
service regulations of the Corporation, the reservation amongst
various social sectors is the choice of the Corporation and the said
choice is a reasonable one intended to carry forward the
constitutional mandate of social justice. In this view of the matter,
there is no justification for challenging the notification issued by
the Corporation for taking recourse to direct recruitment. The
learned Senior Counsel would further contend that, when once
Corporation has treated them as common cadre posts and the
Corporation has not treated them as single cadre posts, the
Corporation is justified in taking out the notification for direct
recruitment. Taking recourse to the method of direct recruitment
instead of promotion is again a choice of the Corporation, which
method of recruitment is ideally suited for the efficient functioning
of the Corporation is a matter of value based choice of the
Corporation and any such decision of the Corporation cannot be
ignored. So long as the choice of recruitment is in accordance with
Regulation 11 of the service regulations of the Corporation, the
petitioners cannot challenge the same excepting on grounds of
violation of any of their rights or any fundamental rights
guaranteed to them. The learned Senior Counsel would expand
this idea by submitting that Regulation 11 left a choice in the
hands of the Corporation to fill up the vacancies through any of
the methods specified therein which included inviting applications
through advertisement and then selection of the candidates, which
is the method known popularly as direct recruitment method.
Similarly, the Corporation could have also availed the other
method of selection from among the Corporation employees which
is by the method of promotion. Since, no fundamental rights or no
legal rights are available in favour of the petitioners, the learned
Senior Counsel would contend that the petitioners cannot
maintain the writ petitions. Finally, the learned Senior Counsel
would submit that the petitioners have also earned subsequent
promotions as Managers and hence, the issue raised by them has
reduced to a pure and simple academic issue and such academic
issues are not required to be answered by the Courts. Hence, the
learned Senior Counsel would suggest to dismiss the writ petitions.

        The notification issued by the Corporation on 01.11.2007
inviting applications for certain posts notified therein is placed at
page no.18 of the writ petition paper book in W.P.No.6453 of 2011.
It has clearly set out that the vacancies which were existing as on
31.08.2007 in the service of the Corporation which are treated as
backlog vacancies to be filled in with candidates belonging to
Scheduled Castes and Scheduled Tribes. The upper age limit for
the candidates is prescribed as 43 years and the qualifications
required to be possessed by them against each post is specified.
The post of Manager, which is reserved for women candidate of
scheduled castes, required the candidate to possess the following
qualifications namely, B.Sc (Agriculture) with experience in
procurement of edible oil seeds and distribution activities and
experience in oil palm development. The next post of Manager
notified for Scheduled Caste (General Category) (i.e. both men and
women amongst scheduled castes can respond) required the  
candidates to possess qualification of any degree. However, those
who are possessing M.B.A. degree would be given preference. Thus,
in between the two posts of Managers which have been notified, it
becomes clear that they do belong to two different disciplines.
Consequently, they are intended to discharge two distinct and
dissimilar functions, while one is required to take care of consumer
marketing activities, the other is required to perform procurement
activities. While the procurement of the oil seeds deals with pre-
crushing basic input activity of the Corporation, whereas, the
marketing activity of the finished product comes after the
production activity is completed at the plant. The functions which
are required to be performed by these two Managers are vastly
different and they stand at the either end of the rainbow. There is
no meeting ground in between these two stages. Similarly, the
qualifications required also speak of their divergent professional
inputs. Once is required to possess the professional qualification of
B.Sc Agriculture, while the other could be filled in with any
Graduate, not necessarily a Science Graduate such as B.A. or
B.Com., and by giving preference to candidates who have
possessed M.B.A Degree discipline with marketing as the subject
matter of specialized study. Therefore, the contention canvassed by
Sri P. Sri Raghu Ram that all the posts are common cadre posts
which have been included in the same cadre namely Managerial
Grade-II under Regulation 18 of the Employees Regulations does
not hold water. I have no hesitation to come to the conclusion that
the posts of Managers and Divisional Officers including in the
common cadre are each one of them distinct and separate one and
consequently, a person recruited as a Manager to discharge one set
of functions cannot be transferred and posted against the other.
Hence, these posts of Managers belong to distinct and separate
disciplines.  They are isolated posts and there is common nature of
duties performed by them.
        For instance, the Manager who has been recruited for
purpose of Oil Palm Development cannot be posted as Manager of
Consumer Marketing or as Manager (Personnel and  
Administration). The converse is also true. A person recruited as
Manager (Personnel and Administration) cannot similarly be posted
as Manager (Plants and Products) or procurement and inputs or
consumer marketing. Each is a distinct and separate post in the
same cadre. Where there is only one post in a cadre, the question
of applying principles of reservation in favour of various social
sectors would not normally arise. If there is only one post and if
that one post is reserved exclusively in favour of any of one
particular social sector, no other post in that cadre would be
available to be filled in by candidates belonging to the other social
segment. In other words, a single post in a cadre if it is filled up
applying the principles of reservation amongst various social
sectors, it would amount to reserving 100%.  Providing 100%
reservation is wholly impermissible and it directly conflicts with
the guarantees held out under Article 14 and 16 of our
Constitution.

        The Supreme Court in Chakradhar Paswan v. State of
Bihar and others  case had occasion to consider the applicability
of the principles of reservation in favour of various social sectors
and the principle has been spelt out as herein below:
        The main contention of Dr. Y.S. Chitale, learned
counsel for the appellant, is that there are four posts in the
Directorate of Indigenous Medicines and all the posts are
Class I posts and therefore according to the 50 point roster,
the post of Director having been treated as unreserved by
the rotational system, the post of Deputy Director
(Homeopathic) was rightly reserved for a scheduled caste
candidate. According to him, the High Court fell into an
error in assuming that the reservation of the post of Deputy
Director (Homeopathic) for a scheduled caste candidate
under Art. 16(4) amounted to 100% reservation and
suffered from the vice of offending against the equality
clause under Art. 16(1) read with Art. 14 of the
Constitution. In answer to the argument Shri L.N. Sinha,
learned counsel appearing for respondent No. 4. submits
that firstly, the posts of Director and Deputy Directors are
not carried in the same cadre and therefore they could not
be grouped for purposes of implementing the policy of
reservation under Art. 16(4). and secondly, the three
systems of indigenous medicines, namely, Homeopathic,
Ayurvedic and Unani are distinct and separate systems of
medicine and thus the 50 point roster could not be applied.
        The questions that fall for our determination are : (1) Is
the post of Deputy Director (Homeopathic) an 'isolated post'
and therefore reservation of the post for a scheduled caste
candidate amounts to 100% reservation and must therefore
be declared to be impermissible under Art. 16(4)? (2)
Whether the posts of the Director and the three Deputy
Directors could be grouped together for purposes of
implementing the policy of reservation, according to the 50
point roster. And (3) Could the posts of the Director and the
three Deputy Directors in the Directorate of Indigenous
Medicines although they are posts carried on different
grades, still be clubbed together for purposes of reservation
merely because they are Class I posts?
        .Admittedly, the post of the Director is    
the highest post in the Directorate of Indigenous Medicines
and is carried in the higher pay scale or grade of Rs. 2225-
75-2675 while the posts of the Deputy Directors are carried
in the pay scale or grade of Rs. 1900-75-2500. In service
jurisprudence, the term 'cadre' has a definite legal
connotation. In the legal sense, the word 'cadre' is not
synonymous with service'. Fundamental R. 9(4) defines the
word 'cadre' to mean the strength of a service or part of a
service sanctioned as a separate unit. THE post of the
Director which is the highest post in the Directorate, is
carried on a higher grade or scale, while the posts of
Deputy Directors are borne in a lower grade or scale and
therefore constitute two distinct cadres or grades. It is open
to the Government to constitute as many cadres in any
particular service as it may choose according to the
administrative convenience and expediency and it cannot
be said that the establishment of the Directorate
constituted the formation of a joint cadre of the Director
and the Deputy Directors because the posts are not
interchangeable and the incumbents do not perform the
same duties, carry the same responsibilities or draw the
same pay. The conclusion is irresistible that the posts of
the Director and those of the Deputy Directors constitute
different cadres of the Service. It is manifest that the post of
the Director of Indigenous Medicines, which is the highest
post in the Directorate carried on a higher grade or scale,
could not possibly be equated with those of the Deputy
Directors on a lower grade or scale. In view of this,
according to the 50 point roster, if in a particular cadre a
single post falls vacant, it should, in the case of first
vacancy, be considered as general. That being so, the State
Government could not have directed reservation of the post
of Deputy Director (Homeopathic) which was the first
vacancy in a particular cadre i.e. that of the Deputy
Directors, for candidates belonging to the scheduled castes.
Such reservation was not in conformity with the principles
laid down in the 50 point roster and was impermissible
under Art. 16(4) of the Constitution and clearly violative of
the, guarantee enshrined in Art. 16(1) of equal opportunity
to all citizens relating to public employment. Clause (4) of
Art. 16 is by way of an exception to the proviso to Art.
16(1). THE High Court rightly held that the reservation of
the post of Deputy Director (Homeopathic) amounted to
100% reservation which was impermissible under Art. 16(4)
as otherwise it would render the guarantee of equal
opportunity in the matter of public employment under Art.
16(l) wholly elusive and meaningless.
        Another serious infirmity in the argument of the
learned counsel for the appellant is that it overlooks, the
basic principle that if there is only one post in the cadre,
there can be no reservation under Art. 16(4) of the
Constitution. The whole concept of reservation for
application of the 50 point roster is that there are more
than one post, and the reservation as laid down by this
Court in M.R. Balaji's case ( AIR 1963 SC 649) can be up to
50%. The Government cannot, for instance, declare that the
post of the Director of Indigenous Medicines shall be
reserved for candidates belonging to scheduled castes. The
Directorate is a paramedical service with Director as its
head and the there Deputy Directors belonging to three
distinct and separate disciplines viz. Homeopathic, Unani
and Ayurvedic under him. In the para-medical system the
three posts of Deputy Directors pertain to three distinct
systems and therefore each of them is an isolated post by
itself. The same principle should, we think, as in the case of
the Director, apply.

        Similarly, the same question has fallen for consideration
before the Supreme Court once again in Jitendra Kumar Singh
and Anr. Vs. Respondent: State of U.P. and Ors. , wherein, the
principle has been enunciated as under clearly:
        From the above it becomes evident that the very
premise on the basis of which Madhav case (1997 AIR SCW  
3113) was decided has been held to be erroneous.
Thereafter it is further observed in paragraph 30 that "it
also appears that the decision in Indra Sawhney case (1992
AIR SCW 3682) has also not been properly appreciated in
Madhav decision." The conclusion of the judgement is given
in paragraph 37 which is as under (Para 38 of 1998 AIR
SCW 1553):-
"37. We, therefore, approve the view taken in Chakradhar
Case (AIR 1988 SC 959) that there cannot be any
reservation in a single post cadre and we do not approve
the reasonings in Madhav Case (1997 AIR SCW 3113), Brij
Lal Thakur case (1997 AIR SCW 1937) and Bageshwari  
Prasad case upholding reservation in a single post cadre
either directly or by device of rotation of roster point.
Accordingly, the impugned decision in the case of Post
Graduate Institute of Medical Education and Research,
Chandigarh is, therefore, allowed and the judgment dated
2.5.1997 passed in Civil Appeal No.3175 of 1997 is set
aside."
        In view of the clear principle spelt out by the Supreme Court,
any attempt to apply the principles of reservation to single and
isolated posts of Managers would be wholly impermissible.

        However, Sri P. Sri Raghu Ram, learned Senior Counsel had
adverted to the aspect that there are more number of posts of
Managers in each cadre. The learned Senior Counsel has also
criticized that the action of the Corporation which has not
specifically adverted to and brought out the final cadre strength
approved by the Registrar of Co-operative Societies, in its
pleadings for the Managers categories. It could be due to the
failure to grasp the significance and distinction between single
cadre and multi member cadre posts in the matter of applicability
of principles of social sector reservations. In the absence of any
such plea or material produced by the Corporation, it would be
hazardous on the part of this Court to record a finding of fact
firmly that there is more than one post available in each cadre
such as Manager (Personal & Administration or HRD), Manager
(Finance), Manager (Marketing), Manager (Plants & Projects),
Manager (Procurement & Inputs), Manager (Oil Palm Development)
and Manager (Divisional Officer at Field Level).  However, on the
last occasion, the Corporation seemed to have addressed a
communication to its standing counsel, a copy of which Sri
Praveen Kumar has circulated for my consideration. It emerges
from the contents thereof that the petitioners have been
subsequently promoted as Managers. This event of promotion of
the petitioners would only leave a hint that there are more number
of posts than one available in the cadre of Managers in the service
of the Corporation. Otherwise, the petitioners could not have been
promoted while the unofficial respondents are still holding the
same posts of Managers. Such a promotion could only become  
possible if only there is one more post of Manager available.
Otherwise, two people could not have been appointed and
promoted against one single post. It is for the Corporation to sort it
out, this factual controversy. However, it is worthy to note that
where there are two or more number of posts available in a cadre
the principle evolved in Chakradhar Paswans case (referred supra)
will not get attracted. Dealing with this very aspect- where there
are two posts of Principals available - the Supreme Court in Arati
Ray Choudhury v. Union of India  case held as under:
        The model roster accompanying the letter of the
Railway Board dated 16/01/1964 is designed to meet the
requirements of the new situation arising out the rules
framed in deference to the judgment in Devadasan's case,
(1964) 4 SCR 680 = ( AIR 1964 SC 179). Both the letter and
the Note appended to the roster state expressly that if
"there are only two vacancies to be filled on a particular
occasion, not more than one may be treated as reserved
and if there by only one vacancy, it should be treated as
unreserved". THE words "on a particular occasion" were
substituted on 2/09/1964 by the words "year of
recruitment". Thus, in the first place each year of
recruitment is directed to be considered separately and by
itself as laid down in Devadasan's case, (1964) 4 SCR 680,
694-695 = ( AIR 1964 SC 1790) so that if there are only two
vacancies to be filled in a particular year of recruitment,
not more than one vacancy can be treated as reserved.
Secondly, and that is directly relevant for our purpose, if
there be only one vacancy to be filled in a given year of
recruitment, it has to be treated as unreserved irrespective
of whether it occurs in the model roster at a reserved point.
THE appointment then is not open to the charge that the
reservation exceeds 50 Per Cent for, if the very first vacancy
in the first year of recruitment is in practice treated as a
reserved vacancy, the system may be open to the objection
that the reservation not only exceeds 50 Per Cent but is in
fact cent per cent. But, if "on this account" that is to say, if
on account of the requirement that the first vacancy must
in practice be treated as unreserved even if it occurs in the
model roster at a reserved point, "a reserved point is treated
as unreserved" the reservation can be carried forward to
not more than two subsequent years of recruitment. Thus,
if two vacancies occur, say, within an initial span of three
years, the first vacancy has to be treated as an unreserved
vacancy and the second as reserved.

        The corporation is a public sector undertaking. When it
undertakes direct recruitment, it should be very cautious and
careful. If, for any reason, the process of direct recruitment is
faulted or vitiated, the candidate who was selected by it and who
joined the service will get caught in the cross-fire. A direct recruit
candidate cannot be reverted back to any other lower post. He is
normally picked up, while competing with the other candidates,
from the open market. Therefore, for any reason, the process of
direct recruitment is found fault with, then, he will have to be sent
out of the service of the Corporation altogther, but cannot be
reverted. Same would be the prospect even in case of an internal
candidate. An internal candidate offered his candidature only
because he satisfied the recruitment criteria in all respects
including the upper age limit. He is required to compete with the
candidates drawn from the open market. For all practical
purposes, he is standing at par with the candidate drawn from the
open market. If, for any reason, when the direct recruitment
process fails, he will have to be terminated from the employment of
the Corporation like any other candidate drawn from the open
market. Therefore, keeping this grave consequence in mind, the
Corporation would regulate its affairs properly and carefully from
now on.

        Accordingly, a declaration is issued that the principle of
reservation in favour of various social sectors segments in so far as
single cadre posts is impermissible and it will be violative of the
concept of equality enshrined under Articles 14 & 16 of our
Constitution. The Corporation would accordingly regulate the
entire exercise.

        The writ petitions stand disposed of with this order.
Miscellaneous applications pending shall stand closed. No costs.


_______________________________________      
JUSTICE NOOTY RAMAMOHANA RAO          
Date:19-01-2015

The believability depends on the nature of explanation offered. In the instant case, the explanation pivots on Ex.D.2 document. Had this vital piece of evidence was not in the custody and reach of AO till it was produced in Court, no inference of manipulation can be drawn against AO, however it was admittedly said to be in his own custody and still it was not produced at the earliest point of time without any plausible reason. In such an event, the genuinity of Ex.D.2 cannot be accepted. Further, Ex.D.2 appears on a small piece of paper and contents appear to be typewritten in English and thereunder it is mentioned in the handwriting of PW.1 as itlu mee videyulu and beneath it, his signature and date as 16.02.2001 and within brackets Contractor are written. When PW.1 is an educated person, there is no reason why he did not write the contents of the receipt also in his handwriting. So the appearance of Ex.D.2 also throws doubt. 11) So on a conspectus of the facts, circumstances and evidence relating to Ex.D.2, no reliance can be placed on Ex.D.2. The cited decisions will not advance the cause of A.O. Therefore, it must be said that AO failed to rebut the presumption through the explanation offered by him. The trial court rightly convicted and sentenced him for the offences under Section 7 and 13 (1)(d) r/w 13(2) of P.C. Act and I find no merits in the appeal to set aside the judgment of the trial Court.

THE HONBLE SRI JUSTICE U. DURGA PRASAD RAO          

Criminal Appeal No.518 of 2006

19-01-2015

V. Venkataswamy.... Appellant

The State ACB, Warangal Range, Warangal Rep. by Spl. Public Prosecutor for ACB  
cases,High Court of Judicature, Hyderabad.. Respondent

Counsel for Appellant: Sri Badeti Venkata Rathnam

Counsel for Respondent  : Sri R. Ramachandra Reddy
                          Special Public Prosecutor for ACB
<Gist:

>Head Note:

? Cases referred:
1)      (2011) 6 SCC 450
2)      (2009) 3 SCC 779
3)      AIR 1980 Supreme Court 1558
4)      (2006) 1 SCC 401
5)      AIR 1976 Supreme Court 294(1)
6)      1972 Crl.L.J. 1293 (SC)
7)      AIR 2002 SC 486
8)      2003 (1) ALD (Crl.) 933 (AP)


HONBLE SRI JUSTICE U. DURGA PRASAD RAO        
Criminal Appeal No.518 of 2006
JUDGMENT:  
        This Criminal Appeal is preferred by the Accused Officer (AO)
aggrieved by the judgment dated 27.03.2006 in C.C.No.18 of 2002 passed by
learned Principal Special Judge for SPE & ACB Cases, Hyderabad
convicting him for the offences under Sections 7 and 13(1)(d) r/w 13(2) of
Prevention of Corruption Act, 1988 (for short P.C Act) and sentencing him
to undergo R.I for a period of one year and to pay a fine of Rs.1,000/- and in
default to suffer S.I for three months on first count and to undergo R.I for a
period of two years and to pay a fine of Rs.2,000/- and in default to suffer
S.I for six months on second count with a direction that the substantive
sentences of imprisonment under both counts shall run concurrently.
2)      The factual matrix of the case is thus:
a)      AOV. Venkata Swamy worked as Executive Officer (Endowments),    
in Sri Veerabhadra Swamy Devasthanam Temple, Kuravi Village and  
Mandal, Warangal District. According to prosecution, R.Ravinder Reddy
complainant (PW1) was eking out his livelihood by undertaking small
contracts.  In the month of June, 2000, he was entrusted with repairing work
of Kuravi Sree Veerabhadra Swamy Devasthanam for ensuing Jatara by
PW.3the then Executive Officer, Sri Kumara Swamy, and he had executed  
the work within a month and Deputy Executive EngineerSri D. Prabhakar
Rao, Endowments Department estimated it at Rs.15,847/- and out of it
Rs.4,000/- was already paid to PW.1 by the then Executive Officer in cash.
PW.4 succeeded PW.3 on his transfer as incharge E.O and later AO
succeeded him. On 21.12.2000, the AO has issued cheque for Rs.7,900/-,
leaving a balance of Rs.3,947/- and in that connection, PW.1 used to meet
AO and wander around him.  Atlast on 07.03.2001, during noon time, when
PW.1 met AO and enquired about the cheque for balance amount, AO  
questioned him that he did not pay any percentage earlier when he received
the amount and also despite allotting other Devasthanams contracts and
demanded him to pay a sum of Rs.1,000/- as bribe so as to issue cheque for
the balance amount of Rs.3,947/-, threatening him that in case his demand
was not met, he would delay the payments concerning other works entrusted
to him and that PW.1 would sustain loss and also asked him to get Rs.1,000/-
any day after ensuing Monday, then only he would write the cheque.
b)      Unwilling to pay bribe, PW1 submitted Ex.P.1complaint to DSP,
ACB, Warangal (PW8) on 08.03.2001 at about 11:00am, who registered the  
same as a case in Cr.No.9/ACB-ACB-WRL/2001 on 13.03.2001 at 8:00am    
and successfully laid a trap against AO on 13.03.2001 at his office. On
completion of investigation, charge sheet was laid against AO.
c)      On appearance of AO, charges under Sections 7 and 13 (1)(d) r/w
13(2) of  P.C. Act were framed against him and trial was conducted.
d)      During trial, PWs.1 to 9 were examined and Exs.P1 to P14 were
marked and MOs.1 to 8 were exhibited on behalf of prosecution. Exs.D.1 to
D.10 and Exs.X.1 to X9 were marked on behalf of defence.
e)      The AO filed written statement on 14.03.2005 contending that he
never demanded bribe amount from PW.1 and that PW.1 lodged a false  
complaint against him. He submitted that after he joined as Executive Officer
of Sri Veerabhadra Swamy Devasthanam, Kuravi, he worked sincerely and
implemented discipline among the staff and he issued memos to staff and
suspended several staff members.  He contended that PW.1 having obtained a
hand loan of Rs.1000/- from him on execution of Ex.D.2receipt dated
16.02.2001, while repaying it, got falsely implicated him in this case at the
instance of some other staff, who bore grudge against him. He lodged a
criminal complaint against some of the staff of Devasthanam and their
relatives for forcibly signing on the Attendance register for the period of
their
suspension and it was registered as Crime No.31/2001 in Mahabubabad Rural
P.S. and they were all arrested and remanded to judicial custody on
07.03.2001 and in reaction to said arrest and remand, the instant complaint
was lodged with the ACB on 08.03.2001 and he was implicated in a false
case and that the sequence of events that preceded the instant trap case
clearly establishes that the complaint lodged by PW.1 is definitely a
motivated complaint to harm him. He further submitted that he already
passed the dues of Rs.7,900/- and ordered to pay balance subject to receipt of
final orders from the Commissioner, Endowments, A.P, Hyderabad and noted
the same on Exs.P.5 and P.6 and further endorsed on note file directing
concerned clerk to put up a letter to the Commissioner for permission.
     He thus claimed that the complaint was motivated and he was
innocent.
f)      The trial Court on appreciation of evidence held that prosecution
proved the guilt of the accused beyond reasonable doubt and accordingly
convicted and sentenced the AO, as stated supra.
        Hence, the appeal by AO.
3)      Heard arguments of Sri Badeti Venkat Ratnam, learned counsel for
appellant/AO and Sri R.Ramachandra Reddy, learned Special Public
Prosecutor (Spl.P.P.) for ACB cases.
4)      Criticising the judgment of the trial Court, learned counsel for
appellant/AO argued thus:
a)      Firstly, he argued that no official favour was pending with AO so as to
make any demand.  He submitted that PW.3the earlier E.O entrusted the  
contract work to PW.1 without obtaining permission from the Commissioner,
Endowments and even paid an advance of Rs.4,000/- and after taking the
charge AO came to know this fact and so he endorsed on Ex.P.6note file
ordering payment of 3/4th of the contract amount, withholding the balance
1/4th amount to be paid after receiving orders from the Commissioner of
Endowments.  He also made a side order on the note file to put up a letter to
Commissioner of Endowments for permission.  Learned counsel vehemently  
argued that when the AO emphatically made it clear in writing that balance
amount should be paid to PW.1 only after receiving order from the
Commissioner of Endowments, there was nothing left in his hands to do any
official favour and therefore, absolutely there was no occasion for him to
demand bribe from PW.1.
b)      Secondly, denouncing the demand, learned counsel argued that AO
never demanded bribe as alleged and the theory of demand is only a
concoction made by PW.1 incited by some of the disgruntled staff of AO
who were suspended by him due to their misdeeds.  Learned counsel argued
that when the AO admittedly did not demand bribe while ordering payment
of 3/4th of the present contract amount and other contract amounts, it would
be highly unjust to impute that he demanded bribe for a petty balance amount
of Rs.3,000/- and odd.
c)      Thirdly, regarding further demand and acceptance of bribe on
13.03.2001 learned counsel argued that AO received the amount from PW1
as the loan amount due to him under Ex.D2 but not as bribe and he resonated
this fact twice during post-trap proceedings which was also incorporated in
Ex.P10second mediators report. However, the trial Court without
appreciating facts and evidence properly, rejected his spontaneous
explanation. Learned counsel argued that in the light of PW1 admitting his
handwriting and signature on Ex.D2, the onus of proof will be on prosecution
to establish that Ex.D2 was a fabricated document. He argued that the doubts
expressed by PW1 in his re-examination to the effect that earlier he submitted
a number of applications and letters in EOs office and the contents portion
of one of such letter or application might have been torn and on the space
available above the words itlu mee videyulu, the contents in Ex.D2 must
have been incorporated cannot be accepted for the reason that Ex.D2 contains
not only the admitted signature and handwriting of PW1 but also the date as
16.02.2001 and therefore, the burden lies on the prosecution to explain as to
what letter or application dated 16.02.2001 was submitted by PW1 in the
office of EO to enable AO to utilise the same for fabricating Ex.D2. The
prosecution miserably failed to show the nature of application/letter allegedly
submitted by PW1 on 16.02.2001 and therefore, it is not apposite to discard
Ex.D2 on the strength of doubt expressed by PW1. Learned counsel further
argued that mere recovery of money from the person of accused shall not be
taken in isolation to decide the guilt of the AO and on the other hand, if the
other surrounding circumstances are taken into consideration, they would
depict that some of the staff suspended by AO became disgruntled and
gheroaed AO on 16.02.2001 along with Sarpanch and PW1 and they were  
arrested on the compliant lodged by AO and hence they used PW1 to foist a
false case against AO. Learned counsel submitted that these back ground
facts would show that PW1 in collusion with his villagers implicated AO in a
false case and unfortunately the trial Court without proper appreciation of
facts and evidence convicted AO. He relied upon the following decisions to
buttress his argument that mere recovery of money divorced from
circumstances under which it was paid is not sufficient to convict the
accused:
1)      State of Kerala and another vs. C.P. Rao
2)      C.M. Girish Babu vs. CBI, Cochin, High Court of Kerala
3)      Gulam Mahmood A. Malek vs. The State of Gujarat
4)      T. Subramanian vs. State of Tamil Nadu
d)      He further submitted that for the demand and acceptance of bribe
except the sole testimony of PW1 there is no other proof and PW1 being
highly interested since his relative was also one of the suspended employees
and he was amenable to co-villagers, his evidence cannot be accepted for
convicting the accused. He relied upon the following decisions to stress that
the evidence of interested or motivated witness shall not be believed without
corroboration by independent and reliable witnesses:
1)      Sat Paul vs. Delhi Administration
2)      Ram Prakash Arora vs. The State of Punjab
e)      Learned counsel for appellant argued that AO offered spontaneous
explanation and merely because he did not produce Ex.D2receipt
immediately after trap, on the ground alone his explanation shall not be
rejected. He submitted that even if an explanation was not offered
spontaneously, still the same can be considered if it is reliable though offered
at the stage of trial.  On this aspect he relied upon the following decisions:
1)      Punjabrao vs. State of Maharashtra
2)      S.V.S. Kodanda Rao vs. State of A.P
He thus prayed to allow the appeal.
5 a)    Per contra, learned Spl.P.P. while supporting the judgment firstly
argued that PW1 had no motive to implicate accused in a false case as
contended by AO and none of his relations was working in the EOs office
and suspended and hence he had no axe to grind against AO.  Except harping,
AO could not prove the alleged ill-motive for PW1 to foist a false case.  Even
the incident dated 16.02.2001 is concerned, PW1 had nothing to do with the
same and that was why AO did not include his name inEx.D7FIR.  
Moreover, even after incident dated 16.02.2001, AO paid amount to PW1 for
the works undertaken by him and PW1 issued Ex.X3receipt dt.26.02.2001.  
Further, admittedly AO allotted certain other contract works to PW1 as EO of
Kuravi temple. All these would show that there were no ill-feelings between
PW1 and AO. So, attribution of motive to PW1 is only a vain attempt on the
part of AO to wriggle out of genuine compliant given against him by PW1.
b)      Secondly, the pendency of official favour and demand are concerned,
learned Spl.P.P argued that as per PW1 the demand was made not only for
the paltry balance amount relating to present contract but also for passing
bills in other contract works and therefore, merely because AO proposed to
obtain permission from Commissioner of Endowments for releasing balance
amount, it cannot be said that no official favour was pending with him. He
argued that the pendency of official favour and demand are to be viewed in a
holistic manner rather than in isolation to the present contract work alone.
Regarding demand, he argued that since it became clear that PW1 has not
tried to implicate AO, his evidence touching the aspect of AO demanding
him bribe of Rs.1,000/- can be accepted and in fact the trial Court rightly
believed his evidence in that regard.
c)      Thirdly, regarding further demand and acceptance of bribe, he argued
that in this case the bribe amount was admittedly accepted by accused and it
was found with him therefore, presumption under Section 20 of PC Act
would follow. The spontaneous explanation offered by accused is concerned,
he argued that the same cannot be believed because he produced Ex.D2  
receipt only during trial but did not produce the same at the time of post-trap
proceedings or at the time of search of his house. Further, Ex.D2 ex-facie
would show that it is a fabricated document because on all the previous
occasions PW1 used to pass receipts in his own handwritings and as such
there was no need for him to sign on a typed receipt like Ex.D2. Further, he
had enough money because just few days prior to 16.02.2001 he received
amounts from AO towards his contract works and therefore, he had no
necessity to borrow paltry amount of Rs.1,000/-. Considering all these
aspects, the trial Court rightly rejected the defence plea and convicted him.
He thus prayed to dismiss the appeal.
6)      In the light of above rival arguments, the point for determination in this
appeal is:
Whether the judgment of the trial Court is factually and legally
sustainable?
7)      POINT: The precise accusation of prosecution is that AO being the
Executive Officer of Veerabhadra Swamy Devasthanam, Kuravi demanded  
bribe amount of Rs.1,000/- from PW1 who is the contractor for releasing the
balance amount of Rs.3,847/- relating to contract works entrusted to him in
June, 2000 by the then EO (PW3) and also for releasing the amounts
concerning to other contract works, AO refuted the charges and pleaded
innocence. Regarding allegation of further demand and acceptance of
Rs.1,000/- on the date of trap i.e. 13.03.2001, his explanation was that he
accepted the same towards repayment of loan amount taken by PW1 under  
Ex.D2-receipt.
a)      Before adverting to the findings of the trial Court on the aspects of
demand and acceptance of bribe and explanation offered by the AO, I
consider it apt to discuss whether the complaint lodged by PW1 with ACB
police is motivated to implicate him in a false case. According to AO, the
complaint was a motivated one.  As per his written statement, after he joined
as Executive Officer of Veerabhadra Swamy Devastanam, Kuravi he worked
sincerely and tried to implement discipline among the staff who were very
irregular and indisciplined prior to his joining. He issued memos and
suspended four staff members of Devasthanam. Ex.X9 is a memo issued to
PW2. Of the four suspended staff members N.Jagadishwara Rao and M.Somi  
Reddy are related to SarpanchN.Prasad Rao and PW1.  On 16.02.2001 the    
suspended employees along with some villagers and Sarpanch and PW1  
entered the office when AO was attending his work and waiting for arrival of
Regional Joint Commissioner in connection with an enquiry against him and
they gheroaed AO and the suspended employees forcibly signed in the
attendance register for the period of their suspension and further they
demanded to raise the suspension and pay the salaries.  Against their
atrocious acts, AO lodged a compliant in Cr.No.13/2002 in Mahabubabad
Rural Police Station vide Ex.D7FIR and the accused were arrested by the
police and enlarged on bail on 07.03.2001.  Thereafter all of them including
PW1 colluded together and dubbed the date of their release i.e. 07.0.32001 as
the date of first demand allegedly made by AO and PW1 lodged a false
complaint against AO on 08.03.2001. None of the facts in Ex.P1report is
true, since Ex.P1 is a motivated one. It is the further argument of AO that
PW1 in fact borrowed Rs.1,000/- on 16.02.2001 to meet the medical
expenditure of his son who was indisposed and on the date of trap i.e.
13.03.2001 he paid Rs.1,000/- towards repayment of loan and got him
trapped as if the said amount was bribe. In light of this argument, the facts
and evidence are to be scrutinized.
b)      When the contention of AO is scrutinized the motive alleged against
PW1 can be believed if it is established that one of his relations was
suspended by AO causing heart burn to him and the suspended employees  
prevailed upon PW1 to lodge a false complaint against AO to wreak-
vengeance against him. AO though not by strict proof, atleast by
preponderance of probabilities must bring forth the nexus between
suspending employees and PW1.  Atleast he must able to prove the presence
of PW1 along with mob on 16.02.2001 so as to infer that PW1 was one
among the participants. In that context the evidence of PW1 in the cross-
examination is pertinent.  He stated thus:
I know the entire staff of AOs office. I know M.Somi Reddy,
M.Jagadishwara Rao, Sri C.Srinivas and R.Narayana Rao, Jaya
Shanker and Sudhershan. Somi Reddy is not my relative. I have no
acquaintance with Prasad Rao who is Sarpanch of Korvi village. Only I
heard his name. I do not know Jagdishwar Rao is the brother of
Sarpanch. I learnt that Somi Reddy, Jagadishwara Rao, Srinivas and
Narayana Rao were suspended by the AO on 20.12.2000 but I do not
know whether he was suspended by the AO and whether it was on  
20.12.2000.  It is not true to suggest that on 16.02.2001 myself and all 4
of them along with Sarpanch went to the office of the AO and created
nuisance by abusing him and that the suspended officers forcibly signed
in the attendance register from the date of their suspension. I do not
know whether AO has given compliant in that connection against the
suspended clerks and the followers of the Sarpanch and whether the
Crime No.13/2001 of P.S. Mahabubabad Rural was registered and
whether they were sent to judicial remand on 07.03.2001. It is not true
to suggest that on account of that incident from the next day onwards in
collusion with the above staff members and the Sarpanch, I have lodged
Ex.P1 levelling all false allegations.
        So, from the above evidence it is clear that PW1 staunchly denied his
relationship with Somi Reddy one of the suspended employees.  He also
denied his acquaintance with SarpanchPrasad Rao.  Most importantly he
denied his associating with the suspended employees and Sarpanch and
going to the office of AO on 16.02.2001 and creating nuisance and abusing
the AO etc. facts.  Therefore, it must be said that nothing could be extracted
from the evidence of PW1 to substantiate that PW1 bore grudge due to the
suspension of employees and due to AO lodging complaint. Apart from this
denial, the AO in Ex.D7complaint has not at all included the names of
PW1 and Sarpanch as participants and even after investigation also the
police have not shown them as accused in Ex.D9charge sheet. So,  
absolutely PW1 is nothing to do with the suspension of employees and their
attacking AO on 16.02.2001. As rightly observed by the trial Court, from the
mere coincidence of date of demand i.e. 07.03.2001 with the date of arrest
and remand of four suspended employees, it cannot be readily inferred that
PW1 was incited by them to lodge a false complaint particularly when the
nexus between PW1 and accused in Cr.No.13/2001 was not even remotely  
established. Added to above, the record shows that even after 16.02.2001
there were work transactions between PW1 and AO evidenced by X3  
money receipt passed by PW1 in favour of AO on 26.02.2001.  Under Ex.X3
PW1 passed money receipt for Rs.13,000/-. Had PW1 participated in the
attack on 16.02.2001, certainly AO would not have paid money of
Rs.13,000/- on 26.02.2001. So, the motive alleged against PW1 has no legs
to stand.
c)      Then, official favour is concerned, it is the strong argument on behalf
of AO that as the predecessor of AO entrusted contract work to PW1 without
obtaining permission from Commissioner Endowments, the AO wanted to  
straighten the issue and so while ordering on Ex.P6note file for payment
of 3/4th of contract amount, he endorsed that balance amount will be paid
after receiving final order from the Commissioner Endowments and he also
made an order on the side note to put up a letter to the Commissioner for
permission. It is argued that the aforesaid order of AO would show that he
wanted to deal with the matter as per procedure and since he already made
such an order, nothing more was left with him to do official favour and so
the question of his demanding bribe does not arise.
d)      It is true that the order passed on Ex.P6note file would show that
while ordering payment of 3/4th of the contract amount he made it clear that
balance amount will be released on receiving orders from the Endowment
Commissioner. He also directed PW2 to put up a letter to the Commissioner
for permission. So, the point is whether by virtue of the above order, any
official favour was pending with AO. To answer this question, we should
verify the evidence of PW1 and Ex.P1 to know in what context AO
demanded bribe. As per the evidence of PW1 whenever he used to approach
AO for payment of balance amount of Rs.3,947/-, he used to postpone it on
one or other pretext. Thereafter on 07.03.2001 when he met AO he asked
him to give percentage in that amount by saying that he (PW1) had not given
any percentage in the bill amount already received and that he would allot
some more works to him and on that ground he demanded Rs.1,000/- as  
bribe for releasing the balance amount. Then, in Ex.P1 also PW1 mentioned
that when he met AO on 07.03.2001 and asked about his balance amount he  
stated that he did not give any percentage for the amounts already taken and
further he entrusted some more contract works and so if he pay Rs.1,000/-,
he would issue the cheque for the balance amount of Rs.3,947/- or otherwise
he would delay the payment of amounts concerning to other works and
thereby he would suffer loss. Therefore, the pendency of official favour and
demand are concerned, as rightly argued by Spl.P.P. we have to visualise in
holistic manner rather than isolating the present contract. It is no doubt, the
present contract is concerned, AO made an endorsement on Ex.P6 that the
balance amount would be paid after receiving the order from the Endowment
Commissioner.  However, that is not the only point to decide the issue.  PW1
was the contractor attending different contract works in Veerabhadra Swamy
Temple and AO was the Executive Officer. The demand of bribe was not
only for payment of balance amount concerning the present contract work
but also for entrustment of other works for smooth payment of the amounts.
Viewing in that broader view, it can be said that official favour was pending
with AO. Then demand is concerned, as stated supra, as per PW1 when he  
met AO on 07.03.2001 he demanded bribe of Rs.1,000/-. Demand was  
attacked firstly on the ground that when AO admittedly did not demand
bribe on previous occasions, it would be highly improbable to believe that he
would demand bribe for paying a paltry amount of Rs.3,947/-. Further, on
the aspect of demand except the interested and motivated testimony of PW1
there was no independent corroboration. I am unable to accept the argument
of AO. No doubt, AO did not demand bribe while ordering payment of 3/4th
of contract amount and also paying amounts covered by other contract
works.  However, that is not the end of the matter. When the evidence of
PW1 and Ex.P1 are scrutinized, we would know that AO demanded bribe  
for the past bills and also for paying the balance amount covered by present
contract work.  So, merely because he did not demand bribe on previous
occasions, it cannot be concluded that he was not a bribe monger. Then,
demand is concerned, no doubt, PW1 was the sole witness for demand said
to be made by AO and it is natural because nobody would like to make a
demand for bribe in the presence of others. Now, the veracity of the
evidence of PW1 is concerned, we have already discussed that there was no
ill-motive for PW1 to implicate AO in a false case and that AO failed to
establish such motive.  When such a motive is excluded, there can be no
hurdle to believe the evidence of PW1 on the aspect of demand made by
AO. His evidence is corroborated by Ex.P1complaint and also PW6  
mediator.
e)      PW6 deposed that when himself and Sarangam (LW10) approached    
DSP on 13.03.2001, he introduced PW1 to them and gave a copy of FIR and  
they have gone through FIR. They enquired about the contents of Ex.P1 with
PW1. He avouched the contents therein and as a token of going through the
copy of FIR, they attested on Ex.P8copy of FIR.  So, the evidence of PW6
would show that on their enquiry also PW1 narrated about the demand made
by AO and his giving compliant to ACB police. In this regard, the cited
decisions reported in Sat Paul and Ram Prakash Aroras cases (5 and 6
supra) will not help the case of AO.  As laid down in those decisions, there
can be no demur that evidence of interested and motivated witness should be
viewed carefully and if necessary corroboration has to be sought for from
independent reliable witnesses. However, in the instant case, PW1 being not
motivated, his evidence is reliable and further his evidence gets
corroboration from Ex.P1 and PW6.
8)      Then coming to further demand and acceptance of bribe, as per
prosecution on 13.03.2001 PW1 on the instructions of PW8 went to the
office of AO at about 11.30 AM and found AO in his seat talking with
pilgrims and he also found PW2the UDC and Sudharshan (LW3) working    
in their seats and so he sat and waited upto 12.30 PM. Thereafter, he told
AO that he wanted to go away. On that AO stated he was leaving to
Hyderabad and returning on the next day and after return from Hyderabad he
would issue cheque. Then AO enquired whether he brought the proposed
bribe amount and PW1 affirmed and then AO took PW1 inside the anteroom  
and there on further demand of AO, PW1 handed over the tainted amount to
AO which he received and counted and kept in his left side pant pocket.
Then, PW1 came out and gave pre-arranged signal and thereafter trap party
members rushed and caught hold AO and conducted further proceedings.  
This is precisely the prosecution version on further demand and acceptance
of bribe by AO. The prosecution in order to prove the aforesaid aspects
relied upon the evidence of PWs.1, 2, 6 and 8 coupled with Ex.P10second
mediators report.
a)      In this case, AO admits to have accepted the amount from PW1 but of
course, his contention as already narrated earlier is that on 16.02.2001 PW1
approached him at his house and took a hand loan of Rs.1,000/- for meeting
the medical expenditure of his ailing son and on the date of trap PW1
handed over the tainted amount as if he was repaying the loan contracted
under Ex.D2. So, the crucial point is whether the AO accepted the amount as
bribe as contended by prosecution or whether he innocently received the
amount towards discharge of loan. It should be noted that AO during the
post-trap proceedings twice stated that he received Rs.1,000/- from PW1
towards loan amount due to him and this fact was admitted by PWs.6 and 8
and incorporated in Ex.P10 also. Since PWs.6 and 8 are not the direct
witnesses for what has transpired between PW1 and AO before trap, their
evidence is not useful to clinch whether AO accepted the amount as bribe or
towards discharge of loan. Hence, the prosecution case on the aspect of
further demand and acceptance of bribe mainly pivots on the evidence of
PWs.1 and 2.
b)      PW1 in his evidence clearly stated that AO told him that he was going
to Hyderabad on next day and after returning from Hyderabad he would
issue a cheque and then enquired whether he brought the proposed bribe
amount and PW1 affirmed and thereafter AO took him to the ante-room
attached to his room and there, on his demand PW1 handed over the amount
which he received and counted and kept in his left side pant pocket.  So, as
per PW1 he accepted the amount only as bribe but nothing else.
c)      PW2Ch.Jayashankar who is a Senior Assistant in the EOs office is
concerned, his version is that on 13.03.2001 he and Sudharshan (LW3) and
AO were present in their office and PW1 came to their office at about 11.30
AM and at that time they were talking with the employees of electrical
department with regard to ensuing Jatara and PW1 sitting in front of the seat
of AO for about one hour and talked to AO and thereafter at first PW1 went
into the back room and AO also went inside of the room and 5 or 10 minutes
thereafter, PW1 came out of that room and went outside and AO sat in his
seat and within 5 minutes thereafter ACB officials came their and conducted
trap proceedings. So, the evidence of PW2 is to the effect that he witnessed
AO and PW1 going into the anteroom. This way the prosecution sought
corroboration from PW2. The AO sought to nullify the version of PW1
through loan repayment theory. PW2 is concerned, the contention of AO is
that PW2 and LW3 were not at all present in the office at the crucial time
and prosecution inducted them to give a colour of truth to its story and PW2
was enimically disposed of towards AO, since he issued Ex.X9charge
memo against him.
d)      In the light of above respective stands of both parties, it has to be
examined whether AO accepted the amount as bribe or towards discharge of
loan. Before that, since the demand aspect projected by the prosecution is
believed and since acceptance of the amount was admitted and also
established through the recovery of tainted amount from the pant pocket of
AO and chemical test conducted on his both hands and inner linings of the
pant pocket proved positive, the mandatory presumption under Section 20 of
PC Act shall follow to the effect that AO accepted the amount as motive or
reward for doing an official favour. Hence, it has to be seen whether the AO
could rebut the presumption through the explanation offered by him.  Before
scrutinizing veracity of his explanation it is apt to discuss the evidence of
PWs.1 and 2 regarding the nature of amount offered by PW1.
9)      As stated supra, PW1 emphatically stated that he paid the amount to
AO only as bribe on his further demand.  Further, in his cross-examination
he denied receiving any loan from AO. His evidence on this aspect is thus:
It is not true to suggest that I have received Rs.1,000/- as per the
contents in that typed receipt and signed in it (the witness volunteers)
whenever I received amount I would be passing a receipt in my own
hand.  Ex.D2 is the said receipt (marked for identification purpose and
only to the extent of signature of PW1). It is not true to suggest that on
16.02.2001 in the morning hours I approached AO at his house and
requested him to give a loan of Rs.1,000/- as my son was unwell and the
AO has given that amount and obtained Ex.D2.  On the day I gave 164
Cr.P.C. Statement, before I went to the Court the AO has telephoned me
and threatened me that he has got receipt and I should not give
statement adverse to him. Then only I came to know about Ex.D2. It is
true I have mentioned in 164 Cr.P.C. statement that AO has threatened
me that he got receipt that I have taken loan and that he would get a
case booked against me for getting him falsely implicated and according
to me it is a false receipt which I have mentioned in it.
    x x x x
He further deposed thus:
It is not true to suggest that Ex.D2 is a genuine receipt passed by me
and to overcome it, I have concocted a story and thereby even referred
that story in my 164 Cr.P.C. statement.  It is not true to suggest that
even on the date of trap the AO has received an amount of Rs.1,000/-
and that I told him that I was returning that amount as the amount
borrowed from him and that he asked me to come on that evening to
pass a receipt and thereafter only I came outside the office. It is not true
to suggest that myself and AO did not at all go into ante-room and that
at that time myself and AO alone were present in his office room and
Jayashanker and Sudharshan were not at all present in that room. It is
not true to suggest that the suspended staff and Sarpanch instigated me
having paid me Rs.10,000/- to lodge false complaint and to get the AO
implicated falsely by arranging the instant trap.
a)     So, when the above cross-examination is perused, it is clear that
nothing specific was extracted from PW1 to make him admit that the amount
was paid towards discharge of loan contracted under Ex.D2. What all
extracted was that even after knowing before giving 164 Cr.P.C. statement
that AO was in possession of Ex.D2, PW1 has not taken any steps and ACB  
officials have not investigated in those lines. Merely because they have not
done these acts, the veracity of evidence of PW1 will not be affected and
authencity of Ex.D2 will not be established particularly, when AO failed to
establish any motive for PW1 to foist a false case against him. So, at the
outset there is nothing on record to discard the evidence of PW1.
b)      PW2 is concerned, as stated supra, AO disputes about the very
presence of PW2 and LW3 at the office of AO at the crucial time.  It must be
said that this argument does not have teeth.  The trap took place in the office
of AO on a working day and during working hours.  PW2 and LW3 being
the employees of AO their presence in the office is a natural phenomenon.
Further, Ex.P7attendance register shows that both PW2 and LW3 signed  
on 13.03.2001 indicating their attending the office. Further, as observed by
the trial Court, in Ex.P11-sketch the seats of PW2 and LW3 are mentioned
near the seat of AO in the same room and Ex.P11 is not controverted.
Above all, in Ex.P10 it is mentioned that the TLO examined PW.2 and LW.3
and recorded their statements during post-trap proceedings.  Both of them
signed on Ex.P.10. Therefore, in my view, the presence of PW.2 and LW.3
at the crucial time need not be doubted.  As rightly observed by the trial
Court, if really TLO wanted to project the presence of PW.2 and LW.3 at the
time of trap despite their absence, he can only plan it subsequently but
cannot incorporate their presence instantaneously while preparing Ex.P.10.
It is difficult to get their signatures on Ex.P.10 in their absence.  Further,
if
he falsely mentioned their presence in Ex.P.10, the AO while endorsing
receipt of copy of Ex.P.10 would certainly protest about it.  However, AO
did not make any such protest but simply acknowledged the receipt of copy
of Ex.P.10.  All these would avouch the presence of PW.2 and LW.3.  So the
evidence of PW.2 proves a vital circumstance connecting to the case about
PW.1 and AO going to rear room and after few minutes their coming out and
then PW.1 going out of the office.  Their conduct gives scope for suspicion.
Had PW.1 only to repay the loan amount, there was no need for AO to take
him to the rear room. Here, with regard to the veracity of PW.2, it is
contended that AO issued charge memo against him under Ex.X.9 and  
subsequently placed him under suspension and hence out of spite PW.2
deposed falsehood to help prosecution as if AO and PW.1 went into the rear
room.  In my view, this argument was effectively dealt with by the trial
Court with reference to Ex.X.9file and conduct of AO after trap.  It is true
that AO issued charge memo dated 23.01.2000 directing PW.2 to submit his
explanation within 7 days and PW.2 received the memo on 23.12.2000.
However, record shows that he did not submit his explanation till the date of
trap and AO too, it appears, did not take any further action.  However,
surprisingly on 15.03.2001 i.e, immediately two days after trap, AO issued
another memo dated 15.03.2001 directing him to submit explanation within
7 days and placed him under suspension.  As rightly pointed out by the trial
Court, the very fact that within a couple of days after the trap, AO placing
PW.2 under suspension having kept mum for about 2  months shows that  
merely because of the memo dated 23.12.2000, PW.2 did not entertain any
grudge to speak falsehood against AO but on the other hand due to the
statement of PW.2 in Ex.P.10, AO suspended him within two days after the
trap.  So the evidence of PWs.1 and 2 projects a strong circumstance that the
amount paid by PW.1 to AO was towards bribe but not towards discharge of
loan.
10)     Now coming to the defence explanation, the same is not believable
because of the different reasons cogently cited by the trial Court.
a)      As rightly pointed out by the trial Court, just few days prior to
16.02.2001, AO paid contract bill amounts to PW.1.  On 12.02.2001, PW.1
received Rs.10,000/- (vide Ex.X.1receipt) and on 15.02.2001 i.e, a day
prior to the alleged loan transaction, again PW.1 received Rs.7,000/- (vide
Ex.X.2receipt). In such circumstances, when PW.1 was having money  
with him, it would be highly improbable to believe that he would borrow a
paltry sum of Rs.1,000/- on the morning of 16.02.2001 from AO. Further,
AO is the Executive Officer and PW.1 is a Contractor and it is difficult to
believe they have such intimacy to borrow loan. This is one of the strong
circumstances belying the loan theory.
b)      The next circumstance is that during the trap proceedings though AO
proclaimed that he received amount from PW.1 towards the discharge of
loan, surprisingly he did not whisper about Ex.D.2receipt.  Assuming that
in the charged circumstances he forgot to bring to the notice of trap party
members about Ex.D.2, nothing prevented him to show Ex.D.2 to them
during his house search conducted after trap on the same day.  In my
considered view, that was the proper time to divulge about the Ex.D.2, if it
were really in existence. Instead he belatedly mentioned about Ex.D.2 during
his explanation under Ex.D.4. Be that it may, he divulged about Ex.D.2
before Court only during trial. The conduct of AO concerning Ex.D.2
creates any amount of doubt regarding the genuinity of Ex.D.2.  It is true
that merely because an accused failed to offer a spontaneous explanation
regarding his possession of the bribe amount, the same cannot be rejected on
the ground that it was offered belatedly during trial, provided the
explanation is believable.  Similarly, when an accused offered spontaneous
explanation but failed to produce spontaneous proof in support of his
explanation, the same cannot be rejected when the proof is produced during
trial if the said proof is believable. So the believability of the explanation
is
important. The believability depends on the nature of explanation offered. In
the instant case, the explanation pivots on Ex.D.2 document.  Had this vital
piece of evidence was not in the custody and reach of AO till it was
produced in Court, no inference of manipulation can be drawn against AO,
however it was admittedly said to be in his own custody and still it was not
produced at the earliest point of time without any plausible reason.  In such
an event, the genuinity of Ex.D.2 cannot be accepted.  Further, Ex.D.2
appears on a small piece of paper and contents appear to be typewritten in
English and thereunder it is mentioned in the handwriting of PW.1 as itlu
mee videyulu and beneath it, his signature and date as 16.02.2001 and
within brackets Contractor are written.  When PW.1 is an educated person,
there is no reason why he did not write the contents of the receipt also in his
handwriting.  So the appearance of Ex.D.2 also throws doubt.
11)     So on a conspectus of the facts, circumstances and evidence relating
to Ex.D.2, no reliance can be placed on Ex.D.2.  The cited decisions will not
advance the cause of A.O. Therefore, it must be said that AO failed to rebut
the presumption through the explanation offered by him.  The trial court
rightly convicted and sentenced him for the offences under Section 7 and 13
(1)(d) r/w 13(2) of  P.C. Act and I find no merits in the appeal to set aside
the judgment of the trial Court.
12)     In the result, this Criminal Appeal is dismissed by confirming the
conviction and sentence passed by the trial Court in C.C.No.18 of 2002.
Consequently, appellant/AO is directed to surrender before the trial Court on
or before 09.02.2015 and on such surrender, the trial Court shall commit him
to jail for serving sentence.
        As a sequel, miscellaneous applications pending, if ay, shall stand
closed.
_________________________  
U. DURGA PRASAD RAO, J    
Date: 19.01.2015

Friday, January 30, 2015

whether the said noble aim can be achieved by merely making organisers of brothel house and pimps as offenders while leaving the customers of flesh trade scot free.

THE HONBLE SRI JUSTICE U. DURGA PRASAD RAO          

Crl.P.No.16593 of 2014

21-01-2015

Mohammed Shaheed .petitioner  

State of Telangana rep. by PP. Respondent

Counsel for Appellant   : Sri Bethi Venkateshwarlu

Counsel for Respondent  : Public Prosecutor

<Gist:

>Head Note:

? Cases referred:

1. 2014 (2) ALD (Crl.) 264
2. 2013 (2) ALD (Crl.) 393

THE HONBLE SRI JUSTICE U.DURGA PRASAD RAO          
CRIMINAL PETITION No.16593 of 2014  
ORDER:
     The petitioner/Accused No.5 along with A.1 to A.4 and A.6 is accused
of committing offences under Sections 3, 4 and 5 of Immoral Traffic
(Prevention) Act, 1956 (for short the Act).  On the evening of 05.08.2014,
the Police of Banjara Hills P.S raided the residential Flat No.104 in Jubilee
Hills and found the said premises being used for prostitution. A.2 and A.4
were said to be the brothel house organizers, A.1 and A.3 were pimps whereas
A.5 and A.6 were the customers. The police registered crime and investigating
the matter.
2)      Now the petitioner/A.5 filed this petition under Section 482 Cr.P.C
seeking quashment of the proceedings in Crime No.864 of 2014 of Banjara
Hills P.S, Hyderabad.
3)      Learned counsel for petitioner would submit that none of the Sections 3,
4 and 5 or other sections of the Act describe a customer as offender and
therefore, the prosecution of the petitioner/ A.5 is abuse of process of law and
hence the proceedings against him may be quashed.
4)      Learned Public Prosecutor contended A5 is a co-accused and liable for
prosecution.
5)      I find force in the submission of petitioner. Section 3 of the Act deals
with punishment for keeping a brothel or allowing premises to be used as a
brothel. Section 4 of the Act deals with punishment for living on the earnings
of the prostitution. Whereas Section 5 of the Act deals with procuring,
inducing or taking persons for the sake of prostitution. Obviously, the
allegation against the petitioner/A.5 is not that of either running brothel
house
or procuring women for the purpose of prostitution or that he is living by
earning money on prostitution. He was booked along with other accused only
as a customer of the flesh trade. Therefore Sections 3 to 5 are not applicable
to
him. It is interesting to note that none of the other penal provisions in the
Act
either describe him as an offender. Therefore, there is any amount of force in
the submission of learned counsel for petitioner that a customer to the flesh
trade cannot be treated as an offender under the Act. This aspect is no more
res integra and we are fortified by atleast two judgments of this High Court
viz., Goenka Sajan Kumar vs. The State of A.P.  and Z. Lourdiah Naidu  vs.
State of Andhra Pradesh . In these two cases, the petitioners were admittedly
the customers to a brothel house.  Consequently, the proceedings against them
were quashed holding that the provisions of the Act cannot be invoked for
prosecuting them.
6)      Having regard to the facts and above precedential jurisprudence on the
subject in issue, it is clear that the criminal proceedings against the
petitioner
would amount to abuse of process of law.
7)      Before parting, I will be failing in my duty if I do not vent out my view
on the present enactment. Law or literature cannot have more a noble aim than
depicting evil of the society and suggesting the eradicative measures. That is
why the noble Telugu play-wright Gurajada Appa Rao penned
Kanya Sulkam exposing the obnoxious practice of parents marrying their
infant daughters to septuagenarians and octogenarians for money. Another
Telugu poet Sri Sri who advocated for the cause of oppressed and
downtrodden clamoured in his ballad Kavitha o Kavitha for various sections
of destitutes in society. One among them are prostitutes. Their plight and
agony in his own words is thus:
????? ???????? ????
??????????  ?????? ?????  
??????????? ???????  
????? ???? ???? ??????
(half opened eyes of her
screams of the dreaded pain
for pet-storming brutal coitus !)
Viewing in the above context, no doubt the Immoral Traffic (Prevention) Act,
1956 is a piece of legislation aimed at preventing trafficking of women.
However, the point is whether the said noble aim can be achieved by merely
making organisers of brothel house and pimps as offenders while leaving the
customers of flesh trade scot free. As the saying goes no single hand can
produce claps, vicious circle of immoral trafficking will not be completed
without active participation of the flesh customers. In my considered view, it
is unwise to say that a customer who lurks in day and night in search of hidden
avenues to quench his sexual lust is a hapless victim of a crime to place him
out of the reach of the tentacles of the law which is intended to eradicate the
pernicious practice of immoral trafficking of women. Such an unwarranted
sympathy on a criminal will not help achieve desired results though aimed at
high.  After all, the Court can only describe the law as it is but cannot
dictate
what it ought to be. Yet, through this judgment I appeal to the Legislature to
ponder over the possibility of bringing the flesh customers within the fold of
Immoral Traffic (Prevention) Act, 1956.
9)      In the result, this Criminal Petition is allowed quashing the proceedings
against petitioner/A.5 in Crime No.864 of 2014 of Banjara Hills P.S,
Hyderabad.
     As a sequel, Miscellaneous Petitions pending, if any, shall stand closed.
        The Registrar (Judicial) is directed to transmit a copy of this judgment
to the Union Law Minister for perusal.

_______________________  
U.DURGA PRASAD RAO, J    
Date: 21.01.2015

whether the authorities concerned were correct in holding that the applications filed by the petitioners and/or their predecessors-in- title were barred by limitation.=The Settlement Officer, Visakhapatnam, rejected the subject applications on the ground that they were not filed within 30 days from the date of introduction of settlement rates, as prescribed under Rule 2(4) (wrongly described as Rule 4) of the Andhra Pradesh (Andhra Area) Estates (Abolition and Conversion into Ryotwari) Grant of Ryotwari Patta Rules, 1973 (for brevity, the Rules of 1973).In so far as the legal position is concerned, it may be noticed that Section 67(2)(e) of the Act of 1948 empowers the Government to make rules for application of the provisions of the CPC and the Indian Limitation Act to applications, appeals and proceedings under the Act of 1948

THE HONBLE SRI JUSTICE SANJAY KUMAR        

WRIT PETITION NOS.17882 OF 2004    


23-01-2015

Gadde Krishna Murthy and others Petitioners

 The Mandal Revenue Officer, Sitanagaram,  East Godavari District and
others...Respondents

Counsel for petitioners:  Sri VLN Gopala Krishna Murthy

Counsel for respondents: Govt. Pleader for Revenue

<GIST:

>HEAD NOTE:  

? CASES REFERRED:    

1.  2005(4) ALD 311
2.  2014(2) ALT 97
3.  1957 The Andhra Weekly Reported 106
4.  1999(1) ALT 327
5. 1995 (3) ALT 685

THE HONBLE SRI JUSTICE SANJAY KUMAR        

        WRIT PETITION NOS.17882, 17888,  
17889 AND 17891 OF 2004  


DATED 23rd JANUARY, 2015    

C O M M O N   O R D E R  

       Individual orders dated 06.06.1986 were passed by the
Settlement Officer, Visakhapatnam, rejecting certain applications
filed under Section 11(a) of the Andhra Pradesh (Andhra Area)
Estates (Abolition and Conversion into Ryotwari) Act, 1948 (for
brevity, the Act of 1948).  The said applications were made by the
petitioners in these cases and/or their predecessors-in-title for
grant of ryotwari pattas in relation to various extents of land in
Singavaram Village of Korukonda Taluk, East Godavari District,
claimed by them under registered sale deeds.  These lands formed
part of Gangulapudi Zamindari estate, which was notified and taken
over by the Government in the year 1950 under the Act of 1948.
      The Settlement Officer, Visakhapatnam, rejected the subject
applications on the ground that they were not filed within 30 days
from the date of introduction of settlement rates, as prescribed
under Rule 2(4) (wrongly described as Rule 4) of the Andhra
Pradesh (Andhra Area) Estates (Abolition and Conversion into
Ryotwari) Grant of Ryotwari Patta Rules, 1973 (for brevity, the
Rules of 1973).  The orders of the Settlement Officer were confirmed
in revision by the Director of Settlements, Andhra Pradesh,
Hyderabad, by common order dated 28.11.1996.  The said common  
order was subjected to further revision before the Commissioner,
Appeals, Office of the Chief Commissioner of Land Administration,
Andhra Pradesh, Hyderabad, and was again confirmed under the
common order dated 02.02.2002.
      Aggrieved thereby, the petitioners are before this Court
seeking Writs of Certiorari to call for the records relating to the
three orders and to quash the same along with a consequential
direction to the Settlement Officer, Visakhapatnam, to entertain
their applications for issuance of pattas under Section 11(a) of the
Act of 1948.
      By individual interim orders dated 05.10.2004 passed in all
the writ petitions, this Court directed status quo obtaining as on
that day with regard to the possession of the land in question to be
maintained until further orders.
      The short issue that falls for consideration in these cases is
whether the authorities concerned were correct in holding that the
applications filed by the petitioners and/or their predecessors-in-
title were barred by limitation.
      In W.P. No.17882 of 2004, the petitioners claim to be the legal
heirs of Gadde Nagabhushanam and Chokka Lovaraju, who  
purchased an extent of Ac.7.00 in Sy.No.11 of Singavaram Village
under a registered sale deed of the year 1948.  In W.P.No.17888 of
2004, the petitioners claim to be the legal heirs of Gangiri Tatabbai,
who purchased an extent of Ac.3.50 cents in Sy.Nos.12, 13, 15, 101
and 102 of Singavaram Village under a registered sale deed of 1948.
In W.P.No.17889 of 2004, the petitioner claims to be the legal heir
of Thammisetti Posayya, who purchased an extent of Ac.16.00 in
Sy.No.10 of Singavaram Village under a registered sale deed dating
back to the year 1950.  In W.P.No.17891 of 2004, the petitioner
claims to be the legal heir of Gangisetti Appa Rao, who purchased
an extent of Ac.3.50 cents in Sy.Nos.12, 13, 101 and 102 of
Singavaram Village.  It is the admitted case that the applications
under Section 11(a) of the Act of 1948 were filed only on
15.12.1985, long after ryotwari settlement of Gangulapudi estate
was effected under Section 22 of the Act of 1948.  It is also the
admitted position that no petitions were filed by the applicants for
condonation of the delay in the filing of applications under Section
11(a) of the Act of 1948 before the Settlement Officer,
Visakhapatnam.  It was only before the Director of Settlements,
Andhra Pradesh, Hyderabad, that such petitions were filed by all
the petitioners under Section 5 of the Limitation Act, 1963.
      Perusal of the individual orders dated 06.06.1986 passed in
all the cases by the Settlement Officer, Visakhapatnam, manifests
that the said authority was of the opinion that as the applications
were not filed within 30 days after introduction of settlement rates
under Section 22 of the Act of 1948, as laid down under Rule 4 (sic )
of the Rules of 1973, the applications were barred by limitation.  He
therefore concluded that the applications could not be entertained
and accordingly returned the same.  In revision, the Director of
Settlements, Andhra Pradesh, Hyderabad, vide his common order
dated 28.11.1996, opined that as the rule, which permitted the
Settlement Officer to condone the delay in the entertainment of an
application, had been omitted thereafter, the action of the
Settlement Officer, Visakhapatnam, in rejecting the claims of the
applicants under Section 11(a) of the Act of 1948 on the ground
that they were time barred was correct.  The Director of
Settlements, Andhra Pradesh, seems to have been under the
impression that the petitions for condonation of delay were filed by
the applicants before the Settlement Officer, Visakhapatnam, which
was factually incorrect.  He therefore failed to deal with the petitions
for condonation of delay filed before him by the applicants along
with the revision petitions.  In further revision, the Commissioner,
Appeals, in his common order dated 02.02.2002, referred to the fact
that the earlier rule, which permitted condonation of delay in the
entertainment of applications under Section 11(a) of the Act of
1948, had been omitted thereafter and opined that as the revision
petitioners had not filed any documentary evidence showing reasons
for condonation of the delay by the Settlement Officer, no reason
was made out to interfere with the common order dated 28.11.1996
passed by the Director of Settlements, Andhra Pradesh, Hyderabad.
However, this order does not manifest any reasons as to why the
condone delay petitions filed by the petitioners failed to demonstrate
sufficient reason for condonation of the delay.
      In so far as the legal position is concerned, it may be noticed
that Section 67(2)(e) of the Act of 1948 empowers the Government to
make rules for application of the provisions of the CPC and the
Indian Limitation Act to applications, appeals and proceedings
under the Act of 1948.  In exercise of this power, the Government of
Andhra Pradesh framed a rule, which was notified in the St. George
Gazette dated 17.10.1950, which reads as follows:
      In exercise of the powers conferred by Section 67 (2)(e)
of the Madras Estates (Abolition and Conversion into
Ryotwari) Act, 1948 (Madras Act XXVI of 1948), His
Excellency The Governor of Madras hereby makes the
following rule :-
      The provisions of Sections 4,5,12(o) and (2), 17(1) and
18 of the Indian Limitation Act, 1908 (Central Act IX of 1908)
shall apply to all proceedings under the Madras Estates
(Abolition and Conversion into Ryotwari) Act, 1948 (Madras
Act XXIV of 1948) or under the rules thereunder, before the
Tribunals, Special Tribunals, authorities and officers having
jurisdiction under the latter Act.

      It may also be noted that the Government is empowered,
under Section 67(2)(d) of the Act of 1948, to make rules prescribing
the time within which applications and appeals may be presented
under the Act of 1948, in cases where no specific provision has
been made in that behalf.  In exercise of this power, the
Government of Andhra Pradesh framed the Rules of 1973 which
were notified in G.O.Ms.No.50, Revenue (J-1), dated 16.01.1974.
Rule 2(4) of the Rules of 1973 originally read as follows:
      (4) Notwithstanding anything in sub-rule (2) but
subject to the provision of sub-rule (5), where in respect of an
estate in which the ryotwari settlement under Section 22 has
already been effected before the commencement of these
rules, such an application may be filed before the Settlement
Officer within thirty days from the date of such
commencement.  
      Provided that the Settlement Officer may, for good and
sufficient reasons shown by the applicant, entertain an
application filed before him after the period of thirty days
aforesaid.

      However, an amendment was effected to the Rules of 1973 by
way of the Amendment to the Andhra Pradesh (Andhra Area)
Estates (Abolition and Conversion into Ryotwari) Grant of Ryotwari
Patta Rules, 1973, notified under G.O.Ms.No.911, Revenue (J),
dated 15.06.1983.  The amendment is extracted hereunder:
      In exercise of the powers conferred by clause (d) of
sub-section (2) of section 67 read with section 11 of the
Andhra Pradesh (Andhra Area) Estates (Abolition and
Conversion into Ryotwari) Act, 1948 (Act, XXVI of 1948), the
Governor of Andhra Pradesh, hereby makes the following
amendment to the Andhra Pradesh (Andhra Area) Estates  
(Abolition and Conversion into Ryotwari) Grant of Ryotwari
Patta Rules, 1973, issued in G.O.Ms.No.50, Revenue, dated
the 16th January, 1974.
      Amendment
      The proviso under sub-rule (4) of rule 2 of the said rules
shall be omitted.

      Thus, by virtue of this amendment, the power of condoning
the delay, provided under the proviso to Rule 2(4), stood omitted.
      Again in the year 1986, a further amendment was effected to
the Rules of 1973 by the Amendment to the Andhra Pradesh
(Andhra Area) Estates (Abolition and Conversion into Ryotwari)
Grant of Ryotwari Patta Rules, 1973.  By way of this amendment,
the following proviso was added to Rule 2(4) of the Rules of 1973.
      Provided that the Settlement Officer may condone the
delay, if such delay is caused due to the pendency of a
dispute in a Court or for good and sufficient reasons shown
by the applicant for the delay caused, and thereafter entertain
an application filed before him after said period of thirty
days.

      The above amendment was notified under G.O.Ms.No.551,
Revenue (J), dated 19.05.1986, i.e. after submission of the
applications on 15.12.1985 by the applicants in the present cases.
Therefore, at the time when these applications were submitted, the
said proviso was not in existence.
        It appears that by way of a further amendment effected under
G.O.Ms.No.400, Revenue (JA), dated 24.04.1993, the proviso added
in the year 1986 was again omitted.
        The learned counsel for the petitioners in this batch of cases
would however contend that irrespective of the amendments
effected to the Rules of 1973, whereby the power of condoning the
delay in the submission of applications, was extant for certain
periods of time and was omitted during certain other periods of
time, the earliest rule framed under Section 67(2)(e) of the Act of
1948, extending the provisions of Section 5 of the Limitation Act to
applications under the Act of 1948, remained untouched and
therefore, the Settlement Officer, Visakhapatnam, enjoyed such
power independently.  It may be noticed that this aspect was not
raised before any of the authorities below and was not adverted to
even in the pleadings in these cases.  However, as the issue is a
purely legal one revolving around application of a statutory rule,
this Court finds no reason to reject the argument on the ground
that it was not raised earlier.  It may also be noted that the
petitioners specifically raised the issue of condonation of the delay
in the filing of the applications before the Commissioner, Appeals,
and the defence of the Government was that illiteracy and ignorance
of the legal provisions was not a ground available in law. It was
therefore for the authorities concerned to apply the correct legal
position irrespective of whether the applicants adverted to or
invoked the same.
        The learned Assistant Government Pleader for Revenue fairly
admits that the rule framed under Section 67(2)(e) of the Act of
1948 on 17.10.1950, extending the provisions of Section 5 of the
Limitation Act to applications under the Act of 1948, remains
untouched notwithstanding the amendments made to the Rules of
1973 framed under Section 67(2)(d) of the Act of 1948.
      The cases on hand therefore present a classic example of the
rule making authority, viz. the Government, being in a state of utter
confusion as to the legal position in so far as condonation of delay
in the filing of applications under Section 11(a) of the Act of 1948 is
concerned.  On the one hand, the rule framed under Section 67(2)(e)
of the Act of 1948 continues to hold the field, whereby Section 5 of
the Limitation Act was extended to and remained in force as regards
submission of applications for grant of ryotwari pattas, while on the
other, the rule framed under Section 67(2)(d) of the Act of 1948 was
subjected to amendments time and again, whereby the power to
condone the delay was extended and/or omitted from time to time.
As long as the rule framed under Section 67(2)(e) of the Act of 1948
holds the field without interruption, the changing stands of the
Government as to the rule framed under Section 67(2)(d) of the Act
of 1948 cannot and do not make any inroads into the applicability
of the Limitation Act to proceedings under the Act of 1948.
        It is also relevant to note that the applicability of the
provisions of Section 5 of the Limitation Act to a similar case fell for
consideration before this Court in GANDHAM VAJRAMMA V/s.    
COMMISSIONER OF SURVEY, SETTLEMENTS AND LAND              
RECORDS, HYDERABAD .  A learned Judge of this Court referred  
to the rule framed under Section 67(2)(e) of the Act of 1948 and the
separate rules framed under Section 67(2)(d) of the Act of 1948 and
opined that as the earliest notification dated 17.10.1950, whereby
the rule was framed under Section 67(2)(e), remained untouched
and was still in force, the statutory power conferred thereby could
not be tinkered with by the framing and amendment of rules under
Section 67(2)(d) of the Act of 1948.  The learned Judge therefore
concluded that the provisions of Section 5 of the Limitation Act
made applicable under the notification dated 17.10.1950 continued
to have an application to all proceedings before the authorities
constituted under the Act of 1948. This principle squarely covers
the present cases.
        The other issue germane for disposal of these cases is
whether the failure on the part of the petitioners and/or their
predecessors-in-title in seeking condonation of the delay in their
filing applications under Section 11(a) of the Act of 1948 before the
Settlement Officer, Visakhapatnam, would be fatal to their case.
Admittedly, such applications were filed only before the Director of
Settlements, Andhra Pradesh, Hyderabad.
      In this regard, the learned counsel for the petitioners would
place reliance on BASHEERUNNISA BEGUM (DIED) PER L.RS. V/s.      
MEER FAZEELATH HUSSAINI (DIED) PER L.RS. , and more      
particularly para 28 thereof.  Therein, this Court was concerned
with the question whether a formal application was necessary for
condonation of delay.  Referring to earlier decisions of various High
Courts, the learned Judge held that the language of Section 5 of the
Limitation Act did not expressly or by necessary implication
mandate the filing of a written application to obtain relief under the
said Section; that it vested judicial discretion in Courts to exercise
their inherent power and excuse the delay even on an oral
application having regard to the circumstances of a particular case.
Reference was also made to a Division Bench judgment of this
Court in C.V.G. CHOWDARY V/s. DOPPALAPUDI SESHAIAH ,        
wherein it was held that it is not necessary that there should be a
formal petition to excuse delay and it is always open to a Court or a
Tribunal to condone the delay if the person concerned is able to
convince it that there were justifiable grounds for the delay in
presenting an appeal or a petition.  The Division Bench further held
that the filing of a formal petition for excusing delay is not the sine
qua non for exercise of that power.  The learned Judge also referred
to the judgment of this Court in MOVVA ANJAMMA V/s. ABHINENI    
ANASUYA , wherein it was held that even if an application to set
aside an order dismissing the suit for default was not accompanied
by an application for condonation of delay despite lapse of nine
months, the affidavit filed in support of the application for
restoration could make out sufficient cause for condonation of the
delay and there is no necessity for filing a separate application for
condonation of the delay. In A. GOVINDAIAH V/s. V. 
VENKATAMMA , this Court held that the delay could be condoned   
even without filing a separate application for condonation of delay, if
the delay is otherwise explained in the affidavit filed in support of
the application made to set aside the ex parte decree.  In that case,
the petitioner was a rustic villager residing in a remote village and
was an illiterate and this Court held that he had made out sufficient
cause for condonation of the delay.
        Given the aforestated legal position, it is clear that the initial
failure on the part of the petitioners and/or their predecessors-in-
title in seeking condonation of the delay in the filing of applications
under Section 11(a) of the Act of 1948 would not be fatal.  In the
applications filed before the Settlement Officer, Visakhapatnam, the
petitioners and/or their predecessors-in-title specifically stated that
they had no knowledge of the legal requirements and further
explained the delay in their separate applications filed before the
Director of Settlements, Andhra Pradesh, Hyderabad.  These
applications were never considered on merits.
        In the totality of the above circumstances, as the authorities
concerned stood vested with the power available under Section 5 of
the Limitation Act by virtue of the notification dated 17.10.1950,
which remained untouched all through, their ignorance of the same
and their bald refusal to consider condonation of the delay, on the
short ground that the rules framed under Section 67(2)(d) of the Act
of 1948 denied them such power, cannot be countenanced.  The
lack of clarity on the part of the authorities in this regard finds
resonance in their counter-affidavits filed before this Court in these
cases.  On one hand, the Tahsildar, Sitanagaram Mandal, East
Godavari District, who deposed to these affidavits, sought to justify
the rejection of the claim petitions on the ground that they were
time barred while at the same time, he admitted in para 6 of the
counter affidavits that the Settlement Officer had the power to
condone the delay in entertaining the claim petitions but as the
petitioners failed to submit their applications within a reasonable
time, they were rejected as time barred.  This statement, on the face
of it, is self-contradictory and to compound the same, the orders
passed by the authorities below reflect that there was no actual
consideration of the reasons put forth by the petitioners seeking
condonation of the delay in filing claim petitions under Section 11(a)
of the Act of 1948.
      As the valuable property rights of the petitioners are at stake
and as the legal position, as set out supra, was ignored by the
authorities in so far as the extant rule under Section 67(2)(e) of the
Act of 1948 is concerned, this Court has no hesitation in holding
that the summary rejection of the applications filed by the
petitioners and/or their predecessors-in-title under Section 11(a) of
the Act of 1948 on the short ground that they were time barred,
applying the rules framed under Section 67(2)(d) of the Act of 1948,
cannot be sustained.
      The orders impugned in these writ petitions are accordingly
set aside and matter is remitted to the Settlement Officer,
Visakhapatnam, for re-consideration on the issue of the delay in the
filing of the applications under Section 11(a) of the Act of 1948, on
merits.  It is made clear that this Court has not ventured into the
merits of the claims made by the petitioners as to their entitlement
for grant of ryotwari pattas or even for condonation of the delay in
the filing of such applications.  It is for the Settlement Officer,
Visakhapatnam, to deal with the same on the independent and
individual merits of each case and pass appropriate reasoned orders
thereon in accordance with law.
      The writ petitions are allowed to the extent indicated above.
Pending miscellaneous petitions, if any, shall stand closed in the
light of this final order. In the circumstances, there shall no order
as to costs.
________________________  
SANJAY KUMAR, J  
23rd JANUARY, 2015