Kathi Lokayya and ors. Vs. Government of Andhra Pradesh, Rep. by Its Secretary, Panchayat Raj and Rural Development (Pts.iv) Department and ors. - Court Judgment

Excerpt:
- specific relief act, 1963 [c.a. no. 47/1963]. sections 31 & 34: [bilal nazki, v.v.s. rao & g. chandraiah, jj] [per court] cancellation of registered sale deed inherent power of registering authority - fraudulent transfer of property sale taking place by reason of fraud played by transferor and transferee held, it is void. true owner can nullify the sale by executing and registering a cancellation deed without seeking declaration or cancellation of fraudulent transfer deed from court. registering authority is empowered to cancel sale deed earlier registered. registration of document cannot be understood to be an absolute sale divesting vender of its title else it would render sections 31 and 34 of specific relief act, otiose. -- transfer of property act,1882[c.a. no. 4/1882]. sections 53 & 126: [per court] cancellation of registered sale deed inherent power of registering authority - fraudulent transfer of property sale taking place by reason of fraud played by transferor and transferee held, it is void. true owner can nullify the sale by executing and registering a cancellation deed without seeking declaration or cancellation of fraudulent transfer deed from court. registering authority is empowered to cancel sale deed earlier registered. registration of document cannot be understood to be an absolute sale divesting vender of its title else it would render sections 31 and 34 of specific relief act, otiose. - it is well known that when executive orders are made, and here the rule is a statutory one, the authority promulgating the order must be held as also being rigorously bound to the order as otherwise any decision taken contrary to that would be open to the charge of discrimination and arbitrariness.orderlingaraja rath, j.1. the sole point urged in this writ petition, assailing the decision of the government upholding the bifurcation of the guruzala gram panchayat by carving out the village jangamaheshwarapuram from it, to form it as a separate gram panchayat, is that the distance between the two villages, guruzala and jangamaheshwarapuram is only 400 metres. it is the submission of the learned counsel sri ravindranath reddy, appearing for the petitioner that under g.o.ms. no. 515, dated 17-8-1994 which was subsequently amended by g.o.ms. nos. 272 and 273 dated 18-5-1995 the distance between the two villages must be 2 k.ms. for the purpose of bifurcation. it is his argument that as the two villages are only 400 metres apart, there could not have been a bifurcation.2. the facts are that originally to a proposal of the collector for bifurcation of the gram panchayat, a unanimous resolution was passed by the gram panchayat opposing the bifurcation which was accepted by the collector and an order was passed accordingly not to bifurcate. a revision was carried before the government by respondent no. 3 in which the government reversed the decision of the collector by its order dated 31-5-1995 and passed orders for bifurcation. the matter was challenged before this court in w.p. no. 11012 of 1995 which was disposed of on 5-12-1995 directing the government to reconsider the matter. the government passed orders on 17-12-1996 holding that as the distance between the two villages is 2.6 k.ms., there is no need for a re-consideration.3. counter affidavit has been filed by the state supporting the bifurcation and contending that the distance between the two villages measured from the centre of guruzala village where the gram panchayat building is situated to the centre of jangamaheshwaram village is 2.6 k.ms. and therefore the decision to bifurcate the gram panchayat cannot be interfered with. in the counter-affidavit reliance is placed on g.o.ms. no. 515, dated 17-8-1994, under which, it is stated, the distance shall be taken from the gram panchayat if any, or from the central point in the village, for the purpose of bifurcation.4. in the government order in question, the distance is defined in clause 2(ii) as follows :'(ii) 'distance' means the distance of an area from the office building of the gram panchayat, if any, or from a central point in the village as fixed by the commissioner (pr);'5. to our question that though the definition mentions a starting point for measurement of the distance yet it does not provide for an end point and that there is no provision to take the distance from centre to centre of the two villages, the learned government pleader for panchayat raj submits, after taking adjournment to obtain instructions in the matter, that the definition is as it is and that there is no other provision showing that the distance has to be measured from the centre of one village to the centre of the other village. the word 'distance' means the linear length from a point to another point and the concept cannot be comprehended by mentioning only one point. to that extent, the definition of 'distance' as given in the rules is incomplete and does not afford any help. it is also submitted by the learned government pleader that there is no other provision for authorising calculation of distance in the manner it has been done. it is possible to imagine that if the villages are long, their distance when measured from central point of one village to the central point of another village may be more but when the distance is measured from boundary to boundary, it may be much less. hence the statement that the distance of the two villages is 2.6 k.ms. from centre to centre is not irreconcilable with the contention of the petitioner that the distance from boundary to boundary is 400 mts. only. when the statutory rule states that if two revenue villages are beyond each other by a distance of 2 k.ms., both of them may be declared as separate villages, it has to be accepted that such basis is to be adopted uniformly with least variation. otherwise, if different standards are applied at different times to different localities without any justifiable cause for the departure, the decisions would smack of arbitrariness. it is well known that when executive orders are made, and here the rule is a statutory one, the authority promulgating the order must be held as also being rigorously bound to the order as otherwise any decision taken contrary to that would be open to the charge of discrimination and arbitrariness.6. in common parlance, when distance between two places is spoken of, the distance is understood as between the boundaries of the two areas. it is of course true that distance may be given an artificial definition under a statute. but that is not the case here. this court had directed the government to reconsider the matter taking all facts into consideration. but we find from the order, ex facie, that all the considerations have not been kept in view and a cryptic decision to have been taken. in that view of the matter, we have no hesitation to set aside the impugned order of the government and remand the matter to the government with direction to dispose of the matter after hearing the parties again, within four weeks from to-day, by passing a reasoned order, taking all facts into consideration.7. the writ petition is allowed and remanded. no costs.

Judgment:
ORDER

Lingaraja Rath, J.

1. The sole point urged in this Writ petition, assailing the decision of the Government upholding the bifurcation of the Guruzala Gram Panchayat by carving out the village Jangamaheshwarapuram from it, to form it as a separate Gram Panchayat, is that the distance between the two villages, Guruzala and Jangamaheshwarapuram is only 400 metres. It is the submission of the learned Counsel Sri Ravindranath Reddy, appearing for the petitioner that under G.O.Ms. No. 515, dated 17-8-1994 which was subsequently amended by G.O.Ms. Nos. 272 and 273 dated 18-5-1995 the distance between the two villages must be 2 K.ms. for the purpose of bifurcation. It is his argument that as the two villages are only 400 metres apart, there could not have been a bifurcation.

2. The facts are that originally to a proposal of the Collector for bifurcation of the Gram Panchayat, a unanimous resolution was passed by the Gram Panchayat opposing the bifurcation which was accepted by the Collector and an order was passed accordingly not to bifurcate. A revision was carried before the Government by respondent No. 3 in which the Government reversed the decision of the Collector by its order dated 31-5-1995 and passed orders for bifurcation. The matter was challenged before this Court in W.P. No. 11012 of 1995 which was disposed of on 5-12-1995 directing the Government to reconsider the matter. The Government passed orders on 17-12-1996 holding that as the distance between the two villages is 2.6 K.ms., there is no need for a re-consideration.

3. Counter affidavit has been filed by the State supporting the bifurcation and contending that the distance between the two villages measured from the Centre of Guruzala village where the Gram Panchayat building is situated to the Centre of Jangamaheshwaram village is 2.6 K.ms. and therefore the decision to bifurcate the Gram Panchayat cannot be interfered with. In the counter-affidavit reliance is placed on G.O.Ms. No. 515, dated 17-8-1994, under which, it is stated, the distance shall be taken from the Gram Panchayat if any, or from the central point in the village, for the purpose of bifurcation.

4. In the Government order in question, the distance is defined in clause 2(ii) as follows :

'(ii) 'Distance' means the distance of an area from the office building of the Gram Panchayat, if any, or from a Central point in the village as fixed by the Commissioner (PR);'

5. To our question that though the definition mentions a starting point for measurement of the distance yet it does not provide for an end point and that there is no provision to take the distance from centre to centre of the two villages, the learned Government Pleader for Panchayat Raj submits, after taking adjournment to obtain instructions in the matter, that the definition is as it is and that there is no other provision showing that the distance has to be measured from the centre of one village to the centre of the other village. The word 'distance' means the linear length from a point to another point and the concept cannot be comprehended by mentioning only one point. To that extent, the definition of 'distance' as given in the Rules is incomplete and does not afford any help. It is also submitted by the learned Government Pleader that there is no other provision for authorising calculation of distance in the manner it has been done. It is possible to imagine that if the villages are long, their distance when measured from Central Point of one village to the Central point of another village may be more but when the distance is measured from boundary to boundary, it may be much less. Hence the statement that the distance of the two villages is 2.6 K.ms. from centre to centre is not irreconcilable with the contention of the petitioner that the distance from boundary to boundary is 400 mts. only. When the statutory rule states that if two revenue villages are beyond each other by a distance of 2 K.ms., both of them may be declared as separate villages, it has to be accepted that such basis is to be adopted uniformly with least variation. Otherwise, if different standards are applied at different times to different localities without any justifiable cause for the departure, the decisions would smack of arbitrariness. It is well known that when executive orders are made, and here the rule is a statutory one, the authority promulgating the order must be held as also being rigorously bound to the order as otherwise any decision taken contrary to that would be open to the charge of discrimination and arbitrariness.

6. In common parlance, when distance between two places is spoken of, the distance is understood as between the boundaries of the two areas. It is of course true that distance may be given an artificial definition under a statute. But that is not the case here. This Court had directed the Government to reconsider the matter taking all facts into consideration. But we find from the order, ex facie, that all the considerations have not been kept in view and a cryptic decision to have been taken. In that view of the matter, we have no hesitation to set aside the impugned order of the Government and remand the matter to the Government with direction to dispose of the matter after hearing the parties again, within four weeks from to-day, by passing a reasoned order, taking all facts into consideration.

7. The writ petition is allowed and remanded. No costs.