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India Cable Co. Ltd. Vs. the Government of Andhra Pradesh and ors. - Court Judgment

LegalCrystal Citation
SubjectProperty
CourtAndhra Pradesh High Court
Decided On
Case NumberWrit Petn. Nos. 3568 of 1984 and 5449 of 1985
Judge
Reported inAIR1987AP28
ActsUrban Land (Ceiling and Regulation) Act, 1976 - Sections 20(1); Constitution of India - Article 226
AppellantIndia Cable Co. Ltd.
RespondentThe Government of Andhra Pradesh and ors.
Appellant AdvocateGopal G. Naik, Adv. and ;K.K. Venugopal, Adv. for ;R. Dasaratharama Reddy, Adv.
Respondent AdvocateGovt. Pleader for Food and Agriculture, ;B.A. Padmanabha Rao and ;F.S. Nariman, Advs. for ;P. Ramachandra Reddy and ;K. Jagannadha Rao, Standing Counsel
Excerpt:
property - exemption - section 20 (1) of urban land (ceiling and regulation) act, 1976 and article 226 of constitution of india - government order issued under section 20 (1) granting exemption to certain excess vacant land - petitioner (tenant in exempted premises) filed petition challenging go on ground that it has been obtained by fraud - petitioner can maintain petition as person interested and thus had locus standi to question go - alleged fraud has not been proved so as to warrant quashing of go - petition dismissed. - all india services act, 1951.sections 8 & 11 & a.p. buildings (lease, rent and eviction) control rules, 1961, rule 5: [v.v.s. rao, g. yethirajulu & g. bhavani prasad, jj] refusal by landlord to receive rent - deposit of rent in court - held, a tenant has the option.....jayachandra reddy, j.1. any welfare legislation, when enforced strictly, is likely to cause some hardship to one person or the other having interest in the property sought to be subjected to the rigour of such legislation. the urban land (ceiling & regulation) act, 1976 is one such welfare legislation and it is also included in the 9th schedule of the constitution of india. section 20 of the urban land (ceiling & regulation) act, 1976, hereinafter referred to as 'the act', however to some extent empowers the state government to grant exemptions to alleviate such hardships. the state government by g.o. ms. no. 4778 revenue (ucii) department, dated 11-11-80, exercising its power under section 20 of the act exempted an excess vacant land measuring 4776.84 square mts. bearing premises no......
Judgment:

Jayachandra Reddy, J.

1. Any welfare legislation, when enforced strictly, is likely to cause some hardship to one person or the other having interest in the property sought to be subjected to the rigour of such legislation. The Urban Land (Ceiling & Regulation) Act, 1976 is one such welfare legislation and it is also included in the 9th Schedule of the Constitution of India. Section 20 of the Urban Land (Ceiling & Regulation) Act, 1976, hereinafter referred to as 'the Act', however to some extent empowers the State Government to grant exemptions to alleviate such hardships. The State Government by G.O. Ms. No. 4778 Revenue (UCII) Department, dated 11-11-80, exercising its power under section 20 of the Act exempted an excess vacant land measuring 4776.84 Square mts. bearing premises No. 9-1-87 situated at St. John's Road, Secunderabad in Hyderabad urban agglomeration, held jointly by Sarvasri C.T. Vijaya Raghavan, C.T. Srinivasan, Smt. Leela Thanushkoti and Smt. Kanakam. It is this G.O. that is challenged in both these writ petitions. India Cable Company Ltd, a tenant in the exempted premises and the adjacent land has filed Writ Petition No. 3568 of 1984 seeking a writ or directing declaring the impugned G.O. as void on the ground that the same has been obtained by fraud and misrepresentation and also on the ground that the Government has acted arbitrarily in granting exemption. Smt. Kanakam who is one of the joint owners of the land has filed Writ Petition No. 5449 of 1985 questioning the same G.O. and in effect she is supporting the plea taken by the Indian Cable Company Ltd. and she is also respondent No. 7 in W.P. No. 3568 of 1984. For the sake of convenience the parties shall be referred as arrayed in W.P. No. 3568 of 84.

2. The case of the petitioner, viz., India Cable Company Ltd. is as follows :- The petitioner-company was registered under the Indian Companies Act having its registered office at Calcutta and also having its business inter alia its Branch Office at No. 23, Sarojinidevi Road, Secunderabad. The company manufactures and sells electrical cables and also undertakes the contracts relating to the erection of electrical installation and equipments of Thermal Stations, etc. On 1-10-1958 one Sri C.P. Thanushkoti father of respondents 4, 5 and 7 and husband of respondent No. 6, viz., Sri C.T. Vijay Raghavan, Sri C.T. Srinivasan, Smt. Kanakam and Smt. Leela Thanushkoti, respectively, leased out the premises on a monthly rent of Rs. 400/- to the petitioner-company for housing its branch office and the residence of its Assistant Manager and his family. The total area of the tenanted premises including the main buildings, two out-houses, etc., and open space all around with a big compound wall was about 18,000 Sq. yards. The main building was used for the office of the company and the resident of the Assistant Manager and his family, and the out-houses and the open space are being used for storing cable drums and parking of the vehicle. At the request of Sri C.P. Thanushkoti the petitioner-company released 2,000 sq. yards and later again it released 6020 sq. yards which was leased out to one Sri J. N. Misra for the construction of a cinema theatre, known as 'Sangeet'. After the construction of Sangeet theatre a new entrance was opened and different Municipal Nos. viz. 9-1-87 and 9-1-119-/1 were given to the tenanted premises. After the death of Sri C.P. Thanushkoti the tenanted premises devolved upon respondents 4 to 7. On 30-4-1981 the petitioner-company received a letter from the 4th respondent informing that the entire premises was sold to the 8th respondent-firm and directing the petitioner to pay the future rents to the said 8th respondent-firm with effect from 1-5-1981. Since then the petitioner-company was paying rents to the 8th respondent which is a partnership-firm known as 'Divakar Maternity & Nursing Home represented by its Managing Partner Wilfed Divakar. The 8th respondent-firm sent a registered letter on 18-6-1981 calling upon the petitioner to vacate the premises and the petitioner-company sent a reply notice that the company is a statutory tenant and that the 8th respondent is not entitled to evict the petitioner-company. While so, on 11-6-1982, it is alleged that the 8th respondent with the active support of other partners and hired goondas and coolies, trespassed into the petitioner's premises, demolished the compound walls, wicket gate and fencing and closed the main gate highhandedly. They also constructed walls by dividing the entire vacant land and houses thereon into four plots. Thus they caused obstruction to the petitioner's vehicles and its employees. The petitioner filed R.C. No. 108 of 1982 before the Rent Controller, Secunderabad for restoration of amenities and for direction not to interfere with the possession and peaceful enjoyment of the tenanted premises by the petitioner-company and its employees. By an order dated 15-6-1982 the Rent Controller restored the amenities. Against the said order the 8th respondent filed R.A. No. 171 of 1982 before the Chief Judge, Small Cause Court and sought interim orders suspending the order of restoration but the same was dismissed. As against that a Civil Revision Petition was filed in the High Court and it was also dismissed. R.C. No. 108 of 1982 is pending. The petitioner-company filed O.S. No. 640 of 1982 in the Court of the III Addl. Judge, City Civil Court, Secunderabad, against the 8th respondent-firm for a permanent injunction, and pending the suit interim injunction was also granted. While matters stood thus, respondents 4 to 6 and 8 filed an eviction petition R. C. No. 141 of 1982 before the Rent Controller against the petitioner. In that petition they contended that they want the premises for bona fide requirement. In R.C. No. 141 of 1982 the 8th respondent filed a rejoinder on 29-10-1982 stating that the Government of Andhra Pradesh (the 1st respondent) in G.O. Ms. No. 4778 Revenue, dated 11-11-1980 granted exemption in favour of the respondents Nos. 4 to 8 for the sale of the surplus vacant land by respondents 4 to 7 in favour of the 8th respondent and for the construction of the Nursing Home by the 8th respondent. In the rejoinder it is also stated that respondents 4 to 7 filed declarations and the Special Officer & Competent Authority, Urban Land Ceiling (3rd respondent) sent up a report, and entertaining the application for exemption the Government exercising its powers under section 20(a) and (b) of the Act granted permission for alienating the land in favour of the 8th respondents should construct a Nursing Home. The other respondents also filed similar rejoinders. The petitioner was not aware of any such exemption. However, after coming to know of the same from the rejoinders filed by the respondents, the petitioner has filed this writ petition. In the affidavit filed in support of the writ petition it is also further alleged that the respondents have obtained the exemption by making misrepresentation and playing fraud on the Government. It is also stated that on enquiry the petitioner came to know that Smt. A Leela Thanushkoti (6th respondent) by an agreement of sale dated 19-11-1974 sold her house bearing No. 6-1-125 with an open land in Padmarao Nagar, Secunderabad to Sri W.D. Francis the Managing Partner of the 8th respondent-firm, for a sum of Rs. 25,000/- and she received a cheque on 18-11-1974 for a sum of Rs. 10,000/- drawn on the National & Grindlay's Bank Ltd., Hyderabad, towards the sale consideration and a sale deed was executed and registered on 14-7-1975, that respondents 4 to 8 made misrepresentation to the Government by stating that they entered into an oral agreement on 18-11-1974 regarding the sale of the premises bearing No. 9-1-87 by respondents 4 to 7 in favour of the 8th respondent and that the respondents pressed into service the cheque dated 18-11-74 for a sum of Rs. 10,000/- paid to Smt. Leela Thanushkoti towards advance for the purchase of her house at Padmarao Nagar, for the purpose of the present transaction and made the Government believe that there is an oral agreement dated 18-11-1974. Accordingly they played fraud on the Government and other concerned authorities in making them believe that there was an agreement on 18-11-1974 and therefore the order itself is a nullity.

3. The 8th respondent is the main contesting party. In its counter-affidavit it is mainly stated that the petitioner has no locus standi to question the G.O. granting exemption and that even assuming that the petitioner is a tenant he is not entitled to hold the excess land. Coming to the allegation of fraud it is stated by the 8th respondent that the advance of Rs. 10,000/- by way of cheque dated 18-11-1974 towards the house property purchased at Padmaraonagar was not enchashed by the owners, viz., Smt. Leela Thanushkoti and others, that cash consideration was paid to them and that the owners have not disputed the cash consideration of Rs. 10,000/- and in fact they got the sale deed registered. When the owners themselves do not dispute about the receipt of the cash consideration, it is not open to the petitioner to question. It is also further alleged that there were two transactions between the 8th respondent and respondents 4 to 7 and it is open to them to adjust money from one transaction to the other and therefore the writ petition is liable to be dismissed.

4. The learned counsel for the petitioner submits that the petitioner has locus standi to question the G.O. inasmuch as he has an interest as a person holding the land and the petitioner being a company promoting industry can have a reasonable expectation of the same land being allotted to it by the Government at the stage of distribution of the excess. The further submission is that as the petitioner would be prejudicially affected inasmuch as it is thrown to the jeopardy of being evicted from the premises and that it also should have been heard by the Government before granting exemption, and that therefore there is violation of principles of natural justice. However, the main ground on which the G.O. is attacked is that of fraud and it is submitted that an order obtained by fraud is a nullity.

5. The learned counsel for the respondents on the other hand submits that the petitioner has no locus standi even to file a writ petition questioning the G.O. and therefore there is no question of giving any opportunity of being heard and there is no violation of principles of natural justice. So far as the allegation of fraud is concerned, the submission of the learned counsel for the respondents is that it is purely a question of fact and that if all the circumstances are examined and considered in a proper perspective it would manifest that there is a such misrepresentation or fraud committed by the respondent before the Government.

6. We shall first consider the question of locus standi both from the point of view of moving the Court and the right of being heard.

7. J. M. Desai v. Roshan Kumar, AIR 1976 SC 578, is a case where the proprietor of a cinema theatre holding a licence for exhibiting cinematography films filed a writ petition questioning a no-objection certificate granted in favour of another rival in that trade. A preliminary objection was taken that he had no locus standi to file the writ petition because his rights in any manner were not affected by the granting of the no-objection certificate. Considering the same, the Supreme Court held thus :-

'According to most English decisions, in order to have the locus standi to invoke certiorari jurisdiction, the petitioner should be an 'aggrieved person' and in a case of defect of jurisdiction, such a petitioner will be entitled to a writ of certiorari as a matter of course, but if he does not fulfil that character, and is a 'stranger', the Court will, in its discretion, deny him this extraordinary remedy, save in very special circumstances. This takes us to the further question: who is an 'aggrieved person'? And what are the qualifications requisite for such a status? The expression 'aggrieved person' denotes an elastic, and, to an extent, an elusive concept. It cannot be confined within the bounds of a rigid, exact and comprehensive definition. At best, its features can be described in a broad tentative manner. Its scope and meaning depends on diverse, variable factors such as the content and intent of the statute of which contravention is alleged, the specific circumstances of the case, the nature and extent of the petitioner's interest, and the nature and extent of the prejudice or injury suffered by him.'

It is further observed :

In other words, as a general rule, infringement of some legal right or prejudice to some legal interest inhering in the petitioner is necessary to give him a locus standi in the matter,'

Their Lordships also suggested some broad tests which are to the following effect, viz.,

'To distinguish such applicants from 'strangers', among them, some broad tests may be deduced from the conspectus made above. These tests are not absolute and ultimate. Their efficacy varies according to the circumstances of the case, including the statutory context in which the matter falls to be considered. These are : Whether the applicant is a person whose legal right has been infringed? Has he suffered a legal wrong or injury, in the sense, that his interest, recognised by law, has been prejudicially and directly affected by the act or omission of the authority, complained of? Is he a person who has suffered a legal grievance, a person 'against whom a decision has been pronounced which has wrongfully deprived him of something, or wrongfully refused him something or wrongfully affected his title to something? Has he a special and substantial grievance of his own beyond some grievance or inconvenience suffered by him in common with the rest of the public? Was he entitled to object and be heard by the authority before it took the impugned action? If so, was he prejudicially affected in the exercise of that right by the act of usurpation of jurisdiction on the part of the authority? Is the statute, in the context of which the scope of the words 'person aggrieved' is being considered, a social welfare measure designed to lay down ethical or professional standards of conduct for the community? Or is it a statute dealing with private rights of particular individuals?' Applying these tests, their Lordships dismissed the writ petition holding that the stand taken by the petitioners, viz., the cinema theatre owner that the setting up of a rival cinema house in the town will adversely affect his monopolistic commercial interest, cannot be countenanced, as granting such a licence is not wrongful inasmuch as it does not result in injury to a legal right or a legally protected interest, the business competition causing it being a lawful activity.

8. There is now a clear trend on the part of the Courts enlarging the scope of rule of locus standi. In National Textile Workers' Union v. P.R. Rama Krishna, : (1983)ILLJ45SC their Lordships held that the workers of a company are entitled to appear at the hearing of the winding up petition whether to support or to oppose it so long as no winding up order is made by the Court and that the workers have a locus to appear and be heard in the winding up petition both before the winding up petition is admitted and an order for advertisement is made as also after the admission and advertisement of the winding up petition until an order is made for winding up the company. It is also observed that if a winding up order is made and the workers are aggrieved by it, they would also be entitled to prefer an appeal and contend in the appeal that no winding up order should have been made by the company Judge. In S. P. Gupta v. President of India, : [1982]2SCR365 (what is known as Judges' transfer case), it was contended that the lawyers had no locus standi to file petitions questioning the Circular of the Law Minister. Their Lordships observed thus :-

'The traditional rule in regard to locus standi is that judicial redress is available only to a person who has suffered a legal injury by reason of violation of his legal right or legally protected interest by the impugned action of the State or a public authority or any other person or who is likely to suffer a legal injury by reason of threatened violation of his legal right or legally protected interest by any such action. The basis of entitlement to judicial redress is personal injury to property, body, mind or reputation arising from violation, actual or threatened, of the legal right or legally protected interest of the person seeking such redress. This is a rule of ancient vintage and it arose during an era when private law dominated the legal scene and public law had not yet been born.'

Their Lordships, after examining some of the English cases, concluded,-

It may therefore now be taken as well established that where a legal wrong or a legal injury is caused to a person or to a determinate class of persons by reason of violation of any constitutional legal right or any burden is imposed in contravention of any constitutional or legal provision or without authority of law or any such legal wrong or legal injury or illegal burden is threatened and such person or determinate class of persons is by reason of poverty, helplessness or disability or socially or economically disadvantaged position, unable to approach the Court for relief, any member of the public can maintain an application for an appropriate direction, order or writ in the High Court under Art. 226 and in case of breach of any fundamental right of such person or determinate class of persons, in this Court under Art. 32 seeking judicial redress for the legal wrong or injury caused to such person or determinate class of persons. Where the weaker sections of the community are concerned, such as undertrial prisoners languishing in jails without a trial, inmates of the Protective Home in Agra or Harijan workers engaged in road construction in the Ajmer District, who are living in poverty and destitution who are barely eking out a miserable existence with their sweat and toil, who are helpless victims of an exploitative society and who do not have easy access to justice, this Court will not insist on a regular writ petition to be filed by the public spirited individual espousing their cause and seeking relief for them. This Court will readily respond even to a letter addressed by such individual acting pro bono publico. It is true that there are rules made by this Court prescribing the procedure for moving this Court for relief under Art. 32 and they require various formalities to be gone through by a person seeking to approach this Court. But it must not be forgotten that procedure is but a handmaiden of justice and the cause of justice can never be allowed to be thwarted by any procedural technicalities. The Court would therefore unhesitatingly and without the slightest qualms of conscience cast aside the technical rules of procedure in the exercise of its dispensing power and treat the letter of the public minded individual as a writ petition and act upon it.'

9. Applying these principles to the facts in the instant case we find that though the petitioner's legal rights as such are not affected by the exemption order, yet it can maintain the writ petition as a person interested and does not come under the category of 'busy body'. Therefore, in view of the broad propositions of law regarding the rule of locus standi laid down by the Supreme Court, we hold that the petitioner has locus standi to question the impugned G. O. by way of a writ petition.

10. The next question is whether the impugned G. O. should be struck down for violation of the principles of natural justice, on the ground that the petitioner is not heard by the Government before granting exemption. The Supreme Court in several decisions, particularly in State of Orissa v. Dr. (Miss) Bina Pani Dei, : (1967)IILLJ266SC , A. K. Kraipak v. Union of India, : [1970]1SCR457 , and Smt. Maneka Gandhi v. Union of India, : [1978]2SCR621 held that no order involving adverse civil consequences can be passed against any person without giving him an opportunity to be heard against the passing of such order and this rule applies irrespective whether the proceeding in which it is passed is a quasi-judicial or an administrative proceeding. In the instant case the Government exercising its powers under section 20 of the Act exempted the excess open land from the operation of the provisions of the Act. The limited exemption granted does not in any way impinge the rights of the petitioner who claims to be the tenant over the land. As already mentioned he has also filed a suit in the Civil Court in which he can urge all his rights and he can also raise all his defences in the rent control proceedings. A perusal of the G. O. itself shows that the excess vacant land is exempted from the provisions of the Act to enable the owners to complete the sale transaction as per the written agreement dated 13-5-1975 'for the construction of a Maternity and Nursing Home, with 50 bedded hospital and allied complex, subject to the condition that the purchasers should utilise the said land only for the construction of the said hospital with allied complex and not for any other purpose.' This exemption order does not automatically entitle any of the respondents to evict the petitioner. When an owner approaches the Government for exemption, the Government while exercising its powers under section 20 of the Act should not act arbitrarily, but act fairly keeping in view the object and intent of the Act. Whether the Government has acted in such a manner or not shall be considered at a later stage. So far as the petitioner's plea that it should have been heard at the time of granting of exemption, is concerned, the plea does not appeal to us inasmuch as the order does not involve adverse civil consequences so far as the petitioner is concerned.

11. The learned counsel submits that the petitioner is a tenant and he by virtue of this G. O. is thrown open to the jeopardy of eviction. But these questions are in any event have to be decided in a Civil Court. The petitioner cannot automatically be dispossessed just because an exemption order is passed. Whatever rights the petitioner enjoyed are not taken away by the exemption order. The relationship of tenant and landlord is not severed and put to an end by passing this G. O.

12. Further, there are certain other circumstances also which would show that the petitioner does not come under that category of persons who can be said to have suffered some civil consequences so as to hold that he is a really aggrieved person and therefore he must be heard by the Government. There are two pending proceedings in the Civil Court. O. S. No. 640 of 1982 is a suit filed by the Indian Cable Company Ltd. for an injunction restraining the 8th respondent herein from trespassing the suit premises and for a mandatory injunction for removing the construction already made. The arguments are also concluded and the judgment is awaited. R. C. 141 of 1982 is pending before the Rent Controller. The question of bona fide requirement is also being considered. The record shows that the petitioner had full knowledge of the exemption by the date these proceedings are initiated. By a letter dated 30-4-1981 Smt. Leela Thanushkoti (6th respondent) has informed the petitioner-company that they had sold the entire premises admeasuring 7000 sq. yards to the 8th respondent by a registered sale deed dated 13-3-1981 and 24-4-1981. The petitioner was also informed to enter into direct negotiations with the 8th respondent and to pay future rents to them. It is specifically mentioned in the letter that the relationship of tenancy between the respondents Nos. 4 to 7 and the petitioner was terminated by virtue of the alienations made by respondents 4 to 7, and the petitioner was asked to have direct dealings with the 8th respondent, and by the said letter the tenancy relationship was also attorned in favour of the 8th respondent-firm. Again by a letter dated 8-4-1982 the 8th respondent informed the petitioner that they had purchased the land and the building after a great deal of hardship in obtaining exemption under the Act and that they have proposals to establish a nursing home and sought the co-operation of the petitioner. The present writ petition is filed in the year 1984 though the petitioner had full knowledge about the exemption even in the year 1982. It can, therefore, be seen that hitherto the petitioner did not, against these orders, have any grievance that there has been violation of the principles of natural justice.

13. Further for us, at least for the purpose of this writ petition, it appears that the excess vacant land is not part of the tenancy. In R. C. No. 141 of 1982 the plea of the petitioner is that it is not a tenant for the whole land. Even assuming that it is a tenant for the whole land, then as per the provisions of the Act it also should have filed a declaration. A copy of the declaration said to have been filed by the petitioner-company is placed before us. In the Annexure-A to the declaration the petitioner has filled up the columns. In Col. 7 under the head 'Class of land i.e., vacant lands/land with building agricultural land' the entry reads 'land with building'. Then under Col. 9 'How acquired' it is noted 'By lease agreement, whereafter monthly tenant'. Under the head 'Remarks' it is noted that 'since the property is on monthly tenancy as on 17-2-1976 and even on 17-2-1975, the Act does not apply'. From the entries made in the Annexure to the declaration it is clear that the petitioner did not claim that it is in possession of the excess vacant land also as tenant. The learned counsel for the petitioner however submits that the remark that the Act does not apply, is correct in view of the Explanation to Sec. 4 of the Act. We are unable to agree. The relevant part of the Explanation to Sec. 4 reads thus :-

'For the purposes of this section and sections 6, 8 and 18 a person shall be deemed to hold any land on which there is a building (whether or not with a dwelling unit therein) if he-

(i) owns such land or the building; or

(ii) owns such land but possesses the building or possesses such land and the building, the possession, in either case, being as a tenant under a lease, the unexpired period of which is not less than ten years at the commencement of this Act, or as a mortgagee or under an irrevocable power-of-attorney or a hire-purchase agreement or partly in one of the said capacities and partly in other of the said capacity or capacities; or

(iii) xxx xxx xxx xxx'

A careful reading of this provision shows that a person shall be deemed to hold any land on which there is a building; and 'the land' referred to in clause (ii) of the explanation applies to a land on which there is a building and the adjacent land. In State of U. P. v. L. J. Johnson, : [1983]3SCR897 their Lordships while considering the scope of Sec. 4(9) of the Act observed :-

'In fact Sec. 4(9) itself puts the matter beyond controversy by qualifying the words other land occupied by the building and the land appurtenant thereto. The expression 'thereto' manifestly shows that the intention of the legislation was to refer to the land on which the building or the dwelling unit stand. In other words, the vacant land which contains a building would include appurtenant land or any other land situated in that particular plot.'

Therefore, the contention that the Act does not apply to a land on which there is a building and a vacant site in the possession of a tenant, is untenable. While calculating the ceiling limit, the entire land has to be taken into account and then work out the excess. Since there will be excess in the instant case, the tenant has to declare the same if really he was in possession and the same as a tenant. The non-mention of the same in the declaration also goes to show that the petitioner did not claim this land as being included in the tenancy.

14. Further, some of the correspondence between the petitioner-company and Sri Thanushkoti also goes to show that the understanding was that the entire open land was included in the tenancy. By a letter dated 19-11-1966 the petitioner-company informed Sri C. P. Thanushkoti that they had no objection to his enclosing 2000 sq. yards of land in the corner of the petitioner's office premises. By another letter dated 12-2-1968 the petitioner-company informed Sri C. P. Thanushkoti that they were surrendering almost the entire portion of the open land to him, but asked him to compensate or adjust the cost of materials in fitting the fixtures. By another letter dated 10-9-1968 the petitioner-company released an additional 5030 sq. yards in addition to the 2000 sq. yards already released. But while releasing the same the petitioner asked Sri Thanushkoti to construct first a compound wall as shown in the drawing fully protecting their existing building, at the expense of Sri Thanushkoti. When Sri Thanushkoti asked for release of some more vacant land, the situation took a different turn. However, this correspondence coupled with the fact that the petitioner-company did not declare the land as excess and also coupled with the fact that the injunction was vacated to the extent of the land exempted, would go to show that the petitioner-company had no claim for the entire vacant land. Otherwise they would not have kept quiet up-till now though they were specifically informed that exemption was obtained in the month of April 1982 itself. We have considered this circumstance only to show that the petitioner cannot be said to be an aggrieved person so far as the vacant land in respect of which exemption is granted.

15. All the above mentioned circumstances go to show that the excess open land is not part of the tenancy or at any rate there is any amount of controversy regarding the same which can be resolved only in a Civil Court. Under these circumstances, the petitioner cannot as a matter of right claim that he has suffered a legal injury and consequently he has a right of being heard even at the time of passing the G. O., more so when his rights as a tenant if any are not taken away by the impugned G. O.

16. The learned counsel however submits that every person having 'locus standi' gets an automatic right of being heard.

17. 'Locus standi', as it is understood and enlarged by the Supreme Court, operates in a larger area, but right to be heard by the authority making the decision does not necessarily accrue to every person having locus standi to move the Court questioning such a decision. Hitherto the view was that only 'an aggrieved person' alone is entitled to a writ of certiorari and if he is a stranger the Court will in its discretion deny the remedy. But the meaning of the words 'a person aggrieved' depends much on the facts and circumstances of each case and may also vary according to the context of the statute. In the real sense 'an aggrieved person' is understood to be one who has a grievance because an order been made prejudicial to his interest, and locus standi is generally understood to mean legal capacity to challenge an act or decision. The Supreme Court hitherto laid down in many cases that in order to have the locus standi to invoke the extraordinary jurisdiction under Article 226, an applicant should ordinarily be one who has a personal or individual right in the subject-matter of the application, though in the case of some of the writs like habeas corpus or quo warranto this rule is relaxed or modified. But it is also pointed out that this rule is flexible enough to take in those cases where the applicant has been prejudicially affected by an act or omission of an authority, even though he has no proprietary or even a fiduciary interest in the subject-matter. In J. M. Desai v. Roshan Kumar, AIR 1976 SC 578 (supra), Sarkaria J. speaking for the Bench pointed out that in the context of locus standi to apply for a writ of certiorari, an applicant may ordinarily fall in any of the categories, viz., (i) 'person aggrieved', (ii) 'stranger', (iii) busybody of meddlesome interloper, and the persons in the last category can easily be eliminated. The distinction between the first and the second categories is not well demarcated. The learned Judge however observed thus :-

'The first category has, as it were, two concentric zones : a solid central zone of certainty, and a grey outer circle of lessening certainty in a sliding centrifugal scale, with an outermost nebulous fringe of uncertainty. Applicants falling within the central zone are those whose legal rights have been infringed. Such applicants undoubtedly stand in the category of 'persons aggrieved'. In the grey outer-circle the bounds which separate the first category from the second, intermix, interfuse and overlap increasingly in a centrifugal direction. All persons in this outer-zone may not be 'persons aggrieved'.'

This category of persons falling under the 'grey outer-circle' may have the locus standi to move the Court, but it cannot be held that they have also a right to be heard before the authority passes the order. In S. P. Gupta's case (Judges' transfer case) : [1982]2SCR365 (supra) their Lordships held that the practising lawyers have a vital interest in the independence of judiciary and if any unconstitutional or illegal action is taken by the State or any public authority which has the effect of impairing the independence of the judiciary, they would certainly be interested in challenging the constitutionality or legality of such action. One may have locus standi, viz., the legal capacity to challenge the act or order, but he may not have the right to be heard by the authority at the time of passing the impugned order. For the purpose of principles of natural justice the question that matters is whether any legal power has been exercised over the person affecting his legal rights and not whether he has some legal right to move the Court.

18. No doubt there is a clear discernible trend enlarging the rule of locus standi. In S. P. Gupta's case : [1982]2SCR365 (supra) it is held :

'We would, therefore, hold that any member of the public having sufficient interest can maintain an action for judicial redress for public injury arising from breach of public duty or from violation of some provision of the Constitution or the law and seek enforcement of such public duty and observance of such constitutional or legal provision.'

But their Lordships did not go to the extent of laying down that every member of the public who is competent to move the Court, also automatically has a right to be heard by the decision-making authority before doing the act or passing the impugned order. It is pertinent to note that the counsel in the Judges' transfer case (supra), also did not go to the extent of seriously contending that they had also a right to be heard by the authority before any transfer of a Judge is made. Similarly in the instant case section 20 of the Act empowers the State to grant exemption to a limited extent and the real interested persons are the owners who apply for the exemption. The exemption thus granted does not in any manner take away the existing rights of other persons like the tenants, etc. If the tenant or any other member of the public has locus standi to question the action of the Government on the ground that there is a specific legal injury suffered by a person or a class or group of persons for whose benefit the Act is intended, then they fall in the 'grey outer circle' the bounds of which separate the first category, viz., the persons aggrieved from the second viz, strangers. But in given cases such persons falling in the 'grey outer-circle may have locus standi to move the Court but do not necessarily have an inherent right to be heard by the decision-making authority, particularly before making a decision. Much depends upon variable factors and specific circumstances of the case.

19. Therefore, a person merely claiming to be affected for the purpose of being accorded locus standi is not necessarily the same as one whose interests and right have been substantially prejudiced and affected. The grievance of the persons aggrieved whose interests are substantially affected, is not the same as that of the members of the public who can maintain a legal action.

20. In Mohd. Ibrahim Khan v. State of M. P., : [1980]1SCR792 , a question arose whether a member of the public can claim to be heard in an appeal filed by an applicant for a no-objection certificate under the Madhya Pradesh Cinemas (Regulation) Act. Their Lordships noted that there is no provision for inviting objections before the grant of permanent or a quasi-permanent cinema licence and there is no provision in the Madhya Pradesh Act or rules which requires advertisement of such an application inviting objections and consideration of the objections before grant of a cinema licence. On the question whether any member of the public objecting to such a licence would also be heard at the time of granting licence, their Lordships observed thus :

'When the present appellants objected to the renewal of a quasi-permanent cinema licence it was not the stage for grant of no-objection certificate but it was the stage of renewal of quasi-permanent licence subsequent to the stage of granting of a no-objection certificate, when there was no statutory obligation on the licensing authority to invite objections nor were the appellants entitled to file objections and nor were they entitled to be heard. A right to notice by reason of any rule of natural justice, which a party may establish, must depend for its existence upon proof of an interest which is bound to be injured by not hearing the party claiming to be entitled to a notice and to be heard before an order is passed. If the duty to give notice and to hear the party is not mandatory, the actual order passed on a matter must be shown to have injuriously affected the interest of the party which was given no notice of the matter.'

21. In M. S. Jain v. State of Haryana, : [1977]2SCR361 it is observed that a person can be said to be aggrieved only when a person is denied a legal right by some one who has a legal duty to do something or to abstain from doing something.

22. In the instant case the impugned G. O. is only in the form of a declaration stating that the vacant land belonging to the respondents is exempted from the provisions of the Act. Therefore, at that stage there is no question of giving a notice to the petitioner by the Government. As discussed earlier, he may have locus standi to question the G. O. by filing this writ petition as a person having interest in the matter, but that locus standi by itself does not give him a right to be heard by the Government, before passing the G. O.

23. Yet, another submission on the same lines is that the petitioner is thrown to the jeopardy of eviction and, therefore, he is prejudicially affected and that he has a legitimate interest in the vacant land because he has a reasonable expectation of the excess land being allotted to the petitioner-company which is promoting trade and industry which also subserve the common good. Reliance is once again placed on National Textile Workers' Union v P. R. Ramakrishnan, : (1983)ILLJ45SC (supra), wherein it is held that the workers who would be the aggrieved persons, are entitled to be heard at the hearing of the winding up petition of a company. We have already held that the petitioner cannot be placed in the same position as that of a worker. Reliance is also placed on Indian Sugar & Refineries v. A. S. Co-op. Society, : [1976]2SCR740 , wherein it is held that the sugarcane growers are to be heard before granting exemption to the factories from payment of additional price. Re Liverpool Taxi Owners' Association, (1972) 2 All ER 589, is yet another case wherein it is held that hearing should be given to all those affected by granting or refusing applications for licences. These are all cases where persons have direct and substantial interest in the matter and are affected by the act of the authority. In the instant case, as already held, the rights of the petitioner as a tenant are not in any way affected. Equally the contention that the petitioner has a reasonable expectation of getting the land allotted and therefore he is a person aggrieved, also is devoid of force. That way there may be many members of public reasonably expecting the allotment by the Government after the excess land is taken over, but that does not mean that the Government should go on giving notices to all the members of the public and hear them at the time of disposing of an application for exemption. Practical considerations also sometimes do exclude a right to hearing. In Hounslow London Borough Council v. Twickenham Garden Developments Ltd., (1971) 1 Ch. 233, Megarry J. refused to hold that an architect issuing notices to contractors under the standard contract was obliged to give a hearing to the contractor, and observed :

'It is the position of independence and skill that affords the parties the proper safeguards and not the imposition of rules requiring something in the nature of a hearing.'

The learned Judge also observed :

'The principles of natural justice are of wide application and great importance, but they must be confined within proper limits and to run wild....... For the rules of natural justice to apply there must be something in the nature of a judicial situation.'

Therefore, it is futile to contend that the petitioner who has a reasonable expectation of the site being allotted to him, acquired a right of being heard before giving exemption. As already mentioned, it is the nature of the decision that matters and a grant of exemption under Sec. 20 of the Act does not in any way affect the rights of the petitioner who claims to be a tenant. Nor such an exemption can be equated to final determination of the rights of the parties. For all these reasons, we are not able to agree with the learned counsel for the petitioner that there is violation of the principles of natural justice.

24. The next submission of the learned Counsel for the petitioner is that the Government has acted arbitrarily in granting this exemption and therefore the petitioner has locus standi to question the same. According to the learned counsel the Government has not kept in view the guidelines envisaged in G. O. Ms. No. 186 Revenue (UC-II) Department, dated 2-3-1977 and has not made proper enquiry regarding the genuineness of the deed of agreement and that had they made such an enquiry they would have found out that the agreement was not genuine. It is also his submission that the Government did not even make enquiries about the presence of a tenant and this itself shows that the Government acted in an arbitrary manner. It is true that G. O. Ms. No. 186 was issued laying down certain guidelines in the matter of granting exemption under Sec. 20 of the Act. In the preamble it is noted thus :

'A large number of cases have been brought to the notice of State Government where some persons have entered into agreements to sell their urban lands to certain Housing Co-operative Societies, individuals, etc., after taking considerable amounts as advances and also obtained permission under the Andhra Pradesh Vacant Lands in Urban Areas (Prohibition of Alienation) Act, 1972 to alienate the land but could not register the sale deeds as the Urban Land (Ceiling and Regulation) Act, 1976 came into force in the meanwhile. With a view to avoid hardship and civil litigation in recovery of the amounts advanced if transactions are not finalised, many requests have been made by the transferors as well as transferees that such land may be exempted from the provisions of Chapter III of Urban Land (Ceiling and Regulation) Act, 1976 so that the sale deeds for the lands so transferred may be registered in favour of the transferees in accordance with the agreement already entered into.'

Then it is stated that the Government have examined the matter and considered it necessary to lay down some guidelines to facilitate rapid proceedings of exemption applications in such cases. Some of the guidelines are as follows :-

'(a) that the land-holder was granted permission by the Government under Andhra Pradesh Vacant Land in Urban Areas (Prohibition of Alienation) Act, 1972 (Act 12/72) for the alienation of such land.

(b) that the genuineness of the deed of agreement is established by documentary evidence which cannot be fabricated.

xxx xxx xxx xxx.'

According to the learned counsel, the Government has not kept in view the guideline regarding the genuineness of the deed of agreement. It is submitted that in the deed of agreement of sale dated 13-5-1975 it is mentioned that an advance of Rs. 10,000/- was paid through cheque No. 408706 dated 18-11-1974, but whereas according to another version the amount was paid under the same cheque as advance for purchasing the Padmaraonagar property and an enquiry would have shown that Cheque No. 408706 is being used as documentary evidence to prove the genuineness of the deed of agreement though in fact it was meant for other transaction and therefore it must be held that the Government acted arbitrarily without enquiry, in granting the exemption. We are unable to agree. Merely because there is a reference to the cheque in the agreement it does not matter at all when once both parties have agreed that the particular advance is made through that cheque. The Government had examined the same and was satisfied about the genuineness of the agreement. To which transaction it was being utilised is a matter purely within the parties. The owners have filed an application for exemption, and on the basis of an agreement engrossed on a stamp-paper and the extract of the non-judicial stamps sale register would also show that the owners purchased stamps bearing S. Nos. 6916 and 6917 in the year 1975 itself. Therefore, the purchase of the stamps on which the agreement was engrossed cannot be doubted and when there is a mention about the cheque in that, and when in fact the cheque has been encashed by the owners, that is sufficient proof so far as the Government is concerned. Further, there is a report of the Special Officer in this regard. Therefore, it cannot be said that there is no enquiry at all and that the Government arbitrarily granted the exemption. In this context it is also to be noted that the exemption is subject to the condition that the land must be used for the construction of the Nursing Home. The object underlying the Act, viz., that the distribution of land to subserve the common good, is kept in view in granting the exemption inasmuch as building a nursing home would subserve the common good. Therefore, the contention that the Government has not applied its mind while granting the exemption has no force.

25. In this context it is also submitted that there cannot be such an exemption permitting the owner to sell, as such a sale would defeat the very purpose of the Act. But a perusal of the exemption order shows that the Government has kept in view the scope of section 20 of the Act, viz., undue hardship to some person. But at the same time it has also kept in view the object of the Act in granting exemption. The sale permitted is not an absolute one. Though the owners are permitted to sell it to a particular person because of the hardship of having already entered into an agreement and which kind of sale also is permitted under G. O. Ms. No. 186, yet the land is diverted to be utilised only for the construction of a nursing home, which subserves the common good. Therefore, such an exemption cannot be said to have been given by the Government without applying their mind.

26. The main important point raised by the petitioner's learned counsel is that the exemption order is vitiated by fraud. Both sides have advanced lengthy arguments on this aspect. For a better appreciation, a few more facts on this aspect have to be noted. Late Sri C. P. Thanushkoti had vast properties including some buildings at Padmarao Nagar in Secunderabad. Smt. Leela Thanushkoti the 6th respondent herein, by an agreement of sale dated 19-11-1974, sold the house bearing Municipal No. 6-1-125 at Padmarao Nagar, with open land, to Sri W. D. Francis, Managing Partner of the 8th respondent, for a sum of Rs. 25,000/- and she received a cheque dt. 18-11-74 for Rs. 10,000/- drawn on the National & Grindlays Bank Ltd., Hyderabad, towards the sale consideration. The sale deed was executed with respect to the said house on 10-7-1975 and the same was registered on 14-7-1975. According to the petitioner the cheque dated 18-11-1974 issued for Rs. 10,000/- was towards the advance for the purchase of the Padmarao Nagar house property, but the same cheque was mentioned in the agreement of sale dated 13-5-1975 and the respondents misrepresented before the Government that the agreement is a genuine one supported by consideration paid by way of cheque No. 408706 which cheque has in fact nothing to do with the transaction regarding the land in dispute. Therefore, according to the learned counsel, with a view to make it appear that the agreement dated 13-5-1975 regarding the sale of the vacant land in question is a genuine one and to satisfy the requirements of G. O. Ms. No. 186 regarding the genuineness of the deed of agreement to be established by documentary evidence, the respondents have pressed into service the cheque meant for a different transaction and made the Government believe that the agreement is a genuine one and thus they have played fraud on the Government and the other authorities and therefore the impugned G. O. is illegal and is a nullity. Before we take up the plea of the respondents we shall consider the principles of law governing a case of fraud.

27. In Lazarus Estates Ltd. v. Beasley, (1956) 1 All ER 341, it is observed by Denning, L.J. thus :-

'No Court in this land will allow a person to keep an advantage which he has obtained by fraud. No judgment of a court, no order of a Minister, can be allowed to stand if it has been obtained by fraud. Fraud unravels everything. The Court is careful not to find fraud unless it is distinctly pleaded and proved; but once it is proved it vitiates judgments, contracts and all transactions whatsoever.'

In his classic book 'Administrative Law' Fifth Edition H. W. R. Wade referred to Denning, L.J.'s observations in Lazarus Estates case supra and at page 228 noted thus :-

'In administrative law, which was not the context of this statement, there is only scanty material to illustrate it, although in principle it ought to be correct. The only field in which there are examples is immigration law, where it is held that leave to enter given by an immigration officer is vitiated if it has been obtained by any kind of fraud, deception or mis-representation on the part of the immigrant. The House of Lords has gone so far as to hold, in an exceptional decision, that an immigrant has a positive duty to disclose all material facts, even if he is not asked about them, and that if he fails to volunteer relevant information he is guilty of deception and his leave to enter is nullity. A decision of an inferior tribunal obtained by fraud, for example by perjured evidence, may be quashed by the High Court on certiorari.'

28. In Halsbury's Laws of England, Fourth Edition, at page 110, Para 88 in the Chapter 'Administrative Law' reads thus :-

'88. Fraud and perjury:- An order of certiorari may be made to quash an order which has been obtained by fraud, as where an untrue charge has been knowingly made by the prosecutor, or by means of collusion between the parties, and it seems where the decision was made on the strength of perjured evidence; but it appears that the court will not quash the order unless it is satisfied that the person in whose favour the order was made could have been convicted of the fraud or perjury whereby the decision was procured.'

29. In de Smith's Judicial Review of Administrative Action, Fourth Edition at page 408, the paragraph dealing with 'Fraud or Collusion' is in the following terms :-

'The superior courts have an inherent jurisdiction to set aside order and convictions made by inferior tribunals if they have been procured by fraud or collusion........... a jurisdiction that is now exercised by the issue of certiorari to quash. Where fraud is alleged, the court will decline to quash unless it is satisfied that the fraud was clear and manifest and was instrumental in procuring the order impugned.'

30. Regina v. Secy. of State for the Home Department, (1982) 1 WLR 405, is a case where a citizen of Sri Lanka applied and was granted an entry clearance to enter the United Kingdom as a visitor, on the basis that he was unmarried, though he was married and his wife was in U.K. He entered the U. K. and applied for extension admitting that he was married. The Home Officer refused extension and he appealed to an adjudicator who formed the view that the leave was granted to the appellant due to his deception and therefore he was an illegal entrant and should be removed from the United Kingdom. And in the ultimate appeal to the Court Lord Denning while allowing the appeal observed thus :

'Coming back to what I said at the beginning, the deception must be of decisive character. It is only decisive when, if the immigrant know the true facts and did disclose them, the immigration officer would have been bound to refuse or would in all probability have refused the entry : otherwise, if the deception is neutral, as in our present case, it is not of such a decisive character and the leave to enter is not vitiated.'

31. From a consideration of the decided cases and the relevant passages in the authoritative text books, it emerges that any judgment or order of an administrative authority is a nullity if obtained by fraud and the same can be questioned before a Court. But where fraud is alleged, the Court will decline to quash unless it is satisfied that the fraud was clear and manifest and was instrumental in procuring the order impugned, and the deception must be of a decisive character not 'neutral'.

32. Bearing the above principles in mind, we shall examine the plea, taken by the respondents in the counter filed by the 8th respondent. The allegations made by the petitioner regarding the alleged fraud are contradicted. It is mentioned that the advance of Rs. 10,000/- by way of cheque dated 18-11-1975 meant for the purchase of the disputed vacant land, was not encashed by the owners and it was adjusted towards the house property purchased at Padmaraonagar and a cash consideration of Rs. 10,000/- was paid to the owners. The receipt of the consideration under the sale deed or under the agreement of sale is not disputed by the owners. It is further stated, 'Therefore it is not open to the petitioner to mention anything or try to make that the fraud is played therein. When there are two transactions between the same parties, it is open to them to adjust the money from one transaction to the other provided the entire consideration under both the transactions is received by the owners. In this case the entire consideration was received by the respondents 4 to 6 and they executed and registered a sale deed'. Before we proceed to scrutinise the explanation in the light of the further averments in the additional counter-affidavit, it may be necessary to refer to the relevant documents. In the registered sale deed dated 10-7-1975 under which the 6th respondent sold the Padmaraonagar house property it is mentioned that the vendee agrees to purchase the property by virtue of an agreement of sale dated 19-11-74 whereupon he paid by a cheque an advance amount of Rs. 10,000/- by cash Rs. 5,000/- on 28-11-1974 and given in cash Rs. 5,000/- on 25-3-1975 in all Rs. 20,000/- to the vendor the receipt of which the vendor acknowledges, and the balance of Rs. 5,000/- was paid on the date of registration. In the agreement of sale dated 13-11-1975 regarding the sale of the vacant land in question, it is mentioned that the purchasers have offered to purchase building No. 9-1-87 along with appurtenant land admeasuring about 7000 sq. yards at the rate of Rs. 115/- per sq. yard and have paid a sum of Rs. 10,000/- and the vendors have accepted the offer and have agreed to sell the said building along with the appurtenant land under the terms and conditions mentioned in the agreement, in pursuance of the agreement reached on 18-11-74. In one of the recitals it is specifically mentioned that the vendors had received from the purchasers a sum of Rs. 10,000/- through cheque No. 408706 dated 18-11-1974 drawn on National & Grindlays Bank, Hyderabad, issued by way of advance by virtue of an agreement of sale dated 18-11-1974 in respect of Padmaraonagar house property. Under the registered sale deed in respect of the Padmaraonagar house property it is only mentioned that a cheque was issued for Rs. 10,000/- on 18-11-1974. In the agreement of sale dated 13-5-1975 referred to above, there is a reference to the cheque No. 408706 dated 18-11-1974 for Rs. 10,000/-. The case of the learned counsel for the petitioner is that there is only one cheque and that has been used in both the transactions and thus misled the Government and the averments in the counter-affidavit that the cheque was not encashed by the owners and 'it was adjusted towards the house property purchased at padmaraonagar' also affirms the same. In the additional counter filed, the respondents have explained the position. It is stated that there were two oral agreements entered into on 18-11-1974 one for the Sangeet Theatre property, i.e., the building and land under the possession of the tenant through cheque No. 408706 dated 18-11-1974 for Rs. 10,000/-. It is also explained that cheque No. 408706 was presented and credited to the account of Smt. Leela Thanushkoti towards the consideration of the Sangeet theatre property, i.e., the property in question, and some more amounts were paid and the total sum came to Rs. 80,500/-. It is also explained that the house at Padmaraonagar was also negotiated and was agreed to be purchased and cheque No. 408707 for Rs. 10,000/- dated 18-11-1974 was issued, that as there was not enough money in the bank a request was made to the owner not to present the cheque, and in the meanwhile the purchasers paid Rs. 10,000/- on two dates i.e., on 28-11-1974 and 23-3-1975 and the cheque was taken back before registration of the sale deed on 10-7-1975 and Rs. 10,000/- was paid as against the time-barred cheque No. 408707 and the balance of Rs. 5,000/- was also paid on the day at the time of registration and thus a total sum of Rs. 25,000/- was paid.

33. The learned counsel for the petitioner submits that the explanation is belated and it does not fit in with the averments made in the earlier counter-affidavit. It must be pointed out at this stage that the fraud alleged must be proved positively. That there are two transactions is not in dispute. The statement of the bank account also shows that the amount of Rs. 10,000/- by cheque No. 408706 was debited to the account of the 8th respondent. It also shows that the cheque No. 408706 was not utilised. However, these are all not the details to be gone into by the Government at the stage of granting exemption. The parties have agreed before the Government that there was such a transaction. The owners applied for exemption, they have acknowledged the receipt of Rs. 10,000/- by way of cheque No. 408707 and the same is recited in the agreement of sale dated 13-5-1975. As already mentioned, the extract from the non-judicial stamps register also shows that two non-judicial stamps were also purchased by Sri C. T. Vijaya Raghavan s/o C. P. Thanushkoti. It is on the same stamp papers that the agreement in question was engrossed and there is a reference to cheque No. 408706. By placing all this material before the Government, it cannot be said that the respondents misrepresented and played fraud. Even in the original counter there is no reference to a particular cheque No. When there are two transactions, as to how the parties adjusted the advances in respect of them, is not a matter concerned with third parties. The documents undoubtedly show that cheque No. 408706 was issued by the 8th respondent to Smt. Leela Thanushkoti and there is a reference to this cheque in the agreement. It may be, as explained by the respondents, that this cheque was used towards advance of sale consideration of the land in question and by way of an adjustment and accommodation another cheque bearing No. 408707 was issued with a request not to present the same for encashment and with a promise to pay the cash as against the cheque soon, and on 10-7-1975 according to the respondents they paid Rs. 10,000/- in cash and took back the cheque. It can, therefore, be seen that cheque bearing No. 408707 must have been given by way of security, and the same was purely a personal arrangement between parties. So far as the Government is concerned, the agreement of sale dated 13-5-1975 was presented before them by the declarant and the cheque No. also was given and the same must have been verified by the Government to test the bona fides of the transaction. As observed in Regina's case (1982) 1 WLR 405 (supra), the alleged deception should be in respect of material facts which the party was obliged to disclose. In Regina v. Ashford, (1956) 1 QB 167, it is observed that where fraud is alleged the Court will decline to quash unless it is satisfied that the fraud was clear and manifest and was instrumental in procuring the order impugned.

34. In the instant case the adjustment of advance money in respect of Padmaraonagar house property is not a material fact that ought to have been disclosed by the respondents. Therefore, it cannot be said that fraud has been proved so as to warrant the quashing of the impugned G. O.

35. For all the aforesaid reasons, this writ petition (W. P. 3568 of 1984) has to be dismissed.

36. W. P. No. 5449 of 1985 :- The petitioner herein is no other than the 7th respondent in W. P. No. 3568 of 1984. She is the daughter of late Sri C. P. Thanushkoti. In her affidavit it is averred that the property in question is the ancestral property and she being the daughter of late Sri Thanushkoti, she is entitled to a share and she is affected by G. O. Ms. No. 4778 dated 11-11-1980 permitting the alienation. The submissions in this writ petition are more or less on the same lines as in the other writ petition. Therefore, we need not again deal with those points, which we have already decided in the other writ petition.

37. One of the other submissions in this writ petition is that the 7th respondent (the petitioner herein) has a share in the property and without giving notice and without hearing her the Government ought not to have passed the G. O. It is also submitted that she was not a party to the agreement executed in favour of Diwakar Maternity and Nursing Home and that she also did not apply for exemption and therefore the exemption order which is thus obtained behind her back has to be quashed.

38. It is true that the petitioner herein is not a party to the agreement. About her share in the property there cannot be any dispute. But the two sons and the wife of late Sri Thanushkoti, who had a major interest in the property in question and who had entered into an agreement to sell the land, had every right to apply for exemption. The property as a whole was mentioned and further it is an undivided property belonging to the joint family and Kartha of the family as well as the other two shareholders filed an application for exemption in view of the agreement of sale executed by them, and the exemption is to the benefit of the entire family. As discussed above, in the other writ petition the G. O. does not compel anybody to sell. The 7th respondent can even now refuse to sell her share to Diwakar Maternity and Nursing Home. As to what extent and which part of the property falls to her share, is a matter to be worked out in a partition. By passing the impugned G. O. the 7th respondent is not legally compelled to sell. Even now she can apply to the Government and ask to consider her declaration.

39. The learned counsel placed reliance on a decision of the Madhya Pradesh High Court in Nandakishore v. State of M. P., : AIR1982MP33 . Wherein it is held that opportunity of being heard should be given to a claimant before rejecting an application under section 20 of the Act. There cannot be any dispute about this principle, but we are unable to say as to how this decision helps the 7th respondent. Here in the instant case exemption is granted on the basis of an application filed by the members of the joint family. That does not in any way affect the interests of the 7th respondent (petitioner herein) nor restrict her rights to deal with her property as she likes. For all these reasons this writ petition is liable to be dismissed.

40. In the result both the writ petitions are dismissed with costs. Advocate's fee Rs. 150/- in each.

41. An oral application is made for leave to appeal to the Supreme Court. We are of the view that the case does not involve any substantial question of law of general importance which needs to be decided by the Supreme Court. The oral application is dismissed.

42. Only the trial of R. C. No. 141 of 1982 is stayed for three weeks.

43. Petition dismissed.


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