Andhra HC (Pre-Telangana)
Konkana Ravinder Goud And Ors. vs Bhavanarishi Co-Operative House ... on 5 September, 2003
Equivalent citations: 2003(5)ALD654, 2003(6)ALT1, 2003 A I H C 4044, (2003) 5 ANDHLD 654
Author: B. Sudershan Reddy
Bench: B. Sudershan Reddy
JUDGMENT Devinder Gupta, C.J.
1. These writ appeals are being disposed of by a common order since they are directed against the order of the learned Single Judge in Writ Petition No. 8558 of 2001 dated 16.7.2002 setting aside the order dated 5.3.2001 passed by the Joint Collector, R.R. District, Hyderabad purported to be in exercise of his revisional powers under Section 9 of Andhra Pradesh Rights in Land and Pattadar Pass Books Act, 1971. By this order, the Joint Collector quashed the order of the Mandal Revenue Officer, Keesara Mandal, Rangareddy District dated 18.12.1991 in respect of lands bearing S.Nos. 159 (1-33), 162 (14-12), 163 (1-29), 164(6-36), 165(11-34) and 166(4-30) in File No. ROR/1795/91 and S.Nos. 161(14-18), 167(10-18) and 168 (14-34) in file No. ROR/1807/91 situated at Kapra Village. The Mandal Revenue Officer was directed to restore the entries in the revenue records in respect of the said lands and to take further necessary action for updating the entries as per the law in pursuance to the occupancy right certificates. The parties were left at liberty to make their claims before the appropriate forum.
2. For convenience sake, the parties are being referred to as were arrayed in the writ petition. While W.A. No. 1384 of 2002 is preferred by Respondents 9 to 26, W.A. Nos. 1409 and 1773 of 2002 are preferred by respondent No. 2 and Respondent No. 31 respectively.
3. The facts leading to the controversy may briefly be noted: The land admeasuring Ac.165.01 gts. covered by S.Nos.159 to 169, 180 and 182 to 190 situated in Kapra Village, Keesara Mandal within the Hyderabad agglomeration were inam lands and stood in the name of Sri Mahdi Ali Khan (Respondent No. 31 and appellant in WA.No. 1773 of 2002). Respondents 4 to 30 are the successors-in-interest of those who had been cultivating the land as protected tenants in terms of A.P. (Telangana Area) Tenancy and Agricultural Lands Act, 1950. Consequent upon the abolition of the Inams by A.P. (Telangana Area) Abolition of Inams Act, 1955, applications were filed under Section 7 of the Inams Act before the Inams Tribunal and Revenue Divisional Officer, Chevella for grant of occupancy rights certificates over the inam lands. Respondent No. 31 filed his objections but later a memo was filed on 1.10.1981 withdrawing his claim of resumption. By order-dated 24.11.1982, the Inams Tribunal granted occupancy rights certificates in favour of the protected tenants. On the basis of Ryotwari Patta Certificates the Mandal Revenue Officer sanctioned mutations in favour of those eligible persons. In these proceedings we are concerned only with a part of the said land. The details of survey numbers and the names of persons in whose favour Occupancy Rights Certificates were issued are as follows:
File No. Sy. No. Area Name of the person to whom Patta Certificate issued
1.
L/5581/91 161 17-28 1 . Sappidi Venkaiah S/o Venkaiah
2. L/5892/91 167 17-05
2. Madireddy Jangaiah S/o Balaiah
3. L/5831/91 168 14-34
3. Kasula Sattaiah S/o Pochaiah.
16919-37
4. Kasula Balaiah S/o Pochaiah.
4. L/5889/91 159 1-33
1. D. Laxmaiah. l/3rd share holders 162 14-12
2. D. Chandmiah. i.e., 13-31 acres 163 1-99
3. Anjaiah. each.
1646-36 165 11-34 166 4-30
4. It is alleged that on 26.12.1982 the petitioner, Sri Bhavanarishi Co-operative House Building Society, Hyderabad, a society registered under the A.P. Co-operative Societies Act, 1964 (hereinafter referred to as "the Society") incorporated for promotion and welfare of the Weavers Community, mainly, for providing house sites entered, into two agreements of sale - one with respect to S.Nos. 159 and 162 to 166 to the extent of Ac.41.14 gts. and the other with respect to S.Nos.161, 167 and 168 to the extent of Ac.39.30 gts. totalling to Ac.81.04 gts. with the predecessors of Respondents 4 to 30. The society claims that the entire sale consideration was paid through cheques and receipts were also issued for the same and thus the lands stood transferred in its favour by delivering effective actual possession. It is also alleged that irrevocable General Power of Attorneys were executed in the name of office bearers of the society in September, 1983 authorising and empowering them to act jointly and to represent before the various authorities. The society is alleged to have made representation to the Tahsildar, Vallabhanagar Taluk to enter its name in the revenue records in place of the protected tenants. The Tahsildar by proceedings dated 25.1.1984 is alleged to have directed the name of the society to be entered in revenue records as occupants.
5. On 10.9.1991 and 19.9.1991 two separate applications were filed by the Secretary of the Society before the Mandal Revenue Officer, Keesara Mandal in Form No. X under Section 5-A of the A.P. Rights in Land and Pattadar Pass Books Act, 1971 (A.P. Act No. 26 of 1971) (hereinafter referred to as "the Act") with the prayer to issue a certificate under Section 5-A(iv) of the Act and Rule 22(5)(ii) of A.P. Rights in Land and Pattadar Pass Books Rules, 1989 (hereinafter referred to as "the Rules") declaring that the alienation/transfer of land made in favour of the society by (1) Donkena Laxmaiah, (2) Donekana Chandraiah, (3) Donkana Anjaiah, (4) Donkena Lingamaiah (all sons of Donekana Narasaiah), (5) Kasula Balaiah, (6) Madireddy Jangaiah and (7) Sappidi Venkaiah, the vendors - is valid. The applications were numbered as ROR 1795/91 and ROR 1807/91.
6. The Mandal Revenue Officer, Keesara Mandal accepted the applications filed in Form No. X and required the Society to deposit in the Treasury an amount equal to the stamp duty, which according to him would have been payable had the alienation or transfer been effected by a registered document in accordance with the provisions of the Indian Registration Act, 1908 as fixed by the Registering Officer on a reference made to him by the Mandal Revenue Officer in Form No. XIII(a) of the Rules. On deposit of the said amount by the Society, by proceedings dated 18.12.1991 Mandal Revenue Officer granted certificates under Sub-section (4) of Section 5-A in Form XIII(B).
7. It appears that the Society filed an application before the Government on 9.4.1995 for change of land use to residential under the provisions of A.P. Urban Areas (Development) Act, 1975. In exercise of its powers under Section 12 of the said Act, G.O. Ms. No. 394, dated 16.9.1995 was issued by the Government permitting change of land use to residential use. Layout of the land was submitted by Society to Hyderabad Urban Development Authority (HUDA) for approval and it is alleged that on 5.3.1997, HUDA asked the society to pay an amount of Rs. 34,86,315/- towards development and conversion charges which amount the society is alleged to have paid to HUDA on 27.5.1997.
8. It further appears that on 3.4.1997, the Joint Inspector General (Registration and Stamps), Hyderabad Range addressed a letter to the Collector Ranga Reddy District with copies to Commissioner of Land Revenue, Commissioner, S.S.L. Records, Additional Director, A.C.B. (Telangana), Joint Collector, Ranga Reddy District etc., with a request to take appropriate steps to suspend the orders passed by the Mandal Revenue Officer in File ROR/1807/91 and ROR/1795/9-1 dated 18.12.1991 and to initiate suitable disciplinary action against the concerned officer in having flouted the provisions of A.P. Record of Rights Act, 1971 and Urban Land Ceiling Act since according to him, the said order had resulted in loss of revenue to the Government to the tune of Rs. 48,58.920/- in the shape of stamp duty. The Joint Inspector General in his letter specifically pointed out that the Society filed application before the M.R.O. on 1.9.1991 in Form No. X for regularisation of agreement of sale under Section 5-A of the Act. Section 5-A of the A.P. Rights in Lands and Pattadar Pass Books Act, 1971 and Rule 22 of A.P. Rights in Land and Pattadar Pass Book Rules, 1989 lays down a procedure for regularisation of certain alienations or transfers of agricultural lands made or effected otherwise than by registered documents. As per the provisions therein such regularisation is possible only in respect of persons who are recorded as occupants in ROR records prepared earlier or in adangal/pahanis. The provisions of the Act applies only for regularisation of agricultural lands transferred through unregistered sale deed but not agreement of sale for land to be converted into plots as it attracts provisions of Urban Land Ceiling. Provisions of the Act and Rule 9(iv) of the Rules forbid any such mutation.
9. The Joint Collector treated the information supplied to him by the Joint Inspector General (Registration and Stamps) as a revision under Section 9 of the Act and on 3.5.1997 stayed all further proceedings on the certificates issued by the Mandal Revenue Officer. It further appears that at that stage, Respondents 4 to 30 became aware of the orders passed by the Mandal Revenue Officer in having issued certificates in favour of the Society and since according to them the certificates were obtained by the Society without their knowledge and without notice to them and in contravention of the various statutory provisions, they filed W.P. Nos. 20813 and 20832 of 1997 seeking mandamus against the Mandal Revenue Officer to delete the name of the Society from the Patta Columns of Pahani patrikas for the relevant years in respect of the land in question, while challenging the order dated 18.12.1991 as well as the certificates issued by the Mandal Revenue Officer declaring the alleged transaction of agreement of sale as invalid. On 1.9.1997, this Court disposed of the writ petitions reserving liberty to respondents 4 to 30 to approach the District Collector before whom the revision proceedings were pending and who had already stayed the operation of the order made by the Mandal Revenue Officer under Section 5-A of the Act, making it clear that it would be open to respondents 4 to 30 to seek any further direction or interim relief by making necessary application before the Joint Collector. The Court directed the District Collector to consider any application made by the respondents 4 to 30 on merits and pass appropriate orders within two weeks from the date of receipt of such application.
10. Respondents 4 to 30 then moved the Joint Collector to be added as parties to the proceedings initiated by him and accordingly they were added as parties to the proceedings before the Joint Collector. In reply to the notices issued by the Joint Collector calling upon the respondents 4 to 30 as to why the order passed by the Mandal Revenue Officer be not set aside and certificates issued by him be not cancelled, they prayed that their objections be treated as revision under Section 9 of the Act and to cancel the proceedings dated 18.12.1991 in File Nos. 1795/91 and 1807/91 on the ground that the same were passed without jurisdiction. They pointed out that there was no provision in the Act to validate agreements of sale. It was further pointed out that the agreements of sale produced by the Society before the Mandal Revenue Officer reveal that the documents in question were only agreements and not sale deeds. The society has misled the Mandal Revenue Officer and suppressing factual aspects the Society obtained the order even without notices to them.
11. The Joint Collector duly heard the Society as well as Respondents 4 to 30 and on considering the entire record proceeded to set aside the order of the Mandal Revenue Officer with a direction to restore the entries in the Revenue Records as they existed prior to the impugned orders of the Mandal Revenue Officer and to take further action for updating the entries as per the Act in pursuance of the Occupancy Right Certificates issued over the land. The Joint Collector inter alia found that notices in Forms XI and XII had not been got served on the affected parties by the Mandal Revenue Officer, who also failed to observe the provisions of the A.P. Land Reforms (Ceiling on Agricultural Holdings) Act, 1971 or the Urban Land (Ceiling and Regulation) Act, 1976 as required by Rule 9(iv) of the Rules, 1989. It was also held that "Agreement of sale" is neither "alienation" nor "transfer" within the ambit of Section 5-A of the Act.
12. The Society feeling aggrieved filed W.P. No. 8558 of 2001 questioning the legality and validity as also jurisdiction of the Joint Collector in having proceeded to set aside the order passed by the Mandal Revenue Officer. The learned Single Judge by the order, which is impugned in these appeals proceeded to allow the writ petition and set aside the order passed on 5.3.2001 by the Joint Collector, inter alia, holding that the Joint Collector had no revisional power under Section 9 in relation to the order passed by the Mandal Revenue Officer prior to the substitution of Section 9 by the Amendment Act of 1994 with effect from 31.10.1993; the suo motu revisional powers under Section 9 could not be exercised after a long lapse of about ten years; the Joint Collector failed to appreciate the provisions of law correctly and failed to apply the principles of law to the facts of the case; Respondents 4 to 30 did not object to the proceedings before the Mandal Revenue Officer under Section 5-A prior to the initiation of suo motu revision under Section 9 by the Joint Collector and the land did not cease to be agricultural land notwithstanding its inclusion in the Master Plan. The learned Single Judge also negatived the plea of fraud alleged to have been played by the society in obtaining the order and the certificates from the Mandal Revenue Officer as totally misconceived and devoid of merit.
13. The aforementioned appeals are filed by Respondents 9 to 26, Respondent No. 2 and Respondent No. 31 respectively.
14. Mr. P.P. Rao, learned Senior Advocate appearing for the Respondents 9 to 26, who are appellants in W.A. No. 1384 of 2002 submitted that under Section 9 of (he Act, the Collector has power of revision and to call for and examine any record of rights prepared or maintained under Section 3 of the Act including updating of record of rights under the relevant provisions of the Act including Sections 4, 5 and 5-A and having regard to the object of providing for revision by the Collector, the expression "any recording authority" occurring in Section 9 is not limited to "recording authority" as defined in Section 2(10) of the Act, Under the unamended Section 9, the Collector had power to take cognizance suo motu of any order passed or proceedings taken by any recording authority or an appellate authority to satisfy himself as to the regularity of such record, order of proceeding or the correctness, legality or propriety of any decision passed or order made therein and in case it appeared to the Collector that any such record, order or proceeding should be amended, modified, annulled, reversed or remitted for reconsideration, he had power to pass orders accordingly. The amended Section 9 makes it explicit what was implicit in the unamended Section 9 and such amendments should be given retrospective effect. This interpretation was not considered by the Division Bench in M.B. Rantam v. RDO, Ranga Reddy District, , which was relied upon by the learned Single Judge.
15. Mr. Rao further placing reliance on the decision of the Supreme Court in State of Orissa v. Brindaban Sharma, (1995) Suppl. 3 SCC 249, urged that revisional powers can be exercised in respect of orders made prior to the coming into force of the amended provision specifically conferring revisional power. He also placed reliance on the decision in Thiru Manickam v. The State of Tamil Nadu, , that an amendment can be looked into for interpreting the unamended provision.
16. Mr. Rao would then submit that the learned single Judge erred in holding that the power of revision cannot be exercised after a long lapse of ten years ignoring the fact that the appellants had no knowledge of the proceedings before the Mandal Revenue Officer till the Joint Collector initiated suo motu revision proceedings in the year 1997. In numerous cases, the Supreme Court has held that exercise of power after long lapse of time would depend upon the facts and circumstances of each case.
17. He would further submit that the learned Judge erred in holding that an agreement of sale would by itself constitute alienation or transfer in terms of Section 5-A of the Act. Reliance in this connection has been placed on the decision of the Full Bench of this Court in K. Venkateshwarlu v. K.J. Pedda Venkaiah, , wherein interpreting the word "land" under Section 4 of A.P. Vacant Land in Urban Areas (Prohibition of Alienation) Act, 1972, a Full Bench held that an agreement of sale is not a transfer. The society is only an agreement holder without any possession.
The Mandal Revenue Officer failed to properly examine the provisions of A.P. Land Reforms Ceiling on Agricultural Holdings Act, 1973, Urban Land Ceiling and Regulation Act, 1976 as contained in Sub-section (2) of Section 5-A and no findings were recorded by the MRO on the said aspects. Since the land in question was included in the Master Plan for non-municipal area vide G.O. Ms. No. 319, M.A. dated 23.6.1980, it cannot be continued to be treated as agricultural lands with effect from 23.6.1980. The learned Judge erred in coming to the conclusion that the land continues to be agricultural land under the provisions of the Act. It was further urged that in view of the definition of "land" in Section 2(4) of the Act, the finding of the learned Judge that the land continues to be an agricultural land is not correct. The land, which is exclusively used for non-agricultural purpose, does not come within the purview of "land" as defined under the Act. The learned Judge failed to appreciate that the land was not being cultivated at all even prior to the date of agreements of sale.
18. Mr. Rao would further urge that the Mandal Revenue Officer did not issue any statutory notices either to the occupants who were the vendors mentioned in the agreements of sale or to their successors or any other interested party, as such the order of the Mandal Revenue Officer was liable to be set aside for not affording an opportunity of hearing in the proceedings under Section 5-A. He further submitted that by the date applications were made by the society under Section 5-A of the Act, most of the vendors had died and their rights were inherited by their sons. They were neither impleaded as parties nor any notice was served on them. Out of the seven vendors mentioned above, the first two and last three were not alive on the date of applications. The contention of the respondents that the proceedings of the MRO are vitiated by reason of fraud committed by the Society and order was nullity was not properly considered by the learned Judge.
19. Mr. K. Subrahmanya Reddy, learned Senior Advocate appearing for Respondent No. 31 who is appellant in W.A. No. 1773 of 2002 submitted that Respondent No. 31 was not a party to the agreements of sale and under these circumstances, the learned Judge ought to have remitted the matter to the Joint Collector so far as the claim of the inamdar is concerned to find out whether the inamdar had given up his claim under the Inams Abolition Act and whether he continued to be a pattadar with respect to any extent of land. No notice was served on respondent No. 31 by the Mandal Revenue Officer in spite of the fact that patta was standing in his name as required under Section 5-A of the Act. He would further submit that once the Urban Land Ceiling and Regulation Act, 1976 has covered the village of Kapra by virtue of the extended Master Plan, it is not open for the authorities to invoke the provisions of the Act. Reliance has been placed on the decisions of the Apex Court in State of A.P. v. N.Audikesava Reddy, , Government of A.P. v. J. Sridevi, , 7. Sudarshan Reddy v. Government of A.P., 1985 (1) APLJ 182, and State of A.P. and Anr. v. S.B. Komariah, . In view of the non-obstante clause contained in Section 42 of the Urban Land Ceiling and Regulation Act, 1976, the MRO has no power to invoke the provisions of the Pattadar Pass Books Act, 1971.
20. Mr. C. Gopal Reddy, learned Counsel for respondent No. 31 would submit that even though the order passed by the MRO is dated 18.12.1991, as the order is one prepared or maintained under Section 5-A, it was open to the Joint Collector to go into the correctness, legality and propriety of any decision taken. The suo motu revisional power may be exercised even with respect to orders passed or maintained prior to 31.10.1993. Reliance has been placed on the decisions of the Apex Court in Special Military Estates Officer v. Munivenkataramaiah, , Bishambhar Nath Kohili v. State of Uttar Pradesh, , and Mithoo Shahani v. Union of India, . He urged that the learned Judge relied upon the decision in Niranjan Singh v. Custodian, Evacuee Property, , which was, dissented to in Bishambhar Nath Kohili v. State of Uttar Pradesh.
21. He would further submit that in view of the fact there is loss of revenue to the State Government to the extent of Rs. 42,58,910/- because of fraud played by the society, it vitiates every proceedings irrespective of date of initiation of the proceedings. Reliance has been placed on the decision of this Court India Cable Company Ltd. v. Government of A.P., .
22. He would also submit that a similar issue was considered by the Supreme Court in State of Orissa v. Brundaban Sharma, (1995) Suppl. 3 SCC 249, wherein the Supreme Court upheld the suo motu powers of revision exercised by the Board of Revenue of Orissa under Section 38(B) of the Orissa Abolition Act, 1951 and set aside the order of the Tahsildar granting patta after a lapse of 27 years. It was held that when revisional powers are conferred to effectuate a purpose, it is to be exercised in a reasonable manner, which inheres concept of its exercise within a reasonable time. Absence of limitation is an assurance to exercise the power with caution or circumspection to effectuate the purpose of the Act or to prevent miscarriage of justice or violation of the provisions of the Act, misuse or abuse of power by the lower authorities or fraud of suppression. Length of the time depends on the factual scenario in a given case. Therefore, the learned Counsel would submit that the Joint Collector has rightly set aside the order of the Mandal Revenue Officer.
23. Learned Government Pleader appearing for Respondent No. 1 who is appellant in W.A. No. 1409 of 2002 submitted that the learned Judge failed to appreciate that the power of revision was available under Section 9 of the Act even prior to amendment of Section 9. Such power of revision of Record of Rights at the highest authority in District level is provided even in A.P. (TA) Record of Rights in Land Regulation, 1358 Fasli. Therefore, it is not correct to state that power of revision is conferred on the Collector for the first time in 1994. Such power of revision was available even under the unamended Section 9 of the Act and any order passed under the Act is revisable by the Collector.
24. He would further submit that in view of the definition of the word "land" under the Act and inclusion of lands in the Master Plan, the lands cannot be treated as having continued to be the agricultural lands with effect from 23.6.1980. The aims and object of the Society and purpose for which the agreements of sale were entered was only to utilise the land for house sites in accordance with the Master Plan, therefore, the obvious intention of the Society and nature of transaction in purchasing the lands is of the 'urban land' not the agricultural land for which the provisions of the Act have no application. There is nothing in the agreements of sale to show that physical possession had been delivered and as such the order of the MRO is without jurisdiction. The expression "other than by way of a registered document" occurring in Section 5-A cannot operate as transfer.
25. The finding of the learned Judge that notwithstanding the inclusion of the land in Master Plan, the land continues to be agricultural land is contrary to the law laid down by the Apex Court in Adikeshav Reddy's case. Grave material irregularities have been committed by the Mandal Revenue Officer in that the provisions of the Act and Land Ceiling Laws have not been looked into before the Validation Certificates were granted.
26. Mr. E. Manohar, learned Senior Advocate appeared for the Society in W.A. No. 1773 of 2002 and Mr. Ramakrishna Reddy, learned Senior Counsel and Mr. B. Mahender Reddy, Advocate also appeared for the Society in other two appeals. Almost similar submissions were made by them.
27. Mr. E. Manohar, learned Senior Advocate appearing for the Society submitted that the Joint Collector has no jurisdiction to entertain revision petition under Section 9 of the Act against the orders passed by the Mandal Revenue Officer under Section 5-A prior to 31.10.1993. Consequently, the order-dated 5.3.2001 passed by the Joint Collector in quashing the certificates is null and void and inoperative. The Mandal Revenue Officer issued certificates under Section 5-A regularising the transfer of the lands made in favour of the Society on 18.12.1991. The certificates had become final on the date of their issuance under the Act. In the absence of any appeal or revision a vested right accrued in favour of the Society and its members, which could not have been taken away by exercise of power, which was not available.
28. Learned Counsel for the Petitioner Society submitted that on 31.10.1993, by way of amendment Act 9 of 1994, remedy of appeal under Section 5-B and revision under Section 9 were provided against the orders passed under Section 5-A, without indicating any retrospective effect. The amending Act neither attempted to explain, nor clarified Section 9. The amending Act was enacted precisely inserting Section 5-A so as to give effect to the revisional power against the orders under Section 5-A prospectively. Even otherwise, non-obstante clause as contained in Section 5-A expressly excludes unamended Section 9 against the orders passed under Section 5-A up to 31.10.1993. The subsequent amendment providing appeal under Section 5-B and revision under Section 9 will not apply to the certificates issued prior to 31.10.1993. Reliance was placed on the decision of this Court in M.B. Ratnam's case (supra) and the decision of the Apex Court in Keshavalal v. Mohanlal, . Even otherwise, the learned Counsel would submit that the suo motu revisional power has to be exercised within a reasonable time, which was exercised beyond a reasonable time after ten years of issuance of certificates.
29. Mr. Ramakrishna Reddy learned Counsel for the Society further submitted that ordinarily there are only three requisites to complete a transfer by sale viz., (1) a person must agree to transfer his ownership to another person and that the other person must agree to accept such transfer (2) price must be paid or agreed to be paid by the later to the former, and (3) both must be competent to contract. He argued that where a transfer of ownership is completed otherwise than by a registered document, scheme under Section 5-A provide the remedy for obtaining certificates to the effect that the transfer is valid. According to the learned Counsel, the essential statutory requirements of Section 5-A are A person must be an occupant (where a person is an occupant by virtue of alienation or transfer made or affected otherwise than by registered document); the Mandal Revenue Officer has to satisfy that the alienation or transfer is not in contravention of the provisions of A.P. Land Reforms (Ceiling on Agricultural Holdings) Act, 1973, Urban Lands (Ceiling and Regulations) Act, 1976, A.P. Scheduled Areas Land Transfer Regulations, 1959 and A.P. Assigned Lands (Prohibition of Transfer) Act, 1977; payment of stamp duty that would have been payable had the alienation or transfer been affected by registration document, in accordance with the provisions of the Registration Act, as fixed by the Registration Officer. It is only after satisfying with the above requirements, the Mandal Revenue Officer is required to issue certificate to the alienee or transferee declaring that the alienation or transfer as valid.
30. It was further submitted that the inquiry under Rule 22 of Rules, 1989 incorporates the above conditions and Rule 22(2) indicates that the Mandal Revenue Officer will receive the application under Section 5-A for those transfers which took place prior to 31.7.1989. The words 'alienation' or 'transfer' are not defined either under Section 5-A or in the original Act 26 of 1971. The scheme contemplated under Section 5-A is to complete the procedural part of registration without the intervention of the parties. Mandal Revenue Officer validates de facto transfer as de jure transfer by issuing a certificate after fulfilment of the above requirements mentioned in Section 5-A.
31. It was urged on behalf of the Society that the certificates issued in favour of the Society are in conformity with Section 5-A. The physical possession of transfer of the lands was effected in favour of the Society and name of the Society was also recorded as occupant from 1982-83, vide order of Tahsildar dated 25.1.1984. The lands covered by certificates under Section 5-A are not vacant lands within the meaning of 2(q)(1) of Urban Land Act, 1976 on the date of issuing of certificates i.e., 18.12.1991.
32. It was further submitted that the Government of Andhra Pradesh issued G.O. Ms. No. 394 under Section 12 of A.P. Urban Areas (Development) Act, 1975 to change the land use as residential use zone. Therefore, the lands covered by the Validation Certificates are not permissible for construction of building as on the date of issuing of certificates and as such the lands in question are not vacant lands within the meaning of the provisions of Urban Land Act, 1976. Therefore, the Validation Certificates issued under Section 5-A are not in contravention of Urban Land Act, 1976.
33. Mr. Ramakrishna Reddy would further submit that the society paid an amount of Rs. 2,13,300/- towards stamp duty as fixed by the Registration Officer. As per the Government guidelines and clarifications the stamp duty and registration fee is fixed by the Registration Officer with reference to the date of transfer of the lands, but not with reference to the date of issuance of certificates. In any case, loss of stamp duty, if any, can always be recovered in accordance with law for which the Society can have no objection to pay.
34. As regards issuance of notice under Section 5-A enquiry, it was submitted that in the impugned order itself it was mentioned that notice had been issued to the vendors in prescribed Form No. XI and a public notice was also got issued in Form XII. The vendors executed registered irrevocable General Power of Attorney coupled with interest in favour of Sri B. Suryanarayana Murthy authorising him to represent on their behalf before all authorities, including Courts etc., in respect of the lands. Under Section 202 of Contract Act, General Power of Attorney coupled with interest continues to hold good even after death. The principal confers an interest on the agent, such agency cannot be revoked unilaterally by the principal, or by the death, incapacity, or insolvency of the principal.
35. It was further submitted that during the course of Section 5-A enquiry, the Power of Attorney holder appeared and represented and placed all the material documents. The appellants who are claiming to be legal heirs cannot say now after ten years of issuance of certificates that they had not received any notices. Respondents 4 to 30 admittedly are not the vendors.
36. The Society paid entire sale consideration through cheques, which fact was neither disputed by the vendors nor did they raise any objection. Even in the General Power of Attorney the vendors had admitted that they received the entire sale consideration. In their counter, the respondents have neither denied the averment regarding payment of entire sale consideration nor raised any ground on this aspect before the learned Single Judge at the time of the disposal of the writ petition.
37. It was also submitted that the Joint Collector is Junior IAS Officer and he is not a statutory authority under the Stamp Act. The Joint Inspector General (Registration and Stamps) is a superior IAS Officer. There was no cause or reason to send a letter for cancellation of certificates on the ground of loss of stamp duty. The Joint Inspector General being the statutory authority could invoke or initiate proceedings under the Stamp Act to recover deficiency in stamp duty. The Joint Collector passed order cancelling the certificates by merely carrying out the instructions as contained in the letter of the Joint Inspector General and thus as a quasi-judicial authority under Section 9 of the Act abdicated his statutory responsibility.
38. Learned Counsel for the Society thus, in nutshell, submitted that the Society neither played any fraud nor concealed or suppressed or tampered any material facts nor suppressed any material documents in obtaining certificates under Section 5-A. The Society acted bona fide within its limits in accordance with law. There are 2800 members in the Society, belonging to weaker section who are eagerly awaiting to get house sites for construction of houses for the last twenty years. The vendors received considerable sale consideration as per the market value at the time of sale. The Society paid considerable amounts to HUDA and other authorities for releasing of layout. Due to the vexatious litigation invented through third parties sufficient prejudice is caused to the Society and its members.
39. We have duly considered the submissions made at the Bar. We were also taken through the entire record and have also perused the case record produced by the learned Government Pleader for Revenue.
40. Having noticed the submissions made at the Bar, we are of the view that the appeals can be disposed of by examining the following two basic questions going to the very root of the matter.
41. In his letter addressed by the Joint Inspector General (R&S), Hyderabad to the Joint Collector, he mentioned that Section 5-A of the Act, which prescribes a procedure for regularisation of certain alienations or transfers of agricultural lands made or otherwise effected by registered documents, applies only for alienations or transfers but not to the agreement of sale. The Joint Collector in the order impugned in the writ petition held that an agreement of sale cannot be treated as alienation or transfer within the scope and meaning of Section 5-A of the Act.
42. Therefore, the first question would be as to whether an agreement of sale can be treated as alienation or transfer within the scope and meaning of Section 5-A of the Act.
43. The second question would be whether the Joint Collector could have exercised powers under Section 9 of the Act (as it now stands) to set aside the order of the Mandal Revenue Officer passed on 18.1.2.1991 when Section 9 of the Act (as it stood then) did not expressly confer any power on the Collector to call for and examine the record with a view to satisfy himself as to the legality or propriety of any decision taken or order passed by the Mandal Revenue Officer under Section 5-A of the Act.
Question No. 1:
44. At the very outset we may take notice of the recitals made in the agreements of sale: Agreement of sale dated 26.12.1982 with reference to the land measuring Ac.43.14 gts. comprising Survey Nos. 161, 167 part and 168 was entered into by the society with 12 persons described therein as vendors. The agreement recites that Vendors 1, 2, 3 and 6 are the persons in whose favour Occupancy Certificates had been issued and they were in occupation of the land, which was agreed to be sold for total consideration of Rs. 12,90,000/- at the rate of Rs. 30,000/- per acre and as on the date of agreement of sale a sum of Rs. 2,30,000/- was said to have been paid as advance. The balance sale consideration of Rs. 10,60,000/- was agreed to be paid in three equal instalments at the rate of Rs. 3,53,333-33. Similarly the other agreement of sale dated 26.12.1982 is with reference to land comprising S.Nos.159, 162 to 166 and was entered into between the Society and ten vendors out of whom the vendors described at S.Nos. 1, 2 and 3 were those in whose favour Occupancy Certificates dated 7.12.1982 had been issued. The land was agreed to be sold for a total consideration of Rs. 12,40,500/- out of which Rs. 1,30,000/- was said to have been paid on the date of agreement and the balance amount of Rs. 1 1,10,500/- was agreed to be paid in three equal instalments. The other recitals in the agreements are verbatim the same under which the vendors undertook to obtain Patta Certificates from the concerned authorities at their own cost and also other permissions required under the Act and the rules in force for completing the sale transaction covered by the agreements by sharing the expenses with the purchasers equally. The agreements also recite that if for any reason the sale, transaction is not completed within a period of six months, the vendors and the purchasers with mutual consent and agreement can extend time for a further period of three months and for any further period as mutually agreed upon. In the event of the vendors committing default, it was agreed that the purchaser would be at liberty to proceed against them in a Court of law for reliefs available to them including specific performance of the agreement of sale. The agreements also recited that actual physical possession of the property had been handed over to the purchasers.
45. On the basis of these agreements of sale two applications were filed by the Society for regularisation of the alleged alienation or sale under the provisions of Section 5-A of the Act, which were registered as ROR/1795/91 and ROR/1807/91.
46. In the Telangana Area of the State, Andhra Pradesh (Telangana Area) Record of Rights in Land Regulation, 1358 Fasli was in operation providing for the preparations and maintenance of Record of Rights in Telangana Area. No corresponding enactment was applicable in the Andhra Area of the State. In order to bring in parity, A.P. Record of Rights in Land Act, 1971 (Act No. 26 of 1971) was enacted with a view to consolidate and amend the law relating to record of rights in land in the entire State of Andhra Pradesh. The Act applied only to lands used or capable of being used for purposes of agriculture including horticulture and specifically excluding land used exclusively for non-agriculture purpose. Section 3 of the Act castes a duty on the Recording Authority to prepare record of right of all lands in every village and keep it update and maintain the same in such form to be prescribed containing the particulars mentioned therein. Persons affected by an entry so made in the record are entitled to seek rectification of record of right and the Recording Officer is required to take decision on such application for rectification which decision is final subject to the provisions of Section 9 of the Act. Under Section 4 of the Act a duty is cast on the person acquiring land by succession, survivorship, inheritance, partition, mortgage, gift, lease or otherwise any right as owner, pattadar, occupant or tenant to furnish intimation in writing of such acquisition so as to enable the authorities to keep the record of right update. But a person acquiring any right as owner by virtue of registered document was exempted from the obligation to give such intimation to the recording authority. Section 5 lays down the procedure for amendment of record of right saying that on receipt of intimation of the fact of acquisition, recording authority shall determine as to in what manner record of right may be amended. Order passed by the recording authority either making amendment in record of right or refusing to make such amendment was appealable under Sub-section (5) of Section 5 of the Act to the Revenue Divisional Officer.
47. Sub-section (10) of Section 2 of the Act defines "Recording Authority" to mean such Officer of the Revenue Department as may be notified by the Collector or the Commissioner to be the Recording Authority for the purposes of the Act.
48. The Act was first amended by A.P. Act No. 11 of 1980 since it was felt that considerable hardship was being faced by the farmers had to approach Village Officers and other departments from time to time for extract of village records and issue of non-encumbrance certificates. With a view to overcome this hardship, Government accepted the suggestion made by a study team constituted for the purpose to issue passbooks to owners, pattadar, mortgagees, occupant or tenant of land to enable them to secure loans on the basis of entries in the said pass book without requiring them to approach the Village Officers and others every time. The second amendment was made by Act No. 1 of 1989. This Act received the assent of the President of India and come into force with effect from 9.6.1989. The amendments were carried out to further strengthen the machinery under the Act for proper and better maintenance of record of rights and passbooks and to give more authenticity to passbooks. Section 5 was also amended. The title of the Section 5 was amended as "Amendment and updating of Record of Rights" in place of "Amendment of Record of Rights". Section 5 of the Act as it stood prior to the amendment was as follows:
5. Amendment of Record of Rights :--(1) On receipt of intimation of the fact of acquisition of any right referred to in Section 4, the recording authority shall determine as to whether, and if so in what manner, the record of rights may be amended in consequence therefore and shall carryout the amendment in the record of rights in accordance with such determination:
Provided that no order refusing to make an amendment, in accordance with the intimation shall be passed unless the person making such intimation has been given an opportunity of making his representation in that behalf (2) Where the recording authority has reason to believe that an acquisition of any right of a description to which Section 4 applies has taken place and of which an intimation has not been made to him under that section and where he considers that an amendment has to be effected in the record of rights, the recording authority shall carry out the said amendment in the record of rights.
(3) The recording authority shall, before carrying out any amendment in the record of rights under Sub-section (1) or Sub-section (2) issue a notice in writing to all persons whose names are entered in the record of rights and who are interested in or affected by the amendment and to any other persons whom he has reason to believe to be interested therein or affected thereby to show-cause within the period specified therein as to why the amendment should not be carried out. A copy of the amendment and the notice aforesaid shall also be published in such manner as may be prescribed. The recording authority shall consider every objection made in that behalf and after making such enquiry as may be prescribed pass such order in relation thereto as he deems fit.
(4) Every order passed under this Section shall be communicated to the persons concerned.
(5) Against every order of the recording authority either making an amendment in the record of rights or refusing to make such an amendment an appeal shall lie to such authority as may be prescribed, within a period of sixty days from the date of communication of the said order and the decision of the appellate authority thereon shall, subject to the provision of Section 9, be final.
(6) Presumption of correctness of entries in record of rights :--Every entry in the record of rights shall be presumed to be true until the contrary is proved or until it is otherwise amended in accordance with the provisions of this Act.
49. After amendment by A.P. Act No. 1 of 1989 Section 5 of the Act now reads as under:
5. Amendment and updating of Record of Rights :--(1) On receipt of intimation of the fact of acquisition of any right referred to in Section 4, the Mandal Revenue Officer shall determine as to whether, and if so in what manner, the record of rights may be amended in consequence thereof and shall carry out the amendment in the record of rights in accordance with such determination:
Provided that no order refusing to make an amendment, in accordance with the intimation shall be passed unless the person making such intimation has been given an opportunity of making his representation in that behalf.
(2) Where the Mandal Revenue Officer has reason to believe that an acquisition of any right of a description to which Section 4 applies has taken place and of which an intimation has not been made to him under that Section and where he considers that an amendment has to be effected in the record of rights, the Mandal Revenue Officer shall carry out the said amendment in the record of rights.
(3) The recording authority shall, before carrying out any amendment in the record of rights under Sub-section (1) or Sub-section (2) issue a notice in writing to all persons whose names are entered in the record of rights and who are interested in or affected by the amendment and to any other persons whom he has reason to believe to be interested therein or affected thereby to show-cause within the period specified therein as to why the amendment should not be carried out. A copy of the amendment and the notice aforesaid shall also be published in such manner as may be prescribed. The recording authority shall consider every objection made in that behalf and after making such enquiry as may be prescribed pass such order in relation thereto as he deems fit.
(4) Every order passed under this Section shall be communicated to the persons concerned.
(5) Against every order of the recording authority either making an amendment in the record of rights or refusing to make such an amendment an appeal shall lie to the Revenue Divisional Officer or such authority as may be prescribed, within a period of sixty days from the date of communication of the said order and the decision of the appellate authority thereon shall, subject to the provision of Section 9, be final.
(6) The Mandal Revenue, Officer shall have the power to correct clerical errors, if any, in the Pass Books.
50. A new provision was inserted by the amendment Act as Section 5A with a view to regularise certain alienations or other transfers of lands. Both amended and unamended Section 5 and Section 5A reads as under:
5-A. Regularisation of certain alienations or other transfers of lands :--(1) Notwithstanding anything contained in this Act, the Transfer of Property Act, 1882, the Registration Act, 1908 or any other law for the time being in force where a person is an occupant by virtue of an alienation or transfer made or effected otherwise than by registered document, the alienee or the transferee may, within such period as maybe prescribed, apply to the Mandal Revenue Officer for a certificate declaring that such alienation or transfer is valid.
(2) On receipt of such application, the Mandal Revenue Officer shall after making such enquiry as may be prescribed require the alienee or the transferee to deposit in the Office of the Mandal Revenue Officer an amount equal to the registration fees and the stamp duty mat would have been payable had the alienation or transfer been effected by a registered document in accordance with the provisions of the Registration Act, 1908 as fixed by the Registering Officer on a reference made to him by the Mandal Revenue Officer on the basis of the value of the property arrived at in such manner as may be prescribed:
Provided that the Mandal Revenue Officer shall not require the alienee or the transferee to deposit the amount under this sub-section unless he is satisfied that the alienation or transfer is not in contravention of the provisions of the Andhra Pradesh Land Reforms (Ceiling on Agricultural Holdings) Act, 1973, the Urban Land (Ceiling and Regulation) Act, 1976, the Andhra Pradesh Scheduled Areas Land Transfer Regulation, 1959 and the Andhra Pradesh Assigned Lands (Prohibition of Transfers) Act, 1977.
(3) Nothing contained in Sub-section (1) and Sub-section (2) shall be deemed to validate any alienation where such alienation is in contravention of the provisions of the Andhra Pradesh Land Reforms (Ceiling on Agricultural Holdings) Act, 1973, the Urban Land (Ceiling and Regulation) Act, 1976, the Andhra Pradesh Scheduled Areas Land Transfer Regulation, 1959 and the Andhra Pradesh Assigned Lands (Prohibition of Transfers) Act, 1977.
(4) the Mandal Revenue Officer on deposit of an amount specified in Sub-section (2) shall issue a certificate to the alienee or the transferee declaring that the alienation or transfer is valid from the date of issue of certificate and such certificate shall, notwithstanding anything in the Registration Act, 1908 be evidence of such alienation or transfer as against the alienor or transferor or any person claiming interest under him.
(5) The recording authority, shall on the production of the certificate issued under Sub-section (2) make any entry in the passbook to the effect that the person whose name has been recorded as an occupant is the owner of the property.
51. A bare reading of the aforementioned provision makes it clear that Section 5-A has been enacted with a view to regularize certain alienations or other transfers of land, which otherwise are not complete by registered instruments. The pre-requisites being that where a person is an occupant by virtue of an alienation or transfer made, or effected otherwise by registered document, he may apply within the prescribed period to the Mandal Revenue Officer for a certificate declaring such alienation or transfer as valid. On receipt of the application, the Mandal Revenue Officer is required to make such enquiry as may be prescribed requiring the alienee or the transferee to deposit in the Office of the Mandal Revenue Officer an amount equal to the registration fees and the stamp duty that would have been payable had the alienation or transfer been effected by a registered document in accordance with the provisions of the Registration Act, 1908. Such fee and stamp duty is required to be fixed by the Registering Officer on a reference made to him by the Mandal Revenue Officer on the basis of the value of the property arrived at in such manner as may be prescribed. There is an embargo placed on the Mandal Revenue Officer that he shall not require the alienee or the transferee to deposit the amount unless he is satisfied that the alienation or transfer is not in contravention of the provisions of the Andhra Pradesh Land Reforms (Ceiling on Agricultural Holdings) Act, 1973, the Urban Land (Ceiling and Regulation) Act, 1976, the Andhra Pradesh Scheduled Areas Land Transfer Regulation, 1959 and the Andhra Pradesh Assigned Lands (Prohibition of Transfers) Act, 1977.
52. On deposit of the amount by the alienee or transferee, the Mandal Revenue Officer is authorised to issue a certificate declaring that the alienation or the transfer is valid from the date of issue of certificate. Section 5-A further stipulated that such certificate notwithstanding anything contained in the Registration Act, 1908 shall be evidence of such alienation or transfer as against the alienor or transferor or any person claiming interest under him. A duty is also cast on the Recording Officer that on production of the certificate he shall make an entry in the passbook to the effect that the person whose name has been recorded as an occupant is the owner of the property.
53. Rule 22 of the Rules prescribes the manner of receipt of the applications and the procedure to be followed by the Mandal Revenue Officer in dealing with such applications. Sub-rule (2) says that an application shall be filed in Form X, which shall be filed on or before 31st October, 1998 provided the alienation or transfer has taken place before 31st July, 1989. On receipt of such an application, the Mandal Revenue Officer is required to issue notice to the alienor or transferor in Form No. XI specifying therein the date and the time at which he proposes to enquire into the application. He is also bound to issue notice in Form No. XII to all other persons believed to be interested in the land specifying therein, the date, the time and the place at which he proposes to enquire into the application. Sub-rule (3) makes it clear that only unregistered documents shall be considered under Section 5-A of the Act. Sub-rule (4) says that on the date so appointed by the Mandal Revenue Officer, he shall after hearing the parties and on examining their documents and witnesses, if any, and after taking such further evidence as he may consider necessary to satisfy himself that the alienation or transfer is not in contravention of any of the provisions of the Acts referred to in Rule 9(i)(a)(iv) complete the enquiry and thereafter he shall require the alienee or the transferee to deposit the amount through challan. After certificate had been issued, the recording authority on production of the certificate shall make an entry in the Record of Rights in Forms 1 and 1B. Sub-rule (7) of Rule 22 says that thereafter title deed and passbook shall be issued to the occupant in the category of owner-pattadar.
54. The question whether agreement of sale can be treated as alienation or transfer within the scope and meaning of Section 5-A of the Act will have to be decided keeping in view the purpose with which this provision was inserted in the main Act enabling the Mandal Revenue Officer to pass appropriate orders for regularization of alienations or other transfers of land not effected by registered documents in accordance with the provisions of the Registration Act, 1908. The Society filed applications seeking regularisation of agreements of sale, treating it to be as transfer of the land by the vendors. On the face of it, the two documents are nothing but agreements of sale by which the vendors had agreed to transfer and convey their land to the Society. The same cannot be termed as contract of sale but only agreements by which vendors had agreed to transfer and convey their title in favour of the Society on fulfilment of certain conditions; therefore, the same cannot be termed as a complete act of sale. The word "transfer" has not been defined under the Act. Therefore, the question before us is as to the meaning to be given to the word "transfer" - whether it is a dictionary meaning or meaning as is ordinarily understood in the general sense of the term as defined in the law governing transfers of immovable properties i.e., Transfer of Property Act. Once the Legislature in its wisdom has neither defined the word "transfer" in any of the definitions of the Act nor has clarified it, we are of the view that in such a situation one must look into the primary object of the provision, which in this case is only regularisation of the transfer of the land. There was already a provision in the Act as regards transfers effected by registered documents and to give effect to such transfers. Transfers, not evidenced by any registered document, would not confer any right, title or interest on the transferee even as per Section 54 of the Transfer of Property Act read with Section 17 of the Registration Act. The sole purpose of regularisation of such transfers, effected otherwise than by registered document is to keep the record of right update. Only on the Mandal Revenue Officer satisfying that the transfer or alienation has been effected by an unregistered document he has authority to call upon the transferee to pay the requisite registration and stamp duty after further ensuring that such transfer or alienation is not in contravention of any provisions of law, he is obliged to issue necessary certificate to the alienee or transferee. Such certificate notwithstanding anything contained in Registration Act, 1908 has the effect of "transfer" as evidence of such alienation or transfer as against the alienor or transferor or any person claiming interest under him.
55. In the light of this salutary object contained in the Act, the word 'transfer" obviously is to be construed to mean transfer as is understood in general sense of the term as defined in Transfer of Property Act which is the statute that governs all transfers of movable or immovable properties. The word "transfer" has been defined under Section 5 of the Transfer of Property Act with reference to the word "convey". Section 5 of the Transfer of Property Act reads thus:
Section 5: Transfer of property defined :--In the following Sections "transfer of property" means an act by which a living person conveys property, in present or in future, to one or more other living persons, or to himself and one or more other living persons; and "to transfer property" is to perform such act.
56. The word, "transfer" thus being a term of well-known legal significance having well ascertained incidents, the Legislature did not think it necessary to define the term "transfer" separately in the Act. Supreme Court in Sonia Bhatia v. State of U.P., , also interpreted the term "transfer" in general sense as defined in Transfer of Property Act, when provisions of U.P. Imposition of Ceiling on Land Holdings Act were considered where the expression "transfer" was not defined under the said Act. The Apex Court held that whenever the Legislature uses certain terms or expressions of well-known legal significance or connotation the Courts must interpret them as used or understood in the popular sense. The Legislature while enacting the U.P. Imposition of Ceiling on Land Holdings Act was alive to the provisions of the Transfer of Property Act dealing with the transfer of immovable property. The terms 'transfer', 'sale, 'mortgage' and 'lease' have not been defined in the said Act. Therefore, these terms must have been used only in the sense in which they have been used in the Transfer of Property Act. If the Legislature intended to use those terms in a different sense and with a different connotation, it would have defined those terms in the Act. But that has not been done.
57. Even a contract of sale in view of Section 54 of Transfer of Property Act does not by itself create any interest in or charge on the property. It is only on registration of such completed contract under the provisions of the Registration Act that title passes in the property. In Narandas Karsondas v. S.M. Kamtam, , Supreme Court following the ratio in Rambaran Prosad v. Ram Mohit Hazra, , held that the word "conveys" in Section 5 of the Transfer of Property Act is used in the wider sense of conveying ownership and that agreement of sale or contract of sale in view of Section 54 of Transfer of Property Act does not by itself create any interest in or charge on the property. It was further held that in India there is no distinction between legal and equitable property in the sense in which it was understood when equity was administered by the Court of Chancery in England and Under the Indian law, there can be but one owner that is, the legal owner.
58. A Full Bench of this Court in K. Venkateswarlu v. K. Peda Venkaiah (supra) while examining the provisions of A.P. Vacant Lands in Urban Areas (Prohibition of Alienation) Act, 1972 held that Section 4 of the said Act prohibited transfer of interest in a vacant land and in that context, it was held that an agreement for sale does not create any title in the immoveable property as by reason of an agreement of sale no interest in an immoveable property is created and in such a case question of transfer of any interest would not arise.
59. A Division Bench of this Court in K. Seetharama Reddy and Anr. v. Hassan Ali Khan, , held that an agreement of sale simpliciter is not enough for regularisation of the document under Section 5-A of the Act. It was further held that only those transactions where formalities of registration remains to be completed can be regularised under Section 5-A.
60. In the instant case, learned Counsel for the petitioners submitted that the agreements of sale executed by the vendors recite delivery of possession to them and such delivery of possession in favour of the vendees amounts to transfer within the meaning of Section 5-A of the Act and subsequent to entering into the agreement of sale and before filing of the applications, the vendees had paid full consideration to the vendors and this fact was admitted by holder of General Power of Attorney who raised no objection before the Mandal Revenue Officer. As such, it was contended that the transaction being a transfer it was within the competence of the Mandal Revenue Officer to have proceeded to pass an order in the matter.
61. The Society had sought issuance of a certificate in their favour by filing applications under Section 5-A of the Act on the ground that having executed the agreements, the vendors had transferred the property in its favour and it was on the basis of such document, the society had sought issuance of certificate in its favour. We have already noticed the terms of the agreement of sale, which in turn are relied upon by the learned Counsel for the Society as document of transfer. The documents specifically stipulated in Clause (2) thereof that the transaction of sale covered by the agreement of sale has to be completed within a period of six months from the date of agreement to sell. Clause (3) stipulated for payment of the balance sale consideration in three instalments. The last instalment was payable at the time of registration of the sale deed. Certain obligations were to be performed by the vendors i.e., obtaining of Patta Certificate etc., requisite permissions from the concerned authorities for completing the sale transaction covered by the agreements and it further stipulated that if for any reason the sale transaction is not competed within the time, the time for cancellation of sale can be extended with the mutual consent by a further period of three months and in case the vendors would commit any default the society would be at liberty to proceed in a Court of law for the reliefs available to it including specific performance of agreement of sale. Such a document by no stretch of imagination can be termed as a complete contract of sale but has to be termed and treated only as an agreement to sell.
62. Agreement to sell does not convey any right, title or interest in the property. Supreme Court in K. Seetharama Reddy and Anr. v. Hassan Ali Khan, , examined the effect of execution of an agreement of sale. It was argued before the Supreme Court that in India also like England on execution of agreement of sale equitable interest in the property is created. Repelling this argument, it was held that the English doctrine of conversion of realty into personality cannot be bodily lifted from its native English soil and transplanted in statute-bound India law. But, we have to notice that many of the principles of English Equity have taken statutory form in India and have been incorporated in occasional provisions of various Indian statutes such as the Indian Trusts Act, the Specific Relief Act, Transfer of Property Act etc. and where a question of interpretation of such Equity based statutory provisions arises we will be well justified in seeking aid from the Equity source. The concept and creation of duality of ownership, legal and equitable, on the execution of an agreement to convey immoveable property, as understood in England is alien to Indian Law, which recognises one owner i.e. the legal owner. Relying upon the decisions in Rambaran Prosad's case (supra) and Narandas Karsondas case (supra) and, referring to Section 54 of Transfer of Property Act, Apex Court held that ultimate paragraph of Section 54 of the Transfer of Property Act enunciates that a contract of the sale of immovable property does not, of itself, create any interest in or charge on such property. The ultimate and penultimate paragraphs of Section 40 of the Transfer of Property Act create an obligation, annexed to the ownership of immovable property, not amounting an interest in the property. Thus, the only right a person acquires by execution of agreement is not an interest in the property but a right to seek enforcement of the agreement by resorting to provisions of the Specific Relief Act and filing a suit to enforce the agreement of sale.
63. Thus on the basis of the two documents, the only right which the Society got was a right to seek specific performance of agreements to sell and not any right, title or interest in the land.
Assuming a suit was also filed and decree of specific performance was obtained, such a decree for specific performance of contract will not have the effect of conveying right, title and interest in favour of the Society till a deed of sale is duly executed and registered. In Babu Lal v. Hazari Lal Kishori Lal, , the Supreme Court held that neither a contract for sale nor a decree passed on that basis for specific performance of the contract gives any right or title to the decree-holder. The right and the title passes to the decree-holder only on the execution of the deed of sale either by the judgment-debtor himself or by the Court in case the judgment-debtor fails to execute the sale deed.
64. Even in those cases where pursuant to agreement of sale the transferee takes possession of the land in part performance of the agreement of sale as is the case of petitioner society, such an act also does not confer any title in the land in favour of the transferee. We need not make reference to numerous decisions of the Apex Court in respect of this settled position except by making reference to the decision in Patel Natwarlal Rupji v. Kondh Group Kheti Vishayak, . It was held:
Though the doctrine of part performance embodied in Section 53-A of the Act is part of equitable doctrine in English Law, Section 53-A gives statutory right which is available to the transferee for consideration in possession of the property under the contract. In terms of the Section, so long as the transferee has done and is willing to perform his part of the contract or, in other words, is always ready to abide by the terms of the contract and has performed or is always ready willing to perform his part of the contract, the transferee is entitled to avail of this statutory right to protect his possession as a shield but not as a sword. The right to retain possession of the property rests on the express provisions of the Act and on his compliance thereof. Section 53-A confers no title on the transferee but imposes a statutory bar on the transferor to seek possession of the immovable property from the transferee. Equally, Section 53-A does not confer any title on the defendant in possession or can he maintain a suit on title. The benefit of Section 53-A can be availed of as a shield to retain possession.
65. The statement of objects and reasons of Act 1 of 1989 also clearly stipulated the purpose of introducing Section 5-A of the Act, namely, to regularise certain unregistered alienations or other transfers of land so as to enable the persons having acquired, right, title or interest in the land to obtain loans on such land. Obviously loan on land can be obtained by a person in case title had passed in the property in his favour. Even Form XIII(A) referred to in Rule 22(5)(i) of the Rules, which ultimately is required to be issued by the Mandal Revenue Officer to the concerned Sub-Registrar to fix up the value of the property and stamp duty payable, would show the nature of the transaction. The form reads as under:
Whereas ..... who has applied for validation of sale/alienation under Section 5-A of the Act, the enquiry conducted the rules prescribed reveals that Sri. . .is found to be the purchaser of the land by an unregistered document in respect of the lands specified in the Schedule below for the lands belonging to Sri .... under Sub-section (2) of Section 5-A of the A.P. Rights in Land and Pattadar Pass Books Act, 1971, the said alienee/ transferee is required to deposit the registration fee and stamp duty amounts in accordance with the provisions of the Indian Registration Act, 1980.
The Sub-Registrar is therefore requested to fix up the value of the property and fix up the amount equal to registration fee and stampduty under the law with reference to the date of the unregistered alienation and intimate to the undersigned within month to enable him to get the amount deposited by the alienee/transferee and issue Validation Certificate under Section 5-A of the Act and Rule 22(5)(ii).
66. The intent and purport of the Act is very much clear that what was sought to be validated was only a completed contract of sale, which for want of registration, in view of the provisions of the Registration Act had not the effect, of conveying rights, title or interest in favour of the purchaser. The learned Single Judge proceeded to hold that the transfer or alienation made by agreement of sale can be regularised by placing reliance upon few decisions of the Supreme Court and of the High Courts for which we need not go into the details since the very approach of the learned Judge to the answer is erroneous. Such decisions could not have been made the basis in holding so. Instead of taking the definition of word "transfer" as contained in the Transfer of Property Act, the learned Single Judge proceeded to make use of the dictionary meaning of the word "transfer" and placed reliance upon the decision of the Supreme Court in Pandey v. Ramchandra, . The Supreme Court in that case, proceeded to interpret the word 'transfer" as contained in Section 71-A of Chotanagpur Tenancy Act. In the absence of definition of the word 'transfer" under the provisions of the said Act, the Supreme Court held that considering the objects and reasons of Chotanagpur Tenancy Act more particularly Section 71-A of the said Act it was not proper to confine the meaning of the term "transfer" under the Transfer of Property Act or a statutory transfer, The Supreme Court proceeded to hold that even passing of possession from one person to the other as per scheme of the Act would amount to transfer. In our view, the ratio of the said decision could not have been made applicable while interpreting the word "transfer" as contained in Section 5-A of the Act, the scheme of which is different as noticed by us. The learned Single Judge also relied upon the decisions of the Apex Court in Commissioner of Income Tax v. T.N. Aravinda Reddy, , Commissioner of Indicome Tax v. Podar Cement Private Limited, , and Balraj v. Commissioner of Income Tax, , wherein in a different context the words "owner" and "transfer" were construed.
67. In the instant case, we are concerned with the purport and meaning of the word "transfer" as contained in Section 5-A of the Act in the light of the objects and reasons in introducing the said provision, namely, to regularise an unregistered sale transaction, which would not mean to regularise incomplete transfers. There is no machinery or mechanism provided in the Act that even a person who has entered into an agreement of sale and in case sale is not completed but he has been put into possession of the property even on payment of entire sale consideration that can approach the Mandal Revenue Officer for grant of a certificate under Section 5-A of the Act. The Mandal Revenue Officer in such a case cannot proceed to hold an enquiry as to whether agreement of sale has been complied with or not. On the failure on the part of vendor to complete the sale transaction, a person in whose favour there is an agreement of sale can seek specific performance of the agreement of sale so as to convey right, title or interest of the vendors. The machinery provided under the Act is not the appropriate machinery for perfecting title merely on the basis of agreement to sell. We are, therefore, of the view that the finding of the learned Judge that there is a valid transfer of immoveable property under agreements of sale cannot be sustained. Thus, we have no hesitation in holding that the agreement of sale relied upon by the Society is not covered by the term transfer and cannot be treated as an "alienation" or "transfer" within the scope and meaning of Section 5-A of the Act and we answer the first question accordingly.
Question No. 2:
68. On the date when Mandal Revenue Officer passed the order and granted validation certificates under Section 5-A of the Act, Section 9 of the Act as it then stood provided for exercise of power of revision by the Collector either suo motu or on an application made to him as regards any record of right prepared or maintained under Section 3 or any order passed or proceedings taken by any Recording Authority or an appellate authority. There is controversy between the parties as regards the scope and interpretation of Section 9 as it stood then and as it stands now. Prior to amendments in the Act, every order of the Recording Authority making an amendment in record of right or refusing to make such amendment was appealable under Sub-section (5) of Section 5 of the Act and the decision of the appellate authority thereon, subject to provisions of Section 9, was final. Sub-section (3) of Section 3 of the Act also says that an order passed by the Recording Authority directing rectification of the record of rights shall be final subject to the provisions of Section 9 of the Act. Section 9 as it stood then had conferred revisional jurisdiction on the Collector either suo motu or on an application made to him to call for and examine the records in order to satisfy himself as to the regularity of the record of right prepared or maintained under Section 3 or the legality or propriety of any order or proceedings taken by the Recording Authority or the appellate authority and in case the Collector was satisfied that such record or proceedings deserved to be amended, modified, annulled, reversed, he was empowered to exercise revisional jurisdiction to modify, annul reverse or remit for reconsideration and to pass any order accordingly.
69. The Act was amended by Act.No. 1 of 1989. Section 5-A was inserted providing for regularisation of certain alienations or other transfer of lands by making application before the Mandal Revenue Officer, who alone was empowered to pass orders and to issue certificate so as to enable the Recording Authority to make entry in the passbook on the basis of the certificate issued in favour of the occupant as owner of the property. When Section 5-A was inserted, there was no corresponding amendment made in the Act as regards the provision for filing appeal and to exercise revisional powers by the Collector against such orders of the Mandal Revenue Officer. Section 9 continued to remain in unamended, form. However, Section 5-B was inserted by A.P. Act No.9 of 1994 conferring appellate power on the Revenue Divisional Officer against the orders passed by the Mandal Revenue Officer under Section 5-A of the Act. Simultaneously, Section 9 as it stood then was also substituted by Act 9 of 1994 as it stands now in the present form specifically enabling the Collector to exercise revisional powers against the orders passed by the Recording Officer, Mandal Rvenue Officer or Revenue Divisional Officer under Sections 3, 5, 5-A and 5-B of the Act
70. Section 9 of the Act as it existed on 18.12.1991 reads as follows:
9. Revision:--The Collector may either suo motu or on an application made to him, call for and examine any record of rights prepared or maintained under Section 3 or any order passed or proceedings taken by any recording authority or an appellate authority, to satisfy himself as to the regularity of such record, order or proceeding or the correctness, legality or propriety of any decision passed or order made therein and if any case it appears to the Collector that any such record, order or proceeding should be amended, modified, annulled, reversed or remitted for reconsideration, he may pass orders accordingly:
Provided that no order adversely affecting any party shall be passed under this section unless he has been given an opportunity of making his representation.
71. By A.P. Amendment Act No.9 of 1994, Section 9 stood amended and the amended provision reads as follows:
9. Revision:--The Collector may either suo motu or on an application made to him, call for and examine the record of any Recording Authority, Mandal Revenue Officer or Revenue Divisional Officer under Sections 3, 5, 5-A or 5-B, in respect of any record of rights prepared or maintained to satisfy himself as to the regularity, correctness, legality or propriety of any decision taken, order passed or proceedings made in respect thereof and if it appears to the Collector that any such decision, order or proceedings should be modified, annulled, reversed or remitted for reconsideration, he may pass orders accordingly:
Provided that no such order adversely affecting any person shall be passed under this Section unless he had an opportunity of making a representation.
72. Only by way of Amendment Act 9 of 1994, Section 9 as originally enacted stood substituted. By this amended provision, the Collector was specifically conferred revisional power as regards the decision taken or order passed under Sections 3, 4, 5-A or 5-B by any Recording Authority, Mandal Revenue Officer or Revenue Divisional Officer in respect of any records prepared or maintained.
73. The case of the writ petitioners is that the power of revision could not have been exercised by the Joint Collector as against the order passed by the Mandal Revenue Officer on 18.12.1991 because on the date when the Mandal Revenue Officer passed the order Section 9 was not amended. Revisional power came to be conferred on the Collector against the orders of Mandal Revenue Officer for the first time only when Section 9 as originally stood was substituted by the present Section 9 with effect from 31.10.1993. On the other hand, on behalf of the appellants it was urged that revisional power existed with the Collector even under the unamended Section. Amendment in Section 9 by the A.P. Amendment Act No. 9 of 1994 being only clarificatory in nature specifically made it clear that the Joint Collector can exercise the power of revision even with respect to orders passed by the Mandal Revenue Officer prior to the amendment. In any case amendment being clarificatory in nature has also retrospective operation.
74. Section 9 as originally stood enabled and authorised the Collector to call for and examine any record of right prepared or maintained under Section 3 or any order passed or proceedings taken by any recording authority with a view to satisfy himself about the legality, correctness or propriety of any decision and thereby exercise revisional powers. Assuming that there was no such power specifically available to the Collector as against the order passed by the Mandal Revenue Officer under Section 5-A, since Section 9 on that day was in unamended form, what necessarily deserves to be seen is that, could he or could he not as on that date call for and examine any record of right prepared or maintained under Section 3 of the Act. Necessarily the result of order of the Mandal Revenue Officer passed under Section 5-A of the Act would culminate in a certificate to be issued by the Mandal Revenue Officer on the basis of which the recording authority was obliged to carry out necessary rectification in the passbook. This being a record of right as defined under Sub-section (9) of Section 2 of the Act, obviously, enabled the Collector to call for such record of right prepared and maintained under the provisions of the Act in order to satisfy himself about the legality of such record and in case it appeared to him that such record should be amended, modified, annulled or reversed, he was fully empowered even under the unamended Section 9 of the Act to exercise such powers either suo motu or on an application made to him even if there was no power specifically conferred on him to examine the legality or propriety of the order passed by the Mandal Revenue Officer. Obviously, the Recording Officer is an Officer other than the Mandal Revenue Officer. The effect of the order passed by the Mandal Revenue Officer and issuance of certificate by him would result in amendment/rectification of the record of right. The Collector under Section 9 of the Act in unamended form had unlimited revisional power enabling and empowering him to call for and examine "any record of right" prepared or maintained under the Act. It would also include any such order or proceedings having the effect of amending or altering the record of right and in our considered opinion, the Collector, undoubtedly, could pass any order which would result in amending, modifying or annulling such record of right in case he was of the view that there has been irregularity in amending such record of right.
75. We are not inclined to go into the other question of retrospectivity of the provisions, since, in our view; Section 9 was amended only when specific appellate powers were conferred on the Revenue Divisional Officer for the first time when Section 5-B was inserted by Amendment Act 9 of 1994. Prior thereto, the order passed by the Mandal Revenue Officer under Section 5-A was not made appealable and rightly a Division Bench of this Court in M.B. Ratnam 's case came to the conclusion that no appeal lay against the order of the Mandal Revenue Officer passed prior to Act No.9 of 1994 coming into force.
76. The revisional power conferred on the Collector under the unamended Section 9 of the Act to call for and examine any record of rights prepared or maintained under Section 3 or any order passed or proceedings taken by any recording authority or an appellate authority, in our opinion, is exhaustive and inherent inclusive of any proceedings taken under Section 5-A of the Act. To say that such revisional power by the Collector could not be exercised by him against such an order as was passed by the Mandal Revenue Officer would be contrary to the intent and object with which the powers were conferred on the Collector under unamended Section 9. It was obligatory on the part of the Collector if he was of the view that grave irregularity or illegality had crept in the record of rights requiring amendment, modification etc., to exercise powers of revision. The fact that the order passed by the Mandal Revenue Officer under Section 5-A was not made appealable prior to Section 5-B was inserted by Act 9 of 1994 cannot be taken to mean that the revisional powers conferred on the Collector under the unamended Section 9 of the Act were not available to rectify the record of right. Because of the insertion of Section 5-B by the Amendment Act specific appellate power was conferred against the orders passed by the Mandal Revenue Officer on the Revenue Divisional Officer, therefore, it appears that in order to be more specific and precise Section 9 was brought in the present form with the sole view to clarity the powers of revision exercisable by the Collector even against the orders passed under Section 5-A of the Act by the Mandal Revenue Officer.
77. In view of the above legal position, the learned Single Judge was not justified in holding that the Joint Collector could not have exercised revisional powers against the order passed which had the effect of amending, modifying or annulling the record of right or that the Collector could not have exercised revisional power after considerable time. Orders, which are without jurisdiction or are nullity, can always be interfered with in exercise of general revisional powers. Revisional power is wider enough and is meant to be exercised to set right glaring illegalities or orders passed in violation of the provisions of the Act or misuse or abuse of power by me lower authorities or to prevent miscarriage of justice. The basis for learned Single Judge holding that power should not have been exercised after the order passed by the Mandal Revenue Officer had become final was not apt for the purpose of the present case since the order passed by the Mandal Revenue Officer was not only a nullity but even without jurisdiction. There is no question of such an order becoming final. As already held, even under the unamended Section 9 of the Act, the Joint Collector could exercise revisional jurisdiction which enabled him to call for and examine any record of rights prepared or maintained under Section 3 or any order passed or proceedings taken by any recording authority or an appellate authority to satisfy himself as to the regularity of such record, or order or proceeding or the correctness, legality or propriety of any decision taken or order made therein and had powers to pass orders amending, modifying, annulling, reversing or remitting the matter for reconsideration. Question No. 2 is answered accordingly.
78. As many as five vendors were dead on the date when the applications were filed by the Society and when order was passed by the Mandal Revenue Officer. Rule 22 of the Rules required the Mandal Revenue Officer to issue notice to the alienor or transferor in Form XI specifying therein the date on which and the time on which he proposes to enquire into the application. No such notice was issued to the vendors. Notice was stated to have been published for information of the general public. It was a different notice in Form No. XII, which is required to be issued for the information of the General Public. Separate notice in Form XI was required to be issued to the vendors. Failure to issue such notice for which a finding of fact has been recorded by the Joint Collector also vitiates the order passed by the Mandal Revenue Officer being in violation of the principles of natural justice. The order was passed against those who were dead on that day and was passed by the Mandal Revenue Officer having no jurisdiction in the matter. Such an order is without jurisdiction and is a nullity. It is a fundamental principle of law that a defect of jurisdiction, whether it is pecuniary, territorial or in respect of subject-matter, strikes at the very authority of the Court to pass any decree or order and such a defect cannot be cured even by consent of parties. A decree or order passed by a Court or authority without jurisdiction is a nullity and its invalidity could be set up whenever and wherever it is sought to be enforced or relied upon, even at the stage of execution and even in collateral proceedings. Reference in this regard be made to the decision of the Supreme Court in Kiran Singh v. Chaman Paswan. The Joint Collector was thus justified in having set aside the said order of the Mandal Revenue Officer and with such order of the Joint Collector no interference was called for by this Court in exercise of its writ jurisdiction. The setting aside of the order of the Joint Collector has resulted in springing into action an order of Mandal Revenue Officer, which is nullity, without jurisdiction and is in violation of principles of natural justice and thus cannot be sustained.
79. In result, the appeals are allowed. The order of the learned Single Judge is set aside. The writ petition of the Society is dismissed. There shall be no order as to costs.