Andhra HC (Pre-Telangana)
Kalavakuri Mallikarjuna Rao & Others vs The Government Of Andhra Pradesh Rep. By ... on 31 October, 2012
Author: L.Narasimha Reddy
Bench: L.Narasimha Reddy
THE HON'BLE SRI JUSTICE L.NARASIMHA REDDY Writ Petition Nos.884 of 2011; 4593 of 2012 31-10-2012 Kalavakuri Mallikarjuna Rao & others The Government of Andhra Pradesh Rep. by its Principal Secretary-Revenue, Secretariat, Hyderabad & others Counsel for the petitioners: Sri N. Ravi Prasad Counsel for respondents : G.P. for Revenue <Gist: >Head Note: Citations: COMMON ORDER:
For the sake of convenience the parties herein are referred to, as arrayed in W.P.No.4593 of 2012.
The 1st petitioner alone filed W.P.No.884 of 2011, with a prayer to declare the action of the Tahsildar, Kandukur, the 3rd respondent, in interfering with his possession and enjoyment of Ac.1.12 cents of land in Sy.No.91/IC of Kandukur Village and Mandal, Prakasam District, without initiating any proceedings as illegal, arbitrary and unconstitutional. He pleaded that the land was owned by one, Sri Dama Kondaiah (3rd petitioner), and the latter executed a gift settlement deed dated 23-08-2008, settling Ac.1.12 cents of land in Sy.No.91/IC of Kandukur, and another extent of 50 cents in Sy.No.83/5 of the same Village in favour of his daughter by name, Kondamuri Radha (2nd petitioner). She, in turn, is said to have sold the land of Ac.1.12 cents to the 1st petitioner through sale deed dated 27-01-2010.
The 1st petitioner came to know that the 3rd respondent submitted a complaint before the Station House Officer, Kandukur, stating that the 3rd petitioner initially sold the land in favour of Indrapal Singh Chandok, Haripreeth Singh Chandok and Jaspal Kaur Chandok, respondents 4 to 6 herein, in the year 1995, through registered sale deed, and despite the same, the 3rd petitioner executed gift deed in favour of his daughter, the 2nd petitioner, and thereafter the land was sold in favour of the 1st petitioner, and that these acts constitute an offence punishable under Section 420 I.P.C. It is stated that the Sub-Inspector of Police, Kandukur Police Station submitted a final report, observing that the land is patta in nature, the Government has no claim whatever in it, and that the dispute between various parties, is civil in nature. Stating that there was no basis or justification for the 3rd respondent to interfere with the possession of the land, the 1st petitioner filed W.P.No.884 of 2011, with the relief mentioned above.
In the counter-affidavit filed in W.P.No.884 of 2011, by the 3rd respondent, it was stated that the entries made in favour of the 2nd petitioner as well as pattadar pass books and title deeds issued in their favour were cancelled by the Joint Collector, Ongole, the 2nd respondent, through order dated 23-01-2012, and in that view of the matter, the 1st petitioner does not have any right over it. Since the petitioners came to know about the proceedings dated 23-01-2012 passed by the 2nd respondent, they filed W.P.No.4593 of 2012, with a prayer to quash the same as untenable and contrary to the provisions of A.P. Rights in Land and Pattadar Pass Books Act, 1971 (for short 'the Act'). They have also prayed for the consequential reliefs.
The petitioners submit that the respondents 4 to 6 approached the 3rd petitioner and his relatives in the year 1995, to purchase the land to establish a milk chilling unit at Kandukur, and to enable them to submit application, a sale deed was executed on 11-10-1995, in respect of the land in Sy.No.91/1C, admeasuring Ac.1.12 cents. It is stated that the sale deed was nominal, and the respondents 4 to 6 did not turn up, even for more than 1 1/2 decades, so much so, they did not even take the original sale deed. The Office of Sub-Registrar, Kandukur is said to have destroyed the sale deed in accordance with the relevant Rules. According to the petitioners, the title in respect of the land remained with the 3rd petitioner, and he exercised the right of ownership by donating the same to his daughter, the 2nd petitioner, through gift settlement deed dated 23-08-2008.
The petitioners further submit that if at all anybody felt aggrieved by the issuance of pattadar pass books and title deeds in favour of the 2nd petitioner, based upon the gift settlement deed, he or they ought to have filed an appeal under Section 5(5) of the Act, and that the 3rd respondent acted in a malicious, capricious and arbitrary manner in submitting proposals for cancellation of pattadar pass books and title deeds. They submit that the 2nd respondent has acted in a highhanded, unlawful and unjust manner in entertaining a suo motu revision and cancelling the pattadar pass books and title deeds. According to them, the very entertaining of idea by the respondents 2 and 3, that the land can be treated as escheat, is indicative of their capricious and highhanded manner, in which they acted in the whole episode.
Separate counter-affidavits are filed by the respondents 2, 3, and 4 to 6. The 3rd respondent states that when the 1st petitioner submitted an application for issuance of pattadar pass books and title deeds on the basis of purchase made by him, it was noticed that the very issuance of pattadar pass books and title deeds in favour of the 2nd petitioner was untenable, since a sale deed was already executed by the 3rd petitioner, in favour of respondents 4 to 6. He submits that the acts and omissions on the part of the petitioners 1 to 3 constitute criminal offence, and in that view of the matter, he has submitted a report to the 2nd respondent for cancellation of pattadar pass books and title deeds and a complaint to the Police Station for prosecution.
The 2nd respondent submits that the action of the Sub-Registrar, Kandukur, in admitting the gift settlement deed, executed by the 3rd respondent in favour of the 2nd respondent to registration is contrary to law, and that the Sub-Registrar committed an act of illegality. He contends that, with the execution of sale deed in the year 1995, the 3rd petitioner lost his title, vis--vis the land and ceased to have any right or basis for executing the gift deed, in respect of the same property, in favour of his daughter, the 2nd petitioner.
At one stage, this Court found that the stand taken by the 2nd respondent was totally untenable, particularly as regards the observation in the impugned order that the disciplinary proceedings be initiated against the Sub-Registrar, Kandukur.
He was required to explain as to why necessary comments be not made as to his functioning. By filing another affidavit, the 2nd respondent has made a serious attempt, to justify his recommendation for initiating disciplinary proceedings against the Sub-Registrar. He places heavy reliance on Section 81 of the Registration Act.
In their counter-affidavit, the respondents 4 to 6 submit that with the purchase of land by them, in the year 1995, they have acquired title, and all the transactions among the petitioners subsequent to 1995 are contrary to law. They contend that though the title vested in them, the 2nd petitioner obtained pattdar pass books and title deeds in respect of the land, and that they have initiated steps for cancellation of pattadar pass books and title deeds.
Claiming to be in exercise of powers vested in them, under the relevant provisions of the Act, while the 3rd respondent submitted a report to the 2nd respondent with a request to cancel the pattadar pass books and title deeds issued to the 2nd petitioner, the latter passed the impugned order. Since the Act and the Rules made therein deal with making of entries in the revenue records, consequent upon the change of title or acquisition of rights, quite large number of proceedings ensue, at the level of the recording authority i.e. the 3rd respondent, as and when transfer, succession, partition, etc., take place, in relation to the lands, within the Mandal. In many cases, the dissatisfied or aggrieved parties prefer appeals under Section 5(5) of the Act, and in some cases, further remedies of revision, under Section 9 of the Act, are also availed.
It is no doubt true that the 3rd petitioner and certain others executed a sale deed in favour of respondents 4 to 6, on 11-10-1995, in respect of the land referred to above. However, according to the petitioners 2 and 3, the sale was nominal, and the respondents 4 to 6 wanted a formal sale deed, to be executed in their favour, so that they can enclose it to the application, for permission to establish a milk chilling centre. According to them, the project did not materialize and the respondents 4 to 6 not only dropped the idea, but also did not even collect the registered documents. Though the sale took place in the year 1995, the entries in the revenue records, in respect of the land remained unaltered. The 3rd petitioner executed a gift settlement deed, in favour of his daughter, the 2nd petitioner on 23-08-2008, in respect of that land. On an application submitted by the 2nd petitioner, the 3rd respondent issued pattadar pass books and title deeds, to her. Thereafter, she sold that land in favour of the 1st petitioner, through sale deed dated 27-01-2010.
The persons, who could have felt aggrieved by the execution of the gift settlement deed, by the 3rd petitioner, in favour of the 2nd petitioner, and a sale deed, by the latter, in favour of the 1st petitioner, can be respondents 4 to 6. In case they came to know about the making of entries in the revenue records in favour of the 2nd petitioner, they could have filed an appeal under Section 5(5) of the Act, before the Revenue Divisional Officer, or in a given case, a revision under Section 9 of the Act, before the 2nd respondent. Nothing of that sort has taken place.
The episode started with the visit made by the 3rd respondent to the land, on the basis that it vested in the State, as escheat, and that petitioners do not have any right over it. Proceeding on this basis, he not only submitted a report dated 29-03-2011 to the 2nd respondent with a request to cancel the pattadar pass books and title deeds issued to the 2nd petitioner and entries made in his favour, but also a complaint, to the Station House Officer, Kandukur, alleging that the petitioners have committed fraud. The basis on which the 3rd respondent treated the land as escheat, is stated in his report, as under:
"...Since whereabouts of the pattadars/rightful owners who purchased the land Ac.1.12 cents in S.No.90/IC of Kandukur in the year 1995 is not known, I have perused to take action under the A.P. Escheats and Bona Vacantia Act, 1974, to take custody of the land into Government possession. At this stage one Sri Kalavakuri Mallikarjuna Rao S/o. Narasimham of Kovur Village filed Writ Petition No.884/2010 against the Government represented by the Principal Secretary to Revenue Department, District Collector and the Tahsildar, Kandukur seeking direction to the respondents not to interfere with his possession and enjoyment of the land measuring Ac.1.12 cents in S.No.91/iC of Kandukur Village..."
It is also important to note that he made almost a pronouncement upon the transactions, that ensued among the petitioners. As regards the gift deed, executed by the 3rd petitioner in favour of the 2nd petitioner, he observed;
"...Further Sri Dama Kondaiah executed settlement deed for the same land in favour of his daughter illegally in the year 2008...
He did not stop at that. He made a request to the 2nd respondent to authorize him to execute a deed of cancellation. The relevant portion reads, "Further I request that I may kindly be authorized to execute cancellation deed before the Sub-Registrar, Kandukur for cancellation of the registered sale deed No.4159 dated: 23-8-2008..."
Even according to him, it is not a case where a private individual has sold away any Government property. The only basis for him to seek permission to execute a deed of cancellation is that the person, who executed the deed of gift settlement, has no title.
Any Joint Collector, who has an idea about the purport of the Act or the series of remedies provided therein; would have frowned at the Tahsildar, for making such preposterous request and undertaking such outrageous exercise, as though he is an adversary in the litigation, particularly when no one had challenged the entries made in favour of the 2nd petitioner, much less has raised the objection for the transactions, that took place over the period. However, the 2nd respondent has treated the report submitted by the 3rd respondent as a basis, to initiate suo motu proceedings under Section 9 of the Act.
At the out-set, it needs to be mentioned that suo motu proceedings are initiated, mostly when the interests of the State are involved. If the dispute is between two private individuals or sets of persons, it must be left to them, to prosecute their remedies in accordance with law. It has already been mentioned that respondents 4 to 6, in whose favour they executed sale deed in the year 1995, were nowhere in the picture, till the 3rd respondent submitted a report, much less, did they submit any representation before the 3rd respondent. However, in the proceedings initiated by him, the 3rd respondent adopted the following cause title:
"Between:
1. Sri Indrapal Singh Chandok R/o. Hyderabad.
2. Haripreeth Singh Chandok R/o. Hyderabad.
3. Smt Jaspal Kaur Chandok R/o. Hyderabad
4. Tahsildar, Kandukur ... Complainants And
1. Smt. Kondamuri Radha W/o. Haribabu, Kandukur Village & Mandal,
2. Sri Kalavakuri Mallikarjuna Rao, S/o. Narasimham, Kovuru Village, Kandukur Mandal.
3. Sri Dama Kondaiah, S/o. Narasaiah
4. Sri Damacharla Suresh Babu, S/o. Krishnamurthy ...Respondents"
If private individuals figure as complainants, and another set of private individuals are shown as respondents, it would be a misnomer to call the proceedings, as suo motu.
The main basis for the 3rd respondent to seek cancellation of entries and documents existing in favour of the 2nd petitioner was that the land became escheat. In this regard, it becomes necessary to take note of certain provisions of the A.P. Escheats and Bona Vacantia Act, 1974. Sections 7 and 8 of that Act read, "Sec. 7: Inquiry relating to escheat or bona vacantia by local officer:-
Whenever the local officer receives information from any source that any property of the nature of an escheat or a bona vacantia is situated or lying within his jurisdiction, he shall cause an inquiry to be made in respect thereof.
Sec.8: Local Officer to institute a suit for recovery of possession of escheat or bona vacantia when the person in possession resists:-
(1) Where, as a result of the inquiry under Section 7, the local officer is satisfied that the property of the nature of an escheat or bona vacantia is in the possession of a person who has no authority to claim it and if such person resists to surrender such possession on demand, the local officer may after obtaining the sanction of the competent authority, institute a suit in a Court for declaration of the Government's right to the property and for recovery of possession of such property.
(2) Where the Court has declared that the property is an escheat or a bona vacantia, the local officer shall obtain the possession thereof through the Court and manage it or dispose it of in such manner as may be prescribed."
It is only when the steps indicated in those provisions are taken, that the property vests in the Government as escheat.
No proceedings or steps whatever, were initiated or taken by the 3rd respondent. The 2nd respondent did not say even a word, in the marathon exercise undertaken by him.
The 2nd respondent issued notices to the petitioners, by mentioning that the title of petitioners 2 and 3 stood extinguished, since the land was already sold in favour of respondents 4 to 6, and the procedure prescribed under the Act and Rules was not followed, when the pattadar pass books and title deeds were issued in favour of the 2nd petitioner. In the grounds mentioned by him, he stated as under:
"...Since, her father has already sold away this piece of land along with Smt. K. Radha and other family members, he extinguished his rights over the land. As such the gift deed executed by her father is not valid under law and therefore the mutation in the ROR based on such invalid transaction is also voidable in the context of ROR".
It is necessary to mention here that nowhere in his report dated 29-03-2011, the 3rd respondent stated that there was any violation of procedure prescribed under the Act and Rules, while pattadar pass books and title deeds were issued to the 2nd petitioner. After referring to the reply submitted by the petitioners, the 2nd respondent recorded his findings and directed that the entries made in favour of the 2nd petitioner to be is struck off. In addition to that, he said, "It is further observed that departmental action is needed against the Sub- Registrar, Kandukur, who has accepted the registered doc.No.4159/2008, a gift deed, executed by Sri Dama Kondaiah, who is one of the vendors of the same parcel of the land covered by the doc.4159/2008, has already sold away the same through Registered doc.No.2469/95".
This Court was indeed surprised to note the manner in which the 2nd respondent has dealt with the proceedings, and directed him to explain as to why necessary observations be not made, in this regard. He appeared on 10-09-2012. It was brought to his notice that being an officer in the revenue department he cannot recommend initiation of disciplinary proceedings against an officer of the registration department. Further, to make him know the scope of the process of registration, he was required to go through Rule 58 of the A.P. Rules, made under the Registration Act (for short the 'Rules', which reads, "Rule 58: It forms no part of a Registering Officer's duty to enquire into the validity of a document brought to him for registration or to attend to any written or verbal protest against the registration of a document based on the ground that the executing party had no right to execute the document; but he is bound to consider objections raised on any of the grounds stated below:
(a) that the parties appearing or about to appear before him are not the persons they profess to be;
(b) that the document is forged;
(c) that the person appearing as a representative, assign or agent, has no right to appear in that capacity;
(d) that the executing party is not really dead as alleged by the party applying for registration; or
(e) that the executing party is a minor or an idiot or a lunatic."
There may be instances where an officer may have made certain observations in the course of passing orders, not knowing the actual scope of the provision. In such cases, once the fallacy in the order is pointed out, particularly by the High Court, he must treat it as guidance in future, and leave the order passed by him to be dealt with by the High Court, so that appropriate decision can be taken thereon.
The 2nd respondent, an officer by name, Dr.P. Lakshmi Narasimham, I.A.S., appears to be a sui generis, i.e. a class by himself. One-and-half months after he appeared before the Court and after he was apprised of the legal position, he filed a counter-affidavit, which runs into 15 pages, not only trying to justify the order passed by him, but also making an attempt to give sermons to the Court. He treated the issuance of title deeds in favour of the 2nd petitioner for the land in question, as an act, without jurisdiction, and thereby a nullity. It is not in dispute that the pattadar pass books and title deeds were issued by an authority vested with the power and it was nobody's case that the person, who issued it, did not have jurisdiction. Trying to justify his observation, made against the Sub-Registrar, he stated in paragraph 7 of the counter-affidavit, as under:
"It is further submitted that according to provisions contained under Section 81 of the Registration Act 1908, "Every registering officer appointed under this Act and every person employed in his office for the purpose of this Act, who being charged with the endorsing, copying, translating or registering of any document presented or deposited under its provisions, endorses, copies, translates or registers such documents in a manner which he knows or believes to be incorrect, intending thereby to cause or knowing it to be likely that he may thereby cause injury, as defined in the Indian Penal Code, to any persons, shall be punishable with imprisonment for a term which may extend to seven years, or with fine, or with both". It is further submitted that in the present case, though all the relevant records and register are available in his custody and though it can be easily verified as to what transactions took place in a particular S.No. and thereby whether the particular property stands in the name of a particular person or not, the Sub-Registrar without verifying the earlier registrations has resorted to register the subsequent document Nos.4159/2008, 374/2010 and 6294/2011, due (to) which this dispute has arisen. Particularly, the action of the Sub-Registrar in registering the Doc.No.6294/2011, in spite of intimation, from the Tahsildar through Lr.No.RC/A86/2010, dated 15.04.2010, as to the earlier registration in the year 1995, is quite contrary to the provisions of Section 81 of the Registration Act, 1908, as he knows through the said communication of the Tahsildar that the Doc.No.6294/2011 (is) incorrect document."
It is not out of place to mention that not only Rule 58 of the Rules, which is extracted above, but also Section 34 of the Registration Act makes it amply clear that it is no part of the duty of the Sub-Registrar to enquire into the title of the person who executes the document. However, arrogance and the one of upmanship of the 2nd respondent did not permit him to look to reason. Even while committing a patent illegality, in a matter, which any officer in his place would not have entertained, has crossed all barriers of legality, propriety and restraint, in trying to pronounce upon the legality of registration of the document and propriety of the Sub-Registrar. Despite the restraint maintained by this Court, it could not prevent itself from using the expressions employed above, having observed the tendency, conduct, tone and tenor exhibited by the 2nd respondent, both inside the Court and in his pleadings.
The lack of truthfulness on his part is evident from the fact that, though it was not even the case of the Tahsildar, much less of any party, that notices were not issued under relevant provisions of the Act and Rules, while giving pattadar pass books and title deeds to the 2nd petitioner, he made a detailed comment about it, not only in the impugned order, but also in the counter- affidavit. He did not take into account, the fact that the title deeds are issued only after the Revenue Divisional Officer makes his endorsement, on being satisfied that the prescribed procedure is followed. He did not utter a word as to the very basis on which, the 3rd respondent submitted his report, viz., that the land stood vested in the Government, as escheat. The result was that respondents 2 and 3 have resorted to gross misuse of their official position, to advance the cause of persons, who shied away from initiating any proceedings under the relevant provisions of law, or to file a suit.
The consistent observation made by the 2nd respondent, that, despite the sale in the year 1995, the 3rd respondent continued to be in possession of the land, till he delivered it to his daughter, consequent upon the execution of the gift settlement deed; was blissfully ignored. The 2nd respondent does not appear to have realized or understood that, in case the pattadar pass books and title deeds issued in favour of the 2nd petitioner are set aside, the result would that the earlier entries, wherein the 3rd petitioner was shown to be in possession and enjoyment of the property, would get restored and there does not exist any qualitative change of rights among the petitioners.
In one of the earlier paragraphs, mention was made to the complaint submitted by the 3rd respondent, to the Station House Officer for prosecuting the petitioners herein for offences punishable under Section 420 I.P.C. The Station House Officer, Kandukur Police Station, registered the same, as Crime No.40 of 2010, and conducted a detailed investigation. He ultimately submitted a report on 14- 10-2010. He stated, inter alia, "My investigation in this case revealed that the alleged A.1 is the son of one Dama Narsaiah and he got an extent of land Ac.1.12 cents in S.NO.91/iC as his share from his ancients (ancestors). His younger brother Dama Malleswara Rao also got share of Ac.1.50 cents in same survey No. and he sold away to one Yenamala Kondiah. A.1 has sold his share of 1.12 cents for Rs.50,000/- to Indrapalsing Chandok S/o. Surjith Singh Chandok resident of Mumbai city of Maharastra State and two others as they decided to install a milk chilling centre near Dubagunta village. The said registration was executed by document No.2469 on 11.10.1995. But they did not take and possession of the said land, cancelled their installation of milk project and went away by leaving the said land. A.2 also an executant in document No.2469. A.1 continued to be in possession and enjoyment of the said land as the purchasers failed to hand over the said land. The whereabouts of the purchasers are not known. Hence A.1 again registered the same land after lapse of 13 year in favour of his daughter Kondamuri Radha. Vide document No:4195/08 of Sub-Registrar Office. The said land is purely private property and comes to the complainant (accused) as his share from his ancients (ancestors). How the Government has rights on a private land. The alleged accused also stated that Indrapal Singh Chandok and others said land as they cancelled the project of milk chilling centre due to financial problems. If the alleged accused No.1 re-registered the same land in respect of his own daughter the 2nd party who purchased the land has to be filed complaint against the alleged A.1. Tahsildar is no way concerned to give report as 3rd party as it belongs purely to civil nature. If there are any lapses in respect of property or documentation he should approach to civil law. Thus this is a fit case to refer as CIVIL NATURE.
I have obtained orders from SDPO Kandukur to refer the case as Civil nature. Refer notice is also served to the defacto complainant".
Rarely we come across such an excellent analysis of the matter and a dispassionate examination of a complaint, as was done by the Sub-Inspector of Police, Kandukur Police Station.
It would have been educative and informative for respondents 2 and 3, had they read the paragraph, in a final report submitted by Sub- Inspector of Police, carefully. It is rather unfortunate that the Revenue Officials in a District could not match their performance with that of a Sub- Inspector of Police, in a matter pertaining to the making of entries in the revenue records, the legal consequences of the execution of various documents, and the nature of remedies to be availed by the effected parties. Any sensible Tahsildar would have reported for the misadventure undertaken by him, when he was politely, but effectively admonished by the Sub-Inspector, that he should be mindful of his limitations.
It is too well-known that the entries in the revenue records would only reflect the rights, which an individual already possesses, vis--vis an item of land, and by themselves, they do not create or take away any rights. Section 8 of the Act makes it amply clear that any dispute as to title must be resolved by parties by taking recourse to Courts of law. The Act does not provide for resolution of civil disputes, much less the authorities under it can decide the title of the parties. Both, in the proceedings instituted by them, as well as in their counter-affidavits, the respondents 2 and 3 have virtually pronounced upon the title of the petitioners herein. The 3rd respondent has gone to the extent of alleging fraud on the part of the petitioners, both when the relevant documents were executed and the pattadar pass books and title deeds were obtained. The highhandedness on the part of the 3rd respondent reached his heights, when, even before any order was passed by any authority, he has seized the pattadar pass books and title deeds from the 2nd petitioner.
There is not even an element of remorse on the part of the 2nd respondent. On the other hand, he exhibited a rebounding tendency, which does not augur well, either for him, or for the administration, of which, he is a part.
The discussion undertaken above discloses that respondents 2 and 3 have acted in a patently illegal, highhanded, capricious manner, and in a way, have exhibited the conduct, which is unbecoming of persons, holding such posts.
The writ petitions are accordingly allowed, and the order dated 23-01-2012, passed by the 2nd respondent is set aside. It is left open to the respondents 4 to 6 to work out their remedies in accordance with law, if they are so advised.
Respondents 2 and 3, viz., P. Lakshimi Narasimham, the Joint Collector, Prakasam, S.K. Ameer Basha, the Tahsildar, Kandukur, who worked at the relevant point of time, are imposed costs of Rs.5,000/- (Rupees five thousand only) each, for the improper and arbitrary manner in which, they acted in this matter. The amount shall be deposited with the Manager/Warden of the nearest Hostel for Physically Disabled Children, run by the Government, within a period of four weeks from today. The Warden shall utilize the amount for providing facilities to the inmates with the approval of the District Collector.
The miscellaneous petitions filed in these writ petitions shall also stand disposed of. There shall be no order as to costs.
_______________________ L. NARASIMHA REDDY, J.
Dt.31-10-2012