Telangana High Court
B.Prabhakar Rao vs The State Of Telangana on 7 April, 2022
Author: A.Abhishek Reddy
Bench: A.Abhishek Reddy
THE HON'BLE SRI JUSTICE A.ABHISHEK REDDY
WRIT PETITION Nos.23897 of 2018 and 24153 of 2020
COMMON ORDER:
Since the subject property in both the writ petitions is one and the same, the writ petitions are taken up together and being disposed of by this common order.
For the sake of convenience, the parties are hereinafter referred to as they are arrayed in W.P.No.24153 of 2020.
The case of the petitioner, in brief, is that in the family partition that took place between himself, his father and his brothers (unofficial respondents herein), the subject lands, admeasuring Acs.2-35 guntas in Survey No.6, Ac.0-31 guntas in Survey No.839/B and Ac.1.13 guntas in Survey No.840, situated at Ghanpuram (Mulugu) Village and Mandal, Jayashankar Bhupalpally District, along with other lands fell to the share of the petitioner herein. Ever since the said partition, the petitioner has been enjoying the land fell to his share in the said partition and his name was also mutated in the revenue records. It is further stated that in respect of the properties that fell to the share of his father and brothers also, mutation were done in their respective names and they were enjoying their respective lands. It is stated that during the year 2013-2014, the Tahsildar concerned has deleted the name of the petitioner in respect of the subject lands from the revenue records and recorded the name of the father of the petitioner in 2 pattadar column and the names of brothers of the petitioner i.e., unofficial respondents herein in possession column, without issuing any notice to the petitioner. That after coming to know about the said illegal entries made in the revenue records, the petitioner made applications dated 24.02.2014 and 11.08.2014 before respondent Nos.3 to 5 seeking to restore the original entries and to issue pattadar passbooks and title deeds in his name in respect of the subject lands. Pursuant to the said applications, respondent No.5 vide proceedings dated 20.09.2014 directed the respondent No.6 to send a report. Further, respondent No.5 also addressed a reminder letter dated 16.04.2016 to respondent No.6. Instead of sending the report, respondent No.6 issued Memo dated 08.06.2016 stating that the subject lands are vacant lands and that there is a family dispute pending between the petitioner and the unofficial respondents and directed the petitioner to approach the Civil Court. Aggrieved by the Memo dated 08.06.2016, the petitioner filed W.P. No.23897 of 2018.
Thereafter, pursuant to the application made by respondent No.7, the respondent No.6 has passed the order vide R.C.No.B2/1321/2019 dated 20.05.2019 amending the record of rights in respect of the lands in Survey Nos.839/B and 840 of Ghanapuram (Mulugu) Village. Questioning the same, the petitioner filed W.P. No.24153 of 2020.
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On 08.01.2021, this Court, while issuing notice before admission, in I.A.No.2 of 2020 in W.P. No.24153 of 2020 has granted interim stay of operation of order dated 20.05.2019 passed by respondent No.6/Tahsildar, Ghanapur (Mulugu) Mandal.
However, no interim order was granted by this Court in the initial writ petition filed by the petitioner i.e., W.P.No.23897 of 2018.
Seeking to vacate the interim order dated 08.01.2021 granted in I.A.No.2 of 2020 in W.P. No.24153 of 2020, respondent Nos.7 and 8 have filed a vacate stay petition along with a counter affidavit, which was adopted by respondent No.9. In the counter affidavit, it is mainly contended that the father of the petitioner and the unofficial respondents viz., Late B. Vengal Rao, during his life time, has executed an unregistered conditional Settlement Deed dated 12.05.1983 dividing the properties in four equal shares. In the said partition, the respondent No.7 was allotted the lands admeasuring Ac.0-29 guntas in Survey No.6/3, Ac.0.07 guntas in Survey No.839/B/3 and Ac.0-13 guntas in Survey No.840/3, totally admeasuring Ac.1-09 guntas. Thereafter, respondent No.7 made an application before respondent No.6 for mutation of his name and after conducting due enquiry, mutation was done in favour of respondent No.7 and pattadar pass book vide Khata No.60252 dated 23.10.2019 was also issued to him. It is further stated that likewise, respondent No.8 was allotted land admeasuring Ac.0-28 guntas in Survey No.6/1, Ac.0.08 guntas in 4 Survey No.839/B/1 and Ac.0-13 guntas in Survey No.840/1 together admeasuring Ac.1-09 guntas. Based on the application of respondent No.8 for mutation, respondent No.6, after conducting enquiry, mutated the name of respondent No.8 in the revenue records and issued Khata No.60250 dated 23.10.2019. It is further averred that pursuant to the application made by the petitioner herein, respondent No.5 directed respondent No.6 to submit a report. Pursuant to the same, respondent No.6 issued Memo dated 11.05.2016 to the Mandal Revenue Inspector to conduct spot enquiry. Accordingly, the Mandal Revenue Inspector conducted enquiry and submitted the report to respondent No.6, who in turn submitted the report to respondent No.5 through Memo dated 06.05.2016 stating that there is a family dispute between the parties and therefore the petitioner was directed to approach the Civil Court. However, the petitioner instead of approaching the competent Civil Court has again approached this Court and filed Writ Petition No.24153 of 2020. Hence, they prayed to dismiss the writ petition.
A similar counter affidavit is filed by the unofficial respondents in W.P. No.23897 of 2018.
The petitioner has filed a reply to the counter affidavit filed in W.P.No.24153 of 2020 denying the material averments of the counter affidavit and mainly stating that the revenue authorities have not filed any counter with regard to the non-issuance of notice before passing the order, dated 20.05.2019.
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Heard the learned counsel for the petitioner, learned Government Pleader for Revenue for official respondents, and Sri Mohammed Zubair Akram, learned counsel for unofficial respondents. Perused the record.
Learned counsel for the petitioner has stated that the subject lands belong to Late B.Vengal Rao i.e., the father of the petitioner and the unofficial respondents and the said B. Vengal Rao died on 04.06.1986. Learned counsel has further stated that in pursuance of the partition that took place between the four sons of Late B.Vengal Rao i.e., the petitioner and the unofficial respondents, some of the lands fell to the share of the petitioner and the unofficial respondents and they are in possession and enjoyment of the same. That the subject lands also fell to the share of the petitioner and the name of the petitioner is reflected in both the pattadar column and possession column of the revenue records. That without issuing any notice to the petitioner, his name was removed from both the pattadar and possession columns of the revenue records in respect of the subject lands and the name of his father i.e., Late B.Vengal Rao was entered in the pattadar column and the names of the four sons of Late B.Vengal Rao was entered in the possession column. That when the petitioner made a representation to the authorities concerned, the respondent No.6 - Tahsildar, Ghanpur (M) Mandal, has issued the Memo dated 08.06.2016 stating that the lands in Survey Nos.6, 389/B and 840 are vacant and not being cultivated for the last 10 years and a civil dispute 6 is pending between the petitioner and his brothers, and therefore, directed the petitioner to approach the Civil Court. But, thereafter, based on the application made by the respondent No.7 under Section 6-A of the A.P. Rights in Land and Pattadar Pass Books Act, 1971, the respondent No.6- Tahsildar has gone ahead and mutated the names of the four sons of Late B. Vengal Rao, without putting the petitioner on notice or calling for objections. Therefore, prayed to set aside the Memo dated 08.06.2016 as well as the order dated 20.05.2019.
A perusal of the record discloses that subject lands, admeasuring Acs.2.35 guntas in Survey No.6, Ac.0.31 guntas in Survey No.839/B and Ac.1.13 guntas in Survey No.840, totally admeasuring Ac.4.39 guntas, situated at Ghanpuram (Mulugu) Village and Mandal, Jayashankar Bhupalpally District, belong to the father of the petitioner and the unofficial respondents i.e., Late B.Vengal Rao. Even though the learned counsel for the petitioner has stated that the name of the petitioner was entered in the revenue records pursuant to the partition between the petitioner and his family members, except filing the pahanies for the years from 1995-96 to 2009-10, no other documents are filed to show that the subject lands fell to the share of the petitioner or that the Revenue Authorities have issued proceedings in his favour. Even as per the pahanies of the years 1995-96, 1996-97 and 1997-98, the name of Sri B. Vengal Rao is reflected in the revenue records in respect of the land in Survey No.6, but the pahanies of the year 2009- 7 10 reflect the name of the petitioner herein as pattadar. There is nothing on the record to show as to how the subject lands, which were originally in the name of Late B. Vengal Rao, were mutated in the name of the petitioner herein.
In the absence of any record or document to substantiate the claim of the petitioner that the subject lands fell to his share, mere entries in the revenue records without any proceeding will not confer any exclusive right to the petitioner herein.
This Court as well as the Hon'ble Supreme Court, on number of occasions, held that mere entries in the revenue records will not confer any title to the parties and that the entries made in the revenue records will be for the purpose of fiscal inquiries only.
In State of U.P. vs. Amar Singh1, the Hon'ble Supreme Court has held as under:
"It is settled law that mutation entries are only for the purpose of enabling the State to collect the land revenue from the person in possession but it does not confer any title to the land. The title would be derived from an instrument executed by the owner in favour of an alienee as per Stamp Act and registered under Registration Act. The alienees being sons and daughters-in-law, the tenure-holder remained to be the owner and holder of the land."
1 AIR 1997 SC 1534 8 Likewise, in Balwant Singh vs. Daulat Singh (dead) by L.Rs.2, the Hon'ble Supreme Court has struck the similar proposition, as under:
"We have already noticed that mutation entries do not convey or extinguish any title and those entries are relevant only for the purpose of collection of land revenue."
In Nand Kishwar Bux Roy vs. Gopal Bux Rai3, the Hon'ble Privy Council held that mutation proceedings are merely in the nature of fiscal inquiries, instituted in the interest of the State for the purpose of ascertaining which of the several claimants for the occupation of the property may be put into occupation of it with the greater confidence that the revenue for it will be paid.
Furthermore, in the counter filed by the unofficial respondents, it is specifically stated that by way of settlement deed dated 12.05.1983, the subject lands were kept aside in the name of Late B. Vengal Rao to be enjoyed by him during his lifetime, thereafter by his wife - Radhamma, and thereafter, by their four sons i.e., the petitioner and the unofficial respondents equally. Based on the said settlement deed only, the subject lands were mutated in the name of the four sons of Late B.Vengal Rao after his demise.
2 AIR 1997 SC 2719 3 AIR 1940 Privy Council 93 9 Even though in the reply filed by the petitioner to the counter filed in W.P.No.24153 of 2020, it is stated that the so called settlement deed was brought into existence for the first time. It is to be noted that in the counter filed by the unofficial respondents in W.P.No.23897 of 2018, it is stated that mutation was done on the basis of the settlement deed dated 12.05.1983 entered by all the parties. It is pertinent to note that the said counter was filed in December, 2019, along with a copy of the unregistered conditional settlement deed dated 12.05.1983.
Having regard to the fact that there is a serious dispute between the petitioner and the unofficial respondents with regard to the title and possession of the subject lands, which dispute the quasi judicial authorities cannot resolve and it is only the competent Civil Court which can adjudicate the same.
In Kutchi Lal Rameshwar Ashram Trust Evam Anna Kshetra Trust v. Collector, Haridwar4, the Hon'ble Supreme Court has held that administrative authorities like Collectors have no jurisdiction to decide questions of title. It declared:
"24. The basic issue which has to be addressed in the light of the above principles is whether the Collector had jurisdiction to decide a question of title by assuming to himself the power of an adjudicatory forum. The order of the Collector indicates that the issue as to whether the property would vest in the State Government as a result of a failure of heirs within the meaning of Section 29 was a seriously disputed issue turning upon an adjudication of
4 (2017) 16 SCC 418 10 conflicting claims. In the process of determining the issue purportedly under Section 29, the Collector has adjudicated upon various factual matters including (i) whether the property was purchased in 1955 by Mohan Lal with the funds provided by Swamy Udhav Das; (ii) the legality of the registered will stated to have been executed by the Swamy on 22-10-1956; (iii) the identity of the person who executed the deed of acceptance dated 23-3-1958 in comparison with the person in whose name the patta had been acquired in 1955; (iv) whether Mohan Lal died prior to the execution of the deed of trust on 11-11-1957; and (v) whether a presumption in regard to the death of Mohan Lal would arise upon his not being heard of allegedly for seven years. The Collector has proceeded to adjudicate on these, among other, factual issues. Section 29, it may be noted, embodies a principle but does not provide a procedural mechanism for adjudication upon disputed questions. The canvas of the controversy before the Court is an abundant indication of matters which were seriously in dispute. The contention of the State that the property would devolve upon it as a result of Mohan Lal being presumed to be dead and having left behind no legal heir is seriously in question. Such a matter could not have been adjudicated upon by the Collector by assuming to himself a jurisdiction which is not conferred upon him by law."
25. The principle that the law does not readily accept a claim to escheat and that the onus rests heavily on the person who asserts that an individual has died intestate, leaving no legal heir, qualified to succeed to the property, is founded on a sound rationale. Escheat is a doctrine which recognises the State as a paramount sovereign in whom property would vest only upon a clear and established case of a failure of heirs. This principle is based on the norm that in a society governed by the Rule of Law, the court will not presume that private titles are overridden in favour of the State, in the absence of a clear case being made out on the basis of a governing statutory provision. To allow administrative authorities of the State--including the Collector, as in the present case--to adjudicate upon matters of title involving civil disputes would be destructive of the Rule of Law. The Collector is an officer of the State. He can exercise only such powers as the law specifically confers upon him 11 to enter upon private disputes. In contrast, a civil court has the jurisdiction to adjudicate upon all matters involving civil disputes except where the jurisdiction of the court is taken away, either expressly or by necessary implication, by statute. In holding that the Collector acted without jurisdiction in the present case, it is not necessary for the Court to go as far as to validate the title which is claimed by the petitioner to the property. The Court is not called upon to decide whether the possession claimed by the Trust of over forty-five years is backed by a credible title. The essential point is that such an adjudicatory function could not have been arrogated to himself by the Collector. Adjudication on titles must follow recourse to the ordinary civil jurisdiction of a court of competent jurisdiction under Section 9 of the Code of Civil Procedure, 1908."
(emphasis supplied) Recently in Edelweiss Asset Construction Company Limited vs. R. Perumalswamy,5 the Hon'ble Supreme Court considered provisions of the Tamilnadu Patta Pass Book Act 1983 which are almost in pari materia with the provisions of the Telangana Act and held:
"19. Under the Tamil Nadu Patta Pass Book Act 1983 and the Tamil Nadu Patta Pass Book Rules 1987, the Tahsildar is not empowered to adjudicate upon a 'title dispute'. A combined reading of Section 14 and Rule 4(4) indicates that where there exists a dispute with respect to ownership of a land between parties with respect to a patta entry, the correct procedure to be adopted is to approach a civil court having competent jurisdiction. The entry records will be updated on the basis of the decree of the civil court upon adjudication."
(emphasis supplied) 5 Manu/SC/0562/2020 12 A Division Bench of this Court presided over by Justice G.Raghuram held in Govt. of A.P. v. Malik Sultana6 as under:
"34. ... ... the learned Attorney General has categorically urged that none of the orders (dated 15-04-2002, 06-05-2004, 31-07-2004, or the impugned memo dated 21-05-2005) flow from any authority conferred to adjudicate upon competing claims of the State on the one hand and the legal heirs/successors-in-interest of Nusrat Jung I on the other, with respect to the schedule property of Acs. 1634.35 gts in Kokapet village. Neither the counsel for the writ petitioners in W.P. No. 29063 of 2009 nor the counsel for the non-official respondents in the appeals have brought to our notice provisions of any legislation conferring power, authority or jurisdiction on the Government, the Principal Secretary or the Special Chief Secretary to adjudicate disputes between the State and the competing claimants with respect to the schedule property.
35. Judicial power is an integer of sovereign power which inheres in the superior Courts under our Constitutional presents (Articles 32, 131 to 142; Articles 225 to 228; Articles 230 to 231). The jurisdiction to adjudicate civil, criminal or other disputes are conferred on courts inferior to superior courts by Acts of the appropriate legislatures, (exercising legislative power qua the enumerated legislative fields) i.e., Article 246 read inter alia with Entry 95 of the Union List; Entry 65 of the State List; or Entry 46 of the Concurrent List, in the Seventh Schedule to the Constitution. Examples of such legislative conferment of judicial powers and authority are the Code of Criminal Procedure, 1973 and Code of Civil Procedure, 1908. There are other enactments which confer jurisdiction on courts or other tribunals. Illustrations of such conferment are the Administrative Tribunals Act, 1985, whereunder power to adjudicate is conferred on Administrative Tribunals qua Article 323A; jurisdiction to decide disputes is also conferred on other Tribunals under several enactments such as the Industrial Disputes Act, the Income Tax Act, the Stamp Act, Urban and Agricultural Lands Ceiling Legislation and Sales Tax enactments of several States, Section 9 of the Civil
6 2013 (2) ALD 177 13 Procedure Code confers wide jurisdiction on courts to adjudicate all disputes of a civil nature except those specifically excluded by legislation.
36. In the case on hand, despite the inconsistent and often incoherent positions (evident from the orders dated 15-04-2002, 06- 05-2004, 31-07-2004 and 21-05-2005), the State has doggedly adopted the position that the schedule property belongs to the State and not to the heirs of Nusrat Jung I. In the circumstances and absent any specific power conferred on any executive authority or agency to adjudicate disputes between the State on the one hand and the private claimants to the schedule property on the other, we are unable to countenance any power, authority or jurisdiction in the Government or other State actors (public officials), to adjudicate the competing claims. On this analyses and in the absence of any legislatively explicated exclusion of the jurisdiction of the Civil Court and the conferment of concurrent or exclusive adjudicatory jurisdiction on any authority, forum or tribunal, other than the Civil Court, neither the State nor any State actor has any power or authority to determine whether the schedule property belongs to the State or to the private claimants thereto. Other issues presented by the claimants/writ petitioners are equally contested and contestable and fall for adjudication.
37. We therefore conclude that the several instruments: dated 15- 04-2002, 06-05-2004, 31-07-2004 and 21-05-2005 (impugned) have no determinative trajectory whatsoever and are neither constitutive, declaratory or deprecatory of any rights in the schedule property; either in favour of the State or in favour of the claimants (writ petitioners).
.........
39. The judgment under appeal directs the Government to reconsider the issue after notice to the petitioners. What power, authority or jurisdiction the Executive branch of the Government is 14 required to exercise, to adjudicate upon competing claims of itself and of the private claimants to the schedule property, is however not delineated in the judgment under appeal.
40. Our analyses herein before leads us to conclude that no power, authority or jurisdiction, either judicial or quasi-judicial is conferred on the State Government, or on any officer of the State, whether concurrent with or to the exclusion of the indisputably available power, authority and jurisdiction of the civil court under Section 9 CPC to determine whether the schedule property belongs to the State; to the competing claimants, including the writ petitioners; or its possession is required by law to be restored to the claimants, duly considering pleas regarding the bar of limitation period."
(emphasis supplied) For the afore-stated reasons and the law laid down this Court and the Hon'ble Supreme Court in the judgments, referred to above, the writ petitions are dismissed granting liberty to the petitioner to approach the Civil Court, if he is so advised.
Miscellaneous petitions pending, if any, shall stand closed. There shall be no order as to costs.
__________________________ A.ABHISHEK REDDY, J Date : 07-04-2022.
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