Andhra Pradesh High Court - Amravati
Lekkala Venkata Uma Kumari, Vsp. vs Prl. Secy., Rev. Dept. 4 Ors. on 16 November, 2022
HONOURABLE SMT. JUSTICE V.SUJATHA
WRIT PETITION No.15540 of 2016
ORDER
This petition is filed under Article 226 of the Constitution of India, seeking the following relief:-
"....to issue a Writ of Mandamus, declaring the notice in Rc.No. 184/2015/B dated 07.05.2015 served on the petitioner on 23.05.2015 issued by the RDO, Narsipatnam, Visakhapanam District as being illegal, arbitrary and unreasonable and without jurisdiction and also in violation of the provisions of A P Rights in Land and Pattadar Pass Books Act, 1971, more particularly Section 5(5) of the Act and consequently set aside the said same with a further direction to the respondents not to interfere with the rights of the petitioner over the land in Survey No.157 admeasuring 14.65 cents situated at P K Palli Village, Kotauratla Mandal, Visakhapatnam District..."
When the matter came up for admission on 04.06.2015, this Court passed an Interim Order, which reads as follows:
„Petitioner questions the notice issued by respondent No.4 on the basis of representations filed by 1)Bokam Appa Rao, 2) China Apparao, 3) Gandhi, 4) Snathaiah and 5) Gandi Sanyasi questioning the pattadar passbooks issued to the petitioner sometime in June, 2014. Petitioner states that there is no appeal preferred before the Revenue Divisional Officer under Section 5(5) of the A.P.Record of Rights in land and Pattadar Passbooks Act, 1971 andmerely on the representation filed after a long delay, the Revenue Divisional Officer cannot seek to exercise powers under Section 5(5) of the Act. It is however, noticed that none of the said persons, who filed representation are impleaded. Hence, petitioner shall implead all the said persons at whose instance the Revenue Divisional Officer has issued the impugned notice to the petitioner.2
Petitioner shall also take out notice to all the said persons to enable them to appear before this Court in response to the present Writ Petition.
Issue notice before admission.
Learned Assistant Government Pleader for Revenue, who takes notice for respondents, to get instructions.
List after four(04) weeks.
In the meanwhile, respondent No.4 shall await decision of this court in the writ petitioner and shall not take any further action in pursuance of the impugned notice‟.
The case of the petitioner in nutshell is that the father-in- law of petitioner is the absolute owner of the subject land in Ac.14.65 cents in Survey No.157 situated at P.K.Palli Village, Kotauratla Mandal, Visakhapatnam District. Recognizing the possession and enjoyment of the father-in-law of the petitioner, the revenue authorities also issued pattadhar passbook and title deeds in favour of the father-in-law of the petitioner in the year, 2005. While so, the father-in-law of the petitioner executed a registered gift deed in favour of the petitioner vide document No.1765 of 2014 and the same was registered in the Joint Sub- Registrar Office, Kotauratla, Visakhapatnam District, on 23.06.2014. Recognizing said possession Pattadhar passbooks and Title Deeds were also issued to the petitioner. The name of the petitioner was also entered in the Record of Rights under the provisions of AP rights in Land and Pattadar Pass Books Act, 1971(hereinafter referred as "the Act"). 3
Later on the application filed by Bokam Shanthaiah and Bokam Ramanamma, to the RDO., Narsipatnam, for granting Pattadar Passbook and Title Deed in favour of the petitioner, treating the said application as an appeal, the 4th respondent has issued the impugned notice, which is as follows:
„it is noticed that the five persons i.e., Bokam Appa Rao, China Appa Rao, Gandhi, Santhaiah and Gandi Sanyasi have purchased the Zeroithi land in Survey No.157, extent Ac.29.30 cents, situated at P.Kothapalli Village, Kotarautla Mandal, Narsipatnam Division, Visakhapatnam District, through registered and unregistered sale deeds. Sri Bokam Appa Rao has executed a registered document in favour of his daughter-in-law through registered document No.1765/2014, dated 23.06.2014 and obtained the pattadar passbook to an extent of Ac.14.65 cents, without consent and without informing to the remaining four persons. In this regard Bokam Shanthaiah and Bokam Ramanamma have made an application requesting to enquire in respect of issuance of pattadar pass books issued in favour of Lekkala Venkata Uma Kumari. Therefore, notice is issued to attend bdfor the Revenue Divisional Officer, Narsipatnam on 23.05.2015 at 11.00 a.m., for enquiry in respect of the disputed land. Except the petitioners, the respondents have not attended the enquiry on the said date. Therefore, the enquiry date is adjourned to 23.05.2015 before the Revenue Divisional Officer, Narsipatnam and requested both parties to attend along with relevant documents and records. It is informed that if they failed to attend on the said date, the matter will be decided on the available records in this office. Challenging the same, the present Writ Petition is filed. 4
Heard Sri.A.giridhar Rao, learned counsel for the petitioners and learned Assistant Government Pleader for Revenue, for Respondents.
At the time of hearing, the learned counsel for the Writ Petitioner reiterated the contentions of the Writ Petition and contended that the impugned order is not maintainable and also draws the attention of this Court the relevant provisions of the Act are as under.
Section 3(3) of A.P.Rights in Land and Pasttadar Pass books of 1971, any person effected by an entry in record of rights, may apply for rectification before the concerned MRO., within a period of one year from the date of the notification issued under Sub-Section 2 of Section 3.
Section 4 of the A.P.Rights in Land and Pasttadar Pass books of 1971, if any person acquires any right over any land either by succession, survivorship etc., it shall be intimated to the MRO., within 90 days from the date of such acquisition.
Section 5 of the said Act, on receipt of such intimation of the fact of acquisition of any right referred in Section 4, the concerned MRO., after enquiry may amend and update the records of the rights.
Then only against an order of the MRO., either making an amendment in the record of rights or refusing to make such an amendment, an appeal shall lie to the RDO., within a period of 60 days under Section 5(5) of the said Act.5
Rules 15 to 17 of the A.P.Rights in Land and Pasttadar Pass Books rules, 1989 deals with rectification of entries in record of rights. Rule 21 provides an appeal to be preferred against an order of MRO., regarding amendment in record of rights. Further, the 4th respondent being RDO., cannot take a complaint directly as an appeal under the provisions of A.P.Rights in Land and Pattadar Pass books of 1971, unless an order for amendment/rectification is passed by the MRO. The pattadar passbook and title deed was issued in favour of the petitioner in the year, 2014 only on her application and only after conducting any enquiry, any amendment or rectification shall be done, if any objection/complaint is filed within a period of one(01) year.
The third parties application challenging the issuance of pattadar pass book and title deed, in favour of the petitioner, is not maintainable in law, in as much as the entries in the revenue records have not been challenged. The act of respondent No.4 in taking up the application of third parties as an appeal and issuing impugned notice is illegal, arbitrary and relied upon the decision of the Division Bench of the High Court of Andhra Pradesh at 6 Hyderabad reported, in "Ratnamma Vs. RDO., Dharmavaram"1, wherein it was observed that:
„The Revenue Divisional Officer, has no authority to treat the representation/complaint as an appeal in the absence of any order passed by the Tahsildar, by exercising power under Section 5(5) of the Act read with Rules, 1989‟ On the other hand, the learned Assistant Government Pleader for Revenue, supported the Impugned Order In view of the submission of both side counsel, the only question is whether respondent No.4 is competent to treat the representation/application submitted by third parties, which is having no statutory basis, as an appeal in the absence of any order passed by the Tahsildar?.
Section 5(5) of the Act deals with appeal, which is as follows:
„(5) Against every order of the (Mandal Revenue Officer) 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 1 .2015(1) ALT 361 7 days from the date of communication of the said order and the decision of the appellate authority thereon shall subject to the provisions of Section 9, be final‟ The Revenue Divisional Officer is entitled to exercise appeal jurisdiction only against the order passed by the Mandal Revenue Officer either making an amendment in the Record of Rights or refusing to make such an amendment within a period of sixty(60) days from the date of communication of the said order.
In the present case, the third parties instead of challenging the original order passed by the Tahsildar, granting pattadar pass book in favour of the petitioner, has requested the 4th respondent to enquire regarding issuance of pattadar passbooks in favour of the petitioner by making application to the 4th respondent.
In the absence of any order passed by the Mandal Revenue Officer, entertaining an appeal under Section 5(5) of the Act, treating the application/representation as an appeal is illegal and contrary to the law laid down by the Division Bench of the High Court of Andhra Pradesh at Hyderabad, in "Ratnamma Vs. RDO., Dharmavaram".8
Therefore, by applying the principle laid down in the said judgment, the impugned notice issued by respondent No.4 is liable to be set aside as it is without jurisdiction since the order passed by the Tahsildar is not under challenge in the said appeal.
In the result, the writ petition is allowed setting aside the impugned notice in Rc.No.184/2015/B dated 07.05.2015 issued by the 4th respondent on the point of jurisdiction. There shall be no order as to costs.
As a sequel, Interlocutory Applications pending, if any, in this Writ Petition, shall stand closed.
_______________________ JUSTICE V.SUJATHA Date : 16.11.2022 AVTP 9 254 HONOURABLE SMT. JUSTICE V.SUJATHA WRIT PETITION No.15540 of 2015 Date : 16.11.2022 AVTP 10