Andhra HC (Pre-Telangana)
Susheela Bai W/O Vasedev Jannawar,R/O. ... vs Joint Collector, Adilabad, Adilabad ... on 26 March, 2014
THE HONOURABLE SRI JUSTICE A.V.SESHA SAI WRIT PETITION NO.26681 of 2003 26-03-2014 Susheela Bai w/o Vasedev jannawar,R/o. Patanbori Village Kelapur Tq.Yavathmal District. (M.S.)Petitioner Joint Collector, Adilabad, Adilabad District and others....Respondents <GIST: >HEAD NOTE: Counsel for petitioner : Sri Chandra Sekhar Counsel for respondents 1 to 3 : Government Pleader for Revenue Counsel for respondent No.4 : Sri M.Sudhir Counsel for respondent No.6 : Sri Potti Venkata Ramana Rao ? CASE REFERRED: 1)2004 (3) ALT 414 THE HONBLE SRI JUSTICE A.V.SESHA SAI WRIT PETITION No.26681 of 2003 ORDER:
This writ petition, under Article 226 of the Constitution of India, is filed, seeking the following relief:-
To issue a writ or order or direction more particularly one in the nature of Certorari, calling for the records pertaining to the case No.D4/ROR/1/2003, dated 20-9-2003 from the office of respondent No.1 and quash the said order dated 20-9-2003 declaring it as illegal, arbitary and violative of Article 14 of the constitution of India and aginst the mandatory provisions of A.P.Rights in Land and Pattedar Pass Book Act 1971 and its rules 1989 and direct the respondent No. 1 to 4 not to pay any compensation to respondent No.5 herein for acquired land of the petitioner to the extent of 16 aces 25 guntas situated in Sy.No.28-B of gimma (b) village, Mandal Jainath, Adilabad District, and direct the respondent No.1 to 4 herein not to assign the said land to the third parties and direct the respondents No.1 to 4 herein to pay compensation to the petitioner herein for acquisition of the said land following mandatory provisions of L.A.Act, if respondent No.1 to 4 requires its acquisition
2. Heard Sri Chandra Sekhar, learned counsel for the writ petitioners, learned Government Pleader for Revenue for the respondents 1 to 3 and Sri M.Sudhir, learned counsel for the fourth respondent and Sri Potti Venkata Ramana Rao, learned counsel for the sixth respondent and perused the material available on record.
3. The facts pertinent and essential for disposal of the present writ petition are as follows:
According to the petitioner, her paternal grandfather late Sri Ramakrishna Pappaya owned agricultural land admeasuring Ac.16-25 gts in Sy.No.28-B of Gimma B.Village, Mandal Jainath, District Adilabad and after his death, his sole legal heir i.e., the father of the petitioner viz., late Sri Narla Ramakistu became the owner and pattedar of the land by survivorship and the said Ramakistu used to give his land on lease and the said Ramakistu died on 20.09.1985, leaving the petitioner as the sole legal heir and the petitioner became the owner of the said land. As per the petitioner herein, she is residing in Maharashtra State and taking advantage of her absence, fifth respondent herein, in whose favour the father of the petitioner leased out a part of the subject land, obtained pattrdar passbook from the third respondent/Mandal Revenue Officer by fabricating the sale deed on a plain paper saying that the petitioners father sold the entire land to the father of the fifth respondent on 23.02.1968 and on coming to know of the same, petitioner made a representation dated 16.08.2002 to the official respondents, requesting for cancellation of their pattedar pass books. Thereafter, pursuant to the orders of this Court in W.A.No.617/2003 filed by the petitioner, the first respondent passed an order vide Case No.D4/ROR/1/2003, dated 20.09.2003, rejecting the claim of the petitioner. Challenging the said order passed by the Joint Collector, first respondent herein, confirming the proceedings of the Mandal Revenue Officer, the present writ petition has been filed.
4. In the counter affidavit filed by the first respondent herein, it is stated that the official respondents herein acted strictly in accordance with the provisions of the Andhra Pradesh Rights in Land and Pattedar Pass Book Act, 1971 (for short the Act) and the Andhra Pradesh Rights in Land and Pattedar Passbooks Rules, 1989 (for short the Rules). It is further stated that the fifth respondent herein purchased the subject land by duly paying the land compensation to the fifth respondent and allotted the same to the landless poor SC beneficiaries. It is further stated in the counter that the compensation was paid to the fifth respondent herein on 09.12.2003 and the physical possession of the subject property was also handed over to the concerned beneficiaries on 18.12.2003 by holding the panchanama by the Mandal Revenue Officer, Jainad.
5. A counter affidavit is also filed by the fourth respondent stating that only after following the due procedure, the Mandal Revenue Officer, issued certificate in favour of the fifth respondent in Form XIII (B) of the Act and also issued pattedar passbooks and title deeds. It is further stated in the said counter of the fourth respondent that if the petitioner has any claim, right, title orinterest in respect of the subject land, it is open for the petitioner to proceed against the fifth respondent as per law.
6. A counter affidavit is also filed by the sixth respondent, supporting the case of the writ petitioner and pointing out the infirmities in the statutory procedure adopted by the official respondents herein.
7. Contentions of the petitioner:
1. The alleged document on which the fifth respondent is placing reliance is dated 23.02.1968 and the father of the petitioner died in the year 1985 and for nearly 20 years fifth respondent did not disclose the existence of such document, which clearly shows that the same is a forged and fabricated one.
2. The alleged sale deed on a plain paper was neither stamped nor registered and for more than 20 years no mutation in the revenue records was effected and till 2000 the name of the petitioners father was shown in the pahani patrika as pattedar and owner of the subject land.
3. Section 3 of the Act imposes statutory obligation on the authorities to prepare the record of rights and Section 3 (3) of the Act provides for the effected party to apply for rectification of entry within one week and Section 4 (1) castes obligation on the person acquiring right to intimate the Mandal Revenue Officer in writing within 90 days from the date of acquisition of such right and in the instant case no such intimation was given to the Mandal Revenue Officer within the said period, but intimated in the year 1994.
4. The Mandal Revenue Officer (Tahsildar) did not hold enquiry as per Section 5 (2) of the Act and no opportunity was given to the petitioner and the same is opposed to the principles of natural justice also.
5. The impugned orders are illegal since the Mandal Revenue Officer failed to hold any enquiry prior to issuance of pattedar passbooks in favour of the fifth respondent and the impugned action is in contravention of Act and Rules.
6. Even though, in the alleged sale deed the residence of the petitioners father is indicated as Patanbori which is just 15 KM from Gimma Village, no notice was sent to the said address. The respondent No.6 is also a cultivating tenant in respect of an extent of Ac.4 acres of land in the same survey number and purposefully the Mandal Revenue Officer did not issue any notice to him nor enquired with him before certifying the impugned alleged alienation.
The impugned action is also in contravention of Section 50 (B) of A.P (Telangana Area) Tenancy and Agricultural Lands Act, 1950 as the Mandal Revenue Officer failed to hold any enquiry.
7. The first respondent grossly erred in not summoning the Branch Manager of Yeotmal District Central Cooperative Bank Limited, Patanbori, to produce the document pertaining to the original specimen signature of the petitioners late father which shows that the signature on the alleged sale deed dated 23.02.1968 is a forged one.
8. The first respondent ought to have seen that soon after getting the pattedar passbooks, the fifth respondent made an application to the concerned authorities indicating to sell the subject land and the said action clearly shows the mala fide intention of the fifth respondent in taking meagre amount as compensation by selling the land of the petitioner to the fourth respondent. The impugned action is vitiated by fraud.
9. The impugned action, dealing with the property of a dead person who passed away in 1985 is non est in the eye of law.
10. In support of his contentions and submissions the learned counsel for the petitioner places reliance on the judgment in the case of POCHI REDDY S/O. RAM REDDY V. THE REVENUE DIVISONAL OFFICER, VIKARABAD DIVISION .
8. Contentions of the respondents 1 to 4:
Reiterating the averments in the counter affidavits, it is contended that the impugned action on the part of the official respondents is perfectly justified and is in accordance with the provisions of the Act and the Rules. It is further contended that only after holding enquiry in accordance with the Act and the Rules, certificate was issued in favour of the fifth respondent and the compensation was also paid in favour of the fifth respondent.
9. Contentions of the sixth respondent:
1. The impugned action is in the direction of defeating the rights of the sixth respondent and in defiance of Sections 38 and 39 of the A.P (Telangana Area) Tenancy and Agricultural Lands Act, 1950.
2. The Mandal Revenue Officer has no jurisdiction and Section 5-A is not applicable.
3. Sixth respondent is in possession of a part of the land in the capacity of a tenant and no notice was given to him and the entire proceedings are vitiated by fraud, as such, the impugned proceedings are not sustainable.
10. In view of the above pleadings, submissions and contentions, now the question which this Court is called upon to adjudicate is whether the impugned orders are sustainable and tenable in the eye of law.?
11. The material available on record reveals that the sum and substance of the case of the petitioner is that the impugned action is violative of the provisions of the Act and the Rules. The provisions of law which are germane and relevant for the purpose of resolving the controversy in the present writ petition are Section 5-A of the Act and the Rule 22 of the Rules.
12. Section 5-A (1) of the Act which starts with non obstante clause authorises a person in occupation by virtue of an alienation or transfer made or effected otherwise than by registered document to make an application for a certificate, declaring such transaction as valid. Section 5-A (2) of the Act obligates the Mandal Revenue Officer (Tahsildar) to hold enquiry and Section 5-A (3) of the Act imposes bar on such validation if the same is in contravention of A.P. Land Reforms (Ceiling on Agricultural Holdings) Act, 1973, the Urban Land Ceiling Act, 1976, Agricultural Holdings Act, 1973, A.P. Scheduled Areas Land Transfer Regulations, 1959 and the A.P. Assigned Lands (Prohibition of Transfers) Act, 1977. Section 5-A (4) empowers the Mandal Revenue Officer (Tahsildar) to issue a certificate to the alienee or transferee declaring that the alienation or transfer is valid. The said certificate is the evidence of such alienation or transfer as against the alinor or transferor or any person claiming interest under him. Section 5-A (5) obligates the recording authority to make entry in the passbook, on production of such certificate, that the person whose name has been recorded is the owner of the property.
13. Rule 22 (1) mandates the Mandal Revenue Officer to issue a general notification in Form IX, inviting the applications from the persons recorded as occupants in Adangal or Pahani Patrika or in record of rights framed earlier and it obligates publication of the same in the District Gazettee and by affixture in Chavidi or in any conspicuous place in the village and by affixture on the notice Board of the Grampanchayat, Primary Agricultural Cooperative Societies, School if any, by beat of Tom Tom and by affixture on the notice board of the Mandal Revenue Officer and Mandal Prajaparishad Office. Rule 22 (3) obligates the Mandal Revenue Officer to issue notice to the alienor or transferor in Form-XI.
14. In the instant writ petition, it is the grievance of the petitioner herein that the respondent authorities resorted to impugned action of validating the documents in favour of the fifth respondent by completely giving go bye to the above provisions of law. The person in whose favour the impugned orders were passed, neither responded by way of filing counter nor there is any representation on his behalf. In the counter affidavit deposed by the first respondent, it is stated that since the original pattedar Srii Narla Ramakistu expired, his family members left for Maharashtra State, the Mandal Revenue Officer published notice in Form-XII on the notice board of the concerned Grampanchayat under the certification of the sarpanch of the grampanchayat and by recording the statement of the adjacent pattedar of Sy.No.27. It is also stated by the first respondent in the counter that in the absence of any claims/objections on Form-XII, the Mandal Revenue Officer issued Form XIII (B) certificate and also issued pattedar passbooks and title deeds in the year 1995. It is also to be noted that pending revision before the Joint Collector, the petitioner herein filed an application under Order 16 Rule 6 of the Code of Civil Procedure, to issue summons to the Branch Manager of Yeotmal District Central Cooperative Bank Limited, Patanbori, for production of the documents showing the original specimen signature of her father. In the impugned order, unfortunately there is absolutely no reference to the same.
15. Right to property is a constitutional right as enshrined under Article 300-A of the Constitution of India which mandates that no citizen shall be deprived of or be divested of his or her property except in accordance with the procedure established by law. Any deviation from the same, either by the State or by the authorities would render the actions invalid. Therefore, the State and the authorities while discharging the statutory functions are required to follow and adhere to the procedure stipulated in the relevant legislation. In the event of failure to adhere to the mandatory provisions of law, such actions would be in violation of the Article 14 of the Constitution of India.
16. In the instant case, the respondent authorities in their counter affidavits are trying to justify their actions by stating that in view of the death of the original pattedar and as the legal heirs have left the village, the Mandal Revenue Officer fixed the notice in Form-XII on the notice board of the Grampanchayat. Except stating so, the counter affidavits are absolutely silent as to whether the statutory requirements as stipulated under Section 5-A of the Act and Rule 22 of the Rules were complied with or not. It is the specific case of the petitioner herein that the place where the petitioner is staying in Maharashtra is only at a distance of 15 KM from the place where the subject land is situated and the subject document also contains the address of her father. Therefore, the authorities ought to have made an attempt to enquire into and ought to have given an opportunity to the petitioner and instead they proceeded against a dead person. The counter is also silent as to whether the publication was made by all the modes as stipulated under Rule 22 of the Rules. It is also the case of the fifth respondent that no notice was issued to him and no opportunity of being heard is given to him during the course of the enquiry. The counter affidavit is also silent as to whether the authorities adhered to such mandatory requirements of law. The material available on record further clearly and manifestly shows the arbitrary, highhanded and illegal action on the part of the Mandal Revenue Officer and total failure on his part to adhere to the legislative mandate, as such, the said action is liable to be deprecated. The revisional authority also dealt with the issue in a routine, mechanical and cavalier manner without addressing this aspect. Another significant aspect which needs to be noted at this juncture is that during the pendency of the revision, an application was filed for comparison of the signatures and the revisional authority did not even chose to refer to the same. By any stretch of imagination, this cannot be the intention of the legislature in conferring quasi judicial powers on the authorities. While dealing with the property rights of the citizens, the statutory and quasi judicial authorities are required to be highly cautious and transparent in their actions, otherwise there is every threat of the people losing credence and confidence on the democratic system which would never be in the interest of the nation. Simply on the ground that the person having interest is no more and his legal heirs are residing outside the State, the constitutional and statutory safeguards provided to the persons likely to be effected, cannot be denied in a routine and mechanical manner and such actions cannot be permitted to be justified by showing flimsy and unsustainable reasons and excuses. The facts and circumstances of the present case and the mode and the manner in which the proceedings were conducted by the authorities, would drive this Court towards an irresistible conclusion that the authorities have failed to follow the mandatory provisions of the Act and the Rules.
17. For the aforesaid reasons, the writ petition is allowed. The order passed by the Joint Collector, Adilabad District, vide Case No.D4/ROR/1/2003, dated 20.09.2003 is set aside and the orders of the Mandal Revenue Officer issuing 13-B certificate in favour of the petitioner herein and the pattadar psss books and title deeds issued in favour of the fifth respondent herein are hereby set aside. However, it is open to the petitioner herein to recover the compensation in respect of the subject lands. As a sequel, miscellaneous petitions pending, if any, shall stand closed. No costs.
______________ A.V.SESHA SAI, J Date:26.03.2014