Andhra HC (Pre-Telangana)
Vellanki Venka Subrahmanyam vs Government Of Andhra Pradesh, Rep. By ... on 2 June, 2016
Author: A.Rajasheker Reddy
Bench: A.Rajasheker Reddy
THE HONBLE SRI JUSTICE A.RAJASHEKER REDDY
W.P. No.31578 of 2012
02-06-2016
Vellanki Venka Subrahmanyam ... PETITIONER
Government of Andhra Pradesh, Rep. by its District Collector And
others....RESPONDENTS
Counsel for the Petitioner: Sri T.V.S.Prabhakar Rao
Counsel for the Respondents: Learned Government Pleader
For Revenue for R1 to R3.
Sri S.Subba Reddy, learned
Counsel for R5 to R8
>HEAD NOTE:
? Cases referred
2011 (5) ALD 282
2 2007 (6) ALT 134 (F.B)
3 (1999) 8 Supreme Court Cases 16
4 2009 (1) ALD 248
HONOURABLE SRI JUSTICE A.RAJASHEKER REDDY
W.P. No. 31578 OF 2012
ORDER :
This writ petition is filed seeking writ of mandamus declaring the proceeding in Rc.No.979/2012/A, dated 18.09.2012 issued by the 2nd respondent cancelling the Pattadar passbooks Mo.E635861 (Correct No.638561) relating to the property to an extent of Acs.6.79 cents in Sy.No.279/1A of Nallajerla village and Mandal, West Godavari District of the petitioner as illegal, arbitrary and without jurisdiction and contrary to the provisions of the A.P. Rights in Land and Pattadar Passbooks Act, 1971 (for brevity the Act of 1971) and consequently direct the respondents 2 and 3 not to take any steps to make entries in Revenue Records including Passbooks of the petitioner.
2. It is the case of the petitioner that he has been in peaceful possession and enjoyment of the property of an extent of Acs.6.79 cents in R.s.No.279/1A of Nallajerla Village & Mandal of West Godavari District, having obtained the same under Will dated 11.01.1992 executed in favour of his father by Vellanki Kondala Rao, who was original owner of the said property. Said Vellanki Kondala Rao also executed the Will bequeathing an extent of Acs.4.35 Cts in R.S.No.445/3 & 4 of Nallajerla village in favour of his wife Lakshmi Kanthamma i.e., 4th respondent herein with absolute rights. After the death of the father of the petitioner on 24.02.2005, he became the absolute owner and possessor of the property to an extent of Acs.6.79 cents in R.s.No.279/1A of Nallajerla village as per the Will dated 11.01.1992. He approached the revenue authorities for mutating his name in the revenue records with the necessary documents. The 3rd respondent, after due verification of the revenue records, had issued pattadar pass book and title deed in favour of the petitioner on 06.04.2005 under Book No.E638561 under A.P.Rights in Land and Pattadar Pass Books Act, 1971, which was signed by the Revenue Divisional Officer, Eluru. While so, the 2nd respondent issued notice dated 21.08.2012 to the petitioner calling upon him to produce the record relating to the said land stating that a complaint has been received from the 4th respondent. Petitioner submitted detailed reply on 29.08.2012 by enclosing all the relevant documents, but the enquiry was postponed. The petitioner has questioned the very jurisdiction of the 2nd respondent. It was also brought to the notice of the 2nd respondent that interim injunction was obtained in a suit OS No.230/2012 filed by the petitioner on the file of the Principal Junior Civil Judge, Tadepalligudem, West Godavari District restraining the 4th respondent and others. The 2nd respondent without reference to the reply issued by the petitioner to the notice and also the legal notice dated 15.09.2012, passed the impugned order dated 18.09.2012 cancelling the pattadar passbook issued in favour of the petitioner. Aggrieved by the same, the present writ petition is filed.
3. Counter affidavit is filed by the 3rd respondent-Tahsildar, Nallajerla Mandal, denying the averments in the affidavit filed in support of the writ petition stating that the 4th respondent filed complaint dated 30.07.2012 before the 1st and 2nd respondents stating that she is having an extent of Acs 6.79 cents in R.s.No.279/1A, Ac.1.51 cts in R.S.No.448/3 and Acs.2.13 cts in R.S.No.448/4 total admeasuring Acs.10.43 cents at Nallajerla village and Mandal through her late husband as an ancestral property. However, pattadar pass book and title deeds were issued to her only for an extent of Acs.6.79 cents by the then M.R.O and R.D.O during the year 1993 with Patta No.660. That the petitioner, who is son-in-law of her brother in law, cheated her and got recorded the land in dispute in his favour, by misleading the officials and finally requested to change the revenue records in her favour. Upon enquiry by the 2nd respondent, it is revealed that the 4th respondent has acquired the land for an extent of Acs.10.43 cents of Nallajerla village and Mandal through her husband as an ancestral property and pattadar passbook and title was issued in her favour to an extent of Acs.6.79 cents out of Acs.10.43 cents by the then RDO and M.R.O, Eluru during the year 1993 with patta No.660. The 4th respondent had gifted 0.03 cents out of Acs.6.79 cents to Smt. Gangabhavani Joint Borewell Association, Nallajerla through a registered gift deed in document No. 854/1994 dated 02.06.1994. When the 4th respondent proposed to sell the remaining land to others, the petitioner objected for the same. Thereafter, the 4th respondent filed complaint petition before the 1st and 2nd respondents on 30.07.2012 and subsequently sold land to prospective purchasers on 16.08.2012. When the 2nd respondent issued notice to both parties i.e., petitioner and 4th respondent in Roc.No.2979/2012 dated 21.08.2012, petitioner attended enquiry and produced a Xerox copy of unregistered will dated 11.01.1992 and pattadar passbook issued in his favour and promised to submit the original record on 15.09.2012. However, petitioner has not attended enquiry on the said date. The Village Revenue Officer, Nallajerla deposed that as per the ROR-1B Register, the 4th respondent was issued pattadar passbook in respect of the land in dispute with patta No.660 and thereafter again issued Pattadar Passbook to the same land with patta No.1058 in favour of the petitioner, without cancelling the previous pattadar passbook which was issued in favour of the 4th respondent. Though petitioner was asked to produce the original Will, the petitioner had not produced the same and that the signatures of Sri Vellanki Kondala Rao i.e., the husband of the 4th respondent are also not tallying in the alleged unregistered Will produced by the petitioner with that of the original signature. After enquiry, it is proved that the 4th respondent is rightful owner of the land in question and basing on the same, the 2nd respondent passed an order cancelling the entries recorded in 1B register in favour of the petitioner regarding the lands in question for an extent of Acs.6.79 cents in R.s.No.279/1A of Nallajerla Village and Mandal and directed the 3rd respondent to delete the entry from the 1B Register in proceedings Roc.No.979/2012(A), dated 18.09.2012. It is stated that as per Rule 13(2) of the A.P. Rights in Land and Pattadar Pass Books Rules, 1989, the 2nd respondent is competent to suo motu test, revise the entries in the concerned record of rights and also to entertain the complaint as appeal. Hence, sought for dismissal of the writ petition.
4. Heard Sri T.V.S.Prabhakar Rao, learned counsel for the petitioner, learned Government Pleader for Revenue appearing for the respondents 1 to 3, Sri S.Subba Reddy, learned counsel appearing for the respondents 5 to 8.
5. During the pendency of the writ petition, the 4th respondent passed away and respondents 5 to 8 were brought on record, as they have purchased lands from the 4th respondents.
6. Learned counsel for the petitioner submits that the 2nd respondent straight away passed impugned orders on the application of the 4th respondent without there being any appeal. In the absence of any application under Section 3(3) of the Act by the 4th respondent before the recording authority and without there being any order either revising or rejecting, simple representation made before RDO, who is appellate authority is not maintainable. As such, the impugned order passed by the 2nd respondent is without jurisdiction. In support of his contention, he relied on the judgment reported in Gopathi Manikyam and others v. Joint Collector, Medak District at Sangareddy and others .
7. Learned Assistant Government Pleader for Revenue submits that after death of the husband of 4th respondent, the 4th respondent was issued pattadar passbook and title deed in respect of the subject land. Without cancelling the same, the petitioner was issued pattadar passbook, without any basis. Basing on the complaint made by the 4th respondent against the petitioner, notices were issued to both petitioner and 4th respondent. As the petitioner did not produce original Will dated 11.01.1992, the present impugned order is passed by exercising power under rule 13(2) of the A.P. Rights in Land and Pattadar Passbooks Rules, 1989.
8. On the other hand, learned counsel for the respondents 5 to 8 submits that after the death of 4th respondents husband in the year 1992, the name of the 4th respondent has been recorded in all revenue records in respect of the subject land in the writ petition and pattadar passbooks were also issued in favour of the 4th respondent. Without issuing any notice to the 4th respondent, the name of the petitioner was entered in the revenue records and pattadar passbooks were also issued in favour of the petitioner, as such, she made complaint before the 2nd respondent. In the enquiry, it is revealed that the name of the petitioner was entered without any basis and even in the enquiry, petitioner failed to produce the original Will, though sufficient time is granted, as such, the impugned order deleting the name of the petitioner in respect of Acs.6.79 cents in Sy.No.279/1A of Nallajerla Village & Mandal is not valid. He also submits that having participated in the enquiry, now petitioner cannot contend that the 2nd respondent has no jurisdiction to pass the impugned order. He also submits that since the petitioner has not produced the original Will, entering his name in the revenue records is a nullity. If the impugned order is set aside, an illegal order, which is passed without notice to the 4th respondent, will survive. He further submit that this Court will not interfere with the impugned order, as the same amounts to reviving of other illegal order passed in favour of the petitioner. In support of his contention, he relied on the judgments reported in Chinnam Pandurangam v. Mandal Revenue Officer, Serilingampally Mandal, Ranga Reddy District & others , Maharaja Chintamani Saran Nath Shahdeo v. State of Bihar and others and Thripuravaram Krishna Reddy v. Joint Collector, Cuddapah and others .
9. In the instant case on hand, it is to be seen that admittedly, the subject land in the writ petition i.e.,Acs.6.79 cents in R.S.No.279/1A of Nallajerla Village & Mandal of West Godavari District, originally owned by the husband of 4th respondent i.e., Vellanki Kondala Rao. Even according to the counter affidavit filed by the 3rd respondent-Tahsildar, Nallajerla Revenue Mandal, the pattadar pass book No.660 and title deeds were issued to the 4th respondent during the year 1993 after death of her husband by the then M.R.O and R.D.O. It is also stated in the counter affidavit that the 4th respondent had gifted 0.03 cents out of Acs.6.79 cents to Smt.Gangabhavani Jonit Borewell Association, Nallajerla through a registered gift deed vide document No.854/1994 dated 02.06.1994. When the 4th respondent proposed to sell the remaining land to others, the petitioner objected for the same, as such, she filed complaint on 30.07.2012 before the 1st and 2nd respondents and subsequently sold the lands to the respondents 5 to 7 on 16.08.2012. Basing on the complaint made by the 4th respondent, the 2nd respondent issued notice to the petitioner as well as 4th respondent. Petitioner filed Xerox copy of unregistered Will Deed dated 11.01.1992 and promised to submit the original record, he never attended enquiry thereafter. It is also stated in the counter affidavit that without cancelling the pattadar pass books and title deeds issued in favour of the 4th respondent, pattadar pass book No.1058 was issued in favour of the petitioner. As such, the 2nd respondent cancelled the entries recorded in the name of the petitioner in 1B register vide proceedings No.979/2012(A), dated 18.09.2012. It is pertinent to note that the petitioner has not even produced the original Will, alleged to have been executed in favour of his father by the husband of 4th respondent. The contents of the counter affidavit filed by the Tahsildar-3rd respondent were not even contradicted by filing any reply, which goes to show that the petitioners name was entered in the revenue records without any basis. It is also categorically stated in the counter affidavit that after the death of her husband, the name of the 4th respondent was recorded in the revenue records in respect of the subject land in the writ petition.
10. As contended by the learned counsel for the respondents 5 to 7 that no notice was issued to the 4th respondent while granting pattadar pass book and title deed to the petitioner, though her name is recorded in the revenue records, which is violation of principles of natural justice and same is mandated as per the judgment in Chinnam Pandurangam v. Mandal Revenue Officer, Serilingampally Mandal, Ranga Reddy District & others (supra), wherein the Honble Full Bench of this Court held as follows:
10. The issue deserves to be considered from another angle. If an application is made for amendment of the existing entries in the Record of Rights, the person whose name already exists in such record is entitled to contest the proposed amendment. He can do so only if a notice regarding the proposed amendment is given to him by the recording authority. An order passed against a person whose name already exist in the Record of Rights without giving him notice of the proposed amendment and effective opportunity of hearing is liable to be declared nullity on the ground of violation of the rule of audi alteram partem, which, as mentioned above, represent the most important facet of the rules of natural justice. It need no emphasis that the rules of natural justice are applicable in all judicial and quasi-judicial proceedings. The rule of hearing is also applicable in purely administrative proceedings and actions where any public authority passes an order affecting the rights of any individual. The applicability of the rules of natural justice to purely administrative actions has been recognized by the Supreme Court in State of Orissa v. Dr. (Miss) Binapani Dei and has been reiterated in various judgments including those of A.K. Kraipak v.
Union of India , Maneka Gandhi v. Union of India ., S.L. Kapoor v. Jagmohan , Swadeshi Cotton Mills v. Union of India and Olga Tellis v. Bombay Municipal Corporation .
11. From the above discussion, it is clear that the requirement of issuing 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 is independent of the requirement of publication of notice in accordance with the second part of Section 5(3) read with Rule 19 and 5(2) of the Rules. The language of Form-VIII in which the notice is required to be published cannot control the interpretation of the substantive provision contained in Section 5(3), which, as mentioned above, casts a duty on the recording authority to issue notice in writing to all persons whose names are entered in the Record of Rights and who are interested in or affected by the proposed amendment.
In view of the above decision, as per Section 5(3) of the Act, before carrying out any amendment in the Record of Rights, the Mandal Revenue officer ought to have issued notice in writing to the 4th respondent, whose name was entered in the revenue records, or who has interest in it or affected by the amendment, whom he has reason to believe to be interested therein or affected thereby to show cause against the proposed amendment. Admittedly, no notice was issued to the 4th respondent before entering the name of the petitioner in the revenue records in the place of 4th respondent in respect of the subject land in the writ petition, while issuing pattadar pass book in favour of the petitioner, which is violation of principles of natural justice.
11. In Thripuravaram Krishna Reddy v. Joint Collector, Cuddapah and others (supra), learned Single Judge of this Court held as follows:
5. Admittedly, neither the so-called petition is in the form of appeal affixed with the required stamp nor was filed in time.
No application for condonation of delay was claimed to be filed by respondent No.4 nor respondent No.2 passed any order condoning the delay before entertaining and adjudicating the appeal on merits. Respondent No.2 ought not to have, therefore, entertained the petition of respondent No.4 and treated it as an appeal. If respondent No.4 was aggrieved by the issuance of pattadar passbooks and title deeds, he should have filed a statutory appeal under Section 5(5) of the Act, within the time limit or a civil suit under Section 8(2) of the Act before the competent Civil Court. As he did not take recourse to either of the two remedies, it is beyond the jurisdiction of respondent No.2 to entertain the petition filed by respondent No.4, because he has no power akin to the power vested in respondent No.1 under Section 9 of the Act.
With due respect, I am in agreement with the view taken by learned Single Judge. But in the instant case on hand, at the first instance, 4th respondent was not put on notice while amending the revenue records on the application being filed by the petitioner. Without any notice and without any opportunity of hearing to the 4th respondent, the name of the petitioner was entered in the revenue records in the place of the 4th respondent and that too, even without cancelling the pattadar pass book and title deed granted in favour of the 4th respondent.
12. No doubt, basing on the application, though not in the form of appeal, filed by the 4th respondent, impugned order was passed by the 2nd respondent. If the impugned order is set aside, the illegal order, recording the name of petitioner and granting of pattadar pass book and title deeds in respect of subject land in the writ petition, which is passed without notice to the 4th respondent will survive, which will amount to reviving illegal order passed in favour of the petitioner, as such, this Court is not inclined to interfere with the impugned order by exercising jurisdiction under Article 226 of the Constitution of India. Honble Supreme Court in Maharaja Chintamani Saran Nath Shahdeo v. State of Bihar and others (supra), held as follows:
10. The first point urged on behalf of the appellant was that the Act did not empower the Member of Board of Revenue to exercise any power and, therefore, the order of the Member of Board of Revenue directing the subordinate authority to take action for recovery of the additional compensation which was paid @ ten times was illegal. The learned counsel for the respondent urged that under Bihar Practice and Procedural Manual, Member of Board of Revenue had power of Superintendence, direction and control in such matters.
11. But in the Act, authorities and their powers have been specified and we do not find any provision which vests power on the Board of Revenue, so we have to proceed on the assumption that the Board of Revenue has no power.
12. Therefore, the question is whether the order of the Member of Board of Revenue should be quashed on this ground. If the order is set aside, result would be that the notice directing the appellant to refund the additional amount of compensation assessed at ten times of net income would have to be quashed In other words, the earlier re-assessment of compensation made by giving ten times of net income would revive. If under the law the appellant is not entitled to get compensation more than three times of the net income it would amount to restoring an illegal order.
13. In Gadde Venkateswara Rao v. Government of Andhra Pradesh and Others, AIR (1966) SC 828 = [1966] 2 SCR 172 this Court considered the action of the State Government under Andhra Pradesh Panchayats Samithis and Zilla Parishads Act, 1959 and came to the conclusion that the Government had no power under Section 72 of the Act to review an order made under Section 62of the Act but refused to interfere with the orders of the High Court on the ground that if High Court had quashed the said order, it would have restored an illegal order and, therefore, the High Court rightly refused to exercise its extraordinary jurisdictional power.
14. In Mohammad Swalleh and Others v. IIIrd Addl. District Judge, Meerut and Another, AIR (1988) SC 94 = [1988] 1 SCR 841, similar view was also expressed by this Court. In that case the order passed by the Prescribed Authority under U.P. (Temporary) Control of Rent and Eviction Act, 1947 was set aside by the District Judge in appeal though the appeal did not lie. The High Court came to the finding that the order of the Prescribed Authority was invalid and improper but the District Judge had no power to sit in appeal. The High Court did not interfere with the Orders of the District Judge. The order of the High Court was affirmed by this Court on the ground that though technically the appellant had a point regarding the jurisdiction of the District Judge but the order of the Prescribed Authority itself being bad, refusal of the High Court to exercise powers under Article 226 no exception can be taken.
38. For what has been stated above we hold that the order of the learned Member of Board of Revenue directing the action to be taken for refund of the excess compensation was valid and proper though he had no jurisdiction to pass the order. In the event it is set aside it would amount to reviving an invalid order of payment of excess compensation to the appellant.
In view of the above settled proposition of law, if the impugned order passed by the 2nd respondent is set aside on the ground that the 2nd respondent has no jurisdiction to entertain the application filed by the 4th respondent, treating the same as an appeal, by relying on the judgment in Thripuravaram Krishna Reddy v. Joint Collector, Cuddapah and others (supra) relied on by the learned counsel for the petitioner, it amounts to revival of illegal order granted in favour of the petitioner granting pattadar pass book and title deed. The 4th respondent filed an application, though in strict sense, not an appeal before the 2nd respondent, the 2nd respondent has no jurisdiction, yet this Court is not inclined to interfere with the impugned order, which will amount to revival of illegal order granted in favour of the petitioner, by exercising power of judicial review under Article 226 of the Constitution of India. The purpose of conferring power on the High Courts under Article 226 of Constitution of India is to advance cause of justice and not to thwart it, even where justice is the bye-product of an erroneous interpretation of law. High Court ought not to wipe out such justice in the name of correcting the error of law. (see Roshan Deen v. Preeti Lal [2002 (1) SCC 100] In view of above facts and circumstances, the writ petition is liable to be dismissed.
Accordingly, this writ petition is dismissed. There shall be no order as to costs. As a sequel thereto, miscellaneous petitions, if any, pending in this writ petition, shall stand dismissed.
_______________________ A.RAJASHEKER REDDY, J 02.06.2016.