Andhra HC (Pre-Telangana)
Maltan Sangaiah And Anr. vs Patel Eswarappa on 30 June, 1997
Equivalent citations: 1997(4)ALT724, 1998 A I H C 309, (1997) 4 ANDH LT 724, (1997) 5 ANDHLD 26, (1997) 2 APLJ 494
Author: Y.V. Narayana
Bench: Y.V. Narayana
JUDGMENT Y.V. Narayana, J.
1. The petitioners herein are the legal heirs of the original inamdar in respect of the land bearing Survey No. 373 admeasuring Ac.5.17 guntas situated at Kondurg village of Kondurg Mandal. The respondent herein is the legal heir of the deceased protected tenant who filed a declaration under Section 24 7(1) of the Andhra Pradesh (Telangana Area) Abolition of Inams Act, 1955 (for short, 'the Act') before the Revenue Divisional Officer, Mahabubnagar, for grant of Occupancy Rights Certificate under the Act in respect of the above said land. Notices have been issued to all the interested parties and in response to the said notices, the petitioners filed their objections on the claim of the respondent-declarant and also filed their own declaration for grant of Occupancy Right Certificate in their favour in respect of the land in dispute. The Revenue Divisional Officer posted the matter for hearing. The case was heard on 5-8-1989 and 2-9-1989. The Petitioners as well as the respondent appeared before him and the case was posted for hearing to 7-10-1989, reposted to 26-10-1989 and 11-11-1989. It is noticed by the Revenue Divisional Officer that neither the petitioners nor their Counsel have appeared on those subsequent three days. Thereafter, the case was reserved for orders by the Revenue Divisional Officer after examining the material evidence available on record. Meanwhile, the petitioners have filed a petition to re-open the case and the Revenue Divisional Officer rejected the same holding that there was no reason to do so. Subsequently, by Order dated 8-6-1990, the Revenue Divisional Officer directed for issuance of Occupancy Rights Certificate in favour of the respondent herein under Section 24 7(1) of the Act. Aggrieved by that order, the petitioners carried the matter in appeal before the Joint Collector, Mahabubnagar, in Case No. B2/34/90. The Joint Collector, after hearing both sides, confirmed the Order of the Revenue Divisional Officer, by Order dated 14-2-1992. Hence, the present revision.
2. It is the contention of the learned Counsel for the revision petitioners that the primary authority i.e., Revenue Divisional Officer, erroneously rejected their petition to re-open the case without giving any opportunity of hearing to them and that the Collector also failed to take note of this aspect. It is further contended that the respondent was in possession of the land as on 20-7-1955 whereas they (Petitioners) are in actual possession of the land in question as on 1-11-1973, which is the crucial date for determination of the rights of the parties for grant of Occupancy Rights Certificate under the Act, and that both the Tribunals below have discarded the above factum and erroneously granted the Certificate in favour of the respondent. In support of their contention that the relevant date for grant of Occupancy Rights Certificate is 1-11-1973 and not 20-7-1955, the learned Counsel for the petitioners relied upon a decision reported in Ramendar Reddy v. District Collector, Hyderabad District, 1993 (2) An.W.R. 84 and N. Sudershan Reddy v. Kannamma, (NRC).
3. On the other hand, it is contended by the learned Counsel for the respondent i.e., the legal heir of the protected tenant that Section 4(1) (b) of the Act specifically barred issuance of Occupancy Rights Certificate in favour of the inamdar if the land in respect of which the inamdar lays claim, is in occupation of a protected tenant. It is, therefore, contended that the petitioners being the legal heirs of the original inamdar are not at all entitled for issuance of Occupancy Rights Certificates and that the Revenue Divisional Officer has, therefore, rightly passed orders granting the Certificate in favour of the respondent being the legal heir of the original protected tenant. It is lastly contended with utmost vehemance that this revision against the order passed under Section 24 24(1) of the Act, is not maintainable as the same is expressly prohibited under the provisions of Section 28 of the Act. He therefore, contended that there are no merits in the revision. 4. Since a contention as to the very maintainability of the revision is raised, I would like to deal with the aspect of maintainability first. For this purpose, it is highly useful to have a glance at the various provisions of the Act so as to understand the intent of the Legislature in bringing this enactment into force. The Act sought to achieve the following objects and thus provided for - (1) abolition of all inams other than village service inams and inams held by religious and charitable institutions; (2) full assessment being charged for such abolished inams; (3) the retention by the inamdar as well as his tenants of lands under their personal cultivation to the extent of the maximum allowed under the Hyderabad Tenancy and Agricultural Lands Act, 1950; and (4) giving adequate compensation for the lands resumed from them. In order to achieve these objects, Section 3 is framed abolishing all inams. It further provided that all rights, title and interest that vested in the inamdar/kabiz-e-kadim/permanent tenant/protected tenant/non-protected tenant in respect of the inam lands shall cease and be vested absolutely in the State free from all encumbrances. Section 3(c) stipulates that all such inam lands shall be liable to payment of land revenue. Since one of the objects of the Legislature is to retain the inam land, even after its vesting in the State, with the occupant of such inam land (who may be either inamdar or a tenent as stated supra), Section 4 is introduced. It stipulates that every inamdar is entitled, with effect from the date of vesting in the State under the Act, to be registered as an occupant of all inam lands other than--
(a) lands set apart for the village community, grazing lands, mines and quarries, tanks, tank beds and irrigation works, streams and rivers;
(b) lands in respect of which any person is entitled to be registered under Section 24s 5, 6, 7 and 8 of the Act;
(c) lands upon which have been erected buildings owned by any person other than the inamdar;
-which immediately before the date of vesting, were under his personal cultivation and which, together with any lands he separately owns and cultivates personally are equal to four and a half times the 'family holding' (Sub-section (1) of Section 4). Further, under Section 24s 5,6,7 and 8 the kabiz-e-kadim, permanent tenants, the protected tenants and the non-protected tenants of the inam lands are entitled to be registered as occupants of the inam lands which they are occupying as on the date of vesting. Accordingly, an exemption clause is inserted in Section 4, as already noticed, (i.e., Clause (b) of Sub-section (1) of Section 4), under which registration of inamdars in respect of the lands which are in actual occupation by kabiz-e-kadim/permanent . tenant/protected tenant/non-protected tenant, is prohibited. It means, preferential right is given to the tenants of inam lands over the inamdars of such inam lands for the purpose of grant of occupancy rights. Under subsection (1) of Section 9, exemption is given to private buildings that are situated in inam land and it is stipulated that such buildings will vest in the person who owned it immediately before that date. Likewise, under Sub-section (2) of Section 9, exemption is given in respect of inam lands which are put to use for non-agricultural purposes. So as to decide as to who, among the claimants, (i.e., inamdar or any one of the tenents who are recognised under the Act) is in actual occupation of an inam land, an enquiry is contemplated under Section 24 10, which is to be conducted by 'Collector'. under Section 24 30, the Collector can authorise any officer not below the rank of a Tahsildar subordinate to him to hold enquiries on his behalf under the Act. Chapter IV deals with Appeals, references and revisions. Section 23 empowers the Government to constitute Special Tribunals, presided, over by an officer of a rank not less than that of a District Judge, for the purposes of the Act and the order of the Special Tribunal will become final (under Sub-section (3). Further, under Sub-section (1) of Section 24, appeal is provided against the order of the Cdllector passed under Section 24 10 to the prescribed Authority. Similarly, reference is provided under Sub-section (2) of Section 24 to the prescribed authority in case, during the course of enquiry by the primary authority, any question arises whether any building or land falls within the scope of Section 9. It must be made clear here itself that the decision of the prescribed authority both sitting in appeal under Section 24 24(1) and in reference under Section 24 24(2) of the Act shall be final, as has been stipulated in the provision itself. It must also be made clear here that in exercise of the powers vested under Section 24 30 of the Act, the Collectors (i.e., the primary authorities under the Act) have delegated their powers under the Act upon the Revenue Divisional Officers to act as primary authorities. Further, under Rule 18 of the A.P. (Telangana Area) Abolition of Inams Rules, 1975, the prescribed authority under Section 24 24(1) is defined as the District Collector and for the purpose of Section 24(2), it is the Special Tribunal. Therefore, virtually, the Revenue Divisional Officers are exercising the powers of primary authorities and the Joint Collectors are exercising the powers of prescribed authorities under the Act. Sections 25 and 26 provides reference and appeal to the Special Tribunals if any person feels aggrieved by the apportionment of the compensation. under Section 24 27, appeal is provided to the High Court from the orders of the Primary Authority under Section 24 18(1) and that of the Special Tribunals passed under Section 24s 25 and 26 of the Act (by way of further appeal). under Section 24 28, revisionary powers are given to the High Court. It reads thus:
28. Revision: Notwithstanding anything contained in this Act or any other law for the time being in force, an application for revision shall lie to the High Court from any order passed or proceedings taken by the Collector (except those referred to in Section 24) or by the Special Tribunal under this Act on the following grounds that the original or appellate authority -
(a) exercise a jurisdiction not vested in it by law;
(b) failed to exercise a jurisdiction so vested; or
(c) acted illegally or with material irregularity in following the procedure or passing the order.
Thus, Section 28 of the Act is almost analogous to Section 115 of the C.P.C. A combined reading of Sections 24 to 28 shows that an appeal from the order of the primary authority passed under Section 24 10 lies to the prescribed authority under Section 24 24(1). Similarly, a reference, in case of any dispute under Section 24 9, lies to the prescribed authority under Section 24 24(2). In case of any dispute with regard to the apportionment of compensation that is payable under the Act, a reference to Special Tribunal under Section 24 25 and an appeal under Section 24 26 lies. under Section 24 27, provision is made by way of appeal to High Court from the orders of the primary authority under Section 24 18(1) and further appeal from the orders of the Special Tribunals passed under Section 24s 25 and 26. Further, Section 28 is very clear that a revision to the High Court will lie against all orders, except those which are passed under Section 24 24 of the Act, of the primary authorities or the Special Tribunals under the Act. There is also a clear recital in Sub-section (1) as well as in Sub-section (2) of Section 24 that orders passed by the respective authorities under that Section are final. The provision (Section 24) is very clearly worded and there is no ambiguity anywhere in it, thus on a reading of Section 24 together with Section 28, it goes to show that filing of revisions against the orders passed under Section 24 24 is barred. Under the Act, the revisionary jurisdiction of this Court is amenable to the orders other than those which are passed under Section 24 24. From the above, we can gather the intention of the Legislature. It wanted to put an end at the appellate stage itself to the litigation that emanates between the inamdar and tenant with regard to their respective rights over the inam land and that is the reason why the Legislature in its wisdom thought that the order of the prescribed authority/Special Tribunal under Section 24 24 passed in appeal must be given a finality and that therefore no further appeal nor revision is provided against the orders that are passed under Section 24 24. Therefore, in view of the clear and unambiguous bar that is provided in Section 28, I am of the opinion that revision does not lie to this Court from the order of the prescribed authority under Section 24 24 of the Act. At this stage, the learned Counsel for the petitioners cited a decision reported in G.V. Narasimha Reddy v. Syed Aktar Ali, 1988 (2) ALT 136 and strongly contended that a revision against an order Section 24 is very well maintainable in this Court. I am not inclined to agree with the reasoning that is given in the said decision. As already held by me, the intent of the Legislature is otherwise. It intends to prevent filing of revisions against the orders passed under Section 24 24. Therefore, I respectfully disagree with the decision cited by the learned Counsel. Consequently, I must hold that this C.R.P. is not maintainable and it is accordingly liable to be dismissed on this sole ground.
5. Even on merits also, I am of the view that this revision must fail. The contention of the learned Counsel for the petitioners in this direction is that the relevant date for grant of Occupancy Rights Certificate is 1-11-1973 and not 20-7-1955 under the Act and that the prescribed authority is in error in taking the date 20-7-1955 as basis for the purpose of determination of possession of the parties. In this context, reliance is placed upon the decision reported in Ramendar Reddy v. District Collector, Hyderabad District (1 supra) and N. Sudershan Reddy v. Kannamma (2 supra). It is settled that the relevant date for the purpose of grant of Occupancy Rights Certificate is 1-11-1973 and not 20-7-1955. Therefore, the party claiming occupancy rights over the inam land must be able to prove that he was in possession of the land in question as on 1-11-1973. While so, the evidence adduced on record goes to show that the original protected tenant was in possession of the land in the year 1954-55. The primary authority found that the declarant i.e., the protected tenant was in possession of the land right from 1974-75 onwards and continued to be in possession of it as on the date of his passing the order. On the other hand, it was found by the primary authority that the name of the objection petitioners (i.e., legal heir of the original inamdar) was found in the Pahani of the year 1987-88 only and that nowhere else his name was found as occupant of the land. Therefore, in the light of the evidence adduced on record, the primary authority had arrived at a reasonable presumption that it is the protected tenant who was actually in possession of the inam land right from 1954-55 onwards and continued to be in possession of the same as on the crucial date (1-11-1973) also (in view of the evidence that he was found to be in possession during the year 1974-75). No attempt was made by the petitioners to rebut the above evidence except filing an affidavit that is said to have been sworn by one Gante Veerappa who allegedly states that he was the cultivating tenant of the land in question and also expressed no objection for grant of Occupancy Rights Certificate in favour of the legal heirs of the inamdar (i.e., revision petitioners). Mere filing of an affidavit, without taking any steps to examine the person who sworn the affidavit as a witness, is not sufficient for the Court to come to a different conclusion, more so when there is positive evidence to the contra. Therefore, the alleged affidavit does not have any evidentiary value nor any sanctity in the eye of law. For all these reasons, I am of the view that the primary authority had rightly found that the protected tenant has been in occupation of the land in question right from the year of vesting i.e., 1954-55 and that he continued to be in possession from 1974-75 onwards uptill the date of his passing the order and accordingly granted Occupancy Rights Certificate in favour of the respondent herein. No doubt, the appellate authority i.e., the Joint Collector went wrong in taking the crucial date as 20-7-1955, but the said finding will not in any way affect the right that had already accrued to the protected tenant by operation of law.
6. Learned Counsel for the petitioners also laid much stress on the contention that the primary authority went wrong in not allowing the petition to re-open the case and thereby deprived them of the opportunity to cross-examine the witnesses examined by the respondent. He also contends that even the appellate authority also failed to appreciate this aspect. But, when I am of the view that the C.R.P. itself is not maintainable, I need not go into the legality or otherwise of the order under revision nor the contentions urged in the revision. I must only say that the primary authority had given sufficient time to the revision petitioners during the course of enquiry. As seen from the order, the petitioners failed to attend the enquiry before the primary authority on three occasions i.e., on 7-10-1989, 26-10-1989 and 11-11-1989. Even their Counsel was not present on those three occasions. The matter was heard on 5-8-1989 and 2-9-1989 and both parties have also advanced their respective arguments.
It was in those circumstances, the primary authority reserved the matter for orders on 11-11-1989 having reasonably assumed that there was nothing to be heard in the matter. Therefore, the primary authority dismissed the petition filed by the revision petitioners to re-open the case. I do not find any illegality and for this reason, the order of the appellate authority on this aspect also cannot be said to be a perverse one. For all these reasons, I am of the view that there are no merits in the revision.
7. The C.R.P. is accordingly dismissed. No costs.