Andhra HC (Pre-Telangana)
Pydi Hariya And Another vs Revenue Divisional Officer, Kandukuru ... on 27 April, 2001
Equivalent citations: 2001(4)ALD73, 2001(4)ALT110
Author: S.B. Sinha
Bench: S.B. Sinha
ORDER
S.B. Sinha, C. J.
1. The writ petitioners are the appellants in this writ appeal. They filed the writ petition questioning inter alia the proceedings dated 3-6-2000 on the file of the Revenue Divisional Officer, Kandukuru whereby and whereunder the application filed by the appellants for grant of pattadarpass books under the provisions of A.P. Rights in Land and Pattadar Pass Books Act, 1971 (for short 'the Act') was dismissed.
2. One Smt. Nallamotu Subbamma W/o. Nallamotu Subba Naidu was the absolute owner and possessor of land admeasuring Ac.34.86 cents in S.Nos.183/1, 186, 198/3, 199/1, 247, 3261, 297/2 and 298/1 of Chintlapalem village, Jarugumilli Mandal, Prakasham District. The appellants herein who are the sons of the sister of the said Subbamma claimed that she had executed a Will on 24-4-1988 bequeathing all the said lands in their favour and after her death they became the absolute owners of the property. They applied for grant of pattadar pass books and title deeds as per Section 4 of the Act. The 2nd respondent issued pattadar pass books showing the petitioners as the owners and in possession of an extent of Ac. 17.61 cents and Ac. 17.59 cents respectively. As title deeds were not issued, they filed WP No.20366 of 1999 for a direction to the respondents to issue title deeds to them in respect of the property in question which was disposed of by this Court on 30-9-1999 directing the respondents to pass necessary orders on the representation dated 17-8-1999 for issuance of title deeds. Pursuant to the said directions, 2nd respondent has passed the impugned order. The appellants contend that by reason of the decree and judgment passed by the Sub-Court, they are entitled to be issued title deeds.
The learned single Judge dismissed the writ petition on the ground that the appellants herein are not entitled to grant of title deeds unless the enquiry before the Land Reforms Tribunal is concluded.
3. The learned Counsel appearing on behalf of the appellants submitted that once pattadar pass books had been issued under the Act and the rules framed thereunder, the title deeds were required to be issued as a consequence thereof. The learned Counsel would contend that having regard to the fact that the Will was not required to be registered, the appellants herein derive their title-in-interest under the said Will. In any event, the learned Counsel contends that, as a decree had been passed by a competent civil Court in favour of the appellants, the revenue authorities could not sit in appeal there over and such question of title cannot be said to be res Integra. Our attention in this regard has been drawn to the statements made in the counter-affidavit to the effect that the factual matrix of the matter stand admitted.
4. The learned Government Pleader Sri Rajagopal Rao would, however, submit that pattadar pass books had mistakenly been issued without reference to the proceedings pending before the learned Land Reforms Tribunal. Learned Counsel would submit that the decree being an exparte one, the same was not binding upon the State particularly in view of the fact that the A.P. Land Reforms (Ceiling on Agricultural Holdings) Act, 1973 contains a non-obstante clause.
5. The A.P. Rights in land and Pattadar Pass Books Act, 1971, was enacted to consolidate and amend the law relating to the Records of Rights in Land and Pattadar Pass Books in the State of Andhra Pradesh. In terms of the provisions of the said Act, the record of rights in respect of the lands are required to be prepared and updated. Section 3-A contains a non-abstante clause. Section 4 says that acquisition of rights are to be intimated. Section 4(1) reads as under:
Any person acquiring by succession, survivorship, inheritance, partition, purchase, mortgage, gift, lease or otherwise, any right as owner, pattadar, mortgagee, occupant; or tenant of the land, shall intimate in writing his acquisition of such right to the recording authority within ninety days from the date of such acquisition and the said recording authority shall give or send a written acknowledgment of the receipt of such intimation to the person making it:
Provided that where the person acquiring the right is a minor otherwise disqualified, his guardian or other person having charge of his property shall intimate the fact of such acquisition to the recording authority;
Provided further that any person acquiring a right by virtue of a registered document shall be exempt from the obligation to send the intimation to the recording authority. Section 5 provides for amendment and updating of record of rights.
6. Section 5-A which is a transitional provision provides for regularisation of certain alienations or transfers of lands, Section 6 provides for presumption of correctness of entries in record of rights. Section 5-A reads as follows:
Regularisation of certain alienations or other transfers of lands:--(1) Notwithstanding anything contained in this Act, the transfer of Property Act, 1882, the Registration Act, 1908 or any other law for the time being in force, where a person is an occupant by virtue of an alienation or transfer made or effected otherwise than by registered document, the alienee or the transferee may, within such period as may be prescribed, apply to the Mandal Revenue Officer for a certificate declaring that such alienation or transfer is valid.
(2) On receipt of such application, the Mandal Revenue Officer shall after making such enquiry as may be prescribed require the alienee or the transferee to deposit in the Office of the Mandal Revenue Officer an amount equal to the registration fees and the stamp duty that would have been payable had the alienation or transfer been effected by a registered document in accordance with the provisions of the Registration Act, 1908 as fixed by the registering officer on a reference made to him by the Mandal Revenue Officer on the basis of the value of the property arrived at in such manner as may be prescribed:
Provided that the Mandal Revenue Officer shall not require the alienee or the transferee to deposit the amount under this sub-section unless he is satisfied that the alienation or transfer is not in contravention of the provisions of the Andhra Pradesh Land Reforms (Ceiling on Agricultural Holdings) Act, 1973, the Urban Land (Ceiling and Regulation) Act, 1976, the Andhra Pradesh Scheduled Areas Land Transfer Regulation, 1959 and the Andhra Pradesh Assigned Lands (Prohibition of Transfers) Act, 1977.
7. Section 6-A which provides for recording of entries in pass books and issuance of pass books reads thus:
6-A: Pass Book holder to have entries of alienation etc., recorded in Pass Book:--(1) Every owner, pattadar, mortgagee or tenant of any land shall apply for the issue of a pass book to the Mandal Revenue Officer on payment of such fee as may be prescribed:
Provided that an occupant of an inam land is also eligible to apply for the issue of a pass book as an occupant;
Provided further that where no application is made under this sub-section the Mandal Revenue Officer may suo motu issue a pass book after following the procedure prescribed under subsection (2) and collect the fee prescribed therefor.
(2) On making such application, the Mandal Revenue Officer shall cause an enquiry to be made in such manner as may be prescribed and shall issue a Pass Book in accordance with the Record of Rights with such particulars and in such form as may be prescribed :
Provided that no such Pass Book shall be issued by the Mandal Revenue Officer unless the Record of Rights have been brought upto date.
(3) The entries in the Pass Book may be corrected either suo motu or on an application made to the Mandal Revenue Officer in the manner prescribed.
(4) The Government may prescribe by rules the manner in which the Pass Books may be issued to all owners, pattedar, mortgagees or tenants and to such other person in accordance with the record of rights.
(5) The Pass Book issued under subsection (1) and duly certified by the Mandal Revenue Officer or any other authority as may be prescribed shall be the record of the title in respect of an owner and the rights and interests in land in respect of others. Every entry in the Pass Book shall be presumed to be correct and true unless the contrary is proved.
8. Section 11 of the Act provides for rule making power. In terms of the provisions of the said Act, rules known as A.P. Rights in Land and Pattadar Pass Books Rules, 1989 (for short 'the Rules') have been framed. Rule 4 prescribes the procedure for preparation of Record of Rights and updating of the records of rights. Rule 5 provides the procedure to be adopted by the Recording authority after issuance of notification by the Commissioner to make the Record of Rights update in the matter. Rule 6 provides for making an enquiry in the village. Rule 8 enables the recording authority to summon the attendance of any person for purpose of examining him in connection with the enquiry. The recording authority may require any person to produce any document believed to be in his possession, enter upon, inspect and measure or cause to be measured any land. Rule 9 provides for passing of the order by the recording authority. The said rule to the extent relevant for the purpose of this case reads as follows:
9(1)(a): After due completion of enquiry, referred to in rule of the recording authority shall pass orders in respect of-
(i) all cases requiring change of registry necessitated by the death of registered holder i.e., succession by heirship, if succession is not disputed. With regard to the entry of the names of the heirs, the names of all the heirs entitled to shares in the property should be registered.
(ii) all cases requiring change of registry necessitated by sale, gift etc., through registered documents, if there is no dispute. In all cases of absolute transfer of title, the Registry of a holding should be altered to correspond with the transfer of its ownership. Where the registered holder is not a party to a registered transaction, the registered holder should be enquired. The parties involved in a transfer should be connected by a complete chair of registered documents. Unregistered documents are not admissible.
as evidence in this enquiry to prove the ownership or title of their property. Where the chain is not complete, no transfer of registry shall be done. Such cases shall be referred to the Mandal Revenue Officer for disposal after confirmation of the Record of Rights for the village.
(iii) xxxxx
(iv) No order shall be passed for the change of registry or splitting of joint pattas, unless the recording authority is satisfied that the change of Registry or splitting of joint patta is not in contravention of any of the provisions of-
(1)The A.P. Land Reforms (Ceiling on Agricultural Holdings) Act, 1973.
(2) The Urban Land (Ceiling and Regulation) Act, 1976.
(3) The A.P. Assigned Land (Prohibition of Transfers) Act, 1977.
(4) The A.P. (AA) Inams (Abolition and Conversion into Ryotwari) Act.
(5) The A.P. (TA) Abolition of Inams Act, 1955.
(6) The A.P. Scheduled Areas Land Transfer Regulations, 1959, Regulation 1 of 1959.
(7) The A.P. Mahals (Abolition and Conversion into Ryotwari) Regulation 1969.
(8) The A.P. Muttas (Abolition and Conversion into Ryotwari) Regulation, 1969.
(9) The Andhra Pradesh Scheduled Areas Ryotwari Settlement Regulation, 1970.
X X X X X
9. The pre-requisite for exercising the power under Rule 9 for change of Registry js that the recording authority shall satisfy that the change of registry is not in contravention of the provisions of A.P. Land Reforms (Ceiling on Agricultural Holdings) Act, 1973 (Act 1 of 1973) and several other acts stated hereinabove.
It is not in dispute that a (is is pending before the Land Reforms Tribunal as regards declarations made by Saibaba Naidu and Hari Prasada Rao, the grand sons of late Subbamma.
10. The appellants herein claims their right to title and interest under a Will. What would be the extent of their title in relation to the lands in question can only be determined and adjudicated upon completion of the proceedings pending before the Tribunal. It is admitted that objections to the effect that the said lands should not be included in the holdings of the declarants on the ground that they became the owners of the property after the death of Subbamma is pending consideration before the appropriate authority. Such a question neither could arise for consideration before the Mandal Revenue Officer nor could be adjudicated by him.
11. The question as to what would be the surplus land available at the hands of the appellants having regard to the extent of lands which are the subject-matter of will as also the lands held and possessed by the appellants independent thereof is pending consideration before the Land Reforms Tribunal.
It, therefore, cannot be said that the action of the respondents herein in not issuing the title deeds is so irrational so that this Court exercising the extraordinary writ jurisdiction under Article 226 of the Constitution can interfere with the matter. It is now a well settled principle of law that a writ of certiorari can be issued only when the appellants have acted wholly without jurisdiction.
12. It is also trite that the writ Court may refuse to exercise its discretionary jurisdiction if it is of the opinion that the issuing of a direction would render the order an illegal one. Further, in view of the non-obstante clause provided under Section 22 of the A.P. Land Reforms Act, there cannot be any doubt whatsoever that Pattadar Pass Books is subject to the provisions of Andhra Pradesh Land Reforms (Ceiling on Agricultural) Holdings Act, 1973.
13. The Record of Rights does not confer any right. A Pass Book is merely issued for the purposes mentioned therein.
14. But, if in relation to some lands, a lis is pending as to whether the same or a part thereof would vest in the State pursuant to the declaration made by the competent authority as surplus land, no title deed can be directed to be issued nor can it be decided in a situation of this nature that the same should be issued consequent upon the issuance of the Pattadar Pass Book.
15. The transfer or alienation of the land brings within its purview bequeath by will. In any event, the action of the respondents in refusing to handover the title deeds to the appellants herein cannot be said to be a so irrational so that this Court exercising the writ jurisdiction under Article 226 of the Constitution of India can issue a writ of mandamus directing the respondents to issue title deeds to the appellant.
16. For the reasons aforementioned, we find no merit in this appeal which is accordingly dismissed. There shall be no order as to costs.