Andhra Pradesh High Court - Amravati
P.Nirmala vs The State Of Andhra Pradesh on 3 November, 2022
Author: D.Ramesh
Bench: D.Ramesh
THE HONOURABLE SRI JUSTICE D.RAMESH
WRIT PETITION No.8744 and 3043 OF 2021
COMMON ORDER:
Since the issue involved in both the writ petitions is one and the same, these two writ petitions disposed of together with a common order.
2. Both the writ petitions are filed assailing the order passed by the Revenue Divisional Officer in Proceedings R.Dis.H/2377/2015 dated 02.12.2020 and to set aside the same and consequently, direct the respondent to mutate the names of the petitioners in the revenue records.
3. The case of the petitioners in W.P.No.8744 of 2021 is that the petitioners are absolute owners and possessors of the lands, admeasuring Ac.0.29 cents in Sy.No.141/7 and Ac.1.03 cents in Sy.No.141/1A. Their grand fathers, one late Srinivasulu Reddy, Apthiri Siva Reddy and father of the petitioners purchased the aforesaid lands from its lawful owner one Sri Konappacharyulu through a registered Sale Deeds vide Doc.Nos.1117 of 1936 and 2654 of 1963 respectively. Since then, father of the petitioners was in possession and enjoyment and also got issued Pattadhar Pass Books and title deeds in his favour vide Khata No.723 and his name was also mutated in revenue records. After his demise the petitioners succeeded the property and continuing the possession.
4. The case of the petitioner in W.P.No.3043 of 2021 is that the petitioner has purchased the land admeasuring an extent of Ac.0-17 cents 2 in S.No.141/1, Ac.0-33 cents in S.No.141/2 Ac.0-03 cents in S.No.141/3, Ac.0-13 cents in S.No. 141/4, Ac.0-30 cents in S.No. 141/5 and Ac.0-34 cents in S.No.141/6 of Durgasamudram village, Tirupathi Rural Mandal from one M.Srinivasulu Chetti under registered Sale Deed bearing Document No. 2129/2006 dt.13-9-2006. The Tahsildar has entered the name of the petitioner in adangal and issued pattadar pass book and title deed with Khata No.714 in favour of the petitioner. Since then the petitioner has been in possession and enjoyment of the above said land. While so, the unofficial respondent filed an application before the Tahsildar for issuance of pattadar pass book and title deed for the lands to an extent of Ac.1-07, 0-17, 0-17, 0-16, 0-34 and 0-29 in S.Nos.141/1A, 141/1B, 141/2A, 141/2B, 141/6 and 141/7 respectively of Durgasamudram village, Tirupathi Rural Mandal. The Tahsildar except to an extent of Ac.0-29 cents in S.No.141/7 has rejected the claim of unofficial respondent for issue of pattadar pass book and title deed vide endorsement Roc.7 (R)162/2015 dt. 21-7-2015 on the ground that the flow of title and the documents do not tally; pattadar pass books and title deeds were issued to the petitioner herein and to one A.Siva Reddy in respect of the above lands.
5. Admittedly that the unofficial respondent has filed an appeal under Section 5(5) of the A.P. Rights in Land and Pattadar Pass Book Act, 1971 in R.Dis.No.H/2377/2015 before the Revenue Divisional Officer questioning the endorsement issued by the Tahsildar denying his claim against father of writ petitioners and another writ petitioner for issuance of 3 pattadar passbooks and title deeds and to cancel the existing records in favour of petitioners for an extent of Ac.1.91 cents in Sy.No.141/A, 1B, 2A, 2B and 6 of Durgasamudram village. But the Revenue Divisional Officer, without considering the submissions made by the petitioners in the appeal erroneously passed an order dt.02-12-2020 directing the Tahsildar, Tirupati Rural to cancel the pattadar pass books and title deeds standing in the name of the father of the petitioners and one Smt. P.Nirmala another writ petitioner and directed to issue pattadar pass books in the name of unofficial respondent.
6. The unofficial respondent claimed title in respect of the subject land and other lands through one Sri S.V.K.S Srinivas and he purchased the lands from the said person under Doc.No.1823/2005. But neither the name of the unofficial respondent nor his vendor's name, are shown in the revenue records till date and he has not made any application till 2015.
7. Sri P.Gangi Rami Reddy, learned counsel for the petitioners in W.P.No.3043 of 2021 submitted that no appeal is provided under section 5(5) of A.P. Rights in Land and Pattadar Pass Book Act, 1971 [for short referred as ROR.Act] against rejecting the order refusing to issue pattadar pass book and title deed. The impugned order directing the Tahsildar to issue pattadar pass books in favour of unofficial respondents and cancel the existing passbooks and title deeds in favour of the petitioners is passed without any jurisdiction; unless and until the title of unofficial 4 respondent is decided by the competent civil court the order of the Revenue Divisional Officer is illegal.
8. It is further submitted by the learned counsel for the petitioners that it is not the case of the unofficial respondent herein, either the father of the petitioners or the petitioner played fraud or misrepresentation, there is no such allegation in the appeal. In the absence of any such pleading and evidence the order passed by the Revenue Divisional Officer is absolutely illegal, arbitrary and contrary to the provisions of ROR Act and without jurisdiction and liable to be set aside.
9. It is pertinent to mention that the father of the petitioners in W.P.No.8744 of 2021 filed appeal before the Revenue Divisional Officer questioning the issuance of Pattadar Pass Books in favour of Smt.K.Sunanda and K.Venkata Reddy in respect of Sy.No.141/1 of Durga Samudram Village, Tirupathi Rural Mandal. The Revenue Divisional Officer allowed the said appeal and directed the Tahsildar to conduct enquiry and issue pattadar pass books and title deed while cancelling the pattadar pass books issued in favour of K.Sunanda vide order in D.Dis.No.H/1375/2010 dtd.27-02-2011. And in the de nova enquiry conducted by the Tahsildar it was found that the petitioners are the absolute owners and possessors of the subject lands and thereafter issued pattadar Pass books and title deeds in favour of the father of petitioners vide proceedings in D.Dis(D) 674/2010 dt 27-08-2012. 5
10. It is further submitted that one Smt.P.Nirmala, who is the 1st respondent in the appeal filed by the unofficial respondent, assailing the order passed in the appeal directing to cancel pattadar pass books and title deed issued in her favour, she filed the W.P. No 3043 of 2021 and this Court was pleased to grant interim suspension on 09-02-2021. Despite the interim order/suspension granted by this Court, Tahsildar in collusion with unofficial respondent mutated the name of unofficial respondent in the revenue records. Since the petitioners were also parties to the appeal filed by unofficial respondent and despite stay order granted by the court against that order, mutation of records by Tahsildar is nothing but violation of the orders of this court.
11. The unofficial respondent in both the writ petitions, filed counter submitting that the writ petitioners in W.P.No.8744 of 2021 already filed revision vide No.D4/327861/2021 before the 2nd respondent-Joint Collector, assailing the same order and pending revision, they filed the present writ petition. Hence Petitioners cannot be permitted to pursue two proceedings simultaneously.
12. It is further submitted in the counter that the unofficial respondent is the absolute owner of the land admeasuring an extent of Ac.1.07 cents in Sy.No. 141/1A, Ac.0.17 cents in Sy.No.141/1B, Ac.0.17 cents in Sy.No.141/6 and c 0.29 cents in Sy.No.141/7 of Durga Samudram village lands of Tirupati Rural Mandal originally belonged to one M.S.V.K.S.Srinivasan, who inherited it from his ancestors. On 02.06.2005, 6 the unofficial respondent purchased the subject lands from its lawful owners under Regd. Sale Deed vide Doc. No.1823/2005. Since then, the unofficial respondent has been in possession and enjoyment of the land from the date of purchase. Thereafter, he made an application before the Tahsildar for grant of Pattadhar Passbook and Title deed for the subject lands to which Tahsildar issued an endorsement on 21.07.2017 stating that request for Pattadhar Pass Book and Title Deed to an extent of Ac.0.29 cents in Sy.No.141/7 is considered and for the remaining extent it was rejected stating that would be considered soon after submitting the registered documents. Aggrieved by the said endorsement 5 th/ unofficial respondent filed appeal before the Revenue Divisional Officer herein, in which writ petitioner filed counter and nowhere petitioners contested about maintainability of the appeal, on the other hand, after losing his claim, the writ petitioners now raised the question of maintainability in the writ petition.
13. It is also submitted that the writ petitioner under law is estopped from raising the plea of maintainability after contesting the matter before Revenue Divisional Officer. In the appeal filed by father of the petitioners neither the unofficial respondent nor his vendor was party to the said appeal, as such those orders are not binding on them. There is no res judicata on the authorities to decide who is entitled for mutation in R.O.R. Having invoked the appeal before the Revenue Divisional Officer against issuance of Pattadar Pass Book and title deeds and having invited the 7 orders, now the petitioners cannot contend that respondent appeal is not maintainable.
14. Learned counsel for the petitioners filed reply to the counter of unofficial respondent denying the averments made in the counter as false, baseless and devoid of merits. It is submitted in their reply that when an appeal was filed by the father of the petitioners, wherein Revenue Divisional Officer ordered to issue pattadar Passbook, after due enquiry conducted by the Tahsildar. Thus it is very clear that right from the year 1936, the petitioners were in possession and enjoyment of the said lands; the Revenue Divisional Officer having knowledge of the dispute with regard to the same land, which was adjudicated by the then Revenue Divisional Officer in the year 2011, which become final, strangely entertained the appeal and passed impugned order. Whenever Revenue Divisional Officer changes his place, the record shall not change according to their whims and fancies. Further submitted that the unofficial respondent alleged to have purchased the property in the year 2005 and he filed the appeal in the year 2017 after long lapse of 12 years, which was entertained by the 3rd respondent even though he does not have any jurisdiction.
15. The Revenue Divisional officer filed counter alleging that the unofficial respondent herein filed 6A claim under the provisions of Act, 1971 before the Tahsidlar, Tirupati Rural Mandal, through Mee Seva along with connected documents on 19.06.2015 for grant of Pattadar Pass Book 8 and Title Deed; the village accounts and the copies of the registered documents enclosed to the application, shows that the title and flow of documents tallies for an extent of Ac.0.29 cents in Sy.No.141-7 and the documents not tallies for the rest of the lands. Since the claimed lands are already stands registered in the names of one Sri Siva Reddy vide Khata No.723 for an extent of Ac.1.03 cents in Sy.No.141/1A and Smt.P.Nirmala vide Khata No.714 for an extent of AC.0.17 cents in Sy.No.141/B, 0.17 cents in Sy.No.141/2A, 0.16 cents in Sy.No.141/2B, 0.34 cents in Sy.No.141/6 of Durgasamudram village. Therefore, the application for issue of Pattadar passbook and Title Deed to an extent of Ac.0.29 cents in Sy.No.141/7 was considered. The lands to an extent of Ac.1.91 cents comprised in Sy.No.141/1A, 2A, 2B and 6 not considered and the same will be considered soon after submitting the registered documents from the title holders. To that effect an endorsement dated 21.07.2015 vide Roc.7(R)/162/2015 has been issued by the then Tahsildar, Tirupati Rural.
16. It is further submitted that aggrieved by the endorsement of the then Tahsildar, unofficial respondent filed an appeal under section 5 (5) of the A.P. Rights in land and Pattadar Pass Book Act, 1971; that, the subject land in Sy.No.141 was subdivided to 141-1 to 8, S.No.141-1 to 7 correlated to Paimoish No.272 or Old Sy. No.19 with an extent of Ac.1.24, 0.33, 0.03, 0.13, 0.30, 0.34, 0.29 cents are classified as Inam Dry and in the Column No.12 Remarks it is noted as "DHARMADAYAM" i.e., Service 9 Inam as per Fair Adangal of Durgasamudram Village of Tirupati Rural Mandal.
17. It is further submitted in his counter that the land in S.No.141-8 Ac.1.50 cents are classified as Anadeenam Punja AWD, and correlates with Paimoish No. 273, but no PaimoishNo.272 or Old Sy.No.19. Further the then Inam Deputy Tahsildar, Chandragiri granted Ryotwari Patta to Sri.S.V.K.S.Varadacharyulu, Sri. Aparthi Srinivasulu Reddy for Paimoish No.272 old Sy.No. 19 of Durga Samudram village. The unofficial respondent has purchased the land in S.No.141/1 to 141/7 which tallies with Paimoish No.272 and old S.No. 19. A registered sale deed executed in favour of Apthiri Srinivasa Reddy by Kumara Srinivasa KonappaCharyulu S/o SrinivasaChninnalacharyulu for the lands in Paimoish No. 273 before settlement operations. After Survey Settlement Operations conducted during the year 1963 the said Paimoish No 273 along with P.No. 272 correlates with S.No. 141-8 with an extentof Ac. 1.50 cents and is classified as Assessed Waste Dry i.e., Government land.
18. It is therefore clearly established that A. Srinivasulu Reddy is not having any right over the land in S.No. 141-1 to 7 which tallies with Paimoish No.19. Similarly, he cannot get any right over the land in S.No.141/8 tallies with Paimoish No 273 and P.No. 272, since the land was already classified as AWD during survey settlement operations in 1963. Further submitted that in view of the above facts, the unofficial respondent/5th respondent herein (appellant) established the right over the 10 suit land as the vendor of the appellant S.V.K.S. Srinivasan succeeded the estate of his father, has got right in the schedule mentioned lands and accordingly the unofficial respondent (appellant) is entitled to get pass book for the Survey number 141/1 to an extent of Ac.1-24 cents, 141/2 an extent Ac.0.33 cents, survey numbers 141/6 an extent of Ac.0.34 cents. In the circumstances stated above and in view of the facts of the case, the impugned order vide R.Dis. H/2377/2015 Dated: 02.12.2020 has been issued with specific affirmation directing the Tahsildar, Tirupati Rural Mandal to cancel the Pattadhar Pass-books and title deeds issued in the name of Apthiri Siva Reddy to an extent of Ac.1-07 cents in S.No. 141/1 through vide Katha No. 723, and P.Nirmala an extent of Ac.0-17 cents in Sy. No. 141/2A and an extent of Ac.0-16 cents in Sy.No. 141/2B and an extent of Ac. 0-34 cents in Sy.No.141/6 through vide Katha No. 714 and directed to issue Pattadar Pass Book to the appellant/C.Rajasekhar Reddy to an extent of Ac. 1-24 cents in Sy.No. 141/1, in an extent of Ac. 0-33 cents in Sy.No.141/2, and an extent of Ac. 0-34 cents in Sy.No.141/6 as and when the appellant files 6A claim for the above land under the provisions laid under ROR Act. Since the petitioner has filed revision under Section 9 of the Act, 1971 without utilizing the said provision, the petitioner has rushed up to this Court. Thereby prayed to dismiss the writ petition.
19. Learned counsel for petitioners has contended that the appeal under Section 5(5) of ROR Act is not maintainable against the rejection 11 order passed under section 6-A of the Act. It is contended that when an application is made with regard to Section 4(1) intimating the Tahsildar, then an order has to be passed under Section 5(3) or against the amendment made under Section 5(1) of the Act. Only against that an appeal can be filed under section 5(5) of the Act but not against the order under Section 6A. In the case on hand no order was passed under Section 5(3) of the Act, it was an endorsement given by the Tahsildar rejecting the application under Section 6A. Hence no appeal can be filed against such endorsement under section 5(5) of the Act.
20. Learned counsel for the petitioners referred the judgment of Division Bench of erstwhile High Court of Andhra Pradesh at Hyderabad in Ratnamma v. Revenue Divisional Officer1, wherein the court observed that -
" Now, we construe the scope of Section 5(5) of the Act and whether an appeal against the order under section 6-A is provided or the remedy of appeal under section 5(5) can be inferred as held in N.Balreddy's case.
From a bare reading of Section 5(5) of the Act, it can be held that against every order of recording authority either making an amendment in the record of rights or refusing to make such an amendment, an appeal to the RDO, is provided within the time stipulated in the Section. Under the Act, making an amendment in the record of rights or refusing to make amendment in record of rights is a crucial stage and a substantive decision rendered by the recording authority. Therefore, right of appeal is provided against such decisions. Likewise, from the reading of Section 5(5) of the Act, it cannot be construed that Section 5(5) provides remedy of appeal against orders under Section 6-A of the Act. Issuance of PPB/TD or making entries therein is always a step consequential to the record of rights prepared. Therefore the plain reading of Section 5(5) makes it clear that appeal against order under Section 6-A is not maintainable."1
2015 SCC OnLine Hyd 282 12
21. By referring to the above para in Ratnamma's case, learned counsel contended that appeal filed under section 5(5) of the Act is not maintainable against an order passed under section 6-A. An appeal under section 5(5) of the Act, 1971 is maintainable only against determination of rights under Section 5(1) or order passed under 5(3) of the Act but not against the order under Section 6-A.
22. Learned counsel for the petitioners also referred to the decision passed by this court in W.P.No.11746 of 2021 wherein Ratnamma's case also referred and held that -
"from the reading of the Section 5, clause five of the Act, it cannot be construed that Section 5 (5). Provides a remedy of appeal against orders under section 6-A of the act. Issuance of PPB/TD or making entries therein is always a step consequential to the record of right prepared. Therefore, the plain reading of Section 5(5) makes it clear that appeal against order under Section 6A is not maintainable."
23. The second contention of the petitioners is that once pattadar pass books are issued, they cannot be cancelled without any order from the competent civil court.
24. Learned counsel for the petitioners further reliedon the decision passed in Ghousia Begum v. BasireddyRukminamma2 wherein it was held that -
"8. According to us, when the pattadar passbook has been issued, the same cannot be cancelled automatically unless civil court found that there is no justification for issuance of the same. The presumption of correctness in issuance of pattadar pass book in favour of the person is always in the act and action of Government.2
2013 SCC OnLine AP 1252 13 But recording is not conclusive as it may be corrected and rectified by the civil court. Unless a competent civil court decides the actual title of the property in favour of any person, consequential measure for issuance or cancellation of pattadar passbook does not arise. Therefore, we uphold the judgment and order of the learned Single Judge, as we do not find any illegality in the judgment."
25. By virtue of the above referred judgments, it is contended that the revenue authorities have no jurisdiction to decide the title which involves serious dispute. If once pattadar passbooks have been issued, it cannot be cancelled until and unless a competent civil court decides. So in the present case pattadar passbooks issued in favour of father of petitioners in the year 2012 by revenue authorities vide proceedings in D.Dis(D) 674/2010 dated 27-08-2012 and cancelling them based on the order of Revenue Divisional Officer without having any order or decree from the competent civil court is not in accordance with law.
26. In Ratnamma's case this court also observed that -
"It is well settled that the right of appeal must find its source in legislative authority. The right of appeal accrues to the litigant when it is expressly provided for in the statute and axiomatic that the right of appeal is a substantive right and must be conferred by a statute. As already held, appeal is provided for against the original proceedings or substantive determination under Sections 4, 5 and 5-A of the Act. The Legislature in its wisdom and noticing the purpose of issuing PPB/TD did not provide right of appeal against mere issuance of PPB/TD under Section 6-A of the Act. Therefore, on the literal construction of Sections 3 to 6-A of the Act, it can be held that the remedy of appeal under Section 5(5) of the Act is not provided against the issuance of PPB/TD under Section 6-A of the Act. By treating the action under Sections 5 and 6-A of the Act as single or mutually dependent, in our considered view, the remedy of appeal against mere issuance of PPB/TD under Section 6-A of the Act is not available."14
27. In view of the above judgment, it is contended that when the statute does not provide any specific provision for appeal, litigant cannot choose to file an appeal under another Section.
28. On the other hand, Sri Posani Venkateswarlu, learned senior counsel appearing on behalf of the unofficial respondent more specifically contended that the order has been wrongly passed under Section 6A, wherein the respondent filed application under form 6A as per Section 4(1) of the Act, 1971. The unofficial respondent made application under Form 6A as per section 4(1) of the Act and Rule 18 of Act intimating Tahsildar regarding the right of acquisition. When the unofficial respondent filed an application under Form 6A, the official respondents considered it as application under Section 6A and rejected. If the unofficial respondent filed the application under Section 6A questioning the issuance of Pattadar Pass books, then the appeal is barred. But an appeal cannot be barred challenging the rejection order against the request for mutation of names in the records.
29. Learned counsel for the unofficial respondent vehemently argued that Section 6A is different from form 6 A. Section 6A is consequential action after affecting mutation in revenue records. Before issuing pattadar passbooks and title deeds under Section 6A authorities shall update ROR. The unofficial respondent herein never sought for cancellation of pattadar pass books or title deeds but only made an intimation through from 6 A. Against that appeal lies only under Section 5(5) of the Act. Hence, the 15 respondent has rightly filed appeal under Section 5(5) of the Act to the Revenue Divisional Officer.
30. Learned senior counsel also referred to the Ratnamma's case (cited supra) and stated that when a procedure has been given in the statute, an appeal must be provided against the grievance caused consequent to that procedure. The respondent preferred an appeal on rejection order against Form 6A application and the statue has provided appeal under section 5(5) of the Act. Hence the unofficial respondent has rightly chosen to file appeal provided under Section 5(5) of the Act.
31. Learned senior counsel contended that though issuance of pass book is a consequential step after mutation of records, they are inseparable, as held in the case of N. Bal Reddy v. Revenue Divisional Officer, Hyderabad3 wherein this Court held as under :-
"7. The Act provides for making and amendment of entries in record of rights in respect of lands on the strength of claims made by individuals from time to time. The Act was amended through Act 1 of 1989, by substituting Section 6-A of it. This Section enables the passbook holder, to have entries of alienation etc., recorded in the same. It is true that no separate provision is enacted for providing appeal against the orders passed or action taken under Section 6-A of the Act. The omission does not appear to be accidental. Issuance of pattedar passbooks or making entries therein is always a step consequential to the amendments or updating of the record of rights provided for under Section 5 of the Act. There is no question of issuance of pattedar passbooks or amending entries made therein, unless corresponding entries are made in the record of rights. While record of rights are maintained by the concerned revenue authorities, pattedar passbook is a document or instrument left with the person in whose favour it is issued. Both of them can be compared to the Balance Sheet maintained by a bank in respect of an account 3 2004 SCC OnLine AP 75 16 holder, and the passbook issued to him respectively. The entries in both of them are required to be in consonance with each other. One does not have any existence independent of the other. It has also come on record that the proceedings that were challenged before the first respondent were comprehensive in nature, in that; they dealt with amendment of entries in the record of rights and issuance of pattedar passbooks. It is a single but comprehensive step. Part of it fits into Section 5, and rest of it fits into Section 6-A of the Act. It cannot be said that part of the matter, which provides for issuance of pattadar passbooks, is separable and is an independent exercise."
32. Learned senior counsel also submitted that the appellate authority, after conducting a due enquiry and verifying the records came to a conclusion in favour of petitioners. Hence scope of filing petition under Article 226 is very less unless a question of law is raised.
33. One of the parties to the appeal availed Section 9, remedy of revision, against an order which is having common nucleus. When one party failed to invite interim order they approached the authority. Since revision is pending and as long as it is about question of facts, this court cannot go into the merits of the case.
34. In the identical issue this court in W.P.No.18106 of 2020 between D.Bavamma and Ors. Vs. the State of Andhra Pradesh and Ors., observed that -
"Section 4 of the Act obligates any person acquiring by succession, survivorship, inheritance, partition, Government patta, decree of a Court or otherwise any right as owner, pattadar, mortgagee, occupant or tenant of a land and any person acquiring MSM,J WP_18106_2020 any right as occupant of a land by any other method shall intimate in writing his acquisition of such right, to the Mandal Revenue Officer within ninety days from the date of such acquisition, and the said Mandal Revenue Officer shall give or send a written acknowledgement of the receipt of such intimation to the person making it.17
35. Even in Ratnamma's the court also observed that -
"...The remedy of appeal under Section 5(5) of the Act is provided against the decision to incorporate changes in the record of rights under Sections 4 and 5 of the Act to the Revenue Divisional Officer. The remedy of appeal at that stage fits into the scope of intimation under Section 4 of the Act and consequence of accepting the intimation."
36. It is further observed in the above judgment that -
"That apart, as per Section 4 of the ROR Act any person acquiring by succession, survivorship etc. any right as owner, pattadar/mortgagee shall intimate in writing his acquisition of such right to the Recording Authority. On receipt of such intimation, the recording authority shall determine as provided under Section 5 and shall carry out the amendment in the record of rights in accordance with such determination. Against such order passed by the recording authority either making an amendment in the record of rights or refusing to make such an amendment, an appeal shall lie under Section 5(5) of the ROR Act to the Revenue Divisional officer and the decision of the appellate authority shall be final subject to the provisions of Section 9 providing for a remedy of Revision to the Collector."
37. By virtue of the above observations made by this Hon'ble court if an application is made under Section 4(1) of the Act, through Form 6 A, an order has to be passed under Section 5(3) either accepting or rejecting the said right of acquisition. But the respondent authority has passed order under Section 6-A, which is mistake on part of the authorities. Petitioner has no remedy other than filing appeal under section 5(5) against the rejection endorsement. Hence, appeal is filed before Revenue Divisional officer under Section 5(5) of the Act.
38. In view of the above facts and law, the relevant provisions of A.P. Rights in Land and Pattadar Pass Book Act, 1971 [ROR.Act] are extracted here under:-
18
"4. Acquisition of rights to be intimated. -
(1) Any person acquiring by succession, survivorship, inheritance, partition, Government patta, decree of a Court or otherwise any right as owner, pattadar, mortgagee, occupant or tenant of a land and any person acquiring any right as occupant of a land by any other method shall intimate in writing his acquisition of such right, to the Mandal Revenue Officer within ninety days from the date of such acquisition, and the said Mandal Revenue Officer shall give or send a written acknowledgement of the receipt of such intimation to the person making it:
5. [Amendment and updating of Record of Rights]. -
(1) On receipt of intimation of the fact of acquisition of any right referred to in Section 4, the [Mandal Revenue Officer] shall determine as to whether, and if so in what manner, the record of rights may be amended in consequence therefor and shall carryout the amendment in the record of rights in accordance with such determination:
Provided that no order refusing to make an amendment in accordance with the intimation shall be passed unless the person making such intimation has been given an opportunity of making his representation in that behalf.
....
(3) The [Mandal Revenue Officer] shall, before carrying out any amendment in the record of rights under sub-section (1) or sub-section (2) issue a 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 and to any other persons whom he has reason to believe to be interested therein or affected thereby to show cause within the period specified therein as to why the amendment should not be carried out. A copy of the amendment and the notice aforesaid shall also be published in such manner as may be prescribed. The [Mandal Revenue Officer] shall consider every objection made in that behalf and after making such enquiry as may be prescribed pass such order in relation thereto as he deems fit. ..
(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 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.
6. Presumption of correctness of entries in record of rights. - Every entry in record of rights shall be presumed to be true until the contrary is proved or until it is otherwise amended in accordance with the provisions of this Act. [Any mortgage or charge created earlier to a mortgage or charge created in favour of a credit agency shall lose its priority if it is not entered in the pattadar pass book. 19 [6A. 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. [The owner-pattadar shall apply for the issue of a title deed in addition to a pass-book.] [Provided that an occupant of an inam land is also eligible to apply for the issue of a [pass book and title deed] 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 sub-section (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 [title deed and pass book] in accordance with the Record of Rights with such particulars and in such form as may be prescribed:
Provided that no such [title deed and pass book] shall be issued by the Mandal Revenue Officer unless the Record of Rights have been brought Part date.
Provided that where the person acquiring the right is a minor or otherwise disqualified, his guardian or other persons having charge of his property shall intimate the fact of such acquisition to the Mandal Revenue Officer."
39. Form 6A, which provides as follows:-
"Intimation by any person regarding Acquisition of Rights"
(See Rule 18& Section 4(1) of the Act) To .................
The Recording Authority/Tahsildar, .................. Mandal .................... District.
I, Sri/(Smt/Kum.)........................ Son of/[ daughter of/wife of] .......... resident of village.........in Mandal............................intimate to you the acquisition of the following property in the village of ............. in ....................Mandal...........................in..................... District by succession, survivorship, inheritance, partition, purchase, mortgage, gift, lease or otherwise, as owner, pattadar, mortgagee, occupant or tenant of the land. Details are furnished below:
Providing names of the District: Mandal: and Village.20
Mentioning "S.No and Sub-Division extent of Land Details of Acquisition" in tabular form."
40. Based on the above pleadings and the provision of law, learned counsel for the petitioners contended that appeal preferred by the respondents is not maintainable as per the ratio decided Division Bench of this Court in Ratnamma's case. In fact, the unofficial respondent made an application under Section 6 of the ROR Act and the same was rejected by Tahsildar vide orders dated 21.07.2017 rejecting for issuance of pattadar pass books and title deeds in favour of the respondents herein. Only remedy available to the unofficial respondent is that he should have approached the competent civil court by filing an appropriate application.
41. He further contended that as per Section 4 of the ROR, after acquiring the rights over the property as occupant, they should have made an application to the Mandal Revenue Officer within 90 days from the date of such acquisition. Consequently, the Mandal Revenue Officer, on perusal of information or intimation of the fact of acquisition of rights shall determine and carry out the record of rights in accordance with such determination.
42. As per Section 5(5) of the Act against the every order of the Mandal Revenue Officer /Tahsildar either making an amendment in the revenue records or refusing to make such an amendment shall lie to the Revenue 21 Divisional Officer or such authority within a period of 60 days from the date of communication of such order.
43. Further Section 6A deals with grant of passbooks, every owner/pattadar shall apply for issuance of passbooks to the Mandal Revenue Officer/Tahsildar on payment of such fee, on receipt of such application, the authority shall cause an enquiry, in such a manner as prescribed and shall issue a title deed and pas books in accordance with record or rights with such particulars.
44. In the instant cases, as per the application made by the unofficial respondent, the Tahsildar in the impugned order dated 21.07.2017 has rightly rejected the application for issuance of Pattadar pass books and title deeds in favour of the unofficial respondent herein.
45. On the identical issue arose before this court, the Division Bench has considered the provisions of the Act and held that the Act has not provided any remedy of appeal under Section 5(5) of the Act, as against the issuance of pattadar passbooks/title deeds under Section 6A of the Act.
46. In view of the ratio decided by the Division Bench in Ratnamma's case [cited supra], the impugned action of the 3rd respondent in entertaining the appeal is illegal and contrary. In the instant case, the unofficial respondent filed an application for grant of pattadar pass books and based on the record, which was rejected by the 4th respondent-
Tahsildar in its order dated 21.07.2017 through an endorsement. Against 22 the same, the unofficial respondent preferred an appeal before the 3rd respondent and the same was allowed vide impugned order, by entertaining the appeal under Section 5(5) of the Act, which is contrary to the provisions of the Act as well as the ratio decided by this court in the above said judgments. Hence, as observed by the Division Bench, the Revenue Divisional officer has no jurisdiction to entertain the order passed under Section 6A of the ROR Act when the same authority has passed the impugned order, hence, the writ petition is not maintainable. Accordingly, the petitioners filed the present writ petition.
47. Sri T.Balaji, learned counsel appearing on behalf of the petitioner in W.P.No.8744 of 2021 has adopted the arguments made by the other counsel Sri P.Gangi Rami Reddy and submitted that though the petitioners has filed revision before the 2nd respondent-Joint Collector, aggrieved by the orders of the 3rd respondent-Revenue Divisional Officer, dated 02.12.2020 but when there is jurisdictional aspect was involved, as per the provisions of the Act and also as per the ratio decided by this Court, they have filed the present writ petition questioning the orders passed by the 3rd respondent, dated 02.12.2020.
48. Replying to the said contentions raised by the petitioners, learned senior counsel appearing on behalf of the unofficial respondent has submitted that the petitioners have filed the present writ petitions with malafide intention. In fact, the petitioners in W.P.No.8744 of 2021 have preferred a revision before the 2nd respondent -Joint collector aggrieved 23 by the orders of the Revenue Divisional Officer dated 02.12.2022 when they have failed to get the orders from the competent authority as per the provisions of the Act, the other writ petitioner has filed the present W.P. No.3043 of 2021 to raise the jurisdictional aspect, assailing the very same orders.
49. Learned senor counsel agreed with the observations of the Division Bench of this Court in Ratnamma's Case [cited supra], he also relied on the very same judgment and submitted that the petitioners have made an application under Form 6A, but not under Section 6A and also placed the application made by the unofficial respondent under Form 6A along with their counter. Form 6A is made under Section 4(1) of the Act. Under Section 4(1) of the ROR Act, clearly stipulates that after acquiring the rights, one should have to make an application before the competent authority, on receipt of said application, the authority has to pass an order under Section 5(1) of the Act. If any order passed under Section 5(1) of the Act there is a remedy of appeals to the Revenue Divisional Officer or such authority under Section 5(5) of the Act. Hence, in the instant case, the petitioners made an application under Form-6 A which is under Section 4(1) of the Act. Though they have made an application under Form 6A, but the authorities have passed an order rejecting grant of pass Books under Section 6A.
50. It is fault of the officer but not of the unofficial respondent. When they have rightly made an application under Form 6A, if any order passed 24 under said Section, there is a remedy under Section 5(5) of the Act, to prefer an appeal to the Revenue Divisional Officer. In the very same judgment, the paragraph referred supra held that - it is well settled that the right of appeal must find its source in legislative authority. The right of appeal accrues to the litigant when it is expressly provided for in the statute and axiomatic that the right of appeal is a substantive right and must be conferred by a statute. As already held, appeal is provided for against the original proceedings or substantive determination under Sections 4, 5 and 5-A of the Act. The legislature in its wisdom and noticing the purpose of issuing PPB/TD did not provide right of appeal against mere issuance of PPB/TD under Section 6-A of the Act. Therefore, on the literal construction of Sections 3 to 6-A of the Act, it can be held that the remedy of appeal under Section 5(5) of the Act is not provided against the issuance of PPB/TD under Section 6-A of the Act. By treating the action under Sections 5 and 6-A of the Act as single or mutually dependent, in our considered view, the remedy of appeal against mere issuance of PPB/TD under Section 6-A of the Act is not available.
51. As per the above observations, the intention of the legislature in its wisdom is that appeal is a substantive right and accordingly appeal is provided against the original proceedings or substantive determination under Section 4 and 5 A of the Act. Hence, the in the instance case, the petitioners have made an application in Form 6A under Section 4(1) of the Act, the Tahsildar passed an order under Section 5 (1) of the Act, hence, rightly the unofficial respondent filed an appeal under Section 5(5) of the Act. In view of the above, the unofficial respondent has no other remedy 25 except appeal under Section 5(5) of the Act as against the orders passed by the 4th respondent-Tahsildar in the application made by the petitioners under Section 4(1) of the Act,.
52. Learned senior counsel also contended that in view of the factual disputes, the matter has to be decided based on the record. Already the petitioners have preferred a revision before the competent authority i.e., Joint Collector/2nd respondent herein and the same is pending. Hence, this court ought not to have entertained the writ petition and the same may be rejected on the ground of availing alternative relief by the petitioners.
53. Considering the submissions made by both the counsel and on perusal of the material on record, though the petitioners contended that the orders passed by the 4th respondent-Tahsildar is under Section 6A, on perusal of the application made by the unofficial respondent along with the counter, it clearly discloses that they have made an application to the 4th respondent-Tahsildar in Form 6A which is under Section 4(1) of the ROR Act.
54. In the said circumstances, as observed by the Division Bench in Ratnamma's case [referred supra], once any order is passed under Section 5(1) of the Act, the remedy is available under Section 5(5) of the Act. Accordingly, the unofficial respondent has filed an appropriate application under Section 5(5) of the Act as against the order passed under Section 4(1) of the Act in Form 6A of the Act.
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55. In view of the above observations, both the Writ Petitions are dismissed. The petitioners in W.P.No.8744 of 2021 are at liberty to pursue their statutory remedy, which is pending before the 2nd respondent-Joint Collector. It is needless to mention that the 2nd respondent may decide the revision filed by the petitioners on merits without influenced by the observations made in this order. There shall be no order as to costs.
56. Though the petitioner in W.P.No.3043 of 2021 has not preferred any revision, considering the revision field by the other parties against the very same impugned order, liberty is given to the petitioner to file a revision before the appropriate authority under the provisions of the Act.
As a sequel, miscellaneous applications pending, if any, shall also stand closed.
______________________ JUSTICE D. RAMESH Date: 03.11.2022 Pnr 27 THE HONOURABLE SRI JUSTICE D.RAMESH WRIT PETITION No.8744 and 3043 OF 2021 Date: 03-01-2022 Pnr