IN THE HIGH COURT OF JUDICATURE OF ANDHRA PRADESH
AT HYDERABAD
* THE HON’BLE SRI JUSTICE B.SESHASAYANA REDDY
+Writ Petition Nos.24352 of 2009; 2596 and 13077 of 2010
% 30-10-2012
W.P.No.24352 of 2009
Between:
# Erroju Brahmachary S/o.Ramachandram, aged 46 years, Occu:Employee, R/o.Mancherial, Adilabad District & Ors.
…Petitioners
VS.
$ 1.The Revenue Divisional Officer, Mancherial, Adilabad District & Ors.
..Respondents
! COUNSEL FOR PETITIONERS: SRI V.RAVI KIRAN RAO (in WP Nos.24352 of 2009 and 2596 of 2010)
COUNSEL FOR THE PETITIONERS:SRI A.L.RAJU (in W.P.No.13077 of 2010)
^COUNSEL FOR RESPONDENTS 1 & 2: ASST. GOVT. PLEADER FOR REVENUE
COUNSEL FOR RESPONDENT NO.3: SRI M.R.S.SRINIVAS
< Gist:
> Head Note:
? CITATIONS:
1) 2003 (1) ALT 688(DB)
2) 2003 (5) ALD 654 (DB)
3) 2003 (1) ALD 563 (DB)
4) 2005 (2) ALD 838
5) 2004 (4) ALD 77
THE HON'BLE SRI JUSTICE B.SESHASAYANA REDDY
Writ Petition Nos.24352 of 2009; 2596 and 13077 of 2010
Date:30th October, 2012.
Writ Petition No.24352 of 2009:
Between:
Erroju Brahmachary S/o.Ramachandram & Ors.
..... Petitioners
AND
The Revenue Divisional Officer, Mancherial, Adilabad District & Ors.
.....Respondents
***
Writ Petition No.2596 of 2010:
Between:
K.V.Pratap S/o.K.V.Ramanaiah
..... Petitioner
AND
The Revenue Divisional Officer, Mancherial, Adilabad District & Ors.
.....Respondents
***
Writ Petition No.13077 of 2010:
Between:
M/s.Bharathi Educational Society rep. by its President Smt.Bharathi Murthy & Anr.
..... Petitioners
AND
The Revenue Divisional Officer, Mancherial, Adilabad District & Ors.
.....Respondents
***
THE HON’BLE SRI JUSTICE B.SESHASAYANA REDDY
Writ Petition Nos.24352 of 2009; 2596 and 13077 of 2010
COMMON ORDER:
The petitioners invoke the extraordinary jurisdiction of this Court under Article 226 of the Constitution of India and accordingly pray for issuance of writ ofCertiorari or any other appropriate writ calling for the records and the Order, dated 08.04.2009, passed by the Revenue Divisional Officer, Mancherial, Adilabad District-1st respondent in appeal No.G/2285/2005 and quash the same.
2. The impugned order passed by the 1st respondent- Revenue Divisional Officer, Mancherial, Adilabad District, is challenged on various grounds in W.P.Nos.24352 of 2009 and 13077 of 2010 and whereas the notice vide Rc.No.F/ROR/12862/2009, dated 26.12.2009, issued by the Mandal Revenue Officer, Mancherial, Adilabad District-2nd respondent is challenged in W.P.No.2596 of 2010.
3. Since the order challenged in the Writ Petition Nos.24352 of 2009 and 13077 of 2010 is one and the same and the notice under challenge in W.P.No.2596 of 2010 is a consequential one to the order impugned in the former two writ petitions, all the writ petitions are heard together and are being disposed of by this common order.
4. Facts in brief are: Regalla Purushotham was the owner and possessor of Ac.8.03 guntas in Survey No.754 and Ac.1.21¼ guntas in Survey No.763, situated at Garmilla Shivar of Mancherial Mandal, Adilabad District. He died issueless about 40 years back. His wife Smt.Prabhavathi inherited his properties as his legal heir. She sold Ac.8.03 guntas in Survey No.754 in favour of Thoutam Lingaiah under a sada sale deed, dated 06.08.1969, for a consideration of Rs.4,200/-. Thoutam Lingaiah, his wife Buchamma and his son Guravaiah executed a sale deed, dated 24.05.1984 for one acre in favour of Erroju Brahmachary-1st petitioner in W.P.No.24352 of 2009 and Ac.2.00 acres in favour of Manda Vasantha W/o.Rama Rao-2nd petitioner in W.P.No.24352 of 2009 on 25.02.1983. The petitioners 1 and 2 executed a sale deed in respect of Ac.3.00 in Survey No.754 in favour of K.V.Pratap S/o.K.V.Ramanaiah-petitioner No.3 in W.P.No.24352 of 2009 and sole petitioner in W.P.No.2596 of 2010. The petitioner No.3 in W.P.No.24352 of 2009 purchased one acre under a registered sale deed bearing document No.754 of 2001, dated 12.03.2001 and two acres under a registered sale deed bearing Document No.779 of 2001, dated 12.03.2001 and thus, he became the absolute owner and possessor of three acres. M/s.Bharathi Educational Society, rep. by its President Smt.Bharathi Murthy-1st petitioner in W.P.No.13077 of 2010 purchased three acres in Survey No.754 from Thoutam Lingaiah under a sale deed, dated 15.09.1983. All the unregistered sale deeds have been validated by the Mandal Revenue Officer, Mancherial-2nd respondent on 22.03.1994 vide proceedings Nos.ROR/473/89, ROR/471/89 and ROR/474/89. After getting the alienations validated, M/s.Bharathi Educational Society, rep. by its President Smt.Bharathi Murthy-1st petitioner in W.P.No.13077 of 2010, executed a sale deed for three acres in favour of Smt.Katari Rohini-2nd petitioner in W.P.No.13077 of 2010. Regalla Sudhakar claimed to be the adopted son of Regalla Purushotham. He filed an appeal No.G/2285/2005 under Section 5-A of the A.P. Rights in Land and Pattadar Pass Books Act, 1971, (for short, ‘the Act’) before the Revenue Divisional Officer, Mancherial, Adilabad District-1st respondent. He pleaded before the appellate Authority-Revenue Divisional Officer, Mancherial that the writ petitioners fabricated the un-registered sale deeds and got the alienations regularized by playing fraud and that he came to know of the regulation proceedings on 20.07.2005. He also pleaded before the appellate Authority that he inherited the properties of Regalla Purushotham as adopted son and that Regalla Prabhavathi W/o.Purushotham left the house and his best efforts to know her whereabouts proved to be futile. Since the whereabouts of Regalla Prabhavathi were not traced for several years, he performed her death ceremonies deeming that she was no more, as per customs prevailing in the Society. He approached the Gram Panchayat authorities and obtained her death certificate and produced the same before the Mandal Revenue Officer, Mancherial-2ndrespondent and got mutation of the lands owned by Regalla Purushotham in his name. According to him, the writ petitioners obtained regularization of alienations basing on fabricated sale deeds. The Revenue Divisional Officer, Mancherial, Adilabad District-1st respondent entertained the appeal and issued notice to the writ petitioners. Pending the appeal, Regalla Sudhakar died and his wife Regalla Godavari came on record as his legal representative. The writ petitioners appeared before the appellate Authority and placed on record their objections for maintaining the appeal after a delay of about 10 years of the order passed under Sction 5-A of the Act. They also disputed of Regalla Sudhakar’s status as adopted son of Regalla Purushotham. The Appellate Authority, on considering the material brought on record and on hearing the counsel appearing for the parties, came to the conclusion that the Tahsildar, Mancherial, committed error in regularizing the alienations without there being any validation of sale deeds executed in favour of Thoutam Lingaiah and thereby proceeded to remand the matter back to the Tahsildar, Mancherial with a direction to conduct a detailed enquiry after issuing notices to all the concerned and to dispose of the same on merits, by an order, dated 08.04.2009. For better appreciation, I may refer the relevant portion of the order passed by the appellate authority and it is thus:
“In the above circumstances the petitioner has not produced documentary evidence in support of petition. On perusal of Certified Copy of Pahanies of Garmilla village of Mancherial Mandal
In view of the above discussions, on perusal of files of Tahsildar, Mancherial vide Proc.No.ROR/473/89, ROR/471/89, and ROR/474/89, this Court observed that the Tahsildar, Mancherial without implementation of 1st purchaser who is the husband of the Respondent No.1. Therefore, the Orders passed by the Mandal Revenue Officer, Mancherial vide the above proceedings are hereby set aside.”
The Order, dated 08.04.2009, passed by the Revenue Divisional Officer, Mancherial, Adilabad District-1st respondent and the consequential notice issued by the Tahsildar, Mancherial, Adilabad District-2nd respondent are under challenge in these three writ petitions.
5. Heard Sri V.Ravi Kiran Rao, learned counsel appearing for the writ petitioners in W.P.Nos.24352 of 2009 and 2596 of 2010; Sri A.L.Raju, leaned counsel appearing for the writ petitioners in W.P.No.13077 of 2010; learned Assistant Government Pleader for Revenue appearing for the respondents 1 and 2; and Sri M.R.S. Srinivas, learned counsel appearing for the 3rd respondent in all the writ petitions.
6. Sri V.Ravi Kiran Rao, learned counsel appearing for the petitioners submits that Regalla Sudhakar did not produce any evidence before the Revenue Divisional Officer, Mancherial, Adilabad District-1st respondent to prove that he was the adopted son of Regalla Purushotham and therefore, he was not entitled to question the validation proceedings issued by the Mandal Revenue Officer, Mancherial, Adilabad District, under Section 5-A of the Act. He would also contend that the appeal filed by Regalla Sudhakar before the Revenue Divisional Officer, Mancherial, Adilabad District, was barred by limitation and that Regalla Sudhakar had not offered any plausible reasons to entertain the appeal after 10 years of the proceedings, under which alienations have been regularized by the Mandal Revenue Officer, Mancherial, Adilabad District. He would also contend that the Revenue Divisional Officer, Mancherial, Adilabad District, despite the plea taken by the petitioners herein with regard to maintainability of the appeal filed by Regalla Sudhakar did not adjudicate the issue as to maintainability and thereby erred in entertaining the appeal. In support of his submissions, reliance has been placed on the judgment of this Court in M.B.Ratnam v. Revenue Divisional Officer, RR District[1], wherein it has been held that condonation of delay and allowing of appeals after long lapse of more than 10 years merely on submissions made during the course of appeal without there being any foundation for them in the pleadings is not legal. Much emphasis has been laid on paras.49 and 50 of the cited judgment and they are thus:
“49. The observations or findings, as the case may be, of the appellate authority are totally vague and indefinite. The observations are unintelligible. There is no material in support of the said observations. Neither the affidavit nor the Memorandum of Grounds of Appeal, which are similar in all the cases, do not contain any such averments or allegations. It is not known wherefrom the appellate authority got this information. May be such submissions were made during the course of hearing of appeals. Submissions without there being any foundation in the pleadings cannot be taken into consideration particularly in a case where an appeal is sought to be preferred after a period of more than 10 years. No reasonable man would have arrived at such conclusion as that of the appellate authority in the instant case.
50. In our considered opinion, even in the absence of communication of the orders by the Mandal Revenue Officer as required under the Rules, the appeal under Sec.5-B of the R.O.R. Act by an aggrieved person is required to be filed within a reasonable time. The appeals are to be filed within a reasonable time from the date of knowledge of the order. We have already noted that consequent upon the orders and the certificate issued by the Mandal Revenue Officer, necessary entries were made in the pass-books recording the names of the petitioners herein as owners of the property. The names were incorporated in the faisal patties (Revenue account) and they were accordingly made liable to pay the land revenue payable in respect of land to the Government. It is difficult to accept that the respondents herein did not have the knowledge of the Mandal Revenue Officer issuing the certificate in the light of the necessary changes and modifications carried in the revenue records and the village records. The material available on record discloses that the respondents never had any connection whatsoever with the lands ever since the date of orders of Mandal Revenue Officer. Evidently, they were not even paying the land revenue. The belated attempt on the part of respondents herein to impugn the orders passed by the Mandal Revenue Officer is nothing but an after-thought. Settled legal rights cannot be permitted to be unsettled in this fashion. Such course is not permissible in law. If such a course is permitted, there will be no end to the litigation and no finality can be attached to any of the orders of the Courts or Tribunals, as the case may be.”
7. Sri M.R.S.Srinivas, learned counsel appearing for the 3rd respondent in all the writ petitions submits that the sale deeds sought for regularizations are in the nature of agreements of sale, in which case, alienations pursuant to the agreements of sale cannot be regularized under Sec.5-A of the Act. It is also submitted by the learned counsel that the validation proceedings have been obtained on false representations and therefore, the Revenue Divisional Officer, Mancherial, Adilabad District-1st respondent is justified in setting aside the regularization proceedings and remanding the matter back to the Tahsildar, Mancherial, Adilabad District-2nd respondent for de nova enquiry. He would also submit that the writ petitioners got an efficacious alternative remedy of revision under Section 9 of the Act and therefore, the writ petitions are liable to be dismissed. In support of his submissions, reliance has been placed on judgments of this Court in K.R.Goud v. Bhavanarishi Co-op. House Building Society[2]; K.Seetharama Reddy & Anr. v. Hassan Ali Khan[3]; Mukhala Kotilingam (died) by LRs. v. Joint Collector, R.R. District, Hyd.[4] and Pochi Reddy v. RDO, Vikarabad, RR Dist. & Ors.[5].
8. In K.R. Goud’s case (2nd supra), a Division Bench of this Court held that agreement of sale cannot be considered a transfer within the meaning of Section 5-A of the Act, in such a case, the Mandal Revenue Officer cannot proceed to hold an enquiry as to whether agreement of sale has been complied with or not. It has been further held that on failure on the part of vendor to complete the sale transaction, a person in whose favour there is an agreement of sale can seek specific performance of the agreement of sale so as to convey right, title or interest of the vendors. The machinery provided under the Act is not the appropriate machinery for perfecting title merely on the basis of agreement to sell.
9. In K.Seetharamma Reddy & Anr.’s case (3 supra), a Division Bench of this Court held that the transactions under documents which are mere agreements of sale cannot be regularized under Section 5-A of the Act.
10. In Mukhala Kotilingam (died) by LRs.’s case (4 supra), a learned Single Judge of this Court quoted the above two Division Bench judgments with approval.
11. In Pochi Reddy’s case (5 supra), a learned Single Judge of this Court held that once an order obtained from the Mandal Revenue Officer validating an unregistered sale deed on a false representation that the vendor-pattadar has died though he was factually alive, the Revenue Divisional Officer is justified in setting aside the said order on the ground of fraud and that no order can be allowed to stand if it was obtained by fraud.
12. I have given my anxious consideration to the rival contentions advanced by the parties. Indisputably, alienations basing on the sale deeds have been regularized in the year 1994 vide proceedings No.ROR/473/89, dated 22.03.1994, issued by the Mandal Revenue Officer, Mancherial, Adilabad District. Under Section 5-B of the Act an appeal shall lie to the Revenue Divisional Officer against the order passed by the Mandal Revenue Officer validating the unregistered sale deeds under sub-section (4) of Section 5-A of the Act. Rule 22-A of the A.P. Rights in Land and Pattadar Pass Books Rules, 1989, (for short, ‘the Rules’), details the procedure for filing the appeal. For better appreciation, I may refer Rule 22-A of the Rules, which reads as hereunder:
“22-A. (1) An appeal against every order of the Mandal Revenue Officer under sub-section (4) of Section 5-A of the Act shall be to the Revenue Divisional Officer/Sub-Collector/Assistant Collector.
(2) Every appeal referred to in sub-rule (1) shall be in writing and shall set-forth concisely the grounds thereof within a period of sixty days, from the date of communication of order and shall be accompanied by a copy of the order appealed against.
(3) Every appeal referred to in sub-rule (1) above shall bear a court fee stamp of rupees five only.
(4) Every appeal shall be disposed of within a period of six months from the date of filing of the appeal.”
A plain reading of Section 5-B of the Act and Rule 22-A of the Rules indicates that an aggrieved person has to file an appeal before the Revenue Divisional Officer within the stipulated time. The writ petitioners have specifically pleaded in the counter filed by them before the Revenue Divisional Officer with regard to maintainability of the appeal after 10 years of the order passed by the Mandal Revenue Officer validating the sales. The Revenue Divisional Officer has not dealt the issue as to maintainability of the appeal after 10 long years. In a way, the Revenue Divisional Officer has committed a serious error apparent on the face of the records in not adjudicating the issue as to maintainability of the appeal which is a crucial one in the given facts and circumstances of the case. Where there is an error apparent on the face of the records, existence of alternative remedy of revision under Section 9 of the Act to question the order impugned in the writ petitions is not a bar to grant relief under Article 226 of the Constitution of India. Since the Revenue Divisional Officer, Mancherial, Adilabad District-1st respondent has not dealt the issue which is a crucial one, the order impugned in the writ petitions is liable to be set aside and the matter needs to be remanded to the Revenue Divisional Officer, Mancherial, Adilabad District-1st respondent for adjudication afresh on the maintainability of the appeal and thereafter on merits.
13. Accordingly, all the three writ petitions are allowed setting aside the Order, dated 08.04.2009, passed by the Revenue Divisional Officer, Mancherial, Adilabad District-1st respondent in appeal No.G/2285/2005, and also the consequential notice vide Rc.No.F/ROR/12862/2009, dated 26.12.2009, issued by the Tahsildar, Mancherial, Adilabad District-2nd respondent and remanding the matter back to the Revenue Divisional Officer, Mancherial, Adilabad District-1strespondent to adjudicate the issue as to maintainability of the appeal and thereafter on merits. No costs.
______________________
B.SESHASAYANA REDDY, J.
Date:30th October, 2012.
Note: L.R. copy to be marked.
B/O
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