IN THE HIGH COURT OF JUDICATURE OF ANDHRA PRADESH
AT HYDERABAD
THE HON’BLE SRI JUSTICE C.V. NAGARJUNA REDDY
WRIT
PETITION NO.21100 OF 2002
Dt.28.1.2010
Sri
Kola Satya Rao …
Petitioner
Vs.
The
Joint Collector, Vizianagaram District
Vizianagaram
and
others …
Respondents
! Counsel for the Petitioner: Sri
Venkateswara Rao Gudapati
^ Counsel for
Respondents: None for R.1 and
R.2.
Sri
M. Balasubrahmanyam for R.3 & R.4.
<
Gist:
>
Head Note.
?
Cases referred:
1) 1991(1) SCC 133
2) AIR 1963 SC 698
3) 2002(4) ALD 497
IN THE HIGH COURT OF
JUDICATURE, ANDHRA PRADESH
AT HYDERABAD
AT HYDERABAD
(Special Original
Jurisdiction)
PRESENT
THE HON’BLE SRI JUSTICE C.V. NAGARJUNA REDDY
WRIT
PETITION NO.21100 OF 2002
Dt.28.1.2010
Between:
Sri
Kola Satya Rao …
Petitioner
And
The
Joint Collector, Vizianagaram District
Vizianagaram
and
others …
Respondents.
Counsel for the Petitioner
: Sri Venkateswara Rao Gudapati
Counsel for Respondents : None for R.1 and
R.2.
Sri
M. Balasubrahmanyam for R.3 & R.4.
This
Court made the following:
ORDER:
This
Writ Petition is filed for a Writ of Certiorari for quashing order dt.5.10.2002
passed by Respondent No.1.
Heard
Sri Gudapati Venkateswara Rao, learned Counsel for the petitioner, and Sri M.
Balasubrahmanyam, learned Counsel representing respondent Nos.3 and 4. No
one appeared for respondent Nos.1 and 2 nor any record has been produced on
their behalf.
The
petitioner is the brother-in-law of respondent No.4 as he has married the
latter’s sister. The property in question was owned by one Gundu
Atchanna, father-in-law of respondent No.3 and grand-father of respondent
No.4. Prior to 1994, the name of Atchanna was existing in the
revenue record as the owner and possessor of the land. After his
demise, the name of the petitioner was entered in the record of rights by
respondent No.2 in the year 1994. According to the petitioner, he
was brought up by Gundu Atchanna from the age of ten years and given his
grand-daughter, i.e., daughter of late Suryanarayana in marriage. It
is his further case that in the family partition that has taken place, the
lands in question were given to him. Respondent Nos.3 and 4, who are
not residing in the village where the lands are situated, approached respondent
No.1 in April, 2001 with a revision petition against correction of entries in
the revenue records and issuance of pattadar pass books and title deeds in
favour of the petitioner. It is stated in the revision petition that respondent
No.3, being daughter-in-law of Gundu Atchanna and her husband having died,
succeeded to the property along with respondent No.4 and that the petitioner
approached respondent No.2, who corrected the entries in the revenue record by
entering the petitioner’s name without any notice to her and respondent No.4
and that it was also specifically pleaded that respondent No.2 corrected the
entries in the revenue record without making any enquiry whatsoever and that
only recently she came to know about the said fact when she visited the
village. Respondent Nos.3 and 4 also pleaded that on the basis of
the wrong entries made in the revenue record, pattadar pass books and title
deeds were issued in favour of the petitioner.
Respondent
No.1 entertained the said revision petition and issued notice to the
petitioner. The petitioner filed his objections by way of a counter
affidavit wherein he pleaded that he succeeded to the property as the share of
Atchanna was allotted to him. Respondent No.1 called for a report
from the Mandal Revenue Officer (MRO) wherein it was reported that the property
in question is an ancestral property which fell to the share of the respondent
Nos.3 and 4 as per the settlement fair adangal of Bantupalli Village, that the
petitioner, who is son-in-law of Suryanarayana and who was brought up by the
family of Atchanna, was looking after the lands on behalf of the members of the
family and that during final check operations, the petitioner by
misrepresentation managed to get the lands mutated in his favour and on the
basis of the said correction of entries, the pattadar pass books were given to
the petitioner. The MRO also opined that there was no documentary
evidence to show that the land belongs to the writ petitioner and that the
title and possession of the lands were with respondent Nos.3 and 4.
Before
respondent No.1, the petitioner raised an objection as to the maintainability
of the revision petition filed by respondent Nos.3 and 4 without first availing
the remedy of appeal. This objection was overruled by respondent
No.1 and having regard to the report submitted by the MRO, he allowed the
revision petition. The petitioner filed this Writ Petition feeling
aggrieved by the said order.
At
the hearing, learned Counsel for the petitioner submitted that respondent No.1
has exceeded his jurisdiction in entertaining the revision petition filed by
respondent Nos.3 and 4 without availing the remedy of appeal under Section 5(5)
of the Andhra Pradesh Rights in Land and Pattadar Pass Books Act, 1971 (for
short, ‘the Act’). He also submitted that neither the report of the
MRO was furnished to the petitioner nor an opportunity in this regard was given
to him to meet the findings contained therein.
Learned
Counsel for respondent Nos.3 and 4 sought to defend the order of respondent
No.1. He submitted that since the MRO failed to follow the procedure
prescribed under Section 5(3) of the Act, before correcting the entries in the
record of rights in favour of the petitioner, respondent Nos.3 and 4 did not
have the knowledge of correction of entries and issuance of pattadar pass books
and title deeds by respondent No.2 in favour of the writ petitioner. As
respondent Nos.3 and 4 came to know about the said fact only after about six to
seven years, later, they had no other option except to approach respondent No.1
with a revision petition.
I
have carefully considered the submissions of the learned counsel for the
respective parties.
With regard to the first contention of the
learned counsel for the petitioner on the maintainability of the revision
petition before respondent No.1, it would be necessary to consider the
background and the relevant provisions of the Act.
As
indicated in its long title, the Act is intended to consolidate and amend the
law relating to the Rights in Land and Pattadar Pass Books in the State of
Andhra Pradesh. Prior to coming into force of the Act, the subject of Record of
Rights in Land in Telangana area was governed by the Andhra Pradesh (Telangana
Area) Record of Rights in Land Regulation, 1358 Fasli. As a corresponding
enactment was not in existence for the Andhra area, the Revenue Consultative
Committee constituted by the Government of Andhra Pradesh made its
recommendations, which were accepted by the State Government and has
accordingly introduced the Act in the State Legislature in order to provide for
a legislation throughout the State of Andhra Pradesh. The Act was accordingly
brought into existence.
Section 3 of the Act provides for preparation
and updating of the record of rights in all lands. Under
Section 4 of the Act, any person acquiring by succession, survivorship,
inheritance, partition etc., any right as occupant of a land by any other
method shall intimate the same in writing to the MRO concerned within ninety
days from the date of such acquisition of notice. Under Section 5(1)
of the Act, when the MRO has reason to believe that acquisition of such a right
has taken place he shall determine the claim. Where he considers that an
amendment has to be effected in the record or rights, he shall carry out
amendment in the record of rights. Under Section 5(3) of the Act,
before making such amendment, the MRO shall issue a notice in writing to all
the persons whose names are entered in the record of rights and who are
interested in or affected by the amendment. On receiving the objections, if
any, filed by the persons who received such notices, the MRO shall consider
every such objection and hold an enquiry into the same before passing order
under Section 5(1) of the Act for carrying out the amendment in the record of
rights. If any person is aggrieved by such an order passed by the
MRO, he is entitled to file an appeal under Section 5(5) of the Act before the
appellate authority, namely, Revenue Divisional Officer concerned. Under
Section 6-A of the Act, a person in whose favour an order of correction of
entries is made in the revenue record is entitled to be issued pattadar pass
book and title deeds in his favour. Under Section 9 of the Act, the Collector
is empowered to entertain a revision petition either suo motu or
on an application to call for and examine the record of any Recording
Authority, MRO or Revenue Divisional Officer under Sections 3, 5, 5-A or 5-B of
the Act and pass an appropriate order either modifying, annulling or reversing
or remitting the matter for reconsideration.
As the scope of the power of the Collector to
entire revision has fallen for consideration in this case, it would be useful
to reproduce Section 9 of the Act, which reads as under:
“ 9. Revision:- The
Collector may either suo motu or on an application made
to him, call for and examine the record of any Recording Authority, Mandal
Revenue Officer or Revenue Divisional Officer under Sections 3,5,5A or 5B, in
respect of any record of rights prepared or maintained to satisfy himself as to
the regularity, correctness, legality or propriety of any decision taken, order
passed or proceedings made in respect thereof and if it appears to the
Collector that any such decision, order or proceedings should be modified,
annulled or reversed or remitted for reconsideration, he may pass orders
accordingly:
Provided that no such order
adversely affecting any person shall be passed under this Section unless he had
an opportunity of making a representation”.
The
scheme of the Act referred to above thus makes it clear that whenever the MRO
seeks to amend the record of rights, he shall follow the mandatory procedure of
giving notice to the persons interested, holding enquiry into the objections,
if any, filed by the interested persons and then passing an appropriate order
for making such amendment. If action was taken by the MRO after
following the said procedure, the aggrieved person is entitled to file an
appeal. Under Section 5(5) of the Act, the appeal shall be filed
within a period of sixty days from the date of communication of the
order.
While ordinarily an aggrieved person shall
not be allowed to bypass the appeal remedy and is certainly bound to observe
the hierarchical discipline in availing the remedies as are provided by the
Statutes, this principle, in my considered opinion, is not inviolable. While
construing the expression ‘revisional’, the Supreme Court in Rafat Ali
Vs. Sugni Bai[1] held
that “it means power of supervision”. In Hari Shankar Vs. Rao Girdhari
Lal Chowdhury[2], the
Supreme Court, in the context of considering the scope of power of the High
Court under Section 115 CPC, observed that power to hear a revision is
generally given to a superior Court so that it may satisfy itself that a
particular case has been decided according to law.
Generally, the power of revision is conferred
on a superior authority, which is vested with the supervisory jurisdiction to
keep the officers subordinate to it within their bounds and exercise
jurisdiction vested in them properly while discharging their quasi judicial
functions. This legislative intent is quite apparent in Section 9 of the Act, which
empowered the Collector to examine the decision taken or order passed by any of
the three officers named therein. While the scope of interference in appeal is
wider, the liberty available to the revisional authority to entertain a
revision is greater. Provisions, which confer these revisional
powers on superior authorities, are normally couched in standard terms as
Section 9 of the Act in the instant case is framed and they are generally
intended to remedy the injustice caused on account of an irregular, illegal or
improper decisions taken or orders passed by the subordinate authorities.
Where,
therefore, in a given case, the revisional authority is satisfied that it was
not feasible or practicable for the aggrieved party to file an appeal or that
the subordinate authority has passed an order, which is ex-facie contrary to
the procedure prescribed under the Act or in violation of the principles of
natural justice, it can exercise its revisional jurisdiction to step in and
correct such procedural illegality or impropriety. If the facts of the case
justify, an aggrieved party can be allowed to bypass the appellate remedy and
seek intervention of the revisional authority. That such a power is consecrated
in the revisional authority is clearly evident from the language of Section 9,
which not only confers suo muto revisional power in the
authority, but also empowers the authority to entertain an application from the
aggrieved party and to call for and examine the record of any of his
subordinate authorities, viz., Recording Authority, Mandal Revenue Officer or
Revenue Divisional Officer, exercising powers under Sections 3, 5, 5A or 5B of
the Act and modify, annul or reverse or remit for reconsideration any order
passed by any of those authorities, where such revisional authority is
satisfied that the order passed or decision taken was either irregular or
incorrect or illegal or improper. This provision does not impose any
pre-condition that the revisional authority shall not exercise his powers until
the aggrieved party exhausts its appellate remedy.
However, I may hasten to add that this
extraordinary power of interfering in a matter, where the party has not
exhausted its appellate remedy, shall be used sparingly to prevent grave
miscarriage of justice and shall not be exercised in a regular and routine
manner by the revisional authority.
If
the above legal principles are applied to the facts of the present case, I am
of the opinion, that on the undisputed facts of this case, the revisional authority,
viz., respondent No.1, is justified in entertaining the revision petition
though respondents 3 and 4 have not exhausted the remedy of appeal available to
them under Section 5(5) of the Act. In their revision petition respondents 3
and 4 specifically pleaded that neither a notice was given to them nor an
enquiry was held before respondent No.2 made amendment in the entries of record
of rights and issued pattadar pass books and title deeds in favour of the
petitioner. No material is placed before this Court by the petitioner or
respondent No.2 to show that this plea raised by respondents 3 and 4 before
respondent No.1 was false. Respondents 3 and 4 were virtually disabled from
availing the appellate remedy within the prescribed limitation period. It is
neither the pleaded case of the MRO nor the writ petitioner that respondents 3
and 4 were in the knowledge of correction of entries in the revenue records and
issuance of pattadar pass books in favour of the petitioner. Therefore, on the
admitted facts of this case, where the MRO failed to follow the mandatory
procedure prescribed by the Act and to conform to the principles of natural
justice, respondent No.1 was justified in entertaining the revision petition
against the amendment of entries and issuance of pattadar pass books in favour
of the petitioner, though respondents 3 and 4 did not avail the remedy of
appeal.
The
learned counsel for the petitioner placed heavy reliance on the Division bench
Judgment of this Court in Sannepalli Nageswar Rao Vs. District
Collector, Khammam[3]to
buttress his contention that the revisional authority has no jurisdiction to
entertain the revision without the party first exhausting the appeal remedy.
Having
carefully considered the said judgment, I am of the view that reliance on this
judgment by the learned counsel is wholly misplaced. In that case, one of the
parties directly approached the District Collector with a request to enter
their names in the revenue record. The District Collector forwarded their
representation to the Revenue Divisional Officer with a direction to him to
treat the said representation as an appeal. Accordingly, the Revenue Divisional
Officer passed several orders in purported exercise of his appellate
jurisdiction. These orders were questioned in a Writ Petition, which was
disposed of by a learned single Judge. In the Letters Patent Appeal filed by
the writ petitioner against the directions given by the learned single Judge,
the Division Bench held that both the District Collector and the Revenue
Divisional Officer have acted contrary to the procedure prescribed by the Act.
The Division Bench found that entertainment of appeal by the Revenue Divisional
Officer was in violation of the procedure prescribed under the Act. In the said
case, neither the Collector has exercised his revisional powers nor had this
Court an occasion to deal with the contours of the revisional powers of the Collector.
Therefore, the said judgment has no relevance to the facts of the present case
on hand.
With regard to the merits of the case, there
is a serious dispute regarding succession to the properties. Respondent
No.2 has not produced the record before this Court so as to know the basis on
which he has entered the name of the petitioner in the revenue record in the
place of the registered owner. Respondent Nos.3 and 4 are the
natural successors to the property. It is not the case of the
petitioner that a written partition deed either registered or unregistered was
executed among the joint family members and that on the basis of such a
partition deed the property fell to the share of the petitioner. If
the petitioner’s wife, being the daughter of late Suryanarayana, father of
respondent No.4 had a share in the joint family property, as argued by the
learned Counsel for the petitioner, I fail to understand how the name of the
petitioner was mutated in the revenue record instead of showing the name of his
wife. Even in such a case, the wife of the petitioner could have
been shown as one of the successors of late Atchanna along with respondent
Nos.3 and 4. Had a notice been given to respondent Nos.3 and 4 and
an enquiry been held by respondent No.2, the above issues would have been
properly determined by him.
Having carefully considered the case in its
entirety, I am of the opinion that in order to ensure that justice is done to
the parties, respondent No.2 should hold a proper enquiry on the application of
the petitioner for correction of entries and pass an appropriate order
after giving notice to respondent Nos.3 and 4 and considering their
objections. Respondent No.2 is entitled to correct the entries in
the record only after he is fully satisfied that the petitioner has acquired
right over the property in question through any of the modes mentioned in
Section 4 of the Act. If the petitioner fails to produce proof of
his acquiring rights over the property on the basis of documentary evidence,
respondent No.2, who cannot undertake enquiry into the complicated issue of
succession, shall relegate the petitioner to avail the remedy of filing a civil
suit under Section 8(2) of the Act. In such a case, respondent No.2 shall
delete the name of the petitioner from the revenue record and cancel the
pattadar pass book and title deeds standing in the name of the petitioner.
Needless to observe that in such an event, the petitioner can seek amendment of
entries in the revenue record if he obtains a decree from the civil Court.
Respondent No.2 shall complete the enquiry and pass appropriate order within
two months from the date of receipt of a copy of this order. Till passing such
an order, status quo as on today shall be maintained in all
respects.
The Writ Petition is accordingly disposed of.
As a sequel to disposal of the Writ Petition,
W.P.M.P. No.26406 of 2002, filed by the petitioner, is also disposed of.
______________________
C.V. NAGARJUNA REDDY, J
Dt.
28.1.2010
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Note:
L.R.Copies
to be marked.
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