THE HON'BLE SRI JUSTICE M.SATYANARAYANA MURTHY
WRIT PETITON NO.18867 OF 2015
ORDER:
This writ petition is filed under Article 226 of Constitution of India, claiming the following relief:
"To issue Writ of Mandamus declaring the order in D.Dis.E2/3834/2011 dated 10.06.2015 passed by the respondent No.2 ordering to delete the entries relating to the land in an extent of Ac.1-94 cents in Sy.No.330 of T.Sunkesula Village, Yerraguntla Mandal, Y.S.R District from the Pattadar Pass Books and Title Deed No.445285 issued in petitioner favor and also ordering for initiation of criminal proceedings while dismissing the revision filed by petitioner against the orders D.Dis.ROR/A/1488/2011 dated 01.12.2011 passed by Respondent No.3 as arbitrary, illegal, contrary to the provisions of A.P Rights in Land and Pattadar Pass Book Act, 1971 and also A.P Rights in Land and Pattadar Pass Book Rules 1989 and settled principles of legal position apart from being violative of fundamental rights guaranteed to petitioner under Articles 14, 19 and 21 of the Constitution of India and consequently set aside the same."
The case of the petitioner in brief is that, the land of an extent of Ac.3-88 cents in Sy.No.330 of T. Sunkesula Village, Yerraguntla Mandal, Y.S.R District was acquired by the grandfather of this petitioner Vaddemani Chennaiah and the same was in his possession and enjoyment till the year 1956. While so, in the year 1956, the petitioner‟s grandfather executed a Gift Settlement Deed dated 10.07.1956 in favour of his sons namely Peddapulla Rddy (paternal uncle of the petitioner) and Chinna Pulla Reddy (father of this petitioner), settling all properties including the land in an extent of Ac.3-88 cents in Sy.No.330 of T. Sunkesula Village, Yerraguntla Mandal, Y.S.R District, at an extent of Ac.1-94 cents to each i.e. Peddapulla Rddy and Chinna Pulla Reddy.
Since the date of execution of Gift Settlement Deed in favour of petitioner‟s paternal uncle and petitioner‟s father, they were 2 MSM, J W.P.No.18867 of 2015 enjoying their respective shares independently. While so, the petitioner‟s paternal uncle - late Pedda Pulla Reddy got mutation of the revenue records for his share in favour of his wife Smt. Vaddemani Akkaiah i.e. Respondent No.5 and the petitioner‟s father got mutated his name in the revenue records in respect of the share allotted to him.
Thereafter, Respondent No.5 who is none other than the petitioner‟s paternal aunt, filed an appeal before Respondent No.3 at the instance of her son for cancellation of the Pattdar Pass Book and Title Deed issued in favour of the petitioner and Respondent No.3 entertained the appeal, even though the same is not maintainable, as the same was filed after long lapse of limitation period and ordered for cancellation of Pattadar Pass Book and Title Deed issued in favour of the petitioner. Therefore, entertaining an appeal by the Revenue Divisional Officer/Respondent No.3 and passing an order for cancellation of Pattdar Pass Book and Title Deed is contrary to the provisions of Andhra Pradesh Rights in Land and Pattadar Pass Book Act, 1971 (for short „the Act‟) and that, Respondent No.3 has no jurisdiction to entertain an appeal under Section 5(5) of the Act, in the absence of any order passed by the recording authority for such cancellation or otherwise. Therefore, the order is passed without jurisdiction and requested to set-aside the order of the Revenue Divisional Officer/Respondent No.3 in D.Dis.ROR/A/1488/2011 dated 01.12.2011.
On behalf of Respondent Nos. 1 & 2, Chief Executive Officer, Andhra Pradesh State Waqf Board, Vijayawada filed common counter affidavit denying material allegations, contending that, the 3 MSM, J W.P.No.18867 of 2015 subject Dargah i.e. Hzt. Syed Baji Shaheed Rh. Peddakakani, Guntur is a notified waqf, published in A.P. Gazette on 28.06.1962, so also appointment of these petitioners as successors of notified Mutawallis. The petitioners who are discharging the duties as Mutawallis are public servants under the provisions of Waqf Act and they are bound to discharge the duties as laid down under Section 50 of the Waqf Act, 1995 and the Waqf Board can initate action for their omission and commissions. Proceedings dated 11.04.2014 were issued suspending the petitioners. Aggrieved thereby, the petitioners filed W.P.No.12581 of 2014, where in the High Court passed interim orders observing that the impugned orders shall remain in force only for a period of ten days.
It is contended that the Waqf Board is having statutory powers under Section 32 of the Act and has overall supervision on all Waqf institutions including the subject Dargah. The Waqf Board issued proceedings dated 10.12.2014 inviting tenders for collection of offerings. On that the petitioners filed W.P.No.39115 of 2014, wherein the High Court passed interim orders and subsequently vacated the same. It is contended that the petitioners were not affected of their personal rights in respect of waqf property either as beneficiaries or in any other capacity. As the third respondent could not complete his enquiry, the Waqf Board appointed one Saheb Khan as Enquiry Officer who submitted his report on 05.11.2016. After separation of erstwhile Waqf Board, A.P. Waqf Board was constituted by the Central Government vide Notification dated 31.10.2015. Pursuant to the said notification, members of the Board were elected on 13.03.2018 by means of Electoral College Members of the Board. But, unfortunately, within a short 4 MSM, J W.P.No.18867 of 2015 period, the Chair Person resigned to the said post. Apart from that, two more members of the board resigned from the Membership, as such, the Board became defunct and thereby no transactions are being done by members who are in minority and no orders are obtained from the Board. It is contended that, the Chief Executive Officer on his own accord have no right to pass any orders under the provisions of Waqf Act, 1995 and in the circumstances stated above, the enquiry report could not be finalized and that there are no administrative latches on the part of the Chief Administrative Officer and requested to dismiss the writ petition.
Respondent No.4 - Tahsildar, Yerraguntla Mandal filed counter affidavit, denying material allegations, raising several contentions, inter alia contending that, the subject land belongs to the Government and the same cannot be recorded in the name of the petitioner by mutating the name. It is also contended that, the unlawful and fraudulent acts of the petitioner, making fraudulent entry of the land in pattadar pass book and title deed and 1-B Register with the collusion of Village Revenue Officer is unwarranted and not maintainable under law and finally requested to dismiss the writ petition.
The main grievance of the petitioner before this Court is that, the Revenue Divisional Officer/Respondent No.3 ought not to have entertained an appeal under Section 5(5) of the Act.
Whereas, learned Government Pleader for Revenue contended that, there are bogus entries in the revenue records and criminal prosecution is initiated against this petitioner for getting the entries mutated in the revenue records, more particularly, Pattdar Pass Book and Title Deed and prosecuting those 5 MSM, J W.P.No.18867 of 2015 proceedings before the competent criminal court and that the impugned order is in accordance with law and requested to dismiss the writ petition.
It is an undisputed fact that, entries were made in the revenue records and Pattdar Pass Book and Title Deed were issued. But, the contention of learned Assistant Government Pleader for Revenue is that, the entries in the revenue records are bogus. Such question cannot be decided by this Court while exercising jurisdiction of this Court under Article 226 of the Constitution of India, as this Court shall not undertake or conduct rowing enquiry to find out the genuineness of the entries and it is for the authorities to inquire into the genuineness of the entries made in the revenue records. Therefore, I am not going to decide the genuineness of the entries in the revenue records. However, the issue before this Court is limited, as cancellation of Pattdar Pass Book and Title Deed issued in favour of the petitioner by Respondent No.4 and entertaining an appeal by Respondent No.3 for cancellation of Pattdar Pass Book and Title Deed vide order in D.Dis.ROR/A/1488/2011 dated 01.12.2011, wherein the Revenue Divisional Officer passed the following order:
11. After close scrutiny of all documentary evidences available on the records, it is clearly established that Sri Vaddemani Chandra Sekar s/o Vaddemani Chinna Pulla Reddy has no documentary evidences to prove right and title and also his physical possession over the disputed land. Hence the Pattadar Pass Book bearing No.445285 Khata No.547 for the land in S.No.330 Ext.1-94 Acres of Tsunkesula Village obtained by Sri Vaddemani Chandra Sekar s/o Vaddemai Chinna Pulla Reddy on misrepresentation of facts is hereby annulled."
At the same time, in Paragraph No.6 of the order dated 01.12.2011, the Revenue Divisional Officer observed that, the Tahsildar, Yerraguntla has reported that the land of an extent of Ac.3-88 cents in Sy.No.330 of T. Sunkesula is in the possession 6 MSM, J W.P.No.18867 of 2015 and enjoyment of Smt. Vaddemani Akkaiah w/o Pulla Reddy, but Sri Vaddemani Chandra Sekar s/o Vaddemani Chinna Pulla Reddy has obtained Pass Book bearing No.445285 Khata No.547 for the land of an extent of Ac.1-94 cents in Sy.No.330 in T. Sunkesula Village on misrepresentation of facts, even though the land was not in their physical possession and enjoyment and recommended for cancellation. Thus, the basis for ordering cancellation of Pattadar Pass Book and Title Deed is that, the petitioner was out of possession and Pattadar Pass Book and Title Deed were obtained by misrepresentation of fact. In such case, the Revenue Divisional Officer is not entitled to exercise jurisdiction under Section 5(5) of the Andhra Pradesh Rights in Land and Pattadar Pass Books Act, 1971 (for short „the Act‟), against an entry made based on enquiry conducted under Section 6-A of the Act.
According to Section 5(5) of the Act, against every order passed by 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. The Revenue Divisional Officer entertained the same in an appeal without considering the limitation prescribed under Section 5(5) of the Act.
Section 5(5) of the Act provides an appeal against an order passed by the Mandal Revenue Officer either making an amendment in the record of rights or refusing to make such an amendment. A revision lies against such an order by the Joint Collector. But, it is not a question of amendment of entries in the 7 MSM, J W.P.No.18867 of 2015 revenue records to entertain the representation as an appeal under Section 5(5) of the Act, it is an order passed under Section 6-A of the Act, against which a revision lies under Section 9 to the Joint Collector, but no appeal is provided. The same is covered by the judgment of the Division Bench of this Court in Ratnamma v. Revenue Divisional Officer, Dharmavaram1.
In view of the law declared by the Divisional Bench of the High Court in the judgment referred supra, mere entertaining an appeal by the Revenue Divisional Officer does not confer jurisdiction. Consequently, the order passed by the Revenue Divisional Officer/Respondent No.3 is illegal, as it is without jurisdiction. Therefore, the order passed by Respondent No.3 in D.Dis.ROR/A/1488/2011 dated 01.12.2011 is set-aside.
In the result, writ petition is allowed, setting aside the order passed by Respondent No.3 in D.Dis.ROR/A/1488/2011 dated 01.12.2011. However, the respondents are at liberty to take appropriate action, if necessary, based on the material.
Consequently, miscellaneous petitions, pending, if any, shall stand closed.
___________________________________________ JUSTICE M. SATYANARAYANA MURTHY Dated 06.04.2022 SP 1 2015 (6) ALD 609 (DB)