HONOURABLE SRI JUSTICE P.NAVEEN RAO
WRIT PETITION No.19236 of 2021
Date:27.08.2021
Between:
Gutha Shankar Reddy s/o. Chenna Reddy,
Aged 69 years, occu: Agriculture,
r/o. Urumadla village, Chityala Mandal,
Nalgonda district and two others.
.....Petitioners
And
The State of Telangana, rep. by its Prl. Secretary,
Revenue Department, Secretariat, Hyderabad
and others.
.....Respondents
The Court made the following:
PNR,J
W.P.No.19236 of 2021
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HONOURABLE SRI JUSTICE P.NAVEEN RAO
WRIT PETITION No.19236 of 2021
ORDER :
This writ petition is filed praying to grant the following relief: "...to issue an appropriate writ particularly one in the nature of Certiorari calling the entire records in connection with orders of the Special Tribunal Nalgonda in Case No.F2/Spl.Tribunal/1537/2021 dated 10.07.2021 transfer case No.F2/6421/2020 from 2nd Respondent herein by set a siding the orders passed by the 3rd respondent herein in B/3123/2017 dated 05.07.2019 under the Government of Telangana State vide G.O.Ms.No.4 Revenue (Assignment-I) Department, dated 12.01.2021, declaring the same as illegal, arbitrary, intentional, mala fide, without power, without jurisdiction, violation of principles of natural justice against the Telangana Rights in Land and Pattedar Pass Books Act 2020 and consequently set aside the orders passed by the Special Tribunal Nalgonda in Case No.F2/Spl.Tribunal/1537/2021 dated 10.07.2021 transfer case No. F2/6421/2020 from 2nd Respondent herein and pass......."
2. Heard Mr. Ch.Anjaneyulu, learned counsel for the petitioners and learned Assistant Government Pleader for Revenue for respondents 1 to 5.
3. This writ petition is filed challenging the order of the Special Tribunal dated 10.07.2021. Petitioners claim that father of the 1st petitioner and the father of petitioners 2 and 3 purchased Acs.3.36 guntas in Sy.No.223 of Chinakaparthi village of Chityal Mandal in Nalgonda district from Cholleti Rama Chary, son of Peddaiah. Father of petitioners 2 and 3 sold Ac.1.29 guntas to the 4th petitioner. Thereafter, father of petitioner no.1, father of petitioners 2 and 3 and the 4th petitioner filed separate suits for declaration of title and consequently perpetual injunction against Cholleti Rama Chary and others in O.S.Nos.521/1979, 447/1979 in the Court of District Munsif at Nalgonda, and O.S.No.319/1994 on the file of District Munsif Magistrate, Ramannapet. O.S.No.521 of 1979 and PNR,J W.P.No.19236 of 2021 -3- O.S.No.447 of 1979 were decreed on 06.10.1979, and O.S.No.319 of 1994 was decreed on 07.10.1994.
4. By relying upon the decrees granted in their favour, when petitioners approached the Tahsildar requesting to mutate, they were surprised to notice that some third party names are reflected in the revenue records and their request to grant mutation was not accepted. First petitioner and father of petitioners 2 and 3 and 4th petitioner filed appeal before the Revenue Divisional Officer under Section 5(5) of the Telangana Rights in Land and Pattadar Passbooks Act, 1971 (Act 26 of 1971) challenging the decision of the Tahsildar granting mutation in favour of unconcerned persons and prayed to delete those entries and to record the names of petitioners. The Revenue Divisional Officer called report from the Tahsildar. In his report dated 05.08.2017, the Tahsildar pointed out that though name of Mandugula Sathemma (7th respondent) was mutated in the year 2001-02, but there are no proceedings to show that decision was taken and orders were passed granting mutation in her favour. Accepting the said report, the Revenue Divisional Officer allowed the appeal.
5. Aggrieved thereby, revision was preferred before the Joint Collector under Section 9 of the Act 26 of 1971. After constituting the Special Tribunal under Section 16 of the Telangana Rights in Land and Pattadar Passbooks Act, 2020 (Act 9 of 2020), the revision was transferred to the Special Tribunal. By order dated 15.02.2021, the Special Tribunal allowed the revision holding that the claim of petitioners for mutation of their names 38 years after granting decrees in their favour is not valid and set aside the order PNR,J W.P.No.19236 of 2021 -4- of the Revenue Divisional Officer, upholding the decision of the Tahsildar. Based on the direction of the Division Bench in W.P.(PIL).No.20 of 2021, the revision was reopened and fresh orders are passed on 10.07.2021.
6. Learned counsel for petitioners contends that there is no further consideration of the matter and the Special Tribunal has reiterated the same view as expressed when original order was passed and has not appreciated the contentions urged by the petitioners, particularly having regard to the report of the Tahsildar dated 05.08.2017 holding that there is no record available to show how the name of M.Sathemma was recorded in the year 2000-01.
7. Two aspects required to be noticed from the material on record. Firstly, admittedly, till recently petitioners 1 and 4, and father of petitioners 2 and 3 have not applied for mutation of their names in the revenue records by referring to the decrees granted in their favour. Admittedly, in the year 2000-01 name of M.Sathemma was recorded in the revenue records against the above extent of land. By way of registered sale deed, she has sold the property in the year 2006 to an extent of Ac.1.38 guntas and her son sold Ac.1.38 guntas of land by way of registered sale deed dated 19.05.2006. The persons who purchased in the above manner got mutated their names in the revenue records and they in turn, sold the extent of land purchased by them to third parties. In turn, the said purchasers got their names mutated in the revenue records. In other words, after the decree and before the petitioners made applications, not only the name of M.Sathemma was shown in the PNR,J W.P.No.19236 of 2021 -5- revenue records, but further sale transactions were carried out and property changed hands over a period of time.
8. In other words, petitioners were trying to revive an issue of ownership to subject property by pulling it out of the cobweb after 20 years, challenging the decision of the Mandal Revenue Officer firstly mutating name of M.Sathemma in the year 2000-01 and then names of subsequent purchasers based on such mutation. Even assuming that a valuable right to property of the petitioners is affected, there is inordinate delay in asserting the right. By their conduct the petitioners allowed the rights crystallized in favour of the unofficial respondents over shadowing their right, if any.
9. It is settled principle of law that a person has to assert his right within the reasonable time and even if a person has a valid claim, if such claim is not made within a reasonable time, he cannot expect the authorities to act on the grievance and to rectify the mistakes nor can this Court upset the entries made in the revenue records after long lapse of time at the instance of a person who kept quiet for very long time and started agitating his grievance belatedly.
10. A decision of an authority of the State or its instrumentality concerning a parcel of land may impact the person vis-à-vis State/ its instrumentality or a dispute inter se two private persons. Armed with the decision made in his favour a person may deal with the land, including sale, mortgage, gift etc. In the process he may create third party interests. Over a period of time, property may change hands. In such circumstances, decision of the appellate authority granting relief in an appeal filed after long lapse PNR,J W.P.No.19236 of 2021 -6- of time of arising cause of action may have cascading effect and impact the rights of third parties, who are no way responsible for this indiscretion of the petitioners.
11. By their conduct petitioners allowed to crystallize rights in favour of others and in turn to create third party interests. Petitioners cannot make others to suffer for their indiscretion and allowing crystallizing rights in third parties. Therefore, the appellate authority ought to have considered the issue holistically.
12. Whenever an issue of delay in asserting right comes up for consideration, the Court has to tread cautiously, lift the veil on claims of the petitioners, and assess the consequences before entertaining the writ petition. The principle of law is well settled and needs no reiteration.
13. Secondly, against the order of the Tahsildar mutating the name in the revenue records, a person can prefer appeal within 60 days from the date of such decision under Section 5(5) of the Act, 1971. As recorded by the appellate authority, in the year 2000-01 name of M.Sathemma was recorded and based on the said entry in the revenue records, further sale transactions have taken place. Petitioners did not raise objection on such mutation nor preferred appeal within the period specified in Section 5(5) of the Act 26 of 1971. Section 5(5) of the Act 26 of 1971 does not vest power in the Revenue Divisional Officer to entertain appeal if the same is not filed within 60 days and has not vested power to condone the delay even if an application to condone delay is filed. Thus, appeal preferred by the petitioners was not within the time stipulated by Section 5(5) of the Act and the same is not maintainable.
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14. The writ remedy is discretionary remedy and is an extraordinary remedy available to a person who intends to assert his right by diligently prosecuting the legal remedy and not to a person sleeping over his right for years. The Court is required to consider other aspects also, as noticed above. In the case on hand accepting the plea of petitioners results in setting aside entries made in revenue records 20 years back. Assuming an appeal beyond time stipulated in Section 5(5) of the Act 26 of 1971 is maintainable, it cannot be said that the delay of 20 years as reasonable. Therefore, without making vague assertions, there ought to have been detailed explanation for not filing the appeal within the time prescribed in Section 5(5) of the Act 26 of 1971 or explaining that they had no knowledge. The petitioners miserably failed in doing so. Furthermore, on account of long delay rights have accrued to respondents and if relief claimed in this writ petition is granted, issue settled more than 20 years ago and transactions made in the meantime have to be upset directly attributable to petitioners inertia.
15. In Shankara Coop. Housing Soceity Ltd., v. M.Prabhakar and others1 on detailed consideration of the various judgments on the issue of maintainability of the writ petition filed after long lapse of time, the Supreme Court laid down the parameters for entertaining the writ petition they read as under:
"The relevant considerations, in determining whether delay or laches should be put against a person who approaches the writ Court under Article 226 of the Constitution is now well settled. They are : (1) There is no inviolable rule of law that whenever there is a delay, the Court must necessarily refuse to entertain 1 2011 (4) ALD 112 (SC) PNR,J W.P.No.19236 of 2021 -8- the petition; it is a rule of practice based on sound and proper exercise of discretion, and each case must be dealt with on its own facts. (2) The principle on which the Court refuses relief on the ground of laches or delay is that the rights accrued to others by the delay in filing the petition should not be disturbed, unless there is a reasonable explanation for the delay, because Court should not harm innocent parties if their rights had emerged by the delay on the part of the petitioners. (3) The satisfactory way of explaining delay in making an application under Article 226 is for the petitioner to show that he had been seeking relief elsewhere in a manner provided by law. If he runs after a remedy not provided in the statute or the statutory rules, it is not desirable for the High Court to condone the delay. It is immaterial what the petitioner chooses to believe in regard to the remedy. (4) No hard and fast rule, can be laid down in this regard. Every case shall have to be decided on its own facts. (5) That representations would not be adequate explanation to take care of the delay."
16. It is not in the interest of justice and fair play to grant relief on the stale claim. In City Industrial Development Corporation v. Dosu Aardeshir Bhiwandiwala and others2, the Hon'ble Supreme Court held as under:
" A writ of mandamus is highly discretionary. The relief cannot be claimed as of right. One of the grounds for refusing relief is that the person approaching the High Court is guilty of unexplained delay and the laches. Inordinate delay in moving the Court for a writ is an adequate ground for refusing a writ. The principle is that Courts exercising public law jurisdiction do not encroach agitation of stale claims and exhuming matters where the rights of third parties may have accrued in the interregnum."
17. Learned counsel for the petitioners though sought to contend that continuously petitioners are in possession, the Court is not expressed any opinion on the issue of possession as it requires leading of evidence and consideration of respective claims. 2 2009 (1) ALD 24 (SC) = AIR 2009 SC 571 PNR,J W.P.No.19236 of 2021 -9- It is always open to the petitioners to assert their possessory claim in appropriate civil proceedings.
18. For the aforesaid reasons, I do see any error in the decision arrived at by the Special Tribunal warranting interference in exercise of power of judicial review against the decision of the statutory tribunal. Writ Petition is dismissed. However, this order does not come in the way of petitioners prosecuting civil law remedy if otherwise available and subject to law of limitation. Pending miscellaneous petitions, if any, shall stand closed.
__________________________ JUSTICE P.NAVEEN RAO Date: 27.08.2021 Kkm PNR,J W.P.No.19236 of 2021
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HONOURABLE SRI JUSTICE P.NAVEEN RAO WRIT PETITION NO.19236 of 2021 Date: 27.08.2021 kkm