THE HON'BLE THE CHIEF JUSTICE SATISH CHANDRA SHARMA
AND
THE HON'BLE SRI JUSTICE A.RAJASHEKER REDDY
W.A.No.504 of 2021
JUDGMENT: (Per the Hon'ble the Chief Justice Satish Chandra Sharma)
The present appeal is arising out of an order dated
02.08.2021 passed in W.P.No.17362 of 2021.
The facts of the case reveal that the appellant/writ
petitioner came up before this Court being aggrieved by
the order passed by the Special Tribunal under the
Telangana Rights in Land and Pattadar Pass Books Act,
2020 and prayed for the following relief:-
"For the reasons stated in the accompanying affidavit,
in the interest of justice, it is humbly prayed that this
Hon'ble Court may be pleased to issue a Writ Order or
Directions more particularly one in the nature of Writ of
Mandamus:
a) To call for the records pertaining to the Order Dated
18/06/2021 in S T No 344 of 2021 C/945/2019 by
confirmed the Order Dated 11/02/2021 held by the
Respondent No.2 herein and set them aside;
b) To direct the Respondent No 1 and 2 to continue the name of the Petitioner in the Revenue Records in respect of the land to an extent of Ac 10 Guntas in Sy No 25/A situated at Dasnapur Village Mavala Mandal Adilabad District;
c) To award costs;
By holding the action of the Respondents for cancellation of mutation as bad illegal irrational arbitrary discriminatory void violative of the Article 14 21 and 226 of the Constitution of India and pass any such other Order or further Orders as this Hon'ble Court may deem fit, proper and necessary in the circumstances of the case."
2The appellant/writ petitioner in the writ petition stated that his grandfather was the owner of land to an extent of Acs.6.08 guntas in Survey No.25/A, Dasnapur Village, Mavala Mandal, Adilabad District. However, incorrect revenue entries were made in the year 1968-69 by the then Tahsildar. It has been stated that an application was made for correction of entries in the revenue records and it was also stated that the father of the appellant/writ petitioner has sold Acs.4.38 guntas and in those circumstances, the remaining area i.e., Ac.1.10 guntas be entered in the name of the appellant/writ petitioner. An order was passed by the Tahsildar on 12.04.2016 on an application preferred after a lapse of about 40 years. The matter went before the Special Tribunal and the order of Tahsildar was set aside by an order dated 18.06.2021, against which the writ petition was preferred and the learned Single Judge has dismissed the writ petition. Paragraphs 7 to 16 of the order of the learned Single Judge reads as under:-
"7. Two aspects are noticed from the record placed before this Court. Firstly, according to provisions of Act 26 of 1971 once a decision is made by the Tahsildar, he becomes functus officio and he has no power or competence to review a decision made 3 by him. An aggrieved person is entitled to go in appeal or revision. Section 5(6) of the Act vested limited power in the Tahsildar to carry out clerical errors, if any, in the pattadar passbook. Knowing fully well that he is not competent to undertake review after decision made by him, he takes recourse to the clerical error method to hold in favour of petitioner.
8. Secondly, even assuming that less extent of land was shown than the entitlement of the family of petitioner, as such entry was made in the year 1968- 69, the Tahsildar could not have taken recourse to the clerical error, to carry out such error dating back to the year 1968-69. Therefore, it amounts to excess of jurisdiction, abuse of power and illegal exercise of power by the Tahsildar. Even otherwise, Tahsildar ignored the fact that on 5.6.1974 father of petitioner sold Acs.4.38 guntas and on 11.4.1983 award was passed under Land Acquisition Act, 1894 acquiring Ac.1.10 guntas and put together it comes to Acs.6.08 guntas. Thus, even assuming that late Are Nana was owner of Ac.6.08 guntas, after 11.4.1983 no land remained with the family i.e., 33 years before Tahsildar undertook the exercise of revising the entries in the revenue records.
9. Even assuming that there was wrong entry made in the revenue records, having regard to the fact that issue relates to the year 1968-69, it is not permissible to undertake review of entries made in the revenue records after long lapse of time. A person can assert his right over land within reasonable time. A person cannot sleep over his right, rise like a phoenix and seek indulgence of an authority of the State to shower benevolence. The sale and acquisition transactions on land of family of the petitioner were completed by 11.4.1983, father of petitioner died on 25.1.1993, almost 10 years later; and petitioner made a claim for 4 the first time only in the year 2016, i.e., 23 years later to the death of his father. More than 40 years cannot be said as reasonable time for a person to assert his right over agricultural land. There is no satisfactory explanation offered except taking plea of clerical error of the entries made in the revenue records.
10. Learned counsel for petitioner does not dispute the factum of acquisition of land in the year 1983 but seek to contend that his father was not paid compensation, therefore, it cannot be said the land was acquired in accordance with law.
11. I do not appreciate this contention of learned counsel for petitioner for two reasons. Firstly, person by name Are Kashamma has contested the amount of compensation determined to acquire land to an extent of Ac.1.10 guntas stood in the name of father of the petitioner. At her instance compensation was enhanced. Learned counsel for petitioner sought to content that said Are Kashamma is not the wife of father of the petitioner. Whether, Are Kashamma is the wife of father of the petitioner or a false claim was made by her to illegally secure compensation, etc., cannot be gone into by this Court in this writ petition. If petitioner disputes the claim of Are Kashamma, he ought to have availed appropriate remedy as envisaged by repealed Land Acquisition Act, 1894, challenging the claim to secure compensation. Secondly, assuming that wrong person claimed compensation, it is for the petitioner to assert his right and seek to recover the compensation from that person. Insofar as State is concerned, award was passed on 11.4.1983; that award has become final; and the amount of compensation/the enhanced amount of compensation must have been already paid to the claimant therein. After selling land to an extent of Acs.4.38 guntas and acquisition of land by the State to an extent of Ac.1.10 5 guntas, no land remained with Are Nana family, for the petitioner to claim correction of a clerical mistake.
12. In fact, grave illegality was committed by the Tahsildar in the year 2016 in accepting plea of the petitioner, when he has no competence. The order of Tahsildar is not sustainable in law. This Tahsildar ought to have been proceeded against for such blatant illegality committed by him.
13. In the normal circumstances, the issue of maintainability of appeal decided by the Special Tribunal would have been gone into by this Court, but the Court is not inclined to set aside the order of the Special Tribunal as it will result in restoring another illegal order. It is settled principle of law that Court need not set aside an order, even if it is vitiated in law, if setting aside that order would result in restoring another illegal order.
14. In Pamshetty Jojappa (died) per LRs and others vs. State of Telangana and others (2020 (2) ALD 495 (TS)), this very issue was considered threadbear. This Court held as under:
"30. Writ remedy is discretionary remedy and equitable remedy. Granting of relief depends on the facts of a given case. Where injustice is palpable writ Court would come to the rescue of affected person and would grant relief. It is not bound by procedural limitations/delay. However, over a period of time Court opted to self-imposed restraint on its jurisdiction. Further, even when petitioners make out a point against sustainability of an order, writ Court need not grant relief if granting of relief would result is restoring another illegal decision. It must be exercised with great caution and only in furtherance of public interest or to set right grave illegality.
31. While considering the grievance in a petition under Article 226, the writ court need not grant relief merely because the petitioner makes out a legal point. 'It will be exercised only in furtherance of interests of justice and not merely on the making out of a legal point' [RAMNIKLAL N BHUTTA Vs. STATE OF MAHARASTRA((1997) 1 SCC 134)]. 'Even if a legal flaw can be electronically detected, this Court would not interfere save manifest injustice or unless a substantial question of public importance is involved [RASHPAL MALHOTRA Vs SATYA RAJPUT MRS AND ANOTHER (AIR 1987 SC 2235) and COUNCIL OF SCIENTIFIC AND INDUSTRIAL RESEARCH AND ANOTHER Vs. K G S BHATT (AIR 1089 SC 1972)]'.6
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34. The following principles can be deduced from the treasure trove of precedents:
(A) In exercise of power of judicial review under Article 226 of the Constitution of India, it being discretionary and equitable remedy, Writ Court may decline to grant the relief to a petitioner, in the given facts of a case, even if legal flaw in the decision of competent authority is made out.
(B) Even when there are procedural infirmities in taking a decision by statutory authority affecting the petitioner adversely, Court need not grant the relief prayed for, if setting aside the decision assailed would result in restoring another illegal decision."
15. Having regard to the facts noted above, it is apparent on the face of record that the decision of the Tahsildar ordering correction of the revenue records holding that there was clerical mistake in reflecting less extent of land to the account of Are Nana than his entitlement is ex facie illegal, without power or jurisdiction. Thus, setting aside the order of Special Tribunal would amount to restoring the illegal order of the Tahsildar and giving extra land to an extent of Ac.1.10 guntas to the petitioner, though no land remained to the account of the family of the petitioner after 11.3.1983. It would amount to undue enrichment.
16. For the aforesaid reasons, Court is not inclined to entertain the writ petition. Writ Petition is accordingly dismissed. Pending miscellaneous petitions, if any, shall stand closed."
The facts of the case makes it very clear that in respect of the land owned by the family, entries were made in the year 1968-69 and it was the case of the appellant/writ petitioner that in place of Acs.6.08 guntas of land, only Acs.4.38 guntas was entered in the revenue records. An application was preferred after a lapse of 7 about 40 years and the same was allowed by the Tahsildar on 12.04.2016.
In the considered opinion of this Court, the Tahsildar has committed an error in correcting the revenue entries after a lapse of 40 years without verifying the record. The Special Tribunal was therefore, justified in passing the order dated 18.06.2021. The other important aspect of the case is that the order passed by the learned Single Judge reveals that the remaining land was subject matter of land acquisition proceedings i.e., Ac.1.10 guntas and it was acquired by the State Government and an Award was passed on 11.04.1983.
Even an O.P was preferred by one Are Kashamma, claiming as wife of father of the petitioner i.e., O.P.No.208 of 1984 and the same was allowed vide judgment dated 23.07.1987 enhancing the compensation. Once this aspect of land acquisition is taken into account, no land remained in the family and the Tahsildar after 33 years took the exercise of revising the revenue proceedings.
In the considered opinion of this Court, the learned Single Judge was justified in dismissing the writ petition.
This Court does not find any reason to interfere with the order passed by the learned Single Judge.
8The writ appeal is accordingly dismissed. The miscellaneous applications pending, if any, shall stand closed. There shall be no order as to costs.
___________________________ SATISH CHANDRA SHARMA, CJ ___________________________ A.RAJASHEKER REDDY, J 05.11.2021 vs