THE HON'BLE SRI JUSTICE A.ABHISHEK REDDY
WRIT PETITION No.21924 of 2021
ORDER:
Seeking to call for the records relating to and connected with the order dated 30.06.2021 on the file of respondent No.2 as made in Old Case No.F3/74052007-F3/83/ROR/2007 confirming its own order dated 01.02.2021 reversing the order of the respondent No.4 in File No.A3/2967/2007 dated 20.06.2007 and quash the same as illegal and illegal and arbitrary, the present writ petition is filed.
2) The case of the petitioners, in brief, is that one Kashinath Rao, the vendor of the petitioners, has succeeded the estate of Late Vitta Bai, being her adopted son. Said Vitta Bai, during her life time, has filed O.S. No.2 of 1969 before the Subordinate Judge, Sangareddy, seeking to declare her as the legal heir of late Bheem Rao, for recovery of possession and mesne profits in respect of the lands in survey Nos.1, 4, 10 and 28 of Cheemalpad Village of Kangti Mandal, against the father of respondent No.7 herein and another and the said suit was decreed vide judgment and decree dated 14.10.1970. Aggrieved by the same, the father of respondent No.7 herein filed an appeal being A.S. No.516 of 1970 and the same was also dismissed vide judgment and decree dated 14.08.1972. Questioning the same, again the father of respondent No.7 preferred Letters Patent Appeal in LPA No.216 of 1972, which was also dismissed with costs vide judgment and decree dated 06.12.1973. Pursuant to the same, possession of the subject lands was delivered by the trial Court in execution proceedings. While so, the tenants of these lands viz., M. Pentaiah and other, claiming themselves to be the protected tenants through Mr. Kashinath Rao filed suit for recovery of amount in pursuance to the acquisition of 2 AAR, J W.P.No.21924 of 2021 the lands to the tune of Rs.28,776.80/- in O.S. No.38/1980 and the said suit was partly decreed by declaring their rights and entitlement of compensation at 60% vide judgment and decree dated 30.12.1982. It is the specific case of the petitioners that said Kashinath Rao sold land admeasuring Acs.4-25 guntas to petitioner No.1 and Acs.4-25 guntas to petitioner No.2 in survey No.10 of Chimalpad Village, Kanthi Mandal, Sanga Reddy District, on 19.07.2007 through a registered sale deed. Further, on 05.06.2007, said Kashinath Rao filed an application before respondent No.4-Revenue Divisional Officer (RDO) seeking to amend the entries in revenue records in terms of the Civil Court decrees, referred to above. After examining the matter, vide order dated 20.06.2007 respondent No.4 directed the respondent No.5- Tahsildar (MRO) to mutate the name of Kashinath Rao in the revenue records. Aggrieved by the order dated 20.06.2007 passed by respondent No.4, respondents 6 to 9 herein filed a revision under Section 9 of the Rights in Land and Pattadar Pass Books Act in respect of the land in survey No.10 before the Joint Collector. Consequent to establishment of Special Tribunals, the case was transferred to respondent No.2-Special Tribunal. Vide order dated 01.02.2021, the Tribunal has allowed the revision filed by respondent Nos.6 to 9. Subsequent to the orders of the Division Bench of this Court in WP (PIL) No.20 of 2021, dated 18.03.2021, petitioners have made a representation seeking to reopen the matter and reconsider the order dated 01.02.2021. Consequently, the Special Tribunal has reopened the matter and passed order dated 30.06.2021 confirming the earlier order dated 01.02.2021. Seeking to set aside the same, the present writ petition is filed.
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3) Respondent Nos.6, 7 and 9 filed a counter affidavit mainly contending that by virtue of The Telangana Tenancy and Agricultural Lands Act, 1950 (for short 'Tenancy Act') which came into force from 1950, one Sri Narayana S/o.Ramanna and Sri Doulya S/o.Poshiga were declared as protected tenants. Thereafter under the provision of Section 38-E, they were granted ownership rights in respect of the land in survey No.10 to the extent of Acs.9-14 guntas each and the certificate was conferred upon them by the Additional Revenue Divisional Officer, Sangareddy, vide file No.B1/1311/74, the said order was affirmed by the Joint Collector, Medak at Sangareddy, in file No.C3/116/1982 vide order dated 10.05.1983, and the said order has become final. Respondent Nos.6 and 7 herein have purchased the land admeasuring Acs.9-14 guntas in survey No.10 from the legal heirs of Vadla Narayana under registered sale deeds dated 03.01.1994. Further, the inherited rights were devolved upon respondent Nos.8 and 9 and others, who are the legal heirs of Perrappa, the son of one of the protected tenant viz., Doulya. It is further averred that the names of the unofficial respondents were mutated in the revenue records. It is further contended that the RDO without taking note of the fact that the protected tenants have been conferred the absolute rights w.e.f.01.01.1973 under Section 38-E has directed the MRO to implement the judgment of the civil Court after a long lapse of more than 25 years from the date of decree. Hence, it is stated that the purchase of the land admeasuring Acs.9-10 guntas by the writ petitioners, based on such wrong entries, have no validity. Further, the revenue authorities have failed to see that subject survey No.10 is not covered by O.S. No.38 of 1980 and the writ petitioners nor their vendor/s were ever in possession of the subject property and 4 AAR, J W.P.No.21924 of 2021 the possession was always with these respondents and their predecessors. Therefore, it is prayed to dismiss the writ petition.
4) A reply affidavit has been filed mainly contending that the protected tenants are entitled only to 60% of the land therefore incorporation of the names of protected tenants in respect of the entire land to an extent of Acs.9-14 guntas each is illegal and they are entitled only to extent of 60% of the said land. It is further averred that the petitioners are in possession of the subject lands. Hence, it is prayed to allow the writ petition.
5) Heard the learned counsel for the petitioners, the learned Government Pleader for Revenue for respondent Nos.1 to 5, and Sri R.Vinod Reddy, learned counsel for the contesting respondents.
6) The subject matter of the present writ petition pertains to survey No.10 of Cheemalpad Village of Kangti Mandal admeasuring Acs.23.07 guntas. A perusal of the material on record shows that the predecessor-in-interest of the petitioners herein Sri Kashinath Rao has filed an application before the RDO, Sanga Reddy, on 07.06.2007 requesting to implement the orders passed in O.S. No.2 of 1969, O.S. No.38 of 1980 and LPA No.216 of 1972 duly deleting the name of Digamber Rao in col.No.12 of pahani patrika for the year 2004-2005 and 2005-2006 and incorporate his name to the extent of 40% of the land therein and the balance 60% in the name of the protected tenants and the same was ordered by the RDO on 20.06.2007 vide Proc.No.A3/2967/2007. Aggrieved by the order dated 20.06.2007, the predecessors-in-interest of respondent Nos.6 to 9 herein have filed a revision before the Joint Collector. Pursuant to issuance of G.O.Ms.No.4, Revenue (Assignment-I) 5 AAR, J W.P.No.21924 of 2021 Department, dated 12.01.2021, constituting Special Tribunal at District level to deal with ROR Appeal cases as per Section 16(1) of the Record of Right in Land and Pattadar Pass Books Act, 2020, the case was transferred from the file of the Joint Collector to the Special Tribunal. The Special Tribunal, vide order dated 01.02.2021, has allowed the revision filed by the predecessors-in- interest of the respondent Nos.6 to 9 and directed the Tahsildar concerned to delete the entries made in favour of the petitioners herein and restore the entries as they were existing prior to the passing of the order by the RDO on 20.06.2007. However, based on the orders passed by the Division Bench of this Court in W.P. (PIL) No.20 of 2021, the petitioners herein have filed an application before the Special Tribunal for re-opening the matter. Accordingly, the Special Tribunal has re-opened the matter and vide order, dated 30.06.2021 again the Special Tribunal has dismissed the review filed by the petitioners and reiterated its earlier order dated 01.02.2021. Seeking to set aside the order, dated 30.06.2021, the present writ petition is filed.
7) Learned counsel for the petitioners has argued that the Special Tribunal, without taking into consideration the fact that the RDO has only implemented the judgment and decree passed by the Civil Court which order become final as no appeal was filed, has committed error in allowing the revision filed by the unofficial respondents herein. Learned counsel has further stated that on the earlier occasion, the mother of Sri Kashinath Rao had herself filed a civil suit which was decreed in her favour and the same was affirmed in the First Appeal as well as the Letter Patent Appeal filed by the contesting respondents therein. Consequently, Sri 6 AAR, J W.P.No.21924 of 2021 Kashinath Rao was put in possession of the subject property under a cover of panchanama by the trial Court. Learned counsel has further stated that once the Civil Court decree has been implemented, the revenue authorities cannot ignore the same and pass contrary orders. The Special Tribunal without taking into consideration the above facts has erroneously allowed the revision.
8) Per contra, the learned counsel for the contesting respondents has stated that the order of the RDO was without any notice to the unofficial respondents. Moreover, the order which was sought to be implemented is the judgment and decree dated 30.12.1982 passed in O.S. No.38 of 1980 and the application for correction was made in the year 2007 i.e. after a long lapse of more than 25 years. Learned counsel has emphasized that survey No.10 was not the subject matter of the said suit and the said suit was filed for recovery of compensation amount, which was taken away by Sri Kashinath Rao in respect of survey Nos.1, 2 and 4. As per the provisions of he Tenancy Act, the protected tenants are entitled to have 60% interest in the land and the landlord is entitled for the balance 40%, whenever the said lands are acquired. The judgment and decree of the Civil Court passed in O.S. No.38 of 1980 is in consonance with the provisions of the Tenancy Act. But, the same principle cannot be applied to other lands which were not acquired. Insofar as survey No.10 is concerned, the predecessors-in-interest of respondent Nos.6 to 9 i.e. Sri Narayana S/o.Ramanna and Doulya S/o.Poshiga were already issued with 38-E certificate under the provisions of the Tenancy Act for an extent of Acs.9-14 guntas each. Once the 38-E certificate is granted in favour of the protected tenants, they will become the absolute owners and the question of 7 AAR, J W.P.No.21924 of 2021 there being any residuary interest in favour of the landlord does not arise. The order of the Special Tribunal is perfectly justified and the same does not warrant any interference by this Court.
9) A perusal of the impugned order passed by the Special Tribunal shows that the Special Tribunal duly taking into consideration the fact that the application made by the predecessor-in-interest of the petitioners for mutation in his favour is after a lapse of more than 25 years and that no notice was served on respondent Nos.6 to 9 herein has set aside the same. The Special Tribunal took note of the fact that once the 38-E certificate is granted in favour of the predecessors-in-interest of respondent Nos.6 to 9, the question of mutating the name of the landlord in the revenue records as the owner and possessor does not arise. Even though the learned counsel for the petitioners has taken the ground that 38-E certificate issued in favour of the predecessors-in-interest of the unofficial respondents has not seen the light of the day and the Tribunal has erred in passing the impugned order, it is pertinent to note that along with the counter filed by the contesting respondents, 38-E certificate granted in favour of the predecessors- in-interest of respondent Nos.6 to 9 has been filed and in the reply filed by the petitioners, there is no denial with regard to the Certificate that has been issued. Under the provisions of the Tenancy Act, those protected tenants, who are found to be in possession as on the notified date i.e. 01.01.1973 and whose names are subsisting in the Protected Tenancy Register, were conferred ownership rights under the provision of Section 38-E of the Tenancy Act, provided, they meet the criterion laid down in the said section. Once, the 38-E certificate is issued in favour of those 8 AAR, J W.P.No.21924 of 2021 eligible protected tenants, they are deemed to be the absolute owners and possessors of the said lands for the extents for which the 38-E certificate has been granted and the original landlord will loose all interest, right and title to the said property. If the protected tenant is in possession of more extent of land, after deleting the extent for which 38-E certificate is granted, he will continue to be a protected tenant of that remaining extent.
10) Moreover, as seen from the application of Sri Kashinath Rao, the application for mutation was filed seeking implementation of the orders of the Civil Court in O.S. No.38 of 1980, but the judgment and decree dated 30.12.1982 in O.S. No.38 of 1980 does not pertain to survey No.10 and it pertains to only survey Nos.1, 2 and 4 of the Cheemalpad Village. Further, the said judgment and decree is dated 30.12.1982 whereas the application seeking implementation was filed in the year 2007 i.e. after a long lapse of 25 years, by which time, the 38-E certificates were already issued in favour of the predecessors-in-interest of respondent Nos.6 to 9 for an extent of Acs.9-14 guntas each. It at all Kashinath Rao had any interest in the land, it could only be for the residuary extent of land after the area for which 38-E certificates were issued but not for the total extent of the land. Even the order of the RDO dividing the interest/share of the protected tenant and the landlord in the ratio of 60:40 insofar as the tenancy lands are concerned is totally unheard and contrary to the provisions of the Tenancy Act, 1950.
11) As per the provisions of the Tenancy Act whenever any land is acquired, the compensation payable will be divided between the protected tenants and the landlords in the ratio of 60:40 respectively. The said Section only protects the interest of the 9 AAR, J W.P.No.21924 of 2021 protected tenant and the landlord whenever the lands are acquired or mutually sold but the same cannot be the basis for mutating the names of the protected tenant or the landlord in the ratio of 60:40 in the revenue records. In the absence of any provision of law which states that the interest of the protected tenant and landlord should be recorded in the revenue records in the ratio of 60:40 respectively, the order of the RDO is without jurisdiction and non est in the eye of law. In such a situation, there is nothing wrong in the order of the Special Tribunal setting aside the order of the RDO.
12) It is pertinent to note that the protected tenants will not become the pattedars unless and until they have been conferred with 38-E certificate or they have purchased the land under Section 38-A or where the landlord agrees to relinquish his share in favour of the protected tenant under Section 38-B or where the protected tenant purchases the land under 38-D of the Tenancy Act, but not otherwise. Only in the above mentioned cases, the names of the protected tenants will be entered in the pattedar column otherwise they will remain as protected tenants and their names will be reflected in the possession column. In this particular case, 38-E certificate has been issued in favour of the protected tenants for an extent of Acs.18.24 gts., out of total extent of Acs.23.07 gts. in the year 1974 and the said order has become final. Therefore, the application of the said Kashinath Rao in the year 2007 is without any legal basis and the RDO ought to have rejected the same.
13) It is well settled proposition of law that mere entries in the revenue records do not confer any right, title or interest on the 10 AAR, J W.P.No.21924 of 2021 persons in whose names, the entries are made. The said entries do not take away the vested rights of the true owner. It is general law that any entry made in the revenue record should be supported by corresponding proceedings/orders issued by the competent authority under the provisions of the ROR Act. Under normal circumstances, when a party acquires any right, title or interest in a property, he/she makes an application before the primary authority (Tahsildar) seeking inclusion of his/her name in the revenue records and for correction of the records. On that basis, the concerned primary authority (Tahsildar) issues notices to the actual person in whose name the entries are existing apart from issuing general notices to all the persons interested by pasting the same at the Gram Panchayat Office or the Tahsildar Office, as the case may be. Only thereafter, after hearing the objections or the rival claims, if any, filed by any person, the concerned primary authority (Tahsildar) passes orders under the provisions of the ROR Act. The concerned Village Revenue Officer will then take steps to amend the record of rights as per the orders of the Tahasildar. In the case on hand, the said procedure was not followed and the respondent Nos.6 to 9 or their predecessors-in-interest were not put on notice before effecting the changes in the revenue records.
14) A full Bench of this Court in Chinnam Pandurangam vs. Mandal Revenue Officer, Serilingampally1 has held as under:
"10. The issue deserves to be considered from another angle. If an application is made for amendment of the existing entries in the Record of Rights, the person whose name already exists in such record is entitled to contest the proposed amendment. He can do so only if a notice 1 2007 (6)ALD 348 FB 11 AAR, J W.P.No.21924 of 2021 regarding the proposed amendment is given to him by the recording authority. An order passed against a person whose name already exist in the Record of Rights without giving him notice of the proposed amendment and effective opportunity of hearing is liable to be declared nullity on the ground of violation of the rule of audi alteram partem, which, as mentioned above, represent the most important facet of the rules of natural justice. It needs no emphasis that the rules of natural justice are applicable in all judicial and quasi- judicial proceedings. The rule of hearing is also applicable in purely administrative proceedings and actions where any public authority passes an order affecting the rights of any individual. The applicability of the rules of natural justice to purely administrative actions has been recognized by the Supreme Court in State of Orissa v. Dr. (Miss) Binapani Del, AIR 1967 SC 1269 and has been reiterated in Maneka Gandhi v. Union of India, AIR 1978 SC 597, S.L. Kapoor v. Jagmohan, AIR 1981 SC 136, Swadeshi Cotton Mills v. Union of India, AIR 1981 SC 818 and Olga Tellis v. Bombay Municipal Corporation, AIR 1986 SC 180.
11. From the above discussion, it is clear that the requirement of issuing notice in writing to all persons whose names are entered in the Record of Rights and who are interested in or affected by the amendment is independent of the requirement of publication of notice in accordance with the second part of Section 5 (3) read with Rules 19 and 5 (2) of the Rules. The language of Form-VIII in which the notice is required to be published cannot control the interpretation of the substantive provision contained in Section 5 (3) which, as mentioned above, casts a duty on the recording authority to issue 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 proposed amendment."
Once it is found that no notice was given to the persons interested or persons whose names are entered in the revenue record, the orders have to be declared as non est and void ab initio.
15) That apart, as per the provisions of the ROR Act, more particularly, Section 4 thereof, any person who acquires any interest, right or title over the property, has to file an application 12 AAR, J W.P.No.21924 of 2021 before the MRO seeking implementation of his name or correction of the revenue records, within a period of 30 days from the date of the said acquisition of right/title. In the case on hand, said Kashinath Rao has filed the application after a lapse of more than 25 years. It is also pertinent to note that the said application was filed on 07.06.2021 and the order was passed by the RDO on 20.06.2007 i.e. within a period of two weeks, without putting the respondent Nos.6 to 9 or their predecessors-in-interest on notice.
16) For the afore-stated reasons and in view of the law laid down by this Court in Chinnam Pandurangam, this Court does not find any infirmity or illegality in the order passed by the Special Tribunal and the Writ Petition is accordingly dismissed.
Miscellaneous petitions pending in this writ petition, if any, shall stand closed. There shall be no order as to costs.
________________________ A.ABHISHEK REDDY, J Date : 18.10.2021 sur