THE HON'BLE THE CHIEF JUSTICE UJJAL BHUYAN
AND
THE HON'BLE SRI JUSTICE C.V.BHASKAR REDDY
WRIT APPEAL Nos.105, 135 and 567 of 2009
COMMON JUDGMENT: (Per the Hon'ble the Chief Justice Ujjal Bhuyan)
This order will dispose of writ appeal Nos.105, 135
and 567 of 2009.
2. Heard Mr. V.Ramesh Reddy, learned counsel for the
appellants; Mr. T.Srikanth Reddy, learned Government
Pleader for Revenue representing respondent Nos.1 and 2
in W.A.Nos.105 and 135 of 2009 and respondent Nos.1 and
4 in W.A.No.567 of 2009; and Mr. O.Manoher Reddy,
learned Senior Counsel appearing for respondent Nos.3 to
7 (writ petitioners) in W.A.Nos.105 and 135 of 2009 and
respondent Nos.2 and 3 in W.A.No.567 of 2009.
3. W.A.No.105 of 2009 arises out of W.P.No.27317 of
1996; W.A.No.135 of 2009 arises out of W.P.No.27612 of
1996 and W.A.No.567 of 2009 arises out of W.P.No.1884 of
1997.
4. W.P.Nos.27317 and 27612 of 1996 were filed by the
unofficial respondents in the writ appeals as the writ
2
petitioners; whereas W.P.No.1884 of 1997 was filed by the
appellants. The three writ petitions were decided vide a
common order dated 07.11.2008. W.P.Nos.27317 and
27612 of 1996 were allowed. In so far W.P.No.1884 of 1997
is concerned, order dated 17.08.1996 which was under
impugnment, was set aside not at the instance of the
appellants who were the writ petitioners therein but on the
finding returned that the appellants had failed to establish
their entitlement for granting Occupancy Rights Certificate
under the Andhra Pradesh (Telangana Area) Abolition of
Inams Act, 1955 (briefly, 'the 1955 Act' hereinafter).
5. W.P.No.27317 of 1996 was filed by respondent Nos.3
to 7 as the writ petitioners assailing the legality and
validity of the order dated 28.06.1990 passed by the
District Revenue Officer, Hyderabad; W.P.No.27612 of 1996
was filed by respondent Nos.3 to 7 as the writ petitioners
for quashing of order dated 04.08.1990 passed by the
Revenue Divisional Officer, Hyderabad as well as the order
dated 17.08.1996 of the Joint Collector, Hyderabad
District; and finally W.P.No.1884 of 1997 was filed by
3
appellant Nos.1, 2 and 3 as the writ petitioners for
quashing of order dated 17.08.1996 passed by the Joint
Collector, Hyderabad District.
6. Facts
as can be discerned from the material papers and the order of the learned Single Judge are quite cumbersome being long and tedious, undergoing several twists and turns. For adjudication of the present appeals, it may not be necessary for us to go deep into the facts save except those which are material.
6.1. Chinnaboina Shantamma had filed an application before the Revenue Divisional Officer, Hyderabad on 08.07.1982 claiming Occupancy Rights Certificate in respect of the land to an extent of Acs.1.00 covered by survey No.12 of Baghlingampally ('subject land' hereinafter) as a long standing tenant under the inamdar. The said application was rejected by the Revenue Divisional Officer vide the order dated 24.01.1990 on the ground that there was no evidence of possession of Chinnaboina Shantamma as a tenant in the inam estate in the year 1955 though she had claimed to be in possession for more than four 4 decades. After dismissal of the aforesaid application vide the order dated 24.01.1990, Chinnaboina Shantamma had approached the District Revenue Officer, Hyderabad with an application under Section 15(2) of the Record of Rights in Land Regulation, 1358 Fasli (briefly, 'the Regulation' hereinafter) seeking rectification of the entries in the revenue records for the years 1955-56 to 1957-58 in respect of the subject land on the ground that it was an inam land and she was in occupation of the same for more than forty years. She claimed her right under the 1955 Act. The said application was allowed by the District Revenue Officer, Hyderabad by an order dated 28.06.1990. The said order was passed on the basis of a report of the Mandal Revenue Officer, Musheerabad Mandal.
7. On the basis of the aforesaid order dated 28.06.1990, Chinnaboina Shantamma, Chinnaboina Krishna and Chinnaboina Rajaiah filed the review petition before the Revenue Divisional Officer, Hyderabad seeking review of the order dated 24.01.1990 and issuance of Occupancy Rights Certificate in their favour under the 1955 Act in 5 respect of the subject land. By the order dated 04.08.1990, Revenue Divisional Officer, Hyderabad acting on the basis of rectification of revenue records by the District Revenue Officer allowed the review petition, reviewed the order dated 24.01.1990 and granted Occupancy Rights Certificate in favour of the above persons (appellants herein).
8. Assailing the grant of Occupancy Rights Certificate to the appellants vide the order dated 04.08.1990, writ petitioners filed appeal under Section 24 of the 1955 Act before the Joint Collector, Hyderabad. The matter thereafter underwent several rounds of litigation. Be that as it may, ultimately the appellate authority i.e., the Joint Collector remanded the case back to the Revenue Divisional Officer vide his order dated 17.08.1996.
9. The order of the Joint Collector dated 17.08.1996 was questioned in W.P.No.27612 of 1996 by the unofficial respondents herein as the writ petitioners and in W.P.No.1884 of 1997 by the appellants herein. On the other hand, the order dated 28.06.1990 passed by the 6 District Revenue Officer rectifying the entries in the revenue records in favour of Chinnaboina Shantamma is the subject matter of challenge in W.P.No.27317 of 1996.
10. In so far the order dated 28.06.1990 is concerned, leaned Single Judge held as follows:
Insofar as the order dated 28.06.1990
passed by the District Revenue Officer,
Hyderabad, rectifying the entries in the revenue records is concerned, it is clear that the same was passed upon a revision petition filed by respondent 3 under the provisions of Section 15(2) of the Regulation of 1358F. However, the Regulation of 1358F was repealed by Section 13 of the Act of 1971. Consequently, the District Revenue Officer, Hyderabad, ought not to have entertained the application filed by respondent 3 under the repealed Regulation for rectification of the entries. The order dated 28.06.1990 is, therefore, inherently lacking in jurisdiction and is completely devoid of the authority of law. 10.1. Thus learned Single Judge held the order dated 28.06.1990 to be illegal, being wholly without jurisdiction.
11. As to the order dated 04.08.1990 of the Revenue Divisional Officer granting Occupancy Rights Certificate to 7 the appellants, learned Single Judge noted that the unsustainable order dated 28.06.1990 was the foundation for the said order. On the basis of an illegal order, no Occupancy Rights Certificates could have been granted. That apart, the said order was passed on a review petition filed by the appellants. Learned Single Judge noted that there was no power conferred upon the Revenue Divisional Officer under the 1955 Act to entertain a review petition. Adverting to decisions of the Supreme Court in Patel Narshi Thakershi v. Shri Pradyuman Singhji Arjunshinghji1 and Lily Thomas v. Union of India2, learned Single Judge held that power of review is not an inherent power. It cannot be used as an appeal in disguise. Power of review is the creation of a statute. Therefore, in the absence of any provision for review in the 1955 Act, it was not open to the Revenue Divisional Officer to entertain the review petition, thereafter reviewing his own order dated 24.01.1990 and passing fresh order on 04.08.1990 granting Occupancy Rights Certificate to the appellants. Though on this ground itself, order dated 04.08.1990 was liable to be set aside and 1 AIR 1970 SC 1273 2 AIR 2000 SC 1650 8 quashed nonetheless, learned Single Judge went into the merit and examined the basic entitlement of the appellants to Occupancy Rights Certificate. Learned Single Judge recorded a finding of fact that there was no mention at all in any of the proceedings that Chinnaboina Shantamma could demonstrate her status as a tenant. The inamdar under whom she claimed to be an alleged tenant Ramchander Rao never put his appearance in any of the proceedings; on the contrary there was a finding by the competent authority that he was a fictitious person. In addition thereto, learned Single Judge held as follows:
Further, the Revenue Divisional Officer, Hyderabad, did not examine the issue of respondents 3 to 5 asserting a claim for grant of an occupancy certificate basing upon the revenue records of the years 1955-58, when law required that for the said purpose, they should be in possession of the land as on 01.11.1973, which is the date on which the rest of the provisions of the Act of 1955 were brought into force in the State of Andhra Pradesh. In this regard, the Judgment of a Division Bench of this Court in B.Ramender Reddy v. District Collector, Hyderabad District (1993 (2) An.W.R. 84 (DB)) relied upon by the learned counsel for the petitioners, is significant.9
In the said Judgment, this Court held that notwithstanding the abolition of the inams on 20.07.1955 and vesting of such inams in the State, the rights of the Inamdar or tenant were not extinguished, provided they were in possession of the inam land on 01.11.1973, when the rest of the provisions of the Act of 1955 were brought into force in the State of Andhra Pradesh. This Court held that the right to get an occupancy certificate is not correlated to the vesting of the inams in the Government. This Court further held that though the inam land vested in the State on 20.07.1955, if the Inamdar or the tenant was in possession of the land as on 01.11.1973, he would be entitled to occupancy rights under the Act of 1955.
This view was affirmed by another Division Bench of this Court in a subsequent Judgment in S.Veera Reddy v. Chetlapalli Chandraiah (1995 (2) ALT 172 (DB)). In the light of the above stated legal position, as recognized and affirmed by this Court in the Judgments referred above, it is clear that the respondents 3 to 5 could have asserted a right for an occupancy certificate under the Act of 1955 only by establishing their possession as on the relevant date, which is 01.11.1973. It is apparent from the material on record that respondents 3 to 5 neither asserted nor proved that they were in possession of the subject land as on that date.
12. As to challenge to the appellate order dated 17.08.1996 is concerned, learned Single Judge held that 10 Joint Collector as the appellate authority had failed to apply his mind to the relevant facts. Finally, learned Single Judge held as follows:
On a conspectus of the legal issues and the findings detailed hereinabove, I hold that there are material defects and lacunae in the order dated 04.08.1990 passed by the Revenue Divisional Officer, Hyderabad, granting an occupancy certificate under the Act of 1955 to respondents 3 to 5 and also in the order dated 17.08.1996 passed by the appellate authority, the Joint Collector, Hyderabad, remanding the matter, without proper application of mind to the issues raised in the appeal. Further, the order dated 28.06.1990 passed by the District Revenue Officer, Hyderabad, rectifying the revenue records for the years 1955-58 as sought by the respondent 3, is found to be completely without jurisdiction being in exercise of power conferred by a repealed enactment.
Writ Petition Nos.27317 and 27612 of 1996 are therefore allowed. Insofar as Writ Petition No.1884 of 1997 is concerned, the order dated 17.08.1996 passed by the Joint Collector, Hyderabad, is set aside as prayed for, but for the reasons aforestated, duly holding that respondents 3 to 5, being the petitioners therein, failed to establish their entitlement for grant of an occupancy certificate under the Act of 1955. The said writ petition is closed with the above finding. There shall be no order as to costs.11
13. The three related writ petitions raised highly contentious disputes between the parties. Learned Single Judge took great pains in navigating through the voluminous record and factual narration and thereafter applied the correct legal principles in determining legality and validity of the orders dated 28.06.1990, 04.08.1990 and 17.08.1996. For the reasons given by the learned Single Judge all the above three orders have been found to be wholly unsustainable in law as well as on facts. Those were accordingly set aside and quashed.
14. We have no hesitation in concurring with the views expressed by the learned Single Judge.
15. Appellants have not been able to point any error or infirmity in the views taken by the learned Single Judge. Claim of the first appellant since deceased as the tenant of the inamdar has been negatived by the learned Single Judge on appreciation of material facts followed by the further finding that the inamdar himself was a fictitious person.
12
16. That being the position, we find no good reason at all to interfere with the order passed by the learned Single Judge. Consequently, there is no merit in the three writ appeals and those are accordingly dismissed. However, there shall be no order as to cost.
Miscellaneous applications, pending if any, shall stand closed.
______________________________________ UJJAL BHUYAN, CJ ______________________________________ C.V.BHASKAR REDDY, J 26.10.2022 pln