Telangana High Court
Smt. Kotagiri Dhana Laxmi, vs Government Of Andhra Pradesh, on 28 March, 2024
THE HONOURABLE SRI JUSTICE J.SREENIVAS RAO
WRIT PETITION No.24046 of 2004
O R D E R:
This writ petition is filed for the following relief:
"... to issue an order, or direction or writ, more particularly, one in the nature of Writ of Certiorari or any of the appropriate writ or direction calling for the records on the file of the First Respondent in Case No.F2/ROR/11/2003 dated 05.07.2004 and quash the same insofar as the 'In view of the above, I am of the opinion that the dispute is of civil nature. Therefore, both parties are advised to approach Civil court on this issue", as illegal and consequently direct the respondents Nos.1 to 3 herein to enter the names of the petitioners herein in the Pattadar Passbook and Title deeds by deleting the name of the Respondent No.4 ..."
2. Brief facts of the case:
2.1. Petitioner No.1 is claiming that she is absolute owner and possessor of agricultural land to an extent of Ac.0.10 gts. in Sy.No.689, Ac.2.10 gts in Sy.No.690 and Ac.0.20 gts in Sy.No.691 and petitioner No.2 is claiming that he is absolute owner and possessor of agricultural land to an extent of Ac.2.14 gts. in Sy.No.690, total extent of Ac.5.14 gts., situated at Aitipamula village of Nakrekal Mandal, and the same was purchased from the original owners through registered sale deeds vide document bearing Nos.6782 and 6783 dated 17.11.1982 respectively and since then they have been in possession and enjoyment of the said property without any interference. They further stated that they constructed a Dal Mill in an extent of Ac.0.14 gts. under the name and style of JSR, J W.P.No.24046 of 2004 2 M/s.Gopalakrishna Dal Mill after obtaining necessary permissions from the concerned authorities and petitioners are doing business and they have not properly supervised the above said land. Taking advantage of the same, husband of respondent No.4, who is the patwar of the village, manipulated the records and obtained Form No.13-B certificate under Section 5-A of the Andhra Pradesh Rights in Land and Pattadar Pass Book Act (for short, 'the Act') in favour of respondent No.4.
2.2. Immediately after came to know about the same, petitioners have filed appeal before respondent No.2 under Section 5-B of the Act stating that respondent No.3 without issuing notice and without following the mandatory procedure prescribed under the Act as well as the Rules made thereunder issued 13-B certificate in favour of respondent No.4 behind the back of petitioners. They further stated that respondent No.2, without properly considering the same and without verifying the records, allowed the appeal in part to the extent of Ac.0.14 gts. covered by Dal Mill, and rejected the claim in respect of remaining extent of land Ac.5.00 by its order dated 12.04.1999 vide proceedings No.G/3294/1998 dated 12.04.1999.
Aggrieved by the same, petitioners have filed revision petition vide file No.F2/ROR/11/2003 before respondent No.1 under Section 9 of the Act. The Revisional Authority also simply confirmed the order of the appellate authority and held that the dispute is a civil nature, JSR, J W.P.No.24046 of 2004 3 therefore, both the parties are advised to approach the civil Court, by its order dated 05.07.2004. Questioning the above said order, petitioners filed the present writ petition.
3. Respondent Nos.4 and 5 filed counter affidavit contending that respondent No.4 purchased various extents of land, total Ac.5.14 gts., in Sy.Nos.689, 690 and 691, from petitioners through unregistered sale deed in the year 1986 and since then she has been in possession and enjoyment of the said property. After introduction of Section 5-A of the Act, respondent No.4 has made application for seeking regularization of un-registered sale deed and the same was regularized and 13-B certificate was issued in her favour on 19.09.1992 by respondent No.3. After lapse of more than six years, petitioners have filed appeal under Section 5-B of the Act, though the said appeal is not maintainable before respondent No.2 on the ground that the regularization proceedings were issued prior to introduction of 5-B of the Act i.e., on 31.10.1993. Respondent No.1 rightly dismissed the revision petition confirming the order of respondent No.2 and there is no illegality and irregularity in the impugned orders.
4. Heard Sri L.Prabhakar Reddy, learned counsel, representing Sri S.Ravi Kumar, learned counsel for the petitioners, and Sri V.Rama Krishna Reddy, learned counsel appearing for respondent JSR, J W.P.No.24046 of 2004 4 Nos.4 to 6 and learned Government Pleader for Revenue appearing on behalf of respondent Nos.1 to 3.
5. Learned counsel for the petitioners submits that petitioners have not alienated the subject land to an extent of Ac.5.14 gts. in Sy.Nos.689, 690 and 691 in favour of respondent No.4 nor executed the alleged unregistered sale deed. He further contended that husband of respondent No.4, who worked as Patwari, manipulated the records and obtained alleged 13-B certificate from respondent No.3, dated 19.09.1992 in the name of his wife/respondent No.4. He also contended that respondent No.3, without issuing notice and without following the mandatory procedure prescribed under the Act as well as the Rules made thereunder, issued 13-B certificate behind back of the petitioners and the same is gross violation of principles of natural justice.
5.1. He further contended that petitioners have made application under Right to Information Act to furnish the documents basing on which 13-B certificate was issued in favour of respondent No.4. Accordingly, respondent No.3 office issued memo dated 23.08.2014 stating that the above said file is not available. Soon after came to know about issuance of 13-B certificate, petitioners have filed statutory appeal before respondent No.2. He also contended that respondent No.4 has not produced the alleged unregistered sale deed before any authority including before this Court, as the same is JSR, J W.P.No.24046 of 2004 5 fabricated and created one and basing on the said alleged document, respondent No.4 is not entitled to claim any rights and interest over the subject property. He further contended that the appellate authority without properly considering the contentions of the petitioners, allowed the appeal in part only to an extent of Ac.0.14 gts. land covered by Dal Mill and insofar as remaining extent of land, dismissed the appeal by its order dated 12.04.1999. Aggrieved by the same, petitioners filed revision petition under Section 9 of the Act by raising several grounds. However, revisional authority without giving any reasons simply confirmed the order of the appellate authority, by its order dated 05.07.2004. 5.2. Learned counsel vehemently contended that the appellate authority as well as revisional authority, without considering the grounds raised by the petitioners and without verifying the record, passed the orders. He further contended that respondent No.4 has not raised any objection about maintainability of the appeal filed under Section 5-B of the Act by petitioners before appellate authority or before revisional authority and at this stage, she is not entitled to raise such objection. He further contended that petitioners' substantial rights are involved in the subject property and the appellate authority simply mentioned in the order that respondent No.3 issued notices to petitioners before issuance of 13- B proceedings, though petitioners have not received notices. The JSR, J W.P.No.24046 of 2004 6 impugned order passed by respondent No.1, confirming the order of respondent No.2, is contrary to law.
5.3. In support of his contention, he relied upon the following judgments.
1. Sawarni (smt) v. Inder Kaur (smt) and others 1
2. Chinnam Pnadurangam v. Mandal Revenue Officer, Serilingampally Mandal, Ranga Reddy District and others 2
3. The Rajasthan State Industrial Development and Investment Corporation and anr. V. Diamond and Gem Development Corporation Ltd. And another 3
4. T.Santosh Kumar and another v. Joint Collector, Mahabubnagar and others 4
5. Smt. Korem Lakshmi and others v. State of Telangana, rep. by its Principal Secretary, Revenue Department, Hyderabad and others 5
6. Telangana United teachers Federation, Adilabad District Unit rep. by its General Secretary, Bere Devanna, Adilabad v. State of Telangana rep. by its Principal Secretary, Revenue Department, Hyderabad and others 6
7. Salim D.Agboatwala and others v. Shamalji Oddhavji Thakkar and others 7
6. Per contra, learned counsel for respondent Nos.4 to 6 submits that respondent No.4 had purchased the subject property from 1 (1996) 6 SCC 223 2 2007 (6) ALD 348 (FB) 3 AIR 2013 SC 1241 4 2014 (4) ALD 738 5 2024 (2) ALT 133 (S.B.) 6 2024 (2) ALT 45 (S.B.) 7 (2021) 17 SCC 100 JSR, J W.P.No.24046 of 2004 7 petitioners through un-registered sale deed in the year 1986 and since then she has been in possession and enjoyment of the subject property. After introduction of the provision of Section 5-A of the Act, respondent No.4 has made an application for seeking regularization of un-registered sale deed and respondent No.3, after following the due procedure, issued 13-B certificate dated 19.09.1992 and pursuant to the same, her name was mutated in the revenue records and pattadar pass book and title deed were issued in her favour and she availed agricultural loan from the Cooperative Bank and obtained electricity service connection and doing agricultural activities in the said property and also raised lemon garden by investing huge amount. After lapse of more than six years, petitioners filed appeal before respondent No.2 invoking the provision of Section 5-B of the Act, though the same is not maintainable under law, as the said provision substituted by way of amendment of the Act 1994 with effect from 31.10.1993 and the same is prospective nature only and prior to introduction of Section 5-B of the Act, there is no remedy of appeal is provided under the Act. Hence, the appeal filed by petitioners before respondent No.2 is not maintainable under law. 6.1. He further contended that neither the revenue officials nor this Court is having jurisdiction to adjudicate whether un-registered sale deed executed by petitioners in the year 1986 is genuine or not JSR, J W.P.No.24046 of 2004 8 and to establish the same, the petitioners have to approach the competent Civil Court. The Appellate Authority as well as revisional authority rightly passed the orders and there is no illegality and irregularity in the said orders exercising the jurisdiction of this Court under Article 226 of the Constitution of India. 6.2. In support of his contention, he relied upon the following judgments:
1. M.B.Ratnam and others v. Revenue Divisonal Officer, Ranga Reddy District and others 8
2. Kiran Singh and others v. Chaman Paswan and others 9
3. Chief General Manager (IPC), Madhya Pradesh Power Trading Company Limited v. Narmada Equipments Private Limited 10
4. Chief Justice of A.P. and another v. L.V.A. Dikshitulu and others etc. 11
5. Bihar State Mineral Development Corporation and another v. Encon Builders (I) (P) Ltd 12
6. Joint Collector, Ranga Reddy District and another etc., v. D.Narsing Rao etc., and others etc., Chairman, Joint Action Committee of Employees, Teachers and Workers, A.P. v. D.Narsing Rao and others .etc., 13 8 2003 (1) ALD 826 (DB) 9 AIR 1954 SC 340 10 (2021) 14 SCC 548 11 AIR 1979 SC 193 12 (2003) 7 SCC 418 13 Air 2015 sc 1021 JSR, J W.P.No.24046 of 2004 9
7. Having considered the rival submissions made by the respective parties and after perusal of the material available on record, it reveals that petitioners are owners and possessors of agricultural land to an extent of Ac.5.14 gts. covered by Sy.No.689, 690 and 691 and they have purchased the said property through registered sale deeds vide document Nos.6782 and 6783 dated 17.11.1982 and they have also constructed Dal Mill in an extent of Ac.0.14 gts. in the name of M/s.Gopalakrishna Dal Mill. Whereas, respondent No.4 is claiming the rights over the subject property basing upon the unregistered sale deed said to have been executed by petitioners in the year 1986 and also basing upon 13-B certificate issued by respondent No.3 dated 19.09.1992. Pursuant to the above said proceedings, respondent No.4's name was mutated in the revenue records and pattadar pass book and title deed were issued in her favour. Questioning 13-B certificate issued by respondent No.3, petitioners have filed appeal invoking the provision of Section 5-B of the Act before respondent No.2.
8. It is relevant to place on record that Section 5-B of the Act substituted by way of Amended Act of 1994 and the same is given effect from 31.10.1993. Prior to insertion of the said provision, the remedy of appeal was not provided questioning the order passed under Section 5-A of the Act, and the said provision is only prospective nature, but not retrospective. However, appellate JSR, J W.P.No.24046 of 2004 10 authority adjudicated the appeal on merits and allowed the appeal in part holding that out of Ac.5.14 gts, in an extent of Ac.0.14 gts., petitioners have constructed Dal Mill and in such circumstances, respondent No.3 ought not to have issued 13-B certificate under the Act to an extent of Ac. 0.14 gts., and insofar as remaining extent of land Ac.5.00 is concerned, the claim of petitioners was rejected, by its order dated 05.07.2004. Questioning the said order, petitioners filed revision before respondent No.1 and the revisional authority dismissed the revision petition confirming the order of the appellate authority and further held that the dispute raised by the parties is in civil nature, as such, the parties are advised to approach the competent Civil Court by its order dated 05.07.2004. 9(i). In Sawarni (1 supra), the Hon'ble Supreme Court held that mutations in revenue records do not determine ownership rights, and title. Courts must thoroughly consider all evidence and legal aspects in property disputes.
9(ii). In Chinnam Pandurangam (2 supra), this Court held that while carrying out amendment in records of rights, requirement of issuance of notice to all persons interested is required under the ROR Act.
9(iii) In The Rajasthan State Industrial Development and Investment Corp. and Anr (3 supra) held that the party is not JSR, J W.P.No.24046 of 2004 11 entitled to take divergent stands and the same amounts to approbate and reprobate. Furthermore, the court emphasized that writ petitions cannot be entertained merely because they are lawful, as there must be an exhaustion of statutory or alternative remedies available under the law.
9(iv) In T. Santhosh kumar and Anr (4 supra), this Court held that without availing the remedy of appeal, the party can invoke the jurisdiction under Section 9 of the Act.
9(v). In Smt. Korem Lakshmi and others (5 supra), this Court held that relief can be molded although there may be no specific prayer, if the Court thinks that to meet the requirements and to do complete justice in the matter, the relief can be molded by the Court.
9(vi). In Telangana United teachers Federation, Adilabad District Unit rep. by its General Secretary, Bere Devanna, Adilabad (6 supra) this Court held that respondent No.3 has passed the cryptic order without assigning any reasons and confirmed the non-existing order passed by respondent No.4. Hence, this Court is invoking the extraordinary powers conferred under Article 226 and 227 of the Constitution of India moulding the relief to render substantial justice to parties.
JSR, J W.P.No.24046 of 2004 12 9(vii) In Salim D.Agboatwala and others (7 supra), the Hon'ble Apex Court held that that limitation is a mixed question of fact and law. It emphasizes that if a party, like the appellant-plaintiff, can establish that they only became aware of certain proceedings or documents after inspection of records, and if they can prove that such proceedings were collusive, fraudulent, or null and void, and then the issue of limitation cannot be used against them. The principle asserts that a party who was unaware of certain proceedings before a quasi-judicial authority and only approaches the Court upon gaining knowledge of those proceedings should not be subjected to limitation constraints. In essence, limitation cannot be invoked against a party who had no prior notice of the proceedings in question.
10. The above said judgments are not applicable to the present facts and circumstances of the case, on the sole ground that the appeal filed by the petitioners under Section 5-B of the Act before respondent No.2 is not maintainable under law and both the parties have raised several disputed questions of facts relating to title and possession and those aspects has to be adjudicated by the Competent Civil Court only.
JSR, J W.P.No.24046 of 2004 13
11. It is very much relevant to place on record that in K. Jaipal Reddy Vs. Joint Collector, Ranga Reddy District 14, the Division Bench of this Court by considering the judgments of the Hon'ble Apex Court as well as this Court held that revenue authorities have no power or jurisdiction to decide the complicated questions of title and possession. In the case on hand, the revisional authority, while dismissing the revision petition, rightly observed that the dispute between the parties is civil in nature and directed them to approach competent Civil Court.
12. In Ratnam (8 supra), the Hon'ble Division Bench of erstwhile High Court of Andhra Pradesh, Hyderabad, by considering the judgments of the Hon'ble Supreme Court and various High Courts specifically held that the right of appeal is only a creature of the Statute. Once it is created, it becomes a vested right. But, there is no automatic right of appeal unless it is provided for by the Statute itself. It is further held that the ROR Act did not provide any right of appeal or revision against the orders passed by the Mandal Revenue Officer under Section 5-A of the Act. Hence, the appeal filed by the appellants therein before the appellate authority invoking provision of Section 5-B of the Act is without jurisdiction.
13. In the case on hand respondent No.3 had issued 13-B certificate in favour of respondent No.4, dated 19.09.1992. As on 14 2023 (6) ALT 622 JSR, J W.P.No.24046 of 2004 14 that date or as on the date of initiation of the proceedings, there is no remedy of appeal is provided under Section 5-B of the Act against the order passed under Section 5-A of the Act. Section 5-B of the Act was inserted by virtue of Amending Act of 1994 with effect from 31.10.1993. Hence, by virtue of the principle laid down in M.B Ratnam (8 Supra) the appeal filed by the petitioners before respondent No.2 is not maintainable under law.
14. The contention raised by the learned counsel for petitioners that respondent No.4 has not raised objection with regard to jurisdiction and maintainability of the appeal under section 5-B of the Act, either before appellate authority or revisional authority, and she is estopped to raise such objections in the writ petition, is not tenable under law on the ground that jurisdiction aspects can be raised in subsequent stages including in collateral proceedings.
15. It is relevant to place on record that in Kiran Singh (9 supra) and Chief General Manager (IPC) (10 supra), the Hon'ble Apex Court held that the jurisdictional aspect can gone into at any stage including execution proceedings and even in collateral proceedings.
16. The other contentions raised by the learned counsel for petitioners that alleged unregistered sale deed is created and fabricated one and basing upon the same only respondent No.3 issued 13-B certificate in favour respondent No.4 and she is not JSR, J W.P.No.24046 of 2004 15 entitled to claim any rights over the subject property are disputed questions of facts and this Court is not inclined to go into the same and the petitioners have to approach the competent Civil Court to establish their claim.
17. Viewed from any angle, this Court do not find any grounds to interfere with the impugned order passed by respondent No.1 dated 05.07.2004 confirming the order of respondent No.2 dated 12.04.1999 to exercise the jurisdiction conferred under Article 226 of the Constitution of India, and the same is liable to be dismissed.
18. In the result, the writ petition is dismissed. However, the petitioners are granted liberty to approach the competent Civil Court to establish their rights over the subject property. No costs.
Miscellaneous petitions, if any pending, shall stand closed.
______________________ J.SREENIVAS RAO, J Date:28 .03.2024 mar