Vaddemani Chandra Sekhar Reddy, ... vs The State Of Andhra Pradesh Rep., ...
2022 Latest Caselaw 1619 AP

 THE HON'BLE SRI JUSTICE M.SATYANARAYANA MURTHY

                WRIT PETITON NO.18867 OF 2015

ORDER:

This writ petition is filed under Article 226 of Constitution

of India, claiming the following relief:

"To issue Writ of Mandamus declaring the order in D.Dis.E2/3834/2011 dated 10.06.2015 passed by the respondent No.2 ordering to delete the entries relating to the land in an extent of Ac.1-94 cents in Sy.No.330 of T.Sunkesula Village, Yerraguntla Mandal, Y.S.R District from the Pattadar Pass Books and Title Deed No.445285 issued in petitioner favor and also ordering for initiation of criminal proceedings while dismissing the revision filed by petitioner against the orders D.Dis.ROR/A/1488/2011 dated 01.12.2011 passed by Respondent No.3 as arbitrary, illegal, contrary to the provisions of A.P Rights in Land and Pattadar Pass Book Act, 1971 and also A.P Rights in Land and Pattadar Pass Book Rules 1989 and settled principles of legal position apart from being violative of fundamental rights guaranteed to petitioner under Articles 14, 19 and 21 of the Constitution of India and consequently set aside the same."

The case of the petitioner in brief is that, the land of an

extent of Ac.3-88 cents in Sy.No.330 of T. Sunkesula Village,

Yerraguntla Mandal, Y.S.R District was acquired by the

grandfather of this petitioner Vaddemani Chennaiah and the same

was in his possession and enjoyment till the year 1956. While so,

in the year 1956, the petitioner‟s grandfather executed a Gift

Settlement Deed dated 10.07.1956 in favour of his sons namely

Peddapulla Rddy (paternal uncle of the petitioner) and Chinna

Pulla Reddy (father of this petitioner), settling all properties

including the land in an extent of Ac.3-88 cents in Sy.No.330 of

T. Sunkesula Village, Yerraguntla Mandal, Y.S.R District, at an

extent of Ac.1-94 cents to each i.e. Peddapulla Rddy and Chinna

Pulla Reddy.

Since the date of execution of Gift Settlement Deed in favour

of petitioner‟s paternal uncle and petitioner‟s father, they were 2 MSM, J W.P.No.18867 of 2015

enjoying their respective shares independently. While so, the

petitioner‟s paternal uncle - late Pedda Pulla Reddy got mutation of

the revenue records for his share in favour of his wife Smt.

Vaddemani Akkaiah i.e. Respondent No.5 and the petitioner‟s

father got mutated his name in the revenue records in respect of

the share allotted to him.

Thereafter, Respondent No.5 who is none other than the

petitioner‟s paternal aunt, filed an appeal before Respondent No.3

at the instance of her son for cancellation of the Pattdar Pass Book

and Title Deed issued in favour of the petitioner and Respondent

No.3 entertained the appeal, even though the same is not

maintainable, as the same was filed after long lapse of limitation

period and ordered for cancellation of Pattadar Pass Book and Title

Deed issued in favour of the petitioner. Therefore, entertaining an

appeal by the Revenue Divisional Officer/Respondent No.3 and

passing an order for cancellation of Pattdar Pass Book and Title

Deed is contrary to the provisions of Andhra Pradesh Rights in

Land and Pattadar Pass Book Act, 1971 (for short „the Act‟) and

that, Respondent No.3 has no jurisdiction to entertain an appeal

under Section 5(5) of the Act, in the absence of any order passed

by the recording authority for such cancellation or otherwise.

Therefore, the order is passed without jurisdiction and requested

to set-aside the order of the Revenue Divisional

Officer/Respondent No.3 in D.Dis.ROR/A/1488/2011 dated

01.12.2011.

On behalf of Respondent Nos. 1 & 2, Chief Executive Officer,

Andhra Pradesh State Waqf Board, Vijayawada filed common

counter affidavit denying material allegations, contending that, the 3 MSM, J W.P.No.18867 of 2015

subject Dargah i.e. Hzt. Syed Baji Shaheed Rh. Peddakakani,

Guntur is a notified waqf, published in A.P. Gazette on

28.06.1962, so also appointment of these petitioners as successors

of notified Mutawallis. The petitioners who are discharging the

duties as Mutawallis are public servants under the provisions of

Waqf Act and they are bound to discharge the duties as laid down

under Section 50 of the Waqf Act, 1995 and the Waqf Board can

initate action for their omission and commissions. Proceedings

dated 11.04.2014 were issued suspending the petitioners.

Aggrieved thereby, the petitioners filed W.P.No.12581 of 2014,

where in the High Court passed interim orders observing that the

impugned orders shall remain in force only for a period of ten days.

It is contended that the Waqf Board is having statutory

powers under Section 32 of the Act and has overall supervision on

all Waqf institutions including the subject Dargah. The Waqf Board

issued proceedings dated 10.12.2014 inviting tenders for collection

of offerings. On that the petitioners filed W.P.No.39115 of 2014,

wherein the High Court passed interim orders and subsequently

vacated the same. It is contended that the petitioners were not

affected of their personal rights in respect of waqf property either

as beneficiaries or in any other capacity. As the third respondent

could not complete his enquiry, the Waqf Board appointed one

Saheb Khan as Enquiry Officer who submitted his report on

05.11.2016. After separation of erstwhile Waqf Board, A.P. Waqf

Board was constituted by the Central Government vide Notification

dated 31.10.2015. Pursuant to the said notification, members of

the Board were elected on 13.03.2018 by means of Electoral

College Members of the Board. But, unfortunately, within a short 4 MSM, J W.P.No.18867 of 2015

period, the Chair Person resigned to the said post. Apart from that,

two more members of the board resigned from the Membership, as

such, the Board became defunct and thereby no transactions are

being done by members who are in minority and no orders are

obtained from the Board. It is contended that, the Chief Executive

Officer on his own accord have no right to pass any orders under

the provisions of Waqf Act, 1995 and in the circumstances stated

above, the enquiry report could not be finalized and that there are

no administrative latches on the part of the Chief Administrative

Officer and requested to dismiss the writ petition.

Respondent No.4 - Tahsildar, Yerraguntla Mandal filed

counter affidavit, denying material allegations, raising several

contentions, inter alia contending that, the subject land belongs to

the Government and the same cannot be recorded in the name of

the petitioner by mutating the name. It is also contended that, the

unlawful and fraudulent acts of the petitioner, making fraudulent

entry of the land in pattadar pass book and title deed and 1-B

Register with the collusion of Village Revenue Officer is

unwarranted and not maintainable under law and finally requested

to dismiss the writ petition.

The main grievance of the petitioner before this Court is that,

the Revenue Divisional Officer/Respondent No.3 ought not to have

entertained an appeal under Section 5(5) of the Act.

Whereas, learned Government Pleader for Revenue

contended that, there are bogus entries in the revenue records and

criminal prosecution is initiated against this petitioner for getting

the entries mutated in the revenue records, more particularly,

Pattdar Pass Book and Title Deed and prosecuting those 5 MSM, J W.P.No.18867 of 2015

proceedings before the competent criminal court and that the

impugned order is in accordance with law and requested to

dismiss the writ petition.

It is an undisputed fact that, entries were made in the

revenue records and Pattdar Pass Book and Title Deed were

issued. But, the contention of learned Assistant Government

Pleader for Revenue is that, the entries in the revenue records are

bogus. Such question cannot be decided by this Court while

exercising jurisdiction of this Court under Article 226 of the

Constitution of India, as this Court shall not undertake or conduct

rowing enquiry to find out the genuineness of the entries and it is

for the authorities to inquire into the genuineness of the entries

made in the revenue records. Therefore, I am not going to decide

the genuineness of the entries in the revenue records. However, the

issue before this Court is limited, as cancellation of Pattdar Pass

Book and Title Deed issued in favour of the petitioner by

Respondent No.4 and entertaining an appeal by Respondent No.3

for cancellation of Pattdar Pass Book and Title Deed vide order in

D.Dis.ROR/A/1488/2011 dated 01.12.2011, wherein the Revenue

Divisional Officer passed the following order:

11. After close scrutiny of all documentary evidences available on the records, it is clearly established that Sri Vaddemani Chandra Sekar s/o Vaddemani Chinna Pulla Reddy has no documentary evidences to prove right and title and also his physical possession over the disputed land. Hence the Pattadar Pass Book bearing No.445285 Khata No.547 for the land in S.No.330 Ext.1-94 Acres of Tsunkesula Village obtained by Sri Vaddemani Chandra Sekar s/o Vaddemai Chinna Pulla Reddy on misrepresentation of facts is hereby annulled."

At the same time, in Paragraph No.6 of the order dated

01.12.2011, the Revenue Divisional Officer observed that, the

Tahsildar, Yerraguntla has reported that the land of an extent of

Ac.3-88 cents in Sy.No.330 of T. Sunkesula is in the possession 6 MSM, J W.P.No.18867 of 2015

and enjoyment of Smt. Vaddemani Akkaiah w/o Pulla Reddy, but

Sri Vaddemani Chandra Sekar s/o Vaddemani Chinna Pulla Reddy

has obtained Pass Book bearing No.445285 Khata No.547 for the

land of an extent of Ac.1-94 cents in Sy.No.330 in T. Sunkesula

Village on misrepresentation of facts, even though the land was not

in their physical possession and enjoyment and recommended for

cancellation. Thus, the basis for ordering cancellation of Pattadar

Pass Book and Title Deed is that, the petitioner was out of

possession and Pattadar Pass Book and Title Deed were obtained

by misrepresentation of fact. In such case, the Revenue Divisional

Officer is not entitled to exercise jurisdiction under Section 5(5) of

the Andhra Pradesh Rights in Land and Pattadar Pass Books Act,

1971 (for short „the Act‟), against an entry made based on enquiry

conducted under Section 6-A of the Act.

According to Section 5(5) of the Act, against every order

passed by the Mandal Revenue Officer either making an

amendment in the record of rights or refusing to make such an

amendment, an appeal shall lie to the Revenue Divisional Officer or

such authority as may be prescribed, within a period of sixty days

from the date of communication of the said order and the decision

of the appellate authority thereon shall subject to the provisions of

Section 9, be final. The Revenue Divisional Officer entertained the

same in an appeal without considering the limitation prescribed

under Section 5(5) of the Act.

Section 5(5) of the Act provides an appeal against an order

passed by the Mandal Revenue Officer either making an

amendment in the record of rights or refusing to make such an

amendment. A revision lies against such an order by the Joint

Collector. But, it is not a question of amendment of entries in the 7 MSM, J W.P.No.18867 of 2015

revenue records to entertain the representation as an appeal under

Section 5(5) of the Act, it is an order passed under

Section 6-A of the Act, against which a revision lies under

Section 9 to the Joint Collector, but no appeal is provided. The

same is covered by the judgment of the Division Bench of this

Court in Ratnamma v. Revenue Divisional Officer,

Dharmavaram1.

In view of the law declared by the Divisional Bench of the

High Court in the judgment referred supra, mere entertaining an

appeal by the Revenue Divisional Officer does not confer

jurisdiction. Consequently, the order passed by the Revenue

Divisional Officer/Respondent No.3 is illegal, as it is without

jurisdiction. Therefore, the order passed by Respondent No.3 in

D.Dis.ROR/A/1488/2011 dated 01.12.2011 is set-aside.

In the result, writ petition is allowed, setting aside the order

passed by Respondent No.3 in D.Dis.ROR/A/1488/2011 dated

01.12.2011. However, the respondents are at liberty to take

appropriate action, if necessary, based on the material.

Consequently, miscellaneous petitions, pending, if any,

shall stand closed.

___________________________________________ JUSTICE M. SATYANARAYANA MURTHY

Dated 06.04.2022

SP

2015 (6) ALD 609 (DB)