Ravi Gopi Krishna vs State Of Andhra Pradesh
2023 Latest Caselaw 3398 AP

IN THE HIGH COURT OF ANDHRA PRADESH : AMARAVATI

        HON'BLE SRI JUSTICE SUBBA REDDY SATTI

              WRIT PETITION No.46668 of 2018


Ravi Gopi Krishna, S/o Hanumantha Rao,
aged about 38 years, R/o Dyvalaravuru
Village, Korisapadu mandal, Prakasam
District and another.
                                                    ... Petitioners
                   Versus

State of Andhra Pradesh, Rep. by its
Principal Secretary, Revenue Department,
Secretariat Buildings, Amaravathi, Guntur
District and four others.
                                                   ... Respondents

Counsel for the petitioners    : Sri Madhava Rao Nalluri

Counsel for respondents        : Learned GP for Revenue,
                                 Sri V.Surendra Reddy

                              ORDER

The writ petition is filed seeking issuance of writ of

Mandamus declaring the proceedings D.Dis.D2/1218/2017

dated 04.11.2018, of respondent No.2 confirming the order in

appeal petition No.D/222/2016 dated 18.08.2017, cancelling

the pattadar passbook and title deed issued to the

petitioners, as illegal and arbitrary.

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2. a) The averments in the affidavit, in brief, are that

father of petitioner No.1 and his paternal uncle Ravi

Anjaneyulu jointly purchased an extent of Ac.23-85 cents in

survey Nos.119-1, 123, 124, 150-1, 153-1, 155 and 175-2 of

Daivalaravuru village of, Korisapadu Mandal, Prakasam

District from Poruri Nagarattamma and P.S.Murali Krishna

under unregistered sale dated 10.09.1991. Nagarattamma

executed GPA in favour of her son P.S.Murali Krishna. Father

and paternal unlce of petitioner No.1 partitioned the property

and made application to respondent No.4 for update record of

rights and also to mutate the names of the petitioners.

b) Respondent No.4 directed the petitioners to submit

sworn affidavits of respondent No.5, and his son and wife.

Respondent No.5, his wife and son signed and handed over

the affidavits in the year, 1997. Thereafter respondent No.4

issued pattadar passbooks and title deeds in the year, 1998.

c) After 18 years, respondent No.5 filed appeal before

respondent No.3 to cancel the pattadar passbooks and title

deeds. Appeal was numbered as D/222/2016. Appellate

authority allowed the appeal and ordered cancelling of entries

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made in favour of the petitioners. Aggrieved by the said order,

petitioners filed revision under Section 9 of the Andhra

Pradesh Rights in Land and Pattadar Passbooks Act, 1971

(herein after referred to as the 'Act'). The Revisional

authority, respondent No.2 dismissed the same vide

impugned proceedings, dated 04.11.2018.

d) Petitioners filed suit O.S.No.121 of 2017 on the file of

I Additional District Judge, Ongole, seeking specific

performance. As per Rule 26 (6) of the Andhra Pradesh Rights

in Land and Pattadar Pass Books Rules, 1989 (hereinafter

referred to as "Rules"), persons in actual possession of land

are entitled for pattadar passbooks and title deeds. The

appeal filed by respondent No.5 on the file of respondent No.3

against issuance of pattadar passbooks and title deeds is not

maintainable. With these averments, the above writ petition

is filed.

3. a) Respondent No.2 filed counter affidavit. It was

contended, interalia that respondent No.5 filed appeal before

respondent No.3 (RDO), stating that his mother

P.Nagarattamma is the absolute owner of lands of an extent

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of Ac.2.72, Ac.8.28 cents, Ac.0.04 cents and Ac.6.81 cents in

survey Nos.119/1, 118/1, 175/2 and 155 respectively,

totaling an extent of 17.85 cents. Respondent No.5 is owner

of an extent of Ac.1.67 cents, Ac.1.83 cents, Ac.1.29 cents

and Ac.1.21 cents in survey Nos.123, 124, 153, 150/1

respectively, of Diavalaravuru village. Nagarattamma

executed registered GPA on 31.05.1990.

b) Father of petitioner No.1 and brother-in-law of

petitioner No.2 created sham and nominal sale deed dated

10.09.1991, by forging the signatures of respondent No.5,

and later obtained pattadar passbooks and title deeds in their

favour. Appeal D/222/2016 filed by respondent No.5 was

allowed on 18.08.2017. Against the said order, writ

petitioners filed revision before Joint Collector and the same

was dismissed on 04.11.2018. On verification of records in

the office, it came to light that the names of writ petitioners

were recorded in records without any proceedings. The then

Tahsildar has not followed the procedure. Eventually, prayed

to dismiss the writ petition.

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4. Heard Sri Madhava Rao Nalluri, learned counsel for the

petitioners, Sri K.Dilip Nayak, learned Assistant Government

Pleader for Revenue, for respondent Nos.1 to 4 and Sri

V.Surendra Reddy, learned counsel appearing for respondent

No.5.

5. Learned counsel for the petitioners would contend that

respondent No.3- RDO has no jurisdiction to entertain appeal

under section 5(5) of the Act, for cancellation of pattadar

passbooks and title deeds. The revisional authority,

respondent No.2 did not consider the same and dismissed the

revision. Learned counsel by placing reliance upon a

judgment in Ratnamma Vs. Revenue Divisional Officer1

would submit that since respondent No.3 had no jurisdiction

to entertain appeal, the order passed by respondent No.3 is

invalid and the order passed in the revision is also liable to be

set aside.

6. Learned counsel appearing for respondent No.5 would

contend that appeal was filed against the proceedings issued

by the Tahsildar vide Rc.No.B/95/2015 dated 10.02.2015

1 2015 (5) ALT 228

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and the appellate authority, after considering the rival

contentions, set aside the entries made in record of rights

and cancelled the entries made in pattadar passbooks and

title deeds pertaining to 1-B Khata Nos.741 and 742 of the

petitioners. He would submit that respondent No.3 further

directed respondent No.4-Tahsildar to make fresh enquiry

and to issue pattadar passbooks and title deeds to the

persons entitled as per the Act and the Rules. He would

further contend that the revision filed by the petitioners was

dismissed by the revisional authority. Thus, prayed to

dismiss the writ petition.

7. Learned Assistant Government Pleader for Revenue

adopted the arguments of learned counsel appearing for

respondent No.5.

8. This Court called for the entire record relating to appeal

and revision. Accordingly, the learned Assistant Government

Pleader produced the record.

9. Perused the record.

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10. As seen from the appeal filed by respondent No.5 on the

file of respondent No.3, the appeal was filed against the

proceedings of respondent No.4-Tahsildar in Rc.No.B/95/

2015 dated 10.02.2015. Respondent No.5 in the appeal,

pleaded about the mutation of the names of the writ

petitioners in revenue records and their getting pattadar

passbooks and title deeds. In fact, respondent No.5 on

coming to know about the fraud played by the writ

petitioners, addressed a letter to respondent No.4 on

21.07.2014 to cancel pattadar passbooks and title deeds and

to restore his name in revenue records. Respondent No.5 also

made representation to the District Collector seeking

issuance of new passbook in his name. The District Collector,

in turn by proceedings dated 23.09.2014, directed the

Tahsildar to take necessary action and intimate the same to

respondent No.5 and also to the Collector. Respondent No.4-

Tahsildar, vide proceedings Rc.No.B/95/2015 dated

10.02.2015 submitted report to the District Collector,

informing the authority that writ petitioners were issued

pattadar passbooks and title deeds and that respondent No.5

himself sold the land. Against the said communication,

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appeal was filed by respondent No.5 on the file of respondent

No.3.

11. As seen from the material papers, respondent No.5

addressed letter to respondent No.4- Tahsildar requesting

him to send a copy of sale deed. On verification respondent

No.5 came to know that the signatures of himself, his wife

and son are forged and eventually prayed respondent No.3-

Revenue Divisional Officer to cancel the passbooks and title

deeds, issued in the name of the petitioners herein in respect

of the subject property.

12. It is pertinent to mention here that nowhere in the

counter objection was raised regarding the jurisdiction of

respondent No.3. In the counter, it was pleaded about

unregistered sale deed. A specific plea was raised in counter

that the revenue authorities cannot decide the title and the

Civil Court will decide the title.

13. Though the learned counsel for petitioners contended

that an objection was raised regarding jurisdiction, in fact, as

noticed, no such objection was raised or pleaded. Apart from

that the challenge before respondent No.3 is the proceedings

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issued by respondent No.4 -Tahsildar, wherein intimation

was made by the Tahsildar to the District Collector.

14. The Division Bench in Ratnamma's case dealt with the

issue relating to filing of appeal against the proceedings

issued by Tahsildar qua issuance of pattadar books and title

deeds. The Division Bench ordered reference and concluded

that no appeal would lie under Section 5 (5) of the Act against

the proceedings of Tahsildar qua issuance of pattadar books

and title deeds. Later, learned single Judge, who is party to

the Division Bench clarified in Kurava Hanumanthamma Vs

State of Andhra Pradesh rep by its Principal Secretary2

that the aggrieved party in respect of issuance of pattadar

books and title deeds can file revision under Section 9 of the

Act.

15. The ratio in the Ratnamma's case does not apply to the

facts of this case. The challenge before respondent No.3, in

the case on hand, is the proceedings of respondent No.4,

wherein respondent No.4 intimated respondent No.2-

Collector about alienation and issuance of pattadar books

2018(1) ALD 290

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and title deeds in favour of writ petitioners. Under the

proceedings impugned, Tahsildar did not issue pattadar

passbooks and title deeds in favour of writ petitioners. Thus,

this court is not inclined to accept the contention of the

learned counsel appearing for the petitioners that no appeal

would lie under Sec 5(5) of the Act.

16. It is pertinent to mention here that writ petitioners got

their names mutated in the revenue records based on

unregistered sale deed. The unregistered sale deeds dated

10.09.1981 were executed on three rupee non judicial

papers.

17. As per Rule 9(1)(a)(ii) of the Rules, unregistered

documents are not admissible as evidence in the enquiry to

prove the ownership of title to the property. The finding

recorded by respondent No.3 in the order is that the then

Tahsildar without conducting proper enquiry and following

procedure, as per the Act and Rules, mutated the names of

the petitioners in revenue records and issued pattadar

passbooks and title deeds. In fact, respondent No.3 cancelled

the entries made in revenue records in favour of petitioners

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as well the entries in pattadar passbooks and title deeds.

Cancellation of entries in pattadar passbooks and title deeds

is only consequential. It is clear from a perusal of the order of

respondent No.3, that respondent No.3 cancelled the entries

made in revenue records. In such an event respondent No.3

got the jurisdiction to entertain the appeal. Respondent No.3

further directed respondent No.4-Tahsildar to conduct fresh

enquiry. Thus, in view of the discussion supra, the contention

of the learned counsel for the petitioners that RDO lacks

jurisdiction to entertain and adjudicate appeal falls to

ground.

18. In Chinnam Pandurangam Vs Mandal Revenue

Officer, Serilingampally3, Full Bench of this Court,

regarding issuance of notice, 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 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

2007 (6) ALT 134

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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 Dei and has been reiterated in various judgments including those of A.K. Kraipak v. Union of India, Maneka Gandhi v. Union of India., S.L. Kapoor v. Jagmohan, Swadeshi Cotton Mills v. Union of India and Olga Tellis v. Bombay Municipal Corporation.

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 Rule 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 persons whose names are entered in the

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Record of Rights and who are interested in or affected by the proposed amendment.

In view of the above decision, as per Section 5(3) of the Act, before carrying out any amendment in the Record of Rights, the Mandal Revenue officer ought to have issued notice in writing to the 4th respondent, whose name was entered in the revenue records, or who has interest in it or affected by the amendment, whom he has reason to believe to be interested therein or affected thereby to show cause against the proposed amendment. Admittedly, no notice was issued to the 4 respondent before entering the name of the petitioner in the revenue records in the place of 4 respondent in respect of the subject land in the writ petition, while issuing pattadar pass book in favour of the petitioner, which is violation of principles of natural justice."

19. Even assuming for the sake of arguments that Revenue

Divisional Officer lacks jurisdiction, whether this Court under

Article 226 of the Constitution of India, interfere with such

plea and if so, whether it amounts to revival of illegal order?

20. As observed supra, respondent No.3 in its order

specifically mentioned that the then Tahsildar failed to follow

the procedure and without proper enquiry mutated the

names of writ petitioners in revenue records and issued

pattadar passbooks and title deeds. Writ petitioners relied

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upon unregistered sale deeds, which will not create any right

in their favour. As seen from record, writ petitioners, now,

filed suit in the year 2017 seeking specific performance.

Procedure prescribed under Rule 9(1)(a)(ii) was given a go

bye. It seems no enquiry was conducted by the then

Tahsildar when the names of petitioners were mutated in

record of rights. In the appeal, respondent No.3 set aside the

entries and directed respondent No.4 to conduct fresh

enquiry. If this Court now, entertains the plea of the writ

petitioners that the Revenue Divisional Officer lacks

jurisdiction, the illegality committed by the then Tahsildar

would revive. It is settled principle of law that illegality cannot

be perpetuated. As seen from the order of respondent No.3,

the then Tahsildar passed an illegal order without issuing

notice to respondent No.5.

21. In Gadde Venkateswra Rao vs. Government of

Andhra Pradesh and others4, Hon'ble Apex Court while

considering the action of the State Government under Andhra

Pradesh Panchayats Samithis and Zilla Parishads Act, 1959

came to the conclusion that the Government had no power

AIR 1966 SC 828

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under Section 72 of the Act to review an order made under

Section 62 of the Act but refused to interfere with the orders

of the High Court on the ground that if High Court had

quashed the said order, it would have restored an illegal

order and, therefore, the High Court rightly refused to

exercise its extraordinary jurisdictional power.

22. In Mohammad Swalleh v. IIIrd Addl. District Judge,

Meerut5, a similar view was expressed by Hon'ble Apex

Court. In said case the order passed by the Prescribed

Authority under U.P. (Temporary) Control of Rent and

Eviction Act, 1947 was set aside by the District Judge in

appeal though the appeal did not lie. The High Court came to

the finding that the order of the Prescribed Authority was

invalid and improper but the District Judge had no power to

sit in appeal. The High Court did not interfere with the

Orders of the District Judge. The order of the High Court was

affirmed by Apex Court on the ground that though technically

the appellant had a point regarding the jurisdiction of the

District Judge but the order of the Prescribed Authority itself

5 AIR 1988 SC 94

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being bad, refusal of the High Court to exercise powers under

Article 226 no exception can be taken.

23. Thus a conspectus of the authorities referred to supra

would manifest that illegality cannot be perpetuated. The

case on hand, even assuming for the sake of argument, that

RDO lacks jurisdiction to entertain appeal, however the

authority entertained appeal and set aside the entries made

in revenue records and pass books and title deeds in favour

of petitioners and further directed the Tahsildar to conduct

enquiry afresh, if the order of RDO which was confirmed by

Joint Collector, revisional authority is set aside, the illegal

order passed by the then Tahsildar would revive. Such a

course is contrary to the expression of the Hon'ble Apex

Court.

24. The Hon'ble Apex Court in Roshan Deen Vs Preeti

Lal6 held that the power of Court under Article 226 of the

Constitution of India should be to advance cause of justice

and not to thwart it. Even where justice is the bye-product of

AIR 2002 SC 33

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an erroneous interpretation of law, court ought not to wipe

out such justice in the name of correcting the error of law.

25. The facts scenario discussed supra, would indicate that

the then Tahsildar without following procedure updated

records of rights in favour of petitioners and issued pattadar

pass books and title deeds. RDO, in the appeal, set aside the

same and directed fresh enquiry. The order passed by RDO

was confirmed by Joint Collector. Thus, this court, in the

facts and circumstances of this case, is of the opinion that

there are no merits, which brook interference and writ

petition is liable to be dismissed.

26. Accordingly, writ petition is dismissed. However, no

costs.

Miscellaneous petitions, if any pending, in this case, shall stand closed.

_______________________________ JUSTICE SUBBA REDDY SATTI

Date : 13.07.2023 ikn

Note: This court has observed that number of writ

petitions are filed, impugning the orders passed by Revenue

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Divisional Officer concerned or entertaining appeal under Sec

5(5) of the Act wherein the challenge before the authority is

issuance of Pattadar Pass Book and Title Deed.

Notwithstanding, the judgment of Division Bench in

Ratnamma's case, learned Revenue Divisional Officers are

entertaining appeals.

The learned Principal Secretary, Revenue shall inform

the Revenue Divisional Officers to follow the ratio in

Ratnamma's case scrupulously.

Registry is directed to communicate a copy of this order

to the learned Principal Secretary, Revenue.

_______________________________ JUSTICE SUBBA REDDY SATTI

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HON'BLE SRI JUSTICE SUBBA REDDY SATTI

WRIT PETITION No.46668 of 2018

Date : 13.07.2023

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