Telangana High Court

Gutha Shankar Reddy vs The State Of Telangana on 27 August, 2021

Bench: P Naveen Rao

           HONOURABLE SRI JUSTICE P.NAVEEN RAO

                WRIT PETITION No.19236 of 2021

                         Date:27.08.2021

Between:

Gutha Shankar Reddy s/o. Chenna Reddy,
Aged 69 years, occu: Agriculture,
r/o. Urumadla village, Chityala Mandal,
Nalgonda district and two others.

                                                       .....Petitioners

     And

The State of Telangana, rep. by its Prl. Secretary,
Revenue Department, Secretariat, Hyderabad
and others.

                                                      .....Respondents




The Court made the following:
                                                                                           PNR,J
                                                                            W.P.No.19236 of 2021
                                           -2-


           HONOURABLE SRI JUSTICE P.NAVEEN RAO

                  WRIT PETITION No.19236 of 2021

ORDER :

This writ petition is filed praying to grant the following relief:

"...to issue an appropriate writ particularly one in the nature of Certiorari calling the entire records in connection with orders of the Special Tribunal Nalgonda in Case No.F2/Spl.Tribunal/1537/2021 dated 10.07.2021 transfer case No.F2/6421/2020 from 2nd Respondent herein by set a siding the orders passed by the 3rd respondent herein in B/3123/2017 dated 05.07.2019 under the Government of Telangana State vide G.O.Ms.No.4 Revenue (Assignment-I) Department, dated 12.01.2021, declaring the same as illegal, arbitrary, intentional, mala fide, without power, without jurisdiction, violation of principles of natural justice against the Telangana Rights in Land and Pattedar Pass Books Act 2020 and consequently set aside the orders passed by the Special Tribunal Nalgonda in Case No.F2/Spl.Tribunal/1537/2021 dated 10.07.2021 transfer case No. F2/6421/2020 from 2nd Respondent herein and pass......."

2. Heard Mr. Ch.Anjaneyulu, learned counsel for the petitioners

and learned Assistant Government Pleader for Revenue for

respondents 1 to 5.

3. This writ petition is filed challenging the order of the Special

Tribunal dated 10.07.2021. Petitioners claim that father of the 1st

petitioner and the father of petitioners 2 and 3 purchased Acs.3.36

guntas in Sy.No.223 of Chinakaparthi village of Chityal Mandal in

Nalgonda district from Cholleti Rama Chary, son of Peddaiah.

Father of petitioners 2 and 3 sold Ac.1.29 guntas to the 4th

petitioner. Thereafter, father of petitioner no.1, father of petitioners

2 and 3 and the 4th petitioner filed separate suits for declaration of

title and consequently perpetual injunction against Cholleti Rama

Chary and others in O.S.Nos.521/1979, 447/1979 in the Court of

District Munsif at Nalgonda, and O.S.No.319/1994 on the file of

District Munsif Magistrate, Ramannapet. O.S.No.521 of 1979 and PNR,J W.P.No.19236 of 2021

O.S.No.447 of 1979 were decreed on 06.10.1979, and O.S.No.319

of 1994 was decreed on 07.10.1994.

4. By relying upon the decrees granted in their favour, when

petitioners approached the Tahsildar requesting to mutate, they

were surprised to notice that some third party names are reflected

in the revenue records and their request to grant mutation was not

accepted. First petitioner and father of petitioners 2 and 3 and 4th

petitioner filed appeal before the Revenue Divisional Officer under

Section 5(5) of the Telangana Rights in Land and Pattadar

Passbooks Act, 1971 (Act 26 of 1971) challenging the decision of

the Tahsildar granting mutation in favour of unconcerned persons

and prayed to delete those entries and to record the names of

petitioners. The Revenue Divisional Officer called report from the

Tahsildar. In his report dated 05.08.2017, the Tahsildar pointed

out that though name of Mandugula Sathemma (7th respondent)

was mutated in the year 2001-02, but there are no proceedings to

show that decision was taken and orders were passed granting

mutation in her favour. Accepting the said report, the Revenue

Divisional Officer allowed the appeal.

5. Aggrieved thereby, revision was preferred before the Joint

Collector under Section 9 of the Act 26 of 1971. After constituting

the Special Tribunal under Section 16 of the Telangana Rights in

Land and Pattadar Passbooks Act, 2020 (Act 9 of 2020), the

revision was transferred to the Special Tribunal. By order dated

15.02.2021, the Special Tribunal allowed the revision holding that

the claim of petitioners for mutation of their names 38 years after

granting decrees in their favour is not valid and set aside the order PNR,J W.P.No.19236 of 2021

of the Revenue Divisional Officer, upholding the decision of the

Tahsildar. Based on the direction of the Division Bench in

W.P.(PIL).No.20 of 2021, the revision was reopened and fresh

orders are passed on 10.07.2021.

6. Learned counsel for petitioners contends that there is no

further consideration of the matter and the Special Tribunal has

reiterated the same view as expressed when original order was

passed and has not appreciated the contentions urged by the

petitioners, particularly having regard to the report of the Tahsildar

dated 05.08.2017 holding that there is no record available to show

how the name of M.Sathemma was recorded in the year 2000-01.

7. Two aspects required to be noticed from the material on

record. Firstly, admittedly, till recently petitioners 1 and 4, and

father of petitioners 2 and 3 have not applied for mutation of their

names in the revenue records by referring to the decrees granted in

their favour. Admittedly, in the year 2000-01 name of M.Sathemma

was recorded in the revenue records against the above extent of

land. By way of registered sale deed, she has sold the property in

the year 2006 to an extent of Ac.1.38 guntas and her son sold

Ac.1.38 guntas of land by way of registered sale deed dated

19.05.2006. The persons who purchased in the above manner got

mutated their names in the revenue records and they in turn, sold

the extent of land purchased by them to third parties. In turn, the

said purchasers got their names mutated in the revenue records.

In other words, after the decree and before the petitioners made

applications, not only the name of M.Sathemma was shown in the PNR,J W.P.No.19236 of 2021

revenue records, but further sale transactions were carried out and

property changed hands over a period of time.

8. In other words, petitioners were trying to revive an issue of

ownership to subject property by pulling it out of the cobweb after

20 years, challenging the decision of the Mandal Revenue Officer

firstly mutating name of M.Sathemma in the year 2000-01 and

then names of subsequent purchasers based on such mutation.

Even assuming that a valuable right to property of the petitioners

is affected, there is inordinate delay in asserting the right. By their

conduct the petitioners allowed the rights crystallized in favour of

the unofficial respondents over shadowing their right, if any.

9. It is settled principle of law that a person has to assert his

right within the reasonable time and even if a person has a valid

claim, if such claim is not made within a reasonable time, he

cannot expect the authorities to act on the grievance and to rectify

the mistakes nor can this Court upset the entries made in the

revenue records after long lapse of time at the instance of a person

who kept quiet for very long time and started agitating his

grievance belatedly.

10. A decision of an authority of the State or its instrumentality

concerning a parcel of land may impact the person vis-à-vis State/

its instrumentality or a dispute inter se two private persons.

Armed with the decision made in his favour a person may deal

with the land, including sale, mortgage, gift etc. In the process he

may create third party interests. Over a period of time, property

may change hands. In such circumstances, decision of the

appellate authority granting relief in an appeal filed after long lapse PNR,J W.P.No.19236 of 2021

of time of arising cause of action may have cascading effect and

impact the rights of third parties, who are no way responsible for

this indiscretion of the petitioners.

11. By their conduct petitioners allowed to crystallize rights in

favour of others and in turn to create third party interests.

Petitioners cannot make others to suffer for their indiscretion and

allowing crystallizing rights in third parties. Therefore, the

appellate authority ought to have considered the issue holistically.

12. Whenever an issue of delay in asserting right comes up for

consideration, the Court has to tread cautiously, lift the veil on

claims of the petitioners, and assess the consequences before

entertaining the writ petition. The principle of law is well settled

and needs no reiteration.

13. Secondly, against the order of the Tahsildar mutating the

name in the revenue records, a person can prefer appeal within 60

days from the date of such decision under Section 5(5) of the Act,

1971. As recorded by the appellate authority, in the year 2000-01

name of M.Sathemma was recorded and based on the said entry in

the revenue records, further sale transactions have taken place.

Petitioners did not raise objection on such mutation nor preferred

appeal within the period specified in Section 5(5) of the Act 26 of

1971. Section 5(5) of the Act 26 of 1971 does not vest power in the

Revenue Divisional Officer to entertain appeal if the same is not

filed within 60 days and has not vested power to condone the delay

even if an application to condone delay is filed. Thus, appeal

preferred by the petitioners was not within the time stipulated by

Section 5(5) of the Act and the same is not maintainable.

PNR,J W.P.No.19236 of 2021

14. The writ remedy is discretionary remedy and is an

extraordinary remedy available to a person who intends to assert

his right by diligently prosecuting the legal remedy and not to a

person sleeping over his right for years. The Court is required to

consider other aspects also, as noticed above. In the case on hand

accepting the plea of petitioners results in setting aside entries

made in revenue records 20 years back. Assuming an appeal

beyond time stipulated in Section 5(5) of the Act 26 of 1971 is

maintainable, it cannot be said that the delay of 20 years as

reasonable. Therefore, without making vague assertions, there

ought to have been detailed explanation for not filing the appeal

within the time prescribed in Section 5(5) of the Act 26 of 1971 or

explaining that they had no knowledge. The petitioners miserably

failed in doing so. Furthermore, on account of long delay rights

have accrued to respondents and if relief claimed in this writ

petition is granted, issue settled more than 20 years ago and

transactions made in the meantime have to be upset directly

attributable to petitioners inertia.

15. In Shankara Coop. Housing Soceity Ltd., v. M.Prabhakar

and others1 on detailed consideration of the various judgments on

the issue of maintainability of the writ petition filed after long lapse

of time, the Supreme Court laid down the parameters for

entertaining the writ petition they read as under:

"The relevant considerations, in determining whether delay or laches should be put against a person who approaches the writ Court under Article 226 of the Constitution is now well settled. They are : (1) There is no inviolable rule of law that whenever there is a delay, the Court must necessarily refuse to entertain

2011 (4) ALD 112 (SC) PNR,J W.P.No.19236 of 2021

the petition; it is a rule of practice based on sound and proper exercise of discretion, and each case must be dealt with on its own facts. (2) The principle on which the Court refuses relief on the ground of laches or delay is that the rights accrued to others by the delay in filing the petition should not be disturbed, unless there is a reasonable explanation for the delay, because Court should not harm innocent parties if their rights had emerged by the delay on the part of the petitioners. (3) The satisfactory way of explaining delay in making an application under Article 226 is for the petitioner to show that he had been seeking relief elsewhere in a manner provided by law. If he runs after a remedy not provided in the statute or the statutory rules, it is not desirable for the High Court to condone the delay. It is immaterial what the petitioner chooses to believe in regard to the remedy. (4) No hard and fast rule, can be laid down in this regard. Every case shall have to be decided on its own facts. (5) That representations would not be adequate explanation to take care of the delay."

16. It is not in the interest of justice and fair play to grant relief

on the stale claim. In City Industrial Development Corporation

v. Dosu Aardeshir Bhiwandiwala and others2, the Hon'ble

Supreme Court held as under:

" A writ of mandamus is highly discretionary. The relief cannot be claimed as of right. One of the grounds for refusing relief is that the person approaching the High Court is guilty of unexplained delay and the laches. Inordinate delay in moving the Court for a writ is an adequate ground for refusing a writ. The principle is that Courts exercising public law jurisdiction do not encroach agitation of stale claims and exhuming matters where the rights of third parties may have accrued in the interregnum."

17. Learned counsel for the petitioners though sought to

contend that continuously petitioners are in possession, the Court

is not expressed any opinion on the issue of possession as it

requires leading of evidence and consideration of respective claims.

2009 (1) ALD 24 (SC) = AIR 2009 SC 571 PNR,J W.P.No.19236 of 2021

It is always open to the petitioners to assert their possessory claim

in appropriate civil proceedings.

18. For the aforesaid reasons, I do see any error in the decision

arrived at by the Special Tribunal warranting interference in

exercise of power of judicial review against the decision of the

statutory tribunal. Writ Petition is dismissed. However, this order

does not come in the way of petitioners prosecuting civil law