Telangana High Court

Chinna Boina Shantamma Died Per ... vs The Joint Collector, Hyderabad ... on 26 October, 2022

Bench: Ujjal Bhuyan, C.V. Bhaskar Reddy

        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
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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
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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

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

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

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

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

AIR 1970 SC 1273

AIR 2000 SC 1650

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.

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

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.

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.