Telangana High Court
The Government Of Andhra ... vs V. Tulasiram, on 26 September, 2023
Bench: Alok Aradhe, N.V.Shravan Kumar
THE HON'BLE THE CHIEF JUSTICE ALOK ARADHE
AND
THE HON'BLE SRI JUSTICE N.V.SHRAVAN KUMAR
+ WRIT APPEAL No.1875 of 2013
% Date: 26.09.2023
# The Government of Andhra Pradesh,
Rep. by Secretary, Revenue Department, Secretariat,
Hyderabad,
and others
... Appellants
v.
$ V.Tulasiram,
and others.
... Respondents
! Counsel for the appellants: Mr. B.S.Prasad,
Advocate General
^ Counsel for respondents No.1 to 6: Dr. Adithya Sondhi,
Learned Senior Counsel
representing
M/s. Bharadwaj Associates.
< GIST:
HEAD NOTE:
? CASES REFERRED:
1. AIR 1960 SC 862
2. (2010) 5 SCC 203
3. AIR 1967 SC 1274
4. (2018) 12 SCC 527
5. 1995 SCC OnLine AP 423 : (1995) 3 ALD 594 :
2
(1995) 3 ALT 330
6. (2002) 5 SCC 685
7. (1987) 2 SCC 179
8. (2004) 3 SCC 440
9. (2006) 12 SCC 33
10. (2007) 13 SCC 270
11. (1997) 6 SCC 71
12. (2016) 2 SCC 123
13. (2023) 2 SCC 643
14. AIR 1957 SC 529
15. AIR 1964 SC 1419
3
THE HON'BLE THE CHIEF JUSTICE ALOK ARADHE
AND
THE HON'BLE SRI JUSTICE N.V.SHRAVAN KUMAR
WRIT APPEAL No.1875 of 2013
JUDGMENT: (Per the Hon'ble the Chief Justice Alok Aradhe)
This intra court appeal emanates from an order dated
05.06.2009 by which the writ petition preferred by
respondents No.1 to 6 (hereinafter referred to as, "the land
owners") has been allowed and the memo dated 21.06.2005
issued by the Joint Collector-I, Ranga Reddy District, has
been quashed. In order to appreciate the challenge of the
appellants to the impugned order passed by the learned
Single Judge, relevant facts need mention which are stated
infra.
2. The land owners had purchased the land bearing
Survey Nos.122 to 126, 143 to 150, 152/A, 152/B, 153
and 154 admeasuring Acs.185.18 guntas situated at
Sultanpally Village, Shamshabad Mandal, Ranga Reddy
4
District (hereinafter referred to as, "the subject land") vide
registered sale deeds in the year 1982 from the original
pattadars, namely Syed Shabuddin and Syed Karar Hyder
Hussain. The land owners claim to be in possession of the
subject land and have been issued pattadar pass books
and title deeds.
3. After abolition of the jagir and announcement of
survey and settlement of the village, the kancha land was
auctioned by the Tahsildar in the year 1950-51 for
Rs.1000.00 in favour of one Sri Prabhu Lingam. An appeal
was filed by the jagirdar before the Additional Collector
which was allowed by an order dated 12.08.1950 and the
auction was set aside. It was directed that the subject
lands be recorded as patta lands in the name of the
jagirdar. Against the aforesaid order, said Sri Prabhu
Lingam preferred an appeal before the Board of Revenue.
The Board of Revenue by an order dated 19.07.1951
allowed the appeal. The jagirdar filed a revision before the
Minister for Revenue who by an order dated 18.11.1952
5
dismissed the revision and upheld the order passed by the
Board of Revenue.
4. The commutation award was passed by the Jagir
Administrator in the name of jagirdar Syed Shabuddin
Hussain in Khata No.737 for an amount of Rs.60,000.00.
A House Committee was constituted by the Legislative
Assembly on 17.08.1987, to implement directions of the
Board of Revenue.
5. The State of Andhra Pradesh claimed the subject land
as jagir land as per the provisions of the Andhra Pradesh
(Telangana Area) (Abolition of Jagirs) Regulation, 1358
Fasli (hereinafter referred to as, "the Jagir Regulation").
The Revenue Divisional Officer issued a memo on
21.06.1993 and held that the subject land is a jagir land
and not a patta land.
6. The land owners challenged the validity of the
aforesaid memo dated 21.06.1993 in a writ petition,
namely W.P.No.12631 of 1993. The said writ petition was
allowed by a learned Single Judge by an order dated
6
24.03.2000 primarily on the ground that the State
Government could not have unilaterally decided the
question of title of the subject land. Against the aforesaid
order, the State Government filed an intra court appeal,
namely W.A.No.732 of 2000.
7. A Division Bench of this Court vide judgment dated
11.11.2002 dismissed the aforesaid appeal preferred by the
State Government and granted the liberty to it to approach
the civil court or statutory forum for adjudication of the
issue whether the subject land is a jagir land or a patta
land.
8. Thereafter the Mandal Revenue Officer approached
the Commissioner and Director of Settlement and Jagir
Administrator with a prayer that the subject land should
be declared as jagir land. The Commissioner and Director
of Settlement and Jagir Administrator by an order dated
31.03.2005 dismissed the prayer made on behalf of the
Mandal Revenue Officer.
7
9. However, the Joint Collector-I, Ranga Reddy District,
issued a notice dated 21.06.2005 by which the land owners
were informed that the case was taken up for hearing
under Section 166-B of the Andhra Pradesh (Telangana
Area) Land Revenue Act, 1317 Fasli (hereinafter referred to
as, "the Land Revenue Act') and Section 9 of the Andhra
Pradesh Rights in Land and Pattadar Pass Books Act, 1971
(hereinafter referred to as, "the Pattadar Pass Books Act"),
and scheduled for hearing on 01.07.2005 before the Joint
Collector. The land owners therefore were required to be
present before the Joint Collector-I, Ranga Reddy District,
in support of their claim along with documents, following
which the land owners were informed that the matter will
be decided on the basis of the material available on record.
10. The land owners challenged the aforesaid notice
dated 21.06.2005 in a writ petition, namely W.P.No.14038
of 2005, and sought a writ of prohibition restraining the
authorities of the State Government, particularly the Joint
Collector, from proceeding further, with the enquiry in
pursuance of the impugned notice dated 21.06.2005.
8
11. The learned Single Judge by an order dated
15.06.2009 allowed the writ petition inter alia on the
ground that the Joint Collector or the authorities of the
State Government cannot adjudicate the question whether
the subject land is a jagir land or patta land. It was
further held that as per Regulation 21(2) of the Jagir
Regulation, it is only civil court which has the jurisdiction.
Learned Single Judge therefore issued a writ of prohibition
restraining the Joint Collector from proceeding further with
the notice dated 21.06.2005. However, learned Single
Judge granted the liberty to the State to file a suit seeking
the relief of declaration in respect of the subject land. The
learned Single Judge did not record any finding on the
merits as to whether the subject land is jagir land or patta
land. In the aforesaid factual background, this intra court
appeal arises for our consideration.
12. Learned Advocate General, at the outset, pointed out
that the validity of the Jagir Regulation was challenged
before the Hon'ble Supreme Court and the validity of the
9
said Regulation has been upheld by the Hon'ble Supreme
Court in Sarwanlal v. State of Hyderabad1.
13. It is contended that there is no material on record to
show that the subject land is a private patta land of
jagirdar. It is submitted that the entire land situated at
Sultanpally Village was a jagir land. It is further submitted
that in the earlier round of litigation, the land owners vide
order dated 10.05.2005 were granted liberty to establish
their title and possession. However, the land owners did
not avail of the appropriate remedy. It is urged that the
State Government has power under Section 166-B of the
Land Revenue Act to correct the entries made in the
revenue records. Our attention has also been invited to the
findings of the House Committee. It is contended that the
land owners have no title in respect of the land in question
and the learned Single Judge erred in quashing the notice
issued to the land owners. In support of the submissions
made, learned Advocate General has placed reliance on the
1 AIR 1960 SC 862
10
decision of the Hon'ble Supreme Court in R.Hanumaiah v.
State of Karnataka 2.
14. On the other hand, learned Senior Counsel for the
land owners has submitted that the impugned notice has
been issued for implementation of the order of the Board of
Revenue dated 20.07.1951 which does not apply to the
case of the land owners. In this connection our attention
has been invited to the order dated 24.03.2000 passed in
W.P.No.12631 of 1993. It is pointed out that the aforesaid
order has been upheld in an appeal. It is further pointed
out that the notice has been issued after an inordinate
delay of 54 years for which no explanation has been
offered. It is contended that the power of revision under
Section 166-B of the Land Revenue Act can be exercised
qua an order of the subordinate authority and in the
instant case, the proceeding under Section 166-B of the
Land Revenue Act, has been initiated without an order of
the subordinate authority.
2 (2010) 5 SCC 203
11
15. In view of the aforesaid submission, reliance has been
placed on the decision of the Hon'ble Supreme Court in
S.Govinda Menon v. Union of India 3, Chhedi Lal Yadav
v. Hari Kishore Yadav4 and the decision of the Andhra
Pradesh High Court in Smt. P.Mangamma v. The
Women's Co-operative Housing Society Limited,
Hyderabad 5.
16. By way of rejoinder, the learned Advocate General
submitted that the land owners started asserting their
rights in respect of the subject land in the year 1982 and
thereafter on 17.08.1987, a House Committee was
constituted and thereafter a memo was issued on
21.06.1993 which was assailed in a writ petition.
Eventually, in pursuance of the order dated 31.03.2005
passed by the Commissioner and Director of Settlements
and Jagir Administrator, a notice dated 21.06.2005 was
issued to the land owners and therefore, there is no delay
in the facts of the case. It is urged that in the matter of
3 AIR 1967 SC 1274
4 (2018) 12 SCC 527
5 1995 SCC OnLine AP 423 : (1995) 3 ALD 594 : (1995) 3 ALT 330
12
pursuing a right, doctrine of delay and laches cannot be
invoked. It is further urged that in the previous round of
litigation between the parties, rights of the parties have
been kept open to be agitated before the appropriate forum.
Our attention has also been invited to Section 3 and
Section 9 of the Pattadar Pass Books Act and it has been
contended that in fact, the remedy of the land owners is to
approach the civil Court and in a writ petition filed against
a notice, merely on the basis of an apprehension of the
land owners, no relief can be granted. It is also urged that
the notice has been issued to correct the revenue entries.
It is contended that in law, a presumption of title is in
favour of the State and the land owners have to establish
their title before appropriate forum. In support of the
aforesaid submissions, reliance has been placed on the
decision of the Hon'ble Supreme Court in Indian National
Congress (I) v. Institute of Social Welfare 6.
17. We have considered the rival submissions made on
both sides.
6 (2002) 5 SCC 685
13
18. Before proceeding further, it is apposite to deal with
the scope of challenge to a notice in a writ petition. The
Hon'ble Supreme Court in State of U.P v. Brahm Datt
Sharma 7 has held that the Court should be reluctant to
interfere with the notice, unless the notice is shown to have
been issued palpably without any authority of law. In
Special Director v. Mohd. Ghulam Ghouse 8, the Hon'ble
Supreme Court again reiterated the aforesaid principle and
held that unless the High Court is satisfied that the show
cause notice which was issued was totally non est in the
eye of the law for absolute want of jurisdiction of the
authority, the writ petitions should not be entertained for
the mere asking and as a matter of routine. In Siemens
Ltd. v. State of Maharashtra 9, it was inter alia held that
ordinarily a writ court may not exercise its discretionary
jurisdiction in entertaining a writ petition questioning a
notice to show cause, unless the same inter alia appears to
have been without jurisdiction. The issue of entertaining
7 (1987) 2 SCC 179
8 (2004) 3 SCC 440
9 (2006) 12 SCC 33
14
the writ petition at the stage of show cause notice was once
again examined by the Hon'ble Supreme Court in Union of
India v. VICCO Laboratories 10, and it was held that
abstinence from interference at the stage of issuance of
show cause notice in order to relegate the parties to the
proceedings before the authorities concerned is the normal
rule. However, the said rule is not without exceptions. It
has further been held that where a show cause notice is
issued either without jurisdiction or in an abuse of process
of law, certainly in such a case, the writ court would not
hesitate to interfere even at the stage of issuance of show
cause notice.
19. In the instant case, the Revenue Divisional Officer
has issued the memo dated 21.06.1993 by which it was
held that the subject land is a jagir land and not a patta
land. The land owners challenged the validity of the
aforesaid memo dated 21.06.1993 in a writ petition,
namely W.P.No.12631 of 1993, which was allowed by the
10 (2007) 13 SCC 270
15
learned Single Judge by an order dated 24.03.2000. The
relevant extract of the said order reads as under:
From this judgment it is to be noted that the
Committee constituted by the legislative Assembly felt
that the Government ought to have implemented the
directions of the Board of Revenue and that land in
Sy.Nos. 122,126,143,150 and 152/A, 152/B, 153 and
154 belong to Government. Aggrieved by the proceedings
of the House Committee, the petitioners filed
W.P.No.14257 of 1989, since the Assembly itself was
dissolved, the writ petition was withdrawn with a liberty
to agitate the same if it was warranted. However, the
Government issued a Memo dated:21.6.1993 tracing out
the aforesaid history and directing the Collector to
adjudicate on the following issues.
(i) Whether the Jagirdar is entitled to
Ryotwari Patta with reference to the land
as per the provisions of Jagir Abolition
Regulation Act, 1358 Fasli?
(ii) Whether the ryota have acquired
occupancy right in respect of the land in
their possession.
It is conceded that the regulations come into force
from 15.8.1949. Under the Andhra Pradesh (Telangana
Area) (Abolition of Jagirs) Regulation 1358 Faslil (for
brief "Regulations") all the Jagirs stood vested in the
Jagir administrator by virtue of Section 5 of the
16
Regulations, from the appointed date the jagirdar shall
make over the management of the Jagir to the Jagir
Administrator. Jagir Administrator was appointed under
Section 3 of the Act and the Jagirs so vested shall be
under the control of the Jagir Administrator and it shall
be included in the Diwani until it is included in the
districts constituted under the Andhra Pradesh
(Telangana Area) Land Revenue Act, it shall be
administered by the Jagir Administrator. Under Section
18, the personal properties of the Jagirdar are excluded.
Section 18 reads as follows.
"Personal property and liabilities not
effected:-
Nothing in this Regulation shall affect:-
(a) The personal property of a jagirdar
or Hissedar or any property other
than the Jagir held by a Jagirdar
on behalf of the Hissedars, or
(b) Any liability of a Jagirdar or
Hissedar in respect of any loan
taken from Government."
Under section 20 of the Regulations, any party
aggrieved by the Jagir Administrator under the
regulation, may appeal to the Government or to such
other authority. Under Section 21, no Civil or Criminal
proceedings shall be initiated against Jagir
Administrator except with the consent of the
Government. Under section (2) claims relating to Jagir
or any share in the income, thereof whether arising
under section 145 Criminal Procedure Code and Civil
17
suits still pending between the parties, it is established
that they are the private properties of the Jagirdars.
Even in the report submitted by the Revenue Divisional
Officer, Chevella, dated 14.9.1983 as per the records
after incorporation of Jagir. it was found that Syed
Shabuddin Hussain name was appearing as Pattedar in
respect of S.Nos.122 to 125, 143 to 150, 152-A, 152-3,
153 and 154. In 1982 Jagirdars and the protected
Tenant holders who became owners sold certain lands to
the petitioners under certain registered sale deed and
the necessary mutation was also affected and the same
was implemented in Jamabandi 1982-83. Therefore,
from the sequence of the events, it appears that the
entire proceedings were emanated on the basis of the
observations made by this court W.P.No.2027 of 1986,
wherein some of the petitioners sought for
implementation of the orders of the Board of Revenue
Dated:20.7.1951. But, as can be seen from the order of
the Board of Revenue Dated:20.7.1951, there was no
mention about the survey numbers and it was only an
observation made by the learned member of a Board of
Revenue. He did not specifically state that the land
situated in Sy.Nos. 122 to 125, 143 to 150, 152-A, 152-
B, 153 and 154 formed part of Jagir village. In any
event, the power of the Government to direct the
collector to adjudicate the matter under the provisions
of the Jagir Abolition Act, is the question to be decided.
As already stated, any claims relating to Jagir lands or
any share in the income arising under the regulation or
otherwise subject to the regulation are required to be
decided by an appropriate Civil Court. Thus, it is clear
that there must be claim relating to Jagir arising under
18
the Regulation. But, in the instant case, nobody is
claiming Jagir or share in the income. Admittedly, Syed
Shaabuddin Hussain was Jagirdar owning some private
lands, a part of which was also went to Seetal Singh and
others who were protected tenants, who also sold some
of the land to the petitioners. The lands forming part of
Jagir vested with the Jagir administrator and thus they
merged with the Diwani. Under these circumstances,
two important questions would arise for consideration
(1) whether the Government has got power to initiate
such an action as referred in the impugned memo;
(2) whether it would be open for the Government to
conduct injury after lapse of nearly 50 years?
...
3. The following points have to be adjudicated upon.
(i) Whether the Jagirdar is entitled to
Ryotwari Patta with reference to the land
as per the provisions of Jagir Abolition
Regulation Act,1358 Fasli?
(ii) Whether the ryots have acquired
occupancy rights in respect of the lands in
their possession?
4. The Collector, Ranga Reddy District is, therefore,
requested to make a due enquiry in the matter and
decide the above point after giving notice to all the
parties concerned keeping in view the fact that the
relevant date to be considered in this enquiry is the date
of coming into force of (Telangana Area) Abolition of
Jagir Regulation Act, 1358 Fasli."
The Government is proceeding as if the lands in
question were Jagir lands and vested in Government,
which ex facie misconceived. Further, there is no
provision for adjudicating the respective rights under
the regulation. In such an event, it has to be
adjudicated only in a civil court as contained in Section
21 of the Regulation. It is further to be noted that under
the provisions of the regulation, there is no such
provision as to conduct omnibus enquiry and that too
by the Collector. To exercise certain functions under the
statute, the authority should be vested with such power.
If no such power is traceable, it would be an exercise in
futility and such action of the authorities will be
declared ultra vires the powers being without
jurisdiction. Accordingly, there is no power in the
regulation authorizing the Government to direct the
Collector to adjudicate the matter as to whether
Jagirdars were entitled for Ryotwari patta in the absence
of such a power, it would not be appropriate for the
Government to initiate proceedings under the
Regulation. An action which is impermissible under the
statute cannot be allowed to be initiated in the guise of
administrative power, which cannot be achieved directly
cannot be allowed to achieve indirectly. Whether
Jagirdars are entitled for Ryotwari patti or whether ryots
have acquired occupancy rights, cannot be adjudicated
under the provisions of the regulation and it is only a
civil suit which has to be filed and the matter to be
decided by the appropriate civil court. Admittedly civil
disputes are pending between alleged ryota and the
petitioners. Further, there is no provision in the
regulation to Suo-motu revise or review the orders
passed under the regulation. Even if such a statutory
power is vested, it is held by catena decisions of the
apex court that such power should be exercised within a
reasonable period. The matters were settled four
decades ago. Therefore, by virtue of present proceedings,
it cannot be allowed to be unsettled at this distant of
time. Moreover, the revenue authorities recognized the
sale deed executed by the Jagirdar and also protected
tenant holder, who acquired ownership rights and
names of the petitioners were mutated and their names
were also entered in the revenue records.
The learned Government Pleader lastly submits
that there is no mention about the lands held by the
petitioners and therefore, the petitioners have no cause
of action. I am unable to accept this contention. The
entire events right from the time of filing the Writ
Petition and also the report of the committee constituted
by the Legislative Assembly would indicate that the
proceedings relate to the lands held by Jagirdars which
were in turn sold to the petitioners.
Under these circumstances, I have to necessarily
hold that the impugned Memo is incompetent, without
jurisdiction and arbitrary. Accordingly the Writ petition
is allowed. No costs.
20. Thus, from perusal of the aforesaid relevant extract of
the order passed by the learned Single Judge, it is evident
that the learned Single Judge held that the power to
initiate a proceeding has to be exercised within a
reasonable time and therefore, the learned Single Judge
found that the initiation of proceedings by issuing a memo
dated 21.06.1993 is incompetent, without jurisdiction and
arbitrary. It was further held that the assumption of the
Government that the land in question was jagir land and
was vested in the State Government was ex facie
misconceived.
21. Admittedly, the aforesaid order was challenged by the
State Government in a writ appeal, namely W.A.No.732 of
2000. The Division Bench of this Court by a judgment
dated 11.11.2002 affirmed the order passed by the learned
Single Judge. However, it was observed that the factual
findings recorded by the learned Single Judge on the
merits of the matter would not in any way influence or bind
either the civil Court or any other statutory forum or
authority which may be called upon to decide the basic
issue whether the subject lands constitute 'jagir' within the
meaning of that term as defined under Regulation 2(f) of
the Regulation and such issue should be resolved solely on
the basis of the evidence that may be led before such Court
or forum or authority, as the case may be. The relevant
extract of the judgment of the Division Bench reads as
under:
On issuance of a notification envisaged under
sub-section (1) by the government, by virtue of the
provisions of sub-section (2), every jagirdar is obligated
to make over the management of the 'jagir' to the Jagir
Administrator and if a 'jagirdar' fails to carry out the
obligation, then, sub-section (3) provides that the jagir
administrator could pursue coercive steps to take over
the management of the 'jagir'. Thus, it could be seen
that in a case, where steps envisaged under sub-section
(1) of Section 5 have been taken against a person and
that person who is considered to be a 'jagirdar' by the
government comes before the Jagir Administrator and
contends that the land in respect of which the
government has issued the notification is not a 'jagir',
but a private patta land of the 'jagirdar', the jagir
administrator may be required to decide such incidental
issue in order to effectuate the provisions of the
Regulation. Be that as it may, the learned Government
Pleader as well as Mr.V.Ravinder Rao were not in a
position to refer to any of the provisions of the
Regulation or the Rules framed thereunder, to show that
the government has the power to decide the question
whether a land is 'jagir' or patta land in case of a
dispute. It is well-settled that when the law-maker
designates an authority and confers certain statutory
power to do certain thing, that authority can alone
exercise that power and not any other authority,
whether superior or inferior, and if any external
authority exercises the power vested in a statutory
authority, the action would be condemned as ultra vires
the statute. Therefore, it is not permissible for the State
Government to determine the rights of the parties.
Realizing the difficulty to sustain the impugned action of
the government, the learned Government Pleader as well
as Mr.V.Ravinder Rao would maintain that the
impugned action is not an action taken under the
Regulation, but it is an administrative action taken in
exercise of the executive power of the State and,
therefore, no exception could be taken to the impugned
action. This contention of the learned counsel should be
noticed only to be rejected, because, it is well settled, as
stated above, it is not permissible for the Executive
Government to meddle with the statutory provisions in
the purported exercise of executive power. The Executive
Government by exercising executive power can only
supplement and it cannot supplant statutory provisions.
It is not a case where the statute is silent and the
executive government has stepped in and issued
administrative instructions or guidelines to fill in the
gap in the statute.
In conclusion, we cannot find any substantive or
weighty reasons to interfere with the order of the learned
single Judge. However, we find some force in the
grievance of the learned Government Pleader and Sri
V.Ravinder Rao that certain findings recorded and
observations made by the learned single Judge in the
course of the order relating to the merits of the matter
were unwarranted and unjustified. According to the
learned counsel, the learned Judge having held that the
impugned proceeding could not be sustained for want of
power in the State Government ought to have quashed
the impugned proceeding only on that ground, reserving
liberty to the parties to work out their remedies before
the appropriate Court or the forum and ought not to
have recorded findings on merits of the case. It is true
that the learned single Judge in the course of the order
has held that having regard to the earlier proceedings
taken under Section 145 Cr.P.C and the source between
the parties etc., the subject lands could not be regarded
as 'jagir'. We think that there was no necessity for this
Court to foreclose the issue by recording findings on
merits. The factual questions should not and could not
have been decided only on the basis of the affidavits and
counter-affidavits in a summary proceeding under
Article 226. Further, we do not find any clinching proof
to sustain the factual findings.
In the result, we dismiss the writ appeal with no
order as to costs. However, we direct that the factual
findings recorded by the learned single Judge on merits
of the matter would not in any way influence or bind
either the Civil Court or any other statutory forum or
authority which may be called upon to decide the basic
issue whether the subject lands constitute 'jagir' within
the meaning of that term, as defined under clause (f) of
Section 2 of the Regulation and such issue should be
resolved solely on the basis of the evidence that may be
led before such Court or Forum or Authority, as the case
may be.
With these observations and directions, the writ
appeal is disposed of and accordingly the order of the
learned single Judge shall stand modified.
22. Thus, the Division Bench of this Court noted that
the Government Pleader was unable to refer to any of the
regulation or rules to indicate that the Government has
power to decide the question whether the land is a jagir or
patta land in case of a dispute. It was further held that it
is not permissible for the State Government to determine
the rights of the parties. Admittedly, the aforesaid
judgment has attained finality and has not been assailed
further.
23. Before proceeding further, it is apposite to notice
relevant statutory provisions. The power of revision
conferred under Section 166-B of the Land Revenue Act
deals with the power of the Collector or the Settlement
Commissioner of land records. Section 166-B of the Land
Revenue Act is reproduced below for facility of reference.
166-B. Revision:- (1) Subject to the provisions of the
Telangana Board of Revenue Regulation, 1358F, the
Government or any Revenue Officer not lower in rank to
a Collector the Settlement Commissioner of Land
records may call for the record of a case or proceedings
from a subordinate department and inspect it in order to
satisfy himself that the order or decision passed or the
proceedings taken is regular, legal and proper and make
suitable order in that behalf:
Provided that no order or decision affecting the
rights of the ryot shall be modified or annulled unless
the concerned parties are summoned and heard.
(2) Every Revenue Officer lower in rank to a
Collector or Settlement Commissioner may call for the
records of a case or proceedings from a subordinate
department and satisfy himself that the order or
decision passed or the proceedings taken is regular,
legal and proper and if, in his opinion, any order or
decision or, proceedings should be modified or annulled,
he shall put up the file of the case with his opinion to
the Collector or Settlement Commissioner as the case
may be. Thereupon the Collector or Settlement
Commissioner may pass suitable order under the
provisions of sub-section (1).
(3) The original order or decision or an authentic
copy of the original order or decision sought to be
revised shall be filed along with every application for
revision.
24. Section 9 of the Pattadar Pass Books Act which deals
with power of revision of the Collector reads as under:
9. Revision:- The Collector may either suo motu or on
an application made to him, call for and examine the
record of any Recording Authority, Mandal Revenue
Officer or Revenue Divisional Officer under Sections 3,
5, 5-A or 5-B, in respect of any record of rights prepared
or maintained to satisfy himself as to the regularity,
correctness, legality or propriety of any decision taken,
order passed or proceedings made in respect thereof and
if it appears to the Collector that any such decision,
order or proceedings should be modified, annulled or
reversed or remitted for re-consideration, he may pass
orders accordingly:-
Provided that no such order adversely affecting
any person shall be passed under this section unless he
had an opportunity of making a representation.
25. Thus, from a conjoint reading of the aforesaid
provisions, it is evident that the aforesaid provisions deal
with the power of revision of Collector/Revenue Settlement
Commissioner of Land records. The power under Section
9 of the Pattadar Pass Books Act can be exercised either
suo motu or on an application, whereas the power under
Section 166-B of the Land Revenue Act can be exercised by
the Collector or the Settlement Commissioner of land
records suo motu.
26. The impugned notice dated 21.06.2005, before the
learned Single Judge, is extracted for facility of reference.
IN THE COURT OF JOINT COLLECTOR-I,
RANGA REDDY DISTRICT
No.F1/7417/1990 Dated: 21-06-2005
Between
Mandal Revenue Officer,
Shamshabad Mandal.
.... Appellant
AND
1. V. Tulasiram, S/o. Narayana Swamy
2. V.T. Prakash, S/o. Tulasiram
3. Smt. V. Bharathi, W/o. Tulasiram
4. V. Jagathkumar, S/o. Narayana Swamy
5. N. Narsinga Rao, S/o. Kistaiah
6. Smt. S.K. Saria W/o. Gnaneshwar
.... Respondents
NOTICE
In order to implementation of the orders passed
by the then Board of Revenue, Hyderabad in file
No.313/87/1950, appeals Hyderabad dated: 20.07.1951
and the orders passed by the then Hon'ble Minister for
Revenue, Government of Hyderabad in file No.A-
1/148/1951, No.(54), dated 18.11.1952 read with under
rule 4 of rules regarding grant of pattadari rights in non-
khalsa village published in Gazette No.32 dated: 19thir
1356 F. Circular No.2 Revenue Department, dated
18.10.49 and Circular No.12 Jagir administration dated
03.11.1949 in respect of the land bearing Sy.No.9/2, 26,
33, 44, 42, 46, 47, 78 & 79 admeasuring Ac.307-35 gts,
New Sy. Nos.210, 1, 4, 118, 119, 120, 121, 122, 123,
124, 154, 42, 5151, 152, 153, 125, 126, 127, 128, 143,
144, 145, 146, 148 & 149 admeasuring Ac.307-35
situated Sultanpally Village, Shamshabad Mandal.
Therefore the case is taken up for hearing U/s.
166-B of AP (TA) Land Revenue Act 1317F & Section 9 of
A.P. Rights in Land and Pattadar Pass Books Act 1971
and posted for hearing on 01.07.2005 at 3.00 P.M.
before Joint Collector-I, Ranga Reddy District at O/o.
Collector, R.R. District at Lakdikapul, Hyderabad.
Therefore, you are required to be present before this
Court either in person or through an advocate on the
said date and time along with supporting documents in
their favour, failing which the matter will be decided on
the material available on record.
Sd/-
Joint Collector-I,
Ranga Reddy District.
To
Mandal Revenue Officer, Shamshabad Mandal.
27. Thus, it is evident that the impugned notice has been
issued to implement the orders passed by the Board of
Revenue as well as by the Minister for Revenue, dated
18.11.1952. From a perusal of the impugned notice, it is
evident that the powers of revision under Section 9 of the
Pattadar Pass Books Act and under Section 166-B of the
Land Revenue Act have not been invoked to examine the
regularity, correctness, legality or propriety of any decision
taken, order passed or proceedings made in respect
thereof. Therefore, invocation of powers under Section
166-B of the Land Revenue Act and under Section 9 of the
Pattadar Pass Books Act is de hors the provisions of the
said Acts and the same is not only in contravention of the
decision of the learned Single Judge and Division Bench
decision of this Court in previous round of litigation but is
per se without jurisdiction.
28. It is well settled legal proposition that where no time
limit is prescribed in exercise of power under the statute,
the same does not mean that it can be exercised at any
time. The power conferred under the statute has to be
exercised within reasonable time. In this connection,
reference may be made to the decision of the Hon'ble
Supreme Court in Mohd. Kavi Mohamad Amin v.
Fatmabai Ibrahim 11, as well as the decision of the Hon'ble
Supreme Court in B.S. Sheshagiri Setty v. State of
Karnataka 12 (Also see SEBI v. Sunil Krishna Khaitan 13).
29. In the present case, admittedly, the impugned notice
has been issued on 21.06.2005 to implement the order
dated 20.07.1951 passed by the Board of Revenue. The
aforesaid notice has been issued after a delay of 54 years.
It is pertinent to note that the Mandal Revenue Officer had
filed a petition before the Commissioner and Director of
Settlement and Jagir Administrator requesting to conduct
the enquiry and to declare the subject land as belonging to
the Government. The aforesaid petition was dismissed by
the Commissioner and Director of Settlement and Jagir
Administrator by an order dated 31.03.2005. The relevant
extract of the order dated 31.03.2005 reads as under:
The M.R.O., Shamshabad, R.R.District has filed a
petition requesting to conduct enquiry and to declare
the lands in survey Nos.122 to 126 and 143 to 150 and
11 (1997) 6 SCC 71
12 (2016) 2 SCC 123
13 (2023) 2 SCC 643
152/B as vested with the government. He has stated
that the competent authority to decide this issue is, the
Jagir Administrator under Section 24(i) of Jagir
Abolition Regulation 1358 Fasli.
The M.R.O., has contended that Sri Syed
Shabuddin Hussaini (Jagirdar) seemingly got his name
entered in Revenue records as Pattadar of survey
Nos.9/2, 26, 33, 42, 44, 46, 47, 78 and 79 totalling to
Ac.307-35 guntas in the year 1950 after abolition of
Jagirs. It is stated that after the abolition of jagirs the
then Tahsildar auctioned the Kancha Lands in the year
1950-51 in the name of Sri Prabhulingam and an appeal
by the Jagirdar before the Additional Collector
requesting to set aside the auction was dismissed.
A second appeal filed before the Board of Revenue was
also dismissed with observation that the lands in
question were already established as part of Jagir and
were not the private property of the jagirdar, by virtue of
fact that the Jagirdar had already included its income of
Kancha in the income statement and received
compensation.
The petition filed by the Mandal Revenue Officer,
Shamshabad has been examined and it is found that it
is frivolous and ill-prepared. Section 24(1) of the
Hyderabad (Abolition of Jagir) Regulation 1358 Fasli
talks about the rule making powers of the government
and does not confer any power on Jagir Administrator to
decide such matter as contended by the Mandal
Revenue Officer in his petition. Secondly, if the land
which petition talks about is same land as covered by
the Board's order mentioned in the petition, the matter
has already been conclusively settled and there is
nothing left for this authority to adjudicate. If the
records are not been in conformity with the Board's
orders the M.R.O ought to take proper action to correct
them rather than filing such frivolous petitions.
With these observation, the petition is dismissed.
30. No action was taken by the State Government to
challenge the order dated 31.03.2005. The aforesaid order
passed by the officer of the Government, namely the
Commissioner and Director of Settlement and Jagir
Administrator, Andhra Pradesh, Hyderabad, binds the
State Government.
31. It is pertinent to note that initiation of proceeding on
21.06.1993 was held, vide learned Single Judge's order
dated 24.03.2000 in the earlier round of litigation, to be
not within reasonable time. In the instant case, the
impugned notice has been issued after a period of 54 years
to implement the order dated 20.07.1951 passed by the
Board of Revenue which by no stretch of imagination can
be said to be reasonable. On this ground also, the notice
cannot be sustained in the eye of law.
32. It is trite law that in exercise of powers under Article
226 of the Constitution of India, the Court cannot examine
the question of title. A Constitution Bench of the Hon'ble
Supreme Court in Sohan Lal v. Union of India 14, while
dealing with the question of title, held that civil suit is an
appropriate remedy and the question of title cannot be
examined in a proceeding under Article 226 of the
Constitution of India. Similar view has been taken by
another Constitution Bench of the Hon'ble Supreme Court
in Thansingh Nathmal v. Superintendent of Taxes,
Dhubri 15. In view of the enunciation of law by two
Constitution Benches of the Hon'ble Supreme Court, it is
evident that the question of title cannot be examined in a
writ petition. Therefore, the contention of the learned
Advocate General that the land owners have no title in
respect of the land in question cannot be examined in the
writ petition.
14 AIR 1957 SC 529
15 AIR 1964 SC 1419
33. The State Government cannot proceed on the
assumption that the land in question is a jagir land.
Therefore, the contention of the learned Advocate General
that the land owners did not avail of the appropriate
remedy does not deserve acceptance. It is pertinent to note
that the Mandal Revenue Officer had filed a petition before
the Commissioner and Director of Settlement and Jagir
Administrator seeking to conduct enquiry and to declare
the subject land as belonging to the Government. The said
petition was dismissed by the Commissioner and Director
of Settlement and Jagir Administrator by an order dated
31.03.2005. The aforesaid order binds the appellants.
However, despite the aforesaid order, the impugned memo
dated 21.06.2005 was issued. Therefore, the contention
that the power under Section 166-B of the Land Revenue
Act can be exercised in the facts of the case is
misconceived.
34. For the aforementioned reasons, we concur with the
view taken by the learned Single Judge.
35. The writ appeal is accordingly dismissed.
Miscellaneous applications pending, if any, shall
stand closed. However, there shall be no order as to costs.
______________________________________
ALOK ARADHE, CJ
______________________________________
N.V.SHRAVAN KUMAR, J
26.09.2023
Note: LR copy to be marked.
B/o.
vs/gbs
