Sri. Chandra Mohan vs The Revenue Divisional Officer,
2024 Latest Caselaw 583 Tel

Telangana High Court

Sri. Chandra Mohan vs The Revenue Divisional Officer, on 13 February, 2024

       HIGH COURT FOR THE STATE OF TELANGANA

             WRIT PETITION No.11661 of 2012


Sri Chandra Mohan S/o Late Sri.Ram
Prathap, Aged about 34 years,
Occ:Business,   R/o    H.No.4-7-1,
Kasabgally and Vinayaknagar and
other.

                                                   ....Petitioner
       VERSUS

The Revenue Divisional Officer,
Nizamabad District and four others.
                                                ... Respondents


DATE OF JUDGMENT PRONOUNCED: 13.02.2023



   THE HONOURABLE SRI JUSTICE J. SREENIVAS RAO


  1.    Whether    Reporters    of     Local       Yes/No
        newspapers may be allowed to see the
        Judgments?

  2.    Whether the copies of judgment may         Yes/No
        be marked to Law Reporters/Journals?

  3.    Whether Their Ladyship/Lordship wish       Yes/No
        to see the fair copy of the Judgment?

                                        _____________________
                                      J. SREENIVAS RAO, J
                               2




    THE HONOURABLE SRI JUSTICE J. SREENIVAS RAO

             + WRIT PETITION No.11661 of 2012

% Dated 13.02.2023

# Sri Chandra Mohan S/o Late
Sri.Ram Prathap, Aged about 34
years, Occ:Business, R/o H.No.4-7-
1, Kasabgally and Vinayaknagar
and other
                                                   ....Petitioner


          VERSUS

$ The Revenue Divisional Officer,
Nizamabad District and four others.

                                               ... Respondents



! Counsel for Petitioners         :   Sri D.Madhava Rao, Adv

^ Counsel for Respondent Nos.1 to 3      : G.P for Revenue,
                                           Sri Ghanshyamdas
                                           Mandhani,
                                           Sri V. Rohith.

< GIST:

> HEAD NOTE:

? CITATIONS:

   1. AIR 2008 AP 15
   2. 2002 4 ALD 497 (DB)
   3. 2009 1 ALD 248
   4. 2014 2 ALD 246
   5. 1976 3 SCC 215
   6. 2014 1 ALD 406
                                 3




       HON'BLE SRI JUSTICE J. SREENIVAS RAO

            WRIT PETITION No.11661 of 2012

ORDER:

This writ petition is filed seeking following relief:

"...to issue a writ, order or direction more particularly one in the nature of writ of mandamus declaring the action of the respondent No.2 in considering the appeal as illegal, arbitrary and against the principles of natural justice and consequently set aside the order dated 17.03.2012 passed by the respondent No.2 in case No.D2/104/2011.."

2. Brief facts of the case:

2.1 The claim of the petitioners is that the petitioners

along with others inherited agricultural lands in Survey

Nos.2852 and 2854 situated at Nizamabad to an extent of

Acs.2.1 guntas and Acs.1.11 guntas respectively to the

total extent of Acs.3.12 guntas. The said lands were

owned and possessed by Sri Katike Mohinuddin, S/o

Laxmanji as per the revenue records and Khasra Pahani

for 1954-55. Katike Mohinuddin died in the year 1962

leaving behind his two sons namely Miryalkar Bada Sab @

Bajrang and Miryalkar Ramji and both expired in the

years 1974 and 1986 respectively leaving behind their

children and grandchildren. The original owner and

pattadar had four brothers namely Miryalkar Khaloji,

Miryalkar Gangoji, Miryalkar Laxmanji and Miryalkar

Kishanji all sons of Laxmanji.

2.2 It is further submitted that the above said land is

recorded in revenue records in the name of Katike

Mohinuddin as owner and pattadar, however in the year

2004, the said land got mutated in favour of Miryalkar

Kishanji S/o Laxmanji, who is one of the brothers of

Katike Mohinuddin. The application of mutation under

ROR was filed and the same was effected and pattadar

pass books and title deeds were issued to Miryalkar

Kishanji without issuing any notice to the petitioners who

are the legal heirs and without conducting any enquiry.

2.3 The petitioners immediately after knowing that

mutation was sanctioned in the year 2004 in favour of

Miryalkar Kishanji, approached respondent No.1 and

submitted application on 19.12.2009 requesting to

conduct enquiry about mutation of Acs.3.28 guntas in the

name of unofficial respondents and take appropriate steps

for deletion of the revenue entries and also for cancellation

of the pattadar pass books and title deeds and take

appropriate action with regard to mutation of the

unofficial respondents' names in the revenue records in

respect of Acs.3.12 guntas in Survey No.2852 and 2854

and cancel the title deeds and pattadar pass books issued

in favour of the unofficial respondents. Basing on the said

representation, respondent No.1 directed respondent No.3

to conduct enquiry and submit report. Pursuant to the

same, respondent No.3 after conducting enquiry

submitted detailed enquiry report vide

Proc.No.A5/72816/2009 dated 29.12.2009 for cancelling

the revenue mutation in favour of the unofficial

respondents. Taking into consideration of the above said

report, respondent No.1 after issuing notice to the

petitioners as well as respondent Nos.4 and 5 and after

conducting detailed enquiry and after hearing both the

parties passed order on 21.12.2010 vide Case

No.A3/269/2010 by setting aside the mutation

proceedings issued by respondent No.3 vide

No.ROR/NZB-III/24/2004 dated 18.12.2004 and remitted

the matter to respondent No.3 to pass appropriate orders,

after giving notice and opportunity to both the parties.

2.4. Aggrieved by the said order, unofficial respondent

No.5 filed revision petition before respondent No.2 and the

revisional authority without verifying the records allowed

the revision on 17.03.2012 vide Case No.D2/104/2011

and passed cryptic order without giving any reasons and

aggrieved by the above said order, the petitioners filed this

present writ petition.

3. Heard Sri D.Raghavendra Rao, learned counsel

representing Sri D.Madhava Rao, learned counsel for the

petitioners and learned Assistant Government Pleader for

Revenue for respondent Nos.1 to 3, Sri Ghanshyamdas

Mandhani, learned counsel, representing Sri Bankatlal

Mandhani, appearing for respondent No.4 and Sri V.Ravi

Kiran Rao, learned Senior Counsel representing Sri

V.Rohith, learned counsel for respondent No.5.

4. Learned counsel for the petitioner vehemently

contended that respondent No.3 without issuing any

notice and without conducting any enquiry mutated the

names of the unofficial respondents in the revenue

records and issued proceedings dated 18.12.2004 in

respect of subject property and the same is clear violation

of the provisions of Section 3 of A.P. Rights in land and

Pattadar Pass Books Act, 1971 and also Rules made there

under( 'for brevity' Act). As soon as the petitioners came

to know about the illegal entries made in the revenue

records, they have approached respondent No.1 and

submitted representation on 19.12.2009 requesting to

conduct enquiry and take appropriate steps. Pursuant to

the same, respondent No.1 directed respondent No.3 to

conduct enquiry and submit report. Rrespondent No.3

after conducting detailed enquiry submitted report on

29.12.2009. Thereafter, respondent No.1 initiated the

proceedings, exercising the powers conferred under

section 5(5) of Act, after giving opportunity to both the

parties, conducting enquiry and after due verification and

considering the documentary evidence on record, passed

order by setting aside the mutation proceedings issued by

respondent No.3 dated 18.12.2004 and remitted the

matter to respondent No.3 to pass appropriate orders,

after giving opportunity to both the parties. In the said

order, respondent No.1 specifically held that Mandal

Revenue Officer, Nizamabad issued mutation proceedings

dated 18.12.2004, without following mandatory procedure

prescribed under the provisions of the Act, 1971 and

Rules made thereunder.

4.1 Aggrieved by the said order, respondent No.4 filed

revision petition before respondent No.2 and the revisional

authority without considering the contentions raised by

the petitioners herein and also without verifying records

allowed the revision petition and passed the cryptic order

without giving any reasons and the same is not permitted

under law.

4.2. Learned counsel further contended that the

unofficial respondents are disputing the title over the

property. Neither the revenue authorities nor this Court is

having jurisdiction to decide the title over the property

under ROR proceedings. He also contended that the only

grievance of the petitioners in this writ petition as well as

before the respondent authorities is that the then Mandal

Revenue Officer without following the due procedure as

contemplated under the provisions of the Act and Rules

made thereunder issued mutation proceedings dated

18.12.2024.

4.3. In support of his contention he relied upon the

Judgment in Chinnam Pandurangam Vs. The Mandal

Revenue Officer, Serilingampally Mandal and Ors 1.

5. Per contra Sri V.Ravi Kiran Rao, learned Senior

Counsel vehemently contended that petitioners are not

having any right, interest and title over the subject

property. He further contended that in respect of very

same property and other property, respondent Nos.5 filed

a suit O.S.No.52 of 2002 on the file of VIII Additional

District Judge, Nizamabad, against his father and others

seeking partition of the Suit Schedule property. In the

said suit, petitioner No.2 himself was examined as PW-3

and in his deposition, he specifically stated that a

partition had taken place between respondent No.5 and

his father and his brothers and in the said partition,

property to an extent of Acs.6.00 situated at Arsapally,

Nizamabad, was allotted to the share of respondent No.5.

The said document was also placed before respondent

No.1. In spite of the same, respondent No.1 without giving

any reasons, simply set aside the mutation proceedings

issued by respondent No.3, dated 18.12.2004.

5.1. He further contended that petitioners have not filed

statutory appeal as required under Section 5(5) of the Act

and they have simply submitted a representation dated

19.12.2009 before respondent No.1 and he is not having

any authority or jurisdiction to treat the said application

as appeal under Section 5(5) of the Act. He also

contended that as per the provisions of the Section 5(5) of

the Act, aggrieved party has to file appeal within a period

of 60 days from the date of receipt of a copy of the order

under prescribed procedure as mentioned in Rule 21 of

the Rules. In spite of the same, respondent No.1 treated

the application submitted by the petitioners dated

19.12.2009 as appeal and passed order dated 21.12.2010

and same is excess of jurisdiction.

5.2. In support of his contention he relied upon the

following judgments:

1. Sannepalli Nageswar Rao and another Vs.

District Collector, Khammam and others 2,

2. Thripuravaram Krishna Reddy v. Joint

Collector 3,

1 AIR 2008 AP 15

3. Peddi Sailaja and another Vs. State and others 4

6. Sri Ghanshyam Das Mandhani, learned counsel

appearing for respondent No.4 also submits that

petitioner No.2 himself was examined as PW3 in

O.S.No.52 of 2002 and he specifically deposed that a

partition has taken place between respondent No.5 and

his father and his brothers and in the said partition,

property to an extent of Acs.6.00 was allotted to the share

of respondent No.5 and the same is binding upon him. He

further contended that subsequent to passing of the order

by respondent No.1 dated 21.12.2010 petitioner sold away

the subject land to an extent of Acs.2.17 guntas, through

registered sale deed vide document No.412 of 2011, dated

10.01.2011, to one Shaik Zameel and the said Shaik

Zameel filed O.S.No.27 of 2011 on the file of Senior Civil

Judge, Nizamabad and the same was dismissed after full

fledged trial. He further submits that the petitioner No.2

did not enter into witness box in the said suit. Aggrieved

by the said judgment and decree, Zameel filed appeal and

the same is pending. He also contended that respondent

2 2002 4 ALD 497 (DB ) 3 2009 (1) ALD 248 4 2014 (2) ALD 246

No.2 after considering the contentions of both the parties

and after verification of entire records, rightly passed the

impugned order and there is no illegality or irregularity in

the said order and the petitioner is not entitled any relief

much less the relief sought in this writ petition.

6.1. In support of his contention he relied upon the

judgment of Prakash Chand Sharma and others Vs.

Narendra Nath Sharma 5.

7. Learned Assistant Government Pleader submits that

respondent No.2 rightly passed the impugned order

exercising the powers conferred under Section 9 of the

Act.

8. Having considered the rival submissions made by

respective parties and after perusal of the material

available on record following points arises for

consideration:

i. Whether the order dated 21.12.2010, passed by respondent No.1(Revenue Divisional Officer) is within the purview of Section 5(5) of the Act and Rule 21 of the Rules and whether he is having authority or jurisdiction to treat the application filed by the petitioner No.1 as appeal under RoR Act?

5 1976 3 SCC 215





         ii. Whether   the    impugned order  dated

17.03.2010 passed by respondent No.2 is in accordance with law?

iii. Whether the petitioners are entitled for the relief sought in the writ petition? If so what relief?

Point Nos: i to iii

8.1. As per the records, it reveals that the petitioners are

claiming the rights over the subject property through

Katike Mohinuddin, whereas the unofficial respondents

are claiming rights over the property through Kishanji.

During the lifetime of Kishanji, Mandal Revenue Officer

Nizamabad issued mutation proceedings vide dated

18.12.2004 and also issued pattadar pass books and title

deeds in his favour, after his death, respondent Nos.4 and

5 who are sons of Kishanji succeeded the said property.

The grievance of the petitioners is that the then Mandal

Revenue Officer, Nizamabad without following mandatory

procedure prescribed under the Act and Rules mutated

the name of Kishanji in the revenue records and issued

mutation proceedings dated 18.12.2004. Admittedly, the

petitioners have not questioned the above said

proceedings before any Court of law nor filed appeal before

respondent No.1 as per the Section 5(5) of the Act and

Rule 21 of the Rules and the same has become final.

8.2. It further reveals from the records that petitioner

No.1 had submitted representation on 19.12.2009 before

respondent No.1 to conduct enquiry and cancel the

pattadar pass books and title deeds issued in the name of

Kishanji in respect of land to an extent of Acs.3.28 guntas

in Survey No.2852 and 2854. Basing on the said

representation, respondent No.1 directed respondent No.3

to submit the report. Accordingly, he submitted report on

29.12.2009. Pursuant to the said report, respondent No.1

passed the impugned order on 21.12.2010, exercising the

powers conferred under Section 5(5) of the Act, setting

aside the mutation proceedings issued by the then

Tahsildar, dated 18.12.2004 and remitted the matter for

fresh consideration to respondent No.3. It is very much

relevant to place on record that petitioners have not filed

statutory appeal questioning the proceedings dated

18.12.2004 issued by respondent No.3 as per the

procedure prescribed under Section 5(5) of the Act and

Rule 21 of the Rules and respondent No.1 is not having

authority or jurisdiction to treat the application dated

19.12.2009 filed by the petitioner No.1 as an appeal under

Section 5(5) of the Act and Rule 21 of the Rules.

9. The judgment relied upon by the learned counsel for

the petitioners in Chinnam Pandurangam supra is not

applicable to the facts and circumstances of the case on

the sole ground that the petitioner.No.1 filed application

before respondent No.1 to conduct enquiry and for

cancellation of the pattadar pass books issued in respect

of subject property and also issue title deeds in their

favour. The said application was treated as an appeal

under section 5(5) of the Act and respondent No.1 passed

the impugned order dated 21.12.2010.

10. The judgment relied upon by the learned counsel for

respondent No.4 in Prakash Chand Sharma and others

supra wherein it is stated that admission made by the

parties under the provisions of Section 17 and 124 of

Indian Evidence Act, 1872 is binding. This Court is not

deciding the title over the property between the petitioners

and unofficial respondents and scope of writ petition is

very limited to decide whether the impugned order passed

by respondent no.2 exercising powers under section 9 of

the Act is accordance with law or not, while exercising the

powers conferred under Article 226 of Constitution of

India.

11. In Sannepalli Nageswar Rao and another Vs.

District Collector, Khammam and others, this Court

held that:

9. It is fairly well settled that where a statute prescribes a particular thing to be in a particular manner, it shall be done only in the manner prescribed as held by the Hon'ble Supreme Court in Asst. Collector, CE v. N.T. Co., of India Limited, (1972) 2 SCC 560 : AIR 1972 SC 2563, which was followed in CIT v. Anjum M.H. Ghaswala, (2002) 1 SCC 633. A careful perusal of the provisions of the Act would show that a detailed procedure as to the manner in which the appeals are to be filed, including the period of limitation, is prescribed under the Act. Therefore, as rightly contended by the learned Counsel for the appellants that any appeal filed in violation of the said procedure cannot be entertained. In the instant case, the Revenue Divisional Officer has exceeded his jurisdiction and has acted in violation of the provisions of the Act and therefore the appellants/writ petitioners have rightly approached this Court. This apart, the allegations made by the fourth respondent do not constitute a ground for filing an appeal under Section 5(5) of the Act. If the fourth respondent is aggrieved by any entry, the only remedy available is under Section 8(2) of the Act under which he has to seek a declaration of his right under Chapter VI of the Special Relief Act, 1963 in Civil Court and the entry in record of rights shall be amended in accordance with any such declaration. In the instant case, both the parties allege that they are in possession of the respective extents of land in

Sy. No. 394/AA. The appellants contend that they are in possession of Ac. 6.21 guntas and Ac. 4.20 guntas out of Survey No. 394/AA respectively situated at Gumpena village, whereas fourth respondent contends that he is in possession of part of extent of land in the said survey number.

Under such circumstances, it is left to both parties to approach the Civil Court for redressal of their grievance. But, in the instant case, it is submitted by the learned Counsel for the fourth respondent that there is tampering of records and therefore, in our opinion, the remedy would be to approach the Mandal Revenue Officer for amendment and updating of record of rights. Section 5(5) provides that against every order of recording authority either in making amendment in record of rights or refusing to make such amendment, an appeal shall lie to the Revenue Divisional Officer or such authority as may be prescribed within sixty days from the date of communication of the said order and the decision of the appellate authority thereon shall be subject to provisions of Section 9 be final. Therefore, it is proper for the fourth respondent, who is now complaining that there is tampering of records, to approach the Mandal Revenue Officer under Section 5 of the Act, who shall determine as to whether and if so in what manner the record of rights may be amended in consequence thereof and shall carry out the amendment in the record of rights in accordance with such determination. At the time of hearing, all the parties fairly concede that the Mandal Revenue Officer has the jurisdiction to carry out the amendment as per the provisions of the Act and therefore all of them are ready and willing to submit to the jurisdiction of Mandal Revenue Officer, instead of approaching the Revenue Divisional Officer, who is an appellate authority.

12. In Thripuravaram Krishna Reddy v. Joint

Collector, this Court held that:

4. The learned Counsel for the petitioner contended and in my view rightly, that

respondent No. 2 has no jurisdiction to pass order dated 16.3.1999. Under Section 5(5) of the Andhra Pradesh Rights in Land and Pattadar Pass Books Act, 1971 (for short "the Act"), respondent No. 2 is empowered to entertain an appeal filed within a period of sixty days from the date of communication of the order passed by respondent No. 3 under Section 5(3) of the Act correcting the entries in the revenue record. In N. Bal Reddy v. Revenue Divisional Officer, Hyderabad, 2004 (2) ALD 419, this Court, however, interpreted Section 5(5) to the effect that an order granting pattadar passbooks and title deeds is also comprehended by the said provision. On such an interpretation, if respondent No. 2 is held to have the jurisdiction to entertain an appeal even against an order issuing pattadar

failed to file an appeal against the said order in the form of an appeal and within the period of limitation. In this context, it is necessary to refer to Rule 21 of the Andhra Pradesh Rights in Land and Pattadar Pass Books Rules, 1989, which reads as under:

"21. (1) An appeal against every order of the Mandal Revenue Officer either making an amendment in the Record of Rights or refusing to make such amendment shall lie under sub-section (5) of Section 5 of the Act, to the Revenue Divisional Officer/Sub-Collector/Assistant Collector or such authority as may be notified by the Commissioner.

(2) Every appeal referred to in sub-rule (1) shall be in writing and shall set forth concisely the grounds thereof within a period of sixty days from the date of communication of the order and shall be accompanied by a copy of the order appealed against.

(3) Every appeal referred to in sub-rule (2) above, shall bear a Court fee stamp of rupees five only."

This extract is taken from Thripuravaram Krishna Reddy v. Joint Collector, 2008 SCC OnLine AP 533 : (2009) 1 ALD 248 at page 250

5. Admittedly, neither the so-called petition is in the form of appeal affixed with the required stamp nor was filed in time. No application for condonation of delay was claimed to be filed by respondent No. 4 nor respondent No. 2 passed any order condoning the delay before entertaining and adjudicating the appeal on merits. Respondent No. 2 ought not to have, therefore, entertained the petition of respondent No. 4 and treated it as an appeal. If respondent No. 4 was aggrieved by the issuance of pattadar passbooks and title deeds, he should have filed a statutory appeal under Section 5(5) of the Act, within the time limit, or a civil suit under Section 8(2) of the Act before the competent Civil Court. As he did not take recourse to either of the two remedies, it is beyond the jurisdiction of respondent No. 2 to entertain the petition filed by respondent No. 4, because he has no power akin to the power vested in respondent No. 1 under Section 9 of the Act.

13. In Peddi Sailaja and another Vs. State and

others this Court held that:

Under Section 5(5) of the Act, against every order of the recording authority either making an amendment or refusing to make such amendment, an appeal shall lie to the Revenue Divisional Officer or any other prescribed authority within a period of sixty days from the date of communication of the said order. The order passed in such appeal is final subject to the order that may be passed under Section 9 of the Act by the Collector exercising the revisional power. Rule 21 of the A.P. Rights in Land and Pattadar Pass Books Rules, 1989 (for short 'the Rules') also made a similar provision as Section 5(5) of the Act. Under sub-rule (2) thereof, the manner in which an appeal has to be filed is envisaged

besides prescribing sixty days as limitation for filing such appeal. Under sub-rule (3) thereof, the appellant shall pay the Court fee stamp of Rs. 5/-.

From the above-noted provisions, it is evident that respondent No. 3 is constituted as an appellate authority, who is conferred with the power of entertaining the appeals filed by the aggrieved parties by following the procedure prescribed under Rule 21 of the Rules. From the order passed by respondent No. 3, it is clear that respondent No. 5 has not filed any appeal. Instead of filing such an appeal, respondent No. 5 has approached respondent No. 4 who in turn submitted a report which was taken as ROR appeal by respondent No. 3. This procedure in my opinion is patently contrary to the procedure prescribed under the Act and the Rules.

14. In the above judgments, this Court specifically held

that Revenue Divisional Officer is not having power to

treat the application filed by the party as an appeal under

Section 5(5) of the Act in the absence of the filing of appeal

as required under Rule 21 of the Rules.

15. It is also very much relevant to place on record that

in J.Krishnamachari Vs. State Government of Andhra

Pradesh 6 this Court while considering the various

judgments specifically held that Revenue Divisional Officer

has no power to treat the application as appeal and pass

order and further held that respondent No.2 therein has

6 2014 1 ALD 406

committed a serious procedural illegality and

jurisdictional error in treating the report of respondent

No.3 as appeal.

16. It is also relevant to place on record that Division

bench of this Court in Ratnamma vs. RDO,

Dharmavaram, Ananthapur District & Others 7 held

that once pattadar pass books and title deeds were issued

under section 6-A of the Act, Revenue Divisional Officer is

not having power/authority to entertain appeal under

Section 5(5) of the Act and the parties has to approach

Common law remedy.

17. It is already stated "supra" that in the case on hand,

petitioner No.1 submitted application dated 19.12.2009

for conducting enquiry and for cancellation of pattadar

pass books and title deeds issued in respect of subject

property in favour of unofficial respondents and to issue

title deed in his favour. Respondent No.1 entertained and

adjudicated the said application as appeal and passed the

impugned order dated 21.12.2010 exercising the powers

under Section 5(5) of the Act. Hence the order dated

2015 6 ALD 609

21.12.2010, passed by the respondent No.1 is contrary to

the law and respondent No.2 has rightly passed the

impugned order dated 17.03.2012 and set aside the order

passed by respondent No.1.

18. Viewed from any angle, there is no illegality,

irregularity or error in the impugned order passed by

respondent No.2 dated 17.03.2012, to invoke jurisdiction

of this Court under Article 226 of Constitution of India,

and there are no merits in the writ petition and the same

is liable to be dismissed.

19. In the result, the writ petition is dismissed without

costs. Point Nos.(i) to (iii) are answered accordingly.

However, it is left open to the petitioners to take

appropriate steps to ascertain their claim over the subject

property by approaching a competent Civil Court, if so

they are aggrieved.

As a sequel, miscellaneous petitions, pending if any,

shall stand closed.

_____________________________ JUSTICE J. SREENIVAS RAO 13th February, 2024 Note:L.R.Copy to be marked: 'Yes' PSW