Telangana High Court
Liyaqatullah Khan vs The State Of Telangana on 29 February, 2024
HIGH COURT FOR THE STATE OF TELANGANA
WRIT PETITION No.31336 OF 2017
Liyaqatullah Khan,
S/o Late Inayathullah Khan
Aged 59 years Occ: Agriculture
R/o H.No.5-120, Kankurthi Village
Mahaboobnagar
....Petitioner
VERSUS
1) State of Telangana
Through its Secretary for Revenue
Department, Secretariate Hyderabad.
... Respondents
DATE OF JUDGMENT PRONOUNCED: 29.02.2024
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.31336 OF 2017
% Dated 29.02.2023
# Liyaqatullah Khan,
S/o Late Inayathullah Khan
Aged 59 years Occ: Agriculture
R/o H.No.5-120, Kankurthi Village
Mahaboobnagar.
....Petitioner
VERSUS
$ State of Telangana
Through its Secretary for Revenue
Department, Secretariate Hyderabad.
... Respondents
! Counsel for Petitioner : C.Ramachandra Raju
^ Counsel for Respondent Nos.1 to 3 : G.P for Revenue,
Sri Mirza Nisar
Ahmed Baig
< GIST:
> HEAD NOTE:
? CITATIONS:
1. 2005 (6) ALT 560
2. 2009 (9) SCC 489
3. 2011(4) ALD 14
3
HON'BLE SRI JUSTICE J. SREENIVAS RAO
WRIT PETITION No.31336 of 2017
ORDER:
This writ petition is filed for seeking following relief:
"...to issue an appropriate writ, order or direction
more particularly in the nature of Writ of
Mandamus declaring the order in Case
No.C/2943/2015, dated 11.08.2017, passed by
respondent No.4 at the behest of respondent No.3
pursuant to his letter No.A/2943/2017,
dt.03.08.2017 as to mutation of name of the
respondent No.5 as pattedar and possessor in land
of the respondent in Survey No.407, extent Acs.4.24
guntas, situated at Village Kankurti, Revenue
Mandal Damargidda, District Mahabubnagar,
illegal, arbitrary, unconstitutional and violative of
the principles natural justice and the same be set
aside in the interest of justice and further orders in
the circumstances of the case may be passed ..."
2. Heard Sri C.Ramachandra Raju, learned counsel for
the petitioner and learned Assistant Government Pleader
for Revenue appearing on behalf of respondent No.1 to 4
and Sri Mirza Nisar Ahmed Baig for respondent No.5.
3. Learned counsel for the petitioner submits that the
petitioner is the owner and possessor of the land to an
extent of Acs.4.24 guntas in Survey No.407 situated at
Kankurti Village, Damargidda Mandal, Mahboobnagar
District and his name was mutated in the Revenue
Records and pattadar pass books and title deeds were
issued in his favour. He further submit that originally
Marepaly Hanmappa was protected tenant and his legal
heirs surrendered protected tenancy rights and delivered
possession of the subject property to the petitioner on
28.07.1995. Questioning the revenue entries made in
favour of the petitioner, respondent No.5, who is non-
other than his elder brother, filed ROR Appeal vide case
No.A/490/2006, before respondent No.3.
3.1. He further submits that respondent No.5 also filed a
suit O.S.No.41 of 2006 on the file of Junior Civil Judge,
Kodangal, seeking to declare him as absolute owner of the
subject land and recovery of possession and also
recording his name as pattadar in ROR records by
deleting the name of the petitioner herein. The said suit
was decreed in part by its judgment and decree dated
14.07.2017, to the extent of declaration and recovery of
possession, in so far as the other relief is concerned, the
suit was dismissed. Aggrieved by the same, petitioner
filed appeal A.S.No.7 of 2017 on the file of Senior Civil
Judge, Narayanpet, along with the said appeal he filed
application, I.A.No.237 of 2017 to grant stay of execution
of the decree dated 14.07.2017 passed by the Trial Court
and the said application was dismissed by its order dated
30.08.2017. Questioning the same, petitioner filed
C.R.P.No.4462 of 2017 and this Court initially granted
stay on 01.09.2017 till 15.09.2017 and thereafter the
same was allowed by its order dated 09.11.2017.
Subsequently, lower appellate Court allowed the appeal
A.S.No.7 of 2017 by its judgment and Decree dated
15.07.2021. Aggrieved by the same, respondent No.5 filed
Second Appeal No.7 of 2022 before this Court wherein this
Court was pleased to order Notice Before Admission and
both the parties are directed to maintain Status-Quo.
3.2. While things stood thus, respondent No.3 issued
directions to respondent No.4 through letter dated
03.08.2017 to implement judgment and decree passed by
the Junior Civil Judge, Kodangal in O.S.No.41 of 2006,
dated 14.07.2017 to carryout the corrections in revenue
records. Basing on the said instructions, respondent No.4
issued the impugned proceedings No.C/2943/2015, dated
11.08.2017 for mutation of name of respondent No.5 in
the revenue records in respect of subject property in place
of the petitioner, even without issuing any notice and
opportunity to the petitioner.
3.3. Learned counsel for the petitioner vehemently
contended that respondent No.3 is not having any
authority or jurisdiction to issue any direction for
implementation of the judgment and decree passed by
Junior Civil Judge, dated 14.07.2017, even without
issuing any notice and opportunity to the petitioner, the
said judgment and decree of the trial Court was set aside
by the lower Appellate Court in A.S.No.7 of 2017.
Aggrieved by the same, respondent No.5 filed S.A.No.7 of
2022 and the same is pending before this Court.
3.4. He further contended that the Junior Civil Judge's
Court, Kodangal, rejected the claim made by the
respondent No.5 for recording his name in ROR records by
deleting the name of the petitioner and further the trial
Court while decreeing the said suit has granted sixty(60)
days time for handing over the vacant possession of the
suit schedule property in favour of respondent No.5,
failing which the respondent No.5 can execute the same
through process law and even before expiry of the above
said period, respondent No.3 issued the directions dated
03.08.2017, to respondent No.4 for carrying out the
corrections in revenue records and respondent No.4
without issuing any notice to the petitioners passed
impugned proceedings dated 11.08.2017. The impugned
order passed by respondent No.4 is gross violation of
principles of natural justice, contrary to the provisions of
Andhra Pradesh Rights In Land And Pattadar Pass Books
Act, 1971(Act, for brevity) and rules made thereunder.
4. Per contra, learned counsel appearing on behalf of
respondent No.5 contended that the petitioner is not
having any right, interest and title over the subject
property. Respondent No.5 had purchased the subject
property through registered sale deed No.1884 of 1982
dated 06.12.1982 from his father. Respondent No.4 has
rightly issued the impugned proceedings dated
11.08.2017, implementing the judgment and decree
passed by Competent Civil Court in O.S.No.41 of 2006,
dated 14.07.2017. He further submits that as on the date
of issuing of impugned proceedings, the judgment and
decree passed by trial Court was not stayed by the
Appellate Court. On the other hand, the stay application
I.A.No.237 of 2017 filed by the petitioner in A.S.No.7 of
2017 was dismissed. Aggrieved by the same, petitioner
filed C.R.P.No.4462 of 2017 and the same was allowed on
09.11.2017 and subsequently, Appellate Court allowed
the appeal A.S.No.7 of 2017 dated 15.07.2021. Aggrieved
by the same, respondent No.5 filed S.A.No.7 of 2022 and
the same is pending and in the said appeal Status Quo
order was granted.
4.1. He further contended that the petitioner without
availing the remedy of appeal or revision as available
under Section 5(5) of the Act or under Section 9 of ROR
Act, straight away approached this Court and filed the
present writ petition and the same is not maintainable
under law and liable to be dismissed.
4.2. In support of his contention he relied upon the
judgment of this Court in Entala Bhupal and another
Vs. District Revenue Officer, Warangal and others 1.
5. Having considered the rival submissions made by
respective parties and after perusal of the material
available on record, it reveals that the petitioner and
respondent No.5 are own brothers and both of them are
claiming the rights over the subject property. It is an
admitted fact that respondent No.5 filed comprehensive
2005 (6) ALT 560
suit O.S.No.41 of 2006 on the file of Junior Civil Judge,
Kodangal, seeking declaration declaring him as absolute
owner of the scheduled property and recovery of
possession from the petitioner and also for deletion of
name of the petitioner and inclusion of his name in the
Revenue Records and the same was decreed in part in
respect of declaration and recovery of possession and
dismissed the rest of the claim to the extent of recording
his name as pattadar in the ROR Records and deleting the
name of the petitioner by its judgment and decree dated
14.07.2017.
6. That the trial Court while passing the decree in
O.S.No.41 of 2006 has granted 60 days time to the
petitioner for handing over the vacant possession of the
suit schedule property to respondent No.5, failing which
the respondent No.5 is entitled to execute the said decree
through process of law. Even before expiry of the said
period of time, respondent No.5 had approached
respondent No.3 for seeking implementation of the above
said decree and judgment dated 14.07.2017 and for
incorporation of his name in Revenue records. Basing on
the said application, respondent No.3 without passing any
order in pending Appeal No.A/490/2006 and without
issuing any notice to the petitioner issued directions to
respondent No.4 to carry out the corrections in the
revenue records pursuant to the judgment and decree in
respect of subject property. In pursuance of the same,
respondent No.4 issued the impugned proceedings dated
11.08.2017, even without issuing notice and opportunity
to the petitioner.
7. As per the provisions of sub Section 3 of Section 5 of
the Act and A.P(T.S.) Rights in land and Pattadar Pass
Book Rules 1989, respondent No.4 ought to have issued
notices to the petitioner before passing the impugned
order dated 11.08.2017. Admittedly, as on the date of
passing of the above said impugned order, name of the
petitioner is continuing in the revenue records in respect
of subject property. Respondent No.4 without giving any
notice and opportunity to the petitioner passed the
impugned order behind his back solely basing on the
directions of respondent No.3 and the same is gross
violation of the principles of natural justice and contrary
to the provisions of ROR Act and Rules made thereunder.
8. It is relevant to place on record that in Allwyn
Housing Colony Welfare Association vs. Government
of Andhra Pradesh and others 2, the Hon'ble Apex Court
specifically held that no order adverse to a party should be
passed without hearing him. Hence, the impugned order
dated 11.08.2017, passed by the respondent No.4 is
contrary to law.
9. The judgment relied upon by the learned counsel for
the respondent No.5 in Entala Bhupal and another
supra this Court held that the revisional authority is not
having power to set aside that order in revision in respect
of the entries made in favour of the party therein on the
ground that the primary authority after due enquiry and
after following the procedure as per the provisions of RoR
Act and Rules made thereunder passed order. Hence, the
aggrieved party has to approach the Competent Civil
Court to establish his right under Section 8(2) of the Act.
The above said judgment is not applicable to the facts and
circumstances of the case on the ground that respondent
No.4 passed the impugned order dated 11.08.2017
without giving notice and opportunity to the petitioner and
2009 (9) SCC 489
without following the mandatory procedure prescribed
under the provisions of the Act as well as the Rules.
10. In so far as the other ground raised by the learned
counsel for respondent No.5 that the petitioner without
availing the remedy of appeal before concerned authority
under Section 5(5) of the Act filed this writ petition is also
no tenable on the ground that the respondent No.4 passed
the impugned order basing upon the directions issued by
respondent No.3 who is appellate authority and question
of filing appeal before the same authority does not arise.
Similarly, filing of revision under Section 9 of the Act is
also does not arise on the ground that respondent No.4
passed the impugned order dated 11.08.2017 without
giving any notice and opportunity to the petitioner and it
amounts to gross violation of principles of natural justice.
11. It is also relevant to place on record that in S.
Panduranga Reddy v. Government of Andhra Pradesh
and others 3, this Court while following the
Judgments of the Hon'ble Apex Court in Whirlpool
Corporation Vs. Registrar of Trade Marks, Mumbai
2011 (4) ALD 14
and Others 4 and Harbanslal Sahnia Vs. Indian Oil
Coporation Limited and others 5 held that alternative
remedy is not an absolute bar to maintainability of the
writ petitions, when action complained of is in violation of
fundamental rights, principles of natural justice or
without jurisdiction.
12. In view of the foregoing reasons, impugned order
passed by respondent No.4, dated 11.08.2017 is liable to
be set aside. Accordingly set aside.
13. It is needless to observe that any revenue entries are
made in the subject property the same is subject to
outcome of the result of Second Appeal No.7 of 2022
pending before this Court and the parties are entitled to
work out their remedies as per the provision of Section 7
of the Telangana Rights in land and Pattadar Pass Books
Act, 2020.
14. With the above directions, the writ petition is
disposed of accordingly. No costs.
(1998) 8 SCC 1
(2003) 2 SCC 107
As a sequel, miscellaneous petitions, pending if any,
shall stand closed.
_____________________________
JUSTICE J. SREENIVAS RAO
29th February, 2024
Note: L.R.Copy to be marked : 'Yes'
BO.
PSW
