Allowed

Smt B.Srinidhi v. The State of Andhra Pradesh

Andhra Pradesh HC13 Aug 2021WP/3579/2021

Case brief

AI extract

What is this about?

The High Court held that the Mandal Revenue Officer failed in natural justice by not issuing a statutory written notice in Form VIII to the petitioner, the name on the record of rights, despite publication of a general notice while effecting mutation in favor of a transferee.

What did the court decide?

The Recording Authority directed to make necessary enquiry by issuing notice in Form VIII and pass appropriate orders within two months.

Smt B.Srinidhi Vs The State of Andhra Pradesh — Property and Title | Andhra Pradesh HC (2021)

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THE HON’BLE SRI JUSTICE M.SATYANARAYANA MURTHY

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WRIT PETITION NO.3579 OF 2011

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ORDER :

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This petition is filed under Article 226 of the Constitution of India seeking the following relief:-

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“....to issue a Writ of Mandamus, declaring the action of Respondent No.3 in incorporating the name of Respondent No.4 in revenue records in an extent of Ac.11-01 cents in different Sy.Nos.514 to 520 of Koduru Village, Varadayapalem Mandal, Chittoor District, as illegal, arbitrary, violative of Section 5 of A.P. Rights in Land and Pattadar Pass Books Act, 1971, violative of Articles 14 and 21 of Constitution of India and consequently direct Respondent No.3 to issue notice to the petitioner while incorporating the name of Respondent No.4 in revenue records for the land in an extent of Ac.11-01 cents in different Sy.Nos.514 to 520 of Koduru Village, Varadayapalem Mandal, Chittoor District and pass such other order..”

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It is the case of petitioner that she is the owner of land in an extent of Ac.11-01 cents in Sy.Nos.514 to 520 of Koduru Village, Varadayapalem Mandal, Chittoor District, she executed a registered sale deed in favour of respondent No.4, vide document bearing No.614/2018 on 02.05.2018 with an undertaking to re-convey the same on investing funds to discharge the sundry debts of petitioner and for her necessities. But, respondent No.4 failed to fullfil said undertaking between them and not paid the consideration as agreed.

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The petitioner after issuing legal notice, filed a civil suit against respondent No.4 herein vide O.S.No.52 of 2020 on the file of III Additional District Judge, Tirupathi, for cancellation of registered sale deed. After receipt of notice in the suit, respondent No.4, after

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lapse of 2 years of the registration of document, approached respondent No.3, for mutating her name in revenue records to defraud the petitioner to grab the subject property by violating the terms of undertaking between them. The 3^rd respondent in a hurried manner, without issuing notice to the petitioner, mutated the name of respondent No.4 in revenue records. Hence, the procedure followed by respondent No.3 is contrary to the procedure laid down under Records of Rights in Land and Pattadar Pass Books Act, 1971 and rules framed thereunder. Hence, the petitioner sought to set aside the order passed by the 3^rd respondent.

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Respondent No.3 filed counter affidavit while admitting mutation of the name of respondent No.4 in revenue records and he specifically contended that after conducting due enquiry, Form-VIII notice was generated through web land portal and it was published in the locality by adopting substitute method, in accordance with law, since the writ petitioner is non-resident and she is residing at Chennai City of Tamil Nadu State. Hence, the question of nonissuance of notice to the writ petitioner under the A.P. Rights in Land and Pattadar Pass Book Act, 1971 does not arise and denied the alleged violation of procedure. Thus, allegedly the 3^rd respondent complied with the procedure as mandated under the Act and rules framed there under.

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Respondent No.4 filed separate counter affidavit while admitting execution of the document, filing of suit, pendency of the same before the competent Court and specifically contended that after purchase of the property under registered sale deed, she made an application 04.01.2021 before the 3^rd respondent for mutation of her name in the revenue records and to issue Pattadar pass book and

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title deed in her favour. Said application was processed by the 3^rd respondent and after due enquiry, mutation was effected in her favour on 05.02.2021 and the said action of 3^rd respondent is valid and binding on the petitioner. The other contentions i.e., the suit in O.S.No.52 of 2020 on the file of III Additional District Judge, Tirupathi etc., are not relevant and thus the petitioner asserted that after due compliance of the procedure prescribed under the Act and rules framed there under, respondent No.3 mutated the name of respondent No.4 in revenue records.

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Heard both sides counsel.

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Learned Assistant Government Pleader for Revenue relied upon the judgment of Apex Court in “ Chinnam Pandurangam v. Mandal RevenueOfficer, Serilingampally Mandal and others¹ ” since the name of 4^th respondent was already mutated in the revenue records long back, based on necessary enquiry.

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Undisputedly, the 4^th respondent made an application for mutation of her name in revenue records, a representation was also submitted by him to the 3^rd respondent for taking appropriate action on the on-line application through Mee Seva for mutation of her name in the concerned revenue records for the agricultural land in an extent of Ac.2.28 cents in Sy.No.147/3 of Adaram Village Accounts, KVB Puram Mandal, Chittoor District. However, the 4^th respondent’s name was already mutated. But, for removal or deletion of the name of 4^th respondent and to mutate the name of petitioner in revenue records an enquiry is required to be conducted.

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1 AIR 2008 AP 15 (F.B)

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The first and foremost contention of the petitioner is that a notice is to be issued in Form VIII in terms of Rule 19(1) of the Rules. Section 5 of the Act deals with the procedure to be followed for amendment and updating of record of rights. Sub-section (1) of Section 5 mandates publication of notice as per rules. According to sub-section (2) of Section 5 of the Act, where the Mandal Revenue Officer has reason to believe that on acquisition of any right of a description to which Section 4 of the Act applies has taken place and of which an intimation has not been made to him under that Section and where he considers that an amendment has to be effected in the record of rights, the Mandal Revenue Officer shall carry out the said amendment in the record of rights. But, subsection (2) of Section 5 of the Act is silent as to the rules, but conferred power on the Mandal Revenue Officer to amend or effect such modification when no intimation is issued under Section 4 of the Act, is given to the Mandal Revenue Officer.

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Section 4 of the Act obligates any person acquiring by succession, survivorship, inheritance, partition, Government pata, decree of a Court or otherwise any right as owner, pattadar, mortgagee, occupant or tenant of a land and any person acquiring any right as occupant of a land by any other method shall intimate in writing his acquisition of such right, to the Mandal Revenue Officer within ninety days from the date of such acquisition, and the said Mandal Revenue Officer shall give or send a written acknowledgment of the receipt of such intimation to the person making it.

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Thus, in case the person, who acquired right by any of the modes specified in sub-section (1) of Section 4 of the Act, the Mandal Revenue Officer can exercise such power as per subsection (2) of Section 5 of the Act. Sub-section (2) of Section 5 of the Act is silent as to the rules as to how such amendment is to be effected.

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It is an undisputed fact that a notice in Form VIII is published, which consists of two parts and the proforma of notice is extracted hereunder.

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Whereas the undersigned has received an intimation of the fact of acquisition of a right as described in the schedule hereunder and it appears that an amendment has to be made in

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the Record of Rights in consequence thereof ...................

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Whereas the Recording Authority has reason to believe that an acquisition of a right has taken place as described in the schedule hereunder and it appears that amendment has to be made in the Record of Rights in consequence thereof.

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Now, therefore, under sub-section (3) of Section 5 of Andhra Pradesh [Rights in Land] and Pattadar Pass Book Act, 1971.

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All persons interested or affected are hereby required to show cause on or before .................. (date to be specified not being earlier than 30 days from the service/publication of the notice) as to why the amendment should not be carried out.

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You.....................................................................

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All persons interested or affected are hereby required to appear on or before the undersigned on .................... (date not earlier than forty five days from the service/publication of the notice) as ....................... (Place) .......................... time in

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connection with the enquiry proposed to be held in respect of the above matter.

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Recording Authority

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SCHEDULE

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S.No. etc., of the entry relating Brief purport of proposed to which is sought to be amended amendment

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The notice in Form VIII consists of two parts. First part consists of recording of reason to believe that applicant has acquired right in the immovable property. According to last paragraph, the persons interested are entitled to submit their objections. Therefore, the second part of the impugned notice is only intimation to the persons interested to express his prima facie opinion as to acquisition of right in the immovable property and in the last paragraph, the Mandal Revenue Officer shall call for objections from the persons interested.

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Proviso to Section 5(1) and Section 5(3) of Act No.26 of 1971 represent statutory embodiment of the most important facet of the rules of natural justice i.e. audi alterem partem . These provisions contemplate issue of notice to the persons likely to be affected by the action/decision of the Mandal Revenue Officer to carry out or not to carry out amendment in the Record of Rights. Proviso to Section 5(1) lays down that if the Mandal Revenue Officer decides not to make an amendment in the Record of Rights, then he shall

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pass appropriate order only after giving an opportunity of making representation to the person, who gives intimation regarding acquisition of any right referred to in Section 4.

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Section 5(3) provides for issue of written notice to all persons whose names are entered in the Record of Rights and who are interested in or affected by the amendment. Similarly, a notice is required to be issued to any other person whom the recording authority has reason to believe to be interested in or affected by the amendment. A copy of the amendment and the notice is also required to be published in the prescribed manner. The publication of notice in the prescribed manner is in addition to the notice, which is required to be given in writing to all persons whose names are entered in the Record of Rights and who are interested in or affected by the amendment and also to any other person whom the recording authority has reason to believe to be interested in or affected by the amendment. To put it differently, the publication of a copy of the amendment and the notice is only supplemental and not the alternative mode of giving notice to the persons whose names are entered in the Record of Rights and who are interested in or affected by the amendment and to any other person to whom the recording authority has reason to believe to be interested in or affected by the amendment. If the Legislature thought that publication of a general notice in Form-VIII will be sufficient compliance of the rules of natural justice, then there was no occasion to incorporate a specific requirement of issuing written notice to the persons whose names are entered in the Record of Rights and who are interested in or affected by the

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amendment. The requirement of issuing written notice to such persons clearly negates the argument that publication of notice in Form-VII is sufficient. Thus the language of Form VIII in which notice is required to be published cannot control the interpretation of substantive provision contained in Section 5(3), which casts a duty on recording authority to issue notice in writing to all persons whose names are entered in the Record of Rights and who are interested in or affected by the proposed amendment [vide Chinnam Pandurangam ’s case (referred supra)].

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In view of the principle laid down in the above judgment, certain procedure prescribed under Section 5 of the Act and proviso thereto is mandatory.

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When the respondents submitted intimation in compliance of Section 4 of the Act, the procedure prescribed in Section 5 of the Act read with Rule 19 of the Rules is to be followed. Issue of notice in Form VIII vide Rule 19 (1) of the Rules and its publication vide Rule 19 (2) of the Rules framed is only in compliance of mandatory procedure prescribed under the Act. The respondents though not required deciding the title of the immovable property still they are bound to follow the procedure. When a person files an application for correction of passbook, he cannot be asked to file a civil suit on the ground that some third party has raised the question of legality of title. The authorities cannot escape from their responsibility to make an entry or amend the entries in the revenue records according to the procedure; though they cannot decide the title and possession, but they should exercise their

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power subject to any decree or order passed by Civil Court in view of the law laid down by the Division Bench of the High Court of Andhra Pradesh at Hyderabad in “ R.S.Murthy v. Joint Collector,

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East Godavari District, Kakinada² ”.

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In view of the law laid down by the Full Bench judgment of this Court in Chinnam Pandurangam ’s case (referred (1) supra) the 3^rd respondent is under obligation to make necessary enquiry by issuing notice in Form VIII to the petitioner, so also to the 4^th respondent only after conducting necessary enquiry. Further, the 3^rd respondent can take appropriate action strictly adhering to Section 5 and Rule 19(1) by issuing notice in Form VIII so also publication of notice in Form VIII in compliance of statutory obligation and pass appropriate orders, as expeditiously as possible, in any event, not later than two (02) months from the date of receipt of a copy of this order.

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Consequently miscellaneous applications pending, if any in the Writ Petition, shall also stand closed.

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JUSTICE M. SATYANARAYANA MURTHY

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Date: 13.08.2021

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2 2001 (4) ALT 337 (D.B)

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THE HON’BLE SRI JUSTICE M.SATYANARAYANA MURTHY

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