Allowed

B.Thimmaiah, v. The Joint Collector

Andhra Pradesh HC16 Nov 2022WP/2784/2015

Case brief

AI extract

What is this about?

This writ petition challenged an order by the Revenue Divisional Officer cancelling a pattadar passbook issued to the petitioner. The High Court held that the RDO lacked jurisdiction to treat a direct representation as an appeal under Section 5(5) without a prior order from the Mandal Revenue Officer, setting aside the impugned order.

What did the court decide?

The order passed by the 2nd respondent and the consequential order of the 1st respondent are set aside.

B.Thimmaiah, Vs The Joint Collector — Landlord and Tenant | Andhra Pradesh HC (2022)

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HONOURABLE SMT. JUSTICE V.SUJATHA

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WRIT PETITION No.2784 of 2015

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ORDER :

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The present Writ Petition came to be filed under Article

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226 of the Constitution of India seeking the following relief:-

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“ to issue a Writ of Certiorari or any other appropriate Writ, Order or Orders, Direction or Directions to quash the order of the 1^st respondent in Rc.No.D5/2363/2013 dated 12.1.2015 and pass such other orders” .

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The facts of the case, in brief, are that the petitioner purchased an extent of Ac.0-49 cents situated in Sy.No.70/T of Johrapuram Village from the father of the 5^th respondent on 30.04.1992 under a registered sale deed and the petitioner

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is running an educational institution in the adjacent land and using the subject land situated in Sy.No.70/T as a garden attached to the educational institution. With regard to the subject property, the petitioner was granted pattadar passbook and title deed under the provisions of ROR Act after conducting due enquiry. While so, the 5^th respondent filed an appeal under Section 5(5) of the ROR Act before the 2^nd respondent contending that his father has no right to sell the property, as such, requested to cancel the pattadar

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passbooks and title deeds issued in favour of the petitioner. On the said appeal, the 2^nd respondent called for remarks from the 3^rd respondent and in his report, he stated that the petitioner is in possession of Ac.0-49 cents of land. The contention of the 5^th respondent before the 2^nd respondent is that by virtue of the judgments in O.S.Nos.128 of 1996 and 49 of 1996, dated 08.11.1999 on the file of learned Additional Senior Civil Judge, Kurnool, the 5^th respondent viz., Hanumantha Rao has no right to sell the property.

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(a) It is also the contention of the petitioner that the 5^th respondent was aware of the transaction in the year 1992 itself and he cannot agitate the same nearly after twenty years. Without considering the arguments made by him, the 2^nd respondent has drawn erroneous conclusion and held that the said sale made by Hamunantha Rao in favour of the petitioner was without title and hence the petitioner do not get any right over the subject land. Accordingly, he has directed for cancellation of the pattadar passbooks issued in favour of the petitioner. Against the same, the petitioner filed a revision under Section 9 of the Act before the 1^st respondent. In the said revision, the 1^st respondent called for

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remarks of the Tahsildar and in return, the Tahsildar submitted report stating that the petitioner is in possession of Ac.0-32 cents of land as there is a road in the remaining Ac.0-17 cents of land. Even in the revision also, the 1^st respondent also made a title enquiry and held that Hanumantha Rao has no competence to sell the land in favour of the petitioner. The findings given by the 1^st respondent are beyond jurisdiction and more over when the petitioner is in possession of the subject land under a registered sale deed since 1992 and using it as part of the land on which the educational institution is located, now the 5^th respondent cannot be permitted to file appeal nearly after 20 years before the 2^nd respondent seeking title declaration. Aggrieved by the order passed by the 1^st respondent in the revision, the present writ petition is filed.

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Heard learned counsel for the petitioner and learned Government Pleader for Revenue.

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The 5^th respondent filed counter-affidavit and denied the averments made by the petitioner in the writ affidavit and stated that the present writ petition is filed only after

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exhausting all the legal remedies available to the petitioner and it is only to harass the 5^th respondent. Therefore, requested to dismiss the writ petition on the ground of lack of merits in the writ petition.

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The main grievance of the petitioner is that the R.D.O. has passed the impugned orders even without providing opportunity of hearing the petitioner and without following due process of law as contemplated under the ROR Act.

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At the time of hearing, the learned counsel for the petitioner reiterated the contentions of the Writ Petition and further contended that the impugned order is not maintainable and also draws the attention of this Court the relevant provisions of the Act, which reads as under:

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Section 3(3) of A.P.Rights in Land and Pattadar Pass books of 1971, any person effected by an entry in record of rights, may apply for rectification before the concerned MRO., within a period of one year from the date of the notification issued under Sub-Section 2 of Section 3.

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Section 4 of the A.P.Rights in Land and Pattadar Pass books of 1971, if any person acquires any right over any land either by succession, survivorship etc., it shall be intimated to the MRO., within 90 days from the date of such acquisition.

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Section 5 of the said Act, on receipt of such intimation of the fact of acquisition of any right referred in Section 4,

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the concerned MRO., after enquiry may amend and update the records of the rights.

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Then only against an order of the MRO., either making an amendment in the record of rights or refusing to make such an amendment, an appeal shall lie to the RDO., within a period of 60 days under Section 5(5) of the said Act.

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Rules 15 to 17 of the A.P.Rights in Land and Pattadar Pass Books rules, 1989 deals with rectification of entries in record of rights. Rule 21 provides an appeal to be preferred against an order of MRO., regarding amendment in record of rights.

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Further, the 2^nd respondent being R.D.O. cannot pass orders on an appeal under the provisions of A.P.Rights in Land and Pattadar Pass books of 1971, unless an order for amendment/rectification is passed by the Tahsildar. The 5^th respondent’s appeal seeking cancellation of pattadar pass book and title deed issued in favour of the petitioner, is not maintainable in law, in as much as the entries in the revenue records have not been challenged. The act of 2^nd respondent in taking up the appeal, is illegal, arbitrary and relied upon the decision of the Division Bench of the High Court of Andhra Pradesh at Hyderabad reported, in “Ratnamma Vs. RDO., Dharmavaram”¹ , wherein it was observed that:

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1 .2015(1) ALT 361

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‘The Revenue Divisional Officer, has no authority to treat the representation/complaint as an appeal in the absence of any order passed by the Tahsildar, by exercising power under Section 5(5) of the Act read with Rules, 1989’

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On the other hand, the learned Assistant Government Pleader for Revenue, supported the Impugned Order

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In view of the submission of both side counsel, the only question is whether 2^nd respondent is competent to treat the appeal submitted by the 5^th respondent , which is having no statutory basis, as an appeal in the absence of any order passed by the Tahsildar?

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Section 5(5) of the Act deals with appeal, which is as follows:

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‘(5) Against every order of the (Mandal Revenue Officer) either making an amendment in the record of rights or refusing to make such an amendment(an appeal shall lie to the Revenue Divisional Officer or such authority as may be prescribed) within a period of sixty days from the date of communication of the said order and the decision of the appellate authority thereon shall subject to the provisions of Section 9, be final’

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The Revenue Divisional Officer is entitled to exercise appeal jurisdiction only against the order passed by the Mandal Revenue Officer either making an amendment in the Record of Rights or refusing to make such an amendment within a period of sixty (60) days from the date of communication of the said order.

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9. In the present case, the 5^th respondent instead of challenging issuance of pattadar pass book and title deed in favour of the petitioner, has requested the 2^nd respondent to cancel the pattadar passbook and title deed issued in favour of the petitioner, by making appeal to the 2^nd respondent that too after nearly 20 years . Further, the 2^nd respondent in its proceedings held that the pattadar passbook and title deed issued by the Tahsildar in favour of the petitioner deserves no consideration and are liable for cancellation, thereby directed the Tahsildar to delete the entry from the pattadar passbook and title deed of the petitioner and further directed the Tahsildar to incorporate the name of the 5^th respondent in the relevant revenue records and 2^nd respondent passed proceedings without issuing any notice or opportunity of hearing to him, though the petitioner produced a copy of common Judgment in O.S.Nos.128/1996 and 46 of 1996m dated 08.11.1999 to prove that the property was inherited to him from his mother side.

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Therefore, by applying the principle laid down in Ratnamma Vs. RDO., Dharmavaram (referred supra) , the

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order passed by the 2^nd respondent is liable to be set aside, since the R.D.O. is entitled to exercise appeal jurisdiction only against the order passed by the Mandal Revenue Officer either for making an amendment in the Record of Rights or refusing to make such an amendment within a period of sixty (60) days from the date of communication of the said order. Accordingly, the consequential orders passed by the 1^st respondent / appellate authority is not valid and without jurisdiction.

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In the result, the Writ Petition is allowed by setting aside the order passed by the 2^nd respondent vide D.Dis(C).1156/2012, dated 14.08.2012 and consequential order passed by the 1^st respondent in Rc.D5/2363/2013, dated 12.01.2015, leaving it open to the 5^th respondent to approach the competent Civil Court, if at all he has any grievance against the petitioner. There shall be no order as to costs.

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As a sequel, miscellaneous applications, pending, if

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any, shall also stand closed.

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_______________________ JUSTICE V.SUJATHA

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Date : 16.11.2022 ARR

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HONOURABLE SMT. JUSTICE V.SUJATHA

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WRIT PETITION No. 2784 of 2015

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Date : 16.11.2022

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ARR

B.Thimmaiah, v. The Joint Collector

Case brief

What is this about?

What did the court decide?

B.Thimmaiah, v. The Joint Collector

Case brief

What is this about?

What did the court decide?

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