Allowed

K. Balaganesh v. The State of Andhra Pradesh, Rep by its Principal Secretary

Andhra Pradesh HC23 Mar 2022WP/42510/2016

Case brief

AI extract

What is this about?

Writ petitioner challenged the legality of a notice issued by the Joint Collector initiating suo moto revision proceedings under Section 9 of the AP Rights in Land Act. The Court held that initiating revision before issuing a show cause notice, contrary to Apex Court precedent, was illegal and arbitrary, setting aside the impugned notice.

What did the court decide?

The impugned notice Rc.No.2203/2021-D5 dated 09.07.2021 is declared illegal, arbitrary, and set-aside. The Writ Petition is allowed.

K. Balaganesh Vs The State of Andhra Pradesh, Rep by… — Land Acquisition | Andhra Pradesh HC (2022)

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THE HON’BLE SRI JUSTICE M.SATYANARAYANA MURTHY

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WRIT PETITION No.42510 of 2016

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ORDER:

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This writ petition is filed under Article 226 of the

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Constitution of India seeking the following relief:-

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“to issue a writ, order or direction more particularly one in the nature of writ of Mandamus to declare the action on the part of the 2^nd respondent in entertaining the representation made by the 5^th respondent by invoking Section 9 of the Act vide in Proceedings ROC D 4/4265/2016 dated 21.09.2016, that without directing the 5^th respondent to avail the statutory remedy which is available under Sec. 5(5) of the Act and rules made there under, amounts to erroneous, arbitrary and violative of Articles 14 and 21 of the Constitution of India besides being contrary to the statutory scheme and without jurisdiction and consequently set aside the same by allowing the writ petition in the interest of justice and to pass such order or orders”

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The petitioner’s father made several representations to the Tahsildar, Chittoor for issuance of D Form Patta. It appears that the Tahsildar after making thorough enquiry by deputing Revenue Inspector and Village Revenue Assistant to submit their report about the eligibility, has issued D-Form Patta vide DKT No.236-477 dated 20.11.1967 in the name of petitioner’s father for an extent of Ac.4.95 cents in Sy.No.188/2 situated at Kotagaram Village of the Chittoor taluq.

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The petitioner’s father passed away in the year 1978 by that time the petitioner was aged about 3 years and his brother Sriddhar was aged about 1 ½ years.

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They succeeded the said property. After the death of his father, his mother is cultivating the same by engaging labour. The petitioner’s mother K.Shakunthalamma also passed away in the year 1995.

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The Mandal Revenue Officer, after perusal of the records and after satisfying has issued pass book and title deed in the name of the petitioner.

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When the Husband and son of the unofficial 5^th respondent making attempts to trespass into petitioner’s land, the petitioner’s family filed OS.No.481 of 1988 on the file of Principal District Munsiff Chittoor for permanent injunction. The said suit was decreed by granting permanent injunction restraining the defendants, their men from interfering with the petitioner’s peaceful possession and enjoyment of the plaint schedule property. At the petitioner’s instance the then Tahsildar has issued enjoyment certificate vide C.No.14 of 2009 dated 16.09.2009.

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The 5^th respondent herein appears to have approached the 2^nd respondent and submitted a representation in the grievance cell, alleging that land in Sy.No.188/2 for an extent of Ac.4.95 cents is in their occupation and they are paying cist to the said land and sought for issuance of pattadar pass book in her name. 8. The 2^nd respondent appears to have entertained the said representation and assigned ROC D4/4265/2016 dated 21.09.2016 and issued notice to petitioner to submit his objections. The petitioner entered his appearance and submitted his written arguments.

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The 2^nd respondent without satisfying with the report submitted by the 4^th respondent, by showing personal interest, directed the revenue inspector Mr. K.Babu to further enquire into the matter, which is unwarranted. For the reasons best known, the 2^nd respondent entertained the representation made by the 5^th respondent that too which is not in accordance with the format and procedure contemplated under the A P Rights in Land and Pattadar Pass Book Act 1971. The 2^nd respondent cannot entertain the complaint after lapse of 10 years by invoking the

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revision powers for rectification of entries in the occupation clolumn.

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It is made clear by various expressions vide Judgment Reported in 2013 (6) ALD 678 wherein this Court held that for cancellation of pattadar pass book and title deeds issued in favour of the petitioner in 2001, without filing appeal under Sec.5(5) before RDO – no explanation whatever offered by the respondent for not filing the appeal till 2009 and straightaway approaching the District Collector by way of revision when a remedy of appeal under Sec. 5(5) is available to him – procedure- held, contrary to statutory scheme – when statutes provides a particular procedure, party is expected to follow the said procedure strictly and scrupulously.

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The issuance of notice in the revision, by entertaining the representation made by the 2^nd respondent in ROC No.D4/4265/2016 is absolutely without jurisdiction and is liable to be set aside exercising power of review. The very entertainment of the application and processing it by the 2^nd respondent is wholly misconceived and not maintainable in terms of the provisions contemplated under the Act.

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Respondent No.4 filed counter denying the material allegations inter alia contending that the 5^th respondent approached the Joint Collector, Chittoor and submitted a petition alleging that writ petitioner is a wealthy pattadar and more over Government servant and obtained pattadar pass books and title deeds for the suit land by fraudulent methods and since she happens to be downtrodden community women the said Government land could be considered in her favour. Since a

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prima facie case seems to be persisting in the matter, the Joint Collector Chittoor has decided to conduct enquiry in the matter and therefore Suo Moto Revision was taken up in terms of provisions of the Andhra Pradesh Rights in Land and Pattadar Pass Books Act 1971 followed by issuance of notices to all the concerned. The petitioner instead of placing the full picture of the facts connected with the land in Sy.No.188/2 extent 4.95 acres before the Joint Collector, rushed to this Court.

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During hearing T.C.Krishnan, while reiterating the averments in the Writ Affidavit specifically contended that cancellation of patta after more than 10 years exercising power under Section 9 is impermissible under law. 14. The show cause notice dated 01.01.2016 was issued to the petitioner calling upon the petitioner to appear before the concerned authority at 11:00 A.M to pass appropriate orders. This patta was issued in the year, 1967 and a copy of the D-Form patta was placed on record besides the entries in the revenue records. 15. Therefore, there is abnormal delay in initiating proceedings under Section 9 of the Act. But according to the respondent the proceedings can be initiated at any stage exercising the power of revision under Section 9 by the Joint Collector, the same is considered by this Court in W.P.No.16458 of 2021 after referring to various judgments of Apex Court including M/s. D.N.Roy V. State of Bihar¹ , Joint Collector, Ranga Reddy District V. D. Narsingh Rao and another² , S. Surendhar Reddy V. State of Telangana, rep. by its Principal Secretary, Revenue

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1 1971 AIR (SC) 1045

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2 2015 AIR (SC) 1021

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Department, Hyderabad³ , A.V. Papayya Sastry V. Government of Andhra Pradesh⁴ Indian Bank V. Satyam Fibres (India) Pvt. Ltd⁵ , Lazarus Estates and Smith V. East Elloe Rural District Council⁶ , United India Insurance Co. Ltd. V. Rajendra Singh & Others⁷ concluded that the said power has been exercised within reasonable time. Therefore applying the said principle to the present facts and circumstances of the case, notice to show cause as to why suo motu proceedings should not be initiated is required to be issued before exercise of such power under Section 9 of ROR Act by the second respondent.

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In the instant case, no such show cause notice was issued before initiating revision proceedings by exercising suo motu power of revision under Section 9 of ROR Act, but served notice after initiating revision proceedings, exercising power under Section 9 of ROR Act. Therefore, the impugned notice issued to this petitioner calling upon him to appear before the second respondent on 01.10.2016 at 11:00 A.M is contrary to the principle laid down in M/s. D.N. Roy v. State of Bihar (referred supra). Hence, the notice impugned in this writ petition is illegal, arbitrary and contrary to the principle laid down by the Full Bench of the Apex Court in M/s. D.N. Roy v. State of Bihar (referred supra), though it is in consonance with Section 9 of ROR Act. Hence, the notice impugned in this writ petition i.e. Rc.No.2203/2021-D5 dated 09.07.2021 is declared as illegal, arbitrary and contrary to the principle laid down by the Full Bench of the Apex Court in M/s. D.N. Roy v. State of Bihar (referred supra) and set-aside the

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3 2021 (5) ALT 49 (TS)

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4 (2007) 4 SCC 211

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5 (1996) 5 SCC 550

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6 (1956) 1 All ER 855

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7 (2000) 3 SCC 581

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same, while permitting the second respondent to follow the directions issued in M/s. D.N. Roy v. State of Bihar (referred supra), issue show cause notice prior to initiation of proceedings, exercising power of suo moto revision under Section 9 of ROR Act and take appropriate action.

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