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2002 DIGILAW 1312 (AP)

Government Of A. P. v. V. Tulsiram

2002-11-11

DUBAGUNTA SUBRAHMANYAM, S.R.NAYAK

body2002
S. R. NAYAK, J. ( 1 ) THE substantial question that arises in this appeal for our consideration and decision is whether the subject land could constitute jagir within the meaning of that term as defined in clause (f) of Section 2 of the Andhra pradesh (Telangana Area) (Abolition of jagirs) Regulation, 1358-Fasli, for short the regulation . According to the Government of Andhra Pradesh and its authorities who are the appellants and the impleaded respondent Nos. 7 to 104, the subject lands constitute a jagir within the meaning of that term and, therefore, it vested in the state Government whereas according to the contesting respondents who are the writ petitioners, the Regulation has no application to the subject lands by virtue of the provisions of Section 18 of the regulation. In other words, according to the contesting respondents, the subject lands are the patta lands of the vendors of the petitioners vendees. ( 2 ) ACCORDING to the writ petitioners, originally Sultanpalli village of Shamshabad mandal, Ranga Reddy District was a jagir village of one Sri Syed Shabuddin Hussain, syed Karar Hyder Hussain were the jagirdars and those jagirdars apart from jagir held private properties also which were subsequently given Sy. Nos. 122 to 126, 143 to 150, 152-A, 152-B, 153 and 154. After the merger of the jagir held by the jagirdars with the revenue administration of the State Government by virtue of the provisions of Section 5 of the Regulation, the private lands held by the jagirdars were shown as patta lands of the jagiidar in the Government revenue records. Out of the said patta lands, the lands comprised in sy. Nos. 152, 153 and 154 admeasuring 43 acres were held by protected tenants and they were granted occupancy certificates conferring rights of ownership under section 38e of the Andhra Pradesh (Telangana area) Tenancy and Agricultural Act, 1950, for short the Tenancy Act . ( 3 ) WHEN the matter stood thus, the aforementioned jagirdars sold their patta lands to the petitioners under various registered instruments and after the sales, they have been in actual possession and enjoyment of the subject lands. When the matter stood thus, the Government of Andhra pradesh, Revenue Department issued a memo No. 4111/asn. III (3)/87-21, dated 21. 6. 1993. It reads as follows: "government of Andhra Pradesh Revenue department memo No. 4111/asn. 111 (3)87-21 dated 21. 6. When the matter stood thus, the Government of Andhra pradesh, Revenue Department issued a memo No. 4111/asn. III (3)/87-21, dated 21. 6. 1993. It reads as follows: "government of Andhra Pradesh Revenue department memo No. 4111/asn. 111 (3)87-21 dated 21. 6. 1993 sub :land - RR District - Report of the house Committee to enquire into the transfer of Jagir lands - Shamshabad Mandal - w. P. No. 14237 of 1989, challenging the report of the House Committee -Withdrawal of w. P.- Certain representation - Further course of Action - Reg. Ref :1. From the Collector, R. R. District, lr. No. B3/l3175/87, dated 19. 12. 1987. 2. Govt. D. O. Lr. No. 4111/q3/87, dated 7. 3. 1988. 3. From the Collector, RR District, Lr. No. b3/ 13174/87, dated 14. 3. 1988 ( 4 ) GOVT. Memo No. 4111/asn. III/ (3)/87-19, dated 21. 2. 1992. ( 5 ) FROM the Collector, RR District Lr. No. B3/ 7417/90, dated 9. 10. 1992. The attention of the Collector, Ranga Reddy district is invited to the correspondence cited. He is informed that as seen from the records the then Board of Revenue by its order dated 20. 7. 1951 in file No. 313/87/1989/ appeals/hyderabad (Disposal No. 159) directed that the entire case should be examined de novo with reference to the claims of the then Jagirdars while observing that in as much as the income statement for taking the commutation, only such land which were under the persona! cultivation of the jagirdar should be allowed to continue as patta in his name and that the patta of other lands should be cancelled. The above said order of Board of Revenue was confirmed by the State Government on 18. 11. 1952 in File No. A1/. 148/51. Subsequently, no action was taken by the competent authorities to decide the claim of the Jagirdars and the persons who claim occupancy rights. In this connection, it is also significant to note that some of the ryots filed W. P. No. 2027 of 1986 before the high Court of Andhra Pradesh for a direction to give effect to the order dated 20. 7. 1951 by the Board of Revenue towards pattas in respect of the lands in their possession and that the said writ petition was disposed of by the High Court with the following observations :-"now the matter is at large before the government. 7. 1951 by the Board of Revenue towards pattas in respect of the lands in their possession and that the said writ petition was disposed of by the High Court with the following observations :-"now the matter is at large before the government. Therefore, it is open to the petitioners to approach the Government and for a decision of the Board of Revenue implemented in the light of the directions given by the House Committee. I am of the view that it is not expedient for this court to interfere and give the direction sought for. "2. Thus, there was a positive direction by the High Court that the petitioners therein who were claiming occupancy rights have to approach the Government for necessary reliefs in the light of the findings given by the House Committee. In the circumstances the claims of those ryots and also the jagirdars have to be decided by the competent authority and a decision has to be taken after due enquiry. Since the property in question vested in the government free from all encumbrances after the abolition of the jagir in the year 1950, the rights of the respective parties have to be adjudicated upon in the light of the provisions of the A. P. (Telangana Area) abolition of Jagir Regulation 1358-F, the said adjudication has not been done if the jagirdars are not entitled to any rights, his alienees and successors in interest also do not acquire any rights in the property. 3. The following points have to be adjudicated upon : (i) Whether the jagirdar is entitled to ryotwari patta with reference to the land as per the provisions of Jagir Abolition regulation Act, 1358-Fasli ? (ii) Whether the ryots have acquired occupancy rights in respect of the land in their possession ?4. The Collector, Ranga Reddy District is, therefore, requested to make a due enquiry in the matter and decide the above points after giving notices to all the parties concerned keeping in view the fact that the relevant date to be considered in this enquiry is the date of coming into force of a. P. (Telangana Area) Abolition of Jagir regulation Act, 1358-Fasli. 5. He is also requested to send a detailed status report to the Government before 15. 7. 1993. 5. He is also requested to send a detailed status report to the Government before 15. 7. 1993. M. NARAYAN RAO secretary TO GOVERNMENT to the Collector, Ranga Reddy District copy to the Commissioner of Land Revenue, andhra Pradesh, Hyderabad copy to the Commissioner, Survey settlements and Land Records, Hyderabad copy to Stock file/sc //forwarded BY ORDER// section OFFICER //true COPY// sd/- Administrative Officer, collectorate, Ranga Reddy District being aggrieved by the above proceedings of the government, the writ petitioners filed w. P. No. 12631 of 1993 seeking quashing of the said Memo of the Government by writ of certiorari. In the writ petition, two main contentions were raised by the writ petitioners viz. , (i) the State Government of andhra Pradesh lacked jurisdiction to issue the impugned proceeding holding that the subject lands vested in the State government by virtue of the provisions of the Regulation and (ii) that the Government acted ultra vires the Regulation in directing the Collector, Ranga Reddy District to decide the two points set out in para (3) of the impugned order. 4. While raising the above two grounds, the petitioners also specifically pleaded that the subject lands have nothing to do with the land covered by the order of the Board of Revenue dated 20. 7. 1951 on the file No. 313/87/1950 Appeal or other patta lands of the jagirdars and that the subject lands were the patta lands of their vendors. Opposing the writ petition, counter-affidavit was filed on behalf of the State Government and its authorities contending that the subject land are jagir lands and by virtue of the provisions of the Regulation they stood vested in the State Government immediately after the issuance of the notification No. 11, dated 14. 9. 1949 under sub-section (1) of Section 5 of the Regulation and, therefore, the Government was justified in recording the finding that the lands are vested in the State Government and in issuing the consequential direction to the Collector, ranga Reddy District to conduct an enquiry on the two points set out in para (3) of the impugned proceeding. It was also contended in the counter that the impugned proceeding of the Government was in consonance with the direction issued by this court dated 13. 7. 1989 in W. P. No. 2027 of 1986. 5. It was also contended in the counter that the impugned proceeding of the Government was in consonance with the direction issued by this court dated 13. 7. 1989 in W. P. No. 2027 of 1986. 5. In the context of the rival pleadings and the contentions raised by the parties, the learned single Judge dealt with the question whether the State Government had jurisdiction to issue the impugned proceeding and whether the stand taken by the State government that the subject lands vested in the State Government by virtue of the provisions of the Regulation is tenable and justified. On both the questions, the learned judge has held in favour of the writ petitioners and against the State Government and its authorities. So opining, the learned judge allowed the writ petition and held that the impugned Memo of the Government is "incompetent, without jurisdiction and arbitrary". ( 6 ) THE impleaded respondents were not parties to the writ petition. The impleaded respondents are the villagers of Sultanpally village of Shamshabad Mandal and the proposed assignees of the subject land. They sought their impleadment as party respondents to this Writ Appeal by filing wamp No. 3371 of 2002 (WAMP sr. No. 117829 of 2002 and the same was ordered by us today i. e. , 11. 11. 2002 by a separate order. We have heard learned government Pleader for Revenue, Sri V. Ravinder Rao, learned Counsel for the impleaded respondent Nos. 7 to 104 and sri E. Manohar, learned senior Counsel for the contesting respondents - the petitioners. ( 7 ) LEARNED Government Pleader for revenue as well as Sri V. Ravinder Rao would vehemently contend that the writ petitioners have been re-agitating the same issue which had attained finality by the proceedings initiated and undertaken earlier under the provisions of the Regulation. Elaborating the contention, the learned counsel would point out that on an earlier occasion, at the behest of the vendors of the writ petitioner, the Additional Collector, hyderabad District held that the auction of kancha (grazing land) was without authority of law because, that was a private patta land of the jagirdars. That order and opinion of the Additional Collector, hyderabad was called in question by way of Appeal before the Board of Revenue in file No. 313/87/1950. That order and opinion of the Additional Collector, hyderabad was called in question by way of Appeal before the Board of Revenue in file No. 313/87/1950. The learned Member of the Board of Revenue by his judgment and order dated 20th July, 1951 reversed the judgment of the Additional District collector of Hyderabad and held that the kancha land is part of jagir and not the private property of the jagirdars . It appears that against the above order of the Board of revenue, a Revision in File No. A1/148/51 was preferred to the Government and the government by its order dated 18. 11. 1952 dismissed the revision affirming the order of the Board of Revenue and we are told that the said order of the Government was allowed to become final. ( 8 ) WHEN the matter stood thus, WP no. 2027 of 1986 was filed by as many as 33 persons who are the residents of sultanpally village complaining about non- implementation of the order of the Board of Revenue dated 20. 7. 1951 as affirmed by the Government in revision bearing file no. A1/148/51. The prayer in the writ petition reads as follows :"petition under Article 226 of the constitution of India praying that in the circumstances stated in the affidavit filed herein the High Court will be pleased to issue a writ, direction or order in the nature of mandamus directing the respondents 1 to 4 to give effect to the order of Board of Revenue, Government of Hyderabad in file No. 313/37/1950, dated 20. 7. 1951 and consequential orders issued by the Revenue authorities permitting petitioners to be in possession and enjoyment of the land measuring about 254 acres in Sy. Nos. 122 to 126, 143 to 150 and 150 to 154 in sultanpalli village, Chevella Taluk, Ranga reddy District and award the necessary patta to them in respect of the lands in their possession. 1951 and consequential orders issued by the Revenue authorities permitting petitioners to be in possession and enjoyment of the land measuring about 254 acres in Sy. Nos. 122 to 126, 143 to 150 and 150 to 154 in sultanpalli village, Chevella Taluk, Ranga reddy District and award the necessary patta to them in respect of the lands in their possession. " ( 9 ) WHEN that writ petition came up for final hearing before a learned single judge of this Court, it was brought to the notice of the learned single Judge, that the House Committee constituted by the andhra Pradesh State Legislature in its report recorded the finding that the lands covered by the judgment and order of the board of Revenue should be treated as government lands and the Government ought to have taken necessary steps to take over the management of those lands. It was also brought to the notice of the Court that the House Committee had recommended to the State Government to take appropriate action to implement the order of the Board of Revenue. The learned single Judge having referred to the relevant observations of the House Committee in its report disposed of writ petition by observing:"now the matter is at large before the government. Therefore, it is open to the petitioners to approach the Government and have the decision of the Board of revenue "implemented in the light of the direction given by the House Committee. I am of the view that it is not expedient for this Court to interfere and give the directions as sought for. The writ petition is accordingly dismissed with the above observation. No costs. " ( 10 ) FROM a careful perusal of the impugned memo of the Government dated 21. 6. 1993, it could be seen that the government issued the impugned memo to implement the direction issued by this Court in W. P. No. 2027 of 1986. ( 11 ) THE learned Judge has held that under the Regulation, the Government is not vested with the power to determine the rights of the parties with regard to jagir and that only a jurisdictional civil Court could resolve such issues as contemplated under sub-section (2) of Section 21 of the Regulation. The learned Judge having referred to the proceedings initiated under Section 145 Cr. The learned Judge having referred to the proceedings initiated under Section 145 Cr. P. C. and certain civil suits and the report submitted by the revenue Divisional Officer, Chevalla dated 14. 9. 1990 held that the subject land is a private patta land of the vendors of the writ petitioners. ( 12 ) HAVING heard the learned Counsel for the parties, it needs to be emphasised that if the petition schedule lands are the very same lands covered by the decision of the Board of Revenue, it is trite, the petitioners cannot be permitted to reagitate their claim that the subject lands are patta lands and not jagir lands because the order of the Board of Revenue as upheld by the government in the revision was allowed to become final. Perhaps, realizing this position, the learned Government Pleader for Revenue as well as Sri V. Ravinder rao would strenuously contend that though there is no specific reference to Sy. Nos. 122, 126, 143, 150, 132/a, 152/b, 153 and 154 in the order of the Board of Revenue, as a matter of fact, the same lands were subject matter of the proceedings before the Board of Revenue. Sri Ravinder Rao, would point out that by the time the Board of Revenue decided the appeal, survey settlement was not completed, and, therefore those lands were not given survery numbers. Therefore, it becomes necessary for us, in the first instance, to resolve the question whether the lands covered by the order of the board of Revenue are the same petition schedule lands or not. Having heard the learned Counsel for the parties, perusing the pleadings as well as the documents placed before us, we do not find any evidence to satisfy ourselves that the lands which were subject matter of appeal before the Board of Revenue and the lands which are the subject matter of the present proceedings are one and the same. The question whether they are one and the same, it is trite, is a pure question of fact. Unless it is shown that a competent court of law or an adjudicatory statutory authority or a quasi-judicial forum has recorded a finding on this factual question, it is not appropriate for this Court in exercising judicial review power under article 226 to take up resolution of such disputed facts. Unless it is shown that a competent court of law or an adjudicatory statutory authority or a quasi-judicial forum has recorded a finding on this factual question, it is not appropriate for this Court in exercising judicial review power under article 226 to take up resolution of such disputed facts. Such a question, we are of the considered opinion, cannot be resolved conclusively and finally only on the basis of affidavits and counter-affidavits. It requires tendering of witnesses for examination and cross-examination. The petitioners in the writ affidavit filed in support of the writ petition in unmistakable terms have stated :"the petitioners in this case are not concerned with either the other patta lands of jagirdar or the jagir lands as such for the purpose of the present writ petition. "further, the petitioners have contended thus:"all the petitioners before purchasing the lands have verified with the Revenue records and found that the land proposed to be purchased by them were patta lands of their vendors. Only after satisfying this that their vendors have got full rights to sale the lands under law, the petitioners have purchased the lands from them for a valuable consideration. " ( 13 ) IN the context of the above specific pleading and in the absence of any satisfactory materials placed by the state Government and its authorities or the impleaded respondents to show that the subject land is the same in both the proceedings, it is not safe for the Court to assume that they are one and the same. ( 14 ) SECONDLY, we also find considerable force in the contention of the writ petitioners that the State Government acted ultra vires the Regulation and without jurisdiction in passing the impugned proceedings declaring that the subject lands are jagir lands and they stood vested in the State Government after the abolition of the jagirs and in directing the Collector, Ranga Reddy District to determine the two issues set out by it in para (3) of the impugned proceedings. It needs to be emphasized that a statutory authority or an administrative authority-should function within the parameters of authority granted to it by law. It is true that the Executive authority of the state Government is co-extensive with the legislative authority of the concerned State. It needs to be emphasized that a statutory authority or an administrative authority-should function within the parameters of authority granted to it by law. It is true that the Executive authority of the state Government is co-extensive with the legislative authority of the concerned State. Abolition of jagir and taking over the management and administration of jagir in favour of the government is a field fully occupied by the Regulation. It is well settled that if a field is occupied by the statute, it is not permissible for the Executive government to meddle with the statutory provisions or to do anything contrary to the statutory provisions in the purported exercise of executive power and if it does so, such action would be condemned as ultra vires the Statute concerned. The regulation is a Code in itself as regards abolition and taking over the management of the jagir in favour of the government. Section 3 of the Regulation deals with the power of the government to appoint jagir Administrator and Assistant Jagir administrator for the due administration of the Regulations. Section 5 reads as under:"5. Appointment of dates for transfer of administration : (1) As soon as may be after the commencement of this Regulation, the Government shall appoint a date for the transfer to the Government of the administration of jagirs and may appoint different dates for different jagirs. (2) On the date so appointed any jagir (hereinafter referred to as the appointed day) the Jagirdar shall make over the management of the jagir to the Jagir Administrator and shall furnish him with an account of the revenue received and expenditure incurred on account of the jagir in the current or, if jagir Administrator so requires, in the immediately preceding year of account, in so far as such revenue and expenditure are attributable to that year. (3) If the Jagirdar fails to comply with the provisions of sub-section (2) to the satisfaction of the Jagir Administrator, or obstructs the access of the Jagir administrator to any lands or buildings belonging to the jagir , or fails to furnish the Jagir Administrator with any documents relating to the administration of the jagir , the Jagir Administrator may use or cause to be used such force as may be necessary for the purpose of entering upon any such lands or buildings of or securing possession of any such documents. (4) If in any jagir , a Jagirdar is not in existence on the appointed day, the Jagir administrator shall require the duties imposed upon the Jagirdar by sub-section (2) to be discharged by such one of the hissedars as he may designate for the purpose and references in sub-sections (2) and (3) of this section and in sub-section (4) of Section 13 to the Jagirdar shall be read as referring to the Hissedar so designated. " ( 15 ) ON issuance of a notification envisaged under subsection (1) by the government, by virtue of the provisions of sub-section (2), every Jagirdar is obligated to make over the management of the jagir to the Jagir Administrator and if a jagirdar fails to carry out the obligation, then, sub-section (3) provides that the jagir administrator could pursue coercive steps to take over the management of the jagir . Thus, it could be seen that in a case, where steps envisaged under subsection (l) of Section 5 have been taken against a person and that person who is considered to be a jagirdar by the Government comes before the Jagir administrator and contended that the land in respect of which the Government has issued the notification is not a jagir , but a private patta land of the jagirdar , the jagir administrator may be required to decide such incidental issue in order to effectuate the provisions of the Regulation. Be that as it may, the learned Government pleader as well as Mr. V. Ravinder Rao were not in a position to refer to any of the provisions of the Regulation or the Rules framed thereunder, to show that the government has the power to decide the question whether a land is jagir or patta land in case of a dispute. It is well-settled that when the law-maker designates an authority and confers certain statutory power to do certain thing, that authority can alone exercise that power and not any other authority, whether superior or inferior, and if any external authority exercises the power vested in a statutory authority, the action would be condemned as ultra vires the statute. Therefore, it is not permissible for the State Government to determine the rights of the parties. Realizing the difficulty to sustain the impugned action of the government, the learned Government pleader as well as Mr. Therefore, it is not permissible for the State Government to determine the rights of the parties. Realizing the difficulty to sustain the impugned action of the government, the learned Government pleader as well as Mr. V. Ravinder Rao would maintain that the impugned action is not an action taken under the Regulation, but it is an administrative action taken in exercise of the executive power of the state and, therefore, no exception could be taken to the impugned action. This contention of the learned Counsel should be noticed only to be rejected, because, it is well settled, as stated above, it is not permissible for the Executive Government to meddle with the statutory power vested in a statutory authority or to do anything contrary to the statutory provisions in the purported exercise of executive power. The Executive government by exercising executive power can only suppliment and it cannot supplant statutory provisions. It is not a case where the statute is silent and the executive government has stepped in and issuec administrative instructions or guidelines to fill in the gap in the statute. ( 16 ) IN conclusion, we cannot find any substantive or weighty reasons to interfere with the order of the learned single Judge. However, we find some force in the grievance of the learned Government Pleader and Sri V. Ravinder Rao that certain findings recorded and observations made by the learned single Judge in the course of the order relating to the merits of the matter were unwarranted and unjustified. According to the learned Counsel, the learned Judge having held that the impugned proceeding could not be sustained for want of power in the State Government ought to have quashed the impugned proceeding only on that ground, reserving liberty to the parties to work out their remedies before the appropriate Court or the forum and ought not to have recorded findings on merits of the case. It is true that the learned single Judge in the course of the order has held that having regard to the earlier proceedings taken under section 145 Cr. P. C. and the source between the parties etc. , the subject lands could not be regarded as jagir . We think that there was no necessity for this Court to foreclose the issue by recording findings on merits. P. C. and the source between the parties etc. , the subject lands could not be regarded as jagir . We think that there was no necessity for this Court to foreclose the issue by recording findings on merits. The factual questions should not and could nandt have been decided only on the basis of the affidavits and counter-affidavits in a summary. proceeding under article 226. Further, we do not find any clinching proof to sustain the factual findings. ( 17 ) IN the result, we dismiss the writ appeal with no order as to costs. However, we direct that the factual findings records by the learned single Judge on merits of the matter would not in any way influence or bind either the Civil Court or any other statutory forum or authority which may be called upon to decide the basic issue whether the subject lands constitute jagir within the meaning of that term as defined under clause (f) of Section 2 of the regulation and such issue should be resolved solely on the basis of the evidence that may be led before such Court or Forum or authority, as the case may be. ( 18 ) WITH these observations and directions, the writ appeal is disposed of and accordingly the order of the learned single judge shall stand modified.