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2009 DIGILAW 97 (AP)

Ageer Dasaratham v. Joint Collector, Mahabubnagar

2009-02-24

GOPALA KRISHNA TAMADA

body2009
Judgment : 1. Petitioners are the sons of Ageer Sri Ramulu and they along with their brothers are entitled to the property owned by their father late Sri Ramulu. However, on an application given by Ageer Srinivasulu one of the brothers of the petitioners, the second respondent i.e Revenue Divisional Officer, Mahabubnagar without causing any detailed enquiry issued Occupancy Right Certificate in Form II of the A.P. (Telangana Area) Abolition of Inams Act 1955 (for short 'the Act'). Questioning the issuance of the said Occupancy Right Certificate, petitioners preferred an appeal before the first respondent-Joint Collector, Mahabubnagar and in the said process as there was a delay they also filed an application. However, the first respondent rejected the said appeal. Hence this revision under Article 227 of the Constitution of India. 2. 2. The brief facts are that Ageer Sri Ramulu is having five sons and during his lifetime he owned lands admeasuring Ac.9.00 and Ac. 2.35 in Sy.Nos.440 and 442 respectively in Bhurgula village. Claiming that there was an earlier partition between the brothers, Ageer Srinivasulu who is arrayed as fourth respondent filed an application before the second respondent, claiming that he alone is entitled for issuance of the Occupancy Right Certificate in the light of his possession as on the crucial date i.e. 01.11.1973. Along with the said application he also gave a sworn statement stating that he alone is entitled to the said certificate and that his brothers i.e. the petitioners or anybody do not have any legal right whatsoever. Upon the filing of the said application, the second respondent sent notices to the petitioners through the Mandal Revenue Officer of Farooqnagar, but as the petitioners are not residing in the village, it was published by way of tom tom and thereafter holding an enquiry, the second respondent having been satisfied that the fourth respondent i.e. Srinivasulu is entitled for issuance of the Occupancy Right Certificate issued the same in his favour. As the petitioners are not residing at Bhurgula village they are not aware of all these facts and subsequently having come to know about all these proceedings after about 10 years, they approached the first respondent who is the appellate authority and filed an appeal under section 24 of the said Act. As the petitioners are not residing at Bhurgula village they are not aware of all these facts and subsequently having come to know about all these proceedings after about 10 years, they approached the first respondent who is the appellate authority and filed an appeal under section 24 of the said Act. But as the said appeal has to be filed within a period of 90 days and as it was filed after lapse of 10 years, the petitioners also filed a petition to condone the said delay and the first respondent by his order dated 21.08.2008 refused to condone the said delay as it is abnormal and no specific reasons for the said delay are assigned. As stated supra, the same is under challenge in this revision. 3. 3. Heard the learned counsel for the petitioners and the counsel for the fourth respondent and also the learned Government Pleader. 4. 4. The main contention of the learned counsel for the petitioners is that as the petitioners left Bhurgula village long back and are residing at Nagarkurnool and at Hyderabad respectively they are not aware of any of these proceedings. It is his contention that before issuing the Occupancy Right Certificate a duty is caste upon the second respondent to cause notice to all the persons concerned but in the case on hand no notices have been served on the petitioners and as such the said issuance of Occupancy Right Certificate in favour of the fourth respondent is contrary to law. In this context, the learned counsel has also drawn my attention to Rule 6 of the Rules made under the Act. It is because of their ignorance only they could not approach the appellate authority immediately and the first respondent without looking into the case properly rejected the said application simply on the ground that the abnormal delay of 10 years is not explained properly. 5. 5. It is because of their ignorance only they could not approach the appellate authority immediately and the first respondent without looking into the case properly rejected the said application simply on the ground that the abnormal delay of 10 years is not explained properly. 5. 5. The learned counsel for the fourth respondent Mr.Ashokraj while opposing the said submissions stated that as on the crucial date i.e. 01.11.1973 there was an earlier partition between the brothers and that the fourth respondent is in possession of the lands in question and as such the second respondent is justified in issuing the Occupancy Right Certificate in favour of the fourth respondent and with a malafide intention only the petitioners preferred an appeal before the appellate authority after lapse of 10 years without assigning any reasons and the first respondent had rightly dismissed the said appeal. 6. 6. The facts are not in dispute. It can be gathered from the cause title that the petitioners are not residing at Bhurgula village and their addresses are shown as below: 1) Ageer Dasaratham, S/o Late Ageer Sri Ramulu, Aged about 49 years, Occ: Business, R/o Plot No.13-41, Market Yard, Nagarkurnool (Post & Mandal) Mahabubnagar District, A.P. PIN: 509 209 2) Ageer Ashok Kumar, S/o Late A. Sri Ramulu Aged about 45 years, Occ: Employee, R/o Plot No.21, Shikarra Enclave, RTC Colony, Champapet, Hyderabad - 500 079. 1. 7. Rule 6 of the Rules made under the Act provides for Registration of non -protected tenant as occupant and as per the said provision of law, on receipt of an application, the Collector (The Revenue Divisional Officer) shall issue a notice in Form II to every person claiming interest or having interest in the land specified in such notice. From a perusal of the notice issued by the second respondent - Revenue Divisional Officer, it is clear that the place of residence of the petitioners was shown as Bhurgula village and accordingly notices in Form II were sent to Bhurgula village and obviously, as the petitioners are residing elsewhere, the notices were not served on the petitioners. When the petitioners are residing at a different place, sending of notices to an address where they are not residing cannot be said to be a notice as provided for under Rule 6 of the Rules. When the petitioners are residing at a different place, sending of notices to an address where they are not residing cannot be said to be a notice as provided for under Rule 6 of the Rules. Of course, it cannot be said that the official respondents have committed an error in not sending the notices to the petitioners to their correct addresses. It is for the fourth respondent who is claiming to be the owner and filed the application for issuance of Occupancy Right Certificate to furnish the correct addresses of the petitioners, but however, for obvious reasons, he has not done so. When the petitioners have come forward stating that they were not put on notice before issuance of such Occupancy Right Certificate in favour of the fourth respondent and that they have a legitimate right over the properties and that they are in position to establish that they are in occupation of the lands as on the crucial date i.e. 01.11.1973, the first respondent ought to have given them an opportunity to advance their case. It is true that there is abnormal delay of 10 years in filing the appeal, but that cannot be a ground to reject the petition filed by the petitioners, particularly, when they were not put on notice. This Court is thoroughly satisfied that the issuance of said Occupancy Right Certificate in favour of the fourth respondent is without notice to the petitioners and is hit by Rule 6 of the Rules made under the Act and the petitioners are entitled to ventilate their grievance. 2. 8. Accordingly this revision is allowed, the impugned order is set aside and the delay is condoned. The petitioners are hereby directed to approach the second respondent -Revenue Divisional Officer i.e. original authority within a period of four weeks from the date of receipt of a copy of this order and offer their explanation in detail as to how they are entitled for issuance of Occupancy Right Certificate and on receipt of such application, the first respondent, Mahabubnagar shall cause a detailed enquiry into the matter after giving an opportunity to the fourth respondent also and thereafter decide as to who was in possession of the lands as on the crucial date i.e. 01.11.1973 and thereafter issue the Occupancy Right Certificate to the legitimate persons. The contention advanced by the learned counsel for the fourth respondent Mr. The contention advanced by the learned counsel for the fourth respondent Mr. Ashokraj cannot be accepted at this stage for the reason that this court cannot hold any enquiry into the matter and decide as to who is entitled for issuance of Occupancy Right Certificate. Now that this court directed the second respondent to hold an enquiry, the fourth respondent also can explain in detail as to whether there was an earlier partition and how he is entitled for issuance of said Occupancy Right Certificate. However, it is made clear that as the fourth respondent is in possession of the lands in question, his possession shall not disturbed during the pendency of the enquiry to be conducted by the second respondent -Revenue Divisional Officer. No order as to costs.