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2013 DIGILAW 1082 (AP)

P. Anjaneyulu Gupta v. Mohd Abdul Basith Khan

2013-11-28

C.V.NAGARJUNA REDDY

body2013
Judgment : These two writ petitions have been filed with identical grievance against the same proceeding of the Joint Collector (J), Ranga Reddy District, Hyderabad(hereinafter referred to as ‘the Joint Collector’). There is a serious dispute among the petitioners in these writ petitions and the private respondents with respect to the land in Survey No.69 of Miyapur Village, Serilingampally Mandal, Ranga Reddy District. Based on the preliminary decree, dated 29.12.2000, in O.S.No.38 of 1993, on the file of the learned I Additional District Judge, Ranga Reddy District filed for partition, the private respondents have approached the Joint Collector invoking his revisional jurisdiction under Section 9 of the A.P.Rights in Land and Pattadar Pass Books Act, 1971 (for short ‘the Act’) for mutation of their names in the record of rights. Though the petitioners in either of the writ petitions were not made parties to the revision petition, the petitioners in W.P.No.8958 of 2013 filed their objections, both on merits and also on the maintainability of the revision petition before the Joint Collector. The Joint Collector by the impugned order, while holding that the private respondents are entitled for mutation of their names in the records of rights as pattadars for the patta land in Survey No.69 of Miyapur Village, Serilingampally Mandal, Ranga Reddy District in terms of the civil Court’s decree, directed the Deputy Collector & Tahsildar, Serilingampally, Ranga Reddy District to take necessary action on the claim of the private respondents for effecting mutation as per the decree of the civil Court duly following the procedure and protecting the Government’s interest, if any. The learned counsel for the petitioners in these writ petitions have questioned the impugned order on two grounds, namely, (1) that the very revision petition itself is not maintainable as the private respondents have not approached the primary authority i.e., the Tahsildar, Serilingampally under Section 4 of the Act and that therefore, there was no occasion for the private respondents to approach the Joint Collector by invoking his revisional jurisdiction and (2) that even on merits, no rights of the parties have been finally adjudicated in the civil suit, as the basis for the claim of the private respondents for mutation of their names in the revenue records was a preliminary decree in a partition suit and that unless final decree allotting properties by dividing by metes and bounds is passed, the rights of the private respondents will not be crystallised and that on such inchoate rights, the private respondents cannot claim mutation. Sri D.V.Sitarama Murthy and Sri P.Raghavender Reddy, learned counsel appearing for the respective private respondents, have seriously opposed the above submissions of the learned counsel for the petitioners. Apropos the first contention of the learned counsel for the petitioners, the Act prescribed specific procedure for amendment of the record of rights. The provisions which are relevant for these cases need to be discussed. Section 4 of the Act envisages that if any person acquires any right as owner by succession, survivorship, inheritance, partition, Government patta, decree of a Court or otherwise, he shall intimate in writing the fact of his acquisition of such right to the Mandal Revenue Officer (presently, Tahsildar) within ninety days from the date of such acquisition, and the said Officer shall give or send a written acknowledgement of such intimation to the person making it. Section 5 of the Act has laid down procedure for considering such intimation. It envisages issue of a notice in writing to all persons whose names are entered in the record of rights and who are interested in or affected by amendment and to any other persons whom he has reason to believe to be interested therein or affected thereby to show cause within the period specified therein as to why amendment should not be carried out. The copy of the amendment and the notice shall also be published in the prescribed manner. The copy of the amendment and the notice shall also be published in the prescribed manner. After making necessary enquiry, the recording authority shall pass an order in relation to the objections that are made to the notice issued by him. Under sub-section (5) of Section 5 of the Act, an appeal shall lie to the Revenue Divisional Officer or such authority as may be prescribed, within sixty days from the date of communication, against every order of the recording authority either making an amendment in the record of rights or refusing to make such an amendment. Under Section 9 of the Act, the Collector is conferred with the suo motu revisional power. He is also empowered to exercise his revisional powers at the instance of the aggrieved party and adjudicate on the regularity, correctness or propriety of any decision taken, order passed or proceedings made by the recording authority or the Revenue Divisional Officer under Sections 3, 5, 5-A and 5-B of the Act. The scheme underlying the above-mentioned provisions would leave one in no doubt that the parties are provided with hierarchical remedies. At primary level, the party has to first approach the recording authority for correction of entries in the record of rights on acquisition of rights. If any party is aggrieved by the decision taken by the primary authority, he is entitled to file an appeal. The revision is the final remedy under the Act, besides the right of the aggrieved party to file a suit under Section 8(2) of the Act after exhausting all these remedies. This being the statutory scheme, every hierarchical authority is expected to respect and scrupulously follow the same. It is indeed surprising that the Joint Collector has not given any reasons whatsoever for the extraordinary step he has taken in straightaway entertaining the revision petition filed by the private respondents without relegating them to the primary authority under Section 4 of the Act. Indeed, a perusal of the proceeding sheet in W.P.No.8958 of 2013 shows that the learned Judge who has dealt with this case has summoned the Joint Collector and after questioning him, the learned Judge has passed the following order on 01.04.2013 in W.P.M.P.No.11178 of 2013 in W.P.No.8958 of 2013: “The first respondent (Joint Collector, Ranga Reddy District) is present in Court. He would state that the petitioner’s objections, regarding his father being in possession from 1958, and his being shown as the pattadar in the revenue records from 1972-1973 was not ascertained before the impugned order was passed; personal notice was not issued to him; and, instead, notice was issued by way of paper publication. When asked which provision of law empowered him to exercise revisional jurisdiction, in the absence of any order having been passed by the Mandal Revenue Officer or the Revenue Divisional Officer, the first respondent would express ignorance. He is also not in a position to refer to any provision of law which empowers him to cause notice by paper publication instead of a personal notice being served on the petitioner or his father whose name, admittedly, is found in the revenue records for the past several years. The first respondent expresses his apology for the mistake committed by him. Learned Government Pleader for Revenue (Telangana Area) would submit that, instead of keeping the Writ Petition pending, the impugned order may be set aside leaving it open to the competent authority to pass orders in accordance with law. Sri V.V.Narasimha Rao, Learned Counsel for respondent Nos.2 and 3, would, however, request time to file a counter affidavit. There shall be interim suspension as prayed for.” From the above order reflecting on the inability of the Joint Collector in answering the queries of the Court, it is evident that the Joint Collector had no proper comprehension of the statutory scheme under which he was functioning as revisional authority. This is not a case where the Joint Collector has chosen to exercise his suo motu revisional powers. Admittedly, this is a case where the dispute is between two private parties and the interests of the Government are not involved. Therefore, there is no semblance of justification to the Joint Collector to exercise revisional jurisdiction at the instance of one set of the parties which has bypassed the remedies available to it under Sections 4 and 5(5) of the Act. When the statute prescribed a specific procedure, the authorities functioning under it shall strictly adhere to the same. Whenever such procedure is sought to be bypassed, the authority is bound to justify such action. Even if the Joint Collector under certain circumstances could straightaway exercise his revisional jurisdiction, the facts of these cases do not fall under such category. When the statute prescribed a specific procedure, the authorities functioning under it shall strictly adhere to the same. Whenever such procedure is sought to be bypassed, the authority is bound to justify such action. Even if the Joint Collector under certain circumstances could straightaway exercise his revisional jurisdiction, the facts of these cases do not fall under such category. In order to exercise the revisional jurisdiction, there must have been a decision taken, an order passed or proceeding made by any of his subordinate authorities. As noted above, the only reason for the private respondents in approaching the Joint Collector was the purported acquisition of their right under a preliminary decree in a partition suit and they claimed for mutation in terms of such decree. The Joint Collector has absolutely no jurisdiction whatsoever to entertain such application in purported exercise of his revisional jurisdiction in the absence of any decision taken or order passed or proceeding made in that regard by his subordinate officers. On this ground alone, the impugned order passed by the Joint Collector is liable to be set aside and the same is accordingly set aside. With regard to the second contention of the learned counsel for the petitioners, I refrain from expressing any opinion on the same because the said issue needs to be adjudicated by the primary authority i.e., the Tahsildar, if and when the private respondents make their application before him under Section 4 of the Act. If such an application is made, the Tahsildar concerned shall issue notices to the petitioners herein and also any other person who in his view have interest in the property. On receipt of such notices, the petitioners are entitled to submit their objections on the right of the private respondents for mutation of their names in the record of rights based on the preliminary decree. Thereafter, the Tahsildar shall hold an enquiry under Section 5(3) of the Act and pass an appropriate order. Subject to the above observations and directions, the writ petitions are allowed. As a sequel to disposal of the writ petitions, pending interlocutory applications shall stand disposed of as infructuous.