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2013 DIGILAW 472 (AP)

Erukala Uma v. Government of Andhra Pradesh

2013-06-24

N.V.RAMANA, VILAS V.AFZULPURKAR

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JUDGMENT N.V. RAMANA, J :- This writ petition is referred to the Division Bench on reference by a learned Single Judge by order dated 4.6.2013, as the learned Single Judge has expressed inability to concur with the opinion of another learned Single Judge in V. Goutham Rao v. Revenue Divisional Officer, Jagital, Karim nagar, 2003 (1) ALD 681 . 2. We have heard Sri P.V. Narayana Rao, the learned Counsel appearing for the petitioner and the learned Government Pleader for Revenue, appearing for the respondents. We have also perused the order of reference as well as the judgment of the learned Single Judge in V. Goutham Rao's case (supra), referred to above. 3. The writ petitioner questions the notice issued by the Collector, Karimnagar in File No.D1/3994/2012, dated 8.11.2012. The said notice called upon the petitioner to respond to the Revision Petition filed by the 2nd respondent under Section 9 of the Andhra Pradesh Rights in Land and Pattadar Pass Books Act, 1971 (hereinafter referred to as 'ROR Act' or 'the Act'), seeking correction of entries in respect of the land admeasuring Acs.12-21 guntas in Sy.No.515/1, of Kurikyal Village, Karimnagar District. 4. The writ petition was primarily filed questioning the jurisdiction of the Collector under Section 9 of the Act on the ground that a civil suit - OS No.71 of 2011 on the file of Senior Civil Judge, Sircilla, was filed by one Ilineni Rajeshwar Rao against the 2nd respondent herein, is pending. According to the petitioner, a common written statement was filed by the 2nd respondent in the said suit admitting the possession and ownership of the petitioner herein. It is also stated that the petitioner figured as 5th defendant and the 2nd respondent as 2nd defendant in the said suit. It is also stated that in the said written statement 2nd respondent has admitted that the Revenue Records show the name of petitioner herein as duly recorded in the pahanies and while the said suit is pending, the 2nd respondent filed the aforesaid revision before the Collector seeking correction of entries in the pahanies from 1995-96 to 2011-12. It is also stated that in the said written statement 2nd respondent has admitted that the Revenue Records show the name of petitioner herein as duly recorded in the pahanies and while the said suit is pending, the 2nd respondent filed the aforesaid revision before the Collector seeking correction of entries in the pahanies from 1995-96 to 2011-12. Since the aforesaid suit is pending between the parties, entertaining the revision under Section 9 of the ROR Act, at the instance of the 2nd respondent, is therefore challenged on the ground that the revisional authority has no jurisdiction to entertain the revision, when the issue is seized of by the civil Court. Reliance is placed by the petitioner on the decision of V. Goutham Rao's case (supra). 5. As stated above, the learned Single Judge did not agree with the proposition in V. Goutham Rao's case (supra), that mere pendency of a civil suit before the civil Court would exclude the jurisdiction of the Collector under Section 9 of the ROR Act. 6. At this stage, it is appropriate to note Sections 8 and 9 of the ROR Act, which are as under: "Section 8. Bar of Suits:-(1) No suit shall lie against the Government or any officer of Government in respect of a claim to have an entry made or in relation to any entry made in any record of rights or to have any such entry omitted or amended. (2) If any person is aggrieved as to any rights of which he is in possession by an entry made in any record of rights he may institute a suit against any person denying or interested to deny his title to such right for declaration of his right under Chapter VI of the Specific Relief Act, 1963 (Central Act 47 of 1963) and the entry in the record of rights shall be amended in accordance with any such declaration. Section 9. Section 9. Revision - The Collector may either suo motu or an application made to him, call for and examine the record of any Recording Authority, Mandal Revenue Officer or Revenue Divisional Officer under Sections 3, 5, 5-A or 5-B, in respect of any record of rights prepared or maintained to satisfy himself as to the regularity, correctness, legality or propriety of any decision taken, order passed or proceedings made in respect thereof and if it appears to the Collector that any such decision, order or proceedings should be modified, annulled or reversed or remitted for re-consideration, he may pass orders accordingly. Provided that no such order adversely affecting any person shall be passed under this section unless he had an opportunity of making a representation." 7. It would be evident from the above that Section 9 is the revisional power, which the Collector may exercise either suo motu or on an application made to him, in respect of any record to satisfy himself as to the regularity, correctness, legality or propriety of any decision taken by any of the authorities under the Act. The 2nd respondent, therefore, called in question the entries made in the Revenue Records by filing the revision under Section 9 of the Act, on which the impugned notice was issued to the writ petitioner requiring him to submit his objections to the said claim of the 2nd respondent. 8. The above referred case i.e., V. Goutham Rao's case (supra), was also a case where a similar notice was questioned on the ground that a civil suit was pending between the parties, and, in those circumstances, this Court held as under: "Under sub-section (1) of Section 8 of the Act, there is a bar against filing of any suit against the Government or any officer of the Government in respect of a claim to have an entry made or in relation to any entry made in any record of rights or to have any such entry omitted or amended. However, under sub-section (2) thereof, it specifically contemplates that any person aggrieved as to any rights of which he is in possession by any entry in the record of rights, may institute a suit against any person denying or interested to deny his title to such right for declaration of his right under Chapter VI of the Specific Relief Act. However, under sub-section (2) thereof, it specifically contemplates that any person aggrieved as to any rights of which he is in possession by any entry in the record of rights, may institute a suit against any person denying or interested to deny his title to such right for declaration of his right under Chapter VI of the Specific Relief Act. Further it also states that the entry in the record of rights shall be amended in accordance with any such declaration. Therefore, ultimately it is the finding of the civil Court which governs the field and which has to be given effect to by the authorities and make entries accordingly. It is not too late in the day to take judicial notice of proceedings being initiated under the provisions of the Act where either a civil proceedings is already pending or where a serious dispute of title is involved. Having regard to the fact that the authorities constituted under the aforesaid statute would not venture to go into such serious questions nor can decide thereupon, yet the parties are taking recourse to such proceedings. Ultimately after exhausting the remedies under the Act, the parties are approaching the civil Court whereby there is any amount of duplication in the entire process apart from the time consumed thereunder. In the circumstances, wherever there is a serious dispute of title or claims of any rival title, it would not only be proper for the authorities to refrain from proceeding with the enquiries as such under the provisions of the Act but also pragmatic for the parties to approach the civil Court for establishing their right, title and interest of whatsoever nature. Though the proceedings now are at the threshold i.e., at the stage of issuance of a show-cause notice, but one cannot lose sight of the fact that ultimately the authorities would have to fall back on the finding of the civil Court. In view of the same, the entire exercise by the authorities under the Act would be a mere farce and nugatory." 9. It is also noteworthy that Section 8(1) of the Act provides for bar of suits against the Government or any officer of the Government in respect of a claim to have an entry made in the record of rights or to have any such entry omitted or amended to in record of rights. It is also noteworthy that Section 8(1) of the Act provides for bar of suits against the Government or any officer of the Government in respect of a claim to have an entry made in the record of rights or to have any such entry omitted or amended to in record of rights. We are not concerned in the present case with the situation as envisaged under Section 8(1) of the Act. Section 8(2) is, however, relevant, which provides that an adjudication by a civil Court with regard to right of any such person, affecting any entry of record of rights, would be binding on the authorities under the ROR Act and the record of rights shall be amended in accordance with such declaration as would be given by the civil Court. Thus, significantly, under Section 8(2) suits of the nature where title with regard to declaration of a right with regard to the entries in record of rights is envisaged. However, Section 8(2) is not attracted where a right other than the one under Chapter VI of the Specific Relief Act is under adjudication by civil Court. In other words, suits for perpetual injunction or suits in the nature of the relief sought for otherwise than filing under Chapter VI of the Specific Relief Act, therefore, would not be governed by Section 8(2) of the ROR Act. 10. Keeping this legislative scheme in mind, it is difficult to accept the contention that the moment any civil suit is filed, the authorities under the ROR Act have to stay their hands and cannot exercise any of the statutory powers under the ROR Act, awaiting decision of the civil Court. The remedies under the ROR Act are provided to give expeditious relief in respect of rights in land and pattadar pass books. Such right, therefore, does not get affected merely because of pendency of any civil suit before any Court. But Section 8(2) of the Act specifies that only the decree in such suits seeking declaration of right under Chapter VI to Specific Relief Act would be binding on the authorities under the ROR Act. 11. Such right, therefore, does not get affected merely because of pendency of any civil suit before any Court. But Section 8(2) of the Act specifies that only the decree in such suits seeking declaration of right under Chapter VI to Specific Relief Act would be binding on the authorities under the ROR Act. 11. The facts and circumstances in V. Goutham Rao's case (supra), were clearly within the parameters of Section 8(2) of the Act and it is in that context, this Court held that it would be pragmatic for the parties to approach civil Court and it would be proper for the authorities to refrain from proceedings with the enquiries in such situation, where civil Court is seized of the matter. 12. We came across another judgment of a Division Bench of this Court in Singamaneni Pullamma v. Joint Collector, Ongole, 2004 (7) ALT 963 = 2003 (6) ALD (NOC) 149-1, where the Division Bench was considering the correctness of the proceedings of the Joint Collector under the ROR Act, who had declined to entertain the revision. In that context, the Division Bench has recorded its findings on revisional power under Section 9 of the Act and found as under: "... Besides the mandate of this provision, the 1st respondent-Joint Collector had specifically been asked to dispose of the revision on merits by the High Court. In our view, the 1st respondent was not correct in keeping the order which was challenged before him in abeyance till the matter was decided by the civil Court. One could understand such a course taken by him if the civil Court was seized of the matter, but there was nothing pending on the civil Court at that time. It is true that the entry made in the revenue records can be challenged in a civil suit, but that does not mean that the revenue authorities will not exercise any discretion which they are required to do under the Act. Pattadar pass books are governed by the Act and in case of grievance about the entries in pattadar pass books or about issuance or non-issuance of pattadar pass books the revenue authorities are supposed to do their job under the Act. Whether a revision had to be allowed or dismissed was a matter which had to be decided by the revisional authority. Whether a revision had to be allowed or dismissed was a matter which had to be decided by the revisional authority. In case anybody or any party before it was aggrieved of that order, they could workout their remedies. Therefore what we feel that the 1st respondent has failed to exercise his jurisdiction although the High Court had clearly asked him to exercise it and even without a direction from the High Court, he was supposed to pass an order in terms of Section 9 of the Act." (emphasis supplied) The above view of the Division Bench is similar to the view we have taken in this matter. 13. The judgment rendered in V. Goutham Rao's case (supra), is applicable only in such cases where the nature of suit confom1s to a suit contemplated under Section 8(2) of the Act and not as a straight jacket formula that wherever and whenever a suit is pending, the revenue authorities under the ROR Act cannot exercise their jurisdiction. We also concur with the view taken by the learned Single Judge in the order of reference. The said contentions urged before this Court in the writ petition can as well be raised by the parties before the Collector by way of reply to the show-cause notice instead of coming to the High Court. 14. We are of the opinion that the Act provides a complete mechanism in respect of making entries in the revenue records. The Act contains a prescribed procedure and lays down the powers of the authorities in relation to passing orders and making entries. The provision envisages that whenever an application is filed before the authorities intimating them about the acquisition of rights and seeking amendment of the entries, the authorities have to put all such persons to notice, whose names are entered in the record of rights, who are interested and who are going to be affected by the amendment. When a person receives a show-cause notice from the authorities, it is incumbent upon him to appear before the authorities and by way of a reply, submit before the authorities all relevant facts including pendency of civil suit, if any. But he cannot straightaway approach this Court under Article 226 of the Constitution of India and seek a writ of mandamus. But he cannot straightaway approach this Court under Article 226 of the Constitution of India and seek a writ of mandamus. In such cases, this Court should refrain from exercising the extraordinary jurisdiction under Article 226 of the Constitution of India. 15. Hence, we deem it appropriate to clarify the judgment of the learned Single Judge of this Court in V. Goutham Rao's case (supra), to the extent that, when a show-cause notice is issued by a competent authority, just because a civil suit is pending, ipso facto, it will not entitle a party to approach the High Court under Article 226 of the Constitution in view of the law laid down in V. Goutham Rao's case (supra), but the party has to approach the authority by way of a reply and should bring all the relevant facts to the notice of the authority otherwise, the purpose of the Act itself would be frustrated, which is enacted for effective implementation of entries in Record of Rights. 16. Insofar as the present case is concerned, the relief sought for in the suit was for declaration of title and perpetual injunction relating to 30 guntas in Sy.No.515/2 as per Para 3 of petitioner's affidavit. Therefore, the suit in question in the present case would not attract the provisions of Section 8(2) of the Act as the said revision petition relates to Sy.No.515/1. Consequently, the ratio in V. Goutham Rao's case (supra), would not apply to the facts and circumstances of the present case. 17. The challenge is to the notice, issued under the revisional jurisdiction of the Collector/Joint Collector, calling upon the petitioner to submit his objections, if any, and therefore, it cannot be said to be without jurisdiction, nor the revision preferred by 2nd respondent can be said to be barred by any law. On the facts and circumstances of the case, however, it is open for the petitioner to submit her objections based upon the plea of the 2nd respondent said to have been raised in the civil suit and raise all appropriate contentions in her defence before the said revisional authority. It is therefore open for the revisional authority to take into consideration the respective pleas of 2nd respondent and the petitioner and any other party to the said revision and pass appropriate orders in the revision petition in accordance with law. 18. It is therefore open for the revisional authority to take into consideration the respective pleas of 2nd respondent and the petitioner and any other party to the said revision and pass appropriate orders in the revision petition in accordance with law. 18. The reference by the learned Single Judge is accordingly answered to the extent indicated above.