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2013 DIGILAW 717 (AP)

Koppoli Ramana Reddy v. District Collector, Nellore, Sri Potti Sriramulu Nellore District

2013-09-02

C.V.NAGARJUNA REDDY

body2013
Judgment : 1. This writ petition is filed for a mandamus to declare the action of respondent No.1 in not considering the petitioner’s representation to enquire into the fake assignment of house plot bearing No.61, Block-A, covered by Survey No.2051, in favour of one Pilliadugula Subramanyam, under BSO-15(18) of the A.P. Board of Revenue Standing Orders (for short ‘the BSO’) as illegal. The petitioner sought for a consequential direction to respondent No.1 to consider the petitioner’s representation and hold an enquiry. 2. The petitioner pleaded that a house plot comprised in Survey Nos.2043, 2044 and 2051 of Police Colony was allotted in favour of one Syed Fakruddin on payment of market value on 14.08.1969. The petitioner purchased the said plot through a registered sale deed, dated 19.08.2009, from the wife of the original assignee. When Respondent No.5 and his wife sought to interfere with the petitioner’s possession, he has filed O.S.No.279 of 2010 in the Court of the learned III Additional Junior Civil Judge, Nellore. By judgment and decree, dated 25.08.2010, the suit was decreed ex parte in favour of the petitioner. Respondent No.5 claimed that his father Siva Kumar was assigned house site patta, and that after his death, he succeeded to the said property through a will. It is the further case of the petitioner that respondent No.5 has sold the property to respondent No.6. When respondent No.6 sought to interfere with the petitioner’s possession of the property by claiming the property through fake patta stated to have been granted to the father of respondent No.5, the petitioner made the above-mentioned representation to respondent No.1 to hold an enquiry. As no enquiry has been held by respondent No.5, the petitioner filed this writ petition. 3. The premise on which this writ petition is filed is that respondent No.1 is under obligation to hold an enquiry under BSO-15(18)(1) and decide as to whether any patta was granted to the father of respondent No.5. Since the petitioner’s case hinges on this provision, it is necessary to consider relevant provisions of the BSO. Paras 15 and 18 (1) of BSO-15 are re-produced hereunder: “15. Since the petitioner’s case hinges on this provision, it is necessary to consider relevant provisions of the BSO. Paras 15 and 18 (1) of BSO-15 are re-produced hereunder: “15. Appeals”:- From every original decision in darkhast cases whether it is passed by the Tahsildar, the Divisional Officer, or the Collector, one appeal shall be allowed, provided that it be made within 30 days of the date on which the original decision was pronounced or communicated if the appeal is from the Tahsildar to the Divisional Officer or from the Divisional Officer to the Collector, and within 40 days if it be from the Collector to the Board. In computing the period of limitation, the day on which the decision appealed against was pronounced or communicated and the time requisite for obtaining a copy of that decision shall be excluded. On all copies issued shall be entered the date of the decision or communication, the date of the application for copy, the date on which the copy was ready for delivery and the date on which the appeal time expires. Any person interested in the matter may appeal. All appeals in darkhast cases should be stamped with a court fee label to the value of 5 rupees. 18. Revision:- (1) : The order of the authority making the assignment, if no appeal is presented, or of the appellate authority, if an appeal is disposed of is final and no second appeal shall be admitted. But if, at any time after the passing of the original or appellate decision, the collector is satisfied that there has been a material irregularity in the procedure or that the decision was grossly inequitable or that it exceeded the powers of the officer who passed it or that it was passed under a mistake of fact or owing to fraud or misrepresentation he may set aside, cancel or in any way modify the decision passed by an officer sub-ordinate to him. No order should be reversed or modified adversely to the respondent without giving the respondent a notice to show cause against the action proposed to be taken adversely to him.” From the reading of the above re-produced provisions, it is evident that BSO 15(15) provides for appeals from every original decision in darkhast cases. No order should be reversed or modified adversely to the respondent without giving the respondent a notice to show cause against the action proposed to be taken adversely to him.” From the reading of the above re-produced provisions, it is evident that BSO 15(15) provides for appeals from every original decision in darkhast cases. If the original decision is taken by the Tahsildar, appeal lies to the Divisional Officer and if the decision is taken by the Divisional Officer, appeal lies to the Collector. Under BSO 15(18), the order of the authority making the assignment is final, if no appeal is presented and if an appeal is filed, the order passed in such appeal is final. However, the Collector is conferred with the power of revision to examine whether the original or appeal; decisions suffer from material irregularity in the procedure or that the decision was grossly inequitable or the order is passed in excess of the power of the officer who passed it or the order passed or decision taken under a mistake of fact or misrepresentation, and in exercise of such revisional jurisdiction, the Collector is empowered to set aside or in any way modify the decision. 4. From the analysis of the revisional power under para-18 of BSO-15, it is clear that the sine qua non for exercise of revisional jurisdiction by the Collector is existence of an order made by either the primary or the appellate authority. It is the pleaded case of the petitioner that at no point of time, any order was passed in favour of the father of respondent No.5 granting assignment of the land in question. In the absence of any order granting assignment as alleged by the petitioner, the question of the petitioner invoking the provisions of para-18 of BSO-15 does not arise. In the absence of any order granting assignment as alleged by the petitioner, the question of the petitioner invoking the provisions of para-18 of BSO-15 does not arise. The petitioner, therefore, cannot insist on respondent No.1 to hold a roving enquiry and render a finding as to whether at any point of time, patta was granted in favour of the father of respondent No.5.If the petitioner claims to be the owner of the property under registered sale deed stated to have been executed by the wife of the original assignee and if respondent Nos.5 and 6 have been illegally interfering with the petitioner’s right to enjoy the said property, the appropriate remedy for the petitioner lies in filing a suit claiming suitable reliefs against respondent Nos.5 and 6. If the petitioner so wishes, he can implead the revenue officials as the defendants to the suit and seek summoning them as witnesses or calling for the revenue record to establish his case. 5. In view of the above facts and circumstances of the case, the writ petition is wholly misconceived and the same is accordingly dismissed with liberty to the petitioner to avail common law remedy as observed hereinbefore. 6. As a sequel to dismissal of the writ petition, W.P.M.P.No.31434 of 2013 shall stand disposed of as infructuous.