Research › Search › Judgment

Andhra High Court · body

2023 DIGILAW 1553 (AP)

Dokari Ramulu S/o Late Suryudu v. Maharaja Alak Narayan Society of Arts and Sciences (Mansas Trust)

2023-12-12

U.DURGA PRASAD RAO, VENKATA JYOTHIRMAI

body2023
JUDGMENT : U. DURGA PRASAD RAO, J. 1. The challenge in this appeal at the instance of Respondents 17, 21, 24 and 25 is to the order dated 21.04.2023 in the writ petition No. 10161/2023 passed by learned single Judge disposing of the writ petition with an observation that since there is an effective alternative remedy the petitioner can canvas its case by preferring an appeal before the 4th respondent within four (4) weeks from the date of receipt of the order, in which case the appellate authority/4th respondent shall consider and dispose of the appeal strictly in accordance with law within a period of four (4) months thereafter. 2. It should be noted the writ petition No. 10161/2023 is filed by the 1st respondent herein on the plea that the writ petitioner is a trust notified U/s 6 of of Andhra Pradesh Charitable and Hindu Religious Institutions and Endowments Act, 1987 (A.P. Endowments Act, 1987) and several properties were assigned to the petitioner Trust under a Trust Deed and an extent of Ac.65.37 cents in T.D. No. 1251 in different survey numbers of Pandranki village was donated to the petitioner Trust and the petitioner trust has been enjoying those properties and while the petitioner trust being the owner of the schedule property, the M.R.O, Padmanabham/3rd respondent issued pattadar passbooks and title deeds to unofficial respondents in the writ petition in respect of the properties owned by the writ petitioner in the year 2016 without issuing any notice to the petitioner trust. The unofficial respondents claimed title over the subject properties by virtue of the alleged Form-II decision said to be made by the Special Deputy Tahsildar (Inams), Visakhapatnam U/s 3(3) of A.P (Andhra Area) Inams (Abolition and Conversion into Ryotwari) Act, 1956 (for short “Inams Abolition Act). Such granting of pattadar passbooks and title deeds in their favour is illegal and unjust. Therefore, challenging the action of the 3rd respondent in issuing pattadar passbooks and title deeds to unofficial respondents, the petitioner trust preferred revision bearing R.P No. 47 of 2017 U/s 9 of A.P. Rights in Land and Pattadar Passbooks Act, 1971 (for short “Act 1971”) before the Joint Collector, Visakhapatnam/3rd respondent. Therefore, challenging the action of the 3rd respondent in issuing pattadar passbooks and title deeds to unofficial respondents, the petitioner trust preferred revision bearing R.P No. 47 of 2017 U/s 9 of A.P. Rights in Land and Pattadar Passbooks Act, 1971 (for short “Act 1971”) before the Joint Collector, Visakhapatnam/3rd respondent. The 3rd respondent dismissed the revision petition by making an observation that the petitioner trust ought to have filed appeal before RDO-cum- appellate authority, Visakhapatnam U/s 5(5) of the Act, 1971: (a) Aggrieved by the Joint Collector’s order, the writ petitioner (b) filed W.P.No. 10161/2023 seeking to quash the impugned order on the ground that the said order is arbitrary, illegal and violative of Memo No. 482291/Endts.II/2017 dated 08.02.2017 issued by 1st respondent under Sections 43 and 46 of the A.P. Endowments Act, 1987 and consequently direct the respondents to issue Pattadar Passbook and Title Deeds in favour of the petitioner Trust. During the admission of writ petition, the petitioner Trust argued that the Joint Collector while directing the petitioner Trust to approach the Appellate Authority, made certain observations in its order touching the merits of the case causing detriment to the case of petitioner and therefore, even if the petitioner avails remedy of the appeal, due to those observations in the impugned order, he may not succeed before the Appellate Authority and his rights will be prejudiced. Whereas, the learned AGP argued that the petitioner Trust has an alternative efficacious remedy of appeal and he can avail the same. (b) Considering the submissions of both sides, learned single Judge having felt that there was no requirement of issuing notice to the unofficial respondents, passed order in the writ petition that in view of the availability of the efficacious alternative remedy, the petitioner can canvass its case in the appeal before 4th respondent within a period of four weeks from the date of the order. Learned single Judge directed that upon hearing the petitioner Trust and unofficial respondents 5 to 25, the Appellate Authority/4th respondent shall consider and dispose of the appeal strictly in accordance with law within period of four months on merits without reference to any of the observations made by the Joint Collector/3rd respondent in the impugned order. Learned single Judge directed that upon hearing the petitioner Trust and unofficial respondents 5 to 25, the Appellate Authority/4th respondent shall consider and dispose of the appeal strictly in accordance with law within period of four months on merits without reference to any of the observations made by the Joint Collector/3rd respondent in the impugned order. (c) Aggrieved by the above order of learned single Judge, the instant intra-court appeal is filed by the respondents 17, 21, 24 and 25 under clause 15 of the Letters Patent. 3. Heard learned Senior Counsel Sri O. Manohar Reddy representing Sri Nagendra Babu Paragati, learned counsel for the appellants/respondents 17, 21, 24 and 25 and Sri Doddala Yathindra Dev, learned counsel for respondent No. 1 and learned Government Pleader for Revenue representing respondents 2 to 5. 4. Learned Senior Counsel Sri O.Manohar Reddy while severely fulminating the impugned order argued that the learned single Judge committed an error in disposing of the writ petition at the admission stage without affording notice to the unofficial respondents. Learned Senior Counsel argued that the Joint Collector after hearing both parties and taking into consideration the factual and legal aspects observed that the claim over the subject lands for the unofficial respondents in the present writ petition was flowed under the provisions of the Inams Abolition Act and after the long lapse of 57 years, the petitioner Trust filed the revision petition questioning the Pattadar Passbooks and Title Deeds issued in favour of the unofficial respondents without challenging the decision issued in Form 2 by the Special Deputy Tahsildar (Inams), Visakhapatnam. Learned Senior Counsel would submit that the Joint Collector rightly observed that without challenging the decision in Form II issued under Section 3(5) of the Inams Abolition Act, the petitioner Trust cannot claim title over the subject lands under the provisions of the Act, 1971, as the mutation entries are only maintained for record purpose: (a) Learned Senior Counsel would further submit that having observed as above the Joint Collector held that there was no need to interfere with the action of the Tahsildar, Padmanabhapuram in issuing PPBs & TDs to the unofficial respondents. However, at the fag end of the revisional order, the Joint Collector observed that the petitioner Trust can file an appeal under Section 5(5) of the Act, 1971 before the R.D.O and without doing so the revision was filed before the Joint Collector, Visakhapatnam and accordingly dismissed revision petition. (b) Referring to the above observations and findings of the Joint Collector, learned Senior Counsel argued that the Joint Collector’s order was perfectly right to the extent of making an observation that the rights of the unofficial respondents were stemmed from the provisions of the Inams Abolition Act. His order was also correct in dismissing the revision petition. However, having decided the rights of both parties in judicial manner, he ought not to have directed the petitioner Trust to avail the opportunity of appeal under Section 5(5) of the Act, 1971 for the reason that no appeal is maintainable under Section 5(5) of the Act, 1971 as against the issuance of Pattadar Passbook and Title Deeds. Therefore, except that observation the remaining part of the order of the Joint Collector is unassailable. Learned counsel further argued that the learned single Judge ought to have considered these facts and dismissed the writ petition in limini or atleast ordered notice to the unofficial respondents so as to present their case. Without doing so, unfortunately the writ petition was disposed of at the admission stage and thereby the rights of the appellants are seriously prejudiced. He thus prayed to allow the appeal. 5. Per contra, learned counsel for respondent Sri Doddala Yathindra Dev while supporting the order of the 3rd respondent argued that since the Joint Collector as well as learned single Judge have held that the petitioner trust can avail the alternative remedy of appeal, the petitioner has filed the appeal and the same is pending. He further submitted that learned single Judge has rightly observed that the appellate authority shall dispose of the appeal without reference to the observations made in the revision order. He thus prayed to dismiss the writ appeal. 6. The point for consideration is whether there are merits in the appeal to allow ? 7. POINT: We gave our punctilious consideration to the above respective arguments of both the learned counsel and the relevant legal position. He thus prayed to dismiss the writ appeal. 6. The point for consideration is whether there are merits in the appeal to allow ? 7. POINT: We gave our punctilious consideration to the above respective arguments of both the learned counsel and the relevant legal position. In essence, the petitioner trust filed the revision petition U/s 9 of Act, 1971 before the Joint Collector/3rd respondent challenging the issuance of PPBs and TDs to the unofficial respondents and the 3rd respondent having observed that as per Form-II decision of Special Deputy Tahsildar, (Inaams), Visakhapatnam conducted U/s 3(3) of Inaams Abolition Act the subject lands were not held by any institution and the claim of the unofficial respondents herein over the subject lands was flowed under the provisions of Inaams Abolition Act and after a long lapse of 57 years, the petitioner Trust filed the revision without challenging the aforesaid decision of Special Deputy Tahsildar (Inaams) and hence the petitioner cannot claim the title over the subject lands under the provisions of ROR Act as the mutation entries are only maintained for fiscal purposes. The 3rd respondent further observed that the petitioner Trust though had liberty to file appeal U/s 5(5) of Act, 1971 did not do so. Accordingly, he dismissed the revision petition. 8. Here the crucial question is whether an appeal at all is maintainable U/s 5(5) of Act, 1971 against the issuance of PPBs and TDs U/s 6(A) of the said Act. Also further question that would arise is whether a revision U/s 9 of the said Act is maintainable before the Collector/Joint Collector challenging the issuance of PPBs and TDs U/s 6(A). The law is no more res integra, inasmuch as, in Ratnamma vs. The Revenue Divisional Officer, Dharmavaram, 2015 (6) ALD 609 : MANU/AP/0389/2015 the question fell for consideration before a Division Bench of Common High Court of Andhra Pradesh was whether an appeal U/s 5(5) of Act, 1971 was maintainable before the Revenue Divisional Officer against the issuance of PPB/TD U/s 6(A) of the Act. In that context, the Division Bench observed thus: “32. It is well settled that the right of appeal must find its source in legislative authority. The right of appeal accrues to the litigant when it is expressly provided for in the statute and axiomatic that the right of appeal is a substantive right and must be conferred by a statute. In that context, the Division Bench observed thus: “32. It is well settled that the right of appeal must find its source in legislative authority. The right of appeal accrues to the litigant when it is expressly provided for in the statute and axiomatic that the right of appeal is a substantive right and must be conferred by a statute. As already held, appeal is provided for against the original proceedings or substantive determination under Sections 4, 5 and 5-A of the Act. The Legislature in its wisdom and noticing the purpose of issuing PPB/TD did not provide right of appeal against mere issuance of PPB/TD under Section 6-A of the Act. Therefore, on the literal construction of Sections 3 to 6-A of the Act, it can be held that the remedy of appeal under Section 5(5) of the Act is not provided against the issuance of PPB/TD under Section 6-A of the Act. By treating the action under Sections 5 and 6-A of the Act as single or mutually dependent, in our considered view, the remedy of appeal against mere issuance of PPB/TD under Section 6-A of the Act is not available.” With the above observation the Division Bench held that the 3rd respondent therein was at liberty to pursue other available remedies under the Act or common law remedy, if the circumstances so warrant. 9. Needless to emphasize that the above decision applies with all its fours to the case on hand as in the instant case also the petitioner trust challenged the issuance of PPBs/TDs to unofficial respondents in a revision petition filed U/s 9 of Act, 1971 before the 3rd respondent who inter-alia observed that there is an alternative remedy of appeal available to the petitioner trust before the RDO and appellate authority, Visakhapatnam U/s 5(5) of Act, 1971. This observation, in the light of Ratnamma’s (supra 1) case is legally unsustainable. Consequently the observation of learned single Judge confirming the view of 3rd respondent, we are constrained to notice, is incorrect. We are not oblivious of the fact that the petitioner trust at the first instance has not filed appeal U/s 5(5) of the Act, 1971 before the RDO but only filed a revision U/s 9 of the Act, 1971 before the 3rd respondent. We are not oblivious of the fact that the petitioner trust at the first instance has not filed appeal U/s 5(5) of the Act, 1971 before the RDO but only filed a revision U/s 9 of the Act, 1971 before the 3rd respondent. Therefore, a question would arise as to if not the appeal U/s 5(5) whether a revision U/s 9 is maintainable before the Collector/Joint Collector challenging the issuance of PPB/TD U/s 6(A). In this context we perused Section 9 of the Act, 1971. The Section reads thus: “9. Revision: The Collector may either suo motu or on application made to hi, call for and examine the record of any Recording Authority, Mandal Revenue Officer or Revenue Divisional Officer under Section 3, 5, 5A or 5B, 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 reconsideration, 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.” The above section shows that the Collector (Includes Joint Collector, vide Section 2(2) of the Act, 1971) either suo motu or on a revision application made to him, call for and examine the record of any recording authority, MRO or RDO U/s 3, 5, 5A or 5B in respect of any record of rights prepared or maintained by such authority to satisfy himself as to the regularity, correctness, legality or propriety of any decision taken, order passed or proceedings made by aforesaid authority and the Collector may accordingly modify, annul or reverse or remit the matter for reconsideration. It is noteworthy that Section 6(A) under which a MRO can issue PPB/TD is conspicuously absent in Section 9 from which it can be inferred that against the issuance of PPB/TD U/s 6 (A) of the Act, 1971, neither appeal U/s 5(5) nor revision U/s 9 is provided under the Act, 1971. In that view, it must be held that the order dated 15.06.2022 passed by the Joint Collector, Visakhapatnam/3rd respondent is wholly without jurisdiction and is liable to be set aside. In that view, it must be held that the order dated 15.06.2022 passed by the Joint Collector, Visakhapatnam/3rd respondent is wholly without jurisdiction and is liable to be set aside. Needless to affirm that the observations made in the said order are also not legally sustainable. Consequently, the order of learned single Judge confirming the view of the 3rd respondent and directing the petitioner Trust to file appeal before the RDO, Visakhapatnam is not sustainable. 10. Accordingly, the order dated 15.06.2022 of the Joint Collector/3rd respondent and order in W.P.No. 10161/2023 dated 21.04.2023 are hereby set aside with the observation that the writ petitioner Trust shall work out its remedies before a suitable forum. The writ appeal is accordingly disposed of. No costs. 11. As a sequel, interlocutory applications pending, if any, shall stand closed.