it is manifest that the second respondent after considering the material on record, upheld the claim of the fifth respondent, holding that the purchase of the subject assigned land by the petitioner is in contravention of the provisions of Section 3(1) and (2) of the Act and thereby rightly cancelled the pattadar pass book issued in favour of the petitioner.


HONOURABLE SRI JUSTICE ASHUTOSH MOHUNTA

WRIT PETITION No. 9767 of 2012

DATED 14th June,2012



BETWEEN
Smt. Marem Bharathi





                                                          …….Petitioner
and

State of Andhra Pradesh, rep. by Principal Secretary,
Revenue (Assignment) Department, Secretariat, Hyderabad and ors.





                                                          ……Respondents

HONOURABLE SRI JUSTICE ASHUTOSH MOHUNTA

WRIT PETITION No. 9767 of 2012
ORDER:


          The petitioner calls in question the proceedings in D.Dis.(E10) 5703/2011, dated 24.3.2012 issued by the second respondent cancelling the pattadar pass books earlier issued to her in respect of the land admeasuring Ac.1.60 cents in Sy.No. 200/3 and Ac.0.27 cents in Sy.No. 200/5 situated at Chennur village, Gudur Mandal, SPSR Nellore District.

          Briefly stated, the case of the petitioner is that she purchased the subject land under the impression that her vendor was holding title over the property and after knowing that the same is government  land, she made a representation to the respondent authorities for grant of assignment. Considering her representation and verifying her eligibility, the then Tahsildar, Gudur Mandal assigned the subject land in her favour in the year 1999 and issued a pattadar pass book  and title deeds as well by duly mutating her name in the revenue records. Since then, she has been in continuous possession and enjoyment of the subject land.

          While the things stood thus, it is the case of the petitioner that the fifth respondent made a representation to the fourth respondentinter alia claiming the subject property. Therein, he stated that the subject land was originally assigned to his father—Madiri Guravaiah and after his death, he was in possession and enjoyment of the same, that he had leased out the said land to one Marem Srinivasulu as he was not keeping good health; that after expiry of the lease, when he asked the leaseholder to return the land, he informed him (fifth respondent) that he sold out the land to the petitioner. He further stated that as he is the legal heir of the original assignee, he is entitled to the allotment of the subject land. Considering the representation of the fifth respondent, the fourth respondent issued notice dated 13.4.2011 to the petitioner, to which  she submitted her explanation. Later, the matter was referred to the third respondent, who thereafter referred to the second respondent. A notice in Rc.No.E.85703/2011, dated 21.11.2011 was issued to both the parties and after hearing them, the second respondent reserved the matter for orders. The second respondent directed them not to enter into the property till the disposal of the appeal. Aggrieved thereby,  she approached this Court by filing Writ Petition No. 6015 of 2012 and sought for interim direction to permit her to cultivate the subject land and harvest the existing crop. This Court by order dated 7.3.2012 directed both the parties to maintain status quo. In the meanwhile, the second responded passed the order impugned cancelling the pattadar passbooks. Aggrieved by the same, the present Writ Petition is filed. By virtue of the order impugned in this Writ Petition, the earlier Writ Petition No. 6015 of 2012 was disposed of as having become infructuous.

          When the present Writ Petition came up for admission, this Court  directed the respondent authorities not to give effect to the order impugned, till the disposal of the Writ Petition.

          The fifth respondent filed a counter affidavit denying the averments made in the affidavit filed in support of the Writ Petition. It is the case of the fifth respondent that  originally the subject land was assigned to his father—Madiri China Guravaiah in the year 1969; that after his demise in the year 1983, the subject land was devolved upon him; that as he was not keeping good health, he leased out the land to one Marem Sreenivasulu under a lease agreement dated 24.4.1985; that after expiry of the lease on 24.4.1992, the said lessee refused to handover the possession of the subject land and as such he started legal battle for re-delivery of the land and during the pendency of the legal proceedings, the pattadar pass book in respect of the land was issued to the petitioner. It is his further case that after exhausting the legal remedies, he approached the fourth respondent to cancel the pattadar pass book issued to the petitioner. He denied all other averments stated by the petitioner.

          To the said counter affidavit, the petitioner filed reply affidavit stating that the legal heirs of the original assignee sold the subject land through sale deeds dated 20.6.1990 and 30.7.1989 and since then she has been in continuous possession and enjoyment of the same. In the reply affidavit, she admitted that the fifth respondent approached the Civil Court for recovery of possession. She denied all other averments of the fifth respondent, except which are admitted therein.

          Heard the learned Counsel on either side. Perused the record.
         
The learned Counsel for the petitioner mainly argued that as per Section 5(5) of the A.P. Rights in Land and Pattadar Pass Books Act, 1971 ( for short ‘the Act’), the aggrieved person has to approach the Revenue Divisional Officer within 60 days from the date of issuance of the pattadar pass books and in the instant case, the fifth respondent approached  the respondent authority on 30.5.2011 i.e. after lapse of about 13 years. He further submitted that the fifth respondent being very well aware of the issuance of the pattadar passbook in favour of the petitioner in the year 1998, instead of approaching the respondent authorities by way of an appeal within the time stipulated, he is litigating the matter in different fora. In support of his contention, he placed reliance on the judgment of this Court in Thripuravaram Krishna Reddy Vs. Joint Collector {2009 (1) ALD 248}.  The further contention of the learned Counsel for the petitioner is that the second respondent without issuing a prior notice and conducting an enquiry allowed the petition filed by the fifth respondent cancelling the pattadar pass book issued in favour of the petitioner, which is contrary to law and violative of the doctrine of audi alteram parteim.
         
Per contra, the learned Counsel appearing for the fifth respondent almost reiterated the averments made in the counter affidavit. He also made a reference to the provisions of the law governing the field of the subject matter.

          A perusal of the order impugned in the Writ Petition makes it clear that the Revenue Divisional Officer, Gudur seems to have conducted an enquiry in the matter and submitted his report stating that  the subject land was assigned  in favour of Madiri China Guravaiah, the father of the fifth respondent, by the erstwhile Tahsildar, Gudur vide F.Dis.No.246/79; that after the demise of the original assignee, his son Sri Madiri Guruswamy leased out the assigned land in favour of Marem Srinivasulu (brother of the petitioner husband) through an agreement; and that as the lessee refused to re-deliver the possession of the assigned land after expiry of the lease, he filed ATC No.3 of 1992 on the file of the learned Principal Junior Civil Judge, Gudur for recovery of possession of the leased out land; that the said case was dismissed observing that since the subject property is an government assigned land, Civil Court has no jurisdiction to decide the matter under the Tenancy Act. He also reported that the pattadar pass book was issued to the petitioner on 17.02.1999 and her name was entered in the I-B register and Adangal of Chennur village.

          Furthermore a glance at the record discloses that the fifth respondent filed A.T.C.No. 3 of 1992 on the file of the learned Principal Junior Civil Judge, Gudur, against his lessee—Marem Srinivasulu for recovery of the possession of the leased out assigned land, which was dismissed by an order dated 20.7.1994. Aggrieved by the same, the fifth respondent filed an appeal in CMA.No. 49 of 1994 on the file of the learned District Judge, Nellore and the same was allowed by judgment dated 22.02.1999. Questioning the same, the said Marem Srinivasulu, lessee of the fifth respondent, filed two Civil Revision Petitions in C.R.P. Nos. 1339  and 2530 of 1999 before this Court,  and this Court by order dated 6.3.2003 remanded the matter to the learned Junior Civil Judge, Gudur, observing that as per Act 9/77 the lease is null and void and directed the lower Court to consider the matter afresh and pass appropriate orders. Pursuant to the said order, the lower Court  after considering the material on record and hearing both sides, dismissed ATC.No. 3 of 1992 by order dated 8.3.2011 holding that the fifth respondent was a landless poor person as on the date of filing ATC and that the lease of assigned land to the said Marem Srinivasulu is null and void and as such the question of relationship of cultivating tenant and landlord under the Tenancy Act did not arise and that a petition under the Tenancy Act  was not maintainable.

          From the above factual scenario, it is axiomatic that during the pendency of the appeal preferred by the fifth respondent on the file of the learned District Judge, Nellore, the Revenue Divisional Officer, Gudur issued a pattadar pass book to the petitioner in respect of the subject land. After the disposal of the appeal in favour of the fifth respondent, his lessee—Marem Srinivasulu approached this Court through revision petitions against the order of the lower appellate Court. Thus, the legal battle in between them continued till 8.3.2011, when the ATC case filed by the fifth respondent under the Tenancy Act was disposed of. After exhausting the legal remedies before the Courts of law, he approached the respondent authorities for cancellation of the pattadar pass book issued in favour  of the petitioner. Trite to state, as the legal battle was continuing in between the fifth respondent and his lessee—Marem Srinivasulu for recovery of possession of the assigned land, the fifth respondent could not approach the respondent authorities under the provisions of the Act on the ground that recourse to both of the above proceedings simultaneously amounts to exercising parallel proceedings. Though the relief sought for in both the proceedings may be different, ultimately the subject matter of the land remains one and the same.
          At this stage, it is necessary to refer to Section 9 of the Act, which illuminates as follows:
9.Revision: The Collector may either suo motu or on 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 reconsideration, he may pass orders accordingly.”

          A careful look at the above provision makes it manifest that the Collector  has got revisonal powers suo motu or on an application made to call for and examine any record of rights prepared under Sections, 3, 5, 5-A or 5-B  of the Act or any order passed or proceedings initiated by the recording authority or by a Mandal Revneue Officer or a Revenue Divisional Officer and pass orders thereon. Though, neither the Rules made under the  Act nor the aforesaid provision prescribes any time limit for exercise of the revisional powers,  it is expedient to notice that where the legislature does not provide for any length of time within which the powers of revison are to be exercised  by the authority suo motu or otherwise, it is legitimate that exercise of such powers should be within a reasonable time which is inherent therein.  In the instant case, it is the case of the petitioner that the fifth respondent has approached the respondent authorities on 30.5.2011 i.e. nearly after lapse of thirteen years from the date of issuance of pattadar pass book, i.e. on 17.2.1998. In view of the factual matrix narrated in the preceding paragraphs and the reason set forth thereunder, and  also in view of the specific language employed  in Section 9 of the Act extracted hereinabove, the second respondent took up the application of the fifth respondent on his file as suo moturevision and adjudicated the same in accordance with law and as such,  it cannot be said that the consideration of the application of the fifth respondent by the second respondent  is illegal and arbitrary. As the fifth respondent was taking recourse before the Civil Court, he could not proceed under the provisions of the Act. Further it is clear from the impugned order that the petitioner seems to have not raised the aforesaid ground of limitation before the revisonal/appellate authority-second respondent. Having failed to do so, the petitioner cannot now be permitted to raise such ground in this petition under Article 226 of the Constitution of India.

          In the judgment relied on by the learned Counsel for the petitioner in Thripuravaram Krishna Reddy Vs. Joint Collector (supra), the fourth respondent therein  neither filed the petition in the form of appeal affixing the required stamp nor was filed in time and further that no application for condonation of delay was claimed to be filed nor second respondent-RDO passed in any order condoning the delay before entertaining and adjudicating the appeal on merits. As such,  it was held that second respondent-RDO ought not to have therefore entertained the petition filed by fourth respondent therein and treated it as an appeal. Thus considering the facts and circumstances of the case therein, it was held therein that the fourth respondent could not file a statutory appeal under Section 5(5) of the Act within the time limit, or a civil suit under Section 8(2) of the Act before the competent Civil Court; As he did not take recourse to either of the two remedies,  it is beyond the jurisdiction of respondent No.2--RDO to entertain the petition, for the reason that he had no power akin to the power vested in respondent No. 1—District Collector under Section 9 of the Act. The facts in the case on hand are entirely different from the facts of the case relied on by the learned Counsel for the petitioner, and as such, the said decision has no application to the case on hand.

          Apropos the contention of the learned Counsel for the petitioner that the disposal of the petition filed by the fifth respondent without issuing prior notice and conducting an enquiry is contrary to law and violative of principles of natural justice, it is to be seen that in the affidavit filed in support of the Writ Petition itself the petitioner stated that pursuant to the notice issued by the second respondent, he appeared before him on 26.11.2011, 29.11.2011 and lastly on 8.12.2011 on which date,  after hearing both sides, the second respondent reserved the case for orders. Thus, the said contention of the learned Counsel for the petitioner cannot be countenanced.
         

          For the foregoing discussion, 
it is manifest that the second respondent after considering the material on record, upheld the claim of the fifth respondent, holding that the purchase of the subject assigned land by the petitioner is in contravention of  the provisions of Section 3(1) and (2) of the Act and thereby rightly cancelled the pattadar pass book  issued in favour of the petitioner.

          Viewed from any angle, I see no reason, much less a valid reason in this Writ Petition to interfere with the impugned order.

          The Writ Petition is accordingly dismissed. The miscellaneous petitions stands disposed of as infructuous in consequence. There shall be no order as to costs.


---------------------------------------------

JUSTICE ASHUTOSH MOHUNTA


Dated  14th June, 2012.
Msnro

Comments

Popular posts from this blog

Article 54 of the Limitation Act, 1963 (36 of 1963) reads as follows: “For Specific performance of a contract: Three years The date fixed for the performance, or, if no such date is fixed, when the plaintiff has notice that performance is refused.”= the apex Court in Ahmmadsahb Abdul Mila vs. Bibijan[1], wherein it was held that the date fixed for the performance of the contract should be a specified date in the calendar, and submitted that since no specified date in the calendar for performance of the contract is mentioned in the agreement of sale, the second limb of Article 54 of the Limitation Act is applicable. ; whether the suit is barred by limitation or not becomes a tribal issue and when there is a tribal issue, the lower Court ought not to have rejected the plaint at the threshold. In view of the same, order, dated 27-01-2012, in CFR.No.90 of 2012, passed by the Additional Senior Civil Judge, Ongole, (FAC) Senior Civil Judge, Darsi, is, hereby, set aside. The Appeal is allowed accordingly.

Or.18, rule 17 and sec.151 C.P.C - petition filed for reopen and examination of the executant of Ex.A1 the sale deed to fill up the lacuna in evidence pointed out at the time of arguments not maintainable = Shaik Gousiya Begum. ..Petitioner Shaik Hussan and others.... Respondents = Published in http://judis.nic.in/judis_andhra/qrydisp.aspx?filename=10515

Order 39 Rules 1 and 2 CPC. plaintiff has to prove his title and possession how he came into possession prima faice , in the absence of the same, not entitled for interim injunction = The questions as to whether the lease deed was properly stamped and whether the stamp paper on which it was typed can be said to have been procured through proper source, need to be dealt with at the stage of trial.; The suit filed by the 1st respondent, is the one for injunction simplicitor in respect of an item of immovable property. He has also filed an application under Order 39 Rules 1 and 2 CPC. Basically, it was for the 1st respondent to establish that he is in possession and enjoyment of the property and that he derived the same through lawful means, particularly when he did not contend that he encroached upon the property.= assumptions of facts against to the contents of crucial third party by misreading the same- it is just un-understandable as to how the trial Court gathered the impression that Anuradha stated that there was a meeting of Board of Directors, where it was decided to lease the property to the appellants. - the trial Court itself was not clear as to whether the appellant is the lessee or a Manager or is working under any other arrangement. - The important findings that have a bearing upon the valuable rights of the parties cannot be based upon such uncertain and unverified facts. One of the cardinal principles in the matter of examining the applications filed under Order 39 Rules 1 and 2 CPC is that a party claiming that relief must come to the Court with clean hands. Prima facie, we find that there are no bona fides, much less consistency on the part of the 1st respondent, in his effort to get the order of temporary injunction. The trial Court has misread the evidence and misinterpreted the facts borne out by the record.