THE HONOURABLE SRI JUSTICE B.SESHASAYANA REDDY W.P.No. 21880 OF 2005 February, 2006 Between: Lawadiya Balram and Others …Petitioners A N D Mandal Revenue Officer, Kothur Mandal and Others …Respondents THE HONOURABLE SRI JUSTICE B.SESHASAYANA REDDY W.P.No. 21880 OF 2005 O R D E R : 1. Petitioners who are 23 in number filed this writ petition with a prayer to issue a writ of mandamus or any other appropriate writ declaring the action of Mandal Revenue Officer, Kothur Mandal, Mahabubnagar District-1st respondent contained in File No. A/468/2005, dated 18-07-2005 purporting to cancel the Pattadar Pass Books and Title Deeds of the petitioners in respect of the lands in Sy.Nos. 287,293,295,296,307,309 and 325, totally admeasuring about Ac.67-00 of Immulnarva village, Kothur Mandal, Mahabubnagar District is arbitrary and illegal. Consequential declaration has also been sought for with regard to order passed by the Revenue Divisional Officer, Mahabubnagar-2nd respondent in proceeding No. B/3145/92, dated 31-10-1993 and order of the Mandal Revenue Officer, Kothur-1st respondent in File No.A/420/94, dated 22-6-1994 as illegal. 2. The facts of the case leading to filing to this writ petition in brief are:- Ganga Bai-4th respondent was the pattadar of Ac.67-00 comprising Survey Nos. 287,293,295,296,307,309 and 325 of Immulnarva village, Kothur Mandal, Mahabubnagar District. The said lands have been in possession and enjoyment of the petitioners and their fore fathers for more than fifty years. The pattadar-4th respondent executed simple sale deeds in respect of the said lands. The petitioners applied for regularization of alienations under Section 5-A of A.P. Rights in Lands and Pattadar Pass Books Act, 1979 ( hereinafter referred to “as Act, 1971”). The Mandal Revenue Officer, Kothur Mandal-1st respondent considered the applications of the petitioners and granted Pattadar Pass Books and Title Deeds in their favour vide File No. A/1265,1266,1267,1268,1269 of 1991 and A/1173 and 1174 of 1989. The names of the petitioners have been entered in Revenue Records as pattadars and possessors of the said lands. The petitioners are lambadas (Scheduled Tribe) and they are cultivating the lands by raising crops such as Paddy, Jawar, Maize and vegetables. The proceedings dated 18-7-2005 issued by the Mandal Revenue Officer, Kothur Mandal, Mahabubnagar District-1st respondent came to be served on them on 30-9-2005 whereby and where under they have been asked to submit their Pattadar Pass Books and Title Deeds. The proceedings dated 18-7-2005 issued by the 1st respondent read as follows: “As per the reference 1st cited, it is to inform that in the village Inmulnarava village sy.Nos. 287,293,295,296,307,309 and 325 Extent Ac. 74-22 Sri Ramdasu Sevya and others has been declared as pattadars as per the Sec. 5A of the Act. Smt. Ganga Bai has obtained an order from the Revenue Divisional Officer, Mahabubnagar to enquiry into the matter. As per the reference 2nd cited, the case of Gangai Bai has to reconsider. It is submitted that the persons pattadars has obtained pattadar pass books by misrepresenting the facts. Hence, the persons referred above has directed to submit their pattadar pass books, title deeds etc., to the office. Hence action will be taken again”. 3. According to the petitioners, they came to know that as against the orders of Regularization of alienations passed in their favour in the years 1989-91, Ganga Bai-4th respondent filed an appeal before the Revenue Divisional Officer, Mahabubnagar in the year 1992 and said appeal came to be allowed on 31-10-1993 by remitting back the matter to the Mandal Revenue Officer-1st respondent and, on remand, orders were passed on 22-6-1994 setting aside the regularization of alienations made in the years 1989-91 and that the 4th respondent submitted representation dated 22-4-2005 for implementation of the orders of the 1st respondent and thus the 1st respondent proceeded to cancel Pattadar Pass Books and Title Deeds issued in favour of the petitioners. It is the specific assertion of the petitioners that the 2nd respondent was not competent to entertain the appeal presented by the 4th respondent against the orders of the 1st respondent and thus the order of the 2nd respondent on appeal petition presented by Ganga Bai-4th respondent is a nullity. For better appreciation, the relevant portion of the affidavit filed in support of the writ petition needs to be noted and it is thus:- “I submit that we are totally unaware of any proceedings as against the orders of regularization that were passed in our favour in the year 1989 and 1991. For the first time, from the impugned letter dated 18-07-2005, which is served on us on 30-09-2005, we came to know that the 4th respondent has carried the matter in appeal to the 2nd respondent and the 2nd has remanded the matter to the 1st respondent and on remand, the 2nd respondent has passed the alleged orders dated 22- 06-1994 setting aside the regularization that was granted in our favour. It is relevant to submit here that the appellate remedy before the Revenue Divisional Officer u/S 5-B of the Act was introduced only with effect from 30-10-1993 and at the time when the alleged appeal was filed by the 4th respondent before the 2nd respondent, she had no appellate jurisdiction to decide on the subject of regularization as per the Division Bench Judgment of this Hon’ble Court reported in 2003 ALT (Revenue) 267. At any rate, we were never served with any notice about the said appeal filed by the 4th respondent and, therefore, we were totally in dark about the alleged appeal or about the alleged appellate order. Likewise, the 1st respondent did not issue any notice to us about the de nova enquiry said to have been made pursuant to the alleged appellate order. Thus, the alleged appellate order dated 31-10-1993 and the alleged order of the 1st respondent dated 22-06-1994 on remand as per the alleged appellate orders are both without any notice to us. The very fact that no steps are taken by the revenue authorities ever since 1994 till the date of issue of the impugned letter is a clear indication that there were no such orders affecting our rights. It is equally strange that the 4th respondent has kept quite for more than 10 years as regards the alleged implementation of the alleged order of the 1st respondent dated 22-06-1994. We have reliable information that the 1st respondent is acting at the behest of the 4th respondent and there is an imminent threat to our possession from the subject lands. As already stated, we are dependent on the agricultural income and we have constructed houses in the subject lands and we have been residing there for the last several decades. As already stated, the alleged appellate order dated 31-10-1993 itself is without jurisdiction and hence alternatively it is submitted that the alleged order of the 1st respondent dated 22-06-1994 is equally non-est in the eye of law. Since our possession and enjoyment of the land is at stake and there is a concerted action of attempted dispossession against us, we are constrained to file the present Writ Petition. It is submitted that the 1st respondent does not have any power or jurisdiction to direct us to surrender our Pattadar Pass Books and Title Deeds”. 4. 1st and 4th respondent filed counter affidavits One M. Rangachari has sworn to the counter affidavit filed on behalf of the 1st respondent. It is stated in the counter affidavit that the 4th respondent preferred an appeal before the Revenue Divisional Officer, Mahabubnagar, against the orders of regularization of the alienations and thereupon the Revenue Divisional Officer, Mahabubnagar allowed the appeal setting aside the order of the Recording Authority-Mandal Revenue Officer and remanding the matter back to the recording authority-Mandal Revenue Officer for denovo enquiry. It is further stated that the Mandal Revenue Officer, Kothur conducted denovo enquiry and passed orders on 22-6-1994 holding that the sale documents are not genuine. The petitioners were served with notice on 13-4-1994 with regard to denovo enquiry. Subsequent proceedings before the original authority indicate that the petitioners have knowledge of the denovo enquiry. The orders passed by the appellate authority is further revisable under Section 9 of the Act, 1971 and it is open to the petitioners to file statutory revision before the Joint Collector assailing the order of the appellate authority. The petitioners having not filed an appeal or revision under the Act, 1971 cannot be permitted to challenge the proceedings after lapse of ten years by invoking extra ordinary jurisdiction of this Court under Article 226 of the Constitution of India. 5. Counter affidavit of 4th respondent in brief is as follows: - The petitioners created the alleged unregistered sale deeds by forging her signature and got validated without any notice to her, as such, the very regularization proceedings in File No. A/1265 to 1269 of 1991 and A/1173 and 1174 of 1989 granting mutation and issuing Pattadar Pass Books in the year 1992 are the outcome of the fraud played by the petitioners. She preferred an appeal before the Revenue Divisional Officer, Mahabubnagar in File No.B/3145/92 challenging the regularization of the alienations and mutation of patta in the name of the petitioners. In the said appeal notices were served on the petitioners as well as ancesters of some of the petitioners who were also parties therein. In spite of service of notices, the petitioners did not choose to contest the appeal. The appellate authority, on considering the material on record, set aside the orders of the Mandal Revenue Officer and remanded the matter back to Mandal Revenue Officer to conduct denovo enquiry. On remand, notices were duly served on petitioners 1 to 4, husband of the petitioner No.5, petitioners 11 to 15 and father of the petitioners 6 to 9 and husband of the petitioners No.10 and father of the petitioners 17,19 to 23 and one person by name Ramulu on 22-4-1994. In pursuance of the said notice, the petitioners appeared before the Mandal Revenue Officer, Kothur and participated in the denovo enquiry proceedings. The petitioners failed to prove their documents i.e. sale deeds and therefore, the Mandal Revenue Officer came to the conclusion that the petitioners earlier obtained orders of regularization of alienations by producing forged documents. Para 5 of the counter affidavit needs to be noted and it is thus; “I submit that the petitioners herein were served with notices in the denovo enquiry before the Mandal Revenue Officer, Kothur in Case No. A/420/94 and they have participated in the said enquiry but failed to prove the execution of alleged unregistered sale deeds and the Mandal Revenue Officer also gave a finding that the petitioners herein have forged the document and mislead then M.R.O. and got done the validation of the alleged documents. In the Writ Affidavit, the Petitioners have stated that they are totally unaware of the appeal proceedings before the R.D.O. and also the proceedings in the denovo enquiry conducted by the M.R.O. and for the first time they came to know about the same through the impugned letter, which is totally a false statement. I have obtained the certified copies of the notices issued by the M.R.O. and also the served copies of the notices etc., and I am filing the said documents along with this Counter affidavit for kind perusal of this Hon’ble Court, which proves that the petitioners were served with notices. The petitioners have made a false statement and suppressed the above mentioned facts and the petitioners did not approach this Hon’ble Court with clean hands. As such the Petitioners are not entitled to any relief, much less the discretionary relief Under Article 226 of the Constitution of India” 6. It is further stated in the counter affidavit that she has sold the subject lands to Sri R.Narsimha Reddy and Sri N.Raghavender under Registered Sale Deed No.7327/2005, dated 10-08-2005 and delivered the possession of the same to the purchasers. 7. Heard Sri Vedula Venkata Ramana, learned counsel appearing for the petitioners and learned Government Pleader for Revenue appearing for Respondents 1 to 3 and Sri D. Prakash Reddy, learned Senior Counsel appearing for Respondent No.4. 8. Learned counsel for the petitioners submits that the impugned order dated 31-10- 1993 of the 2nd respondent is totally without jurisdiction. The learned counsel further contends that Section 5-A of R.O.R. Act was introduced into the Act by A.P. Act 1 of 1989 and the Amendment Act 1 of 1989 did not provide for any appeal or revision against the order of the Mandal Revenue Officer under Section5-A of the R.O.R. Act. The order under Section 5-A by the statutory authority was final, since no appeal or revision has been provided and as Section 5-B was introduced into the Act by A.P. Act of 1994 with effect from 31st October, 1993. The same Amendment Act 1994 has further amended Section 9 of the Act providing revisional remedy even against the order passed by the Mandal Revenue Officer. It is submitted that the remedy of the appeal was not available against the order passed by the Mandal Revenue Officer under Section 5-A of the R.O.R. Act before 31st October,1993. It is contended that as on the date of order passed by the Mandal Revenue Officer under Section 5-A of the R.O.R. Act, there was no right of appeal provided against the order passed by Mandal Revenue Officer and it became final. The sum and substance of the submission is that as on the date of commencement of the litigation between the parties, there was no right of appeal and the right of appeal as provided under Section 5-B of R.O.R. Act with effect from 31st October, 1993 is of no consequences so far as the appeal filed by the 4th respondent-Smt. Ganga Bai. A further submission has been made that entertaining the appeal under Section 5(5) of Pattadar Pass Books Act, 1971 against the order passed by the Mandal Revenue Officer for validating alienations is impermissible and without jurisdiction and therefore, the order passed by the Revenue Divisional Officer on the said appeal is a nullity. In support of his submissions reliance has been placed on the decision in M.B.Ratnam Vs. Revenue Divisinal Officer, R.R. District, Dhurandhar Prasad Singh Vs. Jai Prakash University, Rafique Bibi Vs. Sayed Waliuddin, Ram Chand Vs. Union of India and Sanjay Kumar Vs. State of Bihar. 9. In the first cited decision, a Division Bench of this Court held that Section 5-A of the R.O.R. Act is a special and composite provision, which provides for regularization of alienation or other transfers of land under unregistered instruments. Its area of operation is totally different from that of the area of operation of Section 5 of the R.O.R.Act, which essentially deals with amendment and updating of record of rights on the strength of acquisition of any right referred to in Section 4 of the R.O.R. Act. Making of an entry in the pass book on the strength of the certificate issued under Section 5-A (4) cannot be equated to that of amendment and updating of Record of Rights as provided for under Section 5(1) of the R.O.R. Act. An appeal under Section 5(5) is provided only as against making amendment or refusing to make amendment in the record of rights under Section 5(1) of the Act. Therefore, no appeal as against a consequential decision of the recording authority under sub- section (5) of Section 5-A is provided for under sub section (5) of Section 5, which in turn provides for an appeal against the act of amending and updating of record of rights. It is also observed by the Division Bench in para 80 and 81 of the judgment as follows: “80. The law is thus very clear that even a void order continues in de facto operation and the same can be ignored by an aggrieved person at his own risk and peril. Even such void orders continue to hold the field and have the effect in law like all other lawful orders until the same is set aside in a properly instituted proceedings at the instance of an aggrieved person. Even a void order cannot be wished away. Individuals cannot be permitted to disobey and disregard decisions presuming them as void decisions. Such a course if permitted may amount to taking law into one’s own hands. Rule of law and administration of justice processes would be in perial resulting in chaos. ‘81. In the instant case, the Mandal Revenue Officer had the jurisdiction over the subject matter and he had the jurisdiction over the party and therefore, he made an order in deciding the applications submitted by the respondents, which cannot be said that the Mandal Revenue Officer has acted beyond his jurisdiction. The order cannot be treated as nullity. The errors, if any, in exercising his statutory power may amount to error of law and error of law can be corrected in the manner laid down and procedure prescribed by availing remedies available to get it corrected. If the party aggrieved does not take appropriate steps to have the error corrected, the error will hold good and will not be open to challenge on the basis of being a nullity”. In the second cited decision, the Supreme Court observed in para 22 of the judgment as follows: “Thus the expressions “void and voidable” have been the subject matter of consideration on innumerable occasions by Courts. The expression “void” has several facets. One type of void acts, transactions, decrees are those which are wholly without jurisdiction, ab initio void and for avoiding the same no declaration is necessary, law does not take any notice of the same and it can be disregarded in collateral proceeding or otherwise. The other type of void act, e.g. may be transaction against a minor without being represented by a next friend. Such a transaction is a good transaction against the whole word. So far as the minor is concerned, if he decides to avoid the same and succeeds in avoiding it by taking recourse to appropriate proceeding the transaction becomes void from the very beginning. Another type of void act may be which is not a nullity but for avoiding the same a declaration has to be made. Voidable act is that which is a good act unless avoided, e.g., if a suit is filed for a declaration that document is fraudulent and/or forged and fabricated, it is voidable as the apparent state of affairs is the real state of affairs and a party who alleges otherwise is obliged to prove it. If it is proved that the document is forged and fabricated and a declaration to that effect is given, a transaction becomes void from the very beginning. There may be a voidable transaction which is required to be set aside and the same is avoided from the day it is so set aside and not any day prior to it. In cases where legal effect of a document cannot be taken away without setting aside the same, it cannot be treated to be void but would be obviously voidable”. It is further observed that there is fundamental principle well established that a decree passed by a Court without jurisdiction is a nullity, and that its invalidity could be set up whenever and wherever it is sought to be enforced or relied upon, even at the stage of execution and even in collateral proceedings. In the third cited decision, the Supreme Court held that a decree can be said to be without jurisdiction, and hence a nullity, if the Court passing the decree has usurped a jurisdiction which it did not have, but a mere wrong exercise of jurisdiction does not result in a nullity. The lack of jurisdiction in the Court passing the decree must be patent on its face in order to enable the executing court to take cognizance of such a nullity based on want of jurisdiction, else the normal rule that an executing Court cannot go behind the decree must prevail. Para 8 of the judgment needs to be noted and it is thus: “A distinction exists between a decree passed by a Court having no jurisdiction and consequently being a nullity and not executable and a decree of the Court which is merely illegal or not passed in accordance with the procedure laid down by law. A decree suffering from illegality or irregularity of procedure, cannot be termed in-executable by the executing Court, the remedy of a person aggrieved by such a decree is to have it set aside in a duly constituted legal proceedings or by a superior Court failing which he must obey the command of the decree. A decree passed by a Court of competent jurisdiction cannot be denuded of its efficacy by any collateral attack or in incidental proceedings”. In the 4th cited decision, Supreme Court held that the question of delay in invoking the writ jurisdiction of the High Court under Article 226 or of the Supreme Court under Article 32, has to be considered along with the inaction on the part of the authorities, who had to perform their statutory duties. Para 16 of the judgment needs to be noted and it is thus: “On behalf of the respondents, it was pointed out that the petitioners have approached this Court only alter making of the awards, or when awards were to be made, having waited for more than fourteen years, without invoking the jurisdiction of the High Court under Article 226 or of this Court under Article 32. IT is true that this Court has taken note of delay on the part of the petitioners concerned in invoking the jurisdiction of the High Court or of this Court for quashing the land acquisition proceedings on the ground that the proceedings for acquisition of the lands in question have remained pending for more than a decade, in the cases of Aflatoon V. Lt. Governor of Delhi and Ramjas Foundation V. Union of India. According to us, the question of delay in invoking the writ jurisdiction of the High Court under Article 226 or of this Court under Article 32, has to be considered along with the inaction on the part of the authorities, who had to perform their statutory duties. Can the statutory authority take a plea that although it has not performed its duty within a reasonable time, but it is of no consequence because the person, who has been wronged or deprived of his right, has also not invoked the jurisdiction of the High Court or of this Court for a suitable writ or direction to grant the relief considered appropriate in the circumstances ? The authorities are enjoined by the statute concerned to perform their duties witin a reasonable time, and as such they are answerable to the Court why such duties have not been performed by them, which has caused injury to claimants. By not questioning, the validity of the acquisition proceedings for a long time since the declarations were made under Section6, the relief of quashing the acquisition proceedings has become inappropriate, because in the meantime, the lands notified have been developed and put to public use. The lands are being utilized to provide shelter to thousands and to implement the scheme of a planned city, which is a must in the present set up . The outweighing public interest has to be given due weight. That is why this Court has been resisting attempts on the part of the landholders, seeking quashing of the acquisition proceedings on ground of delay in completion of such proceedings. But, can the respondents be not directed to compensate the petitioners, who were small cultivators holding lands within the ceiling limit in and around Delhi, for the injury caused to them, not by the provisions of the Act, but because of the non-exercise of the power by the authorities under the Act within a reasonable time.” In the last cited decision, the Supreme Court surveyed the views expressed in various judgments in England by Lord Reid, Lord Wilberforce, Lord Woolf, Lord Singham