IN THE HIGH COURT OF JUDICATURE, ANDHRA PRADESH AT HYDERABAD (Special Original Jurisdiction) MONDAY, THE THIRD DAY OF NOVEMBER TWO THOUSAND AND EIGHT PRESENT THE HON'BLE MR JUSTICE C.V.NAGARJUNA REDDY WRIT PETITION NO:8381 of 2005 Between: 1 Rachakonda Swamy, S/o. Late Rajaiah, All are R/o. H.Nos. 2-113 and 2-114, Gajularamaram Village, Quthbullapur Mandal, Ranga Reddy District. 2 Rachakonda Narasimha S/o. Late Rajaiah, All are R/o. H.Nos. 2-113 and 2-114, Gajularamaram Village, Quthbullapur Mandal, Ranga Reddy District. 3 Rachakonda Nagesh S/o. Late Rajaiah, All are R/o. H.Nos. 2-113 and 2-114, Gajularamaram Village, Quthbullapur Mandal, Ranga Reddy District. 4 Rachakonda Yadaiah S/o. Late Pentaiah All are R/o. H.Nos. 2-113 and 2-114, Gajularamaram Village, Quthbullapur Mandal, Ranga Reddy District. 5 Rachakonda Satyanarayana S/o. Late Pentaiah All are R/o. H.Nos. 2-113 and 2-114, Gajularamaram Village, Quthbullapur Mandal, Ranga Reddy District. ..... PETITIONERS AND 1 The Joint Collector, Ranga Reddy District, Hyderabad. 2 The Revenue Divisional Officer, Ranga Reddy East 3 Mandal Revenue Officer, Quthbullapur Mandal, Ranga Reddy District. 4 Goverdhan Joshi Nagar Welfare Housing Association, Rep. by its Treasurer, Sri Goverdhan Lal Sharma S/o. Magini Ram R/o. H.No. 1-12-206, China Tkokunta, Bowenpally, Hyderabad. .....RESPONDENTS Counsel for the Petitioners:MR.T.JAGDISH Counsel for Respondent Nos.1 to 3: NONE APPEARED Counsel for Respondent No.4:MR. M.V.DURGA PRASAD The Court made the following : ORDER: This writ petition is filed for a writ of certiorari to quash order, dated 05.02.2005 passed by respondent No.1. Heard Sri T.Jagdish, learned counsel for the petitioners and Sri M.V.Durga Prasad, learned counsel for respondent No.4. No one appeared for respondent Nos.1 to 3. The dispute pertains to Acs.3.11 guntas of land in Survey No.286 of Gajularamaram Village, Quthbullapur Mandal, Ranga Reddy District. While the petitioners claim that having succeeded to late Rajaiah and late Pentaiah, who were the original owners of the properties, they have become the lawful owners of the said properties, respondent No.4 association asserts that it purchased the properties through registered sale deeds executed by the General Power of Attorney (GPA) of late Rajaiah. It is their common case that by order, dated 13.01.1999, a purported succession order was passed by respondent No.3 and consequently, pattadar passbooks and title deeds were issued in favour of the petitioners. Sri Govardhan Lal Sharma, Treasurer of respondent No.4 association, and 33 others filed representation, dated 29.01.2000 before respondent No.2 requesting him to cancel pattadar passbooks and title deeds issued by respondent No.3 in favour of the petitioners and instruct him to demarcate the plots. Respondent No.3 also addressed letter, dated 28.03.2000 to respondent No.2 with a request to take action for cancellation of pattadar passbooks and title deeds issued in favour of the petitioners. Respondent No.2 obviously treated representation, dated 02.02.2000 filed by the said Govardhan Lal Sharma and others as appeal and set aside succession order, dated 13.01.1999 passed by respondent No.3 in favour of the petitioners and also cancelled pattadar passbooks and title deeds, vide his order, dated 17.01.2003. The revision petition filed by the petitioners before respondent No.1 was dismissed by his order, dated 05.02.2005. The present writ petition is filed questioning the said two orders. At the hearing, Sri T.Jagdish, learned counsel for the petitioners contended that in the face of the finding of respondent No.2 that the land in question ceased to be an agricultural land by the time of alteration of record of rights, his jurisdiction is ousted and, consequently, the order passed by him was without jurisdiction. He further submitted that no appeal was filed by respondent No.4 association against the succession order passed in favour of the petitioners; that respondent No.2 ought not to have entertained the representation made by respondent No.4 and letter, dated 28.03.2000 addressed by respondent No.3 by treating them as appeal and set aside the order passed by respondent No.3 in favour of the petitioners granting succession and also issuing pattadar passbooks and title deeds; that no appeal against an order granting pattadar passbooks and title deeds lies to respondent No.2 and that the finding of respondent No.2 that the land ceased to be an agricultural land is based on disputed documents and hence, such a finding is not sustainable. Sri M.V.Durga Prasad, learned counsel for respondent No.4 opposed the said contentions and submitted that passing of succession order in favour of the petitioners itself was patently illegal because by that time, the land in question ceased to be an agricultural land denuding respondent No.3 of his jurisdiction to pass any such order in view of the definition of “land” under Section 2(4) of the Andhra Pradesh Rights in Land and Pattadar Passbooks Act, 1971 (for short ‘the Act’). The learned counsel further submitted that issuance of pattadar passbooks is an act consequential to the passing of succession order under Section 5(3) of the Act and as held by this Court in N.Bal Reddy v. Revenue Divisional Officer, Hyderabad [1], the action of issuance of pattadar passbooks as a consequence of succession order is amenable to the appellate jurisdiction under Section 5(5) of the Act. I have carefully considered the respective submissions of the learned counsel for the parties and perused the record. Considering the above mentioned contentions of the learned counsel, three points arise for consideration, namely, 1) whether respondent No.2 had jurisdiction to decide the question raised by respondent No.4 (2) whether an appeal lay against the order passed by respondent No.3 in favour of the petitioners and if the answer is in affirmative, whether respondent No.2 was legally justified in treating the representation made by Sri Govardhan Lal Sharma, Treasurer of respondent No.4 association, and others, as an appeal, and 3) Whether the order passed by respondent No.2 on merits and as affirmed by respondent No.1 suffers from any illegality warranting interference of this Court under Article 226 of the Constitution of India. Point No.1: This point does not detain this Court for long. The plea of the learned counsel for the petitioners, in fact, is self-defeating. If the land ceased to be an agricultural land even by the time of alteration of record of rights at the instance of the petitioners by respondent No.3, the latter is denuded of his jurisdiction to entertain the application for amendment of record of rights and, consequently, his action was without jurisdiction. The issuance of pattadar passbooks on the strength of such amendment would be equally without jurisdiction. Respondent No.2 is, therefore, entitled to entertain the appeal filed against the order of respondent No.3 and correct this jurisdictional error. In this view of the matter, I find no merit in this contention of the learned counsel for the petitioners and Point No.1 is, accordingly, answered against the petitioners. Point No.2: It is the admitted case of the petitioners that on 13.01.1999, an order of succession was passed in their favour. However, the petitioners dispute that such an order was passed under Section 5(3) of the Act and contended that the same was passed under the provisions of the Andhra Pradesh (Telangana Area) Tenancy and Agricultural Lands Act, 1950. Interestingly, the petitioners have not filed a copy of the said order, which was issued in their favour. On coming to know about such an order having been passed, one Mr. K.V.L.Narasimha Rao and four others, who are evidently the members of respondent No.4 association, approached respondent No.3 with an application to supply a copy of the said order. Respondent No.3 received the same on 04.02.2000 and in response thereto, he issued memo, dated 08.02.2000 stating that the said order was presently not available in the record section of his office and, therefore, he could not accede to their request to supply a copy of the said order. In his order, respondent No.2 specifically observed that the file relating to succession was stated to be not available in the office of respondent No.3. Therefore, I do not find any illegality in respondent No.2 treating order, dated 13.01.1999 passed in favour of the petitioners as the one referable to Section 5(3) of the Act. Under the said provision, on an application made by a person interested in the land, intimating about the acquisition of rights over such land, the Mandal Revenue Officer after holding enquiry is entitled to pass an order for amendment of Record of Rights. Being the beneficiaries of the said order, the burden lies on the petitioners to produce a copy of the said order, in the face of the non-availability of the file, to prove that the said order was not passed under Section 5(3) of the Act and under a different statutory enactment. Under Section 6A of the Act, on an application made by the owner, pattadar, mortgagee or tenant of any land, the Mandal Revenue Officer is empowered to cause an enquiry to be made into such an application and issue title deed and passbook in accordance with the Record of Rights. It thus, appears from the scheme of the Act that exercise of power under Section 6A of the Act is consequential to recognizing a person as owner, pattadar, morgagee or tenant on the basis of the entries contained in the Record of Rights. Though Section 5(5) of the Act does not expressly provide for filing an appeal against the order granting pattadar passbooks and title deeds under Section 6A of the Act, this Court in N.Bal Reddy (1 supra) held that a person aggrieved by the action of issuance of pattadar passbooks as a consequence of amendment of Record of Rights is entitled to file an appeal and such an action is amenable to the appellate jurisdiction of the appellate authority under Section 5(5) of the Act. From the facts noted above, it is clear that it is only after the order was passed on 13.01.1999, which can be termed either as an order of succession or an order recording amendment of the Record of Rights that pattadar passbooks and title deeds were issued in favour of the petitioners. Admittedly, order, dated 13.01.1999 was not supplied to the members of respondent No.4 association on the ground that the same was not available. Thus, respondent No.4 and its members were deprived of the opportunity of filing a formal appeal questioning the said order. The intendment of legislation in providing an appeal under Section 5(5) of the Act is to correct the illegalities committed by the recording authority. Though a form and limitation are prescribed under the Rules to avail the remedy of appeal, in the absence of supply of a copy of the order, respondent No.4 could not have filed a formal appeal. In my considered view, it is the substance more than the form, which is relevant in considering whether respondent No.2 was justified in exercising his appellate jurisdiction, when a patent illegality was brought to his notice in issuing pattadar passbooks and title deeds. On the facts of this case, I am of the view that respondent No.2 was justified in treating the representation made on behalf of respondent No.4 as an appeal. This point is answered accordingly. Point No.3: A perusal of the order passed by respondent No.2 shows that he set aside the order passed by respondent No.3 in favour of the petitioners on the ground that the record made available before him showed that before 13.01.1999, the date on which the purported succession order was passed in favour of the petitioners, the land has ceased to be an agricultural land and, therefore, respondent No.3 had no jurisdiction to entertain the application of the petitioners for grant of succession/amendment of Record of Rights. In coming to this conclusion, respondent No.2 relied on several documents, such as, xerox copies of pahanies, sale deeds, copy of layout plan etc., to show that the land was converted into house plots and sold. Respondent No.2 also placed reliance on the orders passed in I.A.Nos.25, 24 and 26 of 1997 in O.S.No.6 of 1997 filed by the petitioners against the alleged GPA holder, by name, Sri D.Brahma Chary and their co-sharer R.Pentaiah (father of petitioner Nos.4 and 5). Sri T.Jagdish, learned counsel for the petitioners strenuously contended that the description of land as plots in various documents produced by respondent No.4 ought not to have been weighed with respondent No.2 in concluding that the land has ceased to be an agricultural land. Sri M.V.Durga Prasad, learned counsel for respondent No.4, however, contended that the GPA executed in favour of Sri D.Brahma Chary did not find acceptance by the Civil Court in the above-mentioned I.As and respondent No.2 did not commit any illegality in placing reliance on the said orders apart from various other voluminous documents produced by respondent No.4 to show that the land was long before passing of order, dated 13.01.1999, converted into residential plots and thereby ousting the jurisdiction of respondent No.3 to entertain an application under the provisions of the Act. Section 2(4) of the Act defined the “land” as under: “Land” means land which is used or is capable of being used for purposes of agriculture, including horticulture but does not include land used exclusively for non-agricultural purposes. From the above-reproduced definition, it is clear that the land, which is used or capable of being used for the purpose of agriculture falls within the provisions of the Act and the land, which is exclusively used for non-agricultural purpose is excluded from it. Respondent No.2 relied on various documents including the sale deeds, which clearly showed that the land was already converted into plots. In my considered view, the documents produced before respondent No.2 were sufficient to drive him to the conclusion that it has ceased to be an agricultural land. If the petitioners seriously dispute the validity of the registered sale deeds, it is not possible for respondent No.2 to give a finding thereon. The only remedy, which is available to the petitioners is to file a civil suit under the Specific Relief Act, 1963 for declaration of their title. If any relief is granted in such a suit in favour of the petitioners, they can assert their right and make fresh application for amendment of Record of Rights and issuance of pattadar passbooks under Sections 4 and 6A of the Act respectively. For the limited purpose of examining the validity or otherwise of the order of respondent No.2, I am of the view that the order passed by respondent No.2 as confirmed by respondent No.1 did not suffer from any illegality warranting interference of this Court under Article 226 of the Constitution of India. For the above-mentioned reasons, the writ petition is dismissed. As a sequel to dismissal of main petition, WPMP.No.11095 of 2005 and WVMP.No.2683 of 2006 are disposed of as infructuous. C.V.NAGARJUNA REDDY, J 3rd NOVEMBER, 2008. kvni [1] 2004(2) ALD 419