THE HON’BLE SRI JUSTICE V.V.S.RAO WRIT PETITION No.18025 of 2001 Dated:30.09.2010 Between: A.Chandraiah. ….Petitioner And Government of A.P., And others. …Respondents THE HON’BLE SRI JUSTICE V.V.S.RAO WRIT PETITION No.18025 of 2001 ORDER: The petitioner assails the order of the District Collector (Joint Collector), Karimnagar, dated 26.07.2001. By the said order the petitioner’s revision under Section 9 of the Andhra Pradesh Rights in Land and Pattadar Pass Books Act, 1971 (the Act) was dismissed. Be it noted, the petitioner filed the revision against the order of the third respondent, who had set aside the order of the fourth respondent passed under Section 5-A of the Act. The short fact of the matter is as follows. The land admeasuring Ac.1.32 guntas in survey No.274/A and Ac.0.16 guntas in survey No.292/A of Choppadandi Village was owned and possessed by the fifth respondent. He is Pattadar. The petitioner alleges that the fifth respondent sold the land on 11.02.1983 by executing a document duly delivering possession. Sometime in 2000 the petitioner filed an application under Section 5-A of the Act seeking regularization of the same. By an order dated 22.05.2000 the fourth respondent passed favourable orders. The fifth respondent appealed under Section 5-B of the Act. By an order dated 10.07.2000 the appellate authority, the third respondent herein set aside the order of the revisional authority aggrieved by which the petitioner unsuccessfully preferred revision petition before the Joint Collector. The petitioner mainly contends that the appeal filed by the fifth respondent before the third respondent was not maintainable and that when the possession was handed over to the petitioner by reason of which he was granted pattadar pass books, the appellate authority and revisional authority have no power to cancel the pattadar pass books. The fourth respondent as well as the fifth respondent filed separate counter affidavits. The fourth respondent reiterates background of the case and contents of the impugned order. The fifth respondent in his counter affidavit denies the allegations made by the petitioner that possession was handed over. He alleges that the petitioner is a broker (pairavikar) who approached him to demarcate the land and if he succeeds, it was agreed that an extent of Ac.0.08½ guntas will be given to him. The said agreement was retained by him. Therefore, the fifth respondent filed O.S.No.1041 of 1986 on the file of the Court of the District Munsif, Karimnagar, and got back the land. The petitioner managed to get the ownership certificate by showing the document as agreement of sale, which is not correct. The other proceedings before the Mandal Revenue Officer, Revenue Divisional Officer and the Joint Collector are not denied. It is further stated that pursuant to the impugned orders, the Mandal Revenue Officer, Choppadandi, issued proceedings dated 24.08.2001 duly effecting in the revenue records incorporating the name of the fifth respondent. It is also his case that he filed O.S.No.322 of 2002 on the file of the Court of the Principal Junior Civil Judge, Karimnagar, for temporary injunction and obtained ad interim injunction on 11.09.2002. The Counsel for the petitioner relies on M.B.Ratnam v Revenue Divisional Officer, Ranga Reddy District[1] and submits that the order of the Tahsildar under Section 5-A of the Act was passed on 22.05.1992 and therefore an appeal under Section 5-B of the Act would not lie. In M.B.Ratnam it was held as under. We have already noticed that Amending Act of 1994 was given effect from 31st October, 1993. The Act did not provide any right of appeal or revision against the orders passed by the Mandal Revenue Officer under Section 5-A of the R.O.R. Act prior to Section 5-B coming into operation. In the instant case, the orders under Section 5-A of the R.O.R. Act are dated 6-2-1990 and the proceeding resulting in grant of certificate under Section 5-A of the R.O.R.Act itself was initiated prior to 6-2-1990. Thus, it is clear that neither on the date when the proceedings were instituted under Section 5-A of the R.O.R.Act nor as on the date when the orders were passed by the Mandal Revenue Officer, there has been any right of appeal provided under the Act. The copy of the order of the Mandal Revenue Officer is not placed before this Court though in paragraph 3 of the affidavit accompanying the writ petition the petitioner alleges that the Mandal Revenue Officer issued transferred ownership certificate of the land in his favour of 22.05.1992. No document in proof of the same is filed. In his prayer portion of the affidavit as well as in the writ petition the order of the Mandal Revenue Officer is referred to as File No.163/89/ROR, dated 22.05.2000. Secondly, the petitioner has filed Pattadar pass books which were issued on 20.04.2001. The allegation of the petitioner that the Mandal Revenue Officer passed orders prior to coming into force of Section 5-B of the Act, therefore, cannot be countenanced, although in the typed copy of the order of the Revenue Divisional Officer annexed to the Writ Petition the order is referred as one dated 22.05.1992 which is obviously a mistake or intentionally typed to bring the case within the ratio of M.B.Ratnam. When this is pointed out, Counsel for the petitioner does not seriously dispute about the factual position. Therefore, an appeal would certainly lie under Section 5-B of the Act against the orders passed by the Mandal Revenue Officer – as admitted by the petitioner – on 22.05.2000. The ratio in M.B.Ratnam is of no assistance to the petitioner. The Mandal Revenue Officer cannot exercise the jurisdiction under Section 5-A of the Act based on the agreement of sale. It was so held in K.B.Goud v Bhavanarishi Co-operative House Building Society[2]. Whether an agreement of sale can be treated as alienation or transfer within the scope and meaning of Section 5-A of the Act? This is one of the questions considered by the Division Bench in K.R.Goud. After referring to the various aspects of the matter, it was held. There is no machinery or mechanism provided in the Act that even a person who has entered into an agreement of sale and in case sale is not completed but he has been put into possession of the property even on payment of entire sale consideration that can approach the Mandal Revenue Officer for grant of a certificate under Section 5-A of the Act. The Mandal Revenue Officer in such a case cannot proceed to hold an enquiry as to whether agreement of sale has been complied with or not. On the failure on the part of vendor to complete the sale transaction, a person in whose favour there is an agreement of sale can seek specific performance of the agreement of sale so as to convey right, title or interest of the vendors. The machinery provided under the Act is not the appropriate machinery for perfecting title merely on the basis of agreement to sell. We are, therefore, of the view that the finding of the learned Judge that there is a valid transfer of immoveable property under agreements of sale cannot be sustained. Thus, we have no hesitation in holding that the agreement of sale relied upon by the Society is not covered by the term transfer and cannot be treated as an "alienation" or "transfer" within the scope and meaning of Section 5-A of the Act and we answer the first question accordingly. (emphasis supplied) The submission of the Counsel that in view of the long possession of the petitioner, pattadar pass books could not have been cancelled, is misconceived. It is no doubt true that under Rule 26(6) of the Andhra Pradesh Rights in Land and Pattadar Pass Books Rules, 1989, pattadar pass books can be issued only to those persons who are actually in possession of the land. But the same does not in any manner preclude the actual pattadar from questioning the issue of pattadar pass books because under Section 6 of the Act the Legislation creates a presumption in favour of the holder of pattadar pass books to a limited extent and such presumption can always be rebutted. When the petitioner indisputably obtained pattadar pass books and title deeds, as contended, based on the orders of the Mandal Revenue Officer, those pattadar pass books would be of no avail when once the orders of the Mandal Revenue Officer are set aside by the appellate authority and the revisional authority. The Writ Petition is devoid of any merits and the same is accordingly dismissed with costs. __________________ (V.V.S.RAO, J) 30.09.2010 vs [1] 2003 (1) ALD 826 (DB) [2] 2003 (5) ALD 654 (DB)