*THE HON’BLE MR JUSTICE V.ESWARAIAH +Writ Petition No.2383 of 2000 % 27.02.2008 Between: Sri Bhavana Rushi Cooperative Housing Building Society Ltd., rep. by its President D.Bhooma Rajam ..... PETITIONER AND The Joint Collector, Ranga Reddy District and others .....RESPONDENTS ! Counsel for the Petitioner: Mr.B. Adinarayana Rao for MR.N.SRIDHAR REDDY ^ Counsel for the Respondents.: Mr.K. Raghuveer Reddy, for R-5 Mr.C.R. Pratap Reddy, for RR 4 & 6 GP FOR REVENUE for RR 1 to 3 < Gist: > Head Note: ? CITATIONS: 1) 2003(1) ALT 276 (D.B.) 2) 2003 (5) ALD 654 (D.B) IN THE HIGH COURT OF JUDICATURE, ANDHRA PRADESH AT HYDERABAD (Special Original Jurisdiction) WEDNESDAY, THE TWENTY SEVENTH DAY OF FEBRUARY TWO THOUSAND AND EIGHT PRESENT THE HON'BLE MR JUSTICE V.ESWARAIAH WRIT PETITION NO : 2383 of 2000 Between: Sri Bhavana Rushi Cooperative Housing Building Society Ltd., rep. by its President D.Bhooma Rajam ..... PETITIONER AND The Joint Collector, Ranga Reddy District and others .....RESPONDENTS Petition under Article 226 of the constitution of India praying that in the circumstances stated in the Affidavit filed herein the High Court will be pleased to Counsel for the Petitioner: Mr.B. Adinarayana Rao for MR.N.SRIDHAR REDDY Counsel for the Respondent No.: Mr.K. Raghuveer Reddy, for R-5 Mr.C.R. Pratap Reddy, for RR 4 & 6 GP FOR REVENUE for RR 1 to 3 The Court made the following : THE HON'BLE MR JUSTICE V.ESWARAIAH WRIT PETITION No. 2383 of 2000 JUDGMENT: The petitioner, Co-operative House Building Society, questions the revisional order passed by the Joint Collector, Ranga Reddy District, in dismissing the revision petition filed by the petitioner in case No.D5/8857/98, dated 06-12-1999 and the appellate order of the Revenue Divisional Officer, East-Division, Ranga Reddy District, dated 11-11-1998 vide order No.A2/1279/1998, in setting aside the orders of the Mandal Revenue Officer, Keesara Mandal, dated 22-07-1991 in ROR/410/91, regularizing the agreement of sale, said to have been executed by the respondents 5 and 6 in favour of the petitioner. The brief facts of the case are that the Mandal Revenue Officer, the 3rd respondent, vide his proceedings dated 22-7-1991, regularised the alleged unregistered document, purchasing an extent of Ac.12.17 guntas in Sy.No.414 of Nagaram Village, by the petitioner, from the 5th respondent; in exercise of powers conferred under him, under Section 5- A of A.P. Rights in Land and Pattadar Pass Books Act, 1971 (for short ‘the Act’), and issued the said certificate accordingly, regularizing the said document. A perusal of the certificate issued by the M.R.O., dated 22-07-1991 does not disclose what is the nature of the document, date, etc., but it only indicates that unregistered alienation deed, said to have been executed by the 5th respondent in favour of the petitioner; has been regularized. As against the said order, dated 22-07-1991, the 4th respondent herein, R. Krishna, namely, the son of the 5th respondent herein, filed an appeal before the Revenue Divisional Officer, the 2nd respondent, being appeal No.A2/1279/1998, i.e. after seven years after the order under Section 5-A of the Act, of the MR.O., is passed. The appellate authority, in exercise of the powers under Section 5(5) of the Act, entertained the appeal, and quashed the order of the MRO, dated 22-07-1991. Aggrieved thereby, the writ petitioner herein filed a revision under Section 9 of the Act, before the Joint Collector, in case No.D5/8857/98, dated 06-12-1999, which was dismissed. Hence, this writ petition. Petitioner states that the appeal filed by the 4th respondent herein against the order of the MRO, after seven years of the said order under Section 5-B of the Act; is not maintainable, and the appeal can be filed by the parties to the proceedings, but not by third parties against the proceedings of regularization under Section 5-A of the Act, and therefore, the 4th respondent has no right of appeal under Section 5-B of the Act. The regularization order was passed by the MRO under Section 5-A of the Act, on 22-07-1991, but whereas the appeal has been filed after seven years i.e. in the year 1998, and therefore, the appeal itself is barred by limitation, and accordingly, the appellate authority’s order is liable to be set aside. It is further stated that the contesting parties are aware of the regularization in the year 1991 itself, and the 4th respondent has also got knowledge of the regularization, and therefore, it is not open for him to file appeal. If the 4th respondent disputes the correctness of the regularization proceedings, the only course open to him is to seek a declaration by filing a civil suit under Section 8(2) of the Act, but not otherwise. It is stated that the MRO, after conducting enquiry, regularized the agreement of sale, and thereafter, mutation was effected in the revenue records, entering the name of the petitioner, and therefore, the order of the revisional authority is illegal, arbitrary and unsustainable. On the other hand, learned counsel appearing for the 4th respondent, submits that the property in question, of an extent of Ac.12.17 cents in Sy.No.414 of Keesara Vilalge and Mandal, is the joint family property, and the 4th respondent was a minor at the time of the alleged agreement of sale, and no notice had been issued to him, during the course of the enquiry of regularizing the proceedings under Section 5-A, and however, the agreement of sale cannot be regularized under Section 5-A of the Act. It is further stated that the land in question was not continued as agricultural land, as on the date of the regularization, and therefore, the proceedings under the Act, themselves are without jurisdiction and non est in law. According to the writ petitioner herein, the land belongs to the joint family property, and the respondents 4 and 6 are the sons of the 5th respondent, and there was a partition of the joint family properties, on 14-08-1968, and the 5th respondent being the Kartha of the family, alienated the said land under agreement of sale dated 19-02-1983, and that the 5th respondent and three other persons, who are the members of the joint family, are formal parties, and the 6th respondent, being the major son of the 5th respondent, was made party to the agreement of sale dated 19-02-1983, and that as per the agreement of sale, possession was delivered on the same day, and subsequently, as per the terms and conditions, the petitioner paid the entire sale consideration to the 5th respondent; and his son, i.e. the 6th respondent, also executed a GPA on 16-02-1987, and subsequently, under section 5-A of the Act, the agreement of sale has been validated and property was mutated in favour of the petitioner, vide proceedings No.ROR/410/91. The appellate authority after hearing both the parties, came to the conclusion that there is a dispute and claim over the land, as joint family property, and admittedly it is the petitioner, having its main object of providing lands to the members, after purchasing the land from various owners, for allotment of the plots and housing purpose, and that the pahanies produced goes to show that the land was used for non- agricultural purpose, and therefore, the land did not continue as agricultural land, as defined under Section 2(4), and therefore, the Act is not applicable for non-agricultural purpose. It is further observed that no notice was served on the 4th respondent herein by the MRO, while regularizing the agreement of sale, under Section 5-A of the Act, and the 4th respondent was minor when the agreement took place, but he was a major at the time of passing of the order by the MRO, under Section 5-A, and admittedly, the 4th respondent is the son of the 5th respondent, who alienated the said land, and at the time of regularization, the 4th respondent came into possession, and therefore, notice could have been issued to the 4th respondent, before passing the order under Section 5-A. But, as there was no notice to the 4th respondent, and the land was found to be non-agricultural land, the order of the MRO dated 22-09-1991 was set aside by the appellate authority, vide order dated 11-08-1991. Aggrieved by the order of the appellate authority, the petitioner herein filed a revision under Section 9 of the Act. The revisional authority considered the rival contentions of the parties, and it was stated that the petitioner filed copy of the sale agreement dated 05-04- 1984, executed on a non-judicial stamp paper, said to have been executed by the respondents 5 and 6; alienating the said land, which agreement was regularized under Section 5-A of the Act, on 22-07-1994, against which appeal has been filed by the 4th respondent herein, under Section 5-A of the Act. It was contended therein that the land was no more continuous as agricultural land, as defined under Section 2(4) of the Act. The revisional authority observed that, as it is the contention of the petitioner that the said land was not an agricultural land, but it continued to be agricultural land, and that the petitioner has not produced any documentary evidence to prove that the said land was used for agricultural purposes. On the other hand, as per the Xerox copies of the pahanies for the years 1997-98, and the extracted pahanies for the years 1988-89, the land was made into plots and not cultivated. From the extracts of the pahanies from the years 1988-89, i.e. before regularizing the agreement of sale, dated 22-07-1991, the said land was found to be used other than non-agricultural purpose, and therefore, the Act is not applicable for non-agricultural purposes, as defined under Section 2(4) of the Act. Accordingly, the Revisional Authority held that the order of the MRO, validating and regularizing the unregistered sale agreement in favour of the petitioner, is in violation of the provisions under Section 2(4) of the Act, and accordingly this order was set aside, which was also confirmed by the appellate authority. In view of the nature of the land and the applicability of the Act, the other contentions were not at all considered with regard to the rights of the title over the said land. Accordingly, the MRO was directed to restore the entries in the revenue records in the said land as usual, prior to the passing of the orders of the MRO, under Section 5-A of the Act. Sri B. Adinarayana Rao, learned counsel appearing for the petitioner, submits that admittedly, the agreement of sale was regularized, in exercise of powers under Section 5-A of the Act, on 22-07-1991, i.e. after Section 5-A came into force by Act 1 of 1989. The appellate authority had got power to entertain the appeal under Section 5-B of the Act, only after Section 5-B was inserted by A.P. Act 1984, which came into force with effect from 03-01-1993. It is contended that in spite of orders passed under Section 5-A, prior to 31- 03-1993 and Section 5-A of the Act, there was no remedy of appeal, provided for under Section 5-B of the Act, against the order passed under Section 5-A. The only remedy available to question the regularization of the agreement of sale, prior to the amendment, and after amendment; is under Section 9 of the Act, before the Joint Collector. Therefore, the order of the appellate authority is without jurisdiction and non est in law. If that be so, the order of appellate authority cannot be looked into, as it is non est in law, and therefore, the right of revision availed under Section 9 of the Act against the order of the appellate authority is also non est in law, and if both the orders of the appellate authority and revisional authority are treated as non est in law, the initial order of regularization of sale deed dated 22-02-1991 revives, in which case, it is for the 4th respondent to settle the disputes by way of filing a civil suit under Section 8(2) of the Act, and if, ultimately, he succeeds in the civil suit, he is entitled for the amendment of the entries in the revenue records. On the other hand, learned counsel appearing for the 4th respondent, submits that the writ petitioner itself filed a revision before the revisional authority, and any revision entertained by the revisional authority, either at the instance of the writ petitioner, or any of the respondents, or suo motu, it is an order of revision under Section 9, and therefore, the order of the revisional authority cannot be treated as non est in law, or without jurisdiction. Admittedly, the order of regularization is prior to Section 5-B of the Act came into force, with effect from 31-10-1993. Therefore, I am of the opinion that the learned counsel appearing for the writ petitioner is right in contending that there was no right of appeal against the order, regularizing the agreement of sale, under Section 5-A, that existed prior to appeal power came into existence in the statute book. Therefore, even if the appellate order is held to be non est in law, and without jurisdiction, the further question that arises for consideration is, as to whether the order of the revisional authority also becomes non est in law, or it should be treated as an independent order, considering the legality and validity of the regularization proceedings under Section 5-A, while exercising the powers under Section 9. I am of the opinion, that if there is no dispute with the facts, and if the order of the revisional authority is based on the undisputed facts, the said order of the revisional authority can be looked into, to decide with regard to its legality and validity. In the instant case, there is no dispute that what was regularized is only agreement of sale, but not the unregistered sale deed. As per the contention of the writ petitioner before the appellate authority, what was regularized was only agreement of sale, but not the sale deed, so also before the revisional authority. If that be so, the further question that arises for consideration is, as to whether the agreement of sale can be regularized under Section 5-A of the Act. A Division Bench of this Court in the case of K. Seetharama Reddy v. Hassan Ali Khan[1] held that the agreement of sale is not enough for regularization of the document under Section 5-A of the Act. There is no dispute that prior to Section 5-B came into force, providing a remedy of appeal before the RDO, against the order passed under Section 5-A, with effect from 31-10-1993, the only remedy available for an aggrieved party was, the right of revision, under Section 9 of the Act, against an order of regularization, under Section 5-A. The power of revision was always available prior to the amendment, and even after the amendment, to go into the question of legality and validity of the regularization of the alienations, or other transfer of the lands, regularized under Section 5-A, by the revisional authority, under Section 9 of the Act. The Division Bench of this Court in the case of Konkana Ravinder Goud v. Bhavanarishi Co-operative House Building Society[2], (the same petitioner herein), considered, with reference to the similar contentions; with regard to the regularization of the agreement of sale, under Section 5-A, and two questions were formulated therein, as follows: a) Whether the agreement of sale can be treated as alienation or transfer, within the scope and meaning of Section 5-A of the Act, b) Whether the Joint Collector could have exercised powers under Section 9 of the Act (as it now stands), to set aside the order of the Mandal Revenue Officer, on 18-12-1991, when Section 9 of the Act (as it stood then) did not expressly confer any power on the Collector to call for and examine the record with a view to satisfy himself as to the legality or propriety of any decision taken or order passed by the Mandal Revenue Officer, under Section 5-A of the Act. With regard to the first question, the Division Bench held that the agreement of sale cannot be treated as an ‘alienation’ or ‘transfer’ within the scope and meaning of Section 5-A of the Act. With regard to the second question, it was held that the Joint Collector could exercise the revisional jurisdiction, which enables him to call for and examine any record of rights to be prepared, or maintained under Section 3 of the Act, or any order passed, or proceedings taken by any recording authority or appellate authority, to satisfy himself, as to the regularity to such record or order or proceeding, or the correctness, legality or propriety of any decision taken, or order made therein and had powers to pass orders, amending, modifying annulling reversing or remitting the matter for reconsideration and accordingly the question No.2 was answered. Learned counsel appearing for the petitioner, submits that the said Division Bench judgment of this Court was carried in appeal before the Supreme Court and the Supreme Court granted leave vide special leave appeal (civil) Nos.21753 to 21755 of 2003, and until further orders status quo, as on the date of the passing of the order, on 02-12-2003; was directed to be maintained. The judgment of the Division Bench of this Court has not been stayed or suspended, and therefore, I am of the opinion that though the leave has been granted and status quo was directed to be maintained, I am bound by the judgment of the Division Bench of this Court, referred to above. The only question that fell for consideration was, as to whether the agreement of sale can be regularized by the Mandal Revenue Officer, in exercise of powers under Section 9. The answer given by the Division Bench, based on the various judgments of this Court, was, that an agreement of sale is not an ‘alienation’ or the ‘transfer’ of property, and there was no mechanism provided for under Section 5-A, to deal with the agreement of sales, and that Section 5-A provides for regularization of unregistered sale deeds of alienations, but not agreement of sales, and in view of the aforesaid circumstances, I am of the opinion that the only remedy available to the petitioner, to resolve the dispute before the appropriate forum, was, either by way of filing a civil suit for specific performance, or any other recourse under Section 8(2) of the Act. In view of the aforesaid facts and circumstances of the case, I am of the opinion that the order passed by the revisional authority is an order, exercising power under Section 9 of the Act, based on admitted facts. Therefore, I am not inclined to interfere with the said order of the revisional authority, though the order of the appellate authority is non est in law. The writ petition is accordingly dismissed. There shall be no order as to costs. ________________ V.ESWARAIAH, J. Dt.27-02-2008. Note: L.R. copy to be marked. (B/O) KO* To 1.2CCs to 2.2CD copies Form-NIC-OGS/WP{ } [1] 2003(1) ALT 276 (D.B.) [2] 2003 (5) ALD 654 (D.B)