IN THE HIGH COURT OF JUDICATURE, ANDHRA PRADESH AT HYDERABAD (Special Original Jurisdiction) FRIDAY, THE TWENTY FIFTH DAY OF JULY TWO THOUSAND AND EIGHT PRESENT THE HON'BLE MR JUSTICE C.V.NAGARJUNA REDDY WRIT PETITION NO : 21345 of 2000 Between: Kanala Gurumurthy, S/o Madhayya, Rep. by power Attorney Holder K.B.V. Ramesh, Agraharam, Eluru, West Godavari District. ..... PETITIONER AND 1 The Joint Collector, West Godavari Dist., Eluru. 2 The Revenue Divisional Officer, Eluru, West Godavari District. 3 The Mandal Revenue Officer, T. Narsapuram Mandal, West Godavari District. .....RESPONDENTS Counsel for the Petitioner:MR. M.JANARDHAN RAO FOR MR.K.CHIDAMBARAM Counsel for the Respondents: AGP FOR REVENUE The Court made the following : ORDER: This writ petition is filed for a writ of mandamus to set aside proceedings, dated 30.03.2000 and 04.09.2000 of respondent Nos.2 and 1 respectively. Heard Sri M.Janardhan Rao, learned counsel for the petitioner and the learned Assistant Government Pleader for Revenue for the respondents. The petitioner purchased land of an extent of Acs.11.96 cents in Survey Nos.407, 408, 409/1 of Vallampatla Village, T.Narsapuram Mandal, West Godavari District in the auction conducted in pursuance of order passed in E.P.No.24 of 1972 in S.C.No.317 of 1969 on the file of the District Munsif Court, Chintalapudi, West Godavari District. In the affidavit, he asserted that the said sale having been confirmed, sale certificate was issued in his favour and possession of the property was delivered to him on 15.02.1974 by the Court Amin. In the year 1989, he being unsuccessful in persuading respondent No.3 to amend the entries in the record of rights and issue pattadar passbook, approached respondent No.2, by way of an appeal, who by his endorsement, dated 30.03.2000, summarily rejected the petitioner’s request only on the ground that as he is not in possession of the property, it is not possible to issue pattadar passbook. A revision petition filed by the petitioner against the said endorsement before respondent No.1 also met the same fate with respondent No.1 affirming the view taken by respondent No.2. I have carefully considered the submissions of the learned counsel for the parties and perused the record. Under Section 4 of the Andhra Pradesh Rights in Land and Pattadar Passbooks Act, 1971 (for short ‘the Act’), if any person acquires by succession, survivorship, inheritance, partition, Government patta, decree of a Court or otherwise any right as owner, pattadar, mortgagee, occupant or tenant of a land and any person acquiring any right as occupant of a land by any other method shall intimate in writing his acquisition of such right to the Mandal Revenue Officer within 90 days from the date of such acquisition and the said Mandal Revenue Officer shall give or send a written acknowledgement of the receipt of such intimation to the person making it. Under Section 5(1) of the Act, on receipt of intimation of the fact of acquisition of any right referred to in Section 4 of the Act, the Mandal Revenue Officer shall determine as to whether and if so, in what manner, the record of rights may be amended in consequence thereof and shall carry out the amendment in the record of rights in accordance with such determination. In the instant case, the fact that the petitioner purchased the land in question in a Court auction and was granted a sale certificate has not been denied by any of the respondents either in their proceedings or in the counter-affidavit filed by respondent No.3. On the other hand, respondent No.3 in paragraph 2 of the counter-affidavit admitted the fact that the petitioner purchased the land in question and obtained possession certificate on 15.02.1974. But the only ground, on which, the petitioner’s request for correcting the entries in the record of rights and issuance of pattadar passbook was rejected, was that he is not in physical possession of the land in question. Before respondent No.1, the petitioner denied this ground and asserted that he is in physical possession, but the Village Administrative Officer was intentionally avoiding collection of land revenue from him and, therefore, he could not produce the land revenue receipts from the year 1994. However, respondent No.1 treated this as an admission and mentioned in his order that the petitioner had himself admitted that he is not in possession of the land in question. On a careful perusal of the Act, I do not find any provision, which makes physical possession, a condition precedent for correcting the entries in the record of rights and issuing pattadar passbooks. The law is well settled that rules are always subservient to the Act. Admittedly, the title of the petitioner is unimpeachable. While the petitioner clearly asserts that he is in physical possession, even assuming that his possession is only on paper and somebody else is in physical possession, the respondents cannot recognize such an unauthorized possession by third parties. Rule 26 (3) of the Andhra Pradesh Rights in Land and Pattadar Passbooks Rules, 1989 (for short ‘the Rules’) envisages that pattadar passbooks shall be given to the owners, pattadars, tenants, mortgagees and occupants of inam lands and Rule 26(6) of the Rules provides that a title deed or pass book shall be given only to those persons who are in actual possession of the land. In my considered view, this Sub-rule, which travels far beyond the scope of the provisions of the Act, cannot be read in isolation and is required to be read in conjunction with Sections 4 and 5 of the Act and Rule 26(3) of the Rules. If Rule 26(6) of the Rules is literally construed and request for correction of entries in the record of rights and issuance of pattadar passbooks is rejected merely on the ground that the applicant, in whom legal title is vested, is not in actual physical possession, that would place a premium on unauthorized occupation of properties by anti-social elements. The reasonable construction to be given to this clause is that a person in whom legal title is vested and is entitled to be in possession, shall be given pattadar passbook by taking constructive possession and not unauthorized physical possession as the criterion. In the instant case, with the issuance of sale certificate, the petitioner is presumed to be in constructive possession of the land. Even if a third party is in unlawful occupation of such land, the respondents cannot take note of such an unlawful possession and the right of the petitioner to get the record of rights corrected and obtain the pattadar passbook cannot be defeated on such a ground. For the above-mentioned reasons, the writ petition is allowed. The impugned proceedings of respondent Nos.2 and 1 respectively are quashed. Respondent No.3 is directed to correct the entries in the record of rights and issue pattadar passbook in favour of the petitioner, within a period of eight (8) weeks from the date of receipt of a copy of this order. C.V.NAGARJUNA REDDY, J 25th JULY, 2008. kvni