IN THE HIGH COURT OF JUDICATURE, ANDHRA PRADESH AT HYDERABAD (Special Original Jurisdiction) THURSDAY, THE EIGHTEENTH DAY OF JUNE TWO THOUSAND AND NINE PRESENT THE HON'BLE MR JUSTICE GODA RAGHURAM WRIT PETITION NO : 24016 of 2008 Between: Thummala Chetty Builders & Developers Pvt. Ltd. Rep. by its Managing Director -T.J. Prakash S/o. T. Aswartha Narayana ,a ged 52 yrs H.No. 10-2-289/45, Flat NO. 102, Jyothigiri Mansion Shantinagar , Masab Tank, Hyderabad. ..... PETITIONER AND 1 The Joint Collector-I, Ranga Reddy District, Office at Khairatabad, Hyderabad. 2 The Mega City Coop Urban Bank Ltd., rep. by its Managing Director, Diamond Complex, J.N. Road, Abids, Hyderabad. 3 Sri. Nagaraj, S/o. Late N.R. Kesava Shetty, R/o. Taj Mahal Hotel, Abids, Hyderabad. 4 Sri Venkannagari Surender Rao, S/o. Hanumanth Rao, R/o. Flat No. 303, Road No. 12, Prasath Plaza, Banjara Hills, Hyderabad. 5 Sri Veeraneni Jagadishwar Rao, S/o. V.P. Rao, R/o. C-5, Staff Quarters, Osmania University Campus, Hyderabad. 6 Sri Venkannagari Mahender Rao, S/o. V.P. Pedda Ramachandraiah, R/o. Flat No. 303, Road No. 12, Prasath Plaza, Banjara Hills, Hyderabad. 7 Sri Venkannagari Kamalakar Rao, S/o. V. Hanumanth Rao, R/o. Flat No. 303, Road No. 12, Prasath Plaza, Banjara Hills, Hyderabad. 8 Sri Venkannagari Bharathi, W/o. Kamlakar Rao, R/o. Flat No. 303, Road No. 12, Prasath Plaza, Banjara Hills, Hyderabad. 9 Sri. Faheebuddin Ahmed, S/o. Md. Rajuddin Ahmed, R/o. H.No. 16-9-580, Old Malakpet, Hyderabad. 10 Smt. Leela Rantela, W/o. J.S. Rantela, R/o. H.No. 7-1-65/A, Ameerpet, Hyderabad. 11 Smt. Syeda Anwar Sultana, W/o. Mohammed Pasha, R/o. H.No. 3-5-874/47, Old MLA Quarters, Hyderabad. 12 Sri K. Achuthan, S/o. Narayana Gupta, H.No. 11-3-323/9, Srinivasa Nagar, Hyderabad. 13 Smt. B. Aruna Jyothi, W/o. Venkat Rao, H.No. 7-1-237/2, Balkampet, Ameerpet, Hyderabad. 14 Smt. Madhu Rani Tomer (Gayathri), W/o. O.P. Tomer, H.No. 7-1-65/A, New Nature Care Hospital, Ameerpet, Hyderabad. 15 Sri K. Raghavender Bhat, S/o. Seetharam Bhat, R/o. 2-1-1813/2/5, Erragadda, Hyderabad. 16 Sri B. Raghupathi acharya, S/o. B. Narayana Acharya, R/o. 7-4-40/1, Sree Sadan, Ameerpet, Hyderabad. 17 M. Chandrasekhar Rao, S/o. Late M. Kantha Rao, R/o. Kukatpally, Hyderabad. .....RESPONDENT(S) 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 to issue a writ order or direction more particularly one in the nature of writ of Mandamus declaring the order of the first respondent vide Case. No. D5/6196/2007 dt. 20-5-2008 as illegal, arbitrary and unconstitutional and opposed to the principles of natural justice and pass Counsel for the Petitioner:MR.N.BHARAT BABU Counsel for the Respondent No.: GP FOR REVENUE The Court made the following : ORAL ORDER: This writ petition is filed challenging the order of the 1st respondent in Case No. D5/6196/2007 dated 20-5-2008 (the impugned order), passed in purported exercise of the power under Section 9 of the A.P. Rights in Land and Pattadar Pass Books Act, 1971 (for short ‘the 1971 Act’). The impugned order is pursuant to a revision preferred by non- official respondents 3 to 17 herein, aggrieved by an order of the Revenue Divisional Officer, East Ranga Reddy Division dated 25-9- 2003 rejecting the appeal preferred by these respondents against an order of the Deputy Collector and Mandal Revenue Officer, Quthbullapur Mandal dated 10-6-2003 recording the 2nd respondent herein to be in possession of land in an extent of Ac.3-16 guntas in Sy.No. 100/B of Nizampet village, Quthbullapur Mandal, Ranga Reddy District for the year 2001-2002. The 2nd respondent applied to the primary authority-the Mandal Revenue Officer, Quthbullapur Mandal for incorporation of its name in the revenue records. The said authority admittedly, without notice and opportunity to respondents 3 to 17 passed the order dated 10-6-2003, incorporating the name of the 2nd respondent in the possession column of the pahani for the year 2001-02 for an extent of Ac.3-16 guntas in Sy.No. 100/B of Nizampet village, Quthbullapur Mandal, Ranga Reddy District. Aggrieved thereby, the respondents 3 to 17 preferred an appeal to the Revenue Divisional Officer and thereafter a revision to the 1st respondent which authority passed the order impugned. Respondents 3 to 17 contended before the appellate authority that there was no title remaining with the vendor of the 2nd respondent, since under a General Power of Attorney executed by the vendors of the 2nd respondent and during its currency, title in the schedule property was conveyed to respondents 3 to 17 earlier to the execution of an agreeent in favour of the 2nd respondent. It was also contended before the appellate authority that the primary authority-the Mandal Revenue Officer had passed the order dated 10-6-2003 without notice or opportunity to them. Before the 1st respondent- revisional authority, however, the respondents 3 to 17 as the revision petitioners had raised a fresh contention, namely, that the land in respect of which the Mandal Revenue Officer had exercised jurisdiction under the provisions of the 1971 Act was not ‘land’ within the meaning of the said expression, as defined in Section 2 (4) of the 1971 Act. The specific contention in this regard before the 1st respondent was that what was conveyed to respondents 3 to 17 herein as well as to the 2nd respondent was plots and the Mandal Revenue Officer had also recorded the existence of roads in the land and, therefore, this is an urban property and is not land which is used or is capable of being used for the purposes of agriculture including horticulture and therefore, falls outside the pale of the provisions of the 1971 Act. By the impugned order, the 1st respondent concluded that the land is an urban property and, therefore does not fall within the expression ‘land’ as defined by the provisions of the 1971 Act and having determined the jurisdictional fact in the above manner, yet proceeded to adjudicate upon the merits, namely whether the primary authority was correct in entering the name of the 2nd respondent as in possession in respect of the schedule land for the year 2001-02 and in doing so, the 1st respondent recorded that “prima facie” that the conveyance in favour of the 2nd respondent was invalid as there was no title remaining with the vendors of the 2nd respondent by that date, as the title in the land had already been conveyed to the respondents 3 to 17 herein under deeds of conveyance executed by an operative General Power of Attorney, which was cancelled after the execution of the deeds of conveyance. The revisional authority having held that the property in question is not “land” within the meaning of the provisions of 1971 Act, the inescapable corollary of this conclusion is that the provisions of 1971 Act had no application to the property in question and the determination by the Mandal Revenue Officer, as the primary authority, would be ‘Coram Non Judice’ or a nullity. Be that as it may. Though Sri M.Rama Rao, the learned counsel for the petitioner and per contra by Sri N. Vijay, learned counsel for the respondents 4 and 6 submit competing assertions as to the character of the land, on the basis of the record available to this Court, this Court is of the considered view that a serious issue as to this jurisdictional fact arises for the determination namely, whether the land in question of an extent of Ac.3-16 guntas in Sy.No./100/B of Nizampet village, Quthbullapur Mandal, Ranga Reddy District is ‘land’ which is used or is capable of being used for purposes of agriculture, including horticulture but is not however land used exclusively for non-agricultural purposes. If it be the latter, namely, land exclusively for non-agricultural purposes, it would fall outside the pale of the provisions of the 1971 Act and the authorities under this Act would have no jurisdictional domain to administer the provisions of the 1971 Act to the land. The Mandal Revenue Officer, the Revenue Divisional Officer and the Joint Collector as the primary, appellate and revisional authorities are creatures of and exercise jurisdiction under the provisions of the 1971 Act and are therefore required to exercise jurisdiction within the contours of the Act. Only when the land is one which is used or is capable of being used for the purposes of agriculture, including horticulture do the provisions of the Act apply. If the land is urban land i.e., used for non-agricultural purposes, it is axiomatic that the authorities under the 1971 Act are denuded of any jurisdiction to exercise or administer the provisions of 1971 Act. By erroneously determining this jurisdictional fact, a Tribunal of limited jurisdiction like the Mandal Revenue Officer, Revenue Divisional Officer or the Joint Collector cannot conclusively exercise the jurisdiction conferred under the Act. This is a too well settled principle to justify an idle parade of familiar learning. Reliance may usefully be made to the decision of the Constitution Bench of the Apex Court in Addanki Tiruvenkata Thata Desika Charyulu v. State of Andhra Pradesh[1]. Rajagopala Ayyangar, J speaks for the Constitution Bench quoted with approval the principle as to the extent to which the powers of statutory tribunals are exclusive as formulated by Lord Esher in The Queen v. The commissioner for Special purposes of the Income Tax (1888) 21 QBD 313, as follows: “When an inferior court or tribunal or body, which has to exercise the power of deciding facts, is first established by Act of Parliament, the legislature has to consider what powers it will give that tribunal or body. It may in effect say that, if a certain state of facts exists and is shown to such tribunal or body before it proceeds to do certain things, it shall have jurisdiction to do such things, but not otherwise. There it is not for them conclusively to decide whether that state of facts exists, and, if they exercise the jurisdiction without its existence, what they do may be questioned and it will be held that they have acted without jurisdiction. But there is another state of things which may exist. The legislature may entrust the tribunal or body with a jurisdiction, which includes the jurisdiction to determine whether the preliminary state of facts exists as well as the jurisdiction, on finding that it does exist, to proceed further or do something more. When the legislature are establishing such a tribunal or body with limited jurisdiction, they also have to consider, whatever jurisdiction they give them, whether there shall be any appeal from their decision, for otherwise there will be none. In the second of the two cases I have mentioned it is an erroneous application of the formula to say that the tribunal cannot give themselves jurisdiction by wrongly deciding certain facts to exist, because the legislature gave them jurisdiction to determine all the facts, including the existence of the preliminary facts on which the further exercise of their jurisdiction depends, and if they were given jurisdiction so to decide, without any appeal being given, there is no appeal from such exercise of their jurisdiction.” In the scheme of 1971 Act, the authorities must first be satisfied as to the jurisdictional fact that the property in respect of which an application for statutory intervention is made is “land” falling within the definition of the said expression in Section 2 (4) of the Act. Upon that enquiry and a proper determination thereof depends the legitimacy of the exercise by the authorities under the Act. The Mandal Revenue Officer must therefore ascertain whether the property in respect of which petition is presented is an agricultural land and he must address himself to that determination irrespective of whether one or more of the parties before him had focused on this issue. In any event, even if the Mandal Revenue Officer were to adjudicate or pass an order under the provisions of Section 5 of the 1971 Act and it were later to be contended in appeal or in revision or even in judicial review that the property in question is not “land” as defined under the provisions of 1971 Act, the appropriate authority before whom such an issue is addressed is bound to address that issue, since the question goes to the root of the jurisdiction of the authorities under the Act and if the property is eventually determined as not being “land” as defined under the provisions of the 1971 Act, any order passed by the primary, appellate or revisional authority would be a nullity on account of a patent lack of jurisdiction. Sri N.Vijay, the learned counsel for respondents 4 and 6 would contend that the schedule land is an urban property, because they are plots; since even the primary authority-the Mandal Revenue Officer in the order dated 10-6-2003 while recording the name of the 2nd respondent as in possession of the schedule property has recorded that the extent of Ac.3-16 guntas is an area covered by roads etc.; that several instruments of agreements of sale–cum-General Power of Attorney executed by Mekala Balaiah and Mekala Jeethaiah, both sons of late M.Durgaiah in favour of the 2nd respondent disclose in the schedule of the property in the said instruments to be several plots of land and the pleadings on record before this Court also disclose that there was a layout approved for the land in question by the Gram Panchayat, Nizampet; the lands are urban lands falling outside the purview of the definition ‘land’ as defined in Section 2 (4) of the 1971 Act. Per contra, Sri Rama Rao learned counsel for the petitioner, would contend that there is no material on record before this Court or presented before the appellate or revisional authorities to legitimize the conclusion that the schedule property is not “land” falling within the expression as defined in Section 2 (4) of the 1971 Act. It is also contended on behalf of the petitioner that there is no material to show that there was an approved layout and further that as there is no formal order converting the property into non-agricultural use nor is there any evidence to the effect that non-agricultural land tax was paid, it must follow that the property is agricultural land as is described in the revenue records. On a true and fair construction of the provisions of Section 2 (4) of the 1971 Act, it appears to this Court that the expression ‘land’ having been specifically defined in this legislative instrument, in the absence of phraseological ambiguity, there appears no justification to refer to other legislative instruents for interpretation of expression ‘land’. Section 2 (4) of the 1971 Act defines ‘land’ as one 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. On a true and fair construction of Section 2 (4) of the 1971 Act, the conclusion is compelling that for a property to come within the domain of the 1971 Act, it should be one which is actually used for the purposes of agriculture or is capable of being so used, including for horticulture. Coupled with the exclusionary phrase in Section 2 (4) of the 1971 Act, it must follow that though a property is capable of being used for purposes of agriculture, if it is used exclusively for non-agricultural purposes, the actual use for non- agricultural purpose would exclude the schedule property from the ambit of the Act. Since this is a jurisdictional fact, whether the property is land as defined in the 1971 Act or not, the primary authority must determine. Elsewhere in the record, there is also a statement to the effect that the land is fallow and therefore is presumably not being used for agricultural purposes. If it is actually used for agriculture, then the land is one which is perhaps capable of being used for agricultural purposes. If it is actually used for non-agricultural purposes such as for house plots, then the property would fall outside the pale of “land” under the provisions of 1971 Act. The determination of the character of this land is therefore the primary burden of the authorities under the Act and this is a preliminary and a jurisdictional fact issue, which is unavoidable. On behalf of respondents 3 to 17, the issue as to the character of this land had not been presented before the Mandal Revenue Officer because they had no notice of the proceedings before the said authority. These respondents did not raise this issue directly in the appeal proceedings before the Revenue Divisional Officer. They raised it before the 1st respondent-revisional authority directly. But Sri Rama Rao, learned counsel for the petitioner contends that there was no proper analysis of the relevant material by the 1st respondent to justify the conclusion in the revisional order that the land is urban land and, therefore, falls outside the domain of the 1971 Act. On a careful perusal of the record of the case including the reasoning recorded in the impugned order, this Court is satisfied that the cardinal and jurisdictional fact issue was not properly addressed in the revisional order and rightly so, since it was raised for the first time before the revisional authority. No doubt the revisional authority has recorded that once agricultural land is converted into housing plots, the land no longer retains the character of agricultural land and as such the 1971 Act has no application. Except for this finding, there is no detailed analysis of the relevant facts, such as the fact that the land was converted into house plots both in favour of the 2nd respondent from whom the petitioner derived title as well as in favour of the respondents 3 to 17; that roads were laid on an extent of Ac.3-16 guntas; whether pursuant to or de hors an approved layout; and whether the area is declared for a particular use in the zoning regulations notified by the relevant urban development authority. All aspects constitute the factual basis for the eventual conclusion whether the land is one 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. On the aforesaid analysis, in the considered view of this Court, the order of the 1st respondent dated 20-5-2008 as well as the order of the Special Grade Deputy Collector and the Revenue Divisional Officer, Ranga Reddy East Division dated 25-9-2003 and the order of the Deputy Collector and the Mandal Revenue Officer, Quthbullapur, Ranga Reddy District dated 10-6-2003 require to be set aside and are accordingly quashed. It is now open to the petitioner and/or any of the non-official respondents in these proceedings to petition the Mandal Revenue Officer, the primary authority under the provisions of the 1971 Act, for exercise of jurisdiction under the provisions of the Act. On such a petition being presented, the respondents 3 to 17 shall be issued a notice by the Mandal Revenue Officer as to such a petition having been filed. After receipt of such a notice from the Mandal Revenue Officer, the noticees are at liberty to address all objections to the exercise of jurisdiction under the provisions of the 1971 Act including on the ground that the petition is presented in respect of property which is not “land” as defined in Section 2 (4) of the 1971 Act. After affording a reasonable opportunity for contest the Mandal Revenue Officer shall pass orders determining the jurisdictional fact whether the property in an extent of Ac.3-16 guntas in Sy.No.100/B of Nizampet village, Quthbullapur Mandal, Ranga Reddy District is ‘land’ within the meaning of the said expression as defined under Section 2 (4) of the 1971 Act. If the determination by the Mandal Revenue Officer on this preliminary and jurisdictional fact is that the property is “land” falling within the provisions of the Act, he may proceed to adjudicate on the merits of the claim in the petition presented before him. If he concludes that the property is not ‘land’, the petition under the provisions of the Act would be patently without jurisdiction and no further issue would arise for determination by the Mandal Revenue Officer. This is the spectrum of the Mandal Revenue Officer’s jurisdiction, having regard to the text and context of the provisions of the 1971 Act. The writ petition is allowed as above. No costs. ________________________ GODA RAGHURAM, J 18th June, 2009. GRR [1] AIR 1964 SC 807