IN THE HIGH COURT OF JUDICATURE, ANDHRA PRADESH AT HYDERABAD (Special Original Jurisdiction) WEDNESDAY, THE FIFTEENTH DAY OF APRIL TWO THOUSAND AND NINE PRESENT THE HON'BLE MR JUSTICE G.CHANDRAIAH WRIT PETITION NO : 21769 of 2001 Between: DAVEEDS, S/o. Late Tukkaiah, R/o. Mahabatpur, Raikode Mandal, Medak District. ..... PETITIONER AND 1 The Joint Collector, Sanga Reddy, Medak District, 2 The Revenue Divisional Officer, Sanga Reddy, Medak District, 3 The Mandal Revenue Officer, Raikode Mandal, Medak District, 4 Alige Yesaiah, S/o. Balaiah, R/o. Mahabatpur Village, Raikode Mandal, Medak District. 5 Alige Sammaiah, S/o. Pochaiah, R/o. Mahabatpur Village, Raikode Mandal, Medak District. 6 Alige Ramanna, S/o. Nagaiah, R/o. Mahabatpur Village, Raikode Mandal, Medak District. 7 Thukaram, S/o. Nagaiah, R/o. Mahabatpur Village, Raikode Mandal, Medak District. .....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 issue a Writ, order or direction more particularly one in the nature of Writ of Mandamus, declaring the order passed by the 1st respondent in his Proceedings Case.No.F3/30/ROR/99, F3/9304/99 dt. 16.7.2001 confirming the orders of the 2nd respondent vide Proceedings No.B4/209/93, dt. 19.11.1999 as illegal, arbitrary and without jurisdiction and consequently set aside the same. Counsel for the Petitioner:MR.A.L.RAJU Counsel for the Respondent No.: MR.B.MALLIKARJUNAPPA The Court made the following : JUDGMENT: This writ petition is filed seeking for a writ of Mandamus declaring the order passed by the first respondent, namely, the Joint Collector/District Judge, Sanga Reddy, in proceedings No.F3/30/ROR/99/F3/9304/99, dated 16.07.2001 confirming the order of the second respondent, namely, the Revenue Divisional Officer, Sanga Reddy, Medak District, vide proceedings No.B4/209/93, dated 19.11.1999 as illegal, arbitrary and without jurisdiction and consequently to set aside the same. The case of the petitioner is that one Siva Lingaiah was granted inam to an extent of 7.03 guntas in S.No.9 situated at Mahabathpur Village, Raikode Mandal, Medak District. Siva Lingaiah died leaving behind two sons, namely, Balaiah and Pochaiah. Balaiah also died leaving behind his son namely Lingaiah, who also died leaving behind his son Thukkaiah. Thukkaiah is the father of the petitioner. The father of the petitioner filed an application before the Mandal Revenue Officer, Raikode for mutation, to an extent of Ac 3.22 guntas in S.No.9 of Mahabathpur Village in his favour. The Mandal Revenue Officer, Raikode has passed an order vide proceedings No.B/1840/93, dated 07.10.1993 while implementing xerox copy of Ryotwari Patta issued by the then Tahsildar, Zaheerabad in Ref.No.D1/855/70, dated 11.02.1970 and brought on record the name of Thukaram to an extent of Ac 3.22 guntas in S.No.9 situated at Mahabathpur, Medak District. Therefore, the petitioner and his father are entitled for 50% of share in the property. It is his further case that while issuing proceedings by the first and second respondents respectively, they have not considered the rights of co-parceners, who are entitled to 50% share in the land. It is his contention that the petitioner is entitled to get ½ share out of Ac 7.03 guntas of land. The said fact was confirmed in the Grama Sabha conducted by the then Mandal Revenue Officer, in the year 1993 and to that effect, panchanama was also prepared. The petitioner is in the possession of Ac 3.22 guntas of land and it has to be recorded in the revenue records. If the respondents do not carry out the entries in the revenue records, it is not possible for the petitioner to alienate this property. It is also stated that the action of the official respondents in not considering the rights of one of the branch of legal heirs, is illegal and arbitrary. Therefore, this writ petition is filed. The proceedings No.B4/209/93, dated 11.11.1999 issued by the Revenue Divisional Officer, Sanga Reddy reveals that he has passed this order under Section 5 (5) of R.O.R. Act. It also reveals that it is an order passed in the appeal. The order says that the appeal is filed by one Yesaiah and three others under Section 5 (5) of R.O.R. Act and at the same time, an appeal was also filed for grant of occupancy rights in respect of Ac 7.03 guntas in S.No.9, situated at Mahabathpur Village of Raikode Mandal and both the appeals were finally heard and disposed of. As per the said proceedings, the Revenue Records pertaining to Khasra Pahani 1954-55 in respect of the land in an extent of Ac 7.03 guntas in S.No.9 which is an Inam land held in the name of Shiva Lingaiah as Inamdar and in the name of Balaiah as possessor, who is in possession. As per Chesala Pahani for the years 1955-56 to 1957-58 and Pahani for the years 1958-59 to 1991-92, Shivalingiah, son of Hullaiah, Balaiah and his brothers Nagaiah, Sammaiah and sons of Pochaiah are in equal enjoyment over S.No.9 to an extent of Ac 7.03 guntas. In the meanwhile, the then Mandal Revenue Officer, Raikode in his proceedings, dated 07.10.1993 while implementing the Xerox copy of the Rythwari Patta Certificate issued by the then Tahsildar, Zahirabad in Ref.No.D1/855/70, dated 11.02.1970 brought on record the name of Tukaram to an extent of 3.22 guntas in S.No.9 situated at Mahabathipur Village. It is further stated that this Court struck down A.P. Abolition of Inam Act, 1967 (No.9 of 1967) dated 31.03.1970. Subsequently, the State Government has framed new Rules under Act 8 of 1985 as amended by Act 16 of 1986 and the Rules made thereunder. According to the provisions contained therein, the Revenue Divisional Officer is a proper forum to issue Occupancy Right Certificate under Inam Abolition Act. It clearly shows that the Certificate issued by the then Tahsildar, Zahirabad in his proceedings No.D1/855/70, dated 11.02.1970 stands invalid. It is also held that from Khasra Pahani for the year 1954-55 and Chesala Pahani for the years 1955-58 in S.No.9 to an extent of 7.03 guntas is recorded as Inam land held in the name of Shiva Lingaiah and others and for the last 38 years, they are in continuous possession over the said land. Therefore, it was ordered by the Revenue Divisional Officer that the Occupancy Rights Certificate is considered as per the Revenue Records and they are in continous possession over S.No.9 to an extent of Ac 7.03 guntas sisuated at Mahabathpur Village of Raikode Mandal in respect of Yessaiah, son of Balaiah, Sammaiah, son of Pochaiah, Ramaiah, son of Nagaiah and Tukaram, son of Nagaiah. Aggrieved by the same, the petitioner filed an appeal before the Joint Collector. The Collector also passed an order in his proceedings, dated 16.07.2001, concurring with the finding of the Revenue Divisional Officer and dismissed the appeal. No counter affidavit has been filed by the un-official respondent, but the counter affidavit has been filed by the official respondent Nos.1 to 3 and in the counter affidavit filed by respondent Nos.1 to 3, supporting the impugned order, it is stated that late Siva Lingaiah and his legal heirs are in possession and enjoyment of the land for the years 1955-58 to 1991-92 and accordingly, occupancy rights were issued in favour of four persons, namely, Yesaiah, Sammaiah, Ramaiah & Tukaram and the petitioner’s case was negatived. The case of the petitioner was negatived on the ground that the Certificate issued in favour of his father by the Tahsildar, Zahirabad in his proceedings No.D1/855/70, dated 11.02.1970 is invalid, because of the fact that under the said Rules, Revenue Divisional Officer is only competent to issue the Occupancy Rights Certificate under the Inams Abolition Act, 1967. The categorical averments made in the affidavit filed in support of the writ petition is that the petitioner’s father was granted Occupancy Rights Certificate by the then Tahsildar, Zahirabad in his proceedings, dated 11.02.1970 and the petitioner is in possession and enjoyment to an extent of Ac 3.22 guntas, but when the petitioners and other legal heirs claimed through the branch of Siva Lingaiah, Grama Sabha was conducted by the Mandal Revenue Officer in the year 1993 and to that effect, Pancchanama was also prepared to show that the petitioner was in possession and enjoyment of Ac 3.22 guntas of land and it has to be entered in the Revenue Records. The petitioner is in possession and enjoyment of the land claimed by him and the same has not been disputed by the un-official respondents by not filing any counter. Therefore, it appears that both the authorities, namely, the Mandal Revenue Officer as well as the Joint Collector, who have issued the proceedings, which are impugned in the writ petition, have not considered the circumstances under which, the petitioners have made an application for grant of Occupancy Rights Certificate and under what circumstances, the Tahsildar, Zahirabad issued the Occupancy Rights Certificate in favour of the father of the petitioner, but the certificate issued by the Tahsildar, Zahirabad was invalidated only on the ground that he was not competent. The aspect of competency or in-competency is a matter to be considered by the authorities, who have issued the proceedings in favour of the father of the petitioner. If an application is filed seeking appropriate relief before an authority, which is not competent, the said application has to be forwarded to the competent authority under law or the said application has to be rejected on the ground that he does not have any jurisdiction, enabling the applicant to approach the competent authority under law, but for want of in- competency, the case of the applicant cannot be rejected without considering his entitlement to the relief sought for in the application. It appears that in the instant case, it has happened. Further, there is no dispute with regard to the factum of possession of an extent of Ac 3.22 guntas of land in S.No.9. Further, there is no answer to the claim of the petitioner, as the rights of one of the branch along with the branch of Siva Lingaiah have not been considered by the authorities and the appellate authority also did not consider either of the aspects and simply it has issued the order concurring with the findings of the original authority, i.e., the Revenue Divisional Officer. The fact remains that the claim of the petitioner about his right over the land in question went un- considered and this crucial fact should have been considered by the authorities under law. For these reasons, the impugned order is set aside and the matter is remitted back to the Revenue Divisional Officer to consider the case of the petitioner afresh, by giving an opportunity to the petitioner as well as the affected parties, including the party respondents herein and pass appropriate orders in accordance with law, within a period of two months from the date of receipt of a copy of this order. The writ petition is allowed. No order as to costs. _______________ G.CHANDRAIAH J., Dt.15.04.2009 tjs