IN THE HIGH COURT OF JUDICATURE, ANDHRA PRADESH AT HYDERABAD (Special Original Jurisdiction) FRIDAY THE FIFTEENTH DAY OF APRIL TWO THOUSAND AND ELEVEN PRESENT THE HON'BLE MR JUSTICE V.ESWARAIAH WRIT PETITION No.1608 of 2005 Between: Gopathi Manikyam and 5 others ..... PETITIONERS AND The Joint Collector, Medak District at Sangareddy and 7 others .....RESPONDENTS The Court made the following: THE HON'BLE MR JUSTICE V.ESWARAIAH WRIT PETITION No.1608 of 2005 O R D E R: This Writ of Certiorari is for calling for the records of the orders of the 1st respondent-Joint Collector, Medak District in Case No.F3/8034/2003- F3/11/ROR/2004 dated 11.01.2005 confirming the orders of the 2nd respondent-Revenue Divisional Officer, Sangareddy dated 25.09.2003 in File No.A3/3202/2000 and for quashing the same as being illegal, contrary to law and vitiated by material irregularities, errors apparent on the face of the record and gross violation of the principles of natural justice. 2. It is the case of Petitioners Nos.1 to 3 herein that they are absolute owners and possessors of the agricultural land, admeasuring Ac.24.32 gts in Sy.No.217 of Kulbagoor village, Sangareddy Mandal, Medak District which was inherited from their late father Gopathi Mallaiah. Gopathi Mallaiah purchased the said property in the revenue auction conducted in 1954, and accordingly, the possession was delivered and mutation was done in his favour, as is evident from the Faisal Patti for the year 1969. It is stated that late Gopathi Mallaiah, father of Petitioners Nos.1 to 3 also filed declaration under the A.P.Land Reforms (Ceiling on Agriculture Holdings) Act, 1973 in Case No.889/S/75 before the Land Reforms Tribunal, Sangareddy, showing the said land in question and other lands. After enquiry and on the basis of the verification officers’ report, the said Gopathi Mallaiah was declared as non-surplus holder in respect of the said land in question and other lands by order dated 27.07.1976 in CC.889/S/75 of the Land Reforms Tribunal, Sangareddy Division, Medak District. Late Gopathi Mallaiah also availed loan from the Land Mortgage Bank by executing the registered mortgage deed dated 02.01.1970 in favour of the Land Mortgage Bank. It is stated that the said Gopathi Mallaiah had cleared the entire loan by 1979 as per the discharge certificate issued by the Land Mortgage Bank dated 08.11.2003. 2(a). After the death of the Gopathi Mallaiah, Petitioners Nos.1 to 3 being sons have inherited the said property and they are in continuous possession and enjoyment of the said land, as is evident from the revenue records i.e. bunch of pahanies maintained by the Village Patwari from 1955-56 onwards to 2001-02. It is stated that late Gopathi Mallaiah had electricity service connection bearing No.33 to the motor pump set installed in the said land, and the electricity bills, cards and electricity slab passbooks are filed for the period from 1982 to 1992. It is stated that pattadar passbook and title deed vide patta No.260 were also issued in respect of the said land of Ac.24.32 gts in Sy.No.217 along with other landa i.e. Ac.4.12 gts in Sy.No.220/A and Ac.1.21 gts in Sy.No.223/A4. After the death of Gopathi Mallaiah, the pattadar passbooks and title deeds were issued in the name of Petitioners Nos.1 to 3 under patta Nos.593, 594 and 595 vide passbook Nos.444453, 444454 and 444455 and title deed Book Nos.452172, 452171 and 452170 in the middle of the year 2003. 2(b). It is stated that in the meanwhile, Respondents Nos.4 to 7 who are the sons of late Yerra Manaiah, and 8th respondent, wife of late Raju, who was also the son of Yerra Manaiah, approached the 2nd respondent- Revenue Divisional Officer stating that their mother made an application to the District Collector, Medak on 02.08.1978 which was forwarded to the Tahsildar for enquiry. It is stated that their mother died in 1989 and thereafter, they came to know that the revenue records for the year 1970- 71 in respect of the said land in question were changed in the name of Petitioners Nos.1 to 3 though the said land belongs to their father late Yerra @ Kalal Manaiah who was the original pattadar. Late Yarra @ Kalal Manaiah gave the said land to the father of Petitioners Nos.1 to 3 on ‘batai’ (share cropping) basis. It is stated that the 2nd respondent without conducting enquiry and without verifying the facts and the records pertaining to the revenue auction, land reforms proceedings, mutation order etc in favour of late Gopathi Mallaiah, allowed the case vide proceedings dated 25.09.2003, directing to rectify the entries in the pahanies for the year 1970-71 onwards and incorporate the names of Respondents Nos.4 to 8. 2(c). Against the said order, Petitioners 1 to 3 filed revision before the 1st respondent-Joint Collector. In the meanwhile, Petitioners Nos.4 to 6 entered into the agreement of sale in respect of the land in question with Petitioners 1 to 3 before passing the orders by the 2nd respondent- Revenue Divisional Officer and executed the sale deeds in favour of Petitioners Nos.4 to 6 and presented for registration, and therefore, they are also shown as revision petitioners before the 1st respondent-Joint Collector. It is stated that the orders of the 2nd respondent-Revenue Divisional Officer which are confirmed by the 1st respondent-Joint Collector by the impugned order dated 11.01.2005 are illegal, and the proceedings initiated by the 2nd respondent-Revenue Divisional Officer on the representation made by Respondents Nos.4 to 8 for correction of the entries after 30 years is without jurisdiction and void. The rectification of an entry can be sought for under Sec.3(3) read with Rules-15 to 17 only within one year from the date of notification referred under sub-sec.(2) of Sec.3 to the Mandal Revenue Officer, but the said application is filed after 30 years and therefore, the impugned proceedings suffers from inherent lack of jurisdiction and void. Respondents Nos.1 to 3 have committed serious illegalities in ignoring the relevant revenue records and the evidence available on record by entertaining the representations from Respondents Nos.4 to 8, contrary to law and without any basis. 3. Counter is filed on behalf of Respondents Nos.1 to 3 revenue officials by the Joint Collector denying the averments made in the affidavit stating that the writ petitioners have not filed any documentary evidence to show that their father purchased the said land in public auction. No such record is available and therefore, the contention of Petitioners Nos.1 to 3 that their father purchased the said land in public auction in 1954 is not supported by any documentary evidence. If the father of the Petitioners Nos.1 to 3 had purchased the said land in public auction, there must be a sale certificate issued by the competent authority, but there is no such sale certificate available in the concerned office. In the absence of any sale certificate and the auction proceedings, the claim of Petitioners Nos.1 to 3 that their father purchased the land in question was not considered. With regard to ceiling declaration, it is stated that the self- serving ceiling declaration would not create any right over the property, and the said ceiling declaration has no effect, as the petitioners have not shown the source of title for the said property. 3(a). With regard to mortgage deed in favour of the Land Mortgage Bank and the discharge of the loan, it is stated that Petitioners Nos.1 to 3 might have shown their right and capacity to the Land Mortgage Bank, but in the absence of any basic records regarding mutation of the land in favour of the father of Petitioners Nos.1 to 3, and obtaining the loan from the bank would not create any right over the property. There is no record that the father of Petitioners Nos.1 to 3 had obtained the electricity connection and therefore, the said records cannot be relied upon. It is stated that though Petitioners Nos.1 to 3 have participated in the proceedings before the Joint Collector, they have not filed any documentary evidence, as such their claim could not be considered. 3(b). In so far as the possession of the said land by the father of Petitioners Nos.1 to 3 late Gopathi Mallaiah and after his death Petitioners Nos.1 to 3 is concerned, it is stated that the said Gopathi Mallaiah cultivated the said land two times since 1954 to 2001 i.e. in the year 1973-74 to an extent of Ac.4.00 gts and by his sons in the year 1998- 99 to an extent of Ac.4.05 gts. The pahani copies submitted by Petitioners Nos.1 to 3 are manipulated. In so far as the contention of Petitioners Nos.1 to 3 that their names were entered in the revenue records since 1970-71 in respect of the land in question is concerned, it is stated that the then Tahsildar was not authorized to enter the name of Gopathi Mallaiah in the pattadar column in the pahani for the year 1970-71, and as per the land revenue rules, without an order or direction of the competent authority and without obtaining any permission from the competent authority and without any documentary evidence, any entries made in the revenue records in the name of the individual i.e. Gopathi Mallaiah, it would not create any right over the property. It is stated that no record was placed by Petitioners Nos.1 to 3 before the Joint Collector or by the competent authority with regard to the auction proceedings. Therefore, in the absence of entries made in the pahani for the year 1970-71 would not create any right over the property in favour of Petitioners Nos.1 to 3. 3(c). It is stated that the 2nd respondent-Revenue Divisional Officer after seeking clarification from the Commissioner of Land Revenue with regard to the rectification of the record, and as per the clarification of the Commissioner of Land Revenue vide his letter ROR/128/1999 dated 14.10.1999 communicated to the District Collector, Medak, Sangareddy, the Revenue Divisional Officer/Joint Collector is empowered to rectify the wrong entries made by Patwari as an appellate authority, and as the appeal is filed under ROR Act challenging the entries therein and accordingly, the impugned order was passed. It is stated that the documents filed before this Court are not at all filed before the Joint Collector when the enquiry was conducted. During pendency of the proceedings before the Joint Collector, Petitioners Nos.1 to 3 have alienated the said property in favour of Petitioners Nos.4 to 6. As Petitioners Nos.1 to 3 have no title, their vendees i.e. Petitioners Nos.4 to 6 would not get any better title than their vendors i.e. petitioners Nos.1 to 3. It is stated that the order passed by the Revenue Divisional Officer was as per law and the correction of entries were rightly ordered to be rectified and the Revenue Divisional Officer is empowered to order for correction as per Rule-13(2) of A.P.Rights in Land and Pattadar Passbooks Rules 1989. It is further stated that Petitioners Nos.1 to 3 never raised any objection with regard to the jurisdiction, and as per the clarification of the Chief Commissioner vide letter dated 14.10.1999, the correction of clerical error can be done at any time by resorting to the provisions of Sec.9. It is stated that there cannot be any objection to take action or limitation proceedings under Sec.9 of the ROR Act. Therefore, if the Joint Collector/RDO/MRO, the recording authority genuinely feel that wrong entries were made in the record of rights due to clerical mistakes, there can be no objection for rectifying the same by resorting to suo motu process on the application made by the affected party so long such rectification is not going to adversely affect the other party. 3(d). It is stated that as the Revenue Divisional Officer has got power to entertain the application with regard to rectification as per the executive instructions of the Commissioner of Land Revenue, the Revenue Divisional Officer after conducting enquiry passed the said impugned order ordering rectification of the revenue records. It is stated that whatever documents filed by Petitioners Nos.1 to 3 were taken into account and none of the documents were overlooked. The Xerox copies filed by Petitioners Nos.1 to 3, which are inadmissible, cannot be looked into. Therefore, it cannot be said that the Joint Collector has ignored the documentary evidence and committed serious illegality. It is stated that no such document is placed by Petitioners Nos.1 to 3 before the Revenue Divisional Officer or before the Joint Collector and mere entry of the name of any person for any amount of period would not create any right without submitting any valid document or source of title as to how he acquired the property. 4. The contesting respondents Nos.4 to 8 filed a detailed counter, running into 15 pages, stating that Kalal Manaiah, father of Respondents Nos.4 to 7 was the pattadar and his name was recorded in the revenue records prior to 1954-55 till 1969-70. Kalal Manaiah had five sons who are respondents Nos.4 to 7 and the husband of 8th respondent. The father of Petitioners Nos.1 to 3 was cultivating the said land on Batai (sharing of the crop) basis. Taking advantage of the situation and also the death of Kalal (Yerra) Manaiah, Gopathi Mallaiah got the records manipulated and got entered his named as pattadar and possessor, deleting the name of their father. Respondents Nos.4 to 8 were being minors at that time, their mother Sayamma asked for payment of the share of crop, but the father of Petitioners Nos.1 to 3 denied and evaded payment of share of crop and claimed himself to be the owner. Therefore, the mother of Respondents Nos.4 to 7 filed application before the District Collector narrating all the facts and the Collector referred the matter to the Mandal Revenue Officer, and the Mandal Revenue Officer replied through a letter stating that there was no Fouthi Izafa nor Vargu Kami o r izafa which means, no mutation of Failsal patti either on account of the death, increase in the land or decrease in the land or on account of any sale transaction in the land was effected. That means, no orders were passed for changing the name of the pattadars and possession after 1969-70. All of a sudden, the next year the Village Patwari entered the name of the father of Petitioners Nos.1 to 3 as pattadar and possessor illegally which was not known to the wife of late Kalal (Yerra)Manaiah and Respondents Nos.4 to 8. As the crop share was not paid and on receipt of the report of the Mandal Revenue Officer, the matter was referred to the Revenue Divisional Officer, Sangareddy for removal of illegal and unauthorised entries in the revenue records and restoring the name of the original pattadar and possessor as existed in the Khasra Pahani right from 1954- 55 to 1969-70. For correction of unauthorised entries from 1970-71 onwards orders were passed, and therefore, the story of Petitioners Nos.1 to 3 that the Government conducted auction and their father purchased the said property is without any basis and no material was placed and the documents filed by the petitioners are fabricated. 4(a). It is further stated that in the file relating to excise arrears of Yerra (Kalal) Manaiah for the year 1962 onwards, there is no mention anything about the auction, therefore, the documents produced by Petitioners 1 to 3 are insufficient, irrelevant and incomplete to prove the title of the petitioners. No record is placed with regard to conduct of auction and for mutation in the name of the father of the Petitioners Nos.1 to 3 in the revenue records. Therefore, the orders passed by the Revenue Divisional Officer, as confirmed by the Joint Collector are legal and valid. Entries in the name of Gopathi Mallaiah, father of Petitioners Nos.1 to 3 as pattadar and cultivator in the revenue records and pahanies from 1970-71 onwards are totally unauthorised, false and fraudulent. It is stated that the updating of records and statutory powers were already conferred under Andhra Pradesh (Telangana Area) Records of Rights in Land Regulation 1358 Fasli. Subsequently Andhra Pradesh Record of Rights Act 1971 was further amended as Andhra Pradesh Rights in Land and Pattadar Passbooks Act 1971. The powers, functions as existed under old Act are also continued in the new Act, as such, it cannot be said that the recording authority has no right to rectify the entries. It is stated that the powers conferred under the old Act were not taken away even under the new Act and entering the name of Gopathi Mallaiah in the revenue records as pattadar and possessor in the pahanies from 1970-71 onwards are not lawful entries, and the revenue authorities taken into consideration as a civil rights dispute and ordered for rectification of illegal, unauthorised entries under the ROR Act, as there is no limitation prescribed for correction of false, wrong, illegal fraudulent and unauthorised entries in the revenue records. 4(b). It is stated that ownership rights are different from the entries in record of rights. Sometimes, it may tally with the persons and sometimes it may not tally with the persons. Therefore, continuance of illegal and unauthorised entries cannot confer any title to the said person and it will not effect for removal of original pattadar’s and possessor’s name just because of illegal and unauthorised entries existed for sometime without the knowledge of the real owners. It is stated that the orders of the Joint Collector are legal and valid and they cannot be interfered with. 5. The questions that arise for consideration are; i. whether the Revenue Divisional Officer, Sangareddy is empowered to rectify the entries made in the revenue records for the year 1970- 71 onwards, deleting the name of the pattadar whose name was entered in the revenue records from 1970-71 onwards by cancelling pattadar passbook and title deed after a period of 30 years; and ii. Whether the Revenue Divisional Officer has got any jurisdiction for ordering correction of the entries in the revenue records and cancellation of pattadar passbooks and title deeds after a period of 30 years, on the application made before him. 6. The original records are summoned. I have perused the original records. For the first time, a representation was made by Respondents Nos.4 to 8 herein before the Revenue Divisional Officer, Sangareddy on 27.12.2000 stating that their father was the pattadar of the land in question and the said land was given in favour of the father of Petitioners Nos.1 to 3 on “batai basis” and after death of their father, the father of petitioners Nos.1 to 3 stopped giving agriculture products (grains) etc., as required under crop sharing basis. Therefore, their mother preferred an application before the District Collector vide representation dated 02.08.1978 requesting to evict the “batai holder” from the patta land. The father of Petitioners Nos.1 to 3 had came to their house and requested the mother of the Respondents Nos.4 to 7 assuring that he would provide grains as required under “batai basis” regularly. It is stated that the mother of Respondents Nos.4 to 7 expired in 1989 when they were minors and thereafter, they have divided and working in various institutions as labourers. After coming to know about the aforesaid facts, they have applied for certified copies of Faisal Patti for the year 1969-70 since the name of Gopathi Mallaiah, the father of Petitioners Nos.1 to 3 was illegally recorded as pattadar in the pahanies of 1970-71. The Mandal Revenue Officer gave an endorsement stating that neither Fouthi Izafa nor Vargu Kammi or Virgu Izafa was sanctioned in Faisal Patti of 1969-70. The then Patwari of Kulabgoor village in the year 1969-70 illegally entered the name of Gopathi Mallaiah as Pattadar while removing the name of the original pattadar Yerra (Kalal) Manaiah without having valid reasons. Therefore, they have requested to vacate the unauthorised occupants on the aforesaid lands and verify the record and direct to correct the mistake made by the village Patwari in the year 1969-70 and restore the land to the legal heirs of late Yerra (Kalal) Manaiah, the original pattadar. Copy of the application said to have been filed by the mother of Respondents Nos.4 to 7 before the Collector on 02.08.1978 was also enclosed. The copies were also marked to the Tahsildar, Taluq Sangareddy and Revenue Divisional Officer, Sangareddy for necessary auction. There is no any endorsement as to whether the said application was filed before the Collector or not. Thereupon, the then Tahsildar, Sangareddy issued a notice vide notice dated ....08.1978 for conducting an enquiry to the Patwari of Kulabgoor village and the mother of Respondents Nos.4 to 7 namely Sayamma and the Gopathi (Abkari) Mallaiah, the father of Petitioners Nos.1 to 3 for settlement relating to payment of Mukta for the land in question. 7. The unofficial respondents and Sayamma, W/o.late Manaiah got issued a legal notice dated 01.09.1983 to the father of Petitioners Nos.1 to 3 stating that the said land belongs to them as they being the joint family members and inherited the same after expiry of Kalal Manaiah, but the Gopathi Mallaiah, the father of Petitioners Nos.1 to 3 illegally occupied the said land and got recorded his name in the revenue records as owner without any proper authority, therefore, called upon the father of Petitioners Nos.1 to 3 to vacate and handover the vacant possession of the said land within 7 days, failing which they will file appropriate civil suit for recovery of possession. 8. The 5th respondent also filed an application on 05.03.2002 for the certified copy of the Protected Tenancy Register of 1951 in respect of the land in question, and pursuant to the said application he was communicated with the memo dated 18.03.2002 stating that Sy.No.217 is not entered in the P.T.Register and therefore, the copy cannot be given. 8(a). Thereafter, the Revenue Divisional Officer issued a notice in letter No.A3/3202/2000, dated 12.01.2001 posting the case for hearing on 29.01.2001. It is pertinent to note that pursuant to the petitions made by the unofficial respondents, namely E.Sayamma and 5 others on 06.12.1984 and 12.12.1984, the Collector, Medak District, Sangareddy issued a memo dated 15.09.1984 in letter L.Dis.No.A4/137/84 informing them that the provisions of Sec.98 of A.P.(T.A) Tenancy and Agriculture Land Holdings Act 1950 do not provide for eviction of the unauthorised occupants who are in wrongful possession of any land. It is evident from the petition of the unofficial respondents that the father of Petitioners Nos.1 to 3 was authorised to cultivate the land, therefore, the Tenancy Act has no application, for taking possession of the land from the tenant, and the action can be initiated under Sec.32 of A.P.(T.A) Tenancy and Agriculture Lands Act 1950. Accordingly, the petition of the unofficial respondents was returned. 9. Petitioners Nos.1 to 3 made a representation before the Revenue Divisional Officer on 23.01.2001 pursuant to the notice dated 12.01.2001 stating that their father had been cultivating the said land from 1954 onwards, and by taking loan from the Land Mortgage Bank, he dug two wells. As Yerra (Kalal) Manaiah had fallen in excise arrears, his land along with the house was also auctioned. Their father purchased the land in question. Earlier, they have shown the said land under the Land Reforms Act intimating about the death of their father and they have enclosed the Land Reforms Tribunal proceedings as well as pattadar passbook etc for dropping the action. The Revenue Divisional Officer issued a notice dated 17.06.2001 posting the case for hearing on 06.07.2001 and the case was reserved for orders, as is evident from the proceedings of the Revenue Divisional Officer No.A3/3202/2000 dated 14.09.2003 intimating the Joint Sub-Registrar, Sangareddy not to entertain any sale transaction in respect of the said land. Thereafter, the Revenue Divisional Officer passed orders on 25.09.2003 ordering for rectification of the alleged wrong entries said to have been made by the then Patwari, Kulabgoor village in respect of the land in question and the pahanies for the year 1970-71 onwards and directed to incorporate the names of