A.P. Punjabi Sabhra Rep. By Its … vs The Joint Collector on 10 September, 2004

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Andhra High Court
A.P. Punjabi Sabhra Rep. By Its … vs The Joint Collector on 10 September, 2004
Equivalent citations: 2004 (5) ALD 644
Author: L N Reddy
Bench: L N Reddy


ORDER

L. Narasimha Reddy, J.

1. This revision is directed against the order dated 20.02.2004 passed by the Joint Collector, Hyderabad, the first respondent, under Section 24 of the A.P. (Telangana Area) Abolition of Inams Act, 1955 (for short ‘the Act’). Through that order, the first respondent dismissed the appeal preferred by the petitioner against the order dated 06.06.2002 passed by the Revenue Divisional Officer, Hyderabad (Inams Tribunal), the second respondent, issuing the Occupancy Rights Certificate (O.R.C.) under the provisions of that Act in respect of the land admeasuring 3500 sq. yards in survey Nos. 22 and 24 of Daiara village, Himayathnagar Mandal, Hyderabad District, in favour of respondents 3 to 5 (hereinafter be referred to as ‘the contesting respondents’).

2. Claiming to be the lineal descendants of one Zainulabeddin and his wife Ayesha Begum, the contesting respondents filed an application before the second respondent under Section 4 of the Act, for grant of O.R.C. in respect of the land in old survey No.18 correlated to new survey Nos.22,24 and 26 of the said village. Initially, the application was made in respect of the land in an extent of Ac.1.34 guntas in survey No. 26. Later on, they came forward with a further request to grant O.R.C. in respect of Ac.0.20 guntas of land in survey No.22 and Ac.0.38 guntas of land in survey No. 24. According to them, the land in old survey No.18 was granted as Inam in favour of their ancestor Zainulabeddin through a muntakab dated 31.06.1312 Fasli and after his death succession was granted in favour of his wife Ayesha Begum. They pleaded that Ayesha Begum died on 31.10.1978 and her only daughter Hafeejunnisa Begum, mother of the contesting respondents, became the successor, and that on her death, they became entitled to be granted the O.R.Cs. over the land. They pleaded that old survey No.18 was correlated to new survey Nos. 20,21,22,24,25 and 26 in the revision survey and that the Municipal Corporation acquired the land in survey Nos. 21 and 25 and paid compensation to them. According to them, the land in survey Nos. 22 and 24, part of survey No.26, is in their possession and that they are entitled to be granted the O.R.Cs.

3. The petitioner is an association. According to it, the land in survey Nos. 22 and 24 (new), survey Nos. 18 and 19/2 (old) was originally held by one Sri Ranga Reddy and after obtaining necessary permission under A.P. Act 12 of 1972, he sold the land in an extent of 2000 sq. yards in favour of Smt. Kultar Kour, W/o Mangal Singh in the year 1965 and an extent of 1500 sq. yards in favour of Mangal Singh and thereafter it purchased both the extents from Kultar Kour and Mangal Singh through separate sale deeds dated 11.07.1975. It pleaded that ever since the date of purchase, it is in possession and enjoyment of the land. The petitioner was not impleaded as a party in the application filed by the respondents. Several proceedings ensued between the petitioner, on the one hand, and the respondents on the other, before this Court and the Special Court constituted under the A.P. Land Grabbing (Prohibition) Act. All these proceedings resulted in an order dated 15.12.2000 passed by a Division Bench of this Court in W.A. Nos. 1749, 1520 and 1529 of 2000, wherein it was directed that the petitioner be impleaded as a party in the proceedings before the second respondent, initiated by the contesting respondents. The petitioner pleaded that the second respondent did not have jurisdiction to entertain the application filed by the contesting respondents, on the ground that the subject matter was not an agricultural land. It was also pleaded that the land is not covered by the provisions of the Act, the contesting respondents did not have the right or locus standi to claim O.R.C., since they are not in possession of the land and that the identity of the land is in serious dispute. The second respondent overruled the objections raised by the petitioner and granted O.R.C. in favour of the contesting respondents through its order dated 06.06.2002. The first respondent rejected the appeal preferred by the petitioner.

4. Sri Vilas Afzal Purkar, learned counsel for the petitioner, submits that there is nothing on record to disclose that the ancestors of the contesting respondents were granted inam in respect of the land in question or that the so-called inam in favour of Zainulabeddin continued to be in operation. He submits that even according to the recitals in the application filed by the contesting respondents, the land is non-agricultural in nature and thereby the second respondent did not have the jurisdiction to entertain the application. Learned counsel submits that even if there existed a valid inam in favour of Zainulabeddin or his successors, the competent authority to deal with such land was the one created under sub-section (2) of Section 28, since the land attracts Section 9 of the Act.

5. Learned counsel further contends that it was the consistent case of the contesting respondents that after acquisition by the Municipal Corporation, and compromise of O.S. No. 1429 of 1981 on the file of the III Additional Judge, City Civil Court, Hyderabad between themselves and one Chandraiah and others, they are in possession of Ac.1.34 guntas of land in survey No.26, whereas they have laid claim for a further extent of Ac.1.28 guntas of land in survey Nos. 22 and 24, without there being any basis. He contends that instead of taking exception to such an inconsistent stand, respondents 1 and 2 have accepted the claim of the contesting respondents. Lastly, he submits that respondents 1 and 2 have recorded several findings on the basis of irrelevant and inadmissible evidence, that too, without giving any opportunity to the petitioner.

6. Sri D. Prakash Reddy, learned senior counsel appearing for respondents 3 and 4, submits that the present revision under Section 28 of the Act is not maintainable for the reason that the order passed by the first respondent is an appeal and no revision is provided for against the same. He submits that respondents 3 and 4 have established the fact that the land was granted as inam to late Zainulabeddin and after his death a fresh grant was made infavour of his wife. According to him, there is an uninterrupted chain of succession up to respondents 3 to 5 on the strength of an order passed by the Nazim-E-Atiyat. Learned senior counsel points out that the agriculture could not be undertaken on the land in question, on account of the ban imposed ever since the Rule of the erstwhile Nizam and as long as the classification of the land remains as agricultural, the fact that the agriculture was not carried out in view of the ban, makes no difference in the context of grant of O.R.Cs. He also submits that variation in extent in the application filed by the contesting respondents, at the initial and later stages, is on account of the fact that the concerned records are not readily available. According to him, as long as the old and new survey numbers are correlated and their existence is shown in the relevant records, the petitioner cannot have any valid grievance.

7. Learned senior counsel submits that the claim of the petitioner over the land is absolutely without any basis. He refers to the observation made by the revenue authorities which is extracted in the order passed by the second respondent and submits that Ranga Reddy, who is said to have sold an extent of 3500 sq. yards infavour of Kultar Kour and Mangal Singh, did not hold any title and it claimed a semblance of right on the basis of manipulations resorted to by him. He also submits that the petitioner was never in possession of the land and that it has not chosen to file the application for grant of O.R.C. Sri V. Tulasi Reddy, learned counsel for R5 adopts the arguments of learned senior counsel.

8. The matter relates to grant of O.R.C. in respect of Ac.3.12 guntas of land in survey Nos. 22, 24 and 26 of Daiara revenue village. As observed earlier, the contesting respondents were granted the O.R.Cs. in respect of the said land by the second respondent and the appeal preferred by the petitioner was rejected by the first respondent. Before going into the merits of the case, the preliminary objection raised by the learned senior counsel, appearing for the contesting respondents, needs to be dealt with.

9. The revision is filed under Section 28 of the Act. The Act contemplates adjudication of the matters in relation to grant of O.R.C., enquiry into the nature and history of the lands, determination of compensation payable to inamdars and apportionment thereof etc. Under sections 4 to 8 of the Act, the power to register inams, Kabiz-e-kadim or tenants of different kinds, as occupants over an inam land, is conferred with the Collector. The enquiry undertaken under Sections 4 to 8 of the Act, results in passing of an order under Section 10. Section 9 of the Act, provides for adjudication of disputes in relation to the inam lands used for non-agricultural purposes or buildings thereon. Sub-section (4) of Section 24 mandates that the claims covered by Section 9 shall be referred to the prescribed authority. The Court of Chief Judge, City Civil Court, is said to be notified as the prescribed authority for this purpose. The Collector is also conferred with the power to make a reference to the Special Tribunal in the matter of payment of compensation. Sections 19 to 22 of the Act deal with the procedure for apportionment of compensation and other related matters.

10. Chapter IV of the Act deals with appeal, reference and revision. Against the orders passed under sections 19 to 22, appeals are provided to the Special Tribunal under Section 26. Appeals to the High Court are provided under Section 27, against the orders passed by the Collector under Section 18 and by the Special Tribunal, under Sections 25 and 26. Revisions, against any order passed or proceedings undertaken by the Collector or Special Tribunal are provided to the High Court under Section 28 of the Act, on the grounds indicated therein. However, Section 28 carves out an exception, as regards the orders of the Collector passed under Section 10, against which appeals are provided under sub-section (1) of Section 24. An element of uncertainty exists on account of the fact that the Revenue Divisional Officer and the Joint Collector answer the description of the Collector though they are conferred with different kinds of power. It is for this reason that there exists lack of unanimity in the views, taken by this Court as to the interpretation of Section 28.

11. In G.V. Narsimha Reddy v. Syed Aktar Ali, 1988 (2) ALT 136 Justice Jagannadharao, as he then was, discussed the scheme of the Act extensively and held that a revision under Section 28 is maintainable against an order passed by the Joint Collector, in exercise of appellate power under sub-section (1) of Section 24 also. His Lordships further held that even if there exists any doubt in this regard, such revision can be entertained, under Article 227 of the Constitution of India. In Mathan Sangaiah v. Patel Eswarappa, 1997(2) A.P.L.J. 494 Justice Y.V. Narayana took a different view and held that the order passed by a Joint Collector, in exercise of appellate power, is not amenable to revision, under Section 28 of the Act. The question as to whether the High Court can exercise its power, under Article 227 of the Constitution of India, was not discussed. Therefore, notwithstanding the doubt as to the maintainability of revision, under Section 28 of the Act, this Court is of the view that it can be dealt with under Article 227 of the Constitution of India.

12. Under Section 3 of the Act, Inams prevalent in the erstwhile Hyderabad state stood abolished. On such abolition, the lands stood vested in the State. However, the right, title and interest vested in the Inamdar, or a person in possession of Inam land for a continuous period of not less than 12 years before the date of vesting, termed as Kabiz-e-kadim or the tenants, are protected, subject to certain conditions and limitations. Such persons are entitled to be granted the occupancy rights, on being found eligible, in the enquiry, conducted by the competent authority. As observed earlier, Sections 4 to 8 of the Act deal with the registration of Inamdar, Kabiz-e-kadim and tenants as occupants in respect of agricultural lands. Section 10 empowers the Collector to accept the claims and confer rights. Similar enquiry for recognition of status and conferment of rights in respect of private buildings and non-agricultural lands is to be conducted under Section 9, by an authority provided for under sub-section (2) of Section 24 of the Act. One of the important points urged by the petitioner is that the second respondent did not have the jurisdiction to entertain the application of the contesting respondents for grant of ORC. The basis for this objection is that the lands in question were not put to agricultural use and that there did not exist any controversy on that aspect. By referring to the application filed by the contesting respondents, learned counsel for the petitioner submits that even according to them, the land is put to non-agricultural use and in that view of the matter, the second respondent ought not to have entertained the application at all. Learned senior counsel appearing for the contesting respondents, on the other hand, submits that agriculture in the subject land was prohibited by the then Nizam Government and the same prohibition continued thereafter. He submits that the land continues to be treated and as recognized as agricultural land in the revenue records and the fact that agriculture is prohibited in such a land cannot make any difference, from the point of view of adjudication of claims.

13. The contesting respondents made an attempt to convince this Court that claims arising under Section 9 of the Act, in respect of non-agricultural lands and buildings, can also be dealt with by the Collector under Section 10. Reference is made to the Judgment of the Supreme Court in Lokraj v. KishanLal, . The question before the Supreme Court was as to whether a suit is maintainable for partition of inam lands. It arose in the context of exclusion of jurisdiction of civil Courts under Section 32 of the Act. While referring to the scheme of the Act, the Hon’ble Supreme Court observed as under:

“Section 10 creates forum for determination of the entitlements in Sections 4 to 9.”

14. Another sentence where Sections 4 to 9 were referred to reads as under:

“Section 24 gives right of appeal against the order passed by the authorities constituted under Section 10, to determine the questions enumerated in Sections 4 to 9.”

15. The distinction between the rights in respect of the agricultural lands provided for under Sections 4 to 8, on the one hand, and those in respect of non-agricultural lands and buildings, under Section 9 of the Act, on the other, did not fall for consideration. Their lordships do not appear to have noted this vital aspect, obviously, because it did not arise in the facts of that case. It is a settled principle of law that a decision of the Court is an authority for what it decides and not in relation to every observation made therein. Section 9 appears to have been included in the group of sections commencing from Section 4, because all of them relate to determination of rights in Inam properties. There was no way, the Collector could have been conferred with the powers to deal with the claims in relation to the lands and buildings referred to under Section 9 of the Act. For such claims, the authority is the one, constituted under sub-section (2) of Section 24 of the Act. A reading of both these provisions will demonstrate the situation beyond any pale of doubt. They read as under:

Sec. 10: “Enquiry by Collector in certain cases:- The Collector shall examine the nature and history of all lands in respect of which an inamdar, Kabiz-e-kadim, permanent tenant, protected tenant or non-protected tenant, claims to be registered as an occupant under Sections 4,5,6,7 and 8 as the case may be, and decide-

a) In whose favour, and in respect of which inam lands, the claims should be allowed;

b) The land revenue and the premium payable in respect of such lands.

Sec.24: Appeals from orders under Section 10 to prescribed authority:-

1) ………….

2) If any question arises whether any building or land falls within the scope of section 9 the same shall be referred to the prescribed authority whose decision shall be final.

16. Therefore, the Collector has no power under Section 10, to deal with the claims in relation to properties referred to in Section 9.

17. Reverting to the facts of the case, it is evident that the contesting respondents have indicated the nature of the land in the separate applications submitted by them in Form I, for Ac.1.34 guntas of land in survey No.26, and Ac. 2.28 guntas of land in survey Nos. 22 and 24; as well as in the combined application, for both these items, on 16.05.2001. In form I, column No.3 relates to the details of the land. The contesting respondents furnished the details as under:

  

 "Details of the Inam lands which are in his possession as on 20th July, 1955
 {I}     Village..   Diara village
{ii}    S.No...    22, 24, 26, Old S.No.18
{iii}   Area..     3 Acs 12 guntas
{iv}    Assessment..     Rs.2734.66
{v}     Wet or Dry/Non agricultural..   
 

18. To have a clear understanding of the distinction maintained between the agricultural lands, on the one hand and the non-agricultural lands on the other, it is relevant to extract Section 9 of the Act.
  

 "Vesting of certain buildings and inam lands used for non-agricultural purposes:- (1) Every private building, situated within an inam shall, with effect from the date of vesting, vest in the person who owned it immediately before that date.
 

  (2) Where an inam land has been converted for any purpose unconnected with agriculture, the holder of such land shall be entitled to keep the land provided that such conversion was not void or illegal under any law in force.
 

  (3) The vesting of private buildings or lands under sub-section (1) or (2) shall be subject to the payment of non-agricultural assessment that may be imposed by Government from time to time." 
 

19. The term ‘agricultural or non-agricultural purposes’ is not defined under the Act. However, for the purpose of Section 9, it is sufficient if the land is put to non-agricultural purposes. The reason or justification is outside the scope of enquiry under the provisions of the Act. The Collector will assume jurisdiction to decide the claims under Section 10 only, if the lands were put to agricultural use. Though in form I, the relevant date is mentioned as 20.07.1955, in view of subsequent legislative changes and judicial pronouncements, the crucial date now stands as 01.11.1973. In Sections 4 and 5, the expression ‘cultivates personally’ is used, whereas in sections 6,7 and 8, the expression ‘under his personal cultivation’ is employed. They constitute the jurisdictional facts, for exercise of power under Section 10. An inamdar, Kazim-e-kadim or tenant may have an excellent ground or justification, for not undertaking activities of cultivation in the inam lands. But once such land is found to be not under cultivation, the Collector ceases to have power to deal with the same under Section 10. Further, the contesting respondents clearly stated that the land is put to non-agricultural purposes.

20. In its wisdom, the legislature mandated that the adjudication of the claims in relation to the buildings and non-agricultural inam lands, be, undertaken by a specialized forum, and not by the Collector. That being the case, it was not open to the second respondent, to have entertained the application submitted by the contesting respondents under Section 4 of the Act. It is pointed out by the learned senior counsel that this objection was not raised before respondents 1 and 2. From a reading of the order passed by the first respondent, it is evident that a specific ground, as to lack of jurisdiction for entertaining the application under Section 10 was raised. Be that as it may, even if it is assumed that the ground was not raised pointedly, being a question of law, that too, touching the jurisdiction of the authority, the same can be taken note of by this Court. Since it is found that the second respondent did not have the jurisdiction to entertain the application filed under Section 4 of the Act, in respect of the lands in question, the order passed by him as well as the one passed in appeal by the first respondent are liable to be set aside.

21. Strictly speaking, there is no necessity to discuss the matter further, once it is held that the proceedings before the first respondent were without jurisdiction. However, certain aspects need to be made clear. There is a serious dispute about the extent as well as the identity of the land. The contesting respondents themselves were not sure about the extent of land in respect of which they wanted the occupancy rights to be granted. They made an application initially for an extent of Ac.1.34 guntas in survey No.26. Later on, they revised the prayer by including a further extent of Ac.1.28 guntas in survey Nos. 22 and 24. The explanation that the discrepancy arose on account of lack of proper records does not appear to be valid or readily acceptable. Irrespective of the classification or entries in the revenue records, the contesting respondents were expected to be sure at least as to the extent over which they are in possession. Further, a more convincing explanation was needed to explain the discrepancy between their present claim and the one made by them in O.S.No.1429 of 1981 on the file of the III Additional Judge, City Civil Court, Hyderabad. The first respondent has undertaken correlation of extents and survey numbers almost in a unilateral manner without affording an opportunity to the petitioner. Such a course of action is impermissible in law. These observations are made only with a view to emphasize that the matter needs tobe dealt with, in an effective manner, at least, when it is presented before the competent authority under the relevant provisions of law.

22. It is true that the claim of the petitioner is only in respect of 3500 sq. yards, whereas the proceedings under revision relate to vast extent of Ac.3.12 guntas of land. This Court would certainly have considered the feasibility of restricting the scope of the C.R.P. to an extent of 3500 sq. yards and to leave the proceedings in relation to balance of the land, untouched. However, once a finding is recorded that the first respondent did not have the jurisdiction to entertain the application filed by respondents 3 to 5, it is impermissible to separate and sever the order, on the basis of the claims between the parties.

23. Hence, the civil revision petition is allowed and the orders under revision are set aside. It is, however, left open to respondents 3 to 5 to make a claim in respect of the lands, under Section 9 of the Act, before the authority referred to under sub-section (2) of Section 24 of the Act. Status quo obtaining as on today shall be maintained, for a period of four weeks from today. Thereafter, it shall be open to the parties to seek appropriate orders from the concerned authority, in case the proceedings are initiated before them. There shall be no order as to costs.

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