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Agmiah Vs. the Joint Collector, Hyderabad and ors. - Court Judgment

LegalCrystal Citation
SubjectProperty
CourtAndhra Pradesh High Court
Decided On
Case NumberWrit Appeal No. 628 of 1969
Judge
Reported inAIR1972AP44
ActsHyderabad Record of Rights in Land Regulation, 1358 - Sections 4(3), 15(1) and 15(2)
AppellantAgmiah
RespondentThe Joint Collector, Hyderabad and ors.
Appellant AdvocateTriambak Rao Deshmukh, Adv.
Respondent AdvocateGovt. Pleader and ;Mohd. Jahangir Ali, Adv.
Excerpt:
property - revisory jurisdiction - sections 4 (3), 15 (1) and 15 (2) of hyderabad record of rights in land regulation, 1358 - revision petition against alteration in record by 'tahsildar' refused by joint collector for want of jurisdiction - whether joint collector holds jurisdiction to decide such application for revision - appellant availed remedy of appeal before sub-collector - exhaustion of such option not a bar to avail option of revision - act of joint collector amounts to refusal to exercise jurisdiction - joint collector directed to decide revision petition. - .....collector was constituted under rule 17 as the appellate authority to hear and dispose f the appeals from the orders passed by the tahsildar under the rules. as per r. 18, the collector of the district also was constituted as an appellate authority from orders passed under rule 5 made by the deputy collector. the taluqdar or the district collector, was the authority who has been given the power under sub-section (2) of s. 15 of the regulation to call for and examine any records made under section 4 or s. 6 and pass such orders as he may think fit.8. it is contended on behalf of the respondents that a person who availed himself of the remedy of appeal under sub-section (1) of s. 15 of the regulation as against an order under sub-section (3) of s. 4 is precluded from further availing.....
Judgment:

Lakshmaiah, J.

1. This Writ Appeal is directed against the decision of our learned brother, Chinnappa Reddy, J. rendered on 23-7-1969 dismissing of Writ Petition filed by the appellant herein seeking the issuance of a wit of certiorari for quashing the order passed by the Joint Collector, Hyderabad rejecting an application filed under sub-section (2) of S.15 of the Hyderabad Record of Rights in Land Regulation, 1358 F as not maintainable.

2. The nature, extent and scope of the revisory jurisdiction under sub-section (2) of S. 15 of the said regulation is thus involved in the disposal of this matter.

3. Sri Abdul Hamid Khan, the 3rd respondent herein filed an application before the Tahsildar under sub-section (3) of S. 4 of the Hyderabad Record of Rights in Land Regulation (referred to hereinafter merely as the Regulation) seeking the rectification of certain entries in the Khasra pahani praying for the deletion of the name of the appellant herein. The application was order by the Tahsildar. Thereupon the appellant herein preferred an appeal under sub-section (1) of S. 15 of the Regulation before the Sub-Collector. Hyderabad East and the Sub-Collector dismissed the appeal. Aggrieved by that decision, the appellant herein filed an application before the Joint Collector, Hyderabad invoking his revisional jurisdiction under sub-section (2) of S. 15 of the Regulation. But the Joint Collector rejected that application holding that no power of revision was conferred upon him. Seeking the quashing of he aforesaid decision of the Joint Collector, the Writ Petition was filed, from out of which this appeal arises.

4. Our learned brother, while dismissing the writ petition, observed thus;

'The record mad under Section 4 is that made by the original authority and not by the appellate authority. Prima facie, Section 15 (2) must be taken to be confined to proceedings under Section 4 of the Regulation. In other words what s preferred under Section 15 (1) of the Regulation it will be open to the Collector to suo motu examine the records made under Section 4 of the Regulation and ;pass suitable order but if an appeal is preferred appellate authority shall be final and the collector is not empowered under Section 15 (2) to revise appellate orders..........................................'

The learned counsel appearing for the appellate submits that view of the learned Judge is not correct.

5. The only question that arises then for consideration in this case is whether an appellate decision under sub-section (1) of S. 15 as against an order under sub-section (3) of S. 4 is revisable under sub-section (2) of S. 15 of the Regulation.

6. Sub-section (1) of S. 4, it may be noted, of the Regulation provides for the preparation and maintenance of record of rights for every village. Under sub-section (2) thereof, the completion of the preparation of the record of rights referred to in sub-section (1) was required to be notified in the Jarida and Published in such manner as the Government may direct. Under sub-section (3) of that section, any person affected by any entry in such record may within a period of two years from the date of the notification referred to in sub-section (2), apply for rectification of such entry to such officer as the Government may empower in this behalf. The officer so empowered in the instant, case is the Tahsildar as provided for under Rule 14 of the Rules called. The Hyderabad Record of Rights Rules, 1956 made by the Rajpreamukh in exercise of the power conferred by Section 18 of the Regulation. As the controversy centres round the interpretation of the provisions contained in sub-sections (1) and (2) of S. 15 we shall read that section:

'Appeals: 15 (1) Any person affected by an order made on an application for rectification under sub-section (3) of section 4, or by an order made under sub-section (4) or an entry certified under sub-section (6) of S. 6 or by the division of a survey number into sub-divisions or the assessment of such sub-divisions under sub-sections (1) and (2) of S. 9 may, within a period of one month from the date of communications to the party of such order, certification, division or assessment, appeal to such officer as may be empowered by Government in this behalf and the decision of such offer on such appeal shall be final.

(2) The Taluqadar May of his own motion or on the application of a party call for and examine any records made under section 4 or S. 6 and pass such orders as he may think fit:Provided that no order which would adversely affected any person shall be passed except after hearing that person.'

7. The Deputy Collector was constituted under rule 17 as the appellate authority to hear and dispose f the appeals from the orders passed by the Tahsildar under the rules. As per R. 18, the Collector of the District also was constituted as an appellate authority from orders passed under Rule 5 made by the Deputy Collector. The Taluqdar or the District Collector, was the authority who has been given the power under sub-section (2) of S. 15 of the Regulation to call for and examine any records made under section 4 or S. 6 and pass such orders as he may think fit.

8. It is contended on behalf of the respondents that a person who availed himself of the remedy of appeal under sub-section (1) of S. 15 of the Regulation as against an order under sub-section (3) of S. 4 is precluded from further availing himself of the remedy by way of revision under sub-section (2) of S. 15 of the Regulation. It is the tentability or the maintainability of this contention that is to be examined. It may not be out of place to describe the nature or the kind of the jurisdiction contemplated under sub-section (2) of S. 15 of the regulation as a revisory one. Under sub-section (1) of S. 15, orders made under sub-section (3) of S. 4 and under sub-section (4) of S. 6, certification under sub-section (6) of S. 6 division or assessment under sub-section (1) and (2) of S. 9 are rendered specifically appealable with finality being secured to such appeals. But, under sub-section (2) of the said S. 15 the Taluqdar's power of revision is confined only to the records made under Section 4 or S. 6 but not to other matters. We have already noticed that sub-section (1) of S. 4 provides for the preparation and maintenance of Record of Rights for every village. Under sub-section (3) of the aforesaid section, any person affected by any entry in such records was given the right to apply for rectification of such entry to the Tahsildar and an order made on an application for rectification under sub-section (3) of S. 4 was rendered appealable under sub-section (1) of S. 15. The Taluqdar or the District Collector under sub-section (2) of S. 15 has been given power either of his own motion or on the application of a party to call for and examine any records made under section 4 or S. 6 and to pass such orders as he may think fit. There is nothing in the language employed in the aforesaid sub-section (2) of S. 15 limiting its operation, so far as the facts of the present case are concerned, only to a case where a person though affected by an order passed under sub-section (3) of s. 4 did not choose for whatever reason to be, to avail himself of the remedy by way of an appeal under sub-section (1) of S. 15. On the other hand it speaks about the records made under Section 4. The records, it speaks about under Section 4. are the records of rights required to be prepared and maintained under Section 4 with a provision initially to have the entries therein corrected under sub-section (3) of S. 4 at the instance of a person affected, with a further right of appeal being given under sub-sec. (1) of S. 15 to a person affected by the decision rendered under sub-section (3) of S. 4. The records made under S. 4 continue to retain with it the characteristic features. It is statutory endowed with irrespective of the orders that may be passed at the first instance. under sub-section (3) of S. 4 and thereafter in appeal under sub-section (1) of S. 15 and, as such, it cannot be said that a person who ailed himself of the appellate remedy under sub-section (1) of S. 15 as against a decision Under sub-section (3) of S. 4 can render the concept of the records any the less the records made under that section, so as to disable either the person concerned to invoke the revisory jurisdiction under sub-section (2) of Section 15 or. for that matter to disable the authority concerned therein to entertain, of his own motion or on an application of a party, and examine such records made under. Section 4 and to pass appropriate orders.

9. To read sub-section (2) of S. 15 in the way in which it was read by our learned brother is to read something which is not there. The only condition precedent for the assumption of the jurisdiction under sub-section (2) of S. 15 is that there should be record made under Section 4 for being called for the purposed of being examined by the Taluqdar in order to pass such orders as he may think fit. That sub-section does not say that whenever any person chose to avail himself of the remedy under sub-sec. (1) of S. 15 as against a decision rendered in sub-section (3) of S. 4 he will not be competent to file an application under sub-section (2) nor is the were anything in the said sub-section (2), as has already been observed, to limit or confine the jurisdiction of the authority concerned therein only to a case where the remedy of appeal with respect to records under Section 4 though provided for under sub-section (1) of S. 15 is found unvalued of.

10. We are of the opinion, under those circumstances, that the Joint Collector who rejected the application of the appellate herein filed under sub-sec. (2) of S. 15, refused to exercise the jurisdiction vested in him.

11. We allow the appeal and set aside the decisions of our Leonard brother and direct the Joint Collector herein to taken up the revision petition filed by the appellant herein before him and dispose of the same according to law.

12. The writ appeal is allowed but, in the circumstances there shall be no costs.

13. Appeal allowed.


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