G. Rama Rao vs T. Santhosh Kumar

Since the issue involved in both the writ appeals is one and the same, they are being heard together and disposed of by way of this common order.

Aggrieved by the common order dated 28-04-2014 passed in W.P.Nos.34203 and 34206 of 2011 by the learned Single Judge, both the Writ Appeals are filed.

Heard Sri B.Venkata Rama Rao, learned counsel appearing for the appellants, learned Government Pleader for Revenue appearing for respondents 3 and 4 and Sri V.Hari Haran, learned counsel appearing for respondents 1 and 2.

W.P.Nos.34203 and 34206 of 2011 have been filed by respondents 1 and 2 herein seeking to declare the order dated 02.07.2011 passed by the Joint Collector and the consequential order dated 25.09.2013 passed by the Mandal Revenue Officer, as arbitrary and illegal.

It has been contended by the appellants that the un-official respondents were claiming title based upon agreement of sale-cum-General Power of Attorney bearing document No.2928 of 1999, dated 27.10.1999 and on the strength of the said document, they have approached the Mandal Revenue Officer for mutation their names in the revenue records. Accordingly, the Mandal Revenue Officer has mutated the names of the un-official respondents vide order dated 09.09.2000. Aggrieved by the said order, the appellants had preferred revisions before the Joint Collector, who in turn, allowed the same vide order dated 02.07.2011 by setting aside the order passed by the Mandal Revenue Officer dated 09.09.2000. Challenging the order passed by the Joint Collector, the un-official respondents have approached this Court by filing W.P.Nos.34203 and 34206 of 2011. A leaned Single Judge of this Court vide common order dated 28-04-2012 allowed the said writ petitions by remanding the matters back to the revisional authority to decide the revisions by duly taking into consideration the agreement of sale-cum-GPA executed in favour of the un-official respondents. Challenging the same, the present writ appeals are filed.

Learned counsel appearing for the appellants had contended that the common order passed by the learned Single Judge is contrary to law. The revenue authorities cannot decide the title as being claimed by the un-official respondents and the disputed question of facts cannot be adjudicated by the revenue authorities. Learned counsel had further contended that the learned Single Judge has directed the revisional authority to adjudicate the revisions on remand by giving certain observations, which is not permissible under law. Learned counsel had further contended that the Joint Collector has rightly passed orders in the revisions preferred by the appellants and set aside the entries made by the Mandal Revenue Officer, who has no authority to mutate the names of the un-official respondents based upon the agreement of sale-cum-GPA alleged to have been executed by the appellants in favour of the un-official respondents. Learned counsel had further contended that appropriate orders be passed in the writ appeals by setting aside the common order passed by the learned Single Judge.

Learned counsel appearing for the un-official respondents had contended that the learned Single Judge has rightly set aside the order passed by the Joint Collector dated 02.07.2011 and remanded the matter back to Joint Collector to adjudicate afresh, after giving opportunity to the un-official respondents as well as the appellants and the Joint Collector has not examined the contents of agreement of sale-cum-GPA. The agreement of sale-cum-GPA is virtually like a sale as total sale consideration was paid in pursuance of the agreement of sale-cum-GPA and possession was also delivered pursuant to the said instrument. These vital factors were not considered by the Joint Collector while setting aside the order of the Mandal Revenue Officer. Therefore, learned Single Judge has rightly remanded the matters back to the Joint Collector so as to enable the Joint Collector to examine the contents of agreement of sale-cum-GPA and pass appropriate orders in accordance with law. Learned counsel had further contended that he has no objection if the Joint Collector adjudicate the matter independently without being influenced by any observations made by the learned Single Judge and let the matter be remanded to the Joint Collector and let the Joint Collector pass an independent order after considering entire case of the un-official respondents as well as appellants.

Having considered the rival submissions made by the leaned counsel on either side, this Court is of the view that the learned Single Judge while disposing of the writ petitions observed as under:

‘Keeping in view the definitions, particularly, under the ROR Act, as above, a person having a right to possession including an assignee from the Government would be entitled to be treated as an owner for the purpose of the ROR Act. The said definition of owner also shows that there may not be a transfer, as contemplated under the Transfer of Property Act, but if the transfer is completed otherwise than except for registration and keeping in view the definition of pattadar, which is an inclusive definition, in my view, such person would be entitled to invoke the provisions of Section 5-A of the ROR Act. The definition of owner, as above, significantly does not refer to the definition as contemplated under the Transfer of Property Act and the emphasis is on right to possession including right to alienate. In a given case, whether the agreement of sale cum GPA confers the said right so as to qualify within the definition of owner would, however, depend upon the appreciation of such documents. Hence, suffice it to find that for the purpose of ROR Act, the definition of owner may also include a person not holding a registered document in his favour but otherwise entitled to all rights to possession and alienation of the land by virtue of the completed transaction of sale except for the registration thereof.

Keeping in view the aforesaid legal provisions and the facts and circumstances of the present case where mutation on the basis of an agreement of sale cum GPA is claimed, it will have to be examined as to whether the petitioners satisfy that their agreement is a completed transaction of sale except for registration. It is significant that the aforesaid contention, as raised by the contesting respondents, was not raised before the Joint Collector and the common order impugned was passed only on finding procedural irregularity of not serving the notice to legal heirs of late Raghuveer Rao, but there is no adjudication on the agreement of sale cum GPA in the case on hand. The Joint Collector shall, therefore, examine the matter in the light of the observations hereinabove and decide the revision petitions afresh. So far as the procedural irregularity, on which the Joint Collector has allowed the revisions, is concerned, in my view, the said finding will not be sustainable if the petitioners establish the agreement of sale cum GPA from the Late Raghuveer Rao, in which case, the successors from him would also be bound and cannot claim to invalidate the order granting mutation in favour of the agreement holder only on the ground that they are not given notice.

Question No.2, therefore, is answered accordingly.

It is not in dispute that the appeal filed by the petitioners against grant of occupancy certificate dated 16.03.2005 in File No.K/2282/2001 in favour of the third respondent is also pending with the Joint Collector. Since the adjudication of the said appeal has a necessary bearing on the issue under the ROR Act and since the impugned revisions as well as the said appeal is pending with the first respondent only, the passing of impugned order without disposing of the said appeal filed by the petitioners has resulted in some incongruity. I am, therefore, of the view that the revision petitions impugned as well as the appeal of the petitioners, are required to be heard and disposed of as all the matters are between the same parties and relating to the same subject matter.

The impugned orders are accordingly set aside and both the revisions shall stand restored to the file of the Joint Collector/first respondent, which shall be disposed of in the light of the observations made hereinabove along with the inam appeal filed by the petitioners.’

A Perusal of the observations made by the learned Single Judge at paragraph No.18 of the order would make it clear that the Joint Collector while adjudicating the revisions preferred by the appellants has not considered the contents in respect of agreement of sale cum-GPA and the learned Single Judge has only remanded the matter back to the revisional authority for adjudication of the case on merits and also further directed to examine the contents of agreement of sale-cum-GPA. Therefore, this Court is not inclined to interfere with the order passed by the learned Single Judge.

Accordingly, both the Writ Appeals are disposed of. The Joint Collector, who is the revisional authority, shall consider the case of the appellants as well as the un-official respondents afresh without being influenced by any observations made by the learned Single Judge and pass appropriate orders in accordance with law.

Miscellaneous petitions, if any, pending shall stand closed.