Kanti Naramma vs The Agent to Government, (District Collector) and Others

P. Venkatarama Reddi, J.—Questioning the order dated 30-3-1989 passed by the 1st respondent in C.M.A. No. 19 of 1986 confirming the order of the 2nd respondent dt.8-8-1985, the present writ petition is filed. By the impugned order dated 8-8-1985, the 2nd respondent directed eviction of the petitioner from an extent of Ac. 13-20 guntas situate in S. Nos. 77 and 16 of Kamalapuram village of Singareni Mandal, Khammam District and restoration of possession to the 3rd respondent herein who is a tribal.

The relevant facts are these: The 3rd respondent filed a representation on 2-1-1978 complaining to the concerned authorities that his father was the pattedar of the land and it was illegally occupied by the petitioner and her son. On that complaint, an enquiry under the Andhra Pradesh (Scheduled Areas) Land Transfer Regulation (Regulation I of 1959) (hereinafter referred to as the ''Land Transfer Regulation'') was initiated and notice was issued to the petitioner. In the course of enquiry, the 3rd respondent produced an order dated 10-5-1966 passed by the Revenue Divisional Officer, Kothagudem in O.S.No. 6/65-67-A recognising the Shikmidari right of his father and granting him a patta certificate. The petitioner pleaded that the land was purchased by her brother Koleti Narayana from the 3rd respondents father and two other tribals of the same family through an unregistered sale dated 23-4-1952. Sri Koleti Narayana made a gift of the land to the petitioner towards ''Pasupu Kumkuma''. Pursuant to the gift, the petitioner (or her son) had been in continuous possession paying land revenue. The 2nd respondent passed an order on 7-8-1984 stating that the 3rd respondent''s father and Koleti Narayana were joint pattedars of the land as per the Pahanis and that the land was under the occupation of Koleti Narayana prior to 1963. He had also referred to the fact that the respondent before him (petitioner''s son) filed an unregistered sale deed dated 23-4-1952 executed on a stamp paper. As the transaction was prior to 1-12-1963, the 2nd respondent observed that no action was possible under Regulation I of 1959. He also observed that the petitioner could approach the Revenue Divisional Officer, Kothagudem seeking restoration of possession u/s 67-A of the Andhra Pradesh (Telangana Area) Land Revenue Act. After the death of the petitioner''s father Javvadi Rajaiah who was a party to the earlier proceedings, the 3rd Respondent filed an application once again on 28-1-1985 relying upon the patta certificate issued to his father and requesting eviction of the petitioner''s son and others who were in unlawful occupation of the lands in question. On this complaint, once again, an enquiry was initiated by the 2nd respondent and a notice dated 1-7-85 was issued to the petitioner. The parties filed documents in support of their respective cases. The 2nd respondent held that the so-called sale-deed dated 23-4-52 was a fake document. The 2nd respondent referred to the various suspicious features- over-writings, condition of the stamps, the date of endorsement of the stamp- vendor, etc. It was also mentioned that the boundaries of the land were not given and S.No. 16 was added after S.No. 77. The 2nd respondent referred to the land revenue Pass Book and commented that it started only from the year 197273. He also found that the columns in Pahanis were tampered with, incorporating the name of Koleti Narayana, as evident from the over-writings with different ink. He therefore came to the conclusion that the transaction was hit by Section 3 (1) of Regulation I of 1959 and the alleged sale not having been proved, the occupants were liable for eviction. The Agent to Government (1st respondent) confirmed this order. The learned Agent, apart from adverting to the various suspicious features noted by the 2nd respondent, relied upon the order dated 10-5-1966 passed by the R.D.O., Kothagudem. In that order, the following are the observations made:

"Sri Javvaji Rajaiah filed Shikmidari Certificate issued in his favour by the Tahsil Office, Yellandu in 1953 and applied for issue of a pattedari certificate under sub-section (i) of Section 67-A of the Hyderabad Land Revenue Act. Similarly, Sri Koleti Narayana also applied for the issue of a pattedari certificate while enclosing the original certificate issued by the Tahsil Office, Yellandu in the year 1952. Both the parties applied for the pattadari certificates for the same Survey Nos. Summons were issued .........In the provincial Shikmidari register, the name of the respondent (Koleti Narayana) is also mentioned along with the name of the petitioner (Javvaji Rajaiah). But a close scrutiny would reveal that the name of Koleti Narayana was subsequently added. The ink and hand writing in which the name of Sri Koleti Narayana was written is different from the other entries in the register and the signature of the respondent was not taken while the signature of all other people to whom Shikmidari certificates were granted were taken. In the circumstances I am of the opinion that Sri Javvaji Rajaiah alone was granted Shikmidari certificate by Tahsil office in 1953. Accordingly, the petition is allowed and Sri Rajaiah is declared as pattedar of the following S.Nos........"

The learned Agent disbelieved the transfer of land to the petitioner/ appellant by way of gift towards ''Pasupu Kumkuma'' and the alleged transfer was held to be null and void. It is against this order passed in CMA No. 19/86 dated 30-3-1989, the present writ petition is filed.

There is one more relevant fact to be mentioned. When the show-cause notice was issued on 1-7-1985 by the 2nd respondent under the provisions of the Land Transfer Regulation, the petitioner questioned the same by filing W.P. No. 10578/85. By the judgment dated 29-9-1988, the writ petition was allowed by Radhakrishna Rao, J. observing as follows:

"When the case was finally disposed of and orders were passed on 7-8-84, the Deputy Collector has no right to issue another show-cause notice. The proceedings have become final and the petitioners were in possession in pursuance of the sale deed. The Deputy Collector issued the notice when it has been initiated by Javvaji Rajaiah, father of the fourth respondent. There cannot be two proceedings for the same subject matter of the dispute. Hence the writ petition is allowed and the notice is quashed."

By the time of disposal of the writ petition, the order dated 8-8-1985 impugned in this writ petition was passed as there was no stay against passing of final order pursuant to the show-cause notice.

The first contention of the learned Counsel for the petitioner is that the show-cause notice having been quashed by this Court in W.P.No. 10578/85 and the said judgment having become final, all further proceedings including the impugned order dated 8-8-1985 passed by the 2nd respondent became null and void. This contention, in my view, is devoid of merit. It is to be noted that the impugned order passed on 8-8-85 was not set aside by the learned Judge though the said order was passed by the time of disposal of the writ petition. Evidently, the passing of final order was not brought to the notice of the learned Judge. When the final order was passed during the pendency of the writ petition, the petitioner should and ought to have questioned that order. As the proceedings went beyond the stage of show-cause notice, it was the duty of the petitioner to question the final order into which the proceedings culminated. After the final order is passed, it is not open to the petitioner to fall back upon the show-cause notice and question the show-cause notice alone. It cannot be predicated that the same decision would have been taken by this Court had it been apprised of the contents of the final order. I am unable to agree with the learned Counsel for the petitioner that the final order is automatically wiped out with the quashing of the show-cause notice. The final order cannot be said to have lost its efficacy with the quashing of the show-cause notice preceding the order. It remains untouched by the judgment in W.P.No. 10578/85 as it was allowed to remain in tact by reason of the petitioner''s failure to challenge that order. The very maintainability of this writ petition directed against the order dated 8-8-85 confirmed in appeal when it was not challenged in the earlier writ petition, is itself doubtful. It can be contended with much force that the petitioner cannot seek relief piecemeal and the omission to challenge the final order passed on 8-8-85 in the earlier writ petition precludes the petitioner from questioning that order in a separate proceeding. However, it is not necessary to express a final view in this regard. Even assuming that the writ petition is maintainable, it is not open to the petitioner to rely upon the judgment in W.P.No. 10578/85 which I must say was rendered per incuriam, in ignorance of the final order dt.8-8-85. That judgment cannot therefore bind the parties nor it has the effect of obliterating the final order passed on 8-8-85 and the appellate order confirming the same.

The next contention is that the order dated 7-8-1984 passed by the 2nd respondent dropping the proposed action under Regulation I of 1959 constitutes res judicata and the suo motu enquiry cannot be taken up once again into the very same matter. In other words, the very ground urged in W.P. 10578 / 85 against the legality of the show-cause notice is sought to be pressed into service for the purpose of this writ petition as well. In the order dated 7-8-1984, the 2nd respondent held that no action was possible under Regulation I of 1959 as the transaction was prior to 1-12-1963. The Special Deputy Collector observed that it was open to the petitioner (3rd respondent herein) to approach the R.D.O. Kothagudem to restore possession u/s 67-A of the A.P. (Telangana Area) Land Revenue Act. The Special Deputy Collector merely made a reference to the ''sada Sale-deed'' dated 23-4-52. He did not examine the question whether the document was genuine nor did he go into he factual aspect as to whether the sale had in fact taken place in the year 1952. It was readily assumed that the sale transaction was of the year 1952. There was hardly any decision on the merits on the crucial question that arose before the Special Dy. Collector (TW). It is highly doubtful whether a decision of that nature could be put against the 3rd respondent on a principle analogous to the doctrine of res judicata while dealing with a matter arising out of tribal welfare legislation. It is not necessary to dilate on this aspect further as I am of the view that the petitioner shall not be entitled to any relief under Article 226 of the Constitution even if his technical plea based on res judicata is sustainable. From the findings of respondents 1 and 2 and on a perusal of the document styled as sale-deed (dated 23-4-1952), it is clear that the petitioner or the person under whom she is claiming title had fabricated a document to suit her case and thereby endeavoured to play fraud on the Tribunals. Respondents 1 and 2 have given cogent and convincing reasons as to why the said document cannot be treated as a genuine document. It is also clear from the proceedings dated 10-5-66 and the findings of respondents 1 and 2 that the revenue records were tampered with, incorporating the name of Koleti Narayana under whom the petitioner is claiming title. These facts are by themselves sufficient to disentitle the petitioner to the discretionary relief under Article 226 of the Constitution. If the document dated 23-4-52 is found to be untrue, the relevant entries in the revenue records would also be untrue. If so, there is no proof of the petitioner having come into possession of the land pursuant to a transaction anterior to 1963. The presumption under Clause (b) of Section 3 (1) comes into full play and the petitioner will be liable for eviction. Therefore, the petitioner or Koleti Narayana must be deemed to have come into possession pursuant to a transaction that had taken place subsequent to the crucial date 1-12-1963.

The learned Counsel for the petitioner contended that the petitioner being a pattedar, the 3rd respondent should seek remedy u/s 67-A of the A.P. (Telangana Area) Land Revenue Act if he wants to resume possession of the land. I do not think that this is the only remedy open to the 3rd respondent. The remedy u/s 67-A may be an additional or concurrent remedy. It does not have the effect of obliterating the remedies under the Land Transfer Regulation. Otherwise, the beneficial provisions of the Land Transfer Regulation meant for the protection of the Tribals will be defeated. 1 cannot countenance an interpretation which has such a deleterious effect.

For the aforesaid reasons, I see no merit in this writ petition. The writ petition is dismissed. No costs.