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The Revenue Recovery Act, 1890
Union Of India vs Mohan Lal Capoor & Others on 26 September, 1973
Siemens Engineering & ... vs Union Of India & Anr on 30 April, 1976
Mohinder Singh Gill & Anr vs The Chiief Election ... on 2 December, 1977
Article 226 in The Constitution Of India 1949

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Andhra High Court
Mirza Mukaram Ali Baig vs Government Of Andhra Pradesh And ... on 22 February, 2001
Equivalent citations: 2001 (2) ALD 166, 2001 (2) ALT 16
Bench: B S Reddy



ORDER
 

1. The writ petitioner challenges the Memo No.19518/SS.1/99-12, dated 17-9-1999 on the file of the first respondent-Government. The first respondent-Government by the impugned order disposed of the revision petition filed by respondents 5 to 8 under Section 166-B of the Andhra Pradesh (Telangana Area) Land Revenue Act, 1317-Fasli (for short 'the Act'). The revision petition itself has been preferred by respondents 5 to 8 against the proceedings dated 8-7-1997, 30-11-1997 and 31-12-1998 on the file of the second respondent-Commissioner of Survey, Settlements and Land Records, Andhra Pradesh, Hyderabad. The first respondent-Government passed the impugned order setting aside the said proceedings on the file of the second respondent. It is challenged in this writ petition on various grounds.

2. Before adverting to the question as to the validity of the impugned Memo, the relevant facts may have to be noticed.

Factual Matrix:

3. The petitioner herein along with some others claim to be the joint owners and possessors of land bearing Survey Nos. 49, 50/1, 50/2, 21/2 and 103 old, corresponding to new Survey Nos. 132, 133, 140, 141, 142 and 103 admeasuring Ac.72.61 guntas situated at Chennamguda, Almasguda and Chengicherla villages of Ghatkesar Mandal, Rangareddy District. The lands hereinafter referred to as 'the said lands'. The petitioner claims to be the legal heir of one late Mirz Bharam Ali Baig. It is the case of the petitioner that the right, title and possession of the said lands is confirmed in favour of the petitioner's father by Nazime Atiyat vide Muntakab No.74, dated 11-2-1957. During the lifetime of the petitioner's father, a part of kancha land was leased out to one Ranga Muthiah and others on payment of agreed lease amount.

4. It is alleged that the 4th respondent herein made wrongful corrections in the revenue records relating to the said lands. The petitioner submits that such wrongful entries were made without following the prescribed procedure and without any notice to the petitioner. Those wrongful entries were made with a mala fide intention to deprive the legal rights of the petitioner in respect of the said lands.

5. The petitioner filed a petition dated 28-9-1995 before the second respondent requesting to issue orders for implementation of supplementary sethwar of Chengicherla village, Ghatkesar Mandal in the name of the petitioner's father as the same was not implemented in the revenue records. The second respondent by the proceedings dated 8-7-1997 directed the Collector, Rangareddy District to implement the supplementary sethwar, which was issued long back by the competent authority. Thereafter, the petitioner filed another application dated 25-10-1997 stating that by oversight the petitioner requested the second respondent to direct the Collector to implement the supplementary sethwar instead of Assal sethwar (original sethwar). The petitioner accordingly requested the second respondent-Commissioner to issue suitable amendment duly revising the orders issued on 8-7-1997. The second respondent accordingly passed orders on 30-11-1997 substituting the words "original sethwar" for the words "supplementary sethwar" in the order dated 8-7-1997. In nutshell, the second respondent directed the District Collector, Rangareddy District to implement the original sethwar. The District Collector, Rangareddy District accordingly issued consequential directions directing all the concerned to implement the original sethwar in terms of the directions of the second respondent-Commissioner. We need not notice the consequential proceedings taken up thereafter pursuant to the directions of the District Collector as they are not material and have no bearing whatsoever on the question that falls for consideration.

6. Respondents 5 to 8 also claim to be the true and absolute owners of the very said land. They trace their title through one Ranga Muthaiah and Pasula Sayanna. It is their case that the names of said two persons are recorded as pattedars and possessors in all the revenue records including the Khasra pahani for the year 1954-55 and other revenue records. It is their contention that the names of the said two persons are recorded in all the revenue records ever since, 1949 till date and they are so entered by the competent authorities and maintained in the ordinary course of their business. The entries were never questioned and challenged by any person including the petitioner. It is for the first time the petitioner filed an application on 28-9-1995 and another application on 25-10-1997 before the second respondent and obtained orders without impleading them as party respondents.

7. Respondents 5 to 8 approached the second respondent-Commissioner for rectification and cancellation of the order passed by him. But the second respondent without taking any action on the said application issued the second order directing the implementation of the sethwar. Respondents 5 to 8 filed WP No.20782 of 1998 and the same was disposed of by this Court directing the second respondent to dispose of the application filed by respondents 5 to 8 herein for impleading them as parties before the Commissioner and for setting aside the earlier proceedings dated 8-7-1997 and 30-11-1997. The Commissioner rejected the application and passed orders dated 31-12-1998 reiterating and confirming the earlier orders passed by him.

8. Respondents 5 to 8 challenged all those orders passed by the second respondent-Commissioner by way of a revision before the first respondent-Government. The revision is stated to have been filed under Section 166-B of the Act. The first respondent-Government by an order dated 8-2-1999 granted interim stay of further proceedings pursuant to the orders passed by the Commissioner and directed the notices to be served upon the petitioner. The first respondent-Government after hearing all the parties allowed the revision by setting aside the proceedings dated 8-7-1997, 30-11-1997 and 31-12-1998 of the Commissioner. It is that order, which is impugned in this writ petition.

Rival Submissions:

9. The learned Counsel for the petitioner contends that the very revision petition filed by respondents 5 to 8 before the first respondent is not maintainable in law. The proceedings of the file of the second respondent-Commissioner directing the implementation of original sethwar in revenue records is purely administrative in nature and no revision lies against such administrative orders. It is contended that the second respondent has not decided any case as such, and therefore, the question of considering the regularity, legality and propriety of any proceeding as such does not arise. It is alternatively contended that even if the revision petition is maintainable in law, the impugned order suffers from incurable legal infirmities. It is contended that it is a clear case of non-application of mind by the first respondent-Government. The order impugned is totally unintelligible. The conclusions are not supported by any reasons.

10. Learned Government Pleader for Revenue did not make any serious attempt to support the impugned order. However, the learned Counsel for respondents 5 to 8 supported the impugned order. It is contended that the proceedings on the file of the Commissioner impugned in the revision if allowed to stand would result in far-reaching consequences adversely affecting the right, title and interest of respondents 5 to 8 in respect of the said land. It is submitted that the expression 'proceedings' used in Section 166-B of the Act is of wide connotation. Revision under Section 166-B of the Act would lie not only against an order or decision passed by the subordinate department, but also against a proceeding from a subordinate and the Government in exercise of its revisional jurisdiction is entitled to consider the legality, propriety and regularity of such order or decision of a subordinate officer. The learned Counsel would urge that the impugned memo is only the gist of the order, but not the order itself. According to the learned Counsel, the order passed by the Minister after hearing the parties may not have been communicated to the petitioner. It is contended that on that ground alone, the revisional order itself cannot be set aside by this Court in exercise of its jurisdiction under Article 226 of the Constitution of India.

11. We shall now take up the first contention relating to the maintainability of revision under Section 166-B of the Act: Before proceeding further, it may be necessary to notice the Section 166-B of the Act and it reads:

166-B. Revision :--(1) Subject to the provisions of the Andhra Pradesh (Telangana Area) Board of Revenue Regulation, 1358-F, the Government or any Revenue Officer not lower in rank to a Collector, the Settlement Commissioner of Land Records may call for the record of a case or proceedings from a subordinate department and inspect it in order to satisfy himself that the order or decision passed or the proceedings taken is regular, legal and proper and may make suitable order in that behalf:

Provided that no order or decision affecting the rights of the ryot shall be modified or annulled unless the concerned parties are summoned and heard.

(2) Every Revenue Officer lower in rank to a Collector or Settlement Commissioner may call for the records of a case or proceedings for a subordinate department and satisfy himself that the order or decision passed or the proceedings taken is regular, legal and proper and if, in his opinion, any order or decision or, proceedings should be modified or annulled, he shall put up the file of the case with his opinion to the Collector or Settlement Commissioner as the case may be. Thereupon the Collector or Settlement Commissioner may pass suitable order under the provisions of sub-section (1).

(3) The original order or decision or an authentic copy of the original order or decision sought to be revised shall be filed along with every application for revision.

12. A plain reading of the provision would make it clear that the Government or any Revenue Officer not lower in rank to a Collector, the Settlement Commissioner is entitled to call for the records of a case or proceedings from a subordinate department in order to satisfy himself that the order or decision passed or the proceedings taken is regular, legal and proper. In the instant case, we are concerned with the revisional jurisdiction of the Government. Evidently, the Government is clothed with the jurisdiction to call for the record of a case or proceedings from any one of its subordinates including the Collector and Settlement Commissioner of Land Records. There cannot be any dispute whatsoever that all the authorities in the department are subordinate to the Government. Therefore, a revision would lie before the Government against every order or decision of any Revenue Officer subordinate to it. Likewise, the Collector, the Settlement Commissioner may call for the record from a subordinate Revenue Officer to them and examine the propriety, legality and regularity of the order or decision so taken by the subordinate officers. The language employed in Section 166-B of the Act is very wide. The revisional authority is clothed with the jurisdiction to call for the record of a case or proceedings from a subordinate Revenue Officer. The order or decision passed in such a case or proceedings could be revised, if such order or decision is not regular, legal or proper. The power conferred upon the revisional authority is supervisory in its nature. It is intended to oversee the subordinates in the department to pass orders and take decisions in a proper, regular and legal manner. Every order or decision passed in a case and the proceedings taken by a subordinate officer is susceptible to the revisional jurisdiction of the Government or the specified authority under Section 166-B of the Act.

13. The applications purported to have been filed by the petitioner before the second respondent-Commissioner may not amount to instituting a case as such against any person or persons. The decision taken by the second respondent may not amount to deciding any case as such. But, there is no difficulty whatsoever to hold that the orders passed by the second respondent directing the implemention of Assal sethwar is a 'proceeding taken' within the meaning of Section 166-B of the Act.

14. The expression 'proceeding' is not a term of art which has acquired a definite meaning. What its meaning is when it occurs in a particular statute or a provision of a statute will have to be ascertained by looking at the relevant statute. The term 'proceeding' is a very comprehensive term and generally speaking means a prescribed course of action for enforcing a legal right. (See: Ram Chandra v. State of U.P, and Babu Lal v. Hazari Lal Kishori Lal, ). There cannot be any dispute whatsoever that the expression 'proceeding' is of wide connotation. The law making body should not be credited with intention of not providing for revisions against the proceedings similar in nature to the one of hand.

15. A "proceeding" is defined as the instrument whereby the party injured obtains redress for wrongs committed against him, either in respect to his personal contracts, his person, or his property. (See: P. Ramanath Aiyar's The Law Lexicon, 1987 Edition).

16. According to Black's Law Dictionary, "Proceeding is an act which is done by the authority or direction of the Court, agency, or Tribunal express or implied; an act necessary to be done in order to obtain a given end; a prescribed mode of action for carrying into effect a legal right,

17. To appreciate the scope of revisional jurisdiction conferred upon the Government under Section 166-B of the Act, we may have to bear in mind the broad scheme of the very Act itself. The Act confers enromous powers upon the Revenue Officers in all matters relating to land revenue and adminstration through out Telangana area of State of Andhra Pradesh. The Act specifies that the Chief Controlling Authority in all matters relating to land revenue shall be the Board of Revenue constituted under the regulations. It deals with the powers of Collectors, Additional Collectors, Deputy Collectors, Tahsildars etc. It specified the rights of the pattadars over the lands, trees, fruit bearing trees etc. The Act provides for settlement and partition of areas of and also machinery to resolve the disputes relating boundaries and installation and maintenance of boundary marks. Section 145 of the Act says that in all official works and proceedings, a Revenue officer shall be subject as to the place, time, and manner, of performing his duty, to the direction and control of his superior. Chapter XI deals with appeal, review and revision. Section 158 of the Act provides for an appeal from an order of Revenue Officer passed under the Act or any other law for the time being in force to his immediate superior officer whether such decision or order may have been passed in the exercise of original jurisdiction or on appeal.

18. It is in that background of the scheme of the Act, the expression 'proceeding' under Section 166-B of the Act may have to be appreciated. There cannot be any doubt whatsoever that the expression 'proceeding' is of wide amplitude and any action which is not in the nature of a decision in a case is also amenable to the revisional jurisdiction of the Government under Section 166-B of the Act. Therefore, not only the order or decision passed in a case, but also the proceeding on the file of a subordinate to the Government could be revised by the Government in exercise of its revisional jurisdiction.

19. The orders or the proceedings, as the case may be, on the file of the second respondent herein directing the District Collector, Rangareddy District to implement the Assal Sethwar cannot be termed as a routing administrative proceeding issued by the Commissioner. It is undoubtedly an act by the authority in order to obtain a given end and an action resulting in influencing and affecting the legal rights. It is a measure, if implemented, would undoubtedly bring some change and alters the existing legal rights of the parties. In the circumstances, there is absolutely no difficulty whatsoever to hold that the orders on the file of the second respondent directing the implementation of Sethwar is a proceeding within the meaning of Section 166-B of the Act. Since it is an order passed by a subordinate to the Government, the Government has the jurisdiction to revise the said order. The revision petition preferred by respondents 5 to 8 before the first respondent is maintainable. The contention is accordingly rejected.

20. The second question that falls for consideration is as to whether the impugned order passed by the Government allowing the revision petition filed by respondents 5 to 8 suffers from any legal infirmity? It may be necessary to notice the order passed by the first respondent-Government and the same reads:

"The attention of the Special Chief Secretary to Chief Commissioner of Land Administration, A.P., Hyderabad, is invited to the references cited and he is informed that the Government have considered the Revision petition filed by Sri Ranga Venkatesh and three others of Chengicherlal village, Ghatkesar Mandal, Rangareddy District.

In view of the contradictory statements by both the parties and on the submission made by the Special G.P and on perusal of records, Government order to set aside the orders issued by the CSS and LR, in his proceedings dated 8-7-1997, 30-11-1997 and 31-12-1998. Accordingly the stay granted by the Government in Memo 3rd cited is also vacated."

The said order is communicated to the petitioner along with the covering letter dated 10-11-1999. It is supplied to the petitioner only after he made a representation for a copy of the impugned order.

21. The order, in my considered opinion, is ussutainable, as it is not supported by any reason whatsoever. The orders issued by the second respondent-Commissioner are set-aside without assigning any reason whatsoever. The Government had not even adverted to the relevant facts that may have to be taken into consideration for deciding the legality, regularity and propriety of the proceedings on the file of the second respondent, which were impugned in the revision petition by respondents 5 to 8. The decision of the revisional authority under Section 166-B of the Act is quasi-judicial in its nature. In the instant case, the rival claims in the matter of implementation of Sethwar are required to be adjudicated fairly and in accordance with the principles of natural justice. Principles of natural justice require recording of reasons.

22. The Supreme Court held that "the reasons are the links between the materials on which certain conclusions are based and that actual conclusions. They disclose how the mind is applied to the subject matter for a decision. The reasons should reveal a rational nexus between the facts considered and the conclusions reached." (See: Union of India v. M.L Capoor, ).

23. The Supreme Court had an occasion to observe that "the rule requiring reasons to be given in support of an order is, like the principle of audit alteram patem, a basic principle of natural justice which must inform every quasi judicial process and this rule must be observed in its proper spirit and mere pretence of compliance with it would not satisfy the requirement of law. (See: Siemens Engineering v. Union of India, ).

24. However, the learned Counsel for respondent 5 to 8 contends that the order impugned in this writ petition is only gist of the decision and not the decision itself. According to the learned Counsel, there is a separate order passed by the Minister for Revenue, which is a reasoned one. But in the counter affidavit filed by the first respondent-Government it is submitted that in pursuance of the decision taken by the Minister for Revenue, the impugned Memo dated 17-9-1999 was issued. It is stated that "there is no contradiction between the orders passed and the orders issued. It is emphatically stated that "the Honourable Minster has called the petitioner's Counsel and the respondent's Counsel on 17-9-1999 and on due consideration of the entire material has passed orders on 17-9-1999 and the said orders have been communicated to the writ petitioner and also to the respondents and there is no separate order passed by the Honourable Minister." Thus, it is clearly admitted that what is communicated to the petitioner is the decision of the Revenue Minster.

25. The record made available for the perusal of the Court, no doubt, would disclose the preparation of a detailed note for the perusal of the Minister for Revenue. The file also would reveal that the said note was circulated to the Minister and orders were obtained thereon. Thereafter, the file was sent to the Law Department for advice. The consent of the Law Department was obtained for despatching only a portion of the said note. From the perusal of the record, it does not appear that the Revisional Authority passed any order as such. The Minister for Revenue appears to have merely affixed his signature on the note so prepared by the office.

26. The record would further reveal certain astonishing features of the case. The decision of the Government was communicated to respondents 5 to 8 herein, but not to the petitioner. The petitioner submitted a representation dated 4-10-1999 requesting the Government to furnish a copy of Memo dated 17-9-1999 as he is also a party in the case. Even for furnishing a copy of the order passed by the Government, the file was sent to the Law Department for their remarks. It is only after the opinion from the Law Department; a copy of the impugned Memo has been furnished.

27. The note prepared by the office for the perusal of the Minister for Revenue cannot be considered to be an order passed by the concerned Minister. At any rate, even if the said note is construed as an order passed by the Minister, it remained shrouded in mystery. A perusal of the record would make it clear that the whole revision petition has been treated as an innocuous and routine administrative matter. The revisional authority must do better to inspire confidence in its orders.

28. In the circumstances, the note prepared by the office cannot be equated to that of a detailed order in revision. At any rate, the said order remained un-communicated to the petitioner inspite of his request. Therefore, the Court need not judicially review the said note, which is sought to be equated to that of a revisional order by the learned Counsel for respondents 5 to 8. At any rate, the learned Government Pleader has not any such stand in the matter.

29. It is well settled that even when the statute does not lay down expressly the requirement of recording reasons, the necessity of recording reasons cannot be dispended with. Recording of reasons is must, particularly, where the appellate or revisional authority reverses the order passed by the lower authority. Reasons must be recorded, as there is a vital difference between an order of reversal and an order of affirmation. In case of affirmation of order by an appellate or revisional authority, elaborate reasons may not be necessary in support of the conclusions and such authority may adopt the very reasoning of the lower authority. It is equally well settled that the validity of the order passed by the statutory authority must be judged by the reasons recorded therein and cannot be construed in the light of subsequent explanation by the authority concerned or by filing an affidavit. 'Orders are not like old wine becoming better as they grow older'. (See: Mohinder Singh Gill v. Chief Election Commissioner, ).

30. For the aforesaid reasons, the impugned Memo is set aside. It is declared that there is no other order is the eye of law as such passed by the Government, in exercise of its revisional jurisdiction under Section 166-B of the Act other than the one communicated to the petitioner. That order alone has to be treated as an order passed by the Minister disposing of the revision.

31. The revision petition filed by respondents 5 to 8 is required to be heard by the Government for taking an appropriate decision thereon in accordance with law. It is needless to clarify that the observations, if any, made in this order shall have no bearing on the right, title and interest of any of the parties with regard to the said lands. The observations also shall have no bearing whatsoever upon the legality, propriety and regularity of the orders dated 8-7-1997, 3-11-1997 and 31-12-1998 on the file of the second respondent-Commissioner, as the same are required to be decided by the first respondent-Government in exercise of its revisisional jurisdiction. It is needless to direct that the first respondent shall provide an adequate opportunity of being heard to both parties and decide the revision in accordance with law. The revisional authority is required to apply its independent mind to the facts and issues that arise for consideration and decide the same in accordance with law.

32. The writ petition is accordingly allowed with costs to be paid by the first respondent.