V.V.S. Rao, J.
1. The petitioner is a Cooperative Society, registered under the A.P. Co-operative Societies Act, 1964. The society filed the instant writ petition questioning the order dated 5-3-2001, passed by the 1st respondent in Rc. No.D5/266/97. By the said order purportedly passed under Section 9 of the A.P. Rights in Land and Pattedar Passbooks Act, 1971 (for short 'the ROR Act'), the 1st respondent cancelled the validation of two sale transactions in
relation to the society's land at the instance of the 2nd respondent. The writ petition was admitted on 27-4-2001 and by art order of even date passed in W.P.M.P. No. 10922 of 2001, this Court suspended the impugned order pending the writ petition. One Nawab Mehdi Khan fifed an application being W.V.M.P. No.26239 of 2001 praying this Court to implead him as respondent 31, which was ordered on 31-12-2001. Respondent 31 filed an application being WVMP No. 27280 of 2001 praying this Court to vacate the interim order passed on 27-4-2001. At this stage, the applications were heard at length and as the submissions for the purpose of interlocutory application and the main writ petition are the same, the writ petition itself is being disposed of with the consent of the learned Counsel for the parties at the interlocutory stage.
Background facts :
2. The society is promoted for the welfare of the Backward Class weavers inter alia for. providing house-sites. In furtherance of such an object, the society purchased agricultural land admeasuring Ac.41-14 guntas comprised in Sy.Nos. 159, 160 to 166 and another extent of Ac.39-30 guntas comprised in Sy. Nos. 166, 167 and 168, situated at Kapra village, Keesara Mandal, Ranga Reddy District, under unregistered agreements of sale. The owners of the land executed irrevocable general power of attorney in the name of the office bearers of the society after receiving the entire sale consideration and delivered possession of the land to the society.
3. In November/December, 1982, the Inams Tribunal (Revenue Divisional Officer, Chevella) granted occupancy rights under the provisions of the A.P. (Telangana Area) Inams Abolition Act, 1955 (for short 'the Inams Act') and the name of the society was recorded in the revenue records as occupant of the land. It is alleged that
respondent 31 who was the Inamdar appears to have filed a memo withdrawing his claim of resumption when the matter was pending before the Inams Tribunal. The proceedings before the Inams Tribunal became final as no appeal was filed by respondent 31, and whereupon his name was replaced by the occupancy certificate holders. It appears that occupancy certificate holders also filed necessary declaration before the Land Reforms Tribunal under the provisions of A.P. Land Reforms (Ceiling on Agricultural Holdings) Act, 1973 where they were declared as non-surplus land holders.
4. The petitioner purchased these lands having regard to the proceedings before the Inams Tribunal and the Land Reforms Tribunal under an unregistered sale agreement by paying the sale consideration and also registered irrevocable general power of attorney. It was the practice in vogue that whenever the society purchased the land the Society also obtained irrevocable general power of attorney from the owner so that the house plots will be registered in favour of the members of the society without any hitch. Be it as it is, the petitioner's name was entered in the revenue records from 1991.
5. The petitioner filed an application under Section 5-A of the ROR Act seeking validation of the sale transaction they entered into with the owners of the land, and obtained occupancy certificates under the Inams Act. The MRO by his proceedings dated 18-12-1991 passed orders for regularisation/validation of transfer of land in favour of the society and mutation was also effected and ultimately the name of the petitioner was recorded as occupant. These proceedings were never challenged by unofficial respondents either in appeal or in revision. The petitioner-Society approached the Government under the provisions of the A.P. Urban Areas (Development)
Act, 1976 for change of land use by variation/modification of master plan. The Government issued draft notification for variation of master plan in 1995 and the petitioner made an application before the Hyderabad Urban Development Authority (HUDA) for change of land use. The HUDA sanctioned tentative lay out on 5-12-1997 by collecting an amount of Rs. 35,00,000/-(Rupees thirty five lakhs) towards developmental charges. The HUDA is yet to issue the final lay out which would enable the society to allot the plots to its members.
6. The 2nd respondent made a complaint to the 1st respondent on the basis of which the 1st respondent initiated suo motu action under Section 9 of the ROR Act and stayed the validation proceedings. When the matter was pending before the 1st respondent, respondents 4 to 30 filed writ petitions before this Court. They being W.P. Nos. 20813 and 20822 of 1997 were disposed of on 1-9-1997 directing the 1st respondent to implead these respondents as parties to the proceedings before the Joint Collector. Accordingly they were impleaded. Some of them also filed counter-affidavits before the Joint Collector inter alia contending that the petition filed by the society under Section 5-A of the ROR Act is not maintainable as the provisions of the ROR Act are not applicable to the agreement of sale in question and that the MRO has no jurisdiction to regularise the sales.
7. The 1st respondent by the impugned order dated 5-3-2001 quashed the orders of the MRO dated 18-12-1991 and further directed the MRO to restore the entries in the revenue records in respect of the lands in question. This order is assailed by the petitioner inter alia contending that the order of the 2nd respondent was not furnished to it, and therefore, no adequate opportunity was given (to the petitioner),
that the impugned order was passed at the instance and direction of the 2nd respondent and that the lands in question are agricultural lands even as on today and except submitting an application for part of the land to the HUDA, the land use has not been changed and that the impugned order is illegal and without jurisdiction.
8. Respondents 4 to 11 and 13 to 30 filed a counter-affidavit in support of the impugned order. It is their case that the MRO has no jurisdiction to regularise the agreement of sale under Section 5-A of the ROR Act. It is stated that the MRO did not serve any notice before passing the orders under Section 5-A of the Act and that no notice was served before mutation was effected in the revenue records. The validation certification dated 18-12-1991 issued by the MRO is without jurisdiction and against law. It is also stated that HUDA registered the application for development of the land and the land is governed by the provisions of the Urban Land (Ceiling and Regulation) Act, 1976 (for short, the ULC Act').
9. Respondent 31 who is said to be the Inamdar of the land, filed a counter-affidavit through his power of attorney denying the petition allegations. The 3rd respondent, namely the MRO has not issued a notice in the proceedings under Section 5-A of the ROR Act, and therefore, those proceedings are not binding on him. Tt is alleged that though the land was converted into house plots, the petitioner by playing fraud and suppressing the facts obtained validation certificates under the Act.
Summary of petitioner's submissions :
10. Sri Ramakrishana Reddy, the learned senior Counsel appearing on behalf of the petitioner would submit that the order passed by the Mandal Revenue Officer under Section 5-A of the ROR Act on 18-12-1991 having become final, is not an appealable or revisable order under
the provisions of the Act as it existed in December, 1991 in the absence of any indication as to retrospectivity of the amended provisions of Act 9 of 1994.
11. Alternatively, the learned senior Counsel would submit that the exercise of power by the Joint Collector suo motu under Section 9 of the ROR Act after a long lapse of time, is improper and legally not justified. He would further urge that the order of the Joint Collector suffers from illegality, in that the Joint Collector failed to correctly understand the law, and erroneously came to the conclusion that an agreement of sale cannot be regularised under Section 5-A of the ROR Act. He would also submit that the land purchased by the petitioners is governed by the provisions of the ROR Act, and therefore, any transfer or alienation of the land can only be regularised under Section 5-A of the ROR Act. He would also urge that as on the date of regularisation by the Mandal Revenue Officer, the land in question was not an urban vacant land falling within the meaning of Section 2(q) of the ULC Act as assumed by the Joint Collector. Insofar as the claim of respondents 4 to 30 is concerned, the learned Counsel for the petitioner would submit that the Joint Collector did not consider their claims, and therefore, the respondents having accepted the regularisation order, cannot now turn around and raise objections to the regularisation in the suo motu revision taken up by the Joint Collector. Likewise, the learned Counsel for the petitioner would also submit that since respondent 31 relinquished his claim before the Land Reforms Tribunal, he cannot have any grievance in respect of the land in question in the suo motu revisional proceedings taken up by the Joint Collector.
Summary of respondents' submissions :
12. The learned Government Pleader for Revenue argued for sustaining of the
impugned order. Sri. N. Vasudeva Rao, the learned Counsel for respondents 4 to 30 would submit that having come to know about the revisional proceedings before the Joint Collector, respondents 4 to 30 approached the Joint Collector and filed an application to treat their application as revision under Section 9 of the ROR Act, and therefore, they are entitled to raise objections against the order passed by the Mandal Revenue Officer under Section 5-A of the ROR Act. The Mandal Revenue Officer did not serve any notice as per Rule 22 of the A. P. Rights in Land and Pattadar Pass Books Rules, 1975 (for short, the Rules) before regularising the sale in favour of the petitioner-society. Under Section 5-A of the ROR Act any transfer or alienation effected by an agreement of sale cannot be regularised by the Mandal Revenue Officer. He also submits that since the petitioner-society has played fraud and misrepresented in the proceedings before the Mandal Revenue Officer and obtained the order of regularisation under Section 5-A of the ROR Act, the delay in exercise of revisional jurisdiction by the Joint Collector, does not vitiate the impugned order.
13. Sri. M.S.K. Sastry, learned senior Counsel for respondent 31 would submit that when the petitioner-society got the lay out approved from the competent-authority, the land ceased to be agricultural land, and therefore, Section 5-A of the ROR Act has no application. He would also submit that the exercise of power by the Joint Collector does not suffer from any illegality and impropriety. He also contends that the Sub-Registrar is not entitled to determine the stamp duty and registration fee with reference to the sale statistics, while regularising transfer of land under Section 5-A of the ROR Act.
Points for consideration :
14. In the background of the facts and the submissions made by the learned Counsel
for the parties, the following points would arise for consideration:
1. Whether the Joint Collector was competent to exercise revisional powers under Section 9 of the ROR Act in relation to the order passed by the Mandal Revenue Officer in exercise of power under Section 5-A of the Act, long prior to the conferring of such revisional power on the Joint Collector?
2. Whether it was not improper for the 1st respondent to exercise suo motu revisional powers under Section 9 of the A.P. Rights in Land and Pattedar Pass Books Act, 1971 after a long lapse of about ten years?
3. Whether the impugned order passed by the 1st respondent is not illegal, in that the 1st respondent failed to appreciate the provisions of law correctly before applying the principles of law to the facts of the case?
4. Whether respondents 4 to 30 on the one hand and respondent 31 on the other are entitled to agitate the rights in respect of an order of regularisation, which has become final, and which they did not choose to impeach before the departmental authorities?
Before dealing with the various issues and the subsidiary questions that fall for consideration, it would be convenient to refer to the impugned order dated 5-3-2001, passed by the 1st respondent The Joint Inspector-General (Registration and Stamps), Hyderabad Range, addressed a letter to the Joint Collector on 3-12-1997. In the said letter, he reported that the land admeasuring Ac. 165.01 guntas, situated in Kapra village and comprised in Sy. Nos. 159 to 169, 180 and 182 to 190 is inam land which stood in the name of one Sri Ahmed Ali
Khan. The land was converted into ryotwari patta and occupancy rights/patta certificates were issued to the eligible persons under the Inams Act, which was duly mutated in favour of the occupants. The land holders, respondents 4 to 30 or their predecessors-in-title entered into two agreements of sale in the said survey numbers in relation to Ac.81-04 guntas with the petitioner-society and that the possession of the land was also delivered, and that the society subdivided the land into plots. The land sold by respondents 4 to 30 or their predecessors-in-title to the petitioner-society was prima facie surplus vacant land under the ULC Act, and therefore, under Rule 9(iv) of the Rules, the pattedar pass books cannot be issued, and that the Act applies only for regularisation of transfer of agricultural land through unregistered sale deeds and agreements of sale. It was also reported that according to market value guidelines register, the value of the land was Rs. 100/-per Sq.yd. and due to irregular implementation of the agreements of sale, the Government was put to loss of revenue to the tune of Rs. 42,58,920/-. He thus came to the conclusion that there are grave material irregularities committed by the Mandal Revenue Officer in validating the agreements of sale under Section 5-A of the ROR Act, causing loss of revenue to the Government, duly violating the provisions and procedures of the Act and the ceiling laws. After issuing notices to the parties, the Joint Collector agreed with the Inspector-General, (Department of Registration and Stamps) and quashed the orders passed by the Mandat Revenue Officer, Keesara Mandal in regularising the alienation and transfer of land by respondents 4 to 30 in favour of the petitioner-society.
15. A reading of the impugned order would disclose that the Joint Collector quashed the orders of the Mandal Revenue Officer for the following reasons: Firstly, the land purchased by the petitioner-society
is not a land falling within the meaning of the term 'land' as defined under the ROR Act, that the land purchased by the petitioners is for the purpose of non-agricultural use, and that Kapra village has been included in the list of villages covered by the Master Plan for non-municipal area of Hyderabad Urban Development Authority vide G.O. Ms. No. 319, M.A. Department, dated 23-6-1980, and therefore, the ROR Act has no application to the land in question. Secondly, the village of Kapra having been included in the Master Plan of Hyderabad Urban Development Authority vide G.O. Ms. No. 319, M.A. Department, dated 23-6-1980, the land has become urban land, and therefore, the provisions of ROR Act have no application. Thirdly, under Section 5-A of the ROR Act, the persons whose names are recorded as occupants under the Record of Right by virtue of alienation or transfer or vacation otherwise than by registered documents are alone entitled to seek regularisation of alienation or transfer, and therefore, the agreements of sale, which only created a right in personam and not in the property, are not covered under the alienation or transfer, and hence the Mandal Revenue Officer could not have considered the documents. Fourthly, when the petitioner-society made an application to the Mandat Revenue Officer for regularisation, the patta was recorded in the name of Ahmed Ali Khan, and the vendors of the agreements, not being pattadars, it is not known whether they are rightful title holders to the land. Fifthly, the Mandal Revenue Officer has not observed the provisions of the A.P. Land Reforms (Ceiling on Agricultural Holdings) Act, 1973 or the provisions of the ULC Act, nor did he serve any notices in Forms 11 and 12 to the affected parties. Sixthly, the Mandal Revenue Officer instead of referring the matter to the Registration Department in Form-XIII-A, ought to have directed the petitioner to get the land registered under the Transfer of Property Act.
In re point No. 1:
16. The learned senior Counsel for the petitioner would submit that the order passed by the Mandal Revenue Officer under Section 5-A of the ROR Act regularising the sale, was initially not an appealable or revisable order. Act 26/1971 (Parent Act) was amended by A. P. Record of Rights in Pattedar Pass Books (Amendment) Act (Act No .9 of 1994), and Section 5-B was inserted. Section 5-B provided for an appeal to the Revenue Divisional Officer against the orders of the Mandal Revenue Officer regularising the sales under Section 5-A of the ROR Act. The order passed under Section 5-A of the ROR Act, which was not an appealable order and was deemed to be final, was also subject "to revision under Section 9 of the ROR Act by Amendment Act 1994. Therefore, he would submit that by reason of the amendment made in 1994, which came into force on 31-10-1993, the Joint Collector is not competent to exercise suo motu revisional powers in relation to an order passed under Section 5-A of the ROR Act. The learned Counsel for respondents 4 to 30 and 31 did not dispute that originally, an order passed under Section 5-A of the ROR Act was not an appealable order or revisable order under Section 9 of the ROR Act as it existed prior to amendment. The learned senior Counsel for respondent No. 31 nonetheless contended that though through Act No. 9 of 1994, Section 5-B was inserted, the provision is not express in retrospectivity operation, but still having regard to the object of the ROR Act, it is always open to the Joint Collector to exercise suo motu revisional powers even in relation to an order passed prior to the coming into force of Act No. 9 of 1994.
17. It is axiomatic that the power of revision is not an inherent power vested in the authority. The statute creating authority has to specifically confer the power of revision. A reference may be
made to Kuntesh v. Management, U.K. Mahaviayalaya, Sitapur, , wherein it was held that a quasi-judicial authority cannot exercise revision unless expressly empowered. In the instant case, when the order was passed by the Mandal Revenue Officer on 18-12-1991, there was no power of revision vested in the Joint Collector, and in the absence of any provision in the Act conferring suo motu revisional power on the Joint Collector in relation to an order passed, by the Mandal Revenue Officer under Section 5-A of the ROR Act, the Joint Collector had no such jurisdiction to entertain the revision either on application or suo motu in relation to an order of regularisation passed by the Mandal Revenue Officer prior to 3-12-1992. Section 9 of the Amended Act 9 of 1994, is not retrospective in its operation. There is, therefore, force in the submission made by the learned senior Counsel for the petitioner that against the order passed by the Mandal Revenue Officer on 18-12-1991, there is no appealor revision, and hence the question of the Joint Collector exercising revisional jurisdiction does not arise. This view is supported by the judgements of the Apex Court in Niranjan Singh v. Custodian, Evacuee, , Keshavlal v. Mohanla, , and Bai Hiragauri v. Abdul Kadar Mamadji, (1973) SCC 799.
18. In Niranjan Singh, the appellant, owned two houses in the town of Patiala. During the later part of 1948, the Custodian of Evacuee Property, Patiala took possession of the said houses under the provisions of the Patiala Evacuees (Administration of Property) Ordinance of Samvat 2004 (No. IX of 2004) on the ground that they were evacuee properties. On 27-1-1949, Niranjan Singh filed a claim petition before the Custodian alleging that the said properties belonged to him by inheritance. The Custodian by order dated 6-6-1949 allowed the claim and released the properties.
On 9-6-1955, Niranjan Singh sold part of the said properties to one Major Bhagwant Singh. On 21-6-1949, Ordinance IX of 2004 was repealed by Patiala and East Punjab States Union Ordinance No. XIII of Samvat 2006, which was again repealed by Patiala and East Punjab States Union Ordinance No. XVII of 2006. On 18-10-1949, Ordinance No. XVII of 2006 was also repealed by Central Ordinance No. XXVII of 1949 under which, the Office of the Custodian-General was created for the first time. Again, this Central Ordinance was replaced by Administration of Evacuee Property Act (No. XXXI of 1950), which was amended from time to time. On 24-10-1955, more than six years after the order of the Custodian, the Litigation Inspector of Evacuee Properties filed an application before the Custodian of Evacuee Property, Patiala, for review of the order of the Custodian dated 6-6-1949. During the pendency of that application, the powers of the Custodian and the Additional Custodian of Evacuee Property of review and revision under Section 26 were taken away by the Administration of Evacuee Property (Amendment) Act XCI of 1956. On 24-5-1957, the Deputy Custodian-General to whom the powers of the Custodian-General in that behalf were delegated, issued notice to Niranjan Singh and Major Bhagwant Singh to show-cause why the order dated 6-6-1949 of the Custodian of Evacuee Property should not be revised. Thereafter, on 1-2-1958 after hearing the parties, the Deputy Custodian-General, set aside the order dated 6-6-1949 of the Custodian and remanded the matter to the Custodian for further enquiry. Questioning the same, appeal by special leave was filed before the Supreme Court.
19. In the background of the above facts, the Apex Court while interpreting Section 58(3) of the Administration of Evacuee Property Act, 1950, held as under :
Sub-section (3) of Section 58 of Administration of Evacuee Property Act, 1950 is in two parts. The first part says that the repeal by the Act of Administration of Evacuee Property Ordinance (27 of 1949) shall not affect the previous operation of the said Ordinance and the second part says that anything done or any action taken in the exercise of the powers conferred by or under that ordinance shall be deemed to have been done or taken in the exercise of the powers conferred by or under the Act of 1950 as if the Act were in force on the day on which such thing was done or action taken. The second part is expressly made subject to the first part. If a case falls under the first part, the second part does not apply to it. Where, therefore, in a case under the previous operation of the Ordinance the order of the Custodian has become final, the fiction introduced in the second part can only operate on that order subject to the finality it has acquired under that Ordinance. Thus, the order of the Custodian, which has become final under the Administration of Evacuee Property Ordinance (27 of 1949) cannot be affected retrospectively under Section 58(3) of the Administration of Evacuee Property Act, 1950 so as to deprive the order of the Custodian of the finality it has acquired under the said Ordinance. Not only Section 58(3) of the Act does not contain any positive indication giving it such retroactivity but also in express terms it saves the previous operation of that Ordinance.
20. In Kesavlal, the appellant was sued for a decree in ejectment in respect of a shop at Ahmedabad and for rent in arrears and additional taxes. The trial Court dismissed the suit for eviction and passed a decree for arrears of rent. The decree was confirmed under Section 29 by the appellate authority, and under Section 29(2), there was no further appeal against any decision of the appellate authority. Therefore, respondents filed a revision petition under Section 115 of the Code of Civil Procedure, 1908. While this was pending, Bombay Rents, Hotel and Lodging Houses Rent
Control Act, 1947 was amended by Gujarat Act 18 of 1965 substituting Section 29(2) which provided that the High Court may suo motu call for the records and revise the orders passed by the appellate authority. Assuming that amendment applied to pending petitions also, the High Court revised the order of the appellate authority to pass a decree against Kesav Lal. It was contended on behalf of Kesav Lal that when the High Court exercising revisional power did not possess such power, that right of appeal, including right to move a superior Court by way of revision attaches to a litigation when it commences, and is not affected by any subsequent amendment unless there is express provision that the amendment is retrospective in operation, and that the right to appeal which originally attached to it to the litigation will continue to govern till it is finally decided. This point raised by Kesav Lal was accepted and the seven Judge Bench of the Apex Court relying on Niranjan Singh and other decisions, laid down as under.
... when the revision application was entertained under Section 115 of Code of Civil Procedure, the High Court assumed to itself a limited jurisdiction conferred by that section and in the absence of any express provision made in the Amending Act, the jurisdiction conferred by that section could not be extended. The question whether the High Court could in exercise of its jurisdiction set aside, modify or alter the decision of the appellate Court was not a matter of procedure. The order of the appellate Court, subject to scrutiny by the High Court within the limited field permitted by Section 115 of Civil Procedure Code was final. In conferring upon the High Court a wider jurisdiction for the purpose of determining whether the decision of the appellate Court was according to law, the Legislature did not attempt to legislate in the matter of procedure. The Legislature expressly sought to confer upon the High Court power to reopen questions which till then were to be deemed finally decided.
21. The dicta of the Constitution Bench of seven Judges in Kesavlal was followed by a two Judge Bench of the Apex Court in Bai Hiragauri, which arose under the Bombay Rent Act, 1947, and it was held as under.
Where the appellate decree has become final under the unamended Section 29(2) of the Bombay Rent Act, it cannot be set aside in exercise of the jurisdiction under the amended Section 29(2), the amendment having been made long after the appellate decree had become final, and that the High Court can deal with the cases only under its revisional powers under Section 115 C.P.C.
22. In view of the settled position of law that finality attached to an order cannot be deprived by exercise of revisional jurisdiction conferred by subsequent amendment, point No. 1 must be held in the negative holding that under Section 9 of the ROR Act, as amended by Act 9 of 1994 w.e.f. 3-10-1993, the Joint Collector, cannot reopen the matters and cases which till then were deemed to be finally decided, and that the finality attained to the order passed by the Mandal Revenue Officer cannot be taken away."
In Re point No. 2:
23. The grounds upon which administrative action is subject to control by judicial review were classified by Lord Diplock in Council of Civil Services Union v. Minister for Civil Services, (1985) Appeal Cases 374, as illegality, irrationality and impropriety. 'Impropriety', was described by Lord Diplock as not merely failure to observe the basic rules of natural justice or failure to act with procedural fairness, but also including failure of the administrator to observe procedural rules that are expressly laid down in the statutory instrument by which the jurisdiction is conferred. Even where basic rules of natural justice are followed, and even where
principles of procedural fairness were adhered to, but still there could be situations where a decision could be set at naught on the ground of impropriety. The ground of impropriety for judicial review is mainly concerned not with the exercise of jurisdiction, but the manner of exercise of jurisdiction. Needless to point out that the classification of grounds of judicial review has become part of Indian Administrative law by reason of various decisions of the Supreme Court. Reference to Tata Cellular v. Union of India, , would "suffice.
24. The learned senior Counsel would submit that the petitioner-society purchased the property under agreements of sale coupled with registered irrevocable General Power of Attorney in favour of the office bearers of the petitioner-society and possession of the land was delivered to the petitioner-society on 26-12-1992. In the revenue records, the name of the petitioner was shown as occupant, and the petitioner's name was mutated in the revenue records, and when the petitioner approached the Mandal Revenue Officer, he regularised the transfer of land by respondents 4 to 30 in favour of the petitioner-society under Section 5-A of the ROR Act vide order dated 18-12-1991. The same attained finality as it was never challenged by the respondents. The petitioner then approached the Government for change of land use for residential purposes, and preliminary Notification No.268, dated 26-6-1995 to that effect was also issued. Having obtained orders for change of land use under Section 12(2) of the A.P. Urban Areas Development Act, 1975 from conservation use zone of non-municipal area to residential use zone, the petitioner approached HUDA, paid an amount of Rs. 34,86,315/- towards developmental charges, and awaiting the sanction for lay out to the society. Therefore, he urges that exercise of power under
Section 9 of the ROR Act after long lapse of about ten years is improper and vitiates the whole exercise of power itself. The learned senior Counsel for respondent 31 and the learned Counsel for respondents 4 to 30 contends that the petitioner played fraud upon the Mandal Revenue Officer by snowing the land as agricultural land. The fraud was detected only on 3-4-1997 by the Joint Inspector-General (Registration and Stamps) and the Joint Collector initiated prompt action. As the petitioner, it is urged, played fraud in obtaining orders under Section 5 of the ROR Act, the question of the proceedings initiated by the Joint Collector being beyond the period of limitation does not arise, and the delay in exercising power under Section 9 of the ROR Act by the Joint Collector does not vitiate the proceedings.
25. Section 9 of the ROR Act does not prescribe the time within which an application has to be made to the Joint Collector against the order passed by the Mandal Revenue Officer or the Revenue Divisional Officer, under Sections 3, 5, 5-A or 5-B of the ROR Act. Be it noted that against any order passed by the Mandal Revenue Officer under Section 5(1) of the ROR Act, an appeal lies to the Revenue Divisional Officer under Section 5(4) of the ROR Act. Likewise, against any order passed under Section 5-A of the ROR Act by the Mandal Revenue Officer, an appeal would lie to the Revenue Divisional Officer under Section 5-B of the ROR Act and the law prescribes time limit of 30 days. Though Section 9 confers vast powers in the Joint Collector, to modify, annul or reverse or remit for reconsideration any order passed by the Mandal Revenue Officer or the Revenue Divisional Officer, the same does not prescribe any time within which such power has to be exercised. In such cases, it is well settled that question of propriety of exercising power with reference to the long delay depends on facts and
circumstances of each case. In the absence of necessary jurisdictional facts, the Joint Collector cannot revise the orders passed by the Mandal Revenue Officer or the Revenue Divisional Officer after a long lapse of time, especially when rights are crystallised under Section 5-A of the ROR Act. One must not lose sight of the fact that Section 5-A was introduced to validate transfer of land made otherwise than under a registered document keeping in view the object of the Act itself. Therefore, the exercise of revisional jurisdiction by the Joint Collector, especially after long lapse of time under Section 9 of the ROR Act, on mere assumptions and presumptions that fraud and misrepresentation played a role in the Mandal Revenue Officer passing the orders of regularisation," and therefore, vitiated the proceedings, cannot be sustained.
26. It is well settled that the power to suo motu call for the records and revise the orders of the lower authorities in the absence of any time limit must be exercised within a reasonable time. Criases in "Statute Law" (7th Edition) at p. 282 observed that "powers conferred by Act of Parliament must, as a general rule be exercised within a reasonable time".
27. In State of Gujarat v. Patel Raghav , M/s. Hindustan Times v. Union of India, AIR 1998 SC 688, and Jai Mangal Oraon v. Mira Nayak, , the Apex Court held that where a statute is silent as to time limit, the power must be exercised within a reasonable time.
28. In Patel Raghav, the apex Court considered the scope of revisional power of the Commissioner under Section 65 read with Section 21 of Bombay Revenue Code, which provided that the order can be revised at any time by the Commissioner. The Supreme Court held that even where statute confers power to revise orders "at
any time", the power must be exercised within a reasonable time and the length of reasonable time must be determined by the facts and circumstances of the case and the nature of the order, which is being revised. The same view was reiterated in Mansaram v. S.P. Pattak, and Ram Chand v. Union of India, .
29. In Hindustan Times, the Supreme Court considered the scope of Section 14-B of the Employees Provident Fund and Miscellaneous Provisions Act, 1952 which confers power on the concerned authority to recover damages from the employer for contravention of the Act and the scheme thereunder. Section 14-B conferred quasi-judicial power, and therefore, the authority was bound to give reasons for its orders. It was also observed that the provident fund amounts deducted by the employer from the wages of an employee are deemed to have been entrusted for the purpose of paying the contribution, and therefore, the Legislature did not think fit to make any provisions prescribing the period of limitation. The Court referring to Patel Raghav and Ram Chand observed as follows: ... The power under Section 14-B of the Act should be exercised within a reasonable time. The reason is that in the cases where rule of 'reasonable time" was applied the exercise of powers by the authority at a very belated stage was likely to result in the deprivation of property which rightly and lawfully belonged to the person concerned, the position under Section 14-B of the Act (sic.) is totally different. The employer who has defaulted in making over the contributions to the Trust Fund had, on the other hand, the use of monies which did not belong to him at all. Such a situation cannot be compared with the above line of cases, which involve prolonged suspense in regard to deprivation of property. In fact, in cases under Section 14-B if the Regional Provident Fund Commissioner had made computations earlier and sent a demand
immediately after the amounts fell due, the defaulter would not have been made to use these monies for his own purposes or for his business. It does not lie in the mouth of such a person to say that by reason of delay in the exercise of powers under Section 14-B, he had suffered loss. On the other hand, the defaulter had the benefit of the 'boon of delay which "is so dear to debtors".
30. In Jar Mangal Oraon, it was further observed that even where the provision commences with the words "if at any time", it cannot be taken to mean that the powers could be exercised without any point of time limit unmindful of the rights of the parties acquired under ordinary law of limitation.
31. In the instant case, therefore, Section 9 of the ROR Act confers suo motu powers of revision on the Joint Collector in relation to an order passed by a recording authority Mandal Revenue Officer or the Revenue Divisional Officer. It does not say that the Joint Collector can exercise the power of revision at any time. The Act also describes the scope of power when it says that the Joint Collector can modify, annul or reverse "any decision." But the words "at any time" are conspicuous by their absence, and it cannot be said that the Joint Collector can exercise power of revision without any point of time limit. In the absence of the words "at any time", it must be held that suo motu power of revision must be exercised within a reasonable time.
32. In this case, the admitted facts have been noticed. Immediately after purchase of land under the agreements of sale, the petitioner took possession of the land, and was shown as occupant in the revenue records. After passing of the validation orders, the petitioner's name was duly mutated in the revenue records. It is only after the validation orders that the petitioner approached the Government
under Section 12(2) of the A.P. Urban Areas Development Act for change of land use. Therefore, there was no fraud played by the petitioner in approaching the Mandal Revenue Officer under Section 5-A of the ROR Act. As contended by the learned Counsel for the respondents, the land was agricultural land, situated in a non-municipal area of Kapra, which was originally shown as earmarked for conservation use in the zonal development plan. It was never treated as a non-agricultural land even by a notification issued under the A.P. Urban Areas Development Act. Had the land been shown in the Master Plan as falling within municipal limits and intended for any use, commercial or residential, and had the petitioners society concealed this fact before the Mandal Revenue Officer, the situation would have been different but that is not the case. Throughout the proceedings, the land remained agricultural land, and therefore, the submission of respondents' Counsel cannot be countenanced.
33. Insofar as reasonableness of time is concerned, it must be remembered that the property was purchased by the society. Whatever be the reason, the transfer was validily regularised under Section 5-A of the ROR Act in 1991. The society representing its members approached the HUDA by paying substantial amounts towards developmental charges for sanction of the lay out. They are only waiting for sanction of the final lay out, upon which plots will be allotted. In such circumstances, if the validation proceedings are set at naught after long lapse of about ten years, it would certainly cause prejudice to the members of the society. The Joint Collector lost sight of this. Indeed, the Joint Inspector-General (Registration and Stamps), in his report dated 3-4-1997 also observed that the petitioner-society purchased the property under two agreements of sale and possession of the land was also delivered and that the society was entitled to claim the benefits
under G.O.Ms.No. 136, dated 28-1-1981, whereunder the surplus land holders were provided with an opportunity to transfer the lands in favour of co-operative societies under the ULC Act.
34. In Patel Raghav, the Apex Court observed that the Commissioner must exercise his revisional powers within a few months of the order of the Collector. This is reasonable time because after the grant of the permission for building purposes, the occupant is likely to spend money on starting building operations at least within a few months from the date of the permission. In this case also, after grant of an order under Section 5-A of the ROR Act validating the transfer, the petitioner-society approached the Government under the A.P. Urban Areas Land Development Act and also HUDA, and paid an amount of Rs. 35.00 lakhs towards developmental charges. Therefore, the exercise of power by the Joint Collector, under Section 9 of the ROR Act after a long lapse of time cannot be held to be reasonable, and therefore, the order was clearly improper. Point No.2 is accordingly answered in the affirmative.
In Re Point No. 3
35. An administrative decision is illegal if "(i) it contravenes or exceeds the terms of the powers which authorises the making of a decision; or (ii) it pursues the objective other than that for which a power to make the decision was conferred. See De Smith, Wolf and Jowell's "Principles of Judicial Review" : 1999, Sweet and Maxwell -- Pg 151. In Tata Cellular, the Supreme Court observed that illegality means the decision maker must understand correctly the law that regulates the decision making powers and must give effect to it. It was also observed that Court of judicial review must confine itself to the question of legality by examining whether a decision making authority exceeded its power,
committed an error of Law, Committed breach of rules of natural justice and reached a decision which no reasonable Tribunal would have reached.
(i) Whether transfer or alienation by an agreement of sale can be regularised under Section 5-A of the ROR Act ?
36. In me light of these principles of judicial review and doctrine of illegality, the questions that need to be considered are (i) Whether transfer of land through an agreement of sale can be regularised? (ii) Whether the land purchased by the petitioner-society is not covered by the provisions of the ROR Act, and (iii) What is the effect of the provisions of the ULC Act by reason of inclusion of Kapra village in non-municipal area of the master plan prepared under the A.P. Urban Areas Act?
37. The Joint Collector came to the conclusion that an agreement of sale creates a right in personam and not in the property, and thereafter is not covered under the alienation or transfer, which can be validated under the ROR Act. Section 5-A of the ROR Act lays down mat a person who is an occupant by virtue of alienation or transfer made or effected otherwise than by a registered document can seek regularisation of such transfer and obtain a certificate from the MRO. The words "alienation" or "transfer" are not defined in the Act, According to Black's Law Dictionary, the word "transfer" is defined as any mode of disposing of or parting with an asset or interest in an asset, including the payment of money, lease or creation of lease or other encumbrance, and that the term embraces every method of disposing of or parting with property or an interest in the property.
38. In Pandey v. Ramchandra, AIR 1992 SC 195 = (1992) 1 SCC 77, the word "transfer" appearing in Section 71-A of the
Chota Nagpur Tenancy Act, fell for interoperation before the Supreme Court. The Supreme Court held that in the absence of definition of transfer it would not be proper to confine the meaning of the terms to transfer under the Transfer of Property Act or a statutory transfer, and that what exactly contemplated in the provision is where title is passed from one to another and has a physical effect, the person is entitled to possession. Therefore, for the purpose of Section 5-A of the ROR Act, what is important is to be in possession as occupant of the land and all methods of transfer not covered by registered document are within the scope of Section 5-A (1) of the ROR Act. It must not be forgotten that the Legislature used the words"..transfer made or effected otherwise than a registered document." The word "otherwise" is crucial in interpreting Section 5-A of the ROR Act and within its fold, takes the transfer by a document or in some cases an oral transfer also within its fold. The procedure to be followed by the Sub-Registrars for fixing the value of the property whose transfer is to be validated under Section 5-A of the ROR Act was communicated by the Commissioner of Survey Settlement and Land Records vide letter dated 11-10-1999, which indicates that even oral transfers can also be validated/regularised by the MRO.
39. On more than occasion the Supreme Court and various High Courts considered the question whether there could be a valid transfer under an agreement of sale. In Commissioner of Income Tax v. T.N. Aravinda Reddy, , the Supreme Court observed as under: .......The reason, supposedly supported by
an English decision, is that purchase primarily means acquisition for money paid, not adjusted. Upjohn, J., in Bobshaw Brothers Limited v. Mayer, (1956) A11 ER 883, 835, "
has circumspectly said:
"There are no doubt to be found authorities and statues which have extended that
meaning. In Mr. T. Cyprian Williams' book, the Contract of Sale of Land, at p.3,, he says:
"Sale", in the strict and primary sense of the word, means an agreement for the conveyance of property for a price in money; but the word "sale" may be used in law in a wider sense and so applied to the conveyance of land for a price consisting a partly of money's wroth other than the conveyance of some other land.'
Apparently he considered that a sale for something other than money can in a wider sense be properly described as a sale."
We agree. The signification of a word of plural semantic shades may, in a given text, depend on the pressure of the context or other indicia. Absent such compelling mutation of sense, the speech of the lay is also the language of the law.
40. In Commissioner of Income Tax v, Podar Cement Private Limited, , the Supreme Court considered the meaning of the word "owner" in the context of Section 22 of the Income Tax and held as under:
........After all, who is to be taxed or assessed
to be taxed more accurately -- a person in receipt of money having actual control over the property with no person having better right to defeat his claim of possession or a person in legal parlance who may remain a remainder man, say, at the end or extinction of the period of occupation after, again say, a thousand years? The answer to this question in favour of the assessee would not merely be doing palpable injustice but would cause absurd inconvenience and would make the Legislature to be dubbed as being a party to a nonsensical legislation. One cannot reasonably and logically visualize as to when a person in actual physical control of the property realizing the entire income and usufructs of the property for his own use and not for the use of any other person, having the absolute power of disposal of the income so received, should be held not
liable to tax merely because a vestige of legal ownership or a husk of title in the long run may yet clothe another person with the power of a residual ownership or a husk of title in the long run may yet clothe another person with the power of residual ownership when such contingency arises which is not a case even here........
The Supreme Court further observed as under:
....The reason in simple. The consideration money has been paid in full. The assessee has been put in exclusive and absolute possession of the property. It has empowered to deal with the income as it likes. It has empowered to dispose of and even alienate the property. Reference to Section 54 or, for that matter, Section 55 of the Transfer of Property Act by the Tribunal merely emphasises the fact that the legal title does not pass unless there is a deed of conveyance duly registered. The agreement is in writing and the value of the property is admittedly worth more than hundred rupees. Section 54 of the Transfer of Property Act would, therefore, exclude the conferment of absolute title by transfer to the assessee. That, however, would not take away the right of the assessee to remain in possession of the property, to realise and receive the rents and profits therefrom and to appropriate the entire income for its own use. The so called vendors not permitted in law to dispossess or to question the title of the assessee (the so-called vendee)...
41. In a recent decision reported in Balraj v. Commissioner of Income Tax, , a Division Bench of Delhi High Court considered the question as to whether there could be valid purchase of immoveable property under the agreement of sale for claiming exemption under Section 54 of the Income Tax Act. The Delhi High Court referred to among others the decision of the Apex Court in Podar Cement Private Limited (supra), and observed as under:
......The question now is no longer res
integra having to the decision of the Apex
Court in CIT v. Podar Cements Private
Limited. The Apex Court categorically held
that Section 22 of the Income Tax Act,
1961 does not require registration of sale
deed. The meaning of the word "owner" in
the context of Section 22 has been held to be
a person who is entitled to receive income in
his own right. The Apex Court in Mysore
Minerals Limited v. CIT, (1999) 239 ITR
755, and this Court in CIT v. RL. Sood,
, have held that
registration of the document is not
mandatory for claiming depreciation on the
42. Therefore, in law, there is a valid transfer of immoveable property under agreements of sale. The power under Section 5-A of the ROR Act is to validate or regularise all transfers of land made "otherwise" than by registered documents. The transfer, therefore, of the property in question, made in favour of the petitioner-Society under the agreements of sale dated 26-12-1982 squarely falls within the ambit of Section 5-A of the ROR Act. Having regard to the non obstante clause in Section 5-A(i), any assumption that an agreement of sale operates in personam, is clear misdirection in law. The impugned orders of the 1st respondent suffers from the vice of illegality, and therefore, cannot be sustained. (ii) and (in). Whether the land purchased by the petitioner-Society is not covered by the provisions of ROR Act, and what is the effect of the provisions of ULC Act by reason of inclusion of Kapra villge in the master plan prepared under the A.P. Urban Areas Act?
43. Section 2(4) of ROR Act defines "land" as meaning land which is used or is capable of being used for the purpose of agriculture, including horticulture, but it does not include the land used exclusively for non-agricultural purposes. The definition has
inclusive part and exclusive part. All the lands which are exclusively used for non-agricultural purposes are alone excluded from the definition, and all other lands are included within the definition of the word "land". The Joint Collector observed that the petitioner purchased the land under agreement of sale exclusively for non-agricultural purposes, and therefore, it ceased to be agricultural land. Such an approach is not warranted for it is admitted that the petitioner-Society has approached the Government in 1995 when a notification was published for the change of land use. This clichingly shows that right from 1982 to 1995 when the Government issued notification under the ULC Act, the land was capable of being used for agriculture and only in 1995 its use was changed. This aspect of the matter was totally ignored by the 1st respondent as rightly contended by the learned senior Counsel for the petitioner. The Government published the notification in the Gazette on 26-6-1995 under Section 12(1) of the Urban Areas Development Act agreeing to permit the change of land use from conservation use zone in the zonal development plan in non-municipal area to residential use zone. Even the said notification is a draft notification and the same in the absence of final notification does not, in any way, for the present change the nature of the land in question.
44. The 1st respondent nextly held that the land having been included in the Master Plan of HUDA, the same has become urban land, and therefore, the provisions of the ROR Act are not applicable. Even on this aspect, the 1st respondent failed to appreciate the law correctly. Be it noted that Kapra village where the land is situated was included in the list of villages covered by the master plan for non-municipal area of HUDA vide G.O.Ms.No.319, MA Department, dated 23-6-1980. Mere inclusion of the land in the Master Plan
does not make it urban land. A reference to a few provisions of the ULC Act will this clear.
45. The term "Master Plan" is defined in Section 2(h) of the ULC Act to mean plan prepared under any law for the time being in force for the development of such area or part thereof and providing for the stages by which such development shall be carried out. Section 2(n) defines "Urban Agglomeration" to mean any area specified in corresponding entry in Column 2 of Scheduled I of the ULC Act, and includes peripheral area specified in the corresponding entry in Column 3 thereof. It is wrong to assume that all the land which is covered by the Master Plan or all the land which is included in urban agglomeration becomes "Urban Land". This is supported by the very definition of "Urban Land" as defined in Section 2(o) of the ULC Act which reads:
Section 2(o) "Urban Land" means:
(i) any land situated within the limits of an urban agglomeration and referred to as such in the Master Plan; or
(ii) in a case where there is no Master Plan, or where the Master Plan does not refer to any land as urban land, any land within the limits of an urban agglomeration and situated in any area included within the local limits of a municipality (by whatever name called) a notified area committee, a town area committee, a city and town committee, a small town committee, a cantonment board or a panchayat, but does not include any such land which is mainly used for the purpose of agriculture.
Explanation :-- For the purpose of this clause and Clause (q),--
(b) "agriculture " includes horticulture; but does not include-
(i) raising of grass, (ii) daily farming
(iii) poultry farming
(iv) breeding of live-stock, and
(v) such cultivation, or the growing of such plant, as may be prescribed;
(b) land shall not be deemed to be used mainly for the purpose of agriculture, if such land is not entered in the revenue or land records before the appointed day as for the purpose of agriculture;
Provided that where on any land which is entered in the revenue or land records before the appointed day as for the purpose of agriculture there is a building which is not in the nature of a farm house then, so much of the extent of such land as is occupied by the building shall not be deemed to be used mainly for the purpose of agriculture;
Provided further that if any question arises whether any building is in the nature of a farm house such question shall be referred to the State Government and the decision of the State Government thereon shall be final;
(c) notwithstanding anything contained in clause (B) of this explanation land shall not be deemed to be mainly used for purpose of agriculture if the land has been specified in the Master Plan for a purpose other than agriculture.
46. A plain reading of the definition of "Urban Land" would show that the land which is situated in urban agglomeration and referred to as such in the Master Plan is treated as urban land. The land which is mainly used for the purpose of agriculture, even if it is situated within the limits of urban agglomeration or is not shown in the Master Plan as urban land, does not become urban land. The land purchased by the petitioner in 1982, which was regularised in 1991, cannot be treated as agricultural land (sic 'urban land'). Indeed, even as per the impugned order, in the Master Plan, the land in question is earmarked for conservation use zone in the Zonal Development Plan for non-municipal area
and it is not treated as urban land. Be it noted that even in a municipal area the area, covered by the Master Plan, there could be agricultural land and any inference that Section 5-A of the ROR Act is not applicable to the land comprised in the Master, Plan, that is included in urban agglomeration, ceased to be agricultural and becomes vacant urban land as per the ULC Act.
47. The effect of extension of Master
Plan subseuqent to coming into force
ULC Act was considered by the Supreme
Court in State of A.P. v. N. Audikesava
Reddy, 2001 AIR SCW 5, and Govt. of A.P.
v. J. Sridevi, 2002 AIR SCW 17,68. In
Audikesava Reddy, the Supreme Court
held that the master plan prepared as per
the law in force even subsequent to
enforcement of the ULC Act has to be taken
into consideration to determine whether a
particular piece of land is vacant land or
not. To that extent, the earlier judgment of
the Supreme Court in Atia Mohammadi Begum
v. State of U.P., 1993 AIR SCW 2740 =
AIR 1993 SC 2463, was overruled. It was
further held in Audikesava Reddy as follows:
..........Further, the explanation to Section
6(1), as noticed above, very significantly provides that every person holding vacant land in excess of the ceiling limit at the commencement of the Act shall file a statement before the competent authority and "the commencement of the Act" under clause (ii) would be when the land becomes vacant for any reason whatsoever. Therefore, the date of commencement of the Act in a case where the land, was not vacant earlier, would be the date on which such land becomes vacant land. It, thus, contemplates a situation of land, not being vacant, becoming vacant due to preparation of a Master Plan subsequent to 17-2-1976. Further, the provisions of the Act require filing of a statement under Sections 6, 7, 15 and 16 from time to time as and when land acquires the character of a vacant land. Obligation to file statement under the Act arises when a
person comes to hold any vacant land in excess of the ceiling limit, which date necessarily may not be 17-2-1976. It would all depend on the facts and circumstances of each case.
48. In J. Sridevi, the Supreme Court referred to Audikesava Reddy and held that when a question arises as to the applicability of the provisions of the ULC Act, it is only the authorities like the Special Officer-cum-competent authority constituted under the ULC Act has to decide the question whether or not the land in question is a vacant urban land. The other authorities cannot decide these questions. The relevant observations are as follows: .......When a statutory authority is vested
with power to determine the question as to the applicability of the provisions of the Act, it is ordinarily desirable to leave the question to be decided by such authority. The aggrieved party can file appeal against the decision within the frame work provided under the statute and the ultimate decision also could be challenged under judicial review, if permitted in law. Instead of undergoing the normal procedure, the respondents herein directly approached the High Court for the reliefs sought for by them.
49. The ratio in the two recent judgments of the Supreme Court, referred to herein above is ample authority to conclude that mere inclusion of Kapra village in the Master Plan showing the land as earmarked for conservation use zone in non-municipal area, would not make it as urban land. Admittedly, the Government issued draft notification under the Urban Areas Development Act in the year 1995, and therefore, it cannot be said that the land is urban land as defined under Section 2(o) of the ULC Act. Further, as held by the Supreme Court in J. Sridevi, these are matters which are not within the purview of the Joint Collector, and there is necessary machinery to do so. For those reasons, the
conclusion of the 1st respondent that the MRO failed to observe the provisions of the A.P. Land Reforms Act and ULC suffers from grave error in law. Point No.3 and the two questions evolved therein are answered accordingly.
In Re Point No. 4
50. In the suo motu revision taken up by the Joint Collector under Section 9 of the ROR Act, the petitioners were made respondents by reason of an order passed by this Court in the writ petition. Though the learned Counsel for the respondents 2 to 30 submits that they also filed an application before the Joint Collector under Section 9, the fact remains they have not filed any separate writ petition against the observations made by the 1st respondent in the impugned order to the following effect: Hence, I do not feel it necessary to examine to consider the claims of respondents 3 to 29 herein who claim to be owners and disputing the fulfillment of the terms and conditions laid down in the agreements of sale.
51. Be that as it may, respondent 31, who is the original inamdar is now disputing the proceedings before the Inams Tribunal in which the occupancy certificate came to be given to respondents 2 to 30 or their predecessors-in-title. The submission made by the learned Counsel for respondents 2 to 30 and respondent 31 cannot be countenanced. Admittedly, agreements of sale were executed in favour of the petitioner society on 26-12-1982, and though the MRO regularised the transfer by issuing validation proceedings way back on 18-12-1991, respondents 2 to 30 have at no point of time objected to these proceedings. It is only when the 1st respondent initiated suo motu revision under Section 9 of the ROR Act on the letter addressed by the 2nd respondent, respondents 2 to 31 raised all sorts of objections, which cannot be allowed to be agitated.
52. Under the A.P. (Telangana Area) Abolition of Inams Act, 1955, all the inams, to which the said Act is made applicable shall be deemed to have been abolished and the inam land shall vest in the State. Sections 6 to 8 deal with registration of inamdar, kabiz-e-kadim, permanent tenants, protected tenants, and non-protected tenants as occupants of the inam land, which stood vested in the Government from the date of vesting. An occupancy certificate has to be granted by the Collector (Inams Tribunal) in accordance with an enquiry conducted under Section 10. Therefore, respondents 31, who claims to be inamdar, unless his name is registered as occupant under Section 4, has no right whatsoever to claim the land. It is the case of the petitioner-society that in November/December, 1982 Inams Tribunal granted occupancy rights in favour of the petitioner's vendors. It is also stated that respondents 31, who claims to be inamdar, filed a memo withdrawing his claim of resumption as the matter was pending before the Inams Tribunal. Therefore, respondent 31 cannot have any grievance in the absence of any occupancy certificate in his favour. In any view of the matter, as already held by me on point No. 1, the 1st respondent is incompetent to initiate suo motu revisional proceedings in this case. Accordingly, point No. 4 is answered.
Other issues for consideration :
53. The 1st respondent also found fault with the MRO collecting necessary amount as registering fee and stamp duty for regularising the transfer at the rate of Rs. 100/- per square yard. The 1st respondent held that the MRO inspite of referring the matter to the Registration Department in Form XIII-A ought to have directed the petitioner-society to get the land registered under the provisions of Transfer of Property Act.
54. The learned senior Counsel, Sri. K. Rama Krishna Reddy, for the petitioners,
placed reliance on the circular instructions issued by the Commissioner of Survey and Settlements and Land Records vide communication dated 11-10-1999. He would urge that even as per the said circular instructions, the stamp duty and registration fee should be fixed on the basis of the value determined by the Sub-Registrar having regard to the saies statistics and submitted that the MRO strictly adhered to the procedure, and there is no necessity for the petitioner-society to get the land registered under the provisions of the Transfer of Property Act, 1882. There is force in the submission made by the learned senior Counsel. As noticed earlier, Sub-section (1) of Section 5-A of the ROR Act contains non-obstante clause, and therefore, notwithstanding anything contained in the Transfer of Property Act, 1882 and the Registration Act, 1908 the MRO is under a duty to require the alienee or the transferee to deposit the amount equal to registration fee and stamp duty. As per Sub-section (2) of Section 5-A, such amount required to be deposited by an alienee or transferee shall be equal to the registration fee and stamp duty that would have been payable by the transferee or alienee had alienation or transfer been effected by agreements of sale in accordance with the provisions of the Registration Act, as fixed by the Registration Officer. Therefore, under Sub-section (2) of Section 5-A of the ROR Act, the MRO has to necessarily refer to matter to the Registration Officer to determine the amount of registration fee and stamp duty. The Commissioner in his proceedings dated 11-10-1989, elaborately considered this issue and directed the Sub-Registrars to fix the value of the property basing on the nearest sale statistics available in his office. In this case, it is not the case of the respondents that the Sub-Registrar has not followed the procedure in determining the registration fee and stamp duty as per the Registration Act, Therefore, it must be held that the impugned order suffers from illegality on this score too.
55. The learned Counsel for respondents 2 to 30 and the learned Counsel for respondent 31 submitted that the petitioner-society played fraud in getting an order of regulansation of transfer. They urged that though the society purchased the property for the purpose of house-sites, but they obtained the proceedings of regulansation claiming the land to be agricultural land, and that the general power of attorney holder on behalf of the petitioner-society himself was also a general power of attorney holder on behalf of the vendors, which is not permissible under law. The learned senior Counsel for the petitioners, refuted these contentions. He would contend that the property was transferred under agreements of sale coupled with registered irrevocable general power, of attorney in favour of the office-bearers of the society as per the practice in vogue in Hyderabad. He would also urge that as there were large number of vendors having an alienable interest in the property, for the sake of convenience, the general power of attorney was obtained. This does not, in any way, vitiate the proceedings before the MRO as the MRO issued necessary notices, recorded the statements of the vendors and passed appropriate orders. He would also submit that the vendors, namely respondents 2 to 30 or their predecessor-in-title appeared before the MRO and stated that they have no objection for issue of regulansation proceedings in favour of the society. The learned Counsel also invited the attention of this Court to para 2629 of Chitty "On Contracts" 26th Edn. Vol II Pg, 96, and Anson's "Law of Contract", 27th Edn. Pg. 657. The following statement of law appears in para 2629 of Chitty treatise "On Contracts".
Irrevocable authority :--Though an agent's authority is, as stated above, normally revocable at Will (without prejudice to his right, if any, to damages for breach of contract) there are some cases where this is not so. If there is an interest coupled with
the authority, that is, if an agreement is entered into by deed or on a sufficient consideration, whereby an authority is given for the purpose of providing a security, such an authority is irrevocable, even by death, mental disorder or bankruptcy. This is in fact hardly a case of agency at all, since the donee of the authority acts in his own interest, and the authority is an essential party of the security. Thus, in a sub-underwriting contract, the authority given by the sub-underwriter to apply in his name for such shares as he is bound by the terms of his contract to take up is an authority coupled with an interest and is irrevocable. But an authority to sell goods is not irrevocable merely because the agent has made advances to his principal on the credit of the goods, unless the authority was given in order to secure such advances. Nor is the appointment for five years of an agent to collect debts on commission an auihority coupled with an interest.
56. There cannot be any dispute that when with an irrevocable authority is given to an agent, and the same is coupled with interest, the same does not extinguished even by the death of the donor. That being the case, there is no illegality in the office-bearers of the society obtaining irrevocable power of attorney from the vendors coupled with the agreements of sale, and acting on their behalf before MRO and in the proceedings under Section 5-A of the ROR Act. Therefore, the submission of the learned Counsel for respondents 2 to 30 that the petitioner-society played fraud is misconceived and devoid of any merits. The application was made before the MRO on behalf of Bhagwan Rishi Co-operative House Building Society, and therefore, there was no concealment of any material fact. As already held by me, while considering point No. 3, till the Government issued draft notification under the Urban Areas Development Act, the land was treated as agricultural land by all the revenue authorities and the Government and nobody was in doubt about this fact. Further, it is
well settled that fraud has to be specifically pleaded and proved. Both these parameters are absent in this case.
57. In the result and for the foregoing reasons, the writ petition is allowed. A writ in the nature of mandamus shall issue declaring the impugned order dated 5-3-2001, passed by the 1st respondent in Rc.No.D2/2666/97, as being illegal and without jurisdiction, and that accordingly, the same is set aside. There shall be no order as to costs.