SIRISETTI MALLAYYA Vs. STATE OF ANDHRA PRADESH

JUDGEMENT

(1.) This is an application under Article 226 of the Constitution for quashing the order of the Government of Andhra Pradesh, Revenue (T) Department in Memorandum No. 103544-T-57-4 dated 7-1-1958. The case of the petitioner is that he was an abkari contractor and that his properties were brought to sale by the Tahsildar, Parkal on 13-3-1957 for the recovery of the excise arrears of a sum of Rs. 19009-13-0 without giving a proper notice of sale and without issuing "30 days proclamation and proper publication". Thereupon he filed an application before the Board of Revenue to set aside the sale. He did not implied the auction purchaser, the 2nd respondent herein, as a party to is application. The Board of Revenue passed an order on 25-7-1957 setting aside the sale. The Board observed that the mandatory provisions of Sections 130 and 135 of the Hyderabad Land Revenue Art (VIII of 1317 F) hereinafter referred to as "the Act" had not been observed and that consequently, the sale was void. The auction-purchaser was directed to be dispossessed, if already put in possession. The 2nd respondent in his turn, moved the Government of Andhra Pradesh to set aside the order of the Board of Revenue. It is interesting to note that the 2nd respondent did not implied the petitioner herein as a party to his application before the Government. The Government of Andhra Pradesh passed the following order: "The Government have carefully examined the request of Sri K. Ananta Reddy. They consider that while there can be no doubt that there are many irregularities in the auction proceedings and the sale of immovable properties, the revisional jurisdiction exercised by the Member, Board of Revenue, under Section 166(b) of the Hyderabad Land Revenue Act is defective inasmuch as no order under the above section can be passed without summoning the parties who may be affected by such orders and without giving a hearing. This is a mandatory provision which renders the orders under Section 166(b) invalid. The case is therefore remanded to the Board of Revenue (Excise) and the Board is requested to summon the parties and hear their objections and pass such orders as deem fit. The Board is also requested to take into consideration the further points adduced in the petition of Sri Mallyya dated 30-12-1957 enclosed herewith, while disposing the case." As against the said order of the Government of Andhra Pradesh the writ is filed before this Court.

(2.) Sri V. Madhava Reddi, the learned advocate for the petitioner, contended that the Govern merit had no jurisdiction to interfere with the final order passed by he Board of Revenue and that this Court should consequently set aside that order. Under Section 166-B of the Act, the Government or any Revenue Officer not lower in rank to a Taluqdar, the Commissioner of Survey Settlement or 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 take suitable order in that behalf. Under the Hyderabad Board of Revenue Regulation (No. LX of 1358 F.), hereinafter referred to as "the Regulation", the Board of Revenue was constituted. All the power and duties conferred and imposed on Subedars devolved upon the Board of Revenue. Section 6 enacts that subject to such conditions and reservations as Government may from time to time prescribe, all appellate and revisional powers for the time being vested in Government in the Revenue Department shall be exercisable by the Board. Sri Madhava Reddi rightly contended that after the passing of the Regulation, the powers vested in the Government under Section 166-B had to be exercised by the Board of Revenue.

(3.) In exercise of the powers under Sections 6 and 8 of the Regulation, G.O. No. 31, dated 14-9-1949 was issued by the Government of Hyderabad, Revenue Department. Under Clause (1), it provided that any party aggrieved with a decision or order of the Board of Revenue may, within thirty days from the date of such decision or order, submit a revision petition to the Honble the Revenue Member. By a subsequent notification of the Government of Hyderabad, Revenue Department, No. 8 dated 28-2-1952 the earlier notification of 1949 was superseded the right of revision to the Honble the Revenue Minister was taken away. A question was raised whether the subsequent notification superseded the earlier notification completely or only partially. A reading of the notification dated 28-2-1952 makes it quite clear that the Government did not reserve any judicial power under Section 6 of the Regulation. Clause 4 of the notification refers to all cases of appeals, revisions and reviews pending before 28-2-1952 and not merely to appeals in respect of matters dealt wife in Clauses 1 to 3. This view was taken by Kumarayya J. in W.P. No. 46 of 1954-55, D/- 3-12-1957 (Andh. Pra.) (A).