BASAVARAJ VENKATA APPA RAO Vs. SECRETARY, BOARD OF REVENUE ANDHRA PRADESH HYDERABAD AND OTHERS

JUDGEMENT

(1.) The petitioner is aggrieved by an order of the Board of Revenue dated 8-2-1958 rejecting his appeal against the judgment of Nazim, Atiyat, on the ground that it is a third appeal and is untenable. It is this order that he challenges and seeks to have it quashed by the issue of a writ of Certiorari. A few facts may now be stated so as to appreciate the short question which falls for determination in this case.

(2.) The petitioner's grand-father Venkatappiah who was the Muntaquab holder of 2 annas 8 pies in the Makta of Chapukhtlapalem, Madhira Taluk, died leaving three sons, Venkatraiappa Rao, Bhaskar Rao, and Jaganath Rao the third son having predeceased him. The virasat therefore was sanctioned jointly in the names, of these two sons. On the death of the petitioner's father, Bhaskar Rao, in 1342 F. his share in the Makta devolved on the petitioner who along with his uncle Venkatraiapparao became the joint holder. In Khurdad 1351 F. Venkatraiapparao died leaving three daughters. So, the petitioner applied on 2nd Sherewar 1351 F for his virasat and she three daughters of the deceased also applied for their virasat on 12-10-1351 F. According to the petition the Deputy Collector after examining witnesses on either side gave his opinion in favour of the petitioner and the Collector also held in favour of the petitioner on 16th November, 1953. Against this order the three daughters of the deceased appealed to the Nazim, Atiyat, which was decided in their favour and the appeal was allowed. Against this order, the petitioner appealed to the Board of Revenue which passed the impugned order stating that it has no jurisdiction to entertain a third appeal. It is the contention of the petitioner that the first order in the case was passed by the Collector and not by the Deputy Collector who had no right to pass any orders and consequently the appeal to the Board of Revenue is only a second appeal and not a third appeal. Alternatively, it is submitted that a right of appeal was conferred under the Atiyat Enquiries Act of 1952 against the orders of the Nazim Atiyat and there is no question of any vested right being taken away when the statute confers a right of appeal. In other words, can the petitioner avail of a statutory right of appeal conferred after the filing of his suit on which date he did not have that right of appeal under the law in force then, nor on the date when the new right of appeal had been conferred an order passed under the old law had become final.

(3.) Before deal with the above question, I will dispose of the contention that the appeal in this case to the Board of Revenue was only a second appeal and as such permitted under the law in force on the date when the petitioner applied for his virasat. By a firman of his Exalted Highness dated 15th Isfandar 1350 (Notification No. 31) the Deputy Collectors were authorised to exercise the powers of a Collector in Khammam District and as such they had the power to enquire into and determine. By a Gazette Notification No. 76 of 6th Thir, 1351 F. Part A page 1121 the Deputy Collector, Khammam was authorised to enquire into and sanction succession proceedings in Atiyat matters also. It is true that under clause 5 of Gashti No. 10 of 1338 an appeal will be from the order of a Collector to the Subedar and from Subedar's order, whether in exercise of the original or appellate jurisdiction, an appeal is provided to the Nazim Atiyat. Under Section 6 of the said Gashti an appeal from the original judgment of the Nazim, Atiyat or from a decision in a first appeal, an appeal shall be to a bench consisting of two members of the Babe Hukummat, constituted by the President of the Executive Council. An order on second appeal by the Nazim, Atiyat was final. This Gashti was however, amended by Circular No. 24 of 14-9-1949 issued by the order of the Military Governor. In Section 5 of Gashti 10 of 1338 F, as also in other sections specified therein the words "Subedar of the suit or Subedar" wherever used were substituted by the words "Taluqdar of the District", for "Taluqdar" wherever used the words "Second Taluqdar" were substituted. By this amendment an appeal from the Deputy Collector would lie to the Collector and from the Collectors appellate order an appeal would lie to the Nazim, Atiyat. In view of this change, it is contended by a reference to Section 6 of Gashti 10 of 1338 F. by the respondents that there can be no appeal from the order of the Nazim, Atiyat which is passed in second appeal but this contention, in my view, overlooks the provision of the Hyderabad Atiyat Enquiries Act X of 1952 which came into force on March 1952, under which a right of third appeal was conferred from an order of the Nazim, Atiyat to the Board of Revenue, Section 11 of the said Act may be read as under