IN THE HIGH COURT OF JUDICATURE AT HYDERABAD FOR THE STATE OF TELANGANA & THE STATE OF ANDHRA PRADESH (Special Original Jurisdiction) FRIDAY, THE TWENTY FIFTH DAY OF JULY TWO THOUSAND AND FOURTEEN PRESENT THE HON'BLE SRI JUSTICE VILAS V. AFZULPURKAR WRIT PETITION No.31157 of 2012 BETWEEN Kodiboina Yerraiah and others.
AND ... PETITIONERS The Government of Andhra Pradesh, Rep. by its Secretary, Revenue Department, Secretariat, Hyderabad and others.
...RESPONDENTS Counsel for the Petitioners: MR. C.V. MOHAN REDDY For MR. POLISETTY RADHAKRISHNA Counsel for the Respondents: GP FOR REVENUE (AP) The Court made the following:
ORDER:
Petitioners have questioned the order of the Chief Commissioner of Land Administration in Case No.P1/367/2012 dated 23.08.2012.
2. Brief facts, to the extent necessary, are as follows:
(a) Petitioners claim ryotwari patta under Section 11(a) of the Andhra Pradesh (Andhra Area) Estates (Abolition & Conversion into Ryotwari) Act, 1948 with respect to Ac.9.67 cents of land in R.S.No.314 (O.S.No.483/A2, A3, B to 1) in Kapuluppada village of Bheemunipatnam Mandal, Visakhapatnam District. The said claim of the petitioners is stated to have been filed along with an application seeking condonation of delay and the delay was condoned by order of the Joint Collector cum Settlements Officer, respondent No.4 herein, under order dated 27.11.2010. Petitioners claim that the said land on resurvey has merged with R.S.No.314 but, however, being unaware of the same, they requested for conducting of survey and in those proceedings the District Collector after conducting necessary enquiry is stated to have issued endorsement in Rc.No.3639/2010/F2 dated 15.09.2010 directing petitioners to seek grant of ryotwari patta by approaching the Joint Collector cum Settlement Officer. Petitioners appear to have, thereafter, filed an application for grant of ryotwari patta accordingly.
(b) Petitioners claim that the names of their predecessors appear in pre abolition record as well as in the resurvey records and Gillman Register in the year 1904. The application for grant of patta was accordingly made contending that the said village is part of Vijayanagaram Estate, which was taken over by the Government and the grandfather of the petitioners owned Zeroythi land admeasuring Ac.9.67 cents in the old survey number, referred to above, but in the resurvey it was merged in R.S.No.314. However, petitioners claiming to be in continuous possession and enjoyment and paying cist over the years sought grant of patta. The Joint Collector and Settlement Officer conducted a detailed enquiry and under his orders dated 05.02.2011 in SR.No.11(a)/4/10/VSP came to the conclusion that the schedule land is Ryoti in nature and being in continuous possession and occupation of the petitioners and their predecessors right from 1904 granted ryotwari patta with respect to 7 acres as per the schedule appended.
(c) It is stated that dissatisfied with the said order, a revision was preferred by the Tahsildar before the third respondent, Commissioner and Director of Settlements in RP.No.13/2011/A2 and after due examination of the record, by order dated 17.02.2012, the third respondent dismissed the said revision by upholding the order of the fourth respondent granting patta to the petitioners. Aggrieved thereby, the Tahsildar preferred a further revision under Section 7(d) of the Act before the second respondent. Under the impugned order dated 23.08.2012, the Chief Commissioner examined the entire record afresh and after disagreeing with the findings of the Settlement Officer as well as Director of Settlement allowed the revision petition holding that the petitioners were not entitled to grant of patta. The said order of the second respondent is questioned in this writ petition.
3. Mr. C. V. Mohan Reddy, learned senior counsel appearing in support of the writ petition, contended that the Chief Commissioner of Land Administration has recorded adverse findings against the petitioners on the ground of limitation as well as on merits by upsetting the findings of the Settlement Officer as well as the Director of Settlements. It is stated that two principal points were framed by the Chief Commissioner for consideration viz. (1) whether condonation of delay in filing claim petition before the Settlement Officer cum Joint Collector after 50 years was done for Good and Sufficient reason by the order of the Settlement Officer cum Joint Collector dated 27.11.2010 and (2) whether the claim in respect of schedule land, as allowed by the Joint Collector, is in accordance with Section 11(a) of the Act.
4. Learned senior counsel submits that the findings reached by the Chief Commissioner on both the points is contrary to the record and is vitiated. So far as the first point is concerned, learned senior counsel submitted that the delay in presentation of claim petition was considered by the Settlement Officer at the threshold, which is evident from the order in I.A.No.4 of 2010 passed by the Settlement Officer dated 27.11.2010. Learned senior counsel submits that the Chief Commissioner has failed to notice that the said order was passed as the respondent/Tahsildar had not opposed to condonation of delay but had submitted in the remarks that there is no period of limitation.
Learned senior counsel placed on record the said order of the Settlement Officer cum Joint Collector dated 27.11.2010 to substantiate that the Settlement Officer was satisfied with the reasons mentioned in support of the delay and hence, the delay was condoned by upholding that the petitioners have no worldly knowledge and they are innocents and never prayed for grant of patta and only after endorsement of the District Collector, the claim petition was filed immediately thereafter. Learned senior counsel, therefore, submits that the findings reached by the Chief Commissioner is not only contrary to the aforesaid order but the said order of condonation of delay remained unchallenged by the respondents even when the revision was preferred before the Director of Settlements.
5. So far as the merits are concerned, learned senior counsel placed strong reliance upon the order of grant of similar ryotwari patta in favour of one Ellipilli Appalanaidu S/o. Appalaswamy with respect to Ac.1.08 cents in O.S.No.453/I, which also got merged in R.S.No.314 during settlement operations. To substantiate the same, reliance is placed upon orders of the Commissioner of Appeals O/o the Chief Commissioner of Land Administration, Hyderabad in proceedings No.P1/668/2004 dated 23.06.2004. A copy of the said order is also placed on record along with WPMP.No.45311 of 2013. Learned senior counsel submits on the basis of the aforesaid order that part of the very same land, as claimed by the petitioners, was claimed by the claimants in the aforesaid case and finding that mango tope exists on the said land and as the revenue record supports continuous occupation and possession of the said claimant, the ryotwari patta was directed in favour of the said Appalanaidu.
6. Learned senior counsel states that the aforesaid was brought to the notice of the Chief Commissioner but the same was, however, not appreciated and examined. According to him, therefore, when part of the same survey number is declared as ryoti land and ryotwari patta is granted to the said adjacent cultivator, the finding in the impugned order that the land claimed by the petitioners is not a ryoti land, is contrary to the record. Learned senior counsel also placed strong reliance upon Gillman register and Fair Land register, which, according to him, contains the entries with regard to the patta number and name of the pattadar referring to the ancestors of the petitioners.
Learned senior counsel submits that the Chief Commissioner, however, did not accept the said documents on the ground that mere similar surnames cannot be taken into consideration.
7. Learned Government Pleader appearing for the respondents, however, contended that the learned Chief Commissioner has himself examined the entire record. Learned Government Pleader points out that the Settlement Officer, while examining the application of the petitioners for condonation of delay, was carried away by thinking that there is no period of limitation prescribed under Section 11(a) of the Act and therefore, condoned the delay and decided to examine the matter on merits. Learned Government, therefore, submits that the Chief Commissioner rightly found that as per the Rules framed under the Act, the application for grant of ryotwari patta is required to be filed within 30 days of commencement of settlement operations and since the application filed by the petitioners for grant of ryotwari patta is almost after 50 years of the settlement, the condonation of delay was rightly not accepted by the Chief Commissioner. With regard to the other principal finding of the Chief Commissioner that the land in question is not ryoti, learned Government Pleader supports the said finding on the ground that in the resettlement, R.S.No.314 is classified as Hill Pormaboke, which obviously shows that the land, in question, is not a ryoti land and as such, no patta could have been sought for under Section 11(a) of Act.
Learned Government Pleader also submitted that the petitioners are not able to connect themselves with the entries of name found in Gillman Register or Fair Land Register and as such, the Chief Commissioner rightly did not accept the said documents filed in support of the petitioners.
8. I have considered the aforesaid submissions on either side.
It is, no doubt, true that the condonation application filed by the petitioners was allowed by the Settlement Officer cum Joint Collector by order dated 27.11.2010. The said order also shows that the Tahsildar had filed objections but has also stated that under Section 11 of the Act there is no period of limitation prescribed. The Settlement Officer, therefore, recorded in the order that the Tahsildar has not opposed the condonation of delay and that as the petitioners had filed claim petition immediately after obtaining endorsement of the District Collector, the Settlement Officer recorded that the reasons submitted by the petitioners are correct and consequently, the delay was condoned. The said order remained unchallenged by the Tahsildar and it is only under the impugned order of the Chief Commissioner, respondent No.2, that a finding is given that the condonation of delay after 50 years is not justified. It is noteworthy that after the said order of condonation of delay dated 27.11.2010, the Settlement Officer examined the matter on merits and passed order in favour of the petitioners on 05.02.2011. The said later order was questioned by the Tahsildar in revision before the Director of Settlements, on merits, but, however, the said revision was dismissed and only in the further revision by the Tahsildar before the second respondent that an adverse finding on limitation is recorded against the petitioners.
It is not discernible from the order impugned that the second respondent had examined the matter from the aforesaid standpoint and the order of the Settlement Officer dated 27.11.2010, particularly, the finding therein that the Tahsildar had not opposed the condonation of delay.
9. Secondly, so far as merits are concerned, the learned Government Pleader, who opposed this writ petition, also was unable to substantiate as to how the part of the land in the same survey number was treated as ryoti land and ryotwari patta was granted to one Appalanaidu under proceedings dated 23.06.2004 of the Commissioner of Appeals. Thus, an Officer of the rank equal to that of the second respondent had upheld the grant of ryotwari patta with respect to the part of the land in same survey number. In the light of that order, which has attained finality, I find it difficult to sustain the finding of the Chief Commissioner in the present impugned order that the land, in question, is not a ryoti land.
10. As mentioned above, the said order dated 23.06.2004 of the then Commissioner of Appeals does not appear to have been examined by the Chief Commissioner and in view of the fact that the said order is relevant for consideration of the case, I am unable to sustain the impugned order. So far as the finding of the Commissioner on Gillman Register and Fair Land Register is concerned, it may be that the names of the ancestors of the petitioners are recorded in the said registers and it is for the petitioners to establish their connection and relationship with their ancestors to the satisfaction of the Commissioner. No such exercise appears to have been done to establish that the names of the persons mentioned in the said registers are intimately connected to the petitioners.
11. In my view, therefore, in the interest of justice and fair consideration of the case of the petitioners, it would be just and necessary to set aside the impugned order and remit the matter for fresh consideration to the second respondent. Petitioners as well as the respondent – Tahsildar shall be free to produce such further evidence or material in support of their respective case and the second respondent shall thereupon consider the material afresh, uninfluenced by the order impugned herein and the observations made hereinabove and pass appropriate orders afresh in accordance with law.
The writ petition is accordingly allowed by setting aside the impugned order and remitting the revision to the second respondent for fresh consideration and disposal as directed above. As a sequel, the miscellaneous applications, if any, shall stand closed. There shall be no order as to costs.
VILAS V. AFZULPURKAR, J July 25, 2014 DSK