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2000 DIGILAW 751 (AP)

Peddianti Rajendra Prasad v. Commissioner of Survey, Settlement and Land Records

2000-09-27

ELIPE DHARMA RAO

body2000
ELIPE DHARMA RAO, J. ( 1 ) THIS writ petition was filed to issue a writ of Certiorari and to call for the records connected with C. S. S. and L. R s Case no, P2/164/89 dated Nil communicated through Memo No. P2/164/89 dated 25-8-90 from the Office of the commissioner of Survey, Settlement and land Records and quash the same as illegal, and pass such further orders which are deemed fit and proper in circumstances of the case. ( 2 ) IT is submitted by the petitioner that his ancestors were granted an extent of ac, 8. 75 in S. Nos. 99/2 and 101/2 situated in Korukonda village, East Godavari district more than 100 years back by sri Lakshminarasimhaswamy Varu and the petitioner and his ancestors were in peaceful possession and enjoyment of the land. It is further submitted that the ancestors of the petitioner dug a tank in s. Nos. 99/2 and 101/2 for the purpose of source of irrigation for the other patta lands in S. Nos. 96/1 and 96/3 measuring an extent of Ac. 18-24. The said tank is locally known as Perayyagandi Cheruvu, which is a private tank. The entire land is not covered by the tank and only a part of it will be submerged in water and the rest is either water spread in rainy season and foreshore land. The above said tank is maintained and repaired by the petitioner and his ancestors all these years continuously at their expense and the tank is not a communal tank. Neither the State nor the Government has ever exercised any power and no one has any right to draw water from the private tank of the petitioners. The Settlement Officer, rajahmundry in his proceedings SR/11 A/13/76 dated 30-11-1976 granted ryotwari patta under the provisions of the Estates abolition Act in his favour observing that the tank water is exclusively used for irrigating the petitioner s land for over hundred years and the petitioner maintained and repaired the tank himself and that the tank is a private tank. The Settlement Officer, rajahmundry in his proceedings SR/11 A/13/76 dated 30-11-1976 granted ryotwari patta under the provisions of the Estates abolition Act in his favour observing that the tank water is exclusively used for irrigating the petitioner s land for over hundred years and the petitioner maintained and repaired the tank himself and that the tank is a private tank. The finding arrived at by the Settlement Officer, rajahunddry based on the certified copies of cultivation adangal of 1293 and 1295 faslis, certified extracts of 2d account of 1327 Fasli and the expenditure receipts for repairs of the tank incurred by them during the years 1948 to 1961 and certified copy of the order of the District Munsif dated 15-11-1962. When there was no contra evidence, either oral or documentary produced by the respondent officials and though the order was passed as early as in the year 1976, the Tahsildar, Rajahmundry has not chosen to file any appeal before the director, Survey and Settlement, hyderabad, Thereafter, the petitioner has filed a petition before the Tahsildar, rajahmundry, to implement the order of the Settlement Officer and subsequently reminders were also sent. When the tahsildar. Rajahmundry has not considered the same, he filed Writ Petition No. 10680 of 1984 before this Court to direct the Mandal revenue Officer to implement the order of the Settlement Officer dated 30-11-1976. After receipt of the Rule Nisi from this court, the Mandal Revenue Officer filed a belated revision before the Director of settlement on 18-8-1984. The revision petition was returned with some objections on 15-10-1984 and it was re-represented on 8-1-1985 and thus there was a delay of 8 years 9 days in presenting the revision petition before the Director of Settlement, hyderabad. The reasons for occurrence of delay in filing the a revision petition were explained by the Tahsildar, Korukonda stating that the opinion of the Government pleader was received on 27-7-1984 and after the receipt of necessary opinion and sanction, the petition was filed on 18-8-84. It was further stated that the delay in filing the revision petition is due, to the reasons beyond his control and due to administrative reasons and not due to negligence. It was further stated that the delay in filing the revision petition is due, to the reasons beyond his control and due to administrative reasons and not due to negligence. Considering the recitals of the affidavit filed by the Tahsildar, explaining the reasons for the delay in filing the revision, the Director of Survey and settlement, allowed the condone delay application by his order dated 12-12-1988, following the judgment of the Supreme court reported in AIR 1988 S. C. 897. ( 3 ) AGAINST the order, the petitioner has filed further revision before the commissioner, Survey and Land Records, hyderabad, and the same was dismissed confirming the orders dated 25-8-1990 passed by the Director, Survey and Land records. ( 4 ) IN these circumstances, the petitioner submits that the Director, Survey and settlement, committed an error in allowing the condone delay petition filed by the tahsildar, Rajahmundry, contrary to law. It is further submitted that the Tahsildar, rajahmundry, has not explained any reasons for the occurrence of 8 years 9 days delay, that he merely stated that after receipt of the order from Settlement Officer, rajahmundry, the matter was referred to the Government Pleader for opinion and sanction from the Government to file a review petition before the Director and due to the administrative reasons the delay occurred, that to obtain the opinion from the Government Pleader or sanction from the Government, a period of 8 years is not required and therefore, the Director should not have condoned the delay in filing the revision petition, that the Tahsildar, rajahmundry should have filed the revision before the Director within a reasonable time after receiving the order of the Settlement officer. It is further contended by the learned Counsel for the petitioner that tahsildar has taken steps after filing the writ petition before the Honourable High court and after receipt of Rule Nisi in the writ petition, the revision petition was filed before the Director with condone delay application, as such the Director should not have entertained the revision petition and the condone delay application. He further contends that the Director has erroneously followed the judgment of the Supreme court picking up some paragraphs in the judgment and allowed the condone delay application, reading the same in isolation of the text, wherein it was held that the revision has to be filed within reasonable time. He further contends that the Director has erroneously followed the judgment of the Supreme court picking up some paragraphs in the judgment and allowed the condone delay application, reading the same in isolation of the text, wherein it was held that the revision has to be filed within reasonable time. For all the above contentions raised by the learned Counsel for the petitioner, it is prayed that the order passed by the commissioner, Survey and Settlement and the Director, Survey and Settlement are liable to be set aside, inasmuch as the order passed condoning the delay and as confirmed by the Commissioner are liable to be to set aside on the ground of illegality and not in consonance with the decision of the Supreme Court, ( 5 ) TO appreciate the contentions raised by the learned Counsel for the petitioner, have gone through the material placed before me. As seen from the order, the settlement Officer, Rajahmundry has extensively dealt with the application filed by the petitioner based on the oral evidence of three witnesses and 17 documents and in the absence of any contra evidence on behalf of the official respondents, held that this land was in possession of the petitioner and his ancestors for about a century, It is further held that the tank is a private tank and the repairs were made by the ancestors of the petitioner and the water from the above said tank, popularly known as perayyagandi cheruvu is exclusively used by the petitioner for agricultural purposes and it is not a communal tank meant for public. This order was passed as early as on 30-11-1976 and the copies of the orders were communicated both to the petitioner and the Tahsildar, Rajahmundry. Though the tahsildar has received copy of the order, except saying that he has written to the superior officers for sanction to file a revision before the Director, Survey and settlement and sought the opinion from the government Pleader, whether there is any case to prefer revision before the Director, he has not explained the delay, and when the writ petition was filed by the petitioner for implementing the order of the settlement Officer, then only the revision was preferred with condone delay petition before the Director. As seen from the affidavit filed by the Tahsildar to explain the reasons for delay in filing the revision, he has not stated when the matter was referred to the Government Pleader for his opinion, but stated that he has addressed to the Superior Officers for preferring revision before the Director. The only date given is 27-7-84 on which he received legal opinion from Government Pleader. Except saying that the delay in filing the revision petition is due to reasons beyond his control and administrative, no details are given in the affidavit. On the basis of the above said facts, the Director has condoned the delay of 8 years 9 days. ( 6 ) AS seen from catena of decisions of the supreme Court, though day to-day delay need not be explained, but a revision has to be filed within a reasonable time and administrative reasons are not good grounds to condone the delay and the courts shall not exhibit a different attitude in the case of condone delay petitions filed by the Government. In support of these contentions, the learned Counsel for the petitioner has relied on a judgment of this court in State of Andhra Pradesh through district Collector, Mahabubnagar and another vs. Sayanna and another wherein a Division bench of this Court while dealing with the condonation of delay petitions has observed that the petition to condone delay was filed by the State of Andhra Pradesh represented by the District Collector, Mahaboobnagar to condone the delay of 3,654 days in filing the second appeal against the judgment of the first appellate Court rendered on 5-2-1985. In that context, it was held by the Division bench of this Court that the reasons for the delay should be satisfactorily explained so as to make out a sufficient cause under section 5 of the Limitation Act. In that case, a petition was filed by the State for condonation of delay in preferring the appeal. The Court held that a yardstick to be applied and approach to be adopted. Deprivation of public property may affect public interest in disposing of the delay condonation petition by the State, it is not the whole content and test of doctrine of sufficient cause. The Court held that a yardstick to be applied and approach to be adopted. Deprivation of public property may affect public interest in disposing of the delay condonation petition by the State, it is not the whole content and test of doctrine of sufficient cause. Prescription of title and adverse possession even in relation to government property can not be denied under law and the State is not relieved of the obligation to satisfy the Court of the existence of sufficient cause. The concept of sufficient cause in relation to State should be viewed having regard to practical realities of Governmental functioning and strict insistence on explaining every day s delay is not warranted, that a wider latitude in the matter of condoning delay called for. The Division Bench has further held that the difference in approach does not mean that any explanation given by the State Officers shall be accepted without passing the test of reasonableness and genuineness, that where the delay is too long, cogent and convincing reasons have to be given. In the case before the Division Bench, the delay of ten years in filing Second Appeal by the state remained unexplained and the facts and events narrated show the inaction, indifference, callous and casual approach on the part of the Government and its officials and therefore, holding that no good and substantial reasons were furnished and since there is a limit to the liberality and latitude that could be shown to the State, the Division Bench dismissed the delay condonation petition. ( 7 ) IN yet another Division Bench judgment of this Court comprising of the learned Chief Justice and V. V. S. Rao, J. in commissioner of Survey, Settlement and Land records A. P. and another vs. Saraddy kanakamma and others, while dealing with the matters under Section 5 of the Andhra pradesh (Scheduled Areas) Ryotwari settlement Regulation, 1970, in writ appeals filed against the order passed in writ petitions setting aside the order passed by the Commissioner, Survey Settlement and land Records, held that the applications filed seeking condonation of delay of 496 days in filing the appeals and of 418 days in re-presenting the appeals, which were returned for compliance of certain objections, in the absence of any proper explanation for the inordinate delay, merely on the ground of heavy rush of work or misplacement of files in the office of the government Pleader, is not a sufficient ground to condone the delay and the State can not be treated differently than an ordinary litigant in the matter of condonation of delay. ( 8 ) THE respondents have relied on the judgment of the Supreme Court in n. Balakrishnan vs. M. Krishnamurthy. In that case, when an application was filed to set aside the ex parte order with a petition to condone the delay of 883 days, the trial court allowed the delay condonation petition. But the High Court interfered with the matter and set aside the order in revision and thus the said matter was carried to the Apex Court and it was observed by Their Lordships that in every case of delay, there can be some lapse on the part of the litigant concerned, that alone is not enough to turn down his plea and to shut the door against him. If the explanation does not smack of mala fides or it is not put forth as part of dilatory strategy the Court must show utmost consideration to the suitor. But when there is reasonable ground to think that the delay was occasioned by the party deliberately to gain time then the Court should lean against acceptance of the explanation. While condoning the delay, the Court should not forget the opposite party altogether. But when there is reasonable ground to think that the delay was occasioned by the party deliberately to gain time then the Court should lean against acceptance of the explanation. While condoning the delay, the Court should not forget the opposite party altogether. Their lordships further observed that it must be borne in mind that he is a loser and he too would have incurred quite a large litigation expenses, that it would be a salutary guideline that when Courts condone the delay due to laches on the part of the applicant, the Court shall compensate the opposite Party for his loss. ( 9 ) THOUGH the Supreme Court interfered with the order of the High Court in balakrishnan s case (supra), but held that if the explanation does not smack of mala fides or it is not put forth as part of a dilatory strategy, the Court must show utmosl consideration to the suitor and it should not forget the opposite party, which too had incurred litigation expenses. In such circumstances, the delay has to be condoned. That apart, the delay was condoned also on the ground that the advocate has not informed the appellant in that case with regard to the ex parte order passed by the Court, so as he can approach the concerned Court to seek appropriate relief. ( 10 ) IF the ratio laid down in balakrishnan s case (3 supra is applied to the facts and circumstances of the instant case, herein there is a delay of 8 years in filing the revision before the Director against the order of the Settlement Officer, rajahmundry. No proper explanation has been given by the Tahsildar except saying that the opinion of the Government Pleader was received on 27-7-1984. He is too quiet as to when the matter was referred to the government Pleader and when he has requested his superiors for sanction to file the revision. As stated above, administrative reasons are no good grounds to seek condonation of delay. He is too quiet as to when the matter was referred to the government Pleader and when he has requested his superiors for sanction to file the revision. As stated above, administrative reasons are no good grounds to seek condonation of delay. In the absence of any particulars about the delay caused in filing the revision, in the explanation of the tahsildar, Rajahmundry, the exercise of the power by the Director in condoning the delay of 8 years 9 days is bad in law, inasmuch as while allowing the condone delay petition, the Director, Survey, settlement and Land Records, has conveniently forgotten the loss sustained by the opposite party i. e. , the petitioner herein. Thus the impugned order is against the observations made by the Supreme Court in balakrishnan s case (supra) and the observation made by two Division Benches supra. Therefore, I have no hesitation in holding that the impugned order passed by the Director, Survey Settlement and Land records and its confirmation by the commissioner, Survey Settlement and Land records is liable to be set aside. ( 11 ) FOR the reasons stated above, I hold that the Director, Survey, Settlement and land Records has committed an error in condoning the delay of 8 years 9 days in filing the revision petition against the order of the Settlement Officer dated 30-11-1976, through his proceedings dated 12-12-1988 and confirmed by the Commissioner, survey, Settlement and Land Records in case No. P2/164/89 dated Nil communicated through Memo No. P2/164/ 89 dated 25-8-1990 is illegal and contrary to law. ( 12 ) THE writ petition is accordingly allowed. No costs.