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2010 DIGILAW 1154 (AP)

Jhansi Prakash v. Commissioner of Appeals

2010-11-18

GODA RAGHURAM

body2010
JUDGMENT 1. Oral Order This writ petition is fundamentally misconceived. It is directed against the order dated 05-03-2001 of the 1st respondent – The Commissioner of Appeals, Office of the Chief Commissioner, Land Administration of A.P., Hyderabad declining to review an earlier order dated 13-11-1996. 2. On 23-03-1976 the Tahasildar, Bhadrachalam appears to have granted a ‘D’ form Patta assigning an extent of Ac.5-60 cents of dry land in Bhadrachalam village, Bhadrachalam Taluq to Sri T.G.S. Sunder Rao s/o Paul, claimed to be the father of the petitioners. 3. Sunder Rao approached the Settlement Officer for grant of a patta under the provisions of the Andhra Pradesh Scheduled Areas Ryotwari Settlement Regulation, 1970 (Andhra Pradesh Regulation 2 of 1970) (hereinafter referred to as the ‘Regulation 2 of 1970’). This Regulation has come into effect from 01-07-1971. 4. By the order dated 13-03-1981 the Settlement Officer, Venkatapuram Unit, Headquarters Bhadrachalam ordered the registration of Sri T. Sundar Rao’s name in the Survey Land Register for an extent of Hec. 1.03 in survey No.95/2. The Settlement Officer held on an inspection of the land and consideration of the boundaries of the land as represented by Sri Sundar Rao that survey No. 95 was subdivided into six (6) subdivisions during the current survey and out of total extent, Hec. 11.01 in survey No. 95/3 was granted on ryotwari patta under the provisions of the Andhra Pradesh (Andhra Area) Estates (Abolition and Conversion into Ryotwari) Act, 1948 (for short the 1948 Act) in favour of one Amaravadi Sreenivasa Chary son of China Seshacharyulu in case No. 7210 dated 11-07-1979; that Seetharama Swamy Devasthanam, Bhadrachalam was claiming ryotwari patta for an extent of Ac.12-00 in survey No. 95 in case Nos. 7305 and 7310. The Settlement Officer further held that the land assigned by the Tahasildar to Sri Sunder Rao falls in survey No. 95/2 part in an extent of Hec.1-03; an extent of Hec. 0.17 in survey No. 95/5; an extent of Hec. 0-29 in survey No. 95/6 and an extent of Hec.0-75 in 95/2. Since the assignment was made by the Tahasildar only after the estate vested in the Government, the provisions of Regulation 2 of 1970 are not applicable. On this reasoning the Settlement Officer held that Sri Sundar Rao was entitled to be registered as a claimant for an extent of Hec. 1.03 in survey No. 95/2. 5. Since the assignment was made by the Tahasildar only after the estate vested in the Government, the provisions of Regulation 2 of 1970 are not applicable. On this reasoning the Settlement Officer held that Sri Sundar Rao was entitled to be registered as a claimant for an extent of Hec. 1.03 in survey No. 95/2. 5. The Director of Settlements took up a suo moto revision under Section 4 (3) of the Regulation 2 of 1970 against the order of the Settlement Officer dated 13-03-1981 and by the order dated 17-04-1990 held that the reliance placed by the Settlement Officer on ‘D’ form patta purported to have been issued by the Tahasidar under the Darkhast rules and without reference to the provisions of Regulation 2 of 1970, was unsustainable. Accordingly the order of the Settlement Officer, Bhadrachalam dated 13-03-1981 in case No. 7309 directing registration of the name of Sri Sundar Rao and of the petitioners herein as legal heirs of Sunder Rao in the Survey Land Register, was set aside. 6. Aggrieved thereby the petitioners preferred an appeal to the 1st respondent, the Commissioner of Appeals, Office of the Chief Commissioner, Land Administration. The appeal was rejected on 13-11-1996. The petitioners sought review. This application for review was rejected by the order dated 05-03-2001 of the 1st respondent. The impugned order records that by the earlier order dated 13-11-1996 the Commissioner of Appeals had dismissed the appeals preferred by the petitioners observing that they failed to produce any document to establish their title over the land; that the ‘D’ form patta granted by the Revenue authorities does not constitute title of the petitioners/ appellants under the provisions of Regulation 2 of 1970; and no further material was brought on record, warranting review. Accordingly the review was rejected, as already stated by the order dated 05-03-2001 where against is this writ petition filed. 7. It requires to be noticed that the claim of the petitioners to grant of ryotwari patta as presented to the authorities under the Regulation 2 of 1970 is based on the ‘D’ form patta granted in favour of Sri Sunder Rao, the father of the petitioners on 23-03-1976. Regulation 2 of 1970 is a regulation made by the Governor in exercise of powers under Paragraph No. 5 (2) of the Fifth Schedule to the Constitution after consultation with the Andhra Pradesh Tribes Advisory Council. Regulation 2 of 1970 is a regulation made by the Governor in exercise of powers under Paragraph No. 5 (2) of the Fifth Schedule to the Constitution after consultation with the Andhra Pradesh Tribes Advisory Council. The Regulation has received the assent of the President on 03-03-1970 and has come into force with effect from 01-07-1971. To the extent relevant and material for the purpose of this case, suffice it to record that the entitlement to a ryotwari patta is under the provisions of Paragraph No.7 of the Regulation 2 of 1970. Paragraph 7(1) enjoins that every ryot in a Scheduled Areas to which this Regulation applies shall be entitled to a ryotwari patta in respect of all cultivable lands which were properly included or which ought to have been properly included in his holding and which are not lands in respect of which any other person is entitled to a ryotwari patta under any other law for the time being in force in the State relating to grant of ryotwari patta. The first proviso to paragraph 7 (1) enjoins that in case of lands in the Estates which have been taken over under the provisions of the 1948 Act, a person who would be entitled to a ryotwari patta under that Act shall be granted a patta (under Regulation 2 of 1970), if the lands have been continuously in the occupation of that person from the notified date. 8. A condition precedent to the application of the first proviso to Paragraph No. 7 (1) is therefore that for entitlement to a grant of ryotwari patta under Regulation 2 of 1970 in respect of lands taken over under the provisions of the 1948 Act, a person must be entitled to ryotwari patta under the provisions of 1948 Act and he should have been continuously in occupation of the lands from the ‘notified date’, as defined in Section 2 (10) of 1948 Act (as the notified date under the 1948 Act). Mere possession of the land as on the date of an application for ryotwari patta is therefore not sufficient under the first proviso to Paragraph No. 7 (1). Mere possession of the land as on the date of an application for ryotwari patta is therefore not sufficient under the first proviso to Paragraph No. 7 (1). It was not the case of Sunder Rao as pleaded before the Settlement Officer that he was entitled to a ryotwari patta under the provisions of the 1948 Act nor that he was in continuous possession of the lands from the ‘notified date’ as defined under the provisions of the 1948 Act. The claim of Sunder Rao is pure and simplicitor qua the ‘D’ form patta granted by the Tahasildar on 23-03-1976. The case of Sunder Rao does not therefore fall under the provisions of the first proviso to Paragraph No. 7 (1). 9. The second proviso to Paragraph No. 7 (1) enjoins that in respect of lands other than those to which a person is entitled to a ryotwari patta under the first proviso, no ryot who is not a member of the Scheduled Tribes shall be entitled to a ryotwari patta in respect of cultivable lands unless (a) such a person is in possession or in occupation of the land for a continuous period of not less than eight years immediately before the commencement of the Regulation 2 of 1970; (b) such possession or occupation shall not be void or illegal under the Andhra Pradesh Scheduled Areas Land Transfer Regulation, 1959, or any other law for the time being in force. 10. Since the claim of Sri Sunder Rao for grant of ryotwari patta falls neither under the first or second proviso to Paragraph No. 7 (1) his claim could not have considered under the provisions of Regulation 2 of 1970. 11. On the aforesaid analysis, neither the order of the Director of Settlements dated 17-04-1990, a suo moto revision against the earlier order of the Settlement Officer dated 13-03-1981, nor the impugned order dated 05-03-2001 declining to review the earlier order dated 13-11-1996 rejecting the petitioner’s appeal, suffer from any infirmity calling for interference in judicial review under Article 226 of the Constitution. 12. Sri K. Manikyala Rao, the learned counsel for the petitioners would contend that the petitioners’ possession over the land qua ‘D’ form patta would be in jeopardy on account of the rejection of application under Regulation 2 of 1970 for grant of a ryotwari patta. This apprehension has no basis. 12. Sri K. Manikyala Rao, the learned counsel for the petitioners would contend that the petitioners’ possession over the land qua ‘D’ form patta would be in jeopardy on account of the rejection of application under Regulation 2 of 1970 for grant of a ryotwari patta. This apprehension has no basis. None of the orders either by the Director of Settlement or the Commissioner of Appeals impugned herein have invalidated the ‘D’ form patta granted in favour of Sri Sunder Rao. What all has been ordered by the Director of Settlement and the Commissioner of Appeals is that the order of the Settlement Officer in respect of Sri Sunder Rao as to his entitlement to grant of a ryotwari patta under the provisions of Regulation 2 of 1970 is unsustainable. This finding is impeccable qua the provisions of Regulation 2 of 1970 as analyzed hereinabove. Since the patta granted in favour of Sunder Rao and inhering in favour of the petitioners as the legal heirs of Sunder Rao dated 23-03-1976 is intact and has not been shown to be withdrawn or cancelled, such entitlement as is available qua the grant of ‘D’ form patta is not effaced by the orders of the Director of Settlements or of the Commissioner of Appeals. This apprehension of the petitioners is therefore misconceived. 13. On the analysis above, as there is no error in the order impugned, there is no merit in the writ petition either which is accordingly dismissed after hearing the learned counsel for the petitioners Sri K. Manikyala Rao and the learned Government Pleader for Assignments for respondents. No costs.