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2011 DIGILAW 210 (AP)

Thota Saidaiah v. The Commissioner, of Appeals

2011-03-10

A.GOPAL REDDY

body2011
Judgment : Oral order In this application filed under Article 226 of the Constitution, the petitioners seek a writ in the nature of Certiorari by calling the records connected with the order of the Commissioner, Survey Settlements and Land Records—1st respondent passed in review petition No.L1/588/2000, dated 22-01-2003 and quash the same. The petitioners claim to be the tenants of Freehold land to an extent of Ac.2.68 situated in Kannaigudem village under a Sanad, which was granted in the name of Kanakapalli Janardhana Rao in the year 1869 by the Secretary of the State for India in Council in consideration of payment of money, free of land revenue for ever. The said lands are heritable and transferable. The village is either part of an Estate or Ryotwari village. The Government of Andhra Pradesh in Memo No.392/J2/79 dt.10-07-1981 issued orders applying the provisions of the Andhra Pradesh (Scheduled Areas Ryotwari Settlement) Regulation, 1970 (hereinafter referred to as ‘A.P. Regulation II/1970’) to the Freehold Villages situated in the Scheduled areas. Kanakapalli Janardhana Rao—Freeholder granted lands admeasuring H.O-68 acres in Sy.No.22/2P and H.2-00 acres in Sy.No.23/P situated in Kannaigudem village on permanent lease to the father of the 1st petitioner—late Venkaiah and father of the 2nd petitioner—late Ramanujaiah and ever since the petitioners are in possession. The petitioners claim Ryotwari patta before the Settlement Officer, Bhadrachalam in respect of the above said lands under the Provisions of A.P. Regulation II/1970, but the said claim was rejected by the Settlement officer, Bhadrachalam—3rd respondent on the ground that the petitioners are not entitled for grant of Ryotwari Patta by order dated 19-02-1985 in case File Nos.11035 & 11068. Against the said orders, the petitioners filed appeals before the Director of Settlements—2nd respondent in A.P.No.329/85/G1 and A.P.No.330/85/G1, which were dismissed. On dismissal of the same they filed Second Appeals before the Commissioner of Appeals—1st respondent. The said appeals were also dismissed on 21-07-2000 holding that the petitioners who are tenants are not entitled for grant of Ryotwari Patta under the provisions of A.P. Regulation II/1970 in CCLA L1/223/98. Thereafter, the petitioners filed a review petition under Section 16(f) of A.P. Regulation II/1970 to review the order passed by the Commissioner. The said appeals were also dismissed on 21-07-2000 holding that the petitioners who are tenants are not entitled for grant of Ryotwari Patta under the provisions of A.P. Regulation II/1970 in CCLA L1/223/98. Thereafter, the petitioners filed a review petition under Section 16(f) of A.P. Regulation II/1970 to review the order passed by the Commissioner. On dismissal of the review petition the present writ petition has been filed contending that the finding of the 1st respondent that under A.P. Regulation II/1970 tenant is not entitled to Ryotwari Patta is an error on the face of record and there is no such provision in A.P. Regulation II/1970. As per Section 2(k) of the Andhra Pradesh Mahals (Abolition and Conversion into Ryotwari) Regulation, 1969 (Regulation I/1969) the word “tenant” means a person who holds cultivable land of another person, and is, or but for a special contract would be, liable to pay rent for such to such other person and includes an absolute occupancy tenant, occupancy tenant and ordinary tenant and a village service tenant. Every tenant of a Mahal is entitled for grant of Ryotwari patta under Section 5 of Regulation I/1969. Similarly under Section 7(1) of A.P. Regulation II/1970 every Ryot is entitled to Ryotwari patta in respect of cultivable lands which were properly included or ought to have been properly included in his holding. In similar cases, the Director of Settlements set aside the orders of the Settlement Officer, Bhadrachalam by partly allowing the appeals and remanded the cases to the Settlement Officer to examine all the documents and decide the case as per law. Though the said orders have been placed before the Commissioner of Appeal, without considering the same he dismissed the appeals as well as review petition. Hence the present writ petition. Admittedly, the petitioners have not challenged the order passed by the Commissioner dated 21-07-2000 dismissing the appeals by a reasoned order, but review has been filed which was dismissed. In the review petition filed before the court, the petitioners have not filed any additional documentary evidence to support their claim. In the absence of such documentary evidence the orders passed in File No.L1/223/98, dated 21-07-2000 do not call for any interference and accordingly dismissed the review petition. Hence, the present writ petition. In the review petition filed before the court, the petitioners have not filed any additional documentary evidence to support their claim. In the absence of such documentary evidence the orders passed in File No.L1/223/98, dated 21-07-2000 do not call for any interference and accordingly dismissed the review petition. Hence, the present writ petition. In the counter filed by the 4th respondent—Mandal Revenue Officer, Bhadrachalam it is stated that as per proviso to Section 7(1) of Regulation II/1970 the petitioners who are claiming Ryotwari patta must prove their continuous lawful possession not less than 8 years immediately before the commencement of Regulation II/1970. If the claimants satisfy two ingredients (i) continuous possession and (ii) possession must be lawful then only they are entitled to Ryotwari patta. The petitioners herein are only tenants, not entitled to Ryotwari patta. On Enforcement of Regulation II/1970, the Settlement Officer, Bhadrachalam conducted suo motu enquiry for grant of Ryotwari patta in favour of the deceased appellants— Thota Venkaiah and Thota Ramanujaiah—fathers of the petitioners herein covering an extent of H.O-68 and H.2-0 situated in Kannaigudem village, Bhadrachalam Mandal, Khammam District and rejected their claims on the ground that they are only lessees (tenant) and there is no provision for grant of Ryotwari patta to the tenant under A.P. Regulation II/1970 and the said leases are absolutely void under the provisions of the Andhra Pradesh Scheduled Areas Land Transfer Regulation, 1959 (Regulation I/1959) as amended by A.P. Regulation I/1970. It is not in dispute that the schedule lands are situated in Freehold village called “Thallagudem” for which Kanakapalli Janardhana Rao is the Freeholder. A Freehold village is defined as comprising wastelands sold by the British Government to the highest bidder in a public auction without any liability to pay cess and other local taxes. Initially A.P. Regulation II/1970 was not made applicable to the Freehold lands, but the Government of Andhra Pradesh in Memo No.392/J2/79, dated 10-07-1981 issued orders that the provisions of A.P. Regulation II/1970 are applicable to the Freehold lands also. Section 7(1) of A.P. Regulation II/1970 reads thus: 7. Initially A.P. Regulation II/1970 was not made applicable to the Freehold lands, but the Government of Andhra Pradesh in Memo No.392/J2/79, dated 10-07-1981 issued orders that the provisions of A.P. Regulation II/1970 are applicable to the Freehold lands also. Section 7(1) of A.P. Regulation II/1970 reads thus: 7. Land in which ryot is entitled to Ryotwari patta— (1) Every ryot in the Scheduled Areas to which this Regulation applies shall be entitled to a Ryotwari patta in respect of all cultivable lands which were proper 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. Provided that in the case of lands …….. Provided further that in respect of land 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 Ryotwari patta in respect of cultivable land unless— (a) such a person had been in possession or in occupation of the land for a continuous period of not less than eight years immediately before the commencement of this Regulation. (b) such possession or occupation shall not be void or illegal under the Andhra Pradesh Scheduled Areas Land Regulation, 1959, or any other law for the time being in force. Learned counsel for the petitioners contends that Thota Venkaiah—father of the 1st petitioner and Thota Ramanujaiah—father of the 2nd petitioner obtained permanent lease from the Freeholder and schedule lands are in continuous possession of their fathers and they paid cist to the Freeholder. Before the Settlement Officer, Bhadrachalam, who conducted enquiry, they filed unregistered document dated 09-01-1968 executed on white paper stating hat Thota Venkaiah acquired Ac.4.00 situated in Thallagudem village on permanent lease from the Freeholder—Kanakapalli Janardhana Rao with absolute heritable and transferable rights. Before the Settlement Officer, Bhadrachalam, who conducted enquiry, they filed unregistered document dated 09-01-1968 executed on white paper stating hat Thota Venkaiah acquired Ac.4.00 situated in Thallagudem village on permanent lease from the Freeholder—Kanakapalli Janardhana Rao with absolute heritable and transferable rights. Further, as per second proviso to Section 7, which is applicable to Freehold village, a person who is in possession or in occupation of the land for a continuous period of eight years immediately before the commencement of this Regulation i.e. 01-07-1971 and such possession or occupation shall not be void or illegal under the Andhra Pradesh Scheduled Areas Land Regulation, 1959 as amended by A.P. Regulation I/1970 or any other law for the time being in force, shall be entitled to Ryotwari patta in respect of cultivable land. Admittedly, Thota Venkaiah—father of the 1st petitioner acquired land from the Freeholder with absolute heritable and transferable rights under unregistered document dated 09-01-1968; therefore, the petitioners cannot claim that they have satisfied the first condition, viz., for a continuous period of eight years immediately before the commencement of Regulation II/1970. Further, the above permanent lease amounts to ‘transfer’ under Section 2(g) of the Andhra Pradesh Scheduled Areas Land Transfer Regulation, 1959 and such transfer of immovable property is prohibited. In the absence of petitioners filing any documents to substantiate that they are entitled for grant of Ryotwari patta; and not satisfying the two conditions imposed in second proviso to Section 7(1) of Regulation II/1970, dismissal of review petition by the 1st respondent do not suffer from any illegality warranting correction by this Court under writ jurisdiction. The writ petition fails and it is accordingly dismissed. No costs.