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2021 DIGILAW 309 (AP)

Bonthu Subrahmanyam v. State of Andhra Pradesh

2021-05-05

M.VENKATA RAMANA

body2021
JUDGMENT M Venkata Ramana, J. - The petitioner is questioning a notice issued by the 4th respondent - the Tahsildar, Chodavaram Mandal, Visakhapatnam District in Rc.No.36/2020/MS dated 18.02.2020 being illegal, arbitrary and contrary to Rule 3 of Andhra Pradesh Splitting up of Joint Pattas Rules, 1965 and to issue a writ in the nature of Mandamus there for. 2. Survey No.308/1 of Chodavaram village consists of Ac.4.94 cents. Ac.3.00 out of it was purchased as alleged, by Smt.S.Bhulakshmi, Smt.B.Naga Padmavathi and Smt.Pothala Sathyavathi together under sale deeds dated 19.12.1990 and 12.12.1990 from the President, Chodavaram Premasamajam of Ac.1.00 each. Total extent purchased by all the three of them is stated to be Ac.3.00 from the same vendors (two documents of afore stated dates alone are produced in this writ petition as a part of material papers). The petitioner purchased Ac.1.00 out of it under a registered sale deed dated 27.06.1994 from Smt.S.Bhulakshmi and another Ac.1.00 under another registered sale deed dated 20.05.1995 from Smt.B.Naga Padmavathi. In this sale deed dated 20.05.1995, there is a reference that Smt.Pothala Satyavathi, viz. the 6th respondent herein had also sold Ac.1.00 to the petitioner. Thus, the petitioner is claiming that he is in possession and enjoyment of Ac.3.00 in Sy.No.308/1 of Chodavaram village. 3. Smt.Pothala Satyavathi, viz. the 6th respondent herein filed Writ Petition No.4728 of 2017 to direct the Revenue Divisional Officer, Anakapalli and the Tahsildar, Chodavaram to survey this land in Sy.No.308/1, while also questioning the endorsement dated 17.01.2017 of the Tahsildar, Chodavaram Mandal rejecting his request. This writ petition was disposed of by an order dated 10.12.2019. The operative portion therein reads as under: "In the above background, in order to have a quietus and finality for the issue, this Court deems it appropriate to dispose of the Writ Petition, leaving it open for the petitioner herein to submit a proper application in accordance with the above said Rules and the Act by enclosing necessary documents and by complying with other requirements, within a period of three weeks from the date of receipt of a copy of this order and if any such application is filed, the same be considered in accordance with the provisions of the above said Rules and the Act, as expeditiously as possible." 4. Basing on the above directions, the 6th respondent filed an application dated 12.02.2020 requesting the 4th respondent Tahsildar, Chodavaram, to conduct survey of this land in Sy.No.308/1 and for its sub-division, with reference to her share of Ac.1.00 therein. Pursuant thereto, the 4th respondent issued a notice to the petitioner, the 6th respondent and others, who are stated to be neighbouring land owners or persons interested in the survey, to conduct survey of this land on 22.02.2020 at 11.00 a.m. and to fix up the boundaries, while calling all these persons to produce their title deeds and other documents in support of their respective claims. 5. The petitioner is questioning this notice in this writ petition. 6. The main contention of the petitioner is that there was no positive direction in Writ Petition No.4728 of 2017 directing to conduct survey of this land and to fix up boundaries in respect of the land claimed by the 6th respondent of Ac.1.00. Further contention of the petitioner is that there is infraction of Rule 3 of Andhra Pradesh Splitting up of Joint Patta Rules, 1965 in as much as a notice in Form No.I before conducting any enquiry or to survey this land was not issued and whereby, ten (10) days time is available for the affected parties to set out their claims. According to the petitioner, only four (04) days time is given while issuing the above notice. 7. It is also the contention of the petitioner that the 6th respondent suppressed the fact that she had already sold away her extent of Ac.1.00 and delivered possession of the same to the petitioner in W.P.No.4728 of 2017 and in the event of any dispute relating to identity of the land including boundaries, the proper forum is the Civil Court to decide and not to file a writ petition. It is alleged by the petitioner that on 22.02.2020 no survey was conducted by the 5th respondent surveyor on account of resistance offered by him as well as neighbouring land owners and who threatened to forward a report to the higher authorities as if they conducted survey. 8. In those circumstances, the petitioner claimed that he is constrained to approach this Court since issuing of notice by the 4th respondent in the circumstances is illegal and without any authority or jurisdiction. 9. 8. In those circumstances, the petitioner claimed that he is constrained to approach this Court since issuing of notice by the 4th respondent in the circumstances is illegal and without any authority or jurisdiction. 9. The respondents 4 and 6 filed separate counters along with vacate petitions. An interim order was granted on 13.03.2020 by this Court directing stay of conduct of survey pursuant to the impugned notice and with reference to any survey conducted on 22.02.2020. This interim order is being extended time to time. 10. The contention of the 4th respondent Tahsildar while disputing and resisting the claim of the petitioner is that pursuant to the impugned notice, a survey was conducted on 22.02.2020 at 11.00 a.m. at the land in question, in the presence of all the concerned including the 6th respondent and the petitioner. It is further stated that the petitioner mobilized about 15 to 20 persons and tried to obstruct the survey and when a videographer was called to record the survey process, the petitioner and his followers went away. It is also stated that the help of local police was also sought and that, on their arrival, the petitioner remained quiet, whereafter, the survey was conducted. Since entire survey could not be conducted on 22.02.2020, it is stated by the 4th respondent that a notice was issued again to all the concerned parties to attend the balance survey and that entire survey was completed by the 5th respondent in the presence of all the parties concerned. 11. It is further stated by the 4th respondent that the petitioner could have approached appropriate forum by an appeal, viz., the Collector under Section 5 of Andhra Pradesh Splitting up of Joint Pattas Act, since it is permissible, and therefore approaching this Court under Article 226 of Constitution of India, is not proper. It is also stated by the 4th respondent that since survey itself is completed, the interim order granted has become infructuous. It is also the contention of the 4th respondent that the petitioner did not file any documentary proof complying with the notice dated 18.02.2020 nor produce any revenue record to prove possession and enjoyment of Ac.0.94 cents claimed by the 6th respondent, who otherwise had produced required records like pattadar passbook, title deed etc. 12. It is also the contention of the 4th respondent that the petitioner did not file any documentary proof complying with the notice dated 18.02.2020 nor produce any revenue record to prove possession and enjoyment of Ac.0.94 cents claimed by the 6th respondent, who otherwise had produced required records like pattadar passbook, title deed etc. 12. The 4th respondent further stated that before proceeding further in terms of Rule 3 of Andhra Pradesh Splitting up of Joint Patta Rules, 1965, the Surveyor has to identify the lands, mark the boundaries of entire extent jointly purchased and therefore, the notice so issued to him is proper. Thus, it is stated by the 4th respondent that the survey work was taken up as per the directions of this Court in W.P.No.4728 of 2017 and that the petitioner did not have any right to the land of the 6th respondent. 13. The 6th respondent resisting the claim of the petitioner in her separate counter affidavit mainly contended that the petitioner has suppressed the material facts and truth and therefore, this writ petition is not maintainable. Referring to purchase of Ac.3.00 of land and later on sale of Ac.2.00 in favour of the petitioner by Smt.S.Bhulakshmi and Smt.B.Naga Padmavathi, the 6th respondent denied the claim of the petitioner that he had purchased Ac.0.94 cents from her. 14. Referring to directions in W.P.No.4728 of 2017, the 6th respondent also stated that she gave an application to the 4th respondent on 12.12.2020 for survey and sub-division of the land on which the impugned notice was issued by the 4th respondent to the petitioner, to herself and other neighbouring land owners requiring their presence at the time of survey. She also stated that survey was conducted pursuant there to, where the petitioner obstructed the survey process and with great difficulty the survey was continued. Thus, it is stated that the survey was conducted following due process of law in terms of Section 3 of Andhra Pradesh Splitting up of Joint Patta Lands, 1965, and the Rules made there under. It is also the contention of the 6th respondent that if the petitioner has any grievance with reference to notice of the 4th respondent, he could have availed alternative remedies and approaching this Court is with an ulterior motive with unclean hands. It is also the contention of the 6th respondent that if the petitioner has any grievance with reference to notice of the 4th respondent, he could have availed alternative remedies and approaching this Court is with an ulterior motive with unclean hands. Thus, it is stated by the 6th respondent that the petitioner could not object issuance of separate patta to her extent in her favour. 15. Heard Smt.Thota Suneetha, learned counsel for the petitioner, Sri Tilak, learned counsel for Sri Kalyan C.R. learned counsel for the 6th respondent and learned Assistant Government Pleader for learned Government Pleader for Revenue. 16. Now, the point for determination is, "Whether the impugned notice issued by the 4th respondent is illegal, without any authority and if the proposed action of the 4th respondent to survey this land in Sy.No.308/1 is proper?" 17. The petitioner produced only two registered sale deeds executed by Smt.S.Bhulakshmi and Smt.B.Naga Padmavathi selling away Ac.1.00 each to him. No document or sale deed is produced to confirm that he had purchased another Ac.1.00 from the 6th respondent. The basis for issuance of the impugned notice for the 4th respondent is the order of this Court in W.P.No.4728 of 2017, referred to supra. Pursuant there to, it is the contention of the 4th respondent that the entire exercise went on including survey of the land in question. 18. All the parties have produced copies of adangals and extract of 1.B Register (ROR) in respect of Survey No.308/1. They reflect that out of Ac.4.94 cents constituted by the survey number 308/1, Ac.4.00 is in possession and enjoyment of the petitioner and that, Ac.0.94 cents is in possession and enjoyment of the 6th respondent. The adangals reflect that separate katha numbers, viz. 573 and 950 are concerned to the petitioner and the 6th respondent respectively. Separate katha numbers indicate that the land revenue cist is being collected separately from the petitioner and the 6th respondent under the above accounts (a kathadar is defined in Rule 2(3) of A.P.Rights in land and Pattadar Pass Book, 1989). With reference to the extent claimed by the petitioner, there are entries in 1-B Register (ROR). So also in case of the 6th respondent. 19. With reference to the extent claimed by the petitioner, there are entries in 1-B Register (ROR). So also in case of the 6th respondent. 19. Thus, these revenue records do indicate that under two different katha numbers reflecting separate pattas issued to the petitioner and the 6th respondent, necessary mutations were carried out and whereby either adangals or 1-B register are being maintained in such fashion. In such an event, the question of splitting up of the alleged joint patta did not arise. 20. Section 3 of Andhra Pradesh Splitting up of Joint Pattas Act relates to the circumstances where joint pattas held, prior to commencement of this Act, should be split up following the procedure prescribed therein. Therefore, Section 3 of this Act is not applicable to the present context. 21. Section 4 of this Act relates to transfer by grant of pattas. It is desirable to extract the same hereunder: "(1) Every person acquiring ownership of any land by succession, estate or interstate, or by sale, gift, exchange, partition or by any other means shall be entitled for the transfer or grant of a patta for such land. (2) The Tahsildar shall, after publishing notice in the manner prescribed calling upon the owner and other persons known or believed to be interested in the transfer of patta or the grant of patta for such land and after holding an inquiry in the manner prescribed, by order, affect the transfer of patta or grant patta for such land. The Tahsildar shall thereafter get such land sub divided, where necessary, in the manner prescribed. The costs incurred by the Government in connection with such sub division shall be determined and recovered in the manner prescribed from the pattadars concerned in proportion to their shares." 22. In case of acquisition of right, title and interest to a property by sale, gift, exchange, partition or by any other means including by succession, a patta is required to be granted and or transfer of patta shall be effected. The competent authority for this purpose is the Tahsildar. For this purpose, the rules prescribed in terms of Section 9 under this Act should be followed. 23. The competent authority for this purpose is the Tahsildar. For this purpose, the rules prescribed in terms of Section 9 under this Act should be followed. 23. Joint pattadars is also defined in this Act of 1965 in Section 2(d) and it reads as follows: "Joint pattadars in relation to a joint holding means the persons who hold land directly under the Government under a joint patta or whose names are registered in the revenue records as joint pattadar or as joint occupants and who are jointly and severally liable to pay land revenue in respect of such holding." 24. In the context of the petitioner and the 6th respondent, having regard to the entries in the revenue records referred to supra, they cannot be deemed joint pattadars or joint occupants, to stand within the purview of this definition of joint pattadars. Payment of land revenue is assessed for both of them separately in a distinct manner and undisputedly, they are not contributing towards land revenue together, which is payable for this entire extent in Sy.No.308/1. Therefore, by no stretch of imagination, it can be stated that the claim of the parties is within the purview and application of Andhra Pradesh Splitting up of Joint Pattas Act, 1965. 25. Rule 3 of Andhra Pradesh Splitting up of Joint Patta Rules indicates service of notice to joint pattadar. For this purpose, the Village Officer (then Karanam) should prepare individual notices in Form No.I in respect of joint pattadars recorded in the village accounts, that shall be issued not only to the alleged joint pattadars but also all those interested. These notices should be placed before the Tahsildar, who shall cause their service to these persons calling upon them to attend before him on such date, not later than ten days from the date of receipt of the notice and at such place mentioned in the notice with all relevant documents in support of their respective claims. 26. Rule 3-A relates to transfer or grant of pattas and service of notice to owners etc., which is in terms of Section 4 of Andhra Pradesh Splitting up of Joint Pattas Act. Rule 4 contemplates an enquiry on the day fixed by the Tahsildar. Rule 5 refers to communication of orders thereon by the Tahsildar. 27. 26. Rule 3-A relates to transfer or grant of pattas and service of notice to owners etc., which is in terms of Section 4 of Andhra Pradesh Splitting up of Joint Pattas Act. Rule 4 contemplates an enquiry on the day fixed by the Tahsildar. Rule 5 refers to communication of orders thereon by the Tahsildar. 27. Against this order of Tahsildar, an appeal is available to the Collector in terms of Section 5 of the Act or a revision under Section 5-A of the Act, as the case may be. The period of limitation for presenting this appeal is 90 days from the date of communication of the order of the Tahsildar. Upon disposal of the appeal as seen from Rules 7 to 11 subject to collection of required fee, sub-division of land should be taken up by the Village Officer or the Deputy Surveyor. Sub-division records are subject to verification thereupon by the Tahsildar including the statements prepared by the Village Officer or the Dy.Tahsildar of this sub-division. 28. Thereupon, in terms of Rule 12, the Tahsildar shall direct the Village Officers to prepare a patta in triplicate in Form-II within 15 days from the date of receipt of such direction and submit it to the Tahsildar. Rule 13 speaks of issuance of separate pattas by the Tahsildar thereupon and consequent changes to be carried out in the revenue records in terms of Rule - 14 of these Rules. 29. Thus, elaborate procedure is prescribed in case of splitting of joint pattas into separate pattas as well as incorporating necessary entries thereupon in the revenue records. 30. In the presence of entries in the adangals as well as ROR Register, undisputedly available in the names of the petitioner and the 6th respondent under different katha numbers, their status as of now with reference to the land in question did not remain as joint pattadars, nor there is requirement to follow such elaborate procedure. 31. Obviously for this purpose, the 6th respondent made an attempt to locate the extent claimed by her in Sy.No.308/1 filing an application before the 4th respondent Tahsildar on 30.08.2016 paying necessary fee towards survey charges. Steps were initiated by the 4th respondent thereupon issuing notices not only to the 6th respondent but also to the petitioner and other interested persons at that stage. Steps were initiated by the 4th respondent thereupon issuing notices not only to the 6th respondent but also to the petitioner and other interested persons at that stage. However, the notice issued to the petitioner was unserved and it was returned by the postal authorities. Thereupon, when survey was sought to be carried out, the petitioner did not attend the same. Finding that there were no specific boundaries by means of bunds (ridges) in respect of the extent claimed by the 6th respondent, the 4th respondent had expressed his helplessness, which was intimated by endorsement of the office of Tahsildar, Chodavaram, dated 17.01.2017. These details are found in the counter affidavit of the Tahsildar, in W.P.4728 of 2017. Against this endorsement, the 6th respondent filed W.P.No.4728 of 2017. 32. Therefore, what was attempted by the 6th respondent earlier was to fix up the boundaries of the extent of Ac.0.94 cents claimed by her in Sy.No.308/1 approaching the 4th respondent Tahsildar. 33. When pursuant to the directions of this Court in Writ Petition No.4728 of 2017 referred to above, a notice was issued to the petitioner, which is now impugned in this writ petition, it cannot as such be found fault. The material on record manifested that the cause for issuance of such notice was only the direction of this Court and which the 4th respondent did, in obedience to directions of this Court. 34. A careful consideration of the material in this case indicated that all the parties clearly misdirected themselves in this process. Essentially there is dispute between the petitioner and the 6th respondent about Ac.1.00 of land alleged to have had been purchased by the petitioner from the 6th respondent. Entries in the revenue records are to the effect that separate extents are being enjoyed by the petitioner and the 6th respondent of Ac.4.00 and Ac.0.94 cents respectively. 35. This fact situation gives raise to another question as to how the petitioner is in possession to claim Ac.4.00 out of this entire extent when the material produced by him is reflecting his right, title and interest only to Ac.2.00. Similarly, when the claim of the 6th respondent and which is not disputed by the petitioner is that she had Ac.1.00 out of Ac.3.00 purchased by her along with Smt.S.Bhulakshmi and B.Naga Padmavathi, possession of only Ac.0.94 cents as disclosed by the revenue records requires explanation. Similarly, when the claim of the 6th respondent and which is not disputed by the petitioner is that she had Ac.1.00 out of Ac.3.00 purchased by her along with Smt.S.Bhulakshmi and B.Naga Padmavathi, possession of only Ac.0.94 cents as disclosed by the revenue records requires explanation. However, the 6th respondent stated in her counter that she would pursue her remedies in respect of Ac.0.06 cents, which is in occupation of the petitioner, while also contending that she would challenge issuance of pattadar pass book and title deed to the petitioner under A.P.Rights in Land and Pattadar Passbook Act, 1971. 36. Though there is no pleading, on behalf of the petitioner, an attempt is made by his learned counsel that the sale of Ac.1.00 by the 6th respondent to him, was an oral transaction. When there is no pleading as rightly contended by the 6th respondent, this contention cannot be permitted to be raised. Added to it, there is absolutely no document or record to support such version much less an averment in the affidavit filed in support of the petition by the petitioner. Reliance in this context is placed on behalf of the 6th respondent in CHINTA LINGAM v. GOVERNMENT OF INDIA, (1971) AIR SC 474, where it is stated that want of pleadings cannot permit a party to raise a plea for the first time. 37. Contentions are advanced on behalf of the 6th respondent that there is serious suppression of fact by the petitioner in the process of explaining the extent held by him and therefore, he is not entitled for a discretionary relief under Article 226 of Constitution of India. They are justified. 38. Reliance is placed on behalf of the 6th respondent in respect of the approach of a party when invoking extraordinary jurisdiction of High Court under Article 226 of Constitution of India in K.D.SHARMA v. STEEL AUTHORITY OF INDIA LTD., (2008) 12 SCC 481. In para 28 of this ruling, it is stated as under: "28. .................. As per settled law, the party who invokes the extraordinary jurisdiction of this Court under Article 32 or of a High Court under Article 226 of the Constitution is supposed to be truthful, frank and open. He must disclose all material facts without any reservation even if they are against him. .................. As per settled law, the party who invokes the extraordinary jurisdiction of this Court under Article 32 or of a High Court under Article 226 of the Constitution is supposed to be truthful, frank and open. He must disclose all material facts without any reservation even if they are against him. He cannot be allowed to play "hide and seek" or to "pick and choose" the facts he likes to disclose and to suppress (keep back) or not to disclose (conceal) other facts. The very basis of the writ jurisdiction rests in disclosure of true and complete (correct) facts. If material facts are suppressed or distorted, the very functioning of Writ Courts and exercise would become impossible. The petitioner must disclose all the facts having a bearing on the relief sought without any qualification. This is because, "the Court knows law but not facts". 39. Suppression of necessary material facts is observed in this case by the petitioner particularly with reference to the claim set out by him to Ac.4.00 of land in Sy.No.308/1. Even in terms of Rule 9 of A.P.Rights in Land and Pattadar Passbook Rules, a dispute of this nature should necessarily be relegated to the decision of a civil Court. In the given facts and circumstances of the case, the course left to the parties is to get this dispute settled through civil Court. The petitioner is required to institute a suit against the 6th respondent for declaration of his right, title and interest for Ac.1.00 of land, which he claimed to have had purchased from her, if he is so advised. Therefore, this writ petition has to be dismissed, subject to the rider that the parties should settle their dispute in a civil Court. 40. In the result, this writ petition is dismissed. The petitioner if so advised shall institute a civil suit against the 6th respondent with reference to the land of Ac.1.00 claimed by him in Sy.No.308/1 of Chodavaram village, in a competent Court. Any action by the 4th respondent in this matter shall be subject to the result in the civil suit in between these parties. No costs. Interim orders, if any, stand vacated. All pending petitions stand closed.