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2022 DIGILAW 808 (AP)

C. v. Ramani VS State of Andhra Pradesh

2022-08-26

D.V.S.S.SOMAYAJULU

body2022
JUDGMENT D.V.S.S. Somayajulu, J. - This Writ Petition is filed for a Mandamus and seeking a declaration that the order dated 12.10.2018 passed by the 4th respondent under Section 11(a) of the Estates Abolition Act, 1948 with respect to the petitioner's land in Krishnarayapuram Village, Pendurthi Mandal, Visakhapatnam District, as illegal and arbitrary. 2. This Court has heard Sri O. Manohar Reddy, learned senior counsel appearing for the petitioner and the learned Government Pleader for Revenue appearing for respondents 1 to 6. 3. As per the submissions of Sri O. Manohar Reddy, learned senior counsel, the petitioner is the owner and possessor of Ac.8-52 cents in R.S. No. 17 of Krishnarayapuram Village, Pendurthi Mandal, Visakhapatnam District. The petitioner's predecessors in interest were in possession and enjoyment of the land from 1914, in the pre-abolition period also. It is stated that a private tank called Venkappa tank was dug in the land. It is asserted that this tank is used only for the purpose of irrigation of the land measuring Ac.8-52 cents and not any another land. Since during the resurvey operation the tank was wrongly noted as Government Poramboke Tank petitioner made an application for change of classification of the land from Government Poramboke to zeroythi. Despite clear reports from the authorities that the tank had no ayacut or that it is in the list of tanks of that area no proper action was taken. Earlier also it is submitted that the 1st respondent issued orders dated 03.05.2013 permitting the change of classification from the tank to zeroythi. This was followed by further Memo dated 14.08.2015 by the 3rd respondent to implement the earlier orders. However, as per the learned senior counsel despite the verification the respondent authorities took a 'U' turn and again wanted to reconsider the issue. The petitioner filed W.P. No. 3192 of 2017 and this Court by its orders directed the respondents to complete the process of implementation of the Government Orders. Thereafter, due to failure to comply with this order a contempt has been initiated and ultimately the 6th respondent was also sentenced to imprisonment. A Writ Appeal was also filed in W.A. No. 548 of 2018. Contempt Appeal was also filed against the order in the contempt case. Thereafter, due to failure to comply with this order a contempt has been initiated and ultimately the 6th respondent was also sentenced to imprisonment. A Writ Appeal was also filed in W.A. No. 548 of 2018. Contempt Appeal was also filed against the order in the contempt case. Thereafter, in this situation, the 1st respondent issued an order directing the petitioner to approach the 4th respondent under Section 11(a) of the Estate Abolition Act, 1948 for grant of ryotwari patta. This order was considered by the Division Bench of the Court which passed orders in W.A. No. 548 of 2018 directing the 4th respondent to receive the application and to process it. Learned counsel submits that by this time the Government was aware that the tank was purely a private tank and that the application before the 4th respondent was therefore virtually for the purpose of implementing the order and to grant ryotwari patta. However, contrary to the same and contrary to the principles of natural justice, it is submitted that the impugned order is passed on 12.10.2018 holding that the land is not a zeroythi land and is a tank filled with water. The impugned order stated that in view of the earlier directions of the Hon'ble Supreme Court of India to protect material resources, this change in the classification cannot be allowed. Learned senior counsel also states that the rules of natural justice were flouted when this impugned order is passed. He draws the attention of this Court to the fact that no opportunity was given to the petitioner to present the case and the impugned order was passed without even considering the issues raised in the earlier orders on the subject. Learned senior counsel draws the attention of this Court to the Memo dated 16.07.2018 issued by the Special Chief Secretary, wherein it is clearly mentioned that the land an extent of Ac.8-52 cents is not a Government tank, but is a private land belonging to the applicant. He points out that the Special Chief Secretary clearly stated that the applicant is entitled for granting of ryotwari patta. Therefore, the Joint Collector was directed to take the claim from the applicant and pass orders. He points out that the Special Chief Secretary clearly stated that the applicant is entitled for granting of ryotwari patta. Therefore, the Joint Collector was directed to take the claim from the applicant and pass orders. Learned senior counsel points out that this memo is taken note of by the Division Bench and it was noted that the Tank is not a Government tank, but is a private tank belonging to the applicant. Thereafter, the direction was given to make an application. Learned senior counsel also points out to the earlier investigation made in the very same issue by the time of application to reclassification, and in particular, he draws the attention of this Court to the Tahsildar letter dated 22.05.2010 wherein he directed the Executive Engineer to inspect the tank. The report shows that the tank is a private tank and the improvement of the holding. The letter of the Executive Engineer, Irrigation Department, dated 17.07.2010 is also highlighted, wherein he pointed out that the tank is not receiving water from any sources except rain water. It is clarified that there is no ayacut also. Lastly, learned senior counsel also points out that the letter of the District Collector, Visakhapatnam, dated 19.06.2012, wherein after considering all the earlier documents he came to the conclusion that the ancestors of the petitioner dug tank and it is an improvement only. It is clearly stated that the Tank was noted as a Government poramboke tank by mistake. It is also made very clear in this letter that there is no ayacut under this tank. Learned counsel also draws the attention of this Court to the order passed by the learned single Judge In W.P. No. 6747 of 1996 and argues that the said order clearly applicable to the facts of the case. 4. In reply to this, learned Government Pleader argues the matter at length and in line with what is stated in the counter affidavit. He points out that the application for ryotwari patta was also made with a great delay. He points out that the predecessor of the petitioner have not filed any claim under Section 11A of the Act. He reiterates that according to the fair adangal of the Krishyarayapuram the land is clearly mentioned as Venkappa tank and that it has an ayacut of Ac.18-32 cents. He points out that the predecessor of the petitioner have not filed any claim under Section 11A of the Act. He reiterates that according to the fair adangal of the Krishyarayapuram the land is clearly mentioned as Venkappa tank and that it has an ayacut of Ac.18-32 cents. It is also stated that this is the source of the irrigation for these lands. Learned Government Pleader, therefore, argues that there is absolutely nothing contrary or wrong in the impugned order. He points out that in view of the orders passed by this Court when an application was made by the petitioner it was considered and disposed of on merits. He also urges that natural resources have to be protected by the respondent-State authorities. He also says that the law on the subject is well settled and that protection of the natural resources like tanks, ponds etc., is a duty cast upon the respondents. He also argues that against the orders of the Joint Collector-cum-Settlement Officer, revision petitions have to be filed and Writ is not a proper remedy. Therefore, the learned Government Pleader clearly supports the impugned order and concludes by saying that since it is a water tank petitioner is not entitled to an order as prayed for. COURT: 5. This Court after considering the submissions notices that this is a case with a long and chequered history. The documents relied upon by the learned counsel for the petitioner, include the order In W.A. No. 548 of 2018, which is passed by the Division Bench of the combined High Court. This Writ Appeal arouse out of the direction given by the learned Single Judge to implement the earlier memos with regard to reclassification of the land. Contempt application was also filed as the order was not complied with. During the course of the hearing as is recorded in the order that the learned Advocate General has placed before the Court a Memo dated 06.07.2018, wherein the Government came to a conclusion among other things that the land of an extent of Ac.8-52 cents in Sy. No. 28 (old) and Sy. No. 17 (new) of Krishnarayapuram village, Pendurthy Mandal was not a Government tank, but was a private tank belonging to the appellant. No. 28 (old) and Sy. No. 17 (new) of Krishnarayapuram village, Pendurthy Mandal was not a Government tank, but was a private tank belonging to the appellant. Therefore, a submission was made to dispose of the Writ Petition by taking an application from the petitioner under Section 11(a) of the Estate Abolition Act, 1948 and to pass necessary orders therein. A copy of the Memo dated 06.07.2018 which was considered by the Division Bench is also included as a material paper. Paragraphs 9 and 8 of this Memo are as under: '9) The Government after careful examination of the entire issue has come to the conclusion that BSO-34(D) is not applicable for Re-classification of land in an Inam Estate Village. Accordingly, the orders issued in the reference & 4th cited are hereby canceled However, the facts and circumstances of the case are similar to those in the case decide by the Hon'ble High Court in W.P. No. 6747 of 1996. Therefore, the decision rendered in the said case dated 27.09.2007 is squarely applicable to this case also. The subject land of an extent of Ac.8.52 cents in Sy. No. 28 (Old) and 17 (New) of Krishnarayapuram (V). Pendurthi (M), Visakhapatnam District is not a Government tank but private tank belonging to the applicant. Therefore, the applicant is entitled for granting of Ryotwari Patta Under Section-11(a) of the E.A. Act, 1948. 10) The Joint Collector & Settlement Officer, Visakhapatnam is hereby directed to take the claim from the applicant U/s. 11(a) of the Estate Abolition Act, 1948 & pass orders expeditiously and report compliance to Government immediately in order to avoid further legal complications in the matter.' 6. A reading of this memo makes it very clear that the Government had come to a conclusion that issue of reclassification will not arise since the facts and circumstances of the cases are similar to the writ petition in W.P. No. 6747 of 1996. It is concluded that the judgment will apply to the present case also. The last few lines of paragraph 9 make it clear that the tank is not a Government tank but is a private tank belonging to the applicant. It is further held that the applicant is entitled to the grant of ryotwari patta. It is concluded that the judgment will apply to the present case also. The last few lines of paragraph 9 make it clear that the tank is not a Government tank but is a private tank belonging to the applicant. It is further held that the applicant is entitled to the grant of ryotwari patta. Hence, a direction is issued to the Joint Collector to take a claim from the applicant, pass orders expeditiously and report compliance to the Government. This Court has to observe that the memo, was brought to the notice of the Court by the learned Advocate General of the State himself. The contents of the Memo were recorded in the order and thereafter a direction was given by the Division Bench to consider and pass appropriate orders. 7. The petitioner thereafter filed a claim petition under Section 11-A of the Act for issuance of ryotwari patta and enclosed thereto 19 documents. The impugned order was passed. The main ground on which the appeal was refused was that the land was classified as a tank and that the State had a duty to protect the said tank which is a natural resource. Despite the order of the Division Bench (which is considered by the Joint Collector), in the impugned order in page 3', the Joint Collector again held that it was a tank. He also apparently relied upon status of the tank in April, 2018 by relying on certain photographs which shows that the tank is full of water. 8. This Court however notices that the impugned order has not considered the earlier reports about the land/tank. The inspection report of the Tahsildar dated 22.05.2010 clearly shows that the tank in question is not a communal tank and the tank has been constructed by the ancestors of the petitioner and it is an improvement. The Executive Engineer of the Irrigation Department also confirms the same. The list of minor tanks in Visakhapatnam District does not contain this 'Venkappa tank'. The report of the District Collector dated 19.06.2012 also mentions these facts. Yet, these documents were not considered by the 4th respondent while passing the impugned order. 9. The Executive Engineer of the Irrigation Department also confirms the same. The list of minor tanks in Visakhapatnam District does not contain this 'Venkappa tank'. The report of the District Collector dated 19.06.2012 also mentions these facts. Yet, these documents were not considered by the 4th respondent while passing the impugned order. 9. Learned counsel for the petitioner also rightly relied upon Section 3(4) of the A.P. (Andhra Area) Estates (Abolition and Conversion Into Ryotwari) Act, 1908(sic 1948) which clearly defines improvements as including the construction of tank, well, water channels and other works for the purpose of storage, supply or distribution of water for agricultural purposes. Learned counsel points out that it is the specific case of the petitioner that this was a tank that was dug as an improvement for the land and is not a tank which is communal with an ayacut. He points out that this fact is also noticed and recorded in the Memo dated 06.07.2018, which was considered by the Division Bench. The conclusions in the Memo dated 06.07.2018 of the Special Chief Secretary to the Government are thus directly against the conclusions reached by the 4th respondent. In fact, this Court has to agree with the submission that in the Memo a direction is given to the 4th respondent to take the claim petition and to pass necessary orders while holding in paragraph 9 that the applicant is entitled to the ryotwari patta. Only this had to be done. 10. Learned Government Pleader also tried to justify and argue that there is an ayacut for this land. Other than the counter affidavit no material is filed to show that there is an ayacut for this land. Documents to the contrary are filed by the writ petitioner. The averment in the counter affidavit cannot be treated as proof and the contention of the learned Government Pleader has to be overruled. This Court also notices that in W.P. No. 6747 of 1996, a learned single Judge of this Court was considering a similar situation with respect to the improvement of the land by digging a tank etc. Learned single Judge also clearly held that there is no material to show that the tank is being used to for a communal purpose. This judgment was also considered by the Special Chief Secretary in the memo which was later considered by the Division Bench. 11. Learned single Judge also clearly held that there is no material to show that the tank is being used to for a communal purpose. This judgment was also considered by the Special Chief Secretary in the memo which was later considered by the Division Bench. 11. The Memo was brought to the notice of the Court by the learned Advocate General appearing for the State himself. Learned counsel for the petitioner relied upon the judgment reported in Government of Andhra Pradesh rep. by its Principal Secretary, irrigation and C A D Department v. S.V. Contractors, rep. by its Managing Partner M.R.L. Rajagopal 1991 (2) ALT 378 wherein a concession made by the learned Government Pleader fell for consideration. Learned senior counsel drew attention of this Court to the para-30 of the judgment, which is filed, wherein Periyar and Pareekamni Rubbers Ltd., v. State of Kerala 1990 AIR (SC) 2193 was considered. It was held that when a concession is given by the learned Advocate General greater weight is attached to the same. This Court also has to agree with what is stated and submitted. The Memo dated 06.07.2018 was brought to the notice of the Court by the learned Advocate General by himself. Therefore, apart from the high status that the Advocate General holds and the responsibility with which he makes the statement, the fact also remains that the contents of the memo were incorporated into the Division Bench Order. Therefore, this Court is of the firm opinion that the respondents cannot wriggle out of the same and pass an order contrary to the said memo. It is also interesting to note that the copy of the Government Memo is also one of the documents filed by the writ petitioner before the 4th respondent. This memo is also considered at page 3 of the impugned order. No reason is mentioned for not agreeing with the contents of the memo. However, there is no discussion about this memo or its contents in the impugned order. One of the grievances of the petitioner is about the flouting of the rules of natural justice and lack of adequate hearing. A reading of this order manifests the same. The petitioner has submitted the claim petition to which Tahsildar has given a reply. The documents considered for the appellant are mentioned in page 7 of the impugned order. One of the grievances of the petitioner is about the flouting of the rules of natural justice and lack of adequate hearing. A reading of this order manifests the same. The petitioner has submitted the claim petition to which Tahsildar has given a reply. The documents considered for the appellant are mentioned in page 7 of the impugned order. The 4th respondent merely considered four documents for the claimant and four documents for the respondents, of which there is a report of a Tahsildar which is noted and photographs about the current status of the tank. As pointed out along with claim statement 18 documents were filed and an undertaking was given to produce the 19th document. These documents are referred to in the course of the preamble of the order but in the operative portion there is no discussion about the same. Time and again the highest courts of the land have stated that a speaking order is one which discusses all the materials that are filed and then comes to a conclusion. The conclusions should reflect the consideration of the material and the contentions urged. The law is too well settled to be repeated here. This Court finds that the impugned order does not discuss the earlier memos, the order of the Division Bench or the earlier reports of the District Collector and others with regard to the tank and its classification as private tank. Simply on the ground that there is water in the said tank the entire case is rejected. The petitioner should have been put on notice. Therefore, it is clear that there is a failure to follow the rules of natural justice which implies the consideration of all the material and a proper hearing leading to a decision. Once there is a failure, the order has to be set aside on this ground too. 12. In addition, once the Court comes to a conclusion that the rules of natural justice are flouted, the existence of an alternative remedy is not material and the Writ Petition is maintainable. The law is also well settled on this aspect. 13. As far as delay is concerned this court is of the opinion that the same is not very material in the present case. Initially, the petitioner was seeking change in the classification of the land. The law is also well settled on this aspect. 13. As far as delay is concerned this court is of the opinion that the same is not very material in the present case. Initially, the petitioner was seeking change in the classification of the land. After realising that BSO-34D is not applicable the Government itself has withdrawn its earlier memos by the Memo dated 06.07.2018. Therefore, in the opinion of this Court, on the question of delay the case cannot be thrown out. 14. Ultimately, this court holds that the order of the Division Bench has to be implemented in letter and spirit. The said order considered the Memo dated 06.07.2018 which is clear and precise, and the same was incorporated into the order. Therefore, in the opinion of this Court what was left open was the implementation of the Division Bench order rather than the de novo enquiry into the subject. 15. For all these reasons the Writ Petition is allowed and the impugned order is set aside. As a consequence, there shall be a direction to the 4th respondent to issue a ryotwari patta to the petitioner in terms of the Memo, dated 06.07.2018 bearing Memo No. 41025/EA&AR/A1/2009, of the order of the Division Bench. There shall be no order as to costs. 16. As a sequel, Miscellaneous Applications, if any, pending shall also stand closed.