Andhra HC (Pre-Telangana)
Chatrati Mallikarjuna Rao (Died) By ... vs Govt. Of A.P. And Others on 13 July, 2001
Equivalent citations: 2001(5)ALD669, 2001(6)ALT182
ORDER
1. This writ petition is filed by the petitioners seeking a writ, order or direction particularly one in the nature of prohibition directing the 2nd respondent i.e., The Commissioner, Survey, Settlements and Land Records, A.P., Hyderabad (hereinafter referred to as 'Commissioner') not to proceed with the suo-motu review or otherwise pursuant to the proceedings in CSS & LR Ref.P1/1491/89, dated 21-12-1990, which is in the nature of a show-cause notice directing the petitioners herein to appear before the Commissioner on 16-1-1991 at 10.30 a.m. to show-cause why the order of the Commissioner in Case No.P1/1/86, dated 30-4-1986 should not be reviewed.
2. The facts leading to the filing of this case are that one Dr. Malik the father of the 1st petitioner was the estate holder of Siddeswaram village of erstwhile Visakhapatnam Taluk (presently Pedda Gantyada Mandal). On the death of Dr. Mallik the proprietary rights in Zamin Estate were transferred to the 1st petitioner. The Collector, Visakhapatnam, registered the name of 1st petitioner, the eldest son of Dr. Mallik as the landholder in his proceedings in R.Dis.No.5814-35-A-9, dated 24-8-1936. The 1st petitioner in his capacity as a landholder gave certain lands to his mother Smt. Kameshwaramma covered by patta Nos.46, 59, 64 and 65. The estate was abolished and taken over under Madras Estates Abolition and Conversion into Ryotwari Act, 1948 (hereinafter referred to as 'Act') on 12-1-1951. The 1st petitioner handed over all the records, DCB & LR Registers including patta Nos.1 to 65 to the then Tahsildar and their receipt was acknowledged by him on 2-1-1953. While it is the case of the petitioners that Smt. Kameshwaramma filed a petition under Section 11-A of the Act seeking ryotwari patta for the lands held by her. The respondents denied the same.
3. Be that as it may, on 29-6-1953 Smt. Kameshwaramma executed a registered will bequeathing the lands held by her to her sons i.e., petitioners 1 and 2 as well as her deceased son Ch. Pattabhiram, husband of 3rd petitioner. Smt. Kameshwaramma died on 18-6-1956 and on 9-12-1956 the petitioners filed a petition seeking ryotwari patta for the lands covered by the above pattas as the sons of late Kameshwaramma. At this stage, village Siddeswaram was surveyed and the land covered by patta No.65 was approximately fixed as Ac. 150 and the same was correlated to S.No.190. The said survey number was sub-divided and an extent of Ac.50.00 was estimated as ryoti land under S.No.190/1 and the remaining extent of Ac. 100.00 was classified as sand dunes under S.No.190/2. It is an admitted case that ryotwari pattas were granted to the petitioners for the lands covered by patta Nos.46, 59, 64 and part of patta No.65 correlated to S.Nos.150, 180, 188 and 190/1 and patta was rejected for the land covered by S.No. 190/2 only. The respondents are not disputing the grant of ryotwari pattas for the above lands. Subsequently the Commissioner in Case No.P1/1/86, dated 30-4-1986 granted patta for an extent of Ac.158.65 cts., to the petitioners which has been confirmed by this Court. Now the dispute relates to grant of patta for S.No.190/2 only. In the impugned notice, the said order is sought to be reviewed on the ground (1) that patta 65 dated 18-3-1943 is a spurious patta (2) filed a fresh application for ryotwari patta under Section 11-A of the Act by suppressing the documents filed during 1952-54, A learned single Judge having gone into the merits of the case quashed the show-cause notice by an order dated 28-3-1994.
4. Aggrieved by the said order, the respondents carried the matter in appeal by filing WA No.944 of 1994 and a Division Bench of this Court opined that the main question to be considered in the writ petition is whether the Commissioner has jurisdiction to review or reopen the earlier proceedings and the learned single Judge went into all other aspects of the matter except the real issue. Their Lordships further held that it is well settled principle that existence of jurisdictional or preliminary facts is sine qua non or a condition precedent to the assumption of jurisdiction and exercise of power by an inferior Tribunal or quasi-judicial authority or the inferior Tribunal is clothed with the jurisdiction, cannot invoke its power if the jurisdictional facts do not exist. Accordingly, the judgment of the learned single Judge was set aside and the matter is remitted back to the learned single Judge for fresh disposal. In that way the writ petition is posted before me for final hearing.
5. During the course of arguments it came to light that the respondents granted ryotwari patta for Rs.Nos.150, 187 and 188 covered by patta Nos.46, 59, 64 and S.No.190/1 covering an extent of Ac.50.00 which forms part of patta No.65 in 1950's itself and rejected patta for an extent of Ac.100-00 covered by S.No.190/2 on the ground that it is uncultivable land and classified it as poramboke, sand dunes. The petitioners having kept quite for a long time filed a fresh application for grant of ryotwari patta for the land covered by S.No. 190/2 on 4-6-1970 by contending that the Settlement Officer wrongly classified the land as sand dunes and they are entitled for a ryotwari patta on the ground that it is fit for cultivation. The immediate provocation for the petitioners to file this application may be and the land in question was included in the land to be taken by the Government for establishment of Steel Plant. The Settlement Officer in S.B.11(a)/84/70 VSP, dated 9-8-1971 granted patta for Ac.50.00 in S.No. 190/2 on the ground that the land to that extent is fit for cultivation and the claim was rejected for the remaining extent on the ground that it is not cultivable. Aggrieved by the said order, the petitioner filed a revision before the Director of Settlements for grant of patta for the disallowed portion of the land and the revision was dismissed as time barred. On a further revision to the Board of Revenue, the matter was remanded to the Director of Settlements for enquiry and disposal in B.P. Mis.No.460/1972, dated 16-9-1972 and the Director of Settlements, Hyderabad, took up the matter on the file as RP No.230 of 1972. At the same time, the Tahsildar, Visakhapatnam, filed RP No.294 of 1972 before the Director of Settlements questioning the order of the Settlement Officer in granting patta for Ac.50.00 to the petitioners. The Director having heard the matter and having perused the records considered it necessary to find out the nature of the land in question. Accordingly, he directed the Survey and Settlement Officer, Rajahmundry, to make a spot inspection and ascertain whether the area claimed by the petitioners was within the boundaries mentioned in the patta document No.65 and how much land was sand coast making it uncultivable. The Deputy Director in his report D.Dis.(A-5)6007/74, dated 12-11-1974 reported that the area claimed by the petitioners in S.No.190/2 is within the boundaries mentioned in the patta document which are definite clearly identifiable and localisable. He has also brought to the notice of the Director the total extent of the land covered by S.No.190 is 258.65 cents of which Ac.50.00 was subjected to tidal effect on the edge of adjoining sea and the rest of the land is cultivable again. On the basis of the above report, the Director by his order dated 10-12-1974 allowed the RP No.230 of 1972 filed by the petitioners and while granting patta of 158.65 acres to the petitioners and directed the Revenue Authorities to register the remaining 50.00 acres of land as un-assessed waste. RP No.294 of 1972 filed by the Tahsildar was dismissed by holding that the Tahsildar failed to prove that the lands in question are either communal or poramboke lands. The petitioners filed further revision before the then Board of Revenue insofar as the order went against them i.e., exclusion of Ac.50.00 while granting patta on 1-1-1975. The Tahsildar also seemed to have filed revision against the orders of the Director dated 10-12-1974. The Board of Revenue in B.P. Mis. No.531/76 dated 5-10-1976 set aside the orders of the Settlement Officer as well as the Director of Settlement and remanded the matter to the Settlement Officer for proper enquiry. Questioning the said order, the petitioner filed WP No.3666 of 1976 on the file of this Court by contending that the order of the Director of Settlement in granting patta of 158.65 acres should not have been set aside as it was not the subject-matter of the revision and this Court having set aside the order of the Board of Revenue by an order dated 14-2-1979 directed the Board of Revenue to rehear the revision petition. By that time in place of Board of Revenue Commissioners have come into picture and the Commissioner reiterated the earlier order of the Board in X.P4/2451/16 dated 16-5-1979. Once again the petitioners approached this Court by filing Writ Petition No.5719 of 1979 and that writ petition was once again allowed by this Court on 4-12-1985 and the Commissioner was directed to rehear the revision petitions filed by the petitioners as well as the Tahsildar, Visakhapatnam. The Commissioner having regard heard both parties, in his proceedings CSS & LR' Section Case No.P1/1/86, dated 30-4-1986 confirmed the order of the Director of Settlements dated 10-12-1974 in granting patta to the petitioners for an extent of 158.65 acres while dismissing the revision petition filed by the Tahsildar.
6. By that time the entire land covered by patta N.65 was acquired by the Government for the purpose of Visakhapatnam Steel Plant and possession was taken and no compensation was paid to the petitioners perhaps on the ground that the land is Government poramboke. In those circumstances, the petitioners filed WP No.4137 of 1987 seeking writ of mandamus to the Mandal Revenue Officer as well as the Special Deputy Collector (LA) Steel Plant seeking implementation of the order of the Commissioner dated 30-10-1986 and the same was allowed on 4-11-1988. When the respondents failed to take any action, the petitioners filed CC No.216 of 1989 to punish the respondents for flouting the orders of this Court in WP No.4137 of 1987. At that stage, the respondents sought to file writ appeal against the order in WP No.4137 of 1987 in WA (SR) No.78818 of 1989 along with an application WAMP No.2280 of 1989 seeking condonation of delay of 305 days in presenting the appeal by contending that the petitioner obtained patta for the land in question by playing fraud for the reasons set out in the impugned notice. That application was dismissed by an order dated 6-11-1989 and the order passed is as under:
"Sufficient reason is not shown to condone the delay nor the delay is properly explained. Therefore this WAMP is dismissed".
Aggrieved by the said orders, the Government carried the matter to the Supreme Court by filing SLP No.5064 of 1990 and the same was dismissed by the Honourable Supreme Court by an order dated 23-11-1990. A look at the grounds in the SLP particularly ground Nos.3, 4 and 7 amply proves that the entire case was built up by the Government on the ground of fraud. But their Lordships of the Supreme Court refused to interfere with the orders passed by this Court. In the meantime, CC No.216 of 1989 filed by the petitioners was disposed of by this Court on 24-11-1989. The learned Judge having taken note about the dismissal of the writ appeal and having referred the contention of the official respondents that suo motu review of the order dated 30-4-1986 was taken up, the learned Judge disposed of the Contempt Case in the following terms:
"In this contempt application, however, it is stated in the counter that suo motu review has been taken up and the same will be disposed of. Till then, however, the entry may not be directed to be made. Though this argument ought not to have been acceded to, however, in the circumstances, I direct the authority who is said to have taken up suo motu review to dispose of the same within four weeks from the date of receipt of this order and if it is not so disposed of, it must be taken that patta stands recorded in the name of the petitioner with reference to the land in question. Since that land is said to have been already acquired, the Land Acquisition Officer will take cognizance of this order and determine the amount of compensation and pay the same to the petitioner. However, I do not find any wilful disobedience of the orders of this Court by the respondents, since no contempt of the Court's proceedings is said to have been committed. The Contempt Application is dismissed. No costs. Advocate' Section fees Rs.250/-".
The learned Judge further observed that:
"In the circumstances, I direct the authority who is said to have taken up suo motu review to dispose of the same within four weeks from the date of receipt of a copy of this order and if it is not so disposed of, it must be taken that pattas stands recorded in the name of the petitioners with reference to the land in question. Since the land is said to have been already acquired, the Land Acquisition Officer will take cognizance of this order and determine the amount of compensation and pay the same to the petitioners".
7. But the respondents failed to comply with the directions given by the learned Judge in the above contempt case which promoted the petitioners to file another CC No.433 of 1990 complaining non-implementation of the orders given in CC No.216 of 1989, dated 27-11-1989. This Court having taken note of the entire factual background by an interim order dated 23rd October, 1990 clearly recorded a finding that "as the alleged suo motu application has not been disposed of by the Commissioner, the consequential direction that it must be taken that patta stands recorded in the name of the petitioners with reference to the land acquisition became final and the respondents are bound to implement that direction".
8. The learned Judge having referred to the averments made by the Land Acquisition Officer in the counter-affidavit to the effect that the Government issued G.O. Ms. No.945, Industries and Commerce (SP) Department, dated 6-10-1990 for acquisition of the lands in question under Section 4(i) of the Act directed the Land Acquisition Officer to complete the land acquisition proceedings within three months from that date and in case the land is not required for the purpose of Visakhapatnam Steel Plant, the same shall be handed over to the petitioners herein and adjourn the matter for further hearing to 24-1-1991.
9. At this stage the Commissioner issued the impugned proceedings dated 21-12-1990 and on an application filed by the petitioners the proceedings pursuant to the impugned notice were stayed on 22-3-1991. Simultaneously the petitioners filed the present writ petition questioning the correctness of the show-cause notice dated 21-12-1990. Subsequently, the contempt case came up before Sri Justice S. Parvatha Rao as he then was on 23rd September, 1992. The learned Judge having referred to the factual background closed the contempt case, as the writ petition filed by the petitioners questioning the correctness of the impugned order is pending, by continuing the stay granted by the Contempt Court by two more weeks and directed the petitioners to seek further appropriate directions in the writ petition. At the same time, the learned Judge observed that as the directions of Sri Justice M.N. Rao in his order dated 23-10-1990 directing the Land Acquisition Officer to complete the proceedings within three months became final and the same stands even on that date and as such, no further orders are necessary. Subsequent events i.e., allowing of the writ petition and remand made by the Division Bench was already referred supra.
10. From the above factual narration, it is seen that the order of the Commissioner dated 30-4-1986 granting patta for an extent of 158.65 acres in S.No.190/2 became final and as the correctness of this order was not assailed by the Government before any authority. Even the orders passed in WP No.4137 of 1987 filed by the petitioners directing the Mandal Revenue Officer and Special Deputy Collector (LA) Steel Plant, the impugned orders of the Commissioner dated 30-4-1986 became final. When the respondents failed to implement this order, the petitioner came up with Contempt Case No.216 of 1989. At that stage, the respondents tried to file an appeal against the orders of this Court in WP No.4137 of 1987 by raising the self-same grounds given in the impugned notice. The application filed for condonation of delay was dismissed and the order was already extracted supra, wherein their Lordships categorically stated that no sufficient reason was shown to condone the delay which implies that their Lordships of this Court were not convinced with the plea of fraud raised by the respondents on merits of the case. If their Lordships are convinced with the contention raised by the Government, they would have condoned the delay in filing the appeal as fraud unravels everything.
11. Be that as it may, the respondents carried the matter to the Supreme Court specifically raising the plea of fraud alleged to have been played by the petitioners in obtaining patta. But the same was dismissed on 23-11-1990. The plea of fraud raised by the respondents did not find favour by their Lordships of the Supreme Court. Normally the matter would have ended there. But to the dismay of the petitioners this impugned show-cause notice was issued on 21-12-1990 moreso without reference to the orders passed by the Supreme Court.
12. Be that as it may, firstly I am of the view that the orders of the Supreme Court operates as res judicata and the respondents are not allowed to raise the plea of fraud once again. On this ground alone the impugned order is liable to be quashed.
13. Secondly, as the respondents failed to pass any orders on the show-cause notice issued in exercise of suo motu powers within the time granted by this Court in CCNo.216 of 1989, dated 24-11-1989 that order attained finality and the respondents are bound to record the patta in the name of the petitioners and pay compensation by completing the land acquisition proceedings or deliver vacant possession of the lands to the petitioners as per the interim orders of this Court dated 23-10-1990 in CC No.433 of 1990. But in violation of the Court orders the present impugned proceedings were passed. On that ground also this order is liable to be set aside.
14. Nextly on the merits of the contentions raised by the respondents, it is an admitted case that no provision was made in the Act for exercise of suo motu powers and as such the respondents are not allowed to reopen the proceedings under the guise of inherent powers vested in the officers concerned. In fact the learned Additional Advocate-General fairly conceded for this proposition. But he puts his case on the ground that if the respondents can prove that fraud has been played on the authorities in obtaining the patta, the same cannot be allowed to stand as fraud unravels everything.
15. Though the order of the Supreme Court is very much in existence by the time the writ petition and the writ appeal were disposed of in the 1st round of litigation, I do not find any reference to the order of the Supreme Court in both the orders. While the learned single Judge have gone into the merits of the case and set aside the impugned notice; the Division Bench has taken the view that the learned Judge instead of deciding the issue i.e., whether the Commissioner is having jurisdiction to review or reopen the earlier proceedings went into the disputed questions of fact and on that ground having set aside the order of the learned single Judge remanded the matter to the single Judge for fresh disposal. While remitting the matter back to the learned single Judge, the learned Judges observed that the Courts are expected to find out whether the jurisdictional facts pleaded are in existence or not for assumption of jurisdiction and exercise of power while exercising the powers of judicial review.
16. In the light of the observations made by the Division Bench and to put a quietus to the issue I am inclined to see whether there is any substance in the contentions raised by the Government in support of the plea of fraud raised by it at this belated stage and whether the required jurisdictional facts are in existence for reviewing the order suo motu in exercise inherent powers vested in the Commissioner without reference to the legal intricacies as pointed out supra.
17. Before considering the factual aspects of the case, I would like to dispose of certain technical contentions raised by the Commissioner in support of his plea. The case of the Commissioner, is that he not being a party to the earlier proceedings is empowered to take up review of the order dated 30-4-1986 suo motu in exercise of his inherent powers. It is true that the Commissioner was not a party to the proceedings in WP No.4137 of 1987 as well as the contempt cases filed by the petitioners for non-implementation of the orders of this Court in the above writ petition. But at the same time while filing an appeal against the order in the above writ petition and the SLP, the Mandal Revenue Officer specifically pleaded fraud against the petitioners, which did not find favour with the Courts. Hence, the Commissioner cannot now raise the plea of fraud and try to annul the earlier order of the Commissioner, as the jurisdictional facts pleaded by the Government did not find favour with the Courts. Hence, I do not find any substance in this contention.
18. The next contention is that as the Commissioner failed to give any finding either in 1979 while remitting the matter back to the Settlement Officer or in the order passed on 30-4-1986 pursuant to the orders of this Court dated 4-12-1985, on the genuineness of the patta the Commissioner is empowered to review the order in exercise of suo motu powers, which are not vested in him under the statute. Even assuming without admitting that the Commissioner did not record a finding on the genuineness of the patta, the same was raised by the Mandal Revenue Officer while trying to file appeal in the SLP against the orders of this Court in WP No.4137 of 1987. In the light of the orders passed by the Supreme Court in SLP No.5064 of 1990, dated 23-11-1990 the Commissioner cannot reopen the issue on that ground.
19. Be that as it may, on merits, the specific case of the respondents is that the patta produced by the petitioner was brought into existence from his own records at a later date and since he himself was the proprietor of the estate he can give any number of pattas in his own name at any subsequent point of time. To my mind, such a contention was raised by the respondents without looking into the factual background. The specific case of the petitioners is, that immediately after abolition of the estate on 12-1-1951 he handedover all the records pertaining to the estate i.e., DCB and LR registers including patta Nos.1 to 65 given to her mother as a landholder in 1943 to the then Tahsildar and obtained a receipt to that effect. The petitioner filed a xerox copy of the receipt issued by the Tahsildar. Further, the case of the petitioner is that in Memo No.2251, dated 18-1-1952 Tahsildar called for the particulars of pattadar names and a xerox copy of the reply sent with acknowledgment was filed by the petitioner in the Court. When the Court called for the file relating to the memo, the Collector in his letter Rc.No.4297/97.F-II, dated 29-1-2001 informed the Court that it is not available. In fact the Mandal Revenue Officer while filing revision before the Commissioner having stated that the letter of the petitioners dated 30-12-1952 is not available, the unsigned letter of the Collector produced by the claimants was taken into consideration as evidence. This admission shows that the respondents acted upon the representation made by the petitioners.
20. Nextly, it is contended by the respondents that in the DCB and LR Registers maintained by the Tahsildar after taking over the records from the estate holder do not contain patta No.65. It is true that the DCB record did not contain patta No.65 initially. But at the same time patta 65(1) was added in the end of the DCB register by the Tahsildar on 9-8-1955. The register contains the proceedings of the Tahsildar, Visakhapatnam, in D.DisNo.52061/53, dated 15-5-1957 collecting the land revenue from 1360-F to 1366-F pursuant to the orders of the District Collector in D.Dis.No.4601/57, dated 3-5-1957 at the rate of Rs.3-09 an as for an extent of Ac.6-50 cts., covered by patta No.65(1) of Siddeshwaram village. Nextly from the following proceedings of Officer-in-charge No.2 Survey Party, Vizianagaram, (1) Memo L.Dis.No.8875/56, dated 4-12-1956, (2) Proceedings Rc.No.GLP/2875-A2, dated 13-4-1957 and (3) Proceedings L.Dis No.CLP-28/57-A2, dated 27-5-1957, wherein the petitioners were informed that his name will be registered in pymash No.119, 123 and 152 of Siddeshwaram village under the orders of the Assistant Settlement Officer, Visakhapatnam in Dis.No.SR15-2, Visakhapatnam, dated 7-11-1952 (2nd cited) for other pattas. As far as patta No.65, he was advised to prefer claim to the Settlement Department. In the Settlement Register for 1361-F corresponding to the year 1951-52, patta No.65 finds a place standing in the name of Kameshwaramma covering an extent of Ac.62.00. Kameshwaramma was alive at the time of abolition of the Estates and after her death the petitioners were agitating for issuance of ryotwari patta under Section 11-A of the Act as her legal representatives. Further, even as per their own admission a patta was granted in the year 1958 for an extent of Ac.50.00 covered by S.No.190/1, a part of the land covered by the patta No.65. Hence, it is too late in the day to contend that patta was given to the petitioners in their own name subsequent to the abolition of the estate. Hence, I find no substance in this contention.
121. The main contention of the respondents is that the petitioners having lost their claim to get patta under Section 15(1), of the Act for the same land with the same boundaries, in the year 1952 they filed this application by producing new set of documents and by suppressing the fact that their claim was rejected. It is true that the petitioner applied for grant of patta to various extents of unsurveyed land under Section 15(1) of the Act as a landholder and the Assistant Settlement Officer, Visakhapatnam, in Dis.SR15-2/VSP, dated 7-11-1952 rejected the claim for grant of patta for an extent of Ac.50-00 while granting patta to some other extents on the ground that the petitioner himself admitted that the land covered under item No.2 is now uncultivable land of plot though casureno was raised in that land. Item No.2 of the schedule is shown as hereunder:
"2. Casurina Plantation: Ac.50.00 sandy place :
East : Sea Coast West: Tank North: Nellipukku Boundary Hilts South: Bellamkonda (Hills)."
The contention of the respondents is that the land for which the petitioners are claiming patta now under S.No. 190/2 and the land for which the Assistant Settlement Officer rejected patta are one and the same. Suppressing this fact after long delay of about 20 years the petitioners filed this application for grant of ryotwari patta. Firstly, it should be kept in mind that the dispute is with regard to the land covered by patta No.65 that was in existence by the time of abolition of the estate. In the order of the Assistant Settlement Officer dated 7-11-1952 no patta number was given and it is simply stated that it is Casuarina plantation. Secondly, if the land is one and the same when the Tahsildar called for the details of the pattas, the first petitioner would not have sent a reply on 30-12-1952 stating that pattas 1 to 65 were handed over to the Tahsildar along with DCB and LR registers on 12-1-1951. In fact, he categorically stated that the Tahsildar acknowledged the receipt of patta. Further the entries with regard to patta No.65(i) in 1955 and the letter of the Tahsildar/ Manager dated 15-5-1957 under which land revenue was collected for patta No.65(ii) of Siddeshwaram village would not have been found a place in the official records. Likewise, the proceedings of the Officer-in-charge of the survey party No.2, Vizianagaram, referred supra, indicates that the petitioners are agitating for a ryotwari patta for this land in question after the abolition of the estate separately. Secondly, during survey operations of Siddeshwaram village in 1957 patta No.65 was correlated to S.No.190 which was again sub-divided as S.No.190/1 and 190/2 on the basis of classification of the land and the Settlement Officer granted ryotwari patta for S.No.190/1 while rejecting patta for S.No. 190/2 on the ground that the land is classified as sand dunes. Hence, it is preposterous to contend that patta No.65 was brought into existence by the petitioners at a later point of time after estate was abolished. Accordingly, I find no substance in the 1st contention of the respondents.
22. Now coming to the boundaries of the land for which the Assistant Settlement Officer rejected the patta in 1952 and the boundaries of the land in question, first we must keep in mind that it is an un-surveyed seashore village with mountain, hills and sand dunes and the possibility of the boundaries of the lands over loping each other cannot be ruled out. To my mind the respondents cannot review the orders at this stage on the ground that common boundaries are in existence for the land for which pattas were rejected to these lands. From the report of the Deputy Director sent pursuant to the orders of the Director of Settlements in October, 1974 it is seen that the Deputy Registrar traced the history of the land in question. As per his report, for the first time, Siddeshwaram village was surveyed by cadastral survey in 1957. During which, Survey No.190 was formed and pending angular survey and computation of correct extents, approximately the extent of the land was shown as 150 acres in survey land register and the same was shown as poramboke sand dunes. This survey number was divided into Part-I and Part-II during settlement subsequent to survey. Subdivision No.1 for an extent of 50 acres was classified as dry and registered in the name of the petitioners. The remaining extent of the land i.e., 100 acres was adopted against sub-division No.2 and classified as poramboke sand dunes. Subsequently, the extent of the land was finally adopted as Ac.258.65 cts., after traverse plotting and an errata was issued by the Collector (Survey and Land Records) Visakhapatnam, in R.Dis.No. 1744/74, dated 19-8-1974 and incorporated in the village accounts. He further stated that as matters stand today, the following are the entries relating to S.No.190 of Siddeshwaram village available in the Fair Adangal of the village.
"S.No. Sub-division Extent 190 1 50-00
(i) Dry patta No.6 Patta land of Chatlarathi Mallikharjuna Rao, Pattabhi Ramarao, 2 208-65 (2) Poramboke, Sand Dunes Total 258-65 He further stated that all the boundaries mentioned in patta No.65 are definite and localisable on ground by local enquiry. Their positions were marked in the sketch after due localisation and while discussing about the boundaries he observed:
"On spot verification, it is found that the boundaries mentioned in the patta against eastern direction do not strictly coincide with the direction as found on the spot. For instance, boundary on hill between Siddeshwaram and Nellimukku villages is mentioned in the document against east, while boundary exists towards north. Coconut garden and lands of Gondeti Durgalu exist on the western side, while they were mentioned as northern boundaries in the document. These discrepancies, in my opinion, are not material, since it is difficult for a non-technical man to correctly identify the north point, especially in cases where they adjoin the sea. Further, all the boundaries are definite and can be localised in their proper sequence ignoring the directions mentioned in the document".
The report of this officer is clinching on the discrepancies pointed out by the respondents and were properly explained by this officer. This being a finding of fact, the Commissioner cannot reopen the issue under the guise of exercise of suo motu powers, which are not vested in him under the statute. Hence, I cannot give any credence to the contention raised by the respondents for reopening the matter on this pretext. Accordingly, this contention is also rejected.
23. Nextly, the respondents contended that patta No.65 is covering an extent of only 62 acres, but the same was tampered and it was made as 162 acres. The case of the petitioners is that the document was handed over to the Tahsildar immediately after abolition of the estate in the year 1951 itself. Since then the document is with the respondents. Even assuming that the extent of the land was increased by interpolating the document by putting one as the land was unsurveyed at the time of granting of the patta, no one what is the exact extent of the land. Even the Officers of the Survey Department were estimating the extent of the land from time to time till the land was finally computed by travere plotting in 1974 i.e., after the petitioners filed application for grant of patta in the year 1970. Even assuming for a moment that the extent was increased by adding one and made it 162 acres, the extent of the land covered by the patta, to my mind the petitioners cannot be denied of their claim for getting a patta for the extent of the lands covered by the boundaries given in the document, as the village is an unsurveyed village and the boundaries given in the document will prevail over the extents mentioned in the document as held by this Court in 1955 APWR 664. For instance from the record it is seen that the extent of land in patta No.65(i) was shown as Ac.6-50 cents in DCB Register in the year 1955. But ultimately in the year 1958 patta was given to the petitioners for 50 acres covered by S.No.190/1 correlated patta 65(1). Hence, this contention also is not of much use to the respondents.
24. Lastly, the respondents contended that this application was filed belatedly i.e., in the year 1970, i.e., 20 years after the estate was taken over and about 12 years after patta for the extent was rejected. It is true that there was some delay in approaching the Settlement Officer claiming patta for the land in question. It may be for two reasons. Firstly, they might have thought that the extent of land for which the claim was rejected is 50 acres and at times it might have been subjected to tidal waves. Secondly, while survey operations were going on they might have come to know that the extent of land is much more than the extent of land shown in the patta or in the earlier survey operations. Thirdly, the entire land is sought to be acquired for Steel Plant. Hence, the petitioners might have thought of filing fresh application claiming ryotwari patta under Section 11-A for the extent of land for which patta was rejected. Hence, I cannot find fault with the action of the petitioners in filing the application in the year 1970 as no period of limitation was prescribed for filing applications seeking ryotwari patta under Section 11-A of the Act, in fact, this Court while considering the action of the respondents in rejecting the claim of the petitioners for an extent of Ac.2-90 cts in S.No.34/1 and Ac.0.70 cts., in S.No.34/2 of Siddeshwaram village covered by patta No.64 held as that "the third ground urged is that there is long delay in selling up the claim under Section 11-A for grant of a patta. But there is no period of limitation prescribed for claiming a ryotwari patta under Section 11-A, Therefore, mere delay in setting up the claim for a patta under Section 11-A would not disentitle the petitioner to claim a patta" and the said judgment became final. Accordingly, this contention is also rejected.
25. In the light of the findings recorded by me on the various contentions raised by the respondents, I cannot, but hold that there are no jurisdictional facts which are a condition precedent for exercising powers of review on the ground of fraud and this plea might have been raised by the respondents on the basis of the information given by their subordinates that the petitioners are claiming ryotwari patta for the same land for which the Assistant Settlement Officer rejected patta under Section 15 of the Act, which is incorrect and a misconceived one.
26. Accordingly, a writ of prohibition shall issue and the show-cause notice in CSS & LR Ref.P1/1491/89, dated 21-12-1990 is quashed.
27. The writ petition is accordingly allowed. No costs.