Andhra Pradesh High Court - Amravati
J Rambabu vs The State Of Ap on 21 June, 2021
Author: M.Satyanarayana Murthy
Bench: M.Satyanarayana Murthy
THE HON'BLE SRI JUSTICE M.SATYANARAYANA MURTHY
WRIT PETITION NO.9565 OF 2021
ORDER:
This writ petition is filed under Article 226 of the Constitution of India, seeking the following relief:
"To issue Writ of Mandamus declaring the Endorsement in F.L/11656/2020 dated 13.08.2020 issued by the respondent No.4 rejecting the F.Line Application dated 28.05.2020 submitted by the petitioner for survey and demarcating the land in an extant of Ac.2-98 out of Ac.31-20 cents in Sy.No.61/2 new and 79/1 Old of Chittivalasa Village Fields, Beemunipatnam Mandal, Beemunipatnam Revenue Division, Visakhapatnam District on the ground that the subject land is undivided and unspecified area as arbitrary illegal abdication of the statutory cost on him contrary to the provisions of the Andhra Pradesh Survey and Boundaries Act, 1923 and the well established legal principles apart from being violative of fundamental rights guaranteed to the petitioners under Articles 14, 19 and 21 of the Constitution of India and consequently direct the respondent No.4 to conduct the survey and demarcate the land in an extant of Ac.2-98 out of Ac.31-20 cents in Sy.No.61/2 new and 79/1 Old of Chittivalasa Village Fields, Beemunipatnam Mandal, Beemunipatnam Revenue Division, Visakhapatnam District"
It is the case of the petitioners that, land in extent of Ac.2-08 cents in Sy.No.61/2 (new) and 79/1 (old) of Chittivalasa village fields, Beemunipatnam Mandal, Beemunipatnam Revenue Division, Visakhapatnam District, was purchased by one late Joga Rama Swamy who is the father of Petitioner Nos. 1 & 2; father-in- law of Petitioner Nos. 3 & 4 and grandfather of Petitioner Nos. 5 to 10, through a sale deed dated 15.03.1936 bearing Document No.393/1936 for a valid sale consideration. Since the date of purchase, the subject land was in the possession and enjoyment of MSM,J WP.No.9565 of 2021 2 late Joga Rama Swamy till his demise. Further, having recognised the possession and enjoyment of late Joga Rama Swamy over the subject land, the name of Joga Rama Swamy was mutated in revenue records. Thereafter, on demise of Joga Rama Swamy, the subject land devolved on Petitioner Nos. 1 to 10, since then, they are in possession and enjoyment of the property.
While so, the neighbours of the petitioners started to raise boundary disputes by removing the boundary stones. Under those circumstances, the petitioners executed General Power of Attorney authorizing Petitioner No.11 to take all necessary steps to protect their interest, including legal issues. Thereafter, with a view to put an end to the boundary disputes, Petitioner No.11 applied for survey and demarcation of the subject land through F-Line Application dated 28.05.2020, whereas, Respondent No.4/Tahsildar through an Endorsement dated 13.08.2020 rejected the F-Line Application submitted by Petitioner No.11 on the ground that the subject land is "undivided and unspecified area".
Respondent No.4 is the competent authority under the provisions of the Andhra Pradesh Survey and Boundaries Act, 1923 (for short 'Act, 1923') to conduct survey and demarcate any land basing on the application submitted by the person concerned. When the issue fell for consideration before this Court as to whether a duty to conduct survey and demarcation of the land is cast upon the Tahsildar or not, at the instance of a person who paid necessary charges, this Court concurrently held that the duty MSM,J WP.No.9565 of 2021 3 to conduct survey and demarcate the land is cast upon the Tahsildar as per the request of the person concerned. Further, as per Section 10 of Act, 1923, Respondent No.4/Tahsildar is empowered to conduct survey and demarcate the boundary when there is a boundary dispute and Respondent No.4 is the competent authority to conduct survey and demarcate the boundary.
It is alleged that, Respondent No.4/Tahsildar rejected the application submitted by the first petitioner on an unreasonable ground that the subject land is an "undivided and unspecified area" which cannot at all be a ground for rejection of application dated 28.05.2020 submitted by the first petitioner for survey and demarcation of the subject land. Hence, rejection of the request for survey and demarcation of the subject land through the impugned Endorsement issued by Respondent No.4/Tahsildar is nothing but abdication of the statutory power vested on him and requested to issue a direction as sought for in the writ petition.
Respondents did not file any counter affidavit. During hearing, Sri V.R. Reddy Kovvuri, learned counsel for the petitioners reiterated the contentions urged in the affidavit, while drawing attention of this Court to several revenue records to show that late Joga Rama Swamy was the owner of the property and his name was mutated. Later, names of Petitioner Nos.1 to 10 were mutated in the revenue records as owners and enjoyers of the property. Since, the other petitioners are not able to take any steps, they executed General Power of Attorney dated 27.01.2020 MSM,J WP.No.9565 of 2021 4 authorizing Petitioner No.11 to take all necessary steps to protect their interest, including legal issues. Learned counsel placed reliance on unreported judgments of Division Bench in W.A.No.110 of 2013 dated 14.06.2013 and W.A.No.1003 of 2013 dated 16.07.2013 and another judgment of learned single Judge in Muramalla Padmavathi v. State of Andhra Pradesh1. On the strength of the principles laid down in the above judgments, learned counsel for the petitioner while drawing attention of this Court to B.S.O 58 of the Andhra Pradesh Board of Revenue Standing Orders, requested to issue a direction to conduct survey and demarcate the land of this petitioner.
Whereas, learned Assistant Government Pleader for Revenue vehemently contended that, separate applications have to be made by the petitioner through online / Mee Seva, one for conducting survey and the other for sub-division of the property of an extent of Ac.2-98 cents in Sy.No.61-2 (new) and 79/1 (old) of Chittivalasa village fields, Beemunipatnam Mandal, Beemunipatnam Revenue Division, Visakhapatnam District. In the absence of any application for sub-division of the property, rejection of the application of this petitioner for conducting survey is justifiable and requested to dismiss the writ petition, finally.
Undisputedly, the property was purchased by late Joga Rama Swamy under registered sale deed dated 15.03.1936, Registered as Document No.393/1936. Copy of the registered document is produced to establish that the property was 1 2016 (3) ALD 650 MSM,J WP.No.9565 of 2021 5 purchased by late Joga Rama Swamy and besides that, several other revenue records and General Power of Attorney executed by Petitioner Nos.1 to 10 in favour of Petitioner No.11 is also placed on record to establish that Petitioner No.11 was authorized to apply for demarcation and to take necessary legal action to protect the property. The respondents did not dispute purchase of the property and authority of Petitioner No.11 to apply for survey and demarcation of the property by making F-Line application dated 28.05.2020 and its rejection by Respondent No.4/Tahsildar under the impugned Endorsement FL.No.:FL/11656/2020 dated 13.08.2020.
It is an undisputed fact that, Petitioner No.11, being a General Power of Attorney Holder, made an F-Line Application on behalf of Petitioner Nos. 1 to 10 for conducting survey after sub- division of the property of an extent of Ac.2-98 cents in Sy.No.61-2 (new) and 79/1 (old) of Chittivalasa village fields, Beemunipatnam Mandal, Beemunipatnam Revenue Division, Visakhapatnam District. But, the total land is in an extent of Ac.31-20 cents in Sy.No.61/2 (new) and 79/1 (old) of Chittivalasa village fields, Beemunipatnam Mandal, Beemunipatnam Revenue Division, Visakhapatnam District. Whereas, late Joga Rama Swamy purchased land of an extent of only Ac.2-98 cents out of Ac.31-20 cents in Sy.No.61-2 (new) and 79/1 (old) of Chittivalasa village fields, Beemunipatnam Mandal, Beemunipatnam Revenue Division, Visakhapatnam District. As seen from the document of title, the said late Joga Rama Swamy purchased Ac.2-98 cents , as MSM,J WP.No.9565 of 2021 6 shown in the schedule annexed to the document and it is extracted hereunder:
"Property details:
The land in an extent of 2.98 2/3 cents or 1.2059 hectors which comes under survey No.61/2, Talukajirayithimettu, Chittivalasa Village, Bheemunipatnam Mandal, Visakhapatnam District.
North: Rastha South: Rastha East: Road West: other lands"
As seen from the schedule of the property purchased under the registered sale deed, land of Ac.2-98 cents is undivided and unspecified. No specific measurements of boundaries are specified for the land purchased by late Joga Rama Swamy under registered sale deed. Therefore, the land purchased by late Joga Rama Swamy is an undivided and unspecified share out of Ac.31-20 cents. If, really, the measurements of boundaries of the property are mentioned in the document, the land can be identified on ground with reference to the boundaries, since boundaries will prevail over the extent. But, here, no measurements of boundaries are mentioned, and late Joga Rama Swamy purchased only an undivided and unspecified land of an extent of Ac.2-98 cents in Sy.No.61-2 (new) and 79/1 (old) of Chittivalasa village fields, Beemunipatnam Mandal, Beemunipatnam Revenue Division, Visakhapatnam District, which consists of large extent of Ac.31-20 cents. Therefore, such undivided and unspecified part of the property could not be identified by the surveyor either with reference to the boundaries or with reference to the survey number(s), since it is not sub-divided. In those circumstances, MSM,J WP.No.9565 of 2021 7 Petitioner No.11 has to make appropriate application for sub-division of the property as per B.S.O 58 of the Andhra Pradesh Board of Revenue Standing Orders. No such application was made for sub-division of the property. But, Petitioner No.11 made an F-Line Application for conducting survey of the land. If really, the application is made for sub-division of the property, rejection of the application by issuing Endorsement FL.No.:FL/11656/2020 dated 13.08.2020 impugned in the writ petition by the fourth respondent/Tahsildar is an illegality. In the absence of making any such application for sub-division of the property in compliance of B.S.O 58, rejection cannot be faulted.
Learned counsel for the petitioner would draw attention of this Court to two unreported judgments of the Division Bench of composite High Court of Andhra Pradesh in W.A.No.110 of 2013 dated 14.06.2013 and W.A.No.1003 of 2013 dated 16.07.2013. W.A.No.1003 of 2013 dated 16.07.2013 was disposed of based n the judgment in W.A.No.110 of 2013 dated 14.06.2013. Hence, the judgment of the Division Bench in W.A.No.110 of 2013 is relevant for deciding the real controversy. The Division Bench after referring Circular in Rc.No.N1/6543/99 dated 25.07.2001, whereunder the Special Commissioner and Director, Survey, Settlements and Land Records, Jagir Administrator, Andhra Pradesh, Hyderabad, issued certain instructions to the revenue officials and the officials of the Survey Department with regard to survey and demarcation of the lands, on requests made by private parties. Thereafter, the Government issued another Circular in MSM,J WP.No.9565 of 2021 8 Rc.No.N2/1741/2020 dated 18.05.2010 prescribing guidelines, based on Board Standing Order No.34-A paragraph 20. Thereafter, the Commissioner, Survey, Settlements & Land Records, Andhra Pradesh, Hyderabad vide D.O.Rc.No.N1/4296/2012 dated 22.08.2012 issued further instructions for demarcation of survey numbers referring to these circulars instructions/guidelines/ Board Standing Orders, issued by the Government. Thus, there is no bar for the revenue officials to conduct survey of lands on requests made by private parties subject to their furnishing relevant documents. The endorsement was set-aside while directing the fourth respondent therein/Deputy Inspector of Survey, Nalgonda to conduct survey of land in question as per the circular instructions/guidelines/Board Standing Orders issued by the Government.
In Muramalla Padmavathi v. State of Andhra Pradesh (referred supra), the learned single Judge of composite High Court, by placing reliance on earlier judgments reported in Golli Nagayamma and others v. State of Andhra Pradesh2 and Hyderabad Potteries Private Limited v. Collector, Hyderabad District and another3, held that, merely because there is no specific provision in A.P Survey and Boundaries Act, 1923 providing survey of private lands, it cannot be said that the authorities in the Survey Department of the State Government are prohibited from doing survey of private lands. Unless such a prohibition is provided in the Act, as public servants having 2 2015 (4) ALD 648 3 2001 (3) ALD 600 MSM,J WP.No.9565 of 2021 9 expertise in doing survey (like other experts in fields of ballistics, handwriting, DNA etc.), it is incumbent on the officials of the Survey Department of the State Government to survey private lands if a request to that effect is made after collecting the necessary charges therefor. The circulars referred to above as well as other Government Orders. issued by the Revenue Department in this regard would be binding and would govern the procedure to be followed in respect of survey to be conducted for private patta lands as well.
But, here, it is not the question of conducting survey by fourth respondent/Tahsildar herein and he agreed to conduct survey, though it is a private land. The only reason for rejection of the request of Petitioner No.11 is that, it is in specified area of Ac.2-98 cents out of total extent of Ac.31-20 cents in Sy.No.61-2 (new) and 79/1 (old) of Chittivalasa village fields, Beemunipatnam Mandal, Beemunipatnam Revenue Division, Visakhapatnam District and that, unless the land is sub-divided, it is not possible to conduct survey. Therefore, the principle laid down in the above judgments has no direct application to the present facts of the case.
In Hyderabad Potteries Private Limited v. Collector, Hyderabad District and another (referred supra), the Court made held that, the scheme of the A.P Survey and Boundaries Act, 1923 would make it clear that the survey made under the said Act is mainly intended for the purposes of identification of the land and fixation of boundaries and there is no provision under the said Act MSM,J WP.No.9565 of 2021 10 for making any detailed enquiries with regard to right, title and interest of the persons in the land. Persons who are aggrieved by any decision referred to in the survey have liberty to approach the appropriate Civil Court for adjudication, if needed. There is also a remedy under Section 11 of the said Act to the appellate authority constituted under the Act instead of Commissioner of Survey, Settlement and Land Records, as held in Khaja Naseeruddin and others Vs. Commissioner, survey, Settlement and Land Records, Hyderabad and others4, if survey is sought by a person, after issuing notice on parties interested and in particular the registered holders of land, the concerned official should conduct survey and demarcation in their presence.
The law declared in the above judgment is not in quarrel. On the other hand, it is helpful to both parties to insist the fourth respondent/Tahsildar to conduct survey, if it is sub-divided from Ac.31-20 cents. But, in the present case, no measurements of boundaries are mentioned, to identify the land on ground based on the details furnished in the sale deed. In such case, the remedy open to the petitioner to make appropriate application for sub- division of the land as per B.S.O 58 which deals with Sub-division of joint interests into separate interest, which includes Publication of notification authorizing sub-divisions, Notification of receipt of proposals, Acceptance of proposal by Collector, Publication of notice of acceptance, Sub-division at the instance of a single 4 2007 (1) ALT 707 MSM,J WP.No.9565 of 2021 11 shareholder and Annual report on the working of the rules. But, no such procedure is followed.
Further, no such application was made by Petitioner No.11 for sub-division of the property and therefore, the endorsement issued by the fourth respondent/Tahsildar, rejecting the F-Line Application submitted by Petitioner No.11 for conducting survey is justified and warrants no interference of this Court, while exercising power under Article 226 of the Constitution of India, in view of the jurisdiction conferred on this Court.
The Endorsement dated 13.08.2020 issued by the fourth respondent/Tahsildar can be treated as an order under Section 10(2) of A.P. Survey and Boundaries Act. If, really the petitioners are aggrieved by the endorsement in the order passed under Section 10(2) of A.P. Survey and Boundaries Act, the remedy open to the petitioners is to prefer an appeal before the Appellate Authority under Section 11. Instead of approaching the Appellate Authority, the petitioners straight-away approached this Court invoking jurisdiction under Article 226 of the Constitution of India and that, such disputed question of fact cannot be decided. However, it is left open to the petitioners to make appropriate applications, one for sub-division of the property and the other for conducting survey after sub-division, through Mee-Seeva (online applications) on payment of requisite charges for sub-division and conducting survey of the land based on the sale deed obtained by late Joga Rama Swamy.
MSM,J WP.No.9565 of 2021 12 In view of my foregoing discussion, I find no illegality in the endorsement in order impugned in the writ petition. Consequently, writ petition is liable to be dismissed.
In the result, writ petition is dismissed. However, liberty is granted to the petitioners to make appropriate applications, one for sub-division of the property and the other for conducting survey after sub-division, through Mee-Seeva (online applications), on payment of requisite charges for sub-division and conducting survey of the land, based on the sale deed obtained by Joga Rama Swamy. No costs.
Consequently, miscellaneous applications pending if any, shall also stand dismissed.
_________________________________________ JUSTICE M. SATYANARAYANA MURTHY Date:21.06.2021 SP