Andhra Pradesh High Court - Amravati
The Government Of Andhra Pradesh, vs P.Gopala Reddy, on 23 February, 2024
Author: R Raghunandan Rao
Bench: R Raghunandan Rao
IN THE HIGH COURT OF ANDHRA PRADESH: AMARAVATI
HON‟BLE MR. JUSTICE DHIRAJ SINGH THAKUR, CHIEF JUSTICE
&
HON‟BLE MR. JUSTICE R. RAGHUNANDAN RAO
W.A.Nos.1802, 1817 of 2005 & W.A.No.731of 2006
W.A.No.1802 of 2005:
Between:
The Government of Andhra Pradesh,
Rep. by its Principal Secretary, Revenue
(JA) Department, Secretariat Buildings,
Hyderabad & 2 others.
...Appellants
Versus
P. Gopala Reddy,
S/o.P. Ramakrishna Reddy,
Age 64 years, R/o.Tirupathi Town,
Chittoor District & 17 others.
...Respondents
W.A.No.1817 of 2005
Between:
Mandal Revenue Officer,
Tirupathi (Urban) Mandal,
Tuirupathi, Chittoor District. ...Appellants
Versus
The Commissioner of Appeals,
Hyderabad & 33 others.
...Respondents
W.A.No.731 of 2006
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W.A. No.1802 of 2005&batch
Between:
Aparoksham Satyanarayanachar,
S/o. Late Krishnachar,
Aged about 76 years,
R/o.Bangalore,
Karnataka State. ...Appellant
Versus
The Mandal Revenue Officer,
Tirupathi (Urban) Mandal,
Tirupathi, Chittoor & 29 others.
...Respondents
Counsel for the Appellants :Additional Advocate General.
Counsel for respondents :Sri P. Sri Raghu Ram, learned
Senior Counsel represented on
behalf of Sri P. Ganga Rami
Reddy.
JUDGMENT
Dt: 23.02.2024 (per Hon‟ble Sri Justice R.Raghunandan Rao) Heard the learned Additional Advocate General, appearing for the appellants and Sri P. SriRaghuram, the learned Senior Counsel appearing on behalf of Sri P. Ganga Rami Reddy, learned counsel for respondents.
2. These appeals and review petitions had originated from the common order of a learned Single Judge of the erstwhile High 3 HCJ&RRR,J W.A. No.1802 of 2005&batch Court of Andhra Pradesh dated 08.08.2005 in W.P.No.22868 of 2002 and W.P.No.22656 of 2002.
3. The subject matter of the litigation before this Court is land admeasuring approximately Ac.23.83 cents in Sy.No.46 of Akkarampalle Village, Chittoor District. The facts, which can be culled out from the record, placed before this court, are given below.
4. Sri P. Muniswamy Reddy had purchased Ac. 79.75 Cts. of land, in Survey Nos. 45 to 49 of Poolavarigunta hamlet of Akkarampally Village, from Sri T. Doraiswamy Aiyangar, under a registered deed of sale dated 14.07.1930. The property being sold was described, in the sale deed, as Inam land, in three parts, aggregating to Ac.79.75 cents, containing a "parudala tank"
(meaning „an irrigation tank‟). This property was treated as the property of the Joint family in which Sri P. Muniswamy Reddy was a member and the property was partitioned between the members of this joint family, by way of a registered deed of partition.
5. In 1948, the Andhra Pradesh (Andhra Area) Estates (Abolition and Conversion into Ryotwari) Act, 1948 (for short, „the Estates Abolition Act‟) was enacted as a measure of agrarian reform. The land described above was treated as an Inam Estate, 4 HCJ&RRR,J W.A. No.1802 of 2005&batch which would be governed by the provisions of the Estates Abolition Act. This estate was abolished, by notification dated 07.01.1959.
6. The Settlement Officer, appointed in relation to the said estate, had initiated suo motu proceedings under Section 15 of the Estates Abolition Act and, by proceedings dated 07.11.1961, granted ryotwari patta to the family members of Sri P. Muniswamy Reddy in relation to Sy.Nos.47 to 49, while rejecting the claim on the land in Sy.No.45. The claimants appealed against the said rejection and were successful in obtaining ryotwari patta over this land also. However, no claim was raised against the land admeasuring Ac.23.83 cents in Rs.No.46 and the same was not dealt with under the said proceedings. In these proceedings, the claimants were treated as land holders and not ryots.
7. In the year 1979, Sri P. Ramakrishna Reddy, father of the 1st claimant and some others had filed W.P.No.5121 of 1979, before the erstwhile High Court of Andhra Pradesh, contending that the government was contemplating the assignment of the land in Sy.No.46 to a third party and the same would affect the tank situated in the said land and the facility of using the water in this tank for irrigating the neighbouring lands owned by the writ petitioners. This petition was disposed of on 18.11.1985 by a 5 HCJ&RRR,J W.A. No.1802 of 2005&batch learned single judge, by recording the statement of the respondents that no steps would be taken in this direction without acquiring the entire ayacut under the tank.
8. Subsequently, Sri P. Gopal Reddy and others (hereinafter referred to as „the claimants‟) filed an application, dated 04.09.1981, under Section 11(a) of the Estates Abolition Act for grant of ryotwari patta over Ac.23.83 cents of land in Sy.No.46. The claimants were the descendants of Sri P. Muniswamy Reddy and his brother and the vendees who had purchased some part of the land from these descendants. An application for condonation of delay was also moved. The order condoning the delay has not been produced. However, the Settlement Officer, in the main order, states that the delay had been condoned.
9. This application was allowed by the Settlement Officer on 25.10.1982 holding that the said land was ryotwari land, and not tank poramboke; that the kist receipts showed possession and enjoyment of the claimants over the subject land since 1930; that the Tahsildar had admitted that the government had no interest in the said lands; that the village Karanam and village Munsiff had deposed that the land in Sy.No.46 was wrongly recorded as tank poramboke, when it was ryoti land. The Settlement Officer, arrived 6 HCJ&RRR,J W.A. No.1802 of 2005&batch on these findings on the basis of the depositions of the Village Karanam, who is the hereditary revenue official and the village Munsiff; the Cist receipts showing payment of land revenue; the deposition of the claimants and the affidavit filed by the Tahsildar that the Government had no interest in the land.
10. The Director of Settlements took up a suo motu enquiry into the grant of said ryotwari patta by the Settlement Officer, by his order dated 25.10.1982. The Joint Collector, Chittoor, filed objections raising various contentions, including limitation, lack of opportunity etc. The contention that the land in Sy.No.46 was tank poramboke land, over which no ryotwari patta can be granted, was also raised.
11. After due enquiry, the Special Commissioner and Director of Settlements, by his order dated 30.09.1999 affirmed the order of the Settlement Officer dated 25.10.1982. However, the Director of Settlements did not accept the finding of the Settlement Officer that there was no tank in the land and found that there was a water body. It was further held that the water body was a private tank, in the nature of an improvement of the land and that there was no prohibition for grant of ryotwari patta over the land. There was also an observation that the FMB plan produced by the 7 HCJ&RRR,J W.A. No.1802 of 2005&batch claimants shows that the tank covers only a small extent of the land in question. The Director of Settlements also gave a finding, that Sri T. Doraiswamy Aiyangar, the Vendor of the claimants was the owner and pattadar of the land in question.
12. This order of the Director of Settlements dated 30.09.1999 was challenged by the State Government before the Commissioner of Appeals. The said Commissioner of Appeals, by his order dated 18.12.2001 dismissed the appeal of the State Government. Aggrieved by the said order of dismissal, the Mandal Revenue Officer filed W.P.No.22868 of 2002 before the erstwhile High Court of Andhra Pradesh. The petitioner/claimant has also filed W.P.No.22656 of 2002 seeking a Writ of Mandamus for implementing the orders of grant of ryotwari patta in favour of the petitioner. Both these writ petitions were disposed of by a learned Single Judge, by way of a common order dated 08.08.2005 dismissing the writ petition filed by the State and allowing the writ petitions filed by the petitioners/claimants. Aggrieved by the said common order, the Writ Appeals viz., W.A.No.1802 of 2005 and W.A.No.1817 of 2005 came to be filed by the State. A third party to the dispute, one Sri Aparoksham Satyanarayanachar filed W.A.No.731 of 2006 challenging the order of the learned Single Judge.
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13. A Division Bench of the erstwhile High Court of Andhra Pradesh, by its order dated 30.04.2011, had reversed the order of the learned Single Judge. The Division Bench had held that the claim for ryotwari patta is based on the deed of sale dated 14.07.1930, without explaining why the earlier claim under Section 15, did not include the land in Sy. No.46 and as such the later claim, made under Section 11, is inconsistent with the earlier claim made under Section 15; the claim was barred by the limitation set out in G.O.Ms.No.50, dated 16.01.1974, especially since no application for condonation of delay had been filed; the averments, in W.P.No.5121 of 1979, show that the claimants and their ancestors themselves had treated the subject land as a tank irrigating the neighbouring lands and their claim that the land was ryoti land in which there was no communal interest in the form of a Kunta or tank cannot be accepted; no material was placed to show that the claimants were in possession and cultivating the land; the tank in question is not a private tank and the question of treating the tank as an improvement over the land does not arise; by virtue of Section 13, grant of ryotwari patta is prohibited in the case of land classified as tank poramboke land; even if the said land is wrongly classified as tank poramboke land, the only remedy available to the claimants is to approach the Civil Court for a declaration that the said 9 HCJ&RRR,J W.A. No.1802 of 2005&batch classification by the revenue authorities is illegal. On this basis, the Division Bench held that ryotwari patta cannot be given for the said land.
14. The petitioners/claimants moved S.L.P.(C)CC.No.13881- 84/2011, before the Hon‟ble Supreme Court, contending that a field measurement map which had been placed before the Division Bench was not considered. This Special Leave Petition, was disposed of, by an order dated 26.09.2011 in the following terms:
"Learned senior counsel appearing for the petitioners submits that many documents in the form of revenue records including field map relating to the area in question were not considered by the Division Bench. If that is so, the proper remedy for the petitioners is to move the Division Bench of the High Court by way of review. On this ground, the special leave petitions are disposed of with liberty to the petitioners to move the High Court. It is also made clear that we have not expressed anything on merits of the claim made by both parties."
15. Pursuant to this order, the claimants moved review application W.A.MP.No.1983 of 2011. In this review application, the claimants raised various grounds, including the grounds that the Division Bench did not consider the contentions of the claimants that the grant of patta under Section 15 and Section 11 arises under different circumstances and there is no inconsistency 10 HCJ&RRR,J W.A. No.1802 of 2005&batch between these two claims made on the basis of the sale deed dated 14.07.1930; the Division Bench did not answer the contention that the above issue was raised for the first time before the Division Bench and should not have been entertained; the finding of the Division Bench that delay had been condoned without any application in that regard being filed is incorrect and the Division Bench ought to have seen that the contention of the revenue authorities was that the delay was condoned without hearing the Tahsildar; the Division Bench erred in not considering the fact that the Tahsildar having participated in the proceedings after the delay had been condoned, is estopped from raising this plea in the Writ Appeal; the Division bench had not considered the F.M.B. map prepared by the Government in 1959, when it clearly establishes that the area covered by the tank is only 4 acres and the ayacut is restricted to the lands of the claimants only; and that the judgments cited by the claimants relating to the question of what would amount to an improvement over the land and whether ryotwari patta can be granted to the improvements covered by such lands.
16. The Division Bench held that, after noticing the law on the contours of it‟s review jurisdiction held that there was no error apparent, on the face of the record, and that the grounds raised in the review application did not make out a case for review. The 11 HCJ&RRR,J W.A. No.1802 of 2005&batch Division bench also held that the question of the extent of the tank in Sy.No.46 was a question of fact where the finding of the Division bench cannot be reconsidered. Consequently, the review application was dismissed on 31.01.2014.
17. Assailing this order, the petitioners again approached the Hon‟ble Supreme Court by way of S.L.P(Civil)Nos.27208- 27211/2014. The Hon‟ble Supreme Court, by way of the following order, dated 10.07.2018, disposed of the leave petitions remanding the matter back to this Court with permission to the parties to raise their respective contentions before the Division Bench:
"Having perused the orders of the High Court under challenge in the present appeals we are of the view that in passing the impugned order(s) the High Court did not strictly comply with the directions contained in the order of this court dated 26th September, 2011 passed in Special Leave Petition (civil) No...CC 13881-13884 of 2011 by virtue of which it was hearing the matter in the exercise of review jurisdiction. This Court by its aforesaid order dated 26th September, 2011 having remitted certain issues to be raised before the High Court and the High Court having been requested to consider the same, though in the light of its review powers, it is our considered view, the High Court could not have refused to entertain the review application on the grounds cited. An adjudication in the light of the order of this court dated 26th September, 2011 was called for which apparently do not take place. We, therefore, remand the matter to the High Court to be considered once again in the light of the 12 HCJ&RRR,J W.A. No.1802 of 2005&batch directions contained in the earlier order of this court dated 26th September, 2011 passed in Special Leave Petition (Civil) No....CC 13881-13884 of 2011 and on due consideration of the grounds urged and the materials placed by the parties.
We also permit the appellants to raise the contentions raised before this Court with regard to survey No.46 which has been held to be a water body and the rights thereto which have been held to have been abandoned by the predecessors of the appellants. The said question can be raised and all necessary materials can be laid before the High Court and the High Court is requested to record its findings on the said contentions also.
As the matter has remained pending for a long time we request the High Court to decide the matter at its earliest convenience.
Status quo with regard to the possession as on today shall be maintained by the parties till the High Court decides the matter."
18. Sri P. SriRaghu Ram, learned Senior Counsel on behalf of Sri P. Ganga Rami Reddy, learned counsel for the respondents contends as follows:
i) The land in Sy.No.46 admeasuring Ac.23.83 cents is partly covered by a private tank admeasuring about Ac.4.00 cents and the remaining land is open agricultural land over which agricultural operations had been conducted and land revenue had also been paid on the said land; 13
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ii) The land in Sy.No.46 had been treated as open agricultural land and the same had been sold as agricultural land by Sri Tirupathi Doraswami Iyengar to Sri P. Munuswamy Reddy. The description of the property, in the sale deed of 1930, does not show any tank existing on the land;
iii) All the revenue authorities including the Settlement Officer, Director of Settlement and the Commissioner- Appeals had unanimously held that the said land in question is agricultural land over which ryothwari patta could be issued. There were also findings that the land is at best a private tank intended to serve the interest of the claimants family and that the government has no interest in the said tank/kunta;
iv)The learned Single Judge had accepted the said findings and had found no reason to deviate from the said findings. On this basis, the learned Single Judge had dismissed the challenge of the revenue authorities. The Division Bench of the High Court, had reversed the Judgment of the learned Single Judge without looking into the question of whether the tank is a public tank or a private tank and whether the said tank is spread over the entire extent of Ac.23.83 cents 14 HCJ&RRR,J W.A. No.1802 of 2005&batch or whether the said tank is extending over a small part of the said survey number.
v) Having passed the initial order without going into this aspect, the Division Bench, despite the directions of the Hon‟ble Supreme Court, to look into the F.M.B plan, which had been produced by the review petitioners, had not looked into this issue, in the review also;
vi) The Division Bench could not have overturned the findings of fact, given by the learned single judge as re appreciation of facts is not permissible.(See Roma Sonkar vs. Madhya Pradesh State Public Service Commission and another (2018) 17 SCC 106)
vii) The finding of the division bench that the application, under Section 11(a) for grant of ryotwari patta, in 1981, was considered without condoning the delay in filing of the application is incorrect as the order of the Settlement Officer, dated 25.10.1982, granting patta, recorded that the case was taken up after condoning the delay in filing the application. Further, the copy of the application, filed for condonation of delay, and the notice issued to the Tahsildar, in this regard, have also been placed before this court.
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viii) The said F.M.B plan shows that the said kunta occupies only a small extent of the land in Sy.No.46;
ix) The extent of the land covered by the kunta is about Ac.4.00 cents and in any event, the claimants would be entitled to a ryotwari patta over the remaining land
x) The aforesaid submissions could not be taken to mean that original patta cannot be given to the remaining Ac.4.00 cents of land as the said kunta is only a private tank which was created as an improvement over the land.
xi) Section 3 (4) of The Estate Abolition Act, 1908 provides that construction of tanks, wells, water channels etc should be treated as improvements to the land and such improvements would not deprive the estate holder or the occupant from grant of a ryotwari patta.
19. The learned Additional Advocate General appearing for the appellants would submit that the case of the respondents is clearly not maintainable for the following grounds.
i) The scheme of the Estate Abolition Act is that the land holders/Zamindars/owner of the estate would be entitled to ryotwari patta to the extent of the land under their actual 16 HCJ&RRR,J W.A. No.1802 of 2005&batch physical possession and cultivation under Section 15 of the Estate Abolition Act. The ryots or occupants or cultivators of land, other than the land holders, are entitled to a ryotwari patta under Section 11 of the Act. These two provisions are mutually exclusive and a person who obtains a patta under Section 15 of the Act cannot seek to obtain a patta under Section 11 of the Act for any other extent, in the same estate. In the present case, there was a suo motu consideration of grant of ryotwari patta, by the Settlement Officer, under Section 15 of the Act in favour of the applicants herein. The said proceedings were not disputed by the applicants nor did they seek inclusion of the land, in Sy.No.46, in the proceedings under Section 15 of the Estates Abolition Act. In fact the applicants participated in the said enquiry and had also filed an appeal against the dismissal of the claim for ryotwari patta over certain land in Sy.No.45. This appeal was successfully pursued by the claimants and they had been granted a ryotwari patta in the land situated in Sy.No.45 also.
ii) While the claimants had pursued an appeal in relation to grant of ryotwari patta under Section 15 of the Estate 17 HCJ&RRR,J W.A. No.1802 of 2005&batch Abolition Act, in Sy.No.45, no claim of any nature was made in relation to Sy.No.46.
iii) A subsequent application has been moved in 1981, under Section 11 of the Estate Abolition Act, as if the claimants were only ryots who are cultivating the land and were not the land holders. The Estate Abolition Act does not permit the land holders to approach the Settlement Officer under Section 11 of the Estate Abolition Act. The initial application before the Settlement Officer, in the year 1981, is itself not maintainable and should have been rejected. Unfortunately, this issue never came up for consideration before the authorities under the Estate Abolition Act.
iv) The application, under section 11, was moved after considerable delay and should not have been entertained at all as the said delay was not properly condoned.
v) The claimants never made a claim, in relation to the land in Sy.No.46, as the said land was a public tank over which the claimants had no right. The claimants had filed W.P.No. 5121 of 1979, before the erstwhile High Court of Andhra Pradesh, apprehending assignment of the land in Survey No. 46, in favour of a third party. In this writ petition, the 18 HCJ&RRR,J W.A. No.1802 of 2005&batch claimants had contended that the tank used for irrigation, situated in Sy.No.46, cannot be assigned, as long as the government did not abandon the tank for irrigation purposes for the lands of the claimants and the neighbouring lands. Thus it can be seen that, even according to the claimants, there was a tank, in the year 1979, in Sy.No.46, which was being used to irrigate lands in the vicinity.
vi)A belated claim was made in the year 1981 on account of the designated Settlement Officer being amicable to extraneous consideration and the said Settlement Officer had brushed aside all objections to the grant of ryotwari patta and had given findings of fact, tailored to suit the needs of the claimants, including the finding that there was no tank in Sy.No.46;
vii) The said Settlement Officer had been proceeded against on account of indiscriminate grant of ryotwari pattas under
the Estate Abolition Act and the suo motu enquiry initiated by the Director of Settlements was an account of the large number of irregular pattas issued by the said Settlement Officer. In the circumstances, the Director of Settlements and the Commissioner Appeals, without taking into account 19 HCJ&RRR,J W.A. No.1802 of 2005&batch the said facts had merely affirmed the findings of the Settlement Officer without application of mind.
viii) As the claimants were permitted to produce the F.M.B record, which are post abolition records, a further enquiry was undertaken by the authorities and they were able to obtain the pre abolition irrigation records relating to the said tank. These records which have been placed before this Court, under interlocutory application bearing I.A.No.1 of 2024, would clearly reveal that the extent of the water spread area of the tank is approximately Ac.17.00 cents and consequently, the contention that the water spread area of the tank is restricted to Ac.4.00 cents is incorrect.
ix) The contention of the petitioners that the F.M.B plan shows only a small part of the land in Sy.No.46 being covered by the tank is based upon the fact that the symbol of a tank has been included in the F.M.B plan over a small area of the land in Sy.No.46. The said conclusion sought to be drawn by the claimants is incorrect. The sign for a tank is normally placed in any survey number which is covered as a tank and it is not necessary that the said sign would have to be drawn over the entire survey number. The sign of a tank placed in any part of a survey is an indication of 20 HCJ&RRR,J W.A. No.1802 of 2005&batch the fact that the entire survey number is covered by the tank.
20. Sri P. SriRaghuram, in reply would contend that the memoirs of the tank, produced by the Writ Appellants, cannot be taken into account as the preliminary requirement of demonstrating that they relate to the tank in Sy.No.46 has not been discharged. He would further submit that the FMB plan, prepared by the survey and settlement department, produced by the review applicants/respondents should be given primacy over the memoirs of the tank prepared by the irrigation department. He would further submit that there are two rights in Inam estates, namely Kudiwaram and Melawaram. That is the right to cultivate (Kudiwaram) which normally inheres in the cultivator and which would entitle the cultivator to seek grant of ryotwari patta, under Section 11 of the Act. The second right is the right to collect revenue (Melawaram) which inheres in the Inamdar/Land Holder and stands extinguished upon the Act coming into force. However, the land holder is also entitled to ryotwari patta over the land under his cultivation, under Section 15 of the Act. He would contend that in some cases, such as the present one, both rights could inhere in the same person and an application can be made under either 21 HCJ&RRR,J W.A. No.1802 of 2005&batch provision, by such land holders, for grant of ryotwari patta, over land which was in their personal cultivation. CONSIDERATION OF THE COURT:
21. The Division Bench, by it‟s judgment dated 30.04.2011, had disposed of W.A.No.1802 of 2005, W.A.No.1817 of 2005 and W.A.No.731 of 2006. The Hon‟ble Supreme Court, in it‟s order dated 26.09.2011, closed the Special Leave Petitions filed against the common order, by giving liberty to move the Division Bench, by way of review. Pursuant to this order, the claimants moved a review application, W.A.M.P. No.1983 of 2011, in W.A.No.1817 of 2011 only. This application was dismissed and, in the appeals filed against the said order, the Hon‟ble Supreme Court had again remanded the matter for fresh consideration of the grounds raised in the review petition. In view of these directions, the review of the judgment of the division bench is being taken up.
22. The issues raised in the grounds of review, as extracted above, and on the basis of the arguments advanced by both sides, can be summarized as follows:
1. Whether, the finding of the Division Bench that the application filed under Section 11 of the Act, was taken up without condoning delay is correct?22
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2. Whether, the finding of the Division Bench that there is an inherent contradiction in applications being filed, on the basis of the same document under both Section 11 and Section 15 of the Act, requires review?
3. Whether, the tank in Sy.No.46 is a public tank or a private tank and whether the said tank can be considered to be an improvement of the land which would not bar the grant of ryotwari patta?
4. What is the extent of the land which is covered by the Tank and whether any patta can be granted over land in Sy.No.46, which is not covered by the tank?
ISSUE NOs.1 and 2:
23. The Division Bench took the view that the delay was condoned without any petition being filed; the Settlement Officer was not empowered to condone delay of more than 30 days after 16.01.1974, in view of G.O.Ms.No. 50, dated 16.01.1974, and that the claimants have failed to explain why they had not applied for grant of patta over Sy.No.46, when grant of patta was being considered for the land in the other survey numbers and as such, the present claim was inconsistent with the earlier claim.
24. The record produced before this Court, shows that an application for condonation of delay was filed. A copy of the notice 23 HCJ&RRR,J W.A. No.1802 of 2005&batch that is said to have been sent to the Tahsildar has also been filed, though it is not clear whether it has been served or not. However, the Settlement Officer, in the proceedings granting patta, had recorded that he had condoned the delay before taking up the application. Further, the objections raised before the appellate and other authorities did not contain any objection that the delay was not condoned. The objections were on the ground that such delay could not have been condoned, either on grounds of jurisdiction or on merits. To this extent, the findings of the Division Bench are not in accordance with the record.
25. The relevant part of G.O.Ms.No. 50, dated 16.01.1974, reads as follows:
Rule 2 (4):-
(4) Notwithstanding anything in sub-rule (2) but subject to the provisions of sub-rule (5), where in respect of an Estate in the ryotwari settlement under section 22 has already been effected before the commencement of these rules, such an application can be filed before the settlement officer within thirty days from the date of such commencement.
Provided that the settlement officer may, for good and sufficient reasons shown by the applicant, entertain an application filed before him after the period of thirty days aforesaid."
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HCJ&RRR,J W.A. No.1802 of 2005&batch In view of this provision, the Settlement Officer has power to condone delay beyond the time prescribed under G.O.Ms. No.50 and the finding of the Division Bench, to this extent would have to negatived.
26. The Division Bench then took the view that there is no proper explanation why the claim is being filed after not raising the same in the earlier round. This issue was raised before the authorities below, who rejected the said contention and the condonation of delay was affirmed. We do not find any reason to interfere with the discretion of the authorities in condoning the delay. For this reason, the said ground would not be a bar for considering the application of the claimants for grant of ryotwari patta.
ISSUE Nos.3 AND 4:
27. The claimants have filed the extract of the Inam Fair Register, relating to Title Deed No.2946. The statement in the column titled "Description of the Inam" says that the Inam was granted for "the construction and repair of Valavadi tank called Poolavaniguntah which is kept up". This would mean that the land of Ac.79.75 cents was given, as an Inam, for the purpose of constructing and maintaining a tank. In such circumstances it can only be inferred that this tank was for communal purposes. The sale 25 HCJ&RRR,J W.A. No.1802 of 2005&batch deed of 14.07.1930 also states that a parudala or irrigation tank was in existence by the time of the sale in the year 1930. For all the aforesaid reasons, it must be held that the Poolavanigunta tank is a tank established for communal benefit and constructed prior to the ancestors of the claimants taking possession of the land.
28. In view of the above finding, that the tank was for communal purposes, the question of whether the construction of the tank was only an improvement over the land does not remain for consideration.
29. The only question which remains to be answered is the extent of the said tank. The claimants are relying upon the F.M.B. plan to contend that the tank occupies a small part of Sy.No.46, admeasuring an extent of about 4 acres out of Ac. 23.83 cents. The respondent authorities are now relying upon the memoirs of the tank, prepared by the irrigation department, prior to the abolition of Estates, to contend that the entire land in Sy.No.46 is covered by the tank. The said memoirs record that the water spread area at full tank level is about 17 acres of land. This would still leave about 6 acres of land, falling outside the water spread area of the tank.
30. In these circumstances, this Court will not be able to go into this question, which is a question of complicated facts, and it would be appropriate to remand the matter back to the Settlement 26 HCJ&RRR,J W.A. No.1802 of 2005&batch Officer, only to the extent of ascertaining the extent of land which is covered by the tank, in Sy.No.46. Once such an issue is resolved, the question of classification of land as tank poramboke or otherwise, would lose relevance and there would be no need to approach the civil court for a declaration or for change of classification.
31. Accordingly, the matter is remanded to the Settlement Officer to ascertain the extent of the water spread area, at full tank level, of Poolavanigunta tank, in Sy.No.46. This exercise is to be completed by taking into account all relevant facts, including the FMB record produced by the claimants, the memoirs of the tank produced by the respondent authorities and also after taking into account the contours of the land. It is made clear that the remand is only to the extent of ascertaining the water spread area of the tank, at full tank level. It is not open to the settlement officer to consider any other issue.
32. The Settlement Officer, after ascertaining the extent of the tank, in Sy.No.46, shall grant ryotwari patta, only to the extent of the land which is not covered by the tank. The entire exercise is to be completed in four months from the date of receipt of this order by the settlement officer. Needless to say, the Settlement Officer shall undertake this exercise after giving notice and opportunity of 27 HCJ&RRR,J W.A. No.1802 of 2005&batch hearing and after considering the material, if any, produced by the claimants.
33. Accordingly, the Writ Appeals are disposed of. There shall be no order as to costs.
As a sequel, pending miscellaneous petitions, if any, shall stand closed.
DHIRAJ SINGH THAKUR, CJ R. RAGHUNANDAN RAO, J RJS 28 HCJ&RRR,J W.A. No.1802 of 2005&batch HON‟BLE MR. JUSTICE DHIRAJ SINGH THAKUR, CHIEF JUSTICE & HON‟BLE MR. JUSTICE R. RAGHUNANDAN RAO WRIT APPEAL Nos.1802 of 2005, W.A.No.1817 of 2005 & W.A.No.731 of 2006 (per Hon‟ble Sri Justice R. Raghunandan Rao) Dt: 23.02.2024 RJS