Andhra HC (Pre-Telangana)
M. Ramanamma vs Commissioner Of Survey Settlement And ... on 13 December, 1999
Equivalent citations: 2000(2)ALD124, 2000(2)ALT276, 2000 A I H C 1851, (2000) 2 ANDHLD 124 (2000) 2 ANDH LT 276, (2000) 2 ANDH LT 276
Author: P. Venkatarama Reddi
Bench: P. Venkatarama Reddi
ORDER G. Bikshapathy, J.
1. The Supreme Court in Civil Appeal Nos.5197 of 1997. and 5198 of 1997 remanded the matter in WP Nos. 14137 and 14138 of 1988 to examine on merit the questions, which were raised in the writ petitions. Since WPNo.12665 of 1997 is also connected with the aforesaid writ petitions, the same is also clubbed and the matters were heard together.
2. The writ petitions have a chequered career spreading over nearly three decades. The matter arises under the provisions of the A.P. (Andhra Area) Estates (Abolition and Conservation into Ryotwari) Act. The Government is competent to grant Ryotwari pattas under Section 11 proviso of the Act. The power to grant such pattas was delegated to the Board of Revenue. The Board granted Ryotwari patta to Smt. T. Venkubayamma over an extent of Ac.18-25 cents situated in T.S.No.1/1 Block-1 of Allipuram village. An extent of Ac.18-00 situated in T.S.No.1/P, Block-1 of Allipuram village was granted to one I. V. Sivaramadas. These paltas were granted by the Board of Revenue under BPRT No.4455/1960, dated 8-9-1960 to Smt. T. Venkubayamma and Sivaramadas. These lands were purchased by the petitioner Smt. M. Ramanamma in good faith and for valuable consideration under a registered sale deed dated 26-11-1960. Apart from the lands purchased, the petitioner was also granted Ryotwari patta by the Board in BPRT No.208 of 1962, dated 12-1-1962 over an extent of Ac.74-15 cents situated in S.Nos.113 and 106/Part of Marripalem village. All the aforesaid lands have been in possession and enjoyment of the petitioner. While so, in respect of the lands purchased by her from Srnt. T. Venkubayamma and I. V. Sivaramadas, it appears that the Tahsildar on the basis of some reports from third parties including villagers, brought to the notice of the Board stating that the lands were banjar, non-cultivable and non-ryoti and patta of such lands could (sic 'not') have been granted under Section 11 proviso. It was also brought out by Tahsildar that the grantee and estate holder were closely related and therefore, the assignment was not genuine. The Board after considering the complaint of the Tahsildar negatived the request to cancel the pattas in their proceedings dated 3-6-1974 and the matter was given a quietus at that stage itself. So far as the patta granted to the petitioner in WP No.14137 of 1988 in her personal capacity in BP RT No.208 to the extent of Ac.74-15 cents of Marripalem village is concerned, certain villagers filed revision petition before the Government stating that the patta was granted mala fide and it was bogus and nominal. It was also stated that the land was non-ryoti land (banjara, non-cultivable etc.). The Government considered the revision of the villagers with reference to the records of the Board of Revenue and passed orders dated 4-9-1962 rejecting the pleas of complainant and upheld the grant.
3. While that was the situation, after a long lapse of time, the Tahsildar concerned again initiated proceedings for cancellation of the pattas granted in favour of Smt. Venkubayamma and Mr. /. V. Sivaramadas and the petitioners by filing review petitions before the Board.
4. The Board of Revenue considered the matter and passed orders dated 4-7-1988 in proceedings No.PI/P4/1105/85 in respect of the lands of /. V. Sivaramadas and Proceedings No.Pl/P4/1107 dated 6-7-1988 upholding the grounds of review filed by the Tahsildar and thereby cancelled the pattas granted in favour of those two persons. WP No. 14137 of 1988 was filed against the order passed in Proceedings No.Pl/P4/ 1105/85 relating to the lands of I.V. Sivaramadas while WP No.14138 of 1988 was filed challenging the orders of the Board of Revenue in Proceedings No.PI/P4/l 107/85. However, as regards the Review Petition filed in respect of the lands for which the patta was granted to the petitioner herself, the matter was kept pending in FileN6.Pl/1106/85 and the orders were passed on 15.5.1997 reviewing the grant of patta and cancelling the patta. Against the said order, the petitioner filed WP No. 12665 of 1997.
5. In this regard, it is to be stated that when the review was sought to be initiated by the Board of Revenue in respect of two pattas granted to Smt. T. Venkubayamna and Sivarawadas, the petitioner filed WPNo.2500 of 1975 on the ground that the proposed review was not maintainable and sought for quashing of the review proceedings. In the said WP No.2500 of 1975 it was held on 26-11-1976 that the review was maintainable. Against the said orders of the learned single Judge, Writ Appeal No.370 of 1977 was filed in which the Division Bench while dismissing the appeal observed that it was open to the petitioners to raise all the questions including the power of Commissioner to review the orders and thus left all the questions open to be considered by the Commissioner. Consequently, the matters were taken up by the Commissioner, Survey, Settlement and Land Records and (he orders were passed on 4-7-1988 and on 6-7-1988 holding that he had inherent power of review and the said powers were also upheld by the Division Bench in Writ Appeal No.370 of 1977 and accordingly he passed an order on 4.7.1988 and 6-7-1988 against which the WP Nos.14137 of 1988 and 14138 of 1988 were filed. The Division Bench of this Court observed as follows :
"Though the single Judge while dismissing the writ petition observed that the Commissioner has got inherent power of review, the Division Bench held that it is open to the petitioner to raise all the questions whether the Commissioner has got inherent power of review or not. Therefore, in our view that the Commissioner is not correct in saying that the Supreme Court held that the Commissioner has got power to review. Therefore, without going into the merits of the case, we think it just and proper to set aside the impugned order dated 6-7-1988 and remand the matter to the Commissioner to consider the matter afresh particularly he has to consider whether he has got inherent power or not? We hope and trust that the Commissioner will consider this aspect and dispose of the case according to law. The Commissioner is directed to dispose of the case within a period of three months from the date of receipt of order, since the matter is pending since a long time."
Against this order of the Division Bench, the State carried the matter in Civil AppeatsNos.5197 and 5198 of 1997 and the Supreme Court passed the following order on 21-7-1997 :
'Under the impugned order of the High Court the case is remanded to the Commissioner for deciding all questions raised by the parties including the question whether the Commissioner had inherent power of review or not. In our view, looking to question of law involved, the High Court ought not to have remanded the case to the Commissioner to decide all questions, which are raised by the parties. We, therefore, set aside the order of the High Court, remand the matter to the High Court and direct the High Court to examine on merit the questions, which are raised before it in the writ petition. We make it clear that if in the course of such examination, the High Court considers it necessary to the remand the matter to the Commissioner on certain issues, requiring further examination of facts, it will be open to the High Court to do so. The appeals are disposed of accordingly with no order as to costs."
That is how the matters have again come up before this Bench for reconsideration on merits of the questions raised in the writ petition. During this period, the Commissioner considered the review petition filed by the Tahsildar in respect of pattas granted to the petitioner in her personal capacity and passed orders on 15-5-1997 which are challenged by the petitioner in WPNo.12665 of 1997. Since the question of law involved in all these writ petitions is the same, this matter is also disposed of along with other two writ petitions referred to above.
6. The undisputed facts in these cases are that Ryotwari patta was granted to Smt. T. Venkubayamma and I. Sivaramadas and also to the petitioner under Section 11 proviso of the Act. The petitioner purchased the lands granted to Smt. T. Venkubayamma and I. V. Sivaramadas under a registered sale deed on 26-11-1960. In respect of the patta granted to Venkubayamma and Sivaramadas, certain representations were made, the Board of Revenue by orders dated 3-6-1974 refused to review the orders passed earlier on the ground that the Board considered the relationship of the grantees to the land holders at the time of granting patta itself. But, however, in case the Tahsildar felt that the Board should review the two cases, the Tahsildar should make out a case for review based on fraud, misrepresentation or mistake. Thereafter the Tahsildar again filed fresh review petitions before the Board of Revenue seeking review of the pattas granted in favour of Venkubayamma and Sivaramadas and the petitioners.
7. The learned Counsel for the petitioners, however, submits that when once the Board of Revenue refused to entertain the review petitions filed by the Tahsildar, again second review does not lie and therefore, the very initiation of review proceedings itself is misconceived. The learned Counsel made the submission de hors the submission that the review itself is incompetent. But, the submission of the learned Counsel cannot be accepted as the Board of Revenue itself clarified in Memo dated 3-6-1974 that if the patta was obtained by fraud, misrepresentation or mistake of fact, it was open for the Tahsildar to file appropriate review petition. Therefore, simply because the Board of Revenue addressed the Collector on 3-6-1974 that it refused to interfere with the pattas granted on the material placed by the Tahsildar at that time, it cannot be said that the Tahsildar is estopped from filing the review petition. The Board of Revenue has clearly stated that review can be filed by the Tahsildar on proper grounds and therefore such a review was filed. Hence, it cannot be said that it is not (sic) a second review petition. Thereafter, Tahsildar filed a fresh review petition on 3-8-1974 stating that the lands in Allipuram estate in Vizag district was taken over by the Government in 1951. The following grounds were raised:
1. That the assignment was made by the land-holder within the family-fold and this information was not brought to light.
2. There was no cultivation at all.
3. It has no character of ryoti land and non-ryoti land being prohibited from granting patta under Section 11 proviso.
4. That the land was purchased by the petitioner on 26-11-1960 within the proximity of about three months establishing mala fide intention.
5. That Limitation Act has no application, as it is a case of fraud and misrepresentation.
6. The grant of patta is vitiated by fraud, misrepresentation.
8. But, however, as a precautionary measure, the Tahsildar has also filed an application to condone the delay in filing the review petitions. In respect of the lands, of Smt. Venkubayamma in the review petition, it is stated that there was misrepresentation of facts and Venkubayamma was closely related to the erstwhile proprietor. She was sister of the landholder M. Jagannadha Rao. Other grounds mentioned in the review petition of Sivaramadas were also taken. In respect of the patta granted to the petitioner in her personal capacity, similar grounds were taken stating that there was misrepresentation of facts as the lands were unfit for cultivation, that the petitioner was never in possession of the land at any time and the vendor (assignee) was personal clerk of Seminary and she got the patta fraudulently and by means of extraneous influence. It was resisted by the petitioner on the ground that review was not maintainable, and even on facts, there was no fraud or misrepresentation. The Board having fully satisfied that the petitioner and other two persons were eligible, granted pattas and therefore even on merits, the impugned order of the Board of Revenue is not sustainable. It was also submitted in respect of WP No. 12665 of 1997 that the revision was filed before the Government by the villagers and the same was heard by the Government and orders were passed on 4-9-1962 dismissing the revision. Therefore, the Government having exercised the revisional powers, no review is permissible before the Board of Revenue, who is only a delegate. The petitioner also invoked principle of merger in WP No. 12665 of 1997.
9. Before delving into the respective merits of the case, it is necessary to deal with maintainability of the review filed by the Tahsildar before the Board of Revenue.
10. The learned Counsel for the petitioner Mr. Vilas V. Afzalpurkar submits that no review lies against the orders passed by the Board of Revenue granting patta in favour of the petitioner and others. Under Section 11 proviso Ryotwari patta was granted only after being satisfied that the conditions requisite for grant of ryotwari patta were fulfilled by the persons concerned. More over, under the provisions of the Act, no review power has been specifically conferred on any authority and therefore, in the absence of conferment of such a power by the statute, it is not open for the authority suo motu to take up review. He further submits that even if such a power is available it has to be exercised based on relevant and dependable material and within a reasonable time. He relied on the decision of the Supreme Court reported in Harbajan Singh v. Karam, , wherein the apex Court held that in the absence of any express power in the statute review was not permissible. He also relied on the judgment of the Supreme Court reported in Patel Narshi Thakershi v. Pradyuman Singh Arjun Singh, , wherein Supreme Court held that the power of review not an inherent power. It must be conferred by law either by specifically or by necessary implication. He also relied on the unreported decision in WP No.2263 of 1971 dated 13-4-1973, wherein it was held by the learned single Judge that the review power has not been conferred on Board of Revenue under the Estate Abolition Act.
11. He also relied on the decision of the Division Bench (to which one of us was a party) in Ms. Yamunagar Co-operative House Building Society v. Government of Andhra Pradesh, (DB). That was a case where power of review was vested with the authorities under the provisions of the A.P. (Telangana Area) Land Revenue Act, 1374-Fasli observing that the review power can be exercised when a fraud was played or misrepresentation had taken place, while obtaining the order. It can also be invoked when some important material or evidence, which was subsequently, disclosed which could not be discovered inspite of diligence before passing an order or the order under review has resulted in manifest illegality resulting in miscarriage of justice, The Supreme Court observed in Northern Indian Caterers India Ltd. v. Lt. Governor of Delhi, AIR 1980 SC 674, that a review proceedings cannot be equated with the original hearing of the case and the finality of the judgment delivered by the Court will not be reconsidered except where a glaring omission or patent mistake or like grave error has crept in order by judicial fallibility.
12. In Vijaya Bai v. Shriram Tukaram, , the Supreme Court while dealing with Section 49-B of Bombay Tenancy and Agricultural Lands (Vidarbha Region) Act, 1958 has observed that the Tahsildar has to initiate proceedings on the basis of the material before him and not arbitrarily. Every exercise of suo motu power explicitly or implicitly relates to correcting an error crept under a statute, what ought to have been done was not done or which escaped the attention of the statutory authority or error or deliberate omission or commission by the subject concerned requires correction, of course within the limitation of any such statute. This has to be based on some relevant material on record, it is not an omni power to be exercised on the likes and dislikes of such an authority. Though such a power is a wide power but it has to be exercised with circumspection within the limitations of such statute. Wider the power, the greater circumspection has to be exercised.
13. The learned counsel for the petitioner relied on the decision of the Division Bench of this Court reported in A. Kodanda Rao v. Government of Andhra Pradesh, 1981 (2) APLJ 158, wherein the Division Bench while dealing with the provisions of the Andhra Pradesh (Andhra Area) Estates (Abolition and Conversion into Ryotwari) Act, 1948, held that even though no period of limitation was prescribed by the Act or Rules for exercise of the suo motu power of revision, the exercise of that power cannot be impugned on the ground that it is barred by limitation. No period of limitation can be imposed otherwise than by statute or the rules made thereunder. But, nonetheless, the power has to be exercised within a reasonable time. In cases, where no period of limitation is prescribed for exercise of the revisional powers suo motu, the Division Bench held that it should be within the reasonable period and what is reasonable period and time is dependant on the facts and circumstances of each case. But, this may not help the petitioner, inasmuch as, the revision is distinct and different from a review. The revision is to be exercised by the higher authority over the orders passed by the lower authorities. But, the review is normally a power, which is exercised by the very same authority, which has passed the order. In that case, the proposed exercise of the revisional authority by the Director of Settlement after a lapse of 13 years and 19 years was found to be not a proper exercise of jurisdiction within a reasonable time and the proceedings were quashed.
14. The learned Government Pleader submits that the review can be undertaken at any time if it is found that the ryotwari patta was granted in contravention of the Act. The long lapse of time is not material. He relied on the decision of the Supreme Court reported in Government of Andhra Pradesh v. Kalleti Chengaiah, , wherein it is observed thus :
"It is settled law that the power of suo motu revision can be exercised within reasonable time. When it is held that the power may be exercised from time to time, what would be the reasonable time depends upon facts of each case. It is seen that in this case the orders were issued by the Settlement Officer contrary to the provisions and it was not known till an enquiry was held and until it came to light that the exercise of power by the Settlement Officer under Section 11 (a) of the Act was clearly in contravention of the provisions of the Act. Under those circumstances, the Director was constrained to exercise the power. It is also seen that when the record was called for it came to light that the record was destroyed. It would be obvious that the persons behind the scene had managed to see that the records were destroyed. Considered from this perspective, we are of the view that the High Court was clearly in error in interfering with the order of the Director of Settlement."
15. The above case related to suo motu revisional powers and not a case of review. The difference in review and revision is well settled. While the review of the order is by the very same authority, who passed the order, revision is undertaken by the higher authority to ensure whether the order passed by the lower authority was proper and in accordance with the rules. Therefore, this decision is not of any assistance to the learned Government Pleader.
16. Admittedly, in the instant case, the statute did not contain any review power. Therefore, it has to be held that the Board cannot be said to have exercised the power of review conferred by the Act. By implication, such a power cannot be conceded to the Board. In fact the learned Counsel for the parties including the learned Government Pleader have fairly conceded the above position.
17. But, however, further question that crops up is whether the review is permissible when the orders were obtained by fraud or misrepresentation including suppression of material facts?
18. The proposition is well settled that fraud and misrepresentation vitiate the entire proceedings. In such an event, it is always open for the authority to review the order if it is found to have been obtained by misrepresentation or fraud. But, however, that power should be exercised within a reasonable time from the date of detecting the fraud or misrepresentation. The power to recall the order even in the absence of statutory provision can be exercised, has been recognised by the Supreme Court in a recent case reported in Sri Bidhia Swain v. Gopinath Deb, 1999 (5) Supreme 49. The Supreme Court observed :
"A Tribunal or a Court may recall an order earlier made by if it (i) the proceedings culminating into an order suffer from the inherent lack of jurisdiction and such lack of jurisdiction in patent, (ii) there exists fraud or collusion in obtaining the judgment, (iii) there has been a mistake of the Court, prejudicing a party or (iv) a judgment was rendered in ignorance of the fact that a necessary party had not been served at all or had died and the estate was not represented."
In the instant case, the review petitions were filed by the Tahsitdar on the ground of fraud and misrepresentation and the learned Counsel for the petitioner and also the learned Government Pleader having realised this situation, have advanced their submissions on the premise that the review can be entertained on the grounds of fraud or misrepresentation and that too within a reasonable time after it comes to light.
19. It is the case of the Government that some of the lands assigned to the petitioners was acquired by the Government for Visakha Port Trust and during the land acquisition proceedings, disputes arose between the parties and when the matter was enquired into by the authorities, it was found that the patta was granted on wrong premise and the fraud and misrepresentation was detected only during 1974 and hence review petition was immediately filed. Therefore, there was no delay in filing such review petitions. It is always open to file petition immediately or within a reasonable time from the date of detection of such action. In view of the fact that the review petitions were filed in 1974 even though pattas were issued in 1960, the review petitions cannot be said to be belated as the irregularity was found only during the land acquisition proceedings in 1974. The learned Counsel for the petitioners, however, submits that the alleged irregularity was noticed on earlier occasion itself, and when they were brought to the notice of the Board of Revenue, they were rejected in 1961 itself and therefore, the review could not have been filed after a long lapse of time. This contention is not acceptable as the Board in proceedings dated 3-6-1974 observed that if the Tahsildar wants, he should file an appropriate review in proper form and therefore the review petitions were filed within two months. Hence, it cannot be said that the review petitions are belated.
20. Therefore the question that arises for consideration is whether the Board is justified in cancelling the pattas granted in 1960 by virtue of the exercise of the inherent power of review available in a case of fraud and misrepresentation?
Re : Ryotwari patta in respect of Smt T. Venkubayamma and I. V. Sivaramada.:
21. Since Ryotwari pattas were granted to the aforesaid persons in Board's proceedings dated 8-9-1960, the same are being dealt with jointly except where the factual situation is different. As already stated on the basis of the proposals submitted by the Assistant Settlement Officer, Anakapally, the Board of Revenue by virtue of the powers delegated to it by the Government, issued Proceedings No.BPRT No.4455 of 1960 dated 8-9-1960 and in exercise of the powers under Section 11 proviso of the Estate Abolition Act, granted ryotwari pattas to fine persons including Snit. T. Venkubayamma and I. V. Sivaramadas. We are only concerned with these two persons. Sivarantadas was granted an extent of 18 acres in T.S.No.I/Part of Allipuram village while Smt. T. Venkubayamma was granted patta over an extent of Ac. 18-25 cents in T.S.No.1/1 of Block-1 of Allipuram village. The review petition was filed on 3-8-1974 by Tahsildar on the ground that patta ought not to have been granted to Sivaramadas as the land was unsnrveyed land, it was situated within the proximity of growing industrial city, the proprietor M Jagannadha Rao effectively made arrangements to overcome the proposed Legislation and made illegal assignments, that Sivaramadas as a close relation of the proprietor namely Viyyanka of M. Jagannadha Rao (the daughter of Sivaramadas married the son of M Jagamiadha Rao), that the lands are non-ryoti lands and that it was a clear case of misrepresentation amounting to fraud vitiating the assignment. The following grounds were raised by the Tahsildar in the review petition :
"1. The assignment secured by the first respondent is vitiated under Law and fact for the reason that the assignee must have and did mislead the Government employee, the then Settlement Deputy Tahsildar about the nearest and relationship between the first respondent and the erstwhile proprietor.
2. The conclusion by the erstwhile Special Deputy Tahsildar about the assignment not being in the family fold is the direct result of suppression of facts and 'a mistake of facts' led to practising fraud on the subordinates of the Government, both the Special Deputy Tahsildar and the Assistant Settlement Officer who recommended on the basis of incorrect statements made by the assignee, which has resulted in issue of 11 (pro) pattas.
3. The assignment under 11 (Pro) was also not contemplated with respect to lands of the nature in question as this particular land which is rocky and unfit for cultivation is fallow even now.
4. The Board of Revenue has every power to review such orders obtained by a mistake of facts and fraud evidently practised by the parties and therefore requests that the orders in BP RT No.4455/60 dated 8-9-1960 are liable to set aside in the case of I. Sivaramadas. It was also urged that there is no question of limitation under Section 17 of the Limitation Act."
It is observed by the Commissioner that the review was restricted to 13 acres of land while the entire extent assigned in favour of Sivaramadas was 18 acres. He perused the File BP Misc. Ref-No.470/68, dated 8-9-1960 and the recommendations of the Assistant Settlement Officer together with the report of the Settlement Deputy Tahsildar. After considering the reports, he came to the conclusion that the statement of the Settlement Deputy Tahsildar that the assignee was a distant relative not being one in his family fold was due to fraud on the Review Settlement Deputy Tahsildar. He also held that the assignee did not give statement before the Tahsildar. But, only Mr. M. Jagatmadha Rao, his son gave the statement. From the statement, he found that efforts were made to appear that I. V. Sivaramadas was a distant relation to the landholder and that there was no favouritism in patta being granted to him by the landholder, whereas in fact /. V. Sivaramadas was a close relation. He also considered the report of Mr. S.K. Sinha, IAS, dated 9-4-1975 held that there was a calculative move to deliberately mislead the Board of Revenue by fraud with a view to effect personal gain by way of patta under Section 11 proviso of the Act to /. V. Jagatmadha Rao, son of /. V. Sivaramadas. He also considered the report of the Mandal Revenue Officer, Narsannapet dated 12-10-1986 wherein it was stated that Sivaramadas had sufficient lands, the village officers of Dondaparthi gave a false and misleading reports and that the Assistant Settlement Officer Mr. K.V.N. Goud was mislead and endorsed the report of the Settlement Deputy Tahsildar. Therefore, there was misrepresentation of the facts and fraud committed on Board of Revenue. In the absence of any plea in the review that Sivaramadas was already having extensive agricultural lands, we are inclined to hold it is not open for the Commissioner to consider such a statement. The learned Commissioner also considered the award dated 14-10-1978. He also came to the conclusion that there was a prima facie case and abundant scope to suspect the collusion to obtain delivery of the property of the Government on misrepresentation. Since Ramanamma was residing in the house of M.T. Raju, a high official in the Government of Andhra Pradesh and that she sold her share to the said Mr. M.T. Raju, raises a reasonable doubt that it is a benami transaction for Mr. M.T. Raju and that Ramanamma was only a name lender. He also relied on the affidavit filed by the Mandal Revenue Officer in this regard. We have considered this contention and find that there is no material whatsoever to come to the conclusion that it was a benami transaction and that is for the first time, the Commissioner inferred such a situation. It may be that Ramanamma must have sold some portion of the property to Mr. Raju, who was the Ex-Chief Secretary. But, that cannot be a ground to infer that there was a fraud, misrepresentation in obtaining the patta. The patta was granted in 1960 and the so called transfer took place a decade thereafter. Therefore, the finding that there was collusion and it was a benami transaction cannot be sustained.
22. Therefore, the only issue that calls for consideration is whether the relationship was suppressed and whether the lands are non-ryoti lands?
23. It is seen from the report of the Assistant Settlement Officer dated 7-3-1960 that elaborate enquiry was conducted by the Settlement Deputy Tahsildar and the Assistant Settlement Officer made recommendations and the same were accepted by the Board of Revenue. The appendix to the report some of the clauses are necessary to be reproduced hereunder :
"(1)(d) If it a cultivable and not falling under It is a cultivable land not falling under the description of communal the description of a communal poramboke.
poramboko forests and the like. The entire extent is fit for immediate
Furnish the present extent which is fit cultivation. It is not required for any
for immediate cultivation. If it is communal purposes. It is not close to
required for any communal purpose. any irrigation.
If so, for what purpose ? If the field
is close to an irrigation source ? Is it
liable to submersion and has the
technical opinion of the Minor
Irrigation Overseer as to whether the
land is required for tank purposes or
not been obtained ? (Copy of that
opinion with a copy of sketch should
be enclosed).
(4) How long has been in possession of Ever since grant.
the land ?
(a) What are the circumstances under On application.
which he was admitted into possession
of the land?
(b) What is the extent of other lands No other lands.
owned by him, if any ?
(6)(a) Is the assignment bona fide (i.e., was Yes, there was no favouritism, or sale
there any favouritism, sale for a higher for higher consideration.
consideration to a speculator and the
like ?
10. Have any objection been raised by No objections.
ryots and if, so what are they ?
11. Was any improvement effected after No improvements."
assignment ? If so, specify their nature
and estimated cost.
12. Remarks of the Settlement Tahsildar
or Deputy Tahsildar.
24. The land holder of the Allipur estate had assigned an extent of Ac. 18-00 roughly to one Ingulika Sivaramadas for purpose of cultivation. The land was ryoti at the time of assignment, and it continues to be in the possession and enjoyment of the assignee ever since. He has been paying taxes thereon to the Government.
25. The assignee is a distant relative not being one in his family hold. There is no evidence before me that any favouritism was shown to him in the matter of this grant. More valuable lands and lands nearer the village were granted on patta after 1-7-1945 to several others, and if the landholder wanted to show any favouritism, he could have granted to patta one of such lands to this grantee. That was not done; and the grantee in this case alone has been paying taxes on the land. I do not consider that the assignment was made just in petitioners name or in the name of a relative with the ultimate idea of reserving this land to the landholder himself. In the circumstances and in view of the orders of the Government. I recommend that the assignment in favour of Sri Ingulika Sivaramadas may be confirmed. The record of enquiry is enclosed.
"13. Remarks of the Assignment Settlement Officer:
I agree with the Settlement Deputy Tahsildar and recommend that a ryotwari patta may be issued in favour of the assignee.
14. The landholder of Allipur Estate had assigned an extent of Ac. 18-00 roughly to one Inglika Sivaramadass for purposes of cultivation. The land was ryoti at the time of assignment; and it continues to be in the possession and enjoyment of the assignee ever since. He has been paying taxes there on to the Government.
The assignee is a distant relative, not being one in his family fold. There is no evidence before me that any favouritism was shown to him in the matter of this grant. Mere valuable lands and lands nearer the village were granted on patta after 1-7-1945 to several others, and if the landholder wanted to show any favouritism, he could have granted on patta one of such lands to this grantee. That was not done and the grantee in his case alone has been paying taxes on the land. I do not consider that the assignment was made just in a fictitious name or in the name of a relative with the ultimate idea of reserving this land to the landholder himself. In the circumstances and in view of the orders of the Government in I recommend that the assignment in favour of Sri Ingilaka Sivaramadas may be confirmed. The record of enquiry is enclosed."
26. While sending the recommendations, the Officers recorded the statement of I.V. Jagannadha Rao and the statement of landholder M.S. Ramachandra Rao, the statement of village officer of Dondaparthi.
27. The enquiry made by the Settlement Deputy Tahsildar and also the recommendations of the Assistant Settlement Officer would clearly reveal that the land was ryoti land and it was in possession and enjoyment of the assignees and they have been paying taxes and that the transaction was bona fide as more valuable lands nearer to the village were granted patta to several others. The authorities were also satisfied that an assignment was not a fictitious one with an intention to reserve the land to the landholder himself.
28. The Report of Mr. S.K. Sinha in 1975 which was taken into consideration in the impugned review order is as follows:
'The respondents and their advocates were absent inspite of notice. Hence, inspection was conducted without their presence. The Government Advocate, i/c District Revenue Officer, Tahsildar, Visakhapatnam, Settlement Officer and the Deputy Director, Settlements, land Records were also present. Combined sketches of both the sites have been given by the Deputy Director (Survey and Land Records) which are filed. These sketches clearly indicate the hillocks, topographical position of the sites and the ravines and stream-cuts existing on the site. Both the sites are actually part of the continuation of surrounding hills. The nature of soil is completely unfit for cultivation whatsoever. There are no signs of any cultivation whatsoever on the ground. It is also in evidence that the sites have never been cultivated at any time. If any attempt was made for even raising trees, fruit bearing or otherwise by digging deep pits, the cost of any such attempt will be exorbitant and would not prove successful or profitable at all."
29. Mr. Sinha was of the opinion that the sites were covered by hills, the nature of soil was rocky, completely unfit for cultivation, there was no signs of cultivation and it was never cultivated at any time. In this regard, it has to be seen that the patta was granted in 1960 and the inspection took place after 15 years. Even regarding the Inspection Report, we perused the original file, wherein the plans of the lands arc available. It is not clear from the plans whether the entire extent of land was uncultivable or only a portion thereof was uncultivablc. From the plan, we found that the streams or hillocks are seen and these are not throughout the stretch of the land. It was after a lapse of 15 years, site inspection took place and the same cannot be relied on to come to a firm conclusion that the entire land is non-cultivable lands. The report in 1960 submitted by the subordinate Revenue officials clearly indicate that was a ryoti land and that it was capable of cultivation. It cannot be said that any information was suppressed. The authorities themselves inspected the site with reference to the revenue records and furnished the information in Appendix. Therefore, the situation of the site as available on the date of the confirmation of the patta is to be taken into consideration. The land was admittedly kept fallow for various reasons and the lands were not developed for the reason that they were under the land acquisition. There was every possibility of changes in the surface and soil of the land. Therefore, basing totally on the report of Mr. Sinha and finding that it was a rocky land with ravines and stream-cuts, it would be unsafe to come to a conclusion that the fraud was played and misrepresentation was made. The question of misrepresentation by the beneficiaries would not arise at this information was available with the Revenue officials themselves. It is not the case that the officials colluded with the beneficiaries for extraneous considerations.
30. Coming to the issue of relationship between the landholder and the grantee, it is true that a wrong picture was given that the assignee is a distant relative. Sivaramadas is a close relation - "sambandhi' of the estate holder, though not a member of the family. Though there is certain amount of suspicion in this regard, there is no material on record to show that the landholder or the assignee made a wrong statement about their inter se relationship before the settlement or Revenue authorities. The assumption of the enquiring officials that grantee Sivaramadas was distantly related to the estate holder may be based on a defective enquiry or hear-say. The finding that there was a suppression or misrepresentation by the beneficiary, is not a safe conclusion that could be reached at this point of time. When a fraud is alleged or misrepresentation was alleged to have been made by the beneficiary, it must be conclusively proved and mere suspicion cannot take place of proof.
31. The meaning of 'Fraud' as per Tomlin 's Law Dictionary is as follows:
"It is deceit in grants and conveyances of lands, and bargains and sales of goods etc., to the damage of another person which may be either by suppression of the truth, or suggestion of a falsehood."
32. The "Fraud" in Black's Law Dictionary is explained as follows:
"An intentional perversion of truth for the purpose if inducing another in reliance upon it to part with some valuable things belonging to him or to surrender a legal right. A false representation of a matter of fact, whether by words or by conduct, by false or misleading allegations, or by concealment of that which should have been disclosed, which deceives and is intended to deceive another so that he shall act upon it to his legal injury. Anything calculated to deceive, whether by a single act or combination, or by suppression of truth, or suggestion of what is false, whether it be by direct falsehood or innuendo, by speech or silence, word of mouth, or look or gesture. Delahanty v. Fist Pennsylvania Bank, N.A. 318 Pa.Super, 90 464 A.2d 1243, 1251. A generic term, embracing all multifarious means which human ingenuity can devise, and which are restored to by one individual to get advantage over another by false suggestions or by suppression of truth and includes all surprise, trick, cunning, dissembling and any unfair way by which another is cheated. Johnson v. McDonald, 170 Okl. 117, 39 P.2d 150. 'Bad faith' and 'fraud' are synonymous, and also synonyms of dishonesty, infidelity, faithlessness, perfidy, unfairness, etc. Elements of a cause of action for 'fraud' include false representation of a present or past fact made by defendant, action in reliance thereupon by plaintiff, and damage resulting to plaintiff from such misrepresentation. Citizens Standard Life Ins. Co. v. Gilley. Tex. Civ. App., 521 S.W.2d 3540 356.
As distinguished from negligence, it is always positive, intentional. It comprises all acts, omissions, and concealments involving a breach of a legal or equitable duty and resulting, in damage to another. And includes anything calculated to deceive, whether it be a single act or combination of circumstances, whether the suppression of truth or the suggestion of what is false, whether it be by direct falsehood or by innuendo, by speech or by silence, by word of mouth, or by look or gesture. Fraud, as applied to contracts, is the cause of an error bearing on a material part of the contract, created or conginued by artifice, with design to obtain some unjust advantage to the one party, or to cause an inconvenience or loss to the other."
33. Considering the facts and circumstances of the case, we find that alleged fraud or misrepresentation in grant of patta is not established. It is also contended by the learned Government Pleader that non-ryoti land is prohibited from grant of patta. As we see from Section 11 proviso, it does not create any such bar.
34. In Anyam Salti Raju v. Sri Ragha Venkata Mahipathi Gangadhara Rama Rao Bahadur, 1956 (69) An.WR 156, the Division Bench of this Court held that the expression "any land" is of a wide import and applies to both kinds of lands ryoti as well as non-ryoti. In the said case, the question arose whether the suit land was ryoti land in respect of which the defendant could obtain occupancy right. The suit land was described as 'padugat land'. The Division Bench held that padugal land was the bit of land between the bed of the river and the embankment of the high flood level bank. It does not by itself indicate whether it is a ryoti or non-ryoti land, and the nature of the land has to be decided with reference to the provisions of the Madras Estates Land Act. Even the Government issued G.O. Ms. No.95, dated 13-1-1960 in which it was clearly stated that although proviso referring to "any land" includes the land which is non-ryoti, communal or forest at the time of assignment, yet, discretion vested in the Government under the proviso can only be exercised in case wherever such non-ryoti, communal land has been lawfully assigned by the landholder in accordance with the provisions of the Act i.e., where the assignment made by the landholder otherwise satisfies provisions of the Act. The Government clarified that 'any land' referred to in the proviso to Section 11 was of a wide import and applies to both kinds of lands ryoti as well as the non-ryoti (which was included or ought to have been included in a holding before a notified date) as also ryoti lands of clause (a) of Section 11 and lanka lands of clause (b) of Section 11. The report of Settlement officials disclosed that the lands are capable of cultivation. It may be that there are some patches of land covered by hillocks, ravines and streams which could not be cultivated, but that does not by itself suggest that the entire stretch of land is non-ryoti land. The fact that all the physical features of land are not noted by the inspecting officials, will not constitute misrepresentation on the part of the landholder or assignee nor does it necessarily follow that the officials concerned played fraud with the collusion of parties for extraneous reasons. The Commissioner cannot rely on the subsequent inspection note of Mr. Sinha prepared after 14 years and the statement of Revenue officials recorded at that time or the faclum of non-cultivation to conclude that fraud has been played by the grantor or grantee, even without alleging that the hand of officials was behind it. The learned Counsel for the petitioner takes the assistance of the judgment reported in Linga Reddy v. Director of Settlement, 1997 (I) APLJ 41 (SN). The learned single Judge of this Court held that the agriculture includes pasturage and the mere fact that the land is not cultivable though it is capable of cultivation on account of the adverse seasonable conditions or some other conditions it does not cease to be the land capable of cultivation. The land used for pasturage purpose does not cease to be an agricultural land, or ryoti land. No inference that patta granted to the petitioners are not genuine can be drawn from the mere fact that a part of the land was used for pasturage. The learned Judge referred to Anyani Satti Raju's case (supra).
37. We may mention that there is no legal bar against the grant of patta under proviso to Section 11 to a close relation of landholder. However, where close relations are involved, the Government wanted to check collusive or sham transactions in order to escape from the clutches of the Act. That is the reason why the power is confined to higher authority viz., Board of Revenue to grant pattas where close relations are involved vide delegation of powers under the Rules made under Section 67(1) and (2) regarding the powers of the Government published in Fort St. George Gazette, Rules Supplement to Part 1, dated 16-8-1949, the Board of Revenue is empowered to deal with the cases of assignment made by a landholder to any member of his family or other relatives for the purpose of grant of patta under the proviso to Section 11. Even on the factual side, there is no material that the settlement officials were mislead by any statement given by the landholder or the
38. Thus, the finding of the Commissioner that it was uncultivable and non-ryoti land cannot be sustained at this point of time.
39. With regard to palta in respect of Smt. T. Venkubayamma is concerned, it was observed by the Commissioner that she was none-else than the daughter of the landholder who was not in need of the land assigned and that the land was of rocky soil and unfit for cultivation and therefore never cultivated. Here also fraud and misrepresentation is alleged. The proximity of the patta and the sale deed was also taken as one of the grounds. It is said to be a clandestine transaction. The Tahaildar raised following grounds in the review petition:
"1. The assignment secured by the 1st respondent is vitiated under law and fact for the reason that the assignee must have and did mislead the Government employees and the then Settlement Deputy Tahsildar about her being dependent on those lands and the assignment being a bona fide one even though she was related.
2. The conclusion by the erstwhile Settlement Deputy Tahsildar about the assignment as a bona fide one and not to benamidar is the direct result of suppression of facts and "a mistake of fact" amounting to practising fraud on the subordinates of the Government - both the Special Deputy Tahsildar and Assistant Settlement Officer, who recommended on the basis of incorrect statements made by the assignee, who naturally was interested in getting the assignment in her favour.
3. The assignment under 11 proviso was also not contemplated with respect to lands of the nature in question as this particular land is unfit for cultivation and is rocky soil.
4. It is submitted that the Board of Revenue has every power to review such orders obtained by a "mistake of fact" and fraud evidently practicised by the parties and therefore the orders in BP Rt.4455/60 dated 8-9-1960 are liable to be set aside. There is no question of limitation under Section 17 of the Limitation Act"
40. With regard to the nature of the land and its topography with reference to the report of Mr. Sinha, the issue was already dealt with in case of Mr. Sivaramadas. Therefore, they need not be repeated in this case. The Report sent by the Assistant Settlement Officer to the Board of Revenue on 14-9-1963 and some of the extracts from the appendix, are as follows:
"(1.a) District - Visakhapatnam (b) Taluk: Visakhapatnam
(d) Village: Allipur village extension Estate: Allipur
2.(a) Survey number of Paimash:T.S.No.1/1 Block No. 1 Number.
(b) What was the classification prior to the assignment and what is the present description wet, dry or poromboke and local name, if any: Dry - present and past.
(c) Extent if unserved. extent according to local standards and approximate extent in acres and cents: Ac. 18-25. If surveyed in acres and cents.
(d) If it is a cultivable and not falling under the description of communal poramboke forests and the like. Furnish the present extent, which is fit for immediate cultivation. Is it required for any communal purpose? If so, for what purpose? If the field is close to an irrigation source. Is it liable to submersion and has the technical opinion of the minor Irrigation overseer as to whether that is required for tank purpose or not been obtained? (Copy of that opinion with a topo sketch should be enclosed) :
It is a cultivable land not falling under the description of a communal poramboke, the entire area is fit for immediate cultivation. It is not required for any communal purpose. It is not close to any irrigation source.
(e) At the time of assignment was it ryoti or non-ryoti?: It was ryoti at the time of assignment.
(f) Has there been any violation of (he provisions of either the Madras preservation of private Forests Act XXVII of 1949? Or Act XIV of 1947?: No.
(g) What is the purpose for which it was assigned: For purposes of cultivation.
3. Name of the Assignee: Tripasuri Venhibayamma W/o Syamal Rao.
4. How long has he been in possession of the land? Since the date of grant.
5.(a) What are the circumstances under which he was admitted into possession of the land ? : The assignee is a zeroyali tenant of the estate and obtained this land on application.
6. (a) Is the assignment bona fide (i.e.)., was there any favouritism sale for a higher consideration to a speculator and the like?: Yes; No favouritism or rate for a higher consideration. Please see remarks against Col. 12 also.
7. Has the normal procedure is vogue in the estate prior to 1st July, 1945 been followed: Yes.
8. Does the land continue to be in the possession of the assignee or his heirs?: Yes
9. If it has been alienated:-
(A) The name of the present owner and his status.
(b) Date of alienation.
(c) by sale or otherwise
(d) for what amount
(e) has a copy of the document relating to such alienation been enclosed with a list and description of other lands owned by the alienor and alienee? Not alienated.
10. Have any objections been raised by the ryots and if so,, what are they: No objections.
11. Was any improvement effected after assignments? If so, specify their nature and estimated cost.: Some reclamation was done.
12.Remarks of the Settlement Tahsildar or Deputy Tahsildar?: Please see separate sheet enclosed. Remarks of the Assistant Settlement Officer.
13. Orders of the Board:
Q.No.12. Remark of the Self lenient Dy. Tahsildar:
The land holder assigned after 1-7-1945, an extent of Ac.18-25 of dry land in Allipur Village to one Tripasuri Venkubayamma w/o Syamalarao. The land was ryoti at the time of assignment and the assignee has been in possession and enjoyment of the land assigned ever since assignment. She has been regularly paying land revenue to the Government.
The assignee is the daughter of the Managing Proprietor of the estate. The estate is owned in four shares, one out of which belonging to the Managing proprietor. The assignee i.e., his daughter is already a /eroyati tenant of the estate, and has been enjoying the lands herself. She is not living with her father now and is dependent on these lands alone; do not think that she is a benami for her father and therefore this is not a case of assignment in any fictitious manner with the idea of estate reverting the land to the landholder himself. In view of these facts, and in view of the orders of the Government, I recommend that the grant may be confirmed. The record of enquiry of 21 Pages is enclosed.
Sd/-
Settletnent Dy. Tahsildar, Visakhapatnam
14. Remarks of the Assistant.
"I agree with the Settlement Deputy Tahsildar. The assignment made by the landholder seems to ryotwari patta may be issued in favour of the assignee."
The statements of Smt. T. Venkubayatwna, Village Officer and landholder were recorded and the patta granted to the landholder was also enclosed to the report apart from village accounts.
42. As can be seen from the report, the relationship between the landholder and Smt. T. Venkitbayamma already mentioned in the report stating that she was daughter and living separately. Therefore, the question of suppression of facts of relationship would not arise. Moreover, the Board is the final authority for approving the ryotwari patta. But, in the instant case, all the relevant facts including relationship and the nature of land were available before the Board and yet they have decided to confer patta. Therefore, the question that the fraud was played and suppression of facts was resorted to by the beneficiary and the landholder would not arise. The information was available with the Board and they were aware of the relationship and having full knowledge, the authorities have granted patta. The only point which is sought to be put against her is that she was in fact not depending on the lands which were unculminated. But, it is difficult to establish the state of facts at the time of assignment. No reliable material Is brought to the light that the assignee misrepresented about her dependency. In fact, she was tenant as per the records and she was in continuous possession. Hence, it cannot be said that there is a misrepresentation or suppression of facts either by the landholder or the assignee.
Re: Assignment of land in favour of Smt. Ramanamma:
43. The land was initially assigned to one Mr. Maddala Maduramrutha Rao.
The draft report submitted by the Assistant Settlement Officer to the Board on 10-12-1957 necessary particulars were furnished in the appendix which are extracted below:
"I. (a) District : Visakhapatnam.
(b) Taluk : Visakhapatnam.
(c) Estate : Chemudu etc. Estates.
U.T.Estate in Vzm.
(d) Village : Marripalem.
2. (d) Is it a cultivable and not falling under the description of communal Porambokes forests and the like. Furnish the present extent which is fit for immediate cultivation. Is it required for any communal purpose. If so, for what purpose? If the field is close loan irrigation source. Is it liable to submersion and has the technical opinion of the Minor Irr. Overseer as the whether the land is required for tank purpose or not been obtained.
(Copy of that opinion with a topo sketch should be enclosed):
It is a cultivable land not failing under the description on of communal poramboke. Forests and the like. The entire extent is not fit for immediate cultivation. Reclamation is necessary. The land is not required for any communal purposes. It is not close to any irrigation source nor liable to submersion.
(e) At the time of assignment, was it ryoti or non-ryoti: Ryoti land
(f) Has there been any violation of the provision of either the Madras Preservation of Private Forests Act, XXVII of 1949 or Act XIV of 1947: No.
(g) What is the purpose for which it was assigned: Forest agricultural purposes.
3. Name of the Assignee: Sri Madaala Madhumrutha Rao s/o. Subbarayudu of Visakhapatnam.
4. How long has he been in possession of the land: Since 1950, the date of assignment.
5. (a) What are the circumstances under which he was admitted into possession of the land: The assignee applied to the Estate. He paid Nazarana Rs.l35-l!-3 to the landholders and obtained patta bearing.
(b) What is the extent of other lands owned by him if any.
6. Is the assignment bonafide (i.e.) was there any favouritism, sale for a higher consideration to a speculator, and the like.
The assignment is bonafide.
(b) Is the resident of the Village or the taluk: Resident of Visakhapatnam.
8. Does the land continue to be in the possession of the assignee or his heirs.
The land continues to be in possession of assignee.
10. Have any objections been raised by the plots, and if so, what are they : No
11. Was any improvement effected after assignment, If so. specify their nature and estimated cost.
No improvements made by the assignee. The land has not been brought under cultivation.
12. Remarks of the Settlement Tahsildar or Dy. Tahsildar:
'I have inspected land In question. It has not been brought under cultivation. It is still left waste as banjar. The assignee has not paid the subsequent cists. Copies of the patta and assignment order filed by the assignee are enclosed. The land was ryoti, at the time of assignment. It has not been alienated. It continues to be in the possession of the assignee only, as no body else occupied it. The assignment file may be obtained from the Managers" Office(Vizianagaram) recommended for confirmation.
Sd/-
P. Suryanarayana, Settlement Dy. Tahsildar.
Dated: 14-10-1957.
13. Remarks of the Asst. Settlement Officer:
The land in question is a dry banjar as per village accounts. It is cultivable. But it was never cultivated so far. The assignee has produced the original patta and a copy of the assignment order. The copies of these two document are enclosed. The original assignment file is not available:
The land was never cultivated by the assignee. He has also not paid the revenue on this land after it was assigned in his favour. He has not invested any amount for reclaiming it. As the assignment file is not available, it cannot be said whether the assignment was bonafide. But it is seen that the assignee is not earnest about its cultivation, as otherwise he would not have left it waste, without paying land revenue on this land ever since it was assigned in 1950. This land is part and parcel of the plot covered by S.R. II. Pro.IIVSP apply to this plot also. There is also a "gedda" in this land. Hence Ryotwari patta may be refused for this land also.
Sd/-
Assistant Settlement Officer""
Along with the recommendations of the Assistant Settlement Officer, true copy of the patta assignment order, statement of Maddala Madhuramrutha Rao dated 13-10-1958 and 15-10-1957, the statement of Village Officer and Munsif were also enclosed. In the statement he had clearly stated that he did not raise any dry crop as he was spending money on the education of the children and that he intended to reclaim in next year. This property was purchased by Ramanamma on 4-9-1961 from the assignee. Basing on the said assignment, the patta was granted in favour of Ramanamma, while the matter of assignment was pending with the Board of Revenue. After purchasing, she filed an application to the Assistant Settlement Officer to grant ryotwari patta in her favour. The Assistant Settlement Officer sent report on 15-11-1961 recommending the assignment for grant of ryotwari patta in favour of Ramanamma. Basing on the report of the Assistant Settlement Officer dated 10-11-1957 and 15-11-1961, the Board of Revenue granted ryotwari patta in BP Rt. No.208/62, dated 12-1-1962. The review was filed with the following grounds:
"1, The order under Section 11 Pro is vitiated by conflicting reports of the two Assistant Settlement Officers dated 15-10-1957 and 15-11-1961. About the assignment under Section 11 pro, the Assistant Settlement Officer who recommended the patta in 1961 ignored the circumstances and facts brought to the notice pf the Assistant Settlement Officer by petitions dated 7-8-1961 and even earlier on 24-9-1959, which clearly bear out that the Vendor (M Madhuramrutha Rao) of the respondent could have never had any possession as to entitle him to a patta under Section 11 Pro. Evidently there must have been misrepresentation of facts. Consequently on a mistake of fact, the Board was pleased to approve the recommendation of the second Assistant Settlement Officer in the year 1961.
2. Patta obtained was also illegal and suffers from infirmities of not satisfying the provisions as contemplated in S.M Pro. of E. A. Act.
3. The circumstances of the patta having been propitiated, fulfilled and got finalised by the concerned apparently is hallow and seems to have been engineered by interested parties for securing beneficial positions to the respondents' vendees in a short time and apparently defective and based on unacceptable record.
4. It is also submitted that there is some fraud practiced on the authorities in suppressing the concerned record and these have come to light recently which are so very transparent that they established a circumstance which the Board may be pleased to consider and cancel the pattas reviewing the entire case for the reasons above submitted and to be further submitted at the time of hearing."
The Commissioner found from the report of the Assistant Settlement Officer dated 15-10-1957 that the entire extent was not fit for cultivation, the land was not brought under cultivation it is full of gravel and rock. Original assignment was not available. In the subsequent report dated 15-11-1961 of the Assistant Settlement Officer, it was found that no reclamation was undertaken and the cultivation was not done and that in 1962, the assignee herself filed a petition to the Collector requesting for delivery of possession that Maddala Mddwamrutha Rao was an Ex-estate employee that it was not provided that the said land was cultivable without undue expenditure. Therefore, he found that they are non-ryoti lands and hence they are incapable of beings granted patta. Therefore, the Commissioner allowed the review petition.
44. As already extracted above the full report of the Assistant Settlement Officer in 1957 and 1961 was not considered. Only the Commissioner picked up certain portions and recorded the findings that it is a non-ryoti land. The nature of the land, topography of the land, and the cultivability of the land were all brought out in the report of the Assistant Settlement Officer in 1957 and 1961. Merely because they were not brought under cultivation, it cannot be a ground to contend that there was a suppression of fact or misrepresentation. Even the original assignee Madummrutha Rao stated that he did not cultivate the same for lack of sufficient funds and he was concentrating on the education of his children. Thus, we find there was no material at all before the authorities to come to a conclusion that the land was non-ryoti land. More over, grant of non-ryoti land was not legally prohibited as observed by us. Under these circumstances, it has to be held that the review undertaken by the Commissioner on the ground that there was a suppression and the fraud is wholly unsustainable.
45. The Commissioner referring to the award in land acquisition OP No.1/78 dated 14-10-1978 found that Smt. Manthena Ramanamma has sold various extents to various persons including M.T. Raju in the year 1972 and that she was residing in the house of M.T. Raju when a notice in the review petition was sent to her. On this basis, and also referring to the statement of Revenue Officer that M. Ramanamma was only a name holder and benami to one high official in the Board of Revenue as a Member of Revenue Secretary, he held that there was reasonable doubt of misusing a benami holder for high official. This finding also does not stand to scrutiny inasmuch as the patta was granted in 1960 and the lands in various bits were sold to various persons including Mr. M.T. Raju in 1972. Moreover, it was not one of the grounds of Review Petition. Therefore, the finding that she was holding land benami for a high official in the Government cannot be sustained.
46. The learned Counsel for the petitioner further submits that the order granting patta in favour of Ramanamma in respect of 73 acres was subject matter of the revision before the Government at the instance of some of the villagers and Tahsildar. The Government entertained the revision and considered the matter with reference to the allegations made therein and the Government refused to cancel the patta in proceedings No.1987-3/62, dated 4-9-1962. The learned Counsel for the petitioner submits that the allegations which were brought before the Government by the villagers or Tahsildar for cancelling the patta are similar and identical in present review petition filed by the Tahsildar. When once the order was passed by exercising the power of the revision by the Government against the orders of the Board of Revenue granting patta, the order of grant merges in the later order passed by the Government and therefore, it would not be open again for the Commissioner to review his own order when it has become final under the revisional proceedings before the Government. Thus, on the basis of the principle of merger, the Commissioner is estopped from again entertaining review and passing appropriate orders. If at all, the Government should have reviewed Its decision. Even on this ground also, the order impugned in WP No. 12665 of 1997 is not sustainable as the Government after exercise of the power of the revision confirming the order of the Board, the Board cannot have independent power to review such an order. In Sinadhu Mallappa v. Board of Revenue, 1996 (1) An.WR. 157, the learned single Judge of this Court held that the Board of Revenue, once it has passed an order under the proviso to Section 11 of the Madras Estates (Abolition and Conversion into Ryolwari) Act, granting patta to tlie petitioner, it has become functm officio and no power of revision is vested in it and unless it be on grounds of fraud, misrepresentation or other similar grounds, it would not review its own order. Here, we arc faced with a case of review on the ground of fraud, misrepresentation, or suppression. The [earned Government Pleader relied on this judgment to contend that granting of patta is an administrative order and even in case of administrative orders, those orders can be reviewed on the grounds of fraud, misrepresentation and other grounds well recognised as justifying the selling aside of the orders or documents. There is no dispute about this proposition and we have proceeded only on the basis of the allegation that the authorities have entertained the review on the ground of fraud, misrepresentation or suppression.
47. It is to be noted in this regard that consequent on the patta having been granted in favour of the petitioner by the Board in proceedings dated 12-1-1962, Saghi Banumathi Devi and others of Marripalem village filed revisions to the Government stating that the assignment made in favour of the petitioner was mala fide, bogus, nominal. It was also alleged that (1) the lands in question were rocky, banjar unfit for any cultivation and therefore not ryoti; and (2) the original assignee Sri Maddala Madhuramrutha Rao never occupied the land and never paid any rent to the estate; and (3) that the nazarana paid by the assignee to the estate is nominal uncompared to the extent.
48. The Government considered the above revision in consultation with the Board of Revenue and came to the conclusion that there was nothing on record to doubt the bona fides of the transaction. Para 2 of the order is extracted below:
"The Government have carefully examined the above contention of the revision petitioner in consultation with the Board of Revenue and with reference to the connected records. In 1950, the landholder of Chemudu caste assigned an extent of Ac.9-00 in S.No.140 and another extent of Ac.67-13 in S.Nos. 149 to 153 in Marripalem village of Visakhapatnam taluk, Visakhapatnam district to Sri Maddala Madhuramruta Rao. The estate was taken over by the Government in 1953. The landholder granted patta No.85 dated 30-11-1950 for Ac.67-13 with an assessment of Rs.74-77 and patta No.86 dated 30-11-1950 for Ac.9-05 with an assessment of Rs. 10.06 on payment of Nazarana at 15 times of the rent. The Assistant Settlement Officer, Anakapaili has reported that the land is cultivated and therefore ryoti. After the death of the original assignee, Sri Maddala Madhitramruta Rao, his legal heirs sold the lands in question in 1961 to Smt. Matithana Ramanamma for valuable consideration through a registered sale deed. The lands are reported to be under the occupation of the alienee Smt. Ramanamma ever since. The patta granted by the landholder and the correspondence in the estate records relating to this assignment clearly establish that the normal procedure in vogue in the estate for grants of patta had been followed. The Government, therefore, consider that there is nothing on record to doubt the bona fides of the transaction.
According to the decision in MLJ 977 of 1938 (2) mere non-payment of rent for non-cultivation of land does not affect the status of a person as a ryot if it is proved that he is liable to pay rent and entitled to cultivate the land. Both the Assistant Settlement Officer, who originally submitted the proposals under the proviso to Seclion 11 of the Act and the Assistant Settlement Officer, who subsequently answered certain points raised by the Board of Revenue have reported that the lands are ryoti and that it is established from the records beyond doubt that the original assignee was admitted into possession of these lands as a ryot liable to pay rent and valid pattas were also granted to him by the landholder. The assignees, therefore, entitled to cultivate the land as a ryot. The connected disposal of the Board of Revenue reveals that there is nothing irregular in confirming the patta granted by the landholder as it was done after due and proper examination of the case. The pattas were granted three years prior to the taking over of the estate and the procedure is vogue in the estate was followed in granting these pattas. The Government, therefore, observe that the assignment made by the landholder cannot be said to be not bona fide and accordingly reject the revision petition. The orders in B.P. Rt. No.208/62, dated 12-1-1962 are confirmed."
Thus, it is seen that the Government reconsidered the entire matter with reference to the objections made by the villagers an confirmed the grant of patta in favour of the petitioner.
49. Since the revision filed against the order of the Board of Revenue was dismissed and the very same contentions were considered by the Government, the earlier order of the Board of Revenue merges with the later order of the Government and it would not be open to again review the order by the Board of Revenue more so when the higher authority confirmed the order. The principle of merger squarely applies to the facts of this case.
50. The revision was filed by the third parties in 1962 aggrieved by the order granting patta in favour of the petitioner and the said revision was considered by the Government and affirmed the patta granted by the Board of Revenue. Thereafter, a review was filed by the Tahsildar before the Board of Revenue seeking to review the order granting patta in favour of the petitioner. When once the order granting patta was confirmed by the Government in exercise of its revisional powers, the order of the Board gets merged in the order of the Government. Thus the review itself as filed by the Tahsildar is wholly misconceived and not maintainable under the law. Further, the review was filed by the Tahsildar on the very same grounds similar to those that were raised by the revision petitioners as early as 1962 and the Government having considered the matter once again confirmed the patta. Under those circumstances, even on merits also, no case is made out by the Tahsildar for review. The findings of the Government have become final as early as 1962 and therefore even on the merits also no case is made out to interfere with the order granting patta in favour of the petitioner.
50. Therefore, on this ground also, the order of the Board reviewing the ryotwari patta granted to the petitioner is wholly unsustainable and incompetent.
51. For the aforesaid reasons, all the writ petitions are allowed and cancellation of ryp1 otwari pattas granted in favour of I. V. Sivaramadas, Smt. T. Venkubayamma and Smt. Ramanamma are held illegal. No costs.