B Indiramma Vs the State of Andhra Pradesh

B INDIRAMMA, W/O.LATE B.RAJAREDDY, AGED ABOUT 71 YEARS, OCC. CULTIVATION, PRESENTLY RESIDENT OF D.NO.19-9-51/6A, 1ST FLOOR, KENNEDY NAGAR, TIRUPATHI, TIRUPATHI DISTRICT.

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B. VENKATA SUDHEER REDDY,, S/O. LATE B RAJA REDDY,AGED ABOUT 41 YEARS, OCC. CULTIVATION, PRESENTLY RESIDENT OF D.NO.19-9-51/6A, LST FLOOR, KENNEDY NAGAR, TIRUPATHI, TIRUPATHI DISTRICT.

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B.MENAKA,, D/O.LATE B.RAJA REDDY, AGED ABOUT 45 YEARS, OCC. CULTIVATION, PRESENTLY RESIDENT OF D.NO.19-9-51/6A, LST FLOOR, KENNEDY NAGAR, TIRUPATHI, TIRUPATHI DISTRICT.

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KALIMILI KOTESWARA REDDY, , S/O. K.GANGI REDDY, AGED ABOUT 61 YEARS, OCC. CULTIVATION, R/O. CHAPALAPALLI VILLAGE, DAKKILI MANDAL, TIRUPATHI DISTRICT.

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K MANOHARAMMA,, W/O. A. KARUNAKARA REDDY, AGED ABOUT 51 YEARS, OCC. CULTIVATION, RIO. D.NO.10-85, KRISHNAGIRI COLONY, CHINNA ANJ IMEDU, YERPEDU MANDAL, TIRUPATHI DISTRICT.

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U.SUBRAMANYAM,, S/O.U.VENKATA KRISHNAIAH, AGED ABOUT 49 YEARS, OCC. CULTIVATION, R/O. URANDURU VILLAGE, SRI KALAHASTHI MANDAL, TIRUPATHI DISTRICT.

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...PETITIONER(S)

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AND

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THE STATE OF ANDHRA PRADESH, REP. BY ITS PRL. SECRETARY, REVENUE DEPARTMENT, SECRETARIAT, VELAGAPUDI, AMARAVATHI, GUNTUR DISTRICT

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THE JOINT COLLECTORCUMSETTLEMENT OFFICER, TIRUPATHI,

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TIRUPATHI DISTRICT.

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THE TAHSILDAR, SRIKALAHASTI MANDAL, TIRUPATHI DISTRICT

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N PARANDHAMA REDDY VISHNU, S/O. LATE N.THIRUPAL REDDY, AGED ABOUT 34 YEARS, OCC. CULTIVATION, R/O. URANDURVILLAGE,SRIKALAHASTI MANDAL, TIRUPATHI DISTRICT ...RESPONDENT(S):

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Petition under Article 226 of the Constitution of India praying that in the circumstances stated in the affidavit filed therewith, the High Court may be pleased to issue an appropriate Writ, Order or direction more particularly one in the nature of Writ of Mandamus declaring the impugned Proceedings, Endorsement made in L.Dis.F2/1937/2022, dated 29.09.2022 on the file of the Court of the Joint Collector-CumSettlement Officer, Tirupathi, Tirupathi District, the 2nd respondent herein, as illegal, unjust, arbitrary, contrary to law, void, malafide, violative of the provisions of Andhra Pradesh ( Andhra Area) Estates ( Abolition and Conversion into Ryotwari) Act, 1948 violative of Articles 19, 21 and 300-A of the constitution of India, violative of principle of natural justice, and to quash the same and consequently the 2nd respondent be directed to entertain the claim Application of the petitioners made under Sec. 11 (a ) of the Andhra Pradesh ( Andhra Area) Estates ( Abolition and Conversion into Ryotwari) Act, 1948 and to consider and dispose of the same, by granting Ryotwari patta, in accordance with law.

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Counsel for the Petitioner(S):

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1.S V MUNI REDDY

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Counsel for the Respondent(S):

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1.GP FOR REVENUE

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2.V SUDHAKAR REDDY

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The Court made the following:

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ORDER:

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The present Writ Petition is filed under Article 226 of the Constitution of India for the following relief:

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"…….to issue an appropriate Writ, Order or direction more particularly one in the nature of Writ of Mandamus declaring the impugned Proceedings, Endorsement made in L.Dis.F2/1937/2022, dated 29.09.2022 on the file of the Court of the Joint Collector-Cum-Settlement Officer, Tirupathi, Tirupathi District, the 2nd respondent herein, as illegal, unjust, arbitrary, contrary to law, void, malafide, violative of the provisions of Andhra Pradesh (Andhra Area) Estates (Abolition and Conversion into Ryotwari) Act, 1948 violative of Articles 19, 21 and 300-A of the constitution of India, violative of principle of natural justice, and to quash the same and consequently the 2nd respondent be directed to entertain the claim Application of the petitioners made under Sec.11(a) of the Andhra Pradesh (Andhra Area) Estates (Abolition and Conversion into Ryotwari) Act, 1948 and to consider and dispose of the same, by granting Ryotwari patta, in accordance with law and pass such other orders…….”

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Shorn of all unnecessary facts, the petitioners herein made a Claim Petition under Section 11(a) of the Andhra Pradesh (Andhra Area) Estates (Abolition and Conversion into Ryotwari) Act, 1948 (for short, ‘the Act 1948’) for grant of ryotwari patta before the 2^nd respondent-Joint Collector-cum-Settlement Officer, Tirupathi. The said Claim Petition was rejected by the 2^nd respondent, vide impugned proceedings dated 29.09.2022, on the ground that as per G.O.Ms.No.400 Revenue (J) Department, dated 24.04.1993, the Joint Collector-cum-Settlement Officer has no power to entertain fresh and delayed Claim Petitions under Section 11(a) of the Act 1948 preferred after 24.04.1993 as the powers are specially excluded.

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The said proceedings dated 29.09.2022 are assailed in the present Writ Petition on the ground that the provisions of Section 5 of the Limitation Act are applicable to the proceedings under the Act 1948 and the ancestors of the petitioners are illiterates, residents of remote village and not aware of the notifications and are in bona fide impression that taking into consideration of the longstanding possession, recognizing the pre-existing rights over the lands, patta will be granted by the authorities and the petitioners are not aware of filing of the application under Section 5 of the Limitation Act and under Section 67(2)(c) of the Madras Estates (Abolition & Conversion into Ryotwari) Act, 1948, applying the provisions of the Limitation Act for the purpose of proceedings under the Act and in view of the same, the 2^nd respondent ought to have entertained the Claim Petition by holding that the Limitation Act has application, as the said rule specifically contemplates that Sections 4, 5, 12(1)&(2), 17(1) and 18 of the Limitation Act, 1908, shall apply to the proceedings of the Act. Further, it is asserted that there is no proviso in the Act of 1948 that excludes the application of Section 5 or other provisions of the Limitation Act in any forum. Therefore, the primary authority erred in not entertaining the Claim Petition, and the impugned order is illegal, arbitrary and contrary to the judgment of the erstwhile High Court in Gandham Vajramma and others Vs. Commissioner of Survey, Settlements and Land Records, Hyderabad and others reported in 2005(5) ALT 85 (S.B.), wherein a learned Single Judge of the erstwhile High Court held that Section 5 of the Limitation Act is applicable to all the proceedings which arise under the Act 1948 and the same has to be considered on merits.

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Learned counsel appearing for the petitioners argued that the 2^nd respondent ought to have been directed the petitioners herein to file an application under Section 5 of the Limitation Act, instead of rejecting the Claim Petition with an impugned endorsement. Therefore, it is argued that this amounts to violation of principles of natural justice and that the decision of the 2^nd respondent is perverse. Consequently, prayed to set aside the impugned proceedings dated 29.09.2022 and to remand the matter for a decision on merits to take decision on the Claim Petition, allowing to file a petition under Section 5 of the Limitation Act, before the 2^nd respondent.

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The 2^nd respondent-Joint Collector-cum-Settlement Officer has filed a counter affidavit denying all the averments made in the affidavit filed in support of the Writ Petition and reiterating the finding in the impugned order and stated that the village of the petitioners was notified as Inam Estate under the provisions of the Act 1948, and taken over by the Government, vide G.O.Ms.No.2210 Revenue dated 01.08.1952, and published in Fort St. George Gazette dated 13.08.1952 and page No.3048 of Part-1 of the Andhra Pradesh Gazette dated 11.12.1958. The notification under Section 13 of the Madras Survey and Boundaries Act VIII of 1923 was published at page No.56 of the Chittoor District Gazette dated 20.11.1967. The petitioners or their ancestors were never raised their objections during the survey settlements operations and they were not filed any Claim Petition before the Settlement Authorities for grant of ryotwari patta at any point of time. They are chosen to submit their claim only in the year 2022 after lapse of nearly five decades which was grossly belated and legally impermissible and

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the petitioners’ claim, having been made decades later, is clearly barred. As per G.O.Ms.No.400, Revenue (J) Department dated 24.04.1993, categorically withdrawing the powers of the Joint Collectorcum-Settlement Officer to entertain delayed claims under Section 11(a) of the Act 1948 filed after 24.04.1993. Hence, prayed to dismiss the Writ Petition.

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The 4^th respondent unofficial respondent has filed counter affidavit and stated that he is the absolute owner, pattadar, possessor and enjoyer of the lands in Sy.No.169/1 to an extent of Acs.4.76 cents and in Sy.No.177/2 to an extent of Acs.4.98 cents of recorded in Narayanapuram village accounts. As far as the land to an extent of Acs.4.76 cents in Sy.No.169/1 is concerned, it is a private patta land and the same was sold by the 1^st petitioner, to the vendors of the petitioner’s mother, vide registered sale deed Doc.No.912/1979 dated 24.06.1979. And the petitioner’s mother Smt. N.Chenchulakshmi has purchased the above said land along with other lands, vide registered sale deeds Doc.Nos.1575/1984 dated 21.11.1984, 235/1985 dated 13.03.1985 and 20/1987 dated 05.01.1987 respectively and the 4^th respondent has inherited the properties by way of succession after the death of his mother and the 4^th respondent has become the absolute owner and further stated that the above reported judgment is not applicable to the present facts of the case, in the said case an application was filed to condone the delay, in the present case no application is filed, hence stated that the above cited judgement is not applicable to the facts of the case, hence, prayed to dismiss the Writ Petition.

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Heard learned counsel Sri S.V.Muni Reddy, for the petitioner, and Sri V. Sudhakar Reddy, for the 4^th respondent and Government Pleader of the official respondents.

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POINT FOR CONSIDERATION:

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Whether the 2^nd respondent is right in rejecting the Claim Petition filed for grant of ryotwari patta on the ground, no application for condonation of delay under Section 5 of the Limitation Act has been filed?

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The limitation that is provided under the proviso to sub-rule (4) of Rule 2 of the Rules made under Section 67 r/w Section 11 of the Act 1948 was omitted vide G.O.Ms.No.400 dated 24.04.1993. However, a learned Single Judge of the erstwhile High Court has held that Section 5 of the Limitation Act is applicable to all the proceedings which arises under the Act 1948 in an order in Gandham Vajramma and others Vs. Commissioner of Survey, Settlements and Land Records, Hyderabad and others reported in 2005(5) ALT 85 (S.B.).

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Now the point for consideration is, whether the 2^nd respondent was justified in rejecting the petition vide impugned proceedings on the ground of delay and failure to file an application under Section of 5 of Limitation Act, and whether this rejection amounts to violation of principles of natural justice as argued by the learned counsel for the petitioners.

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In Gadde Krishna Murthy and others Vs The Mandal Revenue Officer reported in 2015 (3) ALD 316 His Lordship Justice Sanjay Kumar, referring to the provision of the A.P. Estate (Abolition and

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Conversion into Ryotwari) Act, 1948 and Madras Estates (Abolition and Conversion into Ryotwari) Act, 1948 (Madras Act XXVI of 1948):- and the relevant portion in the said judgment is extracted in the following : In this regard, the learned counsel for the petitioners would place reliance on BASHEERUNNISA BEGUM (DIED) PER L.RS. v. MEER FAZEELATH HUSSAINI (DIED) PER L.RS. , and more particularly paragraph-28 thereof. Therein, this Court was concerned with the question whether a formal application was necessary for condonation of delay. Referring to earlier decisions of various High Courts, the learned Judge held that the language of Section 5 of the Limitation Act did not expressly or by necessary implication mandate the filing of a written application to obtain relief under the said Section; that it vested judicial discretion in Courts to exercise their inherent power and excuse the delay even on an oral application having regard to the circumstances of a particular case. Reference was also made to a Division Bench judgment of this Court in C.V.G.CHOWDARY v. DOPPALAPUDI SESHAIAH , wherein it was held that it is not necessary that there should be a formal petition to excuse delay and it is always open to a Court or a Tribunal to condone the delay if the person concerned is able to convince it that there were justifiable grounds for the delay in presenting an appeal or a petition. The Division Bench further held that the filing of a formal petition for excusing delay is not the sine qua non for exercise of that power. The learned Judge also referred to the judgment of this Court in Movva Anjamma Vs. Abhineni Anasuya , 1998 SCC Online AP 824 = (1999)1 ALD 398, wherein it was held that even if an application to set aside an order dismissing the suit for default was not accompanied by an application for condonation of

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delay despite lapse of nine months, the affidavit filed in support of the application for restoration could make out sufficient cause for condonation of the delay and there is no necessity for filing a separate application for condonation of the delay. In Andhari Govindaiah Vs. Vemula Venkatamma reported in 1995 (3) ALT 685, this Court held that the delay could be condoned even without filing a separate application for condonation of delay, if the delay is otherwise explained in the affidavit filed in support of the application made to set aside the ex parte decree. In that case, the petitioner was a rustic villager residing in a remote village and was an illiterate and this Court held that he had made out sufficient cause for condonation of the delay.

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In Ramachandra Row Vs. Seshaiah reported in 1957(2) An.W.R. 106, a Division Bench of erstwhile High Court of Andhra Pradesh held that it is not necessary that there should be a formal petition to excuse the delay; that it is always open to the Court or Tribunal to condone the delay, if the person concerned is able to convince that there are justifiable grounds for the delay in presenting an appeal or a petition; and that the filing of a formal petition for excusing the delay is not sine qua non for the exercise of that power.

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In Movva Anjamma Vs. Abhineni Anasuya , 1998 SCC Online AP 824 = (1999)1 ALD 398 and in the judgment in Andhari Govindaiah Vs. Vemula Venkatamma reported in 1995 (3) ALT 685 held that :

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"That delay can be condoned even without filing a separate application for, condonation of delay, if the delay is otherwise explained in the affidavit filed in support of the application made to set aside ex parte decree. In that case,

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the petitioner was a rustic villager residing in a remote village and he is also an illiterate person."

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Albeit the Claim Petition, did not specifically or evasively, address the delay this court, taking into consideration of the law laid down by this Court at Hyderabad, is inclined to allow the Writ Petition. The matter is remanded back to the 2^nd respondent-Joint Collector-cum-Settlement Officer with a direction to the petitioners to represent the Claim Petition rejected through impugned endorsement under Section 11(a) of the Act 1948 within a period of two (2) weeks from the date of receipt of this order. Upon filing of an application under Section 5 of the Limitation Act, the 2^nd respondent Joint Collector-cum-Settlement Officer is directed to examine the same in accordance with law. The 2^nd respondent is directed to examine the application on its own merits uninfluenced by any of the observations made by this court while disposing of the writ petition, it should not be oblivious of the fact this Court only allowed the Writ Petition allowing the writ petitioners to file an application under Section 5 of the Limitation Act and the 2^nd respondent is the authority to decide the issue on merits, after issuing notice to all the affected parties, particularly to the 4^th respondent.

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