Allowed

Palla Jagannadha Rao v. The Commissioner of Appeals

Telangana HC23 Jan 2013WP/33109/2010

Case brief

AI extract

What is this about?

In this writ petition, the High Court set aside an order remanding a patta claim and rejecting a portion of it. The court held that once occupation and ryoti status were established, a remand was illegal. It also granted patta for encroached land and land in CRZ-I, noting that agriculture is permitted under regulations.

What did the court decide?

The impugned order of remand in respect of 19.65 acres was set aside; patta restored. The order rejecting the claim for 11.81 acres was set aside, and the Collector directed to grant Ryotwari Patta fo

Palla Jagannadha Rao Vs The Commissioner of Appeals — Land Acquisition | Telangana HC (2013)

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THE HON’BLE SRI JUSTICE G.CHANDRAIAH

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W.P.NO.33109 OF 2010

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O R D E R

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Heard Sri E.Manohar, learned Senior Counsel for the writ petitioners and the learned Government Pleader for Revenue for the respondents.

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2. This writ petition is filed for a writ of certiorari, calling for the records relating to the order dated 31.10.2010 passed by the 1^st respondent – Commissioner of Appeals in proceedings No.P1/514/2009,which was communicated to the petitioners through letter dated 16.11.2010 and quash the same insofar as remanding the matter to the 2^nd respondent – Director of Settlement in respect of Acs.19-65 cents and in refusing to grant patta in respect of Acs.12.35 cents in Sy.No.346/2, Madhuravada, Visakhapatnam Rural Mandal, Visakhapatnam District and consequently grant Ryotwari Patta to the petitioners in respect of Acs.32-00 cents under Section 11(a) of the Andhra Pradesh (Andhra Area) Estates (Abolition and Conversion into Ryotwari) Act, 1948 (for short ‘the Act’).

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3. The case has a checkered history. Before noting the writ averments, it is necessary to note the proceedings, which culminated into the impugned proceedings.

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4. The subject land is an extent of Acs.32-00 in resurveyed No.346/2, situate at Madhuravada, Visakhapatnam Rural Mandal, Visakhapatnam District. It is part of the Vizianagaram estate taken over by the Government on 7.9.1949. One Palla Poli Naidu, filed a claim petition in I.A.No.7/2002/F2/VSP before the Settlement Officer – cum – Joint Collector, Visakhapatnam, for grant of ryotiwari patta. By order dated 27.4.2002, the said claim was dismissed as barred by time and not maintainable. Against the said order, the claimant filed a revision petition before the Director of Settlements, A.P., Hyderabad and the same was dismissed by order dated 22.7.2003 holding that the petitioner had not explained the reasons for filing the application with a delay of 42 years. Aggrieved by the same, the claimant filed a further revision before the Commissioner, Appeals. By order dated 25.3.2004 in P1/1674/2003, the matter was remanded to the Settlement Officer – cum – Joint Collector, Visakhapatnam, for de novo enquiry and to examine all aspects with reference to ground reality, keeping in view the provisions of the Act and to give reasonable opportunity to both the parties, including the Mandal Revenue Officer,

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Visakhapatnam (Rural) Mandal, to defend the interest of the Government, if any. After remand, the Settlement Officer – cum –Joint Collector, Visakhapatnam, by his order dated 17.9.2004, granted ryotwari patta for an extent of Acs.19.65 in Sy.No.346/2 and in respect of the balance extent of Acs.12.35, the claim was rejected. The Mandal Revenue Officer, Visakhapatnam Rural Mandal, filed a revision petition before the Director of Settlements against the grant of patta to the claimant. The claimant also filed a revision, styling it as cross-objections, before the Director of Settlements, for the balance extent of Acs.12-35. By order dated 21.4.2009, the Director of Settlements, allowed the revision filed by the Mandal Revenue Officer and dismissed the cross-objections. Against the order, the claimant filed the present revision, through his GPA holder before the Commissioner, Appeals. By proceedings NO.P1/514/2009 dated 31.10.2010, the Commissioner partly allowed the appeal and remanded the matter to the Director of Settlements insofar as Acs.19.65 cents and the dismissed the revision petition insofar as Acs.12.35 cents. Aggrieved by the order of the Commissioner in remanding the matter in respect of Acs.19.65 cents and in rejecting the claim for Acs.12.35 cents, the present writ petition is filed.

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5. The petitioners are being represented through their General Power of Attorney holder. The case of the petitioners is that their ancestors Palla Venkayya and his wife Palla Kannamma were inducted into possession on 10.1.1938 in an extent of Acs.40-50 cents in Sy.No.389, by the Estate Manager by issuing patta after receiving Nazarana under receipt No.17. The ryot Palla Venkayya paid rent to the estate authorities for the years 1938, 1942, 1945 and 1949 and obtained receipts. After the estate was taken over by the Government, the ryot paid cist to the Government for the years 1954, 1955, 1958 and 1960, 1966, 1967 and 1975. The further case of the petitioners is that out of the total extent of Acs.40-50 cents, a kutch road in an extent of Acs.4-56 cents, was passing through their lands on the eastern side, which was later converted into pucca B.T. road. Since the same is beneficial to the rest of the lands, no compensation was claimed. Similarly, in the said total extent, though an extent of Acs.5-28 cents covered by ‘Gadda portion’ was assigned by the Government to the Ex-service man, the same was not claimed, since the said gadda portion cannot be brought under cultivation easily. Thus the ancestors of the petitioners brought the remaining extent under settled cultivation by raising ‘casurina trees’. Therefore, they sought ryotwari patta for the remaining extent of Acs.32-00.

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6. As noted in the preceding paragraph, the Settlement Officer – cum – Joint

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Collector, Visakhaptnam, by order dated 17.9.2004 granted ryotwari patta for an extent of Acs.19-65 cents in Sy.No.346/2 and rejected the claim for the remaining extent of Acs.12-35 cents. The Mandal Revenue Officer, filed revision against granting of patta for Acs.19-65 cents and the claimants filed cross objections for the rejected portion of Acs.12-35 cents. By order dated 21.4.2009, in R.P.No.33/04-A1, the Director of Settlements, allowed the revision of the Mandal Revenue Officer and dismissed the cross objections of the claimants. Aggrieved by the same, the claimants filed the present revision before the Commissioner of Appeals and by the impugned proceedings dated 31.10.2010, claim of the claimants with regard to Acs.19-65 cents was allowed, but curiously remanded the matter and in respect of rest of the claim, it was rejected. Hence, the present writ petition.

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7. The grounds raised in the writ petition are that the Commissioner in the impugned order at paragraph no.25, had categorically held that the land in an extent of Acs.19-65 cents is ryoti and is in possession of Palla Venkaiah. Having held so, the Commissioner ought to have granted patta for the said extent under Section 11(a) of the Act and he ought not have remanded the matter in respect of that extent and hence the order of the Commissioner is not justified in remanding the matter and hence the said portion is liable to be set aside. With regard to the rest of the claim, it is stated that the Commissioner has not dealt with an extent of Acs.4-22 cents which is under encroachment on the western side of the road. The claim of the petitioners is that the said extent is under their occupation even prior to the estate was taken over by the Government and the recent encroachment cannot be a ground for rejection of the claim. With regard to claim of Acs.7.59 situate on the east of road, the Commissioner held that the land is sandy and not fit for cultivation and that the same is situate in Coastal Regulation Zone. The claim of the petitioners is that before recording such finding, the Commissioner failed to consider the soil testing report of the Assistant Director of Agriculture, Government of Andhra Pradesh dated 23.8.2004, which is to the effect that sandy soils are fit for growing crops. With regard to lands situate within the costal regulation zone are concerned, it is stated that costal zone regulations only prohibits construction activities and do not prohibit cultivation. Without considering these aspects, the Commissioner erroneously rejected the claim of the petitioners and therefore, sought to modify the impugned order to the extent of remand and to set aside the remaining portion and thereby grant ryotwari patta for the entire extent of Acs.32-00.

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8. The Tahsildar, Visakhapatnam (Rural) Mandal, filed counter affidavit on behalf of the respondents and denied the writ averments. The tenor of the counter

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affidavit is that there is no illegality or irregularity in the impugned order. Though the Commissioner gave a categorical finding about the claim of the petitioners for Acs.19.65 cents, remanded for fresh adjudication for grant of patta only in respect of the said extent and rejected the claim for the balance extent of Acs.12.35 cents. The claim of the petitioners for the total extent is misconceived and self-serving and there is a concurrent findings by the authorities that the land covered by Acs.12-35 cents is sandy soil and that no patta can be granted. As the Commissioner remanded the case insofar as Acs.19.65 cents, it is for the petitioners to establish their case before the Director of Settlements. With these averments, the writ petition is sought to be dismissed.

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9. The learned Senior Counsel appearing for the writ petitioners while narrating the facts, contended that the Commissioner having held at paragraph no.25 of the impugned order that the petitioners are in possession of the land in an extent of Acs.19-35 cents, ought to have granted patta under Section 11(a) of the Act and the order remanding for de novo enquiry for the said extent, is a patent illegality and irregularity. With regard to the rest of the claim, the learned Senior Counsel submitted that the Estate Manager granted patta to the ancestors of the petitioners viz., Palla Venkayya and his wife Kannamma after receiving Nazarana, in extent of Acs.40.50 cents and the ryot paid the rents to the Estate Authorities till the estate was taken by the Government and subsequently, to the Government. In proof of the same, the petitioners filed patta and settlement register and also cist receipts before the authorities. He stated that out of this total extent of Acs.40.50 cents, an extent of Acs.5.28 cents covered with Gadda Portion was assigned by the Government to ex-serviceman. As the said portion could not be brought under cultivation easily, the same was not claimed by the petitioners. Further, the Government also laid road in an extent of Acs.4-56 cents. Since laying of the road, is beneficial to the lands of the petitioners, the petitioners did not raise any objection. He further stated that though the Mandal Revenue Officer, disputed the documents filed by the petitioners, failed to rebut the evidence by producing any documentary evidence such as pre-abolition estate records, which were taken over by the Collector of the District under Section 3(d) of the Act. Therefore, the documents filed by the petitioners remained un-rebutted. The Commissioner has also rightly dealt with the documentary evidence and believed the documents filed by the petitioners, but held that an extent of Acs.19.65 cents is ryoti on the western side of the beach road and rejected the claim of the petitioners in respect of Acs.12.35 cents. He contended that as the grant was under a single patta and when the same was believed for holding that the petitioners are in possession in an extent of

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Acs.19-65 cents, and when the petitioners have filed necessary documentary evidence, the said patta ought to have been believed even to the remaining extent and the reasons for rejection for grant of ryotwari patta for the remaining extent, are untenable. He stated that out of the Acs.12.35 cents, which was rejected by the Commissioner, Acs.4-22 cents is also on the western side of the beach road, as per the inspection report of the M.R.O. dated 23.8.2004 and it is under encroachment. The Commissioner has not at all dealt with this extent. The learned Senior counsel contended that encroachment can never be a ground for rejection of ryotwari patta. He stated that out of Acs.12.35 cents, the remaining extent of Acs.7.59 cents is situate on the eastern side of the beach road and the patta in respect of the same was rejected on the ground that it is sandy and falling under CRZ Zone. He stated that the petitioners have filed a soil test report of Assistant Director of Agriculture, which is to the effect that the said land is cultivable. Without recording any reasons, the Commissioner has erroneously rejected the claim of the petitioners for grant of patta. He stated that the Commissioner rejected the claim of the petitioners, also on the ground that the said land is falling under the CRZ Zone. The learned Senior counsel referring to Regulation 4 ( R) of Costal Regulation Zone (CRZ) issued on 19.2.1991 contended that in the said zone, no new constructions are permitted within 500metres of High Tide Line in CRZ-I area. He stated under Regulation 6(B) (ii) agriculture, horticulture, gardens, pastures, etc., are permitted. He contended that as per the soil testing report, the land is cultivable and regulations permit agriculture, horticulture and the report of the Mandal Revenue Officer dated 23.8.2004 also shows growth of casurine trees, which are not natural growth and as per the case of the petitioners, their ancestors were possession and the raised the said trees, which are aged about 60 years and they also filed cist receipts. Therefore, when the patta issued by the Estate Manager for the entire area of Acs.40-00 was believed by the Commissioner and the petitioners could prove their possession over the land claimed by them and produced B memos and further the soil testing report also shows that the land is cultivable and the costal regulations does not prohibit agriculture, horticulture etc., there is no justification on the part of the Commissioner in rejecting the patta to the petitioners in the remaining extent. He stated that the petitioners are claiming patta under the Act and they satisfied all the conditions for grant of patta and the grounds on which the patta is rejected are not tenable and hence sought to set aside the order of the Commissioner in remanding the matter in respect of

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Acs.19-65 cents and set aside the order of rejecting the claim of the petitioner in respect of Acs.12.35 cents and consequently grant patta for the total extent claimed

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by the petitioners.

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10. The learned Government Pleader appearing for the respondents contended that the Commissioner after examination of the matter in detail and recording findings on fact, passed the impugned order. He contended that as per the case of the petitioners, the grant is for an extent of Acs.40-00. Out of this extent, an extent of Acs.5-28 cents was assigned by the Government to ex-service man and the in an extent of Acs.4.56 cents, the Government laid road. But the petitioners never raised any objection and this shows that they were not in possession and that they have no claim over the land. Therefore, supporting the impugned order and reiterating the averments made in the counter affidavit, he sought to set aside the impugned order.

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11. In view of the above rival contentions, the points that arise for my consideration are:

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1. Having found that the lands in question are ryoti and that the predecessors in title of the petitioners are in occupation of the land in an extent of Acs.19-65 cents, even prior to the notified date i.e., 1.7.1945, whether the Commissioner is not justified in remanding the matter for de novo enquiry for grant of ryotwari patta for the said extent under Section 11(a) of the Act?

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2. Whether the Commissioner is justified in not dealing with the claim of the petitioner for grant of ryotwarti patta in respect of Acs.4-22 cents, which is claimed to be part of the land in the original grant, which is on the western side of the beach road as per the report of the Mandal Revenue Officer dated 23.8.2004, and which grant was believed for recording finding in respect of Acs.19-65 cents?

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3. Whether the Commissioner is justified in rejecting the patta in an extent of Acs.7-59 cents, which is on the eastern side of the beach road as per the report of the Mandal Revenue Officer, on the ground that the lands falls in CRZ zone and that it is a sandy soil, by not considering the soil testing report of the competent authority i.e., the Assistant Director, Agriculture, Government of Andhra Pradesh and CRZ Regulations?

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4. Whether the petitioners are entitled for grant of patta in respect of total extent claimed by them?

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12. In order to consider the above issues, it is necessary to note the claim of the petitioners and the material evidence placed in support of the claim.

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13. There is no dispute that the lands in question are situate in Sy.No.346/2, Madhuruvada village, Visakhapatnam Rural, which was earlier part of erstwhile Vizianagaram Estate taken over by the Government on 7.9.1949.

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14. The case of the petitioners is that their ancestors Palla Venkayya and his wife Palla Kannamma were inducted into possession on 10.1.1938 in an extent of Acs.40-50 cents in Sy.No.389, by the Estate Manager by issuing patta after receiving Nazarana under receipt No.17. The ryot Palla Venkayya paid rent to the

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estate authorities for the years 1938, 1942, 1945 and 1949 and obtained receipts. After the estate was taken over by the Government, the ryot paid cist to the Government for the years 1954, 1955, 1958 and 1960, 1966, 1967 and 1975. The further case of the petitioners is that out of the total extent of Acs.40-50 cents, a kutcha road in an extent of Acs.4-56 cents, was passing through their lands on the eastern side, which was later converted into pucca B.T. road. Since the same is beneficial to the rest of the lands, no compensation was claimed. Similarly, in the said total extent, though an extent of Acs.5-28 cents covered by ‘Gadda portion’ was assigned by the Government to the Ex-service man, the same was not claimed, since the said gadda portion cannot be brought under cultivation easily. Thus the ancestors of the petitioners brought the remaining extent under settled cultivation by raising ‘casurina trees’. Therefore, they sought ryotwari patta for the remaining extent of Acs.32-00.

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15. The respondents disputed the claim of the petitioners on the following grounds viz., that the land is classified as Banjar in Gilman Register of 1905 and that the schedule land is non-ryoti and that no patta can be granted, that the name of the District is mentioned in the documents filed by petitioners as Visakhapatnam, whereas during the relevant period, in Government correspondence, the name of the district was spelled as Visagapatnam and hence the documents relied on by the petitioners are not genuine.

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16. To prove their claim, the claimants filed certain documents. The 1^st respondent – Commissioner in the impugned proceedings, at paragraph no.19 noted the said documents as under:

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i) Xerox copies of ‘rent receipts for 1345 F to 1359 F and 1363 to 1369 F, 1372F, 1375F, 1376F and 1383F, which documents were referred to by the Joint Collector in his order dated 27.4.2002.

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ii) Original rent receipts for 1345F to 1348 F, 1351F to 1354F and 1356F to 1359F and also cist receipts of 1954, 1955, 1958, 1960, 1966, 1967, 1975 and 1987, referred to in DOS order dated 22.7.2003.

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iii) Xerox of printed patta issued by the estate manager. Copy of printed survey and settlement register of 1941. These originals were filed before the Joint Collector under acknowledgement by F2 clerk. Xerox of F2 clerk acknowledgement filed before the Commissioner, Appeals.

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iv) Xerox copies of regd. Sale deeds of the years 1909, 1920, 1930 and 1933 showing these documents stating Visakhapatnam District only and not as Visagapatnam. The original report of the Asst. Director – Soil Testing Laboratory report dated 19.10.2005 filed before the Director in RP33/2004-A.

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17. The Collector of the District is obliged under Section 3(d) of the Act to take over the pre-abolition records for administration of the Estate. Therefore, it is

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deemed that the said record is available with the Revenue Department. Though the respondents disputed the above documents, failed to produce any pre-abolition record in their possession. The Commissioner at paragraph no.26 of the impugned proceedings held that “the MRO though called upon by the Director of Settlement in all the notices to file pre-abolition estate records such as Dittam / Chitta etc. and the survey land register, the same were not filed either before the Director or before this Court for verification. The estate records, if filed, would conclusively establish the case of one side or the other. The DOS file did not show any correspondence from the MRO whether the records are available or not with the Revenue Department, though the same were taken over by the Collector under Section 3(d) and the rules obligated him to take over all such records for the administration of the estate. In the absence of any rebuttal evidence such as estate records, it is not open to the Statutory Authority to hold the documents filed by the petitioners are bogus merely on the basis of oral allegations.” From the above documents and the findings of the 1^st respondent – Commissioner, it is clear that the documentary evidence produced by the claimants, to show that patta was granted and their ancestors were in possession during pre and post abolition periods, remained un-rebutted.

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18. The only contention of the learned Government Pleader is that when the Government assigned the land to ex-servicemen and laid road, the petitioners did not object and hence, it has to be taken that they are not in possession and they have no claim. This contention cannot be countenanced for more than one reason viz., the petitioners proved the patta, right to occupancy and possession by producing necessary documentary evidence and the said evidence, remained unrebutted, since the respondents, except disputing the documents produced by the petitioners orally, failed to produce any relevant record, which is in their possession. Assuming for the sake of argument that the land is Government land and that the ancestors of the petitioners are encroachers, Government ought to have issued eviction notices under Land Encroachment Act. No such notices were given. The 1^st respondent – Commissioner also rightly held that since the occupation of the petitioners is unobjectionable and old, no notices under Land Encroachment Act were given. There is also no material produced by the Government to show that before granting patta, any notices were given to the effected parties. The case of the petitioners is that as the assigned land cannot be brought under cultivation easily and that the road laid, would benefit their other lands, they did not raise objection, nor claimed any compensation. The above circumstances, probablises the explanation of the petitioners for not claiming the said extent. In view of these circumstances,

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the ground raised by the respondents in this regard, is unsustainable.

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19. From the material on record, it could be seen that the Joint Collector, instructed the Mandal Revenue Officer (Rural), Visakhapatnam to inspect the land in RS.No.346 and submit his report. Accordingly, the Mandal Revenue Offficer, filed his report dated 23.8.2004, along with sketch prepared as per ground reality. The Commissioner at paragraph no.19, noted the contents of the said report as under:

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“19. …

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a) Land assigned to ex-service man – Acs. 5-28 b)Encroachment by others – Acs.4-22 c)Extent covered by beach road – Acs.5-56 d)Land towards east side of beach road – Acs.759

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e)Extent covered by causirina tope – Acs. 19-65”

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20. Considering the above material on record, the Commissioner held as

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under:

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20.. . . . . After considering the various documents filed by the petitioners/the MRO inspection report; the printed survey and settlement, register of 1941 and the Adangals filed by the MRO, the existence of casurina tope and palmyrah trees of 60 years old and dry cultivation in an extent of Acs.19-65 cents CTS on the western side of the beach road and payment of arrears prior to 1938 and Nazarana receipt No.17 and the printed patta of 1938 mentioning that it was then under the Court of wards and also mentioned as Visakhapatnam District was established. The said printed form stamped with the estate, satisfies the requirement of Section 51 of the Estates Land Act, 1908 and the collection of arrears from 1935 onwards is in accordance with Explanation IV of Section 6 of the Estate Land Act, 1908 and collected areas as per Section 163 of the said Act, the Estate admitted the ryot in to such possession and after collecting Nazarana issued patta in 1938. Hence, the claimant acquired occupancy right.

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21. Raising casurina topes and palmyrah trees is agriculture and included in the definition of “Agriculture” as per Sec 3(1) of the E L Act 1908. The trees are not natural grown.

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22. The Gillman Register was prepared in 1905 and it does not carry subsequent charges in the said register. The Register is intact and no later changes have been mentioned in the said register, in 1905, the schedule land was recorded as “Banjar” and the Estate could only grant patta for waste lands which are cultivable with minimum expense and labour. The verification report of the MRO dated 23-8-2004 also shows signs of cultivation with dry crops and on the Western side of the beach road in an extent of Ac.19.65 and scattered casurina tope and palmyrah trees aged about 60 years.

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23. The Petitioner filed a number of registered sale deeds from 1909 to 1939 mentioning therein the name of the District as Visakhapatnam. The name of the District Vizagapatnam was only used in all Government correspondence but the general public called it as Visakhapatnam even prior to 1949. The patta given in

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the year 1938 is in printed form and no peculiar script is there. The printed patta itself referred to as under the administration of ‘Court of Wards” at the top and the estate clerk wrote the name as Visakhapatnam. I do not see any improbability as the collector was only supervising the estate administration.

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24. The petitioner filed rent receipts and “B memo receipts” which support his continuous possession. It is not the case of the MRO that any notices were issued under Land Encroachment Act at any time, obviously for the simple reason that the petitioner’s occupation is unobjectionable and old Occupation.”……… I am of the opinion that the land measuring Ac.19.65 situate on the western side of the Beach road is ryoti land:”

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25. On a Consideration of the entire evidence adduced by the petitioners and the Adangals and inspection report filed by the then MRO and the plan, I am satisfied that the findings of the Joint Collector/Settlement Officer in so far as the land measuring Ac.19.65 situate in the Western side of the Beach Road is ryoti land in the occupation Palla Venkataiah,

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26. In the absence of any rebuttal evidence such as estate records, it is not open to the Statutory Authorities to hold the documents filed by the petitioners are bogus merely on the basis of oral allegations.”

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21. From the above conclusions of the Commissioner, the first aspect that he satisfied is with regard to occupation of the ancestors of the petitioners in an extent of Acs.19.65 cents situate on the western side of the beach road and that it is a ryoti land. When the Commissioner has given a categorical finding with regard to occupation of the petitioners and nature of land, he ought not have remanded the matter to the primary authority for grant of ryotwari patta, at least for the said extent of Acs.19-65 and he ought to have confirmed the order of the primary authority in granting patta under Section 11(a) of the Act. Therefore, the order of the Commissioner, to the extent of remand, is liable to be set aside and accordingly set aside and the issue no.1 is answered in the affirmative.

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22. Coming to the second issue, the claim of the petitioner is under a patta granted by the Estate Manager and the same was proved before the Commissioner, who at paragraph no.20 of the impugned order categorically held that the Estate Manager after receiving nazarana issued patta in 1938 and claimant acquired occupancy rights. Further, the petitioners also produced cist receipts to prove their possession and the said documentary evidence, remained unrebutted. The patta is for the total extent of Acs.40-50 cents. However, as per the case of the petitioners, they did not claim compensation for the land allotted to ex-service man in an extent of Acs.5-28, as the same is ‘Gadda portion’ and cannot be brought under cultivation and the other extent of Acs.4-56 cents, in which road is laid, as the same is beneficial to their lands. In an extent of Acs.19-65 cents, which is on the

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western side of the beach road, the Commissioner held that the same was in occupation of the ancestors of the petitioners. But the Commissioner failed to deal with other extent of Acs.4-22 cents, which is also on the western side of the beach road, as claimed by the petitioners and as per the report of the Mandal Revenue Officer dated 23.8.2004.

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23. As per the report of the Mandal Revenue Officer dated 23.8.2004 and the sketch annexed to the report, an extent of Acs.4-22 which is on the western side of the beach road, is under encroachment. The case of the petitioners is that they have proved patta and also possession during the pre and post abolition periods and that recent encroachments cannot be a ground for rejection of patta. However, the petitioners did not file any suit for recovery of the land, obviously for the reason, that they were not granted ryotwari patta. A Division Bench of this court in

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[1] SOMESWARASWAMY VARU v. SRIRAJITAM , held that right to recover possession ripens only after patta was granted under Act. The relevant portion is extracted as under:

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“11. . . Under Section 3, the person in possession has a right to continue in possession until his rights are determined and terminated either under Section 11 or Section 12 of the Act by the non-issue of patta in his favour. Both the plaintiffs and the defendants could go before the settlement officer for the adjudication of their claims with regard to the issue of a patta. Until that is determined and the plaintiffs succeed in getting a patta in their fvour, they have no right to recover possession from the defendants, who are now in possession. Only when their right is so declared and possession is denied to them, they can resort to a civil Court. Until then their right for possession does not ripen. It is premature for them to file a suit for recovery of possession now. Therefore, it is not proper for the plaintiffs by a trick of pleading or by a camouflage of the reliefs asked for to make the Court enquire into the questions which are exclusively in the jurisdiction of the Tribunal created by the special Act i.e, the settlement officer, under the Estates Abolition Act. That enquiry with regard to the grant of patta to the ryot in possession are not ancillary or incidental to the relief of possession in the civil Court. Their main relief for possession depends entirely on their right to the issue of a patta. Therefore, they must first approach the settlement officer for a patta and having obtained it, then sue for possession in a civil Court. Their present suit cannot be now entertained with regard to items 3 to 10 of B schedule and that claim has rightly been dismissed. This appeal therefore, fails.”

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24. From the above judgment of the Division Bench it is clear that unless patta is obtained, the question of filing civil suit for possession does not arise and it is for the settlement officer to enquire and grant patta. Therefore, in my considered view, the petitioners have rightly filed the present claim for grant of ryotwari patta, but the 1^st respondent failed to consider this claim and by misconstruing the fact that

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this extent is also on the eastern side of the beach road, rejected the claim. However, such rejection would be examined in due course of judgment.

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25. As the petitioners proved the patta granted in their favour and the occupation during the post and pre abolition period, based on documentary evidence, and as the respondents failed to rebut the same by producing any record, I am of the considered view, that they are entitled for patta for this extent of Acs.422, also and as contended by learned Senior Counsel, encroachments cannot be a ground for rejection of ryotwari patta. The issue is answered accordingly.

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26. With regard to third issue, it is be noticed that as per the report of the Mandal Revenue Officer dated 23.8.2004 and the sketch annexed thereto, an extent of Acs.7-59 cents, is on the eastern side of the beach road. The Commissioner has taken the entire land on the eastern side of the beach road as Acs.12-35 cents, which is factually incorrect. The extent on the eastern side of the beach road is Acs.7-59 cents.

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27. The Commissioner rejected patta to this extent on the ground that the land is sandy and also situated in CRZ Zone. The petitioners filed soil test laboraty report issued by the Assistant Director of Agriculture dated 19.10.2005. In the said report, it is categorically stated that the subject land is cultivable. As already noted above, the petitioners have proved patta and their occupation. Further in the sketch annexed to the report of the Mandal Revenue Officer dated 23.8.2004, it is noted that there is scattered casurina topes in this extent. The casurina topes cannot be natural growth, and the petitioners proved their possession by producing cist receipts. The Assistant Direct or of Agriculture is the competent authority to issue soil testing report. In view of these circumstances, the order of the Commissioner in rejecting the soil test report of the Assistant Director of Agriculture, without recording any reasons, cannot be sustained.

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28. The other reason recorded by the Commissioner is that the land is situate in CRZ zone. Before recording the same, the Commissioner ought to have examined the said Regulations. The petitioners filed copy of Environment, Forests, Science and Technology Department guidelines for preparation of Costal Zone Management Plans (CZMP) based on the instructions issued by the Ministry of Environment and Forest, Government of India in Notification dated 19-2-1991, under Section 3(1) and Section 3(2)(v) of the Environment (Protection) Act, 1986. These guidelines are not disputed by the respondents. Under the said guidelines, Regulation under 6(B) (ii) is relevant and the same are extracted as under for better

¶65

appreciation:

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“6(B) Regulation of Activity in CRZ.III

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(ii) No construction shall be permitted within ‘No Development Zone”, except for repairs of existing authorized structures not exceeding existing FSI. However, the following uses may be permissible in this zone – agriculture, horticulture, gardens, pastures, parks, play fields, forestry, and salt manufacture from sea water.”

¶68

29. A reading of the above regulation makes its clear that the activities like agriculture, horticulture, gardens, pastures, parks, play fields, forestry, and salt manufacture from sea water, are permissible, except construction.

¶69

30. As already noted above, the petitioners proved the patta granted and the occupation of their ancestors during pre and post abolition periods and they filed cist receipts and B memos to prove their possession and further as per the sketch annexed to the report of the Mandal Revenue Officer, who inspected the ground realities, scattered causirine tope over the present land is found and the Commissioner also recorded that this is not a natural growth.

¶70

31. In view of the above circumstances, the ground that the land is situated in CRZ zone and hence no patta can be granted, cannot be sustained and moreover the petitioners are concerned with grant of ryotwari patta under the provisions of the Act and they fulfilled conditions laid down under Section 11(a) of the Act and hence, they are entitled for patta.

¶71

32. Accordingly this issue is answered in favour of the petitioners.

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33. Before parting with the case, it is noticed that the claim of the petitioners which is rejected by the authorities below is Acs.12-35 cents. This Acs.12-35 cents, as per the report and sketch of the Mandal Revenue Officer, dated 23.8.2004 include Acs.4-22 cents under encroachment on the western side of beach road and Acs.7-59 cents on the eastern side of the beach road in Sy.No.346/2, Madhuravada, Visakhapatnam Rural Mandal, Visakhapatnam. The total of these extents i.e., Acs.4-22 cents + Acs.7-59 cents, would be Acs.11-81 cents only and not Acs.12-35 cents as claimed by the petitioners.

¶73

34. For the foregoing reasons, the impugned order in remanding the matter to the primary authority for de novo enquiry in respect of Acs.19-65 cents, is set aside and order of the primary authority – Joint Collector – cum – Settlement Officer in SR.No.11(a)/26/2004/F2 dated 17.9.2004 in respect of granting patta under Section

¶74

11(a) of the Act, to an extent of Acs.19.65 cents in S.No.346/2 of Madhurawada (v), Visakhapatnam Rural (M), Visakhapatnam, is restored.

¶75

35. Normally, when the authorities reject the claim of the petitioners for grant of patta on certain grounds, which are untenable, the matter would be remitted back to the authorities for fresh consideration for issue of patta. But when the grounds, on which the authorities reject the claim, are found legally unsustainable, contrary to the material facts and documentary evidence and the relevant regulations, and when no grounds are available to the authorities for rejection of patta, in such cases, this court in exercise of jurisdiction under Article 226 of the Constitution of India, is justified to grant the relief sought for by the petitioners.

¶76

36. In that view of the matter, the portion of the impugned order is confirming the order of the lower authorities in rejecting claim for Acs.12.35 cents, (which extent include Acs.4-22 under encroachment on the western side of the beach road and Acs.7.59 cents on the eastern side of the beach road in the Sy.No.346/2), is set aside and the 3^rd respondent – Joint Collector – cum – Settlement Officer is directed to grant Ryotiwari Patta to the petitioners for the extent of Acs.11-81 cents (Acs.4-22 cents + Acs.7-59 cents = Acs.11-81 cents) in Sy.No.346/2, Madhuravada, Visakhapatnam Rural Mandal, Visakhapatnam District. The issue no.4 is answered in favour of the writ petitioners.

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37. In the result, the writ petition is allowed. Miscellaneous petitions, if any, pending, stands closed. No costs.

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AVS ----------------------------------23—01—2013

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[1] (1971) I An.W.R. 14

Palla Jagannadha Rao v. The Commissioner of Appeals

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Palla Jagannadha Rao v. The Commissioner of Appeals

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