J Rambabu vs The State Of Ap
2021 Latest Caselaw 2044 AP

THE HON'BLE SRI JUSTICE M.SATYANARAYANA MURTHY

                        WRIT PETITION NO.9565 OF 2021

ORDER:

This writ petition is filed under Article 226 of the

Constitution of India, seeking the following relief:

"To issue Writ of Mandamus declaring the Endorsement in F.L/11656/2020 dated 13.08.2020 issued by the respondent No.4 rejecting the F.Line Application dated 28.05.2020 submitted by the petitioner for survey and demarcating the land in an extant of Ac.2-98 out of Ac.31-20 cents in Sy.No.61/2 new and 79/1 Old of Chittivalasa Village Fields, Beemunipatnam Mandal, Beemunipatnam Revenue Division, Visakhapatnam District on the ground that the subject land is undivided and unspecified area as arbitrary illegal abdication of the statutory cost on him contrary to the provisions of the Andhra Pradesh Survey and Boundaries Act, 1923 and the well established legal principles apart from being violative of fundamental rights guaranteed to the petitioners under Articles 14, 19 and 21 of the Constitution of India and consequently direct the respondent No.4 to conduct the survey and demarcate the land in an extant of Ac.2-98 out of Ac.31-20 cents in Sy.No.61/2 new and 79/1 Old of Chittivalasa Village Fields, Beemunipatnam Mandal, Beemunipatnam Revenue Division, Visakhapatnam District"

It is the case of the petitioners that, land in extent of Ac.2-08

cents in Sy.No.61/2 (new) and 79/1 (old) of Chittivalasa village

fields, Beemunipatnam Mandal, Beemunipatnam Revenue

Division, Visakhapatnam District, was purchased by one late Joga

Rama Swamy who is the father of Petitioner Nos. 1 & 2; father-in-

law of Petitioner Nos. 3 & 4 and grandfather of Petitioner Nos. 5 to

10, through a sale deed dated 15.03.1936 bearing Document

No.393/1936 for a valid sale consideration. Since the date of

purchase, the subject land was in the possession and enjoyment of MSM,J

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late Joga Rama Swamy till his demise. Further, having recognised

the possession and enjoyment of late Joga Rama Swamy over the

subject land, the name of Joga Rama Swamy was mutated in

revenue records. Thereafter, on demise of Joga Rama Swamy, the

subject land devolved on Petitioner Nos. 1 to 10, since then, they

are in possession and enjoyment of the property.

While so, the neighbours of the petitioners started to raise

boundary disputes by removing the boundary stones. Under those

circumstances, the petitioners executed General Power of Attorney

authorizing Petitioner No.11 to take all necessary steps to protect

their interest, including legal issues. Thereafter, with a view to put

an end to the boundary disputes, Petitioner No.11 applied for

survey and demarcation of the subject land through F-Line

Application dated 28.05.2020, whereas, Respondent

No.4/Tahsildar through an Endorsement dated 13.08.2020

rejected the F-Line Application submitted by Petitioner No.11 on

the ground that the subject land is "undivided and unspecified

area".

Respondent No.4 is the competent authority under the

provisions of the Andhra Pradesh Survey and Boundaries Act,

1923 (for short 'Act, 1923') to conduct survey and demarcate any

land basing on the application submitted by the person concerned.

When the issue fell for consideration before this Court as to

whether a duty to conduct survey and demarcation of the land is

cast upon the Tahsildar or not, at the instance of a person who

paid necessary charges, this Court concurrently held that the duty MSM,J

WP.No.9565 of 2021

to conduct survey and demarcate the land is cast upon the

Tahsildar as per the request of the person concerned. Further, as

per Section 10 of Act, 1923, Respondent No.4/Tahsildar is

empowered to conduct survey and demarcate the boundary when

there is a boundary dispute and Respondent No.4 is the competent

authority to conduct survey and demarcate the boundary.

It is alleged that, Respondent No.4/Tahsildar rejected the

application submitted by the first petitioner on an unreasonable

ground that the subject land is an "undivided and unspecified

area" which cannot at all be a ground for rejection of application

dated 28.05.2020 submitted by the first petitioner for survey and

demarcation of the subject land. Hence, rejection of the request for

survey and demarcation of the subject land through the impugned

Endorsement issued by Respondent No.4/Tahsildar is nothing but

abdication of the statutory power vested on him and requested to

issue a direction as sought for in the writ petition.

Respondents did not file any counter affidavit.

During hearing, Sri V.R. Reddy Kovvuri, learned counsel for

the petitioners reiterated the contentions urged in the affidavit,

while drawing attention of this Court to several revenue records to

show that late Joga Rama Swamy was the owner of the property

and his name was mutated. Later, names of Petitioner Nos.1 to 10

were mutated in the revenue records as owners and enjoyers of the

property. Since, the other petitioners are not able to take any

steps, they executed General Power of Attorney dated 27.01.2020 MSM,J

WP.No.9565 of 2021

authorizing Petitioner No.11 to take all necessary steps to protect

their interest, including legal issues. Learned counsel placed

reliance on unreported judgments of Division Bench in W.A.No.110

of 2013 dated 14.06.2013 and W.A.No.1003 of 2013 dated

16.07.2013 and another judgment of learned single Judge in

Muramalla Padmavathi v. State of Andhra Pradesh1. On the

strength of the principles laid down in the above judgments,

learned counsel for the petitioner while drawing attention of this

Court to B.S.O 58 of the Andhra Pradesh Board of Revenue

Standing Orders, requested to issue a direction to conduct survey

and demarcate the land of this petitioner.

Whereas, learned Assistant Government Pleader for Revenue

vehemently contended that, separate applications have to be made

by the petitioner through online / Mee Seva, one for conducting

survey and the other for sub-division of the property of an extent of

Ac.2-98 cents in Sy.No.61-2 (new) and 79/1 (old) of Chittivalasa

village fields, Beemunipatnam Mandal, Beemunipatnam Revenue

Division, Visakhapatnam District. In the absence of any

application for sub-division of the property, rejection of the

application of this petitioner for conducting survey is justifiable

and requested to dismiss the writ petition, finally.

Undisputedly, the property was purchased by late Joga

Rama Swamy under registered sale deed dated 15.03.1936,

Registered as Document No.393/1936. Copy of the registered

document is produced to establish that the property was

2016 (3) ALD 650 MSM,J

WP.No.9565 of 2021

purchased by late Joga Rama Swamy and besides that, several

other revenue records and General Power of Attorney executed by

Petitioner Nos.1 to 10 in favour of Petitioner No.11 is also placed

on record to establish that Petitioner No.11 was authorized to

apply for demarcation and to take necessary legal action to protect

the property. The respondents did not dispute purchase of the

property and authority of Petitioner No.11 to apply for survey and

demarcation of the property by making F-Line application dated

28.05.2020 and its rejection by Respondent No.4/Tahsildar under

the impugned Endorsement FL.No.:FL/11656/2020 dated

13.08.2020.

It is an undisputed fact that, Petitioner No.11, being a

General Power of Attorney Holder, made an F-Line Application on

behalf of Petitioner Nos. 1 to 10 for conducting survey after sub-

division of the property of an extent of Ac.2-98 cents in Sy.No.61-2

(new) and 79/1 (old) of Chittivalasa village fields, Beemunipatnam

Mandal, Beemunipatnam Revenue Division, Visakhapatnam

District. But, the total land is in an extent of Ac.31-20 cents in

Sy.No.61/2 (new) and 79/1 (old) of Chittivalasa village fields,

Beemunipatnam Mandal, Beemunipatnam Revenue Division,

Visakhapatnam District. Whereas, late Joga Rama Swamy

purchased land of an extent of only Ac.2-98 cents out of Ac.31-20

cents in Sy.No.61-2 (new) and 79/1 (old) of Chittivalasa village

fields, Beemunipatnam Mandal, Beemunipatnam Revenue

Division, Visakhapatnam District. As seen from the document of

title, the said late Joga Rama Swamy purchased Ac.2-98 cents , as MSM,J

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shown in the schedule annexed to the document and it is extracted

hereunder:

"Property details:

The land in an extent of 2.98 2/3 cents or 1.2059 hectors which comes under survey No.61/2, Talukajirayithimettu, Chittivalasa Village, Bheemunipatnam Mandal, Visakhapatnam District.

North: Rastha South: Rastha East: Road West: other lands"

As seen from the schedule of the property purchased under

the registered sale deed, land of Ac.2-98 cents is undivided and

unspecified. No specific measurements of boundaries are specified

for the land purchased by late Joga Rama Swamy under registered

sale deed. Therefore, the land purchased by late Joga Rama

Swamy is an undivided and unspecified share out of Ac.31-20

cents. If, really, the measurements of boundaries of the property

are mentioned in the document, the land can be identified on

ground with reference to the boundaries, since boundaries will

prevail over the extent. But, here, no measurements of boundaries

are mentioned, and late Joga Rama Swamy purchased only an

undivided and unspecified land of an extent of Ac.2-98 cents in

Sy.No.61-2 (new) and 79/1 (old) of Chittivalasa village fields,

Beemunipatnam Mandal, Beemunipatnam Revenue Division,

Visakhapatnam District, which consists of large extent of Ac.31-20

cents. Therefore, such undivided and unspecified part of the

property could not be identified by the surveyor either with

reference to the boundaries or with reference to the survey

number(s), since it is not sub-divided. In those circumstances, MSM,J

WP.No.9565 of 2021

Petitioner No.11 has to make appropriate application for

sub-division of the property as per B.S.O 58 of the Andhra Pradesh

Board of Revenue Standing Orders. No such application was made

for sub-division of the property. But, Petitioner No.11 made an

F-Line Application for conducting survey of the land. If really, the

application is made for sub-division of the property, rejection of the

application by issuing Endorsement FL.No.:FL/11656/2020 dated

13.08.2020 impugned in the writ petition by the fourth

respondent/Tahsildar is an illegality. In the absence of making any

such application for sub-division of the property in compliance of

B.S.O 58, rejection cannot be faulted.

Learned counsel for the petitioner would draw attention of

this Court to two unreported judgments of the Division Bench of

composite High Court of Andhra Pradesh in W.A.No.110 of 2013

dated 14.06.2013 and W.A.No.1003 of 2013 dated 16.07.2013.

W.A.No.1003 of 2013 dated 16.07.2013 was disposed of based n

the judgment in W.A.No.110 of 2013 dated 14.06.2013. Hence,

the judgment of the Division Bench in W.A.No.110 of 2013 is

relevant for deciding the real controversy. The Division Bench after

referring Circular in Rc.No.N1/6543/99 dated 25.07.2001,

whereunder the Special Commissioner and Director, Survey,

Settlements and Land Records, Jagir Administrator, Andhra

Pradesh, Hyderabad, issued certain instructions to the revenue

officials and the officials of the Survey Department with regard to

survey and demarcation of the lands, on requests made by private

parties. Thereafter, the Government issued another Circular in MSM,J

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Rc.No.N2/1741/2020 dated 18.05.2010 prescribing guidelines,

based on Board Standing Order No.34-A paragraph 20. Thereafter,

the Commissioner, Survey, Settlements & Land Records, Andhra

Pradesh, Hyderabad vide D.O.Rc.No.N1/4296/2012 dated

22.08.2012 issued further instructions for demarcation of survey

numbers referring to these circulars instructions/guidelines/

Board Standing Orders, issued by the Government. Thus, there is

no bar for the revenue officials to conduct survey of lands on

requests made by private parties subject to their furnishing

relevant documents. The endorsement was set-aside while

directing the fourth respondent therein/Deputy Inspector of

Survey, Nalgonda to conduct survey of land in question as per the

circular instructions/guidelines/Board Standing Orders issued by

the Government.

In Muramalla Padmavathi v. State of Andhra Pradesh

(referred supra), the learned single Judge of composite High Court,

by placing reliance on earlier judgments reported in Golli

Nagayamma and others v. State of Andhra Pradesh2 and

Hyderabad Potteries Private Limited v. Collector, Hyderabad

District and another3, held that, merely because there is no

specific provision in A.P Survey and Boundaries Act, 1923

providing survey of private lands, it cannot be said that the

authorities in the Survey Department of the State Government are

prohibited from doing survey of private lands. Unless such a

prohibition is provided in the Act, as public servants having

2015 (4) ALD 648

2001 (3) ALD 600 MSM,J

WP.No.9565 of 2021

expertise in doing survey (like other experts in fields of ballistics,

handwriting, DNA etc.), it is incumbent on the officials of the

Survey Department of the State Government to survey private

lands if a request to that effect is made after collecting the

necessary charges therefor. The circulars referred to above as well

as other Government Orders. issued by the Revenue Department

in this regard would be binding and would govern the procedure to

be followed in respect of survey to be conducted for private patta

lands as well.

But, here, it is not the question of conducting survey by

fourth respondent/Tahsildar herein and he agreed to conduct

survey, though it is a private land. The only reason for rejection of

the request of Petitioner No.11 is that, it is in specified area of

Ac.2-98 cents out of total extent of Ac.31-20 cents in Sy.No.61-2

(new) and 79/1 (old) of Chittivalasa village fields, Beemunipatnam

Mandal, Beemunipatnam Revenue Division, Visakhapatnam

District and that, unless the land is sub-divided, it is not possible

to conduct survey. Therefore, the principle laid down in the above

judgments has no direct application to the present facts of the

case.

In Hyderabad Potteries Private Limited v. Collector,

Hyderabad District and another (referred supra), the Court made

held that, the scheme of the A.P Survey and Boundaries Act, 1923

would make it clear that the survey made under the said Act is

mainly intended for the purposes of identification of the land and

fixation of boundaries and there is no provision under the said Act MSM,J

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for making any detailed enquiries with regard to right, title and

interest of the persons in the land. Persons who are aggrieved by

any decision referred to in the survey have liberty to approach the

appropriate Civil Court for adjudication, if needed. There is also a

remedy under Section 11 of the said Act to the appellate authority

constituted under the Act instead of Commissioner of Survey,

Settlement and Land Records, as held in Khaja Naseeruddin and

others Vs. Commissioner, survey, Settlement and Land

Records, Hyderabad and others4, if survey is sought by a person,

after issuing notice on parties interested and in particular the

registered holders of land, the concerned official should conduct

survey and demarcation in their presence.

The law declared in the above judgment is not in quarrel. On

the other hand, it is helpful to both parties to insist the fourth

respondent/Tahsildar to conduct survey, if it is sub-divided from

Ac.31-20 cents. But, in the present case, no measurements of

boundaries are mentioned, to identify the land on ground based on

the details furnished in the sale deed. In such case, the remedy

open to the petitioner to make appropriate application for sub-

division of the land as per B.S.O 58 which deals with Sub-division

of joint interests into separate interest, which includes Publication

of notification authorizing sub-divisions, Notification of receipt of

proposals, Acceptance of proposal by Collector, Publication of

notice of acceptance, Sub-division at the instance of a single

2007 (1) ALT 707 MSM,J

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shareholder and Annual report on the working of the rules. But, no

such procedure is followed.

Further, no such application was made by Petitioner No.11

for sub-division of the property and therefore, the endorsement

issued by the fourth respondent/Tahsildar, rejecting the F-Line

Application submitted by Petitioner No.11 for conducting survey is

justified and warrants no interference of this Court, while

exercising power under Article 226 of the Constitution of India, in

view of the jurisdiction conferred on this Court.

The Endorsement dated 13.08.2020 issued by the fourth

respondent/Tahsildar can be treated as an order under

Section 10(2) of A.P. Survey and Boundaries Act. If, really the

petitioners are aggrieved by the endorsement in the order passed

under Section 10(2) of A.P. Survey and Boundaries Act, the remedy

open to the petitioners is to prefer an appeal before the Appellate

Authority under Section 11. Instead of approaching the Appellate

Authority, the petitioners straight-away approached this Court

invoking jurisdiction under Article 226 of the Constitution of India

and that, such disputed question of fact cannot be decided.

However, it is left open to the petitioners to make appropriate

applications, one for sub-division of the property and the other for

conducting survey after sub-division, through Mee-Seeva (online

applications) on payment of requisite charges for sub-division and

conducting survey of the land based on the sale deed obtained by

late Joga Rama Swamy.

MSM,J

WP.No.9565 of 2021

In view of my foregoing discussion, I find no illegality in the

endorsement in order impugned in the writ petition. Consequently,

writ petition is liable to be dismissed.

In the result, writ petition is dismissed. However, liberty is

granted to the petitioners to make appropriate applications, one for

sub-division of the property and the other for conducting survey

after sub-division, through Mee-Seeva (online applications), on

payment of requisite charges for sub-division and conducting

survey of the land, based on the sale deed obtained by Joga Rama

Swamy. No costs.

Consequently, miscellaneous applications pending if any,

shall also stand dismissed.

_________________________________________ JUSTICE M. SATYANARAYANA MURTHY Date:21.06.2021

SP