Kum. C.V.Ramani vs The State Of Andhra Pradesh
2022 Latest Caselaw 5642 AP

         HON'BLE SRI JUSTICE D.V.S.S.SOMAYAJULU
               WRIT PETITION No.42118 of 2018
ORDER:

This Writ Petition is filed for a Mandamus and seeking

a declaration that the order dated 12.10.2018 passed by the

4th respondent under Section 11 (a) of the Estates Abolition

Act, 1948 with respect to the petitioner's land in

Krishnarayapuram Village, Pendurthi Mandal,

Visakhapatnam District, as illegal and arbitrary.

2) This Court has heard Sri O.Manohar Reddy, learned

senior counsel appearing for the petitioner and the learned

Government Pleader for Revenue appearing for respondents 1

to 6.

3) As per the submissions of Sri O. Manohar Reddy,

learned senior counsel, the petitioner is the owner and

possessor of Ac.8-52 cents in R.S.No.17 of Krishnarayapuram

Village, Pendurthi Mandal, Visakhapatnam District. The

petitioner's predecessors in interest were in possession and

enjoyment of the land from 1914, in the pre-abolition period

also. It is stated that a private tank called Venkappa tank

was dug in the land. It is asserted that this tank is used only

for the purpose of irrigation of the land measuring Ac.8-52

cents and not any another land. Since during the resurvey

operation the tank was wrongly noted as Government

Poramboke Tank petitioner made an application for change of

classification of the land from Government Poramboke to

zeroythi. Ddespite clear reports from the authorities that the

tank had no ayacut or that it is in the list of tanks of that

area no proper action was taken. Earlier also it is submitted

that the 1st respondent issued orders dated 03.05.2013

permitting the change of classification from the tank to

zeroythi. This was followed by further Memo dated

14.08.2015 by the 3rd respondent to implement the earlier

orders. However, as per the learned senior counsel despite

the verification the respondent authorities took a "U" turn and

again wanted to reconsider the issue. The petitioner filed

W.P.No.3192 of 2017 and this Court by its orders directed the

respondents to complete the process of implementation of the

Government Orders. Thereafter, due to failure to comply with

this order a contempt has been initiated and ultimately the

6th respondent was also sentenced to imprisonment. A Writ

Appeal was also filed in W.A.No.548 of 2018. Contempt

Appeal was also filed against the order in the contempt case.

Thereafter, in this situation, the 1st respondent issued an

order directing the petitioner to approach the 4 th respondent

under Section 11(a) of the Estate Abolition Act, 1948 for grant

of ryotwari patta. This order was considered by the Division

Bench of the Court which passed orders in W.A.No.548 of

2018 directing the 4th respondent to receive the application

and to process it. Learned counsel submits that by this time

the Government was aware that the tank was purely a private

tank and that the application before the 4th respondent was

therefore virtually for the purpose of implementing the order

and to grant ryotwari patta. However, contrary to the same

and contrary to the principles of natural justice, it is

submitted that the impugned order is passed on 12.10.2018

holding that the land is not a zeroythi land and is a tank filled

with water. The impugned order stated that in view of the

earlier directions of the Hon'ble Supreme Court of India to

protect material resources, this change in the classification

cannot be allowed. Learned senior counsel also states that

the rules of natural justice were flouted when this impugned

order is passed. He draws the attention of this Court to the

fact that no opportunity was given to the petitioner to present

the case and the impugned order was passed without even

considering the issues raised in the earlier orders on the

subject. Learned senior counsel draws the attention of this

Court to the Memo dated 16.07.2018 issued by the Special

Chief Secretary, wherein it is clearly mentioned that the land

an extent of Ac.8-52 cents is not a Government tank, but is a

private land belonging to the applicant. He points out that

the Special Chief Secretary clearly stated that the applicant is

entitled for granting of ryotwari patta. Therefore, the Joint

Collector was directed to take the claim from the applicant

and pass orders. Learned senior counsel points out that this

memo is taken note of by the Division Bench and it was noted

that the Tank is not a Government tank, but is a private tank

belonging to the applicant. Thereafter, the direction was

given to make an application. Learned senior counsel also

points out to the earlier investigation made in the very same

issue by the time of application to reclassification, and in

particular, he draws the attention of this Court to the

Tahsildar letter dated 22.05.2010 wherein he directed the

Executive Engineer to inspect the tank. The report shows

that the tank is a private tank and the improvement of the

holding. The letter of the Executive Engineer, Irrigation

Department, dated 17.07.2010 is also highlighted, wherein he

pointed out that the tank is not receiving water from any

sources except rain water. It is clarified that there is no

ayacut also. Lastly, learned senior counsel also points out

that the letter of the District Collector, Visakhapatnam, dated

19.06.2012, wherein after considering all the earlier

documents he came to the conclusion that the ancestors of

the petitioner dug tank and it is an improvement only. It is

clearly stated that the Tank was noted as a Government

porumboke tank by mistake. It is also made very clear in this

letter that there is no ayacut under this tank. Learned

counsel also draws the attention of this Court to the order

passed by the learned single Judge In W.P.No.6747 of 1996

and argues that the said order clearly applicable to the facts

of the case.

4) In reply to this, learned Government Pleader argues the

matter at length and in line with what is stated in the counter

affidavit. He points out that the application for ryotwari patta

was also made with a great delay. He points out that the

predecessor of the petitioner have not filed any claim under

Section 11A of the Act. He reiterates that according to the fair

adangal of the Krishyarayapuram the land is clearly

mentioned as Venkappa tank and that it has an ayacut of

Ac.18-32 cents. It is also stated that this is the source of the

irrigation for these lands. Learned Government Pleader,

therefore, argues that there is absolutely nothing contrary or

wrong in the impugned order. He points out that in view of

the orders passed by this Court when an application was

made by the petitioner it was considered and disposed of on

merits. He also urges that natural resources have to be

protected by the respondent-State authorities. He also says

that the law on the subject is well settled and that protection

of the natural resources like tanks, ponds etc., is a duty cast

upon the respondents. He also argues that against the orders

of the Joint Collector-cum-Settlement Officer, revision

petitions have to be filed and Writ is not a proper remedy.

Therefore, the learned Government Pleader clearly supports

the impugned order and concludes by saying that since it is a

water tank petitioner is not entitled to an order as prayed for.

COURT:

5) This Court after considering the submissions notices

that this is a case with a long and chequered history. The

documents relied upon by the learned counsel for the

petitioner, include the order In W.A.No.548 of 2018, which is

passed by the Division Bench of the combined High Court.

This Writ Appeal arouse out of the direction given by the

learned Single Judge to implement the earlier memos with

regard to reclassification of the land. Contempt application

was also filed as the order was not complied with. During the

course of the hearing as is recorded in the order that the

learned Advocate General has placed before the Court a Memo

dated 06.07.2018, wherein the Government came to a

conclusion among other things that the land of an extent of

Ac.8-52 cents in Sy.No.28 (old) and Sy.No.17 (new) of

Krishnarayapuram village, Pendurthy Mandal was not a

Government tank, but was a private tank belonging to the

appellant. Therefore, a submission was made to dispose of

the Writ Petition by taking an application from the petitioner

under Section11(a) of the Estate Abolition Act, 1948 and to

pass necessary orders therein. A copy of the Memo dated

06.07.2018 which was considered by the Division Bench is

also included as a material paper. Paragraphs 9 and 8 of this

Memo are as under:

"9) The Government after careful examination of the entire issue has come to the conclusion that BSO- 34(D) is not applicable for Re-classification of land in an Inam Estate Village. Accordingly, the orders issued in the reference & 4th cited are hereby canceled However, the facts and circumstances of the case are similar to those in the case decide by the Hon'ble High Court in W.P.No.6747 of 1996. Therefore, the decision rendered in the said case dated 27.09.2007 is squarely applicable to this case also. The subject land of an extent of Ac.8.52 cents in Sy.No.28 (Old) and 17 (New) of Krishnarayapuram

(V). Pendurthi (M), Visakhapatnam District is not a Government tank but private tank belonging to the applicant. Therefore, the applicant is entitled for granting of Ryotwari Patta Under Section- 11(a) of the E.A Act, 1948.

10) The Joint Collector & Settlement Officer, Visakhapatnam is hereby directed to take the claim from the applicant U/s 11(a) of the Estate Abolition Act, 1948 & pass orders expeditiously and report compliance to Government immediately in order to avoid further legal complications in the matter."

6) A reading of this memo makes it very clear that the

Government had come to a conclusion that issue of

reclassification will not arise since the facts and

circumstances of the cases are similar to the writ petition in

W.P.No.6747 of 1996. It is concluded that the judgment will

apply to the present case also. The last few lines of paragraph

9 make it clear that the tank is not a Government tank but is

a private tank belonging to the applicant. It is further held

that the applicant is entitled to the grant of ryotwari patta.

Hence, a direction is issued to the Joint Collector to take a

claim from the applicant, pass orders expeditiously and report

compliance to the Government. This Court has to observe

that the memo, was brought to the notice of the Court by the

learned Advocate General of the State himself. The contents

of the Memo were recorded in the order and thereafter a

direction was given by the Division Bench to consider and

pass appropriate orders.

7) The petitioner thereafter filed a claim petition under

Section 11-A of the Act for issuance of ryotwari patta and

enclosed thereto 19 documents. The impugned order was

passed. The main ground on which the appeal was refused

was that the land was classified as a tank and that the State

had a duty to protect the said tank which is a natural

resource. Despite the order of the Division Bench (which is

considered by the Joint Collector), in the impugned order in

page "3", the Joint Collector again held that it was a tank. He

also apparently relied upon status of the tank in April, 2018

by relying on certain photographs which shows that the tank

is full of water.

8) This Court however notices that the impugned order has

not considered the earlier reports about the land / tank. The

inspection report of the Tahsildar dated 22.05.2010 clearly

shows that the tank in question is not a communal tank and

the tank has been constructed by the ancestors of the

petitioner and it is an improvement. The Executive Engineer

of the Irrigation Department also confirms the same. The list

of minor tanks in Visakhapatnam District does not contain

this "Venkappa tank". The report of the District Collector

dated 19.06.2012 also mentions these facts. Yet, these

documents were not considered by the 4th respondent while

passing the impugned order.

9) Learned counsel for the petitioner also rightly relied

upon Section 3(4) of the A.P. (Andhra Area) Estates (Abolition

and Conversion Into Ryotwari) Act, 1908 which clearly defines

improvements as including the construction of tank, well,

water channels and other works for the purpose of storage,

supply or distribution of water for agricultural purposes.

Learned counsel points out that it is the specific case of the

petitioner that this was a tank that was dug as an

improvement for the land and is not a tank which is

communal with an ayacut. He points out that this fact is also

noticed and recorded in the Memo dated 06.07.2018, which

was considered by the Division Bench. The conclusions in

the Memo dated 06.07.2018 of the Special Chief Secretary to

the Government are thus directly against the conclusions

reached by the 4th respondent. In fact, this Court has to

agree with the submission that in the Memo a direction is

given to the 4th respondent to take the claim petition and to

pass necessary orders while holding in paragraph 9 that the

applicant is entitled to the ryotwari patta. Only this had to be

done.

10) Learned Government Pleader also tried to justify and

argue that there is an ayacut for this land. Other than the

counter affidavit no material is filed to show that there is an

ayacut for this land. Documents to the contrary are filed by

the writ petitioner. The averment in the counter affidavit

cannot be treated as proof and the contention of the learned

Government Pleader has to be overruled. This Court also

notices that in W.P.No.6747 of 1996, a learned single Judge of

this Court was considering a similar situation with respect to

the improvement of the land by digging a tank etc. Learned

single Judge also clearly held that there is no material to

show that the tank is being used to for a communal purpose.

This judgment was also considered by the Special Chief

Secretary in the memo which was later considered by the

Division Bench.

11) The Memo was brought to the notice of the Court by the

learned Advocate General appearing for the State himself.

Learned counsel for the petitioner relied upon the judgment

reported in Government of Andhra Pradesh rep. by its

Principal Secretary, irrigation and C A D Department v

S.V.Contractors, rep. by its Managing Partner M.R.L.

Rajagopal1 wherein a concession made by the learned

Government Pleader fell for consideration. Learned senior

counsel drew attention of this Court to the para-30 of the

judgment, which is filed, wherein Periyar and Pareekamni

Rubbers Ltd., v State of Keralaṅ2 was considered. It was

held that when a concession is given by the learned Advocate

General greater weight is attached to the same. This Court

also has to agree with what is stated and submitted. The

Memo dated 06.07.2018 was brought to the notice of the

Court by the learned Advocate General by himself. Therefore,

apart from the high status that the Advocate General holds

and the responsibility with which he makes the statement,

1991 (2) ALT 378

1990 AIR (SC) 2193

the fact also remains that the contents of the memo were

incorporated into the Division Bench Order. Therefore, this

Court is of the firm opinion that the respondents cannot

wriggle out of the same and pass an order contrary to the said

memo. It is also interesting to note that the copy of the

Government Memo is also one of the documents filed by the

writ petitioner before the 4th respondent. This memo is also

considered at page 3 of the impugned order. No reason is

mentioned for not agreeing with the contents of the memo.

However, there is no discussion about this memo or its

contents in the impugned order. One of the grievances of the

petitioner is about the flouting of the rules of natural justice

and lack of adequate hearing. A reading of this order

manifests the same. The petitioner has submitted the claim

petition to which Tahsildar has given a reply. The documents

considered for the appellant are mentioned in page 7 of the

impugned order. The 4th respondent merely considered four

documents for the claimant and four documents for the

respondents, of which there is a report of a Tahsildar which is

noted and photographs about the current status of the tank.

As pointed out along with claim statement 18 documents

were filed and an undertaking was given to produce the 19th

document. These documents are referred to in the course of

the preamble of the order but in the operative portion there is

no discussion about the same. Time and again the highest

courts of the land have stated that a speaking order is one

which discusses all the materials that are filed and then

comes to a conclusion. The conclusions should reflect the

consideration of the material and the contentions urged. The

law is too well settled to be repeated here. This Court finds

that the impugned order does not discuss the earlier memos,

the order of the Division Bench or the earlier reports of the

District Collector and others with regard to the tank and its

classification as private tank. Simply on the ground that

there is water in the said tank the entire case is rejected. The

petitioner should have been put on notice. Therefore, it is

clear that there is a failure to follow the rules of natural

justice which implies the consideration of all the material and

a proper hearing leading to a decision. Once there is a

failure, the order has to be set aside on this ground too.

12) In addition, once the Court comes to a conclusion that

the rules of natural justice are flouted, the existence of an

alternative remedy is not material and the Writ Petition is

maintainable. The law is also well settled on this aspect.

13) As far as delay is concerned this court is of the opinion

that the same is not very material in the present case.

Initially, the petitioner was seeking change in the

classification of the land. After realising that BSO-34D is not

applicable the Government itself has withdrawn its earlier

memos by the Memo dated 06.07.2018. Therefore, in the

opinion of this Court, on the question of delay the case cannot

be thrown out.

14) Ultimately, this court holds that the order of the

Division Bench has to be implemented in letter and spirit.

The said order considered the Memo dated 06.07.2018 which

is clear and precise, and the same was incorporated into the

order. Therefore, in the opinion of this Court what was left

open was the implementation of the Division Bench order

rather than the de novo enquiry into the subject.

15) For all these reasons the Writ Petition is allowed and the

impugned order is set aside. As a consequence, there shall be

a direction to the 4th respondent to issue a ryotwari patta to

the petitioner in terms of the Memo, dated 06.07.2018

bearing Memo No.41025/EA&AR/A1/2009, of the order of the

Division Bench. There shall be no order as to costs.

16) As a sequel, Miscellaneous Applications, if any, pending

shall also stand closed.

__________________________ D.V.S.S.SOMAYAJULU, J Date:26.08.2022 Ssv