Andhra Pradesh High Court - Amravati
K Vijayalakshmi vs The Authorized Officer And Special ... on 18 June, 2024
1
APHC010697462018
IN THE HIGH COURT OF ANDHRA PRADESH
AT AMARAVATI [3460]
(Special Original Jurisdiction)
TUESDAY ,THE EIGHTEENTH DAY OF JUNE
TWO THOUSAND AND TWENTY FOUR
PRESENT
THE HONOURABLE SRI JUSTICE NYAPATHY VIJAY
CIVIL REVISION PETITION NO: 5417/2018
Between:
K Vijayalakshmi and Others ...PETITIONER(S)
AND
The Authorized Officer And Special Tahsildar ...RESPONDENT
Counsel for the Petitioner(S):
1. P ROY REDDY
Counsel for the Respondent:
1. GP FOR ARBITRATION (AP)
The Court made the following:
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HON'BLE SRI JUSTICE NYAPATHY VIJAY
CRP.No.5417 of 2018
ORDER:
1. The present Revision is filed under Section 21 of the Andhra
Pradesh Land Reforms (Ceiling on Agricultural Holdings) Act, 1973
aggrieved by the order in L.R.A.No.1/2018, dated 7.9.2018 passed by
the I Additional District Judge-cum-Land Reforms Appellate Tribunal,
Visakhapatnam, Visakhapatnam District, reversing the order dated
05.10.2017 passed in LCC.No.230/75 on the file of the Land Reforms
Tribunal-cum-Revenue Divisional Officer, Visakhapatnam.
2. The legal representatives of the original declarant i.e. Korada
Venkata Swamy Naidu are the revision petitioners herein. Any case
under the Andhra Pradesh Land Reforms (Ceiling on Agricultural
Holdings) Act, 1973 (for short "the Act, 1973") at this length of time will
have a litigation story to tell and this case is not different.
3. The facts leading to the present Revision are as follows:-
The original declarant by name Sri Korada Venkataswamy Naidu
had filed land ceiling declaration as required under the Act and
pursuant to an enquiry, the original declarant was declared as a
'surplus land holder' of an extent of Ac.45.59 cents. The surrender
statement was filed by the original declarant on 25.02.1977 and the
following tabulated lands were to be taken over from the declarant vide
Order in LCC.No.230/75/BML, dated 29.08.1978. The lands proposed
for surrender were taken possession on 27.07.1984 as per the orders
passed by the I Additional District Judge-cum-Land Reforms Appellate
Tribunal, Visakhapatnam. The lands taken possession were tabulated
below:-
Table - 1
Sl.N Name of the village Survey Extent
o. No. (Ac. Cents)
1. Peddipalem 139/1 1.66
2. 95/1 2.05
3. Anandapuram 97/2 2.46
4. 235/2 3.21
Total : 7.72
5. 266/1 1.83
6. 231/1 0.43
7. 231/12 0.71
8. 235/9 1.14
9. Vellanki 263/1 0.53
10. 263/2 0.80
11. 263/3 0.46
12. 264/2 0.19
13. 264/5 0.39
14. 264/6 0.89
Total : 7.37
15. 262/4 1.95
16. 263/2 3.24
17. Madhurawada erstwhile 276/1 3.26
Visakhapatnam Taluk &
18. now in VSP (Rural) (M) 278 3.68
19. 276/2 0.51
20. 277/2 1.52
21. 329 9.18
22. 262/3 2.88
23. 277/1 2.62
Total : 28.84
Grand Total : 45.59
4. As against the order passed by the I Additional District Judge-
cum-Land Reforms Appellate Tribunal, Visakhapatnam under Section
10(3) of the Act, 1973, the declarant filed appeal i.e. LRA No.4/1989
proposing to surrender alternative lands in lieu of lands surrendered in
Madhurawada village (shown in block in the above table). The said
appeal was allowed and the District Collector, Visakhapatnam filed
C.R.P.No.2613/1991 before this Court and the said revision was
dismissed on 09.09.1991 directing the I Additional District Judge-cum-
Land Reforms Appellate Tribunal, Visakhapatnam to accept the
alternative lands in lieu of Ac.28.84 cents of land in Madhurawada
village.
5. Pursuant thereto, the Land Reforms Tribunal-cum-Revenue
Divisional Officer, Visakhapatnam vide Order dated 31.12.1988
directed the following tabulated lands to be taken over from the legal
heirs of the declarant in lieu of the lands in Madhurawada village.
Table - 2
Sl.N Name of the village Survey Extent
o. No. (Ac. Cents)
1. Anandapuram (V) & (M) 235/2 2.30
2. 231/6 0.43
3. 231/12 0.60
4. 263/1 0.53
5. Vellanki 264/5 0.39
6. 266/1 1.65
7. 39/1 4.50
8. Vemulavalasa 39/5 7.30
Total : 17.70
6. In view of the surrender of lands shown in Table-2, the declarant
had in total surrendered an extent of Ac.34.45 cents i.e. some total of
Ac.16.75 cents under Table-1 and Ac.17.70 cents under Table-2. The
declarant was still due to surrender an extent of Ac.11.14 cents (i.e.
Ac.45.59 cents of surplus land - Ac.34.45 cents of surrendered land).
7. At that stage, one of the legal heirs of the original declarant i.e.
Sri K.V.S. Surya Rao had given consent on 09.04.1999 to surrender
and handed over the surplus land of an extent of Ac.11.14 cents
covered by Sy.No.39/5-Part of Vemulavalasa village. Taking note of
the consent letter, the Land Reforms Tribunal-cum-Revenue Divisional
Officer, Visakhapatnam issued notice on 25.11.1999 in Form-VIII
under Rule 7(4) of the A.P. Land Reforms (Ceiling on Agricultural
Holdings) Rules, 1974 (for short "the Rules, 1974") calling for objection
from any person in the village. The notice was also put up in Mandal
Revenue Office, Anandapuram and at Gram Panchayat Office,
Vemulavalasa.
8. While so, a petition was filed by the legal representatives of the
declarant before the I Additional District Judge-cum-Land Reforms
Appellate Tribunal, Visakhapatnam on 09.12.1999 contending that the
original declarant had handed over the wetlands in an extent of
Ac.2.05 cents and Ac.2.46 cents situated in Sy.Nos.95/1 and 97/2 of
Anandapuram Village and those lands form part of first parcel of land
surrendered under Table-1 and the said wet lands i.e. Ac.4.51 cents
should be converted into double the dry land i.e. equalling Ac.9.02
cents and had requested for an enquiry and to issue order to hand
over the balance surplus land of an extent of Ac.6.63 cents in
Sy.No.39/5 of Vemulavalasa village exempting Ac.3.60 cents covered
by Sy.No.231/6, 231/12, 263/1, 264/5 and 266/1 situated at Vellanki
village and Ac.0.91 cents in Sy.No.39/5 of Vemulavalasa village, which
were handed over as surplus land on 22.01.1999 as mentioned in
Table-2.
9. Pursuant to this petition, the Land Reforms Tribunal-cum-
Revenue Divisional Officer, Visakhapatnam issued notice on
24.01.2000 to the petitioners to attend the enquiry. At that stage, the
legal heirs of deceased declarant filed W.P.No.21594 of 2002 before
this Court and sought for a direction not to dispossess them from the
land of Ac.11.14 cents in Sy.Nos.39/1 & 39/5 of Vemulavalasa Village
pending disposal of Writ Petition. This Court on 29.10.2002 granted
interim orders in W.P.MP.No.27037 of 2002 as sought for.
Subsequently, on 14.08.2003, W.P.No.21594/2002 was disposed of
with a direction not to dispossess the petitioners therein from the
above mentioned land till the disposal of their representation.
10. Pursuant thereto, an enquiry was conducted and the original
authority issued orders on 12.08.2008 rejecting the representation and
on appeal thereon, the I Additional District Judge-cum-Land Reforms
Appellate Tribunal, Visakhapatnam vide Order dated 10.12.2015
allowed the same and remanded the matter to the original authority.
The I Additional District Judge-cum-Land Reforms Appellate Tribunal,
Visakhapatnam allowed the appeal on the basis of a memo filed
stating that the legal representatives of the declarant would be
surrendering the land of an extent of Ac.11.14 cents in Sy.No.153/4 of
Cheemalapadu Village, Ravikamatham Mandal and to exempt lands of
an extent of Ac.11.14 cents covered by Sy.Nos.39/5 & 39/1 of
Vemulavalasa Village, Anandapuram Mandal and that they would not
claim the conversion of surrender of wetlands and recalculation of the
surrendered land.
11. The land proposed to be surrendered i.e. Ac.11.14 cents in
Sy.No.40-Part of Badanapadu Village, Ravikamatham Mandal is the
subject matter of the present round of litigation.
12. The petitioners being the legal representatives of the original
declarant had filed their declarations on 10.04.2017 in Form-I under
Sections 8 and 18 of the Act, 1973 stating that they had purchased the
land to an extent of Ac.5.57 cents and Ac.5.51 cents, totalling Ac.11.14
cents in Sy.No.40-Part of Badanapadu Village, Ravikamatham Mandal
under registered sale deeds bearing document Nos.3046/2016 &
3047/2016, dated 01.06.2016. The petitioners requested to accept the
land covered under the above mentioned sale deeds in lieu of the land
covered by Sy.Nos.39/5 & 39/1 of Vemulavalasa Village as surplus
land for which consent was given earlier.
13. The original authority allowed the application vide Order dated
05.10.2017 after thorough enquiry and the Tahsildar, Ravikamatham
Mandal was directed to take possession of the land to an extent of
Ac.11.14 cents covered by Sy.No.40-Part of Badanapadu Village,
Ravikamatham Mandal from the petitioners and their children under
proper acknowledgment in the presence of village elders and
Panchayat Officials and report compliance forthwith. The Tahsildar
was also directed to notify these lands with the concerned Sub-
Registrar and include them in the list of lands prohibited from
registration. The Revenue Divisional Officer, Narsimpatnam was also
directed to give necessary instructions to the Tahsildar, Ravikamatham
Mandal in that regard.
14. Aggrieved thereby, the respondent herein filed LRA No.1/2018
before the I Addl. District Judge-cum-Land Reforms Appellate Tribunal,
Visakhapatnam under the Act of 1973. The I Addl. District Judge-cum-
Land Reforms Appellate Tribunal, Visakhapatnam vide Judgment
dated 07.09.2018 reconsidered the issue at length and passed a
detailed order allowing the appeal by setting aside the order of the
original authority and the case was remitted back to the original
authority to determine afresh and accept alternative lands of Ac.11.14
cents from out of the total lands existing as on the notified date as
declared by the original declarant by giving sufficient opportunity to
both sides. Hence, the present Civil Revision Petition is filed under
Section 21 of the Act, 1973.
15. Heard Sri Roy Reddy, learned counsel for the petitioners and the
learned Government Pleader for Arbitration appearing for the
respondent.
16. The counsel for the petitioners had filed his written submissions.
In the arguments made by the counsel for the petitioners, the points
urged in the written submissions were reiterated.
17. The contentions are as follows;
(i) That the appeal filed by the Authorized Officer-cum-Special
Tahsildar, Land Reforms, Visakhapatnam is not maintainable as the same
was not filed by the State of Andhra Pradesh, but by an individual in the
executive hierarchy. In extension of the said argument, it was argued that
the appeal was filed under Section 20(3) of the Act and not under Section
20(5) of the Act, which is the specific provision to enable the Government to
file the appeal. The BSO-95 which speaks of filing of appeal by the
Government was also relied upon to contend that it is the District Collector,
who has to take steps for filing the appeal and not by any other Officer in the
hierarchy of the District Administration. As BSO would have a force of law,
having been issued in exercise of Madras Board of Revenue Regulations,
1903. As the District Collector having accepted the primary verdict of the
Primary Tribunal in the matter of surrender of alternative land resulting in
statutory communication under Section 22-A of the Registration Act, 1908,
the Authorized Officer-cum-Special Tahsildar could not have independently
filed by an appeal;
(ii) It was contended that the order of the Primary Tribunal had been
given effect to by taking possession of the alternative land i.e. an extent of
Ac.11.14 cents in Sy.No.40-Part of Badanapadu Village, Ravikamatam
Mandal by the Tahsildar, Ravikamatam on 10.10.2017. It was also
contended that the District Collector, Visakhapatnam had directed to
surrender the alternative land. It was further contended that the District
Collector, Visakhapatnam pursuant to the possession taken by the Tahsildar,
Ravikamatam had directed the said land to be included in the prohibitory
property list maintained under Section 22-A of the Registration Act, 1908 by
virtue of the Communication dated 11.12.2017 in LCC.No.230/75 LRDT. As
the verdict of the Primary Tribunal was accepted by the District Collector, the
appeal could not have been maintained before the Appellate Authority as the
right of the Government stood acquiesced;
(iii) It was contended that there has been a suppression of material
facts by the Authorized Officer-cum-Special Tahsildar about the factum of
taking possession of the subject land by the Tahsildar, Ravikamatam and the
consequential directions issued by the District Collector in acceptance of the
same. This aspect having a direct bearing on the appeal was wilfully
suppressed by the Authorized Officer-cum-Special Tahsildar;
(iv) The events subsequent to passing of the order by the Primary
Tribunal were overlooked by the Appellate Authority and even though this
aspect was specifically urged in the written submissions filed before the
appellate authority, the provisions of Land Reforms Act, 1973 have to be
strictly construed including the provision for filing the appeal under Section
20 as the statute is ex-proprietary in nature; and
(v) It was contended that the appellate authority had misconstrued the
declaration filed under Section 18 of A.P. Land Reforms Act by the
petitioners, who are the legal representatives of the original declarant. It was
contended that as the original declarant had expired, it was impossible for
him to file the revised declaration under Section 18 of the Act. Therefore, the
declaration filed by the legal representatives should be construed as
declared by the original declarant. It was contended that Section 18 of the
Act should be read harmoniously with Section 8 of the Act and that the
impugned judgment has the effect of erasing the earlier Judgment of the
same Appellate Tribunal in LRA.No.1/2008, dated 10.12.2015 as the
Appellate Tribunal in the earlier round of litigation directed the Primary
Tribunal for fresh consideration of surrender of alternative lands. The order
of the Appellate Authority in the earlier round i.e. dated 10.12.2015 had not
been challenged by the State and therefore the impugned Judgment is
contrary to the same.
18. The counsel for the petitioner had filed a Memo dated
15.12.2023 including a copy of the Government Memo dated
12.12.2007, the Order in W.P.No.1669 of 2019 dated 29.03.2019, the
Order in W.P.No.8907 of 2020, dated 07.01.2022 and the Order in
W.A.No.156 of 2022, dated 09.02.2022.
19. The learned Government Pleader had contended that the appeal
was filed by the Authorized Officer-cum-Tahsildar, Land Reforms as
per the Government Memo No.5340/L/Refs/2007-2, dated 12.02.2007
whereunder, the Committee constituted by the Government in
G.O.Ms.No.1091, dated 23.12.2004 had recommended that the
Authorized Officer should act as the representative of the Government
and contest the ceiling cases before the Tribunal by engaging the
services of the local Government Pleader wherever necessary and to
file appeals before the superior Courts against the orders of the Lower
Appellate Court, where cases were disposed of against the
Government.
20. It was contended that taking into consideration the
recommendation of the Committee, the above memo was issued
empowering the Authorized Officer to file appeal before the superior
Courts where cases are disposed of against the Government.
Therefore, it was contended that in view of the Government Memo, the
appeal filed by the Authorized Officer cannot be faulted with.
21. It was also pointed out in the grounds of appeal filed at Page 26
of the material papers that the State of Andhra Pradesh represented by
the District Collector, Visakhapatnam was arrayed as appellant No.2
before the lower Appellate Tribunal. Therefore, as the appeal is filed by
the Special Officer along with the State represented by the District
Collector, the appeal is perfectly maintainable. As regards, the other
detailed grounds, which are urged above, the Government Pleader
supported the decision of the Lower Appellate Court and contended
that there cannot be any acquiesce or waiver against statute and that
the events subsequent to the verdict of the Primary Tribunal are of no
consequence.
22. It was further contended that the Lower Appellate Court had
perfectly construed under Section 18 of the Land Reforms Act and that
the order of the Lower Appellate Court is in consonance with law and
the provisions of the Land Ceiling Act, 1973 and therefore sought for
dismissal of the Civil Revision Petition.
23. On the basis of the submissions made by the respective counsel,
the following are the substantive issues which fall for consideration:-
i) Whether the appeal could be filed by the Authorized Officer-cum-
Special Tahsildar, Land Reforms, Visakhapatnam in the facts of this
case ?
ii) Whether the State can maintain the appeal i.e. LRA No.1/2018 in
view of taking over possession of the land by the petitioners pursuant
to the order of the Primary authority?
iii) Whether the Appellate Tribunal was correct in holding that
acceptance of alternative lands is not contemplated under the Act,
1973?
24. Issue No.1:- This issue as to the maintainability was questioned
on the aspect that the State is not a party to the appeal. The contention
of the petitioners was based on account of the fact that the cause title
of the judgment in LRA No.1/2018, dated 07.09.2019 only shows the
Authorized Officer-cum-Special Tahsildar, Land Reforms, Collector's
Office, Visakhapatnam as the sole appellant. In the grounds of appeal,
the State of Andhra Pradesh represented by the District Collector was
arrayed as appellant No.2. On noticing this, this Court had called for
the Appellate Court record and on examination of the Appellate
Tribunal decree, it is found that the State of Andhra Pradesh
represented by the District Collector was shown as appellant No.2.
25. The Petitioners' counsel on being informed of this fact, had filed
I.A.No.1/2024 and impleaded the State of Andhra Pradesh as
respondent No.2 in the present Revision Petition. As the State is a
party to the appeal, the plea of the counsel for the petitioners that the
appeal could not have been filed by the Authorized Officer-cum-
Special Tahsildar, Land Reforms, Collector's Office, Visakhapatnam
solitarily without the State as appellant is negatived. As regards the
issue of BSO-95, which casts primary responsibility on the Collector to
file appeal and not the Authorised Officer, this Court is of the opinion
that since the State represented by the District Collector is a party to
the appeal, this issue need not be delved further. The issue No.1 is
held against the petitioner.
26. Issue No.2:- Pursuant to the order of the Primary Tribunal dated
05.10.2017 in LCC.No.230/75, the Tahsildar, Ravikamatam had taken
possession of the land measuring an extent of Ac.11.14 cents covered
by Sy.No.40-Part of Badanapadu Village, Ravikamatam Mandal from
the petitioners on 10.10.2017. The District Collector, Visakhapatnam
thereafter addressed a letter to the District Registrar, Visakhapatnam
on 11.12.2017 requesting him to include the lands in the list of
prohibited lands under Section 22(A)(1) of the Registration Act,1908.
27. A reading of the letter of the District Collector would make it
apparent that the order of the primary authority was accepted and
acted upon also. Nearly, three months thereafter, the appeal was filed
on 29.1.2018 along with an application to condone delay in filing the
same. The grounds of appeal do not disclose any reason for filing the
appeal after accepting the alternative land nor any whiff of a reason is
forthcoming from the record.
28. Section 20(5) of the Act, is the provision for the government to
file appeal. Section 20(5) of the Act is extracted below for ready
reference;
"Section 20(5): Where the Government are aggrieved by an order
passed by the Tribunal or the Revenue Divisional Officer, they may file an
appeal to the Appellate Tribunal against that order."
29. The scope to maintain an appeal is only where "the
government is aggrieved" and if, the government is not aggrieved,
the appeal cannot be maintained. As a necessary consequence, the
government while filing appeal in the facts of this case should explain
how it is aggrieved.
30. Coming to the primary question, i.e can the government be said
to be aggrieved of the order of the primary authority after having
accepted the same by taking possession and including the lands in the
prohibited list of lands for registration. The answer has to be a
resounding no, as there is no plea in the grounds of appeal before the
Appellate Tribunal as to how the government is aggrieved even after
taking possession of the alternative lands. It is to be noted that the
extent of the land surrendered is the same and the State is not at any
loss in accepting the alternative lands. It is curious to note that in the
grounds of appeal or in the pleadings before the Appellate Tribunal,
there is no mention of the aspect of taking possession of the
alternative lands.
31. The Appellate Tribunal did not examine the case from the view
point of maintainability of appeal considering the language employed in
Section 20(5) of the Act and observed that taking possession of
alternative lands is not contemplated under the Act. The legality of
taking alternative lands is a secondary facet of the case which should
be addressed after crossing the primary hurdle of the maintainability of
appeal on the aspect of lack of grievance. Even assuming that the
order of the primary Tribunal is not in perfect consonance to the
provisions of the Act, the appeal can be maintained only if the State is
aggrieved. This is a jurisdictional requirement and an absolute
requirement to maintain appeal.
32. It is too well known that the right to file an appeal is a statutory
right and the appeal can be maintained only if it comes within the
statutorily prescribed scope of appeal. The Hon'ble Supreme Court in
Kondiba Dagadu Kadam vs Savitkibai Sopan Gujar 1999(3) SCC
722 while considering the scope of second appeal under section 100
CPC held at para 4 as under;
"It has to be kept in mind that the right of appeal is neither a natural
nor an inherent right attached to the litigation. Being a substantive statutory
right, it has to be regulated in accordance with law in force at the relevant
time. The conditions mentioned in the Section must be strictly fulfilled before
a second appeal can be maintained and no court has the power to add to or
enlarge those grounds."
33. It is to be noticed that the principle of approbate and reprobate
prohibits a party to retain the benefit of the order and yet question the
same. This principle is based on fair play and the appeal filed by the
government contravenes this well founded principle of fairness. It is not
the case of the Government that upon filing the appeal or at any time
prior thereto, the lands surrendered were handed over back to the
petitioners and those lands were deleted from the list of prohibited
properties.
34. This parallel pursuit of litigation by the State cannot be sustained
and the appeal filed before the appellate Tribunal is declared as not
maintainable on the aspect of non-specification of grievance of the
State to file appeal in the facts of this case as required under Section
20(5) of the Act. This issue No.2 is held in favour of the petitioners.
35. Issue No.3:- The primary Tribunal under Section 10(5) of the Act
was given absolute discretion to accept or refuse to accept lands
proposed for surrender. In case, the primary Tribunal refuses to accept
lands proposed for surrender, the person concerned shall be called
upon to surrender any other land in lieu thereof. The contingencies
provided under section 10(5) of the Act do not limit the primary
Tribunal to refuse to accept only on such contingencies.
36. The Land Ceiling Act had a profound impact on the society and
in implementing the provisions of such legislations, myriad situations
arise. As long as the order of the primary Tribunal in accepting
alternative lands which are free from encumbrances helps the State in
achieving the object of the Act in seamless manner i.e re-distribution of
land holdings for any of the purposes specified in Section 14 of the Act,
such orders cannot be faulted. It should be borne in mind that the
entire purpose of the Act is crystallised in Section 14 and the orders of
the primary Tribunal should be viewed from the prism of Section 14 of
the Act. As long as the land proposed to be surrendered is free from
encumbrances, is easily accessible and habitable, the State should
accept such lands and not pursue litigation for eons as a rival claimant.
In this case, there is no dispute to the fact that the alternative lands are
free from encumbrances and are accessible and therefore, the State
can utilise the said land for any of the purposes specified in the Act
without any hindrance. Therefore, the order of the primary Tribunal in
accepting alternative lands cannot be faulted. Issue No.3 is held in
favour of the petitioners.
37. For the reasons aforesaid, the order and decree of the appellate
Tribunal are set-aside and the order of the primary Tribunal is restored.
The CRP is allowed.
There shall be no order as to costs. As a sequel, pending
applications, if any, shall stand closed.
__________________
NYAPATHY VIJAY, J
Date: 18.06.2024
IS
