V.Balakishan Rao v. Government of Andhra Pradesh

THE HON’BLE SRI JUSTICE V.V.S.RAO WRIT PETITION No.12625 of 2002 ORDER: The petitioners, son and mother, filed the instant writ petition the orders of aggrieved by first respondent vide Memo No.59796/Assn.4.2/2000-5, dated 10.06.2002. By the said order the Government confirmed the order dated 30.09.1997 of the second respondent who in turn confirmed the order of the fourth respondent dated 28.06.1995. The subject matter of the writ petition is Ac.0.40 guntas of land, which was assigned to petitioners – Ac.0.20 guntas each, comprised in survey No.146 of Thummalsugur Village of Tadur Mandal in Mahabubnagar District (hereafter called, the subject land). The facts which are not disputed and are relevant for disposal of the writ petition are as follows. The petitioners’ family own land admeasuring Acs.65.00 in survey Nos.13/4, 15, 17, 18 and 19 situated at Thummalsugur Village. The land admeasuring Ac.0.40 guntas comprised in survey No.146 classified as ‘Bancharai’ is situated on the northeastern side of the petitioners’ land. The petitioners applied to the Mandal Revenue Officer, Tadur, for allotment of the land allegedly for convenient enjoyment of their land. Rule 9 of the Revised Assignment Policy promulgated the Government G.O.Ms.No.1406 dated 25.07.1958 (hereafter called, Revised Rules) in exercise of the Government powers under Section 172 of the Andhra Pradesh (Telangana Area) Land Revenue Act 1317 Fasli (the Revenue Act) enables the assignment/allotment of isolated plots contiguous to private patta land on payment of full market value even though such allottee is not a landless poor person. Be that as it is, Mandal Revenue Officer issued patta certificate dated 25.08.1990 in favour of the first petitioner assigning Ac.0.20 guntas in survey No.146. The second petitioner was assigned similar extent by patta certificate dated 31.10.1991. BJP Dalit Morcha submitted a complaint to the Government pointing out the irregular assignment of land to the petitioners. The Government by their memo dated 22.08.1992 ordered a detailed enquiry. The fourth respondent suo motu initiated revisional jurisdiction under Section 166-B of the Revenue Act. An enquiry was ordered and the Mandal Revenue Officer submitted a report vide letter dated

23.09.1992. A further report was called for from the Revenue Divisional Officer who submitted a report on 21.03.1993. Based on the reports a show cause notice dated 13.09.1993 was issued to the petitioners. They submitted explanation on 12.10.1993. Considering the same, by order dated 28.06.1995 the fourth respondent cancelled the assignment in favour of the petitioners, inter alia, observing that there is a well existing in survey No.146 which is source of irrigation to land in survey No.27 and that the assignment for such land with a well is bad in law. The fourth respondent also observed that the Mandal Revenue Officer issued patta certificate without inviting objections as required under the rules. Aggrieved by the order of the fourth respondent the petitioners unsuccessfully filed appeal before the second respondent, which was dismissed on 30.09.1997. The petitioners then filed revision before the Government. In the first instance the same was rejected on 01.06.2000. Feeling aggrieved by the same, the petitioners filed W.P.No.13187 of 2000. This Court set aside the same on the ground that the petitioners were not heard, and remitted the matter to Government for fresh consideration. Thereafter, the Government again considered the matter on 10.06.2002 and dismissed the revision petition. Counsel for the petitioners submits that the petitioners have a right to seek assignment/allotment as per Rule 9 of the Revised Rules, and therefore, even if there is no division of land in survey No.146 it is not rendered irregular. Secondly, he submits that it is not competent to the District Revenue Officer to suo motu entertain revision under Section 166-B of the Revenue Act. Lastly, he contends that as per the report submitted by the Assistant Director of Survey and Land Records, Mahabubnagar, the well in survey No.146 is intended to irrigate the land in survey No.18, and therefore, the reasoning of the authorities is unsustainable. Assistant Government Pleader for Revenue (Assignment) relies on the decision of this Court in Velupadas Veeraswamy v State of Andhra Pradesh[1] in support of the contention that as per the delegation of powers it is competent to the District Revenue Officer to entertain the revision. She refutes other contentions raised by the issued vide G.O.Ms.No.1406 petitioners. The Revised Rules contemplate assignment of isolated plots of land to patta holders for convenient enjoyment of land. To attract the said rule (Rule 9), the land should be isolated plot not exceeding Ac.0.25 cents of wet land or Ac.0.50 cents of dry land, the land should be contiguous to and necessary for the convenient enjoyment of the land privately owned by the ryot. Merely because the land is contiguous private land, a right is not conferred. If there is a huge extent of land which is contiguous to the private land, Rule 9 has no application. In this case as found by all the authorities the land in survey No.146 is more than Acs.65.00 and there is no subdivision of the same. Therefore, Rule 9 has no application. Rule 1 of the Revised Rules deals with categories of lands which are not available for assignment. Clause (xiv) thereof prohibits assignment of lands which are required or likely to be required for any public or any special purposes necessary for the provision of amenities to the community. In the opinion of this Court this clause takes care of even wells situated in Government land (in this case ‘Bancharai’ land). The report of the Assistant Director submitted to the Mandal Revenue Officer shows that there are three wells situated in survey No.146. It is also the opinion of the Assistant Director that these wells are intended as source of irrigation to the lands in survey Nos.27, 18 and 173. The right to use the water for the purpose of irrigation from a Government source of irrigation is a prescriptive right apart from being a statutory right. Nothing is brought to the notice of this Court to show that the petitioners have been using the water from the well in survey No.146. Unless and until it is demonstrated, the plea of the Counsel that the well in survey No.146 is intended to irrigate the petitioners’ land in survey No.18, cannot be accepted. The question whether District Revenue Officer can exercise revisional jurisdiction under Section 166-B of the Revenue Act is no more res integra. In Velupadas Veeraswamy (supra) considering the Andhra Pradesh District Collector’s Powers (Delegation) Act, 1961, the Government Orders and notifications issued thereunder vide G.O.Ms.No.77, dated 22.01.1968, and G.O.Ms.No.563, dated

22.05.1985, this Court laid down as under. Initially, the Government of Andhra Pradesh issued orders vide G.O.Ms.No.77, dated 22.01.1968 and notified the same in Part I of A.P.Gazette, dated 10.02.1968 delegating various powers of the District Collector under different Enactments, Rules, Regulations and Standing Orders. Appendix-I thereto enumerates the subjects reserved for District Collectors, Joint Collectors and Personal Assistant to Collector. Appendix-II contains Notification-II (G.O.Ms.No.77, dated 22.1.1968), whereunder the Government delegated powers of the District Collector to the Joint Collector and these powers relate to the matters enumerated in List II and List III in the Seventh Schedule to the Constitution of India. Under Notification-II thereof, the Governor of Andhra Pradesh authorized District Revenue Officers and Additional District Magistrates to exercise powers vested in the District Collectors inter alia under the Revenue Act. Items 50 to 57 in Notification-II were inserted as per G.O.Ms.No.563, dated 22.5.1985. All the authorities consistently found that the assignment made in favour of the petitioners by the Mandal Revenue Officer was irregular and such findings are well supported by reasons with reference to revised assignment policy. The impugned order is, therefore, unassailable. In the result, for the above reasons, the writ petition fails and is accordingly dismissed with costs. ____________ (V.V.S.RAO, J)

01.07.2010 [1] 2007 (1) ALD 435