A.P.HOUSING BOARD v. THE GOVT. OF A.P
Case at a glance
Provisions considered
Key paragraphs
- Para 33. The main contention of the learned counsel for the petitioner is that as per Section 87 of the Act, the Director of Settlements, before making over the settlement records to the Collector, and after making over the settlement records to the Collector, the Collector…
- Para 44. Section 87 of the Act reads- Settlement Officer to correct clerical and other errors admitted by all parties and application for correction of name to be made within two years: The Director of Settlements and on making over the settlement records to the Collector…
- Para 99. In the result, the writ petition is allowed. Order in Commissioner (Appeals) Proceedings No.P5/466/98 dated 04.01.2003 of 2nd respondent is set aside and the petition filed by the respondents therein before the 3rd respondent is dismissed. Parties are directed to bear their own costs.…
Judgment
Cause title
7. MIRZA NUSRAT ALI BAIG, S/O MIRZA RIYASAB ALI BAIG, R/O 10-05-32, AHMED NAGAR, FIRST LANCER, HYDERABAD.
8. FATIMA BEE ALIAS TAHERA, W/O LATE M.A.FASIUDDIN, R/O 10-5-32, AHMEDNAGAR, FIRST LANCER, HYDERABAD. (Respondents 7 and 8 are impleaded as per Court order in W.P.M.P.No.6716 of 2004 dated 27-04-2004)
9. SREE VENKATESWARA BUILDERS, HAVING ITS REGD. OFFICE AT 6- 21/1/3, KUKATPALLY Y ROADS, MOOSAPET, HYDERABAD 500 018. REP.BY ITS MANAGING DIRECTOR M.V.KRISHNA REDDY S/O LATE SRI M.CHENCHI REDDY, AGED ABOUT 59 YEARS, R/O VIVEKANANDANAGAR COLONY, KUKATPALLY, RANGA REDDY DISTRICT, HYDERABAD.
10. CH. KONDALA RAO, S/O LATE SRI CH.RAMARAO, AGED 35 YEARS, OCC: BUSINESS, R/O PLOT NO.3-13, KUKATPALLY, RANGAREDDY DISTRICT, HYDERABAD. (Respondents 9 & 10 are added as per orders in W.P.M.P.No.3901 of 2004 dt.19-4-2005)
11. MUNEERUNNISA BEGUM, D/O LATE NAWAB MUSTABA HUSSAIN, AGED ABOUT 59 YEARS, OCC: HOUSE WIFE
12. SARFRAJUNNISA BEGUM, D/O LATE NAWAB MUSTABA HUSSAIN, AGED ABOUT 57 YEARS, OCC: HOUSE WIFE
13. SYED ALI SHEREYAR S/O LATE SHAHJAHAN BEGUM, AGED ABOUT 55 YEARS, OCC: BUSINESS,
14. NOORUNNISA BEGUM, D/O LATE SHAHJAHAN BEGUM, AGED ABOUT 63 YEARS, OCC: HOUSE WIFE
15. AFSAR RIZA QAZILA BASH, D/O LATE FAKAR JAHAN BEGUM, AGED ABOUT 63 YEARS, OCC: HOUSE WIFE. (All the above 11 to 15 are added as per orders in W.P.M.P.No.5820 of 2005 dated 19-4-2005 and are rep. By their Power of Attorney Holder Mir Hasan Ali S/o late Mir Hussain Ali aged about 59 years, Occ: Business, R/o 8-2-282/A/4, Road No.3, Banjara Hills, Hyderabad) .....RESPONDENTS
Petition under Article 226 of the Constitution of India praying that in the circumstances stated in the Affidavit filed herein the High Court will be pleased to issue a writ order or direction preferably in the nature of writ of certiorari, calling for records pertaining to the proceedings in P5/466/98 dt.4.1.03 issued by respondent No.2 and proceedings No.G8/635/94 dt.9.6.1998 issued by the respondent No.3 and in proceeding No.P5/466/98 dated 4.1.03 confirming the orders of the 3rd respondent in proceeding No.G8/635/94, dated 19.6.98 and issued consequential direct to the respondents to delete the entries and to cancel the correction made in the Sethwar pursuant to the above orders and pass such further or other order or orders. the Commissioner (Appeals) the orders passed by Counsel for the Petitioner: MR.J.PRABHAKAR Counsel for the Respondents 1 to 5: G.P. FOR REVENUE Counsel for the Respondents No.6: MR. A.PULLAREDDY Counsel for the Respondents 7 & 8: MR. O.MANOHAR REDDY The Court made the following:
ORDER:
After an extent of Acs.1104-26gts in S.Nos.1009, 1043 to 1065 of Kukatpally belonging to Mir Fazeelath Hussain Khan and others was acquired by the Andhra Pradesh House Board (petitioner) by a notification dated 15.01.1963 under Section 22-A of the A.P. Housing Board Act (the Act) and the compensation payable to the landholders was finally decided by the Apex Court also, in 1993, i.e. about 30 years after the acquisition by the petitioner, Mir Fazeelath Hussain Khan S/o Nawab Rayees Yar Jung filed an application before the Joint Collector under Section 87 of the A.P. (T.A.) Land Revenue Act, 1317 F, claiming to be the pattedar and owner of the entire land bearing S.Nos.1009 and 1043 to 1065 of Kukatpally village and that its total extent is Acs.1121-71gts on the spot, but its extent is noted as Acs.1110-07gts only in the revenue records. After petitioner acquired Acs.1104- 26gts and Acs.5-21gts was acquired by Manjeera Water Works in the year 1963, an extent of Acs.11-10gts in S.No.1009 is still in his possession and enjoyment and since he was paid compensation for only Acs.1104=26gts, necessary corrections with regard to the extent in S.No.1009 of Kukatpally may be made in the revenue records. During the pendency of the enquiry, petitioner got itself impleaded as a party and contested the petition. After the death of Mir Fazeelath Hussain Khan his wife Azamunnisa Begum (6th respondent) came on record as his representative. District Revenue Officer (3rd respondent) who enquired into the case allowed the petition and ordered correction of the extent of S.No.1009 of Kukatpally village as Acs.687-03gts from Acs.666-26gts as recorded and directed to include the extent of Acs.11=10gts in the Khata of the 6th respondent, and issued a direction to the Assistant Director (Survey and Land Records) (5th respondent) to issue a Supplementary Sethwar in favour of the 6th respondent, and to make correction in the entries made in the survey records, and dismissed the prayer of the petitioner not to make any corrections. Aggrieved thereby the petitioner preferred an appeal to the Commissioner, Appeals, Office of the Chief Commissioner of Land Administration, who, by the proceedings impugned in this petition, confirmed the order of the District Revenue Officer and dismissed the appeal preferred by the petitioner. Hence, the petition.
During the pendency of the petition, persons claiming to be interested in the land in question filed W.P.M.P.Nos.3901 of 2004 and 5820 of 2005 alleging that they also have interest over the land. Since parties are claiming interest in the land in dispute they can be impleaded as parties to the petition and so the petitions i.e. W.P.M.P.Nos.3901 of 2004 and 5820 of 2005 are ordered and petitioners therein are ordered to be made respondents in this petition.
The main contention of the learned counsel for the petitioner is that as per Section 87 of the Act, the Director of Settlements, before making over the settlement records to the Collector, and after making over the settlement records to the Collector, the Collector can, correct any clerical error or errors admitted by the party concerned at any time, and correction of any wrong entry relating to the name of pattadars in the registers can be made within two years after settlement, and correction can also be made even after two years if it is established that such error crept in, due to negligence, fraud or collusion and contends that the assumption of the District Revenue Officer and the Appellate authority that there is an error in noting the extent of land and that such error is a clerical error relating to the extent of land, is not correct and hence is unsustainable. It is also his contention that since the entire land in S.No.1009 was notified for acquisition and since the landholder did not, at any time when the matter was pending before the Land Acquisition Officer, contend that the extent of S.No.1009 is more than that is notified and since he did not make a claim for an extent more than Acs.661-05gts before the Land Acquisition Officer though he had such a right as held in STATE OF MIZORAM v. BIAKCHHAWNA, where the Apex Court held that objection can be with regard to the area of the land or the amount of compensation also the order impugned is liable to be set aside. The contention of the learned counsel for the respondents is that since petitioner does not have a right over the land which is not acquired by it and since land acquired by it is not being interfered with, petitioner who would not be put to jeopardy if the correction sought is made, has no locus standi to file this petition, more so because it is not its case that it is in possession of more extent of land than that was acquired by it, and since the District Revenue Officer allowed the petition only after getting the land surveyed.
Section 87 of the Act reads-
Settlement Officer to correct clerical and other errors admitted by all parties and application for correction of name to be made within two years: The Director of Settlements and on making over the settlement records to the Collector, the Collector may, at any time, correct or cause to be corrected any clerical error or errors admitted by the party concerned. The aforesaid officer shall hear all applications made within two years after the introduction of the settlement, for the correction of any wrong entry of a pattadar’s name in the register referred to in the preceding section and if satisfied about the error whether such error has been made through negligence, fraud, or collusion shall correct the same, notwithstanding that the party concerned does not admit the error but no such application shall be entertained after two years, unless reasonable cause is shown to the said officer for the delay, and in such cases if any error is proved it shall not be corrected without obtaining the sanction of the Government.
A Division Bench of this Court had an occasion to consider the scope of section 87 of the Act in KHAIRUDDIN ALI v.
STATE OF A.P. where the question was whether the authority specified in Section 87 of the Act can change the classification of the land from ‘Government Kancha Land’ and include the name of a private pattedar, held as follows in para-5 at pages 730 & 731- “On a perusal of Section 87 and keeping in view the admitted facts of the case, we are unable to see how Section 87 is attracted, even assuming that the Commissioner of Settlements is the competent authority under Section 87 which itself rests on a doubtful premise. Under Section 87, the competent authority can correct any clerical error or error admitted by the party concerned. The section further empowers the competent authority to hear the applications made within two years after introduction of Settlement for correction of any wrong entry of pattadar’s name in the register prepared by the Survey Officer and correct such error. Moreover, no such application for correction of a wrong entry relating to the pattedar’s name can be made after two years unless there is reasonable explanation for the delay and the sanction of the Government is obtained for the proposed correction.
The power of the Government to grant such sanction is delegated to the Settlement Commissioner under Section 87-A. It is nobody’s case that there was any clerical error or admitted error in the instant case in the Sethwar that was granted. Secondly, the question of correction of entry relating to pattedar’s name does not arise. Such correction has already been made and the Government confirmed the proceedings of the Survey Officer in the year 1971. Mr. Mohammad Ali filed an application in the year 1956 itself soonafter the survey was finalized, challenging the classification of land as ‘Government Kancha Land’ and seeking inclusion of his name as pattedar. The request was conceded and Sethwar was issued accordingly. At that time, the said applicant (one of the pattedars) did not raise any objections as regards the extent of land. Only in the year 1982, i.e., 25 years later and 11 years after the Government confirmed the proceedings granting the supplemental Sethwar, the power of attorney holder of the writ petitioners/pattedars raised the dispute as regards the extent of land.
There was no explanation for the delay at all, not to speak of the propriety of the power of attorney holder in approaching the Government straightaway. Viewed from any angle, Section 87 is not at all attracted and the Commissioner of Settlement in passing an order in favour of the writ petitioners ostensibly under Section 87 of the Act, clutched at the jurisdiction which he did not possess. That was obviously because the Government by its order dated 20-09-1986 remanded the case to the Commissioner of Survey and Settlement for disposal under Section 87 of the Act. As that power of noted earlier, the power of the Government under Section 87 was only to accord sanction for rectification of errors as regards the pattedar’s name if the application was filed before the competent authority beyond two years of the preparation of the Survey Register and Commissioner under Section 87-A. The application of the nature filed on 9-9-1982 by the G.P.A. holder of Mohammad Ali – one of the grantees, could not have been filed before the Government because the Government was not exercising any original or primary jurisdiction.
Even the power of the Government or its delegate to give sanction for the correction of errors was confined only to the correction of wrong entry relating to pattedar’s name.” (emphasis supplied) the Government was delegated From a reading of Section 87 of the Act and the observation extracted above, it is clear that the authority specified in Section 87 of the Act can correct (i) ‘clerical error’, admitted by the party concerned. (ii) wrong entry relating to the ‘name’ of the pattedar, if made within two years of introduction of the settlement, and beyond two years after obtaining sanction from the Government.
What is clerical error is not mentioned or defined in the Act. In Circular No.P1/4392/94 (SS & LR) dated 15.10.1994 issued by the Commissioner, Survey, Settlements and Land Records, Hyderabad, distinction between clerical errors and errors other than clerical errors is explained. It reads- “Section 87 of Land Revenue Act 1317 Fasli does not provide definition of clerical errors and errors other than clerical errors. The clerical errors are minor errors which do not involve alteration in area, change of classification, or change of name of the pattedar. A few examples of errors, which come under the category of clerical errors, are furnished below:- a. b. c. d. Name of the Pattedar misspells, Inter-change of survey numbers, Survey No. missing in the survey map, Area is calculated wrongly though measurement on ground and records support the correct area. Since the definition of clerical error and errors other than clerical errors is not there in the Act, it is not proper to leave it to the judgement of Asst; Director Survey and Land Records whether particular survey error falls under the category of clerical error or errors other than clerical error.
Therefore, the Asst; Director, Survey and Land Records shall send detailed technical report to Director, Survey Settlement and Land Records, regarding proposed error. This is purely a technical and non-statutory function. The report so sent shall be examined at Directorate whether the error falls under the category of clerical error or error other than clerical error and the fact will be communicated to Asst. Director Survey and Land Records. On obtaining clearance from the Directorate, the Asst. Director shall sent the file to District Revenue Officer to dispose of the case at District Revenue Officers level under Section 87 of Land Revenue Act, if the error is a clerical error. If the error is other than clerical error, the District Revenue Officer, shall send proposals to Commissioner Survey Settlement And Land Records duly condoning the delay as per rules for disposal of the case by Commissioner, Survey, Settlement and Land Records, under Section 87-A of Land Revenue Act 1317 fasli.” Another clarification regarding who should condone the delay after two years, after introduction of settlement rates i.e. whether the Collector (D.R.O.) or Commissioner of Survey Settlement and Land Records reads- “The District Revenue Officer alone is competent to entertain belated petitions after expiry of statutory period of two years, provided reasonable cause is shown by the petitioners for delay and the error is other than clerical error.
Where error is other than clerical error, District Revenue Officer is competent only for condonation of delay of belated petitions and not competent to carryout correction of survey, settlements and Land Records. The District Revenue Officer has to send necessary proposals to Commissioner of Survey Settlement and Land Records for carrying out corrections duly examining including Technical scrutiny. The the case Commissioner, Survey, Settlement is competent to dispose of the case under Section 87-A of Land Revenue Act 1317 fasli.” the merits of Record prepared at the time of survey is not produced to show that there is a wrong calculation of area, though the measurement on ground and record support the correct area. So, entry regarding extent of S.No.1009 cannot be said to have been made wrongly due to a clerical mistake. By arriving at the area of a particular survey number by conducting survey thereof only, several decades after settlement, and without surveying the areas in other survey numbers adjacent to that survey number, question if the original entry in the settlement register was a wrong entry as a clerical error or not cannot be determined. There is nothing on record to show that lands in adjacent survey numbers of S.No.1009 also were surveyed and as to what is the extent found in such survey, and the extent noted in the settlement register.
The contention of Mir Fazeelath Hussain Khan and his heirs that since they are in actual physical possession of the land of Acs.11=10gts in S.No.1009, even after acquisition by the petitioner, and so they can make a claim cannot be countenanced because by the time A.P. Land Reforms (Ceiling on Agricultural Holdings) Act, 1973 (Act 1 of 1973) and the Urban Land (Ceilings and Regulation) Act, 1976, came into force Mir Fazeelath Hussain Khan, who originally filed the application before the 3rd respondent, was alive, and had filed a declaration under the Act 1 of 1973. He showed the total area covered by S.Nos.1009, 1043 to 1065 belonging to him as Acs.1109-92gts. That extent was deleted from his holding as it was acquired and by the order dated 09-12-1976, vide common order in C.C.Nos.156 to 159/ W/75 he was held to be holding 0.4083 standard holding in excess even after deleting of an extent of Acs.1109.92gts in S.Nos.1009, 1043 to 1065 of Kukatpally village.
If Mir Fazeelath Hussain Khan really was in possession of or was owning any extent over and above the area acquired by the petitioner either in S.No.1009 or 1043 to 1065, he would have had to surrender that area also, because even without that area being included in his holding he was found to be holding land in excess of the ceiling area. The contention of the unofficial respondents that since some of the declarants i.e. Bilquis Fatima, Shajahan Begum and Fakir Jahan Begum were declared to be holding less than the standard holdings they are entitled to, there was no need to surrender the area in S.No.1009 cannot be accepted because Bilquis Fatima, Shajahan Begum and Fakir Jahan Begum did not file the petition for correction. In fact in the common order in the declaration filed by Mir Fazeelath Hussain Khan and others under Act 1 of 1973 the Land Reforms Tribunal observed- “Shri Raisyar Jung, died leaving behind, in the year 1960, leaving behind wife Smt.
Bilquis Jahan Begum, two sons (1) Shiri Fazilath Hussain (CC.No.159/W/75) (2) Shri Mustafa Hussain filed as per L.R. Smt. Bashirunnisa Begum (CC.No.158/W/75) and two daughters (1) Smt. Shahjahan Begum (CC No.157/W/75), (2) Smt. Fakir Jahan Begum (CC.No.156/W/75). Hence According to Muslim Law, they are entitled to get their shares in the suit lands as detailed below in the lands bearing S.No.1007, extent 349.63 cents equivalent to 4.8283 St.Holding.” So, it is clear that the family of Raisyar Jung was said to be holding only land to the extent of Acs.349-63cents in S.No.1007 but not any land in S.No.1009. This extent of Acs.11-10gts now said to be in the possession of unofficial respondents was not declared by them or their predecessors in the declaration under Act 1 of 1973. Had the Fazeelath Hussain Khan, who filed the petition before the District Revenue Officer, or any of the unofficial respondents or their predecessors-in-title, been in possession of any extent of land in S.No.1009 by 01.01.1975 they would have shown it in their declaration filed under Act 1 of 1973. But they did not do so. For that reason also the contention of the unofficial respondents that they are in possession of some land in S.No.1009 and that the extent of S.No.1009 is more than that was acquired by the petitioner cannot be believed or accepted.
The contention that since petitioner would not be put to loss by the change ordered, because it is not its case that it is in possession of an area more than that was acquired, and that it has no locus standi to question the order impugned, has no force because, petitioner as a party to the proceedings before the Commissioner has a right to question the adverse order passed against it. Moreover, it is its specific case that the entire extent in S.No.1009, excluding Acs.5-21gts acquired by Manjeera Water works was acquired by it. If any correction in the area of S.No.1009 is made it is likely to lead to litigation in future with the petitioner. Therefore, when respondents 2 and 3 assumed the jurisdiction, which they do not possess under Section 87 of the Act and passed orders which are likely to affect the interest of the petitioner, petitioner does have a right to question such orders passed without jurisdiction.
If the unofficial respondents feel that they have a right in any part of the land in S.No.1009, 1043 to 1065 of Kukatpally village, their remedy is elsewhere but not by seeking correction of the area, by filing a petition under Section 87 of the Act, and so the order impugned is liable to be and hence is set aside.
In the result, the writ petition is allowed. Order in Commissioner (Appeals) Proceedings No.P5/466/98 dated 04.01.2003 of 2nd respondent is set aside and the petition filed by the respondents therein before the 3rd respondent is dismissed. Parties are directed to bear their own costs. ------------------------- (C.Y.Somayajulu, J.) Date: 19--04-2005 Cvrk That Rule Nisi has been made absolute as above. Witness the Hon’ble Sri Devinder Gupta, the Chief Justice on this Tuesday, the Nineteenth Day of April, Two thousand and five. ……REGISTRAR To
THE PRINCIPAL SECRETARY, GOVT. OF A.P., REVENUE DEPT, SECRETARIAT, HYDERABAD.
2. THE COMMISSIONER (APPEALS) O/O.THE CHIEF COMMR.OF LAND ADMINSTRTION, A.P., NAMPALLY STN.ROAD, HYDERABAD.
3. DIST. REVENUE OFFICER, RANGA REDDY DIST., DIST.COLLECTORATE, LAKDI-KA-PUL, HYDERABAD.
4. MANDAL REVENUE OFFICER, BALANAGAR MANDAL K.P.H.B.COLONY, RANGA REDDY DIST.
5. THE ASST.DIR.SURVEY&LAND RECORDS, R.R.DIST, DIST. COLLECTORATE, RANGA REDDY DIST, LAKDI-KA-PUL, HYDERABAD.
6. 2 COPIES TO THE GOVERNMENT PLEADER FOR REVENUE, HIGH COURT BUILDINGS, HYDERABAD. (OUT)
7. 2 CD copies
8. 1 CC to MR.PRABHAKAR
9. 1 CC to MR.NIRANJAN REDDY
1 CC to MR.DAMODHAR REDDY
1 CC to MR.MANOHER REDDY
1 CC to MS.PULLA REDDY & ABHISHEK REDDY
Questions this judgment answers
Which statutory provisions did this judgment involve?
Constitution of India — art. 226; A.P. Housing Board Act; A.P. (T.A.) Land Revenue Act — s. 87; Land Revenue Act — s. 87; Agricultural Holdings Act, 1973.
Which court decided this case, and when?
Andhra Pradesh High Court, on 19 Apr 2005. The bench was C Y SOMAYAJULU.
Precedent status how later indexed judgments have treated this case
No known negative treatment found in the Courts & Cases corpus.
This is a result about the indexed corpus, not a finding that the judgment remains good law. Coverage may be incomplete.