THE HON’BLE SRI JUSTICE V.V.S.RAO WRIT PETITION No.19810 of 2000 DATED: 09.09.2009 Between: D.L.Narayana. …Petitioner and The Govt.of A.P., Rep.by its Secretary, Revenue Department, Secretariat, Hyderabad, And others. …Respondents. THE HON’BLE SRI JUSTICE V.V.S.RAO WRIT PETITION No.19810 of 2000 ORDER: The petitioner is resident of Tirupati Town. He filed the instant writ petition aggrieved by the orders of the second respondent dated 15.07.2000. By the said order passed in exercise of revisional jurisdiction under Section 7(b) of the Andhra Pradesh (Andhra Area) Estates (Abolition and Conversion into Ryotwari Act), 1948, the second respondent (hereafter called, the Commissioner), dismissed the revision petition filed by the fifth respondent against the orders of the Director of Settlements (DoS) dated 09.06.1999 wherein DoS dropped suo moto enquiry initiated in the matter of grant of ryotwari patta in favour of respondent Nos.6 to 9 herein. The petitioner, who does not claim any right to the land for which patta was directed to be ordered, is interested in the matter. He contends that the land in question is classified as kunta poramboke (water body), and therefore, it has to be preserved as communal land and no ryotwari patta can be granted in respect of the same. Maddipatla Krishna Murthy (husband of sixth respondent) and respondent Nos.7 to 9 or their predecessors filed the claim petition under Section 11(a) of the Act before the Settlement Officer, Nellore, for grant of ryotwari patta in S.R.No.61/11(a)/82, dated 13.04.1982. The petitioner alleges that though the land in survey No.91/4 admeasuring Acs.3.32 guntas is not ryoti land and that it is classified as Gujjareddy kunta in the revenue records, Settlement Officer without conducting enquiry granted patta. Sometime thereafter, the DoS suo moto took up revision petition under Section 5(2) of the Act. By an order dated 30.04.1990 DoS set aside the order passed by the Settlement Officer holding that Settlement Officer ought not have granted patta to a kunta poramboke. The claimants then preferred a revision petition before the Commissioner of Survey and Settlements, who allowed the same and remanded the matter to DoS for fresh consideration. After remand it was reconsidered and DoS by order dated 09.06.1999 dropped the suo moto revisional proceedings holding that there are no proper reasons to interfere in the matter. Aggrieved thereby, the fifth respondent preferred revision under Section 7(d) of the Act before the second respondent who, as noticed above, dismissed the revision. While doing so, second respondent recorded finding that the land in survey No.94/1 though registered in the Village accounts as Gujjareddy kunta is a ryoti land, that the claimants were in possession and enjoyment of the property from 1914 onwards and that the grant of patta is valid. Initially, the counter affidavit was filed by the Mandal Revenue Officer pointing out his objections to the impugned order passed by the second respondent and virtually supporting the case of the petitioner. This Court on 19.04.2008 directed the Government to file an affidavit having regard to the special circumstances wherein the Mandal Revenue Officer who was the revision petitioner himself filed counter supporting the petitioner’s case. Accordingly, the Principal Secretary to Government in Revenue Department filed a detailed counter affidavit. It is necessary to summarise the salient points from the counter. a) Sri A.D.V.Reddy, the then Settlement Officer, Nellore, without conducting any enquiry as to ground position granted ryotwari patta to Krishna Murthy and others relying on the made up documents like discharged registered mortgage deed dated 09.05.1940, discharged registered mortgage deed dated 12.01.1914, discharged registered mortgage deed dated 21.11.1941, gift deed dated 05.03.1966, agreement of sale between Venkatesulu Reddy and M.Krishna Murthy, and the counter affidavit filed by Tahasildar, Chandragiri. All these documents are created for selfish gain. The land in Survey No.94/1 is a communal land and falling under Section 3(b) of the Act and Section 3(16) of the Andhra Pradesh (Andhra Area) Estates Land Act, 1908 (Estates Land Act, for brevity), and therefore, a ryotwari patta cannot be granted. b) When the land is a communal land, it vests in the Government and Tahasildar is custodian of the land. c) The land in Survey No.91/3 etc., are wet lands and the water of the kunta poramboke land is being used by these lands. d) The Settlement Officer and DoS did not conduct proper enquiry while granting ryotwari patta in respect of communal land. This Court heard the learned Counsel for the petitioner and the learned Assistant Government Pleader for Revenue. It is now well settled that after abolition of estates, the land vests in the Government and estate owner or the tenants in possession of the land would be entitled to be registered as occupants of the land. However, the grant of patta is prohibited in respect of certain lands as described by Section 3(b) of the Act and Section 3(16) of the Estates Land Act. A Full Bench of this Court in P.Chenchulakshmma v E.A.Tribunal[1] considered the question whether communal lands like kunta poramboke or grama kantam can be treated as a ryoti land. Answering the query in the negative it was held. The following principles emerge from the aforesaid discussion; Lanka Lands, lands of the description specified in Section 3(16)(a)(b) and (c) of the Estates Land Act*, and forest lands are excluded from the purview of Section 13(b)(iii) of the Abolition Act and no ryotwari pattas could be granted to the landholder under that provision in respect of those lands. The mere non-user of the communal lands for the purposes for which they were intended and set apart, as on the date of the application of the Abolition Act to the estate is not material and does not alter their communal character, if, by the time the Abolition act came to be applied to the estate in which they are situate, they were lands coming within the description specified in Section 3(16)(a)(b) and (c) of the Estates Land Act. Despite the disuse to which they have fallen and despite the other users they have been unauthorizedly and illegally put to they would nonetheless continue to be lands belonging to the category specified in Section 3(16)(a)(b) and (c) of the Estates Land Act in the absence of any order under Section 20-A(1)(b) of the Estates Land Act. Therefore, the counter affidavit filed by the Government which obviously was based on the records would certainly support the contention of the petitioner that it is kunta poramboke land and communal land, in which event, a ryotwari patta cannot be granted in respect of the same, even if the various documents produced by the claimants before the Settlement Officer were found to be correct. It is no doubt true that if a person is in possession of a land, he is entitled for ryotwari patta under Section 11(a) or Section 15 of the Act, as the case may be. But, if the possession is in respect of a communal land, such person would not be entitled for any ryotwari patta, and the land continues to be communal land not being ryoti land. Therefore, this matter has to be re-enquired into by the Commissioner, if necessary, by getting the land inspected with reference to the old village accounts/revenue records. To enable such a thorough enquiry, this Court is of considered opinion that the matter should be remanded to the second respondent. Accordingly, the writ petition is allowed, and the impugned order in CCLA’S Ref.No.P3/1315/99, dated 15.07.2000, is set aside, and the matter is remitted to the second respondent, namely, the Commissioner (Appeals), Office of the Commissioner of Land Administration, Andhra Pradesh, Hyderabad, with a direction to conduct fresh enquiry and pass necessary orders. Pending such consideration of appeal, the Tahasildar shall take necessary steps to prevent any change of land use and respondent Nos.6, 7, 9 and 10 shall not create any third party interest. There shall be no order as to costs. ____________ (V.V.S.RAO, J) 09.09.2009 vs [1] AIR 1972 AP 1 (FB) * Section 3(16)(a)(b) and (c) of Estates Land Act, 1908, excludes (i) tank bed, tank bund lands, irrigation channels; (ii) threshing-floor, cattle-stands, village-sites and other lands set apart for common use of the villagers, and (iii) lands granted on service tenure, from the definition of ‘Ryoti land’.