IN THE HIGH COURT OF JUDICATURE, ANDHRA PRADESH AT HYDERABAD (Special Original Jurisdiction) WEDNESDAY, THE FOURTH DAY OF MARCH TWO THOUSAND AND NINE PRESENT THE HON'BLE MR JUSTICE G.CHANDRAIAH WRIT PETITION NO : 1960 of 1999 Between: 1. D.Eshwara Chandra Rao, s/o.Thammayya Dora , Chodavaram, Visakhapatnam Dist. 2. U.Venkateramana Murthy, S/o. Suryanarayana, Chodavaram, Visakhapatnam Dist. 3. Saka Viswanadham, S/o. Venkata Raju, Chodavaram, Visakhapatnam Dist. 4. U.China Venkataramana, S/o. Kondayya, Chodavaram, Visakhapatnam Dist. 5. Pasumarthi Ramamurthy, S/o. Adinarayana, Chodavaram, Visakhapatnam Dist. 6. Sheik Madina Saheb, S/o. amind, Chodavaram, Visakhapatnam Dist. ..... PETITIONERS AND 1 Commissioner of Survay, Settlements& Land Records, Hyderabad. 2 Dist. Collector, Visakhapatnam 3 Mandal Revenue Officer,Chodavaram, Visakhapatnam. 4 Revenue Divisional Office, Visakhapatnam Visakhapatnam Dist. .....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 call for the records relating to 1st respondent dt.10.6.98 made in C.S.S. and L.R.'s REF.B.2/489/94 confiring the orders of the special Deputy Tahsildar dt.9.3.1977 in S.R2/76/INAMS/CD and issue WRIT OF CERTIORARAI or any othere appropriate WRIT,ORDER OR DIRECTION, quashing the order of the 1st respondent dt.10.6.98 made in L.R.'s REFV.2/489/94 confirming the orders of the Special Deputy Tahsilda dt.9.3.1977 and pass. Counsel for the Petitioner:MR.M.LAKSHMANA SARMA Counsel for the Respondent No.: GP FOR REVENUE The Court made the following : ORDER: This writ petition is filed seeking Writ of Certiorari calling for the records relating to the 1st respondent dated 10.06.1998 made in Case No.V2/489/94 by the Commissioner of Survey, Settlements and Land Records, Andhra Pradesh, Hyderabad and quash the same. The case of the petitioners, in brief, is that they are the owners of land known as Narasaraju Cheruvu as also Narasaraju Cheruvu Isthuva i n Chodavaram Village (Zamindari village) Viskhapatnam district. Originally it was in the Vizianagaram Estate. The Estate was abolished in the year 1956 and taken over in the year 1960. The said property was an Inam land and a patta was granted under the Inam Title Deed Patta bearing Nos.594 to 597. It was in the old S.No.309 corresponding to the revised S.No.35. The said property and its adjacent property were originally purchased by the petitioners’ predecessors-in-title by the sale deeds dated 09.01.1882 and 14.02.1905. The said land was shown in the Inam Fair Register as a private land and ever since from the purchase, they have been in possession and enjoyment of the said property. After the Inams were abolished under the Inams Abolition Act, they filed an application before the then Tahsildar for grant of patta and the Inam Tahsildar granted patta vide order dated 01.12.1971 in R.C.No.5500/69, after conducting an enquiry according to statutory requirements. It was also their case that previously certain people have trespassed into a portion of land, claiming it to be tank poramboke. Then the petitioners’ predecessors have filed a suit in the District Munsiff Court at Chodavaram in O.S. No.388 of 1953, which was decreed, against which, an appeal was also filed in A.S. No.104 of 1956 on the file of the District Judge, Visakhapatnam and that was partly reversed. Thereafter, second appeal was also filed before this Court in S.A. No.896 of 1957, which remanded to the lower Court. In that, it was held, on evidence, that it is a private tank, belonging to the petitioners and the said decree became final. It is further case of the petitioners that the Special Inams Deputy Tahsildar, Vizianagaram initiated proceedings, suo motu, and passed an order dated 09.03.1977 canceling the patta granted in the year 1971 holding that Narsaraju tank, though a private tank, vests with the Government, in view of the amendment to Section I(a) 10(a) and 10(b) to t h e Inams Abolition Act, which came into force with effect from 20.06.1975 and private tanks are also brought with in the sweep of amended Section 2-A. It is their case that the Government did not take into consideration that the amendment has no retrospective operation, while cancelling the patta, and the same is contrary to law. Aggrieved by the same, they filed an appeal before the Revenue Divisional Officer, Vizianagaram against the orders, canceling patta, of the Special Deputy Tahsildar. Thereafter, they engaged one counsel Sri M.Subbarao, who filed an appeal and later on he died. No orders have been passed by the appellate authority and the petitioners came to know, on enquiry, that the papers in the office of the Revenue Divisional Officer, Vizianagaram were misplaced and not traced out, when Chodavaram was tagged to the jurisdiction of the Revenue Divisional Officer Visakhapatnam. Later on, the petitioners also filed further appeal before the Commissioner, Survey, Settlements and Land Records, who vide his order dated 10.06.1998 rejected the appeal, confirming the order, canceling the patta by the Special Deputy Tahsildar, though for a different reason, treating the land as a Government poramboke and not as a private tank, as held by the Special Deputy Tahsildar, Inams, though it was not urged before him by either of the parties. Assailing the same, the present petition has been filed. On behalf of the respondents 3 and 4, counter has been filed wherein it is stated that the area covered by Narasaraju Cheruvu is registered under O.S.No.309, which was correlated to resurvey No.35 with an extent of Acs.21.78. The land covered by T.D.No.596 and 595 with the part of Ayacut lands of Narasaraju Cheruvu. Therefore the Nrasaraju Cheruvu is not a part of the land covered by T.D.No.594 to 597. The lands covered by part of T.D.No.596 and 595 are registered under the Ayacut of Narasaraju Tank. During the conduct of settlement operations the lands covered by the T.Ds. were classified into different categories. Therefore the area covered by Narasaraju Tank is separately registered under O.S.No.309, which correlated to R.S.No.35 and classified and recorded as Poramboke. It is also said that the I.F.R. “Gillmen register and settlement fair Adangal discloses that Narasaraju Tank is not the part and parcel of the lands covered by T.D.No.594 to 597 granted by the Inam Commissioner. It is also submitted that the Narasaraju Cheruvu and Narasaraju Istuva are different in nature. Narasaraju Cheruvu Istuva is the land cultivated with the water of Narasaraju tank and the same was confirmed under T.D.No.594 to 597, while Narasaraju Cheruvu is the tank bed itself and is classified as poramboke and registered under R.S.No.35, which was correlated O.S.No.309 of Chodavaram village. Further, the Narasaraju Tank has lost its utility consequent on the conversion of its ayacut lands for other purposes it has become abandoned. Some portion of the land was encroached upon by the families of weaker sections and some of the land is being utilized as burial ground. A major extent of Acs.10-00 was alienated to the Government degree College for its development and the physical possession of the land was handed over to the College authorities on 30-12-1995. Learned counsel for the petitioners submitted that the petitioners were issued the patta under the Inams Abolition Act, 1948, in the year 1971 and pursuant to the same they were in possession and enjoyment of the properties. Due to amendments in the Act by adding Section 2-A, the Special Deputy Collector, who, suo motu, initiated proceedings, has no jurisdiction to initiate such proceedings against the petitioners, as the said amendment has no retrospective effect. Moreover, the said provision has no application to the pattas that were granted in the year 1971 to the petitioners. The counter filed by the respondents 3 and 4 reveals that the utility and nature of the land in question is changed and it is not a proamboke land, which is contradicted by the petitioners, but there is no specific material from either of the parties. No counter has been filed by the first respondent. The averments stated in the counter affidavit filed by the respondents 3 and 4 are not being found in the order passed by the first respondent. Therefore, I am of the view that without going into the merits of the case, the impugned order, rejecting the appeal filed by the petitioners and confirming the order passed by the Special Deputy Collector that the land in question is poramboke land and the petitioners have no right in the land in question, is set aside for the reason that the authorities have not assigned any reason and also not referred to the facts narrated in the Counter filed by the respondents 3 and 4 for setting aside the patta that was issued in the year 1971. Accordingly, the matter is remitted to the first respondent to consider afresh and dispose of the appeal, by giving an opportunity to the petitioners, within a period of four months from the date of receipt of a copy of this order. However, it is open for the petitioners to take all the pleas that are available under law. In the result, the writ petition is disposed of. There shall be no order as to costs. ________________________ JUSTICE G. CHANDRAIAH Date: 04-03-2009 LSK