IN THE HIGH COURT OF JUDICATURE, ANDHRA PRADESH AT HYDERABAD (Special Original Jurisdiction) WEDNESDAY, THE TWENTY FOURTH DAY OF NOVEMBER TWO THOUSAND AND TEN PRESENT THE HON'BLE MR JUSTICE C.V.NAGARJUNA REDDY WRIT PETITION No.14920 of 2010 Between: Sri Abdul Bin Ahmed. ..... Petitioner AND The Govt., of A.P., rep., by Secretary (Revenue Survey) & Settlement Department. Hyderabad & others. .....Respondents Counsel for the petitioner : Sri N. Arun Kumar Counsel for the respondents : AGP for Revenue The Court made the following: THE HON'BLE MR JUSTICE C.V.NAGARJUNA REDDY WRIT PETITION No.14920 of 2010 ORDER: This Writ Petition is filed for a Mandamus to declare the action of the respondents in not issuing supplementary sethwar for the land admeasuring Ac.20.00 comprised in Sy.No.138/2 of Ada village, Asifabad Taluq, Adilabad District, as illegal and arbitrary. The petitioner sought for a consequential direction to the respondents to enter his name as pattadar in the revenue records and issue notification under the provisions of the Land Acquisition Act, 1894. I have heard the learned counsel for the petitioner and the learned Assistant Government Pleader for Revenue. The father of the petitioner Ahmed Bin Sayed was the pattadar of the land admeasuring Ac.23.09 guntas bearing Sy.Nos.113/1 and 122- A to 128 of Ada Village, Asifabad Taluq, Adilabad District. After expiry of the petitioner’s father, the petitioner claimed to be in continuous possession by paying land revenue for several years. In the years 1955 and 1974 survey of the lands was undertaken. It is the case of the petitioner that no supplementary sethwar was issued in respect of his land and in the year 1976 Nizamia Jamabandhi has wrongly deleted the petitioner’s land from ryotwari patta and treated it as Government land. Feeling aggrieved by the said deletion, the petitioner filed an appeal before the District Revenue Officer, which was dismissed and consequent appeal filed before the Commissioner of Land Revenue also ended in its dismissal on 27.10.1978. The petitioner has therefore filed Writ Petition No.1787 of 1979. The respondents filed a counter affidavit in the said Writ Petition, wherein it was stated that revision survey and settlement operations in Ada village were completed and the lands in question were not assigned new survey numbers, as they were not surveyed due to thick forest on the spot and that old survey numbers were continued to be carried on in the pahanies in addition to the survey numbers that were contained in the sethwar and that continuation of old survey numbers in a sethwar is an irregularity and accordingly the said numbers were deleted from the pahanies. Having considered the respective pleas of the parties, this Court allowed the Writ Petition by order dated 27.11.1984. It is useful to extract the material portion of the judgment hereunder: “But one failed to see as to how the petitioner’s lands can be taken away by the Government merely because new survey Nos., could not be given to the old S.Nos. In paragraph No.3 of the counter affidavit it is admitted that Ahmed Bin Sayed, the father of the petitioner was the pattedar of the lands bearing S.Nos.113/1 and 128 and that these lands were not assigned corresponding new S.Nos. It is also further admitted that there is an entry to the effect that the lands were not surveyed as there were thick forests. If that is so, as to what happened to the petitioner’s lands is not explained. Simply because new survey numbers were not given and continuous of old S.Nos. is found to be irregular, the petitioner cannot be deprived of his right to possess these lands. There appears to be something wrong somewhere. At any rate, the fact remaining that during Nazim e-Bandi the pettiness was not enquired. Under these circumstances, the orders of the District Revenue Officer as well as that of the Commissioner, Survey, Settlement and Land Records (the 2nd respondent) and the records of Nazim E Jamabandi are quashed. The concerned authorities may decide the rights of the petitioners who has been in continuous possession. In accordance with law, after conducting survey of the lands and assigning the necessary survey Nos. to the lands.” After disposal of the said Writ Petition, the petitioner approached the respondents. As no action was forthcoming from them, he caused a legal notice issued on 24.08.2009. In reply to the said legal notice, respondent No.4 has stated that the Tahsildar, Asifabad, has informed that the petitioner is not cultivating the land and the same at present is under occupation of certain non-tribal as “Shivai Jamadars” and that the petitioner failed to produce the documents at the time of hearing to show that he in physical possession. Therefore the petitioner’s request for correction of survey error under Section 87 of the Andhra Pradesh (T.A.) Land Revenue Act, 1317 F was rejected and a memo to that effect was already issued to the petitioner on 24.12.2003. Today, the learned Assistant Government Pleader produced the record. In the purported memo dated 24.12.2003, which forms part of the record, it is stated that the Mandal Revenue Officer, Asifabad, in his letter dated 22.08.2003 has reported that he has enquired into the matter in respect of old (Mazi) patta lands bearing No.113/1, 122, 123, 124, 125, 126, 127 and 128 admeasuring Ac.19.21 guntas in Ada village and found that the same belong to the petitioner. That the said patta lands were cancelled by Nazimi Jamabandi Officer in the year 1975-76 and accordingly the same were merged in the Government land bearing new Sy.No.138/1 and clarified as P.P. and that the Mandal Revenue Officer, Asifabad, has reported that the pattadar is not cultivating the lands and that the same are under the occupation and cultivation of the persons, who are non-tribals and therefore the lands could not be assigned to them. On the basis of the said report, it was stated in the memo that the petitioner’s request for correction of revenue record by assigning survey number is rejected. The learned counsel for the petitioner has strenuously contended that the said memo has never been served on the petitioner, though it was marked to the petitioner to be served through the Mandal Revenue Officer and returned and that the record does not contain any proof of service of the memo on the petitioner. In the absence of any proof of service of the memo on the petitioner, the contention of the learned Assistant Government Pleader for Revenue that no relief can be granted to the petitioner, unless the said memo is challenged, cannot be countenanced. Having issued the memo, it is the bounden duty of the respondents to ensure that the same is served on the petitioner. The respondents cannot take undue advantage of their own default in service of memo and non-suit the petitioner on the ground that unless the validity of the said memo is questioned, no relief can be granted to him. Indeed, the contents of the memo are consistent with the stand of the respondents all through, namely; that as Nazimi Jamabandi Officer has cancelled the patta lands in view of non-assignment of new survey numbers, the petitioner cannot claim right over the land. The additional ground on which the petitioner’s claim is rejected is that he is not in possession. As noted above, this Court in unequivocal terms held that the action of Nazimi Jamabandi Officer in cancelling the petitioner’s lands cannot be sustained in law. This judgment therefore binds the respondents. In the light of the findings of this Court in Writ Petition No.1787 of 1989, the respondents were only expected to carry on the ministerial act of survey and entering the petitioner’s lands in the revenue record. Instead of carrying out this task, the respondents continued to throw the blame on the petitioner for not producing the record. Even the memo, referred to above, clearly shows that the ownership of the petitioner is never in dispute. The Mandal Revenue Officer has, in fact, sent his report dated 22.08.2003 to the effect that following the cancellation by Nazimi Jamabandi Officer in the year 1975-76, the lands were merged in the Government land and assigned new Sy.No.138/1. However, there is some variation in the sub-division of a survey number between this memo and letter dated 03.12.2009 addressed by the Assistant Director Survey and Land Records, Adilabad, to the Collector, Adilabad, in which it is inter alia stated as under: “In execution of the Hon’ble High Court judgment and as per the instructions of the District Collector, the land has been got surveyed and duly assigning new Sy.No.138/2 to an extent of 20.00 acres as per the possession of the petitioner, proposals have been submitted to the Director of Survey, Hyderabad along with correlation statement, sub-division record etc., to accord permission for preparation of K.J.P. and issue Supplementary Sethwar.” Irrespective of whether the land falls in Sy.No.138/1 or 138/2, as this Court already held that cancellation of patta by Nazimi Jamabandi Officer is illegal, the consequent merger also automatically becomes illegal. Resultantly, the extent of Ac.19.21 guntas included either in new Sy.No.138/1 or 138/2 shall be treated as belonging to the petitioner and revenue records required to be corrected accordingly. As regards the reason that the petitioner is not in physical possession, the same cannot constitute a ground to correct the revenue record regarding his ownership. The petitioner is not seeking recovery of possession. If once he is recognized as the owner of the property, the necessary consequences would follow and it would be for the petitioner to assert his rights over the land in question. For the abovementioned reasons, the Writ Petition is allowed by directing the respondents to carryout necessary corrections in the record of rights in respect of Ac.19.21 gutnas of land in new Sy.No.138/1 or 138/2 within a period of one month from the date of receipt of a copy of this order. After such corrections are made, the petitioner shall be free to assert his rights over the land in accordance with law. As a sequel to disposal of the writ petition in the manner indicated above, WPMP.No.18793 of 2010 filed by the petitioner for interim relief is disposed of as infructuous. ____________________________ C.V.NAGARJUNA REDDY, J Date: 24.11.2010 ES