IN THE HIGH COURT OF JUDICATURE, ANDHRA PRADESH AT HYDERABAD (Special Original Jurisdiction) MONDAY, THE EIGHTH DAY OF DECEMBER TWO THOUSAND AND EIGHT PRESENT THE HON'BLE MR JUSTICE VILAS V. AFZULPURKAR WRIT PETITION NO : 17409 of 1998 Between: ..... PETITIONER AND .....RESPONDENT 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 Counsel for the Petitioner:MR.K.V.N.BHUPAL Counsel for the Respondent No.: MR.K.L.N.SWAMY The Court made the following : Form-NIC-OGS/WP{ } IN THE HIGH COURT OF JUDICATURE, ANDHRA PRADESH AT HYDERABAD (Special Original Jurisdiction) MONDAY, THE EIGHTH DAY OF DECEMBER TWO THOUSAND AND EIGHT PRESENT THE HON'BLE MR JUSTICE VILAS V. AFZULPURKAR WRIT PETITION NO : 19261 of 1998 Between: K.Swarajya Lakshmi, W/o. Soma raju, R/o. Gowripatnam, Devarapalli Mandal, West Godavari District. ..... PETITIONER AND 1 Commissioner, Survey , Settlement and Land Records, Andhra pradesh, Hyderabad. 2 Agent to Government at Eluru, West Godavari District. 3 Special Deputy Collector, Tribal Welfare, Eluru, West Godavari District. 4 Smt. Karam Chinna Venkamma, D/o.Late Karam Bazaru, R/o. Seetappagudem, H/o.Buttayagudem (Mandal), West Godavari District. 5 Karam Sattiraju, S/o.Late Karam Bazaru, R/o. Seetappagudem, H/o.Buttayagudem (Mandal), West Godavari District. 6 Smt. Karam Mahalaxmi, W/o.Late Karam Bazaru, R/o. Seetappagudem, H/o.Buttayagudem (Mandal), West Godavari District. .....RESPONDENT(S) 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 to issue a writ, order or direction more in the nature of Certuorari Calling for the records relating to and in connection with the order passed by the 1st respondent in his No. L2/1388/84 and L2/863/91, dated 28-3-98 served upon the petitioner on 1-7-98 by Virtue of a covering letter No. L2/1388/84, 863/91, dated 18-4-98 and to quash the same and consequently to direct the respondents to refrain from taking any action against the patta granted by the Director of Settlements in G.I.S. proceedings in A.P. No. 134/79, dated 30-3-84 and to pass Counsel for the Petitioner:MR.MUMMANENI.SRINIVASA RAO HONOURABLE SRI JUSTICE VILAS V. AFZULPURKAR W.P.Nos.17409 & 19261 of 1998 COMMON ORDER: These two writ petitions challenge a common order dated 28-03-1998 passed in L2/1388/84 and L2/863/91, which are impugned in W.P.Nos.17409 and 19261 of 1998, respectively. 2. The facts, which are involved in both the matters, are almost similar except a minor change. 3. For the sake of convenience, the facts as mentioned in the affidavit in support of W.P.No.17409 of 1998 are set out as under: The petitioner claims to be the owner of Ac.4.00 cents of land in R.S.No.879/1 covered by patta No.1 (old Sy.No.216) of Muppinavarigudem, h/o.Buttayagudem, West Godavari District. The said land forms part of Gutala Zamin Estate, which was taken over by the Governmnet on 04-02-1953 under the provisions of Estate Abolition Act, 1948. The Estate had transferred patta of Ac.50-00 cents of land in favour of one Madiraju Appa Rao under patta No.1 and patta No.10. While Ac.36.70 cents of land was form part of patta No.1, Ac.13.22 cents of land was form part of patta No.10, which together works out to Ac.50-00 cents. The said Ac.50.00 cents was sold by the said Appa Rao in favour of the petitioner and her two sisters under a registered sale deed, dated 07-09-1950. Ac.13.22 cents of land covered in patta No.10 was divided into three parts during resurvey and an extent of Ac.4.00 cents thereof was allotted to Sy. No.879/1, which is subject matter of this writ petition. The petitioner has further Ac.5.40 cents of land which was sold by her under a registered sale deed, dated 30-03-1965 in favour of the petitioner in W.P.No.19261 of 1998 which is the subject of the said writ petition. It is further alleged that while the petitioners in both the writ petitions and their predecessors in title were in continuous enjoyment and possession of the aforesaid land through out, at the instance of the 5th respondent-private party in W.P.No.17409 of 1998, the Special Deputy Collector, Tribal Welfare, Eluru, initiated proceedings under Regulation 1 of 1970 and passed an order in S.R.No.19 of 1977 on 18-12-1982 ordering eviction of the petitioners on the ground that their possession is in violation of Regulation 1 of 1970. The petitioners submit that as no tribal interest was involved and the said entire transaction being within the non-tribals, the petitioners questioned the said order before the appellate authority i.e. the Agent to the Government, Eluru, in S.R.A.No.33 of 1983 by order of the said appellate authority, dated 10-12-1984, the said appeal was allowed holding that there is no violation of Regulation 1 of 1970. The petitioner approached the Survey and Settlement Officer, Eluru, under Regulation 11 (a) of the Regulation 2 of 1970. However, the said primary authority disallowed the claim by order dated 31-08-1977, whereupon the petitioner filed an appeal before the Director of Settlement under Regulation 9 (3) of the Regulations, which was numbered as A.P.No.14 of 1984. Similarly, the petitioner in the other writ petition had also applied for grant of rytwari patta under S.R.No.412 of 1977 before the Settlement Officer, Eluru. The same was rejected by the Settlement Officer under Order dated 30-08-1977. Aggrieved thereby, the said petitioner also filed an appeal under Regulation 9 (3) of the Regulations before the Director of Settlements as A.P.No.134 of 1979. The said two appeals were separately decided by the Director of Settlements vide his orders in A.P.No.134 of 1979, dated 30-03-1984 and in A.P.No.14 of 1984, dated 25-05-1984. The Mandal Revenue Officer preferred a further appeal before the Commissioner with respect to the Director’s order in A.P.No.14 of 1984, dated 25-05-1984, which is subject matter of the first writ petition. But no such appeal was preferred with respect to the order of Director in A.P.No.134 of 1979, dated 30-03-1984, which is subject matter of the second writ petition. It appears from the records that as there was no appeal with respect to the order of the Director in the second writ petition, the Commissioner entertained a suo-motu revision against the order of the Director in A.P.NO.134 of 1979, dated 30-03-1984 and heard and disposed of the same along with the appeal against the petitioner in the 1st writ petition with regard to the order of the Director of Settlement in A.P.No.14 of 1984, dated 25-05-1984. The said common orders are accordingly questioned in this writ petition. 4. I have heard Sri M.R.K. Choudary, learned senior counsel for the petitioner, appearing for the petitioners in W.P.No.19261 of 1998 and Sri K.V.N. Bhupal, learned counsel for the petitioner in W.P.No.17409 of 1998 and the learned Government Pleader. As there is appearance shown for the contesting respondents and as the learned counsel for the contesting respondents was not present, I have posted the writ petitions as partly heard on 19- 11-2008 and 21-11-2008. Neither the counsel appeared nor any representation was made and ultimately I have reserved the writ petitions for judgment. 5. Both the writ petitions are accordingly being disposed of by this common order. 6. The learned senior counsel for the petitioners has submitted that the very exercise of suo-motu revisional power by the learned commissioner is without jurisdiction and contrary to Regulations, 1970, inasmuch as, the order of the Director had attained finality as no appeal was preferred as provided under Regulation 9 (3) of the Regulations. As such, the order of the Director which had attained finality, could not have been set aside under the garb of suo-motu revisional power under Regulation 5 (c) of the Regulation. He further contends that such suo- motu revisional power is basically in the nature of a power for administrative superintendence and cannot be utilized to up-set a quosi-judicial adjudication made by the Director. He has also submitted that assuming that such power is exercisable, the same cannot be done after long lapse of time. He has relied upon several decisions, reference to which will be made hereafter, to contend that a revisional power of this nature, even assuming as being available, must be exercised within a reasonable time and not after a long lapse of time when legal rights are crystallized and the party would suffer serious prejudice. He has further submitted that the factual assumptions of the learned Commissioner in the impugned order are also erroneous and even other wise there was no warrant for interference with the order of the Director. 7. Sri K.V.N. Bhupal, learned counsel appearing for the petitioner in W.P.No.17409 of 1998, while adopting aforesaid submissions of the learned senior counsel, has further submitted that the pattas having been granted in favour of Apparao by the Estate, could not have been doubted as the revenue records itself supports the same and merely on assumptions and presumptions, the long standing possession and rights of the petitioners should not have been upset. He also submitted that out of the three sisters, who are purchasers under the sale deed of 1950, no proceedings are taken so far as one of the sisters is concerned, and the grant of patta in her favour, remains unaffected even now. The learned counsel, therefore, submits that the aforesaid impugned order is passed by the learned Commissioner at the instance of third party who has no rights whatsoever and his claim was not entertained even by the learned Commissioner. 8. The learned Government Pleader has placed entire record before the Court and has vehemently submitted that there are neither any irregularities nor any jurisdictional error on the part of the Commissioner in passing the impugned order. The power of the Commissioner under Regulation 5 (c) of the Regulation, 1970 is only meant for such situation where the Commissioner is satisfied that it is necessary to revise or cancel any of the orders, decisions or proceedings of any Settlement Officer or of the Director. He, therefore, submits that the impugned order is clearly justified on facts and in law and no ground is made out warranting issuance of writ. 9. With regard to the first contention of the learned counsel for the petitioner that the entertainment of suo-motu revision against the order of the Director in A.P.No.134 of 1979, dated 30-03-1984, is concerned, the said aspect was examined earlier by this Court, in at least three decisions. I n K.VENKATA REDDY AND OTHERS v. THE DIREACTOR OF SETTLEMENTS, SURVEY AND LAND RECORDS, HYDERABAD AND OTHERS[1], where similar suo-motu revisional power of the Director of Settlement was upheld. I n MIRZA MUZAMDAR HUSSAIN v. DODLA BHASKARA REDDY AND OTHERS[2], wherein also a Division Bench has upheld the power of the Director of Settlements to entertain suo-motu revision after having dismissed an appeal against the same order on the ground of it is time barred. Recently in DUDDUKURI SATYANARAYANA AND ANOTHER v. MANDAL REVENUE OFFICER, BHADRACHALAM MANDAL, KHAMMAM DISTRICT AND ANOTHER[3], a learned Single Judge of this Court has held that suo-motu powers which are referable to Section 5 (c) of the Regulation are wider and is not guided by the principles, that govern the exercise of powers under regular appeals under Section 9 of the Regulation. But on the facts of that case, it was found that the appeal before the same authority was rejected on the ground of delay and as such it is outside the doctrine of merger. The learned Single Judge, therefore, observed that it should be an entirely different thing when the authority chooses to exercise such suo-motu powers on its own accord while dealing with the matter on earlier occasion in a regular proceedings of appeal or revision. 10. The learned counsel also placed reliance on the principles enunciated under Section 115 (2) CPC which mandates that the revisional Court shall not entertain a revision when the order is appealable. He has placed reliance upon S.RAJESWARI v. S.N.KULASEKARAN AND OTHERS[4] in support of the said proposition. 11. The question in the present case, however, arises little differently as is evident from the facts narrated above. It is evident that while Director of Settlement passed two different orders in the matter of the rytwari patta of the petitioner in the 1st writ petition and that in the second writ petition, an appeal before the 2nd respondent was filed only with respect to the 1st writ petition in the year 1984. 12. It is apparent that some time in 1991, it was noticed by the 2nd respondent that there is no appeal preferred so far as the (A.P.No.134 of 1979) second writ petition is concerned and for the reasons which are not forthcoming, the 2nd respondent has entertained a suo-motu revision against A.P.134 of 1979 in the year 1991. 13. The Supreme Court has considered similar such power under the Bombay Sales Tax Act in SWASTIK OIL MILLS LIMITED v. H.B. MUNSHI, DEPUTY COMMISSIONER OF SALES TAX, BOMBAY, wherein it is held “The proceedings for revision, if started suo motu must not, of course, be based on a mere conjecture and there should be some ground for invoking the revisional powers.” The said view further quoted from the decision of the Supreme Court in STATE OF KERALA v. K.M.CHERIA ABDULLA AND COMPANY[5], wherein in was pointed out: “It would not invest the revising authority with power to launch upon enquiries at large so as either to trench upon the powers which are expressly reserved by the Act or by the Rules to other authorities or to ignore the limitations inherent in the exercise of those powers.” 14. Under Regulation 9 (3) of the Regulation 2 of 1970, an appeal was provided to the Commissioner against the order of the Director within a period of 60 days. The order of the Director in A.P.134/79, dated 30-03-1984, therefore, became final as no appeal was preferred against the said order till suo-motu revision was entertained by the 2nd respondent in the year 1991. 15. The learned senior counsel has laid stress on the fact that they have filed objections dated 29-01-1996 against the exercise of said suo-motu and the same is not considered. The impugned order, however, does not show consideration of any of the said objections nor there is any material produced to justify the exercise of suo-motu powers by the Commissioner in this matter. 16. The second contention of the learned senior counsel, is that even assuming suo- motu power is exercisable, the same is exercised after a long period of seven years. He submits that even if such power is assumed to exist the same must be exercised within a reasonable time. In support of the said submission, he relied upon decisions of this Court in IBRAHIMPATNAM TALUK VYAVASAYA COOLIE SANGAM REP. BY ITS GENERAL SECRETARY v. K.SURESH REDDY AND OTHERS[6], KOLA MAHALAXMI v. AGENT TO GOVERNMENT, KHAMMA AND OTHERS[7] and G.NARASIMHAMURTHY AND OTHERS v. DIRECTOR OF SETTLEMENTS, A.P. AND OTHERS[8]. All the aforesaid decisions considered similar such powers and have consistently held that such power must be exercised within a reasonable time. Though the said aspect also was raised in the objections filed by the petitioner, the learned Commissioner brushed aside the said submission by stating that there is no time limit for suo-motu revision which is a completely unsatisfactory manner of dealing with a legal contention. 17. It is well settled that the reasons in support of the decision must be found in the decision itself and cannot be supplemented by counter affidavits later on. The averments in the counter affidavit filed by the respondent in these writ petitions, therefore, is not relevant for considering either of the two contentions, as referred to above. 18. The leaned counsel also placed reliance on another decision reported in MALLILNA VENKATARAO v. DISTRICT COLLECTOR, WEST GODAVARI DISTRICT, ELURU AND OTHERS[9] for the proposition that there is no power to review in suo-motu proceedings. Facts of that case, however, are slightly different where the same authority which had exercised its’ appellate power had, later initiated suo-motu proceedings and reversed the earlier order which was held to be incompetent in the absence of any fresh material. 19. In view of the above, I, therefore, I am of the view that the impugned order passed by the Commissioner is not sustainable, so far as both the said legal contentions raised by the petitioner. 20. So far as factual aspects are concerned, though the adjudication on facts would not be made while exercising jurisdiction under Article 226 of the Constitution of India, the record shows that the Director of Settlement has satisfied himself of Apparao holding the pattas from the Estate long before the abolition and the revenue record viz., Amarakam account of 1351 fasli as well as 10 (1) account of 1372 fasli clearly supported the holding of the land of said Apparao. The encumbrance certificate produced by him also confirmed that the only transaction of sale by Apparao in favour of three sisters has taken place in 1950 under registered document. All the parties up to the subsequent sale of Ac.5.40 cents dated 19-03- 1965 in favour of the petitioner in W.P.No.19261 of 1998 confirm that no interest of tribal was involved and as such there was no violation of the Regulation 1 of 1950 as well as Regulation 2 of 1970. The Director having been satisfied under the proviso to Regulation 7 of the Regulation 2 of 1970 accepted the grant in favour of writ petitioners. 21. It is also to be noted that the Commissioner has not taken into consideration the several orders relating to the petitioners’ aforesaid lands, which were passed by the competent authorities under the cognate regulations. For instance, the Agent to the Government in his order in S.R.A.33 of 1983, dated 10-12-1984 had also examined the record which includes the documents evidencing Appa Rao’s grant as reflected in the Amarakam account of 1353 Fasli, Encumbrance Certificate for the period of 01-01-1910 to 31-12-1950, the certificate of the Village Assistant, with regard to the correlation of the land etc. 22. Another order of Special Deputy Collector, Tribal Welfare, K.R.Puram, dated 07-01- 1990 also deals with a complaint of alleged violation of Regulation 1 of 1959 as amended by 1/1970, also considered several documents and recorded statement of witnesses and ultimately found that there is no violation of the said Regulations. The evidence on record which was considered by different authorities relating to the same subject matter was therefore relevant to be taken into consideration before reaching the conclusion. The learned Commissioner, however, has passed the impugned order on the ground that original patta of Appa Rao is not produced and that pre-abolition records are not examined by the Director. Before upsetting the order of the Director on the said ground, the other material available on record which also has relevance to the issued involved, ought to have been examined. The findings of the Commissioner even on facts therefore, are apparently in ignorance of the other material appearing from the record. 23. Lastly, with the specific contention of both the learned counsel for the petitioners that the grant of patta in favour of their co-owner among the two sisters remains unaffected, has not been controverted either in the counter filed on behalf of the respondents nor the said circumstance is taken into consideration by the learned Commissioner. It is not as if that the transaction is sustainable with respect to one co-owner and not sustainable with respect to the other. The grant of pattas in favour of said third co-owner having remained unaffected even as on today, there is no reason as to why the said grant should be interfered with respect to other two co-owners. 24. In conclusion, therefore, I am of the view that the said common order of the Commissioner, dated 28-03-1998 impugned in both the writ petitions, is not sustainable and in the interest of justice, it is necessary to remit both the said matters for reconsideration to the 2nd respondent. It needless to say that the parties shall be at liberty to raise all their claims, grounds and objections as permissible under law and the Commissioner shall deal with the said contentions and decide the matters afresh, uninfluenced by any observations made here. 25. In W.P.No.19621 of 1998, it is averred in the affidavit that before the petitioner could challenge the impugned order and obtain interim protection order from this Court, the petitioner was dispossessed in execution of the impugned order. Since the impugned order is set aside and the matter is remitted to the 2nd respondent for fresh disposal, as above, the said petitioner is at liberty to agitate the said aspects also and the issue as to restitution of the petitioner shall abide the result of the orders that would be passed by the 2nd respondent after reconsideration of the matter. 26. Both the writ petitions are allowed accordingly. No costs. ________________ 08-12-2008 kvr [1] 1975 (1) A.P.L.J. 111 [2] 1987 (2) ALT 383 (DB) [3] 2006 (3) ALD 228 [4] (2006) 4 S.C.C. 412 [5] AIR 1965 S.C. 1585 [6] 1996 (2) ALD 945 (D.B.) [7] 1999 (6) ALD 718 [8] 1989 (1) ALT 124 [9] 2005 (4) ALD 498