HON’BLE SRI JUSTICE K.S. APPA RAO C.R.P.No.970 of 1991 Date: 29-10-2011 Between: Devarapalli Annapu and another ..….. Appellant And The State of A.P. ………. Respondent HON’BLE SRI JUSTICE K.S. APPA RAO C.R.P.No.970 of 1991 ORDER: This Civil Revision Petition is filed against the judgment, dated 21-02-1991 passed in L.R.A.No.7 of 1990 on the file of the Chairman, L.R.A. Tribunal, Krishna, Machilipatnam, which was filed against the order, dated 29-11-1989 passed in C.C.Nos.812 & 830/NZD/75 on the file of the Land Reforms Tribunal, Bandar (hereinafter referred to as ‘primary Tribunal’). 2. The petitioners herein are the declarants in C.C.Nos.812 & 830/NZD/75. According to the petitioners, an extent of Ac.0-25 cents in R.S.No.116/11, Ac.0-40 cents in R.S.No.106/6, Ac.0-22 cents in R.S.No.99/2 and Ac.2-50 cents in R.S.No.13 are covered by cattle sheds, residence of far servants, motor pump shed and lay rick yards including vagus. Therefore, those extents have to be excluded as land not falling within the meaning of Section 2(5) of A.P. Land Reforms (Ceiling on Agricultural Holdings) Act (for short ‘the Act’). The declarant in C.C.No.812/NZD/75 is the son of the declarant in C.C.No.830/NZD/75. 3. Initially, the primary Tribunal in its common order dated 14- 05-1977 in C.C.Nos.812 & 830/NZD/75, determined under Section 9 of the Act that the declarant in C.C.No.812/NZD/75, held an extent of land equivalent to 0.8326 S.H. in excess of the ceiling area and that the declarant in C.C.No.830/NZD/75, held an extent of land equivalent to 0.4581 S.H. and declared as a non-surplus holder. Aggrieved by the same, both the declarants preferred appeals before the Land Reforms Appellate Tribunal, Krishna-I, Vijayawada. The Appellate Tribunal in its common order dated 16-11-1978 in L.R.A.Nos.560 and 557 of 1978 remanded the case to the primary Tribunal for fresh disposal according to law keeping in view of the observations made therein. Accordingly, the Primary Tribunal reconsidered the matter and passed a common order dated 14-12-1981 holding that the declarant in C.C.No.812/NZD/75 Sri Tirumala Rao is holding an extent equivalent to 1.1264 S.H. whereas he is entitled to hold 1.2000 S.H. and hence he is declared as non-surplus holder. In respect of the declarant in C.C.No.830/NZD/75 the primary Tribunal held that the declarant is holding land equivalent to 0.6792 S.H. and declared her as non-surplus holder. Aggrieved by the same, the State of Andhra Pradesh preferred appeals before the Land Reforms Appellate Tribunal, Krishna in L.R.A.Nos.4 and 11 of 1982 and the Appellate Tribunal passed a common judgment dated 08-03-1983 holding that even though the agreement of sale (Ex.A-4) is a genuine transaction, the land covered by the agreement of sale has got to be included in the holding of the declarant in C.C.No.812/NZD/75 and accordingly allowed both the appeals. Aggrieved by the same, both the declarants have preferred C.R.P.Nos.1109 and 1110 of 1983 before the High Court and this Court, while disposing of those C.R.Ps through the order, dated 02-07-1987, remanded the matters to the primary Tribunal for reconsideration on the following two points: 1. To find out by appointing a Commissioner whether R.S.Nos.116/11, 106, 99/2 and 13 are non-agricultural in nature. 2. To set off the excess of the mother of the declarant i.e., declarant in C.C.No.830/NZD/75 to be tagged on to the holding of the declarant (son) in C.C.No.812/NZD/75. 4. On the first point, this Court has observed in the C.R.Ps that the Commissioner was not appointed to actually find out as to the nature of the land and therefore, remanded the matter to the primary Tribunal to ascertain as to the actual state of affairs by getting a Commissioner appointed at the instance of the petitioners and if they are not agricultural lands, the same be excluded from the holding of the declarants. On the second point, a direction was given as, “Insofar as the land covered by the agreement of sale (Ex.A-4) is concerned, despite the fact that there was registered partition deed of the year 1972 under Ex.A-1, the entire land is sought to be included in the holding of the mother. Therefore, even assuming that it is a correct finding, it is agreed that under Section 4 of the Act, the surplus found in the motor’s holding will have to be set off to the extent of deficit found in the son’s holding. So, this benefit also may be given on remand by the primary Tribunal.” 5. After remand of the matters from the High Court, the primary Tribunal, on enquiry, held that the Commissioner failed to execute the Commissioner’s warrant in accordance with the directions and the same was rejected against the first point. On the second point, it was held that even after extending the benefit of Section 4-A of the Act, the declarant is having a surplus of 0.2498 S.H. and ordered to surrender the same. Being aggrieved, the declarants preferred L.R.A.No.7 of 1990 before the Chairman, Land Reforms Appellate Tribunal, Krishna, Machilipatnam. In turn the Appellate Tribunal allowed the appeal in part holding that in the Commissioner’s report dated 03-06-1989 filed before the primary Tribunal, it is mentioned that an extent of Ac.1-50 cents of land is covered by vagu and stones, and an extent of Ac.0-50 cents is covered by vagu in R.S.Nos.424/1 and 427 of Chintalapalli village of Musunuru Mandal, and the same has to be excluded from computation as it is a non-agricultural land. Accordingly, the order of the primary Tribunal only to that extent was set aside. Being aggrieved, the present Revision Petition is filed by the declarants. 6. During the course of hearing the arguments, it is learnt that C.R.P.Nos.1109 and 1110 of 1983 were disposed of on 02-07- 1987 remanding the matters to the primary Tribunal with certain observations. Neither the counsel for the revision petitioners nor the learned Government Pleader filed documents and they pleaded their inability to produce the same. When the Registry is directed to put up the orders in C.R.P.Nos.1109 and 1110 of 1983, it is endorsed that as per the Computer, no such cases are available. 7. In the aforesaid circumstances, there is no other option to this Court except to pass orders basing on the record available. 8. The learned counsel for the revision petitioners mainly urged that the primary Tribunal totally erred in rejecting the report of the Commissioner, who was appointed by it as per the orders of the High Court to inspect the non-agricultural nature of the petitioner’s land and exclude them. But, on the contrary, the primary Tribunal held that the Advocate Commissioner failed to execute the Commissioner’s warrant in accordance with the directions of this Court. On such a case, the primary Tribunal ought to have appointed another Commissioner. He further urged that the appellate Tribunal also erred in accepting a part of the Commissioner’s report while not considering the report of the Commissioner regarding the other lands on the same issue. 9. On the other hand, the learned Government Pleader supported the judgment of the appellate Tribunal and sought for dismissal of the Revision Petition. 10. In view of the above contentions, now the point for consideration is whether the order, dated 21-02-1991 passed by the appellate Tribunal is sustainable? POINT: 11. Admittedly, after remand of the matter by this Court, the primary Tribunal issued a notice to the parties and the declarant in C.C.No.812/NZD/75 filed a petition through the Advocate on 10-04- 1989 for appointment of the Commissioner to inspect and report the actual state of things of the lands shown in the declarations. Accordingly, Sri M. Purushothama Rao, Advocate, was appointed as Commissioner for the said purpose and time was given upto 29-04- 1989. In the meantime, the first declarant filed another petition through his Advocate on 19-05-1989 requesting that some of the survey numbers of the land noted thereunder may also be got inspected by the Commissioner to give his finding about the non-agriculture in nature, and in pursuance of the same, a Commission warrant was issued on 25-05-1989 directing the Commissioner to inspect those lands also and to report the physical features with actual measurements. 12. The Advocate Commissioner submitted a report on 03-06-1989 mentioning the extent of the lands he inspected. Objections have also been filed by the declarants on the report of the Commissioner. After due enquiry, the primary Tribunal held that the Advocate Commissioner made local inspection of the land referred in the Commissioner’s report beyond the scope of the warrant. As per the order of the primary Tribunal, the first declarant has asked the Commissioner to inspect the land in some of the survey numbers noted thereunder, whereas in the impugned order in appeal, it is observed that the Commissioner in his report dated 03-06-1989 filed before the primary Tribunal clearly stated that an extent of Ac.1-50 cents is covered by vagu and stones; and Ac.0-50 cents is covered by vagu in R.S.Nos.424/1 and 427/1 of Chintalapalli village of Musunuru Mandal and so the said total extent of Ac.2-00 has to be excluded from the computation as it is a non-agricultural land. But, as seen from the order of the primary Tribunal, it was held that the findings of the Advocate Commissioner regarding the physical features of land referred for his inspection are vague and he failed to execute the Commissioner’s warrant in accordance with the directions accordingly, the same was rejected. 13. It is an admitted fact that the Advocate Commissioner was appointed as per the orders passed by this Court. If the declarants are aggrieved by the findings of the Advocate Commissioner, they would have filed another petition for appointment of another Commissioner to re-inspect the disputed lands. It is also an admitted fact that objections were filed by the declarant on the Commissioner’s report. When they filed objections on the Commissioner’s report, the present plea that another Commissioner was not appointed by the primary Tribunal, as urged by the learned counsel for the petitioners, is of no consequence. The reason being it is a direction given by this Court to appoint a Commissioner to ascertain the nature of the holdings of the declarants. It is also specifically noted in the said order of this Court that the appointment shall be made on the petition made by the declarants. So, it is for the declarants to file a petition for appointment of another Commissioner if they are not satisfied with the observations of the Commissioner who filed the report in the first instance. Therefore, in any view of the matter, the observations of the primary Tribunal on that score needs no interference. Accordingly, the order passed to surrender the surplus holding of the declarant to an extent of 0.2498 S.H. is sustainable. 14. However, before parting with the case, it is made clear that even the impugned order is not sustainable on merits in view of the positive observations of the primary Tribunal, as the Government did not file any C.R.P. against the impugned order, this Court is constrained to confirm the impugned order while dismissing the Civil Revision Petition in the aforesaid circumstances. 15. Accordingly, the Civil Revision Petition is dismissed. No order as to costs. _______________ K.S. APPA RAO, J Date:29-10-2011 YCR