HON’BLE SRI JUSTICE A. GOPAL REDDY AND HON’BLE SRI JUSTICE RAJA ELANGO W.P.No.9196 of 2010 Dated: 07-09-2010 Between: D.Sivakumar Varma …Petitioner AND The State of Andhra pradesh, Rep. by its District Collector, Visakhapatnam & others. Respondents. This Court made the following: HON’BLE SRI JUSTICE A. GOPAL REDDY AND HON’BLE SRI JUSTICE RAJA ELANGO W.P.No.9196 of 2010 ORDER: (Per Hon’ble Sri Justice A.Gopal Reddy) This probono publico has been filed by the petitioner seeking a writ of mandamus declaring the action of the respondents 1 to 3 in not safeguarding the public properties such as “Appayya Cheruvu” situated at Khandepalli Gram Panchayat at Chodavaram, Visakhapatnam District either by duly complying the provisions of the A.P. Water, Land &Trees Act, 2002 or by including the list of items of properties under Section 22-A of the Indian Registration Act which provides for notification of prohibition of registration of lands, and also the action of the 4th respondent in registering the sale deed vide document No.2465/08, dated 20.6.2008 executed by the 5th respondent and his other family members in favour of respondents 6 and 7 as arbitrary, illegal and consequently, to cancel the said sale deed, dated 20.6.2008. According to the petitioner, land to an extent of Ac.5.76 cents in Sy.No.296, P.No.12364, situated at Khandepalli Village, Khandepalli Gram Panchayat, Visakhapatnam District is known as “Appayya Cheruvu”, and that the waters of said “Appayya Cheruvu” is the irrigation source for the lands situated in and around the area. One Bhamidipati Subbarao being the owner of certain extent of lands covered by “Appayya Isthuva” sold certain lands to third parties; that after his death, his wife Bhamidipati Krishnaveni had also sold away the lands belongs to her husband situated in the said “Appayya Isthuva”; and that the wife of the petitioner also purchased the land to an extent of Ac.5.97 cents under a registered sale deed, dated 23.3.1998, but later, she sold away the same to third parties. After the death of Bhamidipati Subba Rao, his legal heirs claiming title, possession, enjoyment and entitlement of his properties including an extent of Ac.5.76 cents covered by Sy.No.296, P.No.12364, situated at Khandepalli Village, which is called as “Appayya Cheruvu” sold away the same to the 6th respondent represented by the 7th respondent. After enacting the A.P. Water, Land & Trees Act, 2002, the authorities under the said Act are empowered to notify water bodies like lakes, village ponds and minor irrigation tanks etc., but in the present case, they have not notified the “Ayyappa Cheruvu” nor instructed the 4th respondent not to register any document pertaining to the land covered by said “Ayyappa Cheruvu” as per the provisions under Section 22-A of the Registration Act. Taking advantage of the same, the 5th respondent and his family members sold away the said land. Hence, the writ petition to safeguard the land known as “Appayya Cheruvu” which, according to the petitioner, is beneficial and useful to the Ayakatdars. The Tahsildar, Chodavaram Mandal-third respondent herein filed a counter affidavit stating that the land measuring an extent of Ac.5.76 cents of Khandepalli Village was registered as “Appayya Cheruvu” at the time of Survey Settlement, and that the Settlement Officer, Visakhapatnam ordered for change of classification of the land as Zeroyithi dry land vide L.Dis No.972, dt. 31.3.1971 and granted a Ryotwari Pattan and that the change of classification was incorporated as per the orders of the Tahsildar, Chodavaram vide L.Dis.No.1151/71, dated 22.6.1971 in the Survey Settlement Records of Khandepalli Village in the name of Bhamidipati Subba Rao as a Zeroithy Pattadar vide patta No.12364, and that the said orders of the Settlement Court has become final as the same has not been challenged. It is specifically stated that there is no irrigation source for the lands situated in and around the said area and that there is no ayacut under the said tank and that in that area, no tank has been recorded by the Irrigation Department. A Settlement Patta for the land measuring an extent of Ac.5.76 cents covered by S.No.296 of Khandpalli Village was issued to one Bhimidipati Subba Rao during the year 1971 and that none of the villagers including the petitioner raised any objection at that time or till date. The Government of A.P. through its officials of the Revenue Department prepared a list of items of property, for which, registration of the document is to be refused and sent the same to the Registration Department on various grounds which include that the property in question is property belongs to Government, which is prohibited from sale. It is stated that the land in question has not been included in the list of minor irrigation source and the Engineering Department has never taken up any repairs to the said private tank as a Settlement Patta was issued by the Settlement Officer in the year 1971 in favour of Bhamidipati Subba Rao, who proved his title before the Settlement Court. Therefore, the provisions of A.P. Water, Land and & Trees Act, 2002 do not apply to the property in question as it is a private property. It is stated that the land in question was not notified/published under Section 22-A of the Registration Act for prohibition of properties to be registered. The then Tahsildar, Chodavaram has also issued a certificate vide L.Dis.No.21/2008-A1, dated 22.4.2008 stating that the land in question is classified as Zeroyithi dry land with patta No.12364 and registered in the name of Bhamidipati Subba Rao as pattadar. As the property in question has not been notified under Section 22-A of the Registration Act, the Sub- Registrar-4th respondent has registered the sale deed vide document No.2645/2008, dated 20.6.2008 on the strength of market value guidelines and also on the basis of the certificate issued by the Tahsildar, Chodavaram. Therefore, the said registration is done as per the rules and that the said document is a legal and valid document. 4th respondent also filed a counter affidavit stating that the land in Sy.No.296 of Khandepalli Village has been noted as Zeroyathi dry land as per market value guidelines register maintained in their office. The concerned parties obtained certificate from the Tahsildar, Chodavaram vide L.Dis.No.21/2008 to the effect that the land in question is Zeroythi dry land and not a Government land. As the survey number was also not published under Section 22-A of the Registration Act for prohibition of properties to be registered, there is no bar for the registration of the sale deed that is sought to be cancelled by the petitioner. In spite of filing the two counter affidavits that were served on the petitioner on 5.7.2010 and 17.6.2010, the petitioner has not chosen to controvert the said facts. Therefore, the averments stated in the counters are deemed to have been accepted by the petitioner. Further the petitioner himself categorically admitted that his wife had purchased land to an extent of Ac.5.97 cents under a registered sale deed, dated 23.3.1998 in the said survey number, but during the course of time, she sold away the same to third parties, which itself belies the contention of the petitioner that the land in dispute is earmarked as an irrigation tank in the name of “Appayya Cheruvu” and the same has to be protected by the Government. When the Settlement Operation was taken up in the year 1971, any Zeroithy Pattadar could have objected before the Settlement Officer or before the Settlement Court with regard to the classification of a particular patta land as a poramboke land etc., and basing upon the said objections made by the Zeroithy Pattadar, the Settlement Officer/Settlement Court will decide the issue and accordingly, record the land in the Settlement Register whether it is a Zeroithy land, Government land or Poramboke land or an irrigation tank if the land is covered by water bodies etc. Once the Settlement Officer decided the said issue considering the objections at the time of Survey and Settlement, persons, aggrieved, if any, have to carry the matter in appeal. Unless the same is set aside, it holds good. The fact remains that as early as in the year 1971 the land in question was recorded as a Zeroithy Patta land in the name of Bhamidipati Subba Rao, and that the petitioner’s wife also purchased a part of the land in the year 1998 i.e. 27 years thereafter and sold the same to third parties, which itself shows that the present writ petition has been engineered with an eyesore about the skyrocketing of the prices and expansion of the town due to the demand for the land. Therefore, in our view, the present writ petition as has been filed by the petitioner lacks bona fide and no public interest has been involved. Accordingly, the writ petition is dismissed with costs of Rs.5,000/- (Rupees five thousand only) payable by the petitioner to the A.P. State Legal Services Authority within a period of four weeks from today. Failure to deposit the said costs, it is open for the A.P. State Legal Services Authority to recover the same by following the due procedure. No order as to costs. ________________ A. GOPAL REDDY, J. __________________ SEPTEMBER 07, 2010 RAJA ELANGO, J. Note: Office to communicate a copy of this order to the A.P.State Legal Services Authority. (B/o.) Tsr.