THE HON'BLE SRI JUSTICE C.Y.SOMAYAJULU WRIT PETITION No.27770 of 1997 & W.P.M.P.No.2207 of 2006 ORDER: 1 This writ petition is filed to declare the action of the first respondent i.e. State of A.P. represented by its Secretary, Revenue Department, in initiating proceedings in Memo No.3 S/9599/97-7 as arbitrary, illegal and without jurisdiction. 2 The averments, in brief, in the affidavit of the General Power of Attorney holder of the petitioner, filed in support of the writ petition, are 8916 sq. yards of land in S.No.20/4 of Somajiguda village was purchased by her from Smt. Varkatunnisa Begum, the recorded Pattedar and possessor of the said land in the revenue records from 1923 onwards, under a registered sale deed dated 03-05-1967 after satisfying herself with the title of her vendor, and has been in continuous possession and enjoyment thereof from 1967 onwards by paying A.P. Non Agricultural Land Assessment Tax for that land from 1972 onwards. In 1976 she filed a declaration under the provisions of the Urban Land Ceiling and Regulation Act 1975 (the Act). In 1983 the authorities under the Act informed her that the said land is recorded in the Town Survey Land register (TSLR) as Government land. As she, on verification, came to know that that land was recorded as government land in TSLR she made an application for rectification of the said error in TSLR, whereupon she was informed that inasmuch as the Town Survey was concluded in 1978 itself, her request for rectification of TSLR cannot be considered. As no notice of survey was served on her, she was not aware of the proceedings relating to survey. So she gave a detailed representation for rectification of the TSLR, whereupon the District Collector, Hyderabad (third respondent), after getting the said land surveyed and conducting a spot inspection, was convinced with her possession and enjoyment over that land as her patta land and sought permission of the Commissioner of Survey, Settlements and Land Records (second respondent) to correct the entries in the TSLR. Second respondent, after verification, permitted the third respondent to make appropriate corrections and so the third respondent made the necessary corrections in the TSLR and the connected records, and issued certified copies of those corrected records to her in 1994. Long subsequent thereto she received the memo impugned in the writ petition, without any other papers, to appear before the Minister for Revenue on 23.05.1997. When she appeared before the Minister for Revenue and informed him about her not receiving any documents along with the memo served on her, the Hon’ble Minister gave a direction to the third respondent to furnish copies of all the documents to her. But copies of some of the documents only were furnished to her by 19.07.1997 and copies of the remaining documents were furnished only on 23-09-1997. Thereafter she came to know that the Hon’ble Minister passed an ex parte order of interim suspension of the order correcting the entries in the relevant registers, thereby depriving her legitimate right to the property purchased by her. Inasmuch as the first respondent has no power to review the order of the second respondent correcting the relevant entries in TSLR and other records, she filed the writ petition questioning the memo issued by the first respondent. 3 The Law officer working under the third respondent filed his counter affidavit on behalf of the respondents inter alia contending that Khairtabad village, which was a Sarfekhas village, was initially surveyed in 1324 Fasli (1915 AD). Thereafter during 1917 Somajiguda village was carved out from a part of S.No.227 of Khairtabad village and was surveyed independently retaining a part of old S.No.227 in Khairtabad Revenue village. During the years 1968 to 1970 Town Survey of Somajiguda village was conducted under the provisions of the Andhra Pradesh Survey and Boundaries Act, 1923 (APSAB Act) whereat S.No.227 of Somajiguda was correlated to T.S.No.43/3, Block-E, Ward No.87 and was classified as Government Gairan land covering an extent of 13,678 sq. meters. As per the Wasool Baqui of 1353 Fasli (1944 AD) S.No.20 of Somajiguda village, whose total extent is Ac.17-37 guntas, was classified as patta land and was split into four sub divisions i.e. 20/1 consisting Ac.3.02, 20/2 consisting Ac. 1-11, 20/3 consisting Ac.1-28 and 20/4 consisting Ac.11-36; Old S.No.20/1 to 4 of Somajiguda village are given different town survey numbers 1 to 6, 8/1, 17, 18, 19/1, 20/1 and 20/3, whose total extent came to Ac.21.36 guntas, while the original extent of old S.No.20/1 to 4 was only Ac.17-37 guntas. The names of writ petitioner, her brother and her general power of attorney are shown as owners of 2,532 Sq. Meters in T.S.No.39, 2,840 Sq. meters in T.S.No.37 and 3,144 sq. meters in T.S.No.38 respectively. The writ petitioner and her family members are in possession of old S.No.218/1 and 2 part, 223/part, 225/part of khairtabad village. The title deeds of the writ petitioner indicate that she purchased the land in S.No.20/4 of Somajiguda village. As old S.No.218/1 and 2 part, part of S.No.223, and part of S.No.225 of Khairtabad village correlate to new Town Survey Nos. 37, 38 and 39 in Block E of Ward No.87, it is clear that the writ petitioner is in possession of S.Nos.218/1 and 2 part, part of S.No.223 and part of S.No.225 of Khairtabad village, which are different from S.No.20/4 of Somajiguda village. Inasmuch as the results of the survey operations were published in A.P. Gazette No.60 dated 25-09-1976 as per Section 13 of APSAB Act, the entries made therein became final and as any person aggrieved by those entries would have to file a suit within 3 years from the date of Gazette publication questioning the survey, and as no such suit was filed petitioner is not entitled to any relief. On the application of the petitioner for correction of entries, the third respondent, under a misapprehension of law and facts, sent proposals to the second respondent for correction of the entries in respect of T.S.No.43/3 Block-E, Ward No.87 (Old S.No.20/4) Somajiguda in favour of the writ petitioner to an extent of 2706 sq. meters, and sought permission for correction of the entries in respect of the land covered by T.S.No.19/2 and part of T.S.No.20/1, Blcok-F, Ward No.87, though he has no such power to do so under the APSAB Act. Petitioner, after purchasing the land in S.No.20/4 of Somajiguda, a patta land, had encroached upon the land in S.No.227 of Khairatabad village, which is a government land. Payment of non-agricultural land assessment tax, allegedly made by the petitioner, would not confer any title to the land which does not belong to her. Inasmuch as T.S.No.43/3, Block-D, Ward No.87 is classified as government land notice of proposed survey was served on the registered holder i.e. Tahsildar, Urban District on 28.05.1974. After noticing that government land in T.S.No.43/3, Block-E, Ward No.87 and T.S.No.20/1, Block-F, Ward No.87 is changed as patta land, third respondent sent a factual report to the first respondent to take necessary action for protecting the interest of the government. Therefore, the first respondent issued the impugned notice dated 23.05.1997 to the petitioner to represent her case. As the third respondent requested the first respondent to suspend the orders of the second respondent dated 09.05.1994, interim suspension was granted by the first respondent. All the papers on which the third respondent is relying on were served on the petitioner. Since the prayer made in this writ petition, in effect and in substance, is to declare the title of the petitioner, which relief can only be granted by a civil Court after trial, and as the survey proceedings undertaken as per the provisions of the APSAB Act had become final, petitioner is not entitled to any relief. WPMP No. 2207 of 2006 4 Before referring to the contentions of Sri Challa Seetharamaiah, learned Senior Advocate appearing on behalf of the petitioner and the learned Advocate General appearing for the respondents I feel it appropriate to dispose of WPMP No.2207 of 2006, filed by the respondents in the writ petition, to receive the documents filed therewith as additional material papers. 5 In the affidavit filed in support of this miscellaneous petition, which is sworn to by the third respondent, he alleged that the law officer attached to his office had, in the counter affidavit filed in the Writ Petition on behalf of the respondents, failed to mention all the essential facts required for adjudication of this writ petition. In pursuance of the notification under section 5 of the APSAB Act relating to conduct of the town survey in the Municipal corporation limits of Hyderabad and Secunderabad issued by the Government on 04.05.1960 and published on 19.05.1960, notification under Section 6 of that Act was issued by the survey officer on 30.06.1960 and was published in the prescribed manner on 29.09.1963, inviting all the persons having interest in the lands in the areas of Hyderabad and Secunderabad Municipal Corporation to attend survey either in person or through an agent, and notices to all the owners, who owned lands adjacent to government lands were issued for determination of the boundaries, as laid down by Section 9(2) of the APSAB Act. Though that notice was received and acknowledged by the petitioner and others on 03.07.1975, they failed to raise any objection. After completion of the demarcation notification, as contemplated by Section 13 of the APSAB Act, was issued in the District Gazette on 25.09.1976, which became final as the petitioner did not avail the remedy of appeal within three years. Petitioner filed this writ petition suppressing the service of notice under Section 9(2) of APSAB Act on her. As the papers filed along with the miscellaneous petition are relevant for disposal of this writ petition they may be received as additional material papers on behalf of the respondents. 6 The General Power Of Attorney of the writ petitioner filed her counter affidavit inter alia alleging that inasmuch as the deponent to the counter affidavit filed on behalf of the respondents in the writ petition admitted that Ac.17-37 guntas in S.N.20 of Somajiguda, which is classified as patta land, was split into four sub divisions and that “Statutory notices have been served on the registered holders i.e. Tahsildar, Urban District on 28-05-1974 since S.No.43/3 Block – E, Ward No.87 has been classified as Government land”, the allegations in the affidavit filed in support of this WPMP that notice under Section 9(2) of the APSAB Act was served on the petitioner in respect of the land involved in this writ petition cannot be true, because the report of the third respondent dated 19.12.1996 also shows that notice under Section 9(2) of APSAB Act was served only on the Urban Tahsildar in respect of T.S.No.43/3 of block-E of Ward 87 on 28.05.1974, as it was recorded as government land in TSLR. Since copies of the notices allegedly served on the petitioner are not filed, and as the signatures found in the register produced, as one of the additional material papers, are not the signatures of the petitioner or her family members, additional material papers sought to be filed with a view to show that the petitioner received notices of survey are but concocted and so the petition is liable to be dismissed. 7 The deponent to the counter affidavit filed on behalf of the respondents in the writ petition filed his reply affidavit in W.P.M.P. alleging that inasmuch as the counter affidavit filed by him in the writ petition was prepared as per the records available in the Collectorate, and as the factum of service of notice under Section 9(2) of the APSAB Act on the petitioner and her family members came to light only after the records from the Director of Survey and Land Records were called for, after he filed his counter affidavit in the Writ Petition, he could not mention the factum of service of notice of survey on the petitioner and others in his counter affidavit filed in the Writ Petition. So the entire original record pertaining to the survey and subsequent proceedings of the Collector and the Commissioner of Survey and Settlement are being placed before the Court for its perusal. So they may be received as additional material papers on behalf of the respondents. 8 This WPMP seeking leave of the court to receive additional documents, obviously is filed in view of Rule 12(iii) of the Writ Proceeding Rules 1977. As the deponent to the counter affidavit in the writ petition, through his reply affidavit in this WPMP, swore to the fact that the counter affidavit in the Writ Petition was prepared on the basis of the record available in the Collectorate only and without verifying the records in the Survey department, and as it is stated that the records received from the Survey department show that notices under Section 9(2) of the APSAB Act were served on the petitioner and her family members, and as judicial notice can be taken of the fact that government officials arrayed as respondents in Writ Petitions, if they are successors in office of an officer whose action is challenged therein, usually give instructions for preparation of the counter affidavits without taking pains to go through the entire record, either due to lack of patience or lethargy or for other reasons like it is not they but their predecessors in office or other officers that had dealt with the file earlier, and feel that it is not their responsibility to put forth all the facts before the Court, as it is the action of some other officer that is being questioned in that writ petition, I accept the explanation given by the deponent to the reply affidavit filed in this WPMP. For that reason and since it would be appropriate to dispose of the writ petition on the basis of all the relevant records, WPMP No.2207 of 2006 is allowed and additional material papers filed therewith are received for perusal by the Court. 9 The long and short of the contentions of Sri Challa Seetharamaiah learned Senior Advocate appearing on behalf of the petitioner are as no notice of survey under the provisions of the APSAB Act was served on the petitioner, survey proceedings allegedly undertaken by the respondents do not bind the petitioner, and as there is no specific denial of the averment in the affidavit filed in support of the writ petition that no notice of survey was served on the petitioner or any of the members of their family in the counter affidavit filed on behalf of the respondents in the writ petition, where it is stated that notice of survey was served on the Tahsildar Urban District on 28.05.1974, inasmuch as S.No.43/3 Block E Ward 87 is classified as government land, it should be taken that respondents impliedly admitted that no notice of survey was given to the petitioner, and as they thought it fit to file a petition to receive additional material papers on their behalf only after he made all his submissions, and came out with a reply affidavit at a very belated stage that notice of survey was served on the petitioner and her family members, it is easy to see that the record now produced by the respondents as additional material papers, could or might have been brought into existence by the respondents for the purpose of this petition, and so that record should not be taken into consideration for disposal of this petition, and since the title of Smt. Varkatunnisa Begum, the vendor of the petitioner to the property purchased by the petitioner under the registered sale deed dated 03.05.1967 is not disputed, and as the petitioner came into possession of 8,916 Sq. yards in S.No.20/4 under that sale deed, and inasmuch as the names of the vendor of the petitioner and the petitioner were recorded in the revenue registers as pattedars of that land, and as the petitioner has been paying the non-agricultural land assessment tax also in respect of the land purchased by her, and as the petitioner had immediately after her coming to know about her land being recorded as government land in the revenue register made an application to the first respondent for correction of those entries in the revenue registers, and as the third respondent, after verifying all the records and ground realities, submitted a report to the second respondent, and as the second respondent also, after having satisfied himself that there was a mistake in the survey, permitted correction of the entries in the relevant registers, necessary corrections were made in the survey and other registers, but the successor in office of the third respondent, for reasons best known to him, seems to have addressed a letter to the first respondent for reviewing the decision of his predecessor in office and the third respondent correcting entries in pursuance of the said representation of the petitioner. It is his contention that in view of Section 9(2) of the APSAB Act and Rules 5 and 10 of the Rules framed under the APSAB Act, which read Section 9(2): Notice to Registered holders of lands affected:- Notice of every decision of the survey officer under Section 9(1) shall be given in the prescribed manner to the registered holders of the lands the boundaries of which may be affected by the decisions. Rule 5: The notice issued under Section 9(2) shall, except in the case of street surveys and boundary surveys, be in the form of an extract from the field register relating to the holding, and shall state the time within which and the officer to whom an appeal may be presented and shall be accompanied by a printed form of acknowledgement which shall be signed and dated in token of the receipt of the notice and returned to the officer who issued it. (Underlining mine) Rule 10: When the registered holder or other person on whom any of the notices or communications referred to in the foregoing rules is to be served is absent, service may be effected by delivering the notice or communication to some adult male member of his family at his usual place or of abode or to his authorized agent or by affixing it on some conspicuous part of his last known residence or on some conspicuous part of the land to which the notice or communication relates, or by sending it to him at his last known place of residence by Registered Post Acknowledgement Due. When service is effected by so affixing the notice, the serving officer shall not the method of service on the printed form of acknowledgement which is returned to the officer issuing the notice or communication. it is mandatory for the survey authorities to give notice in printed form to the affected parties informing them as to before whom they may present an appeal against their decision, and inasmuch as the respondents did not produce such printed form of notice served on the petitioner, and as there is nothing on the record to show that the petitioner was informed the name of the officer to whom an appeal can be preferred by her, it is clear that there is no proper compliance with the provisions of the APSAB Act, and inasmuch as service of notice on the registered holder is mandatory under the APSAB Act, proceedings of the survey conducted without notice to her would not bind the petitioner, as her land was included in another survey number without any notice and relied on Poomangalalorakath Mariyam Karamavathi and others Vs. Palakkotanantakath Ummer Kutti and others [1] in support of the said contention. Relying on Secretary to Government of Karnataka Vs. V. Harishbabu[2], where the apex Court, while considering the question whether notice under Section 14(2) of the Arbitration Act 1940 is mandatory for the limitation to run had, after adverting to the observations in Indian Rayon Corporation Ltd. Vs. Raunad and Company Pvt. Ltd[3] reading “The fact that the parties have notice to the filing of the award, is not enough. The notice must be served by the Court. We reiterate again that there must be (a) filing of the award in the proper Court; (b) service of the notice by the court or its office to the parties concerned; and (c) such notice need not necessarily be in writing. It is upon the date of service of such notice that the period of limitation begins and as at present under clause (b) of Article 119 of the Act, the limitation expires on the expiry of the 30 days of the service of that notice for an application for setting aside of the award. The importance of the matter, which need be emphasised, is the service of the notice by the Court” “The issuance of a notice under Section 14(2) of the Act by the Court is a mandatory requirement though the section does not prescribe any formal mode for the service of the notice. What is essential under the said provision is that there must be service of notice or intimation or communication of the filing of the award by the Court to the parties, the mode of service of such notice being immaterial. It is the substance and not the form of the notice which is relevant and hence it is established that a notice or communication or information of the filing of the award has been issued by the Court and served on the party concerned, the statutory requirements of Section 14(2) of the Act would stand satisfied. Keeping in view the difference in the phraseology of Section 14(1) and 14(2) of the Act, it follows that the notice from the Court under Section 14(2) of the Act need not be in writing. It can be oral also but what is necessary is that a notice, communication or information to the effect that an award has been filed in the Court must be given by the Court to the parties concerned. Notice to the pleaders of the parties, who are representing the parties before the Court, would of course be sufficient compliance with the requirements of Sub-Section (2) of Section 14 of the Act. A notice by the arbitrator under Sub- Section (1) of the Act is not a substitute for the notice which the Court is enjoined upon to issue under Sub-Section (2) of Section 14 of the Act.” held that service of notice is mandatory and contended that in the absence of service of notice under the provisions of the APSAB Act to the petitioner the fact that the petitioner had notice of survey subsequently through other mode, would not validate the invalid survey made without notice to her. Relying on the observations of the apex Court in Dattaram S. Vichare Vs. Thukaram S. Vichare and others [4] a case arising under Maharashtra Housing and Area Development Act, 1976, he contended that the action of the respondents in correcting the entries in the survey registers without notice to the writ petitioner is wholly without jurisdiction. Relying on Hyderabad Potteries Pvt. Ltd Vs. Collector, Hyderabad District and another[5] where it is held that survey is intended for identification of lands and fixation of boundaries and that it is not a record of rights and that the entries in TSLR, though are relevant, are not conclusive, contended that entries corrected during survey without notice to the petitioner would not have any effect on her title to the land purchased by her. With regard to correction of entries in the survey and other records by the third respondent, after obtaining consent from the second respondent it is his contention that as per the provisions of the APSAB Act an appeal against the decision of the survey authorities has to be preferred to the Board of Revenue, and as the Board of Revenue was abolished by the Board of Revenue (Replacement by Commissioner) Act, 1977 and as the second respondent is constituted as the appropriate authority to decide the appeals arising under