IN THE HIGH COURT OF JUDICATURE, ANDHRA PRADESH AT HYDERABAD PRESENT : THE HON’BLE SRI JUSTICE GODA RAGHURAM AND THE HON’BLE SRI JUSTICE P. DURGA PRASAD WRIT APPEAL No.2008 of 2001 Dated:12-08-2011 Between: The Government of A.P., rep. by its Principal Secretary, Revenue Department, Secretariat, Hyderabad and others. ….Appellants. And Late Chatrati Mallikarjuna Rao and others. ….Respondents. The Court made the following: THE HON’BLE SRI JUSTICE GODA RAGHURAM AND THE HON’BLE SRI JUSTICE P. DURGA PRASAD WRIT APPEAL No.2008 of 2001 JUDGMENT: (per the Hon’ble Sri Justice P.Durga Prasad) This appeal filed under Clause 15 of the Letters Patent is directed against the Orders passed on 13.07.2001 in W.P.No.6251 of 1991 by the learned Single Judge. The appellants herein are the respondent Nos. 1 to 4 and the respondents herein, the petitioners in the said writ petition. The writ petitioners are seeking a writ, Order or direction more particularly one in the nature of writ of Prohibition directing the 2nd respondent, Commissioner, Survey Settlements and Land Records, Hyderabad not to proceed with the suo-motu review or otherwise pursuant to the proceedings in C.S.S. & L.R. Ref.P1/1491/89, dated 21.12.1990, which is in the nature of a show-cause notice directing the petitioners herein to appear before the Commissioner on 16.01.1991 at 10.30 a.m. to show cause why the order of the Commissioner in Case No.P1/1/86, dated 30.04.1986 should not be reviewed. The learned Single Judge of this Court has disposed of the writ petition by Order dated 28.03.1994 and quashed the show-cause notice dated 21.12.1990. Aggrieved by the said Orders, the respondents have filed W.A.No.944 of 1994. The Division Bench of this Court observed that in a judicial review proceeding, this Court is not concerned with the merits of the decision itself, but is only concerned with the decision making process. If the decision making process is vitiated and if the decision suffers from jurisdictional errors, the same would be undoubtedly corrected by this Court. This Court would be extremely reluctant to interfere with or disturb the decisions of specially constituted authorities and tribunals under a statute on the ground that they have not properly appreciated the facts or on the ground that the findings were recorded by them basing upon inadequate or insufficient evidence for this Court is not a Court of Appeal over the decisions of such authorities or tribunals. The learned Division Bench has further observed that it is difficult to sustain the findings of the learned single Judge holding that the writ petitioners-respondents are entitled for grant of patta to an extent of Ac.100.00 in Patta No.65 in R.S.No.190/2 and thereby set aside the said finding. The writ appeal was accordingly allowed and the matter remitted to the learned Single Judge for an appropriate decision as to the questions in the writ petition as indicated in the judgment. In pursuance of the said Orders of the Division Bench, the matter was taken up again by the learned singe Judge. The learned Single Judge by Order dated 13.07.2001 allowed the writ petition by issuing the writ of prohibition and quashed the show-cause notice dated.21.12.1990. Aggrieved by the said Order, the present appeal is filed by the respondents in the writ petition. The facts leading to the filing of the writ petition are that Dr. Mallik, father of the 1st petitioner was the estate holder of Siddeswaram village of erstwhile Visakhapatnam Taluk (presently Pedda Gantyada Mandal). On the death of Dr. Mallik the proprietary rights in the Zamin Estate were transferred to the 1st petitioner and the Collector, Visakhapatnam, by his proceedings in R.Dis.No.5814- 35-A-9, dated 24.08.1936 has registered the same in the name of the 1st petitioner. The 1st petitioner in the capacity of land holder gave certain lands to his mother Smt. Kameshwaramma covered by Patta Nos. 46,59,64 and 65. The estate was abolished and taken over under Madras Estates Abolition and Conversion into Ryotwari Act, 1948 on 12.01.1951. The 1st petitioner handed over all the records, DCB and LR registers including patta Nos.1 to 65 to the then Tahsildar under receipt issued by him on 02.01.1953. On 29.06.1953 Smt.Kameshwaramma executed a registered will bequeathing the lands held by her to her sons i.e. petitioner Nos.1 and 2 as well as her deceased son Ch.Pattabhiram, husband of 3rd petitioner. The said Smt.Kameshwaramma died on 18.06.1956 and the petitioners filed a petition on 09.12.1956 seeking ryotwari patta for the lands covered by the above pattas as the sons of late Kameshwaramma. At that stage, the village Siddeswaram was surveyed and the land covered by patta No.65 was approximately fixed as Ac.150 and the same was correlated to S.No.190. The said survey number was sub- divided and an extent of Ac.50.00 was estimated as Ryothi land under S.No.190/1 and the remaining extent of Ac.100.00 was classified as sand dunes under S.No.190/2. Ryotwari pattas were granted to the petitioners for the lands covered by patta Nos.46, 59, 64 and part of patta No.65 correlated to S.Nos. 150, 180, 188 and 190/1 and patta was rejected for the land covered by S.No.190/2 only. The land covered by S.No.190/2 of an extent of Ac.100.00 was wrongly classified as Poramboke and sand dunes. The petitioners approached the Settlement Officer for grant of patta for the land covered by S.No.190/2 claiming that the lands were granted to the mother of the 1st petitioner under patta No.65. The Settlement Officer after personal inspection of the schedule land granted patta for Ac.50.00 in S.No.190/2 on the ground that it is fit for cultivation and the claim was rejected for the remaining extent on the ground that it is not cultivable. Aggrieved by the said Order, the petitioners filed a revision before the Director of Settlements, Hyderabad requesting for patta for the disallowed portion. The said petition was rejected as time barred. On further revision to the Board of Revenue the matter was remanded back by the Order dated 16.09.1972 to the Director of Settlements for enquiry and disposal. The Director of Settlements took up the matter as R.P.No.230 of 1972. At the same time, the Tahsildar, Visakhapatnam also filed a revision R.P.No.294 of 1972 before the Director of Settlements against the Orders of the Settlement Officer in granting patta for Ac.50.00 to the petitioners. The Director of Settlements after hearing the matter and perusing the records considered it necessary to ascertain the nature of the land in question and directed the Deputy Director of Survey and Settlement, Rajahmundry to make a spot inspection in the presence of both parties and ascertain whether area claimed by the respondents was within the boundaries mentioned in the patta document 65 and how much land was sand cast making it uncultivable. The Deputy Director conducted a spot inspection on 07.11.1974 in the presence of petitioners, Tahsildar, Visakhapatnam and Assistant Director, District Land Records Unit, Visakhapatnam and submitted report on 12.11.1974 holding that the area claimed by the petitioners in R.S.No.190/2 is well within the boundaries mentioned in the patta document which are definite, clearly identifiable and localizable on the ground that an extent covered by S.No.190 as a whole is 258.65 Acres, out of which Ac.50.00 was subject to tidal action and rest of the land was cultivable. Basing on the report and after hearing both sides, the Director of Settlement allowed the respondents Revision i.e. R.P.No.230/1972 holding that an extent of Ac.158.65 was to be included in the holding of respondents and Ac.50.00 should be registered as unassessed waste. R.P.No.294/1972 filed by the Tahsildar, Visakhapatnam was dismissed as they failed to produce any pre-abolition record to show that the lands in question are communal poramboke and was being used as such. Aggrieved by the orders of the Director of Survey and Settlements, rejecting the claim for Ac.50.00, the petitioners preferred a further revision to the Board of Revenue on 01.01.1975. The Board of Revenue by the Order dated 05.10.1976 remanded the mater to the Settlement Officer for proper enquiry. Aggrieved by the said Order the petitioners have filed W.P.No.3666 of 1976 before this Court and the learned single Judge of this Court by Order dated 14.02.1979 quashed the Order of Board of Revenue and directing him to re-hear the revision. After hearing both parties, the Commissioner, Survey Settlement and Land Records by Order dated 16.05.1979 reaffirmed the previous Order dated 05.10.1976 and directed the matter to be remanded to the Settlement Officer for reasons indicated by the Board of Revenue in its Order dated 05.10.1976. Aggrieved by the said Order, the petitioners have filed a writ petition No.5719 of 1979 for quashing the same. This Court by Order dated 04.12.1985 set aside the impugned Order and directed the Commissioner, Survey Settlements and Land Records to rehear Revisions filed by the petitioners and also Tahsildar, Visakhapatnam. The Commissioner, Survey Settlements and Land Records heard both parties and by Order dated 30.04.1986 confirmed the Orders dated 10.12.1974 granting patta for an extent of Ac.158.65 and dismissed the revision filed by the Tahsildar, Visakhaptanam. The entire land covered under patta No.65 was acquired by the Government for the purpose of Visakhaptnam Steel plant and possession was also taken over by the Government, however no compensation was paid to the petitioners. As the respondents have not implemented the Orders of the Commissioner, Survey Settlements and Land Records, Hyderabad dated 30.04.1986, the writ petitioners filed W.P.No.4137 of 1987 for directions to the Mandal Revenue Officer, Peddagantyada, Visakhapatnam and the State of Andhra Pradesh represented by the Special Deputy Collector (L.A.) Unit I (Steel plant, Visakhapatnam) to implement the Order of the Commissioner dated 30.04.1986. The said writ petition was allowed on 04.11.1988. Aggrieved by the said Orders, the respondents filed writ appeal alleging that the petitioners obtained the Ryotwari patta on a misrepresentation of facts and fraud and that a suo-motu review petition is pending before the Commissioner, Survey Settlements and Land Records. Since there was a delay in filing the writ appeal, they have filed W.A.M.P.No.2280 of 1989 for condonation of delay of 305 days and the same was dismissed by this Court as no sufficient reasons were shown for condonation of delay. Aggrieved by the said Order, the Government carried the matter to the Supreme Court in SLP.No.5064 of 1990 and the same was dismissed by the Supreme Court on 23.11.1990. In the meantime, the petitioners filed C.C.No.216 of 1989 for not implementing the Orders passed in W.P.No.4137 of 1987. The learned single Judge by taking into consideration of the dismissal of the writ appeal, disposed of the same by the Order dated 27.11.1989 by observing as follows: “In the contempt application, however, it is stated in the counter that suo-motu review has been taken up and the same will be disposed of. Till then, however, the entry may not be directed to be made. Though this argument ought not to have been acceded to, however, in the circumstances, directed the authority, who is said to have taken up suo-motu review to dispose of the same within 4 weeks from the date of receipt of the Order and if it is not so disposed of, it must be taken that patta stands recorded in the name of the petitioner with reference to the land in question. Since that land is said to have been already acquired, the Land Acquisition Officer will take cognizance of this Order and determine the amount of compensation and pay the same to the petitioner. However, I do not find any willful disobedience of the Orders of this Court by the respondents, since no contempt of the Court’s proceedings is said to have been committed. The contempt application is dismissed.” Since respondents failed to implement the directions in C.C.No.216 of 1989, the petitioners filed another C.C.No.433 of 1990. This Court while disposing of the said Contempt Case passed an Order on 23.10.1990 holding that the Orders in C.C.No.216 of 1989 had become final and the plea of the respondents that on previous occasion by misrepresentation, certain Orders were obtained cannot be gone into for obvious reasons and that the directions given by this Court have become final and on the basis of undertaking given by the respondents, this Court directed the respondents to complete the land acquisition proceedings within three months and if the land is not required for the purpose of Visakhapatnam Steel Plant, the same shall be handed over to the petitioners and the matter was adjourned for further hearing on 24.01.1991. At that stage, the Commissioner issued impugned proceedings dated 21.12.1990. Questioning the same, the petitioners have filed writ petition and the impugned notice was stayed on 22.03.1991. Subsequently, the C.C.No.433 of 1990 came up before the learned singe Judge for hearing and the learned singe Judge disposed of the said Contempt Case by Order dated 23.09.1992 by holding reads thus: “as the alleged suo-motu review application has not been disposed of by the Commissioner of Survey and Settlements the consequential direction that it must be taken that patta stands recorded in the name of the petitioner with reference to the land in question” became final and so the respondents are bound to implement that direction. The Land Acquisition Officer was also directed by Justice Seetaram Reddy, to take cognizance of the Order dated 27.11.89 and determine the amount of compensation and pay the same to the petitioner”. The learned Single Judge has further observed as follows: “the Order of M.N.Rao, Justice., was not questioned and therefore it has become final and accordingly the Contempt Case was closed. The learned single Judge made it clear that “the 3rd respondent herein impleaded today i.e. the Commissioner, Survey, Settlements and Land Records, Hyderabad shall not proceed with the enquiry of the review petition pursuant to the show cause notice dated 21.12.1990 referred to in paragraph 7 of his counter affidavit dated 30.03.1991, which he already postponed as stated by him in his counter affidavit, for a period of two weeks from this date and the Commissioner is directed accordingly.” According to the respondent No.2 in August, 1989 it was brought to the notice of the Commissioner of Survey, Settlements and Land Records by the Collector, Visakhapatnam that the patta for R.S.No.190/2 was obtained by mis-representation and fraud and that Ex.P.1 namely patta Order dated 18.03.1943 is a spurious document and that the other documents relied upon by the petitioners are also concocted and fabricated and that the petitioners obtained the patta by misrepresentation and fraud and circumvention of law and the petitioners applied for patta for the land covered by R.S.No.190/2 earlier under Section 12 of the Estate Abolition Act and that their claim was rejected in 1951-54 both under Sections 12 (a) and 12 (b) (iii) of the Estate Abolition Act and that the exhibits marked as P.2, P.3, P.4 and P.12 in the enquiry under Section 12 were suppressed during the enquiry under Section 11 (a) in the seventies and the petitioners have produced a different set of documents so as to set up a false claim over the same land. The Collector requested the Commissioner of Survey, Settlement and Land Records to take up suo-motu revision of this case. He further pleaded that after correspondence between him and the Collector and by taking advice of Government Pleader suo-motu review was taken by him on 08.01.1975 and notice was issued to the petitioners in December 1990. According to them, the 3rd respondent had discovered fraud and mis-representation perpetrated by the petitioners in obtaining the patta for the land under the Estate Abolition Act. Section 17 (1) of the Indian Limitation Act, 1908 has been made applicable to all proceedings under the Estate Abolition and Conversion into Ryotwari Act and he has got a right to take up the review. He further pleaded that the power of review is inherent power when the Orders were obtained by fraud and misrepresentation even though there is no specific review provided under the said Act. He further pleaded that the genuineness of the patta was not considered by the Commissioner in his earlier Order dated 30.04.1986 and in view of the allegations of fraud, the review is justified. The 3rd Respondent also supported the 2nd respondent with regard to the power of review by the 2nd respondent and according to him the fraud detected in the year 1979 itself but the same was not considered by the Settlement Officer and Commissioner, Survey, Settlements and Land Records, as such the suo-motu review by the 2nd respondent is justified. The learned singe Judge passed the Order under appeal holding that there are not jurisdictional facts which are a condition precedent for exercising powers of review on the ground of fraud and this plea might have been raised by the respondents on the basis of the information given by their subordinates that the petitioners are claiming ryotwari patta for the same land for which the Assistant Settlement Officer rejected patta under Section 15 of the Act, which is incorrect and a misconceived one and accordingly allowed the writ petition and quashed the notice dated 21.12.1990. The Additional Advocate General appearing for the appellants/respondents has pleaded that the Order in dismissing the W.A.SR.No.78818 of 1989 on the ground of delay and subsequent SLP No.5064 of 1990 preferred against the said Order cannot be res judicata for the suo-motu review taken up by 2nd respondent on the ground of fraud and misrepresentation played by the petitioners. The learned Additional Advocate General has further pleaded that when the petitioners played fraud and obtained orders from the Commissioner, Survey, Settlements and Land Records, the said authority has got power to take up the suo-motu review. The learned Additional Advocate General has further pleaded that even though the issue of fraud and misrepresentation was raised in the year 1979 itself, the Commissioner, Survey, Settlements and Land Records in his Order dated 16.05.1979 has not considered the same and not given any finding on the same and on remand by this Court also the same Commissioner in his Order dated 30.04.1986 has not considered the said issue. Since the said issue of fraud and misrepresentation was not considered earlier, even though raised, the 2nd respondent is entitled to take up the suo-motu review of the Order dated 30.04.1986. The learned Additional Advocate General has further pleaded that the impugned notice is only a show-cause notice issued to the petitioners to show-cause as to why the Order dated 30.04.1986 should not be set aside and the said authority has to enquire into the matter and pass Orders and it is premature to question the said show-cause notice as the petitioners will get a right to question the Orders, if goes against them, in the suo-motu revision taken up by the 2nd respondent. The writ petitioners’ counsel, on the other hand, has pleaded that the issue of fraud and misrepresentation was raised by the petitioners in 1979 itself, but the said authorities have not considered the same and the said Orders have became final and they also raised said plea in the petition filed for condonation of delay for filing the writ appeal against the Orders passed in W.P.No.4137 of 1987, on its dismissal they filed SLP No.5064 of 1990 and as the same was also dismissed, the same will be res judicata for the present suo- motu revision. The writ Petitioners’ counsel further pleaded that the 2nd respondent has no right to take up suo-motu review after lapse of 20 years for setting aside his own Order more particularly when he has no power of review under the Act. The petitioners’ counsel has further pleaded that when the said Order has became final and confirmed by this Court in the Contempt Cases, they have taken up suo-motu review only to circumvent the Orders passed by this Court. The petitioners’ counsel has further pleaded that the learned single Judge has rightly quashed the show-cause notice on a detailed examination of facts and circumstances of the case and the same does not warrant interference in this appeal. There is no dispute between the parties that Dr. Mallik, father of the 1st petitioner was estate holder of Siddeswaram village and about issuing patta Nos. 46, 59 and 64 and they are disputing about the issuance of patta No.65. The said pattas were granted in the name of Smt.Kameshwaramma, mother of the petitioners herein. The said Smt.Kameshwaramma has executed a Will in favour of the petitioners in respect of the patta Nos.46, 59, 64 and 65 on 29.06.1953 and she died on 18.06.1956. During that period the Survey operations of the estate, were taken up and the 1st petitioner was informed that his name would be registered in the survey L.R. for pymash No. 119, 123 and 152 of Siddeswaram Village as per proceedings Dis. SR 15-2 Visakhapatnam dated 07.11.1952 of the Assistant Settlement Officer, Visakhapatnam and with regard to land covered by Patta No.65 he was advised to prefer his claim to Settlement Department. The village of Siddeswaram was surveyed and Ac.150 was approximately noted against S.No.190, which was sub-divided into 1 and 2. Sub-division 1 with an extent of Ac.50 classified as Dry and registered in favour of 1st respondent and his brothers and balance extent of Ac.100.00 was adopted against Sub- division 2 and classified as Proramboke sand dunes. The Settlement Officer after personal inspection of the schedule land granted patta for Ac.50 in S.No.190/2 on the ground that it is fit for cultivation and remaining extent was disallowed as it is not cultivable by his Order dated 09.08.1971. Against the disallowing of the remaining Ac.50.00 of land, the petitioners have filed revision before the Director of Settlement, Hyderabad and the said revision was rejected as time barred. The petitioners have field a further revision before Board of Revenue and the Board of Revenue by its Order dated 16.09.1972 remitted back the matter to the Director of Settlement for fresh disposal. When the matter was taken up by the Director of Settlement, the Tahsildar, Visakhapatnam also filed a revision against the grant of patta for Ac.50.00 by the Settlement Officer. The revision filed by the petitioners was numbered as R.P.No.230/72 and the revision filed by the Tahsildar, Visakhapatnam was numbered as R.P.294/72. During the course of hearing of both the revision petitions, the Director of Settlements, Hyderabad found it necessary to find out the actual position regarding the nature of the land in question and directed the Deputy Director, Survey and Settlement Officer, Rajahmundry to make a spot inspection in the presence of both the parties and find out whether the area claimed by the petitioners is within the boundaries mentioned in the patta document and how much land is sand cast making it uncultivable. Thereupon, the Deputy Director conducted a spot inspection on 07.11.1974 in the presence of the petitioners, the Tahsildar, Visakhapatnam and the Assistant Director, District Survey and Land Records Unit, Visakhapatnam and submitted his report. The Director of Settlements basing on the report and hearing the contentions of both the parties allowed the revision petition filed by the petitioners R.P.No.230/72 and rejected the R.P.No.294/72 filed by the Tahsildar, Visakhapatnam. The respondents aggrieved by the said Order filed further revision before the Board of Revenue and the Board of Revenue by its Order dated 05.10.1976 set aside the Orders of the Settlement Officer granting patta to the respondents and remanded the matter to the Settlement Officer for proper enquiry. Aggrieved by the said Order, petitioners filed W.P.No.3666 of 1976 contending that the Order of the Director of Settlement in granting patta of Ac.158.65 should not have been set aside as it was not the subject matter of the revision. The said writ petition was allowed on 14.02.1979 and the Order of Board of Revenue was quashed with a direction to rehear the revision. The Commissioner, Survey Settlements, and Land Records by his Order dated 16.05.1979 reaffirmed the Orders of Board of Revenue dated 05.10.1976 directing the Settlement Officer to rehear the case. Aggrieved by the said Order, the petitioners have filed W.P.No.5719 of 1979 for quashing the same.