THE HON’BLE Ms. JUSTICE G. ROHINI WRIT PETITION NO.18827 OF 1998 DATED: 18-01-2008 Between : 1. B. Polisetti (Died) and others. … Petitioners And 1. The Commissioner of Survey, Settlements And Land Records, Andhra Pradesh, Hyderabad., And another. …. Respondents THE HON’BLE Ms. JUSTICE G. ROHINI WRIT PETITION NO.18827 OF 1998 ORDER: This writ petition is filed seeking a Writ of Certiorari to call for the records relating to the order passed by the 1st respondent – Commissioner of Survey, Settlements and Land Records dated 26-5- 1998 and quash the same being arbitrary, illegal and violative of the provisions of Sections 18 (4) (6) of Andhra Pradesh (Andhra Area) Estates (Abolition and Conversion into Ryotwari) Act XXVI of 1948 (for short, ‘the Act’). The case of the petitioner, as narrated in the affidavit filed in support of the writ petition is as under : The father of the petitioner by name B. Chennayya was granted a lease in respect of Ac.1-50 cents of land situated in S.P. Ramachandrapuram Agraharam of Vizianagaram District from the landlord G. Appala Narasimham under a Registered Lease Deed dated 24-8-1947. Though originally the land was vacant site with dilapidated building, after obtaining the lease, the petitioner’s father having removed the dilapidated building, constructed a Groundnut Oil Mill after obtaining the necessary permission. On the death of his father in the year 1966 the said mill fell to the share of the petitioner in the family partition and since then the petitioner has been continuing in possession and enjoyment of the same. While so, S.P. Ramachandrapuram Agraharam was notified and taken over by the Government in the year 1965 under the Act. Thereafter, the petitioner made an application before the Board of Revenue under Section 18 (4) of the Act seeking a declaration that the Groundnut Oil Mill together with appurtenant site vested in him. The said petition was rejected by the Board of Revenue by order dated 15-9-1975 on the ground that the petitioner was only a lessee and not a landlord. Aggrieved by the said order, the petitioner filed W.P.No.5114 of 1975. This Court held that though the petitioner was a lessee, if he had constructed a building, so far as the said building certainly he was an owner. While referring to the report of the Collector, Srikakulam in which it was found that the petitioner’s father constructed a building for running a Groundnut Oil Mill this Court disposed of the writ petition thereby setting aside the order of the Board of Revenue dated 15-9-1975 and remanding the matter to the Commissioner of Survey and Settlements for fresh disposal in accordance with law after giving a notice to the petitioner as well as the 2nd respondent herein who acquired title to the land in question by virtue of a will executed by the landlord Appala Narasimham. In pursuance thereof, the Commissioner – 1st respondent after hearing both the parties passed an order dated 28-2-1979 dismissing the petitioner’s application holding that even according to the lease deed the petitioner does not appear to be the owner of the building. The said order dated 28-2-1979 was challenged by the petitioner in W.P.No.3332 of 1979. This Court after taking note of the fact that the Commissioner of Survey and Settlements while rejecting the petitioner’s application had relied upon a decree granted by the Civil Court in two eviction suits filed by the 2nd respondent for eviction, disposed of the writ petition by order dated 24-12-1980 again remanding the matter to the Commissioner of Survey and Settlements for fresh consideration and independent decision under sub-sections (4) & (5) of Section 18 of the Act. Pursuant thereto, the Commissioner by order dated 31-8-1981 allowed the petitioner’s application holding that the petitioner was entitled for grant of patta for the building. Challenging the said order, the 2nd respondent herein filed W.P.No.8298 of 1981 which was allowed by this Court by order dated 5-11-1986 on the ground that the impugned order suffered from mistake of facts. Accordingly, the matter was again sent back to the Commissioner. Thereafter, by order dated 26-5-1998 the 1st respondent – Commissioner rejected the petitioner’s application under Section 18 (4) of the Act which is under challenge in this writ petition. I have heard the learned Counsel for both the parties and perused the material on record. The learned Counsel for the petitioners vehemently contended that since the finding recorded by this Court in W.P.No.5114 of 1975 that the building in question was constructed by the petitioner’s father became final, the 1st respondent is bound by the same. It is further contended that the impugned order is not only contrary to the scope and object of sub-sections (4) & (6) of Section 18 of the Act, but it is also arbitrary and illegal since the same is passed without considering any of the contentions raised by the petitioner in the written arguments dated 18-11-1997. In the counter-affidavit filed by the 2nd respondent, it is stated that the petitioner’s father took on lease the land in question along with the building including residential bungalow, drying platforms, roofless hall, rooms etc situated thereon under a Registered Lease Deed dated 24-8-1947 from the landlord G. Appala Narasimham. The lease was for a period of 40 years. The 2nd respondent acquired title under the Settlement Deed dated 5-10-1953 executed by G. Appala Narasimham and thereafter the petitioner’s father was paying rents to him. After his death the petitioner continued to pay the rents for sometime after abolition of the estate in the year 1965. Thereafter, as the rents were not paid he filed O.S.No.72 of 1973 in the District Munsif Court, Cheepurupalli seeking recovery of arrears of rent. He also filed O.S.No.321 of 1974 for delivery of possession of the leased land and buildings. Both the suits were decreed on 23-1-1978 and the petitioner filed A.S.No.34 of 1978 and A.S.No.180 of 1978 on the file of the Court of the District Judge, Srikakulam. In the meanwhile, the petitioner made an application under Section 18 (4) of the Act for grant of patta claiming falsely that the lease was only in respect of the land and the entire building was constructed by him. It is further stated that the appeals preferred by the petitioner against decrees of eviction and recovery of rents are still pending and that taking advantage of the pendency of the proceedings under the Act, though the lease had expired long back the petitioner is squatting on the property. As a matter of fact, the building in question is now let out by the petitioner to one Ambica Agarabatti Industries on an yearly rent of Rs.40,000/- by altering the physical features of the structures to a large extent. The learned Counsel for the 2nd respondent contended that the findings recorded by the 1st respondent on proper appreciation of the material on record and as rightly held by the 2nd respondent, the petitioner is not entitled for grant of any patta either for land or for building. At the outset, it is necessary to refer to sub-sections (4) to (6) of Section 18 of the Act as under : 18. Vesting of buildings situated in estates:- (1) … … … … … … (2) …. … … …. … … (3) …. ….. …. ….. ….. …. (4) Every building other than a building referred in sub- sections (1), (2) and (3) shall, with effect on and from the notified date, vest in the person who owned it immediately before that date; but the Government shall be entitled— (i) in every case, to levy the appropriate assessment; thereon; and (ii) in the case of a building which vests in a person other than a landholder, also to the payments which such person was liable immediately before the notified date to make to any landholder in respect thereof, whether periodically or not and whether by way of rent or otherwise, in so far as such payments, may accrue due on or after the notified date. (5) In this section, “building” includes the site on which it stands and any adjacent premises occupied as on appurtenance thereto. (6) If any question arises whether any building or land falls or does not fall within the scope of sub-sections (1), (2), (3), (4) or (5), it shall be referred to the Government whose decision shall be final, and not be liable to be questioned in any Court of law. (7) … …. …. …. …. ….. …… On a plain reading of the above provisions, it is clear that the building including the site on which it stands and adjacent premises if any occupied as an appurtenance thereto shall vest in the person who had owned it immediately before the notified date, however the Government shall be entitled to levy appropriate assessment. In the case on hand, it is not in dispute that the building in question is situated within the limits of the estate which stood abolished w.e.f. 14-2-1966. It is also not in dispute that the petitioner’s father obtained the lease much prior to that on 24-8-1947. However whereas the petitioner claims that the lease was only in respect of the land and that after obtaining the lease his father constructed the Groundnut Oil Mill after obtaining the permission of the Chief Inspector of Factories as well as the Gram Panchayat, it is contended by the 2nd respondent that both the land and building were taken on lease by the petitioner’s father in the year 1947 from the original owner. Thus, according to the 2nd respondent, the building was initially owned by the landlord G. Appala Narasimham. The 2nd respondent also claims that since he acquired title to the land and building in question in the year 1963 i.e., prior to the abolition of estate, the land and building shall vest in him under Section 18 of the Act. Therefore, according to the 2nd respondent, the building shall vest in him and the petitioner cannot make any claim. The question whether the lease in favour of the petitioner’s father was in respect of both the land and building is a pure question of fact which cannot be enquired into and decided by this Court in a writ proceeding. It is true that this Court while disposing of W.P.No.5114 of 1975 observed that as per the report of the Collector, Srikakulam, the petitioner had constructed a building. However, the same cannot be termed as a finding with regard to the ownership of the building. The fact that while disposing of the writ petition, the matter was remanded to the Commissioner of Survey and Settlements for fresh enquiry after hearing the 2nd respondent herein itself shows that this Court did not express any opinion as to the ownership claimed by the petitioner in respect of the building but the same was left for consideration by the Commissioner of Survey and Settlements. However, I find force in the submission of the learned counsel for the petitioner that while passing the impugned order the 1st respondent failed to consider various contentions raised by the petitioner in his written objections dated 18.11.1997. A perusal of the impugned order also shows that there was no specific finding with regard to the ownership of the building in question immediately before the notified date which is the crucial issue to be decided while considering a claim under Section 18 of the Act. Hence, without expressing any opinion on the rival claims made by the petitioner and the 2nd respondent, the impugned order is hereby set aside and the Writ Petition is disposed of with a direction to the 1st respondent to consider the matter afresh and pass appropriate orders in accordance with law as expeditiously as possible, preferably within a period of three months from the date of receipt of a copy of this order, after hearing both parties and after considering the written objections dated 18.11.1997 filed by the petitioner herein. No costs. ______________ G. ROHINI, J. Dt. 18–01-2008 gbs