WA/1332/2006 of Vasupalli Nookaraju Vs The Commissioner (ROM) on 26 December 2006

:: JUDGMENT ::

Counsel for the appellants

Smt.D.Lalitha Prasad

Counsel for respondents

Government Pleader for Revenue

26.12.2006

Per G.S.Singhvi, CJ.

Having failed to persuade the learned Single Judge to quash orders dated 23.2.2004, 16.10.2004 and 16.6.2006 passed by JointCollector and Settlement Officer, Visakhapatnam (respondent No. 3),Commissioner and Director of Settlements, Andhra Pradesh(respondent No. 2) and the Commissioner (ROM) in the office of ChiefCommissioner of Land Administration, Andhra Pradesh, Hyderabad(respondent No.1) respectively in the matter of grant of ryotwari pattaunder Andhra Pradesh (Andhra Area) Estates (Abolition andConversion into Ryotwari) Act, 1948 (for short, ‘the Act’) read withAndhra Pradesh (Andhra Area) Estates (Abolition and Conversion intoRyotwari) Grant of Ryotwari Patta Rules, 1973 (for short, ‘the Rules’),the appellants have preferred this appeal under Clause 15 of theLetters Patent.

The appellants claim to be great grandsons of late VasupalliMusalamma, who is said to have been inducted into possession ofagricultural dry land measuring 74 cents comprised in RevenueSurvey No.294/5 situated in Kapuluppada Village of BheemunipatnamMandal, Visakhapatnam District. On 17.6.2003, the appellants filed anapplication under Section 11(a) of the Act for grant of ryotwari patta. By a detailed order dated 23.2.2004, respondent No. 3 dismissed theapplication by holding that the petition had been filed after a lapse of44 years from the date of introduction of settlement rates in the villageand no credible explanation has been given for this long delay. Revision filed by the appellants under Section 5(2) of the Act wasdismissed by respondent No. 2 vide his order dated 16.10.2004. Further revision filed by the appellants under Section 7(d) of the Actwas dismissed by respondent No.1 on 16-6-2006. Respondent No. 1relied on order dated 15.3.2005 passed by this Court in Writ PetitionNo. 25504 of 1995 and batch and held that the rejection of theirapplication for grant of ryotwari patta does not suffer from any infirmity. The relevant extracts of the order passed by respondent No. 1 read asunder:

“In the present case the petitioner has not produced anyevidence showing how fore fathers of the applicant were indicated into position by Maharaja of Vizianagaram and howthey have continued in possession there after. The onlyevidence petitioner has produced in his favour may be theentries in the SLR Records where it was alleged by him that hisgrandmother’s name existed against Sy.No.294/5 showing herpossession of this Sy.No. to an extent of Ac.0.74 cts in the year1954. All other records are alleged to have got destroyed in thefire accident.

The Settlement Officer and Joint Collector,Visakhapatnam has considered the aspect of limitation andcame to the conclusion that the petitioner has not produced anygood and sufficient reasons for condonation of delay and onthat ground, among others, he has dismissed the claim of thepetitioner as time bared. The Director of Settlements, A.P.Hyderabad has not also interfered with the orders of SettlementOfficer and Joint Collector, Visakhapatnam on the same ground.

Arguments

The primary responsibility for condonation of delay lies withthe Settlement Officer before entertaining the application u/s11(A) of State Estate Abolition Act. Once he has come theconclusion that there are not good and sufficient reasons forcondoning the delay and dismissing the application on thatgrounds, such finding can be set-aside only if the petitioner isable to produce additional evidence before appellate authorityto get such finding set aside. The petitioner is not able toproduce any additional evidence before this authority also. Therefore I do not find any reason to interfere with the findingsof the Settlement Officer as well as the Director of Settlement,A.P. Hyd and accordingly, I dismiss the Revision Petition.”

The learned Single Judge referred to the relevant rules and heldthat the conclusions reached by the Settlement Officer and the secondrevisional authority do not suffer from any legal infirmity. He furtherheld that failure of the petitioner to produce any evidence that theywere in possession of the land prior to coming into force of the Act wassufficient to decline their claim for grant of ryotwari patta.

Learned counsel for the appellants relied on the judgments of this Court in Director of Settlements, Hyd. v. Neerupaka RamaKrishna[[1]],Chaatrati Mallikarjun Rao v. Government of AndhraPradesh[[2]]and the judgment of the Supreme Court in N.Balakrishnan v. M.Krishna Murthy[[3]]and argued that in theabsence of any prescription of limitation under Section 11(a) of the Act,the authorities could not have relied on the period of limitationprescribed under Rule 2(4) of the Rules and dismissed the applicationfiled by the appellants. He then submitted that even if the applicationwas treated as belated, respondent No.3 should have condoned thedelay by exercising the powers under second proviso to Rule 2(4) ofthe Rules because, the appellants are illiterate persons and are not atall conversant with the statutory provisions which have bearing on theirright to get ryotwari pattas by filing application under Section 11(a) ofthe Act.

We have considered the submissions of the learned counsel forthe appellants and also gone through the judgments relied on by her. In our opinion, the appellant has failed to make out a case forinterference with the order of the learned Single Judge. In the writpetition filed by them, the appellants did not challenge the vires of Rule4 (2). Therefore, after taking into consideration the provisions ofSection 22, the learned Single Judge rightly held that the applicationshould have been made within 30 days from 2-7-1974 i.e. the date on which the Rules were published in AndhraPradesh Gazette.

We are further of the view that the delay of 44 years cannot becounted from the date of enforcement of the Act and 29 years from thedate of enforcement of the Rules cannot be condoned by accepting thespacious plea of the appellants that they are illiterate and ignorantabout the relevant statutory provisions.

In N. Balakrishnan v. M. Krishna Murthy (supra), the SupremeCourt dealt with the scope of Section 5 of the Limitation Act and laiddown the following proposition:

“Condonation of delay is a matter of discretion of the court.Section 5 of the Limitation Act does not say that such discretioncan be exercised only if the delay is within a certain limit.Length of delay is no matter, acceptability of the explanation is

the only criterion. Sometimes delay of the shortest range maybe uncondonable due to a want of acceptable explanationwhereas in certain other cases, delay of a very long range canbe condoned as the explanation thereof is satisfactory. In everycase of delay, there can be some lapse on the part of the litigantconcerned. That alone is not enough to turn down his plea andto shut the door against him. If the explanation does not smackof mala fides or it is not put forth as part of a dilatory strategy, thecourt must show utmost consideration to the suitor. But whenthere is reasonable ground to think that the delay wasoccasioned by the party deliberately to gain time, then the courtshould lean against acceptance of the explanation. A courtknows that refusal to condone delay would result in foreclosinga suitor from putting forth his cause. There is no presumptionthat delay in approaching the court is always deliberate. Thewords “sufficient cause” under Section 5 of the Limitation Actshould receive a liberal construction so as to advancesubstantial justice.”

In Director of Settlements, Hyd. v. Neerupaka Rama Krishna(supra), a Division Bench of this Court held that show cause noticeissued for setting aside the patta granted to the petitioner on thepremise that it was obtained by playing fraud cannot be quashed onlyon the ground of delay of 35 years.

In Chatrati Mallikarjuna Rao v. Govt. of A.P. (supra), a learnedSingle Judge held that the power of suo motu review cannot beexercised for reopening of the issue of grant of ryotwari patta and meredelay in making of application for grant of patta is not sufficient to denypatta to a person whose claim is genuine.

Except in the last mentioned case, there is no discussion on thesubject whether an application made after lapse of more than twodecades can be entertained for grant of ryotwari patta. In the last casealso, the learned Single Judge did not directly discuss this issue, butonly made a passing observation, which cannot be treated as law laiddown by the Court.

With the above observation, the appeal is dismissed.

As a sequel to dismissal of the writ appeal, W.A.M.P.No.2825 is also dismissed.

26-12-2006psr

[1]2001 (5) ALD 828[2]2001 (6) ALT 182[3](1998) 7 SCC 123

G.S.SINGHVI, CJ

C.V.NAGARJUNA REDDY, J