whether the authorities concerned were correct in holding that the applications filed by the petitioners and/or their predecessors-in- title were barred by limitation.=The Settlement Officer, Visakhapatnam, rejected the subject applications on the ground that they were not filed within 30 days from the date of introduction of settlement rates, as prescribed under Rule 2(4) (wrongly described as Rule 4) of the Andhra Pradesh (Andhra Area) Estates (Abolition and Conversion into Ryotwari) Grant of Ryotwari Patta Rules, 1973 (for brevity, the Rules of 1973).In so far as the legal position is concerned, it may be noticed that Section 67(2)(e) of the Act of 1948 empowers the Government to make rules for application of the provisions of the CPC and the Indian Limitation Act to applications, appeals and proceedings under the Act of 1948

THE HONBLE SRI JUSTICE SANJAY KUMAR        

WRIT PETITION NOS.17882 OF 2004    


23-01-2015

Gadde Krishna Murthy and others Petitioners

 The Mandal Revenue Officer, Sitanagaram,  East Godavari District and
others...Respondents

Counsel for petitioners:  Sri VLN Gopala Krishna Murthy

Counsel for respondents: Govt. Pleader for Revenue

<GIST:

>HEAD NOTE:  

? CASES REFERRED:    

1.  2005(4) ALD 311
2.  2014(2) ALT 97
3.  1957 The Andhra Weekly Reported 106
4.  1999(1) ALT 327
5. 1995 (3) ALT 685

THE HONBLE SRI JUSTICE SANJAY KUMAR        

        WRIT PETITION NOS.17882, 17888,  
17889 AND 17891 OF 2004  


DATED 23rd JANUARY, 2015    

C O M M O N   O R D E R  

       Individual orders dated 06.06.1986 were passed by the
Settlement Officer, Visakhapatnam, rejecting certain applications
filed under Section 11(a) of the Andhra Pradesh (Andhra Area)
Estates (Abolition and Conversion into Ryotwari) Act, 1948 (for
brevity, the Act of 1948).  The said applications were made by the
petitioners in these cases and/or their predecessors-in-title for
grant of ryotwari pattas in relation to various extents of land in
Singavaram Village of Korukonda Taluk, East Godavari District,
claimed by them under registered sale deeds.  These lands formed
part of Gangulapudi Zamindari estate, which was notified and taken
over by the Government in the year 1950 under the Act of 1948.
      The Settlement Officer, Visakhapatnam, rejected the subject
applications on the ground that they were not filed within 30 days
from the date of introduction of settlement rates, as prescribed
under Rule 2(4) (wrongly described as Rule 4) of the Andhra
Pradesh (Andhra Area) Estates (Abolition and Conversion into
Ryotwari) Grant of Ryotwari Patta Rules, 1973 (for brevity, the
Rules of 1973).  The orders of the Settlement Officer were confirmed
in revision by the Director of Settlements, Andhra Pradesh,
Hyderabad, by common order dated 28.11.1996.  The said common  
order was subjected to further revision before the Commissioner,
Appeals, Office of the Chief Commissioner of Land Administration,
Andhra Pradesh, Hyderabad, and was again confirmed under the
common order dated 02.02.2002.
      Aggrieved thereby, the petitioners are before this Court
seeking Writs of Certiorari to call for the records relating to the
three orders and to quash the same along with a consequential
direction to the Settlement Officer, Visakhapatnam, to entertain
their applications for issuance of pattas under Section 11(a) of the
Act of 1948.
      By individual interim orders dated 05.10.2004 passed in all
the writ petitions, this Court directed status quo obtaining as on
that day with regard to the possession of the land in question to be
maintained until further orders.
      The short issue that falls for consideration in these cases is
whether the authorities concerned were correct in holding that the
applications filed by the petitioners and/or their predecessors-in-
title were barred by limitation.
      In W.P. No.17882 of 2004, the petitioners claim to be the legal
heirs of Gadde Nagabhushanam and Chokka Lovaraju, who  
purchased an extent of Ac.7.00 in Sy.No.11 of Singavaram Village
under a registered sale deed of the year 1948.  In W.P.No.17888 of
2004, the petitioners claim to be the legal heirs of Gangiri Tatabbai,
who purchased an extent of Ac.3.50 cents in Sy.Nos.12, 13, 15, 101
and 102 of Singavaram Village under a registered sale deed of 1948.
In W.P.No.17889 of 2004, the petitioner claims to be the legal heir
of Thammisetti Posayya, who purchased an extent of Ac.16.00 in
Sy.No.10 of Singavaram Village under a registered sale deed dating
back to the year 1950.  In W.P.No.17891 of 2004, the petitioner
claims to be the legal heir of Gangisetti Appa Rao, who purchased
an extent of Ac.3.50 cents in Sy.Nos.12, 13, 101 and 102 of
Singavaram Village.  It is the admitted case that the applications
under Section 11(a) of the Act of 1948 were filed only on
15.12.1985, long after ryotwari settlement of Gangulapudi estate
was effected under Section 22 of the Act of 1948.  It is also the
admitted position that no petitions were filed by the applicants for
condonation of the delay in the filing of applications under Section
11(a) of the Act of 1948 before the Settlement Officer,
Visakhapatnam.  It was only before the Director of Settlements,
Andhra Pradesh, Hyderabad, that such petitions were filed by all
the petitioners under Section 5 of the Limitation Act, 1963.
      Perusal of the individual orders dated 06.06.1986 passed in
all the cases by the Settlement Officer, Visakhapatnam, manifests
that the said authority was of the opinion that as the applications
were not filed within 30 days after introduction of settlement rates
under Section 22 of the Act of 1948, as laid down under Rule 4 (sic )
of the Rules of 1973, the applications were barred by limitation.  He
therefore concluded that the applications could not be entertained
and accordingly returned the same.  In revision, the Director of
Settlements, Andhra Pradesh, Hyderabad, vide his common order
dated 28.11.1996, opined that as the rule, which permitted the
Settlement Officer to condone the delay in the entertainment of an
application, had been omitted thereafter, the action of the
Settlement Officer, Visakhapatnam, in rejecting the claims of the
applicants under Section 11(a) of the Act of 1948 on the ground
that they were time barred was correct.  The Director of
Settlements, Andhra Pradesh, seems to have been under the
impression that the petitions for condonation of delay were filed by
the applicants before the Settlement Officer, Visakhapatnam, which
was factually incorrect.  He therefore failed to deal with the petitions
for condonation of delay filed before him by the applicants along
with the revision petitions.  In further revision, the Commissioner,
Appeals, in his common order dated 02.02.2002, referred to the fact
that the earlier rule, which permitted condonation of delay in the
entertainment of applications under Section 11(a) of the Act of
1948, had been omitted thereafter and opined that as the revision
petitioners had not filed any documentary evidence showing reasons
for condonation of the delay by the Settlement Officer, no reason
was made out to interfere with the common order dated 28.11.1996
passed by the Director of Settlements, Andhra Pradesh, Hyderabad.
However, this order does not manifest any reasons as to why the
condone delay petitions filed by the petitioners failed to demonstrate
sufficient reason for condonation of the delay.
      In so far as the legal position is concerned, it may be noticed
that Section 67(2)(e) of the Act of 1948 empowers the Government to
make rules for application of the provisions of the CPC and the
Indian Limitation Act to applications, appeals and proceedings
under the Act of 1948.  In exercise of this power, the Government of
Andhra Pradesh framed a rule, which was notified in the St. George
Gazette dated 17.10.1950, which reads as follows:
      In exercise of the powers conferred by Section 67 (2)(e)
of the Madras Estates (Abolition and Conversion into
Ryotwari) Act, 1948 (Madras Act XXVI of 1948), His
Excellency The Governor of Madras hereby makes the
following rule :-
      The provisions of Sections 4,5,12(o) and (2), 17(1) and
18 of the Indian Limitation Act, 1908 (Central Act IX of 1908)
shall apply to all proceedings under the Madras Estates
(Abolition and Conversion into Ryotwari) Act, 1948 (Madras
Act XXIV of 1948) or under the rules thereunder, before the
Tribunals, Special Tribunals, authorities and officers having
jurisdiction under the latter Act.

      It may also be noted that the Government is empowered,
under Section 67(2)(d) of the Act of 1948, to make rules prescribing
the time within which applications and appeals may be presented
under the Act of 1948, in cases where no specific provision has
been made in that behalf.  In exercise of this power, the
Government of Andhra Pradesh framed the Rules of 1973 which
were notified in G.O.Ms.No.50, Revenue (J-1), dated 16.01.1974.
Rule 2(4) of the Rules of 1973 originally read as follows:
      (4) Notwithstanding anything in sub-rule (2) but
subject to the provision of sub-rule (5), where in respect of an
estate in which the ryotwari settlement under Section 22 has
already been effected before the commencement of these
rules, such an application may be filed before the Settlement
Officer within thirty days from the date of such
commencement.  
      Provided that the Settlement Officer may, for good and
sufficient reasons shown by the applicant, entertain an
application filed before him after the period of thirty days
aforesaid.

      However, an amendment was effected to the Rules of 1973 by
way of the Amendment to the Andhra Pradesh (Andhra Area)
Estates (Abolition and Conversion into Ryotwari) Grant of Ryotwari
Patta Rules, 1973, notified under G.O.Ms.No.911, Revenue (J),
dated 15.06.1983.  The amendment is extracted hereunder:
      In exercise of the powers conferred by clause (d) of
sub-section (2) of section 67 read with section 11 of the
Andhra Pradesh (Andhra Area) Estates (Abolition and
Conversion into Ryotwari) Act, 1948 (Act, XXVI of 1948), the
Governor of Andhra Pradesh, hereby makes the following
amendment to the Andhra Pradesh (Andhra Area) Estates  
(Abolition and Conversion into Ryotwari) Grant of Ryotwari
Patta Rules, 1973, issued in G.O.Ms.No.50, Revenue, dated
the 16th January, 1974.
      Amendment
      The proviso under sub-rule (4) of rule 2 of the said rules
shall be omitted.

      Thus, by virtue of this amendment, the power of condoning
the delay, provided under the proviso to Rule 2(4), stood omitted.
      Again in the year 1986, a further amendment was effected to
the Rules of 1973 by the Amendment to the Andhra Pradesh
(Andhra Area) Estates (Abolition and Conversion into Ryotwari)
Grant of Ryotwari Patta Rules, 1973.  By way of this amendment,
the following proviso was added to Rule 2(4) of the Rules of 1973.
      Provided that the Settlement Officer may condone the
delay, if such delay is caused due to the pendency of a
dispute in a Court or for good and sufficient reasons shown
by the applicant for the delay caused, and thereafter entertain
an application filed before him after said period of thirty
days.

      The above amendment was notified under G.O.Ms.No.551,
Revenue (J), dated 19.05.1986, i.e. after submission of the
applications on 15.12.1985 by the applicants in the present cases.
Therefore, at the time when these applications were submitted, the
said proviso was not in existence.
        It appears that by way of a further amendment effected under
G.O.Ms.No.400, Revenue (JA), dated 24.04.1993, the proviso added
in the year 1986 was again omitted.
        The learned counsel for the petitioners in this batch of cases
would however contend that irrespective of the amendments
effected to the Rules of 1973, whereby the power of condoning the
delay in the submission of applications, was extant for certain
periods of time and was omitted during certain other periods of
time, the earliest rule framed under Section 67(2)(e) of the Act of
1948, extending the provisions of Section 5 of the Limitation Act to
applications under the Act of 1948, remained untouched and
therefore, the Settlement Officer, Visakhapatnam, enjoyed such
power independently.  It may be noticed that this aspect was not
raised before any of the authorities below and was not adverted to
even in the pleadings in these cases.  However, as the issue is a
purely legal one revolving around application of a statutory rule,
this Court finds no reason to reject the argument on the ground
that it was not raised earlier.  It may also be noted that the
petitioners specifically raised the issue of condonation of the delay
in the filing of the applications before the Commissioner, Appeals,
and the defence of the Government was that illiteracy and ignorance
of the legal provisions was not a ground available in law. It was
therefore for the authorities concerned to apply the correct legal
position irrespective of whether the applicants adverted to or
invoked the same.
        The learned Assistant Government Pleader for Revenue fairly
admits that the rule framed under Section 67(2)(e) of the Act of
1948 on 17.10.1950, extending the provisions of Section 5 of the
Limitation Act to applications under the Act of 1948, remains
untouched notwithstanding the amendments made to the Rules of
1973 framed under Section 67(2)(d) of the Act of 1948.
      The cases on hand therefore present a classic example of the
rule making authority, viz. the Government, being in a state of utter
confusion as to the legal position in so far as condonation of delay
in the filing of applications under Section 11(a) of the Act of 1948 is
concerned.  On the one hand, the rule framed under Section 67(2)(e)
of the Act of 1948 continues to hold the field, whereby Section 5 of
the Limitation Act was extended to and remained in force as regards
submission of applications for grant of ryotwari pattas, while on the
other, the rule framed under Section 67(2)(d) of the Act of 1948 was
subjected to amendments time and again, whereby the power to
condone the delay was extended and/or omitted from time to time.
As long as the rule framed under Section 67(2)(e) of the Act of 1948
holds the field without interruption, the changing stands of the
Government as to the rule framed under Section 67(2)(d) of the Act
of 1948 cannot and do not make any inroads into the applicability
of the Limitation Act to proceedings under the Act of 1948.
        It is also relevant to note that the applicability of the
provisions of Section 5 of the Limitation Act to a similar case fell for
consideration before this Court in GANDHAM VAJRAMMA V/s.    
COMMISSIONER OF SURVEY, SETTLEMENTS AND LAND              
RECORDS, HYDERABAD .  A learned Judge of this Court referred  
to the rule framed under Section 67(2)(e) of the Act of 1948 and the
separate rules framed under Section 67(2)(d) of the Act of 1948 and
opined that as the earliest notification dated 17.10.1950, whereby
the rule was framed under Section 67(2)(e), remained untouched
and was still in force, the statutory power conferred thereby could
not be tinkered with by the framing and amendment of rules under
Section 67(2)(d) of the Act of 1948.  The learned Judge therefore
concluded that the provisions of Section 5 of the Limitation Act
made applicable under the notification dated 17.10.1950 continued
to have an application to all proceedings before the authorities
constituted under the Act of 1948. This principle squarely covers
the present cases.
        The other issue germane for disposal of these cases is
whether the failure on the part of the petitioners and/or their
predecessors-in-title in seeking condonation of the delay in their
filing applications under Section 11(a) of the Act of 1948 before the
Settlement Officer, Visakhapatnam, would be fatal to their case.
Admittedly, such applications were filed only before the Director of
Settlements, Andhra Pradesh, Hyderabad.
      In this regard, the learned counsel for the petitioners would
place reliance on BASHEERUNNISA BEGUM (DIED) PER L.RS. V/s.      
MEER FAZEELATH HUSSAINI (DIED) PER L.RS. , and more      
particularly para 28 thereof.  Therein, this Court was concerned
with the question whether a formal application was necessary for
condonation of delay.  Referring to earlier decisions of various High
Courts, the learned Judge held that the language of Section 5 of the
Limitation Act did not expressly or by necessary implication
mandate the filing of a written application to obtain relief under the
said Section; that it vested judicial discretion in Courts to exercise
their inherent power and excuse the delay even on an oral
application having regard to the circumstances of a particular case.
Reference was also made to a Division Bench judgment of this
Court in C.V.G. CHOWDARY V/s. DOPPALAPUDI SESHAIAH ,        
wherein it was held that it is not necessary that there should be a
formal petition to excuse delay and it is always open to a Court or a
Tribunal to condone the delay if the person concerned is able to
convince it that there were justifiable grounds for the delay in
presenting an appeal or a petition.  The Division Bench further held
that the filing of a formal petition for excusing delay is not the sine
qua non for exercise of that power.  The learned Judge also referred
to the judgment of this Court in MOVVA ANJAMMA V/s. ABHINENI    
ANASUYA , wherein it was held that even if an application to set
aside an order dismissing the suit for default was not accompanied
by an application for condonation of delay despite lapse of nine
months, the affidavit filed in support of the application for
restoration could make out sufficient cause for condonation of the
delay and there is no necessity for filing a separate application for
condonation of the delay. In A. GOVINDAIAH V/s. V. 
VENKATAMMA , this Court held that the delay could be condoned   
even without filing a separate application for condonation of delay, if
the delay is otherwise explained in the affidavit filed in support of
the application made to set aside the ex parte decree.  In that case,
the petitioner was a rustic villager residing in a remote village and
was an illiterate and this Court held that he had made out sufficient
cause for condonation of the delay.
        Given the aforestated legal position, it is clear that the initial
failure on the part of the petitioners and/or their predecessors-in-
title in seeking condonation of the delay in the filing of applications
under Section 11(a) of the Act of 1948 would not be fatal.  In the
applications filed before the Settlement Officer, Visakhapatnam, the
petitioners and/or their predecessors-in-title specifically stated that
they had no knowledge of the legal requirements and further
explained the delay in their separate applications filed before the
Director of Settlements, Andhra Pradesh, Hyderabad.  These
applications were never considered on merits.
        In the totality of the above circumstances, as the authorities
concerned stood vested with the power available under Section 5 of
the Limitation Act by virtue of the notification dated 17.10.1950,
which remained untouched all through, their ignorance of the same
and their bald refusal to consider condonation of the delay, on the
short ground that the rules framed under Section 67(2)(d) of the Act
of 1948 denied them such power, cannot be countenanced.  The
lack of clarity on the part of the authorities in this regard finds
resonance in their counter-affidavits filed before this Court in these
cases.  On one hand, the Tahsildar, Sitanagaram Mandal, East
Godavari District, who deposed to these affidavits, sought to justify
the rejection of the claim petitions on the ground that they were
time barred while at the same time, he admitted in para 6 of the
counter affidavits that the Settlement Officer had the power to
condone the delay in entertaining the claim petitions but as the
petitioners failed to submit their applications within a reasonable
time, they were rejected as time barred.  This statement, on the face
of it, is self-contradictory and to compound the same, the orders
passed by the authorities below reflect that there was no actual
consideration of the reasons put forth by the petitioners seeking
condonation of the delay in filing claim petitions under Section 11(a)
of the Act of 1948.
      As the valuable property rights of the petitioners are at stake
and as the legal position, as set out supra, was ignored by the
authorities in so far as the extant rule under Section 67(2)(e) of the
Act of 1948 is concerned, this Court has no hesitation in holding
that the summary rejection of the applications filed by the
petitioners and/or their predecessors-in-title under Section 11(a) of
the Act of 1948 on the short ground that they were time barred,
applying the rules framed under Section 67(2)(d) of the Act of 1948,
cannot be sustained.
      The orders impugned in these writ petitions are accordingly
set aside and matter is remitted to the Settlement Officer,
Visakhapatnam, for re-consideration on the issue of the delay in the
filing of the applications under Section 11(a) of the Act of 1948, on
merits.  It is made clear that this Court has not ventured into the
merits of the claims made by the petitioners as to their entitlement
for grant of ryotwari pattas or even for condonation of the delay in
the filing of such applications.  It is for the Settlement Officer,
Visakhapatnam, to deal with the same on the independent and
individual merits of each case and pass appropriate reasoned orders
thereon in accordance with law.
      The writ petitions are allowed to the extent indicated above.
Pending miscellaneous petitions, if any, shall stand closed in the
light of this final order. In the circumstances, there shall no order
as to costs.
________________________  
SANJAY KUMAR, J  
23rd JANUARY, 2015 

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