A SIVUDU NAIDU Vs. TAHSILDAR BOBBILI

JUDGEMENT

(1.) The petitioner was in possession of Ac 2-50 cents of land in Survey No. 44 of village Gopalarayudupeta, Bobbili Taluk and was treated as a Sivai Zamadar. The Tahsildar granted a lease of the said land during fasli 1331 on the footing that the petitioner was a "landless poor" person and that he has been in possession and enjoyment of the said land as "Sivai Zamadar". A patta was also granted. The petitioner dug a well at a huge expense and has been cultivating the same ever since While so, the Tahsildar issued a notice dated 2-5 1976 stating that the petitioner has an extent equal to Ac 4-00 dry land and a tiled house and therefore, he is ineligible for assignment of any Government land either on lease or on patta. It was also alleged that he had alienated a portion of his land to his brother and violated the condition of lease patta granted to him He was asked to show cause why lease patta should not be cancelled. The petitioner received the notice on 4-5-76 and requested for time for filing an explanation through his advocate. The Tahsildar promised to give time.

(2.) The petitioner sent his explanation on 27 5-1976. But the Tahsildar cancelled the lease patta on 26-5-1976 on the grourd that he submitted his explanation in which he stated that he is a landless poor as defined under the Assignment Rules and entitled to the assignment of patta. He had spent a huge amount for digging a well and converting the land into a wet land. He denied that he had Ac. 4-00 of dry land. He also denied that he had alienated any portion of his land to his cousin. However, the patta was cancelled on 26-5-1976 and the land was ordered to be resumed for the reason that the petitioner was 'solvent and ineligible to possess the land on lease patta' and that he had violated the condition of the lease patta by alienating a portion of his land to others. It is stated that this order was sought to be served on the petitioner, but as he refused to receive the copy of the order, it was affixed to the place of his residence on 30-5-1976. Although in the show cause notice it was stated that the petitioner is owning an extent which is equivalent to Ac. 4-00 of dry land, in the order cancelling the lease patta it is not specifically found that he in fact either owns or possesses any extent apart from what was assigned. All that is stated is that he is ineligible for grant of lease patta. and that he is a solvent. That is not a valid consideration to refuse a patta or cancellation of the patta already granted. Under G. O. Ms. No. 1725. dated 26-8-1959, "landless poor" is defined as one who owns not more than 2 1/2 acres of wet land or 5 acres of dry land, one acre of dry land being treated as 2 acres of wet land. There is no further stipulation that he should be otherwise poor. Any person who does not own five acres of dry land or 2 1/2 acres of wet land would be deemed to be landless poor under this G. O. which was in force on the date of the grant of the lease patta in his favour. The other requirement that the person should also be poor as per the definition of 'landless poor' in G. O Ms. No. 725 dated 26-8-1959 was not required to be satisfied for being eligible for lease or assignment under G. O. 1725 dated 26-8-1959. Therefore, the lease patta could not have been cancelled on the ground that the petitioner is solvent. However now that the patta is cancelled by order dated 26-5-76 It was for the petitioner to prefer an appeal against that order as provided in paragraph 15 of the Boards Standing Orders "within thirty days of the date on which the original decision was pronounced or communicated". But in the instant case, it happens that the order of cancellation was pronounced by the Tahsildar by affixture. While the petitioner asked for time to submit his explanation to the show cause notice, the Tahsildar without specifically granting or refusing the time asked for and without fixing any date for hearing recorded the order of cancellation of patta on 26-5-1976 and sought to serve the same through the Revenue Inspector. Such a procedure is not envisaged by Board Standing Order No. 15 or the rules governning the assignment or cancellation of patta. Paragraph 15 of the Board Standing Orders contemplates either pronouncement of the order or communication of the order. "Communicate", in my opinion, means that the order should be brought to the notice of the party concerned.

(3.) There is no specific procedure prescribed for communicating the order by affixture of (he same on the dwelling house of the party nor is there any specific provision to serve it through the Revenue Inspector. In the event of the party refusing to receive a paper delivered to him, if it be on order of cancellation pronounced under any of the Board Standing Order or the Government orders leferred to above, there is no specific provision to affix such order to the place of residence, much less is there any provision which renders such an affixture "communication" of the order within the meaning of paragraph 15 of the Board Standing Orders. The learned Government pleader sought to rely on section 7 of the Madras Land Encroachment Act read with section 25 of the Recovery Act which deals with service of notice to contend that the attempt of theTahsildar to serve the order pronounced on 26 5-1976 by delivering it through Revenue inspector or affixture constitutes communication of the order within the meaning of paragraph 15 of the Board Standing Orders. But in my view, this provision actually deals with the service of notice and not with the communication of orders pronounced by officers. If it was the intention of the rule-making authorities to deem affixture of the orders to the residential house as communication of the order, the same provision as contained in section 24 of the Revenue Recovery Act would have been made under the Board Standing Orders or that provision would have been made applicable, in the absence of any such deeming provision or any provision authorises the communication of the order in the manner in which the Tahsildar has now done, the affixture of the order to the dwelling house of the petitioner cannot be deemed to the communication of the order. As the Tahsildar failed to fix any date for the pronouncement of the order, the only other mode perhaps available to him was to serve a notice on the petitioner and fix a date for the pronouncement of the order and pronounce the order on the said date. I, therefore, hold that the order cancelling the patta was neither pronounced nor communicated to the petitioner.