THE HON’BLE SRI JUSTICE V.SURI APPA RAO CIVIL REVISION PETITION No.174 OF 2011 Dated : 18.06.2014 Between:
Thimma Reddy & others .. Petitioners and Golla Kashanna & others .. Respondents THE HON’BLE SRI JUSTICE V. SURI APPA RAO CIVIL REVISION PETITION No.174 OF 2011 ORDER:
This Civil Revision Petition under section 91 of A.P. (TA) Tenancy And Agriculture Lands Act, 1950 (for short ‘Tenancy Act’), is filed challenging the order dated 07.01.2011 passed in Case No.B7/IA-1/1994 whereby and whereunder the Joint Collector, Mahbubnagar, partly allowed the appeal filed by the respondents herein by remitting the matter to the Revenue Divisional Officer, Wanaparthy, for detailed enquiry.
2. Brief facts of the case are as follows:
Case of the revision petitioners, in brief, is that they are the legal heirs of one Late Sai Reddy, who was the protected tenant of the land in Survey No.117 admeasuring Acs.17-31 guntas at Chinnamandadi Village, Peddamandadi Mandal, Mahabubnagar District. After death of his father, petitioner Nos.1 to 3 succeeded the protected tenancy rights (for short ‘P.T. rights’) of his father and accordingly, their names were mentioned in the provisional list prepared under Section 38-E of the Tenancy Act for grant of 38-E Certificate and accordingly the Additional Revenue Divisional Officer, Gadwal, in file No.A3/227/1975 dated 23.08.1975 granted 38-E ownership certificate in their favour in respect of the Protected Tenancy Land (for short ‘P.T. Land’). However, the Mandal Revenue Officer, Peddamandadi passed orders dated 21.10.1993 in file No.B/3659/1993 for restoration of the PT land to the petitioners. Accordingly, the Mandal Revenue Inspector conducted panchanama dated 26.10.1993 and restored possession of the PT land to petitioners and their names were also implemented in the Revenue Records as pattadars and pattadar pass books and title deeds were also granted in favour of the petitioners. After death of Venkat Reddy, patta of P.T. land to the extent of Acs.5-37 guntas was mutated in name of 4th petitioner, wife of said Venkat Reddy. While so, the respondents filed an appeal in file No.B7/IA-1/1994 before the Joint Collect, Mahabubnagar, challenging grant of 38-E certificate in favour of the petitioners herein. The Joint Collector by order dated 12.12.1998 allowed the said appeal by setting aside the 38-E Certificate granted in favour of the petitioners. However, this Court in C.R.P.No.1128 of 1999 by order dated 17.09.2001 set aside the order of the Joint Collector and remanded the matter to the Joint Collector for conducting fresh enquiry and pass appropriate orders in appeal after issuing notice to the heirs of Venkat Reddy. The Joint Collector by impugned order partly allowed the appeal by remitting the matter to the Revenue Divisional Officer, Wanaparthy, for detailed enquory by issuing notices to the heirs of Protected Tenant Sai Reddy and the purchasers who continue to be in possession.
3. Aggrieved over the action of the Joint Collector remitting the matter for detailed enquiry, present revision has been preferred by the revision petitioners.
4. This Court while admitting the C.R.P. has granted interim stay of the order passed by the Joint Collector, Mahabubnagar in Crl.M.P.No.240 of 2011.
5. While seeking to vacate the interim stay granted by this Court vide C.R.P.M.P.No.818 of 2014, R.3 filed counter affidavit stating that Late Sai Reddy voluntarily and orally surrendered his tenancy rights in favour of legal heirs of Original Pattadar viz., Itte Nagi Reddy before khasra i.e. 1954-55 and the same has been recorded by revenue authorities when oral surrender was in practice and accepted by Tenancy Act. It is further submitted that her father purchased Acs.6-00 guntas of land from out of the P.T. land under registered sale deed bearing document No.1503/1971 dated 07.10.1971 for a valid sale consideration and since then her father was in continuous possession of the said land as absolute owner, pattedar and possessor. It is further alleged that without issuing any notice, the Land Ceiling authorities have issued ORC under Section 38 (E) of the Act in favour of legal heirs of protected tenant Late Sai Reddy. Hence, she prayed to dismiss the Civil Revision Petition.
6. Heard both sides. Perused the material on record.
7. Learned counsel for the revision petitioners submits that once certificate under Section 38-E of the Act has been granted on the basis of the provisional list, the remedy available to the land holder is only to invoke Rule 6 of A.P. (TA) Protected Tenants (Transfer of Ownership of Lands) Rules, 1973 (for short ‘the Rules’) for determination of reasonable price to be collected from the certificate holder and to be paid to the landlord. He further contended that in the case on hand, after the provisional list has become final without there being any objection from the land holder and after expiry of nearly about twenty years from the date of issuance of 38-E Certificate, the respondent filed the appeal and the Joint Collector erroneously entertained the same. He further submitted that oral surrender of P.T. Rights by Late Sai Reddy, as alleged by the respondents, is not supported by any other evidence and the same is also not permissible under Section 19 of the Tenancy Act. Thus, he prayed to set aside the impugned order.
8. Learned counsel for the respondents submits that alleged oral surrender of P.T. Rights by Late Sai Reddy has been established by entry in khasra pahani 1954-55 and sesla pahani 1955-58 from which it is clear that as on the date of enforcement of provisions of Section 38-E i.e. 01.01.1973, the P.T. Rights of either Late Sai Reddy or his heirs are non-est and therefore the revision petitioners are not entitled for 38-E Certificate. As such, the order of Joint Collector remanding the matter to the Revenue Divisional Officer, Wanaparthy, for detailed enquiry need not be interfered with and CRP is liable to be dismissed.
9. Point for consideration is:
1) whether the provisions of Section 38(e) of the A.P.(T.A.) Tenancy and Agriculture Lands Act, 1950 (for short ‘the Tenancy Act) and the rules framed therein under Section38(d) are strictly followed by the Additional Revenue Divisional Officer, Gadwal while issuing ownership certificate No.A3/227/1975dated 23.08.1975?
2) Whether there are any justifiable grounds for remanding the matter to the Revenue Divisional Officer, Wanaparthy for conducting detailed enquiry after issuing notice to the heirs of late protected tenant Sai Reddy, heirs of the original land owners and the subsequent purchaser?
10. Learned counsel for the revision petitioner contended that the provisional list was prepared and Section 38(e) certificate was granted on the basis of the provisional list, the Joint Collector therefore, cannot retain the appeal under Section 38(e) and ownership certificate granted in favour of the petitioner when the provisional list has become final and there was no objection from the land holder.
11. Per contra, learned counsel for the respondent submitted that the parties, who are in actual possession of the property since 1975 were not served with notice, therefore, the order passed by the Revenue Divisional Officer granting ownership certificate is illegal. It is further submitted that the respondents have preferred appeal in turn from the date of knowledge about granting the ownership certificate. The competent authority has satisfied that there was sufficient cause for delay and condoned the delay.
12. Admittedly the legal heirs of Sai Reddy were granted certificate under Section 38(e) of the Tenancy Act. The revision petitioners challenged the same in appeal and the said appeal was allowed cancelling Section 38(e) certificate passed in favour of Timma Reddy and Narayana Reddy, legal heirs of Sai Reddy. Aggrieved by the same, Timma Reddy and Narayana Reddy, the revision petitioners 1 and 3 filed C.R.P.No.1128 of 1999. During the pendency of that revision petition Venkat Reddy one of the legal heirs of Sai Reddy, in whose favour Section 38E certificate was granted by the Additional Revenue Divisional Officer, Gadwal, died. This Court therefore, in C.R.P.No.1128 of 1999 held that in the absence of the heirs of Venkat Reddy on record, the order of the appellate authority is vitiated. It is however, the specific case of the revision petitioners that Sai Reddy protected tenant had voluntarily surrender his P.T.Rights in the year 1952 itself and the same is reflected in the Khasra pahani 1954-1955 and sesala pahani 1955-1958 and that the said Sai Reddy was out of possession as on the date of enforcement of provisions of Section38E i.e. 01.01.1973. Therefore, the revision petitioners contend that the legal heirs of Sai reddy protected tenant rights are not entitled for Section 38E certificate.
13. The revision petitioners contend that their father Sai reddy never surrendered his PT Rights. However, it is admitted that he was out of possession as he was dispossessed forcibly, but still his rights as protected tenant are subsisting as on the appointed date i.e. on 01.01.1973. The revision petitioners also contended that the respondents have been in continuous possession since 1971, provisional list was not served on them, Additional Revenue Divisional Officer, Gadwal also not served any notice to them.
14. It is seen, from the record that when the notices were not issued to the respondents, the professional list of PT ownership was not served on them and as they were not heard before issuing the certificate under Section 38E of the Act. Learned Joint Collector, therefore, on that ground alone, allowed the appeal and remanded the matter to the Revenue Divisional Officer, Wanaparthy for detailed enquiry. Under the Act, the provisional list of protected tenant is entitled to ownership right must be communicated to the land holders and protected tenants individual publication of provisional list by way of affixing notice on the notice board of Village Chawadi is not all sufficient. The respondents contends that they have been in continuous possession since 1971 and provisional list of P.T. ownership was not served on them granting ownership certificate under Section 38E of the Act by the Additional Revenue Divisional Officer without following the mandatory provisions of the Act. Section 38E of the Act reads as follows:
“Section 38E (Ownership of lands held by protected tenants to stand transferred to
them from a notified date:-
(1) Notwithstanding anything in this Chapter or any law for the time being in force or any custom, usage, judgment, decree, contract or grant to the contrary, the Government may, by notification in the Andhra Pradesh Gazette, declare in respect of any area and from such date as may be specified therein, that ownership of all lands held by protected tenants which they are entitled to purchase from their land-holders in such area under any provision of this Chapter shall, subject to the condition laid down in sub-section (7) of Section 38, stand transferred to and vest in the protected tenants holding them and from such date the protected tenants shall be deemed to be the full owners of such lands;
Provided that where in respect of any such land, any proceeding under Section 19 or Section 32 or Section 44 is pending on the date so notified, the transfer of ownership of such land shall take effect on the date, on which such proceeding is finally decided, and when the tenant retains possession of the land in accordance with the decision in such proceeding.
(2) A certificate in the prescribed form declaring him to be owner shall be issued by the Tribunal after holding such enquiry as may be prescribed, to every such protected tenant and notice of such issue shall simultaneously be issued to the landholder. Such certificate shall be conclusive evidence of the protected tenant having become the owner of the land with effect from the date of the certificate as against the landholder and all other persons having any interest therein:
Provided that where the land, the ownership of which has been transferred to the protected tenant under sub-section (1), is in the occupation of a person other than the protected tenant or holder of the certificate issued under this sub-section, it shall be lawful for the Tahsildar to restore the possession of the said land to the protected tenant or holder of the certificate, after giving notice of eviction to the occupant thereof, in the prescribed manner.
(3) Within ninety days from the date of notice of issue of the certificate under sub- section (2), every land-holder of lands situated in the area specified in the notification under sub-section (1), shall file an application before the Tribunal for the determination of the reasonable price of his interest in the land which has been transferred to the ownership of a protected tenant under sub-section (1), and if an application is not so filed within such period by the landholder, the Tribunal may suo motu proceed to determine such price and thereupon all the provisions of sub-section (4) to (8) of Section 38 shall mutatis mutandis apply to such application;
Provided that if the protected tenant commits default in respect of any instalment, it shall be recovered by the Government as arrears of land revenue and paid to the landholder:
Provided further that if the whole or any part of the price due to the landholder cannot be recovered as arrears of land revenue, the transfer shall not be effective and the amount, if any, already paid by the protected tenant towards the price shall be refunded to him together with interest at three per cent per annum and the land revenue paid by him, if any, after deducting therefrom the rent for the period.
(4) The Government may, for the purpose of giving effect to the provisions of this section by rules, make such supplemental, incidental and consequential provisions as they may deem necessary, such as the procedure for making inquiry to ascertain the extent of the holding of the tenant as on the notified date and the extent of the land which is to be deemed to have been transferred to and vested in the protected tenants.
(5) Notwtihstanding anything contained in this section or Section 19, the Collector may, suo motu at any time, hold an enquiry with a view to ascertain the genuineness of the surrender of the right made by the protected tenant under clause (a) of sub- section (1) of Section 19, for the purpose of affecting the transfer of ownership under this section, and pass such order in relation thereto as he may think fit:
Provided that no order adversely affecting any person shall be passed under the sub- section unless such person has had an opportunity or making his representation thereto.”
15. Considering the above facts and circumstances of the case, learned Joint Collector was justified in allowing the appeal filed by the respondents and remanding the matter to the Revenue Divisional Officer, Wanaparthy for detailed enquiry after issuing notice to the concerned. Therefore, I do not see any ground to interfere with the impugned order.
16. Accordingly, the civil revision petition is dismissed confirming the order dated 07.01.2011 passed in Case No.B7/IA-1/1994, by the Joint collector, Mahabubnagar. Since long time both parties are agitating their rights, the Revenue Divisional Officer, Wanaparthy is directed to dispose of the matter within six months from the date of receipt of a copy of the order. There shall be no order as to costs.
17. Miscellaneous petitions, if any, pending in this revision petition shall stands closed.
V.SURI APPA RAO,J Dated: 18.06.20.14 Kvrm/sur THE HON’BLE SRI JUSTICE V.SURI APPA RAO CIVIL REVISION PETITION No.174 OF 2011 Dated : 18.06.2014