THE HONOURABLE THE ACTING CHIEF JUSTICE
M.S. RAMACHANDRA RAO
AND
THE HONOURABLE SRI JUSTICE T. VINOD KUMAR
Writ Appeal No.451 of 2021
Between:
V.Ramaswamy, S/o.late Voggu Chinna
Mallaiah, aged about 40 years, Occu:
Agriculture, R/o.Maheshwaram village and
Mandal, Ranga Reddy District.
...Petitioner
And
1. The State of Telangana, Rep.by its Principal
Secretary, Revenue Department, Secretariat,
Hyderabad and others.
...Respondents
Date of Judgment pronounced on : 28.09.2021 THE HONOURABLE THE ACTING CHIEF JUSTICE M.S. RAMACHANDRA RAO AND THE HONOURABLE SRI JUSTICE T. VINOD KUMAR
1. Whether Reporters of Local newspapers : Yes/No May be allowed to see the judgments?
2. Whether the copies of judgment may be marked : Yes to Law Reporters/Journals:
3. Whether His Lordships wishes to see the fair copy : Yes/No Of the Judgment?
MSR,J & TVK,J ::2:: wa_451_2021 THE HONOURABLE THE ACTING CHIEF JUSTICE M.S. RAMACHANDRA RAO AND THE HONOURABLE SRI JUSTICE T. VINOD KUMAR Writ Appeal No.451 of 2021 % 28.09.2021 # V.Ramaswamy, S/o.late Voggu Chinna Mallaiah, aged about 40 years, Occu:
Agiruclture, R/o.Maheshwaram village and Mandal, Ranga Reddy District.
...Petitioner
And
$ 1. The State of Telangana, Rep.by its
Principal Secretary, Revenue
Department, Secretariat, Hyderabad
and others.
...Respondents
< GIST:
> HEAD NOTE:
!Counsel for the Petitioner : Sri M.Damodar Reddy
^Counsel for the respondents : Learned Government Pleader for Revenue
? Cases referred
1. 1987(2) ALT 749 (FB)
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THE HONOURABLE THE ACTING CHIEF JUSTICE
M.S. RAMACHANDRA RAO
AND
THE HONOURABLE SRI JUSTICE T. VINOD KUMAR
Writ Appeal No.451 of 2021
JUDGMENT: (Per Hon'ble The Acting Chief Justice M.S.Ramachandra Rao)
This Writ Appeal is filed by the appellant herein challenging the order dt.10.08.2021 passed in Writ Petition No.17103 of 2021 by the learned single Judge.
2. In the said Writ Petition, it was the case of Writ Petitioner that his father Late Voggu Chinna Mallaiah was the protected tenant of the land in Sy.Nos.414, 415, 416 and 417 of Tummalur Village, Maheshwaram Mandal, Ranga Reddy District; in recognition of his tenancy rights of inam land, his name was included in the Protected Tenancy Register and he was issued Certificate under Section 38-E of the Andhra Pradesh (Telangana Area) Tenancy and Agricultural Lands Act, 1950 (for short, 'the Act') on 23.07.1975 of an extent of Acs.50.29 gts. declaring him as absolute owner of this land; and that petitioner's father was in enjoyment of the said land till his death on 21.02.2000.
3. Thereafter, the appellant and 4 other persons as his legal heirs succeeded to the Tenancy Rights of late Voggu Chinna Mallaiah. He also conducted that a panchanama was conducted on 11.9.2013 by the revenue Officials and appellant and other legal heirs were found to be in MSR,J & TVK,J ::4:: wa_451_2021 possession only to the extent of Ac.25-14 ½ gts and they are not in possession of the remaining extent covered by the certificate under Sec.38-E of the Act.
4. He contended that since the father of the appellant died without initiating proceedings under the proviso to Sec.38-E (2) of the Act, the land admeasuring Ac.25.14 ½ gts remained in possession of the unauthorized person and appellant and other legal heirs of the original Protected Tenant are deprived of benefits under the Act. Thus appellant contended that Acs.25.14 ½ gts. was in illegal occupation of third parties depriving the appellant and other legal heirs of enjoyment to the entire extent of land covered by the certificate under Sec.38-E of the Act and they have been compelled to cultivate only other extents.
5. The appellant alleged that himself and other legal heirs filed application before the Tahsildar under Section 38-E(2) read with Section 40 of the Act to restore physical possession on the land to an extent of Acs.25.14 ½ gts and to recognize them as illegal heirs of the original protected tenant. He also contended that the Tahsildar refused to receive the application under Sections 38-E(2) and 40 of the Act, 1950 when it was sought to be given to him on 01.04.2021.
6. He stated that he then filed an application before the District Collector through an Advocate requesting to forward the application and to direct the Tahsildar to dispose of the same. But, since no steps were taken by the District Collector, the above Writ Petition was filed.
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7. He therefore sought a relief in the nature of a Writ of Mandamus declaring the action of the Collector, Ranga Reddy District and the Tahsildar, Maheshwaram Mandal, Ranga Reddy District in not accepting the application of the appellant and his family members under Section 38-E(2) and Section 40 of the Act for seeking succession and restoration of possession of the said land in Sy.Nos.414, 415, 416 and 417 of Tummaluru Village, Maheshwaram Mandal, Ranga Reddy District as illegal, unlawful, contrary to law and to direct respondent nos.2 and 3 to receive the said application dt.01.04.2021.
8. At the stage of admission, the said Writ Petition was dismissed on 10.08.2021 on the ground of delay in laches on the part of the appellant in seeking a statutory remedy under Section 38-E(2) and Section 40 of the Act only on 01.04.2021 and not prior thereto.
9. Admittedly, Section 38-E(2) of the Act deals with the power of Tahsildar to restore possession of the land to the person who has been issued Certificate under Section 38-E of the Act recognizing his protected tenancy right and which is in the occupation of a third-party.
10. In Sada and Ors. vs. The Tahsildar, Utnoor, Adilabad District and Ors1, a Full Bench of the Andhra Pradesh High Court held as under:
" It is clear from S.38-E that it is for these 'Protected tenants' who are finally declared to be 'protected tenants' and included in the Register prepared for that purpose and for whom protected tenancy certificates have been issued, that ownership rights are envisaged in 1 1987(2) ALT 749 (FB) MSR,J & TVK,J ::6:: wa_451_2021 S. 38-E(1), subject of course, to the limitation with regard to extent of holdings as specified in S. 38(7) and to the proviso to S. 38-E(1). Once persons who held land on the dates or for the periods mentioned in Ss. 34, 37 and 37-A and the requirement of physical possession on the dates required in those sections is satisfied, such persons have become 'protected tenants'. Once a person becomes a protected tenant, he earns a qualification to become an owner by force of statute, subject of course to the qualification regarding extent in S. 38(7) and to the proviso to S. 38-E(1). There is no requirement in the Act that he should also be in possession on the date specified in the notification issued in S. 38-E(1). The words 'all lands held by protected tenants' is more a description or the lands with regard to which the right as .protected tenant has been declared and there are no words requiring physical possession on the date specified in the notification....
... for the vesting of the ownership of land 'held' by a protected tenant tinder S. 38E(1), it is not necessary that the protected tenant should have been in physical possession on the date of notification. It is sufficient if he continued to hold the status of a 'protected tenant' as on the notified date even if not in physical possession and he satisfied the requirements of S. 32(7) of the Act. This is also subject to the proviso to Section 38-E(1)....
...the restoration of possession to the protected tenant under the latter part of the Explanation to S. 38-E(1) is not a condition precedent for initiation or grant of ownership certificate under Section 38-E(2)."
11. The Full Bench held that after the introduction of the new proviso to S. 38-E(2) by Act 2 of 1979, the former-protected tenant who has become owner, is entitled to possession independently under that provision. The scope of the enquiry under the latter part of the Explanation to Sec. 38-E(1) is only as long as the person continues as 'protected tenant' and not if he has become 'owner' for, in the latter case, MSR,J & TVK,J ::7:: wa_451_2021 it is the new proviso to S. 38-E(2) that comes into operation and not the Explanation to S. 38-E(1); that once the certificate is issued, and has, after any proceedings in appeal or revision, become final, it is conclusive proof of ownership and the validity thereof cannot be challenged by the landholder or anybody claiming through him or other persons having any interest therein', (as stated in S. 38-E(2)) in proceedings for delivery of the land under the new proviso to S. 38-E(2) or in any other collateral proceedings, provided the principles of-natural justice are satisfied. Section 99 of the Act also bars the jurisdiction of the Civil Courts in this regard.
12. More importantly it held as under:
"the new proviso to S. 38-E(2) was introduced by Act 2 of 1979 to get round the difficulty created by the judgment in Narsaiah's case (1979 (1) Andh WR (HC) 23). There, it was held, that once the protected tenant has become owner, there is no machinery in the Act enabling him to obtain possession. It was pointed out that the provision in the latter part of the Explanation to S. 38-E(1) enabling a 'protected tenant' to obtain possession through the Tahsildar was not applicable to the case of an application by an owner, even if it be a case of a protected tenant becoming an owner.
In our view, the Legislature wanted to fill up the difficulty created by Narsaiah's case when it added the new proviso to 5. 38E(2) enabling the Tahslidar to restore possession to a former protected tenant who had become the owner.
It is, however, argued that this amendment is prospective from 11-1-1979 and that the benefit of restoration of possession through the Tahsildar is available only to those protected tenants who have been given ownership certificates after 11- I- 1979. In our view, this is not correct. It was, in our view, not the intention of the Legislature that these MSR,J & TVK,J ::8:: wa_451_2021 protected tenants who obtained ownership certificates before 11- I- 1979 should go to the Civil Court and those obtained certificates after 11-1- 1979 should go to the Tahsildar. The intention of the Legislature was to benefit all cases, whether the ownership certificates were issued before or after Act 2 of 1979. As already stated, the actual date of issuance of the ownership certificate has, no bearing on the statutory transfer of ownership under S. 38-E(1) with effect from the date of notification for the certificate dates back to the date of the notification under S. 38- E(1)." ( emphasis supplied)
13. So according to this decision any protected tenant, who obtained certificate under Sec.38-E of the Act and has become an owner, can seek restoration of possession under proviso to Sec.38-E (2) even if he lost possession before 11.1.1979.
14. This decision indicates that the proviso to Sec.38-E (2) entitles a protected tenant even after he obtained a certificate under Sec.38E to seek restoration of possession, and the legislature never intended to put any limitation/time limit for the same by linking the date of issuance of ownership certificate to the date when the application for restoration of possession was sought under the said provision. Thus the concept of laches/delay has no application at all having regard to the beneficial legislation intended to protect tenants and their successors.
15. The learned Single Judge , having referred to the decision in Sada (1 Supra), appears to have not noticed the above passages in the said judgment and incorrectly applied the concept of delay/laches , which he ought not to have done.
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16. Section 40 of the Act vests rights in the successor of a protected tenant to acquire all rights and interests vested in the land on a protected tenant.
17. Whether the appellant has made out a claim for this relief, ought to be decided by the authorities under the Act; and the aspect of delay in approaching the 3rd respondent, is not relevant.
18. The learned Government Pleader did not bring to our notice any provision of the Act or the Rules made thereunder fixing any time limit to make the applications of the above nature. Had the Legislature intended that there should be any limitation for filing these applications, the Legislature or the Rule-making authority would have prescribed a period of limitation. But, it appears to have not done so.
19. The learned single Judge also went into the following question :
"whether a Mandamus can be issued to restore possession to a protected tenant at any time and whether a Writ can be issued at the will and pleasure of successor to a protected tenant to restore possession of land covered by tenancy rights?"
20. According to us, such was not the relief sought in the Writ Petition by the appellant.
21. The appellant had only complained of inaction by respondent nos.2 and 3 in considering his application, but he has not asked for a Writ of Mandamus from the High Court to restore his possession. Under MSR,J & TVK,J ::10:: wa_451_2021 a misconception that such a Writ of Mandamus has been sought, the learned single Judge went into the said aspect when it did not arise for consideration in the case.
22. The appellant had admittedly filed copy of Section 38-E Certificate issued to his father by the competent authority under the Act on 23.07.1975, and he had also filed the Death Certificate of his father along with the papers in the Writ Petition.
23. Though the learned Government Pleader drew our attention to a Circular / Letter issued by the Chief Commissioner of Land Administration, Telangana, Hyderabad in CCLA's Ref.No.Ass.I(1)/463/2020, dt.07.09.2020, directing that no orders in matters should be issued by any authority w.e.f. 07.09.2020 until further orders; and that any order given during such period would be treated as invalid, he stated that this was issued in view of the anticipated repeal of the A.P.Rights in Land and Pattadar Passbooks Act,1971 by the new Telangana Rights in Land and Pattadar Passbooks Act,2020 ( Act 10 of 2020 w.e.f.19.9.2020) and that was not the reason for not receiving the appellant's application, though counsel for the appellant contended otherwise.
24. In our opinion, there is no power vested under any law in the Chief Commissioner of Land Administration to issue such a blanket order and keep in abeyance various provisions of Revenue Laws operating in the State of Telangana conferring jurisdiction on the various MSR,J & TVK,J ::11:: wa_451_2021 Revenue Officials and prohibit them from doing any actions. The said Circular / letter cannot be pleaded as a bar for entertaining of the application filed by the appellant and other legal heirs by the 3rd respondent.
25. Therefore, we hold that the impugned order passed by the learned single Judge cannot be sustained.
26. The Writ Appeal is allowed; order dt.10.8.2021 in W.P.No.17103 of 2021 of the learned Single Judge is set aside and the W.P.No.17103 of 2021 is allowed; a direction is issued to 3rd respondent to receive the application dt.01.04.2021 filed by appellant both under Section 38-E(2) and Section 40 of the Act and consider the same in accordance with law within a period of eight (08) weeks after hearing the appellants. No order as to costs.
27. As a sequel, miscellaneous petitions pending if any in this Appeal, shall stand closed.
________________________________ M.S.RAMACHANDRA RAO, ACJ _______________________ T.VINOD KUMAR, J Date: 28.09.2021 Note :- L.B. Copy to be marked.
B/o.
Ndr