V. Ramaswamy vs The State Of Telangana And 2 Others
2021 Latest Caselaw 2814 Tel

       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

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