CRP/3952/1999 of G.ANJINA REDDY AND 2 OTHERS Vs B.S.HANUMATHACHAR AND 5 OTHERS on 28 December 2012

1. C.R.P.No.3952 of 1999 covers an extent of about Ac.14.00.

2. C.R.P.No.4121 of 1999 covers an extent of about Ac.9.00.

3. C.R.P.No.4102 of 1999 covers an extent of about Ac.9.00.

3. The petitioners claim that the declarants have alienated the lands aforesaid and involved in each of the revision petitions to thepetitioners under registered sale deeds during the year 1980-81. It isalso stated that the determination proceedings attained finality so far asthe declarants are concerned vide orders of the Land Reforms AppellateTribunal, Anantapur in L.R.A.Nos.189 and 190 of 1977, dated20.12.1977. It is also stated that after the determination became final,the declarants proposed various lands towards surrender whichincludes the lands alienated in favour of the petitioners under theregistered sale deeds of 1980-81, referred to above.

4. By proceedings of the Land Reforms Tribunal, Anantapur inC.C.No.3085, 3358/75 KLG, dated 27.06.1990, the Primary Tribunalaccepted the surrender of the lands of the petitioners by thedeclarants. When the petitioners came to know of the same, theypreferred separate appeals L.R.A.Nos.5 of 1991, 6 of 1991, 12 of 1991,11 of 1991 and 10 of 1991.

5. C.R.P.No.4102 of 1999 is preferred against the order inL.R.A.No.5 of 1991; C.R.P.No.4121 of 1999 is preferred against theorder in L.R.A.No.11 of 1991; and C.R.P.No.3952 of 1999 is preferredagainst the order in L.R.A.No.6 of 1991.

6. Learned Senior Counsel appearing for the petitioners submitthat the lands of the petitioners being covered by registered sale deedsof 1980-81 and the occupation of the said lands by the petitioners wasnot in dispute even at the time of proposal for surrender, as is evidentfrom the proceedings of the Primary Tribunal, dated 27.06.1990, refersto the report of the Mandal Revenue Officer that the proposed lands forsurrender include the lands covered by alienations after determinationproceedings. Apparently, the Tribunal has ignored the sales andencumbrances subsisting on the said lands in view of occupation of thelands by the petitioners and accepted the surrender. Learned SeniorCounsel submits that if the petitioners had been notified of the proposedsurrender at that stage itself, the petitioners would have pointed out the said encumbrance and in accordance with Rule 10 Sub-clause (3), theTribunal would have refused to accept the lands of the petitioners andwould have selected some other unencumbered lands of the declarant. Learned counsel submits that in spite of the aforesaid being brought tothe notice of the lower appellate court, the sales in favour of thepetitioners have been ignored by the Primary as well as the AppellateAuthority on the ground that they are affected by Section 17 of the Act.

7. Learned Government Pleader appearing for the officialrespondents submits that the lands of the petitioners having beenaffected by Section 17 of the Act, the alienations have to be treated asvoid and, therefore, the acceptance of surrender for the petitioners’lands cannot be faulted. Learned Government Pleader also points outthat a notification was issued at the time of considering the proposal forsurrender and as no objection was received, the Tribunal has acceptedthe surrender.

8. The facts and circumstances, as narrated above, clearlyindicate that so far as the petitioners’ lands are concerned, they werealienated by the declarants in their favour under registered documentsin the year 1980 – 81 and even accepting that the said sales in favour ofthe petitioners are affected by Section 17 of the Act, the existence ofEncumbrance Certificate on the said lands in the shape of claim of thepetitioners cannot be wished away. The said lands, so far as thepetitioners are concerned, are said to be in their possession andenjoyment through out. Learned Government Pleader has obtained areport about the present status of the surrendered lands from the SpecialTahsildar, Land Reforms, Anantpur, which is placed before the Court,which shows that out of the total extents of Acs.97-47 in SrirangapuramVillage, Belugappa Mandal, an extent of Acs.59-69 were alienated tothe landless poor persons and the said alienees are in possession ofAc.59.69. In view of the stay orders operating in these revisions, thepetitioners’ enjoyment and possession of their lands, which are subject matter of these revisions, is not affected and the surrender isimplemented to the extent of Acs.59-69, referred to above, by assigningthe said lands to the landless poor persons.

9. Under the scheme of the Act and particularly Rule 7 of theRules framed thereunder, notice of surrendered statement is required tobe served not only on the declarant but the person in occupation. Forthe sake of convenience, Rule 7, sub-rules (1) to (5) are extractedhereunder:

“Rule 7 – Surrender of land – (1) The notice to beserved on every person whose holding is in excess of theceiling area under sub-section (2) of Sec.10, shall be in FormVI.

2) The statement required to be filed by a personsunder sub-sec. (2) of Section 10 shall be filed, either bypresenting it in person or by an authorized agent, in the officeof the Tribunal or by sending it by registered post or recordeddelivery with acknowledgments due addressed to theTribunal, within the time specified in the notice referred to insub-rule(1).

3) Where the Tribunal proposes to refuse to acceptthe proposed surrender of any land, it shall serve a notice inForm VII on the person concerned requiring him to surrenderany other land in lieu thereof.

4) The Tribunal shall, before passing an order undersub-section (3), sub-section (4) or sub-section (5) of Section10, publish the particulars of land proposed to besurrendered or selected in Form VII in the same manner asprovided for publication of the notice in Form IV, andconsider the objections, if any received in pursuance of suchpublication.

5) In the case of land liable to be surrendered by analienee in accordance with the proviso to sub-section (8) ofSection 7, the Tribunal shall, after giving an opportunity ofbeing heard to the alienee, pass such orders as it deems fit,and where there are more than one alienee, such surrendershall be in proportion to the extent of such land in thepossession of each alienee.”

Apart from that Rule 8 (2) is as follows:

“ 8. Procedure for taking possession of the landsurrendered: - (2) A copy of the order shall be served on thepersons who has surrendered or is deemed to havesurrendered the land and on any other person in possession or occupation of such land.”

10. It would thus be evident that the person in possession isentitled to notice and consideration of his objections before thesurrender statement is accepted and before possession is obtained. Inthe present case, except a general notice under Section 8(2), referableto Form No.VIII, as claimed by respondents, no individual noticesappear to have been given to the petitioners and thereby they could notappear before the Primary Tribunal, and submit their objections to thesurrender proposed, so far as their lands are concerned. The lowerappellate Tribunal also did not consider the said aspect. Thereby,petitioners’ lands are accepted for surrender without giving anyopportunity to them to file their objections prior to acceptance ofsurrender. In the circumstances, it would have been proper for theTribunal to have heard the petitioners before passing a final orderaccepting or rejecting the surrender so far as petitioners’ lands areconcerned.

11. Learned Senior Counsel places reliance upon a decision ofthis Court in K.Butchi Reddy v. State of Andhra Pradesh inC.R.P.No.463 of 1978, dated 03.07.1978, wherein it is held that thelands proposed by the declarant for surrender can be accepted by theTribunal only after notice to such person who claims to be purchaserfrom the declarant and is in possession. It is for this reason that undersub-rule (3) of Rule 7, extracted above, the Primary Tribunal would beentitled to accept or refuse proposal of land after hearing objections fromthe person in possession.

12. Keeping these aspects in mind, therefore, I am inclined to setaside the orders of the Primary Tribunal, dated 27.06.1990, as well asthat of the appellate Tribunal, dated 01.09.1999, in the respective LandReforms Appeals and remit the proceedings to the Land ReformsTribunal, Anantapur to re-consider the proposed surrender by thedeclarants so far as the petitioners’ lands are concerned, which are subject matter of these revision petitions. The Land Reforms Tribunalshall notify the petitioners herein as well as the declarants and informthe date on which the Tribunal proposes to consider the matter afreshand after hearing the objections and contentions on behalf thepetitioners, declarants as well as authorized officer and after addressingitself of the status report so far as the lands are concerned, the Tribunalshall pass appropriate orders in terms of Rule (7) of the Rules framedunder Land Reforms Act, extracted above. The Tribunal shall be free toconsider the submissions on behalf of all the parties and takeappropriate decision in accordance with law without being influenced byany of the observations, which are on record.

13. The Civil Revision Petitions are, accordingly, disposed ofremitting the surrender proceedings to the Primary Tribunal to thelimited extent indicated above. It is made clear that the remand orderedherein shall be confined only to the lands with which the petitioners inthese revision petitions are concerned and rest of the surrenderproceedings remained unaffected.

The miscellaneous applications, if any, shall stand dismissed. There shall be no order as to costs.

28.12.2012lmv/knl

_____________________________

VILAS V. AFZULPURKAR, J

HONOURABLE SRI JUSTICE VILAS V. AFZULPURKAR

CIVIL REVISION PETITION Nos.3952, 4102 AND 4121 OF 1999

lmv/knl

28.12.2012