CRP/3998/2009 of Harshavardhan Sethia Vs Pathivath Chandriay , Chandriya Lambada, on 31 December 2010

ORDER:

Respondents 11 to 13 in F2/7057/2008, on the file of the JointCollector, Ranga Reddy District, filed this revision under Section 91 ofthe A.P. (Telangana Area) Tenancy and Agricultural Lands Act, 1950 (forshort ‘the Tenancy Act, 1950’) aggrieved by the order, dated 01-08-2009.

2. Brief facts that are necessary for disposal of the presentrevision may be stated as follows; Katravati Hatya, Hamriya, Balram sons of Chandra and KatravatiBichya son of late Koval Sing, all residents of Akanpally village filed thepetition before the Mandal Revenue Officer, Maheshwaram Mandal,Ranga Reddy District requesting to accept their Protected TenancyRights and delete the name of the Protected Tenant from the ProtectedTenancy Register alleging that their father Chandriya Lambada was theprotected tenant in Sy.No.20 admeasuring Ac.21.24 gts situated inPorandla village and the land to an extent of Ac.6.23 gts in Sy.No.70situated in Akanpally village, that their father protected tenant died long back, that the petitioners have sold the above land to the third parties,that they are the legal representatives of the protected tenant, that thepresent pattadars have sold away the land to the present petitionersSmt.K.Satyavathi and V.S.Narayana Raju, C.H.Subhash Chandra Boseand K.V.S.Varma Raju, that they intended to surrender their tenancyrights in favour of the above persons having received an amount ofRs.40,000/- for relinquishing their protected tenancy rights.

3. Upon causing enquiry, the Mandal Revenue Officer,Maheshwaram Mandal held that the petitioners are the legal heirs of theprotected tenant Chandriya Lambada and surrender made by thepetitioners with their free will without any coercion and force and atpresent the lands are in possession of Smt. K.Satyavathi and others andtherefore, the surrender petition has been accepted under Section 19 (1)of the Tenancy Act,1950 and ordered to delete the name of the protectedtenant Chandriya Lambada from the original Protected Tenancy Registerof Porandla village in respect of Sy.No.20,admeasuring Ac.21.24 gts andSy.No.70, admeasuring Ac.6.13 gts out of total extent of Ac.17.27 gts ofAkanpally village. Challenging the same, the appellants filed the appealbefore the Joint Collector. The Joint Collector, Ranga Reddy District,vide impugned order, dated 01-08-2009, set aside the order of theMandal Revenue Officer in file No.D/10/2005, dated 20-01-2005 anddirected the Tahsilder, Maheshwaram Mandal to put the protected tenantin possession of the land admeasuring Ac.21.24 gts in Sy.No.20 ofPorandla village of Maheshwaram Mandal. Further, the RevenueDivisional Officer was directed to issue ownership certificate toPathiavath Chandriya @ Chandriya Lambada son of late Gundya.Challenging the same, the present revision is filed.

4. The present dispute is relating to the land to an extent ofAc.21.24 gts in Sy.No.20 of Porandla village, Maheshwaram Mandal,Ranga Reddy District. The revision petitioners said to have purchasedthe said land on 27-01-2005 and on 09-02-2005 through registered saledeeds from the land holders-respondents 12 to 15. Katravath Hatya andothers-respondents 8 to 11 herein are the legal heirs of protected tenantChandriya Lambada. They filed the application before the MandalRevenue Officer, Maheshwaram Mandal, under Section 19 (1) of theTenancy Act, 1950 for surrender of their rights in respect of the disputedland in favour of the then land holders-respondents 12 to 15. The Mandal

Revenue Officer accepted to surrender by order in the proceedingsNo.D/10/2005,dated 20-01-2005 duly deleting the name of protectedtenant, Chandriya Lambada from the original protected tenancyregister. Respondents 1 to 5 filed application before the MandalRevenue Officer under Section 32 of the Tenancy Act, 1950

on 19-12-2007 in file No.D/5002/2007 for restoration of possessionclaiming to be the owner of the property. That petition was closed on 05-05-2008. Respondents 1 to 5 suppressing that fact, filed the appealunder Section 90 of the of the Tenancy Act, 1950 questioning thesurrender order, dated 20-01-2005.

5. Now the point for determination is whether the order of the trialCourt is correct, legal and proper?

6. Learned counsel appearing for the petitioners herein contended that the 1[st] respondent herein did not file any record to show that he wasa protected tenant, that the appeal under Section 90 of the Tenancy Act,1950 is barred by limitation as the appeal is not filed within 60 days fromthe date of knowledge , that the respondents 1 to 5 deliberatelysuppressed the order passed under Section 32 of the Tenancy Act, 1950,dated 05-05-2008, that the respondents were never found to be inpossession of the land for the last 50 years, that the lower appellateauthority ought not to have adjudicated the disputes between twoindividuals claiming to be the protected tenants, that the lower appellateauthority exceeded its jurisdiction in directing the Mandal RevenueOfficer to issue patta certificate without there being any evidence andhence, he prays to set aside the impugned order.

7. On the other hand, learned counsel appearing for therespondents herein contended that the legal representatives of lateChandriya Lambada have no right to surrender the land in question in asmuch as Chandriya Lambada is not admittedly the protected tenant inrespect of Ac.21.24 gts in Sy.No.20 of Porandla village and therefore, thequestion of surrender by respondents 8 to 11 does not arise, that thefather of the respondents 3 to 6 i.e.,Chandru @ Seetya was theprotected tenant in respect of lands in Sy.Nos. 70, 87 and 94 ofAkanpally village and the respondents 1 to 5 managed and sold awaythe land in Sy.No.20 to respondents 7 to 11, that the appeal is filed intime and there is no delay, that the father of the respondents 3 to 5 was never in possession and cultivation of land in Sy.No.20 and he was not aprotected tenant, that the appellate Court after elaborate consideration ofevidence on record, rightly directed the concerned Revenue DivisionalOfficer to issue ownership certificate to Pathiavath Chandriya @Chandriya Lambada son of late Gundya and that order needs nointerference by this Court.

8. This revision is filed under Section 91 of the of the TenancyAct, 1950 on the following grounds:

1. The original appellate authority exercisedjurisdiction not vested in it by law; orjurisdiction not vested in it by law; or

2. That the original appellate authority failed toexercise jurisdiction so vested; orexercise jurisdiction so vested; or

3. In following the procedure or passing the order,the original appellate authority acted illegally orwith material irregularity.the original appellate authority acted illegally orwith material irregularity.

9. The first two clauses have no application to the present case inview of the fact that it is not a case of the counsel appearing for theparties that the original appellate authority failed to exercise jurisdictionor exercised jurisdiction not vested in it by law. Now it is to be seenwhether the appellate authority acted illegally or with material irregularity.

10. Illegality can only mean an incurable irregularity, incurablebecause of prejudice leading to a failure of justice. The word ‘irregularity’in common English parlance means and implies contrary to rule. Black’s Law dictionary 7[th] edition, 1999 at page 834, defines the word as ‘notaccording to rule and not regular, i.e., which stands contrary to rule. The word ‘material irregularity’ can mean omission to mention a certainthing required by the statute.

11. Under Section 19 (1) of the Tenancy Act, 1950,notwithstanding any agreement or usage or any decree or order of aCourt of law, but subject to the provisions of sub-section (3) no tenancyof land shall be terminated before the expiration of the period for whichthe land is leased or deemed to be leased otherwise than-

a) by the tenant by surrender of his rights to the landholder atleast a month before the commencement of the year.

12. Tenant is defined under Section 2 (1) (v) of the Tenancy Act,1950, which means an asami shikmi who holds land on lease andincludes a person who is deemed to be a tenant under the provisions ofthis Act. Therefore, it must be shown by the respondents 8 to 11 thatwho are the legal heirs of late Chandriya Lambada to show that lateChandriya Lambada was the protected tenant in respect of the disputedland in question. Unless it is shown that Chandriya Lambada is theprotected tenant, the question of surrender under Section 19 of theTenancy Act, 1950 does not arise. The revision petitioners said to be thepurchasers of the disputed land in question through registered saledeeds from respondents 12 to 15 who are the landholders to whom thelegal heirs of late Chandriya Lambada, respondents 8 to 11 surrenderedthe land. The legal heirs of Chandriya Lambada admittedly residents ofAkanpally village, Maheshwaram Mandal. Similarly, their fatherChandriya Lambada is a resident of Akanpally village. The legal heirs ofChandriya Lambada have not filed any document before the MandalRevenue Officer, Maheshwaram Mandal to show that a certificate underSection 38-E of the Tenancy Act, 1950 was issued in favour ofChandriya Lambada or after his death, to the respondents 8 to 11. Thataspect of the case has not been decided by calling for the relevantrecord before the Mandal Revenue Officer by the respondents 8 to 11. On appeal, the first appellate authority held that the name of the 1[st]appellant is recorded in the final list of protected tenant after due enquiryin respect of the land admeasuring Ac.21.24 gts in Sy.No.20 of Porandlavillage of Maheshwaram Mandal and ownership certificate under Section38-E of the Tenancy Act, 1950 was also prepared in his name videNo.B/486/LRE/75, dated 21-09-1975. As the 1[st] appellant and his familymembers were out of village for some time, that certificate was nothanded over to the 1[st] respondent herein by the Revenue authorities. That aspect of the case has not been denied or disputed even by therevision petitioners herein.

13. As seen from the order of the lower appellate authority, thefather of respondents 8 to 11 by name Chandru son of Seetya was theprotected tenant over the land in Sy.Nos. 70, 87 and 94 of Akanpallyvillage, Maheshwaram Mandal. On the death of Chandru son of Seetya,respondents 8 to 11 came on record and they were issued ownership certificate under Section 38-E of the Tenancy Act, 1950 videNo.B/390/LRE/75, dat5ed 21-08-1975. So, from the impugned order, it isclear that no ownership certificate under Section 38-E of the TenancyAct, 1950 was issued insofar as the land in Sy.No.20 of Porandla villagein favour of the father of the respondents 8 to 11. When Chandru son ofSeetya was not a protected tenant in respect of the land admeasuringAc.21.24 gts in Sy.No.20 of Porandla village and no certificate underSection 38-E of the Tenancy Act, 1950 was issued, respondents 8 to 11would not derive any right, title and interest and the question of surrenderof land in Sy.No.20 of Porandla village to the land holders-respondents12 to 15 herein does not arise.

14. Learned counsel appearing for the petitioners herein relied ona decision reported in NOMULA RACHAIAH V GOLLA NARASIMHULUAND ANOTHER[[1]], wherein it was held thus:

“Incidentally Section 38-E of the Act also had been relied on. Itis no doubt true that the object with which Section 32 of the Acthad been introduced cannot be totally ignored. Equally, at thesame time, while conducting an enquiry, all the parties who canthrow light relating to the factual matrix of a particular enquiry tobe put on notice. When the actual date of dispossession andwhether it is a case of voluntary surrender or whether it is a caseof abandonment at the time of the grandfather, when these factsare not clear, definitely it may not be within the knowledge of thepurchaser who came into the picture at a later point of time. Inthe absence of the original owners who sold the property infavour of the present revision petitioner-purchaser and withoutputting those parties on notice, conducting an enquiry andmaking an order of this nature in the absence of details andparticulars, in the considered opinion of this court cannot besustained. It is made clear that when the question ofreasonableness to be appreciated, all the factors viz. , the bonafides of the parties, the conduct of the parties to be taken intoconsideration. In the light of the same, this Court is thoroughlysatisfied that the impugned Order in the present civil revisionpetition cannot be sustained and the same was not made inaccordance with law.”

The above decision has no application to the present facts of thecase in as much as the petition was not filed under Section 38-E of the Tenancy Act, 1950 for restoration of possession.

15. He also relied on a decision reported in S.VENKATA REDDY VJOINT COLLECTOR, R.R. DISTRICT, HYDERABAD[[2]], wherein it was held thus:

“Rule 6 of the Rules deal with the determination of reasonable price. Asper rule 4 of the Rules, a duty is cast upon the tribunal to take intoconsideration the tenancy records, if any, prepared and maintainedunder any other record of rights and revenue accounts and after holdingor causing to be held summary enquiry in respect of the lands held bythe protected tenants and their respective landholders, determine theextent of lands held or deemed to be held by the protected tenants andthe extent of land held by the land holders on the date notified underSection 38-E of the Tenancy Act and the extent which the protectedtenant is entitled to purchase from the land holder and prepare aprovisional list in Form 1. The provisional list prepared together with anotice inviting objections thereto shall be caused to be published by theTribunal by affixing a copy thereof on the notice board of the village orat any other conspicuous place. As per sub rule (3) the Tribunal shallafter hearing objections received from any landholder, protected tenantor any other interested person, shall make such further enquiry anddeclare the provisional list as a final list and cause it to be published byaffixing a copy thereof on the notice board of the village or any otherconspicuous place.”

It is not the case of the petitioners that provisional list prepared bythe competent authority is not in accordance with law. Therefore, theabove decision has no application.

16. On the other hand, learned counsel appearing for therespondents relied on a decision reported in SADA V THE TAHSILDAR, UTNOOR, ADILABAD DISTRICT AND ANOTHER[[3]], wherein it was held thus:

“When such procedure consistent with principles of natural justice hasbeen laid down in the Rules, we fail to see how any question of hardshipor injustice can legitimately remain even after the issuance of certificateunder S.38-E (2) after following the said procedure. It is for that reasonthat the certificate if it has become final, becomes ‘conclusive evidence’as stated in S.38 –E (2). All objections to the very grant of the certificatemust be raised before it is granted or in appeals or revision and cannotbe permitted to be raised at the stage of delivery proceedings under thenew proviso to S. 38-E (2).”

From the above decision, it is clear that the certificate issued bythe Revenue Divisional Officer after following the due procedure hasbecome final and conclusive evidence.

17. The 1[st] appellant is the son of one late Gundya. The father ofthe respondents 8 to 10 is one Chandru. Both are separate families and acategorical finding has been recorded by the lower appellate authoritythat father of the respondents 8 to 11 was never in possession and

cultivation of the land in Sy.No.20 and he was not a protected tenantover the land. Furthermore, the original appellate authority has notserved any notice to the respondents 1 to 3 and no proper enquiry wasconducted. The original pattadar of the land in Sy.No.20 was oneNarasimha Rao. Surrender was not accepted in favour of originalpattadar, but respondents 8 to 11 surrendered their land in favour ofrespondents 3 to 5 who are the purchasers of the land. Under Section19(1) of the Tenancy Act, 1950 tenant can surrender his rights to thelandholder, but not to the purchaser. As seen from the record, thelandholder of the land in question is one Narasimha Rao and the landswere not surrendered to Narasimha Rao. Furthermore, the impugnedorder would go to show that upon conducting enquiry, father of therespondents 1 to 4 i.e., Pathiavath Chandriya @ Chandriya Lambadawas shown as protected tenant over the land in Sy.No.20, admeasuringAc. 21.24 gts of Porandla village and as a matter of fact, his name wasrecorded in the final list and after due enquiry, ownership certificate wasalso prepared in his name vide No.B/486/LRE,75, dated 21-09-1975, but because the 1[st] respondent herein was not available in the village at thatpoint of time, the certificate was not delivered to him by the Revenueauthorities. Once a certificate is issued under Section 38-E of theTenancy Act, 1950, the land has been transferred and vest in theprotected tenant and thereafter, the protected tenant shall be deemed tobe the full owner of the land. Therefore, the first appellate Court rightlyheld that in the absence of recording the name of the father of therespondents 7 to 11 as the protected tenant in respect of the land indispute, respondents 7 to 11 cannot derive the right, title and interest asprotected tenants after demise of their father and respondents 7 to 11have not filed any document to show that their father’s name wasincluded in the final list prepared as protected tenant in respect of theSy.No.20 of Porandla village. When he was not shown as protectedtenant in respect of the said survey number, respondents 7 to 11 wouldnot derive any right, title and interest. Therefore, question of theirsurrender to the purchasers does not arise. On the other hand, theevidence on record would go to show that Section 38-E of the TenancyAct, 1950 has been prepared in the name of the 1[st] appellant in the year1975, but the only thing is certificate has not been handed over to the 1[st]respondent herein because he was out of village for some time. Therefore, after elaborate consideration of evidence on record, the first appellate authority rightly passed order and absolutely, there are nogrounds to interfere with the same. Hence, the revision is devoid ofmerit and is liable to be dismissed.

18. Accordingly, the Civil Revision Petition is dismissed. Noorder as to costs.

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K.C.BHANU,J

DATED: APRIL, 2010

Hsd

[1]2009 (3) ALD 7742009 (3) ALD 774

[2]2003 ALT (2) 3772003 ALT (2) 377

[3]AIR 1988 AP 77 FULL BENCH