State of A.P. &
ANR. Vs. T. Yadagiri Reddy & Ors. [2008] INSC 2042 (28 November 2008)
Judgment
"Reportable"
IN THE SUPREME COURT
OF INDIA CIVIL APPELLATE JURISDICTION CIVIL APPEAL NO. 6557 OF 2002 State of
A.P. & Anr. .... Appellants Versus T. Yadagiri Reddy & Ors. ....
Respondents
V.S. SIRPURKAR, J.
1.
A
Judgment by the High Court allowing a Civil Revision Petition, setting aside
the order passed by the Land Reforms Appellate Tribunal- cum-II Additional
District Judge of Ranga Reddy District (hereinafter called `the Appellate
Tribunal' for short) is in challenge before us. The High Court while allowing
the Revision, recognized the rights of the respondents herein as the protected
tenants and further held that they become absolute owners of the land by purchasing
the land in respect of which they were protected tenants. As a sequel, the High
Court held that the land held by them could not be declared as a surplus land
and could not be distributed as such. Before we approach the disputed
questions, a factual background would be necessary.
2.
Five
respondents, namely, (1) Shri T. Yadagiri Reddy, (2) Shri T. Bal Reddy, (3)
Shri T. Janardhan Reddy, (4) Shri T. Mohan Reddy, (5) Shri T. Satyanarayana
Reddy are the sons of Late Shri T. Papi Reddy. According to them, the said Late
Shri T. Papi Reddy was a protected tenant from (1) Late Shri Khaja Shakhir
Hussain, (2) Shri Khaja Nasir Hussain, (3) Smt. Razia Sultana W/o Mir Sadath
Ali. It is the case of the respondents, as seen from their Counter affidavit
that at the commencement of A.P. (Telangana Area) Tenancy & Agricultural
Lands Act, 1950 (hereinafter called "the Tenancy Act" for short) and
more precisely, on 10.6.1950, their father Late Shri T. Papi Reddy was deemed
to be the protected tenant of the land, admeasuring 123 Acres 17 guntas,
bearing Survey Nos. 18 to 24 (old), i.e., new Survey Nos. 24 to 30 and 39 of
Meerpet Revenue Village, Saroornagar Mandal, Rangareddy District, Andhra
Pradesh. This land belonged to Late Shri Khaja Shakhir Hussain and others, who were
the Jagirdars of that Village. Their father Late Shri Papi Reddy entered into
an agreement on 25.2.1956 with Late Shri Khaja Shakhir Hussain and others for
transfer of land holders' interest in the said land to the tenants Late Shri T.
Papi Reddy himself and the present respondents. The respondents asserted that
this was under the provisions of Section 38-A & B of the Tenancy Act. They
further pleaded that there was oral partition between Late Shri T. Papi Reddy
and his sons, i.e., respondents, in which lands stood divided and that included
also the concerned land to the extent of 123 acres 17 guntas, comprising of
Survey Nos. 24 to 30 and 39.
According to the
respondents, the whole land was divided into six equal 3 shares. They then
pointed out that on 1.1.1975, A.P. Land Reforms (Ceiling on Agricultural
Holdings) Act, 1973 (hereinafter called "the Ceiling Act" for short)
came on the anvil. Under the provisions of that Act, Late Shri T. Papi Reddy,
as also the present respondents filed six separate declarations regarding the
land owned and possessed by them and these declarations included the
aforementioned Survey numbers also, which were obtained by them in their
capacity as the protected tenants. It is the further case of the respondents
that a Verification Report in respect of the declarations made by the
respondents and Late Shri T. Papi Reddy were verified by the Verification
Officer and the same Report was submitted to the Land Reforms Tribunal
I-cum-Additional Revenue Divisional Officer (hereinafter called `the Tribunal)
of Ranga Reddy District, appointed under the Ceiling Act. This was on 31.7.1975
and 8.8.1975. In between 14.8.1975 and 22.10.1975, six orders came to be passed
by the Tribunal.
The dates and the
other details of these Revenue cases, dealt with by the Land Reforms Tribunal,
were as under:- S.No. Name of the C.C. Reference Date of Order Exhibits
Declarants No. No.
1. T. Papi Reddy
(father) 1006/E/75 27.10.1975 A-12
2. T. Yadagiri Reddy
439/E/75 14.8.1975
3. T. Bal Reddy
440/E/75 14.8.1975 A-8
4. T. Janardhan Reddy
801/E/75 14.8.1975 A-6
5. T. Mohan Reddy
1009/E/75 14.8.1975 A-4
6. T.Satyanarayana
1143/E/75 14.8.1975 A-5 Reddy
3.
So
far so good. The respondents claimed that they continued to be in possession of
the lands, since none of them had held more land than the 4 ceiling area
prescribed by the Ceiling Act. The orders passed in their case, shown in the
Table above were also not appealed against by the State Government and had
become final. While the matters in case of the respondents stood thus, a
further development took place as follows.
4.
On
22.7.1994, an order came to be passed by the Tribunal, purporting to hold the
lands in Survey Nos. 24 to 30 and 39 in the holdings of Late Shri Khaja Shakhir
Hussain and others (land holders) and it was declared in that order that the
land holders therein were surplus holders.
The respondents
pointed out that this order was completely oblivious of the six orders passed
in case of Late Shri T. Papi Reddy and themselves, shown in the Table nor did
they (Late Shri T. Papi Reddy and the respondents herein) join as parties to
the proceedings. It was further pointed out that on 6.2.1996, a public notice
was issued by the Tribunal, Ranga Reddy District, calling for the objections in
declaring Survey Nos. 24 to 30 and 39 as the surplus land, as held by Late Shri
Khaja Shakhir Hussain and others. However, Late Shri T. Papi Reddy had already
expired on 21.11.1975, i.e., barely one month after the order in his case was
passed. On 13.2.1996, the respondents filed the objections to the proposal of
the said Survey Nos. 24 to 30 and 39, being surrendered as a surplus land.
The Tribunal rejected
the objections filed by these respondents by order dated 22.7.1995 (2.3.1996),
against which they filed an appeal on 11.8.1997 before the Land Reforms
Appellate Tribunal-cum-II Additional 5 District Judge, Ranga Reddy district at
Saroornagar, Hyderabad, A.P. By its order dated 9.9.1997, the Appellate
Tribunal partly allowed the appeal only to the extent of 33 acres and 12 guntas
in the aforementioned Survey Numbers, while the said appeal was rejected in
respect of the remaining extent of 90 acres of land. That order was challenged
by way of a Civil Revision Petition before the High Court, being Civil Revision
Petition No. 4351 of 1997 and the said order was set aside by the High Court by
the impugned order. The respondents, therefore, claimed that they were
protected tenants and there was no question of the land comprising of 3 Survey
numbers, being declared as surplus and it had long ceased to be the land of
Late Shri Khaja Shakhir Hussain and others, and they had become the full owners
of that land. In short, they claimed that they had purchased the said land in
the capacity of the protected tenants in terms of Section 38 of the Tenancy
Act. They further pleaded that if the proceedings under the Ceiling Act
concerning them had become final, as such, those orders had become res-judicata
against the State. They also pointed out that after the death of their father
Shri T. Papi Reddy in the year 1975 and even before that they had partitioned
the land and all through, they were treated to be the protected tenants earlier
and thereafter, the land holders. They relied on substantial Revenue record in
support of their status as the protected tenants, as also the Certificates
issued by the Revenue Department under Section 38-E of the Tenancy Act,
signifying their exclusive nexus with the land to the exclusion of the original
land holder.
5.
Before
we advert to the arguments of Shri R. Sundaravardan, Learned Senior Counsel
appearing for State of Andhra Pradesh and the reply thereto by Shri P. P. Rao,
Learned Senior Counsel, appearing for the respondents, it will be better to see
the findings given by the Learned Single Judge of the High Court. The High
Court, firstly found that the Appellate Tribunal had allowed the appeals to the
extent of 33 acres 12 guntas, in respect of which the ownership Certificates
were granted under Section 38-E of the Tenancy Act, in support of which the respondents
had filed Exhibit A-2. The High Court also found that the Appellate Tribunal
had dismissed the appeal in respect of 96 acres 12 guntas on the ground that
these lands were covered by Section 38-B of the Tenancy Act. The respondents
had filed the Certificates - Exhibit A-1. The High Court noted that the
Appellate Tribunal had taken a view that in pursuance of the Agreement dated
22.5.1956, the land holders could not have purchased the lands, as there was no
permission under Section 47 and 48 of the Tenancy Act for such sales. However,
the High Court proceeded on the ground that the lands were covered under
Section 38-B of the Tenancy Act. The question before it was as to whether such
lands held by a protected tenant and covered under Section 38-B of the Tenancy
Act were liable to be excluded under Section 13 of the Ceiling Act from the
ceiling area of the land holder. The High Court then noted that the respondents
were never made parties to the Ceiling proceedings in respect of Late Shri
Khaja Shakhir Hussain and others made on the basis of the declarations filed in
C.C. Nos. 2476, 2477 and 2478 of 1975, in which the lands were 7 shown in
their holding. The High Court then took the note of the separate ceiling cases,
which had attained the finality by the various orders passed between 27.10.1975
and 14.8.1975, in which it was held that the respondents were entitled to 1/6th
share and they were non-surplus holders in respect of the lands held by them as
the protected tenants. The High Court noted that those orders had become final.
The High Court, therefore, took the note of the fact that in spite of this
finality in those cases, these lands were again included in the holding of Late
Shri Khaja Shakhir Hussain and one another (the original respondent Nos. 3
& 4 before the High Court) and they were declared to be the surplus holders
and further, suo moto proceedings were also initiated in respect of those
lands. The High Court found that there was no dispute with the primary fact
that the respondents' father Late Shri T. Papi Reddy was the protected tenant
in respect of not only those lands in respect of which the Certificates under
Section 38-E was issued, but also in respect of the land falling under Section
38-B. The High Court then held that the respondents were not strangers or
trespassers, but, were the protected tenants, and as such, their land stood
excluded under Section 13 of the Ceiling Act. The High Court extensively dealt
with Section 13 of the Ceiling Act, Section 38 of the Tenancy Act and more
particularly, sub-Section B thereof and came to the conclusion that a
Certificate issued under Section 38-B was on par with the Certificate granted
under Section 38-E of the Tenancy Act. It, therefore, concluded that there was
no question of applicability of Section 47 and 48 of the Tenancy Act, requiring
prior permission. Relying on two reported 8 decisions, the High Court
ultimately held that in view of the Certificate having been granted in favour
of Late Shri T. Papi Reddy under Section 38-B of the Tenancy Act, the
respondents had become the absolute owners, and as such, their land could not
be included in the ceiling area of the land holder and could not be put for
distribution, treating it to be the surplus land. The Civil Revision was
allowed with these observations.
6.
Shri
R. Sundaravardan, Learned Senior Counsel, appearing on behalf of the appellant
State of Andhra Pradesh assailed the judgment, firstly, on the ground that Late
Shri T. Papi Reddy, father of the respondents herein, himself could not be a
protected tenant and thereby, even the respondents, who were his sons could not
have become the protected tenants in law. The Learned Senior Counsel argued
that since the very basis of the claim of the respondents is without any
substance, the further claim of the separate possession in their capacity as
the protected tenants has no basis. The Learned Senior Counsel for this
argument, relied on the plea raised by the respondents that there was an
Agreement of Purchase between Late Shri T. Papi Reddy and the Jagirdars
(landlords) in respect of 123 acres and 17 guntas of land contained in Survey
Nos. 24 to 30 and 39. The Learned Senior Counsel pointed out that ever since
the said Agreement was executed, the possession of Late Shri T. Papi Reddy, as
also his sons, did not remain that of the protected tenants, and in fact, Late
Shri T. Papi Reddy alone became an owner of the said land and in that view,
there could not have been also a partition between Late Shri T. Papi Reddy and
his sons, as was claimed by the respondents, for the simple reason that the
said land did not have the character of a partible estate since the land was
tenanted land once upon a time. The Learned Senior Counsel carried his
arguments further and suggested that even assuming that the said tenancy
continued in favour of Late Shri T. Papi Reddy and after his death, in favour
of the respondents, there was nothing on record to suggest that there was any
permission obtained under Section 47 by either Late Shri T. Papi Reddy or the
respondents for purchasing this land. Lastly, the Learned Senior Counsel
contended that even if it is assumed that the status of protected tenant was
conferred upon the respondents under the provisions of the Tenancy Act, and
further even if there were final orders passed under the Ceiling Act, which
remained unchallenged by the Government, it was always open for the Government
under Section 50 of the Tenancy Act to reopen the proceedings. The Learned
Senior Counsel, therefore, argued that at least excepting Late Shri T. Papi
Reddy, whose claim was admitted in respect of the lands covered by the
Certificate under Section 38-E, the other lands in possession of the
respondents were bound to be declared as surplus lands.
7.
As
against this, Shri P. P Rao, Learned Senior Counsel, appearing on behalf of the
respondents, firstly contended that the orders dated 14.8.1975 and 27.10.1975
passed by the Tribunal had become final and binding on the parties thereto,
including the State Government, and since there was no appeal under Section
20(5) of the Ceiling Act, those orders 10 would operate as res-judicata in all
the subsequent proceedings. The Learned Senior Counsel pointed out that there
was no scope for reopening these orders. Shri Rao also criticized the order
dated 22.7.1994, passed by the Tribunal, declaring 17.9766 standard holdings of
land of the original land holders to be in excess as void, ab initio,
particularly, because the said land was belonging to the respondents, who were
admittedly the protected tenants in occupation of the land and in whose case,
the Tribunal had passed the order approximately 20 years back, at the time when
the impugned orders (dated 14.08.1975 and 27.10.1975) were passed. It was
pointed out that no orders in respect of these lands could have been passed
unless the respondents were noticed by the Tribunal, and further, the Counsel
pointed out that the respondents had the Certificates issued under Section
38-B, which rendered the orders passed by the Tribunal in case of the original
land holders, without jurisdiction. The Learned Senior Counsel further
contended that there was no question of the land in possession of a protected
tenant being declared as surplus land, which was liable to be surrendered. It
was pointed out by the Learned Senior Counsel that the Certificates granted in
favour of the respondents under Section 38-B of the Tenancy Act remained valid
and in the present case, so remained valid, since they were not challenged, and
at the same time, the Tribunal, under the Ceiling Act, had no jurisdiction to
declare the said Certificate as illegal. The Learned Senior Counsel invited our
attention to the provisions of the Tenancy Act to suggest that the tenancy
rights were heritable rights. Our attention was also invited to Section 13(1) of
the 11 Ceiling Act, as also Section 38-B of the Tenancy Act. Shri Rao,
therefore, contended that the order of the High Court was unassailable. The
Learned Senior Counsel also took us through the history of this lengthy
litigation and pointed out that on 13.4.1983, Certificate of Ownership was
issued under Section 38-B of the Tenancy Act and the mutation also took place
in favour of the respondents in respect of 90 acres 4 guntas of land, which was
a land in question, which Certificate had attained the finality.
The Learned Senior
Counsel pointed out that the land concerned was sold after it was converted
into the non-agricultural land to as many as 1,137 purchasers for residential
purposes. It is on these conflicting claims that we have to examine the judgment.
8.
On
these conflicting contentions, the question which crops up is whether the
concerned land can be included in the holding of the original land holders and
be declared surplus to the detriment of the respondent Nos. 1-5. This question
would depend upon the answer to the question as to whether the respondents ever
got the status of a `protected tenant', vis- a-vis the concerned land, within
the meaning assigned to that term in the Tenancy Act and what is the effect,
and whether that status would result in excluding the land from the operation
of the Ceiling Act. Since Shri Sundaravardan also contended about reopening of
the ceiling and tenancy cases, still another question would be whether the
Government would now be justified in reopening the ceiling cases, which stood
finalized, as also whether it would be justified in opening the cases, wherein
the Certificates 12 were granted to the respondents declaring them as
protected tenants, vis- `-vis, the concerned land.
9.
Before
we take up the consideration on these questions, since the matter predominantly
relates to the orders under the Ceiling Act, it would be worthwhile to consider
few provisions of this Act. This Act which is called the Andhra Pradesh Land
Reforms (Ceiling on Agricultural Holdings) Act, 1973 came on the anvil with the
assent of the President dated 29.7.1972 and was published in the official
Gazette on 31.7.1972.
However, it came into
force on 1.1.1975. `Holding' is defined in Section 3(i) as under:
"3(i) `holding'
means the entire land held by a person- (i) as an owner;
(ii) as a limited
owner;
(iii) as an
usufructuary mortgagee;
(iv) as a tenant;
(v) who is in
possession by virtue of a mortgage by conditional sale or through part
performance of a contract for the sale of land or otherwise; or in one or more
of such capacities, and the expressions "to hold land" shall be
construed accordingly."
Term `Owner' is
defined in Section 3(n) as under:
"3(n) `owner'
includes a person by whom or in whose favour a trust is created; but does not
include a limited owner; and in the case of any land not held under ryotwari
settlement, a person who is or would be entitled to the grant of a ryotwari
patta or to the registration as an occupant in respect of such land under any
law for the time being in force providing for the conversion of such land into
ryotwari tenure and where there is no such law, any person holding such land
immediately before the specified date otherwise than in any one of the
capacities in items (ii) to (v) Clause (i); but does not include a limited
owner." (Emphasis supplied).
13 Term `Person' is
defined in Section 3(o) as under:
"3(o) `person'
includes an individual, a family unit, a trustee, a company, a firm, a society
or an association of individuals, whether incorporated or not."
Term `Tenant' is
defined in Section 3(t) as under:- "3(t) `tenant' means a person who
cultivates by his own labour or that of any other member of his family or by
hired labour under his supervision and control, any land belonging to another
under a tenancy agreement, express or implied: and includes a person who is
deemed to be a tenant under any tenancy law for the time being in force;
Term `Ceiling Area'
is defined under Section 4 as under:
"4. Ceiling Area:-
(1) The ceiling area in the case of family unit consisting of not more than
five members shall be an extent of land equal to one standard holding.
(2) The ceiling area
in the case of a family unit consisting of more than five members shall be an
extent of land equal to one standard holding plus an additional extent of
one-fifth of one standard holding for every such member in excess of five, so
however, that the ceiling area shall not exceed two standard holdings.
(3) The ceiling area
in the case of every individual who is not a member of a family unit, and in
the case of any other person shall be an extent of land equal to one standard
holding."
Thus, it's a charging
Section.
Section 5 provides
the methodology for fixing the standard holding for different classes of lands
and computation thereof. Section 7 speaks about the transfers of land between
24.1.1971 and the notified date, i.e, 1.1.1975. It's a complete scheme as to
which transfer should be treated to 14 be good and otherwise. In short, that
Section bars the transfers in anticipation of and with a view to avoiding or
defeating the object of the Ceiling Act. Under Section 8, every person has to
give a declaration, whose holding on the notified date together with any land
transferred by him on or after the 24.1.1971, whether by sale, gift,
usufructuary mortgage, exchange, settlement, surrender or in any other manner
whatsoever, and any land in respect of which a trust has been created by him on
or after 24.1.1971, exceeds the specified limits. Under Section 9, the Tribunal
created under the Ceiling Act has a duty to enquire into and determine the
extent of area held or deemed to be held by the person on the notified date and
to declare any land found in excess of the ceiling area. Section 10 speaks
about the surrender of land in excess. It also provides as to which land can be
surrendered and which land cannot be surrendered, and whether the surrender
declared by the land holder is to be surrendered or not, has to be decided by
the Tribunal. Sub-Section 5 specifically provides that it would be open to the
Tribunal to refuse or accept the surrender of any land, which has been
converted into non-agricultural land and is rendered incapable for being used
for agricultural purposes. Under Section 13, a special provision is made for
the protected tenants. The Section provides that where the holding of any owner
includes any land held by a protected tenant, the Tribunal shall, in the first
instance, determine whether such land or part thereof has been transferred to
the protected tenant under Section 38-E of the Tenancy Act, and if such
transfer is made, such land shall be excluded from the holding of the owner 15
and included in the holding of such tenant. Sections 15 and 16 speaks about the
amount payable in lieu of that land to the land holder. Section 20 speaks about
the appeal and Section 21 about the revision against the orders passed by the
Tribunal. This is the broad picture of the provisions of the Ceiling Act.
10.
Let
us, now, have look on some of the relevant provisions of the Tenancy Act. It
must be remembered that this Act came on the legal scene in the year 1950. The
term `Protected' is defined under Section 2(r) as under:- "2(r)
`Protected' means a person who is deemd to be a protected tenant under the
provisions of this Act.
Section 5 provides as
to who can be deemed to be a tenant and more or the less, provides that a
person lawfully cultivating to the land belonging to another person, would be
deemed to be a tenant. Chapter IV deals with the protected tenants and declares
that if a person had held any land as a tenant continuously for a period
specified in Section 34(a)(i), (ii), (iii), then such person would be deemed to
be a protected tenant.
11.
There
is no dispute in the present case that Late Shri T. Papi Reddy was holding the
lands at the commencement of the Tenancy Act and he was a protected tenant in
respect of the land including the lands in question. Section 38 which is
extremely important for us, provides the rights of the protected tenants, which
includes his rights to purchase the land from landholder's interest, subject to
sub-Section 7. It also provides 16 the modality as to how the said purchase
would be enforced by the protected tenant, and also procedure, where the land
holder refuse to accept the offer made by the protected tenant. Section 38-A is
a procedure, where reasonable price is agreed to between the landholder and
protected tenant. Section 38-B provides procedure, where the landholder agrees
to relinquish his rights in favour of the protected tenant.
Under that Section,
an application is to be made to the Tribunal by the land holder, and then a
Certificate is issued in favour of the tenant. Section 38- E specifically
provides for the transfer of ownership of such lands held by the protected
tenants. It provides that such lands would get automatically transferred with
effect from the notified date and a Certificate in the prescribed form
declaring him as the owner, would be issued by the Tribunal after holding the
necessary enquiry. Sections 47 and 48, which were earlier in the Tenancy Act,
stand deleted from 1969. The said Sections provided the permission to be had
before such transfers were made under Section 38. Section 50-B(4) of the
Tenancy Act gives a power to the Collector to act suo moto for examining the
record relating to any certificate issued or proceedings taken by the Tahsildar
under this Section for the purpose of satisfying himself as to the legality or
propriety of such certificate or as to the regularity of such proceedings and
pass such order in relation thereto as he may think fit. On this legal
backdrop, it will be now for us, to consider the contentions raised by the
Learned Counsel.
12.
The
first and foremost contention raised by Shri Sundaravardan, Learned Senior
Counsel, appearing on behalf of the appellants was that since on 25.2.1956, an
Agreement was executed by the original land holders in favour of Late Shri T.
Papi Reddy, whereby, he agreed to sell the land in question, Late Shri T. Papi
Reddy, himself had rescinded his status as a protected tenant and thereafter,
remained in possession only as an intended purchaser under the Agreement and
that is where all his rights came to an end. The said Agreement is on the
record. It is an unregistered document and suggests that the concerned land,
admeasuring 90 acres of land, was agreed to be sold for Rs.2,592/-. This is the
Agreement between Late Shri Khaja Shakhir Hussain and Late Shri T. Papi Reddy,
the father of the respondents. On this, the Learned Counsel pointed out that if
this was so, then there would be no question of the status of protected tenant
to be claimed by either Late Shri T. Papi Reddy or his sons like the present
respondents.
13.
In
the first place, this is only an Agreement of Sale and not a Sale Deed
inter-partes. The Agreement clearly suggests that the parties will appear
before the Revenue Authority for obtaining the necessary permission for such
transfer under the Tenancy Act, and on obtaining the permission, the Sale Deed
would be executed between the parties. It also provides that if the permission
is not granted, the consideration would be returned. All this was necessary
because at that time, under Section 47 and 48, the permission of Tahsildar was
required for alienation of agricultural land. However, in the year 1969,
Sections 47 and 48 were 18 deleted from the Tenancy Act, thereby, there was no
permission required and indeed, it seems that within four months of this
Agreement, he effected a family partition by dividing all his lands, including
the present land under six equal shares, taking one share for himself and the
remaining shares for his five sons. The matters do not seem to have progressed
thereafter regarding this agreement.
14.
However,
as soon as Ceiling Act came into existence, Late Shri T. Papi Reddy and all his
sons, including the respondents, filed separate declarations in the lands in
their possession under Section 8 of the Tenancy Act. These claims were duly
verified and it was claimed that these verifications took place on 31.7.1975
and 8.8.1975. This claim has not been disputed at any time. It seems that the
enquiry was made on the basis of these declarations and even a public notice
was issued as prescribed by the rules, which publication took place on
16.6.1975 and 28.6.1975. However, on receiving `No Objection', it is found that
the declarants were the Pattedars in the orders passed. It was specifically
mentioned that the present respondents had claimed 1/6th share in the lands
held by Late Shri T. Papi Reddy as owner under Section 38-E of the Tenancy Act.
It was mentioned in the order further that even if the 1/6th share claimed by
one son is taken into consideration, the total holding of the son would be less
than ceiling area and as such, the claim was being accepted and the matters
were closed, holding that the individual sons did not own the land in excess of
the ceiling areas. The orders of similar 19 nature were passed in case of all
the five respondents herein, so also, the orders were passed in Late Shri T.
Papi Reddy's case. Undoubtedly, in all the orders related to the sons, the
Tribunal did mention that the declarant had not produced any proof as to how
the declarant is not so far entitled to share in the lands of his father Late
Shri T. Papi Reddy. However, realizing that even if that share is included,
since the land in possession of the declarant son does not exceed the ceiling
limit, the matters were left at that, and it was concluded that the individual
sons did not hold land in excess of the ceiling area.
15.
We
have also seen the order passed in the case of Late Shri T. Papi Reddy himself.
Undoubtedly, Late Shri T. Papi Reddy also had shown that he had purchased the
land measuring 87 acres 33 cents as a protected tenant and had shown that he
had only 1/6th share in that, and the remaining land was held by his major
sons. He claimed the status of a protected tenant in respect of the other land
in Survey Nos. 24 and 25, measuring 33 acres 14 cents and claimed 1/6th share
in the remaining land. The Tahsildar in his Report had shown that the declarant
was owner of certain lands, measuring 8 acres 79 cents and was in possession of
Survey Nos. 24 to 30 and 39, measuring 122 acres 7 cents as protected tenant.
Therefore, even at that stage, the status of at least Late Shri T. Papi Reddy
as a protected tenant, was not disputed. On the other hand, that can be treated
as an admitted position, thanks to the Verification Report, relied upon by the
Tribunal. The Tahsildar in that Verification 20 Report had computed the standard
holding of the declarant as 2.2270 and after allowing the land of one standard
holding, recommended the surplus land at 1.2270 standard holding. However, the
order shows that the declarant had filed the Counter on 4.9.1975 before the
Tribunal that Late Shri T. Papi Reddy was the protected tenant in respect of
Survey Nos. 24 to 30 and 39, and he was in possession of the said land as a
Karta of the Joint Family, consisting himself and his five sons, namely, the
present respondents. He pleaded that he was holding the tenancy for and on
behalf of Joint Family in his character as a Karta and consequently, the rights
of the protected tenants would be deemed to have been conferred on the entire
Joint Family and, therefore, the major members of the Joint Family, namely, the
present respondents herein, had a share in the equal proportion of the said
property. The Tribunal has further taken a note that Late Shri Khaja Shakhir
Hussain, the original land holder had agreed to alienate the said land and an
Agreement of Sale referred to earlier, was also produced before the Tribunal.
The theory of inter-se partition, which took place in June, 1956 was also
pressed into service and referred to by the Tribunal in its order. Amongst the
documents filed before the Tribunal was the Agreement of Sale dt. 25.2.1956 and
the four witnesses were also examined, including Late Shri T. Papi Reddy
himself. The Tribunal took note of the fact that Late Shri T. Papi Reddy had
ancestral land of 9 to 10 acres at Meerpet Village, which was being cultivated
by himself, and in addition thereto, purchased 123 acres 7 guntas of land from
Late Shri Khaja Shakhir Hussain etc. in the year 1955 and the agreement of
sale 21 was executed in the year 1956. Even the consideration was paid and
this consideration was from the joint earnings of himself and his sons from the
cultivation of the lands held by the Joint Family, thereby, meaning that there
was a nucleus with the Joint Family and the said Joint Family property did
produce income, out of which the concerned 123 acres 7 guntas of land came to
be purchased, so as to become a Joint Family property and it is, therefore,
that the said lands were treated to be the Joint Hindu Family property and were
partitioned in the year 1956, which partition was evidenced in the mutation of
these lands, also in the Revenue records. The Tribunal, however, found that
though mutation of ancestral land was effected, the purchased lands were not
yet mutated and they still remained in the name of land holder Late Shri T. Papi
Reddy, however, the land revenue was being paid by Late Shri T. Papi Reddy and
his sons separately. The Tribunal then referred to the evidence of Shri K.
Bhujang Reddy, Shri Vanga Bikshapathi Reddy and Shri Challa Linga Reddy.
These three witnesses
supported the theory of partition in the year 1956, and also deposed that Late
Shri T. Papi Reddy and sons were divided, and living separately and cultivating
their properties (lands) accordingly. The Patwari was also examined, who claimed
that he had no information about the division of lands between Late Shri T.
Papi Reddy and his sons, but they were separately enjoying the concerned lands
for grazing their cattle.
The question was
thoroughly gone into by the Tribunal. Relying on Section 34 of the Tenancy Act,
and also on definition of `Person' given in sub- Section 2 thereof, the
Tribunal came to the conclusion that the whole 22 partition became a Joint
Family property in the hands of the acquirer. The Tribunal has also found that Late
Shri T. Pappi Reddy was the protected tenant in respect of 123 acres 17 guntas
of land, and the definition of a `Protected Tenant' included undivided Joint
Hindu Family members also.
The Tribunal,
therefore, concluded in the following words:
"Therefore, the
sons of the declarant were not divided upto 1956, were also having right in the
lands held by his father as protected tenant."
The Tribunal
ultimately held:
"There is a case
to believe that the declarant was having ancestral lands and out of the income
of these lands, he purchased the lands from Shri Khaja Shakhir Hussain etc. in
the year 1956 and, therefore, these lands also form part and parcel of joint
family properties in which his five major sons will have equal notional share
and the share of the declarant will be 1/6th."
It is on this basis,
that the Tribunal closed the case.
16.
Very
surprisingly, and to the dismay of Shri Sundaravardan, Learned Senior Counsel
for appellants, this order has remained unchallenged and has become final. Late
Shri T. Papi Reddy almost immediately after this order on 27.10.1975, died
within two months and the order remained as validly passed order by the
Tribunal with full jurisdiction. Even the other cases of the respondents were
finalized and they were also closed. In case of Late Shri T. Papi Reddy, it was
held that he did not hold land in excess of the ceiling on the notified date,
i.e., on 1.1.1975. This proves to be a complete answer to the case pleaded by
Shri Sundaravardan. This 23 order, particularly, in case of Late Shri T. Papi
Reddy, which was heavily relied by Shri Rao, Learned Senior Counsel appearing
on behalf of the respondents, firstly holds that Late Shri T. Papi Reddy was a
protected tenant and his status as a protected tenant was not an individual
status, but, the status belonged even to the other members of his undivided
family.
It is further finally
held in this order that Late Shri T. Papi Reddy, as such, had acquired the
property of 123 acres 17 guntas out of income of the Joint Hindu Family and
thus, the whole property became a joint property, so as to open for partition
and accordingly, the partition was not only effected, but, acted upon also by
the separate cultivations of all the six members.
On this strong
background, it will be futile to say that Late Shri T. Papi Reddy or his sons,
the present respondents herein, were not the protected tenants. They were not
only treated as the protected tenants, but their individual cases were also
dealt with by the Tribunal, which held that individually, they did not hold any
land more than the ceiling area. All these orders right from 1975 till today,
i.e., for 33 years, have remained unchallenged.
17.
Shri
Sundaravardan then took us to Section 13 of the Ceiling Act and pointed out
that only the land covered under Section 38-E of the Tenancy Act, was to be
excluded and, therefore, such exemption will not be available for the land
covered under Section 38-B, and as such, the said land was liable to be
included in the holding of the land holders. It is true that Section 13 of the
Ceiling Act suggests that the land covered under 24 Section 38-E and
transferred to the protected tenant shall be excluded from the holding of such
owner. Section 13 of the Ceiling Act reads as under:- "Special Provision for
protected tenants:- (1) Where the holding of any owner includes any land held
by a protected tenant, the Tribunal shall, in the first instance, determine
whether such land or part thereof stands transferred to the protected tenant
under Section 38-E of Andhra Pradesh (Telangana Area) Tenancy and Agricultural
Land Act, 1950, and if so, the extent of land so transferred; and such extent
of land shall thereupon be excluded from the holding of such owner and included
in the holding of such tenant, as if the tenant was the owner of such land for
the purposes of this Act.
(2) Subject to the
provisions of Sub-Section (1), the relevant provisions of this Act aforesaid
shall apply in the matter of such land by such protected tenant."
It will be seen from
the language that the Tribunal has to decide the extent of land transferred
under Section 38-E as a first duty, and then to exclude such land. The use of
the words "in the first instance" only suggests that the first
finding that the Tribunal has to give, is about the land covered under Section
38-E of the Tenancy Act. However, the Section nowhere provides that the
Tribunal does not have to decide about the lands covered under Section 38-B of
the Tenancy Act. We have already explained that under Section 38-B, the land holders
in this case, have relinquished their interests in the land, way back in 1983
and the certificates were issued in favour of the respondents, which
certificates have not been disputed till today. This is, apart from the fact
that the said land in respect of which the certificates were issued under
Section 38-B, has also been held in the holding of the respondents herein.
Under such circumstances, it cannot be argued that this land should have been
held in 25 the holding of the landlord and should have been made available for
distribution. The High Court has in this behalf relied on the Judgment
Tribunal, Kamareddy. For the reasons that we have given, it will have to be
held that even in respect of the lands covered under Section 38-B in this case,
where the rights of the respondents were finally decided both under Tenancy Act
and the Ceiling Act, this land could not have been made available for been
declared as surplus land, holding it to be within the holding of the land
holder.
18.
As
if all this is not sufficient, there is Certificate on record dt. 13.4.1983. In
that Certificate dt. 13.4.1983, the Revenue Divisional Officer had certified
that the five respondents are the protected tenants of the land specified in
the order, which belonged to Late Shri Khaja Shakhir Hussain, Shri Khaja Nasir
Hussain and Smt. Razia Sultana, the land holders herein.
It also suggests that
these land holders had relinquished all their rights of the lands described in
favour of the five respondents under Section 38-B of the Tenancy Act and the
five respondents, with effect from that date, shall be the owners of that land
described. Needless to mention that there is a complete description of the
lands of Survey Nos. 24 to 30 and 39. We have seen the Certificate ourselves in
the prescribed form and we are satisfied that the Certificates have been given
after the due enquiry. The three land holders, namely, Late Shri Khaja Shakhir
Hussain, Shri Khaja Nasir Hussain and Smt. Razia Sultana have also given their
declarations, 26 which were verified by the Tahsildar, Hyderabad, East Taluk.
It is also pointed out that the names of the five respondents are found in the
lists of protected tenants maintained in Register No. 1 and other Registers.
Not only this, there is an order to the effect that, in pursuance of the
Certificate under Section 38-B, the mutation is proposed in respect of the five
respondents, which order is signed by D.R., Sarrornagar, R.R. District, Andhra
Pradesh. This is the last nail in the coffin of the State Government case. Even
these orders have remained unchallenged by any person muchless, by the State
Government. Once this is the position, then it is obvious that under the
provisions of Ceiling Act, these lands could not have been declared as the
surplus land.
19.
A
very peculiar thing has come to our notice that in their declaration, the land
holders Late Shri Khaja Shakhir Hussain, Shri Khaja Nasir Hussain and Smt.
Razia Sultana had included the Survey Nos. 24 to 30 and 39 of Meerpet Village,
measuring 123 acres 19 cents. They had also specifically declared that these
lands were with the protected tenants.
However,
surprisingly, no notices were issued to the petitioners, and ultimately, their
ceiling case came to be decided as late as on 22.7.1994. It is then, that a notice
came to be issued in form No. VIII that the lands specified in the Schedule
were proposed to be surrendered or selected for surrender under Section 10 of
the Ceiling Act. This document includes and mentions Survey Nos. 24 to 30 and
39. It is on that basis, that the present respondents raised objections, which
objections were rejected, requiring the petitioners to file revision before the
High Court, which revision was 27 allowed. Considering all these aspects and
more particularly, the orders passed by the authorities, we are of the clear
opinion that the judgment of the High Court was correctly decided.
20.
Shri
Sundaravardan tried to show that the tenanted land could not have been
partitioned. However, we are not required to go into that question, for the
simple reason, that there are valid orders passed by the Tribunal, having the
jurisdiction to pass the same, which would show that once the land was shown
and concluded to be in the holding of the protected tenant, it could not have
been included in the holding of the landlord, muchless, it could not have been
declared to be surplus. This position is all the more consolidated, when we see
that the respondents herein, were never the parties to the ceiling proceedings.
21.
A
decision was relied on by Shri Sundaravardan, reported in 2000 opinion, the
said decision which relates to the rent control matter and thus, the house
tenancy, would have no application. Another decision relied on by Shri
Sundaravardan, reported in 2006(4) SCC 214 N. Srinivasa Rao Others, also has no
relevance. The Learned Senior Counsel tried to rely on this decision only to
show that if the transfer of agricultural land was in violation of Section 47
and 49, such prosecution would be void. In the concerned case, this prosecution
was held to be void in the light of the circumstances that the transfer in this
case was made by a protected 28 tenant as an agriculturist or a
non-agriculturist, which was prohibited by the Tenancy Act. We do not see any
relevance of this case. Shri Sundaravardan contended that the prosecution on
25.2.1956 was a void prosecution. Even if, we agree with that proposition, the
question remains that ultimately, respondents have been declared to be the
protected tenants, and the Certificates have been granted in their favour and
their individual cases have also been finalized. The ruling has no relevance.
22.
The
third decision relied upon is reported in 1995 (3) SCC 327 State relied on this
case, as in this case, this Court had taken suo moto action, seeing that there
was an attempt to take out substantial acreage of 900 acres of land out of the
purview of the Ceiling Act by the device of agreements of sale and the
concerned officers were negligent in not carrying out the orders of the
authorities in revision. It is on these circumstances, that this Court took suo
moto action. The Learned Senior Counsel urged that we should also take such suo
moto action and put the clock back, insofar as, the orders passed by the
Tribunal in case of respondents under the Ceiling Act, as also in respect of
the Certificates issued under Section 38-B are concerned. We do not see as to
how we would order a suo moto action. The cases are entirely different cases.
In this case, there has been no fraud as in the reported decisions. Lastly, by way
of almost a desperate argument, Shri Sundaravardan urged that under Section
50-B (4) of the Tenancy Act, the Collector has a suo moto power to 29 call for
and examine the record relating to any Certificates issued or proceedings taken
by Tahsildar under the Section for the purpose of satisfying themselves as to
the legality or propriety of such Certificate or as to the regularity of such
proceedings, may pass such order in relation thereto as he may think fit. The
Learned Senior Counsel argued that this Court had discussed about this issue in
2003 (7) SCC 667 Ibrahimpatnam He suggested that the Certificates issued in
favour of the respondents can still be reopened via Section 50-B (4) of the
Tenancy Act. We have no doubts that there existed such a power in Collector via
the said provision 50-B(4). The question is whether there was any fraud played
or any impropriety shown, more particularly, on the part of the respondents
herein, in whose favour the said Certificates were granted. When we see the
whole conspectus of the facts, it is apparent that at no point of time, have
the respondents or even their late father ever played any fraud against any
authority, nor did they ever suppress any relevant fact from any authority.
They openly came out
with a case regarding Agreement executed on 25.2.1956, thereafter, they openly
propounded a theory of partition, which theory was accepted by the Tribunal in
ceiling matter in their case, as well as, in the case of their father Late Shri
T. Papi Reddy and ultimately, they obtained the Certificate under Section 38-B,
way back in 1983. Today, 25 years have elapsed after those Certificates have
been granted. We do not 30 see any impropriety in the said proceedings, which
would justify a suo moto action on the part of the Collector.
23.
This
Court has considered the nature of that power in the case of Reddy and Others
(cited supra) and observed in para 9:- "9. ...... Use of the words
"at any time" in sub-Section (4) of Section 50-B of the Act only
indicates that no specific period of limitation is prescribed within which the
suo moto power could be exercised reckoning or starting from a particular date
advisedly and contextually.
Exercise of suo moto
power depended on facts and circumstances of each case. In cases of fraud, this
power could be exercised within a reasonable time from the date of detection or
discovery of fraud. While exercising such power, several factors need to be
kept in mind such as effect on the rights of the third parties over the
immovable property due to passage of considerable time, change of the
provisions of other Acts (such as Land Ceiling
Act)........................"
From this, the
Learned Senior Counsel argued that since there is no period of limitation
prescribed for this power, the Collector would be justified in initiating an
action. In our opinion the argument is firstly, premature. No such action have
ever been proposed. Secondly, the Court has further observed that such action
has to be within reasonable time though the words "at any time" are
used in the provision. In the same para, the Court further observed:
"9. ....... Use
of the words "at any time" in sub-section (4) of Section 50-B of the
Act cannot be rigidly read letter by letter. It must be read and construed
contextually and reasonably. If one has to simply proceed on the basis of the
dictionary mean sing of the words "at any time", the suo moto power
under sub-Section (4) of 31 Section 50-B of the Act could be exercised even
after decades and then it would lead to anomalous position leading to
uncertainty and complications seriously affecting the rights of the parties,
that too, over immovable properties. Orders attaining finality and certainty of
the rights of the parties accrued in the light of the orders passed must have
sanctity. Exercise of suo moto power "at any time" only means that no
specific period such as days, months or years are not prescribed reckoning from
a particular date. But, that does not mean that "at any time" should
be unguided and arbitrary. In this view, "at any time" must be
understood as within a reasonable time depending on the facts and circumstances
of each case in the absence of prescribed period of limitation."
The observations are
extremely fitting in the present case. Here also, after the Certificates have
been issued, 25 long years have elapsed. The rights of the parties have already
been crystallized. Not only this, but, it is the report of Shri Rao that the
said lands have now been converted and sold for to as many as approximately
1100 persons, by way of residential plots.
We do not think that
there is any justification at this stage to use a suo moto power and to cancel
the Certificates, so as to put the clock back.
That would be, in our
opinion, a completely unnecessary exercise, not warranted by any of the
Sections. In that view, even this argument has to be rejected. Before parting,
we must observe that the subsequent orders in case of Late Shri Khaja Shakhir
Hussain, Shri Khaja Nasir Hussain and Smt. Razia Sultana, seem to have passed
without even noticing the earlier orders passed and without even bothering to
send notices to the interested parties. That would be the minimum expectation
of law. By that, as it may, the Appeal has no merits, and is dismissed with
costs.
......................................J.
(Lokeshwar Singh Panta)
......................................J.
(V.S. Sirpurkar)
New
Delhi;
November
28, 2008.
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