TaxTMI 
TaxTMI 
2008 (11) TMI 707
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....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 R....
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....n 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 obje....
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....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 wereshown in their holding. The High Co....
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....rotected 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 Counse....
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....n. 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 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 lan....
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....s 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). 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 i....
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....ection 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 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 cultiv....
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....avardan, 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 fo....
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....er, 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, relie....
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.... 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 wholepartition became a Joint Family property in the hands of the acquire....
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....is 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 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 ....
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....hich 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, 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.,....
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....ision relied on by Shri Sundaravardan, reported in 2006(4) SCC 214 N. Srinivasa Rao Vs. Special Court under the A.P. Land Grabbing (Prohibition) Act and 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 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 of A.P. Vs. S. Vishwanatha Raju & Ors. The Learned Senior Counsel relied on this case, as in this case, this C....
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....ltimately, 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 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 Ibrahimpatnam Taluk Vyavasaya Coolie Sangham Vs. K. Suresh 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....