TaxTMI 
TaxTMI 
2009 (12) TMI 1050
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....lants claimed to be protected tenants and sought ownership certificates to become full owners of the suit land. 3. The respondents, herein, claimed to have purchased the land from the original land holder and sought to disentitle the appellants of their rights. As per the tenancy register of 1951, the predecessor-in-interest (E.Verrraiah) of the Appellant No.1 alongwith one B. Ramchander had been shown as tenants in respect of the lands in survey Nos. 50, 61 & 74. Similarly, the Tenancy Register of 1958 revealed that the predecessor-in-interest of the appellant nos. 2 & 3 and some other persons were tenants in respect of survey Nos. 51, 52, 53 & 54. On introduction of the Andhra Pradesh Land Ceiling Act, 1973 (hereinafter called as "Act 1973"), a provisional list dated 31.12.1974 was issued showing the predecessor-in-interest of the appellants as protected tenants of the said lands. The respondents filed objections dated 18.2.1975 before the Additional Revenue Divisional Officer (hereinafter called as "RDO") claiming that their predecessor-in-interest i.e. father had purchased the said land from the original tenure holder Smt. Ayesha Begum in the year 1954. Therefore, appellants m....
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....rein), could be in consonance with the provisions of the Act 1950. So far as the present case is concerned, the remand order was limited only with respect to the predecessor-in-interest of Appellant No. 2, namely, Goundla Paramaiah. 6. So far as the predecessor-in-interest of the Appellant Nos. 1 and 3 are concerned, the appeal was dismissed in toto and they were declared to be protected tenants and ownership certificates which were issued under Section 38-E of the Act 1950 thus, attained finality. It may also be pertinent to note that respondents did not prefer any revision against the judgment and order dated 22.9.1981 of the Appellate Authority, thus, the said order attained finality. 7. On the basis of the aforesaid judgments and orders of the RDO and the Appellate Authority, the appellants filed an application for restoration of possession. 8. In pursuance of the remand order, the RDO considered the matter afresh only in respect of the predecessor-in-interest of Appellant No. 2 and vide order dated 10.5.2000, it came to the conclusion that the surrender was invalid, as procedure prescribed under Section 19 of the Act 1950 had not been followed. The RDO further observed that....
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....to sell for 50 years. More so, the judgment and decree of the Civil Court passed in the year1963 could not be binding upon the appellants, as they had not been impleaded as defendants in the suit. The judgment and decree against Smt. Ayesha Begum, the original tenure holder also remained ex-parte, as she did not contest the suit. The respondents neither produced any agreement to sell nor, any sale deed had ever been executed in their favour. More so, their claim of having possession also varied time and again. Different dates/periods had been disclosed before different authorities at different stages. They mentioned at one place that they had been in possession since 1950 and other places since 1954, 1955, 1962 and 1965. Thus, it is clear that possession has not been claimed since a particular date or year by the respondents. Respondents had no right to challenge the grant of status of protected tenant or issuance of the certificates in pursuance thereof. The Act 1950 is a beneficial legislation to provide the tenants the right of ownership. Therefore, it requires liberal construction and it must be in favour of the tenant so that the object for which the provisions were enacted ma....
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....visions of this Act may apply to the Tahsildar in writing in the prescribed form for such possession. x x x x x x "Section 34. - Protected Tenants: (1) A person shall, subject to the provisions of sub-sections (2) and (3), be deemed to be a Protected Tenant in respect of land if he (a)has held such land as a tenant continuously (i) for the period of not less than six years, being a period wholly included in the Fasli years 1342 to 1352 (both years inclusive), or (ii) for a period of not less than six years immediately preceding the Ist day of January, 1948, or (iii)for a period of not less than six years commencing not earlier than the 1st day of the Fasli year 1353 (6th Oct, 1943), and completed before the commencement of this Act, and (b)has cultivated such land personally during such period; (2) & (3) x x x x x x x x " "Section 37-A - Persons holding lands as tenants at the commencement of the Hyderabad Tenancy and Agricultural Lands (Amendment) Act, 1955 to be deemed to be protected tenants : x x x x x x x Section 38. Right of protected tenant to purchase land. x x x x x x x "Section....
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....a Court, no permanent alienation and no other transfer of agricultural land shall be valid unless it has been made with the previous sanction of the Collector. x x x x x x x x 15. The aforesaid provisions of the Act 1950 have been the subject matter of consideration by the courts time and again. Courts after analyzing the statutory provisions have explained the scheme of the Act. A Full Bench of the Andhra Pradesh High Court in Sada and etc. etc. vs. The Tahsildar, Utnoor, Adilabad District and Anr., etc. etc., AIR 1988 AP 77 considered the scope of the provisions of Section 38-E and held that there is no requirement in the Act 1950 that protected tenant should also be in possession on the date specified in the notification issued under Section 38-E(1). However, it should be subject of course, to the limitation with regard to the extent of holdings as specified in Section 38(7) and to the proviso to Section 38-E(1). Once, persons who held the land on the dates or for the periods mentioned in Sections 35, 37 and 37-A and the requirement of the physical possession on the dates specified in those sections, has been fulfilled, such persons have become protected tenants. Once ....
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....urt held that if the land is under tenancy of another person, transfer thereof is not voidable and not capable of being avoided but, the scheme of the Act 1950 reflected that it was a void ab initio transaction. 18. In Babu Parasu Kaikadi (dead) by Lrs. vs. Babu (dead) Thru. Lrs., AIR 2004 SC 754, this Court considered a similar provision which provided for the procedure for surrender under the Bombay Tenancy and Agricultural Lands Act, 1948 and on placing reliance upon its earlier judgments in Ramchandra Keshav Adke (dead) by Lrs. vs. Govind Joti Chavare & Ors. AIR 1975 SC 915; Bhagwant Pundalik vs. Kishan Ganpat Bharasakal & Ors. AIR 1971 SC 435; and Abdul Ajij Shaikh Jumma & Anr. vs. Dashrath Indas Nhavi & Ors. AIR 1987 SC 1626, came to the conclusion that the provisions are mandatory in nature and any departure from the statutory requirement would make the surrender invalid. The Act had been enacted for beneficent purpose and importance of the provisions for efficacious implementation of the general scheme of the Act, all unerringly lead to the conclusion that the provisions relating to the procedure of surrender of tenancy rights were intended to be mandatory and any deviatio....
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....e to the statutory requirements under the Act, 1950. In case there is any deviation of any such requirement, it would render the surrender ineffective and inconsequential. 20. It is a settled legal proposition that challenge to consequential order without challenging the basic order/statutory provision on the basis of which the order has been passed cannot be entertained. Therefore, it is a legal obligation on the part of the party to challenge the basic order and only if the same is found to be wrong, consequential order may be examined (vide P. Chithranja Menon & Ors. v. A. Balakrishnan & Ors., AIR 1977 SC 1720; H.V. Pardasani etc. v. Union of India & Ors., AIR 1985 SC 781; and Government of Maharashtra & Ors. v. Deokar's Distillery, AIR 2003 SC 1216). 21. Indisputedly, the grant of a right or a permit/licence under any statutory provision requires determination of rights and entitlement of the parties. Once such a right is determined, the issuance of the order on the basis of such determination remains a ministerial act. In Kundur Rudrappa v. The Mysore Revenue Appellate Tribunal & Ors, AIR 1975 SC 1805, this Court examined the provisions of the Motor Vehicles Act, 1939 wh....
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....Reserve Bank of India v. Peerless General Finance and Investment Co. Ltd. & Ors., AIR 1987 SC 1023; Secretary, Haryana State Electricity Board v. Suresh & Other etc. etc., AIR 1999 SC 1160; Gayatri Devi Pansari v. State of Orissa & Ors., AIR 2000 SC 1531; High Court of Gujarat & Ors. v. Gujarat Kishan Mazdoor Panchayat & Ors., AIR 2003 SC 1201; Indian Handicrafts Emporium v. Union of India, AIR 2003 SC 3240; Ashok Leyland Ltd. v. State of T.N., (2004) 3 SCC 1; Ameer Trading Corpn. Ltd. vs. Shapoorji Data Processing Ltd., AIR 2004 SC 355; Deepal Girishbhai Soni & Ors. v. United Insurance Co. Ltd., Baroda, AIR 2004 SC 2107; Maruti Udyog Ltd. v. Ramlal & Ors., AIR 2005 SC 851; Oriental Insurance Co. Ltd. v. Brij Mohan & Ors., AIR 2007 SC 1971; and Karnataka State Financial Corporation v. N. Narasimahaiah & Ors., AIR 2008 SC 1797). 23. The instant case requires to be examined in the light of the aforesaid settled legal propositions. 24. In the instant case, the pleadings are not sufficient to reach any conclusion on the issue of grant and issuance of the certificate. It has not been mentioned anywhere that, certificate as required under Section 38-E(2) of the Act 1950 had earlier bee....
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.... land for the last 15 years. Hence, the issues 1 to 3 are decided in favour of the plaintiff. In the result, the plaintiff's suit is decreed. The plaintiff's name be inserted in record of rights as owner and passenger for the suit lands in place of the defendant's name. No order regarding costs." 27. The aforesaid judgment reveals that the trial Court had passed the decree without making reference to the pleadings; neither the pleadings in the suit nor the judgment reveals as under what circumstances the claim for ownership had been made by the father of the respondents. There is nothing in the judgment of the Civil Court as on what basis and in which year the father of the respondents got possession of the land in dispute. It does not reveal the existence of any sale deed or agreement to sell. It has not been mentioned as to whether any amount of money as a part of consideration had ever been paid to the land holder Smt. Ayesha Begum. Original Suit No. 5 of 1963 had been decreed on 24.4.1963 ex-parte, within 3-4 months from its institution. It is neither desirable nor permissible in law to make any comment on its merits, so far as the said judgment and decree ....
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....e said to be arbitrary and illegal." (emphasis added) 31. This judgment and order of the High Court also attained finality as it was not challenged by the respondents any further. Thus, in our view, the question of reconsideration of the validity of the tenancy certificate under Section 38-E (2) so far as the appellant nos. 1& 3 are concerned, could not arise in any subsequent proceedings whatsoever. More so, the entitlement of the said appellant nos. 1&3 to claim restoration of possession also cannot be reopened/questioned, as their entitlement to that effect had attained finality as the judgment and order of the High Court dated 28.4.2000, wherein, their right to claim restoration of possession had been upheld, was not challenged by the respondents any further. 32. On remand, the RDO vide judgment and order dated 10.5.2000 considered the case only so far as the alleged surrender by predecessor-in- interest of appellant no. 2 was concerned. The RDO, after assessing the merit of the case and examining the entire documents on record came to the conclusion that in case the predecessor-in-interest of the appellant no. 2 had surrendered the tenancy rights in the year 1954, the questi....
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....at as the issue of restoration of possession remained pending before the authority for about nineteen years, the respondents were justified in getting adjudication of their rights regarding issuance of certificate as it had not reached the finality. Mere pendency of proceedings before the Court/Tribunal cannot defeat the rights of a party, which had already been determined. The High court ought to have appreciated that proceedings were only in respect of execution of the orders, which had already been passed. Thus, proceedings were for the consequential relief. The issue of restoration of possession is to be decided under Section 32 of the Act, 1950. Question of application of the provisions of Section 35, ought to have been raised in the first round of litigation. Such an issue is required to be agitated at the very initial stage of the proceedings and not in execution proceedings. The said issue in respect of appellant nos. 1&3 had already attained finality. More so, if in the Tenancy Registers of the relevant years, the names of the predecessors of appellants were recorded as tenants, the High Court could not have opened the issues of factual controversies at all. 36. The judg....
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....n in possession of suit land in pursuance of decree of Civil Court dated 24.4.1963 passed in OS No.5/1963. The Order of the RDO reveals that the respondents had claimed before him that they were in possession of the suit land since Ist June, 1950. The High Court in its judgment in paragraph 4 has taken note of the pleadings taken by the respondents that they had purchased the suit land from original pattedar Smt. Ayesha Begum in the year 1954. However, it is not stated therein, that they had been put in possession of said land. In paragraph 5 of impugned judgment, the High Court has further taken note of the pleadings taken by respondents that Smt. Ayesha Begum, the original land holder offered to sell the entire land to the father of the respondents in the year 1962 and it was so purchased by him for valuable consideration. From the order dated 22.9.1981 of Appellate Authority, it is evident that the pleadings before Appellate Authority had been that the respondents were in continuous possession of suit land measuring 17 acres and 20 guntas since last 50 years. The pleadings taken by predecessor-in-interest of the respondents in earlier writ petition no.5381/2000 decided on 28.4.2....