Telangana High Court
M. Mohan Reddy, vs The Joint Collectorii, on 16 June, 2023
THE HON'BLE SRI JUSTICE MUMMINENI SUDHEER KUMAR
WRIT PETITION Nos.35845 OF 2014 AND 28246 OF 2007
COMMON ORDER:
Though both the Writ Petitions are not directly interlinked, there are certain common facts that are required to be noted in both the matters and as such, they were heard together at the request of all the learned counsel and are being disposed of by this common order. However, while taking note of common facts, they are dealt with separately and parties in the respective Writ Petitions were referred to as per their status in the respective Writ Petitions.
WRIT PETITION No.35845 OF 2014
2. The dispute that arise for consideration in Writ Petition No.35845 of 2014 is in respect of land situated in Sy.Nos.621 and 374 admeasuring Acs.14.27 gts., and Acs.7.12 gts., respectively situated at Shamshabad Village and Mandal, Ranga Reddy District (hereinafter referred to as 'the subject land').
3. The undisputed facts are that the petitioner herein being the holder of the subject land filed a declaration under Section 8/18 of the Andhra Pradesh Land Reforms (Ceiling on Agricultural Holdings) Act, 1973 (for short 'the Act, 1973') on 10.04.1975 including the subject land along with his several other lands situated in various other survey numbers. The same was taken on file vide Ceiling Case No.ECC 676/C/15. Thereafter, a verification ::2::
report was submitted by the Tahsildar concerned to the Land Reforms Tribunal, Hyderabad (West) (for short 'the Tribunal').
4. From the perusal of the said verification report which is on record, it is noticed that the lands situated in Sy.Nos.391, 374, 368, 373 and 621 admeasuring Acs.3.65 cents, Acs.7.30 cents, Acs.14.13 cents, Acs.11.05 cents and Acs.14.68 cents respectively were identified as the lands in respect of which protected tenants are entitled to be declared as owners. The said report was accepted by the Tribunal and an order was passed in C.C.No.676/W/75, dated 22.11.1975, by deleting the above mentioned lands and declaring the petitioner herein as non-surplus land holder. The said order passed by the Tribunal has become final as no appeal was preferred there against. It is also an admitted fact that one Mr. Goundla Chittari alias Peddagundu Chittari and Peddagundu Ramaiah are the protected tenants in respect of the land situated in Sy.Nos.374 and 621 respectively of Shamshabad Village and Certificates of Ownership under Section 38E of the Andhra Pradesh (Telangana Area) Tenancy and Agricultural Lands Act, 1950 (for short 'the Act, 1950'), were issued in their favour by the competent authority on 31.05.1975. The subject land in Writ Petition No.35845 of 2014 is the land covered by the Certificate of Ownership granted in favour of the above said two persons issued under Section 38E of the Act, 1950.
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5. The unofficial respondents in Writ Petition No.35845 of 2014 are the persons claiming through the successor-in-interest of the original protected tenants in whose favour Certificates of Ownership under Section 38E of the Act, 1950 were issued. The petitioner herein categorically admits the issuance of Ownership Certificates, as noted hereinabove, in favour of the above said two persons. However, the petitioner herein made a claim over the subject lands basing upon an order passed by the Additional Revenue Divisional Officer, Land Reforms Tribunal, Hyderabad West Division, in proceedings No.LRW/229/1/75, dated 27.11.1975. The said order is shown to have been passed basing upon a joint petition, dated 27.11.1975, submitted by the protected tenants of the subject land, surrendering their ownership rights. The said order was passed five (5) days after passing of a final order under Section 8(1) of the Act, 1973. The said order is also purported to have been passed accepting the surrender of ownership rights in the light of the instructions issued by the Government in Government Memo No.7396/74-7, dated 05.09.1975 and thereby, cancelled the ownership certificates issued in favour of both the protected tenants. At the instance of the unofficial respondent Nos.4 to 9 herein, and pursuant to an order passed by this Court in Writ Petition No.26431 of 2013, dated 11.09.2013, respondent No.1 herein issued the impugned ::4::
order in case No.F2/4967/2013, dated 29.10.2014, declaring that the order passed in proceedings No.LRW/229/1/75, dated 27.11.1975, is not a genuine proceeding.
6. Aggrieved by the said order dated 29.10.2014, the petitioner herein filed the present Writ Petition.
7. Heard Sri Ashok Reddy Kanathala, learned counsel for the petitioner, Sri B.Muralidhar, learned Assistant Government Pleader for Revenue, Sri V.Ravi Kiran Rao, learned Senior Counsel for respondent Nos.5 to 7 and Sri M V Durga Prasad, learned Counsel for respondent Nos.10 to 18.
8. Learned counsel for the petitioner contended that Writ Petition No.26431 of 2013 was disposed of by this Court at the admission stage without affording any opportunity to the petitioners herein and pursuant thereto, the impugned order came to be passed and as such the same is bad in law. He also contended that the proceedings that were initiated before respondent No.1 resulting in issuance of the impugned proceedings is by the General Power of Attorney (for short 'the GPA') holder of the unofficial respondents who obtained GPA on 20.06.2013. But the proceedings were initiated by the GPA holder on behalf of the unofficial respondents on 17.06.2013 itself and as such the very initiation of the proceedings resulting in passing of the impugned order is incompetent. He further contended that the finding ::5::
recorded by respondent No.1 that the order dated 27.11.1975 was not a genuine proceeding is incorrect as the consequential notice was also issued in the year 1982 in file No.LRW/229/1975 for the purpose of fixing of the reasonable price payable to the land holder under Rule 6 of the Act, 1973 and as such, it cannot be said that the order, dated 27.11.1975, is not a genuine order. He also contended that the said order dated 27.11.1975 was issued in terms of the Memo issued by the Government bearing No.7396/74-7, dated 05.09.1975. He also further contended that prior to the initiation of the impugned proceedings, the unofficial respondents approached respondent No.3 claiming succession under Section 32 of the Act, 1950, but the same was suppressed by the unofficial respondents before respondent No.1 as well as before this Court. He also contended that on an earlier occasion similar claim was made by the GPA holder of the unofficial respondents and the said claim was rejected by respondent No.1 by passing an order No.F2/4693/2012, dated 13.06.2013 and in spite of the same, the unofficial respondents once again approached respondent No.1 resulting in passing of the impugned order. It is also contended that the impugned proceedings came to be passed basing upon internal correspondence between respondent No.1 and respondent No.2 and therefore, the same is liable to be set aside.
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9. On the other hand, Sri V.Ravi Kiran Rao, learned Senior Counsel contended that any 'surrender of tenancy' under Section 19 read with Section 38E of the Act, 1950, can be done only before respondent No.3-Tahsildar, as provided under the provisions of the Act, 1950 and the 'surrender of ownership rights' before the Tribunal is totally unknown to law and also contended that there is no provision under law for 'surrender of ownership rights' that were conferred by virtue of Ownership Certificate issued under Section 38E of the Act, 1950 and therefore, the order dated 27.11.1975 purported to be an order accepting surrender of ownership rights is nonest in the eye of law. He also further contended that there is no such proceedings No.LRW/229/1/75, resulting in passing of order, dated 27.11.1975, taken place at any point of time before the Additional Revenue Divisional Officer, Land Reforms Tribunal, Hyderabad and the same is only a fabricated proceedings brought into the existence by the petitioner causing prejudice to the unofficial respondents herein. He also contended that the Government Memo, dated 05.09.1975 has no application for accepting surrender of ownership rights and the said Memo can never be the basis for passing the order, dated 27.11.1975. Thus, he contended that the impugned order passed by respondent No.1, dated 29.10.2014, declaring the order, dated 27.11.1975, as not a genuine order is perfectly valid. He also placed reliance various ::7::
decisions in the cases of Madipeddi Rajalingam v. Rudroju Chinna Somaiah1, Edukanti Kistamma (Dead) through LRs. and others v. S.Venkata Reddy (Dead) through LRs. and others2, B.Bal Reddy v. Teegala Narayana Reddy and others3 and Thota Sridhar Reddy and others v. Mandala Ramulamma and others4.
10. Sri M.V.Durga Prasad, learned counsel for unofficial respondents, while adopting the submissions of Sri V.Ravi Kiran Rao, learned Senior Counsel, contended that Section 13 of the Act, 1973, is a special provision that provides for safeguarding the interests of the protected tenants who were granted Ownership Certificates under Section 38E of the Act, 1950 and in terms of the same the subject land was excluded from the holding of the petitioner as is evident from the verification report and the order passed by the Land Reforms Tribunal has become final. He also contended that in the absence of raising objection against the verification report and filing of an appeal against the order of LRT, the Land Reforms Tribunal has no jurisdiction to reopen the matter under any circumstances. He also placed reliance in the cases of R.S.Grewal and others v. Chander Parkash soni and another5 and Sada v. The Tahsildar, Utnoor, Adilabad District6. 1
2006 (6) ALD 169 2 (2010) 1 SCC 756 3 (2016) 15 SCC 102 4 2021 SCC Online SC 851 5 (2019) 6 SCC 216 6 AIR 1988 AP 77 FULL BENCH.
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11. This Court has carefully considered the arguments advanced on behalf of learned counsel on either side and perused the entire material available on record.
12. From the perusal of the impugned order, dated 29.10.2014, it is noticed that respondent No.1 having taken note of an order passed by this Court in Writ Petition No.26431 of 2013, dated 11.09.2013, conducted a detailed enquiry and passed the impugned order. The relevant portion from the order passed by this Court in Writ Petition No.26431 of 2013, dated 11.09.2013 reads as under:-
"The grievance of the petitioners is that respondent No.2 has not been proceeding further with the enquiry into the genuineness or otherwise of the purported proceedings, dated 27.11.1975, issued by the Additional Revenue Divisional Officer, Land Reforms, Hyderabad West in favour of respondent No.5.
When the case came up for admission and hearing in the pre-lunch session, the learned Assistant Government Pleader for Revenue (TA) requested for a pass over for getting instructions on the status of the enquiry. In the post lunch session, the learned Assistant Government Pleader submitted that the enquiry is pending with respondent No.2.
As the petitioners' representation was received by respondent No.2 based on which he appeared to have initiated an enquiry, it is appropriate that he passes an order after concluding the enquiry expeditiously. Respondent No.2 shall issue notices to the petitioner as well as respondent Nos.5 and 6 and hold an enquiry into the genuineness or otherwise of the proceedings issued in favour of respondent Nos.5 and 6 based on which they have been asserting their right over the subject property and pass appropriate order after completing the enquiry, within a period of three months from the date of receipt of a copy of this order and communicate the same to both the parties."
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13. From the above order, it is evident that this Court specifically directed respondent No.1 herein to hold an enquiry into the genuineness or otherwise of the proceedings, dated 27.11.1975. No doubt, the said order was passed by this Court at the admission stage. But the petitioner herein became aware of the said order immediately thereafter on receipt of a notice dated 04.06.2014, issued by respondent No.1. In spite of the same, the petitioner did not chose to take any steps to contest the order passed by this Court in Writ Petition No.26431 of 2013, dated 11.09.2013. At the same time it is also necessary to notice that this Court while disposing Writ Petition No.26431 of 2013 has not decided anything on merits. Perhaps, for the same reason petitioner has not chosen to contest the said order.
14. On the other hand, the petitioner herein participated in the proceedings before respondent No.1 resulting in passing of the impugned order. In the absence of any contest to the order in Writ Petition No.26431 of 2013, the contention of the learned counsel for the petitioner that the said Writ Petition was disposed of at the admission stage, as such the same is not binding cannot be accepted. In the impugned order a specific finding is recorded stating that the order passed in case No.LRW/229/1/75, dated 27.11.1975, is not a genuine proceeding. In spite of such a specific finding recorded by respondent No.1 in the impugned order, there ::10::
is no substantial averment made in the affidavit filed in support of the Writ Petition to substantiate the genuineness of the order dated 27.11.1975 except making a pale reference to a notice said to have been issued in the file No.LRW/229/1975, dated 22.11.1982. A perusal of the said notice indicates that the same was a consequential proceeding for fixing the reasonable price payable to the land holder consequent upon issuance of Ownership Certificate under Section 38E of the Act, 1950, in favour of the protected tenants. But the same is not pursuant to the order, dated 27.11.1975, as contended by learned counsel for the petitioner.
Hence, the said notice is of no help to advance the case of the petitioner. On the other hand, the said notice confirms the issuance of the Ownership Certificates in favour of the protected tenants and their continuance. If the order dated 27.11.1975 is a genuine order and the Ownership Certificates issued under Section 38E of the Act, 1950, stood cancelled as on 27.11.1975, the question of fixing reasonable price for the lands covered by the said cancelled Ownership Certificates in the year 1982 does not arise. In a way, said notice dated 22.11.1982 suggests that the Ownership Certificates issued in favour of the protected tenants continued to operate. Further, from the letter of the Revenue Divisional Officer, Chevella Division, R.R.Dist., it is evident that there exists a file bearing No.LRW/229/1975, whereunder ::11::
Ownership Certificates under Section 38E of the Act, 1950, were issued. But, the file bearing No.LRW/229/1/1975, in which an order dated 27.11.1975 was passed is a non existing file. The extract of the said communication dated 03.05.2013, reads as under:-
"I invite kind attention to the reference cited, wherein it was requested to send the file bearing No.LRW/229/1/1975 pertaining to Revenue Divisional Officer, Chevella Division.
In this regard it is submitted that there is only one file bearing No.LRW/229/1975 relating to Land Reforms is available in this office and the same is already sent vide this office Lr.No.G/2648 & 2649/2012, dated 02.01.2013 and same were returned vide Joint Collector II R.R.Dist DO.Lr.No.F2/4693/2012 dt.06.04.2013.
Further it is submitted that the file bearing No.LRW/229/1/1975, which was called is not existing in this office.
This is favour of kind information."
15. Thus, in the absence of any serious attempt to dislodge the ground on which the impugned order came to be passed and also taking note of the seriousness of the allegation that the order dated 27.11.1975 is not a genuine proceeding as confirmed by respondent No.1 and also taking note of the fact that no material is placed before this Court to take a different view from the findings recorded by respondent No.1 in the impugned proceedings, this Court is not inclined to interfere with the impugned order as the same would result in restoring an illegality and allowing such illegality to perpetrate. In the considered view of this Court, the jurisdiction of this Court under Article 226 of the Constitution of ::12::
India cannot be exercised if the same would result in reviving an illegality.
16. Even otherwise, through the order dated 27.11.1975, the ownership rights conferred under Section 38E of the Act, 1950 in favour of protected tenants, who are the predecessors-in-interest/ancestors of the unofficial respondents were stated to have been surrendered and thereby, ordered for cancellation of the Ownership Certificates issued under Section 38E of the Act, 1950. As rightly contended by learned counsel appearing for the unofficial respondents, there is no provision in the entire the Act, 1950 providing for surrender of ownership rights already conferred under Section 38E of the Act, 1950. Section 19 as well as Section 38E(5) of the Act, 1950 contemplates surrender of tenancy rights in favour of the land owner in a manner provided under Section 19 read with Section 38E of the Act, 1950. In the absence of any such provision for surrender of ownership rights, the order dated 27.11.1975, accepting the surrender of ownership rights is nonest in the eye of law and without any jurisdiction. The right and entitlement of the above named protected tenants for issuance of the Ownership Certificates in their favour and issuance of such Ownership Certificates in favour of the two protected tenants is not in dispute. The title that is parted by the petitioner in favour of the protected tenants by operation of law by ::13::
implementation of a beneficial legislation cannot be permitted to be reversed without following due process of law. By mere act of the alleged surrender of ownership rights, the title over the subject land already stood transferred in favour of the protected tenants, under no circumstances be reverted back to the land owners, in the absence of proper conveyance of title in a manner known to law.
17. The Hon'ble Apex Court had an occasion to consider the similar issue in the case of Thota Sridhar Reddy (4 supra), wherein the Hon'ble Apex Court after having taken note of the decision of a Full Bench of this Court in Sada's case (6 supra) held as under:-
"On the other hand, learned counsel for the respondents-protected tenants submitted that the primary objection of the purchaser was firstly, settlement and consequent withdrawal of the appeal by the protected tenants in the year 1989 and secondly, delay in filing of the appeal in the year 2015. It was argued that the Tenancy Act and Inams Act are based upon the principle that tiller of the land shall be the owner. The provisions of the Tenancy Act are intended to secure the interests of the tenants and insulate them from relinquishing their rights directly or indirectly. The freedom of the protected tenant to relinquish his tenancy rights are restricted by the statute as such surrender can be only with the permission of the Competent Authority. In the present case, the purchaser has placed reliance upon an oral surrender of tenancy rights in the year 1954 and subsequent sale thereof in the year 1957. These two actions are prohibited in law as the surrender has to be in writing and is to be admitted by the tenant in good faith subject to the satisfaction of the Tehsildar in terms of Section 38-E(5) read with Section 19(1)(a) of the Tenancy Act. Both the instances of surrender of tenancy rights orally in 1954 and in writing in 1957, contravenes the statutory protection granted to the protected tenant. The Tenancy Act has been enacted to protect the tenants from exploitation of the land owners, therefore, the interpretation which advances the purpose of the statute should be accepted.
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The statute has prescribed a mode of surrender of tenancy and such mode alone could be resorted to before the surrender is made. The subsequent proceedings were to justify the surrender of alleged tenancy rights. The reliance is placed upon Kotaiah & Anr. v. Property Association of the Baptist Churches (P) Ltd.18, Edukanti Kistamma (Dead) through LRs & Ors. v. S. Venkatareddy (Dead) through LRs & Ors.19 and B. Bal Reddy.
On merits, it was argued that the purchasers had not disclosed the factum of the appeal being filed before the Joint Collector or before the High Court. In fact, the protected tenants had no knowledge of the appeal being filed and withdrawn. The filing and withdrawal of the appeal is surrounded by suspicious circumstances so as to justify the grant of Occupancy Rights Certificate to the purchasers. The order of granting occupancy rights was passed on 19.2.1982 after issuance of certificate under Section 38-E. Once ownership rights had been granted under Section 38-E, the same cannot be disputed except in the manner contemplated by law. There was no question of granting occupancy rights to the purchasers as the land is deemed to be transferred to the protected tenant as the owner and that there was no interest or title in the disputed land which could be claimed by the purchasers once the ownership is granted to the protected tenant. Section 33 of the Inams Act specifically provides that the Inams Act will not affect the Tenancy Act and the provisions of the Tenancy Act, particularly Section 38-E (1) and Sub-Section 5 read with Section 19 have been given overriding effect after the enactment of Inams Act. Thus, such provisions would prevail over the Inams Act. Section 38-E (1) of the Tenancy Act substituted in the year 1971 had given overriding effect to Chapter IV over any other law which would also include the Inams Act.
In the case of Madipeddi Rajalingam (1 supra) this Court having taken note of the protection that was granted in favour of the protected tenant observed as under:-
"Under the Tenancy Act, a tenant, with a particular standing and subject to certain limitations, is recognized as protected tenant. Detailed procedure is prescribed for recognizing an individual, as a protected tenant. Once such a status is conferred, it entails in several consequences, including the one, of conferring of ownership rights, under Section 38-E thereof. The Act was one of the steps in the agrarian reforms and its provisions were upheld, in several proceedings before this Court and the Supreme Court. Any person, who is conferred with the status of protected tenancy, is accorded protection, beyond the scope of ordinary law. For example, if a protected tenant or his legal representative is dispossessed from the land, he is entitled to be restored possession, irrespective of the lapse of the time without the necessity of filing a suit for this purpose. The ::15::
law of limitation is almost inapplicable, in such matters. Similarly, the status of protected tenancy, once conferred, cannot be meddled with, at a later point of time."
18. In the light of the law laid down by the Hon'ble Apex Court and this Court, the alleged surrender of ownership rights through order dated 27.11.1975, is totally nonest in the eye of law. The petitioner also failed to dislodge the finding about the ingenuinity of the order, dated 27.11.1975.
19. The other contentions of the learned counsel for the petitioner that the impugned proceedings resulting in passing of the impugned orders were initiated by the GPA holder of respondent No.4 to 9 even before the execution of GPA in his favour is concerned, from the material on record, it is evident that the GPA, dated 20.06.2013, was a registered GPA executed in favour of the GPA holder three days after filing a petition before respondent No.1 and there exist other GPA's much prior to the date of presentation of the petition before respondent No.1 on 17.06.2013. Insofar as the other contention of the petitioner that the Joint Collector has already rejected the very same claim made before respondent No.1 on an earlier occasion by passing an order, dated 13.06.2013 is concerned. A perusal of the same indicates that though findings were recorded in favour of the unofficial respondents in the said order, the same was rejected only on a technical ground that the GPA through which the said petition was ::16::
filed is not a notarized or an attested document. Therefore, a fresh application was filed on 17.06.2013 and the same was considered by respondent No.1 in terms of the order passed by this Court in Writ Petition No.26431 of 2013, dated 11.09.2013. The further contention of the learned counsel for the petitioner that the Tribunal is competent to accept surrender of tenancy by virtue of Memo, dated 05.09.1975 is concerned, in the considered opinion of this Court, the said Memo has no application to a case of surrender of ownership rights and the same has application only in the cases where the protected tenants failed to come forward to participate in the enquiry for issuing Ownership Certificates under Section 38E of the Act, 1950, and in the event of their refusal to pay the reasonable price fixed by the competent authority. Here in the instant case that is not the fact situation and here it is a case where Ownership Certificates were already issued in favour of the protected tenants. Therefore, assuming that such proceedings took place before the Additional Revenue Divisional Officer, while acting as the Tribunal the same is totally incompetent to accept surrender of ownership rights or surrender of tenancy under the provisions of the Act, 1950.
20. In the light of the conclusion arrived at, as noted above, this Court does not deem it necessary to refer to various other judgments relied upon by the learned counsel for respondents.
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21. In the light of the above, this Court does not find any merit in Writ Petition No.35845 of 2014 and the same is liable to be dismissed.
WRIT PETITION No.28246 of 2007
22. Then coming to Writ Petition No.28246 of 2007, the subject matter of this Writ Petition is the land situated in Sy.Nos.368 and 373 admeasuring Acs.14.05 gts., and Acs.11.02 gts., respectively of Shamshabad Village and Mandal, Ranga Reddy District (hereinafter referred to as 'the land in question').
23. Heard Sri V.Srinivas, and Sri M.V. Durga Prasad, learned counsel for the petitioners and learned Assistant Government Pleader for Revenue for respondent Nos.1 to 4 and Sri Ashok Reddy Kanathala, learned counsel for respondent No.5.
24. Like the lands situated in Sy.Nos.621 and 374 of Shamshabad Village, the lands which are the subject matter of Writ Petition No.35845 of 2014 the lands in question were also covered by the declaration filed by respondent No.5 and his two other brothers and admittedly, in respect of the land in question also, the Ownership Certificate under Section 38E of the Act, 1950, was issued in favour of one Soorka Ramaiah on 31.05.1975.
25. It is the case of the petitioners that in the year 2007 when the respondent authorities visited the land in question, the ::18::
petitioners came to know about an application, dated 27.04.2007, submitted by respondent No.5 before respondent No.4 and then the petitioners raised their objections to the said application submitted by respondent No.5. At that stage, the petitioners claim to have got the knowledge about the order passed in case No.B1/16242/1977, dated 20.06.1978 and immediately thereafter they made an application for obtaining certified copies of the order dated 20.06.1978, but the same was refused by issuing a Memo No.A6/153/2007, dated 02.07.2007, on the ground that the said file was destroyed since the destruction period is completed. The petitioners thus contested the proceedings before respondent No.4, but respondent No.4 passed orders in case No.L/1383/2007, dated 15.12.2007, rejecting the contentions of the petitioners on the ground that the order passed in case No.B1/16242/1977, dated 20.06.1978, has become final, and the proceedings before respondent No.4 are only a consequential proceedings. Aggrieved thereby, the petitioners filed the present Writ Petition questioning the order dated 20.06.1978 passed by respondent No.3 as well as the order passed by respondent No.4, dated 15.12.2007.
26. It is the further case of the petitioners that the order dated 20.06.1978 was passed behind the back of the petitioners purported to be basing upon the affidavits filed by the petitioners herein though the petitioners never filed any such affidavits nor ::19::
they were aware of the such proceedings before respondent No.3. Thus, the petitioners pleaded total ignorance about the proceedings, resulting in passing of order, dated 20.06.1978, and knowledge about the same till the year 2007, when the proceedings were initiated at the instance of respondent No.5 before respondent No.4. It is also the contention of the petitioners that the father of the petitioners herein namely Soorka Ramaiah, who was the original protected tenant and holder of the Ownership Certificate under Section 38E of the Act, 1950, was alive as on 20.06.1978, but respondent No.5 and his two other brothers filed appeal before respondent No.3 under Section 90 of the Act, 1950, as if the father of the petitioners was no more and by showing the petitioners herein as respondents in the said appeal. Thus, it is contended that the very appeal filed before respondent No.3 by showing the original protected tenant/certificate of ownership holder as dead person, is illegal and nonest in the eye of law. In support of their contention, the petitioners placed reliance on a death certificate issued by office of the Gram Panchayat, Shamshabad Village and Mandal, dated 15.02.2007, vide Sl.No.97/2007. It is also the contention of the learned counsel for the petitioners that the alleged surrender of tenancy orally in the year 1953 is totally false and there was no such surrender of tenancy, as contended by respondent No.5 herein.
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27. On the other hand, respondent No.5 filed counter-affidavit categorically admitting the fact of issuance of Ownership Certificate in favour of the protected tenant namely Mr. Soorka Ramaiah and also admitting that respondent No.4 herein issued the Ownership Certificate in file No.LRW/229/75, in accordance with the procedure under G.O.Ms.No.3, dated 01.01.1973. However, it is contended that aggrieved by granting of 38E certificate issued in favour of the father of the petitioners, respondent No.5 along with his two brothers filed appeal under Section 90 of the Act, 1950 and in the said appeal, the petitioners herein filed affidavits accepting that their father voluntarily surrendered the tenancy rights in favour of respondent No.5 and his two other brothers in the year 1953 itself and as such, the appeal was allowed. Thus, it is contended that the order passed by respondent No.2 is perfectly valid and the impugned order dated 15.12.2007 is only a consequential proceedings.
28. While considering the issue pertaining to Sy.Nos.621 and 374, which are subject matter of Writ Petition No.35845 of 2014, it has been elaborately discussed about the declaration filed by respondent No.5 and his two other brothers, the consequential verification report and the final order passed on the declaration filed by respondent No.5 and others under Section 8(1) of the Act, 1973. From the said discussion it is evident that the entitlement of ::21::
the father of the petitioners for issuance of Ownership Certificate under Section 38E of the Act, 1950, was taken note of and respondent No.5 herein has not filed any objections on the said verification report resulting in accepting the said verification report in its entirety by the Land Reforms Tribunal by passing an order, dated 22.11.1975. The said order dated 22.11.1975 has become final. If the contention of respondent No.5 that the father of the petitioners has orally surrendered the tenancy in the year 1953 itself is to be accepted, respondent No.5 ought have filed his objections in response to the verification report wherein the right of the Mr. Soorka Ramaiah for grant of Ownership Certificate under Section 38E was recognized and consequently Ownership Certificate was issued as early as on 31.05.1975. But respondent No.5 claims to have filed an appeal in the year 1978 against the grant of Ownership Certificate in favour of the father of the petitioners herein purportedly after the demise of the father of the petitioners herein. The basis for allowing the said appeal filed by respondent No.5 and two others was the affidavits said to have been filed by the petitioners herein. A perusal of the copies of the said affidavits, which are placed on records, shows that they were dated 20.06.1978 and on the same date the order dated 20.06.1978 came to be passed allowing the said appeal and directed the lower Court to cancel the Ownership Certificates.
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From the perusal of the order dated 20.06.1978, it is noticed that the Ownership Certificate issued in favour of the father of the petitioners herein was not cancelled though the appeal was allowed. While allowing the appeal, respondent No.3 only directed the lower Court to cancel the Ownership Certificate. There is nothing on record to show that the Ownership Certificate was in fact cancelled by the original authority. On the other hand, from the material on record, especially, the representation, dated 27.04.2007, submitted by respondent No.5, it is evident that the order, dated 20.06.1978 is not implemented till the year 2007. The gist of the said representation, dated 27.04.2007 reads as under:-
"I am herewith submitting a copy of the order issued by District Revenue Officer, Hyderabad District in file No.B1/16242/1977 dated 20.06.1978. I request you to cancel ownership right under Section 38E and necessary records may be corrected regarding Sy.No.368 and 373."
Pursuant to this representation, dated 27.04.2007, respondent No.4 initiated proceedings by issuing notices to the petitioners herein and passed the order, dated 15.12.2007, which is also impugned in the present Writ Petition, holding that the Ownership Certificate issued under Section 38E of the Act, 1950, was already cancelled and the lower authority has to take necessary steps for changing the relevant records, which is stated to be a ministerial act.
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29. Thus, it is evident that though respondent No.3 stated to have passed an order under Section 90 of the Act, 1971, as early as on 20.06.1978, respondent No.5 and two others have not taken any steps for implementing the said order till the year 2007, by which time the entire record pertaining to the order, dated 20.06.1978 came to be destroyed. In the light of the specific contention of the petitioners that they were totally unaware of the appeal said to have been filed by respondent No.5 and two others before respondent No.3 and their specific contention that they never filed any such affidavits before respondent No.3 and further denied the signatures on the said affidavits purported to be of the petitioners herein, coupled with the prolonged inaction on the part of respondent No.5 and two others almost for about three decades in seeking to implement the order dated 20.06.1978 passed in their favour creates a serious doubt in the mind of the Court about the genuineness of the said order. There is no method by which the genuineness of the said order, dated 20.06.1978 can be ascertained, as the entire record pertaining to the said order was stood destroyed by the authorities due to lapse of destroying period. Even otherwise, when the alleged surrender of tenancy is of the year 1953, the action of respondent No.5 and two others in not raising any objection on the report submitted by the Tahsildar concerned on the declarations filed by them and also in allowing ::24::
the order passed by the Land Reforms Tribunal to become final further strengthens the doubt about the genuineness of the order dated 20.06.1978 and also about the manner in which the said order could have come into existence.
30. Further, in spite of specific pleading in the affidavit filed in support of the Writ Petition about the date of death of the petitioners father as 20.05.1979, respondent No.5 simply denied the same, but failed to state as to on what date the father of the petitioners died exactly and as to on what basis respondent No.5 and two others filed an appeal against the petitioners herein by treating the father of petitioners as dead. The petitioners in support of the date of death of their father filed a certificate issued by office of the Gram Panchayat, Shamshabad, which prima facie shows that the date of death of their father was 20.05.1979. In response thereto, respondent No.5 failed to place any other material on record nor asserted the exact date of death of the father of the petitioners herein, except disputing the said certificate issued by office of the Gram Panchayat concerned on the ground that the same was signed by the Sarpanch of the said Gram Panchayat. When a serious dispute about the date of death of the father of the petitioners herein was raised, respondent No.5 ought to have made an attempt, at least to substantiate his case in filing appeal against the petitioners herein, by showing the father of the ::25::
petitioners as dead. Further, Section 19 of the Act, 1950, mandates that any surrender of tenancy either orally or in written should be in good faith and to the satisfaction of the Tahsildar concerned. In the instant case, the manner in which the order, dated 20.06.1978, was passed on an appeal said to have been filed by respondent No.5 and two others itself creates a serious doubt. Insofar as the objection raised by respondent No.5 on the ground that the petitioners have not taken any steps against the order, dated 20.06.1978 till the year 2007 is concerned, this Court does not find any merit in the said contention, in the light of the observations made hereinabove, especially, the conduct of respondent No.5 in not taking steps for implementation of the order, dated 20.06.1978, for about thirty (30) years. There is nothing on record to show that the petitioners are made aware of the order dated 20.06.1978 at any point of time prior to the year 2007. Further, the said order, dated 20.06.1978, came to be passed in favour of respondent No.5 and his two other brothers. But, for the reasons best known, it is only respondent No.5 who has taken steps for implementing the said order and the other two brothers of the petitioners have not chosen to take any steps till date.
31. As already noted hereinabove, respondent No.3 herein only directed the lower Court to take steps for cancelling the Ownership Certificates, but the Ownership Certificates are never cancelled.
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Even as on date, there is nothing on record to show that the Ownership Certificate issued in favour of the father of the petitioners herein is cancelled. But, respondent No.4, while passing the order dated 15.12.2007 erroneously observed that the Ownership Certificate was already cancelled by respondent No.3 in the year 1978 itself. The said finding is factually incorrect and contrary to the record.
32. In the light of the law declared by the Hon'ble Apex Court in the case of Thota Sridhar Reddy (4 supra) etc., as noted hereinabove, the valuable rights conferred upon the protected tenants under the provisions of the Act, 1950, cannot be allowed to be whittled down or frustrated by adopting dubious methods. In the instant case, the manner in which the affidavits are said to have been filed by the petitioners herein, under no circumstances can be believed to be genuine. In the facts and circumstances of the case noted hereinabove, no prudent man would forego their valuable rights on an immovable property by filing such affidavits.
When the father of the petitioners has accepted the Ownership Certificate issued in his favour, it is so unbelievable that the petitioners herein who succeeded to the property in question would voluntarily go before respondent No.3 and file affidavits stating that the tenancy was orally surrendered in the year 1953. In the overall facts and circumstances of the case, respondent No.5 herein, ::27::
having accepted the verification report submitted pursuant to the declaration filed by him under the provisions of the Act, 1973 and having allowed the final order passed thereon to become final, appears to have invented different methods to deprive the protected tenants, the benefits of the ownership over the land situated in Sy.Nos.368 and 373 of the Shamshabad Village by resorting to innovative methods in a fraudulent manner and this Court is constrained to make these observations having taken note of the overall facts and circumstances of the case and the material that is available on record. In the light of the above and in the light of the law laid down by the Hon'ble Apex court in the case of Meghmala and Ors. v. G. Narasimha Reddy and Ors.7, the impugned orders, dated 15.12.2007 and 20.06.1978 are set aside and Writ Petition No.28246 of 2007 is accordingly allowed.
33. In the result Writ Petition No.35845 of 2014 is dismissed and Writ Petition No.28246 of 2007 is allowed.
As a sequel, miscellaneous petitions, pending if any in these Writ Petitions, shall stand closed. No costs.
___________________________________ MUMMINENI SUDHEER KUMAR, J Date: 16.06.2023 NDS 7 (2010) 8 SCC 383 ::28::
THE HON'BLE SRI JUSTICE MUMMINENI SUDHEER KUMAR WRIT PETITION Nos.35845 OF 2014 AND 28246 OF 2007 Date: 16.06.2023 NDS