Andhra HC (Pre-Telangana)
Venu Reddy Chandrasekhara Reddy vs State Of A.P. on 23 January, 2002
Equivalent citations: 2002(2)ALD349
JUDGMENT
1. This is a revision under Section 21 of the A.P. Land Reforms (Ceiling on Agricultural Holdings) Act, 1973 (hereinafter referred to as 'the Act').
2. The petitioner filed declaration as required under Section 8 of the Act in respect of the lands held by him. The Land Reforms Tribunal, Nellore (hereinafter referred to as 'the Tribunal') decided that the petitioner holds 1.2593 Standard Holdings of land in excess of ceiling limits. The matter was carried in appeal before the Land Reforms Appellate Tribunal, Nellore (hereinafter referred to as 'the Appellate Tribunal'). Thereafter the petitioner filed CRP No.4206/92 in this Court. One of the controversies in that revision was whether the land admeasuring Ac.22-00 covered by agreement of sale dated 2-1-1971 was liable to be excluded from the holding of the petitioner. Since there was no definite finding as to whether it was the declarant or the agreement holder that was in possession of the said land, this Court, through orders dated 24-6-1987, remanded the matter to the Appellate Tribunal to record a finding as to who is in possession of the said land. The Appellate Tribunal in turn, through its order dated 23-11-1991, remanded the matter to the Tribunal for recording a finding on that question. The petitioner had also raised other contentions, such as, inclusion of one of his daughters in the family Unit, inclusion of land in Sy.No.687 to the holding of the petitioner and the classification of land covered by certain channels.
3. The Tribunal, through its order dated 13-7-1992, decided that the agreement of sale in respect of Ac.22-00 referred to above, cannot be accepted. It has also turned down the other contentions of the petitioner. Aggrieved by the said order, the petitioner filed LRA. 12/92 before the Appellate Tribunal.
4. Before the Appellate Tribunal, the petitioner raised four contentions viz., (1) inclusion of Ac.22-00 of land covered by agreement of sale under Ex.X2;
(2) inclusion of land in Sy.No.687 of Rebala village; (3) inclusion of one of the daughters of the petitioner in the family Unit; and (4) classification of lands covered by Channels. The Appellate Tribunal confirmed the finding of the Tribunal on the first three contentions. So far as the 4th contention is concerned, the appellate Tribunal took the view that out of Ac. 16-90 cents of land covered by channels, Ac. 10-31 cents was acquired by the Government in 1978 and compensation was paid to the petitioner and the said extent is liable to be included in the holding. It further held that the balance of Ac.6.59 cents is liable to be excluded from the holding inasmuch as it is covered by channels. In this revision, the finding of the Appellate Tribunal is challenged by the petitioner.
5. Sri K. Pratap Reddy, the learned senior Counsel appearing for the petitioner has put forward two contentions. His first contention is that the order of the Tribunal as well as the Appellate Tribunal cannot be sustained. He submits that when the matter was specifically remanded by this Court for recording a finding as to whether the agreement holder is in possession or not both the Tribunals had undertaken a totally different enquiry without recording the finding. His second contention is that the petitioner has absolutely no right; claim or interest in respect of Ac.3-65 cents of land in Sy.No.687 and the inclusion of the same to the holding of the petitioner cannot be sustained. He did not press the contentions which were raised before the Appellate Tribunal. The 4th contention was answered by the Appellate Tribunal in favour of the petitioner herein.
6. Sri G. Venkateshwar Rao, the learned Assistant Government Pleader for Land ceiling, on the other hand, submits that it is settled law that the lands covered by the agreement of sale are liable to be included in the holding of the owner as well as the agreement holder and no exception can be taken to the same. He further submits that the question of includability of the land in Sy. No.687 has become final and it cannot be raised once again.
7. It is a matter of record that this Court, through its order dated 24-6-1997 in CRP No.4206/82, had remanded the matter for recording a finding as to who is in possession of Ac.22-00 acres of land covered by the agreement-Ex.X2. The said remand was for a definite purpose. It does not appear from the orders of both the Tribunals that any effort was made to record a finding on that aspect. Both the Tribunals appear to have proceeded on the basis that, irrespective of the fact as to who among the owner or the agreement holder is in possession, in view of the judgment of the Honourable Supreme Court in State of A.P. v. MD. Ashrafuddin, , the land is liable to be included.
8. There is no dispute as to the includability of the land covered by the agreement of sale in the holdings of the owner as well as the agreement holder. The kingpin of the entire Act is the proceedings relating to surrender. It is at the stage of the surrender that these questions assume importance.
9. The Act was brought as a measure of agrarian reforms. The holders of the land are required to submit declarations in respect of the lands held by them. In certain areas of the State, particularly in the agricultural community, transfers are made, otherwise than through registered sale deeds, on the basis of mutual confidence. Such transactions are mostly evident by agreements of sale. Such alienations, though do not conform to the requirement of the provisions of the Transfer of Property Act or the Registration Act, are not without any significance. As a matter of fact, Section 53-A of the Transfer of Property Act accords ample protection to those who are put in possession of the property in pursuance of an agreement of sale.
10. So far as the scheme of the Act is concerned, Section 3(i) defines "holding" as under:
'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; and
(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 expression 'to hold land' shall be construed accordingly;
Explanation :--Where the same land is held by one person in one capacity and by another person in any other capacity, such land shall be included in the holding of both such persons."
From the explanation, it is evident that where different persons hold the same land in different capacities, it is liable to be included in the holding of both such persons. This aspect of law has been reiterated by the Honourable Supreme Court in Ashrqfuddin's case (supra). The purpose underling the explanation is to ensure that no piece of agricultural land escapes from being dealt with under the Act. It is on the basis of this principle and the parameters stipulated by the Act that the holdings of the family Units or the individuals are to be decided by the Tribunals.
11. However, when it comes to the question of surrender, which is provided under Section 10 of the Act, the question of possession is significant. If a declarant fails to include an item of land in his declaration on the ground that he does not hold any right or interest in the same, the Tribunal may include such omitted item of land also in the holding of the declarant on account of the fact that the transfer is not proved or is not in accordance with law. If, in that process, the declarant turns out to be holding land in excess of the ceiling limit, he will readily offer the surrender of the land so included. There are certain provisions in Section 10 of the Act, which confer the power under the Tribunal to refuse to accept such lands for surrender. Most of the disputes under the Act relate to the offer by the declarant and the refusal by the Tribunal to accept such lands for surrender. The power of the Tribunal to refuse to accept the land is limited to certain circumstances as is evident from a reading of Sub-section (5) of Section 10 of the Act:--
"10(5) (a) Notwithstanding anything in this section, it shall be open to the Tribunal to refuse to accept the surrender of any land:--
(i) which has been converted into non-agricultural land and has been rendered incapable of being used for purposes of agriculture;
(ii) the surrender of which is not acceptable on account of a dispute as to the title to the land or an encumbrance on the land or on account of the land being in the possession of any person mentioned in The expression "item (ii) or" is omitted by Act 10/77 (x x x) item (v) of clause (i) of Section 3 or on account of the land proposed to be surrendered becoming inaccessible by reason of its severance from the remaining part of the holding; and the Tribunal shall, in every such case, serve a notice on the person concerned requiring him to surrender any other land in lieu thereof; and thereupon the provisions of sub-sections (3) and (4) shall, mutatis mutandis apply to such surrender:
Provided that where land proposed to be surrendered under this section is burdened with a mortgage, the Tribunal may, on an application made by the mortgagor with the consent of the mortgagee by order, transfer such mortgage from the land so proposed to be surrendered to the residuary holding of the mortgagor or to any part thereof.
(b) Where the land so surrendered under clause (a) is also not acceptable to the Tribunal, the Tribunal shall, after giving an opportunity to the person covered of being heard, select any other land in lieu thereof, and thereupon, the said land shall be deemed to have been surrendered by such person."
From a reading of the provision extracted above, it is evident that the discretion of the Tribunal to refuse to accept the surrender is limited to situations, such as :--
(a) Where the land has been converted into non agricultural land, obviously subsequent to the coming into force of the Act;
(b) There exists a dispute as to the title;
(c) The land is encumbered; and
(d) The land is in possession of persons mentioned in item (v) of clause (i) of Section 3."
12. Prior to 1977, the Tribunal was entitled to refuse to accept surrender of lands, which are in the possession of limited owners (Section 3(i)(ii)). Through Act 10 of 1977, the same was deleted. The expression "limited owner" is not defined under the Act. Whether or not, a person in possession of the land through agreement of sale has to be treated as a limited owner and if not on what basis, is a matter which does not appear to have been dealt with. Exclusion of that expression from Section 10(5) cannot be said to be without significance; having regard to the nature of the enactment itself. Therefore, the land being in possession of a person has its own significance in relation to surrender proceedings. In my view, both the Tribunals ought to have complied with the directions of this Court contained in order dated 24-6-1987 in CRP No. 4206/82.
13. So far as the inclusion of land in Sy.No.687 of Rebala Village to the holding of the petitioner is concerned, it has been his consistent version that he has no right, claim or title in respect of the said land. The Tribunal, for its own reasons, has chosen to include the same. Naturally, such an inclusion has resulted in the petitioner becoming holder of excess land to that extent. Without undertaking any further discussion on that, it may be concluded that if the petitioner offers to surrender the same item of land, the Tribunal should not have any plausible objection. Inasmuch as the petitioner never claimed any right or title in respect of that item, it does not fall into any of the instances under which the Tribunal can refuse to accept, as referred to above.
14. Since the Tribunals did not record a finding as to the possession over an extent of Ac.22-00 of land covered by Ex.X2, the orders of both the Tribunals are set aside and the matter is remitted to the Land Reforms Tribunal, Nellore, for recording a finding as to whether the petitioner or the agreement holder under Ex.X2 is in possession of Ac.22-00 of land. If the petitioner is found to be in possession of the same, he shall be liable to surrender the said item or any other item of equal extent. On the other hand, if the agreement holder is found to be in possession and if the petitioner offers to surrender the said item, the Tribunal shall pass appropriate orders on the same in the light of the discussion undertaken above.
15. The civil revision petition is accordingly allowed, but in the circumstances of the case, there shall be no order as to costs.