Andhra Pradesh High Court - Amravati
Kanderi Satyanarayana vs N Subrahmaneswara Rao on 4 April, 2024
Author: R. Raghunandan Rao
Bench: R. Raghunandan Rao
IN THE HIGH COURT OF ANDHRA PRADESH: AMARAVATI
HON'BLE MR.JUSTICE DHIRAJ SINGH THAKUR, CHIEF JUSTICE
&
HON'BLE MR. JUSTICE R. RAGHUNANDAN RAO
WRIT APPEAL No.391 of 2023
Kanderi Satyanarayana, S/o.Venkata Reddy,
Aged about 49 years, R/o. Bhimanapalli Village,
Kittenna Cheruvu, Uppalaguptam Mandal,
East Godavari District.
.. Appellant
Versus
Nulu Subrahmaneswara Rao, S/o.Sambasiva Rao,
Aged about 71 years, Occ: Cultivation,
R/o.8-4-80, Main Road, Amalapuram,
East Godavari District and three others.
...Respondents
Smt. N. Anula, Counsel for the appellant.
Smt. M. Bhaskara Lakshmi, Counsel for respondent No.1.
GP for Revenue, Counsel for respondent Nos.2 to 4.
DATE : 04.04.2024
PER DHIRAJ SINGH THAKUR, CJ:
The present writ appeal under clause 15 of the Letters Patent
has been preferred against the judgment and order dated
24.03.2023 passed in W.P.No.25831 of 2010. By virtue of judgment
and order impugned, the writ petition filed by the respondent No.1
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herein was allowed and the order passed by the tahsildar dated
29.06.2010 under the provisions of the Andhra Pradesh Occupants
of Homesteads (Conferment Of Ownership) Act, 1976 (hereinafter
referred to as "the Act") passed in favour of the appellant herein
was set aside.
With a view to understand the background, in the light of
which the present controversy has arisen, it is necessary to give
the material facts, in brief:
2. Mr. Nulu Subrahmaneswara Rao/Respondent No.1 herein, is
the owner of land measuring Five Acres and Thirty Three Cents
falling in Survey No.625/1 and Thirteen Cents falling in Survey
No.625/2 situate in Bheemanapalli Village of East Godavari
District. These parcels of land were given on oral lease in the year
1998, to the father of the appellant and after whose death the
appellant herein stepped into his shoes. It appears that on account
of certain alleged defaults in the rentals for the years
2002-2003, 2003-2004, 2004-2005, the writ petitioner,
Mr. N. Subramanyeswara Rao/respondent No.1 herein, filed an
application bearing Andhra Tenancy Case No.06 of 2006 which was
allowed by the Special Officer-cum-Principal Junior Civil Judge,
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Amalapuram with a direction to the appellant herein to vacate the
schedule property with a further direction regarding delivery of
possession of the same within three months from the date of the
said order.
3. An appeal preferred by the appellant herein against the said
judgment and decree also came to be dismissed vide judgment and
order dated 24.09.2008. In the interregnum, the appellant herein
approached the Tahsildar, Uppalaguptam under the provisions of
the Act.
4. The Tahsildar in his order recorded that the extent of
Homestead land claimed by the applicant was measuring Three
Cents out of Five Acres Forty Six Cents which was covered by the
judgment and decree of the Civil Court. The Tahsildar in his Order
proceeded to hold as under:
"The applicant is an Agricultural labour and is a Land
less Agriculturist. The Homestead land measuring Ac.0.03
cts is under his occupation by construction of a thatched
house at own cost and dwelling in it for the past 40 years.
I therefore consider the applicant Sri Kanderi
Satyanarayana S/o Venkatareddy of Kithanacheruvu H/o
Bheemanapalli (V) of Uppalaguptam (M) as Occupant of
the Homestead land measuring Ac.0.03 cts in R.S.No.625/2
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Kithanacheruvu H/o Bheemanapalli (V) of Uppalaguptam
(M) under the AP Occupants of Homesteads (Conferment
of) Ownership rules 1975 and Order issue of Ownership
Certificate on payment of price mentioned in Form II of the
Act."
5. The order passed by the Tahsildar came to be challenged by
way of writ petition No.25831 of 2010, which was allowed by virtue
of judgment and order dated 24.03.2023, impugned in the present
writ appeal, on the ground that the Tahsildar, Uppalaguptam in
passing the order dated 29.06.2010, acted without jurisdiction
inasmuch as the principles of natural justice had been violated as
also the pleas raised by the writ petitioner/respondent No.1 herein
had not been considered on merits by the Tahsildar.
6. The learned single Judge appears to have been not satisfied
that the enquiry as envisaged under Rule 4 of the rules framed
under the Act had been conducted properly.
Apart from this, the learned single Judge was of the view that
once the Court of competent jurisdiction had decided disputed
questions and rendered a decision on merits in the matter, the
Tahsildar could not have exercised jurisdiction which was
conferred upon him by the Homestead Act. It was therefore held:
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"19) ... Once a Court of competent jurisdiction, which
has the authority to decide the disputed questions, has
given a decision on the merits of the matter, this Court is of
the firm opinion that the Tahsildar exceeded his
jurisdiction and also exercised jurisdiction which is not
conferred upon him by Homestead application. He did not
act as warranted under law. There is also a clear failure of
the Rules of natural justice and the plea raised by the writ
petitioner is not even considered on the merits by the
Tahsildar. Since there is a clear failure in the jurisdiction
this Court holds that the petitioner is entitled to a Writ of
certiorari as prayed for, quashing the order dated
29.06.2010. The same is accordingly quashed.
20) The plea of the learned Government Pleader
that there is an alternative remedy under Section 8 of the
Homestead Act is also overruled because of the wrongful
exercise of the jurisdiction and also because of the failure
of the rules of natural justice. This Writ Petition is held to
be maintainable and it is accordingly allowed. There shall
be no order as to costs."
7. At this stage, it is deemed pertinent to refer to the scheme of
the Andhra Pradesh Occupants of Homesteads (Conferment of
Ownership) Act, 1976. The Act from a reading of the preamble
appears to have been enacted to provide for conferment of right of
ownership on landless agriculturists, agricultural labourers and
artisans, in respect of sites occupied by and adjacent to, their
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dwelling houses or huts in rural areas of the State of Andhra
Pradesh.
8. An Agricultural Labourer in terms of the Section 3(1) is
defined as a person whose principal means of livelihood is the
income derived from the wages for his manual labour on
agricultural land.
9. Section 3(3) defines an agriculturist to mean a person who
cultivates agricultural land by the contribution of his own manual
labour or of the manual labour of any member of his family.
Section 3(4) defines an artisan in the following terms:
"(4) 'artisan' includes a village carpenter, blacksmith,
barber, washerman, potter and other persons engaged
in such other callings or employment as may be
specified by the Government in this behalf;"
Section 3(9) defines a Homestead as under:
"(9) 'homestead' means the site of any dwelling house
occupied, either as licensee or otherwise, by any
landless agriculturist or agricultural labourer or artisan
in any village and includes such other area adjacent to
the dwelling house as may be necessary for the
convenient enjoyment of such dwelling house;"
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Section 3(10) defines a landless agriculturist in the following
terms:
"(10) 'landless agriculturist' means an agriculturist,
who does not hold any agricultural land as owner, or
who owns an extent of agricultural land which does not
exceed one hectare if it is a wet land, and two hectares
if it is a dry land;"
Section 3(11) defines a landowner as under:
"(11) 'land-owner' means an owner of the homestead
and includes a lessor licensor in relation to any
homestead, trustee, usufructuary mortgagee and any
other intermediary who has an interest in the
homestead;"
Section 3(13) defines occupant of Homestead as under:
"(13) 'occupant of homestead' means any landless
agriculturist or agricultural labourer or artisan for the
time being in occupation of the dwelling house built at
his expense or at the expense of his predecessor in title
on a homestead belonging to a land-owner;
Explanation: - It shall be presumed until the contrary is
proved that the dwelling house has been built by the
occupant thereof, at his expense;"
10. Section 4 of the Act envisages a bar to eviction of an occupant
of homestead from dwelling house or homestead as under:
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"4. Bar to eviction of an occupant of homestead from
dwelling house or homestead -
(1) If in any village, an occupant of home-stead is in
occupation of a dwelling house on the date of
commencement of this Act, the said occupant of
homestead shall not be evicted from such dwelling
house or homestead, unless the land-owner proves that
the homestead belongs to him and that the dwelling
house thereon was built at his expense and the person
occupying the dwelling house is only a tenant and not
an occupant of homestead.
(2) The provisions of sub-section (1) shall not apply
to a dwelling house which is situated on any
agricultural land from which a tenant of such
agricultural land has been evicted consequent upon the
lawful resumption of the land by the land-owner in
accordance with any law for the time being in force in
that behalf.
(3) If an occupant of homestead who was in
occupation of a dwelling house on or after the 6th
October, 1971, has been evicted before the
commencement of this Act, the authorised officer shall,
on an application made by the said occupant of the
home-stead, within six months from the date of such
commencement or may, suo motu at any time, after
making such inquiry as may be prescribed, restore the
possession of the homestead and dwelling house to the
said occupant of homestead and on such restoration,
the provisions of this Act shall apply as if he were in
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occupation of the said homestead and dwelling house
on the date of commencement of this Act.
Explanation.- For the purposes of this section 'tenant'
means any person who has paid or has agreed to pay
rent or other consideration for his being allowed by
another to enjoy the land of the latter under a tenancy
agreement express or implied, and includes his heirs
and legal representatives."
11. Section 7 envisages that in case of any dispute between the
landowner and an occupant of the homestead regarding any matter
governed by the provisions of the Act, the same shall be decided by
the authorised officer, after following the prescribed procedure.
12. Section 8 further envisages an appeal to the Revenue
Divisional Officer against any order or decision passed by the
authorised officer.
13. While Section 9 envisages the exercise of revisional powers by
the District Collector either suo motu or on an application filed in
that behalf.
14. Section 11 envisages a bar of jurisdiction of Civil Courts in the
following terms:
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"11. Bar of jurisdiction of civil courts - No civil court
shall have jurisdiction in respect of any matter which
the Government are, or the authorised officer is
empowered by or under this Act, to determine and no
order of eviction shall be passed and no injunction shall
be granted by any Court or other authority in respect
of any action taken or to be taken in pursuance of any
power conferred by or under this Act."
15. Section 14 is also relevant and envisages as under:
"14. Act to override other laws - The Provisions of this
Act and rules made thereunder shall have effect
notwithstanding anything inconsistent therewith
contained in any other law for the time being in force,
or any custom, usage, or contract or decree or order of
a Court or other authority."
16. Counsel for respondent No.1 has reiterated the stand as was
taken before the learned single Judge and supported the view
expressed by the writ Court.
17. We have heard learned counsel for the parties and gone
through the record.
18. In the backdrop of the aforementioned facts and provisions of
law, it can be seen that the appellant claims himself to be a landless
agriculturist who claims to be in possession of a dwelling house
constructed over a plot of land measuring three cents. From the
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record it appears that, although the decree against the appellant
was to an extent of Five Acres Forty Six Cents, the appellant herein
had during the pendency of the execution proceedings, surrendered
an area of Five Acres And Forty Three Cents, while continuing to
retain the possession over the three cents, for which he claimed the
benefit of ownership in terms of the Act.
19. Sub-section 2 of Section 4 of the Act envisages that the
provisions of Sub-section 1 of Section 4 of the Act would not apply
to a dwelling house which is situate on any agricultural land from
which a tenant of such agricultural land has been evicted
consequent upon the lawful resumption of the land by the
landowner in accordance with any law for the time being in force in
that behalf. To the extent, the appellant herein had surrendered
land measuring Five Acres Forty Three Cents in favour of the
respondent No.1/petitioner pursuant to the decree passed by the
Civil Court, the appellant herein would not be entitled and rightly
so, the appellant had not claimed any benefit under the Act, in
regard to the land so surrendered.
20. The claim of the appellant was limited to the dwelling house
and homestead measuring three cents. The question that arises for
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consideration is, whether the appellant was entitled to claim the
benefit of the Act, in regard to the Homestead and the dwelling
house despite the passing of the decree in A.T.C. No.6 of 2006. The
answer lies in Section 14 which is reproduced in the preceded
paragraphs and which clearly envisages that the provisions of the
Act and the rules made therein shall have effect notwithstanding
anything inconsistent contained inter alia in any decree or order of
a Court or other authority.
21. The fact that there was a decree or order from a civil Court,
therefore, would not prevent the appellant to approach the
authorised officer with a view to seek the benefit of ownership
under the Act. In our opinion, the protection against eviction
granted to an occupation of a homestead or a dwelling house under
Section 4 (1) has three important elements, each of which had to be
proved by the landowner with a view to take away the protection so
provided under Section 4 (1). The three important elements which
the landowner has to prove are:
i) That the homestead belongs to him.
ii) That the dwelling house thereon was built at his expense.
iii) And that the person occupying the dwelling house was only
a tenant and not an occupant of the homestead.
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22. It is only if all the three elements are proved by the
landowner that the appellant would lose protection against the
eviction under Section 4(1).
23. We, however, are in agreement with the finding recorded by
the learned single Judge, that the order of the Tahsildar was in
violation of the principles of natural justice inasmuch as the said
tahsildar had not given adequate opportunity of being heard to the
petitioner/respondent No.1 herein, to that extent, in our opinion, it
would have been apt for the learned single Judge to set aside the
order passed by the Tahsildar and further should have remanded
the matter for consideration afresh.
24. We, allow the writ appeal and set aside the judgment and
order impugned and remand the matter to the authorised officer
concerned to pass appropriate orders afresh, after adequate
opportunity of being heard given to the parties concerned. The
authorised officer shall pass a detailed speaking order within a
period of three months from today. Until such time as the order is
passed, the appellant's possession over the homestead and the
dwelling unit be not disturbed. In case any of the parties are
aggrieved by the order so passed, it shall be open to them to avail
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the remedy of appeal prescribed under Section 8 of the Act. No
order as to costs.
Pending miscellaneous applications, if any, shall stand closed.
DHIRAJ SINGH THAKUR, CJ. R. RAGHUNANDAN RAO, J.
SSN