Telangana High Court
V. Ramaswamy vs The State Of Telangana on 10 August, 2021
Author: P.Naveen Rao
Bench: P.Naveen Rao
IN THE HIGH COURT OF JUDICATURE FOR THE STATE OF
TELANGANA
********
WRIT PETITION No.17103 of 2021
Between:
V.Ramaswamy s/o. late Voggu Chinna Mallaiah,
Aged about 40 years, occu: Agriculture,
r/o.Maheshwaram village and mandal,
Ranga Reoddy district.
.....Petitioner
And
The State of Telangana, rep.by its Prl.Secretary,
Revenue Department, Secretariat, Hyderabad
and others.
.....Respondents
DATE OF JUDGMENT PRONOUNCED : 10.08.2021
THE HON'BLE SRI JUSTICE P.NAVEEN RAO
1. Whether Reporters of Local Newspapers : No
may be allowed to see the Judgments ?
2. Whether the copies of judgment may be : Yes
marked to Law Reporters/Journals
3. Whether Their Lordship wish to : No
see the fair copy of the Judgment ?
PNR,J
W.P.No.17103 of 2021
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*THE HON'BLE SRI JUSTICE P.NAVEEN RAO
+WRIT PETITION No.17103 of 2021
%10.08.2021
# V.Ramaswamy s/o. late Voggu Chinna Mallaiah,
Aged about 40 years, occu: Agriculture,
r/o.Maheshwaram village and mandal,
Ranga Reoddy district.
... Petitioner
Vs.
$ The State of Telangana, rep.by its Prl.Secretary,
Revenue Department, Secretariat, Hyderabad
and others.
.... Respondents
!Counsel for the petitioners : Sri M.Damodar Reddy
Counsel for the Respondents: Asst.Government Pleader for
Revenue for respondents
1 to 3
<Gist :
>Head Note:
? Cases referred:
1987 (2) ALT 749 F.B.
1979 (1) An.W.R. 23
1982 (2) APLJ 376
2011 (4) ALD 112 (SC)
2015 (4) ALD 490
2015 (3) ALD 1 (SC)
(1992)2 SCC 598
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W.P.No.17103 of 2021
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HONOURABLE SRI JUSTICE P.NAVEEN RAO
WRIT PETITION No.17103 of 2021
ORDER :
This writ petition is filed praying to grant the following relief:
"To issue an order or direction more particularly one in the nature of writ of mandamus declaring the action of the 2nd and 3rd respondents in not accepting the application of the petitioner and others as filed under Sections 38-E(2) and 40 of the Tenancy Act, 1950 for seeking succession and restoration of possession of Acs.25.14½ guntas of agriculture land in Sy.Nos.414, 415, 416 and 417 of Tummaluru village, Maheshwaram Mandal, Ranga Reddy district, though the 3rd respondent is having jurisdiction to entertain such an application, as illegal, unlawful, contrary to law and consequently direct the 2nd and 3rd respondents to take the application dated 01.04.2021 of the petitioner on file and issue notices to all concerned and decide the same as per law, and pass such other order or orders which are necessary in the interest of justice."
2. Heard Mr. M.Damodar Reddy, counsel for petitioner and the learned Assistant Government Pleader for respondents 1 to 3.
3. According to the petitioner, his father late Voggu Chinna Mallaiah was the protected tenant of land in Sy.Nos.414, 415, 416 an 417 of Tummalur village, Maheshwaram Mandal, Ranga Reddy district and in recognition of his tenancy rights of inam land, his name was included in the protected tenancy register and he was issued Certificate under Section 38-E of the Andhra Pradesh (Telangana Area) Tenancy and Agricultural Lands Act, 1950, (for short, the Act, 1950) on 23.07.1975 on land to an extent of Acs.50.29 guntas. He was in enjoyment of the said land till his death on 21.02.2000. After the death of Voggu Chinna Mallaiah, petitioner, Mr. V.Shankar, and two daughters succeeded to the tenancy rights of late Voggu Chinna Mallaiah. However, Acs.25.14½ guntas have been in illegal occupation of the third parties depriving the entitlement of the petitioner to enjoy the PNR,J W.P.No.17103 of 2021 -4- entire extent of land, compelling the petitioners to confine to cultivation of only to Acs. 25.14½ guntas. As the occupation of the land belonging to a tenant is illegal, petitioner, his brother and sisters filed application before the Tahsildar under Section 38-E (2) read with Section 40 of the Act, 1950 requesting the Tahsildar to conduct enquiry to recognize the applicants as legal heirs of the original protected tenant and to restore the physical possession on land to an extent of Acs.25.14½ guntas. The Tahsildar refused to receive application under Sections 38(E)(2) and 40 of the Act, 1950 sought to be presented on 01.04.2021. Therefore on the same day, application was filed before the District Collector through their Advocate requesting to forward the application and to direct the Tahsildar to dispose of their application. Alleging in action, this writ petition is filed.
4. Shorn of details, according to the petitioner, he and his siblings having succeeded to tenancy rights of late Voggu Chinna Mallaiah, who was granted 38-E certificate, are entitled for recognition as legal heirs of protected tenant under Section 40 of the Act, 1950 and are also entitled for restoration of possession of land to an extent of Acs.25.14½ guntas, which was forming part of the total extent of Acs.50.29 guntas of Tummalur village, covered by Section 38-E certificate dated 23.07.1975.
5. There are two aspects to the claim of petitioner. Firstly, the entitlement of the petitioner per se for restoration of possession of land alleged to have been illegally occupied by the third parties; and secondly, whether petitioner is entitled to relief of direction to PNR,J W.P.No.17103 of 2021 -5- the Tahsildar to take steps for restoration of land in issue by exercising powers under Section 38-E (2) of the Act, 1950.
6. Sections 38-E (2)1 and 402 of the Act, 1950 deal with two different aspects of protected tenancy. Section 40 of the Act, 1950 vests right in the successor of a protected tenant to acquire all rights and interest vested in land on a protected tenant, even if Section 38-E certificate was not granted to the protected tenant. Section 38-E of the Act 1950 vests power in the Tahsildar to confer certificate on a protected tenant recognizing his tenancy and vesting absolute right in him to enjoy the land in his occupation as protected tenant. Proviso to sub-section (2) of Section 38-E of the Act, 1950 also vests power in the Tahsildar to restore possession of land on which protected tenancy right was recognized in favour of a person, but is in occupation by a third party.
7. Having regard to the statutory scheme, if petitioner and his siblings are legal heirs of late Voggu Chinna Mallaiah, they are entitled to succeed to the tenancy rights vested in late Voggu 1 Section 38 -E (2) A certificate in the prescribed form declaring him to be owner shall be issued by the Tribunal after holding such enquiry as may be prescribed, to every such protected tenant and notice of such issue shall simultaneously be issued to the landholder. Such certificate shall be conclusive evidence of the protected tenant having become the owner of the land with effect from the date of the certificate as against the landholder and all other persons having any interest therein:
51[Provided that where the land, the ownership of which has been transferred to the protected tenant under subsection (1), is in the occupation of a person other than the protected tenant or holder of the certificate issued under this sub-section, it shall be lawful for the Tahsildar to restore the possession of the said land to the protected tenant or holder of the certificate, after giving notice of eviction to the occupant thereof, in the prescribed manner.] 2
40. (1) All rights of a protected tenant shall be heritable. (2) If a protected tenant dies, his heir or heirs shall be entitled to hold the tenancy on the same terms and conditions on which such protected tenant was holding the land at the time of his death 53[and such heirs may, notwithstanding anything contained in this Act, sub-divide interse according to their shares the land comprised in the tenancy to which they have succeeded.] (3) If a protected tenant dies without leaving any heirs, all his rights shall be extinguished.
Explanation:- The following persons only shall be deemed to be the heirs of a protected tenant for the purposes of this section:- (a) his legitimate lineal descendants by blood or adoption; (b) in the absence of any such descendants, his widow for so long as she does not remarry. 53[(4) The interest of a protected tenant in the land held by him as a protected tenant shall form sixty per cent of the market value of all the interests in the land and that of the landholder and of persons claiming under him shall be limited to the remaining forty per cent.] PNR,J W.P.No.17103 of 2021 -6- Chinna Mallaiah on the subject land. As a corollary, they are also entitled to seek enforcement of proviso to Section 38-E(2) of the Act and to claim restoration of possession of land. Thus, per se, the claim of the petitioner appears to be valid and legal. But the moot question is, can the petitioner take recourse to a penal provision in Section 38-E (2), at any time, at his will and pleasure.
8. Learned counsel for petitioner sought to emphasize that proviso to Section 38-E (2) of the Act, 1950 does not prescribe any time limit and a protected tenant or successor in interest of protected tenant can seek enforcement of the said proviso and restoration of possession of land to a protected tenant at any time. The proviso to Section 38-E(2) being wide enough, the question of imposing limitation of time to seek enforcement of the said right does not arise. Imposing any restriction on time to enforce such a valuable right in a tenant or successor in interest of tenant defeats the very object of the Act and runs counter to the scheme of the Act. In support of his contention, learned counsel for petitioner placed reliance on the judgment of Full Bench of this Court in Sada vs. The Tahsildar, Utnoor, Adilabad district and others3.
9. In Chinnaboina Narasaiah vs. Tahsildar, Mahabubabad, Warangal District4, the Division Bench of this Court held that granting ownership certificate to a protected tenant not in possession of the land on the date of notification under Section 38-E of the Act, 1950, is invalid.
3 1987 (2) ALT 749 F.B. 4 1979 (1) An.W.R. 23 PNR,J W.P.No.17103 of 2021 -7-
10. After this judgment, Section 38-E(2) was amended and a proviso was added. As per the proviso, if the land on which the ownership has been transferred to the protected tenant under sub- section (1) is in the occupation by a third party, it shall be lawful, for the Tahsildar to restore the possession of the said land to the protected tenant or holder of the certificate.
11. This proviso was considered by the Division Bench in Chennaiah vs. State of Andhra Pradesh5. The Division Bench held that the proviso applies to transfers that took place both prior and subsequent to the coming into force of the proviso. The Division Bench held that certificate of ownership can be issued to a protected tenant even if he was out of possession on the land and certificate issued under Section 38-E to such person is valid. The Division Bench further observed that the validity of certificate issued under Section 38-E after following the due procedure cannot be challenged at the stage of delivery of possession under the proviso.
12. Holding that there was conflict of opinion by two Division Benches, matter was referred to the Full Bench.
13. The Full Bench in Sada (supra) posed nine points for consideration. The first point for consideration was whether a protected tenant ought to be in physical possession on the date of notification issued by the Government under Section 38-E (1) of the Act for becoming owner of the property and for obtaining ownership certificate. The Full Bench held that for vesting ownership of the land held by a protected tenant, it is not 5 1982 (2) APLJ 376 PNR,J W.P.No.17103 of 2021 -8- necessary that the protected tenant should have been in physical possession on the date of the notification. It is sufficient if he continued to hold the status of a protected tenant as on the notified date even if not in physical possession and he satisfied the requirements of Section 38(7) of the Act, 1950.
14. There is no dispute on the proposition of law about the entitlement of a protected tenant to secure Section 38-E certificate, if he complied all the requirements of the Act, and his continued possession is not a pre-requirement to grant certificate.
15. Thus, by lifting the veil on this claim of petitioner, the moot question for consideration is whether a mandamus can be issued to restore possession to a protected tenant at any time ? In other words, whether a writ can be issued at the will and pleasure of successor to a protected tenant to restore possession of land covered by tenancy rights.
16. On the one side is the claim of the petitioner and his siblings as successors to the protected tenant to gain possession of the land, on which protected tenancy rights were recognized in favour of late Voggu Chinna Mallaiah and on the other extreme is the issue of delay and latches in seeking enforcement of such right.
17. There are two aspects on enforcement of a right by a citizen. First how the right is infringed by another person, be it State or a private person, and secondly, seeking enforcement of that right.
18. The first bridge petitioner requires to cross is to assert right of petitioner to have succeeded to the protected tenant. If PNR,J W.P.No.17103 of 2021 -9- petitioner crosses over this bridge, the second bridge to cross is enforcement of this right and restoration of possession.
19. As noted above, petitioner has not established any material to show that late Voggu Chinna Mallaiah was in occupation and enjoyment of Ac.50.29 guntas during his life time, has not alienated/relinquished his right of tenancy over Ac. 25.14 ½ and the petitioner has validly succeeded to the tenancy rights of late Voggu Chinna Mallaiah on Acs.50.29 guntas.
20. Assuming that petitioner has crossed this hurdle seamlessly, he requires to cross more serious hurdle, the delay and laches in seeking enforcement of a right.
21. A decision of an authority of the State or its instrumentality concerning a parcel of land may impact the person vis-à-vis State/its instrumentality or a dispute inter se two private persons. Armed with the decision made in his favour a person may deal with the land, including sale, mortgage, gift etc. In the process he may create third party interests. Over a period of time, property may change hands. In such circumstances, any decision of the writ court granting relief in a writ petition filed after long lapse of time of arising cause of action may have cascading effect and impact the rights of third parties, who are no way responsible for this indiscretion of the petitioner.
22. Thus, whenever an issue of delay in asserting right comes up for consideration, the Court has to tread cautiously, lift the veil on claims of the petitioner, assess the consequences before entertaining the writ petition. While the claim of the petitioner on PNR,J W.P.No.17103 of 2021
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illegal occupation by third parties on land belonging to a protected tenant may be valid and in law entitled to restoration of possession, but the burden is heavy on him first to cross the hurdle of delay and latches. He cannot rise like a phoenix, allow crystallizing rights in third parties and make others suffer for his indiscretion.
23. In Shankara Coop. Housing Society Ltd. v. M. Prabhakar and others6 on detail consideration of the various judgments on the issue of maintainability of the writ petition filed after long lapse of time, the Supreme Court laid down the parameters for entertaining the writ petition. They read as under:
"The relevant considerations, in determining whether delay or laches should be put against a person who approaches the writ Court under Article 226 of the Constitution is now well settled. They are:
(1) there is no inviolable rule of law that whenever there is a delay, the Court must necessarily refuse to entertain the petition; it is a rule of practice based on sound and proper exercise of discretion, and each case must be dealt with on its own facts.
(2) The principle on which the Court refuses relief on the ground of laches or delay is that the rights accrued to others by the delay in filing the petition should not be disturbed, unless there is a reasonable explanation for the delay, because Court should not harm innocent parties if their rights had emerged by the delay on the part of the petitioners. (3) The satisfactory way of explaining delay in making an application under Article 226 is for the petitioner to show that he had been seeking relief elsewhere in a manner provided by law. If he runs after a remedy not provided in the Statute or the statutory rules, it is not desirable for the High Court to condone the delay. It is immaterial what the petitioner chooses to believe in regard to the remedy. (4) No hard and fast rule, can be laid down in this regard. Every case shall have to be decided on its own facts. (5) That representations would not be adequate explanation to take care of the delay."
24. In that case, there was delay of 15 years and the Court noticed that there was no serious effort made to prosecute the litigation and the reasons for delay in instituting the writ petition were not properly explained and on the ground of inordinate delay 6 2011 (4) ALD 112 (SC) PNR,J W.P.No.17103 of 2021
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in instituting the writ petition, the issue was answered against the State.
25. A plain reading of section 38-E(2) makes it clear that, Act does not prescribe limitation to exercise power to restore possession of land to protected tenant. Such power can be exercised suo moto or on an application. It is a sweeping power. Such power can be invoked to remedy injustice caused to a protected tenant or his successor in interest.
26. There are similar such provisions in various enactments vesting power in an authority to remedy the injustice and to give effect to statutory intendment.
27. On the scope of availing of statutory remedy to enforce right vested in a person, the principle of law is well settled. Such right has to be assailed within a reasonable time.
28. From the long line of precedent decisions, it is manifest that though Constitutional Courts have broadly conceded power of statutory authority to enforce a statutory right of a person at any time when the statute has not prescribed time limit, but were concerned about manner of exercise of such power in individual cases. Courts expressed displeasure in invoking such power after long lapse of time and upsetting settled issues. This is because that availing such remedy after long lapse of time would upset legitimate expectation flowing out of a decision made by executive authority long ago; accrual of certain rights flowing out of such decisions; accrual of third party interests; and fundamental principle of law that there should not be perpetual uncertainty on PNR,J W.P.No.17103 of 2021
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any issue. In other words, there must be some finality to an issue. Therefore, courts have laid down limits to exercising such power. Courts have held that even in the absence of fixing time limit to avail statutory remedy such remedy ought to be exercised within reasonable time. However, what is reasonable time is left to be decided in individual cases.
29. In Ithagani Lachaiah and others Vs Joint Collector and Additional District Magistrate, Nalgonda and others7, relied upon by learned counsel for petitioner, on review of precedent decisions on the scope of entertaining revision after long lapse of time, this Court held that:
"33. In the several decisions uniformly it is held that whenever there is inordinate delay in invoking the provisions of a statute, an application should be rejected on that ground alone. Principle reiterated from time and again that even if no time limit is prescribed in the statute for exercise of power, such power has to be exercised within reasonable time and what is reasonable time depends on the facts of each case. In the cases discussed above, the delay in filing an application for suo moto exercise of power ranged between five years in one case to 12 to 15 years in another case and delay of 20 years and more in other cases. The Supreme Court held it is unreasonable to exercise power in such cases.
30. At this stage, it is appropriate to note the observations of Hon'ble Sri Justice T.S.Thakur, as he then was, while concurring with view taken by Sri Justice C.Nagappan in Joint Collector, R.R.District and another Vs D.Narsing Rao and others8. It reads as under :
"To sum up, delayed exercise of revisional jurisdiction is frowned upon because if actions or transactions were to remain forever open to challenge, it will mean avoidable and endless uncertainty in human affairs, which is not the policy of law. Because, even when there is no period of limitation prescribed for exercise of such powers, the intervening delay, may have led to creation of third party rights that cannot be trampled by a belated exercise of a discretionary power especially when no cogent explanation for the delay is in sight. Rule of law it is said must run closely with the rule of life. Even in cases where the orders sought to be revised are 7 2015 (4) ALD 490 8 2015 (3) ALD 1 (SC) PNR,J W.P.No.17103 of 2021
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fraudulent, the exercise of power must be within a reasonable period of the discovery of fraud. Simply describing an act or transaction to be fraudulent will not extend the time for its correction to infinity; for otherwise the exercise of revisional power would itself be tantamount to a fraud upon the statute that vests such power in an authority."
31. In M/s.Dehri Rohtas Light Railway Company Limited Vs. District board, Bhojpur and others9, the Hon'ble Supreme Court held:
"13.... The rule which says that the Court may not enquire into belated and stale claim is not a rule of law but a rule of practice based on sound and proper exercise of discretion. Each case must depend upon its own facts. It will all depend on what the breach of the fundamental right and the remedy claimed are and how delay arose. The principle on which the relief to the party on the grounds of laches or delay is denied is that the rights which have accrued to others by reason of the delay in filing the petition should not be allowed to be disturbed unless there is a reasonable explanation for the delay. The real test to determine delay in such cases is that the petitioner should come to the writ court before a parallel right is created and that the lapse of time is not attributable to any laches or negligence. The test is not as to physical running of time. Where the circumstances justifying the conduct exist, the illegality which is manifest cannot be sustained on the sole ground of laches........."
32. Along with the writ petition paper book, petitioner filed the provisional tenancy register as Ex.P3, Section 38-E certificate as Ex.P4, the application filed before the Tahsildar as Ex.P1 and the notice issued on their behalf by the Advocate as Ex.P2.
33. From the history dating back to 23.07.1975 when tenancy certificate was issued to Voggu Chinna Mallaiah, petitioner directly stepped into the present age, in the process crossing the 45 years mile stone, in one stroke. The averments in the affidavit filed in support of the writ petition, and the application filed before the Tahsildar are blissfully silent on status of land after Section 38-E certificate was issued on 23.7.1975 in favour of late Voggu Chinna Mallaiah, and when third party entered into possession and what steps were taken to claim back the possession by the protected tenant and his successors after his death. There is no whisper 9 (1992)2 SCC 598 PNR,J W.P.No.17103 of 2021
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when they were displaced from the land. Strangely, though the protected tenant died on 21.02.2000, for more than 21 years, petitioner kept quiet and did not even apply for recognizing his right to succeed to late Voggu Chinna Mallaiah under Section 40 of the Act, 1950. The entries in the revenue records are not placed before this Court to disclose how they reflect all along and when for the first time possession of third parties was noticed.
34. There is no material placed on record to show present status of land and whether any further transactions have taken place. Petitioner vaguely asserts that third parties have claimed to have entered into possession of land to an extent of Acs.25.14½ guntas based on purchase stated to have been made by them from the land lord. The averments are also silent on when such purchase was made, and was there any protest lodged against the purchase. It is not known whether the protected tenant himself alienated the land. There is absolutely no whisper on why petitioner kept quiet so long and resorted to the statutory remedy for the first time only on 1.4.2021 by filing a comprehensive application under Section 40 of the Act, 1950 and under Section 38-E (2) of the Act for recognizing their right to succeed and to claim possession. At this stage, it is also appropriate to note that petitioner admits of possession of land to an extent of Ac.25.14 ½ guntas. This shows that all along some one is in occupation of adjacent balance extent of land, but petitioner blissfully closed his eyes. These are crucial details having a bearing on petitioner's right to assert his interest and claim back possession. In the absence of these details, it cannot be assumed that delay is justified and there were no latches.
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35. In the absence of the essential details and missing links in the chain of events, the Court cannot appreciate the contention of the learned counsel for the petitioner on his claim to restore possession and extend its long arm of justice and equity to grant the prayer.
36. The Writ Petition fails on the ground of delay and latches. It is accordingly dismissed. Pending miscellaneous petitions, if any, shall stand closed.
__________________________ JUSTICE P.NAVEEN RAO Date: 10.08.2021 Kkm/tvk PNR,J W.P.No.17103 of 2021
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HONOURABLE SRI JUSTICE P.NAVEEN RAO WRIT PETITION NO.17103 of 2021 Date: 10.08.2021 KKM/tvk