Andhra HC (Pre-Telangana)
Vatlepu Saidulu, S/O.Gurvaiah,Aged : ... vs Thummurugoti Sarojanamma, ... on 21 March, 2014
Author: M.S.Ramachandra Rao
Bench: M.S.Ramachandra Rao
THE HONOURABLE SRI JUSTICE M.S.RAMACHANDRA RAO
C.R.P.Nos.33 of 2014 AND BATCH
21-03-2014
Vatlepu Saidulu, S/o.Gurvaiah,Aged : 52 years, R/o.Fathepuram
Village,Nereducherla Mandal,Nalgonda District and
others...Applicants/Appellants/Petitioners
Thummurugoti Sarojanamma, W/o.Vasudev Rao,R/o.Flat No.402, TNR Enclave, Road
No.1,SRK Puram, Hyderabad and others....Respondents/Respondents/Respondents
!Counsel for the Applicants/
Appellants/Petitioners :Sri M. Rajamalla Reddy
^Counsel for the Respondents/
Respondents/Respondents : Sri D. Jaipal Reddy
<GIST:
>HEAD NOTE:
?Cases referred:
1. 1999 (5) SCC 590
2. 2001 (8) SCC 801
3. 1957 (1) An.W.R. 478
4. 1987 (2) ALT 749 D.B.
5. AIR 1974 SC 1126
6. 1966 (2) AnWR 48 (S.C.)
7. 1987 (2) ALT 749 F.B.
8. AIR 1983 AP 34
9. (1978) 1 Andh.L.T. 16 (NRC)
The Court made the following : [order follows]
THE HONOURABLE SRI JUSTICE M.S. RAMACHANDRA RAO
C.R.P.Nos.33 of 2014; 5051 of 2013 & 5044 of 2013
COMMON ORDER:
Since the issues raised in these Revisions are common, they are being disposed of by this common order.
2. The respective 1st respondents in each of these Revisions are the landholders corresponding to the petitioners in each of these Revisions.
3. The petitioners in these three Revisions claim to be protected tenants in respect of the lands in Sy.Nos.249, 256, 257 and 258 of Fathepuram Village, Nereducherla Mandal, Nalgonda District.
4. The brief history leading to the filing of these Revisions is as under:
(i) In the year 1990, the petitioners along with others filed applications before the Revenue Divisional Officer, Miryalaguda in case No.B/7202/1990 for grant of certificates under Section 38-E of the Act and also sought summary eviction of the respective 1st respondents under section 98 of the Act. They contended that they are in possession of certain parcels of land in the above survey numbers as tenants; as per the provisions of the Andhra Pradesh (Telangana Area) Tenancy and Agricultural Lands Act, 1950 (for short, 'the Act'), they were entitled to claim protected tenancy rights ;
that they lost possession over the properties before the notified date; and that they had filed an application before the concerned Mandal Revenue Officer for restoration of possession, but he did not take any action.
(ii) By order dt.31.03.1992, the Revenue Divisional Officer, Miryalaguda dismissed their petitions.
(iii) Challenging the same, they filed an appeal before the Joint Collector, Nalgonda in case No.C3/JC/TA/22/92.
(iv) The said appeal was dismissed on 30.09.1994 holding that the Revenue Divisional Officer, Miryalaguda was not competent to pass orders for restoration of possession under Section 32 of the Act and that the A.R.D.O. (L.R.) is the authority for issuing certificate under Section 38-E of the Act.
(v) This was challenged in CRP.No.1637 of 1995 by the petitioners.
(vi) The said CRP was dismissed by this Court on 28.11.1996 holding that there is no illegality or irregularity in the order of the Revenue Divisional Officer dismissing the application filed by petitioners for grant of certificates under Section 38-E as well as for restoration of their possession over the subject lands. This Court also held that application under Section 98 of the Act for summary eviction of the landlords was rightly rejected by the Revenue Divisional Officer and the Joint Collector, since there is a specific provision for issuance of certificates under Section 38-E as well as for restoration of possession of the tenant who lost his possession under the Act (i.e., Section
32). This Court observed that it is open for the petitioners to file applications before the concerned authorities as per prescribed procedure for obtaining certificates under Section 38-E for which there is no time limit prescribed under the Act and also for recovery of possession. This Court directed that when such applications are filed, the authorities concerned would take up enquiry and pass orders within six months.
(vii) In view of the observations made by this Court in CRP.No.1637 of 1995, the petitioners filed applications under Section 32 of the Act before the Mandal Revenue Officer, Nereducharla. They were numbered as case No.F/188/95. Six sets of tenants including the petitioners/their predecessors-in-title were applicants there. The respective 1st respondents in the Revisions were also parties.
(viii) By order dt.12.03.1998, the Mandal Revenue Officer allowed the said applications and declared that the petitioners are protected tenants, that their tenancy is subsisting and they are entitled to be put back in possession under Section 32 of the Act. In the said order it is also observed that the original Protected Tenancy (P.T) Register and other material papers like extract of provisional list under Section 38-E published by the A.R.D.O. (L.R.) and Pahani Patrikas were verified; that the verification of the P.T. Register showed that the petitioners got vested right under the provisions of the Act; and on the basis of the entries in the P.T. Register, the petitioners are entitled to be declared as protected tenants over the land mentioned against their names. It therefore held that the landholders or third parties who claim to have purchased from the landholders are not entitled to be in occupation of the land and are liable to be evicted.
(ix) This was challenged before the Joint Collector, Nalgonda in case Nos.C3/JC/TA/25/98, C3/JC/TA/26/98, C3/JC/TA/27/98 and C3/JC/TA/28/98. These appeals were dismissed.
(x) Challenging the same CRP.Nos.2691, 2692, 2994 and 2997 of 2000 were filed in this Court.
(xi) This Court dismissed the Revisions and refused to interfere with the orders passed by the Mandal Revenue Officer and the Joint Collector. This Court observed :
"It is further submitted that though the Survey Numbers in question find place in the provisional list of the protected tenants to whom the ownership of the land has to be transferred under Section 38-E of the A.P. (T.A.) Tenancy and Agricultural Act, the said survey numbers do not find place in the final list of the protected tenants to whom the ownership of the land is to be transferred under Section 38-E of the Tenancy Act. This contention has not been pleaded either before the Mandal Revenue Officer or before the Joint Collector (Appellate Authority) and even otherwise there cannot be any such records where the particulars of the protected tenancy disappeared from the list of the final register. If there is any surrender, there should be some endorsement and the said survey number shall be rounded off to show that there was surrender of the protected tenancy. There cannot be any such register. I am not inclined to go into the controversial aspects at this stage."
There was no further challenge to this order and it became final.
(xii) Thereafter, on an application made by the petitioners, the Revenue Divisional Officer, Miryalaguda issued to them ownership certificates under Section 38-E of the Act vide File No.B1/2687/2002.
(xiii) Challenging the same, appeals No. F2/10728/2005, F2/10729/2005 and F2/10730/2005 were filed by respective 1st respondents herein before the Joint Collector, Nalgonda.
(xiv) By order dt.04.09.2006, the Joint Collector set aside the certificates under Section 38-E issued to the petitioners and remanded the matter to the Revenue Divisional Officer to conduct a fresh enquiry after following the provisions of Section 40 and also Section 38-E of the Act. This order became final and was not challenged.
(xv) Subsequently, the Revenue Divisional Officer, Miryalaguda on 17.11.2008 rejected the claim of the petitioners for issuance of ownership certificate under Section 38-E on the ground that they were not protected tenants. In this order he observed that there are no entries in the protected tenancy permanent record that the petitioners are recorded as protected tenants and that the lands in Sy.No.s 249, 256, 257 and 260 were not recorded as "tenant lands" and that in September, 2000, the then Mandal Revenue Officer had issued a certificate stating that these Survey numbers were not included in Protected Tenancy Register.
(xvi) The petitioners questioned this order in appeals F2/7269/2009, F2/7270/2009 and F2/7271/2009 before the Joint Collector, Nalgonda. (xvii) By order dt.24.11.2012, these appeals were dismissed. The appellate authority held that the petitioners did not file any record to establish their claim that they were protected tenants; that the file of the Revenue Divisional Officer at Pgs.253 to 257 indicated that lands in Sy.Nos.249 , 256 to 261 were not recorded in the Protected Tenancy Register as certified by the Superintendent of the Mandal Revenue Office, Nereducharla; that the original Protected Tenancy Register in Red color was found stitched after page No.521 of the Revenue Divisional Officer's file; another Register in Blue color containing the details of tenants other than protected tenants was also found in the same file after the Red color register; although the land in S.Nos.249 and 259 were not found in the Protected Tenancy Register in Red color, they were found in the Blue register containing the details of tenants other than protected tenants; and since the benefit of declaring ownership under Section 38-E was restricted only to protected tenants, it was rightly denied to petitioners since they are not recorded as protected tenants. He also held that when orders under Section 32 of the Act were passed, the issue was not examined properly with reference to original Protected Tenancy Register and the records and it was wrongly concluded that the above lands were covered by protected tenancy. Surprisingly, he also opined that the order dt.12.09.2002 in CRP.Nos.2691, 2692, 2994 and 2997 of 2000 and the observations made therein that the petitioners are protected tenants of the subject lands was contrary to the original Protected Tenancy Register since they are found recorded in the Blue register as tenants only but not as protected tenants in Red color register. He criticized the respondents for not appraising the High Court properly by producing certified copies of the Protected Tenancy Register.
5. Challenging the same these Revisions are filed.
6. Heard Sri M. Rajamalla Reddy, counsel for petitioners and Sri D. Jaipal Reddy, counsel for the respective 1st respondents.
7. The counsel for petitioners contended that the Joint Collector and the Revenue Divisional Officer erred in denying certificates under Section 38-E of the Act to the petitioners and they ought to have held that the petitioners are either protected tenants/their legal representatives and they are entitled to such certificates; that in the order dt.12.03.1998 of the Mandal Revenue Officer, Nereducharla Mandal in Case No.F/188/94 it was held that petitioners are protected tenants/ legal representatives of protected tenants and the said finding was confirmed by this Court in its order dt.12.09.2002 in CRP.Nos.2691 of 2000 and batch; that the said finding is binding on the Joint Collector and the Revenue Divisional Officer on the principle of issue estoppel and res judicata; that it was not open to the respondents to contend that the findings of the High Court do not bind them. He contended that they ought not to have relied upon the Blue color register or the Red color register. He relied on Hope Plantations Ltd. v. Taluk Land Board, Peermade1 and Tatoba Bhau Savagave v. Vasantrao Dhindiraj Deshpande2.
8. In Hope Plantations Ltd. (1 supra), the Supreme Court held :
"26. It is settled law that the principles of estoppel and res judicata are based on public policy and justice. Doctrine of res judicata is often treated as a branch of the law of estoppel though these two doctrines differ in some essential particulars. Rule of res judicata prevents the parties to a judicial determination from litigating the same question over again even though the determination may even be demonstrably wrong. When the proceedings have attained finality, parties are bound by the judgment and are estopped from questioning it. They cannot litigate again on the same cause of action nor can they litigate any issue which was necessary for decision in the earlier litigation. These two aspects are "cause of action estoppel" and "issue estoppel". These two terms are of common law origin. Again, once an issue has been finally determined, parties cannot subsequently in the same suit advance arguments or adduce further evidence directed to showing that the issue was wrongly determined. Their only remedy is to approach the higher forum if available. The determination of the issue between the parties gives rise to, as noted above, an issue estoppel. It operates in any subsequent proceedings in the same suit in which the issue had been determined. It also operates in subsequent suits between the same parties in which the same issue arises. Section 11 of the Code of Civil Procedure contains provisions of res judicata but these are not exhaustive of the general doctrine of res judicata. Legal principles of estoppel and res judicata are equally applicable in proceedings before administrative authorities as they are based on public policy and justice."
9. In Tatoba Bhau Savagave (2 supra), the Supreme Court held:
"9. The first contention of Mr Lalit need not detain us. Firstly, the question of partition of lands of the joint family was found against the appellants in the first round of litigation by the Revenue Authorities. On 3-7-1979, in Special Civil Application No. 744 of 1975, the High Court held that by virtue of partition in 1944, the first respondent did not get any share in Survey No. 98 while his brothers got 1/3rd share each in Survey No. 99. The status of the joint family had come to an end and the shares of the members of the erstwhile joint family had been defined. Further, the High Court upheld the order of the Additional Commissioner that the first respondent was entitled to apply under Section 43-1B of the Act for possession of the 1/3rd share in Survey No. 99 and it was made clear that the order would be subject to the findings of the Collector on Issues 5 and 6. Thus, having confirmed the findings recorded by the Revenue Authorities the case was remanded to the Collector to decide Issues 5 and 6 which related to determination of the total land held by the first respondent and the extent of the land he would be entitled to resume. The appellants are now barred from agitating the same point by the principle of "issue estoppel". (See: Hope Plantations Ltd. v. Taluk Land Board.) Secondly, when the Revenue Authorities concurrently found that there was partition of joint family lands by metes and bounds which was accepted by the High Court in the earlier round of litigation, this Court in its jurisdiction under Article 136 will not permit the appellants to agitate the concurrent findings of fact in proceedings after remand."
10. He also contended that the finding in a proceeding under Section 32 of the Act that the applicant for restoration of possession under Section 32 is a protected tenant is binding in an enquiry under Section 38-E of the Act. He relied upon the decision in Sharfuddin v. Sama Yelluga3.
11. Per contra, the learned counsel for respondents contended that ownership certificates under Section 38-E of the Act were granted to the respective petitioners without issuing notice to corresponding landholders/1st respondents and without conducting any enquiry; therefore, they were set aside in the order dt.04.09.2006 of the Joint Collector and the matter was again remanded to the Revenue Divisional Officer, Miryalaguda for fresh disposal; that thereafter, the Revenue Divisional Officer on 17.11.2008 had rejected the claim of the petitioners and the same was rightly confirmed by the Joint Collector in his order dt.24.11.2012; that subsequently, pattadar passbook and title deeds were issued to the respondents under the provisions of the Andhra Pradesh (Rights in Land and Pattadar Passbooks) Act, 1971 and that the respective 1st respondents were in possession of the above lands. He relied on certain proceedings of the Land Reforms Tribunal, Huzurnagar. He also contended that the finding that petitioners are protected tenants was not necessary for deciding an application under Section 32 of the Act for restoration of possession to the petitioners as the fact that the applicant under Section 32 is a mere tenant is sufficient for that purpose. Since such a finding was not necessary for allowing the applications under Section 32 of the Act, the said finding would not operate as res judicata and bar a fresh enquiry in proceedings under Section 38-E of the Act. He placed reliance on the Full Bench judgment of this Court in Sada v. The Tahsildar, Utnoor, Adilabad District4 in this regard.
12. I have noted the submissions of both sides.
13. As per the memos filed by the counsel for the petitioners (i) in CRP.No.5051 of 2013, the sole petitioner is interested in claiming a certificate under Section 38-E of the Act in respect of an extent of Acs.2.33 gts. in Sy.No.249 of Fatehpuram Village;
(ii) in CRP.No.5044 of 2013, the 1st petitioner is interested in claiming a certificate under Section 38-E of the Act in respect of an extent of Acs.1.16 gts. in Sy.No.256 of Fatehpuram Village; the 2nd petitioner is interested in claiming a certificate under Section 38-E of the Act in respect of an extent of Acs.2.32 gts. in Sy.No.256 of Fatehpuram Village; the 3rd petitioner is interested in claiming a certificate under Section 38-E of the Act in respect of an extent of Acs.1.23 gts. in Sy.No.257 of Fatehpuram Village; the 4th petitioner died; petitioner Nos.5 to 7, being his legal representatives, are interested in claiming a certificate under Section 38-E of the Act in respect of an extent of Acs.3.06 gts. in Sy.No.257 of Fatehpuram Village; and petitioner Nos.8, 9 and 10 are each interested in claiming a certificate under Section 38-E of the Act in respect of an extent of Acs.1.16 1/2 gts. in Sy.No.249 of Fatehpuram Village; and
(iii) in CRP.No.33 of 2014, the 1st petitioner is interested in claiming a certificate under Section 38-E of the Act in respect of an extent of Acs.9.39 gts. in Sy.No.258 of Fatehpuram Village; the 2nd petitioner died; his legal representatives/petitioner Nos.3 to 5 are interested in claiming a certificate under Section 38-E of the Act in respect of an extent of Acs.1.35 gts. in Sy.No.249 of Fatehpuram Village; the 6th petitioner is interested in claiming a certificate under Section 38-E of the Act in respect of an extent of Acs.1.35 gts. in Sy.No.249 of Fatehpuram Village; and petitioner Nos.7 and 8 are each interested in claiming a certificate under Section 38-E of the Act in respect of an extent of Acs.0.38 gts. in Sy.No.249 of Fatehpuram Village.
14. Section 32 of the Act states :
"32. Procedure of taking possession : --
(1) A tenant or an agricultural labourer or artisan entitled to possession of any land or dwelling house under any of the provisions of this Act may apply to the Tahsildar in writing in the prescribed form for such possession. (2) No landholder shall obtain possession of any land or dwelling house held by a tenant except under an order of the Tahsildar, for which he shall apply in the prescribed form.
(3) On receipt of an application under sub-section (1) or sub-section (2) the Tahsildar shall, after holding an enquiry pass such order thereon as he deems fit.
(4) Any person taking possession of any land or dwelling house otherwise than in accordance with the provisions of sub-section (1) or sub-section (2), as the case may be, shall, without prejudice to his liability to the penalty provided in Section 96, be liable to forfeiture of the crops, if any, grown on the land to the payment of such costs as may be awarded by the Tahsildar or by the Collector on appeal from the Tahsildar." (emphasis supplied)
15. A reading of the above provision indicates that in order to seek restoration of possession an applicant need only be a tenant or an agricultural labourer or an artisan entitled to possession of any land or dwelling house under the provisions of the Act. It is not necessary that the applicant be a protected tenant for deciding whether or not he is entitled to restoration of possession under Section 32.
16. In Smt. Ganga Bai v. Vijay Kumar5, in a suit to enforce a mortgage of joint family property executed by the father-manager, a preliminary decree for sale was passed only against the half-share of the father in the mortgage property and the suit was dismissed against the sons on the ground that the mortgage, not being for legal necessity, was not binding on the sons' interest under the Hindu Law. The sons filed an appeal not against any part of preliminary decree but only against the finding of the trial court that the partition between the father and sons affected subsequent to the mortgage in the suit was a sham and colorable transaction. The Supreme Court held that not only was the appeal against a mere finding not maintainable, since the matter regarding partition was not directly and substantially in issue in the mortgage suit and as the finding given by the Trial Court in that respect was unnecessary, it had no impact on the decision of the suit and would not operate as res judicata.
17. In Thiruvalanchuli Vaithilingam Pillai Charities v. Vijayavalli Achi6, the Supreme Court reiterated the principle that a decision would operate as res judicata only if it is necessary for the purpose of the case in which it had been given. It held :
"Now, it seems to us perfectly clear that no question arose in Suit No.54 of 1904 as to the person who would succeed after her death to any property that might come to Kamakshi under a decree made in it. It was not necessary for the learned Subordinate Judge for the decision of any of the disputes that arose in that suit to say to whom the lands that went to Kamakshi would go on her death. It would, therefore, appear that the sentence in the judgment in Suit No.54 of 1904 on which the learned Counsel for the respondents relied could not operate as res judicata barring the present suit."
18. Therefore, from the above two decisions it is clear that if a finding was unnecessary for the purpose of adjudication of a case, such a finding would operate as res judicata in a subsequent case between the same parties. Since the finding that the petitioners are protected tenants was not necessary to be given while deciding an application under Section 32, and as it was only necessary to decide whether the applicants were tenants or artisans or agricultural laborer for granting relief under Section 32, I am of the opinion that the finding that the petitioners are protected tenants in the proceedings under Section 32 was unnecessary for granting relief to them therein and, therefore, would not constitute res judicata in the subsequent proceedings initiated by the petitioners for issuance of ownership certificate under Section 38-E of the Act.
19. Although the counsel for petitioners relied upon the decision in Sharfuddin (3 supra), to contend that the decision in proceedings under Section 32 of the Act would operate as res judicata in proceedings under Section 38-E of the Act, the said decision does not support such a view. In that case, in a civil suit filed for recovery of property, the defendants pleaded that they were protected tenants and that the Civil Court had no jurisdiction to entertain the suit in view of bar contained in Section 99 of the Act. The Trial court dismissed the suit. It was confirmed in first appeal. In the Second Appeal before this Court when the issue was again agitated, this Court held that under Section 35 of the Act if any question arises whether any person is a protected tenant or is to be deemed to be a protected tenant under Section 34 in respect of any land, the landholder or any person, claiming to be so deemed may, within one year from the commencement of the Act apply to the Tahsildar for a decision on the question; and the Tahsildar's declaration that a person is to be deemed to be a protected tenant (or a declaration to that effect by a Collector on an appeal from the decision of the Tahsildar or by the Board of Revenue on a Second Appeal) would be conclusive that a person is a protected tenant. This Court, therefore, held that the Civil Court's jurisdiction is excluded in respect of a question which is required to be settled by the Tahsildar, Collector or Board of Revenue under Section 35. Admittedly, in the present case, there is no decision under Section 35 in favour of the petitioners. The observations in the above decision can only be understood to mean that in a Civil Court if a person claims to be a protected tenant, he should be directed to approach the Tahsildar under Section 35 and seek a decision on that question. Such Court, for that purpose may adjourn the suit or it may dismiss the suit giving liberty to file a fresh suit. Therefore, the said decision is inapplicable to the present case.
20. Sections 34, 37, 37-A deal with different categories of protected tenants who are entitled to be treated as protected tenants under the Act.
21. Section 38-E deals with issuance of certificate of ownership to protected tenants. In so far as it is relevant, it states :
"S. 38-E. Ownership of lands held by protected tenants to stand transferred to them from a notified date:-
(1) Notwithstanding anything in this Chapter or any law for the time being in force or any custom, usage, judgment, decree, contract or grant to the contract, the Government may, by notification in the (Andhra Pradesh Gazette), declare in respect of any area and from such date as may be specified therein, that ownership of all lands held by protected tenants which they are entitled to purchase from their landholders in such area under any provision of this Chapter shall, subject to the condition laid down in sub-section (7) of Section 38, stand transferred to and vest in the protected tenants holding them and from such date the protected tenants shall be deemed to be the full owners of such lands;
Provided that where in respect of any such land, any proceeding under Section 19 or Section 32 or Section 44 is pending on the date so notified, the transfer of ownership of such land shall take effect on the date, on which such proceeding is finally decided, and when the tenant retains possession of the land in accordance with the decision in such proceeding.
Explanation:.....
(2) A certificate in the prescribed form declaring him to be the 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 land holder. 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 land holder and all other persons having any interest therein...."
Thus, to be treated as a protected tenant several conditions need to be fulfilled and the crucial one is set out in Sub-Section (7) of Section 38. It states :
"Section 38 - Right of protected tenant to purchase land :
... ... ...
(7) The right of a protected tenant under this section to purchase from his landholder the land held by him as a protected tenant shall be subject to the following conditions, namely:--
(a) If the protected tenant does not hold any land as a landholder the purchase of the land held by him as a protected tenant shall be limited to the extent of the area of a family holding for the local area concerned.
(b) If the protected tenant holds any land as a landholder, the purchase of the land held by him as a protected tenant shall be limited to such area as along with other land held by him as a landholder will make the total area of land that will be held by him as a landholder equal to the area of a family holding for the local area concerned:
Provided that the land remaining is more than the land which the protected tenant is entitled to purchase under this section, the first preference to purchase the said land, at the prevailing market price in the local area, shall vest in the protected tenant:
Provided further that in the case of purchase by any person other than the protected tenant, the rights and interests of the said tenant in the lease land, shall continue as before.
(c) The extent of the land remaining with the landholder after the purchase of the land by the protected tenant, whether to cultivate it personally or otherwise, shall not be less than two times the area of a family holding for the local area concerned.]"
22. A reading of the impugned orders passed by the Revenue Divisional Officer and the Joint Collector do not indicate that all the parameters set out in the above provisions of the statute have been considered while rejecting the claim of the petitioners. This fact is admitted even by the counsel for 1st respondent/plaintiff. Therefore, the orders of the Joint Collector in the appeals cannot be sustained.
23. Rule 4 of the Andhra Pradesh (Telangana Area) Protected Tenants (Transfer of Ownership of Lands) Rules, 1973 states as under:
"4. Enquiry :--
(1) As soon as may be after the issue of the notification under sub-
section (1) of Section 38-E, the Tribunal shall, after taking into consideration the tenancy records, if any, prepared and maintained under the Act and any other record of rights or revenue accounts if any, for the time being in force, and after holding or causing to be held summary enquiry in respect of the lands held by the protected tenants and their respective landholders, determine the extent of lands held by the landholders on the date notified under Section 38-E, and the extent which the protected tenant is entitled to purchase from the landholder and prepare a provisional list in Form I showing the names of all protected tenants to whom the ownership is deemed to have been transferred under Section 38-E and the extent and description of land so transferred and vested in the protected tenants.
(2) The provisional list prepared under sub-rule (1) together with a notice inviting objections thereto and fixing a date for hearing such objections (not being later than 15 days from the date of publication) shall be caused to be published by the Tribunal by affixing a copy thereof on the notice board of the village chavidi or at any other conspicuous place in the village and by beat of tom-tom in the village. A copy of the list together with the notice shall also be communicated to the landholders and the protected tenants concerned at their usual place of residence, if any, in the village.
(3) On the date fixed under sub-rule (2), or on any subsequent date to which the enquiry may be adjourned, the Tribunal shall after hearing objections, if any, received from any landholder, protected tenant or any other interested person, and making such further enquiry as may be necessary, declare the provisional list with or without modifications, as a final list and cause it to be published by affixing a copy thereof on the notice board of the village chavidi or at any other conspicuous place in the village and by beat of tom-tom in the village"
24. From the above provision it is clear that the provisional list of protected tenants, prepared in sub-rule (1) together with a notice inviting objections thereto and fixing a date for hearing such objections, should not only be caused to be published by the Tribunal by affixing a copy thereof on the notice board of the village chavidi or at any other conspicuous place in the village and by beating of tom-tom in the village, but a copy of the list of protected tenants together with the notice should be also communicated to the landholders and the protected tenants concerned at their usual place of residence, if any, in the village. There is no dispute that in the present case as found by the Mandal Revenue Officer, Nereducherla in Case No.F/188/94, the names of the petitioners or their predecessors-in-title were found in the original Protected Tenancy Register and other material like extract of provisional list under Section 38-E published by the A.R.D.O. (L.R.) and also Pahani Patrikas. But in the order of the Revenue Divisional Officer, Miryalaguda (impugned in these Revisions), i.e., appeal case No. B1/2687/2002 and in the subsequent orders of the Joint Collector (impugned herein), it is stated that the names of the petitioners or their predecessors-in-title were not found in the Protected Tenancy Permanent Records and Registers. It is not known whether the procedure in Rule.4 was followed or not before deleting their names. The importance of this Rule was considered in the Full Bench decision of this Court in Sada v. The Tahsildar, Utnoor, Adilabad District7. In that case this Court held :
"51. In the inquiry under S. 38-E(2) read with R. 4 of the Rules of 1973, the Tribunal considers the matter on the above basis. This it does by considering the tenancy records or other record of rights or revenue accounts and after determining the extent of holding of the protected tenant and the landholder and provided these extents are within the limits mentioned in S. 38(7). If under Ss. 19, 32 and 44, the protected tenants have ceased to be such, by the date of notification, there is no question of declaring them to be owners. If the proceedings under Ss. 19, 32 and 44 are pending, the inquiry under S. 38-E(2) is not, to be commenced till they are finally concluded in favour of the protected tenants. The Tribunal decides the extent which the protected tenant is entitled to purchase and prepares a provisional list in Form I, then objections are invited as per the procedure prescribed. Under Rule 4 (3) the objections of the landholder are heard. Objections of any other interested persons, if filed, are also heard and then, the certificate is issued in Form II to the protected tenant and under Form III to the landholder. Once the ownership certificate is issued, it is from that date 'conclusive evidence' as against the landholder and all other persons having any interest therein. It clearly takes effect, retrospectively, from the date of notification issued under Section 38-E(1). As stated under Point No. 2, the transfer of ownership is not kept in abeyance during the inquiry under S. 38-E(2), and once it is issued it binds the landholder and all persons claiming through him whether they are agreement- holders or vendees and it also binds all other persons having any interest therein, provided the principles of natural justice mentioned in the next paragraphs are satisfied.
52. We are in entire agreement with the learned Judges in Chennaiah's8 case that once the certificate is issued, and has, after any proceedings in appeal or revision, become final, it is conclusive proof of ownership and the validity thereof cannot be challenged by the landholder or anybody claiming through him or 'other persons having any interest therein', (as stated in S. 38-E(2)) in proceedings, for delivery of the land under the new proviso to S. 38-E(2) or in any other collateral proceedings, provided the principles of natural justice hereunder mentioned (see next para) are satisfied. Section 99 of the Act also bars the jurisdiction of the Civil Courts in this regard.
53. It was repeatedly stressed by Sri B. Subhashan Roddy that, if that be the position, it would cause great hardship to landholders and persons claiming through them and to other persons interested in the land inasmuch as it would violate principles of natural justice. In our view, this contention is not correct. The ownership-certificate Rules of 1973 provide for a procedure consistent with principle of natural justice. As held by Jeevan Reddi, J. in P. M. Narayanaswamy v. The Addl. R.D.O. (LRA)9, the mere affixture of a copy of the provisional list on the notice board of the village chavidi or any other conspicuous place in the village, or by beat of tom-torn in the village is not deemed sufficient notice by the rule-making authority itself since it has taken care to provide that such list should also be communicated to the landholders and the protected tenants individually at their usual place of residence. If the provisional list contains only the names of those tenants who, according to the Tribunal are entitled to be treated as owners, then the other protected tenants will have no opportunity or occasion to submit their objections. The general publication of the provisional list in the village is not sufficient, which is evident from the very fact that R. 4(2) itself provides for individual communication of the said list to both the landholders and protected tenants.
54. When such procedure consistent with principles of natural justice has been laid down in the Rules, we fail to see how any question of hardship or injustice can legitimately remain even after the issuance of certificate under S. 38-E(2) after following the said procedure. It is for that reason that the certificate if it has become final, becomes, conclusive evidence' as stated in S. 38-E(2). All objections to the very grant of the certificate must be raised before it is granted or in appeals or revision and cannot be permitted to be raised at the stage of delivery proceedings under the new proviso to S. 38E(2). We hold accordingly on point No. 3."(emphasis supplied)
25. This point also needs to be inquired into and a finding needs to be given by the Revenue Divisional Officer as to whether the procedure under Rule 4 (2) was followed while removing the names of the petitioners or their predecessors-in- title from the provisional list of protected tenants at the time of preparation of the final list of protected tenants.
26. Therefore, in the light of the above reasoning, the orders dt.24.11.2012 of the Joint Collector, Nalgonda in F2/7269/2009, F2/7270/2009 and F2.7271/2009 passed in appeals under Section 90 of the Act are set aside and the said appeals are remitted back to the Revenue Divisional Officer, Miryalaguda. He shall decide the issue whether the petitioners are entitled to ownership certificates under Section 38-E of the Act strictly in accordance with the provisions of the Act and in the light of the observations made supra.
27. The said exercise shall be completed within a period of four (4) months from the date of receipt of a copy of this order. It is made clear that the parties are entitled to place all material available for adjudication of their respective rights before the Revenue Divisional Officer, Miryalaguda.
28. The Civil Revision Petitions are accordingly allowed as above. No costs.
29. Miscellaneous applications pending, if any, shall stand closed. __________________________________ JUSTICE M.S.RAMACHANDRA RAO Date : 21-03-2014