Andhra HC (Pre-Telangana)
05.11.2012 vs Boina Golla Bagamma And Others
Author: L.Narasimha Reddy
Bench: L.Narasimha Reddy
THE HON'BLE MR JUSTICE L.NARASIMHA REDDY
Civil Revision Petition No.5030 of 2001
05.11.2012
Boina Golla Bagamma and others
Smt.C.Padmaja and others.
Counsel for petitioners: Sri E.Manohar
Counsel for Respondent No.1 : Sri V.S.R.Anjaneyulu
^Counsel for Respondent No.2: Sri Kasa Jagan Mohan Reddy
^Counsel for Respondent No.3: Sri E.Ajay Reddy
<GIST:
>HEAD NOTE
?Cases referred
ORDER:
This revision is filed under Section 91 of the A.P. (Telangana Area) Tenancy and Agricultural Lands Act, 1950 (for short 'the Act'). The petitioners challenge the order, dated 23.04.2001, passed by the Joint Collector, Ranga Reddy District, in an appeal preferred by the respondents herein, under Section 90 of the Act. The appeal, in turn, was directed against the order, dated 11.11.1997, passed by the Revenue Divisional Officer, Chevella, Ranga Reddy District (RDO). The facts that are relevant for the purpose of this case are:
The 1st petitioner is the wife of Mallaiah, and petitioners 2 to 4 are their children. One Mohd. Baquar Khan, was the owner of Acs.27.22 guntas of land in survey No.69 of Miyapur Village. It is stated that Mallaiah was declared as protected tenant in respect of Acs.5.00 of land in that survey number. Ownership certificate under Section 38-E of the Act, in respect of Acs.5.00 of land in that survey number, was issued by the RDO, on 15.05.1975, in the name of one Golla Muthaiah. Mallaiah is said to have died, on 28.02.1993. Thereafter, the petitioners filed an application before the Mandal Revenue Officer, Serelingampally, to declare them as legal heirs of Mallaiah. A certificate to that effect was issued, on 29.09.1997. They have also filed an application before the RDO with a request to correct the entries, particularly in the ownership certificate, dated 15.05.1975 by substituting the name of Mallaiah in the place of Muthaiah. The application was ordered vide proceedings, dated 11.11.1997.
The petitioners filed an application under Section 32 of the Act, for restoration of possession of the land covered by the ownership certificate. Orders were passed against different individuals, who were found to be in possession. The 1st respondent is one such person, in respect of about Ac.0.15 guntas of land.
The respondents and certain others filed as many as five appeals challenging the orders, dated 11.11.1997, before the Joint Collector. Through a common order, dated 23.04.2001, the Joint Collector, recorded certain findings as to the identity of the land, nature of rights held by various individuals, and ultimately, remanded the matter to the RDO, observing that there is doubt as to the very identity of the protected tenant. The petitioners filed five revisions before this Court challenging the orders passed in the respective appeals. Out of them, four revisions were initially allowed, almost by setting the respondents therein ex parte. Thereafter, when applications were filed for setting aside those orders, the same result remained. It is brought to the notice of this Court that SLPs filed by the affected parties were dismissed for default. This is the left over revision.
Sri E.Manohar, learned Senior Counsel for the petitioners, submits that almost all the revisions that were filed against the common order were allowed, and this revision also deserves to be allowed in the same manner. He contends that though the Joint Collector expressed his view on the merits of the matter, he remanded the cases to the RDO, without any basis. He further submits that the respondents did not choose to file any revision, vis--vis the findings that were recorded against them, by the appellate authority. Sri V.S.R.Anjaneyulu, learned counsel for the 1st respondent, submits that the ownership certificate issued under Section 38-E of the Act, in favour of Muthaiah, in the year 1975, was altered, by substituting the name of Mallaiah, after lapse of 22 years, that too, after the death of Mallaiah. He contends that the very exercise undertaken by the RDO was untenable and having noticed the uncertainty about the identity of the protected tenant, the appellate authority has rightly remanded the matter. He submits that the respondents in the other four revisions did not have any subsisting grievance, since it was held that the order, dated 11.11.1997, does not affect their rights vis--vis the remaining extent of Acs.22.22 guntas, in survey No.69 of Miyapur Village and that the case of the petitioners stands on a different footing. Learned counsel further submits that when an application was filed under Section 32 of the Act for recovery of possession of the land purchased by the respondents, a notice, dated 09.07.1999, was issued by the Mandal Revenue Officer, Serilingampally, requiring the 1st respondent to vacate the land. It is also stated that W.P.No.16468 of 1999 filed before this Court challenging the said notice was allowed observing that there is violation of principles of natural justice. He submits that the petitioners cannot be said to have suffered any detriment on account of remand of the matter to the RDO. There are two principal stages in process of conferment of rights on tenants, under the Act. The first stage is recognition of a person as protected tenant and issuance of a certificate to that effect. Once a person is declared as protected tenant, virtually he gets immunity from being evicted, except under extraordinary circumstances. The next stage is the conferment of rights of ownership. Depending upon the extent held by the land holder, and the eligibility of the protected tenant, ownership rights are conferred upon the latter, by issuing certificate under Section 38-E of the Act. Here itself, it is essential to mention that the Act prescribes a mechanism for recovery of possession of the land, by the protected tenant, in case he is dispossessed from the land, as regards which he is declared as tenant. He can file an application under Section 32 of the Act for restoration of possession. The Tahasildar is under obligation to restore it, without reference to the question of limitation or adverse possession. Similar facility is created, in respect of lands as regards which a certificate under Section 38-E of the Act is issued. An application, in such cases, is required to be made under proviso to sub-section (2) of Section 38-E of the Act.
The petitioners claim that Mallaiah was declared as protected tenant, in respect of Acs.5.00 of land, and that a certificate was issued to him. An ownership certificate under Section 38-E of the Act in respect of Acs.5.00 of land was issued in favour of Mr.Golla Muthaiah. No dispute as such arose during the life time of Mallaiah. After the death of Mallaiah in 1993, the concerned authority has declared the petitioners as his legal heirs, through order, dated 29.09.1997. An application filed by them for rectification of the entries, in the certificate dated 15.05.1975, was entertained and the name of Mallaiah was substituted the name of Golla Muthaiah. Based upon the said proceedings, the petitioners initiated steps for recovery of possession of the land. As many as five appeals by the persons who claimed rights over different extents of land in survey No.69 of Miyapur, came to be filed.
The 1st respondent states that she purchased a plot of 1261 square yards through sale deed, dated 16.03.1994, from Nimmala Narasimha and others and she is in possession of the land. When the petitioners filed application under Section 32 of the Act for recovery of possession, a notice, dated 09.07.1999, requiring the 1st respondent to vacate the land, under her possession, was issued. The notice was challenged before this Court. The writ petition was allowed and the notice was set aside, on the ground that the petitioners therein were not heard, before they were sought to be evicted. It was left open to the concerned authority, to pass orders after issuing notice to the petitioners.
Across the Bar, it is stated that no proceedings, either under Section 32, or 38-E(2) of the Act are pending for recovery of possession, from the 1st respondent.
A perusal of the order under revision discloses that in four appeals filed by different persons, a finding was recorded to the effect that the land, as regards which, those persons claimed rights, was not the subject-matter of protected tenancy. The extents of land claimed by different individuals were identified and it was observed that they cannot be said to have any grievance or suffered detriment on account of the order, dated 11.11.1997, passed by the RDO. However, the Joint Collector, entertained a doubt as to the very identity of the protected tenant, since rival claims were forthcoming. On that basis, he remanded the matter to the RDO. The petitioners felt aggrieved by the remand of the matter. According to them, the remand was unnecessary, in view of the specific finding recorded by the Joint Collector.
The respondents in other C.R.Ps. were not facing any threat of dispossession from the petitioners herein. The result in the proceedings by or against them did not bring about any perceptible change as to their rights. The 1st respondent, however, stands on a different footing. An attempt has already been made to evict her by taking recourse to Section 32 of the Act and she was able to prevent the same by filing the writ petition. She is not claiming any rights of protected tenancy, much less through Golla Muthaiah, whose name was replaced with that of Mallaiah. The necessity for remanding the matter by the appellate authority would have arisen, if only any rival claims of tenancy are made. Therefore, the order of remand passed by the appellate authority was superfluous.
That, however, is not the end of the matter. Though the 1st respondent is not claiming rights of protected tenancy, she would certainly suffer detriment, if the petitioners propose to evict her on the basis of the order, dated 11.11.1997, passed by the RDO. In such an event, it must be open to her, to raise such contentions as are open to her in law, to protect her possession, and to support the title of her vendors, and of herself. Therefore, the C.R.P. is allowed, setting aside the order, dated 23.04.2001, in so far as it remanded the matter to the RDO, Chevella.
It is, however, directed that the 1st respondent shall not be evicted from the land, unless any proceedings under Section 38-E(2) of the Act are initiated before the concerned authority and an order is passed to that effect, after giving the opportunity of being heard to her. It is needless to mention that, in the event of such proceedings being initiated, it shall be open to the concerned parties to raise such grounds and contentions as are available to her, in law.
The miscellaneous petitions filed in this civil revision petition shall stand also disposed of.
There shall be no order as to costs.
_____________________ L. NARASIMHA REDDY, J.
Dated:05.11.2012