Andhra Pradesh High Court - Amravati
E.Viswanatha Rao vs A.O.,Spl.Tahsildar, Chittoor. on 21 December, 2019
Author: M.Satyanarayana Murthy
Bench: M.Satyanarayana Murthy
THE HON'BLE SRI JUSTICE M.SATYANARAYANA MURTHY
CIVIL REVISION PETITION NO.582 OF 1992
AND
CIVIL REVISION PETITION NOs.2813, 2814, 2815, 2848 & 2885 OF 2017
COMMON ORDER:
All these civil revision petitions are filed by third parties to the petitions, challenging the judgment in L.R.A.C.No.9 of 1987 dated 02.12.1991 passed by the Land Reforms Appellate Tribunal-cum-First Additional District Judge, Chittoor.
The petitioners herein are the third parties, whereas, the L.R.A.C.No.9 of 1987 was filed by the declarants against the order in C.C.No.1340/PGN/75 passed by the Land Reforms Tribunal, Madanapalle on 04.03.1983. These petitioners are claiming to be the purchasers of the property after ordinance dated 24.01.1971 and before passing the Act. All the petitioners are claiming that they purchased the property on 01.02.1971.
It is the contention of the petitioners that one E.V. Vishwanatha Rao, K. Nagabhushanam, K. Krishna Murthy, R. Vijaya Bhaskar, B. Siva Kumar Reddy and E. Venkat Reddy were partners in real estate business. While transacting their business, they altogether purchased about 400 acres of land from Rani Sundaramani in the name of E.V. Vishwanatha Rao through registered sale deed vide Document No.3399/1968 dated 19.08.1968. Subsequently, after excluding the land already sold, the left over land was partitioned among the partners in November, 1970. Subsequent to partition, E.V. Vishwanatha Rao executed individual agreements of sale in favour of partners in the month of November, 1970. Though regular sale deeds are ready even before the proposal for land ceiling ordinance is initiated i.e. 24.01.1971, they could not be registered due to strike of the employees of the Registration MSM,J CRP_582_1992 & batch 2 Department and finally registered the sale deed on 01.02.1971. Out of the sale transactions completed on 01.02.1971, E.V. Vishwanatha Rao sold to D. Thimma Reddy, jointly to Nagabhushan Rao and Krishna Murthy to R. Vijaya Bhaskar and other partners. After these sale transactions were completed, due to advent of the Andhra Pradesh Land Reforms (Ceiling on Agricultural Holding) Act, 1983 (for short 'Land Reforms Act'), E.V. Vishwanatha Rao submitted his declaration under Section 9 of the said Act disclosing the land sold to these petitioners in the holding. The said declaration proceedings are numbered as C.C.NO.1348/PGN/75. As per Section 7(1) of the Land Reforms Act, genuineness of the sale transactions done between 24.01.1971 to 02.05.1972 has to be examined independently, as the transactions are not abinitio void. The Land Reforms Tribunal without conducting detailed enquiry and without recording any finding about genuineness of these transactions, rejected the claim of the declarant i.e. E.V. Vishwanatha Rao for excluding these lands from his holding and declared him as a holder of 4.2333 standard holding in excess of ceiling area on 01.06.1978.
Aggrieved by the said order, E.V. Vishwanatha Rao preferred appeal i.e. L.R.A.C No.177 of 1977 before the Land Reforms Tribunal- cum-I Additional District Judge, Chittoor and the said appeal was allowed on 22.03.1979 and remanded the matter to the Land Reforms Tribunal, Madanapalle to conduct a detailed enquiry with regard to sale transactions that took place between 24.01.1971 to 02.05.1972, recording a specific finding with regard to the genuineness of those transactions. After remand, the same is restored to its original number C.C.No.1348/PGN/75 and the Land Reforms Tribunal vide order dated 04.03.1983 excluded Ac.23-30 cents which is covered by hillocks, MSM,J CRP_582_1992 & batch 3 without conducting any enquiry and without giving any finding about the genuineness of the sale transactions, for which purpose the case was remanded and held that 3.8738 holding is in excess of ceiling area.
Aggrieved by the said order, E.V. Vishwanatha Rao filed appeal i.e. L.R.A.C No.9 of 1987 before the Land Reforms Appellate Tribunal-cum-I Additional District Judge, Chittoor and the same was dismissed on 02.12.1991 without proper appreciation of the oral and documentary evidence on record.
Aggrieved by the same, the present civil revision petitions are filed. During pendency of civil revision petitions, E.V. Vishwanatha Rao died on 10.10.1992 and when the legal representatives are not willing to come on record to pursue the civil revision petitions, as their father had already sold the land, the purchasers themselves sought leave of this Court and came on record as petitioners in the civil revision petitions and pursue the same. The said conduct of the legal heirs itself is sufficient to show that, their sale transactions are genuine and the extent involved in those transactions have to be excluded from the holding of the declarant i.e. E.V. Vishwanatha Rao. That apart, in the revenue records the petitioners names were mutated and subsequently registration of sale transactions were entertained and even subsequent purchasers names were mutated in revenue records and pattadar passbooks were also issued in their favour and all these show the genuineness of the sale transactions. But, the Appellate Tribunal and the Primary Tribunal did not examine the genuineness of those transactions properly and committed an error.
That apart, the purchasers from E.V. Vishwanatha Rao i.e. Thimma Reddy, Nagabushan Rao, Krishna Murthy and Vijaya Bhaskar respectively have also submitted their declarations under Section 9 of the MSM,J CRP_582_1992 & batch 4 Land Reforms Act, disclosing the lands they purchased. The said declarations were accepted without any exclusion and passed appropriate orders. When the sale transactions of the purchasers are reflected in their declarations and when the same was accepted by the Land Reforms Tribunal, the same transactions shown by the seller i.e. E.V. Vishwanatha Rao for deletion in his holding, the same was rejected. The sole instance is suffice to show the non-application of mind and mechanical disposal of the case being carried away by the fact that the land sold is during the period, land ceiling proceedings are initiated.
The petitioner's father by name Maddi Gangulappa s/o Venkatappa in C.R.P No.2813 of 2017 purchased an extent of Ac.21-00 cents under a Registered Sale Deed dated 23.11.1978 from K. Nagabhushan Rao and K. Krishna Murthy Rao. The petitioner's father by name Ramireddy in C.R.P.No.2885 of 2017 purchased an extent of Ac.20-00 cents under a Registered Sale Deed dated 19.09.1978 from K. Nagabhushan Rao and K. Krishna Murthy Rao.
The petitioners 1 and 3 and father of the second petitioner by name Munireddy in C.R.P.No.2815 of 2017 jointly purchased an extent of Ac.12-97 cents under three different sale deeds dated 09.03.1979 from K. Nagabhushan Rao and K. Krishna Murthy Rao. The said K. Nagabhushan Rao and K. Krishna Murthy Rao got the said property under Agreement of Sale dated 01.11.1970 and in furtherance of their Agreement of Sale, both of them obtained Registered Sale Deed dated 01.02.1971 vide Document No.2144/1971 from Viswanadha Rao. Krishna Murthy Rao and it was adjudicated under Land Reforms Act in C.C.No.557/PGN/75 vide Order dated 25.03.1976 and he was declared a surplus holder. Vide order dated 24.07.1976 in C.C.No.557/PGN/75, the said Krishna Murthy Rao was directed to surrender the excess land and MSM,J CRP_582_1992 & batch 5 receive compensation vide order dated 08.03.1977. As such, by the time of purchase of the above said land, his vendor was declared as surplus holder and he surrendered the land in excess and now the land covered under the above said sale deed has become non-surplus land beyond the purview of the Land Reforms Act.
In C.R.P.No.2814 of 2017, the petitioner Desireddy Thimma Reddy purchased an extent of Ac.30-00 cents vide Registered Document No.465/1971 dated 01.02.1971 and his claim was adjudicated under the provisions of Land Reforms Act in C.C.No.185/PGN/1975 vide order dated 25.03.1976 and he was declared as non-surplus holder. The Land Reforms Appellate Tribunal while declaring has considered the land covered under the above said sale deed also. Similarly, in C.R.P.No.2848 of 2017 the petitioner has purchased an extent of Ac.22-55 cents under a Registered Sale Deed Document bearing No.4933/1979 dated 06.12.1979 from Vijay Bhaskar and the said Vijaya Bhaskar purchased the same on 01.02.1971 vide Document No.2146/1971 from E.V. Vishwanatha Rao. The above said Vijaya Bhaskar was declared as non-surplus land holder in the proceedings of the Land Reforms Tribunal in C.C.No.1/PGN/1976 dated 07.05.1976, he was obtained ryothwari patta and pattadar passbooks. The petitioners in the civil revision petitions raised mango garden in the above said lands and the trees are sufficiently old.
The main grounds urged before this Court in all the civil revision petitions are that, when the Land Reforms Appellate Tribunal remanded the matter to the Primary Tribunal with a specific direction to examine the genuineness of the partnership among E.V. Vishwanatha Rao and others and genuineness of the sale transactions, as the transaction took place between the date of ordinance and date of enactment of the Act, MSM,J CRP_582_1992 & batch 6 but no such examination has taken place by the Primary Tribunal and even after remand of the matter with a specific direction, so also, the Appellate Court in the second round, failed to consider the contention of E.V. Vishwanatha Rao and committed a serious irregularity. These petitioners came on record, as they are purchasers whose rights are affected on account of such surrender, if any, in case the order has become final and no notice was issued to them even after remand, despite specific direction by the Primary Tribunal while examining the genuineness. Therefore, the order passed by the Primary Tribunal and affirmed by the Appellate Tribunal are erroneous and against the principles of natural justice. Hence, the petitioners requested this Court to set-aside the order passed by the Primary Tribunal in C.C.No.1340/PGN/75 dated 04.03.1983 passed by the Land Reforms Tribunal, Mandanapalle and confirmed by the Appellate Tribunal in L.R.A.C.No.9 of 1987 dated 02.12.1991 passed by the Land Reforms Appellate Tribunal-cum-First Additional District Judge, Chittoor, and remand the matter to the Primary Tribunal while directing to issue notice to these petitioners and conduct a detailed enquiry as to the genuineness of the transactions and pass appropriate orders.
During hearing, Sri M. N. Narasimha Reddy, learned counsel for the petitioners filed written arguments, mainly highlighting failure of the Authorized Officer/Special Deputy Tahsildar in all these petitions to conducting enquiry and also the failure of Primary Tribunal to issue notices to these petitioners under Land Reforms Act who are the purchasers, while examining the genuineness of the transactions took place between the date of ordinance and date of enactment of the Act and consequently, the order is unsustainable, in view of the law declared by this Court in Paluru Ramaiah and others v. P. Narasimha Reddy and MSM,J CRP_582_1992 & batch 7 others1 and M/s. The Hyderabad Allwyn Metal Works Limited, Sanathnagar, Hyderabad v. Employees State Insurance Corporation, Hyderabad2 It is also contended that the alienations made between 24.01.1971 and 02.05.1972 shall not automatically liable be to be declared as void documents, unless genuineness of those transactions is to be decided by issuing notices to the vendor and vendee and record their evidence, record a specific finding as to the genuineness of the transaction. Without looking into the evidence, inspection of documents and possession of the properties, to come to conclusion that the transaction is null and void and such findings is illegal and arbitrary and against the principles of natural justice.
In State of Andhra Pradesh v. Merla Venkata Rao (died) and others3, this Court held that alienations made between 24.01.1971 and 02.05.1972 shall not be liable for surrender as excess land unless, they are made with an intention to reduce the ceiling area in anticipation and such lands have to be excluded from the surrender proceedings of the declarant and while adjudicating, the Tribunal has to decide the question of possession.
It is contended that, in the present cases, the purchasers have been in absolute possession and enjoyment of their possession and the same was recognized by the State by way of mutating their names in Revenue Records as well as Revenue Web Land and issuance of pattadar passbooks. Neither the Primary Tribunal nor the Appellate Tribunal has considered the question of possession, as such, the impugned order under the civil revision petitions is liable to be set-aside. 1 1980 (2) APLJ (HC) 210 2 1978 APLJ (HC) SN 9 3 2000 (4) ALD 548 MSM,J CRP_582_1992 & batch 8 Even in The Authorised Officer (LR), Vijayawada v. K.C.V. Narasayya4, High Court of Andhra Pradesh took a view that the transferee is in possession of land, such land cannot be including in holding of transferor of the declarant. Similarly, in Merla Veeranna v. The State represented by the Special Tahsildar, Land Reforms, Kakinada, East Godavari District5 and Venu Reddy Chandrasekhara Reddy v. State of A.P6, this Court concluded that, adjudication without deciding the question of possession is illegal being contrary to specific directions of the Court and thereby, the order impugned in the revision petitions is liable to be set-aside and requested to se-aside the same, with a request to remand the matter to the Primary Tribunal, directing to afford an opportunity to these revision petitions to participate in the proceedings and decide the genuineness of the transactions that took place between the date of ordinance and date of enactment of Act.
During hearing, learned counsel for the petitioners Sri M.N. Narasimha Reddy, though filed written briefs/arguments, mainly contended that, failure of the respondents to issue notice and enquire into the genuineness of the transaction done on 01.02.1971 is a serious irregularity and in support of his contention, he placed reliance on the judgments referred supra and relying on the principles laid down in the above judgments, learned counsel for the petitioners requested to remand the matter to the Primary Tribunal with a direction to strictly adhere to the principles laid down in the above judgment, while setting aside the order passed by Primary Tribunal and confirmed by the Appellate Tribunal.
4 1979 APLJ (HC) SN No.9 5 1978 (1) HC APLJ 73 6 2002 (2) ALD 349 MSM,J CRP_582_1992 & batch 9 Whereas, learned Government Pleader for Appeals filed written briefs/arguments and advanced oral arguments. The main contentions urged by the learned Government Pleader before this Court are that, when the Primary Tribunal and Appellate Tribunal disbelieved the very constitution of partnership by E.V. Vishwanatha Rao and others, the question of sale of property to different persons by the partners inter se and in turn sale of the same by partners to these petitioners does not arise and therefore, the question of conducting any enquiry by the Primary Tribunal again after serving notices, as required under law is only a futile exercise. It is further contended that, in pursuance of the order passed by the Primary Tribunal and confirmed by the Appellate Tribunal, the land was surrendered and the same was assigned to these beneficiaries. Therefore, question of again remanding the matter to the Primary Tribunal with a direction to issue notice in compliance of Section 7(7) of the Land Reforms Act would not serve any purpose and requested to dismiss the civil revision petitions.
Considering rival contentions, perusing the material available on record, the sole point that arises for consideration is:
"Whether determination of standard holding of original declarant/E.V. Vishwanatha Rao without considering the alienations made by the partners of the alleged real estate firm while accepting the declarations of the other partners, without issuing any notice to the purchasers is illegal and invalid and whether such order be sustained under law?"
P O I N T:
It is an undisputed fact that the petitioners are the third parties who allegedly purchased the property from various persons mentioned in the earlier paragraphs. According to the contentions that E.V. Vishwanatha Rao and others constituted as members of partnership MSM,J CRP_582_1992 & batch 10 firm to carry on real estate business, purchased Ac.400-00 of land from Rani Sundaramani in the name of E.V. Vishwanatha Rao through registered sale deed vide Document No.3399/1968 dated 19.08.1968. It is an undisputed fact that the document stood in the name of E.V. Vishwanatha Rao. Rani Sundaranami is the Zamindar of the area who possessed vast extent of land. The ordinance was promulgated on 24.01.1971, but sale took place on 01.02.1971 i.e. almost after one week from the date of promulgation of the ordinance, the transaction took place in favour of D. Thimma Reddy, jointly to Nagabhushan Rao and Krishna Murthy and to R. Vijaya Bhaskar and other partners. When constitution of partnership is disbelieved, execution of documents by E.V. Vishwanatha Rao in favour of D. Thimma Reddy, jointly to Nagabhushan Rao and Krishna Murthy, R. Vijaya Bhaskar and other partners creates any amount of suspicion. Fortunately, the Primary Tribunal and Appellate Tribunal recorded a specific finding that no partnership firm was in existence as pleaded by E.V.Viswanadha Rao and others. The same is not challenged before this Court in revisions, since these petitioners are not competent to challenge the same, even if they come on record with permission of this Court to prosecute C.R.P.No.582 of 1992, when the legal representatives of E.V. Vishwanatha Rao are disinterested to prosecute the proceedings, in view of alleged surrender of the land. But, for the first time, the petitioners raised a specific contention that no notice was served as required under Section 7(7) of Land Reforms Act. In fact, no such ground was raised in the revisions before this Court or the Land Reforms Tribunal-cum-I Additional District Judge, Chittoor, except raising a ground that, failure to exclude the land covered by Ex.A-1 to A-13 dated 01.02.1971 is contrary to law and evidence and that the sale deeds dated 01.02.1971 MSM,J CRP_582_1992 & batch 11 are neither void nor voidable and in such case, enquiry has to be conducted. It is also contended that purchasers of the property covered by Exs.A-1 to A-13 are paying land revenue and they are in possession and enjoyment of the land as absolute owners and this fact was not considered by the Court and that the judgment of Madras High Court is contrary to the law declared by the Supreme Court in The Authorised Officer, Thanjavur v. S. Naganatha Ayyar7 and committed an error in dismissing the appeals by the Appellate Tribunal and requested to set-
aside the same. Thus, it is evident that the declarant/E.V. Viswanatha Rao before the Appellate Tribunal did not raise specific contention about failure to issue notice under Section 7(7) of Land Reforms Act or petitioners before this Court, except raising a contention that the purchasers are in possession and enjoyment of the property by mutating their names in the revenue records. But, the contention of the learned counsel for the petitioners is that, even though no such ground is raised when the order passed by the Primary Tribunal and Appellate Tribunal is contrary to principles of natural justice, this Court can exercise unlimited power that vested on the Court under Section 21 of the Land Reforms Act and requested to remand the matters to Primary Tribunal directing to issue notice under Section 7(7) of the Land Reforms Act, since failure to issue notice vitiates the entire proceedings, which will seriously affect the rights of the petitioners in all the revision petitions.
In view of the specific contentions raised before this Court during argument, it is necessary to advert to Section 7(7) of the Land Reforms Act, to decide the real controversy and it is as follows:
(a) Whether any transfer or creation of a trust effected on or after the 24th January, 1971 had been effected in anticipation of, and with a view to 7 1979 AIR SC 1487 MSM,J CRP_582_1992 & batch 12 avoiding or defeating the objects of, any law relating to a reduction in the ceiling on agricultural holdings;
(b) whether any alienation made, partition effected or trust created on or after the 2nd May, 1972 is null and void;
(c) whether any conversion of agricultural land into non-agricultural land had taken place within a period of five years before the notified date;
(d) whether any dissolution of a marriage had taken place on or after the 24th January, 1971 either on an application made on or after the said date, or in accordance with any law or custom;
(e) whether any person had been given in adoption on or after the 24th January, 1971;
such question shall be determined by the Tribunal, after giving an opportunity of being heard to the affected parties, and its decision thereon shall, subject to an appeal and a revision under this Act, be final.
Here, the sale took place between the date of promulgation of ordinance i.e. on 24.01.1971 and the date of enactment of the Act. Consequently, the burden is upon the alienee i.e. E.V. Vishwanatha Rao to prove that those transactions were not intended to defeat the object of the law or to avoid or reduce the ceiling on agricultural holding. At the same time, Section 7(7) of the Land Reforms Act specified the procedure to be followed when any question arises as to whether any transfer or creation of a trust effected or on after 24th January, 1971, had been effected in anticipation of, and with a view to avoiding or defeating the objects of, any law relating to a reduction in the ceiling on agricultural holdings; whether any alienation made, partition effected or trust created on or after the 2nd May, 1972 is null and void; whether any conversion of agricultural land into non-agricultural land had taken place within a period of five years before the notified date; whether any dissolution of a marriage had taken place on or after the 24th January, 1971 either on an application made on or after the said date, or in accordance with any law MSM,J CRP_582_1992 & batch 13 or custom; whether any person had been given in adoption on or after the 24th January, 1971; such question shall be determined by the Tribunal, after giving an opportunity of being heard to the affected parties, and its decision thereon shall, subject to an appeal and a revision under this Act, be final.
Therefore, taking advantage of the language used in Section 7(7) of the Land Reforms Act with regard to giving an opportunity of being heard to the affected parties, learned counsel for the petitioners contended that a notice is mandatory and in the absence of issuing any notice, it amounts to denial of opportunity, as mandated under Section 7(7) of the Land Reforms Act. When the Act mandates certain procedure, failure to issue notice is a serious matter of concern which deprives these petitioners to claim right in the property purchased by them under valid registered sale deeds and it infringes the Constitutional right guaranteed under Article 300-A of the Constitution of India and contrary to the principles of natural justice. Though, Section 7(7) of the Land Reforms Act directly mandated giving an opportunity, though not notice, it is based on the inbuilt principles of natural justice to afford an opportunity to the parties i.e. affected parties on account of any order being passed by the Court, since these petitioners are the affected parties, if the land covered by the sale deeds is included in the Standard Holding of E.V. Vishwanatha Rao. Therefore, failure to afford an opportunity to these petitioners as contemplated under Section 7(7) of the Land Reforms Act is a serious irregularity committed by both the Primary Tribunal and Appellate Tribunal and even the Appellate Tribunal also did not notice the requirement.
It is manifest from the provision of Section 7(7) of Land Reforms Act that there is no ambiguity or equivocality in the provisions that MSM,J CRP_582_1992 & batch 14 notice under Section 7(7) is a 'must' and any transgression or violation thereof would render the orders passed by the Tribunal void abinitio. (vide Paluru Ramaiah and others v. P. Narasimha Reddy and others (referred supra)).
Any enquiry as to whether such land should be included in the holding of the pattadar, who is out of possession or the purchaser under an unregistered sale deed or agreement for sale who is in possession can be made as contemplated by Rule 6 only after notice to the person interested. An enquiry without such notice is vitiated with material irregularity. The notice under Rule 6(1) to all persons interested is evidently intended to ascertain whether land which is sought to be included in the holding of one or the other declarant is in his possession it cannot form part of his holding. A person who is reported to be in possession of the land under a purchase made by him from the pattadar is undoubtedly a person interested in retaining his possession. If the land held by him is included in the holding of and other person who is merely a pattadar and is not in possession, that would certainly effect the interest of a purchaser. If the pattadar surrenders such land because that land is included in his holding, although he is not in possession, that would create complications and would affect the rights of the persons in possession. (vide K. Buchi Reddy v. State of A.P8) In the present facts of the case, learned Government Pleader for Appeals contended that the land was surrendered and assigned to various persons, but no details are furnished in the written arguments or during oral arguments, as to the number of beneficiaries and any other proceedings are also not placed on record to substantiate the contention that surrender has taken place by the original declarant/E. Viswanatha 8 CRP No.463 of 1978 dated 03.07.1978 MSM,J CRP_582_1992 & batch 15 Rao and whether such surrender is strictly in compliance of Section 7(7) of the Land Reforms Act or not. Therefore, in the absence of any material based on the arguments advanced before this Court, it is difficult to accept the contention that the declarant/E.V. Vishwanatha Rao has excess holding to be surrendered to the Government strictly following the procedure, in compliance of Section 7(7) of the Land Reforms Act and affording an opportunity of hearing to the persons in actual possession of the property. In the absence of such procedure, I am unable to accept the contention that the surrender proceedings are complete and assigned the land to the landless poor. Therefore, the contention of the learned government Pleader for Appeals is hereby rejected.
In State of Andhra Pradesh v. Merla Venkata Rao (died) and others (referred supra), an identical question came up for consideration before the High Court of Andhra Pradesh at Hyderabad, wherein the learned Single Judge held that, while construing the provisions of the Act, the intention of the Legislature has always to be gathered from the words used by it, giving to the words their plain, normal and grammatical meaning. If a fiction by which land not held by any person could be taken into account for the purpose of computation of ceiling area, the same has to be taken for the said purpose only but one could not be forced to surrender the land which he is not actually holding. That is the only possible interpretation which could be adopted for determining the ceiling area, but not for any other purpose. If the case is not covered within the four corners of the provisions for taking over surplus lands, the same is not liable for surrenders as the said lands cannot be said to be the holding of declarant in excess of ceiling area. Once the lands covered by Exs.P-l to P-20 cannot be treated as the lands held by the declarant, it is not open for the Land Reforms Tribunal to MSM,J CRP_582_1992 & batch 16 accept to said lands for surrender. In view of the same, acceptance of the land which was transferred during the period from 24-01-1971 to 02-05-1972 have to be excluded from the surrender proceedings. The Land Reforms Appellant Tribunal has rightly held that the lands covered under various transfers. Exs.Pl to P20 are not liable to be surrendered nor can be accepted for surrender. The point is accordingly answered against the State. Then coming to the lands held by the declarant, the Tribunal in earlier round of litigation already held that the declarant with an intention to reduce the ceiling area in anticipation effected the transfers and he being a surplus landholder to an extent of more than which is in his occupation after such determination the entire land held by him after excluding the land under Section 7(1) is liable to be surrendered and it is open for the Tribunal to take possession of the same in accordance with law.
The same principle in Paluru Ramaiah and others v. P. Narasimha Reddy and others (referred supra) was laid down in State of Andhra Pradesh v. Merla Venkata Rao (died) and others (referred supra) and Thirupal Reddy v. State9.
In the later judgment in Venu Reddy Chandrasekhara Reddy v. State of A.P10, learned Single Judge of the High Court of Judicature of Andhra Pradesh at Hyderabad, revision petition was filed questioning the inclusion of the land in holding of the petitioner, which is the subject matter of an agreement of sale, High Court in said revision directed the Land Reforms Tribunal to record a finding as to whether which of the two parties to the agreement is in possession of the land. Tribunals without deciding the said question of possession, concluded that the land covered by the said agreement has to be included in the holdings of both the 9 1978 (1) H.C. 10 10 2002 (2) ALD 349 MSM,J CRP_582_1992 & batch 17 parties and held that it is illegal, being contrary to the specific directions of High Court as question of possession is relevant at the time of surrender of excess land.
When such objection is raised before the Primary Tribunal, the Primary Tribunal has to decide such an issue. But, for the reasons best known for the Primary Tribunal, in the present case also, the Primary Tribunal did not follow the procedure prescribed under Section 7(7) of the Land Reforms Act, at the time of conducting enquiry by the Primary Tribunal, so also, at the time when the proceedings are initiated under Section 10 of the Land Reforms Act for surrender of the land. No enquiry was conducted and no notices were issued to the persons allegedly in occupation of the property, though the original declarant/E.V. Vishwanatha Rao categorically raised a plea about sale of the property on 01.02.1971. Therefore, the Appellate Tribunal remanded the matter to the Primary Tribunal to conduct an enquiry as to the genuineness of the partnership and transaction dated 01.02.1971. In view of the additional evidence introduced by the Appellate Tribunal vide C.M.P.No.85 of 1979, the main objection raised in the appeal is that the Tribunal erred in including an extent of Ac.238-41 cents in the holding of E.V. Vishwanatha Rao, the original declarant, though the said land was sold to different persons under registered sale deed on 01.02.1971. In view of the additional documentary evidence filed before the Tribunal in the shape of sale deeds, and kist receipts, the Appellate Tribunal initially felt that it is a fit case for remand to the Primary Tribunal for conducting necessary enquiry as to the truth and reality or otherwise of the above sale transactions which took place on a single day i.e. on 01.02.1971 and it is also felt that Ac.23-30 cents out of Ac.29-50 cents in Sy.No.354/1 of Sodam Village is liable to be excluded from the holding, as it is covered MSM,J CRP_582_1992 & batch 18 by rocks etc and not fit for cultivation. Accordingly, vide order dated 22.03.1979, the Appellate Tribunal remanded the case for fresh disposal, in the light of the above observations.
On remand, the Primary Tribunal disbelieved the oral partnership agreement set up by the appellant while accepting purchase of the land from Smt. Rani Sundaramani and also disbelieved the unregistered sale agreements, on the ground that they have been brought into existence to defeat the provision of the Act. Hence, the extent of land covered by the above documents is not liable to be excluded and vide order dated 04.03.1983, the Primary Tribunal held that appellants family unit is having 3.6738 standard holding of land in excess of ceiling area. Aggrieved by the order of the Primary Tribunal, L.R.A.C.No.9 of 1987 was filed and the Appellate Tribunal formulated a short question for consideration which as follows:
"The short point that arise for consideration whether the order is liable to be interfered with and the lower tribunal did not act as per the direction given in the remand order; if so the various alienations that took place on 01.02.1951 have to be excluded."
But, the Appellate Tribunal concurred with the view expressed by the Primary Tribunal with regard to partnership and purchase of the property from Rani Sundaramani and included the land covered by those sale deeds into holding of E.V. Vishwanatha Rao. But, before any of the Tribunals throughout the proceedings, the plea of non-compliance of Section 7(7) of the Land Reforms Act was not raised, for the first time, it was raised in the present civil revision petitions since it seriously affects the rights of the purchasers who are allegedly in possession of the property.
MSM,J CRP_582_1992 & batch 19 When the law mandates that a notice is to required to be issued, an opportunity has to be afforded to the persons who are likely to be affected and the Primary Tribunal ought to have followed the procedure under Section 7(7) of the Land Reforms Act. But, for the reasons best known to the Primary Tribunal, either innocently or otherwise, did not take any steps to afford an opportunity to the persons who are likely to likely to be affected on account of the order, despite raising a specific plea by the declarant/E.V. Vishwanatha Rao throughout the proceedings.
Even the Authorized Officer did not place on record the verification record on receipt of declarations where the details of persons in possession can be found. But, in the present case, no such procedure has been complied admittedly and mere alleged surrender of the distribution of land by assigning to various persons is inconsequential when the order declaring the original declarant is surplus holder without notice to the persons likely to be affected on account of such order, is contrary to the mandate under Section 7(7) of the Land Reforms Act. Hence, I find that non-compliance of Section 7(7) of the Land Reforms Act has vitiated the entire proceedings.
Though it is painful to remand the matter to the Primary Tribunal after lapse of long period, but, this Court while sitting in revision cannot undertake the exercise of issuing notice under Section 7(7) of the Land Reforms Act to the persons likely to be affected and to conduct enquiry as to who is in possession even at the stage of surrender under Section 10 of the Land Reforms Act. Therefore, I find that it is a fit case to remand the matter to the Primary Tribunal, since these petitioners who are the third parties, satisfied this Court that they have substantial interest in the matter, be permitted to appear and be heard to adduce MSM,J CRP_582_1992 & batch 20 evidence and cross-examine the witnesses, as contemplated under Section 7(7) of the Land Reforms Act and Rule 16(8) of the Andhra Pradesh Land Reforms (Ceiling on Agricultural Holdings) Rules, 1974 (for short 'the Rules'). According to Rule 16(8) of the Rules, every notice or summons under the Act or these Rules shall be issued under the signature of the Revenue Divisional Officer, the District Collector, the Chairman of the Tribunal or Appellate Tribunal, as the case may be, or under his facsimile signature, or under the signature of facsimile signature of an officer authorised in this behalf by the Revenue Divisional Officer, the District Collector, the Chairman of the Tribunal or Appellate Tribunal, as the case may be.
Though the jurisdiction of this Court under Section 21 of the Land Reforms Act is limited and akin to Section 115 of C.P.C, but still, the proviso under Section 115 of C.P.C is not incorporated under Section 21 of the Land Reforms Act and such power can be exercised by the High Court only on the ground that it exercised jurisdiction vested by law or that it failed to exercise so vested or that it acted in exercise of jurisdiction by Appellate Tribunal illegally or without any material irregularity. The present case would fall under Section 21(c) of the Land Reforms Act i.e. exercise of jurisdiction with material irregularity, since the Act mandates issue of notice affording an opportunity to the persons likely to be affected and deviation from the procedure is an irregularity. Therefore, this Court can exercise such power under Section 21(c) of the Land Reforms Act and set-aside the orders.
Therefore, notice(s) must be issued strictly in accordance with Section 7(7) of the Land Reforms Act and Rules 16(8) & (9) of the Land Reforms Rules to the legal representatives of original declarant/E.V. Vishwanatha Rao and also to the petitioners herein (affected parties). The MSM,J CRP_582_1992 & batch 21 Primary Tribunal is specifically directed to afford an opportunity to the persons likely to be affected on account of the orders to be passed by the Tribunal, decide the standard holding of original declarant/E.V. Vishwanatha Rao, as on the notified date, in accordance with law, within three months from the date of this order. Any deviation in the direction issued by this Court will be viewed seriously.
In the result, all the civil revision petitions are allowed, setting aside the judgment in L.R.A.C.No.9 of 1987 dated 02.12.1991 passed by the Land Reforms Appellate Tribunal-cum-First Additional District Judge, Chittoor, restoring C.C.No.1340/PGN/75 to its original number on the file of Primary Tribunal, with a direction to issue notice(s) strictly in accordance with Section 7(7) of the Land Reforms Act and Rules 16(8) & (9) of the Land Reforms Rules to the legal representatives of original declarant/E.V. Vishwanatha Rao and also to the petitioners herein (affected parties) and the Primary Tribunal is specifically directed to afford an opportunity to the persons likely to be affected on account of the orders to be passed by the Tribunal, decide the standard holding of original declarant/E.V. Vishwanatha Rao, as on the notified date, in accordance with law, within three months from the date of this order.
Consequently, miscellaneous petitions pending, if any, shall also stand closed.
_________________________________________ JUSTICE M. SATYANARAYANA MURTHY Date:21.12.2019 sp