Telangana High Court
Vale Amruthamma vs Joint Collector And Additional ... on 10 February, 2025
THE HONOURABLE SMT JUSTICE K. SUJANA
CIVIL REVISION PETITION Nos.887 & 836 OF 2020
COMMON ORDER:
Since the parties and the lis involved in both the revision petitions are same, they were heard together and are being disposed of by this common order.
2. CRP.Nos.836 and 887 of 2020 are preferred praying this Court to set aside the common order dated 13.11.2019 passed in Appeal Nos.F1/02/2015 and F1/11097/2018 by the Joint Collector, Mahabubnagar District, directing the concerned Tahsildar to restore the possession of land to an extent of their share in Sy.No.217 to and extent of Ac.18.00 gts, Sy.No.218 to an extent of Ac.10.38 gts, Sy.No.219 to an extent of Ac.11.34 gts, Sy.No.257 to an extent of Ac.14.39 gts, Sy.No.144 to an extent of Ac.2.00 gts, situated at Choudoor Village, Nawabpet Mandal, Mahabubnagar District, on the ground of being legal heirs of Late V. Yadhaih.
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SKS,J CRP.Nos.887 & 836 OF 2020
3. The brief facts of the case are that Radhabai was the original owner of various lands, including Sy.Nos.217, 218, 219, 257, and 144, totaling 57.31 acres. Vale Basappa was the permanent tenant over the land, and Shaik Mohinuddin was the agent collecting kaul on behalf of Radhabai. After the death of Vale Basappa, his two sons, Vale Yadaiah and Vale Sangaiah, were issued ownership certificates under Section 38E of the Tenancy Act in 1977 (for short 'the Act') as evidenced by File No.A10/3129/1977. However, it was alleged that the tenants were forcibly evicted from the land and were compelled to leave for Maharashtra to earn a living. Subsequently, Vale Sangaiah filed an application before the Tahsildar under Section 32 of Act for restoration of the property, claiming that he was the sole heir after the death of Vale Yadaiah. The Tahsildar passed orders in the year 2010, observing that the PT rights were still existing, and the ownership certificates were issued to Vale Yadaiah and Vale Sangaiah. Despite this, it was submitted that the petitioners did not approach the authority for restoration of possession, and instead, the land was sold to over 20 3 SKS,J CRP.Nos.887 & 836 OF 2020 people through registered documents from the year 1991 onwards. The revenue records were also updated to reflect the said transactions. The matter was remanded for fresh inquiry, and appeals were filed by Vale Sangaiah and the legal representatives of Vale Yadaiah. Ultimately, the appeals were dismissed vide common order dated 13.11.2019 on the ground that the petitioners had become owners of the land, making restoration of possession under Section 32 of the Act becomes inapplicable.
4. Heard Sri Yogesh Kumar Heroor, learned counsel for petitioners, and Sri Swaroop Oorilla, learned counsel for respondents, in both the matters.
5. Learned counsel for petitioners submitted that the common order under revision passed by the Joint Collector is replete with errors and infirmities, and that the same is against the facts of the case, as it fails to take into account the evidence on record. He contended that the Court of Joint Collector erred in not considering the provisions of Sections 38-E and 32(1) of the Andhra Pradesh (Telangana Area) Tenancy and Agricultural Land Rules, 1950 (for short 4 SKS,J CRP.Nos.887 & 836 OF 2020 'Rules 1950'), and averred that the said provisions are crucial in determining the rights of the petitioners, who claim to be the heirs of Late V. Yadhaih. He asserted that the petitioners are entitled to restoration of possession, as they have been dispossessed without following due process, and by ignoring the provisions of Section 38-E(2), which empowers the Tahsildar to restore possession to the protected tenant after issuing a certificate. He lamented that the bar of jurisdiction under the Act, which prohibits civil Courts from settling or deciding questions under the Act was not considered. He divulged that the lands in question are protected tenancy lands, which cannot be alienated to third parties without offering them to the protected tenants.
6. Therefore, while advocating that there is no limitation period for seeking restoration of possession under the Act, he prayed this Court to allow the revision petitions, setting aside the impugned common order dated 13.11.2019 and to direct restoration possession of the land to the petitioners on the ground of them being the legal heirs of Late V. Yadhaih. In support of the said contentions, he 5 SKS,J CRP.Nos.887 & 836 OF 2020 relied on the judgments rendered by the Hon'ble Supreme Court, which are as follows:
• In Thota Sridhar Reddy and Others Vs. Mandala Ramulamma and Others 1:
"Section 38-E contemplates that on grant of certificate of ownership under Section 38-E, the protected tenants shall be deemed to be the full owners of such land. Further, Explanation provided under Section 38-E(1) provides that if a protected tenant has been dispossessed otherwise than in the manner and by the order of the Tahsildar as provided in Section 32, then notwithstanding any judgment, decree or order of any court, or the order of the Board of Revenue or Tribunal shall be deemed to be holding the land on the date of notification. The Tahsildar is under an obligation to either suo motu or in furtherance of an application by the protected tenant, to hold a summary enquiry and direct taking of land in possession of the landholder or any other 1 2021 SCC OnLine SC 851 6 SKS,J CRP.Nos.887 & 836 OF 2020 person claiming through or under him. The possession from a protected tenant can be taken only if the surrender of tenancy is approved by the Revenue Divisional Officer. The landowner is liable to restore possession in terms of Section 46 of the Act if he has failed to cultivate the land personally within one year. Therefore, there is an embargo on the surrender of tenancy rights by protected tenant and even if the tenancy is terminated, the landholder is personally liable to restore possession to the tenant, if he fails to cultivate the land within one year of termination of tenancy. The order of the learned Single Bench in Jupudi Bhushanam [Jupudi Bhushanam v. Collector, Khammam, 1996 SCC OnLine AP 941] is to the effect that once certificate under Section 38-E is granted, and subsequently he has been dispossessed, he has the right to seek remedy from the civil court. The High Court has failed to notice that the Explanation in sub-section (1) of Section 7 SKS,J CRP.Nos.887 & 836 OF 2020 38-E of the Tenancy Act specifically provides that if a protected tenant, on account of his being dispossessed otherwise than in the manner and by order of the Tahsildar as provided in Section 32, is not in possession of the land on the date of the notification issued under sub-section (1), then, the Tahsildar shall notwithstanding anything contained in the said Section 32, either suo motu or on the application of the protected tenant hold a summary enquiry, and direct that such land in possession of the landholder or any person claiming through or under him in that area, shall be taken from such possession thereof and shall be restored to the protected tenant."
• B.Bal Reddy Vs. Teegala Narayan Reddy and Others 2:
"It is well settled that the interest of a protected tenant continues to be operative and subsisting so long as "protected tenancy" is not validly terminated. Even if such protected tenant has lost possession 2 2016 15 SCC 102 8 SKS,J CRP.Nos.887 & 836 OF 2020 of the land in question, that by itself does not terminate the "protected tenancy". The observations of the Full Bench of the Andhra Pradesh High Court in Sada case [Sada v. Tehsildar, AIR 1988 AP 77 :
(1987) 2 An LT 749 : 1987 SCC OnLine AP 187] which were quoted with approval by this Court in Boddam Narsimha v. Hasan Ali Khan [Boddam Narsimha v. Hasan Ali Khan, (2007) 11 SCC 410] are quite eloquent: (Sada case [Sada v. Tehsildar, AIR 1988 AP 77 : (1987) 2 An LT 749 :
1987 SCC OnLine AP 187] , SCC OnLine AP para 44) "44. In our view, this contention is not correct. If a protected tenant is already in physical possession on the date of notification there is no problem at all. If proceedings under Sections 19, 32 or 44 are pending, the date of vesting gets itself postponed. If the "protected tenancy"
stood validly terminated by the date of notification under Sections 19, 32 or 44, in that case, no certificate at all can be issued. But, as long as a 9 SKS,J CRP.Nos.887 & 836 OF 2020 person continued to be a "protected tenant" either under Sections 34, 37 or 37-A, as per the Act and has not lost that status, whether he is in actual possession or not on the date of notification, and is also to be "deemed" to be in possession under the first part of the Explanation subject to Section 32(7) and the proviso to Section 38-E(1), the ownership stands transferred straightaway to such protected tenant by the very force of Section 38-E(1). Further, Section 38-E(2) read with the Andhra Pradesh (Telangana Area) Protected Tenants (Transfer of Ownership of Lands) Rules, 1973 contemplates a full- fledged inquiry after notice to the landholders or after hearing objections of any other interested person (vide Rules 4 and 5). Once a certificate is issued, the same is, under Section 38-E(2), "conclusive evidence" of the ownership of the protected tenant, and cannot be defeated by the result of any inquiry under second part of the Explanation to Section 38-E. Another reason for this view is that 10 SKS,J CRP.Nos.887 & 836 OF 2020 the inquiry under Section 38-E(2) read with the 1973 Rules referred to above, is to be done by the Tribunal (the Revenue Divisional Officer) and obviously his decision to grant the ownership certificate will not and cannot be jeopardised by the result of any inquiry by a subordinate official like the Tahsildar, who deals with the granting of possession to a "protected tenant"."
(emphasis supplied) It is not the case of the appellants that the protected tenancy of Teegala Shivaiah was terminated in a manner known to law. In the absence of such valid termination of "protected tenancy", the interest of such protected tenant continued to be operative and subsisting in law and could devolve on his legal heirs and representatives who could then claim restoration of possession.
As laid down in Sada case [Sada v. Tehsildar, AIR 1988 AP 77 :
(1987) 2 An LT 749 : 1987 SCC OnLine AP 187] even if the protected tenant had lost possession, without there being valid 11 SKS,J CRP.Nos.887 & 836 OF 2020 termination of his status as a protected tenant, he would still be entitled to all incidents of protection under the Act. In the aforesaid premises, the view taken by the High Court in allowing civil revision petitions in favour of the respondents herein was perfectly right and justified."
• Edukanti Kistamma Vs. S.Venkatreddy 3 "The certificate issued under Section 38- E(2) 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. In case the protected tenant is not in possession of the land, he has a right to restoration of the possession of the said land through the Tahsildar. The protected tenant cannot be dispossessed illegally by the landlord or anybody else. If so dispossessed, he has a right to restoration of the possession. He can be dispossessed only by taking recourse to the procedure 3 2010 1 SCC 756 12 SKS,J CRP.Nos.887 & 836 OF 2020 prescribed under Section 32 of the 1950 Act.
The 1950 Act being the beneficial legislation requires interpretation to
advance social and economic justice and enforce the constitutional directives and not to deprive a person of his right to property. The statutory provisions should not be construed in favour of such deprivation. Interpretation of a beneficial legislation with a narrow pedantic approach is not justified. In case there is any doubt, the court should interpret a beneficial legislation in favour of the beneficiaries and not otherwise as it would be against the legislative intent. For the purpose of interpretation of a statute, the Act is to be read in its entirety. The purport and object of the Act must be given its full effect by applying the principles of purposive construction. The court must be strong against any construction which tends to reduce a statute's utility. The provisions of the statute must be construed so as to make it 13 SKS,J CRP.Nos.887 & 836 OF 2020 effective and operative and to further the ends of justice and not to frustrate the same. The court has the duty to construe the statute to promote the object of the statute and serve the purpose for which it has been enacted and should not efface its very purpose. (Vide S.P. Jain v. Krishna Mohan Gupta [(1987) 1 SCC 191 : AIR 1987 SC 222] , RBI v. Peerless General Finance and Investment Co. Ltd. [(1987) 1 SCC 424 : AIR 1987 SC 1023] , Haryana SEB v. Suresh [(1999) 3 SCC 601 : 1999 SCC (L&S) 765 : AIR 1999 SC 1160] , Gayatri Devi Pansari v. State of Orissa [(2000) 4 SCC 221 : AIR 2000 SC 1531] , High Court of Gujarat v. Gujarat Kishan Mazdoor Panchayat [(2003) 4 SCC 712 : 2003 SCC (L&S) 565 : AIR 2003 SC 1201] , Indian Handicrafts Emporium v. Union of India [(2003) 7 SCC 589 : AIR 2003 SC 3240] , Ashok Leyland Ltd. v. State of T.N. [(2004) 3 SCC 1] , Ameer Trading Corpn. Ltd. v. Shapoorji Data Processing Ltd. [(2004) 1 SCC 702 :
AIR 2004 SC 355] , Deepal Girishbhai 14 SKS,J CRP.Nos.887 & 836 OF 2020 Soni v. United Insurance Co. Ltd. [(2004) 5 SCC 385 : 2004 SCC (Cri) 1623 : AIR 2004 SC 2107] , Maruti Udyog Ltd. v. Ram Lal [(2005) 2 SCC 638 : 2005 SCC (L&S) 308 : AIR 2005 SC 851] , Oriental Insurance Co. Ltd. v. Brij Mohan [(2007) 7 SCC 56 : (2007) 3 SCC (Cri) 304 : AIR 2007 SC 1971] and Karnataka State Financial Corpn. v. N. Narasimahaiah [(2008) 5 SCC 176 : AIR 2008 SC 1797] .) There can be no doubt that once a protected tenant gets a certificate of ownership under Section 38-E(2) of the 1950 Act, he has a right to apply for restoration of possession to him if he has been dispossessed. The protected tenant has a right to ask for summary eviction of a trespasser."
• Y.Chandraiah @ Y.Chandra Reddy Vs. Commissioner of Police, Cyberabad, Rangareddy District and Others 4 :
"It requires to be noticed that in P. Anil Kumar v. The Joint Collector, Rangareddy 4 2006 SCC OnLine AP 1148 15 SKS,J CRP.Nos.887 & 836 OF 2020 District at Hyderabad, 1988 (2) ALT 583, a Division Bench of this Court considering the scope of Sections 32 and 40 of the Act held that the power of the Tahsildar under Section 32 is vast and inclusive, not merely preventive or prohibitive and extends to restoring his lost possession including by granting interim injunction in favour of the protected tenant. The Division Bench further held that the civil Court has no jurisdiction in this matter."
"From a bare reading of the above, it is obvious that two aspects are relevant for the purpose of answering the present reference. Firstly, under Section 29(2) of the Limitation Act, 1963 there is no provision making Articles 65 and Section 27 thereof, applicable to special laws, -- in the instant case, the special law is the Act. Secondly, the right of a protected tenant to recover possession of land is 5 2006 SCC OnLine AP 58 16 SKS,J CRP.Nos.887 & 836 OF 2020 uninhibited by any principle of adverse possession. 'Adverse possession' is a concept, which otherwise deals with the aspect of limitation."
• Sada Vs. Tahsildar, Uthnoor, Adilabad 6:
"Now the new proviso to S. 38-E(2) was introduced by Act 2/1979 to get round the difficulty created by the judgment in Narsaiah's case (1), There, it was held, that once the protected tenant has become owner, there is no machinery in the Act enabling him to obtain possession. It was pointed out that the provision in the latter part of the Explanation to S. 38 E (1) enabling a 'protected tenant' to obtain possession through the Tahsildar was not applicable to the case of an application by an owner, even if it be a case of a protected tenant becoming an owner. In our view, the Legislature wanted to fill up the difficulty created by Narsaiah's case when it added the new proviso to S. 38-E(2) enabling the Tahsildar to restore 6 AIR 1988 AP 77 17 SKS,J CRP.Nos.887 & 836 OF 2020 possession to a former protected tenant who had become the owner.
It is, however, argued that this amendment is prospective from 11-1-1979 and that the benefit of restoration of possession through the Tahsildar is available only to those protected tenants who have been given ownership certificates after 11-1-1979. In our view, this is not correct. It was, in our view, nor the Intention of the legislature that these protected tenants who obtained ownership certificates before 11-1-1979 should go to the Civil Court and those obtained certificates after 11-1-1979 should go to the Tahsildar. The intention of the Legislature was to benefit all cases, whether the ownership certificates were issued before or after Act 2/79. As already stated, the actual date of issuance of the ownership certificate has, no bearing on the statutory transfer of ownership under Sec, 38-E(1) with effect from the date of notification for the certificate dates back to 18 SKS,J CRP.Nos.887 & 836 OF 2020 the date of the notification under Sec. 38- E(1).
It is then argued that the words "the ownership has been transferred" in the new proviso to S. 38-E(2) show that the amendment does not apply to cases where the ownership certificate has been issued before 11-1-1979. This interpretation is not correct. We fully endorse the reasons given in Chennaiah's case to say that these words cannot be given such a restricted meaning. Point No. 4 is decided accordingly."
"To sum up, under the scheme of the Act, a protected tenant is entitled to be declared as owner of the land. When he is not in possession, notwithstanding any judgment, decree or order of any Court or any Revenue Tribunal, the law presumes the protected tenant to be in possession of the land and when once a certificate is 7 MANU/AP/0746/2000 19 SKS,J CRP.Nos.887 & 836 OF 2020 issued under Section 38-E of the Act, it shall be lawful for the Tahsildar to restore physical possession to the protected tenant (holder of the certificate), as, such certificate holder is entitled to possession of the land covered by the certificate. In this background, Section 32 may be examined."
7. Learned counsel for respondents vehemently opposed the submissions made by learned counsel for petitioners and submitted that the respondents are not in illegal possession of the petition lands, as the original landholder, Smt. Radha Bai, sold the lands to Mohd Khaja Saib prior to 1954 through a registered sale deed. He lamented that the contention of revision petitioners that they were in possession of the lands as on the date of issuance of the Section 38-E Certificate is incorrect, and stated that as a matter of fact, the protected tenant, V. Basappa, died 40 years ago, and his sons, V. Sangaiah and V. Yadaiah, were in possession of the lands. He divulged that the respondents purchased the subject lands through registered sale deeds and have been in possession of the 20 SKS,J CRP.Nos.887 & 836 OF 2020 subject lands as absolute owners since the date of purchase.
8. Learned counsel for respondents incessantly contended that the revision petitioners were aware of the said purchases but kept quiet for over 37 years without claiming any right over the lands. He further contended that the contention of revision petitioners with regard to restoration of possession is barred by limitation, as they failed to avail the remedies provided to them by the statute within a reasonable period of time.
9. While praying this Court to dismiss the revision petitions, in support of the said contentions, learned counsel for respondents, relied on the following judgments:
• Joint Collector Ranga Reddy District and Another Vs. D.Narsing Rao and others 8 "No time-limit is prescribed in the above section for the exercise of suo motu power but the question is as to whether the suo motu power could be exercised after a 8 2015(2)ALT (SC) 1 21 SKS,J CRP.Nos.887 & 836 OF 2020 period of 50 years. The Government as early as in the year 1991 passed an order reserving 477 acres of land in Survey Nos. 36 and 37 of Gopanpally Village for house sites to the government employees. In other words, the Government had every occasion to verify the revenue entries pertaining to the said lands while passing the Government Order dated 24-9-1991 but no exception was taken to the entries found. Further the respondents herein filed Writ Petition No. 21719 of 1997 challenging the Government Order dated 24-9-1991 and even at that point of time no action was initiated pertaining to the entries in the said survey numbers.
Thereafter, the purchasers of land from Respondents 1 and 2 herein filed a civil suit in OS No. 12 of 2001 on the file of the Additional District Judge, Ranga Reddy District praying for a declaration that they were lawful owners and possessors of certain plots of land in Survey No. 36, and after contest, the suit was decreed and said decree is allowed to become final. By 22 SKS,J CRP.Nos.887 & 836 OF 2020 the impugned notice dated 31-12-2004 the suo motu revision power under Section 166-B referred to above is sought to be exercised after five decades and if it is allowed to do so it would lead to anomalous position leading to uncertainty and complications seriously affecting the rights of the parties over immovable properties.
In the light of what is stated above we are of the view that the Division Bench [Collector v. D. Narasing Rao, 2010 SCC OnLine AP 406 : (2010) 6 ALD 748] of the High Court was right in affirming the view of the learned Single Judge of the High Court that the suo motu revision undertaken after a long lapse of time, even in the absence of any period of limitation was arbitrary and opposed to the concept of rule of law."
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SKS,J CRP.Nos.887 & 836 OF 2020 • Ithagani Lachaiah and others Vs. Joint Collector and Additional District Magistrate, Nalgonda and Others 9 "In the several decisions relied upon by the learned counsel for the petitioners, 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."
9 2015(4) ALD 490 24 SKS,J CRP.Nos.887 & 836 OF 2020 • Chinnaboini Narsaiah Vs. Tahsildar 10 "If was lastly contended by the learned counsel for the appellants that the power to restore possession to a protected tenant out of possession can be exercised by the Tahsildar under the explanation to sub- sec. (1) of Sec. 38-E of the Act only when the protected tenant is dispossessed. The contention is that there may be cases of surrender of possession or voluntary abandonment of possession by the protected tenant and in such events possession cannot be restored to the protected tenant. The express language of the Explanation itself is that possession can be restored by a summary enquiry in favour of a tenant who is dispossessed. Obviously, that power cannot be exercised in favour of a tenant or protected tenant who voluntarily surrenders his possession or who has abandoned the possession. The question whether a protected tenant was dispossessed or abandoned possession voluntarily is, however, a 10 1978 (2) (hc) 25 SKS,J CRP.Nos.887 & 836 OF 2020 question of fact. Suffice it to say, that the restoration of possession could only be in favour of a protected tenant who is dispossessed in contravention of Sec. 32 of the Act and not one who has surrendered or abandoned possession.
It can also be noted that the notices issued by the patwari purporting to be in possession of an order of the Tahsildar are one to which the appellants-petitioners were not parties. In the view of the matter we have taken, any order of dispossession by the Tahsildar subsequent to the Issue of ownership certificate is not only illegal and invalid, but is also not an order under the provisions of the Act. It cannot be said that the writ petitions are not maintainable on the ground that alternative remedies of appeal are available to the petitioners. The question that the petitions are not maintainable was not also seriously canvassed before us by the respondents. Even otherwise, we hold that the writ petitions are maintainable. For the aforesaid reasons, 26 SKS,J CRP.Nos.887 & 836 OF 2020 we hold that the impugned notices issued by the patwari and also the ownership certificate issued by the 2nd respondent in favour of the protected tenants without notice to the petitioners (persons in possession) and the restoration of possession having not preceded the issue of ownership certificate, are illegal. Thus, writs of mandamus would issue restraining the respondents from disturbing the possession of the appellants-petitioners. This would not preclude the authorities under the Act from taking fresh proceedings after due notice to the petitioners to consider whether respondents 4 to 7 or 4 to 9 in the other case are entitled to recover possession and the further question whether they are entitled to the ownership certificates. The appellants-petitioners would be at liberty to raise all objections including the objection as to the rights of the protected tenants for restoration of possession on the ground of extinguishment of their right."
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SKS,J CRP.Nos.887 & 836 OF 2020 • Jupudi Bhushanam Vs. Joint Collector, Khammam and Others 11 and Ramulu and Others Vs. Sumitra Bai12.
10. Having regard to the rival submissions made and on going through the material placed on record, it is noted that the only question to be decided in these revision petitions is whether the Tahsildar is competent to restore the possession after granting Section 38-E Certificate. Subsequently, the petitioners were dispossessed from the PT lands. The contention of learned counsel for petitioner is that the judgment relied upon by the learned counsel for respondent in the case of Ramulu (supra 12) is not applicable to the facts of the case on hand and that basing on the judgment rendered in the case of Sada (supra 6) the petitioners are entitled for the relief as prayed for. 11
1996 SCC OnLine AP 941 12 2013 (1) ALD 215 28 SKS,J CRP.Nos.887 & 836 OF 2020
11. Considering the averments of the case, at this stage, it is pertinent to note that in the case of V.Ramaswamy Vs. State of Telangana 13 this Court observed that the proviso to Secion 38-E (2) entitles a protected tenant even after he obtained a certificate under Section 38E to seek restoration of possession, and the legislature never intended to put any limitation/time limit for the same by linking the date of issuance of ownership certificate to the date when the application for restoration of possession was sought under the said provision. Thus the concept of laches/delay has no application at all having regard to the beneficial legislation intended to protect tenants and their successors.
12. Further, in the case of Thota Sridhar (supra) the Hon'ble Supreme Court held that the order of the learned Single Bench in Jupudi Bhushanam [Jupudi Bhushanam v. Collector, Khammam, 1996 SCC OnLine AP 941] is to the effect that once certificate under Section 38-E is granted, and subsequently he has been dispossessed, he has the right to seek remedy from the civil court. The High Court has failed to notice that the Explanation in sub-section (1) of Section 13 MANU/TL/0702/2021 29 SKS,J CRP.Nos.887 & 836 OF 2020 38-E of the Tenancy Act specifically provides that if a protected tenant, on account of his being dispossessed otherwise than in the manner and by order of the Tahsildar as provided in Section 32, is not in possession of the land on the date of the notification issued under sub-section (1), then, the Tahsildar shall notwithstanding anything contained in the said Section 32, either suo motu or on the application of the protected tenant hold a summary enquiry, and direct that such land in possession of the landholder or any person claiming through or under him in that area, shall be taken from such possession thereof and shall be restored to the protected tenant. That in the judgment of Kasa Muthanna [Kasa Muthanna v. Sunke Rajanna, 2015 SCC OnLine Hyd 592], the plaintiff was relying upon a certificate under Section 38 of the Act whereas the defendant was relying upon a sale which was void in terms of Section 38 of the Act. The High Court was examining in second appeal filed by the defendant, when the certificate under Section 38-E was granted to the plaintiff or their predecessors. In the aforesaid case, a certificate issued under Section 38-E had become final and binding for not 30 SKS,J CRP.Nos.887 & 836 OF 2020 being challenged as per the procedure established by law. The Court held that the revenue entries made ignoring the Section 38-E certificate are illegal and that when once the title is established and the defendants had failed to prove adverse possession or any other right to remain in possession, the plaintiffs are entitled to the relief of recovery possession.
13. Looking at the other sphere, in the judgment rendered by this Court in Ithagani Lachaiah (supra 9) it was uniformly held that an application should be rejected due to inordinate delay in invoking the provisions of a statute. This principle is rooted in the concept of laches, which dictates that a party seeking relief must do so within a reasonable time. The Courts have consistently emphasized that delay can be a bar to relief, even in the absence of a specific time limit prescribed by the statute. The principle consistently reiterated is that even in the absence of a prescribed time limit in the statute, the power must be exercised within a reasonable time, which is determined on a case-by-case basis. This means that the Courts will consider the specific circumstances of each 31 SKS,J CRP.Nos.887 & 836 OF 2020 case, including the length of the delay, the reasons for the delay, and the potential prejudice to the other party. In the cited cases thereof, the delay in filing an application ranged from 5 years in one case, to 12 to 15 years in another case, and up to 20 years and more in other cases. The Hon'ble Supreme Court deemed these delays unreasonable, leading to the rejection of the applications. The Court held that such inordinate delays are not justified and can lead to serious prejudice to the other party. By rejecting the applications, the Court emphasized the importance of exercising statutory powers within a reasonable time to ensure that justice is served and the rights of all parties are protected.
14. In addition, in the case of Joint Collector Ranga Reddy District (supra 8) it was summarized that delayed exercise of revisional jurisdiction is discouraged because it can lead to avoidable and endless uncertainty in human affairs. If actions or transactions were to remain forever open to challenge, it would undermine the rule of law. Even in the absence of a prescribed limitation period, intervening delays can result in the creation of third-party rights, 32 SKS,J CRP.Nos.887 & 836 OF 2020 which cannot be disregarded by a belated exercise of discretionary power, especially when no valid explanation for the delay is provided. The rule of law must align with the rule of life. Even in cases involving fraudulent orders, the exercise of revisional power must occur within a reasonable period after the discovery of the fraud. Mere allegations of fraud do not indefinitely extend the time for correction. Failure to exercise revisional power within a reasonable timeframe would itself be tantamount to a fraud on the statute that vests such power in an authority.
15. For the sake of convenience, paragraph Nos.9 to 10 of the judgment rendered in the case of Ramulu (supra 12) are extracted below:
"9. However, the question that remains to be considered is, whether on the facts of this case, the petitioners are entitled to restoration of possession. In Paragraph 5 of the written statement filed in OS No.16 of 1978, the petitioners averred as under:
"That as regards the Para 4 of the plaint it is submitted that the R.D.O., Vikarabad has rightly 33 SKS,J CRP.Nos.887 & 836 OF 2020 issued ownership certificate under Section 38E in favour of the defendants and so the allegation and statement made in the para are false and so denied. It is submitted that the defendants are in actual possession and enjoyment of the suit land, therefore the suit for injunction is not maintainable as the plaintiff is not in possession of the suit land on the date of filing the suit and also prior and after. D2 to D6 were dispossessed in 1977 and so D2 to D6 were not in possession of the suit land again by R.1. under panchanama on 6.6.1978. Since then the defendants are in possession and enjoyment of the suit land."
From the above-mentioned averments, it is clear that after the grant of Section 38E certificate, the petitioners' possession was restored by the Revenue Inspector under panchanama on 6.6.1978. In my opinion, once the tenants, in whose favour ownership 34 SKS,J CRP.Nos.887 & 836 OF 2020 certificate has been issued under Section 38E of the Act, have been put in possession of the property, they cannot approach the Tahsildar again and again for restoration of possession whenever they are dispossessed for, they no longer continue to be under protection of the provisions of theAct as they have evolved into full-fledged pe owners with the issuance of the ownership certificate under Section 38E of the Act. If they are subsequently dispossessed, they can only approach the competent civil Court by way of a suit. This view of mine is fortified by the judgment of this Court in Jupudi Bhushanam v. Joint Collector, Khammam and others, 1997 (1) ALD 440 1997 (1) ALT 627.
10. In the light of the above discussion, I am in agreement with the conclusion arrived at by the learned Joint Collector in the impugned order though for different reasons. The petitioners having become owners of the property are entitled to seek restoration of their possession as owners thereof through a civil Court. Accordingly, while holding that the petitioners are the owners of the property to the extent of Ac.1.34 ½ guntas, they are permitted to file a civil suit for recovery of their possession, in accordance with law."
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SKS,J CRP.Nos.887 & 836 OF 2020
16. In the case of Chinnaboini Narsaiah (supra 10) it was categorically observed that the power of Tahsildar to restore possession to a protected tenant under Section 38- E of the Act is limited to cases where the tenant is dispossessed, not where they voluntarily surrender or abandon possession. The court held that restoration of possession can only be in favor of a protected tenant dispossessed in contravention of Section 32 of the Act. The notices issued by the patwari and the ownership certificate issued by the 2nd respondent without notice to the petitioners were deemed illegal. Consequently, writs of mandamus were issued, restraining the respondents from disturbing the petitioners' possession. However, this did not preclude the authorities from taking fresh proceedings after due notice to consider the respondents' entitlement to recover possession and ownership certificates, allowing the appellants-petitioners to raise objections, including the extinguishment of the protected tenants' rights.
17. Reverting to the case on hand, the learned counsel for respondents opposes the plea of learned counsel for 36 SKS,J CRP.Nos.887 & 836 OF 2020 petitioners, on two main grounds, one is the ground of delay as there is inordinate delay of 37 years and the other is that once the protected tenant has become owner and possession is delivered to him, after dispossession of the protected tenant, the said possession cannot be restored by the Tahsildar and that he has to approach competent civil Court for the same.
18. With regard to the said objections, learned counsel for petitioners had mainly relied on the judgment rendered by the Hon'ble Supreme Court in the case of Thota Sridhar (supra) whereunder, it was observed that the certificate issued under Section 38-E(2) 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. In case the protected tenant is not in possession of the land, he has a right to restoration of the possession of the said land through the Tahsildar. The protected tenant cannot be dispossessed illegally by the landlord or anybody else. If so dispossessed, he has a right to restoration of the possession. He can be dispossessed only by taking recourse 37 SKS,J CRP.Nos.887 & 836 OF 2020 to the procedure prescribed under Section 32 of the 1950 Act.
19. On going through the judgment rendered in Thota Sridhar (supra) it can be said that it is a well-established principle of law that a protected tenant's rights of ownership under Section 38-E of the Act are not automatic, but rather are contingent upon fulfilling specific requirements. Firstly, a certificate of ownership must be issued to the protected tenant, which serves as proof of their ownership rights. Secondly, the protected tenant must pay the determined amount to the landowner, which represents the consideration for the transfer of ownership. Failure to obtain a certificate of ownership, produce a deed of lease, or pay the determined price can result in the annulment of ownership. This is because the protected tenant has not fulfilled the necessary conditions for acquiring ownership rights. In cases where a protected tenant or their successors are dispossessed from the land, they can seek relief under Section 32 of the Act. This provision allows them to file an application before the Tahsildar for recovery of possession. However, it is 38 SKS,J CRP.Nos.887 & 836 OF 2020 essential that they pursue this remedy in a timely manner, as delay or failure to do so can result in the loss of their rights. Moreover, if the land is subsequently acquired or third-party rights are created, the protected tenant's rights may be extinguished. Therefore, it is crucial for protected tenants to be diligent in pursuing their rights and remedies under the Tenancy Act to avoid losing their ownership rights.
20. That being so, on reverting to the facts of the case on hand, it is pertinent to note that according to petitioners, after the death of their father, they were granted protected tenancy but they left village and settled in other places for about forty years and by that time the land holder sold the properties to others.
21. The specific contention of revision petitioners is that they are in possession of subject lands as on the date of grant of Section 38E certificate and that as a matter of fact, late V. Yadhaih filed petition before the RDO praying to grant stay order to protect their rights and also a vacate petition was filed in this regard when Shaik Moinuddin 39 SKS,J CRP.Nos.887 & 836 OF 2020 obtained stay. The said fact would clearly brief that it is the specific stand of protected tenants that they were allegedly dispossessed from the lands, subsequent to grant of Section 38E Certificate and as on the date of grant of Section 38E Certificate, they were in possession of property which shows that they were in possession of the property and Section 38E Certificate was granted.
22. In other words, the factual matrix of the cases on hand does not revolve around dispossession of parties. Originally, when certificate under Section 38E was granted, the possession was delivered to PT, but it is the case of petitioners that subsequently the landlord sold the properties to others. On the contrary, it is the specific stand of learned counsel for respondents that in the year 1933 itself the properties were sold to Radhabai and Shaik Mohinuddin.
23. On going through the impugned common order, it is seen that despite being aware of the sale, petitioners waited over 37 years to assert their rights over the land and the Appellants' entitlement to possession was rejected on the 40 SKS,J CRP.Nos.887 & 836 OF 2020 ground that the Tahsildar has no power to grant possession to them, as they were dispossessed subsequent to the issuance of the Section 38-E certificate.
24. Keeping in mind the factual matrix and having considered the legal position as stated above, it is noted that in these cases the primary point to be decided is whether the Tahsildar is having power to restore the possession after dispossession of the protected tenants from the land. At this stage, it is pertinent to note the legal position of Section 32 of the Act. Section 32 of the Act provides a framework for protected tenants to seek restoration of possession. This provision allows tenants to apply to the Tahsildar for possession, ensuring that landlords cannot obtain possession without following the due process of law. The Tahsildar is required to conduct an inquiry and pass an order that is deemed fit. This process ensures that the rights of both the tenant and the landlord are protected. However, in the present case, the protected tenant's application for restoration of possession was made after a significant delay. Further, in these cases, admittedly, the possession was delivered to the protected 41 SKS,J CRP.Nos.887 & 836 OF 2020 tenant after issuance of 38E certificate and the same is mentioned in the counter filed by the respondent when the landlord challenged the Section 38E proceedings. Once the Section 38E certificate was issued and possession was delivered, he is no more the protected tenant and he is the owner. Further, when he is not the tenant of the land, there is no question of applying the tenancy laws. Therefore, the Tahsildar, is not having the power to deal with the matter as the same does not come under the tenancy laws.
25. To be precise, the evidence on record indicates that Shaik Mohluddin preferred an appeal, File No.B7/194/1977, before the Joint Collector of Mahabubnagar. The appeal challenged the legitimacy of the Section 38-E Certificate granted to the petitioner and his brother, V. Yadaiah. This certificate was issued through File No. K/3129/1977. In response to this appeal, the petitioner and his brother took proactive measures to protect their interests. On December 30, 1977, they filed a Caveat Petition before the District Revenue Officer of Mahabubnagar. This petition was submitted through their advocate, Sri R. Ramesh Rao. As part of their Caveat 42 SKS,J CRP.Nos.887 & 836 OF 2020 Petition, the brother of petitioner also provided a sworn affidavit, and in the said affidavit, he attested that the Revenue Divisional Officer had indeed granted the Section 38-E Certificate to them through File No. K/3129/1977. Furthermore, the petitioner and his brother filed a comprehensive counter on June 26, 1978. In the said counter, the petitioner and his brother emphasized that they had been rightfully granted the Section 38-E Certificate by the Revenue Divisional Officer. Moreover, they even asserted that they were in possession of the lands in question and had been so for a considerable period. The said counter cautioned that if a stay were granted on the Section 38-E Certificate, it would empower the appellant, Shaik Mohiuddin, to interfere with their rightful possession of the lands. Therefore, it can be observed that the said material shows that revision petitioners were in possession after grant of Section 38E certificate according to their counter itself. As such, the contention of learned counsel for revision petitioners, the revision petitioners were not given the possession and the 43 SKS,J CRP.Nos.887 & 836 OF 2020 same is against their own pleadings in the counter filed in File No. K/3129/1977.
26. At this stage, it is imperative to note that the Hon'ble Supreme Court in the case of Jupudi (supra 11) in paragraph No.6 held as under:
"6. I am unable to agree to the submission. Once Section 38(E)Certificate is issued, the protected tenant becomes the owner. For any subsequent dispossession he has to resort to the Civil Court. He cannot rely upon the provisions of the Tenancy Act. The facts of the Full Bench judgment are quite different and this case is distinguishable on facts. The lower Tribunals held concurrently against the petitioner on this aspect. I do not want to interfere with the order of the Collector."
27. Further, in the case of Ramulu (supra 12) it was observed that "the petitioners having become owners of the property are entitled to seek restoration of their possession as owners thereof through a civil Court". That being so, it can be noted that the Tahsildar has no right once the possession and Section 38E Certificate is granted to the 44 SKS,J CRP.Nos.887 & 836 OF 2020 protected tenants as they are no more protected tenants as consequence of the same. Therefore, the tenancy law cannot be applicable and the bar under Section 99 of the Act, in any manner, does not come in the way, to approach the civil Court.
28. Having regard to the judgments noted above and on meticulously considering the factual backdrop of the cases on hand, this Court is of the firm view that both the Courts below have rightly observed that the Tahsildar has no right to entertain such petitions and that the petitioners have to approach the competent Civil Court. There are no merits in these Revision Petitions and the same are liable to be dismissed. There shall be no order as to costs.
Miscellaneous applications, if any pending, shall also stand closed.
_______________ K. SUJANA, J Date:10.02.2025 PT 45 SKS,J CRP.Nos.887 & 836 OF 2020 THE HONOURABLE SMT JUSTICE K. SUJANA P.D COMMON ORDER IN CIVIL REVISION PETITION Nos.887 & 836 OF 2020 Date:10.02.2025 PT