Andhra HC (Pre-Telangana)
Potta Nagabhushanam And Another vs Revenue Divisional Officer, ... on 1 November, 2000
Equivalent citations: 2000(6)ALD749, 2000(6)ALT720
ORDER
1. An extent of Ac.8.00 of land comprised in Sy.Nos.108, 109 and 110 of Medepalli village, Enkoor Mandal, Khammam District is the subject matter of the writ petition. Indeed, it has been subject matter of disputes under the A.P. (Telangana Area) Tenancy & Agricultural Lands Act, 1950 ('the Act' for brevity). It is alleged that the third respondent is a tenant for the said land. In April, 1958, he sold the land to two persons who in turn by a registered sale deed dated 15-6-1961 sold an extent of Ac.6-00 to one Ratnakumari. Based on the title deed she also appears to have obtained necessary passbook under A.P. Record of Rights Act. When there was interference with her possession, she filed a suit being O.S. No. 190 of 1982 on the file of the Court of the Principal District Munsif, Kothagudem for injunction and the same was decreed on 24-8-1997. She was in possession throughout and on 22-3-1995 the petitioners herein purchased an extent of Ac.6-00 under registered sale deed. It is now admitted before this Court that the land demised by Ratnakumari in favour of the petitioners admeasures only Ac.5-00. Be that as it may, after obtaining the sale deed, the petitioners have been continuously in possession of the property. These facts are not denied.
2. The fourth respondent herein who is the son of the third respondent approached the Revenue Divisional Officer (RDO). Kolhagudem, first respondent herein, by making an application on 3-8-1999 requesting to restore possession of the land in Sy.Nos.108, .109 and 110 admeasuring Ac.8-00. The RDO issued necessary notices to the concerned persons and relying on the photostat copies of the certificate issued under Section 38-E of the Act to the third respondent and other Revenue records, ordered the Mandal Revenue Officer (MRO), Enkoor (second respondent) to conduct enquiry in the matter. The MRO submitted enquiry repo:. vide his letters dated 15-2-2000 and 12-4-2000. Based on the said report, it was observed by the first respondent that the third respondent was given a certificate under Section 38-E of the Act on 1-1-1973 whereas the present occupants, probably the petitioners, came into the possession of the land during 1995-96. The first respondent after considering the record found that the third respondent is a protected tenant and he is entitled for all the rights under the Act. Accordingly, by Proceedings in L.Dis. No.2554/99 dated 23-5-2000, directed line second respondent to take further action under Section 32 of the Act. White doing so, the first respondent rejected the contention of the petitioners herein that they are bona fide purchasers of the land on the ground that the provisions of Section 50-B of the Act which provides that the alienee or transferee has to make an application to the Tahsildar for a certificate declaring the alienation or transfer made by the successors in title of the protected tenant in favour of the petitioners is valid, have not been fulfilled and held that the alienation or transfer is invalid. This order of the first respondent is challenged in this case.
3. Learned Counsel for the petitioners. Sri A. Ramalingeswara Rao submits that while remanding the matter to the second respondent to proceed further in accordance with Section 32 of the Act, the first respondent ought not to have made any observation with regard to the right of the third respondent as a protected tenant to get back possession or with regard to the invalidity or otherwise of the sale in favour of the petitioners effected by Ratnakumari. He also submits that Section 32 of the Act is only the provision for restoring possession to a protected tenant who on the date of issue of certificate under Section 38-E of the Act is not in possession and that while restoring possession to the protected tenant, the Tahsildar shall have to conduct an enquiry under Section 32 of the Act. The impugned order of the first respondent renders the procedure under Section 32 of the Act nugatory and, therefore, cannot be sustained.
4. Respondents 3 and 4 after receiving notices filed a counter affidavit. They also filed a copy of the panchnama dated 31-5-2000 under which Mandal Surveyor and Mandal Revenue Inspector in the presence of three panchas allegedly handed over the land to the third respondent. They also filed certificate of ownership under Section 38-E of the Act in Form II issued by the Additional Revenue Divisional Officer in favour of the third respondent.
5. In the counter-affidavit filed by the third respondent, it is stated that the first respondent has given opportunity to the petitioners and after considering various objections passed the impugned order, that in pursuance thereof respondents were put in possession of the land and that the earlier sale transaction is not binding on respondents 3 and 4 and, therefore, the first respondent in exercise of jurisdiction under Section 98 of the Act justified the order of eviction of the petitioners. It is interesting to note that respondents 3 and 4 also objected that the order of the first respondent insofar as the same directs the second respondent to take action in accordance with Section 32 is incorrect. According to respondents 3 and 4, having regard to the facts and circumstances, it is only a case falling under Section 98 where the petitioners can be summarily evicted and the case does not fall under Section 32 which contemplates a detailed enquiry before evicting the unauthorised occupants and putting the protected tenant in possession of the disputed property.
6. When, the matter came up for admission after notice, as the counter affidavits are filed, the matter was heard at length and the same is being disposed of at the admission stage with the consent of respective Counsel.
7. The Tenancy Act is a law to regulate the relations of landlords and tenants of agricultural lands. The protected tenant is defined as a person who is deemed to be protected tenant under Section 34 of the Act. Chapter IV of the Act deals with 'protected tenants'. It provides for machinery for deciding claims as to whether a person is a protected tenant or not and also provides for procedure for recovery of possession by protected tenant (Section 36). Section 38-E of the Act in a nutshell provides that the ownership of land held by the protected tenant stands transferred to them with effect from the notified date. The 'explanation' to sub-section (1) of Section 38 introduced a legal fiction to the effect that a protected tenant who is not in possession of the land and who is dispossessed in any manner, shall be deemed to be holding the land on the notified dale. As per sub-section (2) of Section 38-E of the Act, the Tribunal, that is to say, the RDO shall issue a certificate declaring the protected tenant to be the landlord which shall be conclusive. The proviso to sub-section (2) of Section 38-E of the Act, which was substituted by Amendment Act 2 of 1979, provides that it shall be lawful for the Tahsildar to restore possession of the land to the protected tenant or holder of the certificate after giving notice of eviction to the occupant in the prescribed manner.
8. 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 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.
9. Section 32 of the Act enables a tenant 'entitled to possession under any provisions of the Act' to apply to the Tahsildar for taking possession of the land. sub-section (3) of Section 32 provides that the Tahsildar after holding enquiry may pass an order for taking possession by the tenant. It is well to remember that a tenant or a person deemed to be tenant as per Section 5 of the Act shall be deemed to be a protected tenant if he holds the land as a tenant continuously for a period of not less than six years from 1342-F or for a period of not less than six years immediately preceding 1-1-1948 or for a period of not less than six years from 1366-F. If after coming into force of the Act, a tenant who shall be deemed to be protected tenant under Section 34 of the Act has lost the possession, as a tenant, such person is entitled to seek and take back possession under Chapter III which deal with tenancy. Indeed, Chapter IV also contains a provision (Section 36) enabling a protected tenant to recover possession of the land, but that is subject to the protected tenant exercising option within six months from the date of commencement of the Act. Therefore, a protected tenant who is not in possession may seek and take back possession under Section 36 of the Act. That is not the case before us. The only provision enabling a tenant who is by law a protected tenant declared to be owner to take possession, is Section 32 of the Act.
10. Section 32 of the Act starts with a heading "Procedure for taking possession" and provides that a tenant can apply to the Tahsildar for taking back possession. Section 98 of the Act is included in the chapter containing miscellaneous provisions whereas Chapter II deals with genera! provisions and Chapter III deals with special provision concerning protected tenants. It is useful to extract Section 98 of the Act:
"Summary eviction :--Any person unauthorisedly occupying or wrongfully in possession of any land-
(a) the transfer of which either by the Act of parties or by the operation of law is invalid under the provisions of this Act, or
(b) the management of which has been assumed under the said provisions, or
(c) to the use and occupation of which he is not entitled under the said provisions;
may, if the said provisions may, if the said provision do not provide for the eviction of such person, be summarily evicted by the Collector."
11. Section 98 deals with summary eviction of any person unauthorisedly occupying or wrongfully in possession of any land, the transfer of which is prohibited by the Act; the management of which has been assumed under the provisions of the Act. and where the person in occupation is not entitled for the use and occupation of the land. Section 98 deals with the land to which a person is not entitled to occupy or use. It not only deals with the land the transfer of which is prohibited, but also deals with the land whose management is assumed by or under the provisions of the Act. It is a summary, procedure enabling the Collector as a residuary provision 'if any of the provisions' of the Act either in Chapter III or Chapter IV do not provide for. If a protected tenant who is not in possession as on the notified date but still, by virtue of explanation to Section 38-E got a certificate of ownership, has necessarily to take back possession either under Section 32 or Section 36 of the Act. As Section 36 contains a limitation of six months the protected tenant who got certificate on 1-1-1973 can get back only under Section 32 of the Act and not under Section 98 of the Act. Section 98 docs not empower the Collector or any authority to restore possession. It only provides for summary eviction. Though there appears to be overlapping of the various provisions, a careful scrutiny leads only to one conclusion that whether a person is tenant or a protected tenant he can get back possession only under the provisions of Section 32 or Section 36 of the Act. As already noticed, if a protected tenant is entitled under any provisions of the Act including Section 38-E (2) or Section 36, the procedure to be adopted by the Tahsildar is only as adumbrated under Section 32 of the Act.
12. Learned Counsel for respondents 3 and 4 has placed reliance on a judgment of a learned single Judge of this Court in Alladin v. Ramaswamy, 1970 (1) An. WR 58. Learned Counsel for the petitioners has placed reliance on explanation to Section 38-E(1) of the Act and two judgment of this Court in Achamma v. Tuljaram, 1962 (1) An.WR 60 (NRC) and Lingamiah v. Burra Yalliah, 1965 (1) An.WR 348 and submits that having regard to the facts and circumstances of these cases, the Division Bench judgment in Lingamiah 's case applies and is binding on this Court.
13. In Achamma's case (supra), the scope of Sections 32 and 98 was considered by a learned single Judge of this Court. The petitioner who was a tenant filed an application under Section 32 of the Act for eviction of occupant (respondent), who took objection that the petitioner is not a protected tenant. Therefore, the tenant approached the District Collector under Section 98 of the Act seeking eviction and possession of the land. The District Collector did not entertain the application under Section 98 of the Act, as the proceedings under Section 32 were ripe for disposal. The view of the District Collector was confirmed by the Revenue Board and the matter came up before this Court by way of a revision. The contention that Section 32 is attracted only when there is a dispute with regard to possession between the tenant and the landlord was rejected as not correct and it was further observed:
"Section 32 does not impose any condition that the dispute should be between a tenant and a landlord. Section 98 gives power to the Collector to summarily evict any person if he is of the opinion that he is unauthorisedly or wrongfully in possession of any land, and the scope for applying that section arises only when there are no other provisions in the Act for the eviction of such person. Once a procedure has been followed, viz., of invoking the powers of the Tahsildar under Section 32, it would not be expedient to seek the same relief by applying to the Collector under Section 98 of the Act. In the instant case, the tenant contested the certificate and so also the right of the petitioner to the possession of the land. Therefore, the Collector was justified in refusing to exercise his powers under Section 98 which provides for a summary proceeding and disposal of the case".
14. In Lingamiah's case (supra), a Division Bench considered the scope of Section 32 of the Act and held as under:
"The section does not say that such a tenant or agricultural labourer or artisan cannot present an application against a third party. If he is entitled to possession of the said land, he has the right to apply to the Tahsildar for being put into possession of the same. We cannot accept the contention of the learned Advocate for the respondent that since a person is described as a trespasser or a third party, the Tahsildar ceases to have jurisdiction. If a tenant is in possession and he is forcibly dispossessed by some third party, the fact that he is entitled to possession of the same as against the third party who has wrongfully dispossessed him cannot be gainsaid and if that is so, he has a right to apply under this provision."
15. The Division Bench also considered two earlier judgements of this Court in Sharfuddin v. Sama Yelluga, 1957 (2) An.WR 478 and Mohd. Hussain v. Gulam Khader Khan, 1963 (2) An.WR 329 and further held that whether a tenant is dispossessed forcibly or a tenant himself surrendered possession peacefully, the crucial test to be applied is whether the tenant is entitled to possession of any land under any of the provisions of the Act. It was also observed that if a tenant has not agreed to surrender possession, the occupant shall be a trespasser claiming possession from the landlord and still the tenant would be entitled to possession under the provisions of the Act. In either case, as held by the Division Bench, Section 32 applies as it enables the tenant to make an application to Tahsildar seeking possession of the land. The judgements in Achamma's case and Lingamiah's case (supra) support the view taken by me that "if a tenant or a protected tenant is entitled under "any of the provisions of the Act' to take possession", Section 32 of the Act alone applies for putting the tenant in possession.
16. The judgement relied on by the learned Counsel for respondents 2 and 3 in Alladin's case (supra), in my considered opinion, does not take a different view. In the case cited by the respondents Counsel, a finding was recorded that Section 98(c) covers the case as the person was wrongfully in possession of the land to which he is not entitled for use or occupation. His Lordship Justice O. Chinnappa Reddy (as His Lordship then was) also observed that since the landlord or a person claiming through landlord does not come within the description of clause 98(a), (b) or (c), only Section 32 applies and Section 98 is not meant to apply to such cases. The case turned on its own facts and the same cannot be read as laying down the principle that in every case where the tenant has to get back possession, the Collector has to resort to summary eviction under Section 98. The relevant passage is as under:
"It will be seen at once that clause (c) of Section 98 precisely covers the case of a person who is wrongfully in possession of any land to the use and occupation of which he is not entitled under the said provisions. Since neither the landlord, nor a person claiming under him falls within the descriptions in clause (a) (b) or (c) it is reasonable to infer that to such cases Section 32 alone is meant to apply and Section 98 is not meant to apply to such cases. Though the Act is primarily meant to regulate the relations of landholders and tenants, the Legislature being solicitous of the rights of tenants has enacted Section 98 in order to protect tenants from third parties, including persons who may be set up by the landholder without deriving any right from the landholder".
17. There is yet another aspect of the matter. As already noticed, the explanation to Section 38-E is categorical that even when a protected tenant is not in possession of the land, notwithstanding any judgment decree, order of the Court, for the purpose of Section 38-E, he shall be deemed to be holding the land on the date of notification. In the case on hand, the third respondent sold his land on 27-4-1958, but by virtue of the legal fiction he shall be deemed to be holding the land and that is the reason why he was given ownership certificate under Section 38-E of the Act on 1-1-1973. Therefore, in my considered opinion, when a person like protected tenant is deemed to be holding the land there is no occasion for attracting the provisions of Section 98 of the Act providing for summary eviction. The protected tenant is to be restored physical possession of the land. As observed by three authorities cited above, the provisions of Section 32 are alone applicable.
18. Sri Kameswara Rao has relied on the Form of notice to be issued by the Tahsildar for restoring possession to a protected tenant who was issued ownership certificate. The Form cannot be read in a vacuum. Reading of Rules 1, 2 and 3 of the Rules promulgated under Section 97 read with Section 38-E of the Act, in G.O. Ms. No.2064 dated 7-5-1998 do not support any contention that for restoring possession to a protected tenant as per the proviso to sub-section (2) of Section 38-E, only procedure under Section 98 should be followed. The procedure contemplated under Section 32(3) is no way different than the procedure contemplated in the Rules for the purpose of Section 38-E. Therefore, the submission of Sri Kameswara Rao is without any substance and accordingly rejected.
19. In the impugned order, the first respondent himself directed the second respondent to take action in accordance with Section 32 of the Act. The only objection of the learned Counsel for the petitioners is that the various observations made by the first respondent would not leave anything to be decided by the second respondent in the enquiry. Therefore, as directed by the first respondent, the matter shall stand remitted to the second respondent who shall decide the application of respondents 3 and 4 in accordance with law. He shall decide the same without being influenced by the report submitted by the MRO or by any of the observations made by the first respondent in the impugned order.
20. The writ petition is accordingly disposed of. There shall be no orders as to costs.