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21. On 1-1-1973 the Government issued G.O.Ms. No.'3 Rev.(G) notifying all the districts in Telangana under 5. 38-E(I) for purposes of statutory transfer of ownership to protected tenants.

22. In view of the said amendment in 1971, firstly the transfer of ownership to the .protected tenant' stood postponed, as per the proviso, in cases where any proceeding under S.19, or S. 32 or S. 44 were pending, to the date of final decision in respect of those proceedings. Secondly under the Explanation, 'protected tenants' physically out of possession on the notified date i.e., on 1-10-1973, were to be deemed to he holding' the land on the date of the notification. if they had been dispossessed otherwise than in the manner as provided in S. 32 and the Tahsildar was empowered to inquire and put the protected tenant in possession and the provisions of the section were to apply as if the protected tenant had held the land on the date of 'such notification. Rules, called the A. P. (Telangana Area) Protected Tenants (Transfer of Ownership of Lands) Rules. 1973 were issued empowering the Tribunal to conduct the necessary inquiries.

37. Point No. 2 :- It is urged for the landholders that even if it is not necessary that the protected tenant should have been in physical possession on the date of notification issued under S. 38-E(I), still before proceedings under S. 38-E(2) are initiated or completed, he should have been physically put in possession by the Tahsildar under the latter part of the Explanation to S. 38-E(1).

38. The Division Bench in Narsaiah's case (1979(1) Andh WR(HC) 23) has in fact taken the view (pp. 29-30) that the two parts of the Explanation to S. 38-E(1) must be read as part of a single scheme and that unless the protected tenant is put in physical possession, there is no question of issuing a certificate of ownership. On the other hand, the other Division Bench in Chennaiah's case took the view that restoration of possession to the protected tenant is not a condition precedent. This aspect not having also been touched by Act 2 of 1979, there is a conflict between the two decisions.

39. In our view, the restoration of possession to the protected tenant under the Explanation to S. 38-E(1) is not a condition precedent for any action under S. 38- E(2) for initiating or granting an ownership certificate. It is true that the first part of the Explanation to S. 38-E(1) deems a protected tenant, dispossessed otherwise than under See. 32, to be 'deemed' to be a protected tenant on the date of notification and it is also true that under the latter part of the Explanation, a machinery is provided for such restoration of possession - notwithstanding anything in 5. 32 - by a Tahsildar after evicting the landholder or any person claiming through or under him. It is also true that the latter part of the Explanation concludes with the words and the provisions of this section shall apply thereto in every respect as it the protected tenant had held the land on the date of such notification'. But, in our view, for the purposes of transfer If ownership under S. 38-E(1) by force Of statute and for purposes of issuing a certificate under S. 38- E(2), it is the first part of the Explanation, deeming the protected tenant to he in possession on the notified date, that is important. The second part of that Explanation contains provisions which are purely incidental 'and do not prescribe that till possession is actually restored, no certificate under S. 38-E(2) can be issued.

43. It is argued for the landholders that if the Tahsildar, in proceedings under the latter part of the Explanation to S. 38-E arrives at 'findings which have a bearing on the conditions for grant of ownership certificates under S. 38-E(2), the ownership certificates already granted would be able to be revoked or cancelled and that such a situation cat be avoided only if the possession proceedings under the Explanation are completed before granting the ownership certificate.

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 S. 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 S. 19, 32 or 44, in that case no certificate at all can be issued. But, as long as a person continued to be a 'protected tenant' either under S. 34 37 or 37-A, as per the Act and has not 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 S.32(7) and the proviso to S. 38-E(1), the ownership stands transferred straightway to such protected tenant by the very force of S. 38- E(1). Further, S. 38-E(2) read with the A. P. (T.A.) Protected Tenants (Transfer of Ownership of Lands) Ruin 1973 contemplates a full-fledged inquiry after notice to the landholders or after hearing objections of any other interested person (vide Rr. 4, 5). Once a certificate is issued, the same is, under 5. 3SE(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 S. 38- E. Another reason for this view is that the inquiry under S. 38-E(2) read with the Rules of 1973 referred to above, is to be done 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 Tahslidar, who deals with the granting of possession to a 'protected tenant.'