State Of A.P. & Anr vs T. Yadagiri Reddy & Ors

"Reportable"

IN THE SUPREME COURT OF INDIA

CIVIL APPELLATE JURISDICTION

CIVIL APPEAL NO. 6557 OF 2002

State of A.P. & Anr. .... Appellants

Versus

T. Yadagiri Reddy & Ors. .... Respondents

JUDGMENT

V.S. SIRPURKAR, J.

1. A Judgment by the High Court allowing a Civil Revision Petition,

setting aside the order passed by the Land Reforms Appellate Tribunal-

cum-II Additional District Judge of Ranga Reddy District (hereinafter called

`the Appellate Tribunal' for short) is in challenge before us. The High Court

while allowing the Revision, recognized the rights of the respondents

herein as the protected tenants and further held that they become absolute

owners of the land by purchasing the land in respect of which they were

protected tenants. As a sequel, the High Court held that the land held by

them could not be declared as a surplus land and could not be distributed

as such. Before we approach the disputed questions, a factual background

would be necessary.

2

2. Five respondents, namely, (1) Shri T. Yadagiri Reddy, (2) Shri T. Bal

Reddy, (3) Shri T. Janardhan Reddy, (4) Shri T. Mohan Reddy, (5) Shri T.

Satyanarayana Reddy are the sons of Late Shri T. Papi Reddy. According

to them, the said Late Shri T. Papi Reddy was a protected tenant from (1)

Late Shri Khaja Shakhir Hussain, (2) Shri Khaja Nasir Hussain, (3) Smt.

Razia Sultana W/o Mir Sadath Ali. It is the case of the respondents, as

seen from their Counter affidavit that at the commencement of A.P.

(Telangana Area) Tenancy & Agricultural Lands Act, 1950 (hereinafter

called "the Tenancy Act" for short) and more precisely, on 10.6.1950, their

father Late Shri T. Papi Reddy was deemed to be the protected tenant of

the land, admeasuring 123 Acres 17 guntas, bearing Survey Nos. 18 to 24

(old), i.e., new Survey Nos. 24 to 30 and 39 of Meerpet Revenue Village,

Saroornagar Mandal, Rangareddy District, Andhra Pradesh. This land

belonged to Late Shri Khaja Shakhir Hussain and others, who were the

Jagirdars of that Village. Their father Late Shri Papi Reddy entered into an

agreement on 25.2.1956 with Late Shri Khaja Shakhir Hussain and others

for transfer of land holders' interest in the said land to the tenants Late Shri

T. Papi Reddy himself and the present respondents. The respondents

asserted that this was under the provisions of Section 38-A & B of the

Tenancy Act. They further pleaded that there was oral partition between

Late Shri T. Papi Reddy and his sons, i.e., respondents, in which lands

stood divided and that included also the concerned land to the extent of

123 acres 17 guntas, comprising of Survey Nos. 24 to 30 and 39.

According to the respondents, the whole land was divided into six equal 3

shares. They then pointed out that on 1.1.1975, A.P. Land Reforms

(Ceiling on Agricultural Holdings) Act, 1973 (hereinafter called "the Ceiling

Act" for short) came on the anvil. Under the provisions of that Act, Late

Shri T. Papi Reddy, as also the present respondents filed six separate

declarations regarding the land owned and possessed by them and these

declarations included the aforementioned Survey numbers also, which

were obtained by them in their capacity as the protected tenants. It is the

further case of the respondents that a Verification Report in respect of the

declarations made by the respondents and Late Shri T. Papi Reddy were

verified by the Verification Officer and the same Report was submitted to

the Land Reforms Tribunal I-cum-Additional Revenue Divisional Officer

(hereinafter called `the Tribunal) of Ranga Reddy District, appointed under

the Ceiling Act. This was on 31.7.1975 and 8.8.1975. In between

14.8.1975 and 22.10.1975, six orders came to be passed by the Tribunal.

The dates and the other details of these Revenue cases, dealt with by the

Land Reforms Tribunal, were as under:-

S.No. Name of the C.C. Reference Date of Order Exhibits Declarants No. No.

1. T. Papi Reddy (father) 1006/E/75 27.10.1975 A-12

2. T. Yadagiri Reddy 439/E/75 14.8.1975

3. T. Bal Reddy 440/E/75 14.8.1975 A-8

4. T. Janardhan Reddy 801/E/75 14.8.1975 A-6

5. T. Mohan Reddy 1009/E/75 14.8.1975 A-4

6. T.Satyanarayana 1143/E/75 14.8.1975 A-5 Reddy

3. So far so good. The respondents claimed that they continued to be

in possession of the lands, since none of them had held more land than the 4

ceiling area prescribed by the Ceiling Act. The orders passed in their case,

shown in the Table above were also not appealed against by the State

Government and had become final. While the matters in case of the

respondents stood thus, a further development took place as follows.

4. On 22.7.1994, an order came to be passed by the Tribunal,

purporting to hold the lands in Survey Nos. 24 to 30 and 39 in the holdings

of Late Shri Khaja Shakhir Hussain and others (land holders) and it was

declared in that order that the land holders therein were surplus holders.

The respondents pointed out that this order was completely oblivious of the

six orders passed in case of Late Shri T. Papi Reddy and themselves,

shown in the Table nor did they (Late Shri T. Papi Reddy and the

respondents herein) join as parties to the proceedings. It was further

pointed out that on 6.2.1996, a public notice was issued by the Tribunal,

Ranga Reddy District, calling for the objections in declaring Survey Nos. 24

to 30 and 39 as the surplus land, as held by Late Shri Khaja Shakhir

Hussain and others. However, Late Shri T. Papi Reddy had already

expired on 21.11.1975, i.e., barely one month after the order in his case

was passed. On 13.2.1996, the respondents filed the objections to the

proposal of the said Survey Nos. 24 to 30 and 39, being surrendered as a

surplus land.

The Tribunal rejected the objections filed by these respondents by

order dated 22.7.1995 (2.3.1996), against which they filed an appeal on

11.8.1997 before the Land Reforms Appellate Tribunal-cum-II Additional 5

District Judge, Ranga Reddy district at Saroornagar, Hyderabad, A.P. By

its order dated 9.9.1997, the Appellate Tribunal partly allowed the appeal

only to the extent of 33 acres and 12 guntas in the aforementioned Survey

Numbers, while the said appeal was rejected in respect of the remaining

extent of 90 acres of land. That order was challenged by way of a Civil

Revision Petition before the High Court, being Civil Revision Petition No.

4351 of 1997 and the said order was set aside by the High Court by the

impugned order. The respondents, therefore, claimed that they were

protected tenants and there was no question of the land comprising of 3

Survey numbers, being declared as surplus and it had long ceased to be

the land of Late Shri Khaja Shakhir Hussain and others, and they had

become the full owners of that land. In short, they claimed that they had

purchased the said land in the capacity of the protected tenants in terms of

Section 38 of the Tenancy Act. They further pleaded that if the

proceedings under the Ceiling Act concerning them had become final, as

such, those orders had become res-judicata against the State. They also

pointed out that after the death of their father Shri T. Papi Reddy in the

year 1975 and even before that they had partitioned the land and all

through, they were treated to be the protected tenants earlier and

thereafter, the land holders. They relied on substantial Revenue record in

support of their status as the protected tenants, as also the Certificates

issued by the Revenue Department under Section 38-E of the Tenancy

Act, signifying their exclusive nexus with the land to the exclusion of the

original land holder.

6

5. Before we advert to the arguments of Shri R. Sundaravardan,

Learned Senior Counsel appearing for State of Andhra Pradesh and the

reply thereto by Shri P. P. Rao, Learned Senior Counsel, appearing for the

respondents, it will be better to see the findings given by the Learned

Single Judge of the High Court. The High Court, firstly found that the

Appellate Tribunal had allowed the appeals to the extent of 33 acres 12

guntas, in respect of which the ownership Certificates were granted under

Section 38-E of the Tenancy Act, in support of which the respondents had

filed Exhibit A-2. The High Court also found that the Appellate Tribunal

had dismissed the appeal in respect of 96 acres 12 guntas on the ground

that these lands were covered by Section 38-B of the Tenancy Act. The

respondents had filed the Certificates - Exhibit A-1. The High Court noted

that the Appellate Tribunal had taken a view that in pursuance of the

Agreement dated 22.5.1956, the land holders could not have purchased

the lands, as there was no permission under Section 47 and 48 of the

Tenancy Act for such sales. However, the High Court proceeded on the

ground that the lands were covered under Section 38-B of the Tenancy

Act. The question before it was as to whether such lands held by a

protected tenant and covered under Section 38-B of the Tenancy Act were

liable to be excluded under Section 13 of the Ceiling Act from the ceiling

area of the land holder. The High Court then noted that the respondents

were never made parties to the Ceiling proceedings in respect of Late Shri

Khaja Shakhir Hussain and others made on the basis of the declarations

filed in C.C. Nos. 2476, 2477 and 2478 of 1975, in which the lands were 7

shown in their holding. The High Court then took the note of the separate

ceiling cases, which had attained the finality by the various orders passed

between 27.10.1975 and 14.8.1975, in which it was held that the

respondents were entitled to 1/6th share and they were non-surplus holders

in respect of the lands held by them as the protected tenants. The High

Court noted that those orders had become final. The High Court,

therefore, took the note of the fact that in spite of this finality in those

cases, these lands were again included in the holding of Late Shri Khaja

Shakhir Hussain and one another (the original respondent Nos. 3 & 4

before the High Court) and they were declared to be the surplus holders

and further, suo moto proceedings were also initiated in respect of those

lands. The High Court found that there was no dispute with the primary

fact that the respondents' father Late Shri T. Papi Reddy was the protected

tenant in respect of not only those lands in respect of which the Certificates

under Section 38-E was issued, but also in respect of the land falling under

Section 38-B. The High Court then held that the respondents were not

strangers or trespassers, but, were the protected tenants, and as such,

their land stood excluded under Section 13 of the Ceiling Act. The High

Court extensively dealt with Section 13 of the Ceiling Act, Section 38 of the

Tenancy Act and more particularly, sub-Section B thereof and came to the

conclusion that a Certificate issued under Section 38-B was on par with the

Certificate granted under Section 38-E of the Tenancy Act. It, therefore,

concluded that there was no question of applicability of Section 47 and 48

of the Tenancy Act, requiring prior permission. Relying on two reported 8

decisions, the High Court ultimately held that in view of the Certificate

having been granted in favour of Late Shri T. Papi Reddy under Section

38-B of the Tenancy Act, the respondents had become the absolute

owners, and as such, their land could not be included in the ceiling area of

the land holder and could not be put for distribution, treating it to be the

surplus land. The Civil Revision was allowed with these observations.

6. Shri R. Sundaravardan, Learned Senior Counsel, appearing on

behalf of the appellant State of Andhra Pradesh assailed the judgment,

firstly, on the ground that Late Shri T. Papi Reddy, father of the

respondents herein, himself could not be a protected tenant and thereby,

even the respondents, who were his sons could not have become the

protected tenants in law. The Learned Senior Counsel argued that since

the very basis of the claim of the respondents is without any substance, the

further claim of the separate possession in their capacity as the protected

tenants has no basis. The Learned Senior Counsel for this argument,

relied on the plea raised by the respondents that there was an Agreement

of Purchase between Late Shri T. Papi Reddy and the Jagirdars (landlords)

in respect of 123 acres and 17 guntas of land contained in Survey Nos. 24

to 30 and 39. The Learned Senior Counsel pointed out that ever since the

said Agreement was executed, the possession of Late Shri T. Papi Reddy,

as also his sons, did not remain that of the protected tenants, and in fact,

Late Shri T. Papi Reddy alone became an owner of the said land and in

that view, there could not have been also a partition between Late Shri T. 9

Papi Reddy and his sons, as was claimed by the respondents, for the

simple reason that the said land did not have the character of a partible

estate since the land was tenanted land once upon a time. The Learned

Senior Counsel carried his arguments further and suggested that even

assuming that the said tenancy continued in favour of Late Shri T. Papi

Reddy and after his death, in favour of the respondents, there was nothing

on record to suggest that there was any permission obtained under Section

47 by either Late Shri T. Papi Reddy or the respondents for purchasing this

land. Lastly, the Learned Senior Counsel contended that even if it is

assumed that the status of protected tenant was conferred upon the

respondents under the provisions of the Tenancy Act, and further even if

there were final orders passed under the Ceiling Act, which remained

unchallenged by the Government, it was always open for the Government

under Section 50 of the Tenancy Act to reopen the proceedings. The

Learned Senior Counsel, therefore, argued that at least excepting Late Shri

T. Papi Reddy, whose claim was admitted in respect of the lands covered

by the Certificate under Section 38-E, the other lands in possession of the

respondents were bound to be declared as surplus lands.

7. As against this, Shri P. P Rao, Learned Senior Counsel, appearing

on behalf of the respondents, firstly contended that the orders dated

14.8.1975 and 27.10.1975 passed by the Tribunal had become final and

binding on the parties thereto, including the State Government, and since

there was no appeal under Section 20(5) of the Ceiling Act, those orders 10

would operate as res-judicata in all the subsequent proceedings. The

Learned Senior Counsel pointed out that there was no scope for reopening

these orders. Shri Rao also criticized the order dated 22.7.1994, passed by

the Tribunal, declaring 17.9766 standard holdings of land of the original

land holders to be in excess as void, ab initio, particularly, because the said

land was belonging to the respondents, who were admittedly the protected

tenants in occupation of the land and in whose case, the Tribunal had

passed the order approximately 20 years back, at the time when the

impugned orders (dated 14.08.1975 and 27.10.1975) were passed. It was

pointed out that no orders in respect of these lands could have been

passed unless the respondents were noticed by the Tribunal, and further,

the Counsel pointed out that the respondents had the Certificates issued

under Section 38-B, which rendered the orders passed by the Tribunal in

case of the original land holders, without jurisdiction. The Learned Senior

Counsel further contended that there was no question of the land in

possession of a protected tenant being declared as surplus land, which

was liable to be surrendered. It was pointed out by the Learned Senior

Counsel that the Certificates granted in favour of the respondents under

Section 38-B of the Tenancy Act remained valid and in the present case,

so remained valid, since they were not challenged, and at the same time,

the Tribunal, under the Ceiling Act, had no jurisdiction to declare the said

Certificate as illegal. The Learned Senior Counsel invited our attention to

the provisions of the Tenancy Act to suggest that the tenancy rights were

heritable rights. Our attention was also invited to Section 13(1) of the 11

Ceiling Act, as also Section 38-B of the Tenancy Act. Shri Rao, therefore,

contended that the order of the High Court was unassailable. The

Learned Senior Counsel also took us through the history of this lengthy

litigation and pointed out that on 13.4.1983, Certificate of Ownership was

issued under Section 38-B of the Tenancy Act and the mutation also took

place in favour of the respondents in respect of 90 acres 4 guntas of land,

which was a land in question, which Certificate had attained the finality.

The Learned Senior Counsel pointed out that the land concerned was sold

after it was converted into the non-agricultural land to as many as 1,137

purchasers for residential purposes. It is on these conflicting claims that

we have to examine the judgment.

8. On these conflicting contentions, the question which crops up is

whether the concerned land can be included in the holding of the original

land holders and be declared surplus to the detriment of the respondent

Nos. 1-5. This question would depend upon the answer to the question as

to whether the respondents ever got the status of a `protected tenant', vis-

a-vis the concerned land, within the meaning assigned to that term in the

Tenancy Act and what is the effect, and whether that status would result in

excluding the land from the operation of the Ceiling Act. Since Shri

Sundaravardan also contended about reopening of the ceiling and tenancy

cases, still another question would be whether the Government would now

be justified in reopening the ceiling cases, which stood finalized, as also

whether it would be justified in opening the cases, wherein the Certificates 12

were granted to the respondents declaring them as protected tenants, vis-

`-vis, the concerned land.

9. Before we take up the consideration on these questions, since the

matter predominantly relates to the orders under the Ceiling Act, it would

be worthwhile to consider few provisions of this Act. This Act which is

called the Andhra Pradesh Land Reforms (Ceiling on Agricultural Holdings)

Act, 1973 came on the anvil with the assent of the President dated

29.7.1972 and was published in the official Gazette on 31.7.1972.

However, it came into force on 1.1.1975. `Holding' is defined in Section 3(i)

as under:

"3(i) `holding' means the entire land held by a person-

(i) as an owner; (ii) as a limited owner; (iii) as an usufructuary mortgagee; (iv) as a tenant; (v) who is in possession by virtue of a mortgage by conditional sale or through part performance of a

contract for the sale of land or otherwise; or in one or more of such capacities, and the expressions "to hold land" shall be construed accordingly."

Term `Owner' is defined in Section 3(n) as under:

"3(n) `owner' includes a person by whom or in whose favour a trust is created; but does not include a limited owner; and in the case of any land not held under ryotwari settlement, a person who is or would be entitled to the grant of a ryotwari patta or to the registration as an occupant in respect of such land under any law for the time being in force providing for the conversion of such land into ryotwari tenure and where there is no such law, any person holding such land immediately before the specified date otherwise than in any one of the capacities in items (ii) to (v) Clause (i); but does not include a limited owner." (Emphasis supplied).

13 Term `Person' is defined in Section 3(o) as under:

"3(o) `person' includes an individual, a family unit, a trustee, a company, a firm, a society or an association of individuals, whether incorporated or not."

Term `Tenant' is defined in Section 3(t) as under:-

"3(t) `tenant' means a person who cultivates by his own labour or that of any other member of his family or by hired labour under his supervision and control, any land belonging to another under a tenancy agreement, express or implied: and includes a person who is deemed to be a tenant under any tenancy law for the time being in force;

Term `Ceiling Area' is defined under Section 4 as under:

"4. Ceiling Area:- (1) The ceiling area in the case of family unit consisting of not more than five members shall be an extent of land equal to one standard holding.

(2) The ceiling area in the case of a family unit consisting of more than five members shall be an extent of land equal to one standard holding plus an additional extent of one-fifth of one standard holding for every such member in excess of five, so however, that the ceiling area shall not exceed two standard holdings.

(3) The ceiling area in the case of every individual who is not a member of a family unit, and in the case of any other person shall be an extent of land equal to one standard holding."

Thus, it's a charging Section.

Section 5 provides the methodology for fixing the standard holding

for different classes of lands and computation thereof. Section 7 speaks

about the transfers of land between 24.1.1971 and the notified date, i.e,

1.1.1975. It's a complete scheme as to which transfer should be treated to 14

be good and otherwise. In short, that Section bars the transfers in

anticipation of and with a view to avoiding or defeating the object of the

Ceiling Act. Under Section 8, every person has to give a declaration,

whose holding on the notified date together with any land transferred by

him on or after the 24.1.1971, whether by sale, gift, usufructuary mortgage,

exchange, settlement, surrender or in any other manner whatsoever, and

any land in respect of which a trust has been created by him on or after

24.1.1971, exceeds the specified limits. Under Section 9, the Tribunal

created under the Ceiling Act has a duty to enquire into and determine the

extent of area held or deemed to be held by the person on the notified date

and to declare any land found in excess of the ceiling area. Section 10

speaks about the surrender of land in excess. It also provides as to which

land can be surrendered and which land cannot be surrendered, and

whether the surrender declared by the land holder is to be surrendered or

not, has to be decided by the Tribunal. Sub-Section 5 specifically provides

that it would be open to the Tribunal to refuse or accept the surrender of

any land, which has been converted into non-agricultural land and is

rendered incapable for being used for agricultural purposes. Under

Section 13, a special provision is made for the protected tenants. The

Section provides that where the holding of any owner includes any land

held by a protected tenant, the Tribunal shall, in the first instance,

determine whether such land or part thereof has been transferred to the

protected tenant under Section 38-E of the Tenancy Act, and if such

transfer is made, such land shall be excluded from the holding of the owner 15

and included in the holding of such tenant. Sections 15 and 16 speaks

about the amount payable in lieu of that land to the land holder. Section 20

speaks about the appeal and Section 21 about the revision against the

orders passed by the Tribunal. This is the broad picture of the provisions

of the Ceiling Act.

10. Let us, now, have look on some of the relevant provisions of the

Tenancy Act. It must be remembered that this Act came on the legal

scene in the year 1950. The term `Protected' is defined under Section 2(r)

as under:-

"2(r) `Protected' means a person who is deemd to be a protected tenant under the provisions of this Act.

Section 5 provides as to who can be deemed to be a tenant and

more or the less, provides that a person lawfully cultivating to the land

belonging to another person, would be deemed to be a tenant. Chapter IV

deals with the protected tenants and declares that if a person had held any

land as a tenant continuously for a period specified in Section 34(a)(i), (ii),

(iii), then such person would be deemed to be a protected tenant.

11. There is no dispute in the present case that Late Shri T. Papi Reddy

was holding the lands at the commencement of the Tenancy Act and he

was a protected tenant in respect of the land including the lands in

question. Section 38 which is extremely important for us, provides the

rights of the protected tenants, which includes his rights to purchase the

land from landholder's interest, subject to sub-Section 7. It also provides 16

the modality as to how the said purchase would be enforced by the

protected tenant, and also procedure, where the land holder refuse to

accept the offer made by the protected tenant. Section 38-A is a

procedure, where reasonable price is agreed to between the landholder

and protected tenant. Section 38-B provides procedure, where the

landholder agrees to relinquish his rights in favour of the protected tenant.

Under that Section, an application is to be made to the Tribunal by the land

holder, and then a Certificate is issued in favour of the tenant. Section 38-

E specifically provides for the transfer of ownership of such lands held by

the protected tenants. It provides that such lands would get automatically

transferred with effect from the notified date and a Certificate in the

prescribed form declaring him as the owner, would be issued by the

Tribunal after holding the necessary enquiry. Sections 47 and 48, which

were earlier in the Tenancy Act, stand deleted from 1969. The said

Sections provided the permission to be had before such transfers were

made under Section 38. Section 50-B(4) of the Tenancy Act gives a power

to the Collector to act suo moto for examining the record relating to any

certificate issued or proceedings taken by the Tahsildar under this Section

for the purpose of satisfying himself as to the legality or propriety of such

certificate or as to the regularity of such proceedings and pass such order

in relation thereto as he may think fit. On this legal backdrop, it will be now

for us, to consider the contentions raised by the Learned Counsel. 17

12. The first and foremost contention raised by Shri Sundaravardan,

Learned Senior Counsel, appearing on behalf of the appellants was that

since on 25.2.1956, an Agreement was executed by the original land

holders in favour of Late Shri T. Papi Reddy, whereby, he agreed to sell the

land in question, Late Shri T. Papi Reddy, himself had rescinded his status

as a protected tenant and thereafter, remained in possession only as an

intended purchaser under the Agreement and that is where all his rights

came to an end. The said Agreement is on the record. It is an

unregistered document and suggests that the concerned land,

admeasuring 90 acres of land, was agreed to be sold for Rs.2,592/-. This

is the Agreement between Late Shri Khaja Shakhir Hussain and Late Shri

T. Papi Reddy, the father of the respondents. On this, the Learned

Counsel pointed out that if this was so, then there would be no question of

the status of protected tenant to be claimed by either Late Shri T. Papi

Reddy or his sons like the present respondents.

13. In the first place, this is only an Agreement of Sale and not a Sale

Deed inter-partes. The Agreement clearly suggests that the parties will

appear before the Revenue Authority for obtaining the necessary

permission for such transfer under the Tenancy Act, and on obtaining the

permission, the Sale Deed would be executed between the parties. It also

provides that if the permission is not granted, the consideration would be

returned. All this was necessary because at that time, under Section 47

and 48, the permission of Tahsildar was required for alienation of

agricultural land. However, in the year 1969, Sections 47 and 48 were 18

deleted from the Tenancy Act, thereby, there was no permission required

and indeed, it seems that within four months of this Agreement, he effected

a family partition by dividing all his lands, including the present land under

six equal shares, taking one share for himself and the remaining shares for

his five sons. The matters do not seem to have progressed thereafter

regarding this agreement.

14. However, as soon as Ceiling Act came into existence, Late Shri T.

Papi Reddy and all his sons, including the respondents, filed separate

declarations in the lands in their possession under Section 8 of the

Tenancy Act. These claims were duly verified and it was claimed that

these verifications took place on 31.7.1975 and 8.8.1975. This claim has

not been disputed at any time. It seems that the enquiry was made on the

basis of these declarations and even a public notice was issued as

prescribed by the rules, which publication took place on 16.6.1975 and

28.6.1975. However, on receiving `No Objection', it is found that the

declarants were the Pattedars in the orders passed. It was specifically

mentioned that the present respondents had claimed 1/6th share in the

lands held by Late Shri T. Papi Reddy as owner under Section 38-E of the

Tenancy Act. It was mentioned in the order further that even if the 1/6th

share claimed by one son is taken into consideration, the total holding of

the son would be less than ceiling area and as such, the claim was being

accepted and the matters were closed, holding that the individual sons did

not own the land in excess of the ceiling areas. The orders of similar 19

nature were passed in case of all the five respondents herein, so also, the

orders were passed in Late Shri T. Papi Reddy's case. Undoubtedly, in all

the orders related to the sons, the Tribunal did mention that the declarant

had not produced any proof as to how the declarant is not so far entitled to

share in the lands of his father Late Shri T. Papi Reddy. However, realizing

that even if that share is included, since the land in possession of the

declarant son does not exceed the ceiling limit, the matters were left at

that, and it was concluded that the individual sons did not hold land in

excess of the ceiling area.

15. We have also seen the order passed in the case of Late Shri T. Papi

Reddy himself. Undoubtedly, Late Shri T. Papi Reddy also had shown that

he had purchased the land measuring 87 acres 33 cents as a protected

tenant and had shown that he had only 1/6th share in that, and the

remaining land was held by his major sons. He claimed the status of a

protected tenant in respect of the other land in Survey Nos. 24 and 25,

measuring 33 acres 14 cents and claimed 1/6th share in the remaining

land. The Tahsildar in his Report had shown that the declarant was owner

of certain lands, measuring 8 acres 79 cents and was in possession of

Survey Nos. 24 to 30 and 39, measuring 122 acres 7 cents as protected

tenant. Therefore, even at that stage, the status of at least Late Shri T.

Papi Reddy as a protected tenant, was not disputed. On the other hand,

that can be treated as an admitted position, thanks to the Verification

Report, relied upon by the Tribunal. The Tahsildar in that Verification 20

Report had computed the standard holding of the declarant as 2.2270 and

after allowing the land of one standard holding, recommended the surplus

land at 1.2270 standard holding. However, the order shows that the

declarant had filed the Counter on 4.9.1975 before the Tribunal that Late

Shri T. Papi Reddy was the protected tenant in respect of Survey Nos. 24

to 30 and 39, and he was in possession of the said land as a Karta of the

Joint Family, consisting himself and his five sons, namely, the present

respondents. He pleaded that he was holding the tenancy for and on

behalf of Joint Family in his character as a Karta and consequently, the

rights of the protected tenants would be deemed to have been conferred on

the entire Joint Family and, therefore, the major members of the Joint

Family, namely, the present respondents herein, had a share in the equal

proportion of the said property. The Tribunal has further taken a note that

Late Shri Khaja Shakhir Hussain, the original land holder had agreed to

alienate the said land and an Agreement of Sale referred to earlier, was

also produced before the Tribunal. The theory of inter-se partition, which

took place in June, 1956 was also pressed into service and referred to by

the Tribunal in its order. Amongst the documents filed before the Tribunal

was the Agreement of Sale dt. 25.2.1956 and the four witnesses were also

examined, including Late Shri T. Papi Reddy himself. The Tribunal took

note of the fact that Late Shri T. Papi Reddy had ancestral land of 9 to 10

acres at Meerpet Village, which was being cultivated by himself, and in

addition thereto, purchased 123 acres 7 guntas of land from Late Shri

Khaja Shakhir Hussain etc. in the year 1955 and the agreement of sale 21

was executed in the year 1956. Even the consideration was paid and this

consideration was from the joint earnings of himself and his sons from the

cultivation of the lands held by the Joint Family, thereby, meaning that

there was a nucleus with the Joint Family and the said Joint Family

property did produce income, out of which the concerned 123 acres 7

guntas of land came to be purchased, so as to become a Joint Family

property and it is, therefore, that the said lands were treated to be the Joint

Hindu Family property and were partitioned in the year 1956, which

partition was evidenced in the mutation of these lands, also in the Revenue

records. The Tribunal, however, found that though mutation of ancestral

land was effected, the purchased lands were not yet mutated and they still

remained in the name of land holder Late Shri T. Papi Reddy, however, the

land revenue was being paid by Late Shri T. Papi Reddy and his sons

separately. The Tribunal then referred to the evidence of Shri K. Bhujang

Reddy, Shri Vanga Bikshapathi Reddy and Shri Challa Linga Reddy.

These three witnesses supported the theory of partition in the year 1956,

and also deposed that Late Shri T. Papi Reddy and sons were divided, and

living separately and cultivating their properties (lands) accordingly. The

Patwari was also examined, who claimed that he had no information about

the division of lands between Late Shri T. Papi Reddy and his sons, but

they were separately enjoying the concerned lands for grazing their cattle.

The question was thoroughly gone into by the Tribunal. Relying on Section

34 of the Tenancy Act, and also on definition of `Person' given in sub-

Section 2 thereof, the Tribunal came to the conclusion that the whole 22

partition became a Joint Family property in the hands of the acquirer. The

Tribunal has also found that Late Shri T. Pappi Reddy was the protected

tenant in respect of 123 acres 17 guntas of land, and the definition of a

`Protected Tenant' included undivided Joint Hindu Family members also.

The Tribunal, therefore, concluded in the following words:

"Therefore, the sons of the declarant were not divided upto 1956, were also having right in the lands held by his father as protected tenant."

The Tribunal ultimately held:

"There is a case to believe that the declarant was having ancestral lands and out of the income of these lands, he purchased the lands from Shri Khaja Shakhir Hussain etc. in the year 1956 and, therefore, these lands also form part and parcel of joint family properties in which his five major sons will have equal notional share and the share of the declarant will be 1/6th."

It is on this basis, that the Tribunal closed the case.

16. Very surprisingly, and to the dismay of Shri Sundaravardan, Learned

Senior Counsel for appellants, this order has remained unchallenged and

has become final. Late Shri T. Papi Reddy almost immediately after this

order on 27.10.1975, died within two months and the order remained as

validly passed order by the Tribunal with full jurisdiction. Even the other

cases of the respondents were finalized and they were also closed. In

case of Late Shri T. Papi Reddy, it was held that he did not hold land in

excess of the ceiling on the notified date, i.e., on 1.1.1975. This proves to

be a complete answer to the case pleaded by Shri Sundaravardan. This 23

order, particularly, in case of Late Shri T. Papi Reddy, which was heavily

relied by Shri Rao, Learned Senior Counsel appearing on behalf of the

respondents, firstly holds that Late Shri T. Papi Reddy was a protected

tenant and his status as a protected tenant was not an individual status,

but, the status belonged even to the other members of his undivided family.

It is further finally held in this order that Late Shri T. Papi Reddy, as such,

had acquired the property of 123 acres 17 guntas out of income of the Joint

Hindu Family and thus, the whole property became a joint property, so as

to open for partition and accordingly, the partition was not only effected,

but, acted upon also by the separate cultivations of all the six members.

On this strong background, it will be futile to say that Late Shri T. Papi

Reddy or his sons, the present respondents herein, were not the protected

tenants. They were not only treated as the protected tenants, but their

individual cases were also dealt with by the Tribunal, which held that

individually, they did not hold any land more than the ceiling area. All these

orders right from 1975 till today, i.e., for 33 years, have remained

unchallenged.

17. Shri Sundaravardan then took us to Section 13 of the Ceiling Act and

pointed out that only the land covered under Section 38-E of the Tenancy

Act, was to be excluded and, therefore, such exemption will not be

available for the land covered under Section 38-B, and as such, the said

land was liable to be included in the holding of the land holders. It is true

that Section 13 of the Ceiling Act suggests that the land covered under 24

Section 38-E and transferred to the protected tenant shall be excluded from

the holding of such owner. Section 13 of the Ceiling Act reads as under:-

"Special Provision for protected tenants:- (1) Where the holding of any owner includes any land held by a protected tenant, the Tribunal shall, in the first instance, determine whether such land or part thereof stands transferred to the protected tenant under Section 38-E of Andhra Pradesh (Telangana Area) Tenancy and Agricultural Land Act, 1950, and if so, the extent of land so transferred; and such extent of land shall thereupon be excluded from the holding of such owner and included in the holding of such tenant, as if the tenant was the owner of such land for the purposes of this Act.

(2) Subject to the provisions of Sub-Section (1), the relevant provisions of this Act aforesaid shall apply in the matter of such land by such protected tenant."

It will be seen from the language that the Tribunal has to decide the

extent of land transferred under Section 38-E as a first duty, and then to

exclude such land. The use of the words "in the first instance" only

suggests that the first finding that the Tribunal has to give, is about the land

covered under Section 38-E of the Tenancy Act. However, the Section

nowhere provides that the Tribunal does not have to decide about the

lands covered under Section 38-B of the Tenancy Act. We have already

explained that under Section 38-B, the land holders in this case, have

relinquished their interests in the land, way back in 1983 and the

certificates were issued in favour of the respondents, which certificates

have not been disputed till today. This is, apart from the fact that the said

land in respect of which the certificates were issued under Section 38-B,

has also been held in the holding of the respondents herein. Under such

circumstances, it cannot be argued that this land should have been held in 25

the holding of the landlord and should have been made available for

distribution. The High Court has in this behalf relied on the Judgment

reported in 1976 ALT 171 (NRC) B. Shankarayya Vs. Land Reforms

Tribunal, Kamareddy. For the reasons that we have given, it will have to

be held that even in respect of the lands covered under Section 38-B in this

case, where the rights of the respondents were finally decided both under

Tenancy Act and the Ceiling Act, this land could not have been made

available for been declared as surplus land, holding it to be within the

holding of the land holder.

18. As if all this is not sufficient, there is Certificate on record dt.

13.4.1983. In that Certificate dt. 13.4.1983, the Revenue Divisional Officer

had certified that the five respondents are the protected tenants of the land

specified in the order, which belonged to Late Shri Khaja Shakhir Hussain,

Shri Khaja Nasir Hussain and Smt. Razia Sultana, the land holders herein.

It also suggests that these land holders had relinquished all their rights of

the lands described in favour of the five respondents under Section 38-B of

the Tenancy Act and the five respondents, with effect from that date, shall

be the owners of that land described. Needless to mention that there is a

complete description of the lands of Survey Nos. 24 to 30 and 39. We

have seen the Certificate ourselves in the prescribed form and we are

satisfied that the Certificates have been given after the due enquiry. The

three land holders, namely, Late Shri Khaja Shakhir Hussain, Shri Khaja

Nasir Hussain and Smt. Razia Sultana have also given their declarations, 26

which were verified by the Tahsildar, Hyderabad, East Taluk. It is also

pointed out that the names of the five respondents are found in the lists of

protected tenants maintained in Register No. 1 and other Registers. Not

only this, there is an order to the effect that, in pursuance of the Certificate

under Section 38-B, the mutation is proposed in respect of the five

respondents, which order is signed by D.R., Sarrornagar, R.R. District,

Andhra Pradesh. This is the last nail in the coffin of the State Government

case. Even these orders have remained unchallenged by any person

muchless, by the State Government. Once this is the position, then it is

obvious that under the provisions of Ceiling Act, these lands could not have

been declared as the surplus land.

19. A very peculiar thing has come to our notice that in their declaration,

the land holders Late Shri Khaja Shakhir Hussain, Shri Khaja Nasir

Hussain and Smt. Razia Sultana had included the Survey Nos. 24 to 30

and 39 of Meerpet Village, measuring 123 acres 19 cents. They had also

specifically declared that these lands were with the protected tenants.

However, surprisingly, no notices were issued to the petitioners, and

ultimately, their ceiling case came to be decided as late as on 22.7.1994. It

is then, that a notice came to be issued in form No. VIII that the lands

specified in the Schedule were proposed to be surrendered or selected for

surrender under Section 10 of the Ceiling Act. This document includes and

mentions Survey Nos. 24 to 30 and 39. It is on that basis, that the present

respondents raised objections, which objections were rejected, requiring

the petitioners to file revision before the High Court, which revision was 27

allowed. Considering all these aspects and more particularly, the orders

passed by the authorities, we are of the clear opinion that the judgment of

the High Court was correctly decided.

20. Shri Sundaravardan tried to show that the tenanted land could not

have been partitioned. However, we are not required to go into that

question, for the simple reason, that there are valid orders passed by the

Tribunal, having the jurisdiction to pass the same, which would show that

once the land was shown and concluded to be in the holding of the

protected tenant, it could not have been included in the holding of the

landlord, muchless, it could not have been declared to be surplus. This

position is all the more consolidated, when we see that the respondents

herein, were never the parties to the ceiling proceedings.

21. A decision was relied on by Shri Sundaravardan, reported in 2000

(9) SCC 339 R. Kanthimathi & Anr. Vs. Beatrice Xavier (Mrs.). In our

opinion, the said decision which relates to the rent control matter and thus,

the house tenancy, would have no application. Another decision relied on

by Shri Sundaravardan, reported in 2006(4) SCC 214 N. Srinivasa Rao

Vs. Special Court under the A.P. Land Grabbing (Prohibition) Act and

Others, also has no relevance. The Learned Senior Counsel tried to rely

on this decision only to show that if the transfer of agricultural land was in

violation of Section 47 and 49, such prosecution would be void. In the

concerned case, this prosecution was held to be void in the light of the

circumstances that the transfer in this case was made by a protected 28

tenant as an agriculturist or a non-agriculturist, which was prohibited by the

Tenancy Act. We do not see any relevance of this case. Shri

Sundaravardan contended that the prosecution on 25.2.1956 was a void

prosecution. Even if, we agree with that proposition, the question remains

that ultimately, respondents have been declared to be the protected

tenants, and the Certificates have been granted in their favour and their

individual cases have also been finalized. The ruling has no relevance.

22. The third decision relied upon is reported in 1995 (3) SCC 327 State

of A.P. Vs. S. Vishwanatha Raju & Ors. The Learned Senior Counsel

relied on this case, as in this case, this Court had taken suo moto action,

seeing that there was an attempt to take out substantial acreage of 900

acres of land out of the purview of the Ceiling Act by the device of

agreements of sale and the concerned officers were negligent in not

carrying out the orders of the authorities in revision. It is on these

circumstances, that this Court took suo moto action. The Learned Senior

Counsel urged that we should also take such suo moto action and put the

clock back, insofar as, the orders passed by the Tribunal in case of

respondents under the Ceiling Act, as also in respect of the Certificates

issued under Section 38-B are concerned. We do not see as to how we

would order a suo moto action. The cases are entirely different cases. In

this case, there has been no fraud as in the reported decisions. Lastly, by

way of almost a desperate argument, Shri Sundaravardan urged that under

Section 50-B (4) of the Tenancy Act, the Collector has a suo moto power to 29

call for and examine the record relating to any Certificates issued or

proceedings taken by Tahsildar under the Section for the purpose of

satisfying themselves as to the legality or propriety of such Certificate or as

to the regularity of such proceedings, may pass such order in relation

thereto as he may think fit. The Learned Senior Counsel argued that this

Court had discussed about this issue in 2003 (7) SCC 667 Ibrahimpatnam

Taluk Vyavasaya Coolie Sangham Vs. K. Suresh Reddy and Others.

He suggested that the Certificates issued in favour of the respondents can

still be reopened via Section 50-B (4) of the Tenancy Act. We have no

doubts that there existed such a power in Collector via the said provision

50-B(4). The question is whether there was any fraud played or any

impropriety shown, more particularly, on the part of the respondents herein,

in whose favour the said Certificates were granted. When we see the

whole conspectus of the facts, it is apparent that at no point of time, have

the respondents or even their late father ever played any fraud against any

authority, nor did they ever suppress any relevant fact from any authority.

They openly came out with a case regarding Agreement executed on

25.2.1956, thereafter, they openly propounded a theory of partition, which

theory was accepted by the Tribunal in ceiling matter in their case, as well

as, in the case of their father Late Shri T. Papi Reddy and ultimately, they

obtained the Certificate under Section 38-B, way back in 1983. Today, 25

years have elapsed after those Certificates have been granted. We do not 30

see any impropriety in the said proceedings, which would justify a suo

moto action on the part of the Collector.

23. This Court has considered the nature of that power in the case of

Ibrahimpatnam Taluk Vyavasaya Coolie Sangham Vs. K. Suresh

Reddy and Others (cited supra) and observed in para 9:-

"9. ...... Use of the words "at any time" in sub-Section (4) of Section 50-B of the Act only indicates that no specific period of limitation is prescribed within which the suo moto power could be exercised reckoning or starting from a particular date advisedly and contextually. Exercise of suo moto power depended on facts and circumstances of each case. In cases of fraud, this power could be exercised within a reasonable time from the date of detection or discovery of fraud. While exercising such power, several factors need to be kept in mind such as effect on the rights of the third parties over the immovable property due to passage of considerable time, change of the provisions of other Acts (such as Land Ceiling Act)........................"

From this, the Learned Senior Counsel argued that since there is no period

of limitation prescribed for this power, the Collector would be justified in

initiating an action. In our opinion the argument is firstly, premature. No

such action have ever been proposed. Secondly, the Court has further

observed that such action has to be within reasonable time though the

words "at any time" are used in the provision. In the same para, the Court

further observed:

"9. ....... Use of the words "at any time" in sub-section (4) of Section 50-B of the Act cannot be rigidly read letter by letter. It must be read and construed contextually and reasonably. If one has to simply proceed on the basis of the dictionary mean sing of the words "at any time", the suo moto power under sub-Section (4) of 31 Section 50-B of the Act could be exercised even after decades and then it would lead to anomalous position leading to uncertainty and complications seriously affecting the rights of the parties, that too, over immovable properties. Orders attaining finality and certainty of the rights of the parties accrued in the light of the orders passed must have sanctity. Exercise of suo moto power "at any time" only means that no specific period such as days, months or years are not prescribed reckoning from a particular date. But, that does not mean that "at any time" should be unguided and arbitrary. In this view, "at any time" must be understood as within a reasonable time depending on the facts and circumstances of each case in the absence of prescribed period of limitation."

The observations are extremely fitting in the present case. Here also, after

the Certificates have been issued, 25 long years have elapsed. The rights

of the parties have already been crystallized. Not only this, but, it is the

report of Shri Rao that the said lands have now been converted and sold

for to as many as approximately 1100 persons, by way of residential plots.

We do not think that there is any justification at this stage to use a suo

moto power and to cancel the Certificates, so as to put the clock back.

That would be, in our opinion, a completely unnecessary exercise, not

warranted by any of the Sections. In that view, even this argument has to

be rejected. Before parting, we must observe that the subsequent orders

in case of Late Shri Khaja Shakhir Hussain, Shri Khaja Nasir Hussain and

Smt. Razia Sultana, seem to have passed without even noticing the earlier

orders passed and without even bothering to send notices to the interested

parties. That would be the minimum expectation of law. By that, as it may,

the Appeal has no merits, and is dismissed with costs.

32

......................................J. (Lokeshwar Singh Panta)

......................................J. (V.S. Sirpurkar) New Delhi;

November 28, 2008.

33