Thota Sridhar Reddy & Ors. vs Mandala Ramulamma & Ors.

Andhra Pradesh (Telangana Area) Tenancy and Agricultural Lands Act, 1950 – ss.19, 32, 38-E – Held: Neither s.19 nor s.32 forming part of Chapter III of the Tenancy Act are applicable in respect of protected tenant except when the reference is made to the provisions of s.19 on the basis of s.38-E(5) which starts with a non obstante clause giving overriding effect to anything contained in s.38-E.

Andhra Pradesh (Telangana Area) Abolition of Inams Act, 1955 – Andhra Pradesh (Telangana Area) Tenancy and Agricultural Lands Act, 1950 – Operation of the Acts – Held: Both the Inams Act and the Tenancy Act are enacted by the same Legislature – The Inams Act is a later Act enacted in 1955 but s.38-E (1) was substituted in 1971 which starts with a non- obstante clause– Therefore, ownership certificate granted under the Tenancy Act would prevail over the grant of occupancy rights certificate under the Inams Act – Both the Acts operate in different spheres. Dismissing the appeals, the Court

HELD: 1.1 The scheme of the Act contained in Chapter IV of the Tenancy Act in respect of protected tenant is materially different from that of tenants governed by Chapter III of the Tenancy Act. The protected tenants are placed at much higher pedestal as even if a protected tenant is not in possession of the land, right has been given to him to seek possession later. Therefore, neither Section 19 nor Section 32 forming part of Chapter III of the Tenancy Act are applicable in respect of protected tenant except when the reference is made to the provisions of Section 19 on the basis of Section 38-E(5) which starts with a non obstante clause giving overriding effect to anything contained in Section 38-E. Such clause mandates the Collector to hold an enquiry suo motu to ascertain the genuineness of the surrender of right made by the protected tenant. This exercise had to be done before the surrender of tenancy rights and not subsequently after many years of alleged surrender on the strength of unequal bargaining power with the tenant who survives on the basis of agriculture activities. The purchasers relied upon an oral surrender of tenancy rights in the year 1954 and later by a written document of 5.2.1957. The execution of the document in the year 1957 unequivocally proves the factum of protected tenancy of the respondents herein. Such surrender is contrary to Section 47 of the Tenancy Act prior to its omission by AP Act No. 12 of 1969 and in contravention of Section 38-E(5) read with Section 19(1)(a) of the Tenancy Act. [Paras 31, 32][1196-E-H; 1197-A]

1.2 A protected tenant is entitled to recover possession in terms of Section 36 as well as Section 44 of the Tenancy Act which prohibits the termination of protected tenancy. The proviso to sub-section (1) of Section 44 of the Tenancy Act puts complete embargo on a land holder to exercise the right of resumption unless he has within a period of eighteen months from the commencement of the said Act sought reservation of land to exercise his right or resumption in terms of the commencement of Hyderabad Tenancy and Agricultural Lands (Amendment) Act, 1955. The Deputy Collector in terms of the said provision had to make a necessary enquiry and issue a certificate that the land has been so reserved. Thus, the land holder had no right to terminate the tenancy after the commencement of Amending Act, 1955 except after an enquiry which was to be conducted by the Deputy Collector. No such reservation had been made nor any enquiry was conducted, therefore, the rights of protected tenant cannot be defeated. The purchasers have relied upon the oral surrender of protected tenancy in the year 1954. Such surrender of oral tenancy of a protected tenant is not permissible under the Tenancy Act except in the manner which is prescribed under Section 38-E (5) read with Section 19 of the Tenancy Act. Still further, the protected tenant has a right to seek possession in terms of Section 36 of the Tenancy Act. Even in terms of Section 38-D, if the land holder intends to sell the land which is in possession of a protected tenant, he has to give a notice in writing of his intention to such protected tenant. [Paras 33, 34][1197-BF]

1.3 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 land holder or any other 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 land owner 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 land holder is personally liable to restore possession to the tenant, if he fails to cultivate the land within one year of termination of tenancy. Once a certificate of ownership is granted which is required to be published in the Government Gazette, the land stands transferred and vested in the protected tenant as a full owner of such land. Such certificate is final subject to the rights of the landowner under the Tenancy Act which is only to seek compensation. [Paras 35, 36][1197-F-H; 1198-A-C]

1.4 In the present case, the entire argument is based upon the fact of oral surrender and subsequent filing and withdrawal of appeal in the year 1989 and of filing a belated appeal against the ownership certificate in the year 2015. The fact of filing of an appeal and its withdrawal was not raised in the first instance by the purchasers in proceedings before the Joint Collector or before the High Court. Since such documents were not produced at the earliest opportunity, and the veracity of such documents is not beyond doubt, there cannot be any attribution of knowledge of the grant of Occupancy Rights Certificate to the purchasers. It is strange that the appeal was withdrawn on 14.2.1989 but Section

19 petition was dismissed on the basis of alleged withdrawal of appeal on 31.1.1989. The High Court has held that the interest of the protected tenant cannot be validly conveyed in law in view of Section 30 of the Tenancy Act. In the present case, the surrender of tenancy rights is before the Mandal Revenue Officer on 31.1.1989, whereas as per the proviso to Section 19(1)(a) of the Tenancy Act, a tenant can surrender his rights at least a month before the commencement of the year and that surrender is to be made by the tenant in writing. Such surrender is to be admitted by him before the Tehsildar and the authority is to satisfy itself that surrender is made in good faith. In the present case, the oral surrender by the protected tenant is set up in the year 1954. Such surrender is followed by sale of tenancy rights in the year 1957. Thereafter, the petition under Section 19 of the Tenancy Act was filed to seek approval of the Tenancy rights, such application was withdrawn on the basis of an order withdrawing the appeal against the grant of occupancy rights. This shows that the purchasers have taken steps to procure surrender of tenancy rights, realizing that such surrender cannot be orally or by executing a sale deed. It was a cover up operation initiated by the purchaser but the same was still against the mandate of the statute as the finding of the surrender has to be recorded by the Tehsildar. Since, neither the oral surrender nor surrender in writing was recorded as bonafide by the Tehsildar, the subsequent surrender approved by the Mandal Revenue Officer is a nullity and bears no legal effect as such surrender is in contravention of the statutory provisions. The protected tenant was conferred ownership rights under Section 38-E of the Tenancy Act on 23.3.1975 whereas the conferment of occupancy rights were granted in the year 1982 under the Inams Act. [Paras 37, 38][1198-E-H; 1199-A-E]

1.5 Sub-section (5) of Section 38-E provides for an enquiry to ascertain the genuineness of surrender of the right by the protected tenant under clause (a) of sub-section (1) of Section

19. There is no provision in Chapter IV of the Tenancy Act to surrender protected tenancy rights. However, if an application is made under Section 19(1) of the Tenancy Act, the genuineness of such surrender is required to be ascertained by the Collector. The High Court has failed to notice that the explanation in sub-section (1) of Section 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 land holder 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. [Paras 42, 44][1200-D-E, G-H; 1201-A]

Ponnala Narasing Rao v. Nallolla Pantaiah (1998) 9 SCC 183 : 1998 ( 7 ) JT 600; Vorla Ramachandra Reddy & Anr. v. Joint Collector I & Ors. (2021) SCC OnLine TS 703; Boddam Narsimha v. Hasan Ali Khan & Ors. (2007) 11 SCC 410 : [2007] 1 SCR 1223 – distinguished.

1.6 The appeals allegedly filed by the protected tenant against the grant of occupancy rights certificate and subsequently being withdrawn is wholly inconsequential as after the grant of ownership certificate in terms of Section 38-E of the Tenancy Act, the protected tenants are deemed to be owners. Once the protected tenants are deemed to be owners, there could not be any occupancy rights certificate as the purchasers were divested of their ownership by virtue of the grant of ownership certificate under Section 38-E of the Tenancy Act. Such certificate was also not disputed by the purchasers. Therefore, title of the protected tenants is complete and the ownership unambiguously vests with them. There was no right with the purchaser to claim occupancy rights on the basis of possession since 1.11.1973 upon surrender of protected tenancy rights. If the surrender of protected tenancy rights is not in accordance with the mandate of the statute, the possession from 1.11.1973 would be inconsequential as such possession would not affect the rights of the protected tenant who is entitled to statutory protection. In fact, the grant of Certificate unequivocally transfers ownership rights to the protected tenant.[Paras 47, 48][1202-D-G]

1.7 The Inams Act is a subsequent statute than the Tenancy Act Section 33 of the Inams Act is to the effect that nothing in the Act shall in any way be deemed to affect the application of the provisions of the Tenancy Act to any inam or mutual rights and obligations of Inamdar and his tenants, save insofar as the said provisions are in any way inconsistent with the express provisions of this Act. Section 38-E (1) of the Tenancy Act, as substituted in the year 1971, starts with a non-obstante clause giving overriding effect to any other law for the time being in force. Such sub-clause will include the Inams Act and that Inams Act will not be operative in the case of Section 38-E (1) of the Tenancy Act. This notification was issued on 1.1.1973 to cover the entire Telangana Area of the State. Both the Inams Act and the Tenancy Act are enacted by the same Legislature. The Inams Act is a later Act enacted in the year 1955 but Section 38-E (1) was substituted in the year 1971 which starts with a non- obstante clause. Therefore, ownership certificate granted under the Tenancy Act would prevail over the grant of occupancy rights certificate under the Inams Act. Both the Acts operate in different spheres. Inams Act deals with the land owner, whereas the Tenancy Act protects the rights of the tiller i.e., tenant including a protected tenant. Section 38-E of the Tenancy Act was inserted initially in the year 1954 and subsequently substituted in 1971 giving overriding effect to such provision. Therefore, an Inamdar under the Inams Act would not have any right of allotment of occupancy rights in view of overriding effect given to Section 38-E. [Para 49][1202-G-H; 1203-A-E]

1.8 However, ownership rights were granted to the protected tenant in respect of land measuring 19 acres and 16 guntas whereas occupancy rights have been granted in respect of the land measuring 31.05 guntas including of land falling in Survey Nos. 61 and 62 in Village Jeedimetla on 19.2.1982. Therefore, the said occupancy rights certificate in favor of the purchaser shall be valid in respect of the land falling under Survey Nos. 61 and 62, which is not the land claimed by the protected tenant as part of their tenancy. The Occupancy Rights Certificate in respect of land falling in Survey Nos. 53, 54, 55 and 56 is null and void and inoperative. The protected tenant shall be entitled to restoration of possession in terms of explanation to Section 38-E (1) read with Section 32 of the Tenancy Act. The Tehsildar to ensure that the possession is delivered to the protected tenant within 3 months. Thus, the present appeals are dismissed except to the extent of land falling in Survey Nos. 61 and 62 in respect of which the occupancy certificate granted to the purchasers on 19.2.1982 would be valid. [Paras 50-52][1203-F-H; 1204-A-B] S. Rangaiah and Ors. v. Collector Medak & Ors. (1996) SCC Online AP 275; S. Veera Reddy v. Chetlapalli Chandaiaha (1994) SCC Online AP 510; Bhimavarapu Venkaiah & Anr. v. RDO (1999) SCC Online AP 896; S. Narsasimha and Ors. v. Joint Collector-II, Ranga Reddy District (2006) SCC Online AP 57 –

distinguished.

Kotaiah & Anr. v. Property Association of the Baptist Churches(P) Ltd. (1989) 3 SCC 424 : [1989] 3 SCR 472; Edukanti Kistamma (Dead) through LRs & Ors. v. S. Venkatareddy (Dead) through LRs & Ors. (2010) 1 SCC 756 : [2009] 16 SCR 47; B. Bal Reddy v. Teegala Narayana Reddy (2016) 15 SCC 102 : [2016] 4 SCR

62 – relied on.

Ravinder Kaur Grewal & Ors. v. Manjit Kaur & Ors. (2019) SCC Online SC 975; Jai Narain Parasrampuria v. Pushpa Devi Saraf (2006) 7 SCC 756 : [2006] 5 Suppl. SCR 325; Jupudi Bhushanam v. Joint Collector, Khammam and Ors. (1996) SCC OnLine AP 941; Kasa Muthanna and Another v. Sunke Rajanna and 11 Ors. (2015) SCC OnLine Hyd 592; Sada v. The Tahsildar (1987) 2 APLJ 397; J. Narayana & Ors. v. Jainapally Pedda Kistaiah and Ors. (2013) SCC OnLine AP 289 – referred to.