Sada vs Tahsildar, Utnoor, Adilabad District

Judicial Analysis Court Copy Headnote Facts Arguments Court observation

1987 Supreme(AP) 546

Andhra Pradesh High Court
Judges : K.BHASKARAN, M.JAGANADHA RAO, S.S.M.QUADRI
Sada - Appellant
Versus
Tahsildar, Utnoor, Adilabad District - Respondent
W.A. Nos. 1082/82 etc.
Decided On : 09-24-87
Advocates Appeared :
Mr. B. Subhashan Reddy, Mr. V. Afzul Purkar, Mr. C.R. Pratap Reddy, Mr. V. Seshagiri Rao, Mr. K. Lakshmana Chari, Mr. I. Lakshmikantha Rao, Mr. Y. Rama Rao, Mr. G. Ramakrishnaiah,Mr. P. Ramakrishna Raju, Mr. M. L. Ramakrishna Rao, Mr. Raghavender Rao, Mr. B. Siva Reddy, Mr. C. V. Ramulu, Mr. B. Prakash Rao, Mr. G. Haridatta Reddy

Headnote:A.P. (T.A.) TENANCY AND AGRICULTURAL LANDS ACT, 1950 as amended by Amendment Act 2 of 1979, Secs.38 (7), 38-E (2) Proviso and 38-E (5) and A.P. (T.A.) Protected Tenant (Transfer of Ownership of Lends) Rules 1973 and Constitution of India, Art.14 - Protected tenant need not be in physical possession on date of notification under Sec. 38-E (1) for becoming owner of property and for obtaining ownership certificate - Restoration of possession to protected tenant is not condition precedent for grant of certificate under Sec.38.E [2] Issuance of certificate if final is conclusive proof of ownership Validity thereof cannot be challenged by land-holder or other interested persons - Mere surrender of land by protected tenants does not disentitle them the right to possession and for grant of ownership certificate - Land-holder cannot plead adverse possession against protected tenant - New Proviso to Sec.38.E (2) added by Act 2 of 1979 is retrospective and is not violative of Art.14.
       Held : For the vesting of the ownership of land held by a protected tenant under Sec.38-E [1], it is not necessary that the protected tenant should have been in physical possession on the date of the notification [Under Sec. 38-E [1] on 1-1-1973]. It is sufficient if he continues to hold the status of a protected tenant I as on notified date even if not in physical possession and he satisfied the requirements of Sec. 38 [7] of the Act. This is also subject to the Proviso to Sec. 38.E[1].
       The protected tenant had a right to be put back in possession under Sec. 32 and such protected tenants, if they had not otherwise lost their status under Sec.32 or 44 by the notified date would be entitled to ownership rights under Sec.38-E [1] and would be entitled to the ownership certificate under sec.38-E[2). In cases where proceedings under Sec.19 are pending on the date of notification and end in favour of the protected tenant there after, the date of vesting gets postponed till the said decision.
       The right of protected tenants to recover possession is uninhibited by any principle of adverse possession. Either under the new Limitation Act, 1963 or under the Old Limitation Act, 1908, there is no possibility for the land holders to invoke either the plea of adverse possession [under old Art.144 or new Art.65] or the extinguishments of any right [under Old Sec.28 or new Sec. 27].
       Section 38.E [2] being within the legislative competence of the State Legislature and not violative of Art.14, it is not permissible to attack the proviso thereto on the ground that it is incongruous to scheme of Sec 38- E.

JAGANNADHA RAO, J.

( 1 ) ALL these cases arise under the Andhra Pradesh (Telangana Area) Tenancy and Agricultural, Lands Act (Act 21 of 1950) (hereinafter referred to as the Act ). They raise questions concerning the rights of protected tenants and the statutory conferment of ownership rights on them under S. 38-E of the Act. In Chinnaboini Narsaiah v. Tahsildar, Mahaboobabad, Warangal District, (1979) 1 Andh WR (HC) 23 a Division Bench of this Court consisting of Madhava Reddy, J. (as he then was) and Narsinga Rao, J. had occasion to deal with S. 38-E and connected provisions of the Act. After the said judgement, the Legislature amended the Act by the Amending Act 2 of 1979. Subsequent to the said amendment to the Act, the same questions were again raised before another Division Bench of this Court in Chennaiah v. State of A. P. , (1982) 2 APLJ (HC) 376 consisting of K. Ramachandra Rao, J. (as he then was) and Sriramulu, J. In the order of reference now made to the Full Bench it is pointed out by the learned Judges that there is a conflict between the earlier judgement in Narsaiah s case and the latter judgement in Chennaiah s case rendered after the amendment and that is how the reference has come to be made to the Full Bench.

( 2 ) IN the referring order, the point of conflict between the Division Benches is mentioned as follows :-"thus, there is a conflict between the decisions of the Division Bench, one in Chinnaboini Narsaiah s case and the other in Chennaiah s case. While the former decision dealing with the Explanation to S. 38-E (1) holds that ownership certificate issued to the protected tenant, who was not in possession of the land on the date of notification is invalid, the latter holds, dealing with the amended proviso to Section 38-E (2) that the certificate issued to the protected tenant, even if he was out of possession of the lands - and even though possession was not restored, is valid and its validity cannot be challenged at the stage of delivery of possession. In view of this conflicting views, we feel that it is desirable that the case is referred to a Full Bench to resolve the question. "

( 3 ) THE batch of cases posted before us raise the above question as well as several other connected questions enumerated below. We shall, at the end, deal with the individual cases. At this stage we shall set out the general questions that arise for consideration in these cases.

( 4 ) THE main arguments for the landholders are by Shri B. Subhashan Reddy, Sri G. Ramakrishnaiah, Sri M. L. Ramakrishna Rao and Sri Haridatha Reddi while the opposite view was presented by Sri N. Subba Reddi, the learned Government Pleader Sri G. Raghuram, Sri B. Prakash Rao; Sri Y. Rama Rao, Sri C. R. Pratap Reddi and Sri Vilas V. Afzal Purkar.

( 5 ) THE following points arise for decision in the reference and in the batch of cases. (1) What is the meaning of the words lands held by protected tenants and whether a protected tenant must have been in physical possession on the date of notification issued by the Government under S. 38-E (1) of the Act (in this batch 1-1-1973) for becoming owner of the property and for obtaining the ownership certificate ? (2) Whether the protected tenant, if out of possession on the notified date under S. 38e (1) of the Act should have been actually put in physical possession of the property in the context of the Explanation to S. 38-E (1) before any proceedings under S. 38-E (2) could be initiated or ownership certificate issued ? (3) What is the scope of the enquiry under S. 38-E (2) read with the Andhra Pradesh (Telangana Area) Protected Tenants (Transfer of Ownership of Lands) Rules, 1973 and what is the effect of a certificate issued under S. 38-E (2) ? (4) Whether the new proviso to S. 38-E (2) added by Act 2 of 1979 is retrospective and permits restoration of possession where the ownership certificate has been issued before 11-1-1979 the date when Act 2 of 1979 has come into force ? (5) Whether the new

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