ORDER:

Heard learned counsel for the petitioner and learned Assistant Government Pleader for Revenue.

2. Petitioner herein has submitted an application dated

08.03.2019 with respondent No.3 under Section 38-E(2) r/w Section 40 of Tenancy Act, 1950 for grant of Succession and also for restoration of possession in respect of total admeasuring Ac.17-38 gts in Sy.Nos.239, 244 and 245 (old Sy.No.21), situated at Mallapur Village, Kottur Mandal, Rangareddy District. The said application was not considered by the respondent No.3. Therefore, petitioner herein had filed W.P.No.45680 of 2022 and this Court vide order dated 22.12.2022, disposed of the same directing respondent No.2 therein to consider the aforesaid application submitted by the petitioner and also order passed by this Court in Writ Appeal No.451 of 2021 dated 28.09.2021 and pass appropriate orders in accordance with law as expeditiously as possible. In compliance with the said order, respondent No.3 vide impugned endorsement dated 16.03.2021, rejected the claim of the petitioner, stating that the petitioner is not in possession of the subject property as such 38-E certificate cannot be implemented in revenue records unless recovery of possession from the present pattadars. Civil Court is proper forum for restoration of possession. There are disputes over the subject lands between petitioner and third parties which are not under the purview of the Tahsildar. The Telangana Rights in Land and Pattadar Passbooks Act, 1971 was repealed and The Telangana Rights in Land and Pattadar Passbooks Act, 2020 is promulgated. Tahsildar is not competent to grant any mutation of the patta lands.

3. The said issue is no more Res Integra. The view taken by the learned Single Judge in Judgment dated 27.07.2021 in W.P.Nos.14924 & 15031 of 2021 was not approved by Division Bench in its Judgment dated 28.09.2021 in W.A.No.451 of 2021.

4. Few paragraphs of the said judgment of Division Bench are relevant and same are extracted hereunder:-

(i) More important it held as under:-

“the new proviso to Section 38-E(2) was introduce by Act 2 of 1979 to get round the difficulty created by the judgment in Narsaiah’s case (1979 (1) Andh WR (HC) 23). There, it was held that once the protected tenant has become owner, there is no machinery in the Act enabling him to obtain possession. It was pointed out that the provision in the latter part of the Explanation to Section 38-E(1) enabling a ‘protected tenant’ to obtain possession through the Tahsildar was not applicable to the cause of an application by an owner, even if be a cause of a protected tenant becoming an owner.

In our view the Legislature wanted to fill up the difficulty created by Narasaiah’s case when it added the new proviso to

5. 38E(2) enabling the Tahsildar to restore possession to a former protected tenant who had become the owner.

It is, however, argued that this amendment is prospective from 11-1-1979 and that the benefit of restoration of possession through the Tahsildar is available only tho those protected tenants who have been given ownership certificates after 11.01.1979. In our view, this is not protected tenants who obtained ownership certificates before 11.01.1979 should go to the Civil Court and those obtained certificates after 11.01.1979 go to the Civil Court and those obtained certificates after 11.01.1979 should go to the Tahsildar. The intention of the Legislature was to benefit all cases, whether the ownership certificates were issued before or after Act 2 of 1979. As already stated, the actual date of issuance of the ownership certificate has no bearing on the statutory transfer of ownership under Section.38-E(1) with effect from the date of notification for the certificate dates back to the date of the notification under Section 38-E(1).”

(ii) So according to this decision any protected tenant, who obtained certificate under Section 38-E of the Act and has become an owner, can seek restoration of possession under proviso to Section