REPORTABLE
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
CIVIL APPEAL NO. 2506 OF 2021
THOTA SRIDHAR REDDY & ORS. .....APPELLANT(S)
VERSUS
MANDALA RAMULAMMA & ORS. .....RESPONDENT(S)
W I T H
CIVIL APPEAL NO. 2507 OF 2021
J U D G M E N T
HEMANT GUPTA, J.
1. These two appeals are directed against the order passed by the
High Court of Judicature at Hyderabad for the States of
Telangana and Andhra Pradesh whereby revision under Section
28 of the Andhra Pradesh (Telangana Area) Abolition of Inams
Act, 19551
was allowed on 3.6.2019 while setting aside the order
dated 19.2.1982 passed by the Revenue Divisional Officer
granting occupancy rights to Shri Thota Balakrishna Reddy,
predecessor-in-interest of the present appellants2
in respect of
the land measuring 31.05 guntas falling in survey Nos. 53, 54,
55, 56, 61 and 62 in Village Jeedimetla as well as the order dated
1 For short, the ‘Inams Act’
2 Hereinafter referred to as the ‘purchaser’
1
4.12.2017 passed by the Joint Collector whereby the appeal filed
on behalf of the protected tenant, represented by Mandala
Ramulamma, wife of Mandala Yettaiah3
was dismissed. The
resultant effect of such order of the High Court was that the
occupancy rights granted to the purchaser stood annulled.
2. Now, the purchaser seeks restoration of the occupancy rights
granted in their favor on 19.2.1982 in the present appeals. On
the other hand, the protected tenant claims such rights on the
strength of certificate granted to Mandala Yettaiah on 20.3.1975
under Section 38-E of the Andhra Pradesh (Telangana Area)
Tenancy and Agricultural Lands Act, 19504
.
3. It is not in dispute that one Mandala Lakshmaiah was the
protected tenant over the land measuring 19 acres and 16
guntas bearing Survey Nos. 53, 54, 55 and 56 in Village
Jeedimetla, District Hyderabad. The tenancy rights were said to
be surrendered orally in favor of Shri Thota Balakrishna Reddy in
the year 1954. The original Inamdar Jayaram Rao and
Venkateshwar Rao executed sale deed of the land measuring 19
acres and 16 guntas on 5.7.1957 in favor of the purchaser- Shri
Thota Balakrishna Reddy. On the same day, the protected tenant
has also purportedly sold the tenancy rights in favor of the
purchaser.
4. The purchaser applied for occupancy rights certificate under the
3 For short, the ‘protected tenant’
4 For short, the ‘Tenancy Act’
2
Inams Act in the year 1975. Such certificate was granted to him
on 19.2.1982 in view of the occupation and possession of the
land by the purchaser. On the other hand, the protected tenant
was conferred ownership rights when the certificate of ownership
under Section 38-E of the Tenancy Act was issued on 20.3.1975.
The certificate of ownership granted to protected tenant reads
thus:
“CERTIFICATE OF OWNERSHIP UNDER SECTION 38-E OF
THE ANDHRA PRADESH (TELANGANA AREA) TENANCY AND
AGRICULTURAL LANDS ACT 1950
Whereas Sri Yettaiah is the protected tenant of the
land specified below belonging to the land holder Sri M.
Venkateswar Rao, S/o Nanatha Rao.
And whereas by virtue of Govt. Notification No. G.O.
Ms. No.3, Revenue (G) dated 1st January, 1973 issued
under Section 38-E of the Andhra Pradesh (Telangana
Area) Tenancy and Agricultural Lands Act, 1950, the
ownership of the said land stands transferred to the said
Sri Yettaiah.
It is hereby declared that the said tenancy Sri
Yettaiah shall be deemed to be owner of the said land with
effect from 1st January, 1973 as against the land holder
and all other persons having any interest therein.
DESCRIPTION OF LAND
Dist. Tq. Village Sy.
No.
Pot.
Hissa
No.
Dry or
Wet
Area Ac.
Gts
Assessm
ent Rs.
Ps
Boundarie
s
Hyd. Medchal Jeedimetia 53
54
55
56
Dry
lands
4.24
0.13
0.13
14.08
19.16
”
5. The purchaser had the protected tenancy rights firstly by the
alleged oral surrender in the year 1954 and secondly, by transfer
3
of tenancy rights vide a registered document on 5.7.1957 and
later the factum of withdrawing of an appeal by the protected
tenant on 14.2.1989 against the grant of occupancy rights
certificate to the purchaser. The purchaser also relies upon an
order passed by the Mandal Revenue Officer, Gutubullapur
Mandal on 31.1.1989 in a petition under Section 19 of the
Tenancy Act recognizing the surrender of protected tenancy
rights by the protected tenant on the basis of an affidavit
allegedly filed by him on 24.1.1989 to withdraw the appeal
against the grant of occupancy rights to the purchaser. Though
the order of withdrawal of appeal was passed on 14.2.1989, but
Section 19 petition was dismissed on 31.1.1989.
6. Civil Appeal Nos. 2508-2509 of 2021 by way of Special Leave
Petitions were filed by the persons who have purchased plots,
amongst other persons, in the colony known as Meenakshi
Estates, developed on the land admeasuring 9 acres 16 guntas.
In the said appeals, the legal heirs of successors-in-interest of
the protected tenant gave up their claim over the land in
question and confined their claim to the remaining land
excluding the land measuring 9 acres 16 guntas. Thus, the issue
in the present appeals is in respect of the residual 10 acres of
land.
7. In view of this factual background, the question required to be
examined herein is as to whether the stand of the purchaser that
4
the protected tenant had surrendered the tenancy rights orally
and which was later on accepted by the Mandal Revenue Officer
on 31.1.1989 is legal and valid and not in contravention of the
provisions of the Tenancy Act. The ancillary question would be
whether the purchaser could claim occupancy rights on
19.2.1982 when the ownership rights were transferred in favor of
the protected tenant on 20.3.1975. It is also to be ascertained
whether there was any transferrable interest in the property
which could be granted to the purchaser in 1982. Such
contentions are required to be assessed in the light of the
statutory provisions of the Tenancy Act and Inams Act which read
as thus:
“TENANCY ACT
2(1) In this Act, unless there is anything repugnant in the
subject or context:-
xxx xxx xxx
(r) “Protected tenant” means a person who is deemed
to be a protected tenant under the provisions of this Act;
(Substituted by AP Act No. 15 of 1971 for “Protected” means a
person who is deemed to be protected tenant under the
provisions of this Act)
xxx xxx xxx
(v) “Tenant” means an asami shikmi who holds land on
lease and includes a person who is deemed to be a tenant
under the provisions of this Act;
xxx xxx xxx
CHAPTER III
Tenant
19. (1) Notwithstanding any agreement or usage or
any decree or order of a Court of law, but subject to the
5
provisions of sub-section (3), no tenancy of land shall be
terminated before the expiration of the period for which
the land is leased or deemed to be leased otherwise
than,-
(a) by the tenant by surrender of his rights to the
landholder at least a month before the commencement of
the year.
Provided that such surrender is made by the tenant
in writing and is admitted by him before and is made in
good faith to the satisfaction of the Tahsildar; or
Provided further that where the land is cultivated
jointly by joint tenants or members of an undivided Hindu
Family, unless the surrender is made by all of them, it
shall be ineffective in respect of such joint tenants as
have not joined in the application for surrender,
irrespective of the fact that the names of all the joint
tenants are not mentioned in the certificate;
(b) by the landholder on a ground specified in subsection (2). xxx xxx xxx
CHAPTER IV
Protected Tenant
34. (1) A person shall, subject to the provisions of
sub-sections (2) and (3), be deemed to be a protected
tenant in respect of land if he-
(a) has held such land as a tenant continuously, -
(i) for a period of not less than six years, being a
period wholly included in the Fasil years 1342 and 1352
(both years inclusive), or
(ii) for a period of not less than six years immediately
preceding the 1st day of January, 1948, or
(iii) for a period of not less than six years commencing
not earlier than the 1st day of the Fasil year 1353 (6th
October, 1943), and completed before the
commencement of this Act, and
xxx xxx xxx
(3) A person who at the commencement of this Act is
6
no longer in possession of land in respect of which he is
deemed under sub-section (1) to be a protected tenant
shall, notwithstanding anything contained in that subsection, not be deemed to be a protected tenant in
respect of such land if-
(a) he was evicted from such land in pursuance
of a decree or order of a competent Court, or
(b) such land is being cultivated personally by
the land-holder, or
(c) a permanent structure has been built by the
land-holder on such land, or
(d) such land has been permanently diverted by
the land-holder to non-agricultural uses.
Explanation.- In sub-sections (2) and (3) of this section
and in sections 35, 36 and 37 references to a person
include references to such two or more persons as are
referred to in Explanation III to sub-section (1).”
*38-E.(1) Notwithstanding anything is this Chapter or
any law for the time being in force or any custom, usage,
judgment, decree, contract or grant to the contrary, the
Government may, by notification in the Telangana
Gazette, declare in respect of any area and from such
date as may be specified therein, that ownership of all
lands held by protected tenants which they are entitled to
purchase from their land-holders in such area under any
provision of this Chapter shall, subject to the condition
laid down in sub-section (7) of section 38, stand
transferred to and vest in the protected tenants holding
them and from such date the protected tenants shall be
deemed to be the full owners of such lands:
Provided that where in respect of any such land,
any proceeding under section 19 or section 32 or section
44 is pending on the date so notified, the transfer of
ownership of such land shall take effect on the date, on
which such proceeding is finally decided, and when the
tenant retains possession of the land in accordance with
the decision in such proceeding.
Explanation:- 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 hereunder, then for the purposes of this subsection, such protected tenant shall, notwithstanding any
judgment, decree or order of any Court, or the order of
the Board of Revenue or Tribunal or other authority, be
deemed to have been holding the land on the date of the
7
notification; and accordingly, 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 landholder or any person claiming
through or under him in that area, shall be taken from the
possession of the landholder or such person, as the case
may be, and shall be restored to the protected tenant and
the provisions of this section shall apply thereto in every
respect as if the protected tenant had held the land on
the date of such notification.
(2) A certificate in the prescribed form declaring him to
be owner shall be issued by the Tribunal after holding
such enquiry as may be prescribed, to every such
protected tenant and notice of such issue shall
simultaneously be issued to the landholder. Such
certificate shall be conclusive evidence of the protected
tenant having become the owner of the land with effect
from the date of the certificate as against the landholder
and all other persons having any interest therein:
Provided that where the land, the ownership of
which has been transferred to the protected tenant under
sub-section (1), is in the occupation of a person other
than the protected tenant or holder of the certificate
issued under this sub-section, it shall be lawful for the
Tahsildar to restore the possession of the said land to the
protected tenant or holder of the certificate, after giving
notice of eviction to the occupant thereof, in the
prescribed manner.
(3) Within ninety days from the date of notice of issue
of the certificate under sub-section (2), every land-holder
of lands situated in the area specified in the notification
under sub-section (1), shall file an application before the
Tribunal for the determination of the reasonable price of
his interest in the land which has been transferred to the
ownership of a protected tenant under sub-section (1),
and if an application is not so filed within such period by
the landholder, the Tribunal may suo-motu proceed to
determine such price and thereupon all the provisions of
sub-section (4) to (8) of section 38 shall mutatis mutandis
apply to such application:
Provided that if the protected tenant commits
default in respect of any instalment, it shall be recovered
by the Government as arrears of land revenue and paid to
the landholder:
8
Provided further that if the whole or any part of the
price due to the landholder cannot be recovered as
arrears of land revenue the transfer shall not be effective
and the amount, if any, already paid by the protected
tenant towards the price shall be refunded to him
together with interest at three percent per annum and the
land revenue paid by him, if any, after deducting
therefrom the rent for the period.
(4) The Government may, for the purpose of giving
effect to the provisions of this section, by rules, make
such supplemental, incidental and consequential
provisions as they may deem necessary, such as the
procedure for making inquiry to ascertain the extent of
the holding of the tenant as on the notified date and the
extent of the land which is to be deemed to have been
transferred to and vested in the protected tenants.
(5) Notwithstanding anything contained in this section
or section 19, the Collector may, suo-motu at any time,
hold an enquiry with a view to ascertain the genuineness
of the surrender of the right made by the protected tenant
under clause (a) of sub-section (1) of section 19, for the
purpose of effecting the transfer of ownership under this
section, and pass such order in relation thereto as he may
think fit.
Provided that no order adversely affecting any
person shall be passed under this sub-section unless such
person has had an opportunity of making his
representation thereto.
Inserted by Hyderabad Act No. III of 1954. Inserted
clause reads as under:-
“38-E (1) Notwithstanding anything in this chapter
or any law for the time being in force or any custom,
usage, decree, contract or grant to the contrary the
Government may, by notification in the Jarida, declare in
respect of any area and from such date as may be
specified therein that ownership of all lands held by
protected tenants which they are entitled to purchase
from their land-holders in such area under any provision
of this chapter shall subject to the provisions of subsection (7) of section 38 of the Act stand transferred to
and vest in the protected tenants holding them and from
such date the protected tenant shall be deemed to be the
full owner of such lands.”
9
The said provision was Substituted by AP Act No. 15 of
1971, as extracted above.
xxx xxx xxx
44. **[(1) Subject the provisions of sub-section (8) a
landholder who, on the date on which the Hyderabad
Tenancy and Agricultural Lands (Amendment) Act, 1954
comes into force, is not already cultivating personally an
area to three times the family holding for the local area
concerned and who in good faith requires land leased out
to a protected tenant for cultivating personally may,
notwithstanding anything contained in Section 19 of the
Act, terminate the tenancy and resume such land or
portion of such land that would, together with the land
which he is already cultivating personally, either as owner
or protected tenant, be equal to three times the family
holding, by making an application in the manner
prescribed to the Collector or any other officer whom the
Government may from time to time authorise in this
behalf.
***[Provided that after the commencement of the
Hyderabad Tenancy and Agricultural Lands (Amendment)
Act, 1955, no such landholder shall be entitled to exercise
the right of resumption under this sub-section unless he
has within a period of eighteen months from the
commencement of the said Act filed with the Deputy
Collector, in the prescribed manner, a statement of
reservation demarcating the lands which he reserves for
the exercise of the rights or resumption under this
section. On such statement being filed, the Deputy
Collector shall, as soon as may be, after making
necessary enquiry, issue a certificate to the landholder in
the prescribed manner to the effect that the lands have
been so reserved. The right to terminate tenancy shall be
exercisable only in respect of the lands specified in the
certificate as so reserved and shall not extend to any
other land.]
** Substituted by Hyderabad Act No. III of 1954.
*** Inserted by Hyderabad Act No. III of 1956
(2) The landholder’s right to terminate tenancy of any
protected tenant under sub-section (1) shall be limited to
an area which shall after such termination, leave with the
protected tenant an area, which together with the land
owned by him or cultivated by him as a protected tenant,
is equal to a basic holding for the local area concerned:
10
Provided that, where by such resumption the land
that will be left with protected tenant together with other
land owned or cultivated by him will be less than a basic
holding, the landholder’s right of terminating the tenancy,
shall be limited to half the area of land leased out by him
to the said protected tenant:
Provided further, that where the land owned by a
landholder does not exceed a basic holding he will be
entitled to resume the entire land leased by him.]
46. If at any time the tenant makes an application to
the Tahsildar and satisfies him that the landholder has
failed to comply within a reasonable time with the
provisions of Section 45, the protected tenant shall be
entitled on a direction by the Tahsildar to obtain
immediate possession of the land to such compensation
as may be awarded by the Tahsildar for any loss caused to
the tenant by his eviction and by the failure of the
landholder to restore or give possession of the land to him
as required by the said section.
47. (Omitted by AP Act No.12 of 1969)
(1) Notwithstanding anything contained in any other
law for the time being in force or in any decree or order of
a Court, no permanent alienation and no other transfer of
agricultural land shall be valid unless it has been made
with the previous sanction of, #[or in the case of a
disposition by will] has been confirmed by, the Taluqdar.
##[Provided that the Collector may declare a
permanent alienation or any other transfer of agricultural
land to be valid if the permanent alienation or transfer
took place before the commencement of the Hyderabad
Tenancy and Agricultural Lands (Amendment) Act, 1954
and possession of the land transferred was given to the
vendee before such commencement if application for
sanction is made within one year after such
commencement].
## Inserted by Hyderabad Act No. III of 1954
(2) Applications for such previous sanction #[or
confirmation] shall be made and disposed of in
accordance with such procedure as may be prescribed.
# Deleted by Hyderabad Act No. XXIII of 1951
11
INAMS ACT
1. (1) This Act may be called the Andhra Pradesh
(Telangana Area) Abolition of Inams Act, 1955.
(2) It extends to the whole of the Telangana area of the
State of Andhra Pradesh and shall apply to all inams as
defined in clause (c) of sub-section (1) of Section 2.
(3)(a) This section, Section 2, Section 3 except clauses
(d), (g), (h) and (i) of sub-section (2), sections 30 to 34
(both inclusive), Section 35 to the extent to which it
enables rules to be made for the purposes of the
aforesaid sections, Section 36 and Section 37, shall come
into force on the date of publication of this Act in the
Official Gazette;
(b) the rest of this Act shall come into force on such
date as the Government may, by notification in the
Official Gazette, appoint in this behalf.
2. (1) In this Act, unless there is anything repugnant in
the subject or contextxxx xxx xxx
(c) ‘inam’ means land held under a gift or a grant made
by the Nizam or by any Jagirdar, holder of a Samsthan or
other competent grantor and continued or confirmed by
virtue of a muntakhab or other title deed, with or without
the condition of service and coupled with the remission of
the whole or part of the land revenue thereon and entered
as such in the village records and includes-
(i) arazi makhta, arazi agrahar and seri inam; and
(ii) lands held as inam by virtue of long possession and
entered as inam in the village records:
Provided that in respect of former Jagir areas, the
expression inam shall not include such lands as have not
been recognised as inams by Government after the
abolition of the Jagirs.
xxx xxx xxx
(j) ‘protected tenant’ means the protected tenant as
defined in the Telangana Tenancy and Agricultural Lands
Act, 1950.
12
xxx xxx xxx
3. (1) Notwithstanding anything to the contrary
contained in any usage, settlement, contract, grant,
sanad, order or other instrument, Act, regulation, rules or
order having the force of law and notwithstanding any
judgment, decree or order of a Civil, Revenue or Atiyat
Court, and with effect from the date of vesting, all inams
shall be deemed to have been abolished and shall vest in
the State.
(2) Save as expressly provided by or under the provisions
of this Act and with effect from the date of vesting, the
following consequences shall ensue, namely:-
(a) the provisions of the Telangana Land Revenue Act,
1317 Fasli relating to inams, and the provisions of the
Telangana Atiyat Enquiries Act, 1952 and other
enactments, rules, regulations and circulars in force in
respect of Atiyat grants shall, to the extent, they are
repugnant, to the provisions of this Act, not apply and the
provisions of the Telangana Land Revenue Act, 1317 Fasli,
relating to unalienated lands for purposes of land
revenue, shall apply to the said inams;
(b) all rights, title and interest vesting in the Inamdar,
kabiz-e-kadim, permanent tenant, protected tenant and
non-protected tenant in respect of the inam land, other
than the interest expressly saved by or under provisions
of this Act and including those in all communal lands,
cultivated and uncultivated lands (whether assessed or
not), waste lands, pasture lands, forests, mines and
minerals, quarries, rivers and streams, tanks and
irrigation works, fisheries and ferries, shall cease and be
vested absolutely in the State free from all encumbrances.
xxx xxx xxx
(h) the relationship with regard to inam land as
between the inamdaar and kabiz-e-kadim, permanent
tenant, protected tenant or non-protected tenant shall be
extinguished;
xxx xxx xxx
4. (1) Every inamdar shall, with effect from the date
of vesting, be entitled to be registered as an occupant of
13
all inam lands other than-
(a) lands set apart for the village community, grazing
lands; waste lands, forest lands, mines and quarries;
tanks, tank beds and irrigation works, streams and rivers;
(b) lands in respect of which any person is entitled to
be registered under Sections 5, 6, 7 and 8 of the Act;
(c) lands upon which have been erected buildings
owned by any person other than the inamdar;
which immediately before the date of vesting, were under
his personal cultivation and which, together with any
lands he separately owns and cultivates personally are
equal to four and a half times the ‘family holding’.
xxx xxx xxx
7. (1) Every protected tenant shall, with effect from
the date of vesting, be entitled to be registered as an
occupant of such inam lands in his possession as may be
left over after the allotment under section 4, which were
under his personal cultivation and which, together with
any lands he separately owns and cultivates personally,
are equal to four and a half times the ‘family holding’.
(2) The protected tenant shall be entitled to
compensation from the Government as provided for under
this Act in respect of inam lands in his possession in
excess of the limit specified in sub-section (1) whether
cultivated or not:
Provided that-
(a) he continued to be a tenant of such inam
lands until the date of vesting; or
(b) if he is not in possession, he has been
unlawfully dispossessed of such lands by the inamdar
between the 10th of June, 1950 and the date of vesting.
(3) No protected tenant shall be entitled to be
registered as an occupant under sub-section (1) unless he
pays to the Government as premium an amount equal to
forty times the land revenue for dry land and thirteen
times for wet land. The amount of premium shall be
payable in not more than ten annual instalments along
14
with the annual land revenue and in default of such
payment shall be recoverable as arrears of land revenue
due on the land in respect of which it is payable.
Provided that the protected tenant who is a poor
person shall be entitled to be registered as an occupant
under sub-section (1), without payment of any premium
to the Government.
xxx xxx xxx
10. Collector shall examine the nature and history of all
lands in respect of which an Inamdar, kabiz-e-kadim,
permanent tenant, protected tenant or non-protected
tenant, claims to be registered as an occupant under
sections 4, 5, 6, 7 and 8, as the case may be, and decide-
(a) in whose favour, and in respect of which inam
lands, the claims should be allowed;
(b) the land revenue and the premium payable in
respect of such lands.
xxx xxx xxx
33. Nothing in this Act shall in any way be deemed to
affect the application of the provisions of the Telangana
Tenancy and Agricultural Lands Act, 1950 to any inam or
the mutual rights and obligations of an Inamdar and his
tenants, save in so far as the said provisions are in any
way inconsistent with the express provisions of this Act.”
8. Sections 1, 2, 3 except clauses (d), (g), (h) and (i) of sub-section
(2), Sections 30 to 34, Section 35, Sections 36 and 37 had come
into force on the date of publication of the Inams Act in the
Official Gazette on 20.7.1955 in terms of Section 1(3)(a) of the
Inams Act. The other provisions of the Inams Act including
Section 3(2) (d), (g), (h) and (i) came into force w.e.f. 1.11.1973.
9. In terms of Section 34 of the Tenancy Act, a person is deemed to
be a protected tenant in respect of any land of which he is not in
the possession at the time of commencement of the Act. He can
15
seek to recover possession, if he intimates to the landholder
within six months of the said commencement that he is willing
to hold the land on the terms and conditions on which he held it
before he lost possession thereof as per Section 36. Still further,
Section 38 starts with non obstante clause contemplating that a
protected tenant shall at any time after the commencement of
the Hyderabad Tenancy and Agricultural Lands (Amendment)
Act, 1954, be entitled to purchase the land-holder’s interest in
the land held by the former as a protected tenant. It may be
mentioned that if in respect of a land held by a protected
tenant, the landlord concerned intends to relinquish his interest
in the land without receiving any consideration, the Tribunal
shall issue to such protected tenant a certificate as provided in
sub-section (6) of Section 38 (See Section 38-B). Further, in
terms of Section 38-D, if the landlord at any time intends to sell
the land held by the protected tenant, he shall give a notice in
writing of his intention to such protected tenant and offer to sell
the land to him. The protected tenant is to convey his intention
to purchase the land within six months from the date of receipt
of such notice.
10. Mr. Dushyant Dave, learned senior counsel for the appellant
inter alia submitted that an appeal against the grant of
occupancy rights on 09.02.1982 was filed on 18.03.1987 by the
protected tenant. Such appeal was beyond the period of 30 days
provided to file an appeal. The said appeal was later withdrawn
16
on 14.02.1989. Reliance has been placed upon a judgment of
this Court reported as Boddam Narsimha v. Hasan Ali Khan
& Ors,
5
wherein this Court held that the benefit of section 38-E
is to be given to persons holding the lands as protected tenants
and who continue to hold the lands as such on 1.1.1973.
11. It was further argued that the purchasers had purchased Inam
land, governed by the Inams Act. It was also contended that the
rights of the protected tenant under the Tenancy Act are subject
to provisions of the Inams Act by virtue of Section 33 of the said
Act relying on the judgment of Andhra Pradesh High Court in S.
Rangaiah and Ors. v. Collector Medak & Ors.
6
. It was also
argued that Inams Act recognizes the right of Inamdar and
protected tenant to sell/ alienate their right and interest in the
land. The reliance was on the judgments reported as S. Veera
Reddy v. Chetlapalli Chandaiaha
7
and Bhimavarapu
Venkaiah & Anr. v. RDO8
, S. Narsasimha and Ors. v. Joint
Collector-II, Ranga Reddy District
9
. It was thus contended
that the bar under Section 30 restricting sub-division or subletting and alienation in terms of now Section 47 (since repealed)
of the Tenancy Act are not applicable in view of the Inams Act.
12. A reference was also made to affidavits filed by Yettaiah, son of
the principal protected tenant as well as by the wife of the
5 (2007) 11 SCC 410
6 1996 SCC Online AP 275
7 1994 SCC Online AP 510
8 (1999) SCC Online AP 896
9 2006 SCC Online AP 57
17
protected tenant, admitting sale of land to the purchaser in 1957.
Thus, the argument was that the certificate of occupancy right
was issued on 19.02.1982 upon due enquiry and after hearing
the heirs of the original protected tenant.
13. Mr. Dave relied upon an appeal filed against the grant of
occupancy rights before the Mandal Revenue Officer wherein
statements of the parties and the compromise arrived at by them
were recorded. This appeal was later withdrawn on 14.02.1989
by the protected tenant.
14. Further, an application filed before the Mandal Revenue Officer,
Qutubullapur, Medchal District under Section 32 of the Tenancy
Act seeking restoration of possession was referred to but it was
contended that the pendency of such application was not
disclosed by the respondents in proceedings before the High
Court. Thus, the Respondent Nos. 3 to 10 are seriously guilty of
suppression of relevant facts. Reference has been placed upon a
judgment of this Court reported as Jai Narain Parasrampuria v.
Pushpa Devi Saraf
10
.
15. Mr. V. Giri, learned counsel in another appeal submitted that
three generations of the protected tenant participated in
transactions granting occupancy rights to the family members of
the purchaser in respect of the subject property. It was argued
that the initial appeal against the grant of occupancy rights
10 (2006) 7 SCC 756
18
certificate was withdrawn by the protected tenant. Thereafter,
the later appeal against such grant would be barred ab initio as
the same was filed after an inordinate delay of 36 years. Hence,
it was argued that the compromise in judicial proceedings ought
to be given utmost sanctity, asserting the compromise arrived at
by the parties in 1989 which led to the withdrawal of appeal.
16. It was further argued that the contention of the protected tenant
that they became aware of occupancy rights certificate in the
year 2015 was a clear moonshine defense and that the delay of
33 years by them per se defeats the proprietorial claim against
subject property. Reliance was placed upon judgment of this
Court in Ravinder Kaur Grewal & Ors. v. Manjit Kaur & Ors
11
inter-alia to contend that the appellants are in possession since
the date of purchase, therefore, they have perfected their
possession into title. Another order passed by this Court in Civil
Appeal Nos. 4367-4372 of 2016 titled as Jagadish v. State of
Karnataka decided on 29.08.2019 was referred wherein it has
been held that even though there is no period of limitation
prescribed under Karnataka Scheduled Castes and Scheduled
Tribes (Prohibition of Transfer of Certain Lands) Act, 1978, but
such right is required to be exercised within reasonable time.
Similar view has been taken by the Division Bench of the High
Court in Vorla Ramachandra Reddy & Anr. v. Joint Collector
11 (2019) SCC Online SC 975
19
I & Ors.
12
, wherein the reliance is placed upon the judgment of
this Court reported as Ponnala Narasing Rao v. Nallolla
Pantaiah
13
. It was thus argued that the challenge to the grant of
occupancy certificate had not been made within reasonable
time, thus the High Court had erred in law to interfere to dispute
the legality of the occupation rights certificate after gross delay
and inaction on part of the respondents.
17. Learned counsel for the appellants also relied upon Single Bench
judgments of Andhra Pradesh High Court reported as Jupudi
Bhushanam v. Joint Collector, Khammam and Ors.
14
, Kasa
Muthanna and Another v. Sunke Rajanna and 11 Ors.
15 It
was argued that the reliance placed by the High Court on the
judgment in Sada v. The Tahsildar
16
is misconceived as in that
case, the violation of period of limitation prescribed under Section 24 was not the question, nor the interplay between the Inams Act and the Tenancy Act was examined therein. Even the
judgment of this Court in B. Bal Reddy v. Teegala Narayana
Reddy
17
would not be applicable in the facts of the present
case.
18. It was hence contended that the Joint Collector in its order dated
4.12.2017 has rightly held that Section 38-E Certificate was
granted in favor of the protected tenant under a misconception
12 2021 SCC OnLine TS 703
13 (1998) 9 SCC 183
14 1996 SCC OnLine AP 941
15 2015 SCC OnLine Hyd 592
16 (1987) 2 APLJ 397
17 (2016) 15 SCC 102
20
because of original uncorrected protected tenancy register. Still
further, the Certificate under Section 38-E should be followed by
a payment of compensation to the land owner. Since no
compensation has been paid, the final vesting does not take
place. Furthermore, the conduct of protected tenant prior to and
subsequent to Section 38-E Certificate demonstrates that such
certificate never attained legal finality in light of the due legal
procedure.
19. It was averred that the predecessor-in-interest of the purchaser
was in possession on 01.11.1973 which entitled him to
occupancy rights under the Inams Act. The name of predecessorin-interest was also recorded in the order of 1982 by the Revenue
Divisional Officer and the Joint Collector who passed the order in
2017.
20. On the other hand, learned counsel for the respondentsprotected tenants submitted that the primary objection of the
purchaser was firstly, settlement and consequent withdrawal of
the appeal by the protected tenants in the year 1989 and
secondly, delay in filing of the appeal in the year 2015. It was
argued that the Tenancy Act and Inams Act are based upon the
principle that tiller of the land shall be the owner. The provisions
of the Tenancy Act are intended to secure the interests of the
tenants and insulate them from relinquishing their rights directly
or indirectly. The freedom of the protected tenant to relinquish
21
his tenancy rights are restricted by the statute as such surrender
can be only with the permission of the Competent Authority. In
the present case, the purchaser has placed reliance upon an oral
surrender of tenancy rights in the year 1954 and subsequent sale
thereof in the year 1957. These two actions are prohibited in law
as the surrender has to be in writing and is to be admitted by the
tenant in good faith subject to the satisfaction of the Tehsildar in
terms of Section 38-E(5) read with Section 19(1)(a) of the
Tenancy Act. Both the instances of surrender of tenancy rights
orally in 1954 and in writing in 1957, contravenes the statutory
protection granted to the protected tenant. The Tenancy Act has
been enacted to protect the tenants from exploitation of the land
owners, therefore, the interpretation which advances the purpose
of the statute should be accepted. The statute has prescribed a
mode of surrender of tenancy and such mode alone could be
resorted to before the surrender is made. The subsequent
proceedings were to justify the surrender of alleged tenancy
rights. The reliance is placed upon Kotaiah & Anr. v. Property
Association of the Baptist Churches(P) Ltd.
18
, Edukanti
Kistamma (Dead) through LRs & Ors. v. S. Venkatareddy
(Dead) through LRs & Ors.
19 and B. Bal Reddy.
21. On merits, it was argued that the purchasers had not disclosed
the factum of the appeal being filed before the Joint Collector or
before the High Court. In fact, the protected tenants had no
18 (1989) 3 SCC 424
19 (2010) 1 SCC 756
22
knowledge of the appeal being filed and withdrawn. The filing
and withdrawal of the appeal is surrounded by suspicious
circumstances so as to justify the grant of Occupancy Rights
Certificate to the purchasers. The order of granting occupancy
rights was passed on 19.2.1982 after issuance of certificate
under Section 38-E. Once ownership rights had been granted
under Section 38-E, the same cannot be disputed except in the
manner contemplated by law. There was no question of granting
occupancy rights to the purchasers as the land is deemed to be
transferred to the protected tenant as the owner and that there
was no interest or title in the disputed land which could be
claimed by the purchasers once the ownership is granted to the
protected tenant. Section 33 of the Inams Act specifically
provides that the Inams Act will not affect the Tenancy Act and
the provisions of the Tenancy Act, particularly Section 38-E (1)
and Sub-Section 5 read with Section 19 have been given
overriding effect after the enactment of Inams Act. Thus, such
provisions would prevail over the Inams Act. Section 38-E (1) of
the Tenancy Act substituted in the year 1971 had given
overriding effect to Chapter IV over any other law which would
also include the Inams Act.
22. The argument that the protected tenant has not deposited the
sale consideration payable to the land owner is inconsequential
as it is land owner who had to apply for compensation by way of
an application to the Tribunal in terms of Section 38-E (3) of the
23
Tenancy Act. In addition, the payment of sale consideration was
the responsibility to be exercised by the Collector in terms of
Section 38-E read with Section 38 sub-sections (4) to (8) of the
Tenancy Act. Therefore, failure of the land owner or the Revenue
Authorities to assess the compensation payable by the protected
tenant would not defeat his rights by virtue of being declared as
an owner on the strength of a statute. It was also argued that the
land owner could not affect sale of his interest in the land which
is in possession of the protected tenant without giving an
opportunity to the protected tenant to purchase such land. The
ownership rights were transferred in favor of the purchasers in
the year 1957 but no opportunity was granted to the protected
tenant to purchase land. Therefore, in terms of Section 38-D, the
sale itself in favor of the purchasers is in violation of the
prohibition contained in Section 38-D of the Tenancy Act.
23. It was further submitted that the Ownership Certificate issued
under Section 38-E has not been challenged by any person
before any authority. Therefore, the transfer of ownership is
complete in respect of the protected tenant. At best, the land
owner could claim the unpaid, undetermined sale price from the
protected tenant but the transfer of ownership rights shall be
absolute. Reliance has been placed upon judgment of this Court
in Edukanti Kistamma and judgment of the High Court
reported as Sada.
24
24. It was contended that Occupancy Rights Certificate was issued to
the purchasers without any notice to the protected tenant. Such
certificate would be null and void after the ownership rights were
conferred to the protected tenant. The affidavits of Mandala
Yettaiah and Govaramma in 1979 relinquishing the rights are
undated, unsigned and in any case ineffective as there was no
permission obtained by the Tehsildar for surrender of the tenancy
rights under Section 38-E (5) read with Section 19 of the Tenancy
Act. Therefore, the knowledge of grant of Occupancy Rights
Certificate to the purchasers cannot be attributed to the
respondents and thus could be disputed in the year 2015 when
the information about such Certificate came to the notice of
some of the protected tenants. It was an assertion of the title by
the protected tenant on the basis of certificate granted under
Section 38-E of the Tenancy Act. Thus, the Occupancy Rights
Certificate obtained by the purchasers was in nullity, void ab
initio and without jurisdiction.
25. We have heard learned counsels for the parties and find no merit
in the present appeals. Before we examine the facts of the case,
some principles of law need to be stated.
26. In Sada, a Full Bench of the Andhra Pradesh High Court
examined various aspects of the Tenancy Act by framing 9 points
for consideration by giving complete legislative history of the
Tenancy Act. The High Court held on the point Nos. 2 and 4
25
relevant for the purpose of the preset appeal as under:
“(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 Section
38E(1) of the Act (in this batch 1-1-1973) for becoming
owner of the property and for obtaining the ownership
certificate?
4) Whether the new proviso to Section 38E(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?
“27. In our view, the contention for the landholders that
unless the protected tenant is in physical possession on
the date of notification issued, under Section 38-E(1), he
cannot get the ownership rights, is not tenable. A plain
regarding of S. 38-E (1) shows that the Government may,
by notification in the gazette declare is respect of any
area, that from which such date as may be specified
therein, ownership of all lands held by protected tenants
which they are entitled to purchase from their landholders
in such area shall, subject to Sec. 38(7), stand transferred
to and vest in the protected tenant holding them. It is
important to note that the statute does not say ‘held on
the date specified in such notification’. Wherever the
Legislature wanted that land should have been held on
any specified date, it had clearly specified in that Act…
xx xx xx
29. It is clear from S. 38-E that it is for these protected
tenants who are finally declared to be protected tenants'
and included in the Register prepared for that purpose
end for whom protected tenancy certificates have been
issued, that ownership rights are envisaged. In S. 33-E(1),
subject of course, to the limitation with regard to extent of
holdings as specified in S. 38(7) and to the proviso to S.
38-E(1). Once persons who held land on the dates or for
the periods mentioned in S. 34. 37 and 37-A and the
requirement of physical possession on the dates required
in those sections is satisfied, such persons have become
protected tenants'. Once a person becomes a protected
tenant, he earns a qualification to become an owner by
force of statute, subject of course to the qualification
26
regarding extent in S. 38(7) and to the proviso to S. 38-
E(1). There is no requirement in the Act that he should
also be in possession on the date specified in the
notification issued in S. 38-E(1). The words ‘all lands held
by protected tenants’ is more a description of the lands
with regard to which the right as ‘protected tenant’ has
been declared and there are no words requiring physical
possession on the date specified in the notification.
xx xx xx
31. A person ‘holds’ the land as protected tenant if he is
stiff a ‘protected tenant’ on the notified date, though out
of possession. As long as his right as protected tenant has
not been determined by date of notification in a manner
known 10 the Act, he ‘holds’ the land ax protected tenant,
whether physically in possession or not We shall explain
this again under point 7 in the context of surrender”.
xx xx xx
36. For all the aforesaid reasons we hold on Point No. 1
that for tie vesting of the ownership of land ‘held’ by a
protected tenant under S. 38-E(1), it is not necessary that
the protected tenant should have been in physical
possession on the date of notification, it is sufficient if he
continued to hold the status of a ‘protected tenant’ as on
the notified date even if not in physical possession and he
satisfied the requirements of S. 32(7) of the Act. This is
also subject to the proviso to Section 38-E(1).
xx xx xx
55. Point No. 4 The point is whether the new proviso to S.
38-E(2) added by Act 2 of 1979 is retrospective and
permits restoration of possession Where ownership the
certificate is issued before 11-1-1979 when Act 2/79 has
come into force.
56. Now the new proviso to S. 38-E(2) was introduced by
Act 2/1979 to get round the difficulty created by the
judgment in Narsaiah's case (1), 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 S. 38 E (1) enabling a ‘protected tenant’ to
obtain possession through the Tahsildar was not
applicable to the case of an application by an owner, even
if it be a case of a protected tenant becoming an owner.
27
57. In our view, the Legislature wanted to fill up the
difficulty created by Narsaiah's case when it added the
new proviso to S. 38-E(2) enabling the Tahsildar to restore
possession to a former protected tenant who had become
the owner.
xx xx xx
59. It is then argued that the words “the ownership has
been transferred” in the new proviso to S. 38-E(2) show
that the amendment does not apply to cases where the
ownership certificate has been issued before 11-1-1979.
This interpretation is not correct. We fully endorse the
reasons given in Chennaiah's case to say that these words
cannot be given such a restricted meaning. Point No. 4 is
decided accordingly.
xx xx xx
66. For purposes of S. 38-E(1) the protected tenant
should not have validly surrendered his tenancy right by
the date of notification under S. 38-E(1). But if he had
voluntarily surrendered his rights prior to 4-2-1954 (the
date of the 1954 amendment) and put the landholder in
possession, be it without the intervention of the Tahsildar,
he could not claim any rights of ownership under S. 38-
E(1) upon the issue of the notification. Likewise, if the
surrender was after 4-2-1954 and before the date of
notification under S. 38-E(1) and such surrender satisfied
the requirements of Sec. 19 and was a valid surrender,
the protected tenant could not claim ownership rights. If
however there was no valid surrender, whether before
(being not voluntarily but forcible), or after (being not in
conformity with S. 19), the protected tenant had a right to
be put back in possession under S. 32 as stated
in Venkanna v. Buchamma (12) and such protected
tenants, (if they had not otherwise lost their status under
Ss. 32 or 44 by the notified date) would be entitled to
ownership rights under S. 38E(1) and would be entitled to
the ownership certificate under S. 38-E(2). In cases where
proceedings under S. 19 are pending on the date of
notification and end in favour of the protected tenant
thereafter, the date of vesting gets postponed till the said
decision. Point No. 7 is decided accordingly.”
27. In Kotaiah, this Court held that the protected tenant cannot be
dispossessed illegally by the landlord or anybody else. Section
28
38-D prohibits the land holder from alienating the tenanted land
to third parties. Even if the land holder intends to sell the
tenanted land, he must give a notice in writing of such intention
to the protected tenant. It was concluded as under:
“22. In sum...,
(i) The protected tenant has a right to become full owner
of the lands in his possession. He becomes the owner
when the Government issues a notification under Section
38-E. We are told that the Government had issued such a
notification on 1-10-1973, relating to the district where the
lands in question are situated. It was about three years
earlier to termination of the appellants' tenancy by the
Association. If the appellants had a right to become
owners of the tenanted lands, the question of terminating
their tenancy would not arise.
(ii) The protected tenant cannot be dispossessed illegally
by the landlord or anybody else. If so dispossessed, the
Tehsildar either suo motu or on application must hold a
summary enquiry, and direct that the land be restored to
the protected tenant. That is the mandate of Section 38-E
and the Explanation thereof.
(iii) The landholder by himself cannot dispossess the
protected tenant even if the tenancy is terminated in
accordance with the law. The landlord will have to take
recourse to Section 32. He must approach the Tehsildar to
hold an enquiry and pass such order as he deems fit.
(iv) Section 38-D prohibits the landholder from alienating
the tenanted land to third parties. If the landholder intends
to sell the land, he must give notice in writing of his
intention to the protected tenant. The first offer must be
given to the protected tenant. It is only when the
protected tenant does not exercise the right to purchase,
the landholder could sell the land to third parties. The
alienation made in contravention of these provisions has
no legal effect.”
28. In Edukanti Kistamma, the appellants were the protected
tenants and were issued ownership certificate under Section 38-
E of the Tenancy Act. The stand of the respondents of surrender
29
of the tenancy rights was found to be invalid. This Court in these
circumstances held that it is not necessary that a protected
tenant should also be in possession on the date specified in the
notification issued under Section 38-E of the Tenancy Act. This
Court relied upon the judgment in Kotaiah and held as under:
“19. In view of the above, it is evident that the scheme
of the Act provides that a person who is a protected
tenant has a right to get the ownership in accordance
with the statutory provisions, provided the total area of
the land owned by the landholder including the land
under the cultivation of his tenants is more than three
times the area of a family holding for the local area
concerned. The person should be in lawful possession of
the land on the date of commencement of the 1950 Act
to claim benefits under the Act. The Government has to
make a declaration by publishing the notification in the
gazette in respect of any area and from such date as may
be specified therein, that the ownership of all lands held
by protected tenants which they are entitled to purchase
from their landholders in such area under the Act, subject
to the conditions laid down under Section 38(7) of the Act
would stand transferred to and vest in the protected
tenants holding them as such and from such date the
protected tenants shall be deemed to be the full owners
of such lands.
20. The certificate issued under Section 38-E(2) shall be
conclusive evidence of the protected tenant having
become the owner of the land with effect from the date of
the certificate, as against the landholder and all other
persons having any interest therein. In case the protected
tenant is not in possession of the land, he has a right to
restoration of the possession of the said land through the
Tahsildar. The protected tenant cannot be dispossessed
illegally by the landlord or anybody else. If so
dispossessed, he has a right to restoration of the
possession. He can be dispossessed only by taking
recourse to the procedure prescribed under Section 32 of
the 1950 Act.
21. There is a complete embargo on the right of the
landholder to alienate the tenanted land to a third party
without giving an option to the tenant to purchase the
30
land. Section 47 of the 1950 Act (omitted by the
amendment of 1969) provided that any transfer of such
land except to the protected tenant shall be void ab initio.
The protected tenant may surrender his rights by strict
adherence to the statutory requirements under the 1950
Act. In case there is any deviation from any such
requirement, it would render the surrender ineffective and
inconsequential.
xxx xxx xxx
26. The 1950 Act being the beneficial legislation
requires interpretation to advance social and economic
justice and enforce the constitutional directives and not to
deprive a person of his right to property. The statutory
provisions should not be construed in favour of such
deprivation. Interpretation of a beneficial legislation with a
narrow pedantic approach is not justified. In case there is
any doubt, the court should interpret a beneficial
legislation in favour of the beneficiaries and not otherwise
as it would be against the legislative intent. For the
purpose of interpretation of a statute, the Act is to be read
in its entirety. The purport and object of the Act must be
given its full effect by applying the principles of purposive
construction. The court must be strong against any
construction which tends to reduce a statute's utility. The
provisions of the statute must be construed so as to make
it effective and operative and to further the ends of justice
and not to frustrate the same. The court has the duty to
construe the statute to promote the object of the statute
and serve the purpose for which it has been enacted and
should not efface its very purpose.
xxx xxx xxx
41. There can be no doubt that once a protected tenant
gets a certificate of ownership under Section 38-E(2) of
the 1950 Act, he has a right to apply for restoration of
possession to him if he has been dispossessed. The
protected tenant has a right to ask for summary eviction
of a trespasser.”
29. This Court in Boddam approved a Full Bench Judgment of the
High Court in Sada. In Boddam, an application was filed claiming protected tenancy under Section 37-A of the Tenancy Act in
31
the year 1998. On 16.12.1998, for the first time, it was alleged
that the appellant was reflected as cultivating tenant in the
Khasra Pahani for the year 1954-1955 for three years. The sale
deed was executed in his favor by the owner on 23.11.1959 after
permission was granted to his vendor under Sections 47 and 48
of the Tenancy Act. Bala, the paternal Uncle of the appellant had
not claimed protected tenancy rights during his lifetime as he
died in the year 1975. Even his legal representatives did not
claim protected tenancy. It was only in 1998 that protected tenancy was sought and the ownership certificate under Section 38-
E of the Tenancy Act was claimed after more than 40 years. This
Court held as under:
“13. …A person becomes a protected tenant when he is a
holder on the dates or for the periods mentioned in
Sections 35, 37 and 37-A. Once a person becomes a
protected tenant, he is entitled to an ownership certificate
under Section 38-E. In Sada [AIR 1988 AP 77 : (1987) 2 An
LT 749 (FB)] the Full Bench of the Andhra Pradesh High
Court held that a person “holds” the land as protected
tenant if he is still a protected tenant on the notified date
i.e. 1-1-1973, though out of possession. As long as his
right as protected tenant has not been determined by the
date of notification in a manner known to the Act, he
holds the land as a protected tenant, whether physically
in possession or not. For the vesting of ownership of land
held by a protected tenant under Section 38-E, it is not
necessary that the protected tenant should be in physical
possession on 1-1-1973. It is sufficient if he continues to
hold the status of a protected tenant on the notified date,
even if he is not in physical possession. The Act does not
merely regulate the relationship of landlord and tenant
but deals with the alienation of agricultural land and
includes transfer of the landholder's interest to the
protected tenants. Therefore, the grant of pattedari
(ownership rights) also finds place in the Act.”
32
30. This Court in Bal Reddy quoted with approval the Full Bench
judgment in Sada as well as the earlier judgment of this Court in
Kotaiah to hold that protected tenancy could be terminated only
in a manner known to law. In the absence of such valid
termination of ‘protected tenancy’, the interest of such protected
tenant continues to be operative and subsisting in law and could
devolve on his legal heirs and representatives who could then
claim restoration of possession. As laid down in Sada, even if the
protected tenant had lost possession, without there being valid
termination of his status as a protected tenant, he would still be
entitled to all incidents of protection under the Act.
31. We shall now examine the respective contentions of the parties
in view of the law laid down and also the judgment of the High
Court in Sada which has stood the test of time for last more than
30 years. 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
33
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.
32. 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.
33. 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,
34
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.
34. 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.
35. 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
35
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.
36. 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.
37. The judgments referred to by the learned counsels for the
appellants are not applicable to the facts of the present case.
36
S. Rangaiah was a case of kabiz-e-kadim, which means an old
occupier, who is neither a tenant nor a protected tenant. Such
kabiz-e-kadim was granted protected tenancy status after the
land got vested with the Government on 20.7.1955. The Bench
noticed that even after vesting of Inam, a protected tenant
would continue to have tenancy rights and would have the
disability to enter into the agreement of sale on 22.1.1965 in
favor of the respondents. The present matter is not a case of
transfer of rights by or on behalf of the protected tenant. 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.
37
38. 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 oc38
cupancy rights were granted in the year 1982 under the Inams
Act.
39. In S. Veera Reddy, the appellants were transferees of the protected tenant who sought declaration. The appellants relied
upon a document dated 8.2.1963 by which the protected tenant
was said to have transferred possession in their favor. On the
other hand, one Sattaiah claimed possession after alleged surrender of tenancy rights by the protected tenant. The appellants
filed a suit claiming declaration of title and perpetual injunction.
It was also a case where plaintiffs and defendants applied for occupancy rights under the Inams Act. In fact, Section 38-E came
to be inserted in the year 1971 after the filing of the suit by the
appellants.
40. Bhimavarapu Venkaiah is a case of transfer of Inam land
wherein occupancy rights were claimed and the matter was remitted to the Revenue Divisional Officer to consider the application of the first petitioner for the grant of occupancy rights. S.
Narasimha was also a case of claim of grant of Occupancy
Rights Certificate. There is however no claim of grant of ownership rights as a protected tenant and interplay between the Tenancy Act or the Inams Act.
41. In the judgment of this Court in Ponnala Narsing Rao, theory of
oral surrender of protected tenancy rights prior to 1954 was
disbelieved. It was held that the application under Section 32 of
39
the Tenancy Act was filed after an unreasonable delay. Such
judgment has been followed by the Andhra Pradesh High Court in
Vorla Ramachandra Reddy.
42. We do not find that such judgments provide assistance to the
arguments raised by the learned counsel for the appellants.
Firstly, the application was treated to be one under Section 32 of
the Tenancy Act. Section 32 falls in Chapter III of the Act dealing
with the rights of the tenants whereas the rights of protected
tenants are governed under Chapter IV. Section 32 is not
applicable stricto sensu except to the limited extent as
mentioned in the explanation to Section 38-E (1) of the Tenancy
Act. Therefore, judgments in Ponnala Narsing Rao or Vorla
Ramachandra Reddy are not applicable to the facts of the
present case. 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.
43. The judgment in Boddam Narsimha is not helpful to the arguments raised by Mr. Dave as it is not a case of protected tenant
on the dates mentioned in Sections 35, 37 and 37-A.
44. The order of the learned Single Bench in Jupudi Bhushanam is
40
to the effect that once certificate under Section 38-E is granted,
and subsequently he has been dispossessed, he has the right to
seek remedy from the Civil Court. 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.
45. In the judgment of Kasa Muthanna, the plaintiff was relying
upon a certificate under Section 38 of the Tenancy Act whereas
the defendant was relying upon a sale which was void in terms of
Section 38 of the Tenancy Act. The High Court was examining in
second appeal filed by the defendant, when the certificate under
Section 38-E was granted to the plaintiff or their predecessors. In
the aforesaid case, a certificate issued under section 38-E had
become final and binding for not being challenged as per the
procedure established by law. The Court held that the revenue
entries made ignoring the 38-E certificate are illegal and that
41
when once the title is established and the defendants had failed
to prove adverse possession or any other right to remain in
possession, the plaintiffs are entitled to the relief of recovery
possession.
46. In the judgment reported as J. Narayana & Ors. v. Jainapally
Pedda Kistaiah and Ors
20
, the question examined was whether
the appellants are the protected tenants or owners under Section
38-E of the Tenancy Act. The High Court held as under:
“16. From a perusal of the above, it is clear that it is only
after the certificate is issued under sub-section (2), that
the rights of ownership stand conferred upon a protected
tenant. Another important aspect is that even where a
certificate is issued, it must be followed by determination
of the amount to be paid to the land owner and actual
payment thereof. The default in payment of price in its
entirety or portion thereof would lead to annulment of the
ownership.
17. In the instant case the appellants were not issued
any certificate of ownership at all. They did not even
produce any deed of lease, which contains their names. It
was not even pleaded that the price for the land was
determined and the same was paid as provided under
sub-section (3) of Sec.38-E of the Tenancy Act.
xxx xxx xxx
22. It is important to note that if a P.T. or his successors
are dispossessed from the land, they can seek the relief of
recovery of possession under Section 32 of the Tenancy
Act by filing application before the Tahsildar. As a matter
fact, they filed an application under Sec. 32 of the
Tenancy Act way back in the year 1988 for recovery of
possession against the Respondents. That, however, was
after the lands were acquired and Notification under Sec.4
(1) of the Act was published. Till today no orders have
been passed thereon. The result is that the Respondents
20 2013 SCC OnLine AP 289
42
are undisputedly in possession of the land and in contrast
the appellants were never in possession of the same, till it
was acquired. The Point No.2 is answered accordingly.”
47. 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.
48. Now we shall examine the occupancy rights certificate granted
to the purchasers in the year 1982. 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.
43
49. 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 nonobstante 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. In terms of Section 3(2)(b) of the
Inams Act, all rights, title and interests vesting in the Inamdar
including the protected tenant shall cease and be vested
absolutely in the State, free from all encumbrances. Section 7 of
44
the Inams Act deals with the right of a protected tenant to be
registered as an occupant of such inam lands in his possession
as may be left over after the allotment under Section 4.
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.
50. 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.
51. 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.
45
52. 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.
.............................................J.
(SANJAY KISHAN KAUL)
.............................................J.
(HEMANT GUPTA)
NEW DELHI;
OCTOBER 1, 2021
46
