THE HON’BLE SRI JUSTICE B. CHANDRA KUMAR Second Appeal No. 1274 of 2010 Judgment: The appellants herein aggrieved by the observations made in paragraphs 38 and 42 of the judgment dated 22.04.2010 passed in A.S. No.34 of 2001 by the V Additional District Judge (FTC), Mahabubnagar, filed this appeal. The brief facts of the case are as follows. Smt. Sukekshini Devi, the original owner of the land in Survey No.187, admeasuring Ac.13- 32 gts., situated at Mogiligidda village, Farooqnagar Mandal (hereinafter referred to as ‘suit land’), filed a declaration as required under Section 8 of the Andhra Pradesh Land Reforms Ceiling on Agriculture Act, 1973 (hereinafter referred to as ‘the Act’) and the Land Reforms Tribunal found that she was holding an extent equivalent to 1.8670 standard holding in excess of the ceiling area and subsequently surrendered the suit land in the year 1987 and the Government has taken over the possession of the same on 25.06.1981. The appellants specific case is that they have purchased the suit land from its original owner for a consideration of Rs.4,000/- under an agreement of sale dated 26.06.1969 and that since then they have been in possession and enjoyment of the same. It is also their case that their vendor executed a registered sale deed on 11.10.1973 and it is also their case that soon after they have learnt that the original owner, who is their vendor surrendered the suit land, they filed a writ petition in W.P. No.6253 of 1990 mainly contending that they were not issued any notice before accepting the surrender proposals. This Court, by an order dated 03.02.1992 in W.P. No.6253 of 1990, directed the Land Reforms Tribunal, Mahaboobnagar, to issue fresh notices to the appellants and to decide the matter afresh. Then the Land Reforms Tribunal rejected the case of the appellants. Then the appellants filed an appeal in LRA No.17 of 1993 and the Appellate Tribunal allowed the appeal and remanded the matter to the Land Reforms Tribunal to make fresh enquiry. Then the Land Reforms Tribunal passed orders on 26.06.1999 vide Ex.A9 directing the original declarant to surrender equal extent in other survey numbers, which are free from litigation. Aggrieved by the said orders, one Lakshmi Reddy, who is a third party preferred an appeal in LRA No.3 of 1999, but the same was dismissed on 14.03.1999. He carried the matter in revision in CRP No.4493 of 2008 before this Court, however, the same was dismissed on 17.03.2010. During the pendency of appeal, the appellants filed a suit in O.S. No.51 of 1993 on the file of the Junior Civil Judge, Shadnagar against the District Collector, Mahaboobnagar, the Mandal Revenue Officer, Farooqnagar and Sudakutti Lakshmi Reddy for injunction restraining the above referred defendants 1 to 3 from interfering with their possession over the suit lands. On behalf of the plaintiffs i.e., appellants, the first appellant was examined as PW.1 and Exs.A1 to A9 were marked. On behalf of the defendants, one T. Niranjan, the Mandal Revenue Officer, Farooknagar, was examined as DW.1, but no documents were marked. The Trial Court, holding that the appellants have proved their possession and that no documents have been filed to show that the government has taken over the possession of the land, decreed the suit. Aggrieved by the same, the respondents 1 and 2 herein i.e., the District Collector, Mahaboobnagar and the Mandal Revenue Officer, Farooqnagar, preferred the appeal in A.S. No. 34 of 2001. The lower appellate Court, though dismissed the appeal, but, however, observed in paras 38 and 42 of the judgment, as follows. “38. It is needless for me to say that in the event Sukeshini Devi has failed to show alternative land as per orders of Ex.A9, it is open for the appellants/defendants 1 and 2 to resume possession of suit schedule land since same was declared as surplus land and surrendered on paper to the Government. The decree of injunction granted in this suit O.S. No.51 of 1993 in favour of respondents/plaintiffs will not preclude appellants/defendants 1 and 2 from taking such steps permissible under law, in the event alternative land is not shown by Sukeshini Devi as per orders under Ex.A9 as confirmed under Ex.A10. Subject to the said observation of relief of injunction is granted in favour of respondents/plaintiffs.” “42……………………. It is needless for me to say that decree of perpetual injunction granted by trial Court confirmed in this appeal will not preclude appellants/defendants 1 and 2 from resuming from possession of the suit land in the event Sukeshini Devi, the original landlord failed to surrender alternative land in terms of Ex.A9 order. The decree of perpetual injunction thus will not preclude appellants/defendants 1 and 2 from resuming the possession of the suit land in the event alternative land is not shown by Sukeshni Devi. Decree of perpetual injunction in favour of respondents/plaintiffs will not preclude appellants/defendants 1 and 2 from taking such steps for surrender of alternative land and in default of failure to surrender alternate land, for resuming possession of suit schedule lands.” Aggrieved by the said observations, this appeal is filed. The learned counsel for the appellants submitted that when there is a dispute with regard to the land proposed to be surrendered the Tribunal is justified in not accepting the same and in directing the original declarant to surrender some other equivalent extent of land. It is also submitted that once the Tribunal passed orders not accepting the surrender of suit land and directed the original declarant to surrender any other equivalent land, the observations of the appellate Court are not justified, more so when the orders of the Tribunal are confirmed by the Appellate Tribunal and by this Court in CRP No.4493 of 2008, by an order dated 17.03.2010. It is also his submission that the observations in paras 38 and 42 are unwarranted. In support of his contention, he has relied on the decisions reported in Gangi Pothuraju v. M. Surya Prabhakar Rao[1], State of Andhra Pradesh v. K.V. Jagannadha Rao[2] and Ravipati Venkata Krishna Rao v. State of A.P.[3] Learned Government Pleader for Arbitration supported the observations of the appellate Court in paras 38 and 42 of the judgment and his main submission is that the suit itself is not maintainable under Section 26 of the Act. The substantial question of law formulated by this Court is as follows. “Whether the observations made by the lower appellate Court in para 38 and 42 giving liberty to the defendants to take appropriate steps in the event of Sukeshini Devi not surrendering alternative land can be justified?” It is not in dispute that the suit land originally belonged to Smt. Sukeshini Devi and she was declared as surplus holder and she has surrendered the suit land. The case of the plaintiffs is that they purchased the land for a consideration of Rs.4,000/- from the original declarant under an agreement of sale dated 20.06.1969 and subsequently they got the sale deed registered on 11.10.1973 and since then they have been in possession and enjoyment of the suit land and that the original declarants had no right to surrender the land. It is also their contention that once the Tribunal has deleted this land and not accepted the surrender proposal, the defendants are not justified in again interfering with their possession. Admittedly, the defendants 1 and 2 have not filed any documents in support of their case. Moreover, DW.1 himself seems to have admitted that the entries of the pahanies show that the plaintiffs are in possession of the suit land, but his case is that their possession is illegal. It has to be seen that the order of the Land Reforms Tribunal, dated 26.06.1999, refusing to accept the surrender of the suit land under sub-section (5) of Section 10 of the Act, became final. It has to be seen that the defendants 1 and 2 herein i.e., the State Government did not challenge the orders of the Land Reforms Tribunal. It is also clear that the third defendant herein, who is third party to the proceedings, filed an appeal in LRA No.3 of 1999 and his appeal was dismissed by the Land Reforms Appellate Tribunal, by an order dated 14.03.1999 and this order also became final and the third defendant herein again carried the matter in revision in CRP No.4493 of 2008 and this Court dismissed the same by an order dated 17.03.2010. Therefore, the order of the Tribunal, not accepting the surrender of this land and directing the original land declarant to surrender some other alternative land, has become final. It has to be seen that the documents filed by the plaintiffs clinchingly establish that they have been in possession and enjoyment of the suit land. Anyhow, it is clear that the suit land appears to be a disputed land and surrender of such land was not acceptable to the Tribunal. The facts of the case in Gangi Pothuraju v. M. Surya Prabhakar Rao (1 supra) reveal that the land proposed to be surrendered was already sold by the declarant to another person, who in turn sold the land to the petitioners therein. The petitioners found to be in possession of the land for the last 10 years. It was found that accepting the surrender of such land is bad. I n State of Andhra Pradesh v. K.V. Jagannadha Rao (2 supra) the land covered by an agreement of sale was included in the holding of the declarant. Though the Land Reforms Tribunal did not accept the said contention, but the appellate Court passed orders excluding the same from the holding of the declarant. State filed revision, but was unsuccessful. Again the primary Tribunal once again passed orders under Section 10 of the Act including the same land in the holding of the declarant. This Court held that the earlier findings became final and by including the very land in the holdings of the declarant, the Primary Tribunal had virtually acted as an appellate authority over the High Court and had in fact reversed the finding, which is not permissible. This court considered the issue of surrender of excess land which is in dispute in case Ravipati Venkata Krishna Rao v. State of A.P (3 supra). In that case, the declarant surrendered certain lands, but the Land Reforms Tribunal refused to accept one of such lands. He was also unsuccessful in the appeal. The revision was at the stage of surrender of excess lands. It was held that if the declarant had created any rights in favour of third parties subsequent to the notified date he is under obligation to surrender alternative lands. He cannot have the pleasure of inducting third parties in a piece of land and offer to surrender the same. Having regard to the facts and circumstances of the case, it is clear that the Tribunal has power to refuse to accept the surrender of any land which is in dispute. Sub-section (5) (a) of Section 10 of the Act is as follows. (5) (a) Notwithstanding anything in the Section, it shall be open to the Tribunal to refuse or to accept the surrender of any land— (i) which has been converted into non-agricultural land has been rendered incapable of being used for purposes of agriculture; (ii) the surrender of which is not acceptable on account of a dispute as to the title to the land or an encumbrance on the land or on account of the land being in the possession of any person mentioned in item (v) of Clause (i) of Section 3 or on account of the land proposed to be surrendered becoming inaccessible by reason of its severance from the remaining part of the holding; and the Tribunal shall, in every such case, serve a notice on the person concerned requiring him to surrender any other land in lieu thereof; and thereupon the provisions of sub-sections (3) and (4) shall, mutates mutandis apply to such surrender: Provided that where land proposed to be surrendered under this section is burdened with a mortgage, the Tribunal may, on an application made by the mortgagor with the consent of the mortgagee, by order, transfer such mortgage from the land so proposed to be surrendered to the residuary holding of the mortgagor or to any part thereof. Moreover, since the defendants 1 and 2 have not adduced any evidence the findings of the Courts below appears to have become final and there is no appeal by the defendants against such findings. What is to be done when the declarant is unable to surrender alternative land was not an issue before the trial Court and also before the appellate Court. Therefore the appellate Court seems to be not justified in making observations in para 38 that in case the declarant failed to show alternative land as per the orders of Ex.A9, it is open for the appellants/ defendants 1 and 2 to resume possession of the suit land since the same was declared as surplus land and surrendered on paper to the Government. What is o be done by the authorities has been clarified under the provisions of the Act. Clause (b) of sub- section(5) of Section 10 of the Act is as follows. (b) Where the land so surrendered under Clause (1) is also not acceptable to the Tribunal, the Tribunal shall, after giving an opportunity to the person concerned of being heard, select any other land in lieu thereof, and thereupon the said land shall be deemed to have been surrendered by such person. Sub-section (6) of Section 10 of the Act is as follows. (6) Before passing an order under sub-section (3), sub-section (4) or sub-section (5), the Tribunal shall publish the particulars of land proposed to be surrendered or selected, in such manner as may be prescribed and consider the objections, if any received in pursuance of such publication. Thus, it is clear that where the declarant fails to satisfy or propose any other land, then the Tribunal can select the land by itself and such land shall be deemed to have been surrendered. Thus, where it is found that there is a dispute as to the title of the land, the Tribunal can refuse to accept any surrender of the land and direct the declarant to surrender some other land and if the declarant fails to surrender any other land in lieu thereof, the Tribunal can select any other land after giving an opportunity to the person of being heard and such land shall be deemed to have been surrendered. In view of the same, I am of the view that it is for the Land Reforms Tribunal and for the authorities concerned to follow the procedure prescribed under sub-section(5) of Section 10 and there was no occasion or necessity to observe as per the observations made by the appellate Court. However, the submission made by the learned Government Pleader for Arbitration on the aspect of jurisdiction of Civil Court needs consideration. Section 26 of the Act is as follows. “26. Bar of jurisdiction:- Save as otherwise provided in this Act, no order passed or proceeding taken by an officer or authority under this Act shall be called in question in any suit or application and no injunction shall be granted by any Court in respect of any action taken or to be taken by such officer or authority in pursuance of any power conferred by or under this Act.” The above section makes it clear that no order passed or proceeding taken by an officer or authority under this Act shall be called in question in any suit or application and no injunction shall be granted by any Court in respect of any action taken or to be taken by such officer or authority in pursuance of any power conferred by or under this Act. Thus, it is clear that the Act prohibits institution of any civil suit challenging any order or proceeding issued by the officer or an authority acting under the provisions of he Act. Unfortunately the courts blow seems to have not been considered this aspect. Since the civil suit itself is not maintainable, the second appeal has to be dismissed. Accordingly, the second appeal is dismissed, but, however, subject to the observations made supra. No costs. ___________________ B. CHANDRA KUMAR, J Date: 01.03.2011 Tjmr/Nsr [1] 1996 (4) ALD 47 [2] 2002 Suppl (1) ALD 792 [3] 2004(3) ALD 300