HON’BLE SRI JUSTICE S.V.BHATT W.P.No.27009 OF 2001 ORDER: The issue in the writ petition arises under the provisions of the A.P. (Telangana Area) Tenancy and Agricultural Lands Act, 1950 (for short ‘the Act’). The subject matter of the present writ petition is the land in an extent of Ac.43-15 gts in Sy.Nos.108/A, 109/A, 110/A, 113/A and 116/A of Maddikunta Village, Sadasivpet Mandal, Medak District (for short ‘petition lands’). The present writ petition is filed for a Mandamus to declare the order of the 1st respondent in file Nos.F3/41/Ten/98 and F3/4249/98 dated 16.10.2000, as illegal and contrary to the provisions of the Act and set aside the same. Through the impugned order, the 1st respondent has set aside Section 38-E certificate issued to petitioners in file No.A3/85/94 dated 04.09.1997 under the Act. The circumstances leading to filing of the writ petition are as follows: The petitioners are represented by their general power of attorney. According to them, their father late Chappala Hanumaiah cultivated the petition land and after the demise of their father, the petition lands are being cultivated by petitioners for more than five decades. One Narsaiah and Ashaiah along with the father of petitioners became protected tenants of petition lands. The petitioners admit that as against three protected tenants, the name of their father was excluded and the names of Narsaiah and Ashaiah were recorded as protected tenants in the revenue records. The omission to include the name of petitioners’ father is due to oversight. The petitioners claim to be co-tenants with Narsaiah and Ashaiah. It is their case that in khasra pahani the names of Narsaiah and Ashaiah were alone shown in possessory column. Respondents 4 to 9 in the writ petition were never in possession and enjoyment of petition lands at any point of time. On 19.04.1995, the 1st petitioner made application to the 2nd respondent for grant of ownership certificate under Section 38-E of the Act. The said application was followed by further petitions on 30.05.1995 and 07.07.1995. It is the case of petitioners that the 2nd respondent after due enquiry and verification of revenue records issued Certificate of Ownership through proceedings No.A3/85/74 dated 04.09.1997. Respondents 4 to 9, who have nothing to do with the petition lands, have filed appeal before the 1st respondent who in turn through the impugned order has allowed the appeal and set aside the certificate dated 04.09.1997. Aggrieved by the order of 1st respondent, the present writ petition is filed. It is relevant to note that the petitioners at the time of enquiry before the 2nd respondent filed third party affidavits of LRs of Narsaiah and Ashaiah to support their claim for grant of certificate under Section 38-E of the Act. Through the impugned order, the 1st respondent has found that the certificate dated 04.09.1997 was issued basing on the report submitted by the Mandal Revenue Officer, Sadasivpet in regard to possession of father of writ petitioners on the petition lands during the years 1964-66 and the possession of petitioners after the demise of their father late Hanumaiah. The petitioners claim possession through a lease obtained from protected tenants. The primary authority accepted the case of petitioners and granted certificate dated 04.09.1997 in favour of petitioners. Respondents 4 to 9 have filed appeal under Section 90 of the Act before the 1st respondent. It is the case of respondents 4 to 9 that the petition lands are in their possession and enjoyment as owners and a suit for partition was filed in O.S.No.3 of 1979 in the Court of the District Judge, Medak at Sanga Reddy. A preliminary decree was passed. The preliminary decree was confirmed by this Court in A.S.No.267 of 1980 through judgment and decree dated 05.08.1987. Thereafter, the schedule of properties covered by O.S. No.3 of 1979 were subject to final decree proceedings and a decree was passed in I.A.No.1009 of 1990 dated 09.04.1991. The respondents rely upon khasra pahani and pahani patrika for the years 1975-76, 1976-77, 1993-94, 1994-95, 1995-96 in support of their entitlement and possession. The possession of writ petitioners is contested and it is the case of respondents that third parties were never in possession of the petition lands, much less any cultivation was undertaken by them. The further grievance of the respondents is that at the time when an application for issuance of certificate was made by the petitioners, the names of respondents are reflected in the revenue records and they were not put on notice or any opportunity was given to them. The respondents rely upon the orders in Case No.85/74, File No.C5/4581/73 dated 05.06.1975 through which the authority after due enquiry directed deletion of the name of B.Narsaiah from the Tenancy Register prepared for the subject village. The respondents rely upon surrender statement of protected tenants in File No.B2/97/68 dated 06.08.1968. By reference to the above circumstances, the appeal was filed and the order of the 2nd respondent was assailed. Since there is gap in the case of the petitioners, the 1st respondent through the impugned order has noticed that an attempt is made at the time of hearing of the appeal that the father of petitioners was co- tenant of original protected tenants and there is an omission in including the name of father of petitioners in the revenue records. The appellate authority has found that one Banganagari Narsadu s/o. Baladu and Banganagari Ashigadu s/o. Molle were recognized as protected tenants of petition lands. In file No.C5/4581/73, the same was also recorded. Thereafter, the appellate authority referred to the requirements under Section 34(1) of the Act for grant of a certificate as protected tenant. After verifying the revenue records and also the applicable provisions of law, the finding of the 1st respondent is that the names of petitioners and their father are recorded to be having possession from the year 1964-65. By reference to such possession, the father of petitioners or the petitioners would not come under the category of protected tenant as defined under the Act. The plea of petitioners that their father was a co-tenant along with the protected tenants, is without any evidence and finding is recorded by the Revenue Divisional Officer. The plea of co-tenancy with protected tenants is a new plea taken for the first time in the appeal. At the end, it is held that the petitioners are not entitled for grant of a certificate under Section 38-E of the Act, as the petitioners failed to establish that their case is covered by Section 34(1) of the Act, and the appeal was allowed on 16.10.2000. Hence, the writ petition. Heard learned counsel for the petitioner and the learned counsel for the respondents. Sri V.S.R.Anjaneyulu, learned counsel appearing for the petitioners, has strenuously contended that the 1st respondent committed serious illegalities and irregularities in entertaining the appeal and disposing of the same through the order impugned. The submission of learned counsel for the petitioners is that the respondents have not filed two appeals but have filed only one appeal, however, the 1st respondent set-aside the certificate issued on 04.09.1997 and also set aside the orders passed under R.O.R. Act. The same amounts to illegal exercise of jurisdiction. The learned counsel further complains that the order suffers from colourable exercise of power inasmuch as the 1st respondent failed to look into relevant reports on which the certificate under Section 38-E of the Act has been granted. It is contended that the appeal was filed beyond the period of limitation and without condoning the delay the appeal is taken on file and decided by the 1st respondent. It is further contended that once the appeal was filed complaining violation of principles of natural justice and same was found to be correct for the limited purpose of disposing of the appeal, the 1st respondent ought to have remanded the matter to the 2nd respondent for consideration and fresh disposal. Sri K.S.Murthy, learned counsel appearing for respondents 4 to 9, contends that the application filed in the year 1995 on the face of it is not maintainable. He submits that as on the date of filing of application for grant of certificate under Section 38-E of the Act, respondents 4 to 9 do have interest in the matter and have by which time faced various proceedings under the Act. The petition lands have been subjected to partition in O.S. No.3/79 and possession of respective shares has been taken in terms of final decree passed by the competent Court. He further submits that the protected tenants were unsuccessful against the pattadars by reference to two circumstances, namely, the surrender statement accepted by the competent authority and an order passed in the year 1975 for deletion of the names of protected tenants from the list maintained for the subject village. It is further contended that petitioners did not satisfy any of the requirements of Section 34(1) of the Act to claim status of protected tenants and have a certificate under Section 38-E of the Act. As regards the objection that the appeal has been filed questioning only one order, it is the case of the learned counsel that two separate appeals have been filed, both have been taken up together and the order passed in File No.F3/4249/98 at best be consequential order to the order passed in F3/41/Ten/98. On the question of limitation, it is stated that the period of limitation urged against the filing of the appeal is not available in view of the fact that though the respondents have subsisting interest, they were neither put on notice nor were given any opportunity of hearing before issuance of 38-E certificate by the 2nd respondent. In other words, before the 2nd respondent the respondents were not parties. Respondents have applied for issuance of certified copies of order dated 04.09.1997 and on receipt of certified copies issued by the 2nd respondent, the appeal was filed within the period of limitation. The reason for not filing appeal within 30 days from 04.09.1997 is properly explained in the appeal. The appellate authority on being satisfied that the respondents were not parties before the 2nd respondent and that on receipt of certified copies, the present appeal filed and numbered, and no exception can be taken on the ground of limitation. Since the petitioners have taken serious objection to the manner in which the appeals have been disposed of by the 1st respondent, the learned Government Pleader appearing for the 1st respondent has produced the original file of appeal and proceedings before the 2nd respondent. The counsel were permitted to look into the record. I have perused original record. The respondents have filed appeal on 08.06.1998. The prayer in the appeal filed before the 1st respondent reads as follows: “ .. to allow the appeal by setting aside the order passed by the Mandal Revenue Officer, Sadasivapet in File No.D/2824/95 dated 4-11-1997 in respect of Survey Nos. 108/a (9-02), 109/a (10-38), 110/a (3-07), 113/a (8-20) and 116/a (6-28) totally admeasuring Ac.43.15 gts. situated at Maddikunta (v), Sadadivapet Mandal, District Medak, in the interest of justice and the certificate No.U3/85/94, dated 4-9-1997 of the R.D.O, Sanga Reddy to meet the ends of justice and equity.” From the prayer in appeal before the 1st respondent, it is clear that respondents 4 to 9 have questioned the order dated 04.09.1997 and the consequential order dated 04.11.1997 under the A.P. Rights in Land and Pattadar Pass Books Act, 1971, maybe the sequence of prayers is incorrect i.e., order dated 04.09.1997 should figure as primary and ROR order dated 04.11.1997 as consequential. Therefore, it cannot be said that the respondents failed to question the order of certificate under Section 38-E of the Act. The petitioners ought to have taken this objection before the 1st respondent. Having been unsuccessful on merits of the appeal, this objection is not available to the petitioners. As regards the limitation, it is to be noted that admittedly respondents 4 to 9 were not parties before the 2nd respondent. As on the date of filing of application by the petitioners, the names of respondents 4 to 9 are reflecting in revenue records. Respondents 4 to 9 state that they came to know about the issuance of certificate dated 04.09.1997 when the Tahasildar under the A. P. Rights in Land and Pattadar Pass Books Act, 1971 passed orders dated 04.11.1997. On 04.11.1997, the respondents applied for issuance of certified copies of order dated 04.09.1997 and thereafter preferred appeal. The period of limitation prescribed under the Act can be put against the respondents had they been arrayed as parties before the 2nd respondent, had they participated in the enquiry and had knowledge of the order passed by the 2nd respondent. Since respondents 4 to 9 were not parties before the 2nd respondent, the petitioners having failed to implead them cannot both in law and on facts raise the plea of limitation against respondents 4 to 9 when the appeal was filed on 08.06.1998. Therefore, the objections on the ground of limitation and filing of one appeal are unsustainable and I reject the same. It is contended that the impugned order suffers from colourable exercise of power and the same is liable to be set aside. Colourable exercise of power is examined from the perspective of abuse of power or failure to exercise the jurisdiction/discretion vested in the Authority. The writ petitioners claim transfer of ownership rights under Section 38-E of the Act. The claim is that the petitioners are protected tenants. Let us examine the claim of petitioners with reference to Section 34(1) of the Act. Section 34(1) of the Act reads as follows:- Protected Tenants:- A personal 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 Fasli years 1343 to 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 Fasli year 1353 (6th Oct. 1943), and completed before the commencement of this Act, and (b) has cultivated such land personally during such period: The petitioners have moved the 2nd respondent for issuance of certificate under Section 38-E. The burden is on them to plead and prove their case as required by sub-section (1) of Section 34 of the Act. As observed by the 1st respondent, the 2nd respondent by reference to the alleged possession of the father of the petitioners and also the petitioners for a slab period from 1964-65 granted the certificate under Section 38-E of the Act. If the petitioners have satisfactorily proved their case within the requirements of Section 34 of the Act, the failure to consider such plea and proof can be complained as colourable exercise of power. When the lapse is in the petitioners in pleading and proving their case, the petitioners cannot complain that the 1st respondent did not properly exercise the power vested in him by Section 90 of the Act. I am of the opinion, having seen the record that the ground urged against the order impugned in this behalf is unsustainable and the said objection is also rejected. It is to be noted that the respondents are referring to three circumstances -i) surrender of tenancy right by the protected tenants, ii) the same was also noted by the competent authority and the order deleting the names of protected tenants from the list passed in the year 1975 which has become final and iii) a final decree passed in O.S. No. 3 of 1979. The legal representatives of protected tenants whose names have been deleted from list by giving consent cannot create a better right or title than what their predecessors-in-interest had. Having regard to the totality of circumstances of the case, I am of the opinion that the order impugned in the writ petition does not suffer from any illegality or irregularity and I see no reason to interfere with the same. The writ petition is dismissed. There shall be no order as to costs. Miscellaneous petitions if any pending in this writ petition shall stand disposed of. ____________ S.V.BHATT, J DATE:21-01-2014 Lrkm/Stp