THE HON’BLE SRI JUSTICE VILAS V. AFZULPURKAR CRP NO. 688 OF 2008 Date of Judgment: 15.3.2011 Between: Mohd. Maqsood Ali and others …Petitioners and Dontham Satyanarayana Reddy and others ..Respondents THE HON’BLE SRI JUSTICE VILAS V. AFZULPURKAR C.R.P. NO. 688 OF 2008 ORDER: The petitioners are landlords and they are aggrieved by the order of the Revenue Divisional Officer, Nalgonda in File No. G/519/2001, dated 30.9.2003, as confirmed by the learned Joint Collector, Nalgonda in File No. F2/18529/2003, dated 1.12.2007. Heard both learned counsel appearing for either side. The facts in the present case are that the respondents herein, claiming to be the legal representatives of the protected tenant, filed an application under Section 38-E (3) of the Andhra Pradesh (Telangana Area) Tenancy and Agricultural Lands Act, 1950 (for short “the Act”) before the Revenue Divisional Officer contending that the petitioners/landlords agreed to sell 40% of their share in the land to the respondents herein at the rate of Rs.4,500/- per acre and agreements to that effect dated 14.3.1993 and 12.10.1993 were relied upon to show that the respondents had paid part consideration also. Alleging that the petitioners are now refusing to execute the sale deeds, the respondents filed an application under Section 38-E (3) of the Act. The petitioners herein appeared and filed their counter on 10.6.2002 denying the claim of the respondents herein inter alia on the ground that the respondents are not legal representatives of the protected tenant and that the alleged agreements of sale produced by the respondents are not genuine and even otherwise, the respondents are not entitled to benefit under Section 38-E (3) of the Act in view of the fact that they were held to be having excess land under the A.P. Agricultural Land (Ceiling) Act which disentitled them from claiming right under Section 38-E (3) of the Act. It appears that the Revenue Divisional Officer during the enquiry recorded statements of two witnesses produced by the respondents, who confirmed the agreements claimed by them. The Revenue Divisional Officer also proceeded to find that there is no dispute regarding the respondents claiming right under protected tenant and that the transaction of sale as evidenced by the two agreements produced by the respondents stands established at least to the extent of the agreed rate of Rs.4,500/- per acre. The Revenue Divisional Officer has, therefore, applied the said agreed rate and came to the conclusion that the said rate represents a reasonable rate at which an order under Section 38-E (3) of the Act can be passed in favour of the respondents. The Revenue Divisional Officer accordingly allowed the application by specifically observing that the provisions under Section 38 (7) of the Act do not apply to such agreed sale and allowed the application of the respondents. On appeal, the lower appellate authority confirmed the said order by agreeing with the other findings of the primary authority by holding that the petitioners have failed to prove that the respondents are not sons and legal heirs of the protected tenant. It also held that if the agreements of sale are disputed by the petitioners, in view of the evidence recorded by the Revenue Divisional Officer, these documents have to be treated as genuine and it is for the petitioners to establish the falsity of the documents by approaching the civil Court. The appellate authority also agreed that the reasonable rate, at which the sale is to be ordered, is based upon the rate agreed between the parties as evidenced by the agreements produced by the respondents. To the extent of applicability of Section 38 (7) of the Act, however the appellate authority was of the view that the facts of the case fall under Section 38-A of the Act, whereby Section 38 (7) of the Act is not applicable to such a transaction. In that view of the matter, the appeal was dismissed. A look at the provisions of Sections 38-E (3), 38 (7) and 38-A of the Act would show that Section 38 (7) of the Act has no application whenever the landlord and the protected tenant either jointly or separately seek to enforce by consent, the tenant’s right to purchase the interest of landlord, and such applications are governed by Section 38-A of the Act which are primarily based on consent by both the parties. In such situation, therefore Section 38 (7) of the Act was made inapplicable. The said situation does not arise in the present case, inasmuch as the petitioners who are the landlords are seriously disputing the claim of the respondents. The order of the learned Joint Collector to that extent, therefore, cannot be justified. So far as Section 38-E (3) of the Act is concerned, it mandates that all applications under the said provision shall be subject to Section 38 (7) of the Act. The order of the primary authority holding that Section 38 (7) of the Act has no application is, therefore, contrary to mandate of Section 38-E (3) of the Act and therefore I am unable to uphold the said order as well. The rival claims of the parties further show that there is a serious contest with regard to the alleged agreements as well as entitlement of the respondents and a matter of this nature requires to be adjudicated upon by giving adequate opportunity to both the parties. The petitioners have also raised a ground before the learned Joint Collector in the written arguments complaining failure of the primary authority to give adequate opportunity to cross-examine witnesses examined on behalf of the respondents. The procedural requirement of an enquiry, therefore, had to be followed by the primary authority, apart from the questions under contest between the parties also require appropriate adjudication by the primary authority. It is, therefore, just and appropriate to set aside both the impugned orders and remit the proceedings of the Revenue Divisional Officer, Nalgonda to conduct appropriate enquiry and decide the matter afresh after giving due opportunity to both sides. Since the proceedings before the Revenue Divisional Officer are pending from 2001 onwards, it is just and appropriate that the Revenue Divisional Officer shall determine the proceedings expeditiously within four months from the date of receipt of a copy of this order. The revision petition is accordingly allowed. No order as to costs. _________________________ VILAS V. AFZULPURKAR, J Dt. 15.3.2011 KR