HONOURABLE SRI JUSTICE ASHUTOSH MOHUNTA WRIT PETITION No. 3173 OF 2008. DATED ----------March, 2011. BETWEEN Pegada Yadairi …Petitioner And The Joint Collector-II, Ranga Reddy District, Nampally, Hyderabad and ors. ….Respondents. HONOURABLE SRI JUSTICE ASHUTOSH MOHUNTA WRIT PETITION No. 3173 OF 2008. ORDER: The petitioner’s father one Eswaraiah, the fourth respondent herein, filed an application vide case No.B/7111/1998 before the Mandal Revenue Officicer-second respondent for issuance of succession certificate under Section 40 of the A.P. (Telangana Area) Tenancy and Agricultural Lands Act, 1950 (for brevity ‘the Act of 1950’) claiming succession to Pegada Agamaiah, a certified protected tenant in respect of the land in an extent of Ac.1.25 guntas in Sy.No. 46 (old 35) of Yapral village, Malkajgiri Mandal, Ranga Reddy District. The second respondent by his order dated 15.07.2002 dismissed the said application holding that the said Eswaraiah, (fourth respondent) has no subsisting rights in the subject land entitling him to be issued a succession certificate in his favour. Aggrieved thereby, initially, the petitioner’s father preferred appeal vide case No.F2/5692/2002 before the first respondent. The said appeal was dismissed as withdrawan. Thereafter, the petitioner filed case No.F2/3373/2004 for restoration of the appeal in case No.F2/5692/2002, which was dismissed by the first respondent vide order dated 12.02.2004, granting liberty to the petitioner to file fresh appeal against the order of the second respondent dated 15.07.2002. Accordingly, the petitioner filed fresh appeal against the order of the second respondent vide Case No.F2/6921/2004, which was dismissed by the first respondent vide order dated 25.02.2006. The said dismissal order is now under challenged in the instant writ petition. This Court while admitting the Writ Petition on 22.04.2009, declined to grant interim suspension of the order under challenge. The learned Counsel appearing for the petitioner submits that the order impugned suffers from principles of natural justice as it was passed without conducting any enquiry and in violation of Sections 19, 40 and 89 of the Act of 1950. He submits that the rights of the protected tenants are heritable under Section 40 of the Act of 1950 and though the subject land is still an agricultural land, the first respondent did not consider the matter in the right perspective. He points out that without conducting any enquiry and giving prior notice, the first respondent unilaterally held that the subject land is converted into plots. Placing reliance on the judgment of this Court in ANREDDI CHANDRA REDDY Vs. MOHD.OSMAN {1980 (1) APLJ 216}, the learned Counsel argues that the possession of the protected tenant continues till the order of delivery is passed. In spite of service of notice, none appeared for the third to sixth respondents. Heard the learned Counsel for the petitioner and the learned Assistant Government Pleader for Respondents 1 and 2. Before the second respondent, the seventh respondent herein contested the application filed by the fourth respondent under Section 40 of the Act of 1950 contending that his father Pegada Agamaiah, S/o Sayanna was the Protected Tenant in respect of the subject land, who died in the year 1975 leaving behind him six sons and the fourth respondent, Pegada Eswharaiah S/o Agaiah had no concern with the tenancy rights of the subject land. The third respondent herein also contested the said application by filing counter contending that one Gunta Balaiah was the Pattedar of the subject land; that the said Gunta Balaiah was in possession and enjoyment of the subject land even prior to 1954 and that he purchased the subject land from him on 18.10.1976 for a sale consideration of Rs.26,000/- , that since then he is in possession and uninterrupted enjoyment of the subject land and the subject land was transferred in his name in case file No.B/3028/89 and inasmuch as subject land comes within the purview of A.P. Urban Area Development Act 1975 and Master Plan 1980, earmarking for residential zone, the Tenancy laws are not applicable for the subject land. As the parties to the said application were not present, the matter underwent as many as forty adjournments. In those circumstances, having vexed with the attitude of the parties to the application, the second respondent issued notices to the adjacent pattadars of the subject land and recorded their statements. During the pendency of the said application, petitions under Section 19(1)(a) of the Act of 1950 were filed by the fourth respondent herein and others stating that they have inherited the tenancy rights from their father/grandfather, but however, they were not cultivating the land since past fifty years as they were engaged in private service and hence, they intend to surrender the tenancy rights of the subject land in favour of D. Ram Reddy, third respondent herein. In spite of service notice of the said application, none were present before the second respondent to defend the same. However, the seventh respondent herein, who was present before the second respondent on 16.06.2002, stated to have supported the said petition under Section 19(1)(a) of the Act of 1950. Even thereafter also, the matter underwent several adjournments and neither the fourth respondent herein nor their advocates present to contest the said application. The second respondent, after perusal of the record, passed the order on 15.7.2002, dismissing the application filed by the fourth respondent herein, observing as under: “Perused the Revenue Records and copies of the documents filed by the parties. As seen from the P.T. Register, the name of one Pegada Agamaiah/Ramaiah is recorded as Protected Tenant over Sy.No. 35 (old) and there is rival claim by petitioners and respondents stating that their father Sri Pegada Agamaiah was P.T. over the land. As seen from the Revenue Records i.e. Pahani for the year 1951-52 and Pahanies from 1954-55, it is evident that both the petitioner and respondent or their ancestors are not in possession of the land in question. The fact was admitted by both the petitioner and respondents in their petitions filed under Section 19(1)(1) and affidavits. As evident from the statement of adjacent pattadar Sri Todusu Mallaiah S/o Rama Swamy, the father of the petitioner has cultivated the land in question before Rajakar movement . In the P.T. Register, the name of the Protected Tenant is recorded as Pegada Agamaiah/Ramaiah and there is no claim by any other person except above two families. As per the documents filed the name of petitioner’s grand father is Sri Ramaiah, whereas the name of grand father of Respondent is Sri Sayanna. In view of the above mentioned facts, it clearly shows that the father of the petitioner i.e. Pegada Agamaiah, S/o Ramaiah is Protected Tenant over the land and not the father of Respondent i.e. Sri Pegada Agamaiah S/o Sri Sayana. The LRs of the P.T. have filed petitions under Section 19(1) of A.P. (Telangana Area) Tenancy & Agricultural Lands Act, 1950 on 20/- Non-Judicial Stamp Papers and also affidavits duly attested by the Notary, wherein they stated that they are surrendering their P.T. rights on their own will and without any pressure coercion or undue influence from any body in general and in particularly from the land lord Sri D.Ram Reddy S/o Yella Reddy. This case is pending since last (4) years and there is no proper representation from the petitioner even though sufficient time was given and notices served. It clearly shows that the petitioner and L.Rs of P.T. have no interest over the case and land as they filed petitions U/S 19(1)(a) and also affidavits duly notarized surrendering the P.T. rights over the land in favour of the present pattadar. Therefore the surrender made by the petitioner and L.Rs of P.T. is hereby accepted and it is ordered to delete the name of Sri Pegada Agamaiah/Ramaiah from the P.T. Register”. Aggrieved thereby, the petitioner herein filed an appeal before the first respondent under Section 90 of the Act of 1950, inter alia, contending that they never filed any petition under Section 19 of the Act of 1950, that third respondent herein filed the said petition as if his father (fourth respondent herein) was intending to surrender the protected tenancy rights over the subject land and that the Mandal Revenue Officer, without conducting any enquiry, without recording any finding as to the genuineness of the said petition and recording their statements, contrary to law, accepted the said petitions. The third respondent herein, contested the said appeal by filing counter, contending that he purchased the land from P.Eswaraiah (fourth respondent) for a sale consideration of Rs.35,000/- on 27.06.1999 and Rs.5000/- on 4.2.2000 with an undertaking not to create any litigation and accordingly they filed petition under Section 19(1)(a) of the Act of 1950 surrendering their rights over the subject land. He further stated that the subject land is under Residential Zone as per the Master Plan of HUDA and as such the Protected Tenancy rights are not applicable to the subject land. It is on record that Pegada Anjaiah, S/o Agamaiah (respondent herein) stated that he surrendered his tenancy rights in favour of Dara Ram Reddy on his own will, that others were absent as such the case was posted to 22-06-2002 and notices were issued. Even after service of notice and giving considerable time, the petitioners or their Advocate was not present. The petitioners and respondents also signed the affidavits on Rs.20/- non-judicial bond papers which are filed in the case wherein they stated that their late father/grant father was tenant and that they have not cultivated the land since last 30 years that they don’t have any interest over the land and that they have given up agricultural profession and taken up private service. The original authority observing so, dismissed the application filed by the petitioner with the observation supra. The first respondent, after perusal of the record, obtained status report of the subject land from the Mandal Revenue Officer, second respondent herein vide No.B/201/2006, dated 2.2.2006, wherein it was stated that the subject land had been converted into plots and the same is being used as non-agricultural land. Based on the same, the first respondent, recording a finding that inasmuch as the land being used as non-agricultural land, having been converted the same into plots being under residential zone as per the Master Plan of HUDA, the Act of 1950 will not be applicable to the subject land, dismissed the appeal. From a perusal of the order of the appellate authority-Joint Collector, I do not see any reason to reach a different conclusion than what was arrived at by the said authority. Inasmuch as the provisions of the Act of 1950 are not applicable to the subject land, the Joint Collector rightly dismissed the appeal. Though the third respondent raised the objection before the original authority- M.R.O. as well as the appellate authority-Joint Collector with regard to non applicability of the provisions of the Act of 1950 having regard to the fact that the subject land being under the residential zone as per the Master Plan of HUDA and the A.P. Urban Development Act 1975, neither the petitioner made any attempt to defend the same nor any material as well was filed, except saying that the first respondent cannot unilaterally held as such. Even otherwise also, I do not see any reason to entertain this Writ Petition bypassing the revisional remedy. The submissions of the learned Counsel for the petitioner merits no consideration. With the above observation, the Writ Petition dismissed. There shall be no order as to costs. ------------------------------------- JUSTICE ASHUTOSH MOHUNTA Dated ----------March, 2011. Msnro