THE HON’BLE SRI JUSTICE V.V.S. RAO WRIT PETITION No.8028 of 2010 Dated:12.04.2010 Between: N.Pattibhirami Reddy. … Petitioner AND The Revenue Divisional Officer, Land Reforms, Adoni, And another. … Respondents THE HON’BLE SRI JUSTICE V.V.S. RAO WRIT PETITION No.8028 of 2010 ORDER: The petitioner’s mother (as alleged) late Patil Devikyamma had filed a declaration dated 10.04.1975, being C.C.No.1859/ALR/75, before the Land Reforms Tribunal (LRT) – cum – Revenue Divisional Officer, first respondent herein; under the Andhra Pradesh Land Reforms (Ceiling on Agricultural Holdings) Act, 1973 (the Act). She was declared to be surplus agricultural landholder to an extent of 1.1685 standard holdings. She was directed to surrender the said land to the Government. After her death, the petitioner succeeded to the property. He filed an application for recognition as adopted son, which was rejected on 25.10.1984. Be that as it is, it appears, first respondent issued notice dated 25.11.2008 requiring the petitioner to furnish the details of land to be surrendered. The petitioner allegedly furnished the details. It appears on 06.07.2009 first respondent issued another notice stating that the surrender statement is not filed and he suo motu selected the lands in certain survey numbers. The petitioner then submitted representation to accept other lands admeasuring Acs.32.12 cents. Thereafter, he filed the instant writ petition seeking a writ of mandamus declaring the action of the first respondent in suo motu selecting the lands for surrender as illegal and arbitrary. Counsel for the petitioner submits that first respondent in law is required to issue notice before passing orders for surrender of lands and in the absence of such notice the action is not sustainable. The Writ Petition is premature. If any order is passed by first respondent and if the petitioner is the legal heir of the declarant, he can certainly file an appeal before the Land Reforms Appellate Tribunal (LRAT) – cum – Additional District Judge under Section 20 of the Act and thereafter a revision to the High Court. Without availing the remedy, the present writ petition is filed. Counsel for the petitioner, however, submits that as the impugned action in suo motu selecting the lands for surrender is taken without notice the availability of appeal under the Act is not a bar for filing the Writ Petition. The submission cannot be accepted for the brief reasons in the ensuing paragraph. The procedure for surrendering the holding of a person in excess of the ceiling area is adumbrated under Section 10 of the Act. Sub- section (5) of Section 10 of the Act, which starts with a non-obstante clause, gives absolute power to the Tribunal to refuse or to accept the surrender of any land. The Tribunal may refuse any land surrendered if there is a dispute as to the title, if there is encumbrance on the land, or if the land is in possession of any person or if the land is becoming inaccessible by reason of its severance is from the remaining part of the holding. The circumstances under which the Tribunal may refuse to accept the surrender mentioned in sub-section (5)(a)(ii) of Section 5 of the Act are only illustrative and they do not in any way take away the absolute power of the Tribunal to refuse the surrender of any holding in excess of the ceiling area. The non-obstante clause makes this very clear. In view of this, it is not possible to accept that a pre-decisional notice should be read into the statutory provisions and compel the primary Tribunal to issue a notice before refusing surrender. That would amount to harming the very spirit of sub-section (5) of Section 10 of the Act (See Jana Nagamallayya v State of Andhra Pradesh[1]). The view of the Division Bench of this Court in K.S.Vijaya Gopala Raju v The Authorised Officer (LR), Visakhapatnam[2] also supports the above view. The Division Bench while interpreting the word ‘encumbrance’ used in sub-section (5) of Section 10 of the Act observed as under. Under Section 10(5) it is not obligatory on the part of the Tribunals to accept every land that is surrendered, even though it is computed to his holding and it is open to them to refuse to accept the land in the possession of third parties, though it can be computed in this holding under the other provisions of the Land Ceiling Act. The word “encumbrance” used in Section 10(5) takes in a lease or tenancy. When the land vests in the Government and purpose of the Act is to distribute for house-sites and other purposes, that purpose gets frustrated if any other further steps are needed for evicting the occupants. It is precisely for this reason, the authorities are vested with the discretion to accept or reject. Therefore, while accepting the surrender of lands declared as surplus or rejecting the surrender statement, the Lands Reforms Tribunal (Revenue Divisional Officer) is not required to give any notice. The absence of notice does not vitiate the proceedings. However, there may be other grounds for the declarants, which can be urged before the appellate authority. In view of the above, the Writ Petition is misconceived and is accordingly dismissed giving liberty to the petitioner, if so advised, and if he is accepted as legal heir of the original declarant, to prefer an appeal against the order of the first respondent under Section 10(5) of the Act. _______________ (V.V.S.RAO,J) 12.04.2010 vs [1] 2001 (1) ALT 340 [2] 1988 (1) ALT 49 (NRC) (DB)