THE HON’BLE SRI JUSTICE V.V.S.RAO WRIT PETITION Nos.5632 and 9433 of 1999 % 29.10.2010 # Smt.Narangi Bai, W/o.Dwaraka Prasad and others ...Petitioners VERSUS $ Yadagiri Bal Raj @ Ausha Balraju and others ...Respondents < GIST: > HEAD NOTE: !Counsel for Petitioner: Sri E.Madan Mohan Rao ^Counsel for Respondents 1 to 4 and 8: Sri N.Vasudeva Reddy Counsel for Respondents 5 to 7: Sri S.Shiv Sagar Government Pleader for Revenue ? Cases referred 1. AIR 1983 SC 643 2. 1997 (1) ALT 627 3. (1989) 3 SCC 424 4. 2010 (1) Decisions Today 302 (SC) 5. (2006) 5 SCC 469 6. (2008) 9 SCC 1 7. (2009) 6 SCC 791 8. AIR 1999 SC 519 9. AIR 1957 SC 314 10. 1970 (1) ALT 242 11. AIR 1955 Andhra 29 12. AIR 1988 AP 77 : 1987(2) ALT 749 (FB) 13. 2000(6) ALT 720 THE HON’BLE SRI JUSTICE V.V.S.RAO WRIT PETITION Nos.5632 and 9433 of 1999 October 29, 2010 Between: Smt.Narangi Bai, And others. …Petitioners and Yadagiri Bal Raj @ Anusha Balraju, And others. …Respondents THE HON’BLE SRI JUSTICE V.V.S.RAO WRIT PETITION Nos.5632 and 9433 of 1999 COMMON ORDER: This order shall dispose of both the writ petitions as they are interrelated, and the petitioners and respondents are the same. The first writ petition is filed assailing the order dated 08.02.1999 passed by respondent No.5, namely, the Joint Collector, Ranga Reddy District (hereafter referred to as, JC) under Section 90 of the Andhra Pradesh (Telangana Area) Tenancy & Agricultural Lands Act, 1950 (hereafter called, Tenancy Act). Second one is filed against the order of the JC, dated 27.03.1999, passed under Section 9 of the Andhra Pradesh Rights in Land and Pattadar Pass Books Act, 1971 (hereafter called, ROR Act). The land in dispute is the same, and the lis is between the tenants and their alienee on one hand and the landlord and the derivative titleholders on the other hand. By the time these matters came to be filed in the Court or in any event they are heard by this Court, the original landlords and original tenants are not in picture. The dispute is between subsequent purchasers. Nevertheless, the issues raised and argued are in relation to the rights of the tenants under the Tenancy Act. The controversy in relation to the ROR Act is, therefore, consequential, which may not and should not detain the Court when once the core issues under the Tenancy Act are decided. The land admeasuring Acs.7.32 guntas in survey No.116/A & B of Kothwalguda Village of Shamshabad Mandal in Ranga Reddy District (hereinafter referred to as, petition schedule land), originally belonged to Mohit Hussain[1]. One Yadagiri Pullaiah was a protected tenant. It appears, landholder sold the land in 1966 to one Gopal Reddy and his family. Under a registered partition deed dated 18.03.1971 between Gopal Reddy and his brother Narayana Reddy the petition schedule land fell to the share of the latter who sold the same to Penta Reddy in 1982. Under five registered sale deeds dated 05.09.1991, 07.09.1991 and 14.10.1991. Penta Reddy sold the land to the four petitioners herein. After the purchase, the petitioners successfully filed an application on 04.01.1992 before the Mandal Revenue Officer for mutation and necessary changes in the ROR record. One year thereafter, respondent Nos.1 to 4 filed an application on 07.03.1993 before the Mandal Revenue Officer (MRO) under Section 32 of the Tenancy Act for restoration of possession. They contended that their grandfather Yadagiri Pullaiah was tenant of Mohit Hussain, that thereafter Ramaiah, father of respondent Nos.1 to 3, applied for ownership certificate under Section 38-E of the Tenancy Act, and that on 15.05.1975 the Mandal Revenue Officer granted certificate under Section 38-E of the Tenancy Act. After conducing enquiry, by proceedings dated 05.01.1994 the Mandal Revenue Officer directed restoration of possession to respondent Nos.1 to 4 herein. They then filed an appeal under Section 5(5) of the ROR Act before the Revenue Divisional Officer (RDO) against the orders of the Mandal Revenue Officer dated 04.01.1992 granting mutation to the petitioners. The petitioners herein filed an appeal under Section 90 of the Tenancy Act before the JC against the proceedings of the Mandal Revenue Officer granting an order for restoration of possession. In the meanwhile, the Revenue Divisional Officer allowed the appeal of respondent Nos.1 to 4 under Section 5(5) of the ROR Act, aggrieved by which, the petitioners filed a revision under Section 9 of the ROR Act before the JC. The appeal under the Tenancy Act and a revision under the ROR Act filed by the petitioners were simultaneously – in all probability – heard by the JC who passed two separate orders. Against the order dated 08.02.1999 passed under Section 90 of the Tenancy Act W.P.No.5632 of 1999 is filed. The revision under Section 9 of ROR Act was dismissed on 27.03.1999 against which W.P.No.9433 of 1999 is filed. One Sri V.Narasimha Reddy filed two separate applications in both the writ petitions and got impleaded as respondent No.8. It is his case that after the orders of the Mandal Revenue Officer under Section 32 of the Tenancy Act, respondent Nos.1 to 4 were restored possession of the land. Respondent No.8 purchased the land under two registered sale deeds, being document Nos.464 of 1998, dated 31.03.1998, and 7438 of 2005, dated 27.06.2005, duly delivering possession. The possession is with respondent No.8 and the writ petitioners are not in possession of the land. It is his further case that after death of the protected tenant Yadagiri Pullaiah, his son-in-law Ramaiah was declared as legal representative, and that ownership certificate under Section 38-E of the Tenancy Act was granted to Ramaiah, who became absolute owner. His name was also recorded in the revenue records. Petitioners herein purchased the land in contravention of the provisions of the Tenancy Act and the sale of the land by the landholder in their favour is illegal and void. Respondent No.1 filed counter affidavit on behalf of respondent Nos.1 to 4 opposing the writ petition. The sum and substance is as follows. The land admeasuring Acs.16.35 guntas in survey No.116 of Kothwalguda was owned by Syed Mohammed Hassan. Yadagiri Pullaiah was protected tenant in respect of the petition schedule land being 40% of the total extent. The remaining 60% of the land admeasuring Acs.9.03 guntas was also in possession of Ramaiah, but ownership remained with the landholder. Yadagiri Pullaiah died even before the issue of the ownership certificate. Respondent No.4 is his only daughter who was married to Ramaiah. She desired to include her husband’s name as protected tenant in the revenue records. Therefore, the Tenancy Tribunal – cum – Revenue Divisional Officer issued ownership certificate to Ramaiah @ Ashu Ramaiah vide proceedings LRW No.143/75, dated 15.05.1975. As directed by the Revenue Divisional Officer vide proceedings No.G/3259/90, Ramaiah paid an amount of Rs.706.80 towards compensation payable to Pattadar for Acs.7.32 guntas by way of a demand draft bearing No.005584, dated 08.06.1991. A final certificate in Form VI under Section 38(6) of the Tenancy Act was also issued in favour of respondent Nos.1 to 4 vide proceedings dated 16.05.1995. The petitioners, therefore, do not have any right nor will have any title to the land as the registered sale deeds in their favour were executed by person, who has no title to the land. It is the further case of respondent Nos.1 to 4 that after death of Ramaiah in 1981 they submitted an application to the Mandal Revenue Officer for entering their names as possessors. The Mandal Revenue Officer called for objections. At that stage, the petitioners filed counter alleging that they are owners of the land admeasuring Acs.16.35 guntas. After hearing both the parties, the Mandal Revenue Officer passed orders under Section 32(1) of the Tenancy Act directing restoration of possession. Other proceedings taken by the petitioners or respondents before various authorities are not disputed. The counsel for petitioners made the following submissions. Ramaiah, predecessor of respondent Nos.1 to 4, was not entitled to claim ownership rights under Section 38-E(1). The said certificate is manipulated and fabricated by respondent Nos.1 to 4. Under Section 40 of the Tenancy Act, it is only the lineal descendants who can inherit the rights of the protected tenant. Ramaiah was son-in-law of Pullaiah, and therefore, he was not entitled to be treated as lineal descendants. Further, the application was filed by contesting respondents for succession under Section 40 of the Tenancy Act and the same could not have been treated by Mandal Revenue Officer as one under Section 32 of the Tenancy Act. The remedy of seeking restoration of possession is provided for the original protected tenant and respondent Nos.1 to 4 being legal heirs cannot maintain such an application and seek restoration of possession. In any event, the impugned order of the Joint Collector is passed without hearing the counsel of petitioners and therefore, the same is unsustainable. Learned counsel relied on Amrit Bhikaji v Kashinath Janardhan[2] and Jupudi Bhushanam v Joint Collector[3]. Counsel for respondent Nos.1 to 4 and the counsel for respondent No.8 submit that petitioners have no locus to question the order of the Mandal Revenue Officer under Section 32 of the Tenancy Act. Ramaiah was son-in-law of protected tenant, who was also cultivating the land after death of Pullaiah, and therefore, he is also entitled to ownership rights. Ramaiah obtained the ownership certificate on 15.05.1975 and therefore, the sale by landholder to Gopal Reddy and all subsequent sales including one in favour of Penta Reddy as well as petitioners are void. By the time the landholder sold the land to Gopal Reddy, Pullaiah was protected tenant of the entire extent of land in whose favour ownership certificate was granted in respect of Acs.7.32 guntas in 1975. Therefore, there could not have been any sale without notice to petitioners who have the protection under the statute. When a certificate under Section 38- E(1) is granted, it is conclusive evidence of the protected tenant having become owner and the same cannot be agitated collaterally in the proceedings under Section 32 of the Tenancy Act. According to the counsel, son-in-law is also a lineal descendant and there is no infirmity in granting ownership certificate. Counsel also submits that when there is remedy of revision under Section 91, the writ petition would not lie. Reliance is placed by learned counsel on Kotaiah v Property Association of the Baptist Churches (Pvt) Limited[4]. The points that arise for consideration in the background of facts and rival submissions are considered infra one after the other. Maintainability of writ petition In Om Prakash Saini v DCM Limited[5] and A.P.Foods v S.Samuel[6], on which reliance is placed by respondents, the well settled proposition that the availability of effective statutory remedy ordinarily bars the writ petition is reiterated. In Shamshad Ahmad v Tilak Raj Bajaj[7], while emphasising that the jurisdiction that inhers in the High Court under Article 226 of Constitution of India is supervisory in nature and that the High Court cannot act as a court of appeal or court of error, the Supreme Court held that, “the court can neither review nor re-appreciate, nor reweigh the evidence upon which determination of a subordinate court or inferior tribunal purports to be based or to correct errors of fact or even of law and to substitute its own decision for that of the inferior court or tribunal. The powers are required to be exercised most sparingly and only in appropriate cases in order to keep the subordinate courts and inferior tribunals within the limits of law” (see para 38 of SCC). None of these judgments support the respondents’ plea on the maintainability of the writ petition. It is no doubt true that when an effective remedy of appeal or revision is available, ordinarily, the Court does not entertain a writ petition. Section 91 no doubt provides for a revision to the High Court from any order passed on appeal by Joint Collector or the Commissioner. In the absence of any specific indication therein, it cannot be said that the jurisdiction of this Court under Article 226 is barred. There is yet another strong reason to reject the respondents’ contentions. The writ petition has been pending in this Court for the last eleven years. At this point of time, if the writ petition is rejected on that ground, it would certainly protract the litigation besides causing prejudice to the petitioners. In a recent judgment, Supreme Court held that if the writ petition is pending for a considerable length of time in the High Court, it would not be proper to decline the exercise of jurisdiction on the ground of availability of alternative remedy (see Basanti Prasad v Bihar School Examination Board[8]). The submission of the respondent is therefore, rejected. The Baby v Travancore Devaswom Board[9] is a case which arose under Kerala Land Reforms Act. Section 103 of the said Act conferred revisional powers on the High Court. It was held therein that the power of the High Court under the constitution is always in addition to the power of revision conferred by a statute and therefore, the High Court can always interfere with the orders of the Tribunals. Whether the son-in-law is lineal descendant The counsel for contesting respondents submit that respondent No.4 was the only daughter of Yadagiri Pullaiah, that her husband Ramaiah was all along staying with father-in-law Yadagiri Pullaiah and that after the death of her father, respondent No.4 herself made a request to incorporate the name of Ramaiah in the revenue records as protected tenant. It is also their case that after the death of his father- in-law, Ramaiah alone was cultivating the land as protected tenant and that he was recognised as such by the landholder. They therefore contend that as illatom son-in-law, he is deemed to be adopted into the family of Yadagiri Pullaiah and, therefore, he is lineal descendant as per the Explanation (a) to Section 40(3) of the Tenancy Act. Alternatively they submit that as Ramaiah alone was cultivating the entire extent of Ac.16.35 guntas in survey No.116, after the death of Yadagiri Pullaiah, he is alone entitled to ownership rights. The legal position and the facts, which are not seriously disputed, support the respondents and this Court is inclined to countenance the submissions. In P.Lakshmi Reddy v L.Lakshmi Reddy[10], the Supreme Court recognised the status of illatom son-in-law as that of an adopted son entitled to a share in the property of father-in-law. It was held that, “an illatom son-in-law is a boy incorporated into the family with a view to give a daughter in marriage and is customarily recognised as an heir in the absence of a natural born son.” I n Ravinder Reddy v Ayyappa[11], a Division Bench of this Court while considering the meaning of “lineal descendant” in Section 40(3) of the Tenancy Act, referred to the decision of apex Court in Laxmi Reddy and the decision of this Court in Narasayya v Ramachandrayya[12], and held that, “an illatom son-in-law according to the custom prevailing in the Andhra Pradesh would be lineal descendant by adoption.” It was further observed thus. It must in this connection be noted that the phrase “lineal descendants” is capable of both a narrow as well as wider meaning. The narrow meaning according to Ramanatha Aiyar’s Law Lexicon of ‘Lineal descendants’ means “direct descendants but not brothers and sisters, a term which is said to be synonymous with issue” and in the wider context the term ‘lineal descendants’ includes all descendants and is not restricted to male descendants. That is the view taken by the Privy Council in Bhimnaiah v Tara Dai, AIR 1929 PC 162. The above decisions if read in the light of the wider connotation given by the Privy Council to the term “lineal descendants”, it would leave none in doubt that the phrase “Lineal descendants” by adoption would include according to the custom prevailing in this State “illatom son-in-law”. In view of the binding precedents the argument that a son-in-law of protected tenant is not a lineal descendant within the meaning of Explanation (a) to Section 40(1) of the Tenancy Act, is to be rejected. The certificate of ownership under Section 38-E of the Tenancy Act issued by the Additional Revenue Divisional Officer (Land Reforms)- cum-Tenancy Tribunal would show that Ramaiah himself was protected tenant and, therefore, ownership certificate is given to him. After the death of Ramaiah, the Revenue Divisional Officer, Chevella, issued certificate under Section 38(6) of the Tenancy Act showing that Ramaiah was required to deposit an amount of Rs.706.80 ps. under Section 38(5) of the Tenancy Act and after his death, respondent Nos.1 to 4 herein shall be deemed to be the purchasers of the land under Section 38(6) of the Tenancy Act. In the certificate issued under Section 38-E of the Tenancy Act to Ramaiah as well as in the certificate issued to respondent Nos.1 to 4 under Section 38(6) of the Tenancy Act, the area is shown as Acs.7.32 guntas in survey No.116 of Kothwalguda Village. These proceedings at this point of time cannot be disputed nor challenged in any collateral proceedings by the subsequent purchasers from the landholders. This view is supported by the decision of Full Bench in Sada v Tahsildar, Utnoor[13] to which a reference is made while considering the next point. Maintainability of writ petition The Counsel for the petitioners contends that respondent Nos.1 to 4 did not make any application under Section 32 of the Tenancy Act. After the death of their predecessor, Ramaiah, they applied for grant of succession under Section 40 of Tenancy Act. He would therefore urge that in the absence of proper application containing all details, the MRO could not have exercised the power under Section 32 of Tenancy Act for restoration of possession in their favour. This contention is refuted on the strength of Sada. Sections 32, 36, 38-E(2) and 98 are the quartet provisions, which provide remedy of seeking restoration of possession when a protected tenant is entitled to possession or any other person in unauthorised occupation or in wrongful possession of any land. 32. Procedure of taking possession :- (1) A tenant or an agricultural labourer or artisan entitled to possession of any land or dwelling house under any of the provisions of this Act may apply to the Tahsildar in writing in the prescribed form for such possession. (2) No landholder shall obtain possession of any land or dwelling houe held by a tenant except under an order of the Tahsildar, for which he shall apply in the prescribed form. (3) On receipt of an application under sub-section (1) or sub- section (2) the Tahsildar shall, after holding an enquiry pass such order thereon as he deems fit. (4) Any person taking possession of any land or dwelling house otherwise than in accordance with the provisions of sub-section (1) or sub-section (2), as the case may be, shall, without prejudice to his liability to the penalty provided in Section 96, be liable to forfeiture of the crops, if any, grown on the land to the payment of such costs as may be awarded by the Tahsildar or by the Collector on appeal from the Tahsildar. In P.Nagabhushanam v R.D.O.[14], this Court considered quartet provisions in the following manner. Section 32 of the Act enables a tenant 'entitled to possession under any provisions of the Act' to apply to the Tahsildar for taking possession of the land. sub-section (3) of Section 32 provides that the Tahsildar after holding enquiry may pass an order for taking possession by the tenant. It is well to remember that a tenant or a person deemed to be tenant as per Section 5 of the Act shall be deemed to be a protected tenant if he holds the land as a tenant continuously for a period of not less than six years from 1342-F or for a period of not less than six years immediately preceding 1-1-1948 or for a period of not less than six years from 1366-F. If after coming into force of the Act, a tenant who shall be deemed to be protected tenant under Section 34 of the Act has lost the possession, as a tenant, such person is entitled to seek and take back possession under Chapter III which deal with tenancy. Indeed, Chapter IV also contains a provision (Section 36) enabling a protected tenant to recover possession of the land, but that is subject to the protected tenant exercising option within six months from the date of commencement of the Act. Therefore, a protected tenant who is not in possession may seek and take back possession under Section 36 of the Act. That is not the case before us. The only provision enabling a tenant who is by law a protected tenant declared to be owner to take possession, is Section 32 of the Act. … … Section 32 of the Act starts with a heading "Procedure for taking possession" and provides that a tenant can apply to the Tahsildar for taking back possession. Section 98 of the Act is included in the chapter containing miscellaneous provisions whereas Chapter II deals with genera! provisions and Chapter III deals with special provision concerning protected tenants. … … Though there appears to be overlapping of the various provisions, a careful scrutiny leads only to one conclusion that whether a person is tenant or a protected tenant he can get back possession only under the provisions of Section 32 or Section 36 of the Act. As already noticed, if a protected tenant is entitled under any provisions of the Act including Section 38-E (2) or Section 36, the procedure to be adopted by the Tahsildar is only as adumbrated under Section 32 of the Act. (emphasis supplied) Sections 36, 38-E(2) and/or 98 of Tenancy Act do not indicate any procedure to be followed. Insofar as Section 32 of the Tenancy Act is concerned, it provides that a tenant who is entitled to possession of any land or dwelling house may apply to the Tahsildar for possession. What is the form to be applied in and how application has to be entertained. In exercise of their powers under Section 97 read with Sections 32, 94 and 98 of the Tenancy Act, the Government made “the Transfer of Possession and Eviction Rules, 1957” (Transfer Rules). Rule 3 is relevant and reads as under. 3. (1) The Collector, Deputy Collector or the Tahsildar, as the case may be, shall on his own motion or on receipt of an application made by a person for being put in possession of land, issue a notice to the person whose occupation of the lands is alleged or considered to be unauthorised or wrongful, to show cause within two weeks from the date of service of the notice as to why he should not be evicted from such land and the applicant or any other person be put in possession thereof. (2) The Collector, Deputy Collector or the Tahsildar, shall also issue a notice to the applicant or any other person to adduce within two weeks, evidence, if any, in support of his claim for possession of the land. (3) After expiry of the period of notice under sub-rules (1) and (2), the Collector, Deputy Collector or the Tahsildar shall, after hearing such objections and representations as are made before him, determine. (i) whether or not the occupation is unauthorised or wrongful, and (ii) whether the claim for being put in possession by the applicant or any other person is valid and shall pass an order accordingly. (4) In case the present occupation is held to be unauthorised or wrongful the order shall specify the time within which the unauthorised wrongful occupant shall vacate the land and handover possession to the person in whose favour an order has been passed. Every such order to vacate shall be complied with within the time specified therein. Rule 3 of Transfer Rules does not contemplate