THE HONOURABLE SRI JUSTICE A.GOPAL REDDY C.R.P.No.1841 of 2009 & CRP (Sr) No. 11193 of 2008 Date of Order: 22-10-2009 C.T. in C.R.P:.No.1841 of 2009 Between: 1. Devu Veerabhadra Rao (declarant died per L.Rs.) and another ..Petitioners and 1.State of A.P. rep. By the Authorised Officer, LandReforms Tribunal,East Godavari, Collectorate compound, Kakinada-4. and another ..Respondents The Court made the following Order: THE HONOURABLE SRI JUSTICE A.GOPAL REDDY C.R.P.No.1841 of 2009 & CRP (Sr) No. 11193 of 2008 Common order: These two revisions under Section 21 of A.P. Land Reforms (Ceiling on Agricultural Holdings) Act, 1973 (hereinafter referred to as “Ceiling Act”) by the declarant and State preferred against the very same order dated 27-11-2007 made in L.R.A.No.4 of 2000 by the Land Reforms Appellate Tribunal-cum-IV Additional District Judge, East Godavari, Kakinada were heard and disposed of together by this common order. The father of the petitioner in C.R.P.No.1841 of 2001 (hereinafter called ‘declarant’) filed a declaration in L.C.C.No.1023/KDA/75 under Section 8 of the Ceiling Act declaring various extents of lands held by Devu Veerabhadra Rao. The Land Reforms Tribunal, Kakinada by order dated 02-06-1976 determined the holding of the declarant as 1.5537 standard holding in excess of ceiling limit and called upon the declarant to surrender the land equivalent thereto. Since the declarant failed to surrender the excess land in spite of notice issued to him, the Tribunal suo motu selected the lands for surrender including the lands in Sy.No.223/1 admeasuring Ac.5.51 cts. of dry land of Karapa village and published a notice in Form No.VIII on 19-12-1992 inviting objections. Sri Tetali Satyanarayana Reddy (hereinafter called ‘third party’) filed objections apart from the declarant. The said objections were rejected, since some of the purchases by the objectors are subsequent to 01-01-1975. On rejection of the same L.R.A.No.6 of 1993 was filed which was dismissed on 22-06-1994 and the same was also confirmed in C.R.P.No.3220 of 1994 filed against issuance of Form No.VIII notice. On dismissal of C.R.P. orders under Section 10(4) of the Act were passed on 17-09-1997 for taking possession of the lands selected by the Tribunal including the land of Ac.5.51 cts., which is the subject matter of dispute in the present revisions. The R.D.O. issued Form No.IX notice to the declarant to deliver possession of the lands to the M.R.I. Karapa and accordingly the M.R.I. taken possession o the lands of the declarant and others on 18-09- 1997. Aggrieved by the said order the third party preferred an appeal before the Land Reforms Appellate Tribunal, Kakinada in L.R.A.No.5 of 1997. The Appellate Tribunal by order dated 27-11-1997 allowed the appeal remitting the matter to the lower Tribunal to hear the objections filed by the third party and consider his objections on the documents which were filed before the LRAT along with appeal. Thereafter, the third party filed all the documents before the lower Tribunal to reconsider the issue and to exclude the land to the extent of Ac.5.51 cts. which was purchased by them in a registered sale deed dated 01-04-1987. The lower Tribunal rejected the representation by order dated 03-04-2000 upholding the earlier order. Questioning the correctness of the same the third party filed L.R.A.No.4 of 2000. The Appellate Tribunal initially taken up for hearing on 07-06-2007 and after hearing the arguments of Assistant Government Pleader the matter was posted to 17-07-2007 for orders and on the said date the appeal was dismissed without hearing the counsel for the third parties. On coming to know of dismissal of appeal the third party filed I.A.No.37 of 2007 for setting aside the order dated 17-07- 2007 made in L.R.A.No.4 of 2000 and I.A.No.38 of 2007 for exempting the petitioner from the necessity of substituting the legal representatives of the 2nd respondent/declarant, which were allowed on 10-09-20007 and restored the appeal to its file for rehearing. After rehearing the matter the Appellate Tribunal allowed the appeal by the impugned order dated 27-11-2007. Questioning the correctness of the same, the legal representatives of the declarant filed C.R.P.No.1841 of 2009 and Authorized Officer filed C.R.P.(Sr) No.11193 of 2008. Sri Challa Dhanamjaya, learned counsel for the petitioner/declarant strenuously contended that once the appeal is dismissed it becomes functus officio and again passing the order on 27-11-2007 is contrary to the earlier order. If at all the third party is aggrieved by the dismissal of the appeal, the remedy, if any, is to file a revision. Further, in the earlier round of litigation the objections filed by the third party were rejected and it has become final. Therefore, the Appellate Tribunal committed an illegality in allowing the appeal. The learned Government Pleader for Arbitration contended that the order passed by the Appellate Tribunal on 27-11-2007 is illegal and against its own order dated 17-07-2007. The Appellate Tribunal will not have jurisdiction to review its earlier order. Further, no reasons were assigned for revising its earlier order. The Appellate Tribunal will become functus officio on dismissal of the appeal. Therefore, the impugned order passed by it is without jurisdiction. This Court by an order dated 19-04-2008 called for a report from the I Additional District Judge, Kadapa, who previously worked as Land Reforms Appellate Tribunal-cum-IV Additional District & Sessions Judge, Kakinada. The report dated 13-05-2009 submitted by him reveals that earlier order dated 17-07-2007 dismissing the appeal was an ex-parte order after hearing the arguments of G.P. only, but the counsel for the appellant/third party was not heard. So the said order was recalled in I.A.No.37 of 2008 and appeal was reheard. In view of the same, the contention advanced by both the counsel that tribunal reviewed its earlier order is devoid of any merit. In view of the above submissions, the only point that emerges for consideration is: “Whether the lower Appellate Tribunal is justified in allowing the appeal” The Appellate Tribunal after verifying the records noticed that the Primary Tribunal excluded the land to an extent of Ac.5.51 cts. in Sy.No.223/1 and an extent of Ac.2.96 cts. in Sy.No.224/1 of Karapa village in its order dated 18-01-1993 from surrender proceedings. The Appellate Tribunal also noticed that the Primary Tribunal called for a suitability report from the M.R.O., Karapa in respect of Sy.Nos.198, 147/1, 123/1, 224/1, 223/1, 223/4, 223/3 and 223/5 of Karapa village The third party filed a petition on 06-01-1993 after following the prescribed procedure in obtaining permission from the competent authority to purchase the said property and the third party constructed Vijaya Poultry Complex, Poultry Sheds, Feed mixing Plant and building for Mahalakshmi Packing Products etc. after obtaining licenses from the concerned authority and obtained small scale industries provisional registration on 27-12-1990. The record also reveals that report of the then M.R.O. was called for and he submitted his report stating the presence of houses, poultry farm sheds etc. in an extent of Ac.5.51 cts. in Sy.No.223/1 and Ac.2.96 cts. in Sy.No.224/1 of Karapa village. The Additional Revenue Divisional Officer, Kakinada while excluding the above extents of land did a judicial exercise of powers as per clause (5) of Section 10 of the Ceiling Act by the which the Primary Tribunal has power to revise or to accept the surrender of any land which has been converted into non- agricultural land and has been rendered incapable of being used for the purpose of agriculture. Therefore, the M.R.O. was directed to send revised sub-division records for Ac.22.62 cts., which does not included the lands purchased by the third party. Therefore, it is not open for the Primary Tribunal again to include the said lands in surrender proceedings and accordingly allowed the appeal setting aside the order of the primary Tribunal with a direction to submit a list of lands for surrender for the balance of excess holding which are free from encumbrances from the lands other than Sy.Nos.223/1 and 224/1 of Karapa village. This Court in K.S.VIJAYA GOPAL RAJU v. AUTHORISED OFFICER (LR) VISAKHAPATNAM[1] categorically held at the time of surrender the third party who is in possession of the property can always object for such surrender and it is always open for the Primary Tribunal to reject the lands which are in possession of the third party, which were earlier surrender and can insist for surrender of the lands which are not encumbered, so that there cannot be any hindrance in distribution of surplus land to the landless poor persons. Except urging that the Tribunal cannot review its own order no other point was urged. Having regard to the facts and circumstances explained above, the Tribunal has not reviewed its earlier order; since it is an ex-parte order it recalled the earlier order. No infirmity is discernable in the order passed by the tribunal. Both the revisions are accordingly dismissed. No costs. _________________ A.GOPAL REDDY, J. -10-2009 Murthy [1] 1988 (1) ALT 49 (NRC)