IN THE HIGH COURT OF JUDICATURE, ANDHRA PRADESH AT HYDERABAD TUESDAY, THE THIRD DAY OF AUGUST TWO THOUSAND AND TEN PRESENT THE HON'BLE SRI JUSTICE VILAS V. AFZULPURKAR CIVIL REVISION PETITION No.3749 of 2005 BETWEEN: Gummadi Mohan Rao. ... PETITIONER AND State of A.P., rep. by Authorized Officer, Land Reforms Tribunal and four others. ...RESPONDENTS Counsel for the Petitioner : MR. G. KRISHNA MURTHY Counsel for the Respondents: GP FOR ARBITRATION The Court made the following: ORDER: This revision is directed against the order of the Land Reforms Tribunal (II Additional District Judge, West Godavari at Eluru) dismissing L.R.A.No.2 of 2002 by order dated 07.05.2005. 2. The petitioner herein claims that his father was a lessee of the declarant prior to 1990 and since 1992 he is the lessee of the son of the declarant. The said son of the declarant became the owner of the property by virtue of two registered Gift deeds executed in his favour by the declarant dated 09.08.1990 and 02.03.2001. The petitioner claims that he has executed a lease deed dated 26.05.1992 in favour of fifth respondent and has been in enjoyment and possession of Ac.1.12 cents of land in question in D.No.26/1 in Abbanegudavalli village. The petitioner is aggrieved by the proceedings of the land reforms tribunal in C.C.No.731/TEL/75 dated 29.01.2002 whereunder the land reforms tribunal accepted the proposal of Mandal Revenue Officer, Vemuru for taking surrender of the aforesaid land of Ac.1.12 cents towards excess as determined against the fourth respondent/declarant. According to the petitioner, the said order was passed without giving notice to him and without considering his claim as a tenant in possession of the aforesaid land. Aggrieved by the said order, therefore, he filed an appeal before the appellate tribunal and had claimed at length that without notice and opportunity to him the aforesaid land cannot be taken towards surrender. The said appeal has been dismissed under the impugned order, against which the present revision is preferred by the petitioner. 3. Heard Mr. G. Krishna Murthy, learned counsel for the petitioner and learned Government Pleader for Arbitration appearing for the respondents. 4. Mr. Krishna Murthy, as per his usual vehemence and persuasion submits that the impugned orders have been passed in violation of Rule 16 (7) as well as Rule 8 of the Rules framed under the Andhra Pradesh Land Reforms (Ceiling on Agricultural Holdings) Act, 1973 (for short ‘the Act’). He submits that the fourth respondent’s/declarant’s declaration was earlier finalized as non-surplus. Thereafter, the declarant executed two separate gift deeds in favour of his son – fifth respondent herein and from the fifth respondent, the petitioner has obtained the aforesaid land as a lessee under a lease deed dated 26.05.1992. He also submits that even prior thereto the father of the petitioner was a tenant under the declarant himself and without any notice being given to the petitioner as required under Rule 4 of the Rules the surrender of the aforesaid land cannot be enforced. 5. Learned Government Pleader, on the contrary, submits that the lessor of the petitioner cannot claim any title to the property, as the same is void under Section 17(1) of the Act inasmuch as both the gift deeds are in the teeth of the pendency of the finalization of the declaration filed by the fourth respondent. He submits that as per the final orders of the Honourable Supreme Court the excess land has been determined and the declarant was given an option to surrender to satisfy the said excess land. The land proposed to be surrendered by the declarant, however, was found to have encumbrance inasmuch it was covered under an agreement of sale with third party, the Government did not choose to accept the said land and thereafter, as per the MRO’s report, the present land in question admeasuring Ac.1.12 cents was selected. A notice, thereafter, was given to the declarant, who replied to the notice stating that he has no right over the aforesaid land. Thereafter, the tribunal has accepted the surrender. Learned Government Pleader, therefore, submits that there is no infirmity whatsoever in the impugned order. 6. I have considered the aforesaid submissions. It is necessary to notice Section 17(1) of the Act, Rule 8 as well as Rule 16(7) of the Rules for the purpose of appreciating the contentions of the learned counsel for the petitioner. For the sake of convenience, the said provisions are extracted hereunder: “17. Prohibition of alienation of holding: - (1) No person whose holding, and no member of family unit, the holding of all the members of which in the aggregate, is in excess of the ceiling area as on the 24th January, 1971 or at any time thereafter, shall on or after the notified date, alienate his holding or any part thereof by way of sale, lease, gift, exchange, settlement, surrender, unsufructuary mortgage or otherwise, or effect a partition thereof, or create a trust or convert on agricultural land into non-agricultural land, until he or the family unit, as the case may be, has furnished a declaration under Section 8, and the extent of land, if any, to be surrendered in respect of his holding or that of his family unit has been determined by the Tribunal and an order has been passed by the Revenue Divisional Officer under this Act taking possession of the land in excess of the ceiling area and a notification is published under Section 16; and any alienation made or partition effected or trust created in contravention of his section shall be null and void and any conversion so made shall be disregarded. (2)… (3)… “8. Procedure for taking possession of the land surrendered:- (1) The Revenue Divisional Officer may on receipt of a copy of the order passed by the Tribunal under sub-rule (6) of Rule 7 in respect of any land surrendered or deemed to have been surrendered by an owner, issued an order in Form IX authorizing any officer not lower in rank than a Revenue Inspector to take possession of such land. (2) A copy of the order shall be served on the person who has surrendered or is deemed to have surrendered the land and on any other person in possession or occupation of such land. (3) Where the person concerned voluntarily delivers possession of the land, the officer authorized to take possession of the land shall record a statement of the person to that effect and also record a certificate in Form X and send the same to the Revenue Divisional Officer under intimation to the Tahsildar and Tribunal concerned. (4) Where the person concerned fails to voluntarily deliver possession of the land, the officer authorized to take possession of the land may enter on the land and take possession thereof after removing any obstruction or any unauthorized occupant, if any, on such land if necessary by using such force as he thinks fit and record a certificate in Form X duly attested by two witnesses: [Provided that where there is a seasonal crop on the ground as on the date of taking possession or it shall be allowed to be harvested by the person in actual possession or occupation of the land on that date, as his own risk and no compensation from the Government for any loss or damage to the crop shall be allowed under any circumstances.] (5) The certificate in Form X shall be prepared in triplicate and a copy in each shall be sent to the Tribunal, the Revenue Divisional Officer and to the Tansildar concerned. (6) The particulars of all lands so surrendered or deemed to have been surrendered and taken possession of land vesting in the Government free from all encumbrances, shall be entered in a register by the Tahsildr concerned setting apart separate pages for each revenue village. (7) All lands vesting in the Government shall be registered in the Revenue accounts of the village as assessed waste Government lands until their allotment or transfer, as the case may be, in accordance with the provisions of the Act, or until their registry is duly altered in accordance with the rules in force relating to Government lands.” “16. Nature of proceedings before the Tribunal: - (1)… (2)… (3)… (4)… (5)… (6)… (7) Any person, other than a party who satisfies the Revenue Divisional Officer, the District Collector, Tribunal or the Appellate Tribunal that he has substantial interest in the matter, may at any time during the pendency of the proceedings, be permitted to appear and be heard and to adduce evidence and cross-examine witnesses. (8)… (9)… (10)…” 7. It has already been found by the lower appellate tribunal and rightly so, that the gift deeds executed by the declarant (R4) in favour of his son (R5) is clearly void under Section 17(1) of the Act. The petitioner claims to be a lessee under the fifth respondent. Now irrespective of the genuineness or otherwise of the said claim, the petitioner’s alleged right is under the fifth respondent, who himself cannot have a legal right in view of his gift deed being void in law. I am, therefore, unable to appreciate as to what legal right the petitioner can claim when his lessor himself has no right. Secondly, Rule 16(7) requires a notice to be given by the Revenue Divisional Officer to such person, who satisfies that he has substantial interest in the matter. The present case shows there is not even, prima facie, interest in favour of the petitioner as his lessor himself had claimed the aforesaid land under a void document. Thirdly, Rule 8 also would not assist the learned counsel for the petitioner inasmuch as his alleged possession is not accepted by the State nor there is any clinching evidence in support thereof. Even according to the petitioner also the pattadar passbooks were issued in favour of the fifth respondent – his lessor. Furthermore, Rule 8(4) of the Rules permits the authorized officers to take possession of the land by removing any obstruction or any unauthorized occupant as well. I am, therefore, unable to see any ground in support of the petitioner’s case. 8. Learned counsel for the petitioner has cited a decision of the Supreme Court in G. BRAHMAYYA v. ALA VENKATERAO [1] and places reliance upon para 8. The said decision on facts is clearly distinguishable, as in the said case the claim of the tenant was, on facts, sustainable to establish that he was a tenant in possession of the said property. The very claim of the petitioner as a tenant in possession being in serious doubt and disputed, the said decision would not assist the case of the petitioner. The order impugned of the lower appellate Court has considered the documents produced by the petitioner in para 13. 9. Even assuming that the petitioner is entitled to a notice, the lower appellate Court has duly considered the petitioner’s documents and his contentions and even on merits has come to the conclusion that petitioner is not entitled to any relief. The requirement of notice and opportunity of hearing was, therefore, having availed by the petitioner, though at the appellate stage no useful purpose would be served by once again directing the primary authority to issue notice to petitioner. I am, therefore, not inclined to accept the said contention of the learned counsel for the petitioner. 10. Learned Government Pleader also pointed out that after the impugned order dated 07.05.2005, the respondents have taken possession of the land in question by issuing Form-X panchanama dated 15.07.2005 and subsequently, the assignment of said land to various beneficiaries – 3 SCs and 2 STs - have also been completed as on 23.08.2005. The present revision petition was moved and interim stay was obtained by the petitioner only on 02.09.2005. The said aspect has not been contraverted though the aforesaid averments were made as early as on 07.03.2008 in respondents counter affidavit. Viewed at in any manner, I am not able to find any ground to interfere with the impugned order. The civil revision petition is accordingly dismissed. There shall be no order as to costs. _____________________ VILAS V. AFZULPURKAR, J August 3, 2010 DSK [1] (1990) 2 SCC 283