THE HON’BLE SRI JUSTICE GODA RAGHURAM AND THE HON’BLE SRI JUSTICE M.S. RAMACHANDRA RAO C.R.P.Nos.6708 of 2003, 1200 of 2003, C.R.P.S.R.Nos.24532 & 24636 of 2012 %25.02.2013 C.R.P.Nos.6708 of 2003 #Gadda Balaiah and others. ... PETITIONERS VERSUS $ The Joint Collector, Ranga Reddy District and others ...RESPONDENTS < GIST: > HEAD NOTE: !Counsel for the Revision Petitioners: Sri Vedula Venkata Ramana for Sri A. Narasimha Rao ^ Counsel for Respondents 1 to 7: Sri K.G. Krishna Murthy, Addl. Advocate General ^ Counsel for Respondent No.7: Sri M.V.Durga Prasad ^ Counsel for Respondent No.9: Sri V.L.N.G.K. Murthy for Sri S. Malleswar Rao ^ Counsel for Respondent No.10 : None appeared ^ Counsel for Respondents 11 to 13 & 18: Sri Ch.Durga Prasad ^ Counsel for Respondent No.17: Sri V.L.N.G.K. Murthy ^ Counsel for Respondent No.19: Sri E. Ajay Reddy ^ Counsel for Respondent Nos.20 and 21: Sri Subba Reddy ^ Counsel for Respondent Nos.22 to 25: Sri P. Anil Kumar ^ Counsel for Respondent Nos.26 to 72: Sri B. Subbaiah for C. Hanumantha Rao ^ Counsel for Respondent No.73 to 183: Sri K. Jawahar C.R.P.Nos.1200 of 2003, # S.A.P., ITS AUTHORIZED OFFICER,R.R.DIST ... PETITIONER VERSUS $ KASTOPA CORP HYDERABAD ...RESPONDENTS !Counsel for the Revision Petitioners: The Addl. Advocate General !Counsel for the respondents: Sri E. Ajay Reddy ? Cases referred [1] AIR 1988 A.P.77 (F.B) 2 AIR 1994 A.P.57 3 (2008) 16 SCC 299 4 (2004) 2 ALD 526 5 (1976) 2 APLJ 91 6 (2004) 1 SCC 681 7 (1975) 1 SCC 559 8 (1971) 2 APLJ 266 9 AIR 1989 SC 1753 10 (1978) 2 ALT 227 11 (1957) 2 An.W.R 478 12 (1961)1 An.W.R.120 13 (1995) Supp (2) SCC 3 14 (1996) 5 SCC 496 15 (1997) 6 SCC 277 16 (1999) 4 ALD 113 17 (1997) 5 ALT 1 18 (1993) Supp(2) SCC 146 19 (2009) 2 SCC 526 20 (2009) 3 ALD 491 (D.B.) 21 (2003) 1 SCC 102 22 (1992) 2 ALT 169 (D.B.) 23 (2002) 2 ALD 678 (D.B.) 24 (1978) 1 ALT 73 (NRC) 25 (1995) 2 ALT 89 26 AIR 1997 SC 3127 27 AIR 1978 AP 200 28 AIR 1979 SC 1320 29 Chief Justice A.P.vs.L.V.A.Dikshitulu ... AIR 1979 SC 193; Isabella Johnson vs. M.A.Susai… AIR 1991 SC 993 30 (2005) 10 SCC 603 31(2004) 3 SCC 1, (2004) 1 SCC 497, (2006) 13 SCC 401, (2007)2 SCC 355 AND (2009) 12 SCC 280 32 This principle laid down in Gadde Venkateswar Rao v. Govt. AP AIR 1966 SC 828 (Para 18) is consistently followed, the latest being AIR 2009 SC 713 33 Expl. III to Sec. 34(1); Sec. 34(2) & Expl. to Sec. 34 (2) & (3) of the Tenancy Act 34 Union of India v. Amarendra... AIR 1967 Cal 119 35 Bishan Singh v. Khajan Singh ...AIR 1958 SC 838. The nature of primary and secondary rights of pre-emption are explained and it was pointed out that the effect of a decree for pre-emption is substitution of the name of the pre-emptor in the place of the vendee under the offending sale. From this it is clear that the flow of title from the vendor to the vendee is not arrested 36 Chet Ram v. Amin Lal ...AIR 1983 Punj 50 (FB); Chandiram vs. The State of Punjab ... AIR 1974 Punj243 (FB); Shankerlal Gupta vs. V.Jogeswara Rao... AIR 1980 AP 181 (FB). Specifically in respect of a right of pre-emption under Sec. 22 of the Hindu Succession Act, the Kerala High Court held that there was nothing in the section which indicates that a sale in contravention thereof would be void. Villivi Sridevi Amma v. Subhadra Devi ...AIR 1976 Ker 19. 37 In contradistinction, Sec. 16 of the A.P. (Andhra Area) Tenancy Act 1956 confers comprehensive jurisdiction on the Special Officer. Consequently the remedial right of pre-emption under Sec. 15 of the Andhra Area Act can be pursued before the Special Officer 38 (1859)6 CB (NS) 336 39 Dealing with the right of pre-emption under Sec. 22 of the Hindu Succession Act,the Calcutta High court in Tarak Das V. Sunil Kumar … AIR 1980 Cal 53 held that the remedy is by way of a civil suit. 40 K.K.Seshadri V. R.M.Seshadri ... AIR 1973 SC 1311 and Roshanlal V. Madanlal ... AIR 1975 SC 2130 41(1989) 1 SCC 101 (Para 11 @ page 110. 42 (2001) 3 SCC 537 (para 11 & 14 @ page 543-544) 43 (1996) 10 SCC 671 44 AIR 2007 SC 1145 45 1961 (1) An.W.R.413 46 2001 (10) SCC 605 47 1977 A.L.T. 174 (DB) (NRC) 48 2004 (1) S.C.C 287 49 (2010) 6 S.C.C. 427 50 (2008) 7 SCC 293 51 AIR 2002 SC 1003 52 AIR 1998 SC 3335 53 2001 (3) ALD 469 54 (1991) 1 SCC 37 55 1957 ALT 217 56 1960 ALT 10 57 (1999) 2 SCC 297 58 AIR 1963 SC 698 59 (2003) 9 S.C.C. 525 60 (2004) 8 SCC 706 61 (2009) 2 SCC 315 62 (2000) 7 S.C.C. 291 63 (1978) 1 APLJ 478 64 (2003) 8 S.C.C. 413 65 AIR 2004 S.C. 3362 THE HON’BLE SRI JUSTICE GODA RAGHURAM AND THE HON’BLE SRI JUSTICE M.S. RAMACHANDRA RAO C.R.P.Nos.6708 of 2003, 1200 of 2003, C.R.P.S.R.No.24532 of 2012 and C.R.P.S.R.No.24636 of 2012 COMMON ORDER: A factual narrative going back to over seven decades; competing claims and proceedings under two legislative regimes; incoherent and often mutually contradictory assertions and responses presented before statutory, quasi-judicial and judicial authorities; rights predicated upon ambiguous records, often alluded to and less often brought on record; reliefs sought without fidelity to jurisdictional limitations and/or settled juridical norms of repose like res-judicata and irrevocably concluded proceedings; orders by statutory, quasi-judicial and judicial authorities without reference to all applicable legal norms and binding precedents on areas of jurisdiction and effect of irreversibly concluded proceedings; suppression of relevant facts including those that go to the root of jurisdiction; a blitzkrieg of random and occasionally vagrant litigation; competing assertions as to locus-standi deficit; and an order of remit by the apex Court with a specific direction to consider enumerated and other issues that may be raised, comprise the bouquet (or the strange alchemy if you will) of facts and circumstances that constitute the substratum of these Revisions. We now proceed to unravel the cobwebs, as best we are able to. But, now to judgment. 1. CRP No.6708 of 2003 was filed under S.91 of the A.P. (TA) Tenancy and Agricultural Lands Act, 1950 (for short, “the Tenancy Act”) challenging the order dated 9.12.2003 in File No.F2/4902/2001 of the Joint Collector, Ranga Reddy District under S.90 of the said Act. The Joint Collector had set aside the order dated 28-4-2001 of the Revenue Divisional Officer, Chevella Division in Case No.G/3640/96 dated 28.4.2001 granting sale certificate under S. 38-A of the said Act in respect of Ac.17.20 guntas in Sy.No.51, Ac.15.36 guntas in Sy.No.52 and Ac.4.01 guntas in Sy.No.53 (Paiki) of Gachibowli Village in favour of 19 persons who claim to be Protected Tenants under the said Act represented by their GPA – P. Venugopal Reddy. 2. CRP SR No.24532 of 2012 is filed under S. 91 of the Tenancy Act on 5.9.2012 by legal representatives of Gadda Shanker and one Gadda Krishna (allegedly protected tenants), challenging the order dated 9.12.2003 in Case No.F2/4903/2002 of the Joint Collector, Ranga Reddy District under S. 90 of the said Act . The Joint Collector had set aside the order dated 28-4-2001 of the Revenue Divisional Officer, Chevella Division in Case No.G/3640/96 dated 28.4.2001 mentioned above. The petitioners herein also filed CRP MP No.5812 of 2012 to grant leave to file the CRP against the said order; CRP MP No.5813 of 2012 to dispense with the filing of the copy of the said order; and CRP MP SR No. of 2012 under S.5 of the Limitation Act, 1963 to condone the delay of 3100 days in filing the above CRP. 3. CRP SR No.24636 of 2012 was filed under S. 91 of the Tenancy Act on 6.9.2012 by one Mohd. Ghouse (an alleged protected tenant) against the order dated 9.12.2003 in Case No.F2/4903/2002 of the Joint Collector, Ranga Reddy District under S. 90 of the said Act mentioned in para 2 above. The petitioner – Ghouse filed CRP MP No.6283 of 2012 to dispense with the filing of the copy of the said order; and CRP MP No.6538 of 2012 under S. 5 of the Limitation Act, 1963 to condone the delay of 3079 days in filing the CRP. 4. CRP No.1200 of 2003 was filed under S.21 of the A.P. Land Reforms (Ceiling on Agricultural Holdings) Act, 1973 (for short, “the Ceiling Act”), by the State of Andhra Pradesh challenging the order dated 2.9.2002 in LRA No.16/2001 of the Land Reforms Appellate Tribunal-cum- II Additional District Judge, Ranga Reddy District confirming the order dated 28-4-2001 of the Land Reforms Tribunal-cum-Revenue Divisional Officer, Chevella Division. By this order, M/s. Kastopa Corporation (declarant under the Ceiling Act) (for short, ‘Kastopa’) was declared a non-surplus holder and the Mandal Revenue Officer, Serlingampalli Mandal, directed to restore possession of Ac.11.28 guntas in Sy.No.46, Ac.16.10 guntas in Sy.No.47/P and Ac.9.02 guntas in Sy.No.53 of Gachibowli Village, to the declarant. 5. The following is the decennial sequence of events leading to the filing of the above cases. A. THE CHRONOLOGY OF EVENTS: The first decade – 1940 to 1950 One Ilias Burni was the owner of Ac.93.25 guntas in S.Nos.44, 45, 46, 51, 52 and 53 of Gachibowli Village. On 22nd February, 1350 (1940), one Lingamma sold Ac.63-18 guntas in Sy.Nos.37, 40, 42, 43 and 47 to Ilias Burni. Thus Ilias Burni became the owner of Ac.157-03 guntas in Sy.Nos.37, 40, 42, 43, 44, 45, 46, 51 and 53 of Gachibowli village. On 3rd Khurdad 1356 F (1946), Lingamma sold Ac.17-00 in Sy.No.50 to Haleema Khatoon. On 28-2-1950, Haleema Khatoon sold the above Ac.17-00 in Sy.Nos.50 to Ilias Burni. Ilias Burni had also purchased Ac.9.08 guntas in Sy.No.35 and Ac.7-06 guntas in Sy.No.36 of Gachibowli village. Thus by 1950, Ilias Burni became the absolute owner of land admeasuring Ac.190-17 guntas in Sy.Nos.35, 36, 37, 40, 42, 43, 44, 45, 46, 50, 51, 52 and 53 of Gachibowli village. It is alleged by all parties that there were tenants in the above lands. The identity of the tenants is however in dispute in these cases. The second decade - 1950 to 1960 : In 1952 Lingamma filed O.S.No.11/1 of 1952 for declaration of her title against persons who claimed to be tenants, alleging that they were encroachers. She also sought injunction against them. In 1958 – O.S.No.11/1 of 1952 was decreed. A.S.No.25 of 1958 was filed in the High Court by the alleged tenants. It is alleged by the petitioners in CRP Nos.6708 of 2003, CRP SR No.24532 of 2012 and CRP SR 24636 of 2012 that a list of protected tenants was prepared under S.37-A of the Tenancy Act in 1958. The third decade – 1960 to 1970 : On 2.9.1961, daughters of Ilias Burni sold Ac.157- 03 gts in Sy.Nos.37, 40, 42, 43, 44, 45, 46, 47, 51, 52 and 53 in favour of Kastopa represented by its partner Kantilal C. Seth (R-19 in CRP No.6708 of 2003 and the 1st respondent in CRP No.1200 of 2003). On 28.9.1964, the daughters of Ilias Burni also sold Ac.33-14 gts in Sy.Nos.35, 36 and 50 to Kastopa. Thus, during 1964 Kastopa became the land holder of the entire extent of Ac.190-17 gts. A compromise petition was jointly filed by Lingamma and the alleged tenants before the Tahsildar, Hyderabad West Taluq wherein they surrendered their tenancy rights in Sy.Nos.37, 40, 42, 43, and 47 of Gachibowli village. In File No.A3/18005/64, the Tahsildar accepted their surrender of tenancy rights and their names were deleted from the original tenancy register, on 20.2.1965. On 31.8.1965, a compromise decree was passed in A.S.25/1958. Sometime later, other tenants numbering five also filed a written application surrendering their tenancy rights before the Tahsildar, Hyderabad West in file No.A4/2556/66 and orders were passed accepting the surrender of their tenancy rights on 16.10.1966 and their names were also deleted from the final tenancy register. One of the issues which arise is as to how such a compromise could be valid when way back in 1950 itself Lingamma ceased to be the owner of the land, having sold it to Ilias Burni, whose daughters sold the land to Kastopa by 1964. The fourth decade – 1970 to 1980 : In 1973, Kastopa filed a declaration under S. 8 of the Ceiling Act before the Land Reforms Tribunal, Hyderabad (West), declaring its holding of Ac.190-17 gts. in various survey numbers of Gachibowli village. This case was numbered as C.C.No.265/10/75. In the declaration Kastopa did not show that there were any protected tenants in the lands. On 17.3.1975, an objection petition was filed before the Addl.Revenue Divisional Officer, Taluk west, Hyderabad District (exercising powers under the Ceiling Act as Land Reforms Tribunal) by Gaddi Maisiah, Khanamet Baliah, Manikonda Kondiah, Gadde Lachiah, Shetty Venkiah, Darugupalli Baliah, Legal representatives and sons of Gadde Yettiah (died), Gadde Ramiah (son and legal representative of Bal Lingiah) and Manikonda Pentiah claiming to be the protected tenants of the above lands, requesting grant of ownership rights u/S.38-E of the Tenancy Act in view of S.13 of the Ceiling Act. On 30.5.1975, a compromise petition was filed by the above named persons before the Addl.Revenue Officer, Taluk West, Hyderabad District pleading that they were waiving their rights in respect of Ac.157.3 gts in Sy.No.37, 40, 42-47, 51-53 of Gachibowli Village; that their claim u/S.38-E of the Tenancy Act be dismissed as not pressed; that they have validly surrendered their protected tenancy rights, if any, in favor of Kastopa; that they were never in possession; and pleading that Kastopa was in possession of the above lands. By the order dt.31.5.1975 in Proc.LLRW/47/75, the Land Reforms Tribunal, Hyderabad West considered the above petition and held that the names of all the protected tenants have been deleted from the final tenancy register of 1951; that the same names are found in the tenancy register prepared in 1958; that all the protected tenants surrendered protected tenancy rights and the same has been accepted by the Tahsildar. He dismissed the petition filed by Gaddi Maisiah and others for grant of certificates u/S.38-E of the Act on the ground that they have no locus standi to file it after surrendering their protected tenancy rights over the above lands in 1965 and 1966 before the Tahsildar, Hyderabad West. He allowed the petition of Kantilal Seth, partner of Kastopa to drop the proceedings u/S.38-E of the Tenancy Act and ordered that names of the protected tenants published in the provisional list under Rule 4 (1) of the Rules framed under the Ceiling Act be deleted and directed issuance of nil final list under Rule 4(3) of the said rules. On 9.12.1975, the Land Reforms Tribunal in CC No.264/W/75 passed orders declaring that Kastopa was holding an excess of 2.2862 SH over the permissible limit of one SH under the Ceiling Act. Kastopa filed LRA No.10 of 1976 before the Land Reforms Appellate Tribunal, Hyderabad. The said appeal was dismissed on 6.4.1976. Kastopa filed CRP SR No.24698 of 1976 before the High Court but the same was also dismissed on 28.4.1976. This order has become final. There was no further appeal to the Supreme Court. Subsequently, on 5.5.1976 Kastopa offered to surrender Ac.137.17 cts in Sy.Nos.35, 36, 37, 40, 42 to 47 and 53(P) to the State towards the 2.2862 SH found to be surplus in its holding. Notice in Form No.VIII under sub-rule (4) of Rule 7 of the Rules framed under the Ceiling Act was issued on 4.9.1976 calling for objections on the surrender offered by the declarant. This notice was published as required under the Rules but no objections were filed. On 6.10.1976, the LRT, Hyderabad West passed orders u/s.10(3) of the Ceiling Act approving the surrender proposed by Kastopa. On 13.10.1976, possession of the surrendered land of Ac.137.17 cts was taken by the Revenue Inspector, Lingampalli. On 24.1.1978, a notice u/Rule 12 (2) was issued stating that the lands mentioned therein have vested in the State u/s.11 of the Ceiling Act and inviting claims for compensation in respect of the surrendered land within 30 days of publication of the said notice in the A.P.Gazette. This was published in the A.P.Gazette on 11.5.1989. None of the alleged protected tenants filed any claim petitions. In April, 1978, a notice u/s.16 of the Ceiling Act was issued stating that the LRT is proposing to determine the amount payable for the lands surrendered u/s.15 of the said Act and inviting all persons having any interest in the lands to appear and make pleas for determination of the amount and adduce evidence in that behalf. In these CRPs., it is also to be considered whether the concluded proceedings under the Land Ceiling Act could be reopened at the instance of persons claiming to be protected tenants after computation of holding of the declarant Kastopa had attained finality. On 20.4.1979, G.O.Rt.No.594 was issued by the Government granting lease of Ac.31.34 gts in Sy.Nos.46 to 47 to Maharshi Institute of Creative Intelligence, Hyderabad. It is alleged by the petitioners in CRP.No.6708/2003 that on 6.11.1979, the Tahsildar had passed orders relating to succession of some of the alleged deceased tenants. W.P.No.4590 of 1980 was filed by 22 persons claiming to be protected tenants of lands in Sy.Nos.37, 40, 42, 43, 44, 45, 46, 47, 51, 52 and 53 totaling Ac.157.03 gts of Gachibowli village contending that their protected tenancy rights were not effected by surrender of surplus land by the Pattedar (Kastopa) under the Land Ceiling Act; that they continue to be protected tenants under the Tenancy Act; that they have filed a certified extract of the tenancy register prepared under S.37-A of the Tenancy Act in 1958 showing that they were protected tenants under the Land Holder - Ilias Burni; and that the State acted illegally in granting lease of lands covered by Sy.Nos.46 and 47 admeasuring Ac.31.43 gts in favour of the Maharshi Institute of Creative Intelligence. The fifth decade – 1981 to 1990 : By its order dated 17.2.1981 in W.P.No.4590 of 1980, this Court directed the Revenue Divisional Officer (RDO) to conduct an enquiry as to: (i) Whether the petitioners (in the said writ petition) were declared as protected tenants of the lands concerned including Sy.Nos.46 and 47 and if so, under what provision and when? and (ii) Did the petitioners or any of them or their predecessors in interest surrender their tenancy rights according to law, and if so, which of them, when and in which proceedings? This Court directed the RDO to take into consideration all the relevant facts and circumstances including the order of the Tahsildar dated 6.11.1979 under which he is alleged to have granted succession in favour of several persons including the petitioners in W.P.4590/1980 on the death of their predecessors in interest. It also directed that the impugned G.O. shall not be given effect to pending passing of orders by the RDO and that status quo obtaining as on the date of the disposal of the Writ Petition shall continue. Subsequently, the RDO, Chevella in reference No.G/1565/81 dated 27.7.1981 conducted an elaborate enquiry and passed an order dated 27.7.1981 in which he referred to existence of protected tenants in the entire land of Ac.190.17 gts, and expressed a doubt about the validity of a provisional list of deemed protected tenants allegedly issued by the Tahsildar under S.37-A of the Tenancy Act. He noted that the names of some strangers were also entered as co-tenants in the tenancy register; that only four persons by name (i) Khanammet Balaiah (ii) Manikonda Kondaiah (iii) Gadda Maisaiah and (iv) Darlapalli Babaiah are protected tenants under the provisions of S.37-A of the Tenancy Act in respect of Ac.157.05 gts in Sy.Nos.37, 40, 42 to 47, 51, 52 and 53 of Gachibowli village; and the remaining petitioners are found to have not been declared as protected tenants on the said lands u/S.37-A of the Tenancy Act. He declared that the proceedings of the Tahsildar dt.6.11.1979 in which the names of all the petitioners before him were brought on record is void. The RDO also held that Dargupalli Babiah had died 8 years earlier but his name is being continued as a protected tenant in all petitions, in W.P.No.4590/1980 and in the petition in the enquiry before him as well. He also held that the tenants had not surrendered the lands in accordance with S.19 of the Act. Kastopa also participated in these proceedings. It is to be seen that the RDO is not a designated officer under the Tenancy Act, authorized to conduct any enquiry into issues of succession to the deceased protected tenants. Only the Tahsildar may do it qua Rule 14 r/w Rule 26 of the Hyderabad Tenancy and Agricultural Land Rules, 1950 u/S.35 and 37. What is the weight to be attached to this report dated 27.7.1981 of the RDO is also therefore an issue which arises for consideration. In 1981, 24 persons including the four persons mentioned above filed petitions for grant of certificates under S.38-E of the Tenancy Act before the District Collector, Ranga Reddy District claiming that the above named four persons are original protected tenants and the rest, the legal representatives of other deceased protected tenants, seeking ownership certificate under S.38-E of the Tenancy Act on the ground that they are protected tenants. As the Collector, Ranga Reddy District did not pass any orders on their petitions, they filed W.P.No.4059 of 1982 before this Court contending that they are protected tenants to whom a protected tenancy certificate under S.37-A of the Tenancy Act was issued in respect of an extent of Ac.157.03 gts in Sy.Nos.37, 40, 42 to 47, 51, 52 and 53 of Gachibowli Village and that they are entitled to the benefits of S.38(1), S.38-E and S.38-B of the Tenancy Act, notwithstanding any proceedings under the Ceiling Act. The petitioners therein specifically contended that though they made a claim in the Writ Affidavit to consider their case under S.38-A and 38-B of the Tenancy Act, they are actually entitled for a direction to consider their case under S.38 apart from relief under S.38-E of the Tenancy Act. They also contended that proceedings under the Ceiling Act had taken place without any notice to them and therefore, they do not bind them. No counter affidavit was filed by the State Government or the Collector, Ranga Reddy District and others who were respondents in the Writ Petition. By order dated 15-7-1987, this Court disposed of the Writ Petition directing that the petitioners therein be granted certificate under S.38-E of the Tenancy Act in respect of Ac.73.03 gts as their protected tenancy is established u/S.37-A of the Tenancy Act by observing that the RDO, in his enquiry had held that nothing is placed before him to prove the surrender of tenancy rights by the petitioners u/S.19 of the Tenancy Act; that there is no material to prove that the protected tenants were evicted u/S.19, 32 or 44 of the Tenancy Act; any surrender by the landlord in the land ceiling case has to be ignored as it was done without notice to the petitioners; the authority under the Ceiling Act decided the matter without notice to the petitioners/protected tenants as though there were no protected tenant; and the alleged surrender of tenancy rights by the petitioners is not proved. The Court also held that if petitioners wish to purchase the land under S.38 of the Tenancy Act, they should have filed applications before the RDO and not the Collector or the Government as they have done. It permitted the petitioners therein to make such an application within two months from the date of the order in the Writ Petition and on filing of the same, the RDO, Chevella