IN THE HIGH COURT OF JUDICATURE, ANDHRA PRADESH AT HYDERABAD (Special Original Jurisdiction) THURSDAY, THE FOURTH DAY OF DECEMBER TWO THOUSAND AND EIGHT PRESENT THE HON'BLE MR JUSTICE VILAS V. AFZULPURKAR WRIT PETITION NO : 25603 of 1998 Between: 1 State of A.P. Rep.by its District Collector, Srikakulam. 2 The Mandal Revenue Officer, Santhakaviti Mandal, Srikakulam District. ..... PETITIONERS AND 1 The Court of the Special Officer-Cum-District Munsif, Rajam. 2 Mukka Appalaswamy, S/o. Late Surayya, R/o. S.Rangarayapuram, H/o. Gulla Seetharamapuram, Santhavakiti Mandal. 3 Ungarala Parvathi, W/o. Appalasuri, R/o. Pathakumkam, Laveru Mandalam. .....RESPONDENTS Petition under Article 226 of the constitution of India praying that in the circumstances stated in the Affidavit filed herein the High Court will be pleased to issue a Writ or order or direction more particularly one in the nature of writ of Certiorari by calling for the records of the 1st Respondent i.e., special officer-Cum- District Munsif, Rajam, Srikakulam District in A.T.C.No. 1/87 dated 30-6-1993 and quashed the same as illegal, arbitrary. Counsel for the Petitioner: GP FOR REVENUE Counsel for the Respondent : Mr.K.V.SUBRAHMANYA NARUSU The Court made the following : ORDER: This Writ Petition is filed by the State against the order of the 1st respondent in A.T.C.No.1 of 1987, dated 30-06-1993, whereby and whereunder the 1st respondent has declared the respondents 2 and 3 herein as permanent tenants under the landlord-Rao Satyanarayana and his heirs. The said order also restrained all the respondents from interfering with the petition schedule land or trespassing the peaceful possession and enjoyment of the petitioner over the schedule land. 2. The brief facts of the case mentioned in the affidavit filed in support of the Writ Petition are that one Sri Rao Satyanarayana and subsequently after his death, his son- Rao Sitharamaswamy @ Pedababu is said to have filed a declaration under Section 8 of the A.P.Land Reforms (Ceiling on Agricultural Holdings) Act, 1973 (hereinafter referred to as ‘the Land Reforms Act), and under the proceedings No.LCC.1226/PLK/75, he had declared an extent of Ac.1.80 cents in Sy.No.211/2 towards excess land for surrender. Accordingly the excess land was surrendered to an extent of Ac.19.28 cents and the same was accepted by the Land Reforms Tribunal by its order, dated 22-06-1982. 3. It is alleged that the said land was thereafter distributed among the beneficiaries on 12-04-1987. So, the respondents 2 and 3 herein, who were earlier represented by their deceased father (1st petitioner in A.T.C.No.1 of 1987), claimed to be a tenant of Ac.1.80 cents in Sy.No.211/2 and claiming that they were tenants of the previous landlord and continue to be tenants even now, have approached the 1st respondent under A.T.C.No.1 of 1987. The said A.T.C. was filed on 27-04-1987. The petitioners herein alleged that they were also impleaded as respondents 6 and 7 in the said A.T.C. They claimed that they have filed a counter bringing to the notice of the 1st respondent that it had no jurisdiction in the matter in view of the fact that the land in question, which is surrendered excess land and vests in the State, has already been distributed to the beneficiaries. Petitioners also claimed that under Section 28 of the Land Reforms Act, which has overriding effect, the provisions of the A.P.(A.A) Tenancy Act, 1956 ( hereinafter referred to as ‘A.P.Tenancy Act’) have no application. The said A.T.C. was, apparently, contested only by the respondents 6 and 7 i.e., the petitioners herein, and though the petitioners herein filed Exs.P1 to 4 together with the evidence of P.W.1, the findings recorded by the 1st respondent were against the petitioners herein. 4. On behalf of the respondents 2 and 3 herein, who are the petitioners in the said A.T.C., P.Ws.1 to 4 were examined and Exs.A1 to A19 were marked. 5. We are however concerned with the question of law which is raised in this Writ Petition and as such, the factual aspect with regard to the overall evidence of the parties is not necessary to be considered. 6. I have heard the learned Assistant Government Pleader and the learned counsel for the respondents 2 and 3 herein. 7. While the learned Assistant Government Pleader has submitted that the very entertainment of the A.T.C. by the 1st respondent is without jurisdiction. She has placed strong reliance upon Section 28 of the Land Reforms Act to submit that the said Act has overriding effect and any adjudication by the 1st respondent under the A.P.Tenancy Act is not sustainable. It is also contended that as mentioned in the affidavit, the excess land is surrendered and taking over the excess land was as early as on 22-06-1982 and afterwards the land was distributed among the beneficiaries also on 12-04-1987. 8. The learned Assistant Government Pleader relies upon the evidence as recorded in the Adangals, which were marked by the 1st respondent as Exs.B1 to B4 to establish that the beneficiaries are in possession. She therefore submits that when the surrender proceedings as well as the distribution of land among the beneficiaries were accomplished on 12-04-1987, the respondents 2 and 3 have approached the 1st respondent in A.T.C.No.1 of 1987 on 27-04-1987. She therefore contends that the 1st respondent failed to keep in mind the aforesaid aspect and has erroneously come to the conclusion and granted permanent tenancy status to the respondents 2 and 3 even against the Government. She therefore submits that the very entertainment of the A.T.C. by the 1st respondent is without jurisdiction and the Certiorari jurisdiction of this Court is necessary to be invoked to keep the 1st respondent within it’s bounds. 9. Learned counsel for the contesting respondents with equal vehemence has submitted that the very contention of the petitioners that there is a vesting in their favour etc., is not substantiated by any evidence. He submits that no surrender proceedings are exhibited before the Court below nor there is any other evidence to establish that the excess land was taken over under the surrender proceedings in accordance with the provisions of the Land Reforms Act, nor there is any other evidence to establish that the said excess land was distributed among the beneficiaries. Learned counsel would contend that mere marking of Adangals does not amount to discharging the said burden. He would submit that the right of the respondents 2 and 3 as tenants under the previous landlord, remains unaffected, even assuming that a vesting has taken place and the State is the owner of the land. He therefore submits that the finding of fact arrived at by the 1st respondent cannot be disturbed under Certiorari jurisdiction of this Court. He also submits that even according to the petitioners also after the said impugned order was passed by the 1st respondent, petitioners have approached the appellate authority under the A.P.Tenancy Act along with an application for condonation of delay and the said application, seeking condonation of thirty one days delay in presentation of the appeal, was however rejected by the appellate Court and thereafter the petitioners have moved this Court by this Writ Petition. According to the learned counsel, the present Writ Petition is seriously affected on the ground of delay and latches and the discretion under Article 226 of the Constitution of India ought not to be exercised in favour of the petitioners. 10. I have considered the aforesaid submissions in the light of the record of the case and I have examined the findings of the 1st respondent under the impugned order, together with the affidavit filed by the petitioner in support of the Writ Petition. It is to be noted that no counter-affidavit is filed by the contesting respondents and as such, the following factual aspects can be safely taken as undisputed. The previous landlord of the land in question was Sri Rao Satyanarayana, and he was succeeded by the respondents 1 to 5 in A.T.C.No.1 of 1987. The landlord had filed declaration under the Land Reforms Act and an extent of Ac.19.28 cents was declared as excess and was liable to be surrendered. As per the affidavit of the petitioners, the surrender of the excess land was accepted by the Land Reforms Tribunal by its order, dated 22-06-1982. Thereafter, the order of the 1st respondent in A.T.C.No.1 of 1987 itself shows that the land was distributed among the beneficiaries on 12-04-1987, whereas A.T.C., as such, was filed before the 1st respondent on 27-04- 1987. So far as the first question urged by the learned counsel disputing the surrender as well as vesting is concerned, the averments in the affidavit of the petitioners that the Land Reforms Tribunal had accepted the surrender of an extent of Ac.19.28 cents of land on 22-06-1982 cannot be controverted and is not controverted as such as no counter-affidavit is filed disputing the said aspect. 11. Under Section 10(4) Read With Section 12 of the Land Reforms Act, the moment the Land Reforms Tribunal passed an order accepting the surrender of the land, the surrender becomes final. So far as the declarant is concerned, it cannot be said that after that date the declarant has any say in the matter, so far as the surrendered land is concerned and such land vests in the State. Further, with respect to the aforesaid surrendered land, the interest of the previous owner-declarant comes to an end and it cannot therefore be said that any relationship of landlord and tenant subsists between the landlord and the tenant which allegedly pre-existed prior to such surrender. 12. Further, consequent upon such vesting, further proceedings by the State under Section 14 of the Land Reforms Act ensued, for disposal of such land, including distribution thereof among the beneficiaries. In the present case, as mentioned above, the distribution among the beneficiaries is said to have been completed on 12-04-1987, i.e., atleast about two weeks before the respondents 2 and 3 approached the 1st respondent by filing A.T.C. The contention of the contesting respondents 2 and 3 therefore that there is no vesting of the land and his relationship as landlord and tenant vis-à-vis the declarant-previous owner subsists, is liable to be rejected. 13. The consequence of the said vesting necessarily leads to further question that the land so surrendered and vested in the State assumes the character of the land owned by the State. It is on that basis that the State Government proceeds to distribute the same in accordance with Section 14 of the Land Reforms Act. 14. At this stage, it is necessary to refer to Section 18 of the A.P.Tenancy Act. The relevant portion of the same is extracted hereunder: 18.Savings: 1[(1) Nothing contained in this Act shall apply— xxxx (c) to lands owned by [the Central Government or the State Government]; and xxxx 15. The aforesaid provision makes it clear that the very Tenancy Act has no application to the land owned by the State Government. On the date of filing of the A.T.C. i.e., 27-04-1987, as noticed above, the land already vested in the State Government as the surrender of excess land was accepted by the Land Reforms Tribunal in its order, dated 22-06-1982, under Section 10(3) of the Land Reforms Act. The character of the land in question was that of a land vested, owned and belonging to the State Government. After 22-06-1982, the very Tenancy Act was not applicable to claim any relief and the A.T.C.No.1 of 1987 was itself not maintainable as nothing contained in the A.P.Tenancy Act was applicable to the lands in question. 16. Learned counsel for the respondents 2 and 3 has placed strong reliance on the decision of the Supreme Court in UNION OF INDIA v. JUBBI [1] for the proposition that the law of which the avowed object is to free the tenant of landlordism and to ensure to him security of tenure would bind all landlords irrespective of whether such a landlord is an ordinary individual or the Union. 17. The aforesaid decision was rendered by the Honourable Supreme Court under H.P.Abolition of Big Landed Estates and Land Reforms Act (15 of 1954). In the aforesaid decision a right as a cultivating tenant was claimed by the respondent therein as against Union of India on the ground that the respondent was in possession of the land and was cultivating the same and had sought proprietary rights under the aforesaid Act. The said application was opposed by the Forest department on behalf of the Union of India on the ground that the said land forms part of protected forest and that relationship between the respondent and the Union was not that of landlord and tenant. 18. The Honourable Supreme Court noticed that in the aforesaid proceedings the Forest department did not dispute that the appellant held the said lands as tenant of the Government. However, it is crucial to notice that on the question as to whether the statute apply to the State as much as it applies to a citizen was decided based upon the provisions of the said Act in question. In paragraph No.5, the Honourable Supreme Court held as follows: “5. It is conceded that neither S. 11 nor any other provision in the Act contains any express exemption. Broadly stated, if the legislature intended to exclude the applicability of the Act to the State it could have easily stated in S. 11 itself or by a separate provision that the Act is not to be applied to the Union or to lands held by it. In the absence of such a provision, in a constitutional set up as the one we have in this country, and of which the overriding basis is the broad concept of equality, free from any arbitrary discrimination, the presumption would be that a law of which the avowed object is to free the tenant of landlordism and to ensure to him security of tenure would bind all landlords irrespective of whether such a landlord is an ordinary individual or the Union. 19. The position, so far as the A.P.Tenancy Act is concerned, is different as is evident from Section 18(1) (c) of the A.P.Tenancy Act extracted as above. As such, the aforesaid decision relied upon by the learned counsel for the respondent is of no assistance to him. 20. In view of the provisions under Section 18(c) of the Tenancy Act r/w Section 28 of the Land Reforms Act, I am of the view that the very entertainment of A.T.C. No.1 of 1987 by the 1st respondent and granting of declaration and injunction is wholly unsustainable and without jurisdiction. 21. Under the Certiorari jurisdiction, this Court is duty-bound to consider the lack of jurisdiction of the Tribunal below and to ensure that the Tribunal below remains within it’s bounds and does not exceed it’s jurisdictional sphere. In view of the finding registered above that the very Tenancy Act itself is not applicable with respect to the land in question, I am of the view that interference under Certiorari jurisdiction is eminently necessary and called for in the present case. 22. So far as the objection of the learned counsel for the respondents 2 and 3 with respect to the delay is concerned, as already noted above, the petitioners had invoked the appellate Court’s jurisdiction by way of filing an appeal with condonation of delay petition and some time was consumed in the disposal of the said petition. Thereafter, they have moved this Court by this Writ Petition. Though there is some delay on the part of the petitioners in approaching this Court, it cannot be said that the Writ Petition suffers from such latches or delay so as to warrant dismissal of this Writ Petition on the said ground. Therefore, being unable to accept the contentions of the learned counsel for the respondents 2 and 3, I am of the view that the impugned order passed by the 1st respondent is wholly unsustainable and is liable to be quashed and is accordingly quashed. 23. Writ Petition is accordingly allowed as prayed for. There shall be no order as to costs. ____________________________ VILAS V. AFZULPURKAR,J 04th December, 2008. Tsy To 1. The Special Officer-Cum-District Munsif, Rajam. 2. CCs to 3. 2CD copies Form-NIC-OGS/WP{PRASAD} [1] AIR 1968 SUPREME COURT 360