*THE HON’BLE SRI JUSTICE C.V.RAMULU +W.P.No.11510 of 2008 % 4th February, 2010 # Lakshmi Bai and others. .. Petitioners Versus $ The Tahsildar, Madnoor mandal, Nizamabad district & others. .. Respondents < GIST >HEAD NOTE: ! Counsel for petitioners : Mr.K.Raghuveer Reddy ^ Counsel for respondents 1 & 2 : G.P. for Revenue ^ Counsel for respondents 3 to 6 : Mr.V.Tulasi Reddy ? CASES REFERRED : 1. AIR 1988 AP 77 (FB) 2. 1994(1) ALT 526 3. AIR 1985 MADRAS 206 THE HON’BLE SRI JUSTICE C.V.RAMULU W.P.No.11510 of 2008 ORDER: This writ petition is filed seeking a Mandamus declaring the order passed by the first respondent in his proceedings No.B/328/2008 dated 16.5.2008 as arbitrary, illegal and without jurisdiction. Petitioners are four in number. Third petitioner filed affidavit in support of the writ petition. According to him, his late father Mallanna was the protected tenant in respect of land bearing Sy.No.3 admeasuring Ac.24-03 guntas situated at Tadgur Khurd village, Madnoor mandal, Nizamabad district. Respondents 3 to 6 were the pattedars of the said land. The possession of the land was delivered to the father of third petitioner and he was in possession of the same since several decades. After his death, third petitioner and his brothers viz., husband of first petitioner, father of second petitioner and father of fourth petitioner were in possession of the property. It appears, during the lifetime of Mallanna, he was granted ownership Certificate under Section 38-E of Andhra Pradesh (Telangana Area) Tenancy and Agricultural Lands Act, 1950 (for short ‘the Act’) in respect of Ac.0-31 guntas of land out of Ac.24-03 guntas in Sy.No.3 of Tadgur Khurd village conferring ownership by the Revenue Divisional Officer, Bodhan in his File No.B7/2941/74 dated 14.12.1974. However, after more than three years, the said Mallanna filed applications on 3.6.1978 and 7.6.1978 before the Sub-Collector, Bodhan requesting for grant of ownership certificate in respect of the entire land viz. Ac.24-03 guntas. The Sub-Collector, Bodhan vide his proceedings No.D1/2380/78 dated 9.11.1978 observed that since Mallanna had already been issued ownership certificate in respect of Ac.0-31 guntas, no further proceedings can be taken up. Aggrieved by the same, Mallanna filed appeal before the Joint Collector, Nizamabad in File No.A4/296/78. The Joint Collector dismissed the said appeal by order dated 30.7.1979 holding that there are no valid grounds for reopening the issue for issuance of certificate under Section 38-E of the Act and the order of the Revenue Divisional Officer dated 14.12.1974 should be deemed as final. However, on a petition filed by Narsappa and (3) others, the Assistant Collector, Bodhan vide Memo No.A/4106/87 dated 31.8.1988 informed that Mallanna will have ownership rights over Ac.0-31 guntas and protected tenancy rights over the remaining land i.e. Ac.23-13 guntas situated at Tadgur Khurd village. Therefore, the question of reopening the case again does not arise. It appears, further a representation was submitted on 14.11.1990 to the Revenue Divisional Officer, Bodhan requesting him to initiate action under Section 38-E of the Act. The Revenue Divisional Officer, Bodhan initiated action and issued patta certificate under Section 38-E of the Act in favour of descendants of Mallanna in respect of entire land admeasuring Ac.24-03 guntas in Sy.No.3 of Tadgur Khurd village through his proceedings No.A2/3476/90 dated 23.2.1991. Aggrieved thereby, the landlords filed appeal before the Joint Collector, Nizamabad in Case No.D5/18/91. The Joint Collector, after a detailed consideration of the entire issue, passed orders dated 17.2.1994 observing that the earlier proceedings granting 38-E Certificate relating to land admeasuring Ac.0-31 guntas in Sy.No.3 in respect of tenants has become final and against which, an appeal was filed and the same was also rejected and against that no revision was filed, therefore the Revenue Divisional Officer had no jurisdiction and competency to reopen the settled case, which attained finality. It was further observed that instead of rejecting the application dated 14.11.1990, the Revenue Divisional officer straightaway entertained the same without there being any direction either from the authority exercising appellate or revisional jurisdiction and therefore set aside the proceedings of the Revenue Divisional Officer in Procs.No.A2/3476/90 dated 23.2.1991. Aggrieved thereby, the descendants of Mallanna filed C.R.P.No.974 of 1994 before this Court, however the same was dismissed by order dated 2.12.1999. Thus, the matter had attained finality insofar as grant of 38-E Certificate in favour of Mallanna and others. Admittedly, late Mallanna was granted ownership certificate under Section 38-E of the Act in the year 1974 only to an extent of Ac.0-31 guntas in Sy.No.3 of Tadgur Khurd village and for the remaining extent, they were declared as protected tenants under Section 40 of the Act. While the things stood thus, on an application filed by the landowners (respondents 3 to 6) for re-delivery of possession of subject land, the Joint Collector passed order dated 5.10.2002 in File No.F1/1597/02 for re-delivery of possession of subject land. In pursuance of those orders, the Mandal Revenue Officer directed the Revenue Inspector to deliver possession to the landowners and accordingly possession was handed over to them under a cover of panchanama dated 23.10.2002. Aggrieved thereby, protected tenants filed W.P.No.23397 of 2002 before this Court. However, in view of the interim orders passed by this Court, possession was handed over to the protected tenants. Thereafter, the said writ petition was dismissed by leaving open all the questions raised in the writ petition to be adjudicated by availing appropriate remedy under Andhra Pradesh (Telangana Area) Tenancy and Agricultural Lands Act, 1950. Thereafter, the respondents 3 to 6 filed a petition on 24.7.2003 before the first respondent seeking delivery of possession of subject land on the ground that the protected tenants failed to pay the rents continuously for several decades. The matter was taken up in File No.B/2603/2002 and notices were issued to the protected tenants. After hearing all the parties, the first respondent passed impugned order dated 16.5.2008 directing the second respondent to handover possession of subject lands to respondents 3 to 6 (landowners) under a cover of panchanama and further directed to incorporate their names in revenue records. Aggrieved by the same, the present writ petition is filed. The learned counsel appearing for petitioners Mr.N.Sreedhar Reddy strenuously contended that the impugned order passed by the first respondent is arbitrary, illegal and without jurisdiction. The application filed by respondents 3 to 6 is not maintainable and no such proceedings can be initiated for eviction of petitioners/protected tenants. Under Section 32 of the Act, only the tenants can file application for eviction of unauthorized persons in possession of the property, but no other person can file such application for eviction of tenants. The only provision that can be initiated against the tenants is under Section 19 of the Act for termination of tenancy. The first respondent does not have any jurisdiction either for termination of tenancy or for ordering eviction. If the petitioners have not paid the lease amount, as stated by respondents 3 to 6, proceedings under Section 19 of the Act can be initiated by the landowners by issuing notices. He further stated that petitioner Nos. 1, 3 and 4 were not served with any notice and the second petitioner was not intimated about the next date of hearing by the first respondent. The learned counsel also stated that petitioners are in possession of the property as protected tenants and they are sought to be dispossessed by handing over possession to respondents 3 to 6. The whole exercise made by the first respondent is arbitrary, illegal and liable to be set aside. The first respondent filed a detailed counter denying the allegations made by the petitioners and stated that the landowners filed a petition on 24.7.2003 to deliver the possession of agricultural land in their favour on the ground that the protected tenants have failed to pay rents continuously for several years. Therefore, notices were issued on 1.3.2008 asking the petitioners to appear on 18.3.2008 at 11.00 a.m. in Tahsil Office, Madnoor mandal. On 18.3.2008, the counsel for landowners filed memo stating that respondent-Rao Sab died and vakalat was filed on behalf of his L.Rs. i.e. (1) Smt.Amarbeena, (2) Samad (3) Ananth, whereas tenants Hullanna and others have not attended the case and the case was posted for hearing on 28.3.2008. On 28.3.2008, counsel for one of the tenant-Shivappa filed vakalat. The case was posted to 9.4.2008. On 9.4.2008 one of the landowners Ananth Rao was present. Neither the tenants nor their counsel were present and filed any documentary evidence. However, the case was further posted to 22.4.2008 for hearing, on which date landowners-Ananth Rao and Bahadur were present and the tenants were called absent. The statements of Ananth Rao and Bahadur were recorded along with one witness Mashnaji of the same village. The case was posted to 29.4.2008. On 29.4.2008, when the case was called, landowners were present and the tenants were called absent. The case was reserved for judgment and on 16.5.2008 the impugned order was passed in favour of landowners ordering immediate delivery of possession of agricultural land in Sy.No.3 to an extent of Ac.23-12 guntas situated at Thadgur Khurd village, Madnoor mandal and also directed the Village Revenue Officer and Mandal Revenue Inspector to handover possession of subject land to the landowners. On 20.5.2008, the Village Revenue Officer and Mandal Revenue Inspector conducted panchanama at the spot and possession of the subject land was handed over to the landowners. In the panchanama, it was also recorded that Smt.Lingubai and 5 others have refused to sign the said panchanama. It was further stated that there was no standing crop on the land as on the date of handing over of possession of land. The writ petition is devoid of merits and liable to be dismissed. Likewise, the respondents 3, 4 and 6 filed their counter denying the allegations made by the petitioners. It is stated that the writ petition is liable to be dismissed in limini on the ground of non-joinder of necessary parties. The fifth respondent expired and his legal representatives were not brought on record and on this ground alone, the writ petition is liable to be dismissed. According to the respondents, they filed an application before the first respondent on 24.7.2003 for delivery of possession to an extent of Ac.23-12 guntas of land in Sy.No.3 of Tadgur Khurd village after evicting the petitioners who are legal representatives of protected tenants under Section 32(2) of the Act read with Rule 14 of Hyderabad Tenancy and Agricultural Lands Rules, 1950. It was further stated that Section 32(1)(2) can be invoked among other sections of the Act, as the protected tenants and their legal representatives failed to pay the rents in spite of repeated demands prior to making of application. Not only that petitioners did not pay rents for several decades even after filing a petition for delivery of possession. It is further stated that insofar as non-service of notices on other petitioners is concerned, initially one K.Linga Reddy, Advocate filed vakalat on behalf of tenants and the matter was adjourned from time to time, but no counter was filed on their behalf opposing the application filed by the landowners and no evidence whatsoever was sought to be adduced. It is stated that after the present incumbent of first respondent assumed office, he had issued fresh notices to the landowners and petitioners on 3.3.2008 and sent them through the Village Revenue Officer for service. On 7.3.2008, the Village Revenue Officer served notices on the landowners and also sought to serve notices on the petitioners, but they refused to receive the same. Therefore, the Village Revenue Officer has affixed the notices on the house door of petitioners after conducting a panchanama and a report to that effect was submitted to the first respondent. On 28.3.2008, second petitioner appeared before first respondent through G.Malleshwar, Advocate, who filed vakalat on his behalf, but he has not chosen to file any counter or adduce any evidence and the matter was adjourned from time to time, but the petitioners failed to file any counter or adduce any evidence on their behalf. Further, the allegation of the petitioners that the first respondent has no jurisdiction to entertain a petition and only action that could have been initiated was under Section 19 o the Act is not correct. The petition under Section 32(1)(2) of the Act is also maintainable under law. Therefore, the contention of the petitioners that without invoking provisions of Section 19 of the Act, the tenancy of the petitioners can neither be terminated nor they can be evicted is not correct. I have given my earnest consideration to the respective submissions made by the learned counsel on either side and perused the impugned order and other material made available on record. Admittedly, petitioners are protected tenants and were granted ownership certificate under Section 38-E of the Act to an extent of Ac.0-31 guntas in Sy.No.3 of Tadgur Khurd village and for the remaining extent of Ac.23-12 guntas, they were declared as protected tenants and not entitled for ownership certificate under Section 38-E of the Act. The said litigation attained finality. Now the question is as to whether the petitioners fell in arrears of payment of rents as required under law or not. It is not in dispute that the petitioners have not paid even a single paise for 60 years as of today even after attainment of finality of further claim that they are not entitled for ownership certificate for the remaining extent of Ac.23-12 guntas. Further, earlier when the petitioners were dispossessed, in view of the interim orders passed by this Court in W.P.No.23397 of 2002, they were put in possession, still they did not deposit any amount towards rents. Now the contention of the petitioners that they were not issued with any notice, appears to be not true in view of the fact that they refused to receive the notices and therefore notices were affixed on their residential doors by the Village Revenue Officer. Further, petitioners also refused to sign on the panchanama. In fact, on behalf of second petitioner, vakalat was filed and the matter was adjourned from time to time, which would indicate that the petitioners are intending to keep the possession with them by hook or crook; more crook than hook. For more than 60 years, petitioners have been in possession of land, but they have not paid the rents till date even after filing an application before the first respondent, which resulted in passing the impugned order nor during the pendency of litigation before this Court. Such persons cannot be allowed to raise so many questions of jurisdiction etc. Before going into the merits, it may be appropriate to notice Sections 19, 28 and 32(1)(2) of the A.P. (Telangana Area) Tenancy and Agricultural Lands Act, 1950, which reads as under: Section 19 : Termination of tenancy (1) Notwithstanding any agreement or usage or any decree or order of a Court of law, but subject to the provisons of sub-section (3), no tenancy of land shall be terminated before the expiration of the period for which the land is leased or deemed to be leased otherwise than (a) by the tenant by surrender of his rights to the landholder at least a month before the commencement of the year: Provided that such surrender is made by the tenant in writing and is admitted by him before and is made in good faith to the satisfaction of the Tahsildar; or Provided further that where the land is cultivated jointly by joint tenants or members of an undivided Hindu Family, unless the surrender is made by all of them, it shall be ineffective in respect of such joint tenants as have not joined in the application for surrender, irrespective of the fact that the names of all the joint tenants are not mentioned in the certificate. (b) by the landholder on a ground specified in sub-section (2). (2) The landholder may terminate a tenancy on the ground that the tenant (a) (i) has failed to pay in any year, within fifteen days from the day fixed under the Land Revenue Act for the payment of the last instalment of (land revenue due for the land concerned in that year), the rent of such land for that year; or (ii) if an application for the determination of reasonable rent is pending before the Tribunal or the Collector under Section 17, has failed to deposit within 15 days from the aforesaid date with the Tribunal or the Collector, as the case may be, a sum equal to the amount or rent which he would have been liable to pay for that year if no such application had been made; or (iii) in case the reasonable rent determined under Section 17 is higher than the sum deposited by him, has failed to pay the balance due from him within two months from the date of the decision of the Tribunal or the Collector, as the case may be; or (b) has done any act which is destructive or permanently injuries to the land; or (c) has sub-divided the land; or (d) has sub-let the land or failed to cultivate the land personally or has assigned any interest therein; or (e) has used such land for a purpose other than agriculture: Provided that no tenancy of any land held by a tenant shall be terminated on any of the grounds mentioned in this sub-section unless the landholder gives six months notice in writing intimating his decision to terminate the tenancy and the grounds for such termination; and provided further that the tenancy of a tenant who (a) is a female or a minor, or (b) is subject to physical or mental disability, or (c) is serving in the Naval, Military or Air Forces of India, shall not be determined on the ground only that the land comprised in the tenancy has been sub-let by or on behalf of such tenant. (3) The tenancy of a tenant holding a lease to which Section 7 or 8 applies shall terminate where the landholder is a person who having served in the Naval, Military or Air Forces of India, in good faith requires the land for personal cultivation on the termination of such service, on the expiration of the year in which such person gives notice in writing to the tenant that the tencny is terminated; or (c) on the first day of March, 1951 in a case in which a person deemed under Section 34 to be a protected tenant is entitled under Section 36 to recover possession of the land on that day. Section 28 – Relief against termination of tenancy for non- payment of rent: (1) Where a tenancy of any land held by a tenant is terminated for non-payment of rent and the landholder files any proceeding to eject the tenant, the Tahsildar shall call upon the tenant to tender to the landholder the rent in arrears together with the cost of proceeding within ninety days from the date of the order, and if the tenant complies with such order, the Tahsildar shall, in lieu of making an order of ejectment, pass an order directing that the tenancy has not been terminated, and thereupon the tenancy had not been terminated: Provided that nothing in this section shall apply to any tenant whose tenancy is terminated for non-payment of rent if he has failed for any three years to pay rent within the period specified in sub-clause (i) of clause (a) sub-section (2) of Section 19. (2) The landholder may apply to the Tahsildar in the prescribed form for recovery of arrears of rent for any period not exceeding three years. The Tahsildar, may, after such enquiry as he considers necessary pass such order as he deems fit. The Tahsildar in passing an order shall allow the tenant to set off the sum, if any, paid by him to the landholder within the period of three years immediately preceding the date of application made under sub-section (i) in excess of the rent due from him: Provided that if the Tahsildar is satisfied that in consequence of a total or partial failure of crops or similar calamity the tenant has been unable to pay the rent due, the Tahsildar may, for reasons to be recorded in writing, direct that the arrears of rent together with costs of the proceedings, if awarded shall be paid within one year from the date of the order and that if before the expiry of the said period the tenant fails to pay the said arrears of rent and costs, the tenancy shall be deemed to be terminated and the tenant shall be liable to be evicted. (3) When a tenant tenders an amount on account of rent to the landholder for any period and if the landholder refuses to receive it or refuses to grant a receipt for it, the tenant may present to the Tahsildar an application in writing for permission to deposit in his office the full amount of rent. The Tahsildar may receive the amount in deposit and give a receipt for it, which shall constitute a discharge of the tenant’s liability in respect of rent for such period and no claim or application by a landholder for rent shall be maintainable in respect of the period for which the rent has been so deposited by the tenant. Notice of amount so deposited shall be given to the landholder and the amount will, on his application, be paid to him.” Section 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 house held by a tenant except under an order of the Tahsildar, for which he shall apply in the prescribed form. (3) ……………………. (4) …………………… The learned counsel appearing for petitioners relied upon the Full Bench judgment of this Court in SADA AND ETC. VS. THE TAHSILDAR, UTNOOR, ADILABAD DISTRICT AND ANOTHER[1] and drawn the attention of the Court to paragraphs 10, 73 and 74, which reads as under: “The 'tenancies' above stated are liable to be terminated under S. 19 of the Act. Section 19(1)(a) deals with surrender by the tenant, in the manner prescribed therein, while S.19(1)(b) refers to termination by the landholder, upon the various grounds available to the landholder as specified in 5''19(2). 5. 19(2) specifies default, subletting and other grounds for Friction. The mode of eviction of the tenant as by approaching the Tahsildar under S. 32. Of course, Ss. 27 and 28 provide for relief against eviction for default or other specified grounds. Point No. 9 :- This relates to an inquiry under S. 38(5), intended to be made by the Collector, at any time, - and notwithstanding anything in S. 19 or S. 38-E, for deciding the genuineness of any surrender, "for the purpose of effecting a transfer of ownership", subject to observing principles of natural justice. Obviously, the inquiry in regard to surrender before 4-2-1954 (date of Act 3 of 1954) will be on the basis that an org voluntary surrender by tenant was valid, if made, before 3-2-1954, as decided in Seetharamamma v. Badnath Herija (1959 Andh LT 650) and on the basis that with effect from 4-2-1954, it must satisfy the mandatory requirements stated in Venkanna v. Buchamma (1971 (2) APU (HC) 266). We have so held under point No. 7. Further the inquiry is only for the purposes of effecting a transfer where it has not already been effected in favour of the protected tenant. (see also under CRP No. 915/79 below). Point No. 9 is decided accordingly. (1) W. A. No. 1082 of 1982. In this writ appeal, the purchaser from the landholder is the appellant-writ petitioner. The sale itself was contrary to the provisions of the Act as