THE HON’BLE SRI JUSTICE G.CHANDRAIAH W.P.NO.3423 OF 2006 O R D E R Heard Sri K.V. Bhanu Prasad, learned counsel for the writ petitioners, Government Pleader for Revenue for the 1st respondent and Sri N.Suryanarayana Murthy, learned Senior Counsel appearing for the party respondents. 2. The petitioners claim to be the legal heirs of the protected tenant late Karre Babaiah @ Balaiah, who was granted certificate under Section 38-E of the A.P. (T.A.) Tenancy and Agricultural Lands Act, 1950. (for short ‘the Act’) for an extent of Acs.17-22 gts. in Sy.No.22 of Mallapur village, Saroornagar Mandal, Rangareddy District. They filed petition before the Mandal Revenue Officer, Saroornagar mandal, Rangareddy District under Section 40 of Act for grant of succession of tenancy rights and under Sections 32 (1) of the Act for recovery of possession. By proceedings No.B/10773/2003 dated 27.9.2003, the Mandal Revenue Officer, ordered succession and recovery of possession. The said order for better appreciation, is extracted as under: “This is the petition filed by Sri Karre Jangaiah, Karre Yadaiah, Karre Venkatesh, Karre Babulu, Karre Krishna, s/o Laxmaiah and Karre Narsimha s/o Babaiah alias Balaiah R/o Mallapur village, U/s 40 of A.P. (T.A.) Tenancy & Agricultural Land Act of 1950 for grant of succession of tenancy rights of late Karre Babaiah alias Balaiah and his family members and U/s 32(1) of A.P. (T.A.) Tenancy and Agricultural Land Act, 1950 for recovery of possession of land in respect of Sy.No.22, admeasuring Ac.17-23 gts., situated at Mallapur village. On receipt of the petition, the matter has been taken on record and issued notices and published at village for receiving of claims and objections over the land in respect of Sy.No.22, extent Ac.17- 23 gts of Mallapur village. No objections were received within the stipulated time. The matter has been enquired in the village that the petitioners are the legal heirs of protected tenant late Babaiah alias Balaiah in the land in respect of Sy.No.22 admeasuring Ac.17-23 gts. Of Mallapur village. On perusal of P.T. register Sri Karre Babaiah alias Balaiah name has been recorded as protected tenant and Sri Syed Saber Hussain name has been recorded as a pattedar. As per the latest pahani, N.Anasuya and others were recorded as pattedars for the land to an extent of Ac.17-23 grts., in survey no.22 of Mallapur village. In view of the above it is proved that Sri Karre Babaiah alias Balaih is the protected tenant of land in respect of Sy.No.22 admeasuring Ac.17-23 gts., of Mallapur village, and the petitioners are the successors of protected tenant i.e., late Karre Babaiah alias Balaiah. Therefore, it is hereby ordered to record the names of Sri Karre Narsimha, s/o Babaiah alias Balaiah, and Keere Jangaiah, Karre Yadaiah, Karre Venkatesh, Karre Babulu, and Karre Krishna all sons of Laxmaiah, for succession protected tenancy rights U/s 40 of A.P. (T.A.) Tenancy & Agricultural Land Act, 1950 and recovery of possession of land U/s 32 (1) of A.P. (T.A.) Tenancy and Agricultural Land Act, 1950, to the petitioners in respect of the lands bearing Sy.No.22 Extent Ac.17-23 gts. of Mallapur village. The Additional Revenue Inspector and Mandal Surveyor are hereby directed to handover the possession of the land bearing Sy.No.22, Extent Ac.17-23 gts., of Mallapur village to the Successors of Protected Tenants while conducting a panchanama duly following procedure immediately. Pronounced in the open court and dictated by me.” 3. Aggrieved by the above dated 27.9.2003, the respondents before the Mandal Revenue Officer, filed appeal under Section 90 of the Act. In the appeal, in Case No.F2/174/2004 dated 7.2.2006, the Joint Collector-II, Rangareddy – 1st respondent, passed the following order: “In the instant case, the respondents claim to be protected tenants in respect of the subject land and claim to have acquired ownership rights over the land U/s 38-E of the A.P. (T.A.) Tenancy Act, 1950. The 38-E holders (i.e. respondents herein) have applied to the Mandal Revenue Officer to restore possession of the said lands U/s 32 of the Act. The Mandal Revenue Officer accordingly has invoked Section 32 of the Act and put the respondents herein (38-E holders) in possession of the lands. The principal point that arises for consideration is whether Section 32 of the Act can be invoked to restore possession of protected tenants who have acquired ownership rights under Section 38-E of the Act. The point has to be answered in the negative. Once a ownership certificate under Section 38-E is issued, the P.T. himself becomes the owner and the question of restoration of possession to such an owner is no more within the purview of the revenue authorities. Hence Section 32 has no application in respect of 38-E holders. Further, explanation to sub-section (2) of Section 38-E also provides for restoration of possession. Having regard to the language of the explanation, a protected tenant out of possession could be restored only before a certificate of ownership is issued to him. The fact that the provisions are beneficial would not enable a person to whom a certificate of ownership has been issued to seek restoration if he ceased to be a P.T. and himself becomes as owner. The revenue authorities certainly have no jurisdiction to take any proceedings for restoration of possession after the ownership certificate is issued. Hence, in the instant case, the impugned restoration of possession proceedings of Mandal Revenue Officer in No.B/10773/2003 dated 27-9-2003 is irregular and is therefore, set aside. The appropriate remedy for a 38-E holder who is out of possession is to institute a Civil Suit for recovery of possession. Accordingly, the appeal is allowed. The status quo order dated 17- 1-2004 in Case F2/174/2004 is hereby vacated. Typed to dictation, corrected and pronounced by me in the open court on this the 7th day of February, 2006.” 4. Challenging the order dated 7.2.2006 passed by the Joint Collector, in setting the aside the order of the Mandal Revenue Officer in restoring possession and thereby requiring the Section 38-E certificate holders to institute a civil suit for recovery of possession, the present writ petition has been filed. 5. In the affidavit filed in support of the writ petition, it is stated that 1st petitioner is the son of Karre Babaiah @ Balaiah, who was the protected tenant in Sy.No.22 of Mallapur village, Saroornagar mandala, R.R. District. He was granted Section 38-E certificate under Act for an extent of Acs.17-22 guntas on 30.5.1975. The original pattadar of the land is one Sri Syed Sabir Hussain. Even the Khasra Pahani of the year 1954-55 also shows Hussain as pattadar and Karre Babaiah as the protected tenant. In view of Section 38-E certificate issued in favour of Karre Babaiah, there cannot be any doubt, that he is the protected tenant. His father died leaving behind him, the 1st petitioner, Karre Lakshmaiah and Karre Narasimha. Karre Lakshmaiah also died and hence, the 1st petitioner and other petitioners 2 to 6 herein who are the sons of his deceased brother Karre Lakshmaiah, are entitled for recovery of possession. All of them have inherited the property of their late father. The Section 38-E certificated in favaour of the father of the 1st petitioner was questioned by the son of the original pattadar by filing an appeal. The District Revenue Officer by order dated 20.7.1977, dismissed the appeal. Aggrieved by the said order, the son of the pattadar i.e., Qutubuddin Hussain, filed revision before this court in C.R.P.No.4326/1977 and the same was allowed on 10.6.1981 remanding the matter to the Revenue Divisional Officer for fresh consideration. After remand, the Revenue Divisional Officer, entertained the objections of Qutubuddin and cancelled the Section 38-E certificate granted in favour of the father of the 1st petitioner, on 24.5.1985. Aggrieved by the same, the father of the 1st petitioner filed appeal before the Joint Collector and the matter was remanded for fresh consideration. When the Revenue Divisional Officer was conducting enquiry with regard to issuance of Section 38-E certificate, one Sri Syed Hashim Hussaini, filed a third party petition claiming to be the owner of the entire extent of land and sought the relief to recognize him as the pattedar of the lands. The Revenue Divisional Officer, having enquired into the matter, declared the father of the 1st petitioner, as the protected tenant and held that there is no irregularity or illegality in granting Section 38-E certificate in favour of the father of the 1st petitioner. Aggrieved by the order of the Revenue Divisional Officer, the said Qutubuddin Hussain, filed appeal before the Joint Collector and the Joint Collector again confirmed the order of the Revenue Divisional Officer and thereby, Section 38-E certificate granted in favour of the father of the 1st petitioner attained finality. It is further stated that the respondents 2 to 7 are claiming rights through Hashim Hussaini, whose application was rejected by the Revenue Divisional Officer. Having purchased the land from an unconcerned person, the respondents 2 to 7 are claming to be the owners and took possession of the lands. At that juncture, the petitioners filed an application before the Mandal Revenue Officer for restoration of possession of the lands under Section 32 of the Act. The Mandal Revenue Officer after conducing enquiry, allowed their application. Aggrieved by the same, the respondents 2 to 7 have preferred an appeal before the 1st respondent on several grounds. The 1st respondent having kept the matter for a long period, ultimately allowed the appeal on a flimsy ground that once Section 38-E certificate was granted, the holder of the certificate becomes the owner of the land, the provisions of the Act will not help the owners to seek for restoration of possession under the provisions of the Act and that the revenue authorities do not have jurisdiction to take up any proceedings for restoration of possession. Ultimately, the 1st respondent held that once the certificate is issued in favour of an individual, he becomes the owner of the property and if for any reason, he is not in possession of the land, he cannot ask for restoration of possession under Section 32 of the Act and only recourse open to him, is to approach the civil court for appropriate relief. By giving such a findings, the 1st respondent allowed the appeal on 7.2.2006. Aggrieved by the same, the present writ petition is filed. 6. It is contended that even though Section 38-E certificate was issued in favoaur of an individual, if he is claiming restoration of possession, the only course open to him is to file an application under Section 32 of the Act, but not by way of suit in civil court. In the affidavit filed in support of the writ petition, proviso to section 38 (2) was extracted. It is stated the amendment to Section 38 of the Act was brought by amendment of A.P. 2/1979. Then, several writ petitions were filed and a Full Bench of this court in the decision reported in SADA vs. TAHSILDAR UTNOOR[1], held that whether the issuance of 38-E certificate was before or after 11.1.1979, still it is for the Tahsildar to restore possession to the protected tenant. Therefore, it is clear that protected tenant who obtained certificate under Section 38- E can get back physical possession only under Section 32, but he need not approach civil court. Therefore, when the petitioners made an application under Section 32 of the Act, the Collector ought to have confirmed the order of the M.R.O. who passed the order of restoration. Therefore, the impugned order of the Joint Collector in allowing the appeal in case No.F2/174/2004 dated 7.2.2006 is illegal and arbitrary and sought to set aside the same. 7. The 1st petitioner also filed an additional affidavit and while reiterating the averments made in the writ affidavit, further stated that as their father was never in possession of the land after the grant of Section 38-E certificate, it is the revenue authorities who have to restore possession and not the civil court. With these averments, the impugned order was sought to be set aside. 8. The 7th respondent filed counter affidavit on behalf of respondents 2 to 7. In the counter affidavit it is stated that against the order passed by the 1st respondent – Joint Collector, Rangareddy District, as per Section 91 of the Act, revision has to be filed, but the petitioners without availing the remedy, filed the writ petition and hence the same is liable to be dismissed. It is stated that the petitioners have already sold the lands in question long back and also very recently during the pendency of the proceedings, have again sold in favour of one C.Karunakar S/o C.R.Mohan Rao vide document no.14899/2003 dated 10-12-2003 and as such they have no locus standi to file the present writ petition. In the writ petition, the petitioners alleged that their father was Karre Babaiah @ Balaiah. It means the original name is Babaiah and he is also called as Balaiah. In fact, always nick name follows original now. Here, the original name is followed by nick name. As because the alleged ownership certificate under Section 38-E of the Act was issued in the name of Karre Balaiah, but not in the name of Babaiah. Thus Karre Babaiah is different from Karre Balaiah, as such, the petitioners cannot say that Karre Babaiah @ Balaiah. Karre Babaiah died long back. The petitioners have not filed a single document showing as ‘Karre Babaiah alias Balaiah” or “Karre Balaiah alias Babaiah”, thus they have created the word of “alias”. The petitioners alleged that the land in Sy.No.22 of Mallapur village is covered by protected tenancy. They also alleged that Karre Babaiah @ Balaiah was granted the ownership certificate under Section 38-E of the Act. It means that he became the owner of the land in question. But one Karre Jangaiah and others have filed a petition before the Deputy Collector & Mandal Revenue Officer, Saroornagar in the year 2003 bearing file No.B/10773/2003 for grant of succession under Section 40 of the Act and under Section 32(1) of the Act for recovery of possession of the subject land without making the pattedar as parities and without filing the death certificate and without showing all the legal heirs. By the time of filing of such application, the names of these respondents reflected in all the revenue records and pattadar pass books and title deeds have also been issued in their favour. But the Mandal Revenue Officer passed the orders on 27.9.2003 in a hurried manner, without following the procedure, without giving notice to the pattadars, interested persons, possessors as contemplated under the Act and Rules. Aggrieved by the said order, the respondents have preferred an appeal bearing No.F2/174/2003 before the 1st respondent Joint Collector, Rangareddy District, eliciting all the facts and legal position and also filed all the relevant documents. After hearing the parties, the 1st respondent has passed orders on 7.2.2006 without considering Section 40, and the order has emphasized Section 38-E certificate of the Act. The petitioners are not entitled to claim any right under Sections 40 and 32(2) of the Act for the following reasons: i) The Section 40 and Section 32(1) are independent Sections. Separate enquiry has to be made and as such if he is the protected tenant, the Section 40 and 32(1) attracts. The following conditions should be satisfied for grant of succession under Section 40 of the Act. a) There should be protected tenancy in respect of the land. The name of protected tenant should find place in the final record of tenancy. b) The protected tenancy should have subsisted at the time of demise of the protected tenant; Section 40(2) clearly states that ‘heirs shall be entitled to hold the tenancy on the same terms and conditions on which such protected tenant was holding the land at the time of his death.” c) Death certificate is to be filed. No date of death is mentioned. The expressing “holding” clearly indicates that the protected tenancy viz., landholder-tenancy relationship ought to have subsisted at the time of the demise of the original protected tenant. In the present case, the requirement (a) is not in favour of the writ petitioners, as the land in question is not protected tenancy land. The name of Karre Babaih was no more and the petitioners herein are not legal heirs of alleged protected tenant Karre Babaiah. (Karre Balaiah is not P.T.) By the time, even otherwise, the ownership certificate under Section 38-E was issued there is no protected tenancy. The requirement (b) is also not in favour of the writ petitioner, as because, the Section 38-E certificate was issued to the alleged Karre Balaiah, thus there is no subsistence of relationship of protected tenant and landlord. After a lapse of more than 30 years, after the death of alleged protected since, the date of demise of protected tenant is not given, succession cannot be determined in a summer revenue enquiry. ii) That on the date of filing of the said petition, the petitioners are not the protected tenants as because as per the alleged ownership certificate under Section 38-E of the said Act, they became the owners and as such the Section 40 does not attract. Besides this, once the Section 38-E certificate is issued; Section 32(1) does not attract; he has to file such petition even otherwise, under provisions of Act 2 of Amendment, but not under Section 32(1) of the Act. Moreover, the Mandal Revenue Officer has no power under Section 40 of the Act to grant succession. In the decision reported in J.BHUSHANAM vs. JOINT COLLECTOR[2], it is held that once certificate is issued under Section 38-E (2), protected tenant becomes owner. For any subsequent dispossession, he cannot rely upon provisions of Tenancy Act for recovery of possession and he has to approach civil court for such relief. iii) That these respondents have purchased the subject lands from its pattadars, possessessors and even from the petitioners herein. After purchase, they developed the same by investing huge amounts and hard labour. Admittedly these respondents are the pattadars and possessors and their names have also been entered into the revenue records and as such the Mandal Revenue Officer, who is the custodian of the record is well aware of the said fact and as such it is his primary duty to give notice to these respondents, and ought to have conducted a detailed enquiry, but he has not given such notice to these respondents. iv) That the Mandal Revenue Officer ought not have entertained single application for the reliefs of different independent section. He would have conducted separate enquiry in respect of Section 40 petition and 32(1) petition and would have passed separate orders. v) These respondents most respectfully submit that the petitioners/alleged protected tenants i.e., during the life time of alleged Karre Babaih nor the petitioners were never in possession of the subject land right from 1950 onwards, at any point of time. This fact is quite evident from the revenue records and orders passed by revenue courts and other tribunals. Further, the alleged protected tenant during his life time has not file any such petition claiming possession. Now the petitioners have filed the petition before the Deputy Collector and M.R.O. in the year 2003 i.e., after a lapse of more than 50 years. In fact such belated applications cannot be entertained as because the applications under Section 32 must be filed within a reasonable time. As because number of changes have taken place and number of developments took place. As per the judgment of the Apex Court reported in PONNALA NARSING RAO v. NALLOLLA PANTAIAH[3] it is categorically held that such belated applications cannot be entertained. 9. It is stated that during the pendency of the proceedings, petitioners have sold the subject land to C.Karunakar under registered sale deed document no.14899/2003 dated 10-12-2006 and as such the writ petitioner who are no more the protected tenants or the owners having any kind of right, title, interest or whatsoever, have no locus standi to file the present writ and moreover, they have not disclosed this fact before this court and hence the writ petition is liable to be dismissed. 10. Originally, in the ownership certificate under Section 38-E of the Act the name is shown as Karre Balaiah. The petitioners termed it as Karre Babaiah @ Balaiah and claiming the right. In the said certificate, the father’s name is not mentioned and as such there is ambiguity in the said certificate and the petition for possession was filed in the year 2003 i.e, after a period of about 53 years and such petition deserves to be dismissed. In the further counter affidavit, it is stated that the petitioners also entered into agreements and received payments under receipts and thus relinquished their rights etc., But these facts have been denied by the petitioners. 11. With these averments, and supporting the impugned order in directing the petitioners to approach the civil court for restoration of possession, the writ petition was sought to be dismissed. 12. The learned counsel appearing for the writ petitioners reiterating the averments made in the writ affidavit submitted that in respect of agricultural lands in Sy.No.22 of Mallapur village, Saroornagar, one Sri Syed Sabir Hussain is the pattadar and in the Khasra Pahani for the year 1954-55 his name is shown as pattadar and Karree Babaiah was shown as protected tenant. Karree Babaiah @ Balaiah, who is the father of the 1st petitioner, was granted certificate under Section 38-E of the Act on 30.5.1975 by the Additional R.D.O., Hyderabad East in file No.B/313/LRE/75, for an extent of Acs.17-22 gts. in Sy.No.22 of Mallapur village, Saroornagar Mandal, Rangareddy District, which is the subject land. The said Karre Babaiah @ Balaiah died leaving behind him the 1st petitioner, Karre Laxmaiah and Karre Narasimha and Karre Laxmaiah also died leaving behind his sons and hence the petitioners, who are the legal heirs of the original protected tenant, became entitled for tenancy certificate. Challenging the Section 38-E certificate, the son of original pattadar Syed Qutubuddin Hussain filed appeal before the District Revenue Officer, Hyderabad and by proceedings No.B1/13854/95 dated 20.7.1977 the appeal ended in dismissal. Aggrieved by the same, a revision in C.R.P.No.4326/1977 was filed before this court and by order dated 10.6.1981, the matter was remanded. After remand, the Revenue Divisional Officer, by proceedings No.A/6421/81 dated 24.5.1985 dated rejected the claim of the respondents, who are the protected tenants and held that they are not entitled for the grant of ownership certificate under Section 38-E of the Act. Aggrieved by the same, the protected tenants, filed appeal before the Joint Collector, Rangareddy and in proceedings No.B4/7227/85, the matter was remanded to the Revenue Divisional Officer for fresh enquiry. During the process of enquiry, one Sri Syed Hashim Hussaini filed a claim petition, claiming to be the owner of the entire extent of land and sought for relief to recognize him as the pattadar of the land. The Revenue Divisional Officer in Case No.A/6421/81 dated 11.8.1993 held that Section 38-E certificate granted in favour of the petitioners holds good and the claim of the third party was dismissed. Aggrieved by the said order of the Revenue Divisional Officer, the legal heirs of Qutubuddin Hussaini, who is the son of the pattadar, filed appeal before the Joint Collector, Rangareddy District and by proceedings in case No.F2/191/94 dated 5.7.1999, the appeal was dismissed, confirming the order of the Revenue Divisional Officer. Thus the order of the Joint Collector dated 5.7.1999 attained finality, as no further appeal was filed. He submitted that the tenancy certificate under Section 38-E granted in favour of the 1st petitioner attained finality in the year 1999, after the prolonged battle since, 1975. He further submitted that the respondents 2 to 7 are claiming their title under registered sale deeds of the year 1993, through Syed Hashim Hussain, whose third party claim was rejected. Therefore, when vendor of the respondents 2 to 7 has no title, they cannot derive any