IN THE HIGH COURT OF JUDICATURE OF ANDHRA PRADESH : HYDERABAD TUESDAY, THE TWENTY FIRST (21st) Day Of JUNE, TWO THOUSAND AND ELEVEN Present: Hon’ble SRI JUSTICE G.V.SEETHAPATHY Civil Revision Petition No.1835 of 2008 Between: Kasa Sathaiah … Petitioner And: Kasa Mallamma & 2 others … Respondents HON’BLE SRI JUSTICE G.V.SEETHAPATHY Civil Revision Petition No.1835 of 2008 ORDER: This revision is directed against the order dated 19.11.2005 in Case No.F2/4858/2002 on the file of the Joint Collector, Ranga Reddy district, wherein the said appeal filed by the respondents herein was allowed and the impugned orders dated 31.12.2001 of the Mandal Revenue Officer, Manchal in Case No.A/693/2001 was set aside. 2. Heard the learned counsel for the petitioner and the learned counsel for the respondents. Perused the record. 3. The petitioner herein submitted an application to the Mandal Revenue Officer, Manchal Mandal for restoration of the possession of Ac.4.20 guntas of agricultural land situated in Sy.Nos.15 to 19 and 21 to 23 of Nallacheru H/o Thalapalliguda by evicting the respondents herein under section 38-E (2) of the A.P. (Telangana Area) Tenancy & Agricultural Lands Act 1950 (for short ‘the Act’). According to the petitioner, his father Chinna Veeraiah was the original protected tenant of the said land and after the death of his father, PT Tenancy certificate was issued in the name of the petitioner’s elder brother Kasa Laxmaiah and that in the family partition between brothers, the subject land fell to the share of the petitioner Kasa Sattaiah. The Mandal Revenue Officer, Manchal by order dated 31.12.2001 directed that the possession of the land of Ac.4.20 guntas be restored to the petitioner by evicting the illegal occupants of PT lands and a direction was issued to the VAO, Tallapalliguda village to handover the possession of the land to the petitioner. In the said order, the Mandal Revenue Officer stated that during local enquiry and as per the written arguments filed by the petitioner, the land fell to the share of the petitioner in the family partition with his brother Laxmaiah and that Veeramalllu Yadaiah, Ganga Ramulu and Kasa Jangaiah were in illegal occupation of the lands. Aggrieved by the said order of the Mandal revenue Officer, the respondents herein preferred appeal before the Joint collector under section 90 of the Act. 4. The respondents contended that the 2nd respondent purchased Ac.1.20 guntas from Ganga Ramulu and first respondent purchased Ac.1.20 guntas from Veeramallu Yadav under registered sale deed dated 12.04.1999 and 3rd respondent’s father Jangaiah purchased an extent of Ac.1.20 guntas from its original owner Mohammad Siddiqi and ever since their purchase, they have been in continuous possession and names were also mutated in the revenue records and pattadar pass books and title deeds were issued in their favour. It is contended by the respondents that previously their vendors filed a suit against Kasa Laxmaiah and the petitioner in OS Nos.56 and 57 of 1978 on the file of the Munsif Magistrate Court, Ibrahimpatnam and the said suits were decreed and no appeal was preferred and the said judgments have become final against the petitioner herein and also the Mandal Revenue Officer. It is also contended that Kasa Jangaiah, father of 3rd respondent filed suit OS No.58 of 1978 against Kasa Laxmaiah and the petitioner and the same was also decreed on 31.07.1981 granting permanent injunction. It was also contended by the respondents that suppressing the real facts, the petitioner filed application before the Mandal Revenue Officer and the Mandal Revenue Officer has not issued any notice to the respondents, who are bona fide pattadars and without giving an opportunity of hearing, the Mandal Revenue Officer passed orders on 31.12.2001. 5. The learned Joint Collector, by impugned order allowed the said appeal setting aside the order dated 31.12.2001 of the Mandal Revenue Officer, holding that once the ownership certificate under section 38-E of the Act is issued, the protected tenant himself becomes the owner and the question of restoration of possession to such owner is no more within the purview of the revenue authorities and hence, Section 32 of the Act has no application in respect of the holders of certificate issued under section 38-E of the Act. It was further held by the learned Joint Collector that the revenue authorities have no jurisdiction to take up the proceedings for restoration of possession after ownership certificate is issued and the appropriate remedy for a person who is holder of certificate under section 38-E of the Act, who is out of possession, is to institute a civil suit for recovery of possession. Aggrieved by the same, the present revision is filed. 6. Learned counsel for the petitioner would contend that in view of sub-section (2) of section 38-E, which was introduced by way of Amendment, Act 2 of 1979, the order of the Mandal Revenue Officer directing restoration of possession is valid and so the impugned order of the learned Joint collector is not sustainable. Learned counsel for the respondents would contend that no notice was served on the respondents under section 38- E(2) of the Act before the order was passed by the Mandal Revenue Officer on 31.12.2001. 7. Section 38-E(2) of the Act states as follows: “(2) A certificate in the prescribed form declaring him to be owner shall be issued by the Tribunal after holding such enquiry as may be prescribed, to every such protected tenant and notice of such issue shall simultaneously be issued to the landholder. Such certificate shall be conclusive evidence of the protected tenant having become the owner of the land with effect from the date of certificate as against the landholder and all other persons having any interest therein: Provided that where the land, the ownership of which has been transferred to the protected tenant under sub- section (1), is in the occupation of a person other than the protected tenant or holder of the certificate issued under this sub-section, it shall be lawful for the Tahsildar to restore the possession of the said land to the protected tenant or holder of the certificate, after giving notice of eviction to the occupant thereof, in the prescribed manner.” 8. Section 38-E (1) enables the Government to declare by notification in the Gazette that ownership of all lands held by protected tenants which they are entitled to purchase from their land-holders shall subject to the conditions laid down in sub- section (7) of section 38, stand transferred to and vest in the protected tenants holding them and from such date the protected tenants shall be deemed to be the full owners of such lands. The proviso to sub section (1) states that where in respect of any such land, any proceeding under section 19 or Section 32 or Section 44 is pending on the date so notified, the transfer of ownership of such land shall take effect on the date, on which such proceeding is finally decided, and when the tenant retains possession of the land in accordance with the decision in such proceeding. The explanation to sub section (1) states that if a protected tenant is not in possession of the land on the date of the notification, the Tahsildar either suo-motu or on the application of the protected tenant hold a summary enquiry, and direct that such land in possession of the landholder or any person claiming through him, shall be taken from the possession of the landholder or such person and shall be restored to the protected tenant, as if the protected tenant had held the land on the date of such notification. 9. Sub-section (2) of section 38-E states that a certificate in the prescribed form declaring him to be the owner shall be issued by the Tribunal after holding such enquiry as may be prescribed to every such protected tenant and notice of such issue shall simultaneously be issued to the landholder. Such certificate shall be conclusive evidence of the protected tenant having become the owner of the land with effect from the date of the certificate as against the landholder and all other persons having any interest therein. A proviso was added to sub-section (2) by way of amendment by Act 2 of 1979, stating that where the land ownership of which has been transferred to the protected tenant under sub-section (1) is in the occupation of a person other than the protected tenant or holder of the certificate, it shall be lawful for the Tahsildar to restore possession of the said land to the protected tenant or holder of the certificate after giving notice of eviction to the occupants thereof in the prescribed manner. The proviso therefore makes it clear that before the possession is restored to the protected tenant or holder of the certificate, the Tahsildar shall issue notice of eviction to the occupants in the prescribed manner. 10. The case of the respondents is that no such notice has been issued to them by the Mandal Revenue Officer before passing the orders dated 31.12.2001 directing the Village Administrative Officer to restore possession of the land to the petitioner herein. Further, the impugned proceedings dated 31.12.2001 of the Mandal Revenue Officer do not show that any notice was issued to the respondents herein, though the said proceedings referred to issuance of notice to the illegal occupants, the name of those persons are not mentioned therein. The reference column of the said proceedings in reference number 3 referred to, an objection petition filed by one Ganga Ramulu and 2 others, but there is no reference to the respondents herein. In the appeal before the learned Joint Collector, the respondents have specifically contended that the Mandal Revenue Officer has not issued notice to them before passing the impugned orders and no opportunity of hearing was given to them. The operative portion of the impugned orders of the learned Joint Collector do not refer to the said contention nor is any finding recorded as to whether any notice was issued or an opportunity of hearing was given to the respondents (appellants) before the Joint Collector, before the impugned orders were passed. The learned Joint Collector allowed the said appeal only on the ground that the revenue authorities had no jurisdiction to initiate proceedings for restoration once a certificate of ownership is issued under section 38-E and the remedy is only to file a civil suit. The order of the Mandal Revenue Officer does not refer to the aspect as to whether or not he has jurisdiction to direct restoration after issuance of ownership certificate under Section 38-E. Learned counsel for the petitioner would contend that the proviso to sub section (2) of section 38 enables the Tahsildar to restore possession to the protected tenant or holder of the certificate when it is found that the land is in occupation of person other than the protected tenant, even after the ownership is transferred to protected tenant under sub-section (1). However the said proviso contemplates that such order restoring possession can be only after issuing notice of eviction to the occupants in the prescribed manner. The material on record do not disclose that any such notice in the prescribed manner was issued to the respondents by the Mandal Revenue Officer before passing the order dated 31.12.2001 and the order of the learned Joint Collector does not record any finding, though specific contention was raised in that regard. When the statute prescribes a particular mode or method for granting relief, the same shall have to be followed and failure to comply with the statutory requirement of issuance of notice and giving opportunity of hearing would vitiate the whole proceedings. 11. In the circumstances, it is held that the impugned orders of the learned Joint Collector and the Mandal Revenue Officer are not sustainable and they are accordingly set aside and the matter is remitted to the Mandal Revenue Officer, Manchal for fresh consideration and to dispose of the same on its own merits in accordance with law, after giving notice of eviction and opportunity of hearing to the respondents-occupants in the prescribed manner. 12. In the result, the civil revision petition is allowed as stated above. No order as to costs. __________________ G.V.SEETHAPATHY, J Date: 21.06.2011 Bss