Case: THOTA SRIDHAR REDDY &amp; ORS Vs. MANDALA RAMULAMMA &amp; ORS

not being challenged as per the procedure established by law. The Court held that the revenue entries made ignoring the 38-E certificate are illegal and that when once the title is established and the defendants had failed to prove adverse possession or any other right to remain in possession, the plaintiffs are entitled to the relief of recovery possession. 46. In the judgment reported as J. Narayana & Ors. v. Jainapally Pedda Kistaiah and Ors 2013 SCC OnLine AP 289, the question examined was whether the appellants are the protected tenants or owners under Section 38-E of the Tenancy Act. The High Court held as under: 16. From a perusal of the above, it is clear that it is only after the certificate is issued under sub-section (2), that the rights of ownership stand conferred upon a protected tenant. Another important aspect is that even where a certificate is issued, it must be followed by determination of the amount to be paid to the land owner and actual payment thereof. The default in payment of price in its entirety or portion thereof would lead to annulment of the ownership. 17. In the instant case the appellants were not issued any certificate of ownership at all. They did not even produce any deed of lease, which contains their names. It was not even pleaded that the price for the land was determined and the same was paid as provided under sub-section (3) of Sec.38-E of the Tenancy Act. xxx xxx xxx 22. It is important to note that if a P.T. or his successors are dispossessed from the land, they can seek the relief of recovery of possession under Section 32 of the Tenancy Act by filing application before the Tahsildar. As a matter fact, they filed an application under Sec. 32 of the Tenancy Act way back in the year 1988 for recovery of possession against the Respondents. That, however, was after the lands were acquired and Notification under Sec.4 (1) of the Act was published. Till today no orders have been passed thereon. The result is that the Respondents are undisputedly in possession of the land and in contrast the appellants were never in possession of the same, till it was acquired. The Point No.2 is answered accordingly. 47. The appeals allegedly filed by the protected tenant against the grant of occupancy rights certificate and subsequently being withdrawn is wholly inconsequential as after the grant of ownership certificate in terms of Section 38-E of the Tenancy Act, the protected tenants are deemed to be owners. Once the protected tenants are deemed to be owners, there could not be any occupancy rights certificate as the purchasers were divested of their ownership by virtue of the grant of ownership certificate under Section 38-E of the Tenancy Act. Such certificate was also not disputed by the purchasers. Therefore, title of the protected tenants is complete and the ownership unambiguously vests with them. 48. Now we shall examine the occupancy rights certificate granted to the purchasers in the year 1982. There was no right with the purchaser to claim occupancy rights on the basis of possession since 1.11.1973 upon surrender of protected tenancy rights. If the surrender of protected tenancy rights is not in accordance with the mandate of the statute, the possession from 1.11.1973 would be inconsequential as such possession would not affect the rights of the protected tenant who is entitled to statutory protection. In fact, the grant of Certificate unequivocally transfers ownership rights to the protected tenant. 49. The Inams Act is a subsequent statute than the Tenancy Act. Section 33 of the Inams Act is to the effect that nothing in the Act shall in any way be deemed to affect the application of the provisions of the Tenancy Act to any inam or mutual rights and obligations of Inamdar and his tenants, save insofar as the said provisions are in any way inconsistent with the express provisions of this Act. Section 38-E (1) of the Tenancy Act, as substituted in the year 1971, starts with a non-obstante clause giving overriding effect to any other law for the time being in force. Such sub-clause will include the Inams Act and that Inams Act will not be operative in the case of Section 38-E (1) of the Tenancy Act. This notification was issued on 1.1.1973 to cover the entire Telangana Area of the State. Both the Inams Act and the Tenancy Act are enacted by the same Legislature. The Inams Act is a later Act enacted in the year 1955 but Section 38-E (1) was substituted in the year 1971 which starts with a non- obstante clause. Therefore, ownership certificate granted under the Tenancy Act would prevail over the grant of occupancy rights certificate under the Inams Act. Both the Acts operate in different spheres. Inams Act deals with the land owner, whereas the Tenancy Act protects the rights of the tiller i.e., tenant including a protected tenant. In terms of Section 3(2)(b) of the Inams Act, all rights, title and interests vesting in the Inamdar including the protected tenant shall cease and be vested absolutely in the State, free from all encumbrances. Section 7 of the Inams Act deals with the right of a protected tenant to be registered as an occupant of such inam lands in his possession as may be left over after the allotment under Section 4. Section 38-E of the Tenancy Act was inserted initially in the year 1954 and subsequently substituted in 1971 giving overriding effect to such provision. Therefore, an Inamdar under the Inams Act would not have any right of allotment of occupancy rights in view of overriding effect given to Section 38-E. 50. However, ownership rights were granted to the protected tenant in respect of land measuring 19 acres and 16 guntas whereas occupancy rights have been granted in respect of the land measuring 31.05 guntas including of land falling in Survey Nos. 61 and 62 in Village Jeedimetla on 19.2.1982.

Decision (1 = appeal accepted, 0 = rejected): 0

Explanation:
0[ds]25. We have heard learned counsels for the parties and find no merit in the present appeals.26. In Sada, a Full Bench of the Andhra Pradesh High Court examined various aspects of the Tenancy Act by framing 9 points for consideration by giving complete legislative history of the Tenancy Act. The High Court held on the point Nos. 2 and 4 relevant for the purpose of the preset appeal as under:(1) What is the meaning of the words lands held by protected tenants and whether a protected tenant must have been in physical possession on the date of notification issued by the Government under Section 38E(1) of the Act (in this batch 1-1-1973) for becoming owner of the property and for obtaining the ownership certificate?4) Whether the new proviso to Section 38E(2) added by Act 2 of 1979 is retrospective and permits restoration of possession where the ownership certificate has been issued before 11-1-1979 the date when Act 2 of 1979 has come into force?27. In our view, the contention for the landholders that unless the protected tenant is in physical possession on the date of notification issued, under Section 38-E(1), he cannot get the ownership rights, is not tenable. A plain regarding of S. 38-E (1) shows that the Government may, by notification in the gazette declare is respect of any area, that from which such date as may be specified therein, ownership of all lands held by protected tenants which they are entitled to purchase from their landholders in such area shall, subject to Sec. 38(7), stand transferred to and vest in the protected tenant holding them. It is important to note that the statute does not say held on the date specified in such notification. Wherever the Legislature wanted that land should have been held on any specified date, it had clearly specified in that Act…xx xx xx29. It is clear from S. 38-E that it is for these protected tenants who are finally declared to be protected tenants and included in the Register prepared for that purpose end for whom protected tenancy certificates have been issued, that ownership rights are envisaged. In S. 33-E(1), subject of course, to the limitation with regard to extent of holdings as specified in S. 38(7) and to the proviso to S. 38-E(1). Once persons who held land on the dates or for the periods mentioned in S. 34. 37 and 37-A and the requirement of physical possession on the dates required in those sections is satisfied, such persons have become protected tenants. Once a person becomes a protected tenant, he earns a qualification to become an owner by force of statute, subject of course to the qualification regarding extent in S. 38(7) and to the proviso to S. 38- E(1). There is no requirement in the Act that he should also be in possession on the date specified in the notification issued in S. 38-E(1). The words all lands held by protected tenants is more a description of the lands with regard to which the right as protected tenant has been declared and there are no words requiring physical possession on the date specified in the notification.xx xx xx31. A person holds the land as protected tenant if he is stiff a protected tenant on the notified date, though out of possession. As long as his right as protected tenant has not been determined by date of notification in a manner known 10 the Act, he holds the land ax protected tenant, whether physically in possession or not We shall explain this again under point 7 in the context of surrender.xx xx xx36. For all the aforesaid reasons we hold on Point No. 1 that for tie vesting of the ownership of land held by a protected tenant under S. 38-E(1), it is not necessary that the protected tenant should have been in physical possession on the date of notification, it is sufficient if he continued to hold the status of a protected tenant as on the notified date even if not in physical possession and he satisfied the requirements of S. 32(7) of the Act. This is also subject to the proviso to Section 38-E(1).xx xx xx55. Point No. 4 The point is whether the new proviso to S. 38-E(2) added by Act 2 of 1979 is retrospective and permits restoration of possession Where ownership the certificate is issued before 11-1-1979 when Act 2/79 has come into force.56. Now the new proviso to S. 38-E(2) was introduced by Act 2/1979 to get round the difficulty created by the judgment in Narsaiahs case (1), There, it was held, that once the protected tenant has become owner, there is no machinery in the Act enabling him to obtain possession. It was pointed out that the provision in the latter part of the Explanation to S. 38 E (1) enabling a protected tenant to obtain possession through the Tahsildar was not applicable to the case of an application by an owner, even if it be a case of a protected tenant becoming an owner.57. In our view, the Legislature wanted to fill up the difficulty created by Narsaiahs case when it added the new proviso to S. 38-E(2) enabling the Tahsildar to restore possession to a former protected tenant who had become the owner.xx xx xx59. It is then argued that the words the ownership has been transferred in the new proviso to S. 38-E(2) show that the amendment does not apply to cases where the ownership certificate has been issued before 11-1-1979. This interpretation is not correct. We fully endorse the reasons given in Chennaiahs case to say that these words cannot be given such a restricted meaning. Point No. 4 is decided accordingly.xx xx xx66. For purposes of S. 38-E(1) the protected tenant should not have validly surrendered his tenancy right by the date of notification under S. 38-E(1). But if he had voluntarily surrendered his rights prior to 4-2-1954 (the date of the 1954 amendment) and put the landholder in possession, be it without the intervention of the Tahsildar, he could not claim any rights of ownership under S. 38- E(1) upon the issue of the notification. Likewise, if the surrender was after 4-2-1954 and before the date of notification under S. 38-E(1) and such surrender satisfied the requirements of Sec. 19 and was a valid surrender, the protected tenant could not claim ownership rights. If however there was no valid surrender, whether before (being not voluntarily but forcible), or after (being not in conformity with S. 19), the protected tenant had a right to be put back in possession under S. 32 as stated in Venkanna v. Buchamma (12) and such protected tenants, (if they had not otherwise lost their status under Ss. 32 or 44 by the notified date) would be entitled to ownership rights under S. 38E(1) and would be entitled to the ownership certificate under S. 38-E(2). In cases where proceedings under S. 19 are pending on the date of notification and end in favour of the protected tenant thereafter, the date of vesting gets postponed till the said decision. Point No. 7 is decided accordingly.28. In Edukanti Kistamma, the appellants were the protected tenants and were issued ownership certificate under Section 38- E of the Tenancy Act. The stand of the respondents of surrender of the tenancy rights was found to be invalid. This Court in these circumstances held that it is not necessary that a protected tenant should also be in possession on the date specified in the notification issued under Section 38-E of the Tenancy Act. This Court relied upon the judgment in Kotaiah and held as under:19. In view of the above, it is evident that the scheme of the Act provides that a person who is a protected tenant has a right to get the ownership in accordance with the statutory provisions, provided the total area of the land owned by the landholder including the land under the cultivation of his tenants is more than three times the area of a family holding for the local area concerned. The person should be in lawful possession of the land on the date of commencement of the 1950 Act to claim benefits under the Act. The Government has to make a declaration by publishing the notification in the gazette in respect of any area and from such date as may be specified therein, that the ownership of all lands held by protected tenants which they are entitled to purchase from their landholders in such area under the Act, subject to the conditions laid down under Section 38(7) of the Act would stand transferred to and vest in the protected tenants holding them as such and from such date the protected tenants shall be deemed to be the full owners of such lands.20. The certificate issued under Section 38-E(2) 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. In case the protected tenant is not in possession of the land, he has a right to restoration of the possession of the said land through the Tahsildar. The protected tenant cannot be dispossessed illegally by the landlord or anybody else. If so dispossessed, he has a right to restoration of the possession. He can be dispossessed only by taking recourse to the procedure prescribed under Section 32 of the 1950 Act.21. There is a complete embargo on the right of the landholder to alienate the tenanted land to a third party without giving an option to the tenant to purchase the land. Section 47 of the 1950 Act (omitted by the amendment of 1969) provided that any transfer of such land except to the protected tenant shall be void ab initio. The protected tenant may surrender his rights by strict adherence to the statutory requirements under the 1950 Act. In case there is any deviation from any such requirement, it would render the surrender ineffective and inconsequential.26. The 1950 Act being the beneficial legislation requires interpretation to advance social and economic justice and enforce the constitutional directives and not to deprive a person of his right to property. The statutory provisions should not be construed in favour of such deprivation. Interpretation of a beneficial legislation with a narrow pedantic approach is not justified. In case there is any doubt, the court should interpret a beneficial legislation in favour of the beneficiaries and not otherwise as it would be against the legislative intent. For the purpose of interpretation of a statute, the Act is to be read in its entirety. The purport and object of the Act must be given its full effect by applying the principles of purposive construction. The court must be strong against any construction which tends to reduce a statutes utility. The provisions of the statute must be construed so as to make it effective and operative and to further the ends of justice and not to frustrate the same. The court has the duty to construe the statute to promote the object of the statute and serve the purpose for which it has been enacted and should not efface its very purpose.41. There can be no doubt that once a protected tenant gets a certificate of ownership under Section 38-E(2) of the 1950 Act, he has a right to apply for restoration of possession to him if he has been dispossessed. The protected tenant has a right to ask for summary eviction of a trespasser.29. This Court in Boddam approved a Full Bench Judgment of the High Court in Sada. In Boddam, an application was filed claim- ing protected tenancy under Section 37-A of the Tenancy Act in the year 1998. On 16.12.1998, for the first time, it was alleged that the appellant was reflected as cultivating tenant in the Khasra Pahani for the year 1954-1955 for three years. The sale deed was executed in his favor by the owner on 23.11.1959 after permission was granted to his vendor under Sections 47 and 48 of the Tenancy Act. Bala, the paternal Uncle of the appellant had not claimed protected tenancy rights during his lifetime as he died in the year 1975. Even his legal representatives did not claim protected tenancy. It was only in 1998 that protected ten- ancy was sought and the ownership certificate under Section 38- E of the Tenancy Act was claimed after more than 40 years. This Court held as under:13. …A person becomes a protected tenant when he is a holder on the dates or for the periods mentioned in Sections 35, 37 and 37-A. Once a person becomes a protected tenant, he is entitled to an ownership certificate under Section 38-E. In Sada [AIR 1988 AP 77  : (1987) 2 An LT 749 (FB)] the Full Bench of the Andhra Pradesh High Court held that a person holds the land as protected tenant if he is still a protected tenant on the notified date i.e. 1-1-1973, though out of possession. As long as his right as protected tenant has not been determined by the date of notification in a manner known to the Act, he holds the land as a protected tenant, whether physically in possession or not. For the vesting of ownership of land held by a protected tenant under Section 38-E, it is not necessary that the protected tenant should be in physical possession on 1-1-1973. It is sufficient if he continues to hold the status of a protected tenant on the notified date, even if he is not in physical possession. The Act does not merely regulate the relationship of landlord and tenant but deals with the alienation of agricultural land and includes transfer of the landholders interest to the protected tenants. Therefore, the grant of pattedari (ownership rights) also finds place in the Act.30. This Court in Bal Reddy quoted with approval the Full Bench judgment in Sada as well as the earlier judgment of this Court in Kotaiah to hold that protected tenancy could be terminated only in a manner known to law. In the absence of such valid termination of protected tenancy, the interest of such protected tenant continues to be operative and subsisting in law and could devolve on his legal heirs and representatives who could then claim restoration of possession. As laid down in Sada, even if the protected tenant had lost possession, without there being valid termination of his status as a protected tenant, he would still be entitled to all incidents of protection under the Act.33. A protected tenant is entitled to recover possession in terms of Section 36 as well as Section 44 of the Tenancy Act which prohibits the termination of protected tenancy. The proviso to sub-section (1) of Section 44 of the Tenancy Act puts complete embargo on a land holder to exercise the right of resumption unless he has within a period of eighteen months from the commencement of the said Act sought reservation of land to exercise his right or resumption in terms of the commencement of Hyderabad Tenancy and Agricultural Lands (Amendment) Act, 1955. The Deputy Collector in terms of the said provision had to make a necessary enquiry and issue a certificate that the land has been so reserved. Thus, the land holder had no right to terminate the tenancy after the commencement of Amending Act, 1955 except after an enquiry which was to be conducted by the Deputy Collector. No such reservation had been made nor any enquiry was conducted, therefore, the rights of protected tenant cannot be defeated.37. The judgments referred to by the learned counsels for the appellants are not applicable to the facts of the present case. S. Rangaiah was a case of kabiz-e-kadim, which means an old occupier, who is neither a tenant nor a protected tenant. Such kabiz-e-kadim was granted protected tenancy status after the land got vested with the Government on 20.7.1955. The Bench noticed that even after vesting of Inam, a protected tenant would continue to have tenancy rights and would have the disability to enter into the agreement of sale on 22.1.1965 in favor of the respondents. The present matter is not a case of transfer of rights by or on behalf of the protected tenant. The entire argument is based upon the fact of oral surrender and subsequent filing and withdrawal of appeal in the year 1989 and of filing a belated appeal against the ownership certificate in the year 2015. The fact of filing of an appeal and its withdrawal was not raised in the first instance by the purchasers in proceedings before the Joint Collector or before the High Court. Since such documents were not produced at the earliest opportunity, and the veracity of such documents is not beyond doubt, there cannot be any attribution of knowledge of the grant of Occupancy Rights Certificate to the purchasers. It is strange that the appeal was withdrawn on 14.2.1989 but Section 19 petition was dismissed on the basis of alleged withdrawal of appeal on 31.1.1989. The High Court has held that the interest of the protected tenant cannot be validly conveyed in law in view of Section 30 of the Tenancy Act.38. In the present case, the surrender of tenancy rights is before the Mandal Revenue Officer on 31.1.1989, whereas as per the pro- viso to Section 19(1)(a) of the Tenancy Act, a tenant can surren- der his rights at least a month before the commencement of the year and that surrender is to be made by the tenant in writing. Such surrender is to be admitted by him before the Tehsildar and the authority is to satisfy itself that surrender is made in good faith. In the present case, the oral surrender by the protected tenant is set up in the year 1954. Such surrender is followed by sale of tenancy rights in the year 1957. Thereafter, the petition under Section 19 of the Tenancy Act was filed to seek approval of the Tenancy rights, such application was withdrawn on the basis of an order withdrawing the appeal against the grant of occu- pancy rights. This shows that the purchasers have taken steps to procure surrender of tenancy rights, realizing that such surren- der cannot be orally or by executing a sale deed. It was a cover up operation initiated by the purchaser but the same was still against the mandate of the statute as the finding of the surren- der has to be recorded by the Tehsildar. Since, neither the oral surrender nor surrender in writing was recorded as bonafide by the Tehsildar, the subsequent surrender approved by the Mandal Revenue Officer is a nullity and bears no legal effect as such sur- render is in contravention of the statutory provisions. The pro- tected tenant was conferred ownership rights under Section 38-E of the Tenancy Act on 23.3.1975 whereas the conferment of oc- cupancy rights were granted in the year 1982 under the Inams Act.39. In S. Veera Reddy, the appellants were transferees of the pro- tected tenant who sought declaration. The appellants relied upon a document dated 8.2.1963 by which the protected tenant was said to have transferred possession in their favor. On the other hand, one Sattaiah claimed possession after alleged sur- render of tenancy rights by the protected tenant. The appellants filed a suit claiming declaration of title and perpetual injunction. It was also a case where plaintiffs and defendants applied for oc- cupancy rights under the Inams Act. In fact, Section 38-E came to be inserted in the year 1971 after the filing of the suit by the appellants.40. Bhimavarapu Venkaiah is a case of transfer of Inam land wherein occupancy rights were claimed and the matter was re- mitted to the Revenue Divisional Officer to consider the applica- tion of the first petitioner for the grant of occupancy rights. S. Narasimha was also a case of claim of grant of Occupancy Rights Certificate. There is however no claim of grant of owner- ship rights as a protected tenant and interplay between the Ten- ancy Act or the Inams Act.42. We do not find that such judgments provide assistance to the arguments raised by the learned counsel for the appellants. Firstly, the application was treated to be one under Section 32 of the Tenancy Act. Section 32 falls in Chapter III of the Act dealing with the rights of the tenants whereas the rights of protected tenants are governed under Chapter IV. Section 32 is not applicable stricto sensu except to the limited extent as mentioned in the explanation to Section 38-E (1) of the Tenancy Act. Therefore, judgments in Ponnala Narsing Rao or Vorla Ramachandra Reddy are not applicable to the facts of the present case. Sub-section (5) of Section 38-E provides for an enquiry to ascertain the genuineness of surrender of the right by the protected tenant under clause (a) of sub-section (1) of Section 19. There is no provision in Chapter IV of the Tenancy Act to surrender protected tenancy rights. However, if an application is made under Section 19(1) of the Tenancy Act, the genuineness of such surrender is required to be ascertained by the Collector.43. The judgment in Boddam Narsimha is not helpful to the argu- ments raised by Mr. Dave as it is not a case of protected tenant on the dates mentioned in Sections 35, 37 and 37-A.45. In the judgment of Kasa Muthanna, the plaintiff was relying upon a certificate under Section 38 of the Tenancy Act whereas the defendant was relying upon a sale which was void in terms of Section 38 of the Tenancy Act. The High Court was examining in second appeal filed by the defendant, when the certificate under Section 38-E was granted to the plaintiff or their predecessors. In the aforesaid case, a certificate issued under section 38-E had become final and binding for not being challenged as per the procedure established by law. The Court held that the revenue entries made ignoring the 38-E certificate are illegal and that when once the title is established and the defendants had failed to prove adverse possession or any other right to remain in possession, the plaintiffs are entitled to the relief of recovery possession.46. In the judgment reported as J. Narayana & Ors. v. Jainapally Pedda Kistaiah and Ors 2013 SCC OnLine AP 289, the question examined was whether the appellants are the protected tenants or owners under Section 38-E of the Tenancy Act. The High Court held as under:16. From a perusal of the above, it is clear that it is only after the certificate is issued under sub-section (2), that the rights of ownership stand conferred upon a protected tenant. Another important aspect is that even where a certificate is issued, it must be followed by determination of the amount to be paid to the land owner and actual payment thereof. The default in payment of price in its entirety or portion thereof would lead to annulment of the ownership.17. In the instant case the appellants were not issued any certificate of ownership at all. They did not even produce any deed of lease, which contains their names. It was not even pleaded that the price for the land was determined and the same was paid as provided under sub-section (3) of Sec.38-E of the Tenancy Act.22. It is important to note that if a P.T. or his successors are dispossessed from the land, they can seek the relief of recovery of possession under Section 32 of the Tenancy Act by filing application before the Tahsildar. As a matter fact, they filed an application under Sec. 32 of the Tenancy Act way back in the year 1988 for recovery of possession against the Respondents. That, however, was after the lands were acquired and Notification under Sec.4 (1) of the Act was published. Till today no orders have been passed thereon. The result is that the Respondents are undisputedly in possession of the land and in contrast the appellants were never in possession of the same, till it was acquired. The Point No.2 is answered accordingly.47. The appeals allegedly filed by the protected tenant against the grant of occupancy rights certificate and subsequently being withdrawn is wholly inconsequential as after the grant of ownership certificate in terms of Section 38-E of the Tenancy Act, the protected tenants are deemed to be owners. Once the protected tenants are deemed to be owners, there could not be any occupancy rights certificate as the purchasers were divested of their ownership by virtue of the grant of ownership certificate under Section 38-E of the Tenancy Act. Such certificate was also not disputed by the purchasers. Therefore, title of the protected tenants is complete and the ownership unambiguously vests with them.48. Now we shall examine the occupancy rights certificate granted to the purchasers in the year 1982. There was no right with the purchaser to claim occupancy rights on the basis of possession since 1.11.1973 upon surrender of protected tenancy rights. If the surrender of protected tenancy rights is not in accordance with the mandate of the statute, the possession from 1.11.1973 would be inconsequential as such possession would not affect the rights of the protected tenant who is entitled to statutory protection. In fact, the grant of Certificate unequivocally transfers ownership rights to the protected tenant.50. However, ownership rights were granted to the protected tenant in respect of land measuring 19 acres and 16 guntas whereas occupancy rights have been granted in respect of the land measuring 31.05 guntas including of land falling in Survey Nos. 61 and 62 in Village Jeedimetla on 19.2.1982.