PUBLISHED IN http://judis.nic.in/judis_andhra/filename=9710
THE HON'BLE SRI JUSTICE M.S.RAMACHANDRA RAO
CIVIL REVISION PETITION No. 5920 OF 2003
15.03.2013
Mandava Umamaheswara Rao and others
The Authorised Officer, Land Reforms Tribuna,and others
Counsel for the petitioners : Sri K.Govardhan Reddy
Counsel for respondent Nos.1 & 2: Government Pleader for Arbitration
Counsel for respondent Nos.3 to 7: Sri Yadagiri Reddy Mankala
<Gist:
>Head Note:
?Cases referred:
1. AIR 1982 SC 913
2. 1993 (1) APLJ 36 (SC)
3. Order dt.25.02.2013 in CRP 6708 of 2003 and batch
4. 1995 Supp (2) SCC 3
5. (1996) 5 SCC 496
6. (1997) 6 SCC 277
7. 1995 (2) ALT 89
8. 1999 (4) ALD 113
9. 1999 (4) ALD 113
10. (2003) 9 SCC 525
11. (2005)10 SCC 603
12. 2009 (2) SCC 215
13. AIR 1979 SC 193
ORDER:
This Revision petition is filed u/s.21 of the A.P.Land Reforms (Ceiling
on Agricultural Holdings) Act, 1973 (for short 'the Act') challenging the Order
dt. 07.06.2003 in L.R.A.No.19 of 2001 of the Land Reforms Appellate Tribunal-
cum-II Additional District Judge, Sangareddy at Medak confirming the Order
dt.23.02.2001 of the Revenue Divisional Officer-cum- Land Reforms Tribunal,
Medak in C.C.No.9/YEL/91.
One Syed Ahmed Ali Khan was the owner and pattedar of land admeasuring
Acs.2168.42 cents at Hakimpet and Atchampet villages in Yeldurthi Mandal, Medak
District.
After his demise in 1960, the lands were apportioned among his legal
heirs as follows:
i) Syed Ikramuddin Ali Khan ....... Son ..... 16/40 share
ii) Syed Mohammed Ali Khan ...... Son .... 16/40 share
iii) Syed Azizunnissa Begum ...... Daughter ... 8/40 share.
The above three individuals executed an agreement of sale on 24.06.1960 agreeing
to sell the above land in favour of 33 purchasers (some of whom are petitioners herein) and delivered possession of the land to them.
Subsequently, Syed
Ikramuddin Ali Khan and Smt. Azizunnissa Begum, who together had 60% share in
the land, executed a registered sale deed being document No.406/1961 on
24.11.1961 in favor of the purchasers/petitioners after obtaining permission
u/s.47 and 48 of the A.P. (Telangana Area) Tenancy and Agricultural Lands Act,
1950.
But the other share holder Syed Mohammed Ali Khan, having 40% share, did not execute any sale deed in favour of the purchasers under the agreement of sale.
The purchasers continued to be in possession of the entire extent of land of Acs.2168.42 cents by virtue of the agreement of sale dt.24.06.1960.
After the Act came into force,
the vendors Syed Ikramuddin Ali Khan and
Azizunnissa Begum who had already alienated 60% of their share in the land did
not file any declarations under S.8 of the Act.
The 33 purchasers filed
declaration for the entire extent of Ac.2168.42 cts in their possession i.e.,
not only the 60% share in the above land purchased under the registered sale
deed dt.24.11.1961 but also the 40% share belonging to Syed Mohammed Ali Khan
pursuant to the agreement of sale dt.24.06.1960.
These declarations were
considered by the Land Reforms Tribunal/ competent authority under the Act and
orders were passed u/s.9 of the Act.
19 declarants/ purchasers were declared as
surplus land holders and consequently an extent of Ac.579.22 cts was taken over possession by the State out of Acs.2168.42 cts u/s.10 from them and distributed to landless poor.
Syed Mohammed Ali Khan, the 16/40th share holder (who had not executed the sale deed in favour of the 33 purchasers) filed declaration u/s.8 of the Act on 17.12.1991 in respect of his 40% share in the above land asC.C.No.9/Yeldurthy/91 on the file of the Land Reforms Tribunal i.e.,
16 years after the Act came into force.
Notices were issued calling for objections for which the 33 purchasers
filed objections.
The purchasers contended that Syed Mohammed Ali Khan was not
having any right or interest over the lands in question since the entire land
was purchased by them;
they had filed declarations for the entire land before
the Land Reforms Tribunal; and
19 of the purchasers were declared as surplus
holders and surplus land was also taken over by the Government;
consequently, the computation of their holding cannot be reopened or disturbed in any way.
The Land Reforms Tribunal-cum-Additional Revenue Divisional Officer, Land
Reforms Unit-II, Sangareddy vide proceedings dt.11.01.1993 came to the
conclusion that the declarant Syed Mohammed Ali Khan was in possession of
19.2459 SH and after deducting 1 SH the remaining extent of 18.2459 SH was
declared as surplus.
He rejected the objections of the purchasers and declared
that Syed Mohammed Ali Khan held excess land of 18.2459 SH as on 01.01.1975.
Challenging the above order, the objectors/purchasers filed L.R.A.No.210 of 1994
(Old No.3 of 1993) before the Land Reforms Appellate Tribunal, Medak District.
The said appeal was dismissed on 24.03.1995.
The purchasers filed C.R.P.No.1757 of 1995 before this Court against the order
dt.24.03.1995 in L.R.A.No.210/1994.
The Revision was allowed by order
dt.03.08.1999 remitting the matter to the Land Reforms Tribunal for fresh
consideration directing it to re-compute the holdings of Syed Mohammed Ali Khan
keeping in view the decisions of the Supreme Court in State of Andhra Pradesh Vs. Mohd. Ashrafuddin1 and State of Andhra Pradesh Vs. M.Lakshmi Devi 2 and also
taking into account the excess land already surrendered by the purchasers.
After remand, the Land Reforms Tribunal-cum-Revenue Divisional Officer, Medak
passed an order dt.23.02.2001 holding that Syed Mohammed Ali Khan was holding
excess land of 17.3220 SH ;
that the entire land of Acs.2168.42 cts was shown
in the declarations of the 33 purchasers;
when they were found to be in excess
of the ceiling limit, they had surrendered Ac.579.22 cts; out of this extent,
40% would come to Ac.231.68 cts;
this extent is to be reverted back to the
declarant Syed Mohammed Ali Khan and it would be deemed as land surrendered by him and would form part of the area for which he is declared as surplus holder under sub-section (4) of S.12 of the Act;
as per S.12(5) of the Act, the owner to whom possession of land reverts under sub-section (4) of S.12 shall be liable to discharge the claim enforceable against the land by person in possession;
and the land surrendered shall, if held as security, continue to be the security.
This was challenged by the petitioners in L.R.A.No.19 of 2001 before the Land
Reforms Appellate Tribunal-cum-II Additional District Judge, Sangareddy at Medak
District.
They contended that according to the computation made in relation to the declaration filed by Syed Mohammed Ali Khan in C.C.No.9/YEL/91, 1 SH was given to him; that they had purchased from Syed Mohammed Ali Khan, his brother
Syed Ikramuddin Ali Khan and his sister Syed Azizunnissa Begum under an agreement of sale dt.24.06.1960 the entire extent of Ac.2168.42 cts including the 40% share of Syed Mohammed Ali Khan; therefore the said 1 SH given to Syed
Mohammed Ali Khan shall revert from the Government to them;
land to the extent
of more than 1 SH was still available as it was not assigned to any one; and
therefore the order of the Tribunal dt.23.02.2001 may be set aside to that
extent.
By order dt.07.06.2003, L.R.A.No.19/2001 was dismissed holding that the purchasers were only agreement holders; that an agreement of sale does not of itself create title in their favour over the property which is said to have been purchased by them from Syed Mohammed Ali Khan; therefore, their contention that
1SH of land which was computed in favour of Syed Mohammed Ali Khan should be reverted to them does not stand legal scrutiny.
Aggrieved thereby, the present Revision is filed by the purchasers.
Heard Sri Raghuveer Reddy, counsel on behalf of Sri Goverdhan Reddy, counsel
for the petitioners and the Government Pleader for Arbitration for the State.
The Counsel for the petitioners contended that
the purchasers had already filed
declaration u/s.8 of the Act in respect of the entire extent of Ac.2168.42 cts;
it was computed to their holdings;
some of the purchasers are having less than
1SH and they are declared as non-surplus holders and 19 of them are declared as
surplus land holders;
an extent of Ac.579.22 cts was surrendered by them to the
State; they are in possession of only 1SH and the determination of their holding
pursuant to the declarations filed in 1975 by them had become final; neither the
State nor the vendor Syed Mohammed Ali Khan had challenged the same before any
forum under the Act;
after long lapse of more than 16 years in 1991, Syed
Mohammed Ali Khan filed declaration u/s.8 of the Act showing his 40% share of
the land; even this 40% share of Syed Mohammed Ali Khan was already considered
while computing the holding of the purchasers pursuant to the declarations filed
by them in 1975;
now the petitioners/purchasers who had already surrendered
excess land of Ac.579.22 cts have been directed to put the owner Syed Mohammed Ali Khan in possession of Ac.231.68 cts under the impugned orders of the L.R.A.T. and L.R.T. so as to enable Syed Mohammed Ali Khan to surrender it to the State;
this is not permissible in law in as much as the declarations filed
by the purchasers have already become final and the excess land was already taken possession; the petitioners are not holding any excess land beyond 1SH permitted under the Act and as such they cannot be directed to surrender any further extent of land; the LRT and LRAT did not consider the effect of S.12(4)
of the Act in proper perspective;
even the decision in Mohd. Ashrafiuddin's case
(1 supra) has not been considered; and
that Syed Mohammed Ali Khan had filed
suit for partition of the land which had been dismissed holding that he is not
entitled to any land.
They therefore contended that the orders of the LRT and
LRAT be set aside and the CRP allowed.
The 1st respondent filed a counter contending that the entire extent of
Ac.2168.42 cts belonging to Syed Mohammed Ali Khan, Syed Ikramuddin Ali Khan and
Syed Azizunnissa Begum was sold in favour of the 33 persons under an agreement
of sale dt.24.06.1960; all the purchasers who are in possession of the land from
the date of purchase have declared the entire land as per their shares in their
respective declarations under the Act in 1975 (at para-16 of the counter the
details of the declarations filed by the purchasers are mentioned); after
receipt of complaint and enquiry into the matter by a House Committee, Syed
Mohammed Ali Khan filed declaration in 1991 pursuant to a notice issued by Land
Reforms Tribunal in Ref.C.C.No.9/YEL/91 declaring 40% of the land out of
Ac.2168.42 cts declared by the 33 purchasers;
as the 33 purchasers have
obtained a sale deed dt.24.11.1961 only in respect of the 60% share held by Syed
Ikramuddin Ali Khan and Syed Azizunnissa Begum and there is no registered sale
deed for the balance 40% held by Syed Mohammed Ali Khan, this 40% area is
computed to both the owner and the purchasers correctly;
that Syed Mohammed Ali
Khan, though not in possession, will be taken to be a holder of the land for the
purpose of computation;
sub-section (4) of S.12 mandates that land surrendered
or deemed to have been surrendered by a person possessing agreement of sale shall revert back to the owner for the purpose of computation;
therefore 40% of
the area surrendered by the petitioners/purchasers will revert back to the owner
Syed Mohammed Ali Khan;
thus 40% of Ac.579.22 cts = Ac.231.68 cts would revert
back to the latter and will be deemed as the land surrendered by him.
He denied
that the State had reopened the cases of the petitioners/ purchasers and
contended that it had merely considered and determined the holdings of Syed
Mohammed Ali Khan and therefore the Revision should be dismissed.
The learned
Government pleader reiterated these contentions in his oral submissions.
I have noted the submissions of the respective parties.
In my view, the issues for consideration in this Revision are:
I. Whether in dealing with the holding of Syed Mohammed Ali Khan, the State is reopening the declarations filed by the purchasers/ petitioners in 1975 or in any way modifying the computation of holdings of such purchasers/petitioners ?
II. If so, whether under the law, such reopening of computation of holdings of the purchasers/petitioners is permissible ?
and
III. When there is no challenge to the computation of holdings of the purchasers/petitioners finalized in 1975 by way of appeal or otherwise, can the State, by way of collateral attack, be permitted to reopen the declarations/computation of holdings of the purchasers/ petitioners, in the guise of considering the computation of holding of Syed Mohammed Ali Khan ?
ISSUE No.I:
The effect of the impugned orders is that the purchasers/ petitioners who
had already surrendered Ac.579.22 cts (pursuant to the declarations filed by
them before the competent authority and the consequent computation of their
holdings in 1975 which had not been challenged by the State or Syed Mohammed Ali Khan at any time), are directed to put Syed Mohammed Ali Khan in possession of Ac.231.68 cts so that he may surrender the same to the State.
If the
petitioners are compelled to do so, it would result in the reduction of the land
in their holding already finalized in 1975 and they would be left holding less
land than what they were allowed to possess after computation of their holdings in 1975 by the competent authority under the Act.
Therefore, there is no doubt
that the computation of their holdings would get reopened and their entitlement
to hold land stands modified if the impugned orders were to be given effect.
Therefore, issue No.1 is answered against the State and in favour of the
petitioners.
ISSUE No.II:
This issue is no longer res-integra.
Recently, a Division Bench of this
Court in Gadda Balaiah and others v. The Joint Collector, Rangareddy District
and others3 (to which I was a party) considered a similar issue and held that
when once final determination of the holding has been completed and surplus land
held by the family of a declarant is finally determined, neither the declarant
nor any other person can be permitted to reverse the clock by raising fresh
points except in the manner provided in S.9-A of the Act.
S.9-A of the Act was introduced w.e.f.1.1.1973 by the Andhra Pradesh Land Reforms (Ceiling on Agricultural Holdings) (Amendment) Act, 2012 (Act 17 of 2012) retrospectively.
Sub-section (1) thereof permits re-opening of cases by
the LRT, notwithstanding anything repugnant to the provisions of the Ceiling
Act, either suo motu or on application or direction of the Collector, Chief
Commissioner of Land Administration or Government, if they were found to have
been passed due to any fraud or misrepresentation or suppression of facts in
situations where no subsequent orders are passed in appeal or revision on the
same.
Proviso to sub-section (1) empowers the LRT to either suo motu or on
application or direction of the Collector, Chief Commissioner of Land
Administration or Government, to review cases where orders (later confirmed in
appeal or revision) are found to have been passed due to any fraud or
misrepresentation or suppression of facts and pass orders for filing of review
petition against the orders in appeal or as the case may be the orders in
revision, in the Court or authority, which passed the orders.
Sub-section (2)
makes the provisions of Limitation Act, 1963 inapplicable for initiation of
action under sub-section (1).
This Court held that, except as provided in S.9-A, no power is available to re-
open proceedings which have attained finality that too, at the instance of
declarants or other affected parties. Except to the extent and in the manner
provided in S.9-A, no express power is conferred by the Ceiling Act to review
and reopen proceedings that have become final and no such power inheres in the
LRT nor could be inferred by implication. This Court held:
"30. In KISHANDAS KANHAIYALAL v. STATE OF MAHARASTRA4 (13 supra),
the appellant
was found to be holding surplus agricultural land under the Maharastra
Agricultural Lands (Ceiling on Holdings) Act, 1961. He contended that one Om
Prakash had crystalized his right to be a tenant in respect of a portion of the
appellant's land holding and that if that portion is excluded, the appellant
will not be a surplus landholder.
Supreme Court rejected the said contention
and held at paras 2 and 3 :
"2. We do not find any force in either of the contentions.
It is admitted in
his claim statement that he claimed ownership over all the properties. It is
also to be seen that when proceedings were initiated to determine surplus land,
Om Prakash sent a representation claiming the lands as tenant and when it was rejected, he allowed the proceedings to become final.
By side wind Om Prakash
initiated proceedings before the Mamlatdar under the Tenancy Act claiming to be a tenant.
In those proceedings State was not a party. He was found to be a tenant under the appellant and he was said to be in possession of lands.
It is
also claimed that the appellant filed an application before the competent
authority that Om Prakash was in unauthorised occupation and the authority found against the appellant.
3. On the above said facts,
it is contended that as Om Prakash was in
possession of the land and the appellant had no right over those lands under the
Tenancy Act, he lost his right as an owner.
Therefore, self same land cannot be
included as high holding. We do not find any force in this contention.
As seen,
all the proceedings were initiated by Om Prakash only after the appellant
submitted his statement claiming those properties. He allowed the orders made
under the Act rejecting his claim as tenant to become final.
The self same land
would not be excluded on the premise that Om Prakash became deemed owner/tenant
by operation of orders made under Tenancy Act.
Therefore, without going into the
legality of the finding recorded by the tribunals under Tenancy Act, the
appellant remains to be the owner so far as the Ceiling Act is concerned and,
therefore, the land cannot be excluded from his ownership or holding nor liberty
be given to surrender the land said to be in the possession of Om Prakash."
31. In UJAGAR SINGH AND OTHERS V. STATE OF PUNJAB AND OTHERS 5 (14 supra), the
Collector exercising powers under the PEPSU Tenancy and Agricultural Lands Act,
1955 determined surplus land of the respondents therein claiming through one
Inder Singh at 18.82 Standard Acres by proceedings dated 28.5.1960. The order
was not appealed.
Notice of surrender was given on 3.6.1961 calling upon the
respondents to deliver possession of the aforesaid surplus land within 10 days
from the date of the receipt of the notice.
In the meantime, possession of
surplus land was taken by the State under acknowledgment.
Subsequently,
consolidation proceedings took place in 1961-62 and it was found that the
declarant Inder Singh was having a lesser extent than the prescribed Standard
Acres under the Act.
So he filed an application before the authorities under the
Act to re-determine his holding. The application was rejected. He thereafter
filed a writ petition in the High Court which set aside Government orders on the
ground that he was found having lesser land than the prescribed Standard Acres
under the Act, as determined in consolidation proceedings. Therefore, the
surplus land was required to be re-determined and restituted. The State
challenged the same in the Supreme Court. The Supreme Court reversed and held
at para 4:
" The question is whether the view taken by the High Court is correct in law ?
When the standard acres which Inder Singh was entitled to retain were determined
and surplus land of an extent of 18.82 standard acres was determined by order
dated 28.5.1960, and that order having been allowed to become final, would it be
open to Inder Singh or any person claiming title through him to seek re-
determination ?
When they had not challenged the order and subsequently in the
consolidation proceedings he was found to hold less extent than the prescribed
standard holding, are they entitled to re-determination ?
We are of the
considered view that it is impermissible. It would be open to Inder Singh or any
person claiming title under him to have challenged the correctness of
determining surplus land by filing appeal before the appropriate forum.
Admittedly, no steps had been taken. On the other hand, the order was allowed to
become final and possession of the surplus land of 18.82 standard acres was
taken over as admitted by Inder Singh by proceedings dated 12.7.1961.
The land
was simultaneously redistributed to the landless persons as per the scheme of
the Government who are the appellants before this Court.
Having allowed that
order dated 28-5-1960 and the proceedings of delivery dated 12.7.1960 become
final, it would not be open to either Inder Singh or anybody on his behalf to
claim re-determination. The view of the High Court is clearly illegal."
(emphasis is added)
32. In KONDA VENUGOPALA RAJU v. STATE OF A.P.6(15 supra),
the petitioner
therein filed a declaration in respect of certain lands forming part of his
holdings and requested for exclusion of lands from his holdings. The LRT found
that the family of the declarant was holding surplus land in excess of the
ceiling area on the notified date. This was confirmed by the High Court in
revision. Thereafter, the petitioner was asked to surrender the excess land. He
filed an application before the Land Reforms Tribunal, Eluru seeking appointment
of a Commissioner stating that an extent of Ac.5.66 cents is non-agricultural
land and must be excluded from his holding. The LRT dismissed the application
and the same was confirmed by the High Court. The Supreme Court concurred and
held at para 5 :
"............Once the proceedings have become final and the landowner has been
declared to be in excess of the prescribed ceiling area of the land, then the
correctness of the same cannot be questioned once over. The surrender
proceedings are in the nature of execution of the surplus land declared by the
authorities. The declarant cannot set up a new plea or plead afresh that
declarant's lands are not agricultural lands and are, therefore, required to be
excluded from his holding. The reason is obvious that under Section 9, once the
order of determining the surplus land has become final, the person holding the
land in excess of the prescribed ceiling area is liable to surrender the excess
land held by him as enjoined under Section 10 of the Act. At that stage, there
is no further provision under the Act to reopen the order passed under Section 9
except to correct clerical or arithmetical mistakes. This new plea set up by the
declarant cannot be characterized either as a clerical or arithmetical mistake
but is simply an attempt to reopen the order of declaration of surplus land and
to have the compensation re-determined on the basis of new facts. It is
impermissible under the Act." (emphasis is added)
33. In Y. LALITHAMMA V. THE SPECIAL TAHSILDAR, LAND REFORMS, KURNOOL7 (25
supra), after adjudication by the LRT that a declarant was a surplus holder of
land under the Ceiling Act; lands were surrendered and accepted, her daughters
laid a claim that certain lands were given to them as 'Pasupu Kumkuma' gift and
should be excluded from the holding of the declarant. The LRT allowed the said
application but its order was set aside by the appellate Tribunal. The daughters
of the declarant challenged the same in the High Court. This Court held at para
2 :
"2. The learned counsel for the petitioner has contended that the correct
classification of the land could be gone into even now notwithstanding the
finality attained by the orders passed by the Tribunal determining the surplus
land as 1.1652 S.H. It is difficult to uphold this contention. Obviously,
successive petitions cannot be filed to reopen the matters which have become
final and it does not make any difference whether the dispute which is now
sought to be raised relates to the nature of the land or to some other aspect.
It is not as if there is any arithmetical or clerical mistake which needs to be
rectified under Rule 16(5). The so called mistake in the computation of the
holding which is now sought to be rectified is not of such a nature which would
fall within the purview of Rule 16(5). In fact, the determination of the
question depends upon an investigation of facts. Unless there is express power
conferred by the Act, the power to review and reopen the proceedings that have
become final does not in-here in the Tribunal nor can it be inferred by
implication. I do not therefore see any illegality in the order of the Land
Reforms Appellate Tribunal." (emphasis is added)
34. In PONNAM CHANDRASEKHAR RAO v. STATE OF A.P.8 (16 supra) was held at para
1 :
"When once the final determination of the holding has been completed and the
surplus land held by the family is finally determined, at the stage of surrender
proceedings, which are in the nature of execution proceedings, neither the
declarant nor any other person can be permitted to set the clock back by raising
fresh points from time to time. Otherwise, there can be no finality to the
proceedings and the very purpose of the Act will be defeated."
35. In MERLA (BOLLA) JOGAYAMMA AND ANOTHER V. STATE OF A.P. (17 supra), after
orders under S. 9 of the Ceiling Act were passed determining excess holdings of
declarants and the orders had become final, petitioners therein contended that
a portion of the said land should be excluded from their holdings under S. 23
(g) of the Ceiling Act on the ground that the said land was already donated to
the A.P. Bhoodan Yagna Board. The High Court held at para 6 as follows :
".....That the orders passed by the concerned Tribunals Under Section 9 of the
Land Reforms Act determining the excess holdings of the petitioners in both the
cases had become final and the declarants did not seek exclusion of the present
lands in dispute from their holdings on the ground that the said lands were
already donated to Bhoodan Yagna Board. It is also clear from the facts of these
cases that surrender proceedings were also initiated and the lands to be
surrendered by the declarants in both the cases towards their excess holdings
were also identified and steps were initiated for taking possession of such
lands by way of surrender towards their excess holdings. Inasmuch as the orders
determining the excess holdings of both the declarants had already become final,
it is not open to the declarants to raise the plea under Rule 16(7) of the Act
(sic. Rules) for exclusion of any land from their holdings during the course of
the surrender proceedings which were already initiated by the concerned
authorities under the Act."
36. In LAXAMA REDDY v. STATE OF A.P.9 (22 supra), after orders of the LRT
determining the holding of the declarants became final, declarants filed a
petition under Rule 16(5)(b) of the Rules under the Ceiling Act, for
rectification of an alleged mistake in the computation of their holding i.e.,
some portion of their land has to be excluded from their holding as it is
covered by a certificate u/s. 38-E of the Tenancy Act. This contention was
rejected by a Division Bench of this Court holding that if the primary Tribunal
committed a mistake in not deleting the land covered by S. 38-E of the Tenancy
Act, the declarants have to agitate the same in the appellate Tribunal or in the
revision petition before the High Court against the order of the appellate
Tribunal. At para 14, the Division Bench held :
"It is common knowledge that finality has to be attached to the judicial
proceedings at every stage unless the finding is challenged in the appropriate
forum. When the holding of the declarant was decided and when the said order was
permitted to become final, it is not known as to how the same can be questioned
in surrender proceedings and surrender proceedings shall be restricted only to
the points that are permitted to be raised in the said proceedings. During the
surrender proceedings also if the correctness or otherwise of the fixation of
the holding of the declarant was permitted to question, there can never be any
end or finality to the proceedings determining the holding of the declarant."
37. From the catena of unvarying binding authority referred to, it is clear
that when once final determination of the holding has been completed and surplus
land held by the family of a declarant finally determined, at the stage of
surrender proceedings, which are in the nature of execution proceedings, neither
the declarant nor any other person can be permitted to reverse the clock by
raising fresh points. Of course, these decisions were rendered before S.9-A was
introduced in 2012. We are of the view that (except to the extent and in the
manner provided in S.9-A, discussed above), no express power is conferred by the
Ceiling Act to review and reopen proceedings that have become final and no such
power inheres in the LRT nor could be inferred by implication. In the absence of
a power to re-open proceedings (which have attained finality after dismissal of
CRP Sr.24698 of 1976 by the High Court), dehors S.9-A of the Ceiling Act, they
cannot be reopened under any circumstances including on the ground that claims
of alleged protected tenants u/s.38-E of the Tenancy Act were not considered by
the LRT (before it declared Kastopa to be a surplus holder, by its order dated
9.12.1975).
38. The above conclusion of ours is fortified by the specific legislative
mandate in S. 20(3) of the Ceiling Act which enacts that orders passed by the
appellate tribunal are final subject to revision under Section 21 of the said
Act. The alleged protected tenants never challenged the order dated 09-12-1975
of the LRT by preferring any appeal therefrom to the Land Reforms Appellate
Tribunal and had allowed it to become final. Therefore on the dismissal of
C.R.P.S.R.No.24698 of 1976 on 28-04-1976, we hold the land ceiling proceedings
to be impregnable."
Therefore, I hold that the State cannot reopen the holdings of the
petitioners/purchasers under the guise of computing the holding of Syed Mohammed
Ali Khan and compel the petitioners to surrender Ac.231.68 cts to the State or
to Syed Mohammed Ali Khan. Admittedly the decisions in Mohd. Ashrafuddin (1
supra) and M.Lakshmi Devi (2 supra) were delivered in 1982 and 1993, long after
the holdings of the petitioners under the Act were computed in 1975 and had
attained finality.
Therefore, these decisions cannot be applied to reopen the
holdings of the petitioners/purchasers long afterwards in considering the
holding of Syed Mohammed Ali Khan (as was done in the order dt.03.08.1999 in
C.R.P.No.1757/1995).
The said order, in my opinion has to be treated as an
order passed coram non judice as it would result in review of the orders passed
by the competent authority under the Act computing the holdings of the
purchasers and reopening the computation of their holdings under the Act which
is impermissible and prohibited. This Court cannot, by such order, confer
jurisdiction which is non-existent on the Land Reforms Tribunal.
This issue is
also considered in the Judgment of this Court in Gadda Balaiah (3 supra). This court held :
"42. When adjudication by the Ceiling authorities as to the holding of the
declarant had attained finality and consequent immutability, in respect of the
lands surrendered and accepted by the State thereunder, authorities under the
Tenancy Act cannot grant certificates u/s.38-E of the Tenancy Act. If such
power is countenanced, the vesting u/s.11 as mandated by the Ceiling Act cannot
operate and there will be no finality to proceedings under S.9 of the Ceiling
Act.
43. In V. Swarajyalaxmi Vs. Authorized Officer, Land Reforms, Medak and Others10,
certain land was mortgaged to the State Bank of India by its owners
for obtaining loan.
Subsequently part of such land was held by the Land Reforms
Tribunal under the Ceiling Act to be surplus and liable to be surrendered to the
Government.
State Bank of India challenged the said order before the Land
Reforms Appellate Tribunal which allowed the appeal and remitted the matter to
the Land Reforms Tribunal.
The Tribunal confirmed its earlier order.
The Bank
thereafter filed a suit for realization of the mortgage money which was decreed.
It filed execution petitions for bringing the said property (part of which was
found surplus) to sale.
The Bank also challenged the order of the Land Reforms
Tribunal declaring the portion of land mortgaged to it by the owners as surplus
before the Land Reforms Appellate Tribunal.
The appellate Tribunal, under the
impression that under S.23 of the Ceiling Act, land mortgaged to the Bank was
exempt from provisions of the Ceiling Laws, permitted the Bank to proceed with
recovery of the money due to them against land which was found to be surplus at
the hands of the declarant.
The surplus land had already been taken over by the State under S. 11 of the Ceiling Act.
On the strength of the order passed by
the Land Reforms Appellate Tribunal, the Bank sought to bring the surplus land
under Court auction sale.
State opposed the sale contending that land which
was sought to be sold had already been surrendered by the declarants and had
vested in the States free from all encumbrances and was not liable to be sold
in Court auction sale.
The executing Court upheld the objection of the State
and held that S. 23 of the Ceiling Act did not apply and in view of S. 11 of the
Ceiling Act, the Bank could only have proceeded against the compensation amount,
if any, payable to the land owners.
The High Court held that the surrendered
lands would have to be distributed among landless poor persons as envisaged by
the Ceiling Act.
The Supreme Court held that the Bank, as mortgagee of the land
did not have any right to proceed against the property for realization of the
mortgage money.
It held that after vesting under S. 11 of the Ceiling Act,
declarants ceased to have any right or title over that land and that the Bank
could proceed only against other property of the owner.
This ratio applies to the present case proprio vigore.
44. We are therefore of the view, fortified by the curial authority referred to,
that notwithstanding observations in the order dt.25.1.1993 in W.A.No.1420 of
1987,
no jurisdiction is available to authorities under the Tenancy Act to grant certificates u/s.38-E of the Tenancy Act, in respect of lands which vested in the State u/s.11 of the Ceiling Act, on their surrender by the declarant Kastopa in 1975.
45. We hold that this Court in it's order dt.15.7.87 in W.P.4059 of 1982 and
in the order dt.25.1.1993 in W.A.1420/1987 had directed a Tribunal (under the
Tenancy Act), which had no jurisdiction to issue S.38-E certificates to persons
claiming to be protected tenants, in respect of lands surrendered by Kastopa to
the State on 13.10.1976. Therefore proceedings of the RDO, Chevella granting
certificates u/s.38-E of the Tenancy Act on 25.4.1995 are without jurisdiction,
void and inoperative.
46. In Gyanmandir Mahavidhyalaya Samity vs. Udailal Jaroli 11 (30 supra),
a
direction was obtained from the High Court for disposal of the appeal by the
Government, without bringing the factum of disposal of the said appeal to its
notice.
The Government passed fresh order in pursuance of such direction.
Thereafter, both aggrieved parties filed writ petitions, which were partly
allowed.
The matter was carried by way of SLP and was disposed of ex-parte.
On
the strength of the ex-parte order of the Supreme Court, a fresh appeal was
filed before the Chief Minister, which was allowed.
The same was challenged in a
writ petition, which was allowed.
In appeal, the Supreme Court held that the
jurisdiction of the Government having been derived from the statute, it is obliged to confine its jurisdiction within the four corners of the legislation and the Government had no jurisdiction to entertain a fresh appeal and the orders passed on the basis of illegal proceedings would be coram non-judice."
Therefore, the State cannot rely on the order dt.03.08.1999 in C.R.P.No.1757 of
1995 and contend that the said order, not having been challenged by the
petitioners, would bind them and preclude them from questioning it. As the said
order is coram non-judice, it is a nullity and would not operate as res judicata.
(CHANDRABHAI K.BHOIR VS. KRISHNA ARJUN BHOIR12, CHIEF JUSTICE OF A.P.
VS. L.V.A.DIKSHITULU13.
In view of the above, issue No.2 is also answered against the State and in
favour of the petitioners.
ISSUE No.III:
It is admitted by the State that it had not challenged the computation of
holdings of the purchasers/petitioners made in 1975 by the competent authority
under the Act.
Even Syed Mohammed Ali Khan had never challenged the computation
of holdings of the purchasers/petitioners at any time.
Therefore, neither he
nor the State can collaterally attack the same under the guise of computing the
holding of Syed Mohammed Ali Khan pursuant to the declaration filed by him in
1991.
This view is fortified by Gadda Balaiah (3 supra) wherein this Court held:
"No collateral attack permissible :
39. We also conclude that finality enjoined by Ceiling Act provisions to the
computation of holding of the declarant (in view of the order dated 6.4.1976 in
LRA No.10 of 1976 of the Land Reforms Appellate Tribunal which was confirmed in
CRP Sr.24698 of 1976) cannot be attacked or eviscerated collaterally, in
separate proceedings, at the instance of the declarant Kastopa or at even the
instance of the alleged protected tenants.
40. In Rafique Bibi Vs. Sayed Waliuddin (48 supra), the Supreme Court held at
para 8 p.291:
"A distinction exists between a decree passed by a Court having no jurisdiction and consequently being a nullity and not executable
and
a decree of the Court
which is merely illegal or not passed in accordance with the procedure laid down by law.
A decree suffering from illegality or irregularity of procedure, cannot be termed inexecutable by the executing Court;
the remedy of a person aggrieved by such a decree is to have set aside in a duly constituted legal proceedings or by a superior Court failing which he must obey the command of the decree..
A decree passed by a Court of competent jurisdiction cannot be denuded of its efficacy by any collateral attack or in incidental proceedings."(emphasis is added)
41. In the order dated 25.1.1993 in WA No.1420 of 1987, the Division Bench
observed
that there is no surrender by the alleged protected tenants (R-1 to R-24 therein);
that there is a statutory declaration of the ownership of lands
held by the protected tenants as per S. 38-E of the Tenancy Act which came into effect from 01-01-1973; and
that they acquired protected tenancy rights under S. 37-A and
that their rights under S. 38-E of the Tenancy Act were not extinguished.
While dealing with proceedings under the Ceiling Act,
the Bench no doubt said that those proceedings did not attain finality in view
of S.13 of the Ceiling Act;
that the declarant could not surrender the lands of
the respondents in the writ appeal as they had become owners by virtue of the statutory declaration; and proceedings under the Ceiling Act dated 9.12.1975 in respect of Kastopa are of "no consequence".
This Court however did not conclude or hold that the LRT, when it computed the excess holding of the declarant Kastopa in its order dated 09-12-1975 (which was confirmed by order dated 06-04- 1976 in L.R.A.No.10 of 1976 and later in order dated 28-04-1976 in
C.R.P.S.R.No.24698 of 1976), acted without inherent jurisdiction or that proceedings under the Ceiling Act were a nullity.
In our opinion, observations
of this Court in W.A.1920/1987 cannot be construed as nullifying the order dt.9.12.1975 of the LRT determining the holding of Kastopa (which was confirmed by the dismissal of the CRP.S.R.24698/1976).
If so construed, it would tantamount to permitting a collateral attack on the said orders which is impermissible.
Therefore the observations of this Court in WA.1920/1987 cannot
be availed by the alleged protected tenants or Kastopa to seek reopening of proceedings under the Ceiling Act in respect of the holding of Kastopa."
Therefore, this issue is also answered in favour of the petitioners and against
the State.
In view of the findings on issues 1 to 3 above, the Revision is allowed
and the orders dt.07.06.2003 in L.R.A.No.19/2001 of the Land Reforms Appellate
Tribunal-cum-II Additional District Judge, Sangareddy, Medak District confirming the order dt.23.02.2001 of the Land Reforms Tribunal-cum-Revenue Divisional
Officer, Medak are set aside.
However, this shall not preclude the State from
taking any action by invoking S.9-A of the Act introduced by the Andhra Pradesh
Land Reforms (Ceiling on Agricultural Holdings) (Amendment) Act, 2012, if it is
so advised. No costs.
__________________________________
JUSTICE M.S.RAMACHANDRA RAO
Date: 15-03-2013
THE HON'BLE SRI JUSTICE M.S.RAMACHANDRA RAO
CIVIL REVISION PETITION No. 5920 OF 2003
15.03.2013
Mandava Umamaheswara Rao and others
The Authorised Officer, Land Reforms Tribuna,and others
Counsel for the petitioners : Sri K.Govardhan Reddy
Counsel for respondent Nos.1 & 2: Government Pleader for Arbitration
Counsel for respondent Nos.3 to 7: Sri Yadagiri Reddy Mankala
<Gist:
>Head Note:
?Cases referred:
1. AIR 1982 SC 913
2. 1993 (1) APLJ 36 (SC)
3. Order dt.25.02.2013 in CRP 6708 of 2003 and batch
4. 1995 Supp (2) SCC 3
5. (1996) 5 SCC 496
6. (1997) 6 SCC 277
7. 1995 (2) ALT 89
8. 1999 (4) ALD 113
9. 1999 (4) ALD 113
10. (2003) 9 SCC 525
11. (2005)10 SCC 603
12. 2009 (2) SCC 215
13. AIR 1979 SC 193
ORDER:
This Revision petition is filed u/s.21 of the A.P.Land Reforms (Ceiling
on Agricultural Holdings) Act, 1973 (for short 'the Act') challenging the Order
dt. 07.06.2003 in L.R.A.No.19 of 2001 of the Land Reforms Appellate Tribunal-
cum-II Additional District Judge, Sangareddy at Medak confirming the Order
dt.23.02.2001 of the Revenue Divisional Officer-cum- Land Reforms Tribunal,
Medak in C.C.No.9/YEL/91.
One Syed Ahmed Ali Khan was the owner and pattedar of land admeasuring
Acs.2168.42 cents at Hakimpet and Atchampet villages in Yeldurthi Mandal, Medak
District.
After his demise in 1960, the lands were apportioned among his legal
heirs as follows:
i) Syed Ikramuddin Ali Khan ....... Son ..... 16/40 share
ii) Syed Mohammed Ali Khan ...... Son .... 16/40 share
iii) Syed Azizunnissa Begum ...... Daughter ... 8/40 share.
The above three individuals executed an agreement of sale on 24.06.1960 agreeing
to sell the above land in favour of 33 purchasers (some of whom are petitioners herein) and delivered possession of the land to them.
Subsequently, Syed
Ikramuddin Ali Khan and Smt. Azizunnissa Begum, who together had 60% share in
the land, executed a registered sale deed being document No.406/1961 on
24.11.1961 in favor of the purchasers/petitioners after obtaining permission
u/s.47 and 48 of the A.P. (Telangana Area) Tenancy and Agricultural Lands Act,
1950.
But the other share holder Syed Mohammed Ali Khan, having 40% share, did not execute any sale deed in favour of the purchasers under the agreement of sale.
The purchasers continued to be in possession of the entire extent of land of Acs.2168.42 cents by virtue of the agreement of sale dt.24.06.1960.
After the Act came into force,
the vendors Syed Ikramuddin Ali Khan and
Azizunnissa Begum who had already alienated 60% of their share in the land did
not file any declarations under S.8 of the Act.
The 33 purchasers filed
declaration for the entire extent of Ac.2168.42 cts in their possession i.e.,
not only the 60% share in the above land purchased under the registered sale
deed dt.24.11.1961 but also the 40% share belonging to Syed Mohammed Ali Khan
pursuant to the agreement of sale dt.24.06.1960.
These declarations were
considered by the Land Reforms Tribunal/ competent authority under the Act and
orders were passed u/s.9 of the Act.
19 declarants/ purchasers were declared as
surplus land holders and consequently an extent of Ac.579.22 cts was taken over possession by the State out of Acs.2168.42 cts u/s.10 from them and distributed to landless poor.
Syed Mohammed Ali Khan, the 16/40th share holder (who had not executed the sale deed in favour of the 33 purchasers) filed declaration u/s.8 of the Act on 17.12.1991 in respect of his 40% share in the above land asC.C.No.9/Yeldurthy/91 on the file of the Land Reforms Tribunal i.e.,
16 years after the Act came into force.
Notices were issued calling for objections for which the 33 purchasers
filed objections.
The purchasers contended that Syed Mohammed Ali Khan was not
having any right or interest over the lands in question since the entire land
was purchased by them;
they had filed declarations for the entire land before
the Land Reforms Tribunal; and
19 of the purchasers were declared as surplus
holders and surplus land was also taken over by the Government;
consequently, the computation of their holding cannot be reopened or disturbed in any way.
The Land Reforms Tribunal-cum-Additional Revenue Divisional Officer, Land
Reforms Unit-II, Sangareddy vide proceedings dt.11.01.1993 came to the
conclusion that the declarant Syed Mohammed Ali Khan was in possession of
19.2459 SH and after deducting 1 SH the remaining extent of 18.2459 SH was
declared as surplus.
He rejected the objections of the purchasers and declared
that Syed Mohammed Ali Khan held excess land of 18.2459 SH as on 01.01.1975.
Challenging the above order, the objectors/purchasers filed L.R.A.No.210 of 1994
(Old No.3 of 1993) before the Land Reforms Appellate Tribunal, Medak District.
The said appeal was dismissed on 24.03.1995.
The purchasers filed C.R.P.No.1757 of 1995 before this Court against the order
dt.24.03.1995 in L.R.A.No.210/1994.
The Revision was allowed by order
dt.03.08.1999 remitting the matter to the Land Reforms Tribunal for fresh
consideration directing it to re-compute the holdings of Syed Mohammed Ali Khan
keeping in view the decisions of the Supreme Court in State of Andhra Pradesh Vs. Mohd. Ashrafuddin1 and State of Andhra Pradesh Vs. M.Lakshmi Devi 2 and also
taking into account the excess land already surrendered by the purchasers.
After remand, the Land Reforms Tribunal-cum-Revenue Divisional Officer, Medak
passed an order dt.23.02.2001 holding that Syed Mohammed Ali Khan was holding
excess land of 17.3220 SH ;
that the entire land of Acs.2168.42 cts was shown
in the declarations of the 33 purchasers;
when they were found to be in excess
of the ceiling limit, they had surrendered Ac.579.22 cts; out of this extent,
40% would come to Ac.231.68 cts;
this extent is to be reverted back to the
declarant Syed Mohammed Ali Khan and it would be deemed as land surrendered by him and would form part of the area for which he is declared as surplus holder under sub-section (4) of S.12 of the Act;
as per S.12(5) of the Act, the owner to whom possession of land reverts under sub-section (4) of S.12 shall be liable to discharge the claim enforceable against the land by person in possession;
and the land surrendered shall, if held as security, continue to be the security.
This was challenged by the petitioners in L.R.A.No.19 of 2001 before the Land
Reforms Appellate Tribunal-cum-II Additional District Judge, Sangareddy at Medak
District.
They contended that according to the computation made in relation to the declaration filed by Syed Mohammed Ali Khan in C.C.No.9/YEL/91, 1 SH was given to him; that they had purchased from Syed Mohammed Ali Khan, his brother
Syed Ikramuddin Ali Khan and his sister Syed Azizunnissa Begum under an agreement of sale dt.24.06.1960 the entire extent of Ac.2168.42 cts including the 40% share of Syed Mohammed Ali Khan; therefore the said 1 SH given to Syed
Mohammed Ali Khan shall revert from the Government to them;
land to the extent
of more than 1 SH was still available as it was not assigned to any one; and
therefore the order of the Tribunal dt.23.02.2001 may be set aside to that
extent.
By order dt.07.06.2003, L.R.A.No.19/2001 was dismissed holding that the purchasers were only agreement holders; that an agreement of sale does not of itself create title in their favour over the property which is said to have been purchased by them from Syed Mohammed Ali Khan; therefore, their contention that
1SH of land which was computed in favour of Syed Mohammed Ali Khan should be reverted to them does not stand legal scrutiny.
Aggrieved thereby, the present Revision is filed by the purchasers.
Heard Sri Raghuveer Reddy, counsel on behalf of Sri Goverdhan Reddy, counsel
for the petitioners and the Government Pleader for Arbitration for the State.
The Counsel for the petitioners contended that
the purchasers had already filed
declaration u/s.8 of the Act in respect of the entire extent of Ac.2168.42 cts;
it was computed to their holdings;
some of the purchasers are having less than
1SH and they are declared as non-surplus holders and 19 of them are declared as
surplus land holders;
an extent of Ac.579.22 cts was surrendered by them to the
State; they are in possession of only 1SH and the determination of their holding
pursuant to the declarations filed in 1975 by them had become final; neither the
State nor the vendor Syed Mohammed Ali Khan had challenged the same before any
forum under the Act;
after long lapse of more than 16 years in 1991, Syed
Mohammed Ali Khan filed declaration u/s.8 of the Act showing his 40% share of
the land; even this 40% share of Syed Mohammed Ali Khan was already considered
while computing the holding of the purchasers pursuant to the declarations filed
by them in 1975;
now the petitioners/purchasers who had already surrendered
excess land of Ac.579.22 cts have been directed to put the owner Syed Mohammed Ali Khan in possession of Ac.231.68 cts under the impugned orders of the L.R.A.T. and L.R.T. so as to enable Syed Mohammed Ali Khan to surrender it to the State;
this is not permissible in law in as much as the declarations filed
by the purchasers have already become final and the excess land was already taken possession; the petitioners are not holding any excess land beyond 1SH permitted under the Act and as such they cannot be directed to surrender any further extent of land; the LRT and LRAT did not consider the effect of S.12(4)
of the Act in proper perspective;
even the decision in Mohd. Ashrafiuddin's case
(1 supra) has not been considered; and
that Syed Mohammed Ali Khan had filed
suit for partition of the land which had been dismissed holding that he is not
entitled to any land.
They therefore contended that the orders of the LRT and
LRAT be set aside and the CRP allowed.
The 1st respondent filed a counter contending that the entire extent of
Ac.2168.42 cts belonging to Syed Mohammed Ali Khan, Syed Ikramuddin Ali Khan and
Syed Azizunnissa Begum was sold in favour of the 33 persons under an agreement
of sale dt.24.06.1960; all the purchasers who are in possession of the land from
the date of purchase have declared the entire land as per their shares in their
respective declarations under the Act in 1975 (at para-16 of the counter the
details of the declarations filed by the purchasers are mentioned); after
receipt of complaint and enquiry into the matter by a House Committee, Syed
Mohammed Ali Khan filed declaration in 1991 pursuant to a notice issued by Land
Reforms Tribunal in Ref.C.C.No.9/YEL/91 declaring 40% of the land out of
Ac.2168.42 cts declared by the 33 purchasers;
as the 33 purchasers have
obtained a sale deed dt.24.11.1961 only in respect of the 60% share held by Syed
Ikramuddin Ali Khan and Syed Azizunnissa Begum and there is no registered sale
deed for the balance 40% held by Syed Mohammed Ali Khan, this 40% area is
computed to both the owner and the purchasers correctly;
that Syed Mohammed Ali
Khan, though not in possession, will be taken to be a holder of the land for the
purpose of computation;
sub-section (4) of S.12 mandates that land surrendered
or deemed to have been surrendered by a person possessing agreement of sale shall revert back to the owner for the purpose of computation;
therefore 40% of
the area surrendered by the petitioners/purchasers will revert back to the owner
Syed Mohammed Ali Khan;
thus 40% of Ac.579.22 cts = Ac.231.68 cts would revert
back to the latter and will be deemed as the land surrendered by him.
He denied
that the State had reopened the cases of the petitioners/ purchasers and
contended that it had merely considered and determined the holdings of Syed
Mohammed Ali Khan and therefore the Revision should be dismissed.
The learned
Government pleader reiterated these contentions in his oral submissions.
I have noted the submissions of the respective parties.
In my view, the issues for consideration in this Revision are:
I. Whether in dealing with the holding of Syed Mohammed Ali Khan, the State is reopening the declarations filed by the purchasers/ petitioners in 1975 or in any way modifying the computation of holdings of such purchasers/petitioners ?
II. If so, whether under the law, such reopening of computation of holdings of the purchasers/petitioners is permissible ?
and
III. When there is no challenge to the computation of holdings of the purchasers/petitioners finalized in 1975 by way of appeal or otherwise, can the State, by way of collateral attack, be permitted to reopen the declarations/computation of holdings of the purchasers/ petitioners, in the guise of considering the computation of holding of Syed Mohammed Ali Khan ?
ISSUE No.I:
The effect of the impugned orders is that the purchasers/ petitioners who
had already surrendered Ac.579.22 cts (pursuant to the declarations filed by
them before the competent authority and the consequent computation of their
holdings in 1975 which had not been challenged by the State or Syed Mohammed Ali Khan at any time), are directed to put Syed Mohammed Ali Khan in possession of Ac.231.68 cts so that he may surrender the same to the State.
If the
petitioners are compelled to do so, it would result in the reduction of the land
in their holding already finalized in 1975 and they would be left holding less
land than what they were allowed to possess after computation of their holdings in 1975 by the competent authority under the Act.
Therefore, there is no doubt
that the computation of their holdings would get reopened and their entitlement
to hold land stands modified if the impugned orders were to be given effect.
Therefore, issue No.1 is answered against the State and in favour of the
petitioners.
ISSUE No.II:
This issue is no longer res-integra.
Recently, a Division Bench of this
Court in Gadda Balaiah and others v. The Joint Collector, Rangareddy District
and others3 (to which I was a party) considered a similar issue and held that
when once final determination of the holding has been completed and surplus land
held by the family of a declarant is finally determined, neither the declarant
nor any other person can be permitted to reverse the clock by raising fresh
points except in the manner provided in S.9-A of the Act.
S.9-A of the Act was introduced w.e.f.1.1.1973 by the Andhra Pradesh Land Reforms (Ceiling on Agricultural Holdings) (Amendment) Act, 2012 (Act 17 of 2012) retrospectively.
Sub-section (1) thereof permits re-opening of cases by
the LRT, notwithstanding anything repugnant to the provisions of the Ceiling
Act, either suo motu or on application or direction of the Collector, Chief
Commissioner of Land Administration or Government, if they were found to have
been passed due to any fraud or misrepresentation or suppression of facts in
situations where no subsequent orders are passed in appeal or revision on the
same.
Proviso to sub-section (1) empowers the LRT to either suo motu or on
application or direction of the Collector, Chief Commissioner of Land
Administration or Government, to review cases where orders (later confirmed in
appeal or revision) are found to have been passed due to any fraud or
misrepresentation or suppression of facts and pass orders for filing of review
petition against the orders in appeal or as the case may be the orders in
revision, in the Court or authority, which passed the orders.
Sub-section (2)
makes the provisions of Limitation Act, 1963 inapplicable for initiation of
action under sub-section (1).
This Court held that, except as provided in S.9-A, no power is available to re-
open proceedings which have attained finality that too, at the instance of
declarants or other affected parties. Except to the extent and in the manner
provided in S.9-A, no express power is conferred by the Ceiling Act to review
and reopen proceedings that have become final and no such power inheres in the
LRT nor could be inferred by implication. This Court held:
"30. In KISHANDAS KANHAIYALAL v. STATE OF MAHARASTRA4 (13 supra),
the appellant
was found to be holding surplus agricultural land under the Maharastra
Agricultural Lands (Ceiling on Holdings) Act, 1961. He contended that one Om
Prakash had crystalized his right to be a tenant in respect of a portion of the
appellant's land holding and that if that portion is excluded, the appellant
will not be a surplus landholder.
Supreme Court rejected the said contention
and held at paras 2 and 3 :
"2. We do not find any force in either of the contentions.
It is admitted in
his claim statement that he claimed ownership over all the properties. It is
also to be seen that when proceedings were initiated to determine surplus land,
Om Prakash sent a representation claiming the lands as tenant and when it was rejected, he allowed the proceedings to become final.
By side wind Om Prakash
initiated proceedings before the Mamlatdar under the Tenancy Act claiming to be a tenant.
In those proceedings State was not a party. He was found to be a tenant under the appellant and he was said to be in possession of lands.
It is
also claimed that the appellant filed an application before the competent
authority that Om Prakash was in unauthorised occupation and the authority found against the appellant.
3. On the above said facts,
it is contended that as Om Prakash was in
possession of the land and the appellant had no right over those lands under the
Tenancy Act, he lost his right as an owner.
Therefore, self same land cannot be
included as high holding. We do not find any force in this contention.
As seen,
all the proceedings were initiated by Om Prakash only after the appellant
submitted his statement claiming those properties. He allowed the orders made
under the Act rejecting his claim as tenant to become final.
The self same land
would not be excluded on the premise that Om Prakash became deemed owner/tenant
by operation of orders made under Tenancy Act.
Therefore, without going into the
legality of the finding recorded by the tribunals under Tenancy Act, the
appellant remains to be the owner so far as the Ceiling Act is concerned and,
therefore, the land cannot be excluded from his ownership or holding nor liberty
be given to surrender the land said to be in the possession of Om Prakash."
31. In UJAGAR SINGH AND OTHERS V. STATE OF PUNJAB AND OTHERS 5 (14 supra), the
Collector exercising powers under the PEPSU Tenancy and Agricultural Lands Act,
1955 determined surplus land of the respondents therein claiming through one
Inder Singh at 18.82 Standard Acres by proceedings dated 28.5.1960. The order
was not appealed.
Notice of surrender was given on 3.6.1961 calling upon the
respondents to deliver possession of the aforesaid surplus land within 10 days
from the date of the receipt of the notice.
In the meantime, possession of
surplus land was taken by the State under acknowledgment.
Subsequently,
consolidation proceedings took place in 1961-62 and it was found that the
declarant Inder Singh was having a lesser extent than the prescribed Standard
Acres under the Act.
So he filed an application before the authorities under the
Act to re-determine his holding. The application was rejected. He thereafter
filed a writ petition in the High Court which set aside Government orders on the
ground that he was found having lesser land than the prescribed Standard Acres
under the Act, as determined in consolidation proceedings. Therefore, the
surplus land was required to be re-determined and restituted. The State
challenged the same in the Supreme Court. The Supreme Court reversed and held
at para 4:
" The question is whether the view taken by the High Court is correct in law ?
When the standard acres which Inder Singh was entitled to retain were determined
and surplus land of an extent of 18.82 standard acres was determined by order
dated 28.5.1960, and that order having been allowed to become final, would it be
open to Inder Singh or any person claiming title through him to seek re-
determination ?
When they had not challenged the order and subsequently in the
consolidation proceedings he was found to hold less extent than the prescribed
standard holding, are they entitled to re-determination ?
We are of the
considered view that it is impermissible. It would be open to Inder Singh or any
person claiming title under him to have challenged the correctness of
determining surplus land by filing appeal before the appropriate forum.
Admittedly, no steps had been taken. On the other hand, the order was allowed to
become final and possession of the surplus land of 18.82 standard acres was
taken over as admitted by Inder Singh by proceedings dated 12.7.1961.
The land
was simultaneously redistributed to the landless persons as per the scheme of
the Government who are the appellants before this Court.
Having allowed that
order dated 28-5-1960 and the proceedings of delivery dated 12.7.1960 become
final, it would not be open to either Inder Singh or anybody on his behalf to
claim re-determination. The view of the High Court is clearly illegal."
(emphasis is added)
32. In KONDA VENUGOPALA RAJU v. STATE OF A.P.6(15 supra),
the petitioner
therein filed a declaration in respect of certain lands forming part of his
holdings and requested for exclusion of lands from his holdings. The LRT found
that the family of the declarant was holding surplus land in excess of the
ceiling area on the notified date. This was confirmed by the High Court in
revision. Thereafter, the petitioner was asked to surrender the excess land. He
filed an application before the Land Reforms Tribunal, Eluru seeking appointment
of a Commissioner stating that an extent of Ac.5.66 cents is non-agricultural
land and must be excluded from his holding. The LRT dismissed the application
and the same was confirmed by the High Court. The Supreme Court concurred and
held at para 5 :
"............Once the proceedings have become final and the landowner has been
declared to be in excess of the prescribed ceiling area of the land, then the
correctness of the same cannot be questioned once over. The surrender
proceedings are in the nature of execution of the surplus land declared by the
authorities. The declarant cannot set up a new plea or plead afresh that
declarant's lands are not agricultural lands and are, therefore, required to be
excluded from his holding. The reason is obvious that under Section 9, once the
order of determining the surplus land has become final, the person holding the
land in excess of the prescribed ceiling area is liable to surrender the excess
land held by him as enjoined under Section 10 of the Act. At that stage, there
is no further provision under the Act to reopen the order passed under Section 9
except to correct clerical or arithmetical mistakes. This new plea set up by the
declarant cannot be characterized either as a clerical or arithmetical mistake
but is simply an attempt to reopen the order of declaration of surplus land and
to have the compensation re-determined on the basis of new facts. It is
impermissible under the Act." (emphasis is added)
33. In Y. LALITHAMMA V. THE SPECIAL TAHSILDAR, LAND REFORMS, KURNOOL7 (25
supra), after adjudication by the LRT that a declarant was a surplus holder of
land under the Ceiling Act; lands were surrendered and accepted, her daughters
laid a claim that certain lands were given to them as 'Pasupu Kumkuma' gift and
should be excluded from the holding of the declarant. The LRT allowed the said
application but its order was set aside by the appellate Tribunal. The daughters
of the declarant challenged the same in the High Court. This Court held at para
2 :
"2. The learned counsel for the petitioner has contended that the correct
classification of the land could be gone into even now notwithstanding the
finality attained by the orders passed by the Tribunal determining the surplus
land as 1.1652 S.H. It is difficult to uphold this contention. Obviously,
successive petitions cannot be filed to reopen the matters which have become
final and it does not make any difference whether the dispute which is now
sought to be raised relates to the nature of the land or to some other aspect.
It is not as if there is any arithmetical or clerical mistake which needs to be
rectified under Rule 16(5). The so called mistake in the computation of the
holding which is now sought to be rectified is not of such a nature which would
fall within the purview of Rule 16(5). In fact, the determination of the
question depends upon an investigation of facts. Unless there is express power
conferred by the Act, the power to review and reopen the proceedings that have
become final does not in-here in the Tribunal nor can it be inferred by
implication. I do not therefore see any illegality in the order of the Land
Reforms Appellate Tribunal." (emphasis is added)
34. In PONNAM CHANDRASEKHAR RAO v. STATE OF A.P.8 (16 supra) was held at para
1 :
"When once the final determination of the holding has been completed and the
surplus land held by the family is finally determined, at the stage of surrender
proceedings, which are in the nature of execution proceedings, neither the
declarant nor any other person can be permitted to set the clock back by raising
fresh points from time to time. Otherwise, there can be no finality to the
proceedings and the very purpose of the Act will be defeated."
35. In MERLA (BOLLA) JOGAYAMMA AND ANOTHER V. STATE OF A.P. (17 supra), after
orders under S. 9 of the Ceiling Act were passed determining excess holdings of
declarants and the orders had become final, petitioners therein contended that
a portion of the said land should be excluded from their holdings under S. 23
(g) of the Ceiling Act on the ground that the said land was already donated to
the A.P. Bhoodan Yagna Board. The High Court held at para 6 as follows :
".....That the orders passed by the concerned Tribunals Under Section 9 of the
Land Reforms Act determining the excess holdings of the petitioners in both the
cases had become final and the declarants did not seek exclusion of the present
lands in dispute from their holdings on the ground that the said lands were
already donated to Bhoodan Yagna Board. It is also clear from the facts of these
cases that surrender proceedings were also initiated and the lands to be
surrendered by the declarants in both the cases towards their excess holdings
were also identified and steps were initiated for taking possession of such
lands by way of surrender towards their excess holdings. Inasmuch as the orders
determining the excess holdings of both the declarants had already become final,
it is not open to the declarants to raise the plea under Rule 16(7) of the Act
(sic. Rules) for exclusion of any land from their holdings during the course of
the surrender proceedings which were already initiated by the concerned
authorities under the Act."
36. In LAXAMA REDDY v. STATE OF A.P.9 (22 supra), after orders of the LRT
determining the holding of the declarants became final, declarants filed a
petition under Rule 16(5)(b) of the Rules under the Ceiling Act, for
rectification of an alleged mistake in the computation of their holding i.e.,
some portion of their land has to be excluded from their holding as it is
covered by a certificate u/s. 38-E of the Tenancy Act. This contention was
rejected by a Division Bench of this Court holding that if the primary Tribunal
committed a mistake in not deleting the land covered by S. 38-E of the Tenancy
Act, the declarants have to agitate the same in the appellate Tribunal or in the
revision petition before the High Court against the order of the appellate
Tribunal. At para 14, the Division Bench held :
"It is common knowledge that finality has to be attached to the judicial
proceedings at every stage unless the finding is challenged in the appropriate
forum. When the holding of the declarant was decided and when the said order was
permitted to become final, it is not known as to how the same can be questioned
in surrender proceedings and surrender proceedings shall be restricted only to
the points that are permitted to be raised in the said proceedings. During the
surrender proceedings also if the correctness or otherwise of the fixation of
the holding of the declarant was permitted to question, there can never be any
end or finality to the proceedings determining the holding of the declarant."
37. From the catena of unvarying binding authority referred to, it is clear
that when once final determination of the holding has been completed and surplus
land held by the family of a declarant finally determined, at the stage of
surrender proceedings, which are in the nature of execution proceedings, neither
the declarant nor any other person can be permitted to reverse the clock by
raising fresh points. Of course, these decisions were rendered before S.9-A was
introduced in 2012. We are of the view that (except to the extent and in the
manner provided in S.9-A, discussed above), no express power is conferred by the
Ceiling Act to review and reopen proceedings that have become final and no such
power inheres in the LRT nor could be inferred by implication. In the absence of
a power to re-open proceedings (which have attained finality after dismissal of
CRP Sr.24698 of 1976 by the High Court), dehors S.9-A of the Ceiling Act, they
cannot be reopened under any circumstances including on the ground that claims
of alleged protected tenants u/s.38-E of the Tenancy Act were not considered by
the LRT (before it declared Kastopa to be a surplus holder, by its order dated
9.12.1975).
38. The above conclusion of ours is fortified by the specific legislative
mandate in S. 20(3) of the Ceiling Act which enacts that orders passed by the
appellate tribunal are final subject to revision under Section 21 of the said
Act. The alleged protected tenants never challenged the order dated 09-12-1975
of the LRT by preferring any appeal therefrom to the Land Reforms Appellate
Tribunal and had allowed it to become final. Therefore on the dismissal of
C.R.P.S.R.No.24698 of 1976 on 28-04-1976, we hold the land ceiling proceedings
to be impregnable."
Therefore, I hold that the State cannot reopen the holdings of the
petitioners/purchasers under the guise of computing the holding of Syed Mohammed
Ali Khan and compel the petitioners to surrender Ac.231.68 cts to the State or
to Syed Mohammed Ali Khan. Admittedly the decisions in Mohd. Ashrafuddin (1
supra) and M.Lakshmi Devi (2 supra) were delivered in 1982 and 1993, long after
the holdings of the petitioners under the Act were computed in 1975 and had
attained finality.
Therefore, these decisions cannot be applied to reopen the
holdings of the petitioners/purchasers long afterwards in considering the
holding of Syed Mohammed Ali Khan (as was done in the order dt.03.08.1999 in
C.R.P.No.1757/1995).
The said order, in my opinion has to be treated as an
order passed coram non judice as it would result in review of the orders passed
by the competent authority under the Act computing the holdings of the
purchasers and reopening the computation of their holdings under the Act which
is impermissible and prohibited. This Court cannot, by such order, confer
jurisdiction which is non-existent on the Land Reforms Tribunal.
This issue is
also considered in the Judgment of this Court in Gadda Balaiah (3 supra). This court held :
"42. When adjudication by the Ceiling authorities as to the holding of the
declarant had attained finality and consequent immutability, in respect of the
lands surrendered and accepted by the State thereunder, authorities under the
Tenancy Act cannot grant certificates u/s.38-E of the Tenancy Act. If such
power is countenanced, the vesting u/s.11 as mandated by the Ceiling Act cannot
operate and there will be no finality to proceedings under S.9 of the Ceiling
Act.
43. In V. Swarajyalaxmi Vs. Authorized Officer, Land Reforms, Medak and Others10,
certain land was mortgaged to the State Bank of India by its owners
for obtaining loan.
Subsequently part of such land was held by the Land Reforms
Tribunal under the Ceiling Act to be surplus and liable to be surrendered to the
Government.
State Bank of India challenged the said order before the Land
Reforms Appellate Tribunal which allowed the appeal and remitted the matter to
the Land Reforms Tribunal.
The Tribunal confirmed its earlier order.
The Bank
thereafter filed a suit for realization of the mortgage money which was decreed.
It filed execution petitions for bringing the said property (part of which was
found surplus) to sale.
The Bank also challenged the order of the Land Reforms
Tribunal declaring the portion of land mortgaged to it by the owners as surplus
before the Land Reforms Appellate Tribunal.
The appellate Tribunal, under the
impression that under S.23 of the Ceiling Act, land mortgaged to the Bank was
exempt from provisions of the Ceiling Laws, permitted the Bank to proceed with
recovery of the money due to them against land which was found to be surplus at
the hands of the declarant.
The surplus land had already been taken over by the State under S. 11 of the Ceiling Act.
On the strength of the order passed by
the Land Reforms Appellate Tribunal, the Bank sought to bring the surplus land
under Court auction sale.
State opposed the sale contending that land which
was sought to be sold had already been surrendered by the declarants and had
vested in the States free from all encumbrances and was not liable to be sold
in Court auction sale.
The executing Court upheld the objection of the State
and held that S. 23 of the Ceiling Act did not apply and in view of S. 11 of the
Ceiling Act, the Bank could only have proceeded against the compensation amount,
if any, payable to the land owners.
The High Court held that the surrendered
lands would have to be distributed among landless poor persons as envisaged by
the Ceiling Act.
The Supreme Court held that the Bank, as mortgagee of the land
did not have any right to proceed against the property for realization of the
mortgage money.
It held that after vesting under S. 11 of the Ceiling Act,
declarants ceased to have any right or title over that land and that the Bank
could proceed only against other property of the owner.
This ratio applies to the present case proprio vigore.
44. We are therefore of the view, fortified by the curial authority referred to,
that notwithstanding observations in the order dt.25.1.1993 in W.A.No.1420 of
1987,
no jurisdiction is available to authorities under the Tenancy Act to grant certificates u/s.38-E of the Tenancy Act, in respect of lands which vested in the State u/s.11 of the Ceiling Act, on their surrender by the declarant Kastopa in 1975.
45. We hold that this Court in it's order dt.15.7.87 in W.P.4059 of 1982 and
in the order dt.25.1.1993 in W.A.1420/1987 had directed a Tribunal (under the
Tenancy Act), which had no jurisdiction to issue S.38-E certificates to persons
claiming to be protected tenants, in respect of lands surrendered by Kastopa to
the State on 13.10.1976. Therefore proceedings of the RDO, Chevella granting
certificates u/s.38-E of the Tenancy Act on 25.4.1995 are without jurisdiction,
void and inoperative.
46. In Gyanmandir Mahavidhyalaya Samity vs. Udailal Jaroli 11 (30 supra),
a
direction was obtained from the High Court for disposal of the appeal by the
Government, without bringing the factum of disposal of the said appeal to its
notice.
The Government passed fresh order in pursuance of such direction.
Thereafter, both aggrieved parties filed writ petitions, which were partly
allowed.
The matter was carried by way of SLP and was disposed of ex-parte.
On
the strength of the ex-parte order of the Supreme Court, a fresh appeal was
filed before the Chief Minister, which was allowed.
The same was challenged in a
writ petition, which was allowed.
In appeal, the Supreme Court held that the
jurisdiction of the Government having been derived from the statute, it is obliged to confine its jurisdiction within the four corners of the legislation and the Government had no jurisdiction to entertain a fresh appeal and the orders passed on the basis of illegal proceedings would be coram non-judice."
Therefore, the State cannot rely on the order dt.03.08.1999 in C.R.P.No.1757 of
1995 and contend that the said order, not having been challenged by the
petitioners, would bind them and preclude them from questioning it. As the said
order is coram non-judice, it is a nullity and would not operate as res judicata.
(CHANDRABHAI K.BHOIR VS. KRISHNA ARJUN BHOIR12, CHIEF JUSTICE OF A.P.
VS. L.V.A.DIKSHITULU13.
In view of the above, issue No.2 is also answered against the State and in
favour of the petitioners.
ISSUE No.III:
It is admitted by the State that it had not challenged the computation of
holdings of the purchasers/petitioners made in 1975 by the competent authority
under the Act.
Even Syed Mohammed Ali Khan had never challenged the computation
of holdings of the purchasers/petitioners at any time.
Therefore, neither he
nor the State can collaterally attack the same under the guise of computing the
holding of Syed Mohammed Ali Khan pursuant to the declaration filed by him in
1991.
This view is fortified by Gadda Balaiah (3 supra) wherein this Court held:
"No collateral attack permissible :
39. We also conclude that finality enjoined by Ceiling Act provisions to the
computation of holding of the declarant (in view of the order dated 6.4.1976 in
LRA No.10 of 1976 of the Land Reforms Appellate Tribunal which was confirmed in
CRP Sr.24698 of 1976) cannot be attacked or eviscerated collaterally, in
separate proceedings, at the instance of the declarant Kastopa or at even the
instance of the alleged protected tenants.
40. In Rafique Bibi Vs. Sayed Waliuddin (48 supra), the Supreme Court held at
para 8 p.291:
"A distinction exists between a decree passed by a Court having no jurisdiction and consequently being a nullity and not executable
and
a decree of the Court
which is merely illegal or not passed in accordance with the procedure laid down by law.
A decree suffering from illegality or irregularity of procedure, cannot be termed inexecutable by the executing Court;
the remedy of a person aggrieved by such a decree is to have set aside in a duly constituted legal proceedings or by a superior Court failing which he must obey the command of the decree..
A decree passed by a Court of competent jurisdiction cannot be denuded of its efficacy by any collateral attack or in incidental proceedings."(emphasis is added)
41. In the order dated 25.1.1993 in WA No.1420 of 1987, the Division Bench
observed
that there is no surrender by the alleged protected tenants (R-1 to R-24 therein);
that there is a statutory declaration of the ownership of lands
held by the protected tenants as per S. 38-E of the Tenancy Act which came into effect from 01-01-1973; and
that they acquired protected tenancy rights under S. 37-A and
that their rights under S. 38-E of the Tenancy Act were not extinguished.
While dealing with proceedings under the Ceiling Act,
the Bench no doubt said that those proceedings did not attain finality in view
of S.13 of the Ceiling Act;
that the declarant could not surrender the lands of
the respondents in the writ appeal as they had become owners by virtue of the statutory declaration; and proceedings under the Ceiling Act dated 9.12.1975 in respect of Kastopa are of "no consequence".
This Court however did not conclude or hold that the LRT, when it computed the excess holding of the declarant Kastopa in its order dated 09-12-1975 (which was confirmed by order dated 06-04- 1976 in L.R.A.No.10 of 1976 and later in order dated 28-04-1976 in
C.R.P.S.R.No.24698 of 1976), acted without inherent jurisdiction or that proceedings under the Ceiling Act were a nullity.
In our opinion, observations
of this Court in W.A.1920/1987 cannot be construed as nullifying the order dt.9.12.1975 of the LRT determining the holding of Kastopa (which was confirmed by the dismissal of the CRP.S.R.24698/1976).
If so construed, it would tantamount to permitting a collateral attack on the said orders which is impermissible.
Therefore the observations of this Court in WA.1920/1987 cannot
be availed by the alleged protected tenants or Kastopa to seek reopening of proceedings under the Ceiling Act in respect of the holding of Kastopa."
Therefore, this issue is also answered in favour of the petitioners and against
the State.
In view of the findings on issues 1 to 3 above, the Revision is allowed
and the orders dt.07.06.2003 in L.R.A.No.19/2001 of the Land Reforms Appellate
Tribunal-cum-II Additional District Judge, Sangareddy, Medak District confirming the order dt.23.02.2001 of the Land Reforms Tribunal-cum-Revenue Divisional
Officer, Medak are set aside.
However, this shall not preclude the State from
taking any action by invoking S.9-A of the Act introduced by the Andhra Pradesh
Land Reforms (Ceiling on Agricultural Holdings) (Amendment) Act, 2012, if it is
so advised. No costs.
__________________________________
JUSTICE M.S.RAMACHANDRA RAO
Date: 15-03-2013
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