THE HONBLE SRI JUSTICE P. NAVEEN RAO
WRIT PETITION No.33159 of 1997
09-03-2015
Ithagani Lachaiah, S/o. Mallaiah, Aged about 50 years, Cultivation, R/o.
Indurthi Village, Marriguda Mandal, Nalgonda District & 2 others ....
Petitioners
The Joint Collector & Additional District Magistrate, Nalgonda & 10 others ..
Respondents
Counsel for Petitioners:Sri P. Venkateswara Rao
Counsel for Respondents:Learned Government
Pleader for Revenue for
Respondent Nos.1, 2 and 15
Sri P. Ramakrishna Reddy, learned
counsel for Respondent Nos.3 to 10
<GIST:
>HEAD NOTE :
? Cases referred :
1. (1998) 9 Supreme Court Cases 183
2. 2005 (5) ALD 9
3. AIR 1989 SUPREME COURT 1753
4. 2010 (2) ALD 1 (SC)
5. 2010 (6) ALD 748 (DB)
6. 2015 (1) Supreme 298
7. (2003) 7 Supreme Court Cases 667
8. AIR 1989 Supreme Court 1753
HONBLE SRI JUSTICE P.NAVEEN RAO
WRIT PETITION No.33159 of 1997
09-03-2015
The Court made the following:
ORDER:
The land to an extent of Ac. 19.13 guntas in Survey Nos.202,
203, 204, 205, 213 and 214 of Indurthy Village in Marriguda Mandal,
Nalgonda District, belong to Kishan Rao and Srinivas Rao.
Nallabothu Komaraiah was the tenant of the above extent of land.
Maddi Somaiah is nephew of Nallabothu Komaraiah. From out of this
Ac. 19.13 guntas, Nallabothu Komaraiah gave Maddi Somaiah
possession and enjoyment of Ac. 8.00 guntas of land in Survey
No.202. The case of the petitioners is that Nallabothu Komaraiah has
expressed no objection for grant of certificate under Section 50-B of
the Andhra Pradesh (Telangana Area) Tenancy and Agricultural lands
Act, 1950 (for short, the Act) validating possession of land in favour
of Maddi Somaiah. Accordingly, on 21.03.1972, the Tahsildar,
Deverkonda, issued Certificate under Section 50-B of the Act in favour
of Maddi Somaiah. The passbooks were issued to Maddi Somaiah.
In the year 1984, Nallabothu Lingaiah, who is the son of Nallabothu
Komaraiah, applied for issuance of certificate under Section 38-E of
the Act. On the said application filed by Nallabothu Lingaiah, the
Additional Revenue Divisional Officer (LR), Nalgonda, granted
certificate under Section 38-E of the Act vide his proceedings
No.236/DVK78 in the year 1978 in favour of Nallabothu Komaraiah to
an extent of Ac. 10.00 guntas in Survey Nos.202, 203, 204, 205, 213
and 214 of Indurthy Village, Devarakonda Taluq, Nalgonda District.
Insofar as Survey No.202 is concerned, the extent of land covered by
certificate under Section 38-E of the Act was Ac. 4.12 guntas. On
19.04.1984, the petitioners herein purchased Ac. 8.00 of land in
Survey No.202 from Maddi Somaiah. The petitioners are in
possession and enjoyment of the said land. They dug bore well. The
land was brought into cultivation and now cultivation is regularly
undertaken. The petitioners have approached the commercial banks
for obtaining loans for the purpose of development and cultivation.
2. While so, on 24.07.1993, Nallabothu Lingaiah filed an
application before the Mandal Revenue Officer, Marriguda, under
Section 32 of the Act claiming to be the protected tenant for the
entire extent of Ac. 19.13 guntas in the above survey numbers and
to restore possession to the entire extent of land. The Mandal
Revenue Officer, by his proceedings Case No.B/2281/1993, dated
04.04.1994, rejected the claim of the applicant for grant of
possession to the entire extent of land i.e., Ac. 19.13 guntas and
declared that the applicant is entitled to possession only to an
extent of Ac. 10.00 guntas covered by Certificate under Section 38-E
of the Act and the petitioners herein are entitled to possession and
enjoyment of Ac. 8.00 guntas in Survey No.202. Aggrieved by the
said order of the Mandal Revenue Officer, the 3rd respondent filed
appeal before the first respondent i.e., the Joint Collector and
Additional District Magistrate, Nalgonda. The Joint Collector passed
orders vide proceedings No.C3/JC/TA/11/94, dated 20.10.1997, by
allowing the appeal filed by the 3rd respondent. The Joint Collector
and Additional District Magistrate, Nalgonda, declared that the said
land is a tenancy land and ordered restoration of possession in
favour of protected tenant, the legal heir of which protected tenant
is the 3rd respondent in the writ petition. Aggrieved thereby, this
writ petition is instituted.
3. Heard Sri P. Venkateswara Rao, learned counsel for the
petitioners, learned Assistant Government Pleader for Revenue
(Telangana) for Respondent Nos.1, 2 and 15 and
Sri P. Ramakrishna Reddy, learned counsel for Respondent Nos.3 to
10.
4. Learned counsel for the petitioners contends that the
vendor of the petitioner was validly issued Section 50-B certificate
and such certificate was in force when the petitioners purchased the
land and is still in force. The said certificate is not annulled. The
third respondent has not filed appeal against the issuance of Section
50-B certificate and, therefore, the order has become final. The
petitioners are bona fide purchasers. Having verified Section 50-B
certificate, the Ryotu Pass Book and the revenue records, the
petitioners purchased the land, developed the land for cultivation
and have been cultivating. The petitioners as well as the third
respondent reside in the same village and their lands are adjacent
lands. The third respondent was aware of issuance of Section 50-B
certificate in favour of Maddi Somaiah and the purchase made by the
petitioners in the year 1984. The third respondent was aware of the
development and cultivation undertaken by the petitioners and,
therefore, it is not permissible for him to raise an objection on the
possession and enjoyment by the petitioners and resorting to
provision contained in Section 32 of the Act for restoration of
possession. The application for restoration of possession was not
made bona fidely. It is made only to harass and humiliate the
petitioners. Such an issue was raised after more than 25 years.
5. Learned counsel for the petitioners further contends
that the Joint Collector, erred in not appreciating that the
application for restoration of possession was made after long lapse
of time i.e., 25 years from the date of issuance of Section 50-B
certificate. In fact the vendor of the petitioners was in possession
much prior to issuance of Section 50-B certificate as evident from
the document of the year 1955, which was part of the record before
the Mandal Revenue Officer, Marriguda. It disclose that the sale
consideration was received by Sri Nallabothu Komaraiah before
handing over possession of the land and, thus, the document of 1955
is an evidence to show that the vendor of the petitioners has been in
possession from the year 1955 onwards. The Joint Collector,
however, has not appreciated that within a reasonable time the
third respondent ought to have approached him for grant of
restoration of possession and the third respondent, being the
resident of the same village and having full knowledge of the
possession and enjoyment by the vendor, obtaining of Section 50-B
certificate by the vendor and sale of the land to the petitioners,
knowingly kept quiet all along.
6. Learned counsel for the petitioners further contends
that the several contentions raised before the Joint Collector were
not appreciated. It was also contended that against an order under
Section 50-B, an appeal lies under Section 90 of the Act, but no such
appeal was filed and the order under Section 50-B has become final
and thus, the application for restoration is not maintainable.
Learned counsel for the petitioners further contends that Section 50-
B certificate was not issued at the instance of the original owner of
the property. It was issued as per the understanding made between
the petitioners and the protected tenant. The tenant expressed no
objection before the Tahsildar, which is evident from the reading of
the certificate issue under Section 50-B. Learned counsel for the
petitioners further submits that the appeal under Section 90 of the
Act is not maintainable on the facts of this case. It is applicable
only in case of surrender made by the protected tenant in favour of
the owner.
7. In support of his contentions, the learned counsel for
the petitioners relied on the following decisions:
1. Kotaiah and another Vs. The Property Association of
the Baptist Churches (Pvt.) Ltd.
[AIR 1989 Supreme Court 1753]
2. Joint Collector, Rangareddy District and others Vs. P.
Harinath Reddy and others
[2009 (4) ALT 1 (D.B.)]
3. Ibrahimpatnam Taluk Vyavasaya Cooli Sangham Vs. K.
Suresh Reddy and others
[(2003) 7 Supreme Court Cases 667]
4. Ponnala Narsing Rao Vs. Nallolla Pantaiah and others
[(1998) 9 Supreme Court Cases 183]
5. A. Narasimha Vs. A. Krishna and others
[2005 (5) ALD 9]
6. Bheemati Dawood Vs. Madichetty Rachaiah and others
[2004 (3) ALD 798]
7. Ibrahimpatnam Taluk Vyavasaya Cooli Sangam, Rep. by
its General Secretary Vs. K. Suresh Reddy and others
[1996 (2) ALD 945 (D.B.)]
8. V. Shantha Kumari and others Vs. District Revenue
Officer and Additional District Magistrate, Ranga Reddy
District and other [2003 (2) ALD 330]
9. Jt. Collector Ranga Reddy Dist. & Anr. Etc. Vs. D.
Narsing Rao & Ors. Etc. Etc. [2015 (1) Supreme 298]
8. Learned counsel for the third respondent contends that
Nallabothu Komaraiah was the protected tenant and the rights of the
protected tenants are protected by the Andhra Pradesh (Telangana
Area) Tenancy and Agricultural lands Act, 1950, and the protected
tenant is entitled to restoration of possession under Section 32 of
the Act at any time. Section 32 of the Act does not prescribe time
limit to make a claim for restoration of possession. Under Section 32
of the Act the protected tenant can claim at any time restoration of
possession and once such an application is filed, it is mandatory for
the competent authority to restore possession of the land on which
he is a protected tenant. Law does not recognize consent given by a
protected tenant. Whoever is in possession has to be evicted and
possession be restored to protected tenant.
9. Learned counsel for the third respondent further
contends that Late Nallabothu Komaraiah never executed any
document in favour of Maddi Somaiah and no statement was
recorded by the Tahsildar, Deverkonda, from the grand father of the
third respondent and Section 50-B certificate was issued behind the
back of the petitioners and at the instance of the original land
owners. That certificate is not binding on the 3rd respondent and
the rights are vested in the 3rd respondent as legal heir of protected
tenant and is entitled to seek restoration of possession.
10. Learned counsel for the third respondent further
contends that since 1975, the family of the protected tenant have
been fighting with the land owners and because of problem created
by owners, immediately the 3rd respondent could not take steps to
seek restoration of possession and as soon as those issues are
resolved, application under Section 32 of the Act was made. There
was no lapse on the part of the third respondent in agitating his
grievance and asking for restoration of possession. The third
respondent disputes the claim of the petitioners about spending
money for developing the land and cultivating the land. Learned
counsel for the third respondent further submits that the petitioners
are having huge extent of land and they have grown fruit bearing
plants in those lands.
11. Learned counsel for the third respondent submits that
the decisions relied upon by the learned counsel for the petitioners
are distinguishable. Conditions weighed with the Supreme Court in
Ponnala Narsing Rao Vs. Nallolla Pantaiah and others are not
attracted in this case. Learned counsel for the third respondent
further submits that the decision of this Court in A. Narasimha Vs.
A. Krishna and others is also distinguishable. In that case, the
protected tenant gave consent to his son and he was also a witness
for the transaction and, therefore, he had clear knowledge of what
was happening. In this case, there was no such consent.
12. The other judgments relied upon by the learned
counsel for the petitioners relate to the exercise of power vested in
an authority by a statute within reasonable time. As held by the
Supreme Court, the Andhra Pradesh (Telangana Area) Tenancy and
Agricultural lands Act, 1950, is a welfare legislation. Provisions of
the said Act have to be construed liberally and in favour of the
protected tenant. The interest of the protected tenants are
required to be protected; otherwise the very purpose of the
enactment would be defeated. Having realised that the tenants are
being thrown out of their lands; displaced by illegal means resorted
by the original owners and other vested interest, provision is made
in Section 32 of the Act vesting right in the protected tenant to seek
restoration of possession and, thus, the principle laid down in the
various judgments relied upon by the learned counsel for the
petitioners cannot be applied, as it would amount to defeating the
claim of the protected tenants.
13. Learned counsel for the third respondent further
submits that there is no provision for protected tenant to surrender
to a third party his right to enjoy the property as a protected
tenant. He can only enjoy the property as a protected tenant until
certificate under Section 38-E of the Act is issued and thus, even if
there was a consent for issuing 50-B certificate, the same is not valid
and it cannot be enforced against the third respondent.
14. Learned counsel for the third respondent relied on
decisions in Kotaiah and another Vs. The Property Association of
the Baptist Churches Pvt. Ltd. and Edukanti Kistamma (dead)
Thr. LRs. and others Vs. S. Venkatareddy (dead) Thr. LRs. and
others .
15. Learned Government Pleader justified the order of the
Joint Collector. Since Late Nallabothu Komaraiah was a protected
tenant, his legal heirs are entitled to claim restoration of possession
of tenancy land and in Section 32 of the Act, consciously time limit
is not prescribed. Thus, a protected tenant can claim possession at
any time.
16. The relevant facts are not in dispute. The grand father
of the third respondent Late Sri Nallabothu Komaraiah was the
protected tenants to an extent of Ac. 19.13 guntas of land in Survey
Nos.202, 203, 204, 205, 213 and 214 of Indurthy Village in Marriguda
Mandal, Nalgonda District. The father of the third respondent was
granted certificate under Section 38-E of the Act only to an extent
of Ac. 10.00 guntas in the year 1978. Much before the issuance of
Section 38-E certificate, the vendor of the petitioner was issued
Section 50-B certificate. In 1984 the 50-B certificate holder sold the
land in favour of the petitioners. The petitioners have been
cultivating and in enjoyment of the said property. It is also not in
dispute that the total extent of land in Survey No.202 was Ac. 12.12
guntas; out of this extent Ac. 4.12 guntas was covered by Section 38-
E certificate issued in favour of the father of the 3rd respondent and
Ac. 8.00 guntas was covered by Section 50-B certificate issued to the
vendor of the petitioners. The above extents of land are adjacent to
each other and the petitioners as well as the third respondent are
residents of the same village and are cultivating the adjacent lands.
It is also admitted fact that Maddi Somaiah is a nephew of
Nallabothu Komaraiah. This would show that the family of the
protected tenant was aware of Ac. 8.00 guntas of land being enjoyed
and being in possession by Maddi Somaiah much before the issuance
of Section 50-B certificate and after purchase made by the
petitioners, the petitioners are in possession and enjoyment of the
said property.
17. The issue for consideration is whether the claim of the
third respondent for restoration of possession as protected tenant to
an extent of Ac. 8.00 guntas in Survey No.202 is hit by delay and
laches? and whether the Joint Collector was right in granting
restoration of possession by his orders impugned in the writ petition,
dated 20.10.1997, on an application filed on 24.07.1993 from out of
which the appeal was filed before him ?
18. Relying on the precedents on the subject, the learned
counsel for the petitioners vehemently contended that the
application for restoration of possession having been filed after 25
years from the date of issuance of Section 38-E certificate in favour
of the third respondent and much later to issuance of Section 50-B
certificate in favour of Late Maddi Somaiah ought to have been
rejected on the ground of delay and laches.
19. The stand of the learned counsel for the 3rd respondent
is that Section 32 of the Act has to be liberally construed and as it
does not prescribe any limitation, as long as a person retains his
status as protected tenant, he is entitled to claim restoration of
possession.
20. Thus, assuming that valuable right is vested in the
protected tenant under Section 32 of the Act, is it open to the
protected tenant to claim restoration of possession at any time
without regard to the series of events that have taken place in the
meantime.
21. Section 32 of the Act reads as under:
Section 32: Procedure of taking possession-
(1) A tenant or an agricultural labourer or artisan entitled to
possession of any land or dwelling house under any of the
provisions of this Act may apply to the Tahsildar in writing in the
prescribed form for such possession.
(2) No landlord shall obtain possession of any land or dwelling house
held by a tenant except under an order of the Tahsildar, for which
he shall apply in the prescribed form.
(3) On receipt of an application under sub-sec. (1) or sub-sec. (2) the
Tahsildar shall, after holding an enquiry pass such order thereon as
he deems fit.
(4) Any person taking possession of any land or dwelling house
otherwise than in accordance with the provisions of sub-section (1)
or sub-section (2), as the case may be, shall, without prejudice to
his liability to the penalty provided in Section 96, be liable to
forfeiture of the crops, if any, grown on the land to the payment
of such costs as may be awarded by the Tahsildar or by the
Collector on appeal from the Tahsildar.
22. Reading of Section 32 makes it clear that no time limit
is prescribed to file an application seeking restoration by a
protected tenant.
23. There is no quarrel with the principle that the
protected tenant is entitled to possession and enjoyment of the
property once he is declared as a protected tenant and he cannot be
displaced from said land without following the mandate of the Act
and if the protected tenant was displaced either by the owner or by
any other person, by resorting to provision under Section 32 of the
Act, the possession of the protected tenant can be restored.
However, in the facts of this case was such power validly invoked
having regard to inordinate delay and subsequent developments
after dispossession ?
24. Learned counsel for the 3rd respondent placed reliance
on decision of the Supreme Court in Edukanti Kistammas Case
(4 Supra) to emphasis that the Act 1950 being the beneficial
legislation requires interpretation to advance social and economic
justice and enforce constitutional directives and not to deprive a
person of his right to property. He, therefore, contends that
provision in Section 32 of the Act should not be construed in a
narrow and pedantic manner and introduce time constraint on
exercise of such power.
25. On the scope of the availing of statutory remedies for
enforcement of the rights vested in a statute, the principle of law is
well settled. The settled principle of law is that such right has to be
availed within a reasonable time and if a person does not avail the
remedies provided by the statute for enforcement of the rights
vested by the statute within reasonable time, the claim cannot be
granted. What is reasonable time depends on the facts and
circumstances of each case. Following precedents highlight this
principle.
26. In Joint Collector, R.R. District, Hyderabad and
another Vs. D. Narasing Rao and others , the Division Bench of
this Court held that Suo motu exercise of revisional jurisdiction
under Section 166-B of the Andhra Pradesh (Telangana Area) Land
Revenue Act, 1317 Fasli after long lapse of time. In that case, 50
years held as not valid. In the said provision, no time limit is
prescribed to exercise such power. The said decision of this Court
was affirmed by the Supreme Court in Jt. Collector Ranga Reddy
Dist. & Anr. Etc. Vs. D. Narsing Rao & Ors. Etc. Etc. . The
Supreme Court reviewed long line of precedents on the scope of
exercise of power though statutory authority is vested with
unlimited powers in several enactments after inordinate delay and
when such provision has not prescribed time limit to exercise the
power, the Supreme Court held as under:
No time limit is prescribed in the above Regulation for
the exerecise of suo motu power but the question is as to
whether the suo motu power could be exercised after a period of
50 years. The Government as early as in the year 1991 passed
order reserving 477 acres of land in Survey Nos.36 and 37 Of
Gopanpally village for house-sites to the government employees.
In other words the Government had every occasion to verify the
revenue entries pertaining to the said lands while passing the
Government Order dated 24.9.1991 but no exception was taken
to the entries found. Further the respondents herein filed Writ
Petition No.21719 of 1997 challenging the Government Order
dated 24.9.1991 and even at that point of time no action was
initiated pertaining to the entries in the said survey numbers.
Thereafter, the purchasers of land from respondent Nos.1 and 2
herein filed a civil suit in O.S.No.12 of 2001 on the file of
Additional District Judge, Ranga Reddy District praying for a
declaration that they were lawful owners and possessors of
certain plots of land in survey No.36, and after contest, the suit
was decreed and said decree is allowed to become final. By the
impugned Notice dated 31.12.2004 the suo motu revision power
under Regulation 166B referred above is sought to be exercised
after five decades and if it is allowed to do so it would lead to
anomalous position leading to uncertainty and complications
seriously affecting the rights of the parties over immovable
properties.
In the light of what is stated above we are of the view
that the Division Bench of the High Court was right in affirming
the view of the learned single Judge of the High Court that the
suo motu revision undertaken after a long lapse of time, even in
the absence of any period of limitation was arbitrary and
opposed to the concept of rule of law.
27. While concurring with the view taken by Justice Sri C.
Nagappan, Justice T.S. Thakur held as under:
To sum up, delayed exercise of revisional jurisdiction is
frowned upon because if actions or transactions were to remain
forever open to challenge, it will mean avoidable and endless
uncertainty in human affairs, which is not the policy of law.
Because, even when there is no period of limitation prescribed
for exercise of such powers, the intervening delay, may have led
to creation of third party rights that cannot be trampled by a
belated exercise of a discretionary power especially when no
cogent explanation for the delay is in sight. Rule of law it is said
must run closely with the rule of life. Even in cases where the
orders sought to be revised are fraudulent, the exercise of power
must be within a reasonable period of the discovery of fraud.
Simply describing an act or transaction to be fraudulent will not
extend the time for its correction to infinity; for otherwise the
exercise of revisional power would itself be tantamount to a
fraud upon the statute that vests such power in an authority.
28. The principle laid down in Jt. Collector Ranga Reddy
Dist. (5 Supra) by the Division Bench was followed by another
Division Bench in Joint Collector, Rangareddy District and others
Vs. P. Harinath Reddy and others. One of the issues for
consideration was whether order of resumption of assigned land on
the ground of violation of Section 3 of the AP Assigned Lands
(Prohibition of Transfers) Act, 1977, can be passed after long lapse
of time. Following the decision of Supreme Court in Ponnala
Narsing Raos Case (1 Supra), Division Bench of this Court held that
it is not permissible to exercise power of resumption after long lapse
of time. In that case, it was 40 years.
29. In Ibrahimpatnam Taluk Vyavasaya Coolie Sangham
Vs. K. Suresh Reddy and others , the exercise of suo motu power
under Section 50-B(4) of the Andhra Pradesh (Telangana Area)
Tenancy and Agricultural Lands Act, 1950, was in issue. Such power
was invoked to cancel validation certificates issued 13 to 15 years
after issuance thereof and 10 years after insertion of Section 50-B(4)
of the Act. This was held to be bad. In Ponnala Narsing Raos
Case (1 Supra), the issue considered by the Supreme Court was with
reference to the filing of an application under Section 32 of the Act.
It was contended that after unreasonable delay, such an application
was filed and the same ought to have been dismissed. Upholding
such contentions, the Supreme Court held as under:
So far as the second contention is concerned, it is true
that though no express period of limitation is provided for filing
application under Section 32 of the Act, such applications have
to be moved within reasonable time. It may be because of such
belated applications, the other side may stand adversely
affected. It may have changed its position in the meantime.
Equities may have arisen in his favour, he may have spent large
amounts on land by improving it. But all these questions have to
be pleaded and proved. Surprisingly, no such contention was
ever canvassed much less tried to be proved on any equitable
ground by the petitioner. Therefore, this second contention on
the facts of the present case cannot be sustained. It has also to
be noted that no plea of adverse possession was put forward by
the petitioner in support of his case.
30. The very same provisions of this enactment have come
up for consideration again in this Court in A. Narasimhas Case
(2 Supra). Order directing restoration of possession in exercise of
power under Section 32 of the Act was considered. This Court
emphasized that if a possession is enjoyed by third party with the
acquiescence and approval of a protected tenant or his successors,
the application for restoration under Section 32 of the Act is
impermissible. This Court held that the principle of estoppel and
acquiescence are equally applicable to the proceedings under
Section 32 of the Act. If the protected tenant inducts himself the
third party and vests possession of the property or a party to the
transaction directly or indirectly subscribes such transfers, he cannot
turn around or fall back on provisions contained in Section 32 of the
Act. This Court held that if such a course of action is permitted, the
whole object of the Act becomes defeated and become a tool in the
hands of indiscriminate persons, to take innocent purchasers for a
ride. In that case, the sale took place in the year 1952 at the
instance of the protected tenant and the protected tenant had the
knowledge and approval of such sale. In that case, there was a
delay of 30 years.
31. The decisions relied upon by the learned counsel for
the third respondent has no application to the facts of the case. In
Kotaiah and another Vs. The Property Association of the Baptist
Churches (Pvt.) Ltd. , the issue for consideration was can a
protected tenant holding Section 38-E certificate be dispossessed by
the owner of the land holding that tenancy was duly terminated and
the assignee has no right to possess the land and that the respondent
association was the owner as held by the Tahsildar on 28.11.1977.
The said decision of the Tahsildar was upheld by the appellate
authority and by this Court in the revision petition filed under
Section 91 of the Act. The Supreme Court held that protected
tenant has a right to become full owner and, therefore, their
tenancy cannot be terminated. It is further held that protected
tenant cannot be dispossessed illegally either by the landlord or
anybody else. If so dispossessed, the Tahsildar has to exercise
power under Section 32 of the Act. That case does not deal with
delay in invoking power under Section 32 of the Act.
32. In the instant case, the dispute is not between the
owner and the tenant. The dispute is between protected tenant, his
nephew and the purchasers of the land from the nephew. He was
not illegally dispossessed. No doubt right is vested in a protected
tenant for possession and enjoyment of tenancy lands and primary
objective of the Act is to protect the interest of the protected
tenant. But, merely because the right is vested in a protected
tenant, he cannot keep quiet, allow others to enjoy the property
and sleep over the said right and wake up after long lapse of time
without regard to the subsequent developments and apply for
enforcement of the provision under Section 32 of the Act.
33. In the several decisions relied upon by the learned
counsel for the petitioners, uniformly it is held that whenever there
is inordinate delay in invoking the provisions of a statute, an
application should be rejected on that ground alone. Principle
reiterated from time and again that even if no time limit is
prescribed in the statute for exercise of power, such power has to be
exercised within reasonable time and what is reasonable time
depends on the facts of each case. In the cases discussed above, the
delay in filing an application for suo moto exercise of power ranged
between five years in one case to 12 to 15 years in another case and
delay of 20 years and more in other cases. The Supreme Court held
it is unreasonable to exercise power in such cases.
34. In the instant case, as noticed above, the vendor of the
petitioners was granted Section 50-B certificate on 21.03.1972.
When the father of the third respondent applied for certificate
under Section 38-E, he was conscious that his father was the
protected tenant for Ac. 19.13 cents. When the competent
authority restricted issuance of certificate under Section 38-E to Ac.
10.00 guntas, he did not protest and even after issuance of Section
38-E certificate, he kept quiet. Section 90 of the Act vests power to
prefer an appeal against any order or decision taken by the
designated authority. Thus, appeal lies against a certificate issued
under Section 50-B of the Act. Section 90 read with Section 93 of
the Act prescribes time of 60 days to file such appeal. He has not
filed appeal against the order under Section 50-B certificate, dated
24.07.1973. Assuming that the third respondent had no knowledge
of issuance of Section 50-B certificate, he should have been alarmed
when in the Section 38-E certificate the extent of land mentioned
was only Ac. 10.00 guntas and more so, only Ac. 4.12 guntas was
covering survey No.202 leaving the other Ac.8.00 guntas. He never
protested when third parties were cultivating the land even
assuming that he was not aware of the sale made by Maddi Somaiah
to the petitioners in the year 1984. For the first time, he filed an
application on 24.07.1993 for restoration of possession. Thus, as
noted by this Court in A.Narasimhas Case (2 Supra), the third
respondent is acquiesced of the transactions made earlier,
acquiesced of the purchase made by the petitioners and their
possession and enjoyment of the said land. Therefore, he is
estopped from filing an application for restoration of possession
under Section 32 of the Act, more particularly, after long lapse of
time.
35. In the facts of this case, it cannot be said that the
application for restoration of possession under Section 32 of the Act
was filed within a reasonable time. Thus, the order of the Joint
Collector restoring possession is not sustainable. The order is also
not sustainable for the reason that the Joint Collector has not
assigned reasons for entertaining such application after long lapse of
time. However, in the counter affidavit, such decision is sought to
be supported by saying that no time limit has been prescribed in the
Act and, therefore, the power has been validly exercised. The order
of quasi- judicial authority must contain reasons in support of the
decision and cannot be supplemented by way of an affidavit in the
writ Court when a challenge is made. Having regard to the above
discussion and findings, the order impugned in the writ petition is
set aside.
36. Accordingly, the Writ Petition is allowed. There shall
be no order as to costs. Miscellaneous Petitions, if any, pending in
this writ petition shall stand closed.
______________________
JUSTICE P.NAVEEN RAO
Date: 9th March, 2015
WRIT PETITION No.33159 of 1997
09-03-2015
Ithagani Lachaiah, S/o. Mallaiah, Aged about 50 years, Cultivation, R/o.
Indurthi Village, Marriguda Mandal, Nalgonda District & 2 others ....
Petitioners
The Joint Collector & Additional District Magistrate, Nalgonda & 10 others ..
Respondents
Counsel for Petitioners:Sri P. Venkateswara Rao
Counsel for Respondents:Learned Government
Pleader for Revenue for
Respondent Nos.1, 2 and 15
Sri P. Ramakrishna Reddy, learned
counsel for Respondent Nos.3 to 10
<GIST:
>HEAD NOTE :
? Cases referred :
1. (1998) 9 Supreme Court Cases 183
2. 2005 (5) ALD 9
3. AIR 1989 SUPREME COURT 1753
4. 2010 (2) ALD 1 (SC)
5. 2010 (6) ALD 748 (DB)
6. 2015 (1) Supreme 298
7. (2003) 7 Supreme Court Cases 667
8. AIR 1989 Supreme Court 1753
HONBLE SRI JUSTICE P.NAVEEN RAO
WRIT PETITION No.33159 of 1997
09-03-2015
The Court made the following:
ORDER:
The land to an extent of Ac. 19.13 guntas in Survey Nos.202,
203, 204, 205, 213 and 214 of Indurthy Village in Marriguda Mandal,
Nalgonda District, belong to Kishan Rao and Srinivas Rao.
Nallabothu Komaraiah was the tenant of the above extent of land.
Maddi Somaiah is nephew of Nallabothu Komaraiah. From out of this
Ac. 19.13 guntas, Nallabothu Komaraiah gave Maddi Somaiah
possession and enjoyment of Ac. 8.00 guntas of land in Survey
No.202. The case of the petitioners is that Nallabothu Komaraiah has
expressed no objection for grant of certificate under Section 50-B of
the Andhra Pradesh (Telangana Area) Tenancy and Agricultural lands
Act, 1950 (for short, the Act) validating possession of land in favour
of Maddi Somaiah. Accordingly, on 21.03.1972, the Tahsildar,
Deverkonda, issued Certificate under Section 50-B of the Act in favour
of Maddi Somaiah. The passbooks were issued to Maddi Somaiah.
In the year 1984, Nallabothu Lingaiah, who is the son of Nallabothu
Komaraiah, applied for issuance of certificate under Section 38-E of
the Act. On the said application filed by Nallabothu Lingaiah, the
Additional Revenue Divisional Officer (LR), Nalgonda, granted
certificate under Section 38-E of the Act vide his proceedings
No.236/DVK78 in the year 1978 in favour of Nallabothu Komaraiah to
an extent of Ac. 10.00 guntas in Survey Nos.202, 203, 204, 205, 213
and 214 of Indurthy Village, Devarakonda Taluq, Nalgonda District.
Insofar as Survey No.202 is concerned, the extent of land covered by
certificate under Section 38-E of the Act was Ac. 4.12 guntas. On
19.04.1984, the petitioners herein purchased Ac. 8.00 of land in
Survey No.202 from Maddi Somaiah. The petitioners are in
possession and enjoyment of the said land. They dug bore well. The
land was brought into cultivation and now cultivation is regularly
undertaken. The petitioners have approached the commercial banks
for obtaining loans for the purpose of development and cultivation.
2. While so, on 24.07.1993, Nallabothu Lingaiah filed an
application before the Mandal Revenue Officer, Marriguda, under
Section 32 of the Act claiming to be the protected tenant for the
entire extent of Ac. 19.13 guntas in the above survey numbers and
to restore possession to the entire extent of land. The Mandal
Revenue Officer, by his proceedings Case No.B/2281/1993, dated
04.04.1994, rejected the claim of the applicant for grant of
possession to the entire extent of land i.e., Ac. 19.13 guntas and
declared that the applicant is entitled to possession only to an
extent of Ac. 10.00 guntas covered by Certificate under Section 38-E
of the Act and the petitioners herein are entitled to possession and
enjoyment of Ac. 8.00 guntas in Survey No.202. Aggrieved by the
said order of the Mandal Revenue Officer, the 3rd respondent filed
appeal before the first respondent i.e., the Joint Collector and
Additional District Magistrate, Nalgonda. The Joint Collector passed
orders vide proceedings No.C3/JC/TA/11/94, dated 20.10.1997, by
allowing the appeal filed by the 3rd respondent. The Joint Collector
and Additional District Magistrate, Nalgonda, declared that the said
land is a tenancy land and ordered restoration of possession in
favour of protected tenant, the legal heir of which protected tenant
is the 3rd respondent in the writ petition. Aggrieved thereby, this
writ petition is instituted.
3. Heard Sri P. Venkateswara Rao, learned counsel for the
petitioners, learned Assistant Government Pleader for Revenue
(Telangana) for Respondent Nos.1, 2 and 15 and
Sri P. Ramakrishna Reddy, learned counsel for Respondent Nos.3 to
10.
4. Learned counsel for the petitioners contends that the
vendor of the petitioner was validly issued Section 50-B certificate
and such certificate was in force when the petitioners purchased the
land and is still in force. The said certificate is not annulled. The
third respondent has not filed appeal against the issuance of Section
50-B certificate and, therefore, the order has become final. The
petitioners are bona fide purchasers. Having verified Section 50-B
certificate, the Ryotu Pass Book and the revenue records, the
petitioners purchased the land, developed the land for cultivation
and have been cultivating. The petitioners as well as the third
respondent reside in the same village and their lands are adjacent
lands. The third respondent was aware of issuance of Section 50-B
certificate in favour of Maddi Somaiah and the purchase made by the
petitioners in the year 1984. The third respondent was aware of the
development and cultivation undertaken by the petitioners and,
therefore, it is not permissible for him to raise an objection on the
possession and enjoyment by the petitioners and resorting to
provision contained in Section 32 of the Act for restoration of
possession. The application for restoration of possession was not
made bona fidely. It is made only to harass and humiliate the
petitioners. Such an issue was raised after more than 25 years.
5. Learned counsel for the petitioners further contends
that the Joint Collector, erred in not appreciating that the
application for restoration of possession was made after long lapse
of time i.e., 25 years from the date of issuance of Section 50-B
certificate. In fact the vendor of the petitioners was in possession
much prior to issuance of Section 50-B certificate as evident from
the document of the year 1955, which was part of the record before
the Mandal Revenue Officer, Marriguda. It disclose that the sale
consideration was received by Sri Nallabothu Komaraiah before
handing over possession of the land and, thus, the document of 1955
is an evidence to show that the vendor of the petitioners has been in
possession from the year 1955 onwards. The Joint Collector,
however, has not appreciated that within a reasonable time the
third respondent ought to have approached him for grant of
restoration of possession and the third respondent, being the
resident of the same village and having full knowledge of the
possession and enjoyment by the vendor, obtaining of Section 50-B
certificate by the vendor and sale of the land to the petitioners,
knowingly kept quiet all along.
6. Learned counsel for the petitioners further contends
that the several contentions raised before the Joint Collector were
not appreciated. It was also contended that against an order under
Section 50-B, an appeal lies under Section 90 of the Act, but no such
appeal was filed and the order under Section 50-B has become final
and thus, the application for restoration is not maintainable.
Learned counsel for the petitioners further contends that Section 50-
B certificate was not issued at the instance of the original owner of
the property. It was issued as per the understanding made between
the petitioners and the protected tenant. The tenant expressed no
objection before the Tahsildar, which is evident from the reading of
the certificate issue under Section 50-B. Learned counsel for the
petitioners further submits that the appeal under Section 90 of the
Act is not maintainable on the facts of this case. It is applicable
only in case of surrender made by the protected tenant in favour of
the owner.
7. In support of his contentions, the learned counsel for
the petitioners relied on the following decisions:
1. Kotaiah and another Vs. The Property Association of
the Baptist Churches (Pvt.) Ltd.
[AIR 1989 Supreme Court 1753]
2. Joint Collector, Rangareddy District and others Vs. P.
Harinath Reddy and others
[2009 (4) ALT 1 (D.B.)]
3. Ibrahimpatnam Taluk Vyavasaya Cooli Sangham Vs. K.
Suresh Reddy and others
[(2003) 7 Supreme Court Cases 667]
4. Ponnala Narsing Rao Vs. Nallolla Pantaiah and others
[(1998) 9 Supreme Court Cases 183]
5. A. Narasimha Vs. A. Krishna and others
[2005 (5) ALD 9]
6. Bheemati Dawood Vs. Madichetty Rachaiah and others
[2004 (3) ALD 798]
7. Ibrahimpatnam Taluk Vyavasaya Cooli Sangam, Rep. by
its General Secretary Vs. K. Suresh Reddy and others
[1996 (2) ALD 945 (D.B.)]
8. V. Shantha Kumari and others Vs. District Revenue
Officer and Additional District Magistrate, Ranga Reddy
District and other [2003 (2) ALD 330]
9. Jt. Collector Ranga Reddy Dist. & Anr. Etc. Vs. D.
Narsing Rao & Ors. Etc. Etc. [2015 (1) Supreme 298]
8. Learned counsel for the third respondent contends that
Nallabothu Komaraiah was the protected tenant and the rights of the
protected tenants are protected by the Andhra Pradesh (Telangana
Area) Tenancy and Agricultural lands Act, 1950, and the protected
tenant is entitled to restoration of possession under Section 32 of
the Act at any time. Section 32 of the Act does not prescribe time
limit to make a claim for restoration of possession. Under Section 32
of the Act the protected tenant can claim at any time restoration of
possession and once such an application is filed, it is mandatory for
the competent authority to restore possession of the land on which
he is a protected tenant. Law does not recognize consent given by a
protected tenant. Whoever is in possession has to be evicted and
possession be restored to protected tenant.
9. Learned counsel for the third respondent further
contends that Late Nallabothu Komaraiah never executed any
document in favour of Maddi Somaiah and no statement was
recorded by the Tahsildar, Deverkonda, from the grand father of the
third respondent and Section 50-B certificate was issued behind the
back of the petitioners and at the instance of the original land
owners. That certificate is not binding on the 3rd respondent and
the rights are vested in the 3rd respondent as legal heir of protected
tenant and is entitled to seek restoration of possession.
10. Learned counsel for the third respondent further
contends that since 1975, the family of the protected tenant have
been fighting with the land owners and because of problem created
by owners, immediately the 3rd respondent could not take steps to
seek restoration of possession and as soon as those issues are
resolved, application under Section 32 of the Act was made. There
was no lapse on the part of the third respondent in agitating his
grievance and asking for restoration of possession. The third
respondent disputes the claim of the petitioners about spending
money for developing the land and cultivating the land. Learned
counsel for the third respondent further submits that the petitioners
are having huge extent of land and they have grown fruit bearing
plants in those lands.
11. Learned counsel for the third respondent submits that
the decisions relied upon by the learned counsel for the petitioners
are distinguishable. Conditions weighed with the Supreme Court in
Ponnala Narsing Rao Vs. Nallolla Pantaiah and others are not
attracted in this case. Learned counsel for the third respondent
further submits that the decision of this Court in A. Narasimha Vs.
A. Krishna and others is also distinguishable. In that case, the
protected tenant gave consent to his son and he was also a witness
for the transaction and, therefore, he had clear knowledge of what
was happening. In this case, there was no such consent.
12. The other judgments relied upon by the learned
counsel for the petitioners relate to the exercise of power vested in
an authority by a statute within reasonable time. As held by the
Supreme Court, the Andhra Pradesh (Telangana Area) Tenancy and
Agricultural lands Act, 1950, is a welfare legislation. Provisions of
the said Act have to be construed liberally and in favour of the
protected tenant. The interest of the protected tenants are
required to be protected; otherwise the very purpose of the
enactment would be defeated. Having realised that the tenants are
being thrown out of their lands; displaced by illegal means resorted
by the original owners and other vested interest, provision is made
in Section 32 of the Act vesting right in the protected tenant to seek
restoration of possession and, thus, the principle laid down in the
various judgments relied upon by the learned counsel for the
petitioners cannot be applied, as it would amount to defeating the
claim of the protected tenants.
13. Learned counsel for the third respondent further
submits that there is no provision for protected tenant to surrender
to a third party his right to enjoy the property as a protected
tenant. He can only enjoy the property as a protected tenant until
certificate under Section 38-E of the Act is issued and thus, even if
there was a consent for issuing 50-B certificate, the same is not valid
and it cannot be enforced against the third respondent.
14. Learned counsel for the third respondent relied on
decisions in Kotaiah and another Vs. The Property Association of
the Baptist Churches Pvt. Ltd. and Edukanti Kistamma (dead)
Thr. LRs. and others Vs. S. Venkatareddy (dead) Thr. LRs. and
others .
15. Learned Government Pleader justified the order of the
Joint Collector. Since Late Nallabothu Komaraiah was a protected
tenant, his legal heirs are entitled to claim restoration of possession
of tenancy land and in Section 32 of the Act, consciously time limit
is not prescribed. Thus, a protected tenant can claim possession at
any time.
16. The relevant facts are not in dispute. The grand father
of the third respondent Late Sri Nallabothu Komaraiah was the
protected tenants to an extent of Ac. 19.13 guntas of land in Survey
Nos.202, 203, 204, 205, 213 and 214 of Indurthy Village in Marriguda
Mandal, Nalgonda District. The father of the third respondent was
granted certificate under Section 38-E of the Act only to an extent
of Ac. 10.00 guntas in the year 1978. Much before the issuance of
Section 38-E certificate, the vendor of the petitioner was issued
Section 50-B certificate. In 1984 the 50-B certificate holder sold the
land in favour of the petitioners. The petitioners have been
cultivating and in enjoyment of the said property. It is also not in
dispute that the total extent of land in Survey No.202 was Ac. 12.12
guntas; out of this extent Ac. 4.12 guntas was covered by Section 38-
E certificate issued in favour of the father of the 3rd respondent and
Ac. 8.00 guntas was covered by Section 50-B certificate issued to the
vendor of the petitioners. The above extents of land are adjacent to
each other and the petitioners as well as the third respondent are
residents of the same village and are cultivating the adjacent lands.
It is also admitted fact that Maddi Somaiah is a nephew of
Nallabothu Komaraiah. This would show that the family of the
protected tenant was aware of Ac. 8.00 guntas of land being enjoyed
and being in possession by Maddi Somaiah much before the issuance
of Section 50-B certificate and after purchase made by the
petitioners, the petitioners are in possession and enjoyment of the
said property.
17. The issue for consideration is whether the claim of the
third respondent for restoration of possession as protected tenant to
an extent of Ac. 8.00 guntas in Survey No.202 is hit by delay and
laches? and whether the Joint Collector was right in granting
restoration of possession by his orders impugned in the writ petition,
dated 20.10.1997, on an application filed on 24.07.1993 from out of
which the appeal was filed before him ?
18. Relying on the precedents on the subject, the learned
counsel for the petitioners vehemently contended that the
application for restoration of possession having been filed after 25
years from the date of issuance of Section 38-E certificate in favour
of the third respondent and much later to issuance of Section 50-B
certificate in favour of Late Maddi Somaiah ought to have been
rejected on the ground of delay and laches.
19. The stand of the learned counsel for the 3rd respondent
is that Section 32 of the Act has to be liberally construed and as it
does not prescribe any limitation, as long as a person retains his
status as protected tenant, he is entitled to claim restoration of
possession.
20. Thus, assuming that valuable right is vested in the
protected tenant under Section 32 of the Act, is it open to the
protected tenant to claim restoration of possession at any time
without regard to the series of events that have taken place in the
meantime.
21. Section 32 of the Act reads as under:
Section 32: Procedure of taking possession-
(1) A tenant or an agricultural labourer or artisan entitled to
possession of any land or dwelling house under any of the
provisions of this Act may apply to the Tahsildar in writing in the
prescribed form for such possession.
(2) No landlord shall obtain possession of any land or dwelling house
held by a tenant except under an order of the Tahsildar, for which
he shall apply in the prescribed form.
(3) On receipt of an application under sub-sec. (1) or sub-sec. (2) the
Tahsildar shall, after holding an enquiry pass such order thereon as
he deems fit.
(4) Any person taking possession of any land or dwelling house
otherwise than in accordance with the provisions of sub-section (1)
or sub-section (2), as the case may be, shall, without prejudice to
his liability to the penalty provided in Section 96, be liable to
forfeiture of the crops, if any, grown on the land to the payment
of such costs as may be awarded by the Tahsildar or by the
Collector on appeal from the Tahsildar.
22. Reading of Section 32 makes it clear that no time limit
is prescribed to file an application seeking restoration by a
protected tenant.
23. There is no quarrel with the principle that the
protected tenant is entitled to possession and enjoyment of the
property once he is declared as a protected tenant and he cannot be
displaced from said land without following the mandate of the Act
and if the protected tenant was displaced either by the owner or by
any other person, by resorting to provision under Section 32 of the
Act, the possession of the protected tenant can be restored.
However, in the facts of this case was such power validly invoked
having regard to inordinate delay and subsequent developments
after dispossession ?
24. Learned counsel for the 3rd respondent placed reliance
on decision of the Supreme Court in Edukanti Kistammas Case
(4 Supra) to emphasis that the Act 1950 being the beneficial
legislation requires interpretation to advance social and economic
justice and enforce constitutional directives and not to deprive a
person of his right to property. He, therefore, contends that
provision in Section 32 of the Act should not be construed in a
narrow and pedantic manner and introduce time constraint on
exercise of such power.
25. On the scope of the availing of statutory remedies for
enforcement of the rights vested in a statute, the principle of law is
well settled. The settled principle of law is that such right has to be
availed within a reasonable time and if a person does not avail the
remedies provided by the statute for enforcement of the rights
vested by the statute within reasonable time, the claim cannot be
granted. What is reasonable time depends on the facts and
circumstances of each case. Following precedents highlight this
principle.
26. In Joint Collector, R.R. District, Hyderabad and
another Vs. D. Narasing Rao and others , the Division Bench of
this Court held that Suo motu exercise of revisional jurisdiction
under Section 166-B of the Andhra Pradesh (Telangana Area) Land
Revenue Act, 1317 Fasli after long lapse of time. In that case, 50
years held as not valid. In the said provision, no time limit is
prescribed to exercise such power. The said decision of this Court
was affirmed by the Supreme Court in Jt. Collector Ranga Reddy
Dist. & Anr. Etc. Vs. D. Narsing Rao & Ors. Etc. Etc. . The
Supreme Court reviewed long line of precedents on the scope of
exercise of power though statutory authority is vested with
unlimited powers in several enactments after inordinate delay and
when such provision has not prescribed time limit to exercise the
power, the Supreme Court held as under:
No time limit is prescribed in the above Regulation for
the exerecise of suo motu power but the question is as to
whether the suo motu power could be exercised after a period of
50 years. The Government as early as in the year 1991 passed
order reserving 477 acres of land in Survey Nos.36 and 37 Of
Gopanpally village for house-sites to the government employees.
In other words the Government had every occasion to verify the
revenue entries pertaining to the said lands while passing the
Government Order dated 24.9.1991 but no exception was taken
to the entries found. Further the respondents herein filed Writ
Petition No.21719 of 1997 challenging the Government Order
dated 24.9.1991 and even at that point of time no action was
initiated pertaining to the entries in the said survey numbers.
Thereafter, the purchasers of land from respondent Nos.1 and 2
herein filed a civil suit in O.S.No.12 of 2001 on the file of
Additional District Judge, Ranga Reddy District praying for a
declaration that they were lawful owners and possessors of
certain plots of land in survey No.36, and after contest, the suit
was decreed and said decree is allowed to become final. By the
impugned Notice dated 31.12.2004 the suo motu revision power
under Regulation 166B referred above is sought to be exercised
after five decades and if it is allowed to do so it would lead to
anomalous position leading to uncertainty and complications
seriously affecting the rights of the parties over immovable
properties.
In the light of what is stated above we are of the view
that the Division Bench of the High Court was right in affirming
the view of the learned single Judge of the High Court that the
suo motu revision undertaken after a long lapse of time, even in
the absence of any period of limitation was arbitrary and
opposed to the concept of rule of law.
27. While concurring with the view taken by Justice Sri C.
Nagappan, Justice T.S. Thakur held as under:
To sum up, delayed exercise of revisional jurisdiction is
frowned upon because if actions or transactions were to remain
forever open to challenge, it will mean avoidable and endless
uncertainty in human affairs, which is not the policy of law.
Because, even when there is no period of limitation prescribed
for exercise of such powers, the intervening delay, may have led
to creation of third party rights that cannot be trampled by a
belated exercise of a discretionary power especially when no
cogent explanation for the delay is in sight. Rule of law it is said
must run closely with the rule of life. Even in cases where the
orders sought to be revised are fraudulent, the exercise of power
must be within a reasonable period of the discovery of fraud.
Simply describing an act or transaction to be fraudulent will not
extend the time for its correction to infinity; for otherwise the
exercise of revisional power would itself be tantamount to a
fraud upon the statute that vests such power in an authority.
28. The principle laid down in Jt. Collector Ranga Reddy
Dist. (5 Supra) by the Division Bench was followed by another
Division Bench in Joint Collector, Rangareddy District and others
Vs. P. Harinath Reddy and others. One of the issues for
consideration was whether order of resumption of assigned land on
the ground of violation of Section 3 of the AP Assigned Lands
(Prohibition of Transfers) Act, 1977, can be passed after long lapse
of time. Following the decision of Supreme Court in Ponnala
Narsing Raos Case (1 Supra), Division Bench of this Court held that
it is not permissible to exercise power of resumption after long lapse
of time. In that case, it was 40 years.
29. In Ibrahimpatnam Taluk Vyavasaya Coolie Sangham
Vs. K. Suresh Reddy and others , the exercise of suo motu power
under Section 50-B(4) of the Andhra Pradesh (Telangana Area)
Tenancy and Agricultural Lands Act, 1950, was in issue. Such power
was invoked to cancel validation certificates issued 13 to 15 years
after issuance thereof and 10 years after insertion of Section 50-B(4)
of the Act. This was held to be bad. In Ponnala Narsing Raos
Case (1 Supra), the issue considered by the Supreme Court was with
reference to the filing of an application under Section 32 of the Act.
It was contended that after unreasonable delay, such an application
was filed and the same ought to have been dismissed. Upholding
such contentions, the Supreme Court held as under:
So far as the second contention is concerned, it is true
that though no express period of limitation is provided for filing
application under Section 32 of the Act, such applications have
to be moved within reasonable time. It may be because of such
belated applications, the other side may stand adversely
affected. It may have changed its position in the meantime.
Equities may have arisen in his favour, he may have spent large
amounts on land by improving it. But all these questions have to
be pleaded and proved. Surprisingly, no such contention was
ever canvassed much less tried to be proved on any equitable
ground by the petitioner. Therefore, this second contention on
the facts of the present case cannot be sustained. It has also to
be noted that no plea of adverse possession was put forward by
the petitioner in support of his case.
30. The very same provisions of this enactment have come
up for consideration again in this Court in A. Narasimhas Case
(2 Supra). Order directing restoration of possession in exercise of
power under Section 32 of the Act was considered. This Court
emphasized that if a possession is enjoyed by third party with the
acquiescence and approval of a protected tenant or his successors,
the application for restoration under Section 32 of the Act is
impermissible. This Court held that the principle of estoppel and
acquiescence are equally applicable to the proceedings under
Section 32 of the Act. If the protected tenant inducts himself the
third party and vests possession of the property or a party to the
transaction directly or indirectly subscribes such transfers, he cannot
turn around or fall back on provisions contained in Section 32 of the
Act. This Court held that if such a course of action is permitted, the
whole object of the Act becomes defeated and become a tool in the
hands of indiscriminate persons, to take innocent purchasers for a
ride. In that case, the sale took place in the year 1952 at the
instance of the protected tenant and the protected tenant had the
knowledge and approval of such sale. In that case, there was a
delay of 30 years.
31. The decisions relied upon by the learned counsel for
the third respondent has no application to the facts of the case. In
Kotaiah and another Vs. The Property Association of the Baptist
Churches (Pvt.) Ltd. , the issue for consideration was can a
protected tenant holding Section 38-E certificate be dispossessed by
the owner of the land holding that tenancy was duly terminated and
the assignee has no right to possess the land and that the respondent
association was the owner as held by the Tahsildar on 28.11.1977.
The said decision of the Tahsildar was upheld by the appellate
authority and by this Court in the revision petition filed under
Section 91 of the Act. The Supreme Court held that protected
tenant has a right to become full owner and, therefore, their
tenancy cannot be terminated. It is further held that protected
tenant cannot be dispossessed illegally either by the landlord or
anybody else. If so dispossessed, the Tahsildar has to exercise
power under Section 32 of the Act. That case does not deal with
delay in invoking power under Section 32 of the Act.
32. In the instant case, the dispute is not between the
owner and the tenant. The dispute is between protected tenant, his
nephew and the purchasers of the land from the nephew. He was
not illegally dispossessed. No doubt right is vested in a protected
tenant for possession and enjoyment of tenancy lands and primary
objective of the Act is to protect the interest of the protected
tenant. But, merely because the right is vested in a protected
tenant, he cannot keep quiet, allow others to enjoy the property
and sleep over the said right and wake up after long lapse of time
without regard to the subsequent developments and apply for
enforcement of the provision under Section 32 of the Act.
33. In the several decisions relied upon by the learned
counsel for the petitioners, uniformly it is held that whenever there
is inordinate delay in invoking the provisions of a statute, an
application should be rejected on that ground alone. Principle
reiterated from time and again that even if no time limit is
prescribed in the statute for exercise of power, such power has to be
exercised within reasonable time and what is reasonable time
depends on the facts of each case. In the cases discussed above, the
delay in filing an application for suo moto exercise of power ranged
between five years in one case to 12 to 15 years in another case and
delay of 20 years and more in other cases. The Supreme Court held
it is unreasonable to exercise power in such cases.
34. In the instant case, as noticed above, the vendor of the
petitioners was granted Section 50-B certificate on 21.03.1972.
When the father of the third respondent applied for certificate
under Section 38-E, he was conscious that his father was the
protected tenant for Ac. 19.13 cents. When the competent
authority restricted issuance of certificate under Section 38-E to Ac.
10.00 guntas, he did not protest and even after issuance of Section
38-E certificate, he kept quiet. Section 90 of the Act vests power to
prefer an appeal against any order or decision taken by the
designated authority. Thus, appeal lies against a certificate issued
under Section 50-B of the Act. Section 90 read with Section 93 of
the Act prescribes time of 60 days to file such appeal. He has not
filed appeal against the order under Section 50-B certificate, dated
24.07.1973. Assuming that the third respondent had no knowledge
of issuance of Section 50-B certificate, he should have been alarmed
when in the Section 38-E certificate the extent of land mentioned
was only Ac. 10.00 guntas and more so, only Ac. 4.12 guntas was
covering survey No.202 leaving the other Ac.8.00 guntas. He never
protested when third parties were cultivating the land even
assuming that he was not aware of the sale made by Maddi Somaiah
to the petitioners in the year 1984. For the first time, he filed an
application on 24.07.1993 for restoration of possession. Thus, as
noted by this Court in A.Narasimhas Case (2 Supra), the third
respondent is acquiesced of the transactions made earlier,
acquiesced of the purchase made by the petitioners and their
possession and enjoyment of the said land. Therefore, he is
estopped from filing an application for restoration of possession
under Section 32 of the Act, more particularly, after long lapse of
time.
35. In the facts of this case, it cannot be said that the
application for restoration of possession under Section 32 of the Act
was filed within a reasonable time. Thus, the order of the Joint
Collector restoring possession is not sustainable. The order is also
not sustainable for the reason that the Joint Collector has not
assigned reasons for entertaining such application after long lapse of
time. However, in the counter affidavit, such decision is sought to
be supported by saying that no time limit has been prescribed in the
Act and, therefore, the power has been validly exercised. The order
of quasi- judicial authority must contain reasons in support of the
decision and cannot be supplemented by way of an affidavit in the
writ Court when a challenge is made. Having regard to the above
discussion and findings, the order impugned in the writ petition is
set aside.
36. Accordingly, the Writ Petition is allowed. There shall
be no order as to costs. Miscellaneous Petitions, if any, pending in
this writ petition shall stand closed.
______________________
JUSTICE P.NAVEEN RAO
Date: 9th March, 2015
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