Judgment:
ORDER
V.V.S. Rao, J.
1. In all these civil revision petitions filed under Section 91 of A.P. (Telangana Area) Tenancy and Agricultural Lands Act, 1950 (the Tenancy Act, for brevity), the petitioners and the respondents are same. By common order, dated 30-4-2005 in case No.F2/5767/ 2004 and case No.F2/6916/2004, the Joint Collector, Ranga Reddy District allowed the appeals filed by respondents and remanded the matters to the Revenue Divisional Officer (RDO), Ranga Reddy (East Division) for de novo enquiry. By the said order, the Joint Collector set aside the orders passed by RDO, dated 31-05-2004. Aggrieved by this order, C.R.P.No.2755 and 2774 of 2005 are filed. By yet another common order, dated 30-04-2005, the Joint Collector allowed appeals in case No.F2/5768/2004 and in case No.F2/6917/2004, while setting aside the Panchanama, dated 30-01-2003, and remanded the matter to Mandal Revenue Officer (MRO), Saroor Nagar for passing appropriate orders. This common order is subject matter of C.R.P.Nos. 2775 and 2776 of 2005.
2. The brief fact of the matter is not much in dispute. The land admeasuring Acs.32-02 guntas comprised in survey Nos. 367 to 369 of Nadargul village of Saroor Nagar Mandal in Ranga Reddy district originally belonged to one Shaik Alladdin. The said landholder leased out land to one Kata Michael, who was enjoying it as protected tenant. After death of landholder, his two sons Jamaluddin and Imamuddin succeeded to the property, likewise after death of protected tenant Kata Michael, his son Sowraiah, who is the father of the petitioners herein succeeded as a tenant. The two legal heirs of landholder sold the land to one Smt. Vidya Mashalkar under registered sale deed, dated 02-12-1965. In turn, Smt. Vidya Mashalkar sold the land on 30-03-1994 in favour of one Chippa Babaiah, who is the predecessor of the respondents.
3. Sowraiah applied to MRO under Sections 32 and 40 of the Tenancy Act seeking recognition as legal heir of the protected tenant and also for restoration of possession to him. The application was dismissed. On appeal, under Section 90 of the Tenancy Act, the Joint Collector by order, dated 15-11-1997 confirmed the orders of the original authority under Section 32 of the Tenancy Act. A revision petition being C.R.P.No.582 of 1998 was filed before this Court. By order, dated 16-09-1999, this Court remanded the matter to the Joint Collector for fresh consideration with a direction to dispose of the appeal keeping in view the observations made by this Court in C.R.P.No.582 of 1998. Thereafter, further considering the matter by order dated 23-12-2000, the Joint Collector allowed the appeal directing restoration of possession to the petitioners who are the legal heirs of original protected tenant. This order shall again was subject matter in C.R.P.No.354 of 2001. By Judgment in Chippa Raghuramulu v. Kota Showraiah 2002 (2) An.W.R. 474 the revision petition filed by the respondents herein was dismissed. The Special Leave Petition (Civil) filed with delay was also dismissed by the Supreme Court on 25-11-2004.
4. Tenancy Act by Section 38(1), gives, at his option, preemptory right to the protected tenant to purchase the landholder's interest (Under Section 40 (4) the interest of the protected tenant In the land held by him as PT shall form 60%, Hence, the landholder shall have 40% interest). The procedure as contemplated in various Sub-sections of Section 38 of Tenancy Act involves making an offer to the landholder, making an application to Tenancy Tribunal or Revenue Divisional Officer - in case of refusal by landholder to sell; depositing the amount determined as reasonable price of the landholder's interest and passing of an order by the Tenancy Tribunal, from which date the protected tenant shall have absolute right in the land. The petitioners made an application before Special Grade Deputy Collector & Revenue Divisional Officer (Tenancy Tribunal), Ranga Reddy District under Section 38(1) of the Tenancy Act. In the said application, the deceased landholder Shaik Alladdin and his two sons Jamaluddin and Imamuddin were shown as respondents. As the notices sent by the RDO were returned unserved on those persons, the petitioners took out publication in Urdu daily newspaper 'Munsif'. There was no appearance for the landholders. Therefore, by an order, dated 31-05-2004, the RDO allowed the applications filed by the petitioners holding that they are entitled for issue of sale certificate in respect of the land. Against this order, wife of Chippa Babaiah filed appeal under Section 90 of the Tenancy Act being case No.F2/6956/2004 whereas sons of Babaiah filed case No.F2/5767/2004 before the Joint Collector.
5. Apart from this, after this Court dismissed C.R.P.No. 354 of 2001 filed by the respondents herein in Chippa Raghuramulu (1 supra), the petitioners approached MRO, who ordered delivery of possession. Accordingly under Panchanama, dated 30-01-2003, the MRO handed over possession of the lands to the petitioners. Aggrieved by the same, wife of late Babaiah filed case No.F2/6917/2004 and sons of Babaiah filed case No. F2/5768/2004. The cases were disposed of by two separate common orders by the Joint Collector as noticed supra. As the petitioners lost their case, in the appeal filed by the respondents, the present civil revision petitions are filed.
6. The learned Counsel for the petitioners Sri Vedula Venkata Ramana made the following submissions. Legal heirs of Chippa Babaiah, respondents in these revision petitions, have no locus standi and therefore they are not entitled to any notice in the petitions filed under Section 38(1) of the Tenancy Act or in the proceedings before the MRO to hand over possession to the petitioners. Secondly, the findings in Chippa Raghuramulu (1 supra) operate as res judicata and the appellate authority ought to have dismissed the appeals filed by respondents. Thirdly, sale of land by legal heirs of landholders in favour of Smt. Vidya Mashalkar being ineffective and hit by the provisions of the Tenancy Act, is ineffective and therefore, no title is transferred from the landholders to Smt. Vidya Mashalkar. Logically, therefore, she could not have transferred the non-existent title to Chippa Babaiah under a sale deed through whom the respondents are claiming right in the land. Fourthly, the impugned order passed by the Joint Collector in both the matters is vitiated by misdirection in law. The learned Counsel submits that the Joint Collector committed an error in thinking that Rules 15 and 16 of A.P. (Telangana Area) Tenancy and Agricultural Lands Rules, 1950 would apply even at the time of delivery of possession pursuant to an order under Section 32(1) of the Tenancy Act. Lastly, under the provisions of the Tenancy Act, while exercising powers under Section 90, the Joint Collector has no power of remand to lower authority and he ought to have decided the matter on merits. He placed reliance on Kotaiah v. Property Association of the Baptist Churches (Pvt) Limited : [1989]3SCR472 Hope Plantations Limited v. Taluk Land Board Peermade : (1999)5SCC590 Aswin kumar K. Patel v. Upendra J. Patel : AIR1999SC1125 Raj Kishan Pershad v. Joint Collector, R.R. Dist. : 2001(3)ALD469 and Rafique Bibi v. Sayed Waliuddin : AIR2003SC3789
7. Sri Vilas V. Afzul Purkar, learned senior counsel appearing for the respondents in all the revision petitions, placed reliance on Sub-section (4) of Section 38 of Tenancy Act and submitted that respondents are persons interested in the land and they are in possession of the land since 1965. Therefore, without there being any notice to them, the RDO could not have issued a sale certificate in favour of protected tenants under Section 38(6) of Tenancy Act. Secondly, he would submit that being an appellate authority, it is within the scope of incidental powers of Joint Collector to pass an order of remand when the order of the lower authority suffers from a fundamental flaw. He placed reliance on the decision of a learned single Judge of this Court in Shaik Banagi Saheb v. Shaik Nurulla Sahetf : 1997(1)ALT380 : Overruled by 2002 (2) An.W.R. 122 (D.B.).
8. A reading of the two impugned orders passed by the Joint Collector would show that the Joint Collector allowed the appeals of the respondents and remanded the matter to the original authority only on the ground that the RDO/MRO did not follow the procedure contemplated under the Tenancy Act and the Rules by issuing notice to respondents. Only for this reason, the lower authority was directed to follow the procedure prescribed under the Tenancy Act and dispose of the matter within the stipulated time. The appellate authority was exercising powers under Section 90 of the Tenancy Act. Therefore, it is necessary to consider whether the Joint Collector has power, authority and jurisdiction to remand the matter to primary authority. Consideration of other questions raised in the revision petitions would depend on the answer to the question posed herein.
9. For the purpose of considering the question, a reference to Sections 89, 90 and 92 of the Tenancy Act is necessary, which read as under.
89. Procedure and power at inquiries:
(1) The provisions of Sections 149 and 150 of the Andhra Pradesh (Telangana Area) Land Revenue Act, 1317 F shall apply to the recording of evidence and of decisions at inquiries held under this Act.
(2) For the purposes of any such inquiry the Tahsildar, Tribunal and Collector may exercise all or any of the powers conferred on Civil Court by the Code of Civil Procedure, 1908 including the power to award costs.
90. Appeals and revisions: (1) From every order other than an interim order passed by the Tahsildar or the Deputy Collector or the Tribunal under this Act, an appeal shall lie to the Collector and the orders of the Collector on such appeal shall be final.
(2) From every original order other than an interim order passed by the Collector, an appeal shall lie to the Board of Revenue and the order of the Board of Revenue on such appeal shall be final.
(3) There shall be no appeal from any interim order passed by the Tahsildar or Deputy Collectoror Tribunalor Collector in any case, but an application for revision on the grounds mentioned in Section 91 shall lie from an interim order passed by the Tahsildar or Deputy Collector to the Collector.
92. Powers exercisable on appeal or revision: An authority exercising appellate or revisional jurisdiction under this Act shall pass such order consistent with this Act, whether by way of confirmation, recession or modification of the order under, appeal or revision, as appears to it to be just, and shall have the powers conferred on the original authority by Sub-section (2) of Section 89.
10. Under Section 90 of the Tenancy Act, every order (other than interim order) passed by a lower authority under the Tenancy Act is appealable to the Joint Collector provided that the appeal is presented within sixty days from the date of the order as contemplated under Section 93 of the Tenancy Act, which deals with limitations. Section 89 deals with the procedure and power at the inquiries to be followed. Under Sub-section (2) of Section 89 of the Tenancy Act, the Tahasildar, Tenancy Tribunal and the Collector are conferred with allor any powers under Code of Civil Procedure, 1908 (CPC) including the power to award costs. Section 92 deals with powers exercisable on appeal or revision. This Section is in two parts. The first part and the second part contain a disjunctive 'and'. As per first part, an appellate authority or revisional authority shall have to pass orders by way of confirmation or recession or modification. The power to rem and the matter is very conspicuous by its absence. It is not possible to read such power in the first part by reason of Section 89(2). The reason for this is that the second part of Section 92, which is separated from the first part by 'and' would only show that while passing an order of confirmation, recession or modification, the appellate authority shall have powers conferred under Section 89(2) i.e., powers under CPC. The fact that the appellate authority can either confirm or rescind or modify cannot be stretched to include power to remand especially when the Legislature chose not to confer such power. The reason fort his is understandable. The legislature by enacting Tenancy Act has expressed its anxiety In ways more than one to see that the persons who are cultivating the lands for a period of six years prior to January, 1948 be afforded protection from exploitative evictions so as to confer on them ownership rights to the extent of sixty percent of interest. Therefore, the enquiries before the revisional authority or appellate authority cannot brook any delay. The intention was to see that every authority within its powers shall give quietus to the claims by the tenants, landholders and others.
11. It is now settled that the remedy of appeal and remedy of revision/review have to be specifically conferred by the statute. No public authority can usurp such powers. It is also now well settled that unless and until an appellate authority is specifically conferred with the power to remand a case, he cannot do so. Even under Section 75 of the CPC (incidental proceedings), the power of the Court to issue commissions, to examine any person, to make a local investigation, to examine or adjust accounts, to make partition, to hold scientific/technical investigation, to conduct sale of property and to perform any ministerial act are only recognized as incidental powers of the civil Court. Section 107 and Order XLI Rule 23 of CPC specifically confer power on the appellate Court to determine the case finally or to remand a case. Under the Tenancy Act, though Section 89(2) confers all powers of CPC on authorities exercising original jurisdiction, while conferring powers under Section 92 on the appellate/revisional authorities, the Legislature has not specifically conferred the power to remand akin to Section 107 of CPC and Order XLI of CPC. Therefore, it is not possible to accept the submission of the learned senior counsel for the respondents.
12. In Shaik Banagi Saheb (8 supra), a learned single Judge considered Section 20 of A.P. Buildings (Lease, Rent and Eviction) Control Act, 1960 (Rent Control Act, for brevity), which provides for an appeal and confers powers on the appellate authority. The learned Judge laid emphasis on the phrase ...shall decide the appeal', and came to the conclusion that the term 'decision' is broad enough to include an order of remand and held that the appellate authority under the Rent Control Act has power to remand the matter to the original authority. It was observed thereunder.
Inherent trappings or attributes of appellate jurisdiction can be limited or restricted or ousted altogether by statutes or Constitution. In other words, limits of appellate jurisdiction are governed by the statutes or Constitution. As held by the Division Bench in M/s. Thimmasamudram Tobacco Company v. Assistant Collector, Central Excise, Nellore : AIR1961AP324 the power of remand is inherent in the appellate jurisdiction. This statement of the Division Bench is undoubtedly a clear statement of law, a judgment in rem and therefore ratio decidendi. If that is so, the only question to be considered is whether Section 20 of the Act has, either explicitly or impliedly, limited or ousted the inherent power of the Appellate Court to remand the proceedings to the Rent Controller. The right of appeal in Civil actions being unknown to the common law and of statutory origin, it is necessary that the requirement of the statute which provides for appeal be strictly complied with to confer jurisdiction on the Appellate Courts. An appeal is a judicial process, a continuation of the original proceeding and it removes a cause, entirely subjecting the facts as well as the law to a review and a retrial. In Bouvier's Law Dictionary (Third Revision) it is stated that the appellate jurisdiction is exercised by revising the action of the inferior Court, and remanding the cause for rendition and execution of the proper judgment, after citing the decision on Dodds v. Duncan 12, Lea (Tenn.) 731.
13. A Division Bench of this Court in Smt. Beebanu v. Abdul Rashed 2002 (2) An.W.R. 122 (D.B.) (A.P.) again considered the question whether the appellate authority under Rent Control Act has power to remand the matter to the Rent Controller. The Division Bench while overruling the decision of the learned single Judge in Shaik Banagi Saheb(8 supra), held that though the appellate authority can conduct further enquiry, directing the Rent Controller to take evidence, such authority has no power to remand to the Rent Controller. It is apt to excerpt paragraphs 7, 8 and 9 of the Division Bench Judgment.
It is now well settled law that the provisions of the Act must be considered having regard to the text and context thereof. By reason of the provisions of the said Act, a landlord can file an application for eviction of a tenant before the Rent Controller, who upon arriving at a satisfaction that any or other grounds enumerated in Sub-section (2) of Section 10 of the Act, exists may make an order directing the tenant to put the landlord in possession of the building. The procedure to be adopted for adjudicating a dispute by a Rent controller is a summary procedure.
In the aforementioned background Sub-section (3) of Section 20 of the Act read with Rule 11(2) of the Rules, must be interpreted as contradistinguished from Section 107 of the Code. Sub-section (3) of Section 20 of the Act does not confer plenary powers upon the appellate Court. A jurisdiction, is circumscribed by expressions employed therein. The appellate Court, however, has a power to make further enquiry. It can, therefore, accept additional evidence. Its jurisdiction to decide an appeal, is thus not confined only to materials placed before the Rent Controller. Such further enquiry can be made by the appellate court either by itself or through the Rent Controller, as provided for under Section 20(3) of the Act read with Rule 11(2) of the Rules.
Thus on a fair construction of the provisions of Sub-section (3) of Section 20 of the Act read with Rule 11(2) of the Rules, we are of the opinion that in a situation of this nature, the court could obtain further materials by taking recourse to further enquiry directing the Rent Controller to take evidence.
14. The view taken by this Court regarding interpretation of Section 90 read with Sections 89(2) and 92 of the Tenancy Act is thus supported by observations hereinabove. Therefore, this Court holds that the impugned orders of the Joint Collector remanding the matters to the original authorities are without jurisdiction and are liable to be set aside.
15. While allowing the appeals being case No.F2/6912/2004 (out of which, C.R.P.No.2775 of 2005 arises) and case No.F2/5768/2004 (out of which, C.R.P.No.2776of 2005 arises), the Joint Collector placed reliance on Rules 15 and 16 of the Rules (These Rules (Hyderabad Tenancy and Agricultural Land Rules, 1950) were promulgated by Notification (Revenue) No.58, dated 1-11-1950, published in Government of Hyderabad Gazette Vol.81, No.59 dated 16-11 -1950, These Rules were made regarding Sections 5,14 (1), (2), 15, 17, 21 (3), 24 (2), 29 (2), 32 (1) and (2)). Rules 15 and 16 of the Rules contemplated enquiry and serving a copy of an application made by the tenants under Section 32 of the Tenancy Act to the persons against whom an order is sought. These Rules have no application at the stage of handing over possession pursuant to an order passed under Section 32(1) of Tenancy Act for restoration of possession. There is no dispute that the procedure under Section 32(1) of Tenancy Act has already been followed and the orders are now passed by authorities for restoration of possession which are also confirmed by this Court in Chippa Raghuramulu (1 supra). In that view of the matter, the Joint Collector misdirected himself in coming to the conclusion that Rules 15 and 16 of the Rules apply even at the stage of handing over possession pursuant to order under Section 32(1) of the Tenancy Act. For this reason, these matters are liable to be set aside.
16. In the result, for the above reasons, the civil revision petitions are allowed. The common order passed by the Joint Collector on 30-04-2005 in case No.F2/6916/2004 (out of which C.R.P.No.2755 of 2005 is filed) and case No. F2/5765/2004 (out of which C.R.P.No.2774 of 2005 is filed) is set aside. The common order, dated 30-04-2005 in case No. F2/6917/2004 and case No. F2/5768/2004, out of which C.R.P.Nos. 2775 and 2776 of 2005 respectively arises is also set aside. These matters are remanded to the Joint Collector to dispose of the matters afresh keeping in view the orders of this Court in C.R.P.No.582 of 1998, dated 16-09-1999 and C.R.P.No.354 of 2001, dated 20-09-2002, against which S.L.P. was also dismissed, within a period of three months from the date of receipt of copy of this order. No costs.