Gandaiah (Died) Per Lrs. and Others Vs. Government of A.P. - Court Judgment

Excerpt:
tenancy - rights of secured tenants - sections 11 and 12 of andhra pradesh land reforms (ceiling on agricultural holdings) act, 1973 - petitioners were secured tenant under act - land under their possession being excessive of ceiling limits surrendered to respondent by landholder - respondent contended that on such surrender landholder's interest in land vested with government - rights of secured tenants extinguished - after surrender of land tenants of erstwhile landholder not became tenant of government - rights of secured tenant regarding such land not affected by surrender. - all india services act, 1951.sections 8 & 11 & a.p. buildings (lease, rent and eviction) control rules, 1961, rule 5: [v.v.s. rao, g. yethirajulu & g. bhavani prasad, jj] refusal by landlord to receive rent - deposit of rent in court - held, a tenant has the option to take recourse to section 8 in case of refusal or evasion by landlord to receive rent and if landlord were to not name a bank or refuse even the money order of rent, the tenant can deposit the rent in accordance with sub-rules (1) to (3) of rule 5. the notice to person entitled to rent and proper maintenance of accounts of such deposits under sub-rules (4) and (5) of rule 5 are solely dependent on compliance with sub-rule (3) by the tenant. the payment or deposit of rent under section 11 read with sub-rule (6) of rule 5 arises only in respect of a tenant who did not take recourse to section 8 or section 9 before an application for eviction has been made against him in respect of any rent in arrears by date of that application, whereas in respect of rent that becomes subsequently due since date of application for eviction, the tenant is bound to pay or deposit regularly until termination of proceedings in order to enable him to contest the application. any violation of section 11(1) to (3) and sub-rule (6) of rule 5 makes the tenant liable for the adverse consequences under sub-section (4) of section 11. thus, the provisions of section 11 and sub-rule (6) of rule 5 are intended only to ensure the payment and deposit of rent including arrears during pendency and till termination of proceedings for eviction. the forfeiture of right of tenant to contest in case of default is to protect the rights and interests of landlord pending such an application for eviction, but not to confer any right on tenant to plead that all defaults committed by him prior to application for eviction can never be considered wilful, if he were to deposit all arrears of rent due within fifteen days under rule 5(6) read with sub-section (1) of section 11. the object and effect of section 11 and sub-rules (1) to (5) to rule 5, the former being for protection of landlord during pendency of eviction proceedings and the later being for protection of tenant to avoid any liability for eviction on ground of wilful default. consequently, while taking recourse to section 8 by tenant is optional, once that option is exercised, compliance with sub-rules (1) to (5) of rule 5 becomes mandatory in the sense that any non-compliance with prescribed procedure will positively indicate the wilful nature of default committed in paying or tendering rent as prescribed. while deposit of rent in terms of provisions of act and the rules amounts to valid tender of rent to landlord, the failure to comply with rule 5 (3) requiring delivery of a copy of the challan for deposit of rent in office of controller or appellate authority, as the case may be, so as to enable controller or appellate authority to cause maintenance of proper accounts under sub-rule (5) and give notice of deposit to person amounts to wilful default in making valid payment or lawful tender of the rent by the tenant to the landlord. thus, where a tenant obtains an order to deposit rent, same shall be deposited at least by the last day of the month following that for which rent is payable and rent challan shall be delivered in the office of controller within a reasonable time so that rent controller can take necessary action for service of notice of deposit under sub-rule (4) of rule 5 of the rules within seven days of such delivery. in the absence of compliance in so depositing rent and delivering challan in the office of controller, tenant shall be deemed to have committed wilful default. - section 13 of the said act, which is a beneficial provision for the protected tenants, clearly states as to how and in what manner the tribunal shall proceed with determination of ceiling area and the land held by a protected tenant.order1. this application arises out of an order dated 15-11-1997 passed by the joint collector, mahboobnagar in case no.b7/17/1994 whereby and whereunder an appeal filed by the respondent herein was allowed setting aside the order passed by the revenue divisional officer, mahboobnagar conferring ownership right in respect of the suit lands on the petitioners under section 38-e of the andhra pradesh (telangana area) tenancy and agricultural lands act, 1950 holding that the suit lands in question had actually vested in the state under section 11 of the andhra. pradesh land reforms (ceiling on agricultural holdings) act, 1973.2. the petitioners are protected tenants in terms of the provisions of the tenancy act. one pradeep reddy is said to be the original pattedar. he being a surplus land holder, the question whether he held lands in excess than the prescribed ceiling area in terms of the act, 1973 came up for consideration. he had surrendered the said lands in question. the respondent's contention was that by reason of such surrender, the lands vested absolutely in the state free from all encumbrances. assuming that the petitioners are the protected tenants, the contention of the respondent herein was that having regard to such surrender their right stands extinguished. it was further held that the revenue authority had no power of review.3. the questions raised in this application are covered by two decisions of this court. section 13 of the a.p land reforms (ceiling on agricultural holdings) act, 1973, reads thus:'special provision for protected tenants :--(1) where the holding of any owner includes any land held by a protected tenant, the tribunal shall, in the first instance, determine whether such land or part thereof stands transferred to the protected tenant under section 38-e of andhra pradesh (telangana area) tenancy and agricultural land act, 1950, and if so, the extent of land so transferred; and such extent of land shall thereupon be excluded from the holding of such owner and included in the holding of such tenant, as if the tenant was the owner of such land for the purpose of this act.(2) subject to the provisions of subsection (1), the relevant provisions of this act aforesaid shall apply in the matter of such land by such protected tenant.'4. the said act was enacted with a view to give effect to the directive principles specified in clauses (b) and (c) of article 39 of the constitution of india. section 13 of the said act, which is a beneficial provision for the protected tenants, clearly states as to how and in what manner the tribunal shall proceed with determination of ceiling area and the land held by a protected tenant. in the instant case, it is admitted that a certificate under section 38-e of the a.p. (telangana area) tenancy and agricultural lands act has been issued.5. in laxmaiah v. spl. tahsildar, lrt east hyderabad, 1978 (2) alt 227, madhava reddy, j., as his lordship then was, having regard to the provisions of the said act held:'but assuming that such tenancy constitutes an encumbrance, it would be seen that section 10(5) does not totally prohibit the tribunal from accepting the surrender of a land encumbered. it only declares that 'it should be open to the tribunal to refuse to accept the surrender of any land, the surrender of which is not acceptable on account of encumbrance of the land'. in other words, in certain circumstances surrender of land in the possession of a protected tenant could also be accepted. under the definition contained in section 2(1) of the act lands in the possession of a protected tenant also would be deemed to be held by the tenant and in computing the holding of a person, the lands which are actually in his possession and enjoyment as a tenant also have to be included if in the case of a partnership, person his entire holding comprises of land held by him as a tenant and such holding is in excess of the ceiling area to which he is entitled, then obviously he would have to be declared as surplus holder and would be required to surrender the land held by him in excess of the ceiling area to which he is entitled. if land in the possession of protected tenant is deemed to be an encumbrance and the existence of such an encumbrance precludes the tribunals from accepting the surrender, then no part of his holding could be surrendered and the tribunal cannot take over any land from him. he would have to be continued in possession of the holding even though it may be in excess of the ceiling area to which he is entitled. further, if the land is the possession of a protected tenant could never have been surrendered and the surrender could not have been accepted, provision as is contained in section 12 could not have been enacted.'6. upon noticing the phraseology used in section 12 of the act and having regardto the various decisions relating to 'encumbrance', it was held:'it is, therefore, necessary to determine whether a lease in the context of the andhra pradesh land reforms (ceiling on agricultural holdings) act, 1973, and in particular in the context of section 10(5) of the said act, read with section 3(i) and section 12, constitutes an encumbrance so as to preclude the tribunal from accepting the surrender of the land in the possession of a tenant or a protected tenant. the surrender of the land in certain circumstances may have to be made by the landholder and all his lands may be in the possession of a protected tenant. if such a landholder is a surplus holder, whatever land he may surrender, it would have been in possession of the protected tenant. if it were to be held that such landholder cannot surrender such land and the tribunal is precluded from accepting the surrender of such land, then the provisions of the act would be set at naught. the landholder would have to be allowed to continue in possession of his holding even though it may be in excess of the ceiling area. even in the case of a person whose holding comprises entirely of land held by him as a protected tenant, the surrender of any land cannot be accepted. but since the act contemplates the surrender of all lands held in excess of the ceiling area, the land held on lease must also be capable of being surrendered and that can be done only if the lease does not constitute an encumbrance on the land.'7. it is not in dispute that if the land surrendered is in possession of a protected tenant, the landholder's interest vests in the government. on such surrender, a tenant, who was the tenant of the erstwhile landholder, would not be the tenant of the government. in thatview of the matter, the learned appellate tribunal in the opinion of this court could not have held that the land had vested in the state upon surrender of the land by the landholder.8. so far as the second question raised by the learned counsel for the petitioners is concerned, the same is also covered by a decision of a full bench of this court in radha bai v. b. chinnayya, : air1968ap353 . seshachalapathi, j., speaking for the full bench held that in terms of sections 91 and 92 both the original and appellant authorities, having vested with the powers of a civil court, are entitled to exercise the review jurisdiction as envisaged under section 114 of the code of civil procedure.9. for the reasons aforementioned, the impugned judgment, cannot be sustained. the learned counsel appearing on behalf of the respondent, however, submits that the extent of area sold by the petitioners has not been determined. it appears from the order under appeal that such a question has not fallen for consideration before it. in this view of the matter, this civil revision petition is allowed and the matter is remitted to the appellate tribunal below for determination of the aforementioned limited question. no order as to costs.

Judgment:
ORDER

1. This application arises out of an order dated 15-11-1997 passed by the Joint Collector, Mahboobnagar in Case No.B7/17/1994 whereby and whereunder an appeal filed by the respondent herein was allowed setting aside the order passed by the Revenue Divisional Officer, Mahboobnagar conferring ownership right in respect of the suit lands on the petitioners under Section 38-E of the Andhra Pradesh (Telangana Area) Tenancy and Agricultural Lands Act, 1950 holding that the suit lands in question had actually vested in the State under Section 11 of the Andhra. Pradesh Land Reforms (Ceiling on Agricultural Holdings) Act, 1973.

2. The petitioners are protected tenants in terms of the provisions of the Tenancy Act. One Pradeep Reddy is said to be the original pattedar. He being a surplus land holder, the question whether he held lands in excess than the prescribed ceiling area in terms of the Act, 1973 came up for consideration. He had surrendered the said lands in question. The respondent's contention was that by reason of such surrender, the lands vested absolutely in the State free from all encumbrances. Assuming that the petitioners are the protected tenants, the contention of the respondent herein was that having regard to such surrender their right stands extinguished. It was further held that the revenue authority had no power of review.

3. The questions raised in this application are covered by two decisions of this Court. Section 13 of the A.P Land Reforms (Ceiling on Agricultural Holdings) Act, 1973, reads thus:

'Special provision for protected tenants :--(1) Where the holding of any owner includes any land held by a protected tenant, the Tribunal shall, in the first instance, determine whether such land or part thereof stands transferred to the protected tenant under Section 38-E of Andhra Pradesh (Telangana Area) Tenancy and Agricultural Land Act, 1950, and if so, the extent of land so transferred; and such extent of land shall thereupon be excluded from the holding of such owner and included in the holding of such tenant, as if the tenant was the owner of such land for the purpose of this Act.

(2) Subject to the provisions of subsection (1), the relevant provisions of this Act aforesaid shall apply in the matter of such land by such protected tenant.'

4. The said Act was enacted with a view to give effect to the Directive Principles specified in clauses (b) and (c) of Article 39 of the Constitution of India. Section 13 of the said Act, which is a beneficial provision for the protected tenants, clearly states as to how and in what manner the Tribunal shall proceed with determination of ceiling area and the land held by a protected tenant. In the instant case, it is admitted that a certificate under Section 38-E of the A.P. (Telangana Area) Tenancy and Agricultural Lands Act has been issued.

5. In Laxmaiah v. Spl. Tahsildar, LRT East Hyderabad, 1978 (2) ALT 227, Madhava Reddy, J., as his Lordship then was, having regard to the provisions of the said Act held:

'But assuming that such tenancy Constitutes an encumbrance, it would be seen that Section 10(5) does not totally prohibit the Tribunal from accepting the surrender of a land encumbered. It only declares that 'it should be open to the Tribunal to refuse to accept the surrender of any land, the surrender of which is not acceptable on account of encumbrance of the land'. In other words, in certain circumstances surrender of land in the possession of a protected tenant could also be accepted. Under the definition contained in Section 2(1) of the Act lands in the possession of a protected tenant also would be deemed to be held by the tenant and in computing the holding of a person, the lands which are actually in his possession and enjoyment as a tenant also have to be included if in the case of a partnership, person his entire holding comprises of land held by him as a tenant and such holding is in excess of the ceiling area to which he is entitled, then obviously he would have to be declared as surplus holder and would be required to surrender the land held by him in excess of the ceiling area to which he is entitled. If land in the possession of protected tenant is deemed to be an encumbrance and the existence of such an encumbrance precludes the Tribunals from accepting the surrender, then no part of his holding could be surrendered and the Tribunal cannot take over any land from him. He would have to be continued in possession of the holding even though it may be in excess of the ceiling area to which he is entitled. Further, if the land is the possession of a protected tenant could never have been surrendered and the surrender could not have been accepted, provision as is contained in Section 12 could not have been enacted.'

6. Upon noticing the phraseology used in Section 12 of the Act and having regardto the various decisions relating to 'encumbrance', it was held:

'It is, therefore, necessary to determine whether a lease in the context of the Andhra Pradesh land Reforms (Ceiling on Agricultural Holdings) Act, 1973, and in particular in the context of Section 10(5) of the said Act, read with Section 3(i) and Section 12, constitutes an encumbrance so as to preclude the Tribunal from accepting the surrender of the land in the possession of a tenant or a protected tenant. The surrender of the land in certain circumstances may have to be made by the landholder and all his lands may be in the possession of a protected tenant. If such a landholder is a surplus holder, whatever land he may surrender, it would have been in possession of the protected tenant. If it were to be held that such landholder cannot surrender such land and the Tribunal is precluded from accepting the surrender of such land, then the provisions of the Act would be set at naught. The landholder would have to be allowed to continue in possession of his holding even though it may be in excess of the ceiling area. Even in the case of a person whose holding comprises entirely of land held by him as a protected tenant, the surrender of any land cannot be accepted. But since the Act contemplates the surrender of all lands held in excess of the ceiling area, the land held on lease must also be capable of being surrendered and that can be done only if the lease does not constitute an encumbrance on the land.'

7. It is not in dispute that if the land surrendered is in possession of a protected tenant, the landholder's interest vests in the Government. On such surrender, a tenant, who was the tenant of the erstwhile landholder, would not be the tenant of the Government. In thatview of the matter, the learned Appellate Tribunal in the opinion of this Court could not have held that the land had vested in the State upon surrender of the land by the landholder.

8. So far as the second question raised by the learned Counsel for the petitioners is concerned, the same is also covered by a decision of a Full Bench of this Court in Radha Bai v. B. Chinnayya, : AIR1968AP353 . Seshachalapathi, J., speaking for the Full Bench held that in terms of Sections 91 and 92 both the original and appellant authorities, having vested with the powers of a civil Court, are entitled to exercise the review jurisdiction as envisaged under Section 114 of the Code of Civil Procedure.

9. For the reasons aforementioned, the impugned judgment, cannot be sustained. The learned Counsel appearing on behalf of the respondent, however, submits that the extent of area sold by the petitioners has not been determined. It appears from the order under appeal that such a question has not fallen for consideration before it. In this view of the matter, this civil revision petition is allowed and the matter is remitted to the appellate Tribunal below for determination of the aforementioned limited question. No order as to costs.