Smt. Nagamma v. The Joint Collector-II, R.R. District

Counsel for the Petitioners : Sri P. Jagadish Chandra Prasad Counsel for the Respondents : Sri Keshav Hulsurkar The Court made the following : [order follows] THE HON'BLE SRI JUSTICE M.S.RAMACHANDRA RAO C.R.P.No.3384 of 2006 & C.R.P.No.6681 of 2006 COMMON JUDGMENT: Both these revisions are filed challenging the order dt.08.11.2005 in case No.F2/5448/2001 of the Joint Collector – II, Ranga Reddy District.

2. The petitioners’ father by name Agaiah is a protected tenant in respect of land in Sy.No.5/AA situated at Madharam Village, Ghatkesar Mandal. Initially, a certificate of ownership dt.26.06.1975 u/S.38-E of the Andhra Pradesh (Telangana Area) Tenancy and Agricultural Lands Act, 1950 (for short, ‘the Act’) for an extent of Acs.13.23 gts. in respect of Sy.No.5/A of the above village was granted by the Addl. R.D.O. (L.R.) to R. Narsamma, wife of Agaiah. Subsequently, the RDO, Hyderabad East Division, R.R. District corrected the ownership certificate mentioned above to an extent of Acs.11.07 gts. instead of Acs.13.23 gts. as per his order dt.15.05.1993 in Case No.L/1262/1989.

3. Alleging that the petitioners are the legal heirs of Agaiah and R . Narsamma under Section 40 of the above Act and contending that they are entitled to be restored possession of the extent of Acs.11.07 gts. of land in respect of which Section 38-E certificate has been granted in favour of their mother, the petitioners filed an application under Section 32 of the above Act. In this application, the 3rd respondent was shown as respondent. The 3rd respondent is the son of the land holder Veeraiah.

4. By order dt.23.07.2001 in file No.B2/1093/2001, the MRO, Ghatkesar Mandal, R.R. District, exercising his powers u/S.32 of the Act held that the petitioners have ownership rights u/S.38-E of the Act; and therefore, the possession of extent of Acs.11.07 gts. in Sy.No.5 of Madharam Village, Ghatkesar Mandal, is liable to be restored to the petitioners. He also observed that the said Acs.11.07 gts. of land to be delivered possession to the petitioners includes an extent of Acs.04.20 gts. which was in the name of Nagamma. It is not disputed by both sides that this extent of Acs.04.20 gts. is not covered by Section 38-E certificate, but is a different extent which the petitioners claim to have been purchased by Agaiah from the land holder Veeraiah. Thus, the MRO, Ghatkesar directed the RDO Inspector, Ghatkesar to evict the persons in possession of the above extent and deliver possession of the land to petitioners.

5. Aggrieved thereby, the 3rd respondent filed a revision under Section 90 of the Act before the Joint Collector-II, R.R. District. By order dt.08.11.2005, the Joint Collector set aside the order of the MRO, Ghatkesar on the ground that where an ownership certificate under Section 38-E is issued, the question of restoration of possession to the S.38-E certificate holder would not arise because the certificate holder himself becomes the owner and the matter would no more be within the purview of the Revenue Authorities. He, therefore, held that Section 32 of the Act cannot be invoked by petitioners whose mother was issued a certificate under Section 38-E by Revenue authorities.

6. Aggrieved thereby, the present revision CRP.No.3384 of 2006 has been filed by petitioners.

7. The counsel for the petitioners submits that in view of the judgment of a Full Bench of this Court in Sada v. The Tahsildar, Utnoor, Adilabad District and others [1] , petitioners are entitled to be restored possession of the extent of Acs.11.07 gts. in respect of which the petitioners’ mother has been given the certificate under Section 38-E of the Act by the MRO, Ghatkesar exercising power under Section 32 of the Act and that the order of the Joint Collector is contrary to law. In this decision, the Full Bench referred to the S.38E (2) and its proviso and held that there is no requirement in the Act that a protected tenant should be in possession on the date specified in the notification issued under S.38E(1); that it is enough if he is in possession of the land on the dates or for the periods mentioned in S.34, 37 and 37-A; that it is not necessary that he should have been put physically in possession by the Tahsildar before proceedings u/S.38E (2) are initiated or completed, i.e., proceedings issuance of ownership certificate; and restoration of possession to him under proviso to S.38(E) (2) can be done by Tahsildar. It held that the certificate under S.38E(2) entitles a former protected tenant who has become owner to possession independently.

8. This legal position as declared in Sada (1 supra) is not disputed by counsel for 3rd respondent. Therefore, the finding the Jt. Collector – II, Ranga Reddy District in his order dt.08.11.2005 that after issuance of certificate of ownership u/S.38E(2) of the Act, he/his LR’s cannot invoke S.32 of the Act for restoration of possession cannot be sustained. The said order is accordingly set aside. Therefore, I am of the opinion that the petitioners are entitled to be restored possession of the extent Acs.11.07 gts. in Sy.No.5/A of Madharam Village, Ghatkesar Mandal, R.R. District.

9. The MRO in his order dt.23.07.2001 in File No.B2/1093/2001 erroneously included an extent of Ac.04.20 gts allegedly purchased by Agaiah from Veeraiah within the extent of Acs.11.07 gts. of land in Sy.No.5/A of Madharam Village, Ghatkesar Mandal, R.R. District even though it did not form part of land for which certificate u/S.38E(2) was issued to Narsamma. Since the petitioners have only sought restoration of possession of an extent of Acs.11.07 gts. of land in respect of which R. Narsamma, their mother, was granted certificate under Section 38-E of the Act, it is not open to MRO, Ghatkesar Mandal to include some other land which is not covered by Section 38-E certificate in the Ac.11.07 gts. for which restoration is sought by the petitioners. Therefore, the order of the MRO, Ghatkesar Mandal to the extent he included this Ac.04.20gts. in the extent of Acs.11.07 gts. in respect of which Section 38-E certificate has been issued to the mother of the petitioners, is erroneous and is set aside. However, the order dt.23.07.2001 in File No.B2/1093/2001 insofar as the MRO directed restoration of possession of Acs.11.07 gts. covered by the certificate of ownership dt.26.06.1975 under S.38E(2) of the Act, as modified by order dt.15.05.1993 of the RDO, Hyderabad (East), is confirmed.

10. Accordingly, the Civil Revision Petition No.3384 of 2006 is allowed. It is open to the petitioners to take whatever remedies available to them in law in respect of the said extent of Ac.04.20gts. in case they apprehend any danger to their enjoyment of the same. In respect of that extent they are not entitled to approach the MRO, Ghatkesar Mandal under Section 32 of the Act. No costs.

11. Insofar as the CRP.No.6681 of 2006 is concerned, the proceedings dt.08.11.2005 passed by the Joint Collector – II in Case No.F2/5448/2007 which are challenged in CRP.No.3384 of 2006 are also challenged herein. Therefore, in view of the order passed in CRP.No.3384 of 2006 setting aside the said order of the Jt. Collector and modifying the order of the MRO, there is no necessity to pass any order in this CRP. Accordingly, the CRP.No.6681 of 2006 is closed. No costs. __________________________________ JUSTICE M.S.RAMACHANDRA RAO Date: 07-11-2013 Ndr/* [1] 1987 (2) ALT 749 F.B.