JUDGMENT L. Narasimha Reddy, J.
1. This is a revision filed under Section 91 of the Andhra Pradesh (Telangana Area) Tenancy and Agricultural Lands Act, 1950 (for short 'the Act'). The subject-matter relates to an application under Section 32 of the Act, for restoration of possession filed by one of the successors of protected tenant.
2. The deceased 1st petitioner, A. Narasimha, filed an application under Section 32 of the Act, initially, before the Mandal Revenue Officer, Patancheruvu, the 10th respondent, for restoration of possession of an extent of Ac. 1.35 gts., of land in Sy.No.701 (old Sy.No.916), of Ameenpur village. On an objection raised by respondents 6 and 7, who were impleaded therein, the proceedings were directed to be dealt with by the Revenue Divisional Officer, Sanga Reddy, the 9th respondent. During the pendency of the proceedings before the 9th respondent, the original petitioner died and the 2nd petitioner was brought on record as his legal representative.
3. It was alleged that the land in Sy.No.701, admeasuring about 7 acres was owned by one Ali-bin-Saleh, and that Veera Mallaiah, the father of the petitioner, was the protected tenant. He pleaded that respondents 6 and 7 herein are cultivating the lands, on the basis of certain documents, and that the alleged transfer is not binding upon him. He urged that, being one of the four sons of late Veera Mallaiah, he is entitled to be restored the possession of Ac.1.35 gts. of land.
4. The application was resisted mainly by respondents 6 and 7. They pleaded that Veera Mallaiah was the protected tenant, and he had four sons by name, Narayana, Ramaiah, Shambhaiah, and Narasimha (petitioner). According to them, Veera Mallaiah, purchased the land from the original owner in the name of his 2nd son, Ramaiah, through an ordinary sale deed, dated 25-3-1952, the sale was regularized under Section 50-B of the Act in 1972 and thereafter, they purchased the land through a registered sale deed, 2-5-1972. It was alleged that the petitioner figured as an attesting witness in the sale deed, dated 2-5-1972, and ever since the sale, they are in possession and enjoyment of the property. They pleaded that the petitioner came forward with an application, on finding that the value of the land had increased, and that the application deserves to be rejected.
5. The 9th respondent allowed the application of the petitioner and directed restoration of possession. Aggrieved thereby, respondents 6 and 7 filed an appeal before the Joint Collector, the 8th respondent, under Section 90 of the Act. The appeal was allowed through order dated 10-12-2004. Hence, this revision.
6. Sri K. Ramakanth Reddy, learned counsel for the petitioner submits that the Act is a social and beneficial legislation and the status of protected tenancy accorded under it, cannot be ignored or defeated. He submits that the tenancy is inheritable, and except by following the procedure prescribed under Section 19 of the Act, for surrender, and Section 38-A, by purchase, by the tenant himself; there is no other way that the tenancy can be terminated. He contends that Section 38-D, imposes a clear bar on alienation of a land, covered by a protected tenancy. According to the learned counsel, the provisions of Section 50-B, do not have any effect on the rights of the protected tenant, and that the so called sale, in favour of the brother of the petitioner, in the year 1952, and the one in favour of respondents 6 and 7, in the year 1972; are non-existent and not binding on the petitioner. Learned counsel further submits that, pursuant to the orders passed by the 9th respondent, possession was delivered to the petitioner and that the same cannot be justified at this stage.
7. Sri D. Prakash Reddy, learned Senior Counsel appearing for respondents 6 and 7, on the other hand, submits that the land in question was purchased by the protected tenant, himself, in the name of one of his sons, way back in the year 1952. He contends that the only person who could have objected to this was the original tenant. No objection of any kind was raised by Veera Mallaiah during his lifetime. He contends that the sale was validated after following the procedure prescribed under the Act, and thereafter, respondents 6 and 7 purchased it, for consideration. Learned Senior Counsel submits that even assuming that any right subsisted in favour of the protected tenant, or his successors, notwithstanding with these developments, the petitioner is precluded from raising any objection at this stage, since he figured as a witness in the sale deed, executed in favour of the respondents 6 and 7. He also made a reference to the suit filed by the other two brothers and indicated the consequences thereof. Learned Senior Counsel raised a serious objection as to the method of the delivery of possession and submits that the 9th respondent has totally ignored the procedure prescribed under the relevant Rules, and that the so called delivery of possession cannot be recognized in law.
8. Both the counsel have relied upon several decisions in support of their respective submissions.
9. The Act is part of the Agrarian reforms, undertaken by the State, soon after the independence of the country. It was included in the IX Schedule of the Constitution. It accords protection to the different kinds of tenants over agricultural lands, depending on the category of tenancy. In this revision, we are concerned with the rights of a protected tenant. Such rights are recognized under Section 34 of the Act. It enlists the rights of a protected tenant. The rights of protected tenant are heritable under Section 40. It is impermissible to evict a tenant except through statutory proceedings under the Act. If any protected tenant is unlawfully evicted, such tenant or his legal representatives can seek restoration of possession by filing an application under Section 32 of the Act. In Sada v. Tahsildar, Utnoor, 1987 (2) ALT 749 = 1987 (2)APLJ 397 (F.B.) a Full Bench of this court held that the Law of Limitation and other impediments for enforcing a civil right, do not come in the way of restoration of possession of the land to the protected tenant, or his legal representatives.
10. The surrender of tenancy is provided for under Sub-section (1) of Section 19 of the Act. Any surrender, otherwise than through the procedure prescribed therein, namely, on the basis of an enquiry by the Tahsildar, as to the genuinity of the offer of surrender; cannot be acted upon. Section 38 confers a right upon the protected tenant to purchase the land. For this purpose, he has to make an application to the Tribunal constituted under the Act, expressing his willingness, and the purchase is to depend upon the enquiry conducted by the Tribunal. Section 38-A permits a sale of the land to the protected tenant by the landholder, if they mutually agree upon reasonable price. Even in such cases, the consideration is required to be deposited before the Tribunal, and subsequent steps, prescribed under Sub-sections (5), (6) and (7) of Section 38 of the Act, are made applicable.
11. Section 50-B is another provision, which had a bearing on the instant case. It was introduced in the year 1964. Chapter V of the Act places restrictions on the sale of agricultural lands. Section 50-B provides for validation of certain alienations, which took place, otherwise than through the permission accorded under that Chapter, subject to certain conditions.
12. It is not in dispute that late Veera Mallaiah, was the protected tenant over about 7 acres of land. According to the petitioner, his father died in the year 1969, and since then, himself and his brothers continued their agricultural operations over the land. He stated that he is in possession and enjoyment of 2 acres of land. He did not state as to whether any partition has taken place in the family, and as to what happened to the shares of the land of his brothers. In para 5 of his petition, filed under Section 32 of the Act, he stated as under:
"It is respectfully submitted that while the matter stood thus, I reiterate that I am the protected tenant and I have never sold or transferred my tenancy rights at any point of time. Tenancy Rights are heritable Under Section 40 of A.P. (Telangana Area) Tenancy and Agricultural Lands Act, 1950 in respect of the lineal descendants of the protected Tenant and I continue to be protected Tenant as I am lineal descendent. I submit that the purchase of the lands held by protected Tenant by a third party through registered sale deed is not admissible. Such registered sale deeds are void ab initio. Therefore the Respondents 9 and 10 claiming through registered sale deed is invalid. There has never been any sort of transfer of my tenancy rights at any point of time."
13. A reading of this, discloses that he is aware of certain registered sale deeds, in respect of the land. He, however, did not furnish the particulars thereof. On receipt of notice in this petition, the respondents 6 and 7 filed counter affidavit as well as additional counter affidavit. They referred to the purchase of the land by Veera Mallaiah in the year 1952, from the landholder, the validation of the same under Section 50-B, and the purchase of the land by them in the year 1972. It was specifically pleaded that the petitioner figured as a witness in the sale deed, executed in their favour. The 9th respondent referred to these contentions extensively in his order. However, he did not record any finding as to the effect of purchase of the entire land in the name of Ramaiah, the 2nd son of Veera Mallaiah, the sale of the same in favour of the respondents 2 and 3, with the knowledge and attestation of the petitioner.
14. As regards the attestation of the sale deed by the petitioner, the contention was noted as under:
"The sale deed executed by A. Ramaiah in favour of the Respondents the present petitioner Sri Narasimha and the wife of Veera Mallaiah P.T. are the attesting witnesses. Thus Narasimha the petitioner and his Mother Balamma also having attested the sale deed executed by A. Ramaiah in favour of the Respondents."
15. The sentences, which can be said to represent the actual adjudication undertaken by the 9th respondent, can be stated to be thus:
"The Lands which are vested under Tenancy Act are heritable Under Section 40 of the Tenancy Act, 1950. The Sale Deed executed by Sri A. Ramaiah one of the sons of Late Veera Mallaiah P.T. in favour of the Respondents for the entire extent seems to be an invalid. Since he is not having any powers to alienate for the entire extent for which he is not entined, since Sri Veera Mallaiah is recorded as P.T. never surrendered his P.T. rights till to date."
Rest of the order is either narration of facts or repetition of the contentions.
16. The appellate authority, the Joint Collector, had referred to the entire record, including the proceedings initiated under Section 50-B of the Act, for validation of sale, in favour of Ramaiah and held that it became absolute and that thereafter, the land was sold to the respondents 6 and 7. He took the view that having figured as an attesting witness, the petitioner is precluded from seeking re-delivery of possession.
17. Two important contentions have been advanced on behalf of the petitioner, namely, the subsistence of tenancy rights, and irrelevance of validation under Section 50-B, vis-a-vis the rights of a protected tenant.
18. Sofaras the first contention is concerned, it needs to be noted that the rights of a protected tenant can, in no way, be defeated, except with his participation, and by adherence to the relevant provisions of law. The recognized modes of termination of tenancy are: by surrender under Section 19, and, purchase of the land, by the protected tenant, himself. Sale of the land covered by protected tenancy by a landholder is clearly prohibited under Section 38-D [See Kotaiah v. Property Association of the Baptist Churches (Pvt.) Ltd. ]. Nobody pleaded that there was any surrender of tenancy. Hence, it is not necessary to deal with that aspect.
19. It needs to be seen whether the sale effected in the year 1952, by the landholder, has effaced the rights of protected tenancy. The petitioner did not make any reference to any sale, in respect of the land. He proceeded as though his father, Veera Mallaiah died in the year 1969, leaving the rights of his protected tenancy, intact. The record discloses that, at the instance of Veera Mallaiah, Ali-bin - Saleh, the landholder, executed a sale deed on 25-3-1952, in the name of his second son, Ramaiah. This transaction would have remained purely a private affair, without having any impact on others, had it been not validated. The purchaser Mr. Ramaiah, who is none other than the brother of the petitioner, initiated proceedings for validation, by filing an application under Section 50-B, in the year 1971, before the Tahsildar. Through proceedings dated 9-2-1972, the Tahsildar validated the sale. The relevance of Section 50-B, and the impact thereof, would be considered at a later stage. Suffice it to say that with the validation of the sale, Ramaiah became the absolute owner of the property.
20. The sale could certainly have been objected to, by the protected tenant or his legal representatives, since the sale, in favour of 3rd parties of a land covered by protected tenancy, is prohibited under Section 38-D. However, once the protected tenant himself mooted the proposal for sale, paid the consideration and had obtained the sale deed in favour of one of his sons, totally different consequences will ensue. Veera Mallaiah was alive till 1969, i.e. for a period of 17 years after the sale. Since the land continued to be under the possession and enjoyment of their own family, and the sale was at his instance, he did not object to the same. The occasion to examine the impact of non-observance of the procedure prescribed under Sub-sections (5), (6) and (7) of Section 38, read with Section 38-A of the Act does not arise, since the sale was not in favour of the tenant himself, but in the name of his son and nominee.
21. Out of the 4 sons of Veera Mallaiah, Ramaiah emerged as the purchaser. It is not as if the rest of the brothers remained as spectators, or that they slept over the matter. Two brothers by name, Narayana, and Shambhaiah filed O.S.No.72 of 1986 against Ramaiah, the petitioner, their mother, their sister and respondents 6 and 7, for partition of the land in the Court of District Munsif, Sanga Reddy. They pleaded that they went to different places for work and by the time they returned to their native place, respondents 6 and 7 were found cultivating the land. However, the suit was not pressed later. Thereby, the two brothers have acquiesced with the ownership of the land of their other brother, Ramaiah and the subsequent transfer made by him. The nature of adjustments or arrangements made between them is not evident, or relevant.
22. It is that, since the suit was dismissed, as not pressed, the effect thereof cannot be said to be binding upon the petitioner. Ramaiah executed a sale deed dated 2-5-1972 in favour of the respondents 6 and 7. In this sale deed, the petitioner as well as his mother, Balamma figured as witnesses. Obviously, not being aware of this sale, the other 2 brothers, by name, Narayana and Shambhaiah filed O.S.No.72 of 1986.
23. The possession of the land held by a protected tenant, or his legal representative, is required to be restored, irrespective of the time gap between the date of dispossession and date of application under Section 32. However, if the possession is enjoyed by a third party, as of right, with the acquiescence and approval of a protected tenant, or his successors, such restoration is impermissible. It is not as if the principle of estoppel and acquiescence are not applicable to the proceedings under the Act. If a protected tenant himself inducts a 3rd party into possession of the property, or, is a party to a transaction, directly or indirectly, for such transfer, he cannot turn around and fall back on Section.
24. If such a course of action is permissible, the whole object of the Act becomes defeated and becomes a tool in the hands of indiscriminate persons, to take innocent purchasers for a ride. Once it had emerged that the sale of the land by the landholder in the year 1952 took place at the instance of the protected tenant himself and the purchaser is none other than the son of the protected tenant, the land ceases to possess any characteristics of tenancy. The sale of the land in favour of respondents 6 and 7, with the knowledge and approval of the petitioner disables him to seek any remedy under Section 32.
25. There is another angle from which this aspect can be viewed. It is true that in Sada's case (1 supra), a Full Bench of this Court held that the possession of lands, held by a protected tenant, can be restored irrespective of the lapse of time. In Ponnala Narsing Rao v. Nallolla Pantaiah, (1989) 9 SCC 183 the Supreme Court took the view that an application for restoration of such a possession can be moved within a reasonable time, since the adversary may have changed his position in the meantime, and may have spent large amount on the land for improving it. This principle was followed by this Court in Bheemati Dawood v. Madichetty Rachaiah, .
26. In the instant case, if it is to be said that the protected tenant lost the possession over the land, it occurred in the year 1952. The same land was transferred 20 years thereafter, in favour of respondents 6 and 7. The application under Section 32 of the Act is filed 30 years thereafter. Whether one treats two spells as a single unit or two distinct spans of period; the delay is in decades. The record discloses that the respondents 6 and 7 have developed the land; obtained electric connections, brought it under cultivation, by incurring expenditure. From this point of view also, the application under Section 32 of the Act was not maintainable.
27. Extensive submissions were made, touching on the relevance of provisions of Section 50-B of the Act. It was alleged that the provision, if at all, applies only to lands, which are not covered by protected tenancies. It is difficult to accept such a broad proposition. The section does not maintain any distinction between the lands covered by protected tenancies, on the one hand, and the rest, on the other hand. It refers to the transfer of ''agriculture lands." The relevant criteria for this provision to operate are, the periods, during which, the sales have taken place. There is an intrinsic evidence, to show that it is applicable to all the lands, including those covered by protected tenancies. Sub-section (3) directs that the alienation or transfer of any land, under Sub-section (2), shall not affect the right accorded to any person under Section 37-A or Section 38-E of the Act. Therefore, it indirectly suggests that the lands, which are covered by protected tenancies, are also subject to Section 50-B. But, the validation does not affect the rights of the protected tenants, to the extent indicated above. Therefore, the submission made by the learned counsel for the petitioner, in this regard, cannot be accepted.
28. Now remains the question, as to whether there was a valid delivery of possession of the land in favour of the petitioner. Though this is consequential step, the necessity to deal with it arises on account of serious dispute regarding the present state of affairs.
29. Through his order dated 27-8-2004 the 9th respondent held that the petitioner is entitled to be restored possession, and accordingly directed the Mandal Revenue Officer, Patancheruvu, to restore the possession. Learned counsel for the respondents 6 and 7 submits that the copy of the order was made available to his clients on 17-9-2004. On the same day, a panchanama was conducted by the Assistant Mandal Revenue Officer, Patancheruvu. The panchanama reads that an extent of Ac.1.35 guntas of land situated in Sy.No.701 was delivered to the petitioner. The panchanama discloses that standing paddy crop was there, on the land, and value thereof was estimated at 42 quintals. The petitioner was delivered the possession of the land together with the crop, by directing him to offer 42 quintals of paddy to respondents 6 and 7. Therefore, it has to be seen whether this panchanama accords with law.
30. The panchanama does not speak about any notices, having been issued to respondents 6 and 7, or their presence, on the part. Even where no procedure is prescribed by any statute, a person in possession of the property can be dispossessed pursuant to the statutory proceedings, only after he is put on notice and given an opportunity to withdraw from the property. Necessary protection needs to be accorded, if a standing crop exists at the relevant time.
31. In exercise of power under Section 97 of the Act, Rules were framed, for the purpose of giving effect to Section 32 of the Act. They are called, the "Transfer of Possession and Eviction Rules, 1957". Rules 3 and 4 thereof, prescribe the procedure for resumption of the possession of the land and delivery of the same to the protected tenant. They read as under:
"3. (i) The Collector, Deputy Collector or the Tahsildar, as the case may be, shall on his own motion or on receipt of an application made by a person for being put in possession of land, issue a notice to the person whose occupation of the land is alleged or considered to be unauthorized of wrongful, to show cause within two weeks from the date of service of the notice as to why he should not be evicted from such land and the applicant or any other person be put in possession thereof.
(ii) The Collector, Deputy Collector or the Tahsildar, shall also issue a notice to the applicant or any other person to adduce within two weeks, evidence, if any, in support of his claim for possession of the land.
(iii) After expiry of the period of notice under Sub-rules (i) (ii), the Collector, Deputy, Collector or the Tahsildar shall, after hearing such objections and representations as are made before him determine:
(i) whether or not the occupation is unauthorized or wrongful, and
(ii) whether the claim for being put in possession by the applicant or any other person is valid and shall pass an order accordingly.
(iv) In case the present occupation is held to be unauthorized or wrongful the order shall specify the time within which the unauthorized or wrongful occupant shall vacate the land and hand over possession to the person in whose favouran order has been passed. Every such order to vacate shall be complied with within the time specified therein.
4. If the person who is required to vacate the land under Rule 3 does not comply with such order within the period specified he shall be removed from the said land by force, and shall also be liable to a fine up to Rs.200."
32. A perusal of the same discloses that a show cause notice of not less than two weeks is required to be served on the land- owner, consequent on the order passed under Section 32. It is only when the direction contained in the notice issued under Rule 3 is not complied with, that the concerned authority can proceed to remove the person from the said land by force and impose a fine under Rule 4. In the instant case, these rules were followed by the concerned agency only in total breach. No notice, worth its name, let alone, the one giving two weeks time, was served on the respondents and 6 and 7. The copy of the order under Section 32 of the Act was made available to the respondents 6 and 7 on 17-9-2004. On the same day, the possession is said to have been delivered. The Assistant Mandal Revenue Officer, made a farce of delivery of possession in utter violation of the mandatory provisions prescribed under the statutory Rules. Therefore, the same cannot be recognized in law, and this Court takes serious exception to the way in which the officials concerned, have committed flagrant violation of statutory Rules.
33. The C.R.P. is accordingly dismissed, and it is held that the petitioner shall not have any right over the land in question. The 9th respondent, Revenue Divisional Officer, Sanga Reddy, shall take immediate steps to restore possession to the respondents 6 and 7.