Thummala Chandrasekhar Rao vs Guguloth Vasram

Motilal B. Naik, J.—This revision petition is filed u/s 91 of the Andhra Pradesh (Telangana Area) Tenancy & Agricultural Lands Act, 1950 aggrieved by the order dated 3-8-1990 in C.M.A.No. 4 of 1988 made by the joint Collector, Khammam.

The case of the petitioner is that by virtue of an agreement for sale dated 8-6-1965 entered into by the father of the petitioner with the respondent for the purchase of land to an extent of Ac. 1-20 guntas in S.No. 739 situated in Bayyaram village of Khammam district, the father of the petitioner came into possession of the said land. The total sale consideration agreed to between the parties was Rs. 800/-, out of which an amount of Rs. 600/- was paid on the date of agreement and the balance amount of Rs. 206/- was agreed to be paid after a month at the time of registration of the sale-deed. It is stated that originally, the father of the respondent was a tenant-in-occupation of the land in question and later on he was given patta certificate in respect of an extent of Ac.3-00 of land in the said S.No. 739 u/s 38-E of the A.P. (Telangana Area) Tenancy & Agricultural Lands Act, 1950 (''the Act'' for short), which was notified on 1-11-1955. Subsequently, the land, which is the subject-matter of the agreement, fell to the share of the respondent in family partition. While so, the 1 respondent seems to have filed an application before the Tahsildar, Sudimalla seeking eviction of the petitioner and restoration of the land to him alleging that the petitioner has trespassed into the land in the guise of the agreement for sale. The said application was dismissed by the Tahsildar. Aggrieved by the order of dismissal, the respondent preferred C.M.A.No. 2/84 before the Joint Collector, Khammam, who, by order dated 20-4-1985, remanded the matter to the Mandal Revenue Officer, Bayyaram, with a direction to conduct an enquiry de novo. On remand, the Mandal Revenue Officer, by order dated 5-9-1985, upheld the validity of agreement for sale and consequently refused to evict the petitioner from the land in question. The respondent, therefore, filed C.M.A.No. 4/88 before the Joint collector, Khammam, who, in turn, by order dated 3-8-1990, set aside the order of the Mandal Revenue Officer, dated 5-9-1985, and ordered restoration of possession of the land in question to the respondent by holding that possession of the petitioner is unauthorised. It is this order of the Joint Collector, Khammam dated 3-8-1990 which is impugned in this revision petition.

Sri. J.V. Prasad, learned Counsel for the petitioner, contends that the Joint Collector has not properly construed the provisions contemplated u/s 48-A of the Act and passed the impugned order without appreciating the provisions of the Act. It is also contended that a protected tenant of any land in respect of which he has acquired the right of ownership u/s 38-E of the Act cannot alienate the said property within a period of eight years from the date of grant of patta. But, in the instant case, Sri Prasad argues, the patta in favour of the father of the petitioner (sic. respondent) was issued u/s 38-E on 20-8-1955 whereas the agreement between the father of the petitioner and the respondent was arrived at on 8-6-1965 i.e., after more than eight years, thereby the embargo of eight years contemplated u/s 48-A of the Act was over and that, therefore, the petition seeking to evict the petitioner under the provisions of the Act cannot be maintained. It is contended further that the lower appellate authority has failed to appreciate the aspect of time factor which is very crucial for the protected tenant to seek restoration of possession of the land u/s 48-A of the Act. Sri Prasad also contended that the petitioner filed a suit, O.S.No. 46/68 before the Revenue Divisional Officer, Kothagudem for specific performance; that suit was decreed; the decree has become final and, therefore, the respondent is not entitled to evict the petitioner from the land in question.

Sri Ella Reddy, learned Counsel for the respondent, on the contrary submits that the respondent is an illiterate tribal; the implication contemplated in entering into the agreement for sale was not known to him; the respondent believed the agreement to be a mortgage of the property with the petitioner''s father and though the property involved in the sale transaction is only Ac.1-20 guntas, the petitioner has forcibly occupied the entire extent of Ac.3-00 in respect of which the respondent''s father acquired the ownership by virtue of patta certificate issued u/s 38-E of the Act. Sri Ella Reddy has taken me through the relevant observations made by the lower appellate authority in its order dated 4-8-1990 in CMA.No. 4/88. It is the finding of the lower appellate authority mat the petitioner has not produced any documentary evidence in support of his contention that his father purchased the land from the respondent. It is also the finding of the lower appellate authority that the agreement in question is not a registered document; that me sale consideration was not totally paid; that the agreement is not valid and that the possession of the petitioner over the land is unauthorised. Therefore, the lower appellate authority directed restoration of possession of the land to the respondent.

Admittedly, the entire claim of the petitioner rests solely on the agreement for sale for an amount of Rs. 800/- said to have been entered into between the petitioner''s father and the respondent. Even assuming for a moment that there was an agreement for sale, till such agreement is registered, it cannot be said that it is a valid document for claiming the rights. No doubt, a decree for specific perofrmance was obtained by the petitioner on 17-7-1970 from the Revenue Divisional Officer, Kothagudem in O.S.No. 46 /68, but no execution proceedings were initiated within 12 years from the date of that decree. Therefore, under the law that decree became non-est. It is not disputed that the father of the respondent was the original protected tenant. He could alienate the property in question after the expiry of period of eight years as contemplated u/s 48-A of the Act. In the instant case, the agreement was entered into by the son of the protected tenant. Section 40 of the Act makes it clear that (1) all rights of a protected tenant shall be heritable. (2) If a protected tenant dies, his heir or heirs shall be entitled to hold the tenancy on the same terms and conditions on which such protected tenant was holding the land at the time of his death and such heirs may, notwithstanding anything contained in the Act, sub-divide inter se according to their shares the land comprised in the tenancy to which they have succeeded. (3) If a protected tenant dies without leaving any heirs, all his rights shall be extinguished.

Thus it is clear from Section 40 of the Act that during the survival of a protected tenant, the property does not pass on to his legal heirs. It is only on the demise of the protected tenant, such property passes to his heirs. In the instant case, it is not the case of the petitioner that the protected tenant was no more alive as on the date of alleged agreement and the property vested in the respondent. That being the contingency, even if the respondent sells the property of his father, who was the protected tenant, in my view, such sale has no legal sanctity and, therefore, would not entitle the petitioner to claim possession of the property in terms of agreement for sale entered into between the father of the petitioner and the respondent.

Since I have held that the agreement for sale entered into between the father of the petitioner and the respondent is not valid in terms of Section 40 of the Act, the question of probing into the period of eight years contemplated u/s 48-A of the Act is not at all necessary. As held by the Joint Collector, possession of the petitioner is unauthorised. Therefore, I do not find any illegality in the finding of the Joint Collector. When once possession of the petitioner is held to be unauthorised, the protection sought by him u/s 53A of the Transfer of Property Act has no implication on the facts of mis case.

The Andhra Pradesh (Telangana Area) Tenancy and Agricultural Lands Act, 1950 is a special enactment brought out by the legislature safeguarding the interests of protected tenants. This enactment is a sort of social legislation conferring benefits on such tenants who have fulfilled the requirements contemplated under the provisions of the Act, and a certificate of patta is also issued u/s 38-E on fulfilling the conditions. Therefore, the Court deciding a case pertaining to this type of enactments has to necessarily keep its eyes open and try to take note of the background under which such a legislation has been brought out by the legislature. If, on technicalities, this type of legislations are allowed to be defeated or water downed by few, who are rich and influential, in my considered view, the very purpose of bringing such enactments would be lost. The object of achieving social justice would only remain on paper.

The endeavour of our Constitution is to render social justice to all sections of the society. Therefore, the authorities, who are to implement such enactments, which are special in the nature, contemplated for rendering social justice, have a special responsibility while determining the rights of affected parties and remind themselves of the intention of the legislature in bringing out such enactments. If the authorities fail to recognise the endeavour of the Constitution and the background of social legislation and only consider such enactments as mere rituals, the objectives of the Constitution would be defeated. Therefore, it goes without saying that the efforts of Executive and Judiciary also should be in the pursuit of rendering social justice.

In State of Karnataka Vs. Appa Balu Ingale and others, while dealing with the matter pertaining to enforcement of social disabilities falling within the purview of Section 4 of the Protection of Civil Rights Act (22 of 1955), the Supreme Court observed:

" Judiciary acts as a bastion of the freedom and of the rights of the people. Jawaharlal Nehru, the Architect of Modern India as early as in 1944 stated that the spirit of the age is in favour of equality, though the practice denies it almost everywhere, yet the spirit of the age triumphs. The Judge must be attune with the spirit of his/her times. Power of judicial review, a constituent power has, therefore, been conferred upon the judiciary which constitutes one of the most portent and potent weapons to protect the citizens against violation of social, legal or constitutional rights. The judges are participants in the living stream of national life, steering the law between the dangers of rigidity and formlessness of the other in the seem less web of life. The great tides and currents which engulf the rest of the men do not turn aside in their course and pass the judges idly bye-Law should sub serve social purpose. Judge must be a jurist endowing with the Legislator''s wisdom, historian''s search for truth, prophet''s vision, capacity to respond to the needs of the present, resilience to cope with the demands of the future and to decide objectively disengaging himself/herself from every personal influence or predilections. Therefore, the Judges would adopt purposive interpretation of the dynamic concepts of the Constitution and the Act with its interpretative armoury to articulate the felt necessities of the time. The Judge must also bear in mind that social legislation is not a document for fastidious dialects but means of ordering of the life of the people. To construe law one must enter into its spirit, its setting and history. Law should be capable to expand freedoms of the people and the legal order can weigh with utmost equal case be made to provide the underpinning of the highly inequitable social order. The power of judicial review must, therefore, be exercised with insight into social values to supplement the changing social needs."

It is also observed:

"........It is in such surging situation the presence and consciousness and the restraining external force by judicial review ensures stability and progress of the Society. Judiciary does not forsake the ideals enshrined in the Constitution, but make them meaningful and make the people to realise and enjoy the rights."

The Supreme Court further observed:

"The Judges, therefore, should respond to the human situation to meet the felt necessities of the time and social needs, meaningful right to life and give effect to the Constitution and the will of the legislature."

The background of the entire case discloses that the petitioner is trying to convert the provisions of the Act into a mere ritual. Merely because the petitioner has an agreement for sale, he is not entitled to claim the ownership of the property. According to the terms of agreement, the sale consideration is Rs. 800/-, out of which only an amount of Rs. 600/- is said to have been paid. There is nothing on record to show that the balance amount of Rs. 200/- has been paid and the document is registered. Merely acting upon the sale agreement, the primary authority has held the sale as valid, which action defeats the very object of the enactment and conferred benefits on the petitioner who is not entitled to such benefits.

During the course of arguments, it was made known to me that though the respondent was put in possession of the land in question pursuant to orders made by the Joint Collector in CM. A.No. 4/88 by conducting a panchanama on 29-11-1990, by virtue of interim order of suspension granted by this Court on 30-11-1990 in C.M.A.No. 16867/90, the land has been once again restored back to the petitioner. The respondent filed CM.P.No. 531/1991 for vacting the interim order of suspension granted by this Court on 30-11-1990. My learned brother P.L.N. Sarma J., considered the said petition and by order dated 13-2-1991 directed the petitioner not to harvest the crops, and further directed the revision petition for final hearing. Sri Prasad, learned Counsel for the petitioner, states that the petitioner is in possession of the land as yet by virtue of the order of interim suspension granted by this Court on 30-11-1990. If that is so, I hold that the petitioner is not entitled to retain possession of the land.

In view of the above discussion, I hold that the petitioner has not made out a case warranting interference with the order impugned. The revision petition is accordingly dismissed with costs.

Since the revision petition is dismissed, the consequential effect would be that the respondent is entitled to restoration of possession of land in question. A perusal of panchanama conducted on 29-11-1990 would indicate that the petitioner was in possession of not only an extent of Ac.1-20 guntas of land but also the entire extent of Ac.3-00 in S.No. 739 and the same was re-delivered to the respondent under that panchanama. By virtue of the interim order of suspension granted by this Court, it is made known to me by the learned Counsel for the respondent that the petitioner has come into possession of the entire land.

In ordinary circumstances, this Court would either dismiss or allow the petitions which come up for consideration. In a case of this nature, where this Court is satisfied that gross injustice is done to the respondent contrary to the provisions of the Act, which is no doubt a social legislation, this Court is not helpless in rendering justice. I, therefore, feel that this is a fit case where Courts have to make an order meeting the contingencies. Under these circumstances, the Mandal Revenue Officer, Bayyaram Mandal, Khammam district is directed to make an enquiry whether the petitioner is in possession of the entire extent of Ac.3-00 of land in S.No. 739 situated in Bayyaram village, which belongs to the respondent, and if so, re-deliver possession of the entire land to the respondent under a panchanama. While so doing, the Mandal Revenue Officer may fix a date for complying with this order intimating the parties concerned and also take such assistance which he deems fit including that of law enforcing agency. The Superintendent of Police, Khammam is directed to issue instructions to the concerned police to render necessary assistance to the Mandal Revenue Officer, Bayyaram, if he so desires, in complying with the order of this Court. The entire exercise of re-delivery of possession of Ac.3-00 of land in S.No. 739 shall be completed within a period of fifteen days from the date of receipt of this order.