Y. Latchi Raju vs State of A.P. and others

This civil revision petition is directed against the order of the Land Reforms Appellate Tribunal dated 29-4-1995 in LRA No.27 of 1995 confirming the orders of the Land Reforms Tribunal dated 25-3-1995 passed in LCCNo.432/MMD/75.

The petitioner before us claims to be a tenant in the schedule property and subsequently, according to him, he purchased the same in 1978. The declarant who is the 3rd respondent, inspite of notice, did not submit any surrender proposals. The Tribunal, according to the petitioner, selected his land which was in his possession and enjoyment. The petitioner, therefore, submitted his objections, but the Tribunal did riot give any notice to the petitioner regarding the same. According to the petitioner, if notice was served upon him, he would have apprised the Tribunal of all the facts. But the Tribunal passed an order holding the land in possession of the petitioner to be the excess land. The petitioner filed an appeal against the said order in LRA No.27 of 1995 but the same was dismissed and against the same, the petitioner has come in revision before this Court.

Further, according to the petitioner, u/s 10 of the A.P. Land Reforms (Ceiling on Agricultural Holdings) Act 1973 (for short ''the Act'') the land which was unencumbered must be selected. When the petitioner purchased the land in question under a registered sale deed, the ceiling proceedings were over. However, according to the petitioner, the declarant was in possession of other lands which were more valuable and the land now sought to be taken was in excess of what was necessary in terms of the standard holdings.

Further according to the petitioner all sales subsequent to 1-1-1975 need not necessarily be void. If other land belonging to the declarant was available, the same should be taken into consideration for the purpose of ''surrender''.

The appellate Tribunal on the question of the land to be selected for surrender, observed that since the 3rd respondent failed to propose lands of his choice for surrender, the impugned order had to be passed accepting the land in question for surrender which was provisionally selected by it earlier. The appellate Tribunal, on the question whether an opportunity of hearing was required to be given to the petitioner and whether the order was liable to be set aside on the ground that enquiry was not held, observed that the petitioner/ appellant was the cultivating tenant of the land to the extent of Ac.3.80 cents in S.No.823/1 of which the land in question formed part and parcel since 1970 and that the petitioner/appellant purchased the same by a registered sale deed executed on 28-8-1979. The appellate Tribunal further observed that the sale deed executed subsequent to 1-1-1975 would not be treated as valid. The objection petition was filed by the appellant on 2-3-1995 and the impugned order was passed on 25-3-1995. The learned appellate Tribunal further observed that a perusal of the objection petition should that the appellant had contended that he purchased the land in question for valuable consideration under registered sale deed dated 28-8-1978 not being aware of the fact that it was covered by the Land Ceiling Act and he came to know about the same when notice u/s 19(4) of the Act was given. There was no whisper in the objection petition that he was a tenant of the land in question which formed part and parcel of bigger extent of Ac.3.80 cents since 1970. For the first time it was urged that the appellant was a cultivating tenant since 1970. The tax receipts filed by him were subsequent to 1-1-1975. The adangal extracts relied upon by him were for the years 1995 which did not contain his name as a tenant of the lands in question. The declaration also was silent on this aspect. Though the declarant filed several appeals earlier, he did not urge anything in the appeals that the appellant was the cultivating tenant. According to the learned Presiding Officer of the appellate Tribunal, except the bald assertion of the appellant in the grounds of appeal which was not corroborated by recitals in the objection petition filed by him or the recitals in the sale deed, there was no material on record to show prima facie that he was the cultivating tenant of the land in question. The Tribunal further observed that the appellant came up with this belated plea to stall further proceedings.

The Tribunal also held that u/s 17(1) of the Act, the appellant is not entitled to call upon the lower Tribunal not to accept or select for surrender the said land. Further, according to the appellate Tribunal, the objection petition was not maintainable having regard to the fact that the transaction was subsequent to 1-1-1975 and there was no need, therefore, to give further opportunity of hearing to the appellant.

The appellate Tribunal also took into consideration the submissions made on behalf of the appellant that though the declarant was found to be holding land equivalent to 0.0752 S.H. in excess, the land accepted by the lower Tribunal under the impugned order was in excess of the said extent and thai the land in question was originally treated by the lower Tribunal as DCW land, but on appeal it was ordered to be treated as SCW land, that in Form No.VIII notice also the lower Tribunal classified it as SCW land, but in the impugned order it was classified as dry land, and, therefore, the argument advanced by the learned Counsel that the lower Tribunal erred in accepting it had no merits.

Eventually the appellate Tribunal held that it was not open for the appellant who was a third party to contend that the land accepted for surrender under the impugned order was in excess of the land liable to be surrendered by the declarant. It was for the declarant to challenge that the lower Tribunal had accepted excess land for surrender and, therefore according to the learned appellate Tribunal, this ground was not available to the appellant to challenge the impugned order. The appeal, therefore, was found to be not having any merit and dismissed the same confirming the order of the lower Tribunal.

u/s 19(1) of the Act, if the extent of the holding of a person is in excess of the ceiling area, the person shall be liable to surrender the land in excess. Subsection (2) of Section 10 of the Act deals with the requirement of serving notice on every person who is liable to surrender the land held in excess of the ceiling area. Under sub-section (3) of Section 10 of the Act, the Tribunal is required to record satisfaction whether the proposed surrender of the land is in accordance with the provisions of the Act. Sub-section (4) of the said section provides that if the person on whom a notice is served under sub-section (2) does not file the statement referred to in that sub-section within the period fixed therefore or files such statement within the period fixed but does not specify therein the entire extent of land which such person had to surrender, the Tribunal may, after giving an opportunity to the person concerned of being heard, itself select in the former case the entire extent, and in the latter case, the balance of the extent which such person had to surrender, and pass an order to that effect, and thereupon the said land or balance of land, as the case may be, shall be deemed to have been surrendered by such person.

Prohibition of alienation of holdings is dealt with in Section 17 of the Act which is reproduced below;

"77. Prohibition of alienation of holdings:--

(1) No person whose holding, and no member of a family unit, the holding of all the members of which in the aggregate, is in excess of the ceiling area as on 24th January, 1971 or at any time thereafter, shall on or after the notified date, alienate his holding or any part thereof by way of sale, lease, gift, exchange, settlement, surrender, usufructuary mortgage or otherwise, or effect a partition thereof, or create a trust or convert an agricultural land into non-agricultural land, until he or the family unit, as the case may be, has furnished a declaration u/s 8, and the extent of land, if any, to be surrendered in respect of his holdings or that of his family unit has been determined by the Tribunal and an order has been passed by the Revenue Division Officer under (his Act taking possession of the land in excess of the ceiling area and a notification is published u/s 16; and any alienation made or partition effected or trust created in contravention of this section shall be null and void any conversion so made shall be disregarded.

(2) For the purposes of determining whether any transaction of the nature referred to in sub-section (1) in relation to a land situated in this State, took place on or after the notified date, the date on which the document relating to such transaction was registered shall, notwithstanding anything in Section 47 of the Registration Act, 1908 (Centra! Act 16 of 1908), be deemed to be the date on which the transaction took place whether such document was registered within or outside the State.

(3) The provisions of sub-section (1) shall apply to any transaction of the nature referred to therein in execution of a decree or order of a civil Court of any award or order of any other authority."

It becomes abundantly clear from Section 17 of the Act which is reproduced above that no transaction of sale of any land which is in excess of ceiling area as on 24-1-1971 shall on or after the notified date be alienated in any manner as set out in the said section until a declaration u/s 8 has been furnished and the extent of land to be surrendered has been determined by the Tribunal. In the case before us, the sale deed was executed and registered on 28-8-1978, but it has not been shown or established by the petitioner that a declaration was furnished u/s 8 of the Act and the extent of land to be surrendered had been determined by the Tribunal before the execution of the sale deed on 28-8-1978.

The rules framed under the aforesaid Act also provide under clause (c) of Rule 7 as under :

"(c)Where, the Tribunal passes the final order accepting such surrender it shall authenticate the provisions subdivision or survey record in respect of the land so surrendered and accepted and forward the same together with the order u/s 10 to the Tahsildar concerned for further action to finalise the sub-division or survey under the Andhra Pradesh Survey and Boundaries Act, 1923."

It is evident from the order passed by the Addl. Revenue Divisional Officer, Land Reforms, Kakinada in Proceedings No.LCC No.432/MMD/75, dated 7-2-1994 that the holder of the land had failed to submit the surrender statement till the date of passing the said order i.e., 7-2-1994 and, therefore, the Addl. Revenue Divisional Officer, Land Reforms, Kakinada, provisionally selected the land for surrender u/s 10(4) of the Act, the particulars of which are mentioned in the said proceedings dated 7-2-1994. By way of said proceedings, the land holder was informed that representation, if any, in this regard may be made within 15 days from the date of receipt of the notice failing which final order u/s 10(4) of the Act would be passed by the Land Reforms Tribunal, Kakinada, presuming that the land owner had no objection for the proposed surrender. It has not been brought to the notice of the Court whether the land owner was aggrieved by the proceedings dated 7-2-1994 so as to enable the Competent Authority to pass final order u/s 10(4) of the Act.

The above requirements of the Act have not been satisfied and inspite of the fact that no clearance was obtained from the Land Ceilings Authority as required by law, the land in question was sold to the petitioner on 28-8-1978 by a registered sale deed. Since the requirements of law have not been satisfied, the sale deed executed on 28-8-1978 cannot be treated as transferring the ownership of the Vendor to the Vendee and in that view of the matter, the decision taken by the authorities to subject the land in question to surrender cannot be called in question.

During the course of arguments, the learned Counsel for the petitioner laid emphasis on the contention that the principles of natural justice were not followed inasmuch as the petitioner was not afforded opportunity of being heard and, therefore, the appellate Tribunal''s order was defective. He also urged that it was the duly of the Tribunal to verify whether there was any encumbrance on the land in question and the same could have been subjected to surrender only if it was found that there was no encumbrance on the land. It was also argued by the learned Counsel that the land in question was a wet land and, therefore, the same was a valuable piece of land which factor precluded the authorities from subjecting the same to surrender. In support of the submissions, the learned Counsel for the petitioner placed reliance on the decision of this High Court in the case of G. Pothuraju v. M.S. Prabhakar Rao, 1993 (3) ALT 987. It was held in the said decision that the declarant having sold under agreement of sale, having received the entire amount and having delivered physical possession to Forth Sathiraju (Agreement holder) could not surrender the same land towards his excess holding. My attention was invited to para 16 of the said decision in which it was observed that :

"..... The record is produced before me. I perused the record. The Agreement of sale Ex.A3 is found on record at page 161. The endorsement Ex.A5 is at page 163. In this it is clearly mentioned that physical possession of the land was given to Sathiraju. Therefore, Sathiraju can certainly defend his right, by virtue of Section 53-A of the Transfer of Property Act. As a matter of fact, Salhiraju also included this land in LCC No. 1930/PDF/75 and this was computed in his holding and he surrendered the excess of 51 cents on 18-7-1980. It is true the 1st respondent also joined in sales in Exs.C6 to C8. This might be because no clear title had passed under agreement of sale to Gorthi Salhiraju. That does not mean that Gorthi Sathiraju has no right at all in the land. The sales pertaining to the revision petitioners are of the year 1987. Those sales cannot be held bad because the right of the original vendor Gorthi Sathiraju cannot be doubted."

In my opinion, however, the ratio emerging from the above decision of the learned single Judge of this High Court cannot be applied to the facts of this case because the agreement of sale in favour of Gorthi Salhiraju was made on 10-3-1972 which was much prior to the commencement of the Act in question. This agreement of sale was for a total consideration of Rs.30,000/-. On the date of the transaction an amount of Rs.10,000/- was given in advance. There was an endorsement of the 1 st respondent dated 26-4-1972 that an amount of Rs. 15,000/-was received from Gorthi Sathiraju and physical possession of the land was also delivered to him.

From the above facts, it clearly appear that not only substantial amount of the consideration was paid to the vendor, but in part of performance of the agreement of sale, the possession had also been delivered to the purchaser on 26-4-1972 which was much prior to the commencement of the Act. In the case before us, the land in question was sold to the petitioner on 28-8-1978 and the Appellate Tribunal held that the sale deed executed subsequent to 1-1-1975 could not be treated as valid. There is a world of difference between the proposition of law and facts in the case before us and in the case before my learned brother K.B. Siddappa, J., in G. Pothuraju''s case (supra) and, therefore, there could be no slur on the proposition that the sale deed executed in favour of the petitioner was not valid in the eye of law.

With regard to the proposition advanced by the learned Counsel for the petitioner that no satisfaction was recorded whether there was any encumbrance on the land in question and on that ground also the impugned order was not sustainable, 1 am of the opinion that the same is far away from the restrictions imposed by the Act. A sale deed which is held to be bad in law cannot be treated as an encumbrance on the land and apart from the sale deed, the petitioner has not pointed out any other constraints which could be treated as an encumbrance on the land. Even if existence of an encumbrance is established, it is necessary that such an encumbrance should have come into existence prior to 1-1-1975. Encumbrances, if any, created after the commencement of the Act cannot be treated as valid and lawful encumbrance so as to save the land on which such encumbrance is imposed from being treated as excess land.

An objection is also taken by the petitioner that the principles of natural justice were violated having regard to the fact that no opportunity of hearing was given to him before passing the final order. Indeed, the principle audi alarm partem cannot be disregarded. But in a case where the party claiming the right of being heard has not come with clean hands and has been found to be indulging into defeating the provisions of law and projecting a right which was ostensibly not available, cannot be allowed to invoke the principles of equity. In the case before us, transfer of property after commencement of the statute in question on 1-1-1975, was totally excluded except in accordance with the said statute. We have recorded our finding that the petitioner had no right whatsoever to claim ownership of the part of land which was declared surplus and, therefore, no prejudice could be treated as having been caused to the petitioner if he was not given the opportunity of hearing. I am, therefore, not impressed by the submission made on behalf of the petitioner that he was deprived the opportunity of being heard.

For all the above reasons, therefore, I do not find any merit in the revision petition. Hence, the CRP is dismissed. The order of the Land Reforms Appellate Tribunal dated 29-4-1995 in LRA No.27 of 1995 confirming the orders of the Land Reforms Tribunal dated 25-3-1995 passed in LCC No.432/MMD/75 is upheld. No costs.