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2007 DIGILAW 186 (AP)

Gaddam Bheemaiah v. Joint Collector, Adilabad District

2007-02-21

G.YETHIRAJULU

body2007
ORDER: This review civil miscellaneous petition has been filed by the revision petitioners praying to review the order, dated 21.2.2007 passed by this Court in CRP No.1442 of 2004. 2. Two orders were passed by the MandaI Revenue Officer, Mancherial on 6.10.1990 and' on 15.11.1988 cancelling the certificate of ownership issued under Section 38-E of the Andhra Pradesh (Telangana Area) Tenancy and Agricultural Lands Act, 1950 (for short 'the Tenancy Act') in :avour of Gaddam purgai!}h, the father of the revision petitioners, after issuing a show-cause notice to the petitioners by alleging that the land was sold - away by the petitioners to many persons; that the protected tenant should not do any acts of destruction of property, subdivision or sub-letting or failure to cultivate the land personally or assignment of interest or using of the land for any purpose other than agriculture. Therefore, the protected tenancy certificate is liable to be - cancelled. The MandaI Revenue Officer made a spot inspection and observed that in Survey No.93 so many residential houses have been built and no cultivation was being taken up for more than 20 years and the land covered by Survey No.92 has been used as playground of the high school. Being aggrieved by the order of the MandaI Revenue Officer, appeal has been preferred before the Joint Collector and the Joint Collector dismissed the appeal by confirming the order passed by the Mandai Revenue Officer. Being aggrieved by the same, the review petitioners preferred the revision petition and this Court passed an order on 21.2.2007 dismissing the civil revision petition by confim1ing the order passed by the Joint Collector. 3. Being aggrieved by the same, the review petitioners preferred the revision petition and this Court passed an order on 21.2.2007 dismissing the civil revision petition by confim1ing the order passed by the Joint Collector. 3. Being aggrieved by the order of this COUli dated 21.2.2007, the petitioners filed the present review petition requesting to review the said order by contending that the protected tenant, who lost the possession, has always a right to seek recovery of possession under Section 32 of the Tenancy Act; that the protected tenancy certificate was issued much before 1.1.1973 the date on which the certificate was granted to late Gaddam Durgaiah; that any sale by the protected tenant before he is granted with ownership rights is null and void, therefore, the benefit shall be given to the tenant; that merely because the land has been converted into non-agricultural land, it will not take away the right of protected tenant over the land and as the certificate under Section 38-E of the Act is a conclusive proof of title, the impugned order is liable to be set aside by reviewing the order passed by this Court in the revision petition. 4. In the civil revision petition, this Court observed that the first petitioner was declared as a protected tenant with effect from 1.1.1973 and earlier to that he was only a tenant. The record discloses that late Gaddam Durgaiah was in possession of the land to an extent of Ac.6.22 guntas in Survey No.92 and Nelli Ramulu was in possession of the land to an extent of Ac.6.28 guntas as per the entries made in Kasara Pahani for the year 1954-55. Gaddam Durgaiah sold away an extent of Ac.6.28 guntas of land to Nelli Ramulu, through the sale deed dated 20.1.1954 while he was the tenant of the land. By the date of the said sale, late Gaddam Durgaiah did not acquire ownership over the land. It further discloses that late Gaddam Durgaiah sold away the land' for non-agricultural purpose and the houses were constructed in the said land, RTC bus depot was also established and the High School was using a part of the land as playground. It was further observed that though he was in possession of the land as on the relevant date, he voluntarily sold away the land violating the conditions mentioned in Section 19 of the Act. It was further observed that though he was in possession of the land as on the relevant date, he voluntarily sold away the land violating the conditions mentioned in Section 19 of the Act. The revenue authorities without proper verification issued the protected tenancy certificate in favour of the first petitioner on account of the fraud played by him contending that he is in possession and enjoyment of the property without disclosing that he sold away the property to others and houses were being constructed. The object of the Act is to protect the interest of the tenants of agricultural lands. But, when the tenant resorts to sell away the property for nonagricultural purpose before recognizing him as a protected tenant, he is no entitled to agitate that he did not violate any condition and the cancellation of certificate is illegal. It was further observed by this Court in Paragraph 21 of the Order that the Act is applicable to the agricultural land and whereas in the present case, the land was converted into non-agricultural land in the year 1954 by alienating the same for construction of houses and establishment of RTC bus depot, therefore, the Act is not applicable to the present case. There is no scope to question the action of the revenue authorities in cancelling the Section 38-E certificate wrongly issued in favour of the petitioners. 5. The learned Counsel for the review petitioners cited the following decisions in support of their contention that the order, dated 21.2.2007 passed by this Court in CRP No.1442 of 2004 is liable to be reviewed. (i) In Islamia Arabic College v. Shanta Bai, 1988 (1) AL T 73, a learned Single Judge of this Court while considering Section 1 02( e) of the Tenancy Act held that mere inclusion of the agricultural lands within the municipal limits does not have the effect of taking them away from the purview of Section 102(e) of the Act. (ii) In Uppari Muthamma and others v. Special Tribunal, Hyderabad and others, 1997 (5) ALD 1 (DB), a Division Bench of this Court held that any transfer of land by protected tenant before the issue of certificate under Section 38-E of Tenancy Act is not valid as it is hit by Section 47 of Tenancy Act and Section 43 of Transfer of Property Act does not get attracted to the said transfer. (iii) In Polta Nagabhushanam and another v. Revenue Divisional Officer, Kothagudem, Khammam District and others, 2000 (6) ALD 749 , a leamed Single Judge of this Court held that a tenant who obtained a protection certificate, but lost possession of the land can seek its restoration under Section 32, but not under Section 38 of Tenancy Act. The Court fUliher observed as follows : "Under the scheme of the Act, a protected tenant is entitled to be declared as owner of the land. When he is not in possession, notwithstanding any judgment, decree or order of any Court or any revenue Tribunal, the law presumes the protected tenant to be in possession of the land and when once a certificate is issued under Section 38-E of the Act, it shall be lawful for the Tahsildar to restore physical possession to the protected tenant (holder of the celiificate), as, such certificate holder is entitled to possession of the land covered by the certificate. In this background, Section 32 may be examined. If a protected tenant who is not in possession as on the notified date but still, by virtue of explanation to Section 38-E got a certificate of ownership, has necessarily to take back possession either under Section 32 or Section 36 of the Act. As Section 36 contains a limitation of six months the protected tenant who got certificate on 1.1.1973 can get back only under Section 32 of the Act and not under Section 98 of the Act. Section 98 does not empower the Collector or any authority to restore possession. It only provides for summary eviction. Though there appears to be overlapping of the various provisions, a careful scrutiny Gaddam Bheemaiah and others v. Join leads only to one conclusion that whether a person is tenant or a protected tenant he can get back possession only under the provisions of Section 32 or Section 36 of the Act. As already noticed, if a protected tenant is entitled under any provisions of the Act including Section 38E(2) or Section 36, the procedure to be adopted by the Tahsildar is only as adumbrated under Section 32 of the Act. As already noticed, if a protected tenant is entitled under any provisions of the Act including Section 38E(2) or Section 36, the procedure to be adopted by the Tahsildar is only as adumbrated under Section 32 of the Act. The explanation to Section 38-E is categorical that even when a protected tenant is not in possession of the land, notwithstanding any judgment decree, order of the Court, for the purpose of Section 38-E, he shall be deemed to be holding the land on the date of notification. In the case on hand, the third respondent sold his land on 27.4.1958, but by virtue of the legal fiction he shall be deemed to be holding the land and that is the reason why he was given ownership certificate under Section 38-E of the Act on 1.1.1973. Therefore, in my considered opinion, when a person like protected tenant is deemed to be holding the land there is no occasion for attracting the provisions of Section 98 of the Act providing for summary eviction. The protected tenant is to be restored physical possession of the land." 6. The above decisions are applicable to a case where the tenant looses possession otherwise than by his voluntary act of receiving consideration and selling away the property to others for the purpose of using it for non-agricultural purpose, like constructing houses, constructing RTC bus depot and playground to the High School etc., and the petitioners did not question their own action for more than two decades and the purchasers have been enjoying the property uninterruptedly for more than a statutory period. So long as the land is used for agricultural purpose, the Tenancy Act is applicable and when once the land is converted into non-agricultural land, and being used for non-agricultural purpose, the provisions of the Tenancy Act are not applicable to such land and the remedy, if any, to the petitioners is only to approach the civil Court. 7. In H.A. Mohan Kumar and others v. P. Muralidhar alld others, 2005 (5) ALD 552 (DB), a Division Bcnch of this Court considered the scope of Order 47 Rule I of CPC and held as follows: "The review cannot be treated as an appeal in disguise. Power of review can be exercised for correction of the mistakes and not to substitute a view. Power of review can be exercised for correction of the mistakes and not to substitute a view. Even if there is possibility of two views on the subject, yet it is not a ground for review. There is a clear distinction between an erroneous decision and an error apparent on the face of the record. While the first can be corrected by the higher forum, the latter only can be corrected by exercise of the review jurisdiction. A review petition has a limited purpose and cannot be allowed to be 'an appeal in disguise'." 8. The order in the civil revision petition has been passed by this Court after considering all the aspects and it is not the case of the petitioners that there is an error apparent on the face of the record or typographical mistake is pointed out that the decision itself is erroneous and in such a case, it can be corrected by the higher forum. The petitioners may carry the matter to such forum where the remedy is available, if they are aggrieved by the order of this Court in the civil revision petition. 9. In the light of the foregoing discussion, I do not find any ground to review the order, dated 21.2.2007 passed by this Court in CRP No.1442 of 2004. 10. Accordingly, the review CMP IS dismissed. No order as to costs.