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2009 DIGILAW 339 (AP)

M. Vijay Kumar v. Chapala Narsimha

2009-06-01

L.NARASIMHA REDDY

body2009
Judgment : The petitioners challenge the order dated 11-06-2007 passed by the Joint Collector and Additional District Magistrate, Mahabubnagar, the 5th respondent herein. The facts, that are relevant for this writ petition, are as under: The petitioners are pattadars of land in Sy.Nos.245 and 259 of Farooq Nagar village and Mandal, Mahabubnagar District, admeasuring Ac.20.00 and Ac.3.34 guntas, respectively. According to them, these survey numbers are carved out of old Sy.Nos.206 and 266/2, respectively. It is stated that Chapala Yellaiah, the grand-father of respondents 1 to 4 and 7 (for short 'the contesting respondents'), was recognized as protected tenant, in respect of Ac.15.35 guntas, in Sy.No.245, and that the respondents have been pursuing their remedy under the A.P. (Telangana Area) Tenancy and Agricultural Lands Act, 1950 (for short 'the Tenancy Act') for grant of ownership certificate under Section 38-E of that Act. They filed an application under Section 7 of the A.P. (Telangana Area) Abolition of Inams Act, 1955 (for short 'the Inams Act') before the Revenue Divisional Officer, the 6th respondent herein, with a request to grant Occupancy Right Certificate (ORC) over the land in Sy.Nos.245 and 249, stating that they are tenants over the said lands. The petitioners resisted the claim by stating inter alia that the land was never an inam, and that the alleged tenancy of Yellaiah was only on certain extent of land, in Sy.No.245. Through his order dated 03-10-1998, the 1st respondent dismissed the application. Respondents filed an appeal before the 5th respondent herein, under Section 24 of the Inams Act. The appeal was allowed and the matter was remanded to the 6th respondent, with a direction to take necessary action in accordance with the provisions of the Tenancy Act. The petitioners contend that the 5th respondent committed patent illegality by directing the 6th respondent to take action under the Tenancy Act, though the proceedings before him were under the Inams Act. It is also pleaded that the Tenancy Act, on the one hand, and the Inams Act, on the other hand, are self-contained Codes, and there is absolutely no justification for converting the proceedings under one Act, into those, under the other enactment. On behalf of the contesting respondents, on the one hand, and respondents 5 to 6, on the other hand, separate counter-affidavits are filed. On behalf of the contesting respondents, on the one hand, and respondents 5 to 6, on the other hand, separate counter-affidavits are filed. They supported the impugned order, stating inter alia, that proceedings are already pending under Section 38-E of the Tenancy Act, at different stages, and that no exception can be taken to the direction issued in the impugned order. Heard Sri K. Mahipathi Rao, learned counsel for the petitioners, learned Government Pleader for Revenue, Sri P. Roy Reddy, learned counsel for respondents 1, 2 and 4, and Sri Dammalapati Srinivas, learned counsel for respondent No.7. The application filed by the contesting respondents is the one, under Section 7 of the Inams Act, for grant of ORC, in respect of the land in Sy.Nos.245 and 249. The petitioners resisted the application on several grounds. Two findings were recorded by the 5th respondent, viz., a) that the land did not partake the character of an inam, and b) that the tenancy in favour of the grand-father of the contesting respondents was only in respect of the land in Sy.No.245. Naturally, the contesting respondents felt aggrieved and preferred an appeal, under Section 24 of the Inams Act, before the 5th respondent. Had the 5th respondent taken any different view, as regards the character of the land, there would have been an occasion for him to interfere with the order passed by the 6th respondent. It is only in respect of an inam land, that an ORC can be granted, whether in favour of the landholder, or tenant, or partly in favour of both. If it is not an inam land, neither the landowner, nor a tenant can be granted the ORC. Without taking this aspect into account, the 5th respondent allowed the appeal only on the ground that the contesting respondents inherited tenancy rights, as regards the part of the land. If existence of tenancy alone was the basis for the claim made by the contesting respondents, the forum was, the one, under the Tenancy Act. Instead of requiring them to pursue the remedy under that enactment, the 5th respondent allowed the appeal and directed the 6th respondent to extend the relief to them, under the Tenancy Act. The relevant portion of the order reads as under. Instead of requiring them to pursue the remedy under that enactment, the 5th respondent allowed the appeal and directed the 6th respondent to extend the relief to them, under the Tenancy Act. The relevant portion of the order reads as under. "As per rule, P.T./legal heirs of the P.T. who are in physical possession over the agricultural land is eligible for grant of ownership certificate under Sec.38-E of the A.P. (T.A.) Tenancy & Agricultural Lands Act, 1950 in respect of pattadars who are having agricultural lands beyond two family holdings. In this instant case, it is observed that the pattadar is having more than two family holdings. In the circumstances, it is referred to the RDO, Mahabubnagar for taking action in accordance with the law as stipulated under Tenancy Act 1950. Therefore, the appeal is allowed and remanded to the lower court i.e. Revenue Divisional Officer, Mahabubnagar". The approach of the 5th respondent is totally untenable in law. He did not maintain the distinction between the legal regime covered by the Inams Act, on the one hand, and Tenancy Act, on the other hand. Both of them operate in totally different spheres. Therefore, the order passed by him cannot be sustained in law. The writ petition is accordingly allowed, and the impugned order is set aside. It is, however, made clear that it shall be open to the contesting respondents to pursue the remedies under the Tenancy Act. There shall be no order as to costs.