“Reportable”

IN THE SUPREME COURT OF INDIA

CIVIL APPELLATE JURISDICTION

CIVIL APPEAL NO. 6557 OF 2002

State of A.P. & Anr. …. Appellants

Versus

T. Yadagiri Reddy & Ors. …. Respondents

J U D G M E N T

V.S. SIRPURKAR, J.

1. A Judgment  by the High Court  allowing a  Civil  Revision Petition,

setting aside the order passed by the Land Reforms Appellate Tribunal-

cum-II Additional District Judge of Ranga Reddy District (hereinafter called

‘the Appellate Tribunal’ for short) is in challenge before us.  The High Court

while  allowing  the  Revision,  recognized  the  rights  of  the  respondents

herein as the protected tenants and further held that they become absolute

owners of the land by purchasing the land in respect of which they were

protected tenants.  As a sequel, the High Court held that the land held by

them could not be declared as a surplus land and could not be distributed

as such.  Before we approach the disputed questions, a factual background

would be necessary.   

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2. Five respondents, namely, (1) Shri T. Yadagiri Reddy, (2) Shri T. Bal

Reddy, (3) Shri T. Janardhan Reddy, (4) Shri T. Mohan Reddy, (5) Shri T.

Satyanarayana Reddy are the sons of Late Shri T. Papi Reddy.  According

to them, the said Late Shri T. Papi Reddy was a protected tenant from (1)

Late Shri Khaja Shakhir Hussain, (2) Shri Khaja Nasir Hussain, (3) Smt.

Razia Sultana W/o Mir Sadath Ali.  It is the case of the respondents, as

seen  from  their  Counter  affidavit  that  at  the  commencement  of  A.P.

(Telangana  Area)  Tenancy  &  Agricultural  Lands  Act,  1950  (hereinafter

called “the Tenancy Act” for short) and more precisely, on 10.6.1950, their

father Late Shri T. Papi Reddy was deemed to be the protected tenant of

the land, admeasuring 123 Acres 17 guntas, bearing Survey Nos. 18 to 24

(old), i.e., new Survey Nos. 24 to 30 and 39 of Meerpet Revenue Village,

Saroornagar  Mandal,  Rangareddy  District,  Andhra  Pradesh.   This  land

belonged to Late Shri Khaja Shakhir Hussain and others, who were the

Jagirdars of that Village.  Their father Late Shri Papi Reddy entered into an

agreement on 25.2.1956 with Late Shri Khaja Shakhir Hussain and others

for transfer of land holders’ interest in the said land to the tenants Late Shri

T.  Papi  Reddy himself  and the present  respondents.   The respondents

asserted that  this  was under the provisions of  Section 38-A & B of  the

Tenancy Act.  They further pleaded that there was oral partition between

Late Shri T. Papi Reddy and his sons, i.e.,  respondents, in which lands

stood divided and that included also the concerned  land to the extent of

123  acres  17  guntas,  comprising  of  Survey  Nos.  24  to  30  and  39.

According to the respondents, the whole land was divided into six equal

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shares.   They  then  pointed  out  that  on  1.1.1975,  A.P.  Land  Reforms

(Ceiling on Agricultural Holdings) Act, 1973 (hereinafter called “the Ceiling

Act” for short) came on the anvil.  Under the provisions of that Act, Late

Shri  T.  Papi  Reddy, as also the present respondents filed six separate

declarations regarding the land owned and possessed by them and these

declarations  included  the  aforementioned  Survey  numbers  also,  which

were obtained by them in their capacity as the protected tenants.  It is the

further case of the respondents that a Verification Report in respect of the

declarations made by the respondents and Late Shri T. Papi Reddy were

verified by the Verification Officer and the same Report was submitted to

the  Land  Reforms  Tribunal  I-cum-Additional  Revenue  Divisional  Officer

(hereinafter called ‘the Tribunal) of Ranga Reddy District, appointed under

the  Ceiling  Act.   This  was  on  31.7.1975  and  8.8.1975.   In  between

14.8.1975 and 22.10.1975, six orders came to be passed by the Tribunal.

The dates and the other details of these Revenue cases, dealt with by the

Land Reforms Tribunal, were as under:-

S.No. Name of the Declarants

C.C. Reference No.

Date of Order Exhibits No.

1. T. Papi Reddy (father) 1006/E/75 27.10.1975 A-12 2. T. Yadagiri Reddy 439/E/75 14.8.1975 3. T. Bal Reddy 440/E/75 14.8.1975 A-8 4. T. Janardhan Reddy 801/E/75 14.8.1975 A-6 5. T. Mohan Reddy 1009/E/75 14.8.1975 A-4 6. T.Satyanarayana

Reddy 1143/E/75 14.8.1975 A-5

3. So far so good.  The respondents claimed that they continued to be

in possession of the lands, since none of them had held more land than the

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ceiling area prescribed by the Ceiling Act.  The orders passed in their case,

shown in the Table above were also not appealed against by the State

Government  and had  become final.   While  the  matters  in  case  of  the

respondents stood thus, a further development took place as follows.

4. On  22.7.1994,  an  order  came  to  be  passed  by  the  Tribunal,

purporting to hold the lands in Survey Nos. 24 to 30 and 39 in the holdings

of Late Shri Khaja Shakhir Hussain and others (land holders) and it was

declared in that order that the land holders therein were surplus holders.

The respondents pointed out that this order was completely oblivious of the

six orders passed in case of  Late Shri  T.  Papi  Reddy and themselves,

shown  in  the  Table  nor  did  they  (Late  Shri  T.  Papi  Reddy  and  the

respondents  herein)  join  as  parties  to  the  proceedings.   It  was  further

pointed out that on 6.2.1996, a public notice was issued by the Tribunal,

Ranga Reddy District, calling for the objections in declaring Survey Nos. 24

to 30 and 39 as the surplus  land,  as  held  by Late  Shri  Khaja  Shakhir

Hussain  and  others.   However,  Late  Shri  T.  Papi  Reddy  had  already

expired on 21.11.1975, i.e., barely one month after the order in his case

was passed.  On 13.2.1996, the respondents filed the objections to the

proposal of the said Survey Nos. 24 to 30 and 39, being surrendered as a

surplus land.

The Tribunal rejected the objections filed by these respondents by

order dated 22.7.1995 (2.3.1996), against which they filed an appeal on

11.8.1997 before the Land Reforms Appellate Tribunal-cum-II  Additional

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District Judge, Ranga Reddy district at Saroornagar, Hyderabad, A.P.  By

its order dated 9.9.1997, the Appellate Tribunal partly allowed the appeal

only to the extent of 33 acres and 12 guntas in the aforementioned Survey

Numbers, while the said appeal was rejected in respect of the remaining

extent of 90 acres of land.  That order was challenged by way of a Civil

Revision Petition before the High Court, being Civil Revision Petition No.

4351 of 1997 and the said order was set aside by the High Court by the

impugned  order.   The  respondents,  therefore,  claimed  that  they  were

protected tenants and there was no question of the land comprising of 3

Survey numbers, being declared as surplus and it had long ceased to be

the land of  Late Shri  Khaja  Shakhir  Hussain and others,  and they had

become the full owners of that land.  In short, they claimed that they had

purchased the said land in the capacity of the protected tenants in terms of

Section  38  of  the  Tenancy  Act.   They  further  pleaded  that  if  the

proceedings under the Ceiling Act concerning them had become final, as

such, those orders had become res-judicata against the State.  They also

pointed out that after the death of their father Shri T. Papi Reddy in the

year  1975  and  even  before  that  they  had  partitioned  the  land  and  all

through,  they  were  treated  to  be  the  protected  tenants  earlier  and

thereafter, the land holders.  They relied on substantial Revenue record in

support of their status as the protected tenants, as also the Certificates

issued by the Revenue Department under Section 38-E of the Tenancy

Act, signifying their exclusive nexus with the land to the exclusion of the

original land holder.

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5. Before  we  advert  to  the  arguments  of  Shri  R.  Sundaravardan,

Learned Senior Counsel appearing for State of Andhra Pradesh and the

reply thereto by Shri P. P. Rao, Learned Senior Counsel, appearing for the

respondents,  it  will  be  better  to  see  the  findings  given by the  Learned

Single  Judge of  the High Court.   The High Court,  firstly  found that  the

Appellate Tribunal had allowed the appeals to the extent of 33 acres 12

guntas, in respect of which the ownership Certificates were granted under

Section 38-E of the Tenancy Act, in support of which the respondents had

filed Exhibit A-2.  The High Court also found that the Appellate Tribunal

had dismissed the appeal in respect of 96 acres 12 guntas on the ground

that these lands were covered by Section 38-B of the Tenancy Act.  The

respondents had filed the Certificates – Exhibit A-1.  The High Court noted

that  the  Appellate  Tribunal  had  taken  a  view that  in  pursuance  of  the

Agreement dated 22.5.1956, the land holders could not have purchased

the lands, as there was no permission under Section 47 and 48 of  the

Tenancy Act for such sales.  However, the High Court proceeded on the

ground that the lands were covered under Section 38-B of the Tenancy

Act.   The  question  before  it  was  as  to  whether  such  lands  held  by  a

protected tenant and covered under Section 38-B of the Tenancy Act were

liable to be excluded under Section 13 of the Ceiling Act from the ceiling

area of the land holder.  The High Court then noted that the respondents

were never made parties to the Ceiling proceedings in respect of Late Shri

Khaja Shakhir Hussain and others made on the basis of the declarations

filed in C.C. Nos. 2476, 2477 and 2478 of 1975, in which the lands were

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shown in their holding.  The High Court then took the note of the separate

ceiling cases, which had attained the finality by the various orders passed

between  27.10.1975  and  14.8.1975,  in  which  it  was  held  that  the

respondents were entitled to 1/6th share and they were non-surplus holders

in respect of the lands held by them as the protected tenants.  The High

Court  noted  that  those  orders  had  become  final.   The  High  Court,

therefore,  took the note  of  the fact  that  in  spite  of  this  finality in  those

cases, these lands were again included in the holding of Late Shri Khaja

Shakhir  Hussain  and one another  (the  original  respondent  Nos.  3  & 4

before the High Court) and they were declared to be the surplus holders

and further,  suo moto  proceedings were also initiated in respect of those

lands.  The High Court found that there was no dispute with the primary

fact that the respondents’ father Late Shri T. Papi Reddy was the protected

tenant in respect of not only those lands in respect of which the Certificates

under Section 38-E was issued, but also in respect of the land falling under

Section 38-B.  The High Court then held that the respondents were not

strangers or trespassers,  but,  were the protected tenants,  and as such,

their land stood excluded under Section 13 of the Ceiling Act.  The High

Court extensively dealt with Section 13 of the Ceiling Act, Section 38 of the

Tenancy Act and more particularly, sub-Section B thereof and came to the

conclusion that a Certificate issued under Section 38-B was on par with the

Certificate granted under Section 38-E of the Tenancy Act.  It, therefore,

concluded that there was no question of applicability of Section 47 and 48

of the Tenancy Act, requiring prior permission.  Relying on two reported

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decisions,  the  High  Court  ultimately  held  that  in  view of  the  Certificate

having been granted in favour of Late Shri T. Papi Reddy under Section

38-B  of  the  Tenancy  Act,  the  respondents  had  become  the  absolute

owners, and as such, their land could not be included in the ceiling area of

the land holder and could not be put for distribution, treating it to be the

surplus land.  The Civil Revision was allowed with these observations.

6. Shri  R.  Sundaravardan,  Learned  Senior  Counsel,  appearing  on

behalf  of  the appellant  State of  Andhra Pradesh assailed the judgment,

firstly,  on  the  ground  that  Late  Shri  T.  Papi  Reddy,  father  of  the

respondents herein, himself could not be a protected tenant and thereby,

even the respondents,  who were his  sons could  not  have become the

protected tenants in law.  The Learned Senior Counsel argued that since

the very basis of the claim of the respondents is without any substance, the

further claim of the separate possession in their capacity as the protected

tenants  has no basis.   The Learned Senior  Counsel  for  this  argument,

relied on the plea raised by the respondents that there was an Agreement

of Purchase between Late Shri T. Papi Reddy and the Jagirdars (landlords)

in respect of 123 acres and 17 guntas of land contained in Survey Nos. 24

to 30 and 39.  The Learned Senior Counsel pointed out that ever since the

said Agreement was executed, the possession of Late Shri T. Papi Reddy,

as also his sons, did not remain that of the protected tenants, and in fact,

Late Shri T. Papi Reddy alone became an owner of the said land and in

that view, there could not have been also a partition between Late Shri T.

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Papi  Reddy and his  sons,  as was claimed by the respondents,  for  the

simple reason that the said land did not have the character of a partible

estate since the land was tenanted land once upon a time.  The Learned

Senior  Counsel  carried  his  arguments  further  and suggested that  even

assuming that the said tenancy continued in favour of Late Shri T. Papi

Reddy and after his death, in favour of the respondents, there was nothing

on record to suggest that there was any permission obtained under Section

47 by either Late Shri T. Papi Reddy or the respondents for purchasing this

land.   Lastly,  the  Learned  Senior  Counsel  contended that  even if  it  is

assumed  that  the  status  of  protected  tenant  was  conferred  upon  the

respondents under the provisions of the Tenancy Act, and further even if

there  were  final  orders  passed  under  the  Ceiling  Act,  which  remained

unchallenged by the Government, it was always open for the Government

under Section 50 of  the Tenancy Act  to  reopen the proceedings.   The

Learned Senior Counsel, therefore, argued that at least excepting Late Shri

T. Papi Reddy, whose claim was admitted in respect of the lands covered

by the Certificate under Section 38-E, the other lands in possession of the

respondents were bound to be declared as surplus lands.   

7. As against this, Shri P. P Rao, Learned Senior Counsel, appearing

on  behalf  of  the  respondents,  firstly  contended  that  the  orders  dated

14.8.1975 and 27.10.1975 passed by the Tribunal had become final and

binding on the parties thereto, including the State Government, and since

there was no appeal under Section 20(5) of the Ceiling Act, those orders

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would  operate  as  res-judicata  in  all  the  subsequent  proceedings.  The

Learned Senior Counsel pointed out that there was no scope for reopening

these orders. Shri Rao also criticized the order dated 22.7.1994, passed by

the Tribunal,  declaring 17.9766 standard holdings of land of the original

land holders to be in excess as void, ab initio, particularly, because the said

land was belonging to the respondents, who were admittedly the protected

tenants  in  occupation of  the land and in whose case,  the Tribunal  had

passed  the  order  approximately  20  years  back,  at  the  time  when  the

impugned orders (dated 14.08.1975 and 27.10.1975) were passed. It was

pointed  out  that  no  orders  in  respect  of  these  lands  could  have  been

passed unless the respondents were noticed by the Tribunal, and further,

the Counsel pointed out that the respondents had the Certificates issued

under Section 38-B, which rendered the orders passed by the Tribunal in

case of the original land holders, without jurisdiction. The Learned Senior

Counsel  further  contended  that  there  was  no  question  of  the  land  in

possession of  a protected tenant being declared as surplus land, which

was liable to be surrendered.  It was pointed out by the Learned Senior

Counsel that the Certificates granted in favour of the respondents under

Section 38-B of the Tenancy Act remained valid and in the present case,

so remained valid, since they were not challenged, and at the same time,

the Tribunal, under the Ceiling Act, had no jurisdiction to declare the said

Certificate as illegal.  The Learned Senior Counsel invited our attention to

the provisions of the Tenancy Act to suggest that the tenancy rights were

heritable  rights.   Our  attention  was also invited to  Section 13(1)  of  the

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Ceiling Act, as also Section 38-B of the Tenancy Act.  Shri Rao, therefore,

contended  that  the  order  of  the  High  Court  was  unassailable.    The

Learned Senior Counsel also took us through the history of this lengthy

litigation and pointed out that on 13.4.1983, Certificate of Ownership  was

issued under Section 38-B of the Tenancy Act and the mutation also took

place in favour of the respondents in respect of 90 acres 4 guntas of land,

which was a land in question, which Certificate had attained the finality.

The Learned Senior Counsel pointed out that the land concerned was sold

after it was converted into the non-agricultural land to as many as 1,137

purchasers for residential purposes.  It is on these conflicting claims that

we have to examine the judgment.

8. On  these  conflicting  contentions,  the  question  which  crops  up  is

whether the concerned land can be included in the holding of the original

land holders and be declared surplus to the detriment of the respondent

Nos. 1-5.  This question would depend upon the answer to the question as

to whether the respondents ever got the status of a ‘protected tenant’, vis-

a-vis the concerned land, within the meaning assigned to that term in the

Tenancy Act and what is the effect, and whether that status would result in

excluding  the  land  from  the  operation  of  the  Ceiling  Act.   Since  Shri

Sundaravardan also contended about reopening of the ceiling and tenancy

cases, still another question would be whether the Government would now

be justified in reopening the ceiling cases, which stood finalized, as also

whether it would be justified in opening the cases, wherein the Certificates

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were granted to the respondents declaring them as protected tenants, vis-

à-vis, the concerned land.

9. Before we take up the consideration on these questions, since the

matter predominantly relates to the orders under the Ceiling Act, it would

be worthwhile to consider few provisions of  this Act.   This Act which is

called the Andhra Pradesh Land Reforms (Ceiling on Agricultural Holdings)

Act,  1973  came  on  the  anvil  with  the  assent  of  the  President  dated

29.7.1972  and  was  published  in  the  official  Gazette  on  31.7.1972.

However, it came into force on 1.1.1975.  ‘Holding’ is defined in Section 3(i)

as under:

“3(i) ‘holding’ means the entire land held by a person-

(i) as an owner; (ii) as a limited owner; (iii) as an usufructuary mortgagee; (iv) as a tenant; (v) who  is  in  possession  by  virtue  of  a  mortgage  by

conditional  sale  or  through  part  performance  of  a contract for the sale of land or otherwise; or in one or more of such capacities, and the expressions “to hold land” shall be construed accordingly.”

Term ‘Owner’ is defined in Section 3(n) as under:

“3(n) ‘owner’ includes a person by whom or in whose favour a trust is created; but does not include a limited owner; and in the case of any land not held under ryotwari settlement, a person who is or would be entitled to the grant of a ryotwari patta or to the registration as an occupant in respect of such land under any law for the time being in force providing for the conversion of such land into ryotwari tenure and where there is no such law,  any  person  holding  such  land  immediately  before  the specified date otherwise than in any one of the capacities in items  (ii)  to  (v)  Clause  (i);  but  does  not  include  a  limited owner.” (Emphasis supplied).

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Term ‘Person’ is defined in Section 3(o) as under:

“3(o)  ‘person’  includes  an  individual,  a  family  unit,  a  trustee,  a company, a firm,  a  society  or  an association of  individuals, whether incorporated or not.”

Term ‘Tenant’ is defined in Section 3(t) as under:-

“3(t) ‘tenant’ means a person who cultivates by his own labour or that of any other member of his family or by hired labour under his  supervision  and  control,  any  land  belonging  to  another under a tenancy agreement, express or implied: and includes a person who is deemed to be a tenant under any tenancy law for the time being in force;

Term ‘Ceiling Area’ is defined under Section 4 as under:

“4. Ceiling Area:-  (1) The ceiling area in the case of family unit consisting of not more than five members shall be an extent of land equal to one standard holding.

(2) The ceiling area in the case of a family unit consisting of more than five members shall be an extent of land equal to one standard holding plus an additional extent of one-fifth of one standard holding for every such member in excess of five, so  however,  that  the  ceiling  area  shall  not  exceed  two standard holdings.

(3) The ceiling area in the case of every individual who is not a member of a family unit, and in the case of any other person  shall  be  an  extent  of  land  equal  to  one  standard holding.”

Thus, it’s a charging Section.

Section 5 provides the methodology for fixing the standard holding

for different classes of lands and computation thereof.  Section 7 speaks

about the transfers of land between  24.1.1971 and the notified date, i.e,

1.1.1975.  It’s a complete scheme as to which transfer should be treated to

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be  good  and  otherwise.    In  short,  that  Section  bars  the  transfers  in

anticipation of and with a view to avoiding or defeating the object of the

Ceiling  Act.   Under  Section 8,  every person has to  give a  declaration,

whose holding on the notified date together with any land transferred by

him on or after the 24.1.1971, whether by sale, gift, usufructuary mortgage,

exchange, settlement, surrender or in any other manner whatsoever, and

any land in respect of which a trust has been created by him on or after

24.1.1971,  exceeds the  specified limits.   Under Section 9,  the Tribunal

created under the Ceiling Act has a duty to enquire into and determine the

extent of area held or deemed to be held by the person on the notified date

and to declare any land found in excess of the ceiling area.  Section 10

speaks about the surrender of land in excess.  It also provides as to which

land  can  be  surrendered  and  which  land  cannot  be  surrendered,  and

whether the surrender declared by the land holder is to be surrendered or

not, has to be decided by the Tribunal.  Sub-Section 5 specifically provides

that it would be open to the Tribunal to refuse or accept the surrender of

any  land,  which  has  been  converted  into  non-agricultural  land  and  is

rendered  incapable  for  being  used  for  agricultural  purposes.   Under

Section 13, a special  provision is made for the protected tenants.   The

Section provides that where the holding of any owner includes any land

held  by  a  protected  tenant,  the  Tribunal  shall,  in  the  first  instance,

determine whether such land or part thereof has been transferred to the

protected  tenant  under  Section  38-E  of  the  Tenancy  Act,  and  if  such

transfer is made, such land shall be excluded from the holding of the owner

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and included in the holding of such tenant.  Sections 15 and 16 speaks

about the amount payable in lieu of that land to the land holder.  Section 20

speaks about the appeal and Section 21 about the revision against the

orders passed by the Tribunal.  This is the broad picture of the provisions

of the Ceiling Act.   

10. Let us,  now, have look on some of  the relevant provisions of  the

Tenancy Act.   It  must  be remembered that  this  Act  came on the legal

scene in the year 1950.  The term ‘Protected’ is defined under Section 2(r)

as under:-

“2(r) ‘Protected’ means a person who is deemd to be a protected tenant under the provisions of this Act.

Section 5 provides as to who can be deemed to be a tenant and

more or  the less,  provides that  a person lawfully cultivating to the land

belonging to another person, would be deemed to be a tenant.  Chapter IV

deals with the protected tenants and declares that if a person had held any

land as a tenant continuously for a period specified in Section 34(a)(i), (ii),

(iii), then such person would be deemed to be a protected tenant.   

11. There is no dispute in the present case that Late Shri T. Papi Reddy

was holding the lands at the commencement of the Tenancy Act and he

was  a  protected  tenant  in  respect  of  the  land  including  the  lands  in

question.   Section 38 which is extremely important  for  us,  provides the

rights of the protected tenants, which includes his rights to purchase the

land from landholder’s interest, subject to sub-Section 7.  It also provides

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the  modality  as  to  how  the  said  purchase  would  be  enforced  by  the

protected  tenant,  and  also  procedure,  where  the  land  holder  refuse  to

accept  the  offer  made  by  the  protected  tenant.   Section  38-A  is  a

procedure,  where reasonable price is agreed to between the landholder

and  protected  tenant.   Section  38-B  provides  procedure,  where  the

landholder agrees to relinquish his rights in favour of the protected tenant.

Under that Section, an application is to be made to the Tribunal by the land

holder, and then a Certificate is issued in favour of the tenant.  Section 38-

E specifically provides for the transfer of ownership of such lands held by

the protected tenants.  It provides that such lands would get automatically

transferred  with  effect  from  the  notified  date  and  a  Certificate  in  the

prescribed  form  declaring  him  as  the  owner,  would  be  issued  by  the

Tribunal after holding the necessary enquiry.  Sections 47 and 48, which

were  earlier  in  the  Tenancy  Act,  stand  deleted  from  1969.   The  said

Sections provided the permission to be had before such transfers were

made under Section 38.  Section 50-B(4) of the Tenancy Act gives a power

to the Collector to act  suo moto  for examining the record relating to any

certificate issued or proceedings taken by the Tahsildar under this Section

for the purpose of satisfying himself as to the legality or propriety of such

certificate or as to the regularity of such proceedings and pass such order

in relation thereto as he may think fit.  On this legal backdrop, it will be now

for us, to consider the contentions raised by the Learned Counsel.

16

12. The  first  and  foremost  contention  raised  by  Shri  Sundaravardan,

Learned Senior Counsel, appearing on behalf of the appellants was that

since  on  25.2.1956,  an  Agreement  was  executed  by  the  original  land

holders in favour of Late Shri T. Papi Reddy, whereby, he agreed to sell the

land in question, Late Shri T. Papi Reddy, himself had rescinded his status

as a protected tenant and thereafter, remained in possession only as an

intended purchaser under the Agreement and that is where all his rights

came  to  an  end.   The  said  Agreement  is  on  the  record.   It  is  an

unregistered  document  and  suggests  that  the  concerned  land,

admeasuring 90 acres of land, was agreed to be sold for Rs.2,592/-.  This

is the Agreement between Late Shri Khaja Shakhir Hussain and Late Shri

T.  Papi  Reddy,  the  father  of  the  respondents.   On  this,  the  Learned

Counsel pointed out that if this was so, then there would be no question of

the status of protected tenant to be claimed by either Late Shri T. Papi

Reddy or his sons like the present respondents.   

13. In the first place, this is only an Agreement of Sale and not a Sale

Deed inter-partes.  The Agreement clearly suggests that the parties will

appear  before  the  Revenue  Authority  for  obtaining  the  necessary

permission for such transfer under the Tenancy Act, and on obtaining the

permission, the Sale Deed would be executed between the parties.  It also

provides that if the permission is not granted, the consideration would be

returned.  All this was necessary because at that time, under Section 47

and  48,  the  permission  of  Tahsildar  was  required  for  alienation  of

agricultural land.  However, in the year 1969, Sections 47 and 48 were

17

deleted from the Tenancy Act, thereby, there was no permission required

and indeed, it seems that within four months of this Agreement, he effected

a family partition by dividing all his lands, including the present land under

six equal shares, taking one share for himself and the remaining shares for

his five sons.  The matters  do not  seem to have progressed thereafter

regarding this agreement.   

14. However, as soon as Ceiling Act came into existence, Late Shri T.

Papi  Reddy and all  his  sons,  including  the  respondents,  filed  separate

declarations  in  the  lands  in  their  possession  under  Section  8  of  the

Tenancy Act.   These claims were duly verified and it  was claimed that

these verifications took place on 31.7.1975 and 8.8.1975.  This claim has

not been disputed at any time.  It seems that the enquiry was made on the

basis  of  these  declarations  and  even  a  public  notice  was  issued  as

prescribed by the rules,  which publication took place on 16.6.1975 and

28.6.1975.   However,  on  receiving  ‘No  Objection’,  it  is  found  that  the

declarants were the Pattedars in the orders passed.  It  was specifically

mentioned that  the present  respondents had claimed 1/6th share in  the

lands held by Late Shri T. Papi Reddy as owner under Section 38-E of the

Tenancy Act.  It was mentioned in the order further that even if the 1/6th

share claimed by one son is taken into consideration, the total holding of

the son would be less than ceiling area and as such, the claim was being

accepted and the matters were closed, holding that the individual sons did

not  own the land in  excess of  the ceiling areas.  The orders of  similar

18

nature were passed in case of all the five respondents herein, so also, the

orders were passed in Late Shri T. Papi Reddy’s case.  Undoubtedly, in all

the orders related to the sons, the Tribunal did mention that the declarant

had not produced any proof as to how the declarant is not so far entitled to

share in the lands of his father Late Shri T. Papi Reddy.  However, realizing

that  even if  that  share is  included,  since the land in  possession of  the

declarant son does not exceed the ceiling limit,  the matters were left  at

that,  and it  was concluded that the individual  sons did not hold land in

excess of the ceiling area.   

15. We have also seen the order passed in the case of Late Shri T. Papi

Reddy himself.  Undoubtedly, Late Shri T. Papi Reddy also had shown that

he had purchased the land measuring 87 acres 33 cents as a protected

tenant  and  had  shown  that  he  had  only  1/6th share  in  that,  and  the

remaining land was held by his major sons.  He claimed the status of a

protected tenant in respect of the other land in Survey Nos. 24 and 25,

measuring  33 acres 14 cents and claimed 1/6th share in the remaining

land.  The Tahsildar in his Report had shown that the declarant was owner

of certain lands, measuring 8 acres 79 cents and was in possession of

Survey Nos. 24 to 30 and 39, measuring 122 acres 7 cents as protected

tenant.  Therefore, even at that stage, the status of at least Late Shri T.

Papi Reddy as a protected tenant, was not disputed.  On the other hand,

that  can  be  treated  as  an  admitted  position,  thanks  to  the  Verification

Report,  relied  upon by the  Tribunal.   The  Tahsildar  in  that  Verification

19

Report had computed the standard holding of the declarant as 2.2270 and

after allowing the land of one standard holding, recommended the surplus

land  at  1.2270  standard  holding.   However,  the  order  shows  that  the

declarant had filed the Counter on 4.9.1975 before the Tribunal that Late

Shri T. Papi Reddy was the protected tenant in respect of Survey Nos. 24

to 30 and 39, and he was in possession of the said land as a Karta of the

Joint  Family,  consisting  himself  and  his  five  sons,  namely,  the  present

respondents.   He pleaded that  he was holding  the  tenancy for  and on

behalf of Joint Family in his character as a Karta and consequently, the

rights of the protected tenants would be deemed to have been conferred on

the  entire  Joint  Family  and,  therefore,  the  major  members  of  the  Joint

Family, namely, the present respondents herein, had a share in the equal

proportion of the said property.  The Tribunal has further taken a note that

Late Shri Khaja Shakhir Hussain, the original land holder had agreed to

alienate the said land and an Agreement of Sale referred to earlier, was

also produced before the Tribunal.  The theory of inter-se partition, which

took place in June, 1956 was also pressed into service and referred to by

the Tribunal in its order.  Amongst the documents filed before the Tribunal

was the Agreement of Sale dt. 25.2.1956 and the four witnesses were also

examined, including Late Shri T. Papi Reddy himself.  The Tribunal took

note of the fact that Late Shri T. Papi Reddy had ancestral land of 9 to 10

acres at Meerpet Village, which was being cultivated by himself,  and in

addition thereto,  purchased 123 acres  7  guntas  of  land from Late  Shri

Khaja Shakhir Hussain etc. in the year 1955 and the agreement of sale

20

was executed in the year 1956.  Even the consideration was paid and this

consideration was from the joint earnings of himself and his sons from the

cultivation of  the lands held by the Joint  Family,  thereby,  meaning that

there  was  a  nucleus  with  the  Joint  Family  and  the  said  Joint  Family

property did  produce income,  out  of  which the  concerned 123 acres  7

guntas of  land came to be purchased, so as to become a Joint  Family

property and it is, therefore, that the said lands were treated to be the Joint

Hindu  Family  property  and  were  partitioned  in  the  year  1956,  which

partition was evidenced in the mutation of these lands, also in the Revenue

records.  The Tribunal, however, found that though mutation of ancestral

land was effected, the purchased lands were not yet mutated and they still

remained in the name of land holder Late Shri T. Papi Reddy, however, the

land revenue was being paid by Late Shri  T.  Papi Reddy and his sons

separately.  The Tribunal then referred to the evidence of Shri K. Bhujang

Reddy,  Shri  Vanga  Bikshapathi  Reddy  and  Shri  Challa  Linga  Reddy.

These three witnesses supported the theory of partition in the year 1956,

and also deposed that Late Shri T. Papi Reddy and sons were divided, and

living separately and cultivating their properties (lands) accordingly.  The

Patwari was also examined, who claimed that he had no information about

the division of lands between Late Shri T. Papi Reddy and his sons, but

they were separately enjoying the concerned lands for grazing their cattle.

The question was thoroughly gone into by the Tribunal.  Relying on Section

34 of the Tenancy Act,  and also on definition of ‘Person’  given in sub-

Section  2  thereof,  the  Tribunal  came to  the  conclusion  that  the  whole

21

partition became a Joint Family property in the hands of the acquirer.  The

Tribunal has also found that Late Shri T. Pappi Reddy was the protected

tenant in respect of 123 acres 17 guntas of land, and the definition of a

‘Protected Tenant’  included undivided Joint Hindu Family members also.

The Tribunal, therefore, concluded in the following words:

“Therefore,  the sons of  the declarant were not divided upto 1956, were also having right in the lands held by his father as protected tenant.”

The Tribunal ultimately held:

“There  is  a  case  to  believe  that  the  declarant  was  having ancestral  lands  and  out  of  the  income  of  these  lands,  he purchased the lands from Shri Khaja Shakhir Hussain etc. in the year 1956 and, therefore, these lands also form part and parcel of joint family properties in which his five major sons will have equal notional share and the share of the declarant will be 1/6th.”

It is on this basis, that the Tribunal closed the case.

16. Very surprisingly, and to the dismay of Shri Sundaravardan, Learned

Senior Counsel for appellants, this order has remained unchallenged and

has become final.  Late Shri T. Papi Reddy almost immediately after this

order on 27.10.1975, died within two months and the order remained as

validly passed order by the Tribunal with full jurisdiction.  Even the other

cases of the respondents were finalized and they were also closed.  In

case of Late Shri T. Papi Reddy, it was held that he did not hold land in

excess of the ceiling on the notified date, i.e., on 1.1.1975.  This proves to

be a complete answer to the case pleaded by Shri Sundaravardan.  This

22

order, particularly, in case of Late Shri T. Papi Reddy, which was heavily

relied  by Shri Rao, Learned Senior Counsel appearing on behalf of the

respondents, firstly holds that Late Shri  T.  Papi Reddy was a protected

tenant and his status as a protected tenant was not an individual status,

but, the status belonged even to the other members of his undivided family.

It is further finally held in this order that Late Shri T. Papi Reddy, as such,

had acquired the property of 123 acres 17 guntas out of income of the Joint

Hindu Family and thus, the whole property became a joint property, so as

to open for partition and accordingly, the partition was not only effected,

but, acted upon also by the separate cultivations of all the six members.

On this strong background, it  will be futile to say that Late Shri T.  Papi

Reddy or his sons, the present respondents herein, were not the protected

tenants.  They were not only treated as the protected tenants, but their

individual  cases  were  also  dealt  with  by  the  Tribunal,  which  held  that

individually, they did not hold any land more than the ceiling area.  All these

orders  right  from  1975  till  today,  i.e.,  for  33  years,  have  remained

unchallenged.

17. Shri Sundaravardan then took us to Section 13 of the Ceiling Act and

pointed out that only the land covered under Section 38-E of the Tenancy

Act,  was  to  be  excluded  and,  therefore,  such  exemption  will  not  be

available for the land covered under Section 38-B, and as such, the said

land was liable to be included in the holding of the land holders.  It is true

that Section 13 of the Ceiling Act suggests that the land covered under

23

Section 38-E and transferred to the protected tenant shall be excluded from

the holding of such owner.  Section 13 of the Ceiling Act reads as under:-

“Special Provision for protected tenants:- (1)  Where the holding of  any  owner  includes  any  land  held  by  a  protected  tenant,  the Tribunal shall, in the first instance, determine whether such land or part thereof stands transferred to the protected tenant under Section 38-E of Andhra Pradesh (Telangana Area) Tenancy and Agricultural Land Act, 1950, and if so, the extent of land so transferred; and such extent of land shall thereupon be excluded from the holding of such owner and included in the holding of such tenant, as if the tenant was the owner of such land for the purposes of this Act.

(2) Subject  to  the  provisions  of  Sub-Section  (1),  the  relevant provisions of this Act aforesaid shall apply in the matter of such land by such protected tenant.”

It will be seen from the language that the Tribunal has to decide the

extent of land transferred under Section 38-E as a first duty, and then to

exclude  such  land.   The  use  of  the  words  “in  the  first  instance”  only

suggests that the first finding that the Tribunal has to give, is about the land

covered under Section 38-E of the Tenancy Act.   However, the Section

nowhere provides that  the  Tribunal  does not  have to  decide  about  the

lands covered under Section 38-B of the Tenancy Act.  We have already

explained that  under  Section  38-B,  the land holders  in  this  case,  have

relinquished  their  interests  in  the  land,  way  back  in  1983  and  the

certificates  were issued in  favour  of  the respondents,  which certificates

have not been disputed till today.  This is, apart from the fact that the said

land in respect of which the certificates were issued under Section 38-B,

has also been held in the holding of the respondents herein.  Under such

circumstances, it cannot be argued that this land should have been held in

24

the  holding  of  the  landlord  and  should  have  been  made  available  for

distribution.   The High Court  has in this  behalf  relied on the Judgment

reported in  1976 ALT 171 (NRC) B. Shankarayya Vs.  Land Reforms

Tribunal, Kamareddy.  For the reasons that we have given, it will have to

be held that even in respect of the lands covered under Section 38-B in this

case, where the rights of the respondents were finally decided both under

Tenancy Act  and the  Ceiling  Act,  this  land could  not  have been made

available  for  been declared as  surplus  land,  holding it  to  be within  the

holding of the land holder.

18. As  if  all  this  is  not  sufficient,  there  is  Certificate  on  record  dt.

13.4.1983. In that Certificate dt. 13.4.1983, the Revenue Divisional Officer

had certified that the five respondents are the protected tenants of the land

specified in the order, which belonged to Late Shri Khaja Shakhir Hussain,

Shri Khaja Nasir Hussain and Smt. Razia Sultana, the land holders herein.

It also suggests that these land holders had relinquished all their rights of

the lands described in favour of the five respondents under Section 38-B of

the Tenancy Act and the five respondents, with effect from that date, shall

be the owners of that land described.  Needless to mention that there is a

complete description of the lands of Survey Nos. 24 to 30 and 39.  We

have seen the Certificate  ourselves in  the prescribed  form and we are

satisfied that the Certificates have been given after the due enquiry.  The

three land holders, namely, Late Shri Khaja Shakhir Hussain, Shri Khaja

Nasir Hussain and Smt. Razia Sultana have also given their declarations,

25

which were verified by the Tahsildar, Hyderabad, East Taluk.  It  is  also

pointed out that the names of the five respondents are found in the lists of

protected tenants maintained in Register No. 1 and other Registers.  Not

only this, there is an order to the effect that, in pursuance of the Certificate

under  Section  38-B,  the  mutation  is  proposed  in  respect  of  the  five

respondents,  which order  is  signed by  D.R.,  Sarrornagar,  R.R.  District,

Andhra Pradesh.  This is the last nail in the coffin of the State Government

case.   Even  these  orders  have remained  unchallenged by  any  person

muchless, by the State Government.  Once this is the position, then it is

obvious that under the provisions of Ceiling Act, these lands could not have

been declared as the surplus land.

19. A very peculiar thing has come to our notice that in their declaration,

the  land  holders  Late  Shri  Khaja  Shakhir  Hussain,  Shri  Khaja  Nasir

Hussain and Smt. Razia Sultana had included the Survey Nos. 24 to 30

and 39 of Meerpet Village, measuring 123 acres 19 cents.  They had also

specifically  declared  that  these  lands  were  with  the  protected  tenants.

However,  surprisingly,  no  notices  were  issued  to  the  petitioners,  and

ultimately, their ceiling case came to be decided as late as on 22.7.1994.  It

is then, that a notice came to be issued in form No. VIII  that the lands

specified in the Schedule were proposed to be surrendered or selected for

surrender under Section 10 of the Ceiling Act.  This document includes and

mentions Survey Nos. 24 to 30 and 39.  It is on that basis, that the present

respondents raised objections,  which objections were rejected,  requiring

the petitioners to file revision before the High Court, which revision was

26

allowed.  Considering all these aspects and more particularly, the orders

passed by the authorities, we are of the clear opinion that the judgment of

the High Court was correctly decided.   

20. Shri Sundaravardan tried to show that the tenanted land could not

have  been  partitioned.   However,  we  are  not  required  to  go  into  that

question, for the simple reason, that there are valid orders passed by the

Tribunal, having the jurisdiction to pass the same, which would show that

once  the  land  was  shown  and  concluded  to  be  in  the  holding  of  the

protected  tenant,  it  could  not  have been included in  the  holding of  the

landlord, muchless, it could not have been declared to be surplus.  This

position is all the more consolidated, when we see that the respondents

herein, were never the parties to the ceiling proceedings.

21. A decision was relied on by Shri Sundaravardan, reported in  2000

(9) SCC 339 R. Kanthimathi & Anr. Vs. Beatrice Xavier (Mrs.).  In our

opinion, the said decision which relates to the rent control matter and thus,

the house tenancy, would have no application.  Another decision relied on

by Shri Sundaravardan, reported in  2006(4) SCC 214 N. Srinivasa Rao

Vs. Special Court under the A.P. Land Grabbing (Prohibition) Act and

Others, also has no relevance.  The Learned Senior Counsel tried to rely

on this decision only to show that if the transfer of agricultural land was in

violation of Section 47 and 49, such prosecution would be void.  In the

concerned case, this prosecution was held to be void in the light of the

circumstances  that  the  transfer  in  this  case  was  made  by  a  protected

27

tenant as an agriculturist or a non-agriculturist, which was prohibited by the

Tenancy  Act.   We  do  not  see  any  relevance  of  this  case.   Shri

Sundaravardan contended that the prosecution on 25.2.1956 was a void

prosecution.  Even if, we agree with that proposition, the question remains

that  ultimately,  respondents  have  been  declared  to  be  the  protected

tenants, and the Certificates have been granted in their favour and their

individual cases have also been finalized.  The ruling has no relevance.

22. The third decision relied upon is reported in 1995 (3) SCC 327 State

of A.P. Vs. S. Vishwanatha Raju & Ors.  The Learned Senior Counsel

relied on this case, as in this case, this Court had taken suo moto action,

seeing that there was an attempt to take out substantial acreage of 900

acres  of  land  out  of  the  purview  of  the  Ceiling  Act  by  the  device  of

agreements  of  sale  and  the  concerned  officers  were  negligent  in  not

carrying  out  the  orders  of  the  authorities  in  revision.   It  is  on  these

circumstances, that this Court took suo moto action.  The Learned Senior

Counsel urged that we should also take such suo moto action and put the

clock  back,  insofar  as,  the  orders  passed  by  the  Tribunal  in  case  of

respondents under the Ceiling Act, as also in respect of the Certificates

issued under Section 38-B are concerned.  We do not see as to how we

would order a suo moto action.  The cases are entirely different cases.  In

this case, there has been no fraud as in the reported decisions.  Lastly, by

way of almost a desperate argument, Shri Sundaravardan urged that under

Section 50-B (4) of the Tenancy Act, the Collector has a suo moto power to

28

call  for  and  examine  the  record  relating  to  any  Certificates  issued  or

proceedings  taken  by  Tahsildar  under  the  Section  for  the  purpose  of

satisfying themselves as to the legality or propriety of such Certificate or as

to  the  regularity  of  such  proceedings,  may pass  such  order  in  relation

thereto as he may think fit.  The Learned Senior Counsel argued that this

Court had discussed about this issue in 2003 (7) SCC 667 Ibrahimpatnam

Taluk Vyavasaya Coolie Sangham Vs. K. Suresh Reddy and Others.

He suggested that the Certificates issued in favour of the respondents can

still be reopened via Section 50-B (4) of the Tenancy Act.  We have no

doubts that there existed such a power in Collector via the said provision

50-B(4).   The  question  is  whether  there  was  any  fraud  played or  any

impropriety shown, more particularly, on the part of the respondents herein,

in  whose favour the said Certificates were granted.   When we see the

whole conspectus of the facts, it is apparent that at no point of time, have

the respondents or even their late father ever played any fraud against any

authority, nor did they ever suppress any relevant fact from any authority.

They  openly  came  out  with  a  case  regarding  Agreement  executed  on

25.2.1956, thereafter, they openly propounded a theory of partition, which

theory was accepted by the Tribunal in ceiling matter in their case, as well

as, in the case of their father Late Shri T. Papi Reddy and ultimately, they

obtained the Certificate under  Section 38-B, way back in 1983.  Today, 25

years have elapsed after those Certificates have been granted.  We do not

29

see any impropriety in  the said proceedings,  which would justify a  suo

moto action on the part of the Collector.   

23. This Court has considered the nature of that power in the case of

Ibrahimpatnam  Taluk  Vyavasaya  Coolie  Sangham  Vs.  K.  Suresh

Reddy and Others (cited supra) and observed in para 9:-

“9. ……  Use of the words “at any time” in sub-Section (4) of Section 50-B of the Act only indicates that no specific period of  limitation is  prescribed within  which the suo moto  power  could  be  exercised  reckoning  or  starting from  a  particular  date  advisedly  and  contextually. Exercise  of  suo  moto  power  depended  on  facts  and circumstances  of  each  case.   In  cases  of  fraud,  this power could be exercised within a reasonable time from the  date  of  detection  or  discovery  of  fraud.   While exercising such power, several factors need to be kept in mind such as effect on the rights of the third parties over  the  immovable  property  due  to  passage  of considerable  time,  change  of  the  provisions  of  other Acts (such as Land Ceiling Act)……………………”

From this, the Learned Senior Counsel argued that since there is no period

of limitation prescribed for this power, the Collector would be justified in

initiating an action.  In our opinion the argument is firstly, premature.  No

such action have ever been proposed.   Secondly, the Court has further

observed that  such action has to  be within reasonable time though the

words “at any time” are used in the provision.  In the same para, the Court

further observed:

“9. …….  Use of the words “at any time” in sub-section (4) of Section 50-B of the Act  cannot be rigidly read letter by letter.   It  must be read and construed contextually and reasonably.  If  one has to simply proceed on the basis of the dictionary mean sing of the words  “at any time”,  the  suo  moto  power  under  sub-Section  (4)  of

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Section 50-B of the Act could be exercised even after decades and then it would lead to anomalous position leading  to  uncertainty  and  complications  seriously affecting  the  rights  of  the  parties,  that  too,  over immovable  properties.   Orders  attaining  finality  and certainty of the rights of the parties accrued in the light of the orders passed must have sanctity.  Exercise of suo  moto  power  “at  any  time”  only  means  that  no specific period such as days, months or years are not prescribed reckoning from a particular date.  But, that does not mean that “at any time” should be unguided and  arbitrary.   In  this  view,  “at  any  time”  must  be understood as within a reasonable time depending on the  facts  and  circumstances  of  each  case  in  the absence of prescribed period of limitation.”

The observations are extremely fitting in the present case.  Here also, after

the Certificates have been issued, 25 long years have elapsed.  The rights

of the parties have already been crystallized.  Not only this, but, it is the

report of Shri Rao that the said lands have now been converted and sold

for to as many as approximately 1100 persons, by way of residential plots.

We do not think that there is any justification at this stage to use a  suo

moto power and to cancel the Certificates, so as to put the clock back.

That  would  be,  in  our  opinion,  a  completely  unnecessary  exercise,  not

warranted by any of the Sections.  In that view, even this argument has to

be rejected.  Before parting, we must observe that the subsequent orders

in case of Late Shri Khaja Shakhir Hussain, Shri Khaja Nasir Hussain and

Smt. Razia Sultana, seem to have passed without even noticing the earlier

orders passed and without even bothering to send notices to the interested

parties.  That would be the minimum expectation of law.  By that, as it may,

the Appeal has no merits, and is dismissed with costs.

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………………………………..J. (Lokeshwar Singh Panta)

………………………………..J. (V.S. Sirpurkar)

New Delhi; November  28, 2008.

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