PETITIONER:
KOTAIAN AND ANR.
Vs.
RESPONDENT:
PROPERTY ASSOCIATION OF BAPTIST CHURCHES(PVT.) LTD.
DATE OF JUDGMENT21/07/1989
BENCH:
SHETTY, K.J. (J)
OZA, G.L. (J)
NATRAJAN, S. (J)
CITATION:
1989 AIR 1753 1989 SCR (3) 472
1989 SCC (3) 424 JT 1989 (3) 140
1989 SCALE (2)36
ACT
A.P. (T.A.) Tenancy & Agricultural Lands Act, 1950: Sections 8, 19, 28, 32, 38(D) and 38(E)--Protected Tenant--Right to become owner--Termination of Tenancy--Dispossession of--Land holders prohibited from alienating the tenanted land to their parties--First must be given to protected tenant--Alienation in contravention is illegal.
HEADNOTE
The appellants were in possession of certain agricultural lands as tenants. Rev. Rutar Ford Padri and Vandru Padri were their landlords who had left the country long ago. But it was alleged that the land was purchased for the benefit of American Baptist Formation Society and the respondents claim to be the Property Association of the Baptist Churches (Pvt.) Ltd. ( "The Association"). The land stood transferred to the Association as per order made by the Madras High Court in company petition. The Association thus claimed to be the owner and also in defacto possession of the lands.
In 1975 the Association issued notice u,s 19(2) of the Act terminating the appellant’s tenancy on May 31, 1975. The appellants received the said notice but did not send any reply. Thereafter the Association moved the Tehsildar u/ss 19(2) read with 28(1) of the Act for the symbolic possession of the lands from the appellants. Before the Tehsildar, appellants denied all the allegations and asserted that they were protected tenants. On Nov., 1977 Tehsildar made an order accepting the contentions of the Association holding that the appellants had no right since their tenancy stood terminated. Appellants appeal was also dismissed by the Joint Collector, Warrangal. The appellants then approached the High Court by way of revision petition u/s 91 of the Act. The High Court dismissed the revision. Thereafter appellants came up before the Supreme Court by way of Special Leave to appeal. Accepting the appeal, this Court, HELD: That the contentions of the Association that it is in 473 defacto possession and entitled to symbolic possession is unavailable and indeed unacceptable. Firstly, there can not be any dispute in this case about the protected tenancy rights of the appellants. The revenue documents like Pananipatrika and final record of Agricultural tenancy clearly establish that the appellants were recognised as protected tenants. Secondly, it was not the case of the Association that Rev. Rutar Ford Padri and Vandru Padri first offered the land to the appellants before they transferred the same to the Association. The Court also observed that the Association cannot be permitted to take advantage of its high handedness. It is an exploitation of the exploited. It is an oppression of the oppressed. The Court cannot countenance it. [482F-G; 483B]
Reversing the impugned orders the Court directed the Tehsildar to put the appellants in possession of the agricultural land in question within one month and ordered that the Association must pay the costs of the appellants quantified at Rs.20,000. [483C-D]
JUDGMENT
CIVIL APPELLATE JURISDICTION: Civil Appeal No. 2098 of 1980.
From the Judgment and Order dated 20.6.1980 of the Andhra Pradesh High Court in Civil,Revision Petition No. 736 of 1980.
K. Madhava Reddy, A.D.N. Rao, and A.Subba Rao for the Appellant.
U.R. Lalit, C.P. Sarthy and A.T.M. Sampath for the Respondent. The Judgment of the Court was delivered by
K. JAGANNATHA SHETTY, J. This appeal with leave arising out of a judgment of the High Court of Andhra Pradesh illustrates how the "land reform" and the progressive policy of "land to the tiller" could be defeated by vested interests and lukewarm attitude of statutory authorities. The relevant facts.
The appellants were in possession of certain agricultural lands as tenants. After coming into force of the A.P. (T.A.) Tenancy & Agricultural Lands Act, 1950 ("The Act"), they were recognised as protected tenants. A "protected tenant" means that he is protected from 474 eviction. If he is dispossessed, the Tehsildar suo motu or on application shall put him in possession. Rev. Rutar Ford Padri and Vundru Padri were admittedly their landlords. The appellants had no problem with them. It seems that they had left the country long ago. The first respondent claims to be the Property Association of the Baptists Churches (Pvt.) Ltd. ("The Association")- The Association does not dispute that the lands were originally purchased by Rev. Rutar Ford Padri and Vandru Padri but it says that they purchased for the benefit of American Baptish Formation Society. The lands stood transferred to the Association as per order made by the Madras High Court in company petition Nos. 109 and 110 of 1973. The Association thus claims to be the owner and also says that it is in defacto possession of the lands.
In 1976, the Association issued notice under sec. 19(2) of the Act terminating the appellants’ tenancy. In the notice, it was alleged that the appellants were self styled tenants. They have not paid the rents for more than three decades. They were working off and on as casual labourers. They were being paid for their services. There was no other relationship between them and the Association. It was further alleged that the appellants sub-divided the lands and alienated bit by bit to third parties and thereby denied title of the landholder. They have been, therefore, treated as trespassers.
On May 31, 1976, the appellants received the said notice but did not send any reply. Thereafter the Association moved the Tehsildar Jangaon under secs. 19(2) read with 28(1) of the Act seeking symbolic possession of the lands from the appellants. It is interesting to note some of the averments made in that application:
"Neither of the above persons had
possession during the statutory period under
sec. 34 of the Tenancy Act to claim protected
tenancy over the said lands. The said persons
by taking undue advantage of the similarity of
the names appearing in the Tenancy Registers
with respect to the said lands are asserting
fictitious and imaginary rights of Protected
Tenancy in the above lands. It is submitted
that without any basis or foundation and are
made without any notice to the then landlords
and even if it is to assume that the said
persons are the protected tenants with respect
to the above lands, their so called rights
have been duly and legally terminated under
sec. 19 of the Tenancy Act by giving them
notices for the Statutory period of six months
475
which they have received on 31.5.1976 but
failed to give reply to it. The termination of
the Protected Tenancy Rights is irrevocable
and after the expiry of the statutory period
from the said date of receipt of the notice,
they are not entitled to claim any rights
whatsoever much less Protected Tenancy Rights
on the above lands."
XX XX XX XX XX XX
"In all the above lands the appellant is
having his own cultivation for the benefit of
the said schools and hostels. Some lands are
cultivated by the students themselves under
the "Cow-Boy" System. All the above lands are
in physical possession of the applicant here-
in. But to overcome the legal implications,
the applicants are claiming symbolic posses-
sion pursuant to termination notice."
Before the Tehsildar, the appellants denied all the above allegations. They did not recognise the Association as their landlord. They asserted that they were protected tenants entitled to remain in possession of the lands.
On November 28, 1977, the Tehsildar made an order accepting the contentions of the Association. The Association was held to be the owner of the lands. The appellants were held to have no right since their tenancy was duly terminated.
The appellants appeared to the Joint Collector, Warrangal, who dismissed the appeal with the following observations:
"It is evident from records that the
appellants are not in possession of the suit
lands whereas the respondent Association is
possessing and enjoying it. The suit land is
covered by structures like Mission School,
residential quarters, hostels for students,
etc. and the rest of the land is in possession
and occupation of respondent--Association and
some third persons. Since the appellants are
adversely out of possession, their rights also
stands extinguished under sec. 27 of the
Limitation Act ..... Since the facts of non-
payment of rents, assignment of interest in
the land personally which constitute the
grounds for respondent Association to termi-
nate the tenancy under sec. 19 of the Act are
proved before the lower court and
476
neither rebutted in this appeal nor the find-
ings of the lower court on these points are
challenged, the appeal does not merit any
consideration."
The appellants then approached the High Court with revision petition under sec. 91 of the Act. The High Court did not do anything better except blessing the observations made by the Collector. The High Court observed that the appellants were not cultivating the lands personally. They did not dispute non-payment of rent. Nor denied assignment of interest in the land to third parties. So Stating, the revision was dismissed. The contentions.
Counsel for the appellants argued that Rutar Ford Padri and Vundru Padri were the landholders under whom the appellants were protected tenants. That has been so recorded in the final record of Agricultural tenancy. The appellants were not parties to the company petition Nos. 109 and 110 of 1973 in the High Court of Madras. Nor they had any notice of that proceedings. Since they were protected tenants, the landholders had no right to transfer the lands to the Association without first offering the same to them. It is a mandatory requirement under the Act. The alienation to the Association even if true, was in contravention of the statute and therefore, invalid and unenforceable. The appellants could not pay the rent to Rutar Ford Padri and Vundru Padri because their whereabouts were not known. The Association has adopted illegitimate means to dispossess the appellants by setting students against them. The action of the Association was illegal and an offence punishable under the Act.
With these and other contentions, it was urged that the possession of lands should be restored to the appellants.
Counsel for the Association on the other hand sought to justify the orders under appeal.
We heard counsel for both the parties. We have carefully perused the material on record. The relevant statutory provisions: Section 5 of the Act reads: 477
"5. Persons deemed to be tenants: A
person lawfully cultivating any land belonging
to another person shall be deemed to be a
tenant if such land is not cultivated person-
ally by the landholder and if such person is
not--
(a) a member of the landholder’s family; or
(b) a servant on wages payable in
cash or kind, but not in crop share or a hired
labourer cultivating the land under the per-
sonnel supervision of the landholder or any
member of the landholder’s family; or
(c) a mortgagee in possession.
Provided that if upon an application
made by the landholder within one year from
the commencement of this Act to the Tehsildar
within whose jurisdiction the land is situat-
ed--
(a) The Tehsildar declares that such
person is not a tenant and his decision is not
reversed on appeal or revision, or
(b) The Tehsildar refuses to make
such declaration but his decision is reverted
on appeal or revision such person, shall not
be a tenant."
Section 19 provides for termination of tenancy and so far as material it is as follows:
"19. Termination of tenancy;
19(1) xxxxxxxxxxxx
19(2) The landholder may terminate a
tenancy on the grounds that the tenant--
(a)(i) has failed to pay in any year,
within fifteen days from the day fixed under
the Andhra Pradesh (Telengana Area) Land
Revenue Act 13 17 F) for the payment of the
last instalment of land revenue due for the
land concerned in that year, the rent of such
land for the year; or
478
(ii) xxx xxx xxx xxx
(iii) xxx xxx xxx xxx
(b) has done any act which is de-
structive or permanently injurious to the
land; or
(c) has sub-divided the land; or
(d) has sub-let the land or failed to culti-
vate the land;
(e) personally, or has assigned any interest
therein;
or
(f) has used such land for a purpose
other than agriculture;
Provided that no tenancy of any land
by a tenant shall be terminated on any of the
grounds mentioned in this sub-section unless
the landholder gives six months’ notice in
writing intimating his decision to terminate
the tenancy and the grounds for such termina-
tion."
Section 28 provides relief against termi-
nation of tenancy for nonpayment of rent.
Section 32 provides for taxing possession of
tenanted lands:
"32. Procedure of taking possession:
(1) A tenant of an agricultural
labourer or artisan entitled to possession of
any land or dwelling house under any of the
provisions of this Act may apply to the Teh-
sildar in writing in the prescribed form for
such possession.
(2) No landholder shall obtain
possession of any land or dwelling house held
by a tenant except under an order of the
Tehsildar, for which he shall apply in the
prescribed
form.
(3) On receipt of an application
under sub-sec. (1) of sub-section (2), the
Tehsildar shall, after holding an enquiry pass
such order thereon as he deems fit.
479
(4) Any person taking possession of
any land or dwelling house otherwise than in
accordance with the provisions of sub-section
(1) or sub-section (2) as the case may be,
shall, without prejudice to his liability to
the penalty provided in sec. 96, he liable to
forfeiture of the crops, if any, grown on the
land to the payment of such costs as may be
awarded by the Tehsildar or by the Collector
on appeal from the Tehsildar."
It will be convenient at this stage to
read four other sections, namely, sees. 34,
37, 38(D) and 38(E). They are as follows:
Sec. 34, omitting immaterial words provides:
"Protected tenants: (1) A person
shall, subject to the provisions of sub-sees.
(2) and (3) be deemed to be a Protected Tenant
in respect of land, if he--
(a) has held such land as a tenant continuous-
ly
(i) for a period of not less than
six years, being a period wholly included in
the Fasli years 1342 to 1352 (both years
inclusive) or
(ii) for a period of not less than
six years immediately preceding the 1st day of
January, 1948 or
(iii) for a period of not less than
six years commencing not earlier than the 1st
day of Fasli year 1353 (6th October, 1943) and
completed before the commencement of this Act,
and
(b) has cultivated such land person-
ally during such period."
Section 37 is in these terms:
"37. Persons not entitled under sec.
34 deemed in certain circumstances to be
protected tenants:
(1) Every person who at the com-
mencement of this Act holds as tenant any land
in respect of which no person is deemed to be
a protected tenant under sec. 34, shall, on
480
the expiration of one year from such commence-
ment or, the final rejection of all claims by
any other person to be deemed under sec. 34 to
be a protected tenant in respect of such
land, whichever is later, be deemed to be a
protected tenant in respect of such land
unless the landholder has before such
expiration or final rejection as aforesaid
made an application in the pescribed form
to the Tehsildar for a declaration that
such person is not a protected tenant."
(Emphasis
Supplied)
Section 38(D) reads:
"Procedure when landholder intends to sell
land to a protected tenant:
(1) If the landholder at any time
intends to sell the land held by the protected
tenant, he shall give a notice in writing of
his intention to such protected tenant and
offer to sell the land to him. In case the
protected tenant intends to purchase the land,
he shall intimate in writing his readiness to
do so within six months, from the date of the
receipt of such notice. If there is any dis-
pute about the reasonable price payable by the
protected tenant for the land, the provisions
of sub-section (3) to (8) of sec. 38 shall
apply mutatis mutandis.
(2) If the protected tenant does not
exercise the right of purchase in response to
the notice given to him by the landholder
under sub-sec. (1) such protected tenant shall
forfeit his right of purchase of the same and
the landholder shall be entitled to sell such
land to any other person. On such a purchase
by any other person, the protected tenant
shall forfeit all his rights in the land save
those provided for in sec. 41."
Section 38(E) provides:
"Ownership of lands held by protected tenants
to stand transferred to them from a notified
date:
(1) Notwithstanding anything in this
Chapter or any law for the time being in force
or any custom, usage, judgment, decree, con-
tract or grant to the contrary, the
481
Government may, by notification in the Andhra
Pradesh Gazette, declare in respect of any
area and from such date as may be specified
therein, that ownership of all lands held by
protected tenants which they are entitled to
purchase from their landholder in such area
under any provision of this chapter shall,
subject to the condition laid down in sub-
section (7) of sec. 38, stand transferred to
and vest in the protected tenants holding them
and from such date the protected tenants shall
be deemed to be the full owners of such lands;
Provided that where in respect of any
such land any proceeding under sec. 19 or sec.
32 or sec. 44 is pending on the date so noti-
fied, the transfer of ownership of such land
shall take effect on the date, on which such
proceeding is finally decided, and when the
tenant retains possession of the land in
accordance with the decision in such proceed-
ing.
Explanation: If a protected tenant, on
account of his being dispossessed otherwise
than in the manner and by order of the Tehsil-
dar as provided in sec. 32, is not in posses-
sion of the land on the date of the notifica-
tion issued hereunder, then for the purpose of
the sub-section, such protected tenant shall,
notwithstanding any judgment, decree or order
of any Court, or the order of the Board of
Revenue or Tribunal or other authority, be
deemed to have been holding the land on the
date of the notification; and accordingly, the
Tehsildar shall notwithstanding anything
contained in the said section 32, either suo
motu or on the application of the protected
tenant hold a summary enquiry, and direct that
such land in possession of the landholder or
any person claiming through or under him in
that area, shall be taken from the possession
of the landholder or such person, as the case
may be, and shall be restored to the protected
tenant and the provisions of this section
shall apply thereto in every respect as if the
protected tenant has held the land on the date
of such notification."
This then is the main structure of the Act.
In sum ......... 482
(i) The protected tenant has a right to become full owner of the lands in his possession. He becomes the owner when the Government issues a notification under section 38(E). We are told that the Government had issued such a notification on October 1, 1973, relating to the District where the lands in question are situated. It was about three years earlier to termination of the appellants’ tenancy by the Association. If the appellants had a right to become owners of the tenanted lands, the question of terminating their tenancy would not arise.
(ii) The protected tenant cannot be dispossessed illegally by the landlord or anybody else. If so dispossessed, the Tahsildar either suo motu or on application must hold a summary inquiry, and direct that the land be restored to the protected tenant. That is the mandate of section 38(E) and the Explanation thereof.
(iii) The landholder by himself cannot dispossess the protected tenant even if the tenancy is terminated in accordance with the law. The landholder will have to take recourse to sec. 32. He must approach the Tahsildar to hold an enquiry and pass such order as he deems fit.
(iv) Section 38(D) prohibits the landholder from alienating the tenanted land to third parties. If the landholder intends to sell the land, he must give notice in writing of his intention to the protected tenant. The first offer must be given to the protected tenant. It is only when the protected tenant does not exercise the right to purchase, the landholder could sell the land to this parties. The alienation made in contravention of these provisions has no legal effect.
So return to the case. The contention of the Association that it is in defacto possession and entitled to symbolic possession is unavailable and indeed, unnacceptable. Firstly, there cannot be any dispute in this case about the protected tenancy rights of the appellants. The revenue documents like Pananipatrika and final record of agricultural tenancy clearly establish that the appellants were recognised as protected tenants. Secondly, it was not the case of the Association that Rev. Rutar Ford Padri and Vundru Padri first offered the land to the appellants before they transferred the same to the Association. Therefore, in the light of the statutory provisions to which we have called attention, the appellants title cannot be said to be legitimate.
Counsel for the Association also appeared to have anticipated this inevitable result. He made an impassioned appeal for leave to 483 withdraw the original petition filed before the Tehsildar. He perhaps wanted to give quietus to these proceedings, leaving the appellants free to agitate their rights elsewhere.
But we cannot agree with him. We cannot also accede to his request. The Association cannot be permitted to take advantage of its high handedness. It is an exploitation of the exploited. It is an oppression of the oppressed. The Court cannot contenance it.
In the result, we allow the appeals. In reversal of the impugned orders, we direct the Tehsildar to put the appellants in possession of the agricultural lands in question within one month. The appellants however, are not interested in taking possession of their lands covered with buildings of the Association. They want to be fair in spite of their tribulation. The lands covered with the buildings may, therefore, be excluded.
The Association must pay the costs of the appellants which we quantify of Rs.20,000.
The Collector is directed to ensure that this order is faithfully complied with by the concerned. R.N.J. Appeal allowed. 484