K. Laxmaiah And Another v. The Special Tahsilda...

1. This revision petition under Section 21 of the Andhra Pradesh Land Reforms (Ceiling on Agricultural Holdings) Act, 1973 hereinafter referred to as ‘the Act’, is directed against the order of the Land Reforms Appellate Tribunal, Hyderabad, in L.R.A No. 358/76. The question that falls for consideration in this revision petition is whether there can be any objection to the surrender of the lands in the possession of protected tenants upon such land being included in the holding of the declarant who is found to be holding land in excess of the ceiling area to which he or his family unit is entitled under the provisions of the said Act.

2. The petitioners were declared to be holding 0.1658 standard holding of land in excess of the ceiling area.

3. In coming to that conclusion, the land Reforms Appellate Tribunal computed lands in possession of the protected tenants also in the holding of the declarant. One Mohammad Zulfekar Ali was required by a notice under sub-rule (1) of rule 7 of the Andhra Pradesh Land Reforms (Ceiling on Agricultural Holdings) Rules 1974 hereinafter referred as “the Rules”, to surrender 0.1658 standard holding. In pursuance of the said notice the said Mohammed Zulfekar Ali, the declarant surrendered an extent of Ac. 2-23 cents in survey No. 207, Ac. 1-68 cents in survey No. 208 and Ac. 3-40 cents in survey No. 213 all of which are dry. He was the owner of these lands, but the lands were in possession of the petitioners herein and are held by them as protected tenants thereof A general notice as required by sub-rule (4) of rule 7 was published on 31-10-1976 calling for objections. No one objected. Even the authorised officer did not object to the acceptance of the surrender of these lands. The respondents proceeded to take possession of the lands and dispossessed the protected tenants.

4. The protected tenants, aggrieved by the order of the Land Reform Tribunal, accepting the surrender of the said lands, preferred an appeal. To this appeal however they did not choose implead the declerant who surrendered the lands, in pursuance of the acceptance of which surrender, the respondents sought to take possession. The protected tenants, contended before the Appellate Tribunal, that the lands which were in their possession as protected tenants could not be surrendered and that they could not be evicted. The land Reforms Appellate Tribunal, rejected the petitioners contention on the ground that there is no prohibition against the acceptance of the surrender of the lands in this possession of a protected tenant. It also observed that the provisions of the Andhara Pradesh Land Reforms (Ceiling on Agricultural Holdings) Act prevail over the provisions of any other Act in view of section 28. At the same time, it also observed that the protected; tenants would at liberty to seek redress and remedy, if any available to them under the provisions of the Land Ceilings Act. The protected tenants have now filed this revision petition.

5. It is contended by Mr. Narasimha Reddy, the learned counsel for the petitioners that the lands in the possession on protected tenants cannot be surrendered. According to him, sub-section 5(a)(ii) of section 10 of the Land Ceilings Act prohibits the acceptance of the surrender of lands which are encumbered and according to him, protected tenancy constitutes an encumbrance on the land and, therefore, the Tribunal, was precluded from accepting the surrender of such lands by the declarant. Section 10, in so far as it is relevant for our purpose reads as follows—

“10. (1) If the extent of the holding of a person is in excess of the ceiling area, the person shall be liable to surrender the land held in excess.

(2) xxxxxxxx

(3) xxxxxxxx

(4) xxxxxxxx

(5)(a) Not withstanding anything in this section, it shall be open to the Tribunal to refuse to accept the surrender of any land—

(i) which has been converted into non agricultural land and has been rendered incapable of being used for purposes of agriculture;

(ii) the surrender of which in not acceptable on account of a dispute as to the title to the land or an encumbrance on the land or on account of the land being in the possession of any person mentioned in item (ii)) of item (v) of clause (1) of section 3 or on account of the land proposed to be surrendered becoming inaccessible by reason of its severnce from the remaining part of the holding; and the Tribunal shall, in every such case, serve a notice on the person concerned requiring him to surrender any other land in lieu thereof; and thereupon the provisions of sub-sections (3) and (4) shall mutatis mutandis apply to such surrender;

Provided that where land proposed to be surrendered under this section is burdened with a mortgage, the Tribunal may on an application, made by the mortgagor with the consent of the mortgagee by order, transfer such mortgage from the land so proposed to be surrendered to the residuary holding of the mortgagor or to any part thereof.

(b) Where the land so surrendered under clause (a) is also not acceptable to the Tribunal, the Tribunal shall after giving an opportunity to the person concerned of being heard, select any other land in lieu thereof, and thereupon the said land shall be deemed to have been surrendered by such person.

(6) Before passing an order under sub-section (3) sub-sec. (4) or sub-section (5), the Tribunal shall publish the particulars of land proposed to be surrendered or selected, in such manner as may be prescribed and consider the objections if any, received in pursuance of such publication.”

6. Before considering this contention, I may make it clear that in this case, I am not concerned with the validity of the order of the Land Reforms Tribunal, including the lands in the possession of the protected tenants in the holding of the declarant pattadar. As per the judgment of this court reported in the The Authorised Officer (Lr), Vijayawada… v. Kalyanam China Venkata Narasayya…. (1) 1978 (1) Andnra Pradesh Law Journal 98 and Civil Revision Petition No. 2839/77 dated 16-1-78, and C.R.P Nos. 1640 and 1641/77 dated 14-12-1977, the lands in the possession of a protected tenant could not have been included in the holding of the declarant. Now that the lands are included in the holding of the declarant pattadar, it has to be seen whether there is any prohibition against the acceptance of the surrender of such land. The only prohibition that is imposed by the Land Ceilings Act in regard to the acceptance of such surrender is stated to be contained in sub-section (5) of section 10 of the Act which is extracted above. It would be seen that, that provision does not totally prohibit the Tribunal from accepting the surrender of any land which is encumbered. Whether the lands which were given on lease and in respect of which the lessees have rights of tenancy or protected tenancy can be said to be encumberred within the meaning of section 10(5)(a)(ii) of the Act would be presently considered. But assuming that such tenancy constitutes an encumbrance, it would be seen that section 10(6) does not totally prohibit the Tribunal from accepting the surrender of a land encumbered. It only declares that it should be open to the Tribunal to refuse to accept the surrender of any land, the surrender of which is not acceptable on account of encumbrance of the land. In other words, in certain circumstances, surrender of land in the possession of a protected tenant could also be accepted. Under the definition contained in section 2(1) of the Act lands in the possession of a protected tenant also would be deemed to be held by the tenant and in computing the holding of a person, the lands which are actually in the possession and enjoyment as a tenant also have to be included. If in the case of a particular person his entire holding comprises of land held by him as a tenant and such holding is in excess of the ceiling area to which he is entitled, then obviously he would have to be declared as a surplus holder and would be required to surrender the land held by him in excess of the ceiling area to which he is entitled. If land in the possession of a protected tenant is deemed to be an encumbrance and the existence of such an encumbrance precludes the Tribunal from accepting the surrender, then no part of his holding could be surrendered and the Tribunal cannot take over any land from him. He would have to be continued in possession of the holding even though it may be in excess of the ceiling area to which he is entitled. Further, if the land in the possession of a protected tenant could never have been surrendered and the surrender could not have been accepted, a provision as is contained in section 12 could not have been enacted. Section 12 reads as follows:—

“12. (1) Where any land is surrendered or is deemed to have been surrendered under this Act by any usufructuary mortgagee or tenant, the possession of such land shall subject to such rules as may be prescribed revert to the owner.

(2) The owner to whom the possession of the land reverts under sub-section (1) from an usufructuary mortgagee money due to the usufructuary mortgagee in respect of that land with interest at the rate of six percent per annum from the date of such reversion and the said land shall continue to be the security for such payment.

(3) The owner to whom the possession of the land reverts under sub-section (1) from a tenant shall be entitled to receive from the tenant rent due for the period ending with the last crop harvested by such tenant.

(4) Where any land is surrendered or is deemed to have been surrendered under this Act by any limited owner or by any person in possession by virtue of a mortgage by conditional sale or through a part performance of contract for sale or otherwise, the possession of such land shall, subject to such rules as may be prescribed revert to the owner.

(5). The owner to whom the possession of the land reverts under sub-section (4) shall be liable to discharge the claim enforceable against the land by the limited owner or person in possession; and the land surrendered shall, if held as security continue to be the security.

(6) Notwithstanding anything contained in this section where any land surrendered by an usufructuary mortgagee or a tenant of a limited owner or a person in possession referred to in sub-section (4) is also a land surrendered by the owner the provisions of section 11 shall apply.

7. It would be seen that Sac. 12(1) makes provision for reversion and vesting of land surrendered by the tenant and declares that possession of land on such surrender shall, subject to the rules, revert to the owner. Sub-section (6) in fact envisages the surrender of the land in the possession of a protected tenant by the owner. Of course that specifically refers to the surrender of the land by the owner when such land is surrendered initially by the tenant. But there is no express prohibition under section 10(5) against the acceptance of the surrender of the land in the possession of the protected tenant. By the use of the word “the surrender of which is not acceptable on account of an encumbrance on the land”, the Legislature had made it clear that there is no prohibition against the surrender of land which is encumbered. The matter is one of discretion of the Tribunal. In the circumstances of the case when both the Tribunals have accepted the surrender of the land in the possession of the protected tenants by the owner, I do not see any reason who this court should interfere with the discretion of Tribunal. Mr. Narsimha Reddy, the learned counsel for the petitioners however contended that the Tribunal did not exercise a proper discretion in accepting the surrender of the land in the possession of the protected tenants as it constituted an encumbrance and the Tribunal is not entitled to dispossess the petitioners on accepting the surrender. This leads us to the question whether the tenancy over a land constitutes an encumbrance of land. In support of his contention that tenancy constitutes an encumbrance, the learned counsel for the petitioners relied upon a decision of Mohadeo Prasad Sahu v. Gajathar Prasad Sahu (2) 1924, Patna 382. In that decision, the Patna High Court declared:

“Anything which interferes with the Unrestricted rights of the proprietors as they then existed would be an encumbrance upon the land, even the granting of a lease of zerioti lands that is to say the lands which the landlord is entitled to hold in direct possession and to cultivate for his purposes. A lease of such lands granted to an occupier in circumstances which would give him a right of occupancy over the land would amount to an encumbrance.”

8. The learned counsel also relied upon a decision of the Patna High Court in Brijnandan Singh v. Jamuna Prasad Sahu (3) AIR 1958, Patna 589. That was a Case arising under the Bihar Land Reforms Act. In the context of that Act, which provides for the vesting of an estate in the State under a notification under Secs. 3 and 6 of the Act, it was held:—

“There is no definition of the word “encumbrance” in the Bihar Land Reforms Act. The Legislature in using the word ‘encumbrance’ in S. 4(a) could not have used it in the sense in which it is used in S. 161 a) of the Bihar Tenancy Act, 1885, read with S. 2(t) of the Bihar Land Reforms Act, for the interests of the raiyats and under raiyats have been specifically exempted under S. 4 from the operation of vesting under the Bihar Land Reforms Act. Therefore the word “encumbrance” in section 4 has been used in its general or dictionary meaning, that is, in the sense of a burden or charge upon property. If that is so, then it follows that the word “encumbrance” within the meaning of section 4(a) of the Act means nothing more than the encumbrance on those rights or properties which there under vest in the State as a result of the notification issued under section 3 of the Act. That logically means that it refers to those rights which vest in the State and not those which do not. That being so, the encumbrance if any, on the right which is saved by section 6 of the Act cannot be a Aversely affected as a result of vesting under S. 3 or S. 4(a) of that Act”.

9. In that case, the proprietor of eight annas interest in a land which vested in the State under Section 3 and 6 of the Bihar Land Reforms Act, had agreed to give, on perpetual lease his half share in 32 bighas of Zirati and Bakshat lands to two persons. Having regard to the provisions of the Act, it was held that the agreement to grant a lease did not constitute an encumbrance and the suit for specific performance granted by the trial court was decreed. Dealing with the provisions of the same Act in Chhatu Ram Horil Ram Private Ltd. v. State of Bihar (4) AIR 1969 Supreme Court, 177 it was held that the agreement for renewal of a lease in future cannot be binding on the State. The covenant in an indenture of the lease on the expiry of the period of the lease outstanding is a covenant running with the land and it creates no interests in the land. Therefore, such an agreement being in the nature of an encumbrance is extinguished by Section 4(a) of the Act. In that case, the original contractual lease came to an end by the operation of Section 4(1)(a) of the Act. The lease itself was not deemed to be an encumbrance. This decision is not an authority for the proposition that a lease in itself always constitutes an encumbrance. What is an “encumbrance” must depend upon the context in which it is used.

10. In District Bank Ltd. v. Webb (5) 1958 (1) Weekly Law Reports 148, it was held that a lease would not ordinarily be described as an encumbrance. In Caballero v. Henry (6) 43 Law Journal Chancery 635, it was held that if vacant possession is contemplated by the parties, a lease may amount to an encumbrance. In Deo. D. Davies v. Davies (7) 20 Law Journal Q.B 408, an yearly lease was held to be not an encumbrance.

11. It is, therefore necessary to determine whether a lease in the context of the Andhra Pradesh Land Reforms (Ceiling on Agricultural Holdings) Act, 1973, and in particular in the context of section 10(5) of the said Act, read with section 3(i) and section 12, constitutes an encumbrance so as to preclude the Tribunal from accepting the surrender of the land in the possession of a tenant or a protected tenant. The surrender of the land in certain circumstances may have to be made by the landholder and all his lands may be in the possession of a protected tenant. If such a landholder is a surplus holder, whatever land he may surrender it would have been in possession of the protected tenant. If it were to be held that such landholder cannot surrender such land and the Tribunal is precluded from accepting the surrender of such land, then the provisions of the Act would be set at naught. The landholder would have to be allowed to continue in possession of his holding even though it may be in excess of the ceiling area. Even in the case of a person whose holding comprises entirely of land held by him as a protected tenant, the surrender of any land cannot be accepted. But since the Act contemplates the surrender of all lands held in excess of the ceiling area, the land held on lease must also be capable of being surrendered and that can be done only if the lease does not constitute an encumbrance on the land. No doubt, section 11 contemplates vesting of land free from encumbrances and section 14 contemplates the disposal of the land that vests in the Government by way of the distribution of such land. If lease does not constitute an encumbrance, there could be no dejection to such land being accepted by way of surrender and such land would also vest in the Government. As lease is not an encumbrance, the vesting of such land in the Government will not deprive the tenant of his right to hold the land. The Land Reforms (Ceiling on Agricultural Holdings) Act does not seek to deprive possession to the actual cultivators of the land so long as their holding is within the ceiling area to which they are entitled. If the land is surrendered by the landholder and such land is in the possession of protected tenant, the land holder's interest therein would vest in the Government. On such surrender, the tenant, who was a tenant of the erstwhile landholder would not be the tenant of the Government. If the land is surrendered by the protected tenant, it would first vest in the landholder, and only if the landholder thereby becomes a surplus holder, he would be required to surrender the excess but not necessarily the land surrendered by the protected tenant. As rights of the protected tenants are not sought to be disturbed by the Land Reforms (Ceiling on Agricultural Holdings) Act, the protected tenant petitioners herein would continue as protected tenants of the Government. In the instant case, there is no specific order directing dispossession of the petitioner protected tenants. I, therefore, see no reason to disturb the finding of the Tribunals accepting the surrender of the lands. It is, however, made clear that since the petitioners are protected tenants of the land and tenancy does not constitute an encumbrance and acceptance of the surrender is valid, the petitioners cannot be deprived of their holding and the possession. In this case, unless the protected tenants are holding land in excess of the ceiling area to which they are entitled they cannot be dispossessed of such land. The petitioners, therefore, as a result of the acceptance of the surrender by the landholder, shall not be dispossessed from the land. The surrender of the land shall be accepted, but the petitioners shall not be dispossessed from the land. Evidently, that is what the Appellate Tribunal also intended in declaring that the protected tenants would be entitled to work out their rights under the Tenancy Act. The Civil Revision Petition is accordingly allowed. But in the circumstances, without costs. Advocate's Fee Rs. 150/-.