Citation Codes

Equivalent Citations

citation codes

Case Number

W.P No. 1241 of 1964

Advocates

For the Appellant: B.P. Jivan Reddy, Jahangir Ali, Advocates.

Judges

Gopal Rao Ekbote, J.

Acts

section 103 of the Andhra Pradesh (Telangana Area) Tenancy and Agricultural Lands Act, 1950, hereinafter referred to as the Tenancy Act
section 14 of the Prevention of Agricultural Land Alienation Act (III of 1349 Fasli), hereinafter referred to as the Act
section 103 of the Tenancy Act,. 1950. Section 103 of the Tenancy Act,
Prevention of Agricultural Land Alienation Act (III of 1349-F)
ARTICLE 226 CONSTITUTION OF INDIA
case.19. Section 103 of the Tenancy Act,
section. 103 of the Tenancy Act,
Lands Alienation Act, 1861.
TRANSFER OF PROPERTY ACT
section.6. Section 8(2)
section 7(1)(a).

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Smart Summary

Summary of Opinion

Factual and Procedural Background

This is an application under Article 226 of the Constitution of India seeking a writ of certiorari to quash an order of the State Government dated 16 April 1964. The relevant facts as stated in the opinion are:

In Sharewar, 1350 Fasli, the 2nd respondent (Mohd. Sahib) mortgaged land (survey No. 365, Pelam Village, Nizamabad District) in favour of the petitioner.
In 1352 Fasli the parties filed a compromise memo recognising the mortgage and permitting the mortgagor to redeem the property after 12 years without paying any mortgage amount.
The 2nd respondent filed an application under section 14 of the Prevention of Agricultural Land Alienation Act (III of 1349 Fasli) for redemption of the mortgaged land.
The petitioner resisted the application mainly on two grounds: (a) there was an oral agreement, after the compromise, that the petitioner would take half the land in lieu of debt and place the 2nd respondent in possession of the other half free of charge, so there was no effective mortgage to be redeemed; and (b) the Prevention of Agricultural Land Alienation Act had been repealed by section 103 of the Andhra Pradesh (Telangana Area) Tenancy and Agricultural Lands Act, 1950 (the “Tenancy Act”), and therefore no application under section 14 could be maintained in 1959.
After enquiry the Collector rejected the petitioner's contentions and directed that the mortgagee (petitioner) put the mortgagor (2nd respondent) in possession of the half of the property that was in the mortgagee's possession.
The petitioner appealed to the Board of Revenue which agreed with the Collector and dismissed the appeal.
The petitioner then filed a revision petition with the State Government of Andhra Pradesh under the Act; that revision was also dismissed, and that dismissal is the impugned order challenged in this writ petition.

Legal Issues Presented

Whether, after repeal of the Prevention of Agricultural Land Alienation Act by section 103 of the Tenancy Act, a mortgagor could still maintain an application under section 14 of the repealed Act to redeem land (i.e., whether the right to redeem under section 14 had accrued and was saved by section 103).
Whether the State Government's order dismissing the petitioner's revision petition was a non-speaking order (i.e., whether the Government was required to state the reasons that led it to dismiss the revision petition).

Arguments of the Parties

Petitioner's Arguments

The Prevention of Agricultural Land Alienation Act was repealed in 1950 by section 103 of the Tenancy Act, and therefore no petition for redemption under section 14 of the repealed Act could be filed in 1959—i.e., the 2nd respondent had no accrued right to redeem after repeal.
There was an oral agreement subsequent to the 1352 Fasli compromise that the petitioner would take half the land in lieu of his debt and place the 2nd respondent in possession of the other half free of charge, meaning there was no effective mortgage subject to redemption.
The State Government's order is not a speaking order because it merely states that the revision petition was dismissed without elaborating the reasoning that persuaded the Government to reach that conclusion.

The opinion does not contain a detailed account of the 2nd respondent’s separate legal arguments beyond the fact that he filed and pursued an application under section 14 of the Act for redemption and that the Collector and Board of Revenue accepted his application.

Table of Precedents Cited

Precedent	Rule or Principle Cited For	Application by the Court
Abbot v. Minister for Lands, L.R. 1895 A.C. 425	Observation that a mere statutory right to take advantage of an enactment, without any act by an individual, may not be a "right accrued" within the meaning of a repealing provision.	The court distinguished Abbot on its facts and statutory context: in Abbot the claimant had to perform conditions (e.g., select land) before the right accrued, whereas in the present case section 14 conferred a vested right of redemption by operation of law when the mortgage was made.
Reynolds v. Attorney-General for Nova Scotia, 1962 1 S.C.J. 396 at 399	Related to withdrawal of a statutory privilege (renewal of a licence) rather than an accrued right.	The court held Reynolds distinguishable because it concerned a privilege which was withdrawn, not a vested right acquired under the repealed statute; therefore it has no bearing on the present case.
Sakharam v. Manikchand Motichand Shah	Consideration of and distinction from Abbot (as applied by the Supreme Court).	The court noted that Sakharam considered Abbot and distinguished it on similar lines—supporting the court's view that Abbot is not applicable to cases where a right vests by operation of law.
Jatindra Nath De v. Jutu Mahato	Decision of a Full Bench that considered and distinguished Abbot on similar grounds; authority supporting continuation of remedies for accrued rights after repeal.	The court regarded Jatindra Nath De as supportive of its conclusion that rights and remedies accrued under the repealed Act are saved by section 103 of the Tenancy Act, and cited it as sufficient support for permitting the s.14 application to be entertained after repeal.

Court's Reasoning and Analysis

The court's analysis proceeded in a sequential, statutory manner, applying the provisions of the Prevention of Agricultural Land Alienation Act (the “Act”) and the saving provision in section 103 of the Tenancy Act:

Statutory framework: The court reviewed key provisions of the Act:
- Section 7 — prescribes the permissible modes of mortgage for members of the agricultural class, including usufructuary mortgages where possession is delivered to the mortgagee for specified terms.
- Section 8(2) and (3) — describe the mortgagor's right to redeem during the currency of the mortgage and, in the case of usufructuary mortgages, that the mortgagor is not personally liable for the mortgage money.
- Section 10 — empowers the Taluqdar to alter an impermissible mortgage so as to conform it to a permissible form under the Act.
- Section 14 — provides that if a mortgagee holding possession under a mortgage made under section 7 remains in possession after the expiry of the term, the Taluqdar may eject such mortgagee and place the person entitled in possession.
Application to facts:
- The court found it undisputed that the mortgage in question conformed to section 7, so there was no need to invoke section 10 to reform the mortgage; the mortgage was treated as made under section 7 from inception.
- Because section 14 confers the right to redeem in an unqualified manner, the court held that the mortgagor's right to redemption vested by operation of law on the date the mortgage was executed; the mortgagor was not required to perform any act during the currency of the Act for the right to accrue.
Effect of repeal and saving clause:
- The Act was repealed by section 103 of the Tenancy Act. The court closely read section 103 which repealed the Act but expressly saved: (a) the previous operation of the repealed Act; (b) rights, privileges, obligations or liabilities acquired under the repealed Act; (c) penalties; and (d) investigations, legal proceedings or remedies related to those rights, privileges, obligations or liabilities.
- The court concluded that not only were accrued rights saved by section 103, but also the remedies and legal proceedings to enforce those rights were saved by clause (d) of the proviso. Therefore, legal proceedings under section 14 could be instituted and enforced notwithstanding the repeal.
Response to the petitioner's contention that the mortgagor's right had not accrued because he had not filed a section 14 application before repeal:
- The court rejected the contention, reasoning that section 14 vests the right to redeem without any prerequisite act by the mortgagor; the right vested on creation of the mortgage and therefore had accrued prior to repeal.
Distinguishing authorities:
- The court distinguished Abbot v. Minister for Lands on the ground that the Privy Council in Abbot was dealing with rights that required further conditions to be satisfied before vesting (e.g., selection of land), whereas in the present case the right to redeem vested immediately under the Act.
- Reynolds was distinguished because it dealt with withdrawal of a statutory privilege (renewal of licence) rather than an accrued right.
- The court referred to Sakharam and the Full Bench decision in Jatindra Nath De v. Jutu Mahato as authorities that considered and distinguished Abbot on comparable grounds, and found Jatindra Nath De supportive of its conclusion.
On whether the State Government's order was non-speaking:
- The court observed that while the communicated order merely stated that the revision petition was dismissed, the Collector's and Board of Revenue's orders fully set out reasons supporting the 2nd respondent's s.14 application.
- The court reasoned that the State Government's decision could be taken as approval of those reasoned orders and that it was not necessary to require the Government to restate those reasons in the confirming communication. It also noted the possibility that a more elaborate original order existed and that only a substance was communicated to the petitioner.
- Finally, the court concluded that since the petitioner had no merit on the merits, requiring a further reasoned order would serve no useful purpose.
Conclusion of analysis:
- The court held that the 2nd respondent's application under section 14 was not invalid merely because the Act had been repealed; the right and remedy were saved by section 103 of the Tenancy Act.
- The Collector had jurisdiction to entertain the section 14 application, and the subsequent appellate and revisional dismissals were not shown to be legally flawed on the grounds advanced.

Holding and Implications

Holding: The writ petition is DISMISSED.

Implications and direct effects:

The court held that a mortgagor's right to redeem under section 14 of the Prevention of Agricultural Land Alienation Act, when the mortgage conformed to section 7 and was executed while the Act was in force, vested by operation of law and therefore accrued prior to the repeal of the Act.
Section 103 of the Tenancy Act saves accrued rights and the remedies to enforce them; accordingly, an application under section 14 could properly be entertained after repeal.
The Collector and the Board of Revenue had jurisdiction and their decisions ordering the mortgagee to restore possession to the mortgagor were upheld; the State Government's dismissal of the revision petition did not require an elaborate, separate statement of reasons given the existing reasoned orders below and the absence of merit in the petitioner's case.
The writ petition was dismissed with costs (advocate's fee Rs. 100). The opinion does not purport to lay down a novel precedent beyond the court's interpretation and application of the saving clause in section 103 to the facts before it.

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Rangaraj Gangaram, Deceased By His L.Rs Petitioners v. The Government Of Andhra Pradesh By Secretary, Revenue Department And Another

1. This is an application under Article 226 of the Constitution of India seeking the issue of a writ of certiorari to quash the order of the State Government dated 16th April, 1964. It arises in the following circumstances.

2. The 2nd respondent Mohd. Sahib mortgaged the land bearing survey No. 365 situated at Pelam Village in Nizamabad District with the petitioner in Sharewar, 1350 Fasli. In a subsequent litigation between the parties a compromise memo, was filed in 1352 Fasli recognising the mortgage and allowing the mortgagor to redeem the property after the expiry of 12 years without being required to pay any mortgage amount. The 2nd respondent filed an application under section 14 of the Prevention of Agricultural Land Alienation Act (III of 1349 Fasli), hereinafter referred to as ‘the Act’ for redemption. That application was resisted by the petitioner mainly on the ground that subsequent to the compromise of 1352 Fasli there was an oral agreement between the parties, that the petitioner should take half the land in lieu of his debt and put the 2nd respondent in possession free of any charge of the other half. It was therefore contended that there was no effective mortgage which could be redeemed. It was further contended that since the Act was repealed in 1950, no application under section 14 could be filed in 1959.

3. After a proper enquiry, the Collector repelled the contentions raised by the mortgagee-petitioner and directed the mortgagee to put the mortgagor in possession of half of the property which was in the possession of the mortgagee. Aggrieved by that order of the Collector, the petitioner carried the matter in appeal under the Act to the Board of Revenue. The Board of Revenue agreed with the conclusion of the. Collector and rejected the appeal. The petitioner subsequently filed a revision petition with the State Government of Andhra Pradesh under the Act. The revision petition also was dismissed and that is the order which is now impugned in this writ petition.

4. Two contentions were raised by Mr. B.P Jeevan Reddy, the learned Counsel for the petitioner. It was firstly contended that no petition for redemption can be filed after the Act had been repealed in 1950 by section 103 of the Andhra Pradesh (Telangana Area) Tenancy and Agricultural Lands Act, 1950, hereinafter referred to as the ‘Tenancy Act’ and secondly, that the order passed by the Government is not a speaking order as it does not contain the reasoning which persuaded the Government to reach the conclusion.

5. In order to appreciate the first contention, it becomes necessary to read some of the provisions of the Act. Under section 7 of the Act, a member of an agricultural class is competent to mortgage his land only in the manner mentioned in that section. One of such manner is the usufructuary mortgage by which the mortgagor has to deliver possession of the mortgaged land to the mortgagee authorising him to retain possession and to receive the rent and profits of the land in lieu of interest and towards payment of the mortgage money till the expiry of the term if the term has been feed or if no term has been fixed, for a period of twenty years. I am not concerned with the other kinds of mortgage mentioned in that section.

6. Section 8(2) enjoins that the mortgagor may redeem his land at any time during the currency of the mortgage, on payment of the mortgage debt or if the mortgage is in the form mentioned in clause (a) or (b) of section 7, on payment of such proportion of the mortgage debt as the Taluqdar determines to be equitable. Subsection (3) of that section states that in the case of a usufructuary mortgage, the mortgagor shall not be personally responsible for the payment of the mortgage money.

7. Another relevant section is section 10. According to that section if a member of an agricultural class makes a mortgage of his land in any manner or form not permitted by the Act. the Taluqdar shall have authority to receive and alter the terms of the mortgage so as to bring it in accord with such form of mortgage permitted, by or under the Act, as the mortgagee appears to him to be equitably entitled to claim.

8. It is section 14 which is more relevant. According to the section, if a mortgagee holding possession of land under a mortgage made under section 7 remains inpossession after the expiry of the term for which he is entitled to hold under his mortgage, the Taluqdar may, of his own motion or on the application of the person-entitled to possession eject such mortgagee from the land and place the person so-entitled in possession thereof.

9. The Act came into force on 1st Azur, 1350 Fasli and admittedly was in force when the mortgage was executed by the 2nd respondent in favour of the petitioner, that is, Sharewar, 1350 Fasli. Even when the compromise petition was filed the: Act was in force. It was however repealed by section 103 of the Tenancy Act,. 1950. section 103 of the Tenancy Act, omitting irrelevant portions, is in the following terms:

“(1) The Prevention of Agricultural Land Alienation Act (III of 1349-F) and the Hyderabad Assami Shikmis Act (I of 1354-F are hereby repealed:

Provided further that the repeal of the said Acts shall not affect—

(a) the previous operation of the’ Act repealed hereby or anything done or suffered thereunder;

(b) any right, privilege, obligation or liability acquired, accrued or incurred under the Act so repealed;

(d) any investigation, legal proceedings or remedy in respect of any such right, privilege, obligation, liability, penalty, forfeiture or punishment as aforesaid; and any such investigation, legal proceeding or remedy may be instituted, continued or enforced, or any such penalty, forfeiture or punishment may be imposed as if the said Acts aforesaid had not been repealed.”

10. It is not disputed that the mortgage in question was in conformity with section 7 of the Act. It was therefore not necessary to have recourse to any proceeding under section 10 of the Act to bring the mortgage in conformity with section 7. The mortgage would be deemed to have been made under section 7 because it was executed only after the Act came into force, particularly when it fulfils all the requirements of section 7(1)(a). During the continuance of the Act, an application-to redeem such a mortgage could have successfully been filed under section 14 of the Act. The argument, however, is that since the Act was repealed by section. 103 of the Tenancy Act, no application under the repealed Act could be filed in-1959 since the 2nd respondent had no accrued right to get the mortgage redeemed by having recourse to section 14 of the repealed Act. Reliance was placed in support of this contention on the following two decisions: Abbot v. Minister for Lands . L.R 1895 A.C 425. and Reynolds v. Attorney-General for Nova Scotia . 1962 1 S.C.J 396 at 399..

11. A close reading of the provisions of the Act extracted above would reveal that all the kinds of mortgages recognised by the Transfer of Property Act have not been recognised by the Act. The Act requires that the mortgages subsequent to the Act must conform to the mortgages approved, by section 7 of the Act. In a case where any mortgage does not confirm to the kinds of mortgages mentioned in section 7, then the Taluqdar has been given power to bring it in conformity with section 7 of the Act. All other kinds of mortgages thus are excluded in so far as the agricultural class was concerned. When once it is conceded that the present mortgage is in conformity with section 7 of the Act, what remains to be seen is whether the right to redeem which section. 14 confers on the mortgagor and also provides him a form for that purpose, is saved by section 103 of the Tenancy Act which while repealing the Act saves certain rights accrued. A careful analysis or section 103 of the Tenancy Act would leave no one in doubt that any right acquired or accrued under the Act has been saved. Not only that the right which has accrued is saved but the remedy which the Act provided to enforce the right has also been saved by clause (d) of the second proviso to section 103 of the Tenancy Act. It specifically mentions that legal proceeding in regard to any right may be instituted, continued or enforced in spite of the repeal of the Act. What has to be examined is whether the right to redeem which section 14 of the Act confers, is a right which had accrued to the 2nd respondent prior to the repeal of the Act.

12. The argument of the learned Counsel for the petitioner was that al though section 14 confers a right to redeem, even then that right would not be deemed to have been accrued to the 2nd respondent unless he does something in order to exercise that right. Elaborating this argument, it was submitted that it was necessary for the 2nd respondent to file an application under section 14 of the Act to get the property redeemed and since he has not done it before the Act was repealed, it cannot be said that the right to redemption had accrued to the 2nd respondent.

13. I do not think I can agree with this contention. Even a cursory reading of section. 14 would reveal that the right to redeem is conferred by that section in an unqualified manner. The 2nd respondent is not expected under the said provision to do anything in order to get the right to redeem. That right has been conferred by the said provision on him. It is therefore clear that on the day on which the mortgage came into existence, which was in accordance with section 7 of the Act, he gets the vested right of redemption under the Act. He was not expected to do anything in order to acquire that right. It has accrued to him because of the force of law.

14. The decisions relied upon by the learned Counsel can easily be distinguished on the facts of those cases. Abbot v. Minister for Lands undoubtedly makes the following observation:

“They think that the mere right (assuming it to be property so called) existing in the members, of the community or any class of them to take advantage of an enactment, without any act done by an individual towards availing himself of that right, cannot properly be deemed a ‘right accrued within the meaning of the enactment.”

15. The said observation, however, has to be understood in the context of the facts and the relevant provisions of the Act with which their Lordships were concerned. In that case, the appellant had obtained a grant of certain lands under the Crown: Lands Alienation Act, 1861. By virtue of the original grant, the appellant was entitled to claim settlement of additional arrears, if he satisfied certain considerations laid down in the relevant provisions of the statute. One of such conditions was to select the additional land. The original settlee, without selecting the land or observing other relevant conditions, contended after the Act was repealed that he had a right accrued to select the land in spite of the repeal of the statute. What was saved by the subsequent Act was the right which had accrued. Their Lordships, repelling the contention, held that before the right to get additional land would accrue to the appellant, it was necessary for him to satisfy the requirements of the law, particularly to select the land. Since those conditions were not satisfied, no right would be deemed to have been accrued. It is thus clear that the above stated observation relied on by the learned Counsel for the petitioner was made in an entirely different situation under a different Act from the context of the present situation. In that case, their Lordships of the Privy Council assumed that although a right to select the land and get it additionally was a right, it had not accrued since the conditions were not completed during the currency of the relevant Act. That is why it was found that it was not a right accrued to the appellant within the meaning of the repealed statute.

16. The abovesaid decision was considered by the Supreme Court in Sakharam v. Manikchand Motichand Shah, and was distinguished on the lines mentioned above.

17. Similarly, a Full Bench of the Calcutta High Court had occasion to consider this decision and it was distinguished on similar grounds. See Jatindra Nath De v. Jutu Mahato.

18. The second case Reynolds v. Attorney-General for Nova Scotia, can easily be distinguished on the ground that it was not a case relating to any right acquired or accrued but related to a privilege which was withdrawn. According to the repealed Act, the licensee could have asked for an automatic renewal upon some additional payment. This privilege was withdrawn by amending the Act. The contention that in spite of this amendment the person had a right to get his licence renewed upon additional payment was rejected. The instant case is not a case concerning any privilege. That decision therefore has no bearing on the present case.

19. section 103 of the Tenancy Act, as stated earlier, although repeals the Act, it saves the right acquired or accrued and also saves the remedy which was available in order to enforce that accrued or acquired right. Right to redeem a mortgage, it is not denied, is a right and when section 14 confers it without the mortgagor being required to do anything, it becomes a vested right on the day the transaction comes into force. Such a right would be deemed to have accrued to the mortgagor on the day when the mortgage deed had been executed. This right which had accrued, has been clearly saved by section 103. As stated earlier, the remedy to enforce such right also has been saved by the same provision of law. Any legal proceeding in order to redeem the mortgage therefore can be instituted and the right thus enforced. I do not therefore think that the application, which was filed by the 2nd respondent under section 14 of the Act, was in any manner wrong and the Collector had jurisdiction to entertain that application under section 14 of the Act. This conclusion finds sufficient support from the following decision: Jatindra Nath De v. Jutu Mahato. I would therefore reject the first contention raised by the learned Counsel for the petitioner.

20. I do not similarly find any substance in the second contention. It is no doubt true that the order communicated to the petitioner merely states that his revision petition has been dismissed. It is not in doubt that the order of the Collector and that of the Board of Revenue give all the reasons in order to allow the petition filed by the 2nd respondent under section 14 of the Act. It could therefore be deemed that the State Government approved of those reasonings and it was not therefore necessary in a confirming order to elaborately put all the reasons. The original order of the State Government is not before me. It is possible that an elaborate order must have been written and while communicating the same to the petitioner only a substance of it was communicated. Even otherwise, I am satisfied that when on the merits the petitioner has no case, no useful purpose would be served in directing the Government to write a reasoned order. As no other argument was advanced, the conclusion is that the writ petition must fail and it is dismissed with costs. Advocate's fee Rs. 100.

21. Petition dismissed.

Rangaraj Gangaram, D... v. The Government Of An...