P V SONJAN RAO Vs. GANDRA NARSING RAO

JUDGEMENT

(1.) These five revision petitions arise out of five separate petitions filed by the landlord, who is the petitioner before me, before the Deputy Collector under section 44 for resumption of the lands for personal cultivation. The facts which are necessary to determine the questions involved in the revision petitions are : The landlord filed five separate petitions under section 44 for resumption on 11th March, 1957. It appears that, the respondents in these petitions were served with notices. Some of them appeared while others remained ex parte. After enquiry, reservation certificates were granted to the landlord in all the aforesaid five petitions. On the strength of these reservation certificates, the landlord filed petitions on 8th October, 1958, for resumption of lands. Some of the respondents have raised various objections in reply to the petitions of the landlord. The Deputy Collector, Peddapalli, disallowing the objections raised by the protected tenants, allowed the petitions of the landlord for resumption through his order dated 6th March, 1959. Aggrieved by this order of the Deputy Collector, the tenants went in appeal before the Collector. The Collector, through his order dated 29th June, 1959 allowed the appeals and remanded the case to the Deputy Collector for fuller enquiry and disposal of the petitions in the light of the observations he made in his order. These revision petitions are directed against the abovesaid order of the Collector, dated 29th June, 1959.

(2.) The learned Advocate for the revision petitioners, Mr. Raghuvir, contends that, the Collector erred in holding that the copy of the holding extract was not filed. He also contends that the Collector was wrong in remanding the cases for further enquiry in the light of the observations, as no such enquiry is contemplated by section 44 of the Tenancy Act. In order to appreciate Mr. Raghuvir's contention, it is necessary to mention that the Collector remanded the cases with a direction that the Deputy Collector should give finding on the fact that the lands are required in good faith by the landlord for personal cultivation. The Collector, in his order, requires the Deputy Collector to go into the question whether the landlord's name appears in the concerned revenue record. The question is as to whether after the reservation certificates under section 44 are issued, it is permissible to make enquiries in regard to good faith of the landlord and in regard to other requirements under section 44. This question had already arisen in C.R.P. No. 1222 of 1959 and I held therein that section 44 has to be read as a whole and after working out the formula determine the land which the landlord shall be allowed to resume ; it is only then that the tenancy will be determined and a certificate of reservation would be issued. In respect of such land only resumption will be directed. Mr. Devi Prasad Misra, the learned counsel for the respondents, however argues that section 44 read with the two sets of rules relating thereto postulates two independent proceedings, one for purposes of reservation of land and issue of a certificate for the same and the other for resumption of land. I am afraid I cannot accept this contention. Section 44 has undergone changes twice. Sub-section (1) of section 44 was amended by Act III of 1954 on 4th February, 1954. A new Proviso, however, was added to this amended sub-section (1) by an Amending Act No. III of 1956 on 12th March, 1956. The words "within a period of 18 months from the commencement of the said Act" were substituted for the words " within a period of one year from the commencement of the said Act" by the Amending Act V of 1957 on 27th May, 1959. From sub-section (1) of section 44, as it now stands, it is clear that the landlord who, on the date on which the Amending Act of 1954 came into force, is not already cultivating personally an area equal to 3 times the family holding for the local area concerned and who in good faith requires the land leased out to a protected tenant for cultivating personally, is allowed to resume such land or portion of it that would, together with the land which he is already cultivating personally either as owner or as protected tenant, equal to three times the family holding and for this purpose he has to make an application in the prescribed manner to the Collector or any other officer appointed by the Government in that behalf. The Proviso enjoins that after the commencement of the Amending Act of 1955, the right to resume the land cannot be exercised by the landlord, unless, within a period of 18 months from the commencement of the said Act, he files with the Deputy Collector in the prescribed manner a statement of reservation demarcating the land which he reserves for the exercise of the right of resumption under the section. Sub-section (1) thus read with the Proviso lays down certain essential requirements for the exercise of the right of resumption. It is required that the landlord is not entitled to resume in case he is already cultivating an area equal to three family holdings and in any case cannot resume more than three times the family holding in the manner mentioned in sub-section (1) to section 44. He is required to make a declaration demarcating the land which he wishes to resume within the stipulated period and that he must file an application for resumption before the Collector. The difficulty arises only in view of the last limb of the Proviso to sub-section (1) which reads :

(3.) Relying on these words, the learned Advocate for the respondents contends that the necessary enquiry contemplated by this Proviso is confined only to the enquiry in regard to the good faith of the landlord and the preliminary requirement of resumption of three times the family holding in the manner mentioned in sub-section (1) Beyond that, he pleads, under sub-section (1) read with the Proviso, no further enquiry is contemplated. As soon as this enquiry is over, a certificate of reservation would be issued and the right to terminate tenancy can be exercised only in respect of the lands specified in the certificate. Where Mr. Devi Prasad Misra makes a mistake is that, he is not taking into consideration the wording of sub-sections (2), (3) and (8) of section 44. Sub-section (2) mentions that the landholder's right to terminate tenancy of any protected tenant under sub-section (1) shall be limited to an area which shall after such termination, leave with the protected tenant, an area, which together with the land owned by him or cultivated by him as a protected tenant, is equal to a basic holding for the local area concerned. It is clear from the opening words of this sub-section that the right of resumption is further limited to an area which shall after such termination of tenancy leave with the protected tenant an area equal to a basic holding. This sub-section is controlled by two Provisos. According to the first Proviso, if by the said resumption the land that will be left with the protected tenant together with the other land owned or cultivated by him is less than the basic holding, the landholder's right to terminate the tenancy is limited to half the area of land leased out by him to the concerned protected tenant. This sub-section is subject to another Proviso that, where the land owned by the landholder does not exceed the basic holding, he will be entitled to resume the entire land leased by him. It is thus seen that, in order to determine the area of resumption according to sub-section (1) of section 44, sub-section (2) together with these two Provisos will have to be borne in mind. Similarly, sub-section (3) also contemplates that the landholder shall not be entitled to resume under sub-section (1) more than a family holding unless the income by cultivation of such land is his main source of income for his maintenance. Subsections (4) and (5) are not relevant for our purposes. Sub-section (6) prescribes five years' period for the exercise of the right of resumption. If this sub-section is read along with the new Proviso, it becomes clear that subject to overall limit of 5 years for the exercise of the right of resumption, a restriction for the first time is put by the new Proviso to the effect that, the landholders desirous of exercising the right of resumption must, within a period of 18 months from the commencement of the Amending Act of 1956, file a statement of reservation demarcating the lands, which they desire to reserve for purposes of resumption. Sub-section (7) is not relevant for our purpose. Sub-section (8), however, overrides the entire section when it states that nothing in this section shall entitle the landholder to terminate the tenancy of a protected tenant who is for the time being a member of a co-operative farming society.