GADE SURESH Vs. GOVERNMENT OF ANDHRA PRADESH

JUDGEMENT

(1.) In this revision petition two contentions are urged by Sri C. Narasimhacharya, the learned Counsel for the petitioner. The first contention is that in the ancestral lands of the declarant's father, who died in 1967, his widow would be entitled to a half share and not a 1/4th share and, therefore, the half share of the widow should have been excluded from the holding of the declarant and not 1/4th share. But , this contention cannot be accepted because in the instant case, only the widow and the son are heirs to the ancestral property. The son will be entitled to his own half share and half share in the other half of the ancestral property and the widow will be also entitled to a half share therein. The contention that the widow will be entitled to a, half share in the whole of the ancestral property is wholly unsupportable and has to be rejected.

(2.) The second contention urged by the learned Counsel for the petitioner is that Acre 12-72 cents covered by Survey No. 197 is in the possession of a protected tenant and, therefore, the same should have been excluded from the holding of the declarant. The Tribunal rejected this contention or the ground that the protected tenant has not been issued a certificate under section 38-E of the Andhra Pradesh (Telangana Area) Tenants and Agricultural Lands Act (hereinafter called the Tenancy Act), 1950 and that the land was not transferred to the protected tenant under the said section. But the view of the Tribunal appears to me to be erroneous In law. Under section 13 of the Land Reforms (Ceiling on Agricultural Holdings) Act, 1973 hereinafter called as the Ceiling Act, the Tribunal has to decide in the first instance whether the land held by a protected tenant stands transferred to the protected tenant under section 38-E of the Tenancy Act and if so, the extent of the land which so stands transferred to the protected tenant, and such extent of land has to be excluded from the holding of the owner and included in the holding of such tenant as if the tenant was the owner of such land. Subsection (2)of section 13 of the Ceiling Act provides that the relevant provisions of the Tenancy Act have to be applied in the matter of purchase of the land by a protected tenant. Under setion 13, the Tribunal has to be determine the land held by a protected tenant and the extent of the land which stands transferred to the protected tenant and thereafter exclude the same from the holding of the owner. In order to determine the same, the Tribunal has to apply-the provisions of section 38-E. Under section 38-E of the Act the Government by notification in the Andhra Pradesh Gazette declare in respect of any area and from such date as may be specified therein that the ownership of all lands held by protected tenants which they are entitled to purchase from their landholders in such area under any provisions of Chapter IV of the tenancy shall, subject to be the conditions laid down in sub-section (7) of section 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. Under section 38-E, therefore there is a statutory transfer of ownership rights to the protected tenants in the lands held by them as protected tenants. But this is subject to the provisions of sub-section (7) of section 38 of that Act, which lays down the conditions subject to which a protected tenant can purchase lands from the landholder. The protected tenant will only acquire ownership rights in the lands held by him as a protected tenant to the extent mentioned in section 38, subsection (7). The Tribunal has, therefore, to determine the extent of the lands in respect of the land in which the ownership rights stand transferred to the protected tenants under section 38 (7) read with section 38-E. In the instant case, the observations of the Tribunal that it was admitted that the land was not transferred to the protected tenant under section 38E of the Tenancy Act and that the protected tenant was not also issued a certificate under section 38-E and, therefore, the land held by the protected tenant cannot be excluded from the holding of the declarant appears to be clearly erroneous. It is by virtue of the provisions of section 38g-E that the statutory transfer of ownership to the protected tenant takes place subject to the conditions laid down under section 38 (7). The issue of a certificate under section 38-E, sub-section (2) arises only after the tribunal determines the extent of the lands in respect of which the ownership rights stand transferred to be protected tenant. The non-issue of a certificate under section 38-E (2) does not postpone or prevent the operation of section 38-E, sub-section (1) under which the ownership rights statutorily stand transferred to and vest in the protected tenant in respect of the lands held by them as protected tenants subject to the conditions laid down in section 38 (7).

(3.) The matter has therefore to be remanded to the Land Reforms Tribunal, Asifabad, for determination of the extents the land hold by the protected tenant which stands transferred to him under section 38 of the Tenancy Act. Such extetn of land shall then be excluded from the holding of the declarant and only the remaining land will be included in the holding of the declarant. Accordingly the revision petition is allowed and the matter is remanded to the Land Reforms Tribunal, Asifabad for computation of the holding of the declarant and determination of the extent of the excess areas, if any to be surrendered by him in accordance with law and in the light of the observations in this order. There shall be no order as to costs. C.M.P. No. 11856 of 1976 :-In this petition the petitioner seeks a direction that in the event of the petitioner's contention being negatived he might be permitted surrender the land of the extent of AC. 12-78 cents in. Survey No. 197 of Wankadi in the possession of the protected tenant. But now that the matter is being reminded to the Land Reforms Tribunal, this matter has also to be considered by the Tribunal in the light of the its decision after remand. In this view, no orders are necessary on this petition: O.R.P. No. 897 of 1976 remanded to the Tribunal C.M.P. No. 11856 of 1976 remitted to the Tribunal.