OADE 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 Ac. 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 on the ground that the protected tenant has not been issued a certificate under section 38-E of the Andhra Pradesh (Telangana Area) Tenancy 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. Sub-section (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 section 13, the Tribunal has to determine the land held by a protected tenant and the extent of the land which stand 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 may, 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 Act shall, subject to 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 land holder. 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 sub-sec. (7). The Tribunal has therefore, to determine the extent of the land in respect of which the ownership rights stand transferred to the prelected tenants under section 38 (7) read with 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 38-E 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 38-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-sec. (2) arises only after the Tribunal determines the extent of the land in respect of which the ownership rights stand transferred to the protected tenant. The non issue of a certificate under sec.38-E(2) does not postpone or prevent the operation of Section 38-E sub-sec. (1) under which the ownership rights statutorily stand transferred to and vest in the protected tenants 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 extent of the land held by the protected tenant which stands transferred to him under section 38 E of the Tenancy Act. Such extent 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 area, 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. 11856/76:-ln this petition, the petitioner seeks a direction that in the event of the petitioner's contention being negatived, he might be permitted to surrender the land of the extent of Ac. 12-78 cents in Survey No. 197 of Wankidi in the possession of the protected cenant. But now that the matter is being remanded to the Land Reforms Tribunal, this matter has also to be considered by the Tribunal in the light of its decision after remand. In this view, no orders are necessary on this petition. Petition dismissed. No costs