LANKA SRINIVASA RAO Vs. STATE OF HYDERABAD

JUDGEMENT

(1.) This is a petition made by Lanka Srinivasa Rao for a direction in the nature of a Writ of Mandamus or such other direction as the circumstances of the case would warrant under Article 226 of the Constitution of India to the Government so that (1) the lands mentioned in Schedule A be delivered to the petitioner and (2) the amounts of rents and profits realised during the pendency of the Government supervision may be paid to him with interest at the rate of 6 per cent, per annum.

(2.) The facts leading to this proceeding may be briefly stated : One Lanka Venkataramayya died on 13th December, 1937. He was possessed of vast agricultural lands covering an area of about 486 acres in the village of Ganesunipahad, Madhira Taluk. He had left no male issue. He adopted Laka Srinivasarao. The patwari of the village one Kondapalli Laxminarasimha Rao made a report to the Tahsildar that Venkataramayya died without leaving any heir and that the lands were lying fallow. The Tahsildar started ' Lavarsi proceedings ', issued notice on 20th January 1938 and directed the patwari to take the lands under supervision and lease them for one year. These lands were taken thus under Government supervision on 26th January, 1938 under rule 8 of the Settlement Rules. Lanka Srinivasa Rao who was a minor then appeared within one year and claimed his right to patta and possession of the land. His right was recognised and the patta was granted in his name on 21st September, 1942. Thereafter on 24th April, 1952 he filed a petition for the release of the lands. But despite recognition that he is the heir of the deceased Venkataramayya entitled to the patta and ownership of the lands, the possession was not delivered. Eventually on 26th April, 1952, the Revenue Board directed that the lands be released and the amounts collected by the patwari be recovered from him and paid to the petitioner. It appears that the persons who were cultivating the lands had also set up their claims by virtue of their long possession from before and they went in appeal to the Board of Revenue. The Board of Revenue directed the Collector to implead them as parties and enquire into the nature of their possession. The patwari too went in revision against the order of the Collector and his petition was allowed and the Collector was directed to make a further enquiry in the matter. Against the order of the Board of Revenue, a revision was preferred to the Government and the Revenue Minister modified the order of the Board of Revenue only to the extent of the enquiry with regard to the amounts to be recovered from the patwari. It was ordered that the patwari who was the root cause of all the trouble was bound to make all payments and without any further enquiry the recoveries should be made from his personal property. The patwari preferred a writ petition W.P.No.36 of 1954 against this order and obtained stay order. It may be noticed that the Revenue Minister in his order did not direct the delivery of actual possession to the petitioner but upheld the order of the Board of Revenue that the enquiry should be instituted into the claim of persons in possession of the property. But the petitioner t hereafter applied to the Collector both for possession and rents. He demanded possession on the ground that as he has been declared as pattedar, he is entitled to the same under law. The Collector informed him through Exhibit 19 dated 7th June, 1955 that as the files have been sent to the High Court, possession cannot be given. The petitioner applied to the Revenue Minister as well to issue directions to the Collector to give effect to the order passed by him but through Exhibit 2 he was informed that as the matter was pending before the High Court, no further action can be taken till the disposal of the case. It may be mentioned here that as the patwari's petition related only to the collection of the amount from his personal property and the stay order passed in that writ petition was misconstrued, a clarification was sought for and through Exhibit 15, this Court clarified that the stay order was intended to stop collection of amounts from the patwari as directed by the Revenue Minister and it intended nothing further. Notwithstanding this clarification, the Revenue Minister and the Collector through Exhibits 2 and 19 referred to above discountenanced the request of the petitioner to take further proceedings in the matter. The petitioner therefore has come to this Court for a direction that he may be delivered back the possession of the property and the second request is that since he is entitled to all the amounts collected during the pendency of the Government supervision they may be paid back to him.

(3.) The learned Government Pleader argues that since there is a dispute with regard to possession the Government can only give constructive possession and not the actual one. As regards the other point, his contention is that since, on account of the writ petition, the recovery against the patwari who had collected the amounts has been stopped, the Government can pay only the amounts which are deposited in the treasury. The learned Counsel for the petitioner relying on rule 8 of the Settlement Rules and sections 59, 60, no and 125 to 127 of the Hyderabad Land Revenue Act, argues that as according to the patwari's report the land was fallow after the death of the deceased pattedar and was taken over under Government supervision he is entitled to vacant possession the moment the patta is granted in his name under the provisions of rules 8 and 21 of the Settlement Rules and section 125 of the Hyderabad Land Revenue Act. Rule 8 of the Settlement Rules no doubt provides that if the heirs appear within one year and are held duly entitled to the patta of the land, the lessee to whom the land was leased out for the year by the Revenue authorities shall be dispossessed after the harvesting of the last crop of the year and permanent patta of the land shall be sanctioned in favour of the rightful heir in accordance with section 59 of the Hyderabad Land Revenue Act. Section 59 of the Hyderabad Land Revenue Act relates only to the granting of a patta and does not provide for the delivery of possession of the property. But since the lands were taken over for the avowed object of ensuring the land revenue as well, the learned counsel relies on the provisions of sections 125 to 127 of the Hyderabad Land Revenue Act as well. It will be noticed that as the lands were left fallow in consequence of the death of the last pattedar, the Government became interested in the recovery of the land revenue. In that case it could attach the whole or part of the land for ensuring the realisation of the land revenue. It is on this basis that the learned Counsel for the petitioner has argued that since the lands were taken over for this purpose also they ought to be returned along with the surplus rents recovered for the period by the Government under the provisions of sections 125 to 127 of the Hyderabad Land Revenue Act. It is no doubt true that the patwari had made a report that the lands were lying fallow. But the record also shows that there were tenants who claimed before the Tahsildar and the Subedar that they were in possession for the last 35 years. As a result of the appeal of some of the tenants, the Revenue Board remanded the case for enquiry into their claims. Under these circumstances, it becomes highly doubtful whether at the time when the report was made by the patwari, the lands were all fallow. Therefore if the lands had been taken over under the supervision of the Government, all that the Government can do under the circumstances is to give back the constructive possession to the petitioner, as a pattedar by removing its supervision. That is the argument of the learned Government Pleader as well which I think should be given effect to. It is no doubt argued that since Asami Shikmi and Tenancy Acts had not come into force by the time the lands were taken possession of and further names of the alleged tenants were not entered in the Government records as protected tenants, their allegations as to long possession should not stand in the way of the Government to give back the actual possession to the petitioner. But the Hyderabad Land Revenue Act does not make any such clear provision so that notwithstanding the claim of the tenants, the Revenue Officers or the Government may be legally bound to return back the possession of the land to the petitioner. In order to be entitled to a direction in the nature of the Mandamus the petitioner must have a legal right to compel the performance of a legal duty and the person against whom it is sought must be under the legal obligation to perform that duty. In the absence of any such statutory provision which enjoins the authority to give actual possession of the property, the only obligation that remains on account of having lands under Government supervision is that the Government should remove the supervision and give constructive possession to the petitioner. It follows, therefore, that since the petitioner has been declared pattedar and his ownership is not disputed, the Government supervision on the land should cease and the petitioner be given constructive possession of the land. This Court cannot direct the delivery of actual possession at this stage as there is a dispute with regard to the right of permanent occupancy raised by the persons alleged to be in possession of the lands from a long period and is being inquired into by the Revenue Department.