EGAM MALLIAH Vs. GANDIA MALLIAH AND ANOTHER

JUDGEMENT

(1.) Lal Reddy, a landholder of Tandur filed a petition before the Tenancy Commissioner on 12th October, 1953, for correction of the entry in the tenancy register in relation to the respondent who according to him is neither a tenant much less a protected tenant but only a joint cultivator. The petition was rejected in limini on 21st October, 1953, by the Tahsildar on the ground that the period for filing such application had expired as under Circular No. 351, dated 31st January, 1953. On appeal, the Collector upheld the order of the Tahsildar dealing to a certain extend with the merits of the petition. The contention of the petitioner is that no notice was issued to the other party and the matter was not enquired into by the commission and hence there was no occasion for the finding of the Collector on the merits of the petition when no material as yet was brought on record. There is some force in this contention. The petition was addressed to the Tenancy Commission under rule 24-A (2) and not to the Tahsildar under the substantive provisions of section 37 of Act XXI of 1950. Hence it was the Tenancy Commissioner and not the Tahsildar as such who could entertain this application and pass orders after due inquiry. Section 37 deals with petitions made by the landlord in the prescribed form to the Tahsildar within one year from the date of commencement of the Act for a declaration that certain person holding the land as a tenant at the commencement of the Act is not a protected tenant. The inquiry thereon shall be made by the Tahsildar in the prescribed manner and the remedy of two appeals is open to the parties against the order passed. Rule 24-A framed under the Act for purposes of sections 35 and 37 also provides a mode of representation, its due inquiry and also an appeal to the aggrieved party and this relates to wrong entry in or omission from the final records. Both the terms are comprehensive enough and the mode of inquiry prescribed indicates that it may directly involve even decision of questions of right and not merely correction of accidental mistakes or omission. As it touches the rights there is a provision of appeal as well. So then, if a petition is presented by a person to the commission alleging that certain entry is wrong inasmuch as the person alleged to have been in possession as a tenant was not a tenant at all but a joint cultivator, it was the duty of the commission to consider the application addressed to it and pass proper order in accordance with law. It was open to the commission to consider whether the application is one as would fall under the substantive provisions of section 37 warranting its institution within one year from the commencement of the Act and whether the Commission were precluded from hearing such application on that account even though it may be for correction of a wrong entry. But, at any rate, it is clear that the Tahsildar in such a case could not pass any order in the capacity of a Tahsildar. The mere fact that he was the Chairman of the commission cannot give any legal effect to such order unless it purports to have been passed in that capacity. The law requires that any order passed under the rules must be of the Tenancy Commission and not of the Tahsildar. In this way, it is clear that the original authority did not exercise its jurisdiction vested in it. On that account, the revision petition must be allowed. As the Tenancy Commission is no longer in existence, the matter will go to the Deputy Collector who under the Notification No. 129-A-3/1047 of 1955-1956, dated 4th February, 1956, is invested with power to correct entries in the final record of tenancy under rule 3 of the said Rules. I therefore allow this revision and set aside the order of the Court below and direct that the Deputy Collector should enquire into the matter under rule 3 and pass orders.