IN THE HIGH COURT OF ANDHRA PRADESH: AMARAVATI

HON’BLE MR.JUSTICE DHIRAJ SINGH THAKUR , CHIEF JUSTICE

&

HON’BLE MR. JUSTICE R. RAGHUNANDAN RAO

WRIT APPEAL No.391 of 2023

Kanderi Satyanarayana, S/o.Venkata Reddy,

Aged about 49 years, R/o. Bhimanapalli Village,

Kittenna Cheruvu, Uppalaguptam Mandal,

East Godavari District.

.. Appellant

Versus

Nulu Subrahmaneswara Rao, S/o.Sambasiva Rao,

Aged about 71 years, Occ: Cultivation,

R/o.8-4-80, Main Road, Amalapuram,

East Godavari District and three others.

…Respondents

Smt. N. Anula, Counsel for the appellant.

Smt. M. Bhaskara Lakshmi, Counsel for respondent No.1.

GP for Revenue, Counsel for respondent Nos.2 to 4.

DATE : 04.04.2024

PER DHIRAJ SINGH THAKUR, CJ :

The present writ appeal under clause 15 of the Letters Patent

has been preferred against the judgment and order dated

24.03.2023 passed in W.P.No.25831 of 2010. By virtue of judgment

and order impugned, the writ petition filed by the respondent No.1

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herein was allowed and the order passed by the tahsildar dated

29.06.2010 under the provisions of the Andhra Pradesh Occupants

of Homesteads (Conferment Of Ownership) Act, 1976 (hereinafter

referred to as “the Act”) passed in favour of the appellant herein

was set aside.

With a view to understand the background, in the light of

which the present controversy has arisen, it is necessary to give

the material facts, in brief:

2. Mr. Nulu Subrahmaneswara Rao/ Respondent No.1 herein, is

the owner of land measuring Five Acres and Thirty Three Cents

falling in Survey No.625/1 and Thirteen Cents falling in Survey

No.625/2 situate in Bheemanapalli Village of East Godavari

District. These parcels of land were given on oral lease in the year

1998, to the father of the appellant and after whose death the

appellant herein stepped into his shoes. It appears that on account

of certain alleged defaults in the rentals for the years

2002-2003, 2003-2004, 2004-2005, the writ petitioner ,

Mr. N. Subramanyeswara Rao /respondent No.1 herein, filed an

application bearing Andhra Tenancy Case No.06 of 2006 which was

allowed by the Special Officer-cum-Principal Junior Civil Judge,

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Amalapuram with a direction to the appellant herein to vacate the

schedule property with a further direction regarding delivery of

possession of the same within three months from the date of the

said order.

3. An appeal preferred by the appellant herein against the said

judgment and decree also came to be dismissed vide judgment and

order dated 24.09.2008. In the interregnum, the appellant herein

approached the Tahsildar, Uppalaguptam under the provisions of

the Act.

4. The Tahsildar in his order recorded that the extent of

Homestead land claimed by the applicant was measuring Three

Cents out of Five Acres Forty Six Cents which was covered by the

judgment and decree of the Civil Court. The Tahsildar in his Order

proceeded to hold as under:

“The applicant is an Agricultural labour and is a Land

less Agriculturist. The Homestead land measuring Ac.0.03

cts is under his occupation by construction of a thatched

house at own cost and dwelling in it for the past 40 years.

I therefore consider the applicant Sri Kanderi

Satyanarayana S/o Venkatareddy of Kithanacheruvu H/o

Bheemanapalli (V) of Uppalaguptam (M) as Occupant of

the Homestead land measuring Ac.0.03 cts in R.S.No.625/2

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Kithanacheruvu H/o Bheemanapalli (V) of Uppalaguptam

(M) under the AP Occupants of Homesteads (Conferment

of) Ownership rules 1975 and Order issue of Ownership

Certificate on payment of price mentioned in Form II of the

Act.”

5. The order passed by the Tahsildar came to be challenged by

way of writ petition No.25831 of 2010, which was allowed by virtue

of judgment and order dated 24.03.2023, impugned in the present

writ appeal, on the ground that the Tahsildar, Uppalaguptam in

passing the order dated 29.06.2010, acted without jurisdiction

inasmuch as the principles of natural justice had been violated as

also the pleas raised by the writ petitioner/respondent No.1 herein

had not been considered on merits by the Tahsildar.

6. The learned single Judge appears to have been not satisfied

that the enquiry as envisaged under Rule 4 of the rules framed

under the Act had been conducted properly.

Apart from this, the learned single Judge was of the view that

once the Court of competent jurisdiction had decided disputed

questions and rendered a decision on merits in the matter, the

Tahsildar could not have exercised jurisdiction which was

conferred upon him by the Homestead Act. It was therefore held:

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“19) ... Once a Court of competent jurisdiction, which

has the authority to decide the disputed questions, has

given a decision on the merits of the matter, this Court is of

the firm opinion that the Tahsildar exceeded his

jurisdiction and also exercised jurisdiction which is not

conferred upon him by Homestead application. He did not

act as warranted under law. There is also a clear failure of

the Rules of natural justice and the plea raised by the writ

petitioner is not even considered on the merits by the

Tahsildar. Since there is a clear failure in the jurisdiction

this Court holds that the petitioner is entitled to a Writ of

certiorari as prayed for, quashing the order dated

29.06.2010. The same is accordingly quashed.

20) The plea of the learned Government Pleader

that there is an alternative remedy under Section 8 of the

Homestead Act is also overruled because of the wrongful

exercise of the jurisdiction and also because of the failure

of the rules of natural justice. This Writ Petition is held to

be maintainable and it is accordingly allowed. There shall

be no order as to costs.”

7. At this stage, it is deemed pertinent to refer to the scheme of

the Andhra Pradesh Occupants of Homesteads (Conferment of

Ownership) Act, 1976. The Act from a reading of the preamble

appears to have been enacted to provide for conferment of right of

ownership on landless agriculturists, agricultural labourers and

artisans, in respect of sites occupied by and adjacent to, their

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dwelling houses or huts in rural areas of the State of Andhra

Pradesh.

8. An Agricultural Labourer in terms of the Section 3(1) is

defined as a person whose principal means of livelihood is the

income derived from the wages for his manual labour on

agricultural land.

9. Section 3(3) defines an agriculturist to mean a person who

cultivates agricultural land by the contribution of his own manual

labour or of the manual labour of any member of his family.

Section 3(4) defines an artisan in the following terms:

“(4) 'artisan' includes a village carpenter, blacksmith,

barber, washerman, potter and other persons engaged

in such other callings or employment as may be

specified by the Government in this behalf;”

Section 3(9) defines a Homestead as under:

“(9) 'homestead' means the site of any dwelling house

occupied, either as licensee or otherwise, by any

landless agriculturist or agricultural labourer or artisan

in any village and includes such other area adjacent to

the dwelling house as may be necessary for the

convenient enjoyment of such dwelling house;”

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Section 3(10) defines a landless agriculturist in the following

terms:

“(10) 'landless agriculturist' means an agriculturist,

who does not hold any agricultural land as owner, or

who owns an extent of agricultural land which does not

exceed one hectare if it is a wet land, and two hectares

if it is a dry land;”

Section 3(11) defines a landowner as under:

“(11) 'land-owner' means an owner of the homestead

and includes a lessor licensor in relation to any

homestead, trustee, usufructuary mortgagee and any

other intermediary who has an interest in the

homestead;”

Section 3(13) defines occupant of Homestead as under:

“(13) 'occupant of homestead' means any landless

agriculturist or agricultural labourer or artisan for the

time being in occupation of the dwelling house built at

his expense or at the expense of his predecessor in title

on a homestead belonging to a land-owner;

Explanation: - It shall be presumed until the contrary is

proved that the dwelling house has been built by the

occupant thereof, at his expense;”

10. Section 4 of the Act envisages a bar to eviction of an occupant

of homestead from dwelling house or homestead as under:

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“4. Bar to eviction of an occupant of homestead from

dwelling house or homestead –

(1) If in any village, an occupant of home-stead is in

occupation of a dwelling house on the date of

commencement of this Act, the said occupant of

homestead shall not be evicted from such dwelling

house or homestead, unless the land-owner proves that

the homestead belongs to him and that the dwelling

house thereon was built at his expense and the person

occupying the dwelling house is only a tenant and not

an occupant of homestead.

(2) The provisions of sub-section (1) shall not apply

to a dwelling house which is situated on any

agricultural land from which a tenant of such

agricultural land has been evicted consequent upon the

lawful resumption of the land by the land-owner in

accordance with any law for the time being in force in

that behalf.

(3) If an occupant of homestead who was in

occupation of a dwelling house on or after the 6th

October, 1971, has been evicted before the

commencement of this Act, the authorised officer shall,

on an application made by the said occupant of the

home-stead, within six months from the date of such

commencement or may, suo motu at any time, after

making such inquiry as may be prescribed, restore the

possession of the homestead and dwelling house to the

said occupant of homestead and on such restoration,

the provisions of this Act shall apply as if he were in

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occupation of the said homestead and dwelling house

on the date of commencement of this Act.

Explanation.- For the purposes of this section 'tenant'

means any person who has paid or has agreed to pay

rent or other consideration for his being allowed by

another to enjoy the land of the latter under a tenancy

agreement express or implied, and includes his heirs

and legal representatives.”

11. Section 7 envisages that in case of any dispute between the

landowner and an occupant of the homestead regarding any matter

governed by the provisions of the Act, the same shall be decided by

the authorised officer, after following the prescribed procedure.

12. Section 8 further envisages an appeal to the Revenue

Divisional Officer against any order or decision passed by the

authorised officer.

13. While Section 9 envisages the exercise of revisional powers by

the District Collector either suo motu or on an application filed in

that behalf.

14. Section 11 envisages a bar of jurisdiction of Civil Courts in the

following terms:

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“11. Bar of jurisdiction of civil courts - No civil court

shall have jurisdiction in respect of any matter which

the Government are, or the authorised officer is

empowered by or under this Act, to determine and no

order of eviction shall be passed and no injunction shall

be granted by any Court or other authority in respect

of any action taken or to be taken in pursuance of any

power conferred by or under this Act.”

15. Section 14 is also relevant and envisages as under:

“14. Act to override other laws - The Provisions of this

Act and rules made thereunder shall have effect

notwithstanding anything inconsistent therewith

contained in any other law for the time being in force,

or any custom, usage, or contract or decree or order of

a Court or other authority.”

16. Counsel for respondent No.1 has reiterated the stand as was

taken before the learned single Judge and supported the view

expressed by the writ Court.

17. We have heard learned counsel for the parties and gone

through the record.

18. In the backdrop of the aforementioned facts and provisions of

law, it can be seen that the appellant claims himself to be a landless

agriculturist who claims to be in possession of a dwelling house

constructed over a plot of land measuring three cents. From the

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record it appears that, although the decree against the appellant

was to an extent of Five Acres Forty Six Cents, the appellant herein

had during the pendency of the execution proceedings, surrendered

an area of Five Acres And Forty Three Cents, while continuing to

retain the possession over the three cents, for which he claimed the

benefit of ownership in terms of the Act.

19. Sub-section 2 of Section 4 of the Act envisages that the

provisions of Sub-section 1 of Section 4 of the Act would not apply

to a dwelling house which is situate on any agricultural land from

which a tenant of such agricultural land has been evicted

consequent upon the lawful resumption of the land by the

landowner in accordance with any law for the time being in force in

that behalf. To the extent, the appellant herein had surrendered

land measuring Five Acres Forty Three Cents in favour of the

respondent No.1/petitioner pursuant to the decree passed by the

Civil Court, the appellant herein would not be entitled and rightly

so, the appellant had not claimed any benefit under the Act, in

regard to the land so surrendered.

20. The claim of the appellant was limited to the dwelling house

and homestead measuring three cents. The question that arises for

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consideration is, whether the appellant was entitled to claim the

benefit of the Act, in regard to the Homestead and the dwelling

house despite the passing of the decree in A.T.C. No.6 of 2006. The

answer lies in Section 14 which is reproduced in the preceded

paragraphs and which clearly envisages that the provisions of the

Act and the rules made therein shall have effect notwithstanding

anything inconsistent contained inter alia in any decree or order of

a Court or other authority.

21. The fact that there was a decree or order from a civil Court,

therefore, would not prevent the appellant to app roach the

authorised officer with a view to seek the benefit of ownership

under the Act. In our opinion, the protection against eviction

granted to an occupation of a homestead or a dwelling house under

Section 4 (1) has three important elements, each of which had to be

proved by the landowner with a view to take away the protection so

provided under Section 4 (1). The three important elements which

the landowner has to prove are:

i) That the homestead belongs to him.

ii) That the dwelling house thereon was built at his expense.

iii) And that the person occupying the dwelling house was only

a tenant and not an occupant of the homestead.

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22. It is only if all the three elements are proved by the

landowner that the appellant would lose protection against the

eviction under Section 4(1).

23. We, however, are in agreement with the finding recorded by

the learned single Judge, that the order of the Tahsildar was in

violation of the principles of natural justice inasmuch as the said

tahsildar had not given adequate opportunity of being heard to the

petitioner/respondent No.1 herein, to that extent, in our opinion, it

would have been apt for the learned single Judge to set aside the

order passed by the Tahsildar and further should have remanded

the matter for consideration afresh.

24. We, allow the writ appeal and set aside the judgment and

order impugned and remand the matter to the authorised officer

concerned to pass appropriate orders afresh, after adequate

opportunity of being heard given to the parties concerned. The

authorised officer shall pass a detailed speaking order within a

period of three months from today. Until such time as the order is

passed, the appellant's possession over the homestead and the

dwelling unit be not disturbed. In case any of the parties are

aggrieved by the order so passed, it shall be open to them to avail

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the remedy of appeal prescribed under Section 8 of the Act. No

order as to costs.

Pending miscellaneous applications, if any, shall stand closed.

DHIRAJ SINGH THAKUR , CJ. R. RAGHUNANDAN RAO, J.

SSN