RAMCHANDRA RAO, J

(1) IN this batch of writ petitions, two common questions arise for consideration : (1) Whether the provision to Section 38-1 (2) introduced by the andhra Pradesh (Telangana Area) Tenancy and Agricultural lands Amendment Act 2/79 is unconstitutional (2) Whether the said proviso which came into force on 11-1-1979 has no retrospective operation

(2) IN order to decide the said questions, it is necessary to notice the facts which have held to the passing of the said Amendent Act 2/79. The andhra Pradesh (Andhra Area) Tenancy and Agricultural Land Act 21/50 was enacted to amend the law relating to relations of land holders and tenants of agricultural land and the alenation of such land to enable land holders to prevent the excessive sub-division of agricultural holdings, to empower Government to assume in certain circumstances the Management of agricultural lands, to provide for the registration of Co-operative firms and to make further provision for matters incidental to afore said purposes. The said Act came into force on 10th June 1950 and it extends to the whole of the Telengana area of the State of Andhta Pradesh.

(3) SECTION 2, the definition section, defines various words and expressions occuring in the several provisions of the Act. "tenancy" is defined in sect/on 2 (u) as meaning the relationship of landholder and tenant. "protected" is defined in section 2 (r) as meaning a person who is deemed to be the protected tenant under provisions of the Act. The section also contains defienitioas of the words "agriculture", "agriculturist",land, lease"permanent allenation" and other words or expressions, which it may not be necessary to refer in detail for the purpose of this case. Sections 5 to 33 of Chapter 111 contain general provisions relating to tenants, whereas sections 34 to 46 in Chapter iv contain provisions relating to protected tenants. Chapter V contant provision relating to restrictions on transfers of agricultural land, and the other Chapters VI, VII, VIII and IX deal with management of land, prevention of fragmentation and consolidation of holdings, Co-operative farms, Constitution of Tribunals, procedure and powers of authorities under the Act : Chapter X provides for offences and penalties, and chapter XI contains miscellaneous provisions. We are mainly concerned with the provisions in chapter IV relating to protected tenants.

(4) SECTION 34 defines "protected tenants". Claims relating to pro. tected tenancy are decided by the Tahsildar under section 35 (1) and against the decision of the Tahsildar, a first appeal lies to the Collector and a second appeal to the Board of Revenue under section 35 (2) and the dcelaration given by the Tahsildar shall be conclusive that a person is a protected tenant and his rights as such shall be recorded in the record of rights, and where there is no record of rights, in such village record as may be prescribed. The validity or correctnes of a tenancy certificats issued pursuant to a decision under section 35 cannot be questioned in any civil or criminal court by reason of the provisions of section 99 of the Act, which bars the judisdiction of a Civil Court to settle, decide or deal With any question which is, by or under the Act, required to be settled, decided or dealt with by the authorites under the Act. Section 36 enables the protected tenant to recover possession of the land on complying with the requirements of the said section. Section 38 confers a right on the protected tenant to purchase the landholders interest in the land held by him as a protected tenant subject to the provisions of sob-section (7) and other provisions of the said section.

(5) WHILE so, by Amendment Act Wo. 3/54, which received the assent of the President on 31st January 1954, a number of amendments were r-58 made to the Act including the insertion of 38-E. Under section 38-E, the government may declare by notification in the Andhra Pradesh Gazette that ownership of all lands held by protected tenants which they are enti-tled to purchase from their landholders in such are under any provison of chapter IV shall stand transferred to, and vest in the protected tenants holding them, and from such date the protected tenants shall be deemed to bo the full owners of such lands. Under the proviso to the said section 38-E, where in respect of any such land, any proceeding under section 19 or section 32 or section 44 is pending on the notified date, the transfer of ownership shall take effect on the date on which such proceeding is finally decided and when the ttnant retains possession of the land in accordance with the decision in such proceeding. The explantion to the said section 38-E (1) reads as follows:-explanation:if a protected tenant, on account of his being dispossessed otherwise than in the manner and by order of the Tabsildar as provided in section 32, is not in possession of the land on the date of notification issued here under, then for the purpose of the sub-section, such protectecd tenant shall, not withstanding any judgment, decree or order of any court or the order of the Board of Revenue or Tribunal or other authority, be deemed to have been holding the land on the date of the notification; and accordingly, the Tahsildar shall notwithstanding anything contained in the said section 32, either suo motu or on the application of the protected tenant hold a summary enquiry, and direct that such land in possession of the landholder or any person claiming though or under him in that area, shall be taken from the possession of the landholder or such person as the case may be, and shall be restored to the protected tenant and the provisions of this section shall apply thereto in every respect as if the protectcd teaant had held the land on the date of such notification. " under this provision, a protected tenant who has been otherwise than in the manner and by order of the Tahsildar as provided in section 32. is not in possession of the land on the notified date for the purpose of the sub-section, such protected tenant shall be deemed to have been holding the land on the notified date. Further, the Tahsildar is empowered under the said explanation either suo motu or on the application of such protected tenant to hold a summary enquiry and ditect that the possession of such land in the possession of landholder or any person claiming through or under him shall be taken from the landholder or such person, and restore to the protected tenant, and the provisions of section 38-E apply to such protected tenant as if he had held the land on the date of such notification. Sub-section (2) of Section 38-E provides for is Issue of a certificate in the prescribed form by the Tribunal after holding an enquiry as may be prescribed, declaring the protected tenant to be the owner and the certificate. shall be conclusive evidence of the protected tenant having become the owner with effect from the date of the certificate as against the landholder and all other persons having any interest therein. Subsections (3)and (4) provide for determination of the reasonable price of the landholders interest in the land in respect of which ownership stands transferred to the protected tenant under section 38 E (1) and recovery of the price on default of payment by the protected tenant.

(6) WHILE so, two writ petitions W. P. Nos. 3279 and 3280/77 were filed in this court by the petitioners therein alleging that they had entered in to agreements of sale from the landholder in the years 1963 and 1964 on payment of the entire consideration, and that they were put in possession of the same, and that they were in possession of the lands for over 12 years. On 20-8-1977 they received a notice from the patwari stating that the Tahsildar had passed an order for dispossessing them from the lands as the Revenue Divisional Officer granted a patta certificate under section 38-E in respect of the said lands in favour of the respondents 4 to 9 therein who claimed to be protected tenants. The said notices were challenged in both the writ petitions on the ground that the order for dispossession was passed by the Revenue Divisional Officer without notice to the petitioners that they were in possession of the lands at the time the certificates under section 38-E were issued to there spondents; but they were not issued any notice of the said procerdinps. that the respondents-protected tenants on the issue of the patta certificates became owners of the lands, and, therefore, the revenue authorities were no more competent to pass orders directing dispossession of the fetitioners under the provisions of the Act, as the question relating to possession arose between two rival owners and not between a landholders and a protected tenant, and that even otherwise the rights of the tenants stood extinguished on account of their being out of possession for more than the statutory period of 12 years prior to the agreements of sale in favour of the petitioners, and that the protected tenants bad also abandoned their possession over the lands and they were not dispossessed and, therefore, the revenue authorities had no power to restore possession of the said lands to the tenants, and that even otherwise, the power to restore possession could only be exercised before the patta certificate under section 38-E was issued, but not subsequent to its issuance.

(7) THE said writ petitions were contested by the respondents denying the truth and validity of the agreements to sell set up by the petitioners and also their being in possession persuant to the agreements to sell alleging that their claim was based on some bogus village records and that the respondents being protected tenants, the ownership stood transferred to them in respect of the lands held by them on the coming into force of section 38-E of the Act, and that the patta certificate under section 38-E was issued as the requirement of section 38 (7) was fulfilled, and that notices to all persons were issued at thet stage, but the petitioners therein did not put forward any objections with regard to the grant of certificate, and that the revenue records disclosed that the 3rd respondent alone was the owner and possessor and not the petitioners therein, and that the possession of the petitioner was unauthorised, and the revenue authorities had powers ta dispossess such persons in unauthorised occupation, and restore pessessor of the lands to the protected tenants, and that the patta certificates issud were final and conalusve as they were issued after following the precedurs prescribed by section 38-E read with the relevant rules.

(8) THE writ pettiens were heard and disposed of by Jeevan Reddy,j holding as fellows: (1) The provisions ef section 38-E of the Act are special beneficial provisions. (2) Proceedings for restoration of possession could be taken before or after the issue of the patta certificate in asmuch as the protected tenants are cenferred ownership rights from the notified date. (3) The Explanation to section 38-E (1) empowers the revenue authorities to lake proceedings for restoration of possession of the lands before or after after issue of patta certificate under section 38-E (2). (4) The petitioners did not establish by any record that they were ia actual possession aad, therefore, no individual notices to them was necessary. (5) The procedure prescribed under Rule 4 by affixture of a provisional list and the notice oa the village chavidi or at a conspicuous place in the village and a communication of the said notice to the landholder aad the protected tenants was valid and that any person having interest in the land could approach the tribunal with objeetions which the Tribunal would hear and dispese of, and if the pcrsons were interested in the land, an opportunity was available for them to rulse all their objections. (6) The provisions of the Limitation Act were not applicable to proceedings before the Tribunal or to the provisions of the tenancy Act and, therefore, the contention of the petitioners that the protected tenants being out of possession for more than 12 years their rights stood extinguished, was not tenable. (7) Seetion 38-E (1) ef the Act empowers the revenue authorities to issue certificates of ownership to the protected tenants and to restore possession of the lands to the tenants if they were out of possession of the said lands, even if they were dispossessed otherwise than in accordance with the provisions of Section 32 of the Act, on those findings, the learned Judge dismissed the writ petitions.

(9) AGAINST the said judgment, appeals were preferred under Clause is of the Letters Patent and the appeals were heard and disposed of by adhava Reddy. J (as he tnen was) and Narasinga Rao, J. In C Narasatah vs Tahsildar, Mahabubabad. Before the learned Judges, the following points set out in Paragraph 9 of the judgment, were raised; (1) After issue of a certificate under section 38-E of the Act, there is no jurisdiction in the Tahsildar to restore the possersion, particularly so, when possession is found to be with a third person. (2) Even assuming that such a jurisdiction is vested in the Tribunal or the Tahsildar, a notice was required to be issued to the person in possession before an order for restoration of possession to the protected tenant is passed. (3) The rights of protected tenant, who is out of possesion for more than 12 years stand extinguished, in view of section 27 of the Limitation Act 1963. (4) The proceedings for restoration of possession under the Explanation to Sec. 38-E of the Act can only be taken where a protected tenant was dispossessed, but not when he voluntarily surrenders possession. (5) At any rate, without an order of eviction of the appellants, the notice issued by the patwari in question is illegal.

(10) THE learned Judges held on each of the aforesaid points as follows: (1). Once an ownership certificate is issued, the protected tenant himself becomes the owner and the question of restoration of possesion to such owner is no more within the province of the tahsildar, be that proceeding againt a trespasser or against a rival claimant. (2) Any order passed by the Tahsildar restoring the possession without notice to the person in possession of the land is invalid, illegal and violative of the principles of natural justice. (3) The provisions of Section 27 of the Limitation Act with regard to the extinguishment of the right of tenancy are held application to a tenant, who is out of possession for the statutory period, and the right of such a tenant to bring a suit would be barred and he cannot be restored to possession either on his application or otherwise by the authorities under the Tenancy Act. (4) The proceedings for restoration of possession under the Explanation to Section 38-E of the Act could only be taken in favour of a protected tenant who was dispossessed in contravention of section 32 of the Act and not in favour of one who bad surrendered or abandoned possession, and that the question whether a protected tenant was dispossessed or be had surrendered or abandoned is a question of fact. (5) The order of the Tahsildar restoring possession without notice to the person in possession beinf invalid, illegal and vlolative of the principles of natural justice, the notice issued by the patwari in pursuace of the order of the Tahsildar for dispossession of the appellant was equally liable to be quashed on the same grounds.

(11) SUBSEQUENT to the aforesaid decision rendered on 7-4-1978, the governor of Andbra Pradesh promulgated the Ordinance No. 2/79 on 11-1-1979 for amending the Andhra Pradesh (Telangana Area) Tenancy and agricultural Land Act, 1950 and the Andbra Pradesh (Andhra Area)tenancy Act, 1956. The said Ordinance has since been replaced by the andhra Pradesh Tenancy Laws (Amendment) Act No. 2/79. Section 1 (2)of the Act says that the said act shall be deemed to have come into force on llth January, 1979, The proviso to section 38-E) (2) has been replaced by the following proviso:"provided that where the land, the ownership of which has been transferred to the protected tenant under sub-section (1), is in the occupation of a person other than the protected tenant or holder of the certificate issued under this sub-section, it shall be lawful for the Tahsildar to restore the possession of the said land to the protected tenant or holder of the certificate, after giving notice of eviction to the occupant thereof, in the prescribed manner". After sub-section (4) of Section 38-E. the following subsection has been inserted:" (5) Notwithstanding anything contained in this rection or section 19, the Collector may, suo motu at any time, hold an enquiry with a view to ascertain the genuineness of the surrender of the right made by the protected tenant under clause (a)of sub-section (1) of Section 19, for the purpose of effecting the transfer of ownership under this section, and pass such order in relation thereto as he may think fit; provided that no order adversely afficting any person shall be passed under this sub-section unless such person has had an opportunity of making his representation thereto. In lection 93, for the expression and the provisions cf the indian Limitation Act, 2908, shall apply for the purposes of the computation of the said period, the following has been instituted: "and the provisions of section 5 and Section 12 to 24 of the limitation Act, 1963, shall apply for the purposes of extension and computation of the said period".

(12) NOW under the proviso to sub-section (2) of Section 38-E introduced by the amendment Act 2/79 a procedure has been prescribed for restoration of possession of lands to the protected tenant or holder of the ownership certificate under section 38-E Under this proviso, where the land, the ownership of which has been transferred to a protected tenant under sub-section (1), is in occupation of a person other than the protected tenant or holder of the certificate issued under sub-section (2), the Tahsildar is empowered to restore possession of the said land to the protected tenant or the holder of the certificate, after giving notice of eviction to the occupant thereof in the prescribed manner.

(13) IN G. O. Ms. No. 2064 Revenue (F) dated 7-5-1980, rules have been framed by the Government in exercise of the powers conferred by section 97 read with section 38-E prescribing the manner for restoration of possession to the protected tenant or the certificate holder. Rule 1 empowers the Tahsildar to restore possession of the land to a protected tenant or holder of the certificate after giving notice of the eviction to the occupant thereof in the form appended 10 the Rules, giving 15 days time. Under Rule 2, the Tahsildar has to examine any valid and acceptable objections offered and pass suitable orders of eviction after recording the reasons therefor. Under Rule 3, if no representation is made within the given time of 15 days, the Tahsildar shall forthwith proceed with the eviction of the occupant upon whom notice has been served and restore possession of the land to the protected tenant or the holder of the certificate as the case may be.

(14) THE first contention argued on behalf of the petitioners is, that the Andhra Pradesh (Telangana Area) Tenancy and agricultural lands Act, 1950 was enacted mainly to amend the law relating to regulation of relations of landholders and tenants of agricultural land, and not with regard to matters relating to transfer, possession or restoration of possession of lands as between owners of the lands and once theonwership was been transferred tc protected tenants and/no certificates issusd to them under section 38-E (1) or (2) of the Act, the protected tenants cease to be the tenants, and the jural relationship of landholder and tenant ceases and restoration of possession of lands to protected tenants or certificate holders from the erstwhile landholder or a third person in occupation of the lands would not fall within the scope of a legislation relating to landlord and tenant and, therefore, the provise introduced to section 38-E (2) by amendment Act 2/79 is ultra vires the powers of State legislature, we do not find any merit in this contention. The legislative competence of the State Legislature to pass the impugned amendmtnt act is beyond doubt. The mam Act as well as the amendment Act squarely fall within entry 18 of List II of the Seventh Schedule to the Constitution, which reads as follows ;"land, that is to say, rights in or over land, land tenures including the relation of landlord and tenant, and the collection of rents ; transfer and alienation of agricultural laid ; land improvement and agricultural loans ; colonization. "

(15) THIS legislation is a measure of agrarian reform enacted by the state Legislature for achieving the objective of establishing a socialistic pattern of society in the State within the meaning of Articles 38 and 39 of the Constitution. A legislation falling under entry 18 of List II may cover not only matters relating to relationship of landlord and tenant; but all other matters relating to rights in or over land, transfer and alienation of agricultural lands and other matters mentioned therein. "restoration of possession" of lands to a tenant or a protected tenant whom ownership stands transferred under Section 38-E (l)or to whom certificate has besn issued under lection 38-E (2), falls within the expression "transfer of agricultural land" or at any rate it is matter falling within the expression land that is to say rights in or over the land". It is well established that the various entries in the three lists in the Seventh Schedule of the Constitution are not powers of legislation but fields of legislation and the said entries are more legislative heads and are of enabling character the power to legislar being conferred by Article 246 and oter Articles of the Constitution It is equally well established that the language of the entries should be given widest scope and each general head of legislation would extend to all ancillary and subsidiary matters which can reasonably be comprehended in it. We have earlier referred broadly to the general scheme and the several provisions of the Act, and mentioned that the main Act has been enacted not only to regulate the relationship of landholders and tenants of agricultural lands, but also various other matters relating tot ransfers of land, management of the said land or prevention of fragmentation and consolidation of holdings and formation of Co-operative Frams. The amendment Act 2/79 also deals with matters relation to agricultural land falling within entry 18 of List II of the Seventh Schedule and, therefore, there is absolutely no merit in the submission of the learned counles for the petitioners that the maneding Act 2/79 is ultravires the powers of the state Legislature.

(16) FURTHER, the decision of the Supreme Court in Sri Ram Ram narain vs. State of Bombay is a complete answer to this contention. In that case, the constitutional validity of the Bombay Tenancy and Agricultural lands (Amendment) Act, 1956 for amending the Bombay Tenancy and Agricultunil Lands Act, 1948 was challenged. His Lordship N. H. Bhagwati, j Speaking for the court held that the object of the 1948 Act was to bring about such distribution of the ownership and control of agricultural lands as best to subserve the common good, and that object was sought to be echieved by fixing ceiling areas of lands which could be held by a person, equitable disuibution of lands between landholders and tenants, transfer of lands by way of compulsory purchase by tenants in possession of the lands, disposal of balance of the lands after purchase by tenants, prevention of concentration of agricultural lands in the bands of landholders, bringing the tiller or the cultivator into direct contact with the State. His Lordship further observed that ;"the enactment thus affected the relation between landlord and tenant, provided for the transfer and alienation of agricultural lands, aimed at land improvement and was broadly stated a legislation in regard to the rights in or over land:categories specifically referred to in Entry 18 in List It of the Seventh schedule to the Constitution. "

(17) HIS Lordship further held that the hears of legislation should not be construed in a narrow and pedantic sense but it should be given a large and liberal interpretation, and that applying the said principle of construction, it was clear that the Act impugned there was covered by entry 18 in List II, and was a legislation with reference to "land" and accordingly negatived the plea of want of legislative competence of the state Legislature.

(18) THE aforesaid ruling of the Supreme Court directly applies to the impugned, amendment Act 2/79 which is also a legislation with reference to land falling in entry 18 cf List II of the Seventh Schedule to the Constitution and the said Act is, therefore, within the competence of state Legislature.

(19) THSVALIDITY of Section 38-E was challenged in lnamdars of Sulhnagar vs. Govt, of A. P. on the ground that the Presidential assents was not obtained as required as required by Article 31 (3) of the Constitution, and the same was upheld by a Bench of this court. Thereafter, the andhra Pradesh (Teiangana Area) Tenancy and Agricultural Land (Validation)act, 1961 was enacted after obtaining the assent of the President, retrospectively validating all the Acts mentioned therein. The said validation Act of 1961 has been included in the Ninth Schedule to the constitution.

(20) THE vires of Section 38-E was again challenged in this court in shoukat Khan vs. State where the learned Judges Jaggnmohan Reddy, c. J. and Sambasiva Rao, J (as has then was) observed that :"a spate of legislation was undertaken in respect of land reforms and the relationship between landlord and tenant in order to ameliorate the condition of the mass of people who lived, laboured, toiled and tilled the land from the status of serfdom, and unprotected tenancy. to the conferment on [them of an interest in that land with the ultimate object of making them owners of the land. Land belongs to the people who till the land had become the policy of the State. "the Learned Judges then referred to the observations of the supreme Court in Sri Ram Ram Narain s. State of Bombay and observed as fellows:"in furtherance of this policy, the erstwhile Hyderabad state also has passed a similar legislation which followed up the previous leglslation that governed the relation ship of landlord and tenant but in a more comprehensive way to keep in tune with the changed policy of the State in respect of agricultural holdings. "the learned Judges then repelled the contention urged on behalf of the petitioners therein that section 38 infringed the fundamental rights, and that it was also beyond challenge by reason of the provisions of article 31-B of the Constitution as the Validation Act has been included in the Ninth Schedule. The Division Bench, however, struck down Section 38-E and the Rules made thereunder on another ground, viz , that section 38-E as it stood then suffered from several infirmities pointed out by them and was vague and unworkable, particularly having regard to the fact that it was being given effect to 15 years after it was enacted. But the point to be noticed for the purpose of this case is, that the provisions of section 38-E as amended, were construed as provisions relating to agrarian reform falling within the legislative competence of the State as held by the Supreme Court in Sri Ram Ram Narain vs. State of Bombay and that it was also not open to challenge as affecting the fundamental rights in part III of the Constitution having regard to the provisions of Article 31-B and inclusion of validating Act in the Ninth Schedule. It may be incidentally mentioned that the main Act, the Hyderabad Tenancy and Agricultural lands Act XXI of 1950 has been included in the Ninth Schedule as item 36 in the year 1964.

(21) SRI Subhashan Reddy contended that the proviso to Section 38-E (2) introduced by the Andhra Pradesh Amendment Act 2/79 seeks to overrule the judicial pronouncement of this court in C. Narasayya vs tahsildar Mahabubabad and that the Legisjature has no pcwer to make such a provision. In support of this contention he relies upon a decision of the Supreme court in State of Tamil Nadu vs Rayappa In that case, the Entertainment Tax Officer, after making a surprise inspection of a theatre and finding that unauthorised tickets with forged seals were being sold, and after giving notice to the assessee, levied entertainment tax and surcharge on the price of the tickets which had escaped assessment. That assessment was challenged by way of a writ petition under Article 226 of the Constitution. The Madras High Court held in Sundararaja naidu vs Entertainment Tax Officer that the assessing authority under the madras Entertainments Tax Act, 1939, had no power to reassess the receipts that had escaped assessment. By section 7 introduced by the amendment Act XX of 1966, the State Legislature enacted among other provisions Sec. 7 for validation of assessment and collection of taxes. The reassessments in the case before the High Court were made prior to the coming into force of the Amendment Act, 1966. It was contended that those reassessments were validly protected by sec. 7 of the Amendment act. The High Court of Madras allowed the Writ petition and quashed the assessment on the ground that the power to reassess under section 7 (E) introduced by the Amendment Act was incomplete and was not exercisable in the absence cf a prescription as to limitation contemplated by the section, and, hence, section 7 of the Validation Act failed to validate the assessments in question. The Government of Tamil Nadu went up in appeal to the Supreme Court on special leave. Their Lordships of Supreme Court did not go into the ground on which the reassessments were quashed by the Madras High Court, as their Lordships were of the opinion that section 7 of the Amendment Act was invalid in so far as it attempted to validate invalid assessments without removing the basis of its invalidity. Bat, that cace has no application to the facts of the present case. In C. Narasayya vs Tahsildar Mahabubabad it was observed by the learned Judges that once there was transfer to the protected tenant or a certificate was issued to him under section 38-E, the owner ship vests in him, and that : having regard to the language of the Explanation (to s. 3s-E (1), there cannot be any doubt that the possession to a protected tenant out of possession could be restored only before a certificate of ownership is issued to him. In the intention of the legislature was that the restoration of possession was to be in favour of a person to whom a certificate was already issued, nothing prevented it from making such a provision in that regard. It could have said that the restoration of possession could be in favour of the holder of the ownership certificate isued under sub-sec. (2) of Sec. 38-E of the Act. It is altogether a different matter whether the legislature could itself confer a power on the Tahsildar to decide questions of possession between an owner so declared and a treaspasser which obviously is not the scope and the object of the Tenancy act". So far as the power of the Legislature to enact the Amendment Act is concerned, we have already held that the legislation is with respect to "land" falling in Entry 18 of list II of the Seventh Schedule to the constitution and, therefore, the Legislature is competent to enact the amendment Act 2/79.

(22) IN order to fill up the lacuna mentioned in Narasayyas case with regard to the absence of a provision for restoration of possession of lands to a protected tenant to whom ownership was transferred under section 38-E, whom the State Legislature enacted by Amendment Act 2/79 the provise to sub-section (2) of Section 38. E of the Act. Thus, the proviso does not seek to or have the effect of overruling the decision in narasayyas case (I), but only makes a provision for restoration of possession of land to a protected tenant or a holder of the ownership certificate, where the land is in the occupation of a person other than the protected tenant or the holder of the certificnte.

(23) IN the same case, State of Tamil Nadu vs Rayappa it was observed in paragraph as follows :"the Legislatures under our constitution have within the prescribed limits, powers to make laws prospectivdy as well as retrospectively. By exercise of those powers, the legislature can remove the basis of a decision rendered by a competent cout thereby rendering that decision ineffective".

(24) IN Shri P. C. Mill Vs Broach Municipality it was observed that "validation of a tax" declared illegally by a Court. "may be done only if the grounds of illegality or invalidity are capable of being removed and are in fact removed and the tax thus made legal. Sometimes this is done by providing for jurisdiction where jurisdiction had not been properiy invested before. Sometimes this is done by re-enacting retrospectively a valid and legal taxing provision and then by fiction making the tax already collected to stand under the re-enacted law".

(25) IT was observed in Narasayyas case (3) that there was no provision in the Act conferring jurisdiction on the Tahsildar to restore possession of land to a protected tenant to whom ownership has been transferred or certificate has been issued under section 38-E and in order to provide for such a machinery the State Legislature intervened and enacted the proviso by the Amendment Act 2/79 conferring such a jurisdiction on the Tahsildar. Therefore, the proviso introduced by the amendment Act is well within the competence of State Legislature, being a legislation falling under Entry 18 of List II of the Seventh Schedule to the Constitution.

(26) IN Janapada Sabha vs C, P. Syndicate their Lordships held as follows :"it is open to the Legislature within certain limits to amend the provisions of an Act retrospectively and to declare what the Jaw shall be deemed to have been, but it is not open to the Legislature to say that Judgment of Court properly constituted and rendered in exercise of its powers in a matter brought before it shall be dsemed to be ineffective and and the interpretation of the law shall be otherwise than as declared by the Court".

(27) IN the instance case, as already held byus, the Amendment Act does not seek to overrule the judgment in Narasayyds case Supra, but the amendment has been made with a view to make a provision conferring jurisdiction on the Tahsildar, which the Bench in Narasayvas case (2)held was absent in the unamended provisions of Section 38-E

(28) FOR all the foregoing reasons we are unable to hold that the proviso introduced by the amending Act 2/79 to Sec. 38-E (2) of the andhra Pradesh (Telangana Area) Tenancy and Agricultural Lands Act, 1950, is ultravires the powers of the Sttte legislature.

(29) THE second contention urged on behalf of the patitioners is, that by virtue of the provisions of sub-section (3) of section I of the amendment Act, the Amendment Act, shall be deemed to have come into force on 11th January 1979 and, therefore, it has no retrospective operation and the proviso to section 38-E (2) introduced by the Amendment Act does not empower the Tahsildars to restore possession of lands to protected tenants, where transfer of ownership under section 38-E (I) or issue of certificates under section 38-E (2) took place prior to 11-1-79. The submission on behalf of the petitioners is ; that the expression in the proviso "where the land, the ownership rf which has been transferred to the protected tenant under sub-section (1)" shaws that the proviso is prospective in operation and applies to cases where ownership has been transferred subsequent to the comipg into force of the said proviso.

(30) SRI Subhashan Reddy, the learned counsel has invited our attention to a Full Bench decision of the Bombay High Court in Saraswatibai vs. Bhikamchand where the learned judges construing the provisions of sections 52 and 132 of the Bombay Tenancy and Agricultuarl lands (Vidharabha Region and Kutch Area) Act, held that on a reading of the sub-sections together. it appeared that the draftsman had used the three expressions "has taken possession" "has recovered" and has failed" in the sense "takes possession. "recovers" and fails". But, that constructions was arrived at by the learned Judges on a consideration of the relevant provisions of the said Act. The said ruling does not, therefore, render much assistance in deciding the question that falls for consideration here. The question has 4o be determined primarily with reference to the scheme and object of Act and the language employed by the Amendment Act.

(31) IN principles of Statutory Interpretation by G. P. Singh, 2nd edition, it was observed at page 287 as follows :"in deciding the question of applicability of a particular statute to past events, the language used is no doubt the most important factor to be taken into account, but it cannot be stated as an inflexible rule that use of present tense or present perfect tense is decisive of the matter that the statute dots not draw upon past events for its operation. Thus, the words "as debtor commits an act of bankruptcy" were held to apply to acts bankruptcy committed before the operation of the Act. As has been noticed before, the words if a person has been convicted" were construed to include anterior convictions. The words has made, has ceased, has failed and has become, may denote events happening before or after coming into force of the statute and all that is necessary is that the event must have taken place at the time when action on that account is taken under the statute. The words dying intestate were interpreted by the Judicial Committee not as connoting the future tense but as a mere description of the status of the deceased person without any reference to the time of his dealth. So the words, "held on lease", may be only descriptive land and may apply to lands held on lease prior to after the coming into force of the Act. And the words "when a person dies", may include a person who died prior to the coming into force of the act. The real issue in each case is as to the dominate intention of the legislature to be gathered from the language used the object indicated, the nature of rights affected ; and the circumstances under which the statute is passed".

(32) SRI Subba Reddy has invited our attention to a decision in t. K. Lakshmana vs. State of Madras where the provisions of Sections 44-B (2) (a) of the Madras Hindu Religious Endowments Act fell for construction. Section 44-B (2) (a) conferred a power or the Collector to resume to the whole or any part of any inam granted for the support or maintenance of Math or temple or for the purpose of a charity or service connected there with, on one or more of the following grounds : (I) "that the holder of such inam or part has made an exchange, gift, sale or mortage of the same or any portion thereof or has granted a lease of the same or any portion thereof for term exceeding five years, or (ii) that the holder of such inam or part has failed to perform or make the necessary arrangements for performing, in accordance with the custom or usage of such math or temple, the charity or service for performing which the inam and had been made confirmed or recognised by the British Government, or any part of the said charity or service, as the case may be, or (iii) that the math or temple has ceased to exist or the charity or or service in question has in any way become impossible of performance". His Lordship Bach wat, J speaking for the Court held as follows :"the words has made in sub-section (2) (a) (i) take in all alienations past and future and not only future alienations or alienations made after the section came into force. If there has been any alienation at any time the first ground exists and the inam may be resumed under section 44-B. The words has failed in sub-section (2) (a) (ii) and the words has ceased and has become in sub-section (2) (a) (iii) similarily authorise resumption of the inam if the other grounds exist though they may have arisen earlier. Section 44-B (2) is in its direct operation prospective as it authorises only future resumption after it came into force. It is not properly called retrospective (because a part of the requisites for its action is drawn from a time antecedent to its passing".

(33) APPLYING the principle laid down in the aforsaid ruling the expression "has been transferred" occurring in the amended proviso must be construed as applying to transfers which took place both prior and subsequent to the coming into force of the amended proviso.

(34) MOREOVER, the amended proviso provides only a remedy for the enforcement of an existing right of the protected tenant or a certificate holder to recover possession of the lands and therefore, the amended proviso is purely procedural in character and will apply to the cases of transfers both prior and subsequent to the coming into force of the amended proviso. It is well settled that a procedural law has restrospective affect, vide Abdul karim vs. Dy. Custodian - General we have no hesitation it coming to the conclusion that under the amended proviso, the Tahsildar can exercise the power to restore possession of the land to a protected tenant or a ficate holder at the cae may be, where he is out of possession of the land.

(35) OUR attention has been invited to an unreported decision of muktadar, J in Jawarimal vs. Venkataih where it was contended that by virtue of the proviso to sub-section (2) of section 38-E introduced by the Amendment Act 2/79, the Tahsildar hss been empowered to deliver possession, to a protected tenant, to whom the ownership stood transferred or the certificate was granted under section 38-E prior to the coming into force of the Amended proviso. The learned Judge repelled the said contention with the following observations :"it is to be noted that this contention would have been acceptable had the Legislature gives retrospective effect. But unfortunately for the respondents the amendment is prospective and it has come into existence of the llth January 1979. Therefore it cannot be said that the respondents can take advantage of this amendment which has not been given retrospective effect. "but, no ressons have been given for coming to the conclusion that the proviso introduced by the Amendment Act has no retrospective effect. As already held by us, the proviso has been introduced by the Amendment act with a view to fill up the lacuna in the Act as pointed out by the division Bench in Narasayyas case (I) Supra, and that the amendment is only procedural in character, and that under the proviso introduced by the amending Act 2/79, the Tahsildar is empowered to deliver possession of the lands to a protected tenant or a holder of a certificate under section 38-E even though the proceedings for transfer of ownership or issue of a certiictae of ownership had taken place prior to the coming into fore of the amended proviso.

(36) WITH respect, for the reasons already given, we arc unable to agree with the view taken by Mdktadar J, in Jawarimals case (12) that the amended proviso does not apply to cases of transfer of ownership or issue of certificates under section 38-E which had taken place prior to the coming into force of the said proviso.

(37) IT is contended by the learned counsel for the petitioners that even assuming that the proviso empowers the Tahsildar to restore possession of lands where this protected tenant or holder of certificate is out of possession, still the Tahsildar has to hold a fresh enquiry as required by the proviso read with the rules made thereunder in G. O. Ms. No. 2064 revenue (F) dated 7-5-1980 with regard to the pleas ramed by the persons in possession of the land namely that the protected tenant hud abandened or surrendred his rights, and that the persons in possession had acquired rights by prescription or adverse possession. But we do not think there is any merit in this submission. It has to be remembered that the provisons of Sec. 19 (I) read with Secs. 38-E (5) provide fur enquiries regarding the genuineness of the surrender of possession of the land by a protected taaant and also provides for a regular enquiry under sec. 38-E read with the rules framed thereunder with regrad to transfer of ownership and the issue of ownership certificates to the protected tenants, and these enquiries are to be made after giving notice to the landholder and all other persons interested in the land and, therefore whatever objections are available to the landholder or to other persons interested in or in possession of the land must be taken at the stage of the enquiries made under the provisions mentioned above. It is well established that once a certificate under section 38-E (2) has been issued after holding an enquiry in accordance with the rules, it become conclusive as between the certificate holders and the land holders or other persons who were in possession of, or otherwise interested in the land in respect of which ownership has been transferred to the protected tenant or a ownership certificate has been issued under section 38-E. Further, even the plea that a protected tenant, who was out of possession, would not be entitled to grant of a certificate of ownership under section. 38-E should be raised in the proceedings taken under section 38-E for transfer of ownership and issue of the ownership certificate and once the certificate has been issued after holding an enquiry in accordance with the rules, the same cannot be challenged in a collateral proceedirg cr by way of a civil suit, as jurisdction of Civil Court is barred by reason of the provisions of section 99 of the Act.

(38) THUS at the stage of delivery of possession under the amended proviso to section 38-E (2) read with the rules framed there under, it is not open to the persons in possessicn to once again raise pleas or objections which were already raised and overruled or which were not at all raised in the proceedings taken earlier culminating in the transfer of ownership and issue of a ownership certificate under section 38-E of the act to a protected tenant. If this argument of the learned counsel for petitioners is accepted, it will trantamount to conferring a power on the tahsildar to go into the validity or otherwise of the certificate issued under section 38-E of the Act by the competent authority. We do not think the proviso can be interpreted so as to confer such a power on the tahshildar. Therefore, we are unable to up hold the contention of the learned counsel for the petitioners that under the amended proviso the tahsildar should entertain and deteomine objections besed upon surrenr60 der, abandonment or adverse possession or objections as to the validity of the certificate issued under Section 38-E of the Act.

(39) ANOTHER contention urged by the learned counsel for the petitioners is that in view of the ruling in Narasayya case the person in possession are entitled to raise the plea that the rights of the protected tenant who was out of possession of the land get extinguished by reasons of the persons in possession of the land acquiring rights by adverse possession.

(40) JEEVAN Reddy, J held in Narasayya vs. Tahasildar (W. P. No. 327/77 dated 12-12-1977) that the provisions of the Limitation Act were inapplicable to the proceedings under the Act, but the Division Bench in narasayyas case (1) Supra diffred with the said view and held that the provisions of Section 27 of the Limitation Act apply and the rights of the protected tenant who was out of possession of the land for over 12 years would stand extinguished and, therefore, he would not be entitled to recover possession of the lands from the persons in possession. But, as already held by us, the question whether the protected tenants rights stood extinguished by adverse possession or not, is a matter to be agitated in the proceedings taken for the issue of a certificate under section 38-E of the Act read with the relevant rules, and the same cannot be agitated after ownership has been transferred and a certificate has been issued to the protected tenant under section 38-E, A person having an interest in the land or claiming rights by adverse possession in the said land, should set up his objections or claims in the proceedings taken under section 38-E read with the relevant rules before the Tribunal constituted for the said purpose and the Tribunal could then hear and dispose of the objections and claims. Having failed to set up the objections and claims at the stage of enquiry under section 38-E and the rule made thereunder, it is not open to such persons to set up once again such claims or objections after a certificate has been issued, and at the stage the proceedings taken under the amended proviso for restoration of possession of the land to the protected tenant or the certificate holder.

(41) ONE other contention urged is, that under Section 38-E, ownership of the lands held by a protected tenant stands transferred to and vest in him only if the said protected tenant was in actual physical possession of the lands and a certificate of ownership could only be issued to such a protected tenant in possession of the land and, therefore, a certificate issued under section 38 E without restoration of possession of the land to the protected tenant under the Explanation to Section 38-E (1) is not valid. Section 38-E (1) says that from the notified date "the ownership of all lands" held by protected tenants which they are entitled to purchase from their landholders in such area under any provision of this Chapter 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 land. Under the proviso to the said sub-section, where any proceeding under section 19 or lection 32 of section 44 is pending on the notified date, the transfer of ownership of such lands taken effct on the date rn which such proceeding is finally decided, and when the tenant repairs possession of the land in accordance with the decision in such procedings. With regard to a protected tenant who it not in possession o n the notified date, the explanation to section 38-E (I) provides that for the purpose c f the said sub-section such protected tenant shall "be cecmed to have been holding the land on the date of the notification", and further empowers the Tahsildar, to restore possession of the lands to the protected tenant after holding a summary enquiry. The learned counsel relled upon the ruling in Narasayyas easel Supra, where it was observed that "the expression holding necessarily means that they must also be in possession of the lands protected tenants", and the effect of the explanation is that the protected tenant is deemed to be person holding the land, but for purposes of conferring upon him the rights of ownerthip, Possesstion has to be restored to him". We are unable to agree with this submission. The words "held" and "holding" have not been defined in the Act, but the expressions "basic holding", consolidation of holding" and family holding" have been defined in the Act and in the expressions, the word "holding" cannot be contruted as being in actual possession.

(42) IN a recent decision of the Supreme Court in State of A. P. vs mohd. Ashrafuddin the interpretation of the expressions held and holdinging section 3 (1) of the Andhra Pradesh Land Reforms (Ceiling on agricultural Holdings) Act 1 of 1973, fell for consideration. It was contended for the appellant therein that the term holdingtook in its fold land held by various persons in various capacities viz. , as an owner, as a limited owner, as a usufructuary mortagagee, or as a tenant, or as a person in possession by virtue of a mortgage by conditional sale or through part performance of a contract for the sale of land or otherwise, or in one or more of such capacities. On the other hand, it was contended for the respondent that the expression held in the definition cf holding contemplates ownership with possession. But this submission was repelled, and the contention of the appellant was upheld by their Lordships in the following words:"the word held is not defined in the Act. We have. therefore to go by the dictionary meaning of the term. According to Oxford Dictionary held means: to possess; to be the owner or holder or tenant of; keep possession of. occupy Thus, held connotes both ownership as well as possession. And in the context of the definition it is not possible to interprcte the term held only in the sense of possession. For example if a land is held by an owner and also by a tenant or by a person in possession pursuant to a contract for tale, the holding will be taken to be the holding of all such persons. It obviously means that an owner who is not in actual possession will be taken to be a holder of the land. If there was any doubt in this behalf, the same has been dispelled by the explanation attached to the definition of term holding. The explanation clearly contemplates that the same land can be the holding of two different persons holding the land in two different capacities, The respondent in view of the definition certainly is holding as an owner, although he is not in possession. "

(43) FROM the aforesaid ruling, it follows that under Section 38-E (1), the ownership of all lands held by a protected tenant stand transferred to him on the notified date and a certificate of ownership can be issued to such a protected tenant even if he was out of possession has not been restored to him in accordance with the provisons of the explanation and a certificate issued by the competent authority under section 38-E will be valid. The validity of the certificate issued under section 38-E after following the prescribed procedure cannot be challenged again at the stage of delivery of possession under the amended proviso to section 38-E (2).

(44) ONE of the contentions urged by the petitioners in Narasayyas case (1) supra was that the proceedings taken by the Tahsildar or the tribunal for restoration of possession to the protected tenants without issuing notice to the persons in possession were violative of the principles of natural justice. With a view to provide for such a notice, the Legislature has intenvened and introduced the proviso by Amendment Act 2/79 and conferred jurisdiction on the Tahsildar to restore possession of the lands to the protected tenant or certificate holder, and also provides for issue of notice and an opportunity to persons in possession to make their representations in accordance with the rules made thereunder. The rules made in G. O Ms no. 2064 Revenue (F) dated 7-5-1980 made under section 97 read with section 38-E requires a notice to be issued to the persons in possession and an opportunity to make thier representations before the Tahsildar passed any order under the amended proviso for restoration of possession of the land to the protected tenant or the holder of the certificate as the case may ba. Thus now, statutorily the amended proviso provides for issue of a notice and opportunity to the persons in possession to make their representations. Hence, the tahsildar has to comply with the procedure laid down by the proviso, in which case, there will be no question of violation of principles of natural justice.

(45) IN the result, all the Writ Petitions, except W. P. No. 1731/80, are dismissed, but in the circumstances without costs. Advocates fee rs 200/ in each Writ petition.

(46) IN W. P. No. 1731/80 it is urged by the learned counsel for the petitioner that a notice was issued by the Tabsildar dispossessing the petisioner without giving him a prior notice as required by the amended proviso. Therefore, the impugned notice to that extent is illegal and is liable to be quashed. It is open to the Tahsildar to take proceedings afresh in accordance with law and after complying with the amended proviso and she Rules made thereunder. The Writ Petition is party allowed accordingly to the extent mentioned above. No order as to costs. All WPs (except WP No 1731/80) dismissed WP No 1731/80 Partly allowed