Jagannadha Rao, J.—All these cases arise under the Andhra Pradesh (Telangana Area) Tenancy and Agricultural Lands Act (Act 21 of 1950) (hereinafter referred to as the Act). They raise questions concerning the rights of protected tenants and the statutory conferment of ownership rights on them under S. 38-E of the Act. In Chinnaboini Narsaiah v. Tahslidar, Mahaboobabad, Warangal District, (1979) I Andh WR (HC) 23 a Division Bench of this Court consisting of Madhava Reddy, J. (as he then was) and Narsinga Rao J. had occasion to deal with S. 38-E and connected provisions of the Act. After the said judgment, the Legislature amended the Act by the Amending Act 2 of 1979. Subsequent to the said amendment to the Act, the same questions were again raised before another Division Bench of this Court in G. Chennaiah and Another Vs. State of Andhra Pradesh and Others, consisting of K. Ramachandra Rao, J. (as he then was) and Sriramulu, J. In the order of reference now made to the Full Bench, it is pointed out by the learned Judges that there is a conflict between the earlier judgment in Narsaiah's case and the latter judgment in Chennaiah's case rendered after the amendment and that is how the reference has come to he made to the Full Bench.

2. In the referring order. the point of conflict between the Division Benches is mentioned as follows :-

"Thus there is a conflict between the decisions of the Division Bench. one in Chinnaboini Narsaiah's case and the other in Chennaiah's case. While the former decision dealing with the Explanation to S. 38-E(1) holds that ownership certificate issued to the protected tenant, who was not in possession of the land on the date of notification is invalid, the latter holds, dealing with the amended proviso to Section 38-E(2) that the certificate issued to the protected tenant, even if he was out of possession of the lands - and even though possession was not restored, is valid and its validity cannot he challenged at the stage of delivery of possession.

In view of this conflicting views, we feel that it is desirable that the case is referred to a Full Bench to resolve the question."

3. The batch of cases posted before us raise the above question as well as several other connected questions enumerated below. We shall, at the end, deal with the individual cases. At this stage %e shall set out the general questions that arise for consideration in these cases.

4. The main arguments for the landholders are by Shri B. Subbashan Reddy, Sri G. Ramakrishnaiah, Sri M. L Ramakrishna Rao and Sri Haridatha Reddi while the opposite view was presented by Sri N. Subba Reddi, the learned Government Pleader Sri G. Raghuram, Sri B. Prakash Rao., Sri Y. Rama Rao, Sri C. R. Pratap Reddi and Sri Vilas V. Afzal Purkar.

5. Thefollowing points arise for decision in the reference and in the batch of cases. (1) what is the meaning of the words 'lands held by protected tenants' and whether a protected tenant must have been in physical possession on the date of notification issued by the Government under S. 38-E(1) of the Act (in this. batch 1-1-1973) for becoming owner of the property and for obtaining the ownership certificate

(2) Whether the protected tenant, if out of possession on the notified date under S. 3SE(1) of the Act should have been actually put in physical possession of the property in the context of the Explanation to S. 38-E (1) before any proceedings under S. 38-E(2) could be initiated or ownership certificate issued'

(3) What is the scope of the enquiry under S. 38-E(2) read with the Andhra Pradesh (Telangana Area) Protected Tenants (Transfer of Ownership of lands) Rules, 1973 and what is the effect of a certificate issued under 5. 38-E(2)

(4) Whether the new proviso to S. 38-E(2) added by Act 2 of 1979 is retrospective and permits restoration of possession where the ownership certificate has been issued before 11-1-1979 the date when Act 2 of 1979 has come into force

(5) Whether the new proviso introduced in S. 38-E(2) introduced by Amending Act -2 of 1979 is violative of Art. 14 of the Constitution of India and whether the said proviso is bad on the ground that it is contrary to the scheme of the Act

(6) What is the scope of the enquiry contemplated under the new proviso to S. 38E(2), introduced by Amending Act 2 of 1979 read with the Rules published in G.O.Ms. No. 2064 Rev.(F) dt. 7-5-1980

(7) What are the conditions of a valid surrender before and after the introduction of the Amending Act 3 of 1954 and what is the impact of such surrender on S. 38-E

(8) Whether the landholder can plead and prove adverse possession, before the Revenue Tribunals and authority, as against a protected tenant

(9) What is the purport of S. 38-E(5) of the Act introduced by Act 2 of 1979 regarding inquiry by the Collector as to the genuineness of 'surrender"

(A) Certain relevant provisions of the Act and (B) The Legislative History :

(B)

6. We shall briefly deal with the meaning of the words 'tenant', 'protected tenant' and the grounds and modes of eviction of these persons, and their right to become owners of the land, we shall also refer to the decisions of the Court on the question of the validity of the Act and the amendments to some of its provisions.

(A) Relevant provisions of the Act:

(B)

7. The preamble to the Act states that the Act is intended to amend the law regulating the relations of landholders and tenants of agricultural land and the alienation of such land.

8. 'Tenant' is defined in S.2 (v) as an 'asami Shikini' who holds the land on lease and includes a person who is 'deemed' to be a tenant under the provisions of the Act. 'Tenancy' is defined in S. 2(u) as the relationship of landholders and tenant. Sec. 5 deals with 'persons deemed to be tenants'. Any person, 'lawfully cultivating' any land belonging to another person, shall be deemed to be a 'tenant' if such land. is not cultivated personally by the landholder and if such person is not (a) a member of the landholder's family, or (b) a servant on wages etc. or (c) a mortgages in possession. Certain other details are also mentioned in this behalf in S. 5.

9. There are two other categories of 'tenants'. One concerns those who have taken leases within three years from the commencement of the main Act and those leases are extended (or limited) by S. 8 for 10 years. The other concerns those who have taken leases after three years of the commencement of the main Act and these are, under S. 7, extended for successive periods of 5 years, unless the landholder terminates them by notice in the last of each of the series of , 5 years, for personal cultivation.

10. The 'tenancies' above stated are liable to be terminated under S. 19 of the Act. Section 19(1)(a) deals with surrender by the tenant, in the manner prescribed therein, while S.19(1)(b) refers to termination by the landholder, upon the various grounds available to the landholder as specified in 519(2). 5. 19(2) specifies default, subletting and other grounds for Friction. The mode of eviction of the tenant as by approaching the Tahsildar under S. 32. Of course, Ss. 27 and 28 provide for relief against eviction for default or other specified grounds.

11. 'Protected tenants' are dealt with in Chapter IV of the Act and fall under a limited category. They are referred to in Ss. 34, 37 and 37-A. Under S. 34, a person shall (subject to sub-sections (2) and (3)) be deemed to be a protected tenant if he (a) has held such and continuously - (i) for a period of not less than 6 years, being a period wholly included in the Fasli years 1342 to 1352 (both years inclusive) or (H) for a period of not less than 6 years immediately preceding 1-1-1948 or (iii) for a period of not less than 6 years commencing not earlier than 6-10-1943, and completed before the commencement of this Act, and (b) has cultivated such land personally during such period. The proviso to S. 34(1), its four Explanations and S. 34 2) deal with working details. Sub-S. (3) of S. 34 deals with persons .who are 'not' to be deemed as protected tenants.

12. Decision on the question of 'protected' tenancy under S. 34 is to be given under S. 35 by the Tahsildar, if any question arises in that behalf. The landholder or any person deemed to be a tenant, may apply within 1 year of the commencement of the Act, to the Tahsildar, who may then give the necessary declaration as to whether a person is a protected tenant or not. Sub-s. (2) of 5. 35 states that any declaration as to protected tenancy given by the Tahsildar (subject to appeal to the Collector or Board of Revenue) shall be conclusive that such person is a protected tenant and his rights as such shall be recorded in the Record of Rights or where there is no Record of Rights, in such village record as may be prescribed."

13. Section 37 deals with another category of 'protected tenant'. These are persons who held, the land as tenants at the commencement of the main Act, provided no other persons were declared as protected tenant under S. 34, subject to certain contingencies. Again S. 37-A (introduced by Act 3 of 1956) deals with year another class of persons deemed as 'protected tenants'. These are persons who held the, land at the commencement of Amending Act of 1955 as tenant, and deems them also as 'protected tenants' subject to certain conditions.

14. Procedure for eviction of 'tenants' on grounds mentioned in S. 19 is mentioned in S. 32 of the Act. As we shall show under point No. 7, the grounds in S. 19 and the procedure for eviction under S. 32 are applicable to 'protected tenants' also. It is therefore necessary to refer to the contents of S. 32. It reads as follows :

"S. 32. Procedure for taking possession. - (1) A tenant or an agricultural labourer or artisan entitled to possession of any land or dwelling house under any of the provisions of this Act may apply to the Tahsildar in writing in the prescribed form for such possession.

(2) No landholder shall obtain possession of any land or dwelling house held by a tenant except under an order of the Tahsildar, for which he shall apply in the prescribed form.

(3) On receipt of an application under sub- section (1) or sub-sec. (2) the Tahsildar shall, after holding an enquiry, pass such order thereon as he deems fit.

(4) Any person taking possession of any land or dwelling house otherwise than in accordance with the provisions of sub-s. (1) or sub-s. (2), as the case may be, shall without prejudice to his liability to the penalty provided in 5. 96, be liable to forfeiture of the crops, if any, grown on the land and to the payment of such costs as may be award by the Tahsildar or by the Collector on appeal from the Tahsildar."

15. 'Purchase of land' by protected tenant was provided in 1954 by addition of 5, 38 as per Act 3 of 1954. Section .38(1) declared the right of protected tenants to purchase the interest of the landholder, and apart from other details in this regard, it is necessary to notice the conditions laid down in sub-s. (7) of 5. 38. Broadly speaking, it laid down that this right of purchase could be availed of by the protected tenant provided that the total extent to he held as owner by such protected tenant, will not exceed one family holding and extent remaining with the landholder (after such purchase by the protected tenant). was not less than two family holdings. Various other details are set out in S.38. The protected tenant has a preferential right to purchase. The questions arising in this regard are to he decided by a Tribunal. Provisions for determining compensation are contained in S. 38-A and other related matters are dealt with in Ss. 38-B, C, D. Then comes S. 38-E with which we are concerned. Sec. 38(6) contemplates issue of a 'certificate of ownership' in favour of the protected tenant by the Tribunal. Section 38(6)(a). provides that such certificate shall he conclusive evidence of the sale as against the landholder and all persons interested therein."

Common Rules called the A.P. (Telangana Area) Tenancy and Agricultural lands Rules, 1951 have been made for purposes of Ss. 34, 35 and 37, dealing with 'protected tenants' for decision by the Tahsildar after issuing notices to affected parties and conducting an inquiry. These are Rr. .3, 4. 5, 6, 7 and 8. The Tahsildar grants the Protected Tenancy Certificates. The same rules deal with the Tribunal referred to in S. 38 which deals with the inquiry into the compensation payable to the landholder and for issuing the certificate of purchase or ownership certificate, of the protected tenant. They are Rules 9, 10, 11, 12 to 15.

16. We shall now refer to the provisions of S. 38-9, which deal with statutory transfer of ownership to the 'protected tenants'. Statutory transfer of the landholder's interest to the 'protected tenant' was contemplated even in 1951 when S. 38-E was added by. Act 3 of 1951. But the section contemplated such transfer to take place only from the date of Notification to be issued flair such at purpose with respect to any particular area. Obviously, the Legislature was aware that after the Commencement of the Act in 1950, considerable time would lapse before the Tahsildar could identify the persons who would fall under the category of 'protected tenants'.

(A) Legislative History of certain amendments :

(B)

17. Having referred to the salient provisions relating to tenants, protected tenants and acquisition of ownership by purchase under S. 37 and by statutory transfer under S. 38-E, we shall briefly refer to the history of the various amendments and to the several litigations in connection with the Act.

18. Initially, the Act was struck down for want of the President's assent to the main Act (vide Inamdars of Sulhnagar Colony and Others Vs. Government of Andhra Pradesh and Another, . The assent of the President to the Amending Act of 1954 was held not sufficient. Then the Legislature enacted the Andhra Pradesh (Telangana Area) Tenancy and Agricultural Lands (Validation) Act, 1961, retrospectively validating the main Act of 1950, together with its amendment. The validating Act of 1961 received the assent of the President of India and was also placed in the Ninth Schedule of the Constitution of India by virtue of the Constitution (17th Amendment) Act. 1964.

19. After the obstacles were thus removed, the Government issued notification on 3-10-1967 (G.O. Ms. No. 1081) under S. 3SE(I) for eight districts in Telangana, except Mulug (Warangal District). Khammam District was already covered by an earlier notification in 1955-56. Promptly, the landholders questioned the validating Act of 1961 and the main Act, on various grounds in Mahommed Shoukat Khan v. State of Andhra Pradesh, ILR (1970) AP 1151. A Division Bench consisting of Jaganmoban Reddi C.J. and Sambasiva Rao, 3. (as they then were) while generally upholding the Act as validated, struck down S.38-E on various grounds, such as that the provisions of S. 38E were vague and not workable and that there was no proper machinery provided in the Act for working out the scheme envisaged in S.38-E. That judgment was delivered on 25- 4-1969, without noticing that the validity of the Act and also of the self-same provision in S. 38-E (as amended in Maharashtra in 1961) had been upheld by the Supreme Court on 15-4-1969, a few days earlier, in Venkata Rao Esajirao Limbekar and Others Vs. The State of Bombay and Others, .

20. Once again, the Andhra Pradesh Legislature stepped in and passed, the Amending Act (Act 1 5 of 1971) under which a proviso was introduced in S. 38-E(1) along with an Explanation. Together with the proviso and the Explanation S.38-E(I) appeared as follows :

"S. 38-E. Ownership of lands held by protected tenants to stand transferred to them from a notified date.- (1) Notwithstanding anything in this Chapter or any law for the time being in force or any custom, usage, judgment, decree, contract or grant to the contrary, 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 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 lands:

Provided that where in respect of any such land, any proceeding u/s 19 or S. 32 or Section 44 is pending on the date so notified, the transfer of ownership of such land shall take effect on the date, on which such proceeding is finally decided, and when the tenant retains possession of the land in accordance with the decision in such proceeding.

Explanation :- If a protected tenant, on account of his being dispossessed 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 date of the notification issued hereunder, then for the purposes of this sub-section, such protected 'tenant shall, notwithstanding 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 through 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 protected tenant had held the land on the date of such notification."

21. On 1-1-1973 the Government issued G.O.Ms. No.'3 Rev.(G) notifying all the districts in Telangana under 5. 38-E(I) for purposes of statutory transfer of ownership to protected tenants.

22. In view of the said amendment in 1971, firstly the transfer of ownership to the .protected tenant' stood postponed, as per the proviso, in cases where any proceeding under S.19, or S. 32 or S. 44 were pending, to the date of final decision in respect of those proceedings. Secondly under the Explanation, 'protected tenants' physically out of possession on the notified date i.e., on 1-10-1973, were to be deemed to he holding' the land on the date of the notification. if they had been dispossessed otherwise than in the manner as provided in S. 32 and the Tahsildar was empowered to inquire and put the protected tenant in possession and the provisions of the section were to apply as if the protected tenant had held the land on the date of 'such notification. Rules, called the A. P. (Telangana Area) Protected Tenants (Transfer of Ownership of Lands) Rules. 1973 were issued empowering the Tribunal to conduct the necessary inquiries.

23. Again, the landholders filed a hatch of writ petitions questioning the Amending Act 15 of 1971 and the proviso and the explanation. The Rules of 1973 were also questioned. This was in Govind Rao v. Government of Andhra Pradesh, 1975 APHN 3: W. P. No. 2723/74 and batch di.,30-9-1974. Obul Reddi, C.J. and A. V. Krishna Rao. J. dismissed the writ petitions upholding the above provisions. They held that in view of the decision of the Supreme Court in Venkata Rao Esajirao Limbekar and Others Vs. The State of Bombay and Others, . there was no defect in 5. ME of the Act. that the decision in Mahommed Shoukat Khan's case (ILR (1970) A P 1151) was rendered t)n 25-4-1969, in ignorance of the Supreme Court judgment dt. 15-4-1969 and that, even otherwise, once the defects pointed out by Mahommed Shoukat Khan's case were removed by the Legislature by enacting Act 15 of 1971, there was no scope for further questioning S. 38-E(1). The provisions of the Act and Rules were it was held, protected under Arts. 31 A and 31 B of the Constitution of India. The writ petitions were dismissed.

24. For a shortwhile, the provisions of the Act and Rules received some respite rout before long, fresh difficulties cropped up. A fresh batch of writ petitions raising questions relating to S. 38-E(1), its proviso and Explanation and S. .38-E(2) and the 1973 Rules, were filed. Jeevan Reddi, J. dismissed the writ petitions on 12-12-1977. That was carried in appeal before the Division Bench tit Madhava Reddi, J. has be then was) and Narasinga Rao, J. in Chinnaboini Narasaiah v. Tahsildar, Mahabubabad, Warangal District (1979 (1) AWR (IAC) 23). On 7-4- 1973, the Division Bench revesed the judgment of Jeevan Reddi, J. allowed the writ petitions holding as follows:

"'(1) Once an ownership certificate is issued the protected tenant himself becomes the owner and the question of restoration of possession to such owner is no more within the province of the Tahsidar, be then proceeding against a trespasser or against it 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 S. 27 of the limitation Act with regard to the extinguishment of the right of tenancy are held applicable it, it 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 possession under the Explanation in S. 38-E of the Act could only be taken in favour of a protected tenant who was dispossessed in contravention of S.32 of the Act and not in favour of one who had surrendered or abandoned possession, and that the question whether a protected tenant was dispossessed or he had surrendered or abandoned is it question of fact.

(5) The Order of the Tahsildar restoring possession without notice to the person in possession being invalid, illegal and violative of the principles of natural justice, the notice issued by the Patwari in pursuance of the order of the Tahsildar for dispossession of the appellant was equally liable to be quashed on the same grounds."

On account of this situation created by the above said judgment, the Legislature once again came forward with A. P. Act 2 of 1979 by which in S. 38-E, for the proviso under sub-see. (2). a proviso was substituted and a.gain sub-section (5) was added in S. 38-E.

25. After the said amendment of 1979, S. 38-E(2) read as follows :

"A certificate in the prescribed form declaring him to be owner shall be issued by the Tribunal after holding such inquiry as may he prescribed, to every such protected tenant and notice of such issue shall simultaneously be issued to the landholder. Such certificate shall be conclusive evidence of the protected tenant having become the owner of the land with effect from the date of the certificate as against the landholder and all other persons having interest therein :

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 he lawful for the Tahsildar to restore the possession of the said land to the protected tenant or holder of the certificates, after giving notice of eviction to the occupant thereof, in the prescribed manner."

The other amendment brought in by Act 3 of 1979 is as stated above, the addition of a new sub-sec. (5) to S. 38-E. It reads as follows : -

"S. 38-E(S). Notwithstanding anything contained in this section or Section 19, the Collector may, suo motu at any time, hold an inquiry with a view to ascertain the genuineness of the surrender of the right made by the protected tenant under clause (1) of sub-section (1) of S. 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 affecting any person shall be passed under this sub- section unless such person has had an opportunity of making his representation thereto."

Rules were issued in G.O.Ms. No. 2064 Rev.(F) dt. 7-5-80 for enabling the Tahsildar to inquire and restore possession under the proviso to S. 3SE(2). After these amendments were thus introduced by A. P. Act 2 of 1979 remedying the defects pointed out in Narasaiah's case the provisions of this amendment were questioned by the landholders again in G. Chennaiah and Another Vs. State of Andhra Pradesh and Others, and were upheld. The Division Bench in Chennaiah's case held that

(1) the proviso to S. 38-E(2) introduced by the Amending Act 2 of 1979 is not unconstitutional, and

(2)

(3) the said proviso which came into force on 11-1- 1979 was retrospective in operation.

(4)

It was also held :

(5) the provisions relating to transfer of ownership in S. 38-E are not outside the scope of this legislation relating to relationship between landlord and tenant,

(6)

(7) the legislative competence in this regard under Entry 18 of List 11 cannot he doubted;

(8)

(9) the Amending Act 2 of 1979 did not purport to overrule Narasiah's case (1979 (1) AWR (HC) 23) but merely sought to fill up the lacunae mentioned in that case,

(10)

(11) the words has been transferred to the protected tenant under sub-section (1) in the new proviso to S. 38-E(2) introduced on 11-1- 1979 are retrospective and enable restoration of possession by the Tahsildar to the protected tenant who became owner, either before 11- 1-1979 or thereafter;

(12)

(13) once the ownership certificate was issued to the protected tenant under S. 3SE(2), it was conclusive evidence of such ownership and, the said certificate could not be challenged 'at the stage of delivery of possession' in the inquiry under the proviso to S .38-E(2) read with the Rules made in G.O.Ms. No. 2064 Rev.(F) dt. 7-5-1980 or in a Civil Suit because of the bar in S. 99 of the Act.

(14)

(15) it was not necessary that the protected tenant should have been actually in possession on the date of notification under S. -38-E(1) and the words 'held' and 'holding' cannot be construed as referable to actual possession.

(16)

(17) however, in the inquiry under the proviso to S. 38-E(2) read with the Rules in G.O.Ms. No. 2064 Rev.(F) dt. 7-5-1980, possession cannot be restored without notice to persons in possession providing for an opportunity to make their representations.

(18)

(19) The question adverse possession by the landholder is a question to be raised in the proceedings under S. 38-E(2) taken for the issue of a certificate and the same cannot be raised after the ownership certificate is issued (in S. 38-E(2) proceedings).

(20)

On the above findings, the writ petitions were dismissed except in one ease where inquiry under the proviso to S. 38-E(2) read with the Rules dt. 7-5-1980 was directed.

26. It is at that juncture that the present reference to Full Bench has been made on 4- 3-1982, stating that Narsaiah's case rendered before the Act 2 of 1979 and Chenneiah's case rendered after Act 2 of 1979 were in conflict. All the questions arising in this batch have been set out by us at the outset. We shall now deal with these questions seriatim.

Point No. 1 :- The point is whether a protected tenant must have been in physical possession on the date of the notification issued by the Government under S. 38-E(1) (i.e., 1-1-1973) for becoming owner of the property and for obtaining the ownership certificate. In facts in Narsaiah's case (1979 (1) Andh WR (HC) 23) the Division Bench was of the opinion (see p. 29) that the protected tenant must be in physical possession on the date of notification, while in Chennaiah's case the contrary view was taken G. Chennaiah and Another Vs. State of Andhra Pradesh and Others, . Of course, the Amending Act 2 of 1979 did not make any change in the statute so far as S. 38-E(1) or its proviso or Explanation, are concerned and it may be right to say that all things being equal there is a conflict between the two Division Benches on the aspect.

27. In our view, the contention for the landholders that unless the protected tenant is in physical possession on the date of notification issued under S. 38-E 1), he cannot get the ownership rights, is not tenable. A plain reading of S. 38-E(1) shows that the Government may, by notification in the gazette, declare in respect of any arm that from which such date as he specified therein, ownership of all lands held by protected tenants which they am entitled to purchase from their landholder in such area shall, subject to S. 38(7), stand transferred to and vest in the protected tenants holding them. It is important to note that the statute does not say 'held on the date specified. in such notification'. Wherever the Legislature wanted that land should have been held on any specified date, it had clearly specified in that Act. For example, S. 5 of the Act dealing with persons deemed to be tenants as of a person who is 'cultivating' the land; agaim while dealing with 'protected tenants' the statute specifies, in S.34, the dates from 1342 Fasli to January, 1948 during which the tenant must have been in possession. In S.37 it deal with a person who at the commencement of this Act, holds as tenant, and again under S. 37-A, of a person who, 'at the commencement of the Amending Act of 1955, holds as tenant. If the Legislature wanted that protected tenants must be holding the land physically on the date specified in the notification issued under S. 38-E(1), it would have made it a specific condition.

28. Apart from the fact that the plain language in S. 38-E(1) does not impose such a condition, the position is also clear from the scheme of the Act. The Act defines persons who are tenants or am to be deemed as tenants, and who are protected tenants or are deemed as protected tenants. Ale right to become vested with owners is cold on 'protected tenants' mentioned in S&. 34, 37 and 37-A. After 1950, when the Act came into force, the authorities consumed under the Act are to identify this clam of 'protected tenants'. Under S.35, the Tahsildar is to decide who belong to the class of protected tenants. Rules were issued under S.97 (2) (1) read with Ss. 35 and 37 on 28-8-1950 for preparation of Preliminary Record of Tenancies hearing objections and for declaration of the Preliminary Record as the Provisional Record. A Register of Mutation is also to be maintained. Rule 20 of the Rules provides for a presumption of correctness of the entries in the Register of Tenancies and Register of Mutations. Rule 24 contemplates a Final Record of Tenancies. Rule 25 deals with certificates to be issued to protected tenants' by the Tahsildar to every person who is recorded as a protected tenant in the final record. Rule 20 regarding presumption of correctness applies also to the final record. Rules were also issued under Ss. 35,37,38(3), (6),39(1) (2) in i951 providing for adjudication of disputes as to who is a 'protected tenant'. These rules provide for inquiry by the Tahsildar and R. 3 contemplates a declaration in Form 111. Applications under R. 35 are inquired into under Rule 5 while those under R. 37(1) are inquired into under Rule 8. A declaration made by the Tahsildar under S. 15.'or of the Collector or Board of Revenue on appeal, is to be 'conclusive evidence' that such person is a protected tenant and his rights as such shall be recorded in the Record of Rights or the village record prescribed The Tenancy Records Correction Rules. 1956 issued under S. 97 read with Ss. 35 and 37 deal with the power of the Deputy Collector to make corrections in the final record of tenancies. Rules for preparing the list of protected tenants under S. 37-A were also issued. In 1957, Thus. there is a complete machinery for the preparation of the final list of 'protected tenants' who come under Ss. 14. 37 and 37-A.

29. It is clear from 5. 38-E that it is for these 'Protected tenants' who are finally declared to be 'protected tenants' and included in the Register prepared for that purpose and for whom protected tenancy certificates have been issued, that ownership rights are envisaged in S. 38-E(1), subject of course, to the limitation with regard to extent of holdings as specified in S. 38(7) and to the proviso to S. 38-E(1). Once persons who held land on the dates or for the periods mentioned in Ss. 34,37 and 37-A and the requirement of physical possession on the dates required in those sections is satisfied, such persons have become 'protected tenants'. Once a person becomes a protected tenant, he earns a qualification to become an owner by force of statute, subject of course to the qualification regarding extent in S. 38(7) and to the proviso to S.38-E(1). There is no requirement in the Act that he should also be in possession on the date specified in the notification issued in S. 38-E(1). The words 'all lands held by protected tenants' is more a description or the lands with regard to which the right as .protected tenant has been declared and there are no words requiring physical possession on the date specified in the notification.

30. Any ambiguity in this regard is clearly removed by the Legislature in the first part of the Explanation introduced originally by Act 15 of 197 1. That part of the Explanation clearly states that if a protected tenant, on account of his being dispossessed otherwise than in the manner and by order of the Tahsildar as provided in S. 32, is not in possession of the land on the date of notification issued hereunder, then for the purposes of this sub. section, such protected tenant shall, notwithstanding certain judgments, decrees or orders be deemed to have been holding the land on the date of the notification."

The Supreme Court in State of Andhra Pradesh Vs. Mohd. Ashrafuddin, had occasion to interpret the words 'held and 'holding' under 5. 3(1) of the A. P. Land Reforms (Ceilings on Agricultural Holdings) Act, 1973 wherein it was stated :

"Thus 'held' connotes both ownership and possession. And in the context of the definition, it is not possible to interpret the word 'held' only in the sense of possession."

31. A person 'holds' the land as protected - tenant if he is still a 'protected tenant' on the notified date, though out of possession. As long as his right as protected tenant has not been determined by date of notification in a manner known to the Act, he 'holds' the land as protected tenant, whether physically in possession or not. We shall explain this again under point 7 in the context of 'surrender'.

32. It is, however, argued for the land- holders that assuming that the legislature has deemed that the protected tenant is in possession as on the date of notification as stated in the first part of Explanation, still unless he is actually put in possession, proceedings under S.38-E(2) cannot commence. We shall deal with this aspect under Point No. 2 a little later.

33. It is again argued that in Nerella Janaiah v. Bairain Saiga, 1959 ALT 424. A division Bench consisting of Chandra Reddi. C. J. and Jaganmohan Reddi, J. (as he then was) held that the protected tenant in that case, not having been physically in possession on 1-11-1955, (the date when Khammam District was notified under 5. 3SE(I), he was not entitled to become an owner by force of statute, he not having cared to obtain restoration of possession under S. 32 before 1-11-1955. Though reference was made by the Division Bench to the meaning of the words to hold land in the Hyderabad Land Revenue Act (definitions in which were attracted to the 1950 Act, if not otherwise defined), as follows :-

"to hold land, or to be a 'landholder' or holder' of land means to be lawfully in possession of land whether such possession is actual or not."

Unfortunately, the learned Judges, did not give any effect to the words 'actual or not' available in the said definition. Whatever be the correctness of the view expressed, the same was rendered in 1958 when the Explanation was not introduced in S. 38-E(1) of the statute. Once the Explanation has been introduced by Act 15 of 1971, deeming a person out of possession as in possession, unless evicted under S. 32, the said decision of the Division Bench ceases to be of any use to the landholders.

34. Reliance was also placed on Bandi Krishna Murthy v. Pasupuleti Venkatesam, i 1961) 1 AWR 413 decided by Chandra Reddi, C. J. and S. Ramachandra Rao, J. But that decision arose under S. 37-A which expressly required the land to be held at the date of commencement of the 1955 Amending Act and. the language of 5. 37-A is different front the language in S. 38-E(I). In any event, after the introduction of the 'deeming' provision in the first part of the Explanation. this decision is also of no use to the landholder's case.

35. We accordingly overrule Narsaiah's case (1979) (1) A WR (HC) 23) on this point and approve the view expressed in G. Chennaiah and Another Vs. State of Andhra Pradesh and Others, .

36. For all the aforesaid reasons we hold on point No. 1 that for the vesting of the ownership of land 'held' by a protected tenant tinder S. -38E(1), it is not necessary that the protected tenant should have been in physical possession on the date of notification. It is sufficient if be continued to hold the status of a 'protected tenant' as on the notified date even if not in physical possession and he satisfied the requirements of S. 32(7) of the Act. This is also subject to the proviso to Section 38-E(1).

37. Point No. 2 :- It is urged for the landholders that even if it is not necessary that the protected tenant should have been in physical possession on the date of notification issued under S. 38-E(I), still before proceedings under S. 38-E(2) are initiated or completed, he should have been physically put in possession by the Tahsildar under the latter part of the Explanation to S. 38-E(1).

38. The Division Bench in Narsaiah's case (1979(1) Andh WR(HC) 23) has in fact taken the view (pp. 29-30) that the two parts of the Explanation to S. 38-E(1) must be read as part of a single scheme and that unless the protected tenant is put in physical possession, there is no question of issuing a certificate of ownership. On the other hand, the other Division Bench in G. Chennaiah and Another Vs. State of Andhra Pradesh and Others, took the view that restoration of possession to the protected tenant is not a condition precedent. This aspect not having also been touched by Act 2 of 1979, there is a conflict between the two decisions.

39. In our view, the restoration of possession to the protected tenant under the Explanation to S. 38-E(1) is not a condition precedent for any action under S. 38- E(2) for initiating or granting an ownership certificate. It is true that the first part of the Explanation to S. 38-E(1) deems a protected tenant, dispossessed otherwise than under See. 32, to be 'deemed' to be a protected tenant on the date of notification and it is also true that under the latter part of the Explanation, a machinery is provided for such restoration of possession - notwithstanding anything in 5. 32 - by a Tahsildar after evicting the landholder or any person claiming through or under him. It is also true that the latter part of the Explanation concludes with the words and the provisions of this section shall apply thereto in every respect as it the protected tenant had held the land on the date of such notification'. But, in our view, for the purposes of transfer If ownership under S. 38-E(1) by force Of statute and for purposes of issuing a certificate under S. 38- E(2), it is the first part of the Explanation, deeming the protected tenant to he in possession on the notified date, that is important. The second part of that Explanation contains provisions which are purely incidental 'and do not prescribe that till possession is actually restored, no certificate under S. 38-E(2) can be issued.

40. Obviously, the Legislature intended that such of the persons who have been declared as 'protected tenants' as per the relevant revenue records in that behalf and who continued to be 'protected tenants' as on the notified date not having been evicted by due processor law under S. 32 should become owners, subject to S. 38(7) and the proviso to S. 38-.E(I). If proceedings under S. 19 in regard to surrender (S. 19(1) ) or for eviction by landlord (under S. 19(2) read with 5. 32) or for resumption (under S. 44) are pending and end in favour of the protected tenant, the date of vesting is postponed to the date of such decision. If, however, the protected tenancy stood finally determined under S. 19, S. 32 or S. 44 prior to the date of such notification such persons, having ceased to be protected tenants by the notified date, will not become owners.

41. Except, in cases pending under S. 19, 32, and 44, the Legislature did not, in our opinion, intend any postponement in the vesting of ownership. It was to be immediate and was not dependent on the physical restoration of possession to the 'protected tenant'. The inquiry under S. 38-E(2) is independent of any proceedings that might have been taken by the 'protected tenant' before receiving the ownership certificate. It is open to him but not incumbent on him to seek to obtain possession under the second part of the Explanation to S. 38-E(1) as a 'protected tenant' instead of waiting till the inquiry under S. 38-E(2) is completed. In our view, the Division Bench in Narsaiah's case was not correct in thinking that the transfer of ownership to the protected tenants remained in abeyance till a certificate of ownership was actually issued under S. 38E(2). Such a view conflicts with the plain language of S. 38-E(1).

42. It is argued that the certificate issued under S. 38-E(2) does not have retrospective effect from the date of notification under S. 38-E(1) and that it operates only from the date of issue of such certificate- This argument is also not correct. In our view, S. 38-E(1) merely states the time from which the ownership certificate will be conclusive evidence', namely, the date of certificate. It does not, in our view, refer to the time from which the declaration of ownership is operative. On the other hand S. 38-E(1) makes it clear that the transfer of ownership is immediately effective from the date of notification (i e. 1- 1- 1973 in these cases). Once the ownership certificate is issued it clearly relates back to the date of notification. From the date of issue, it can be used as 'conclusive evidence' of ownership as against the landholders and persons claiming through him and other persons interested. Again it is to be held that no ownership certificate is to be issued till possession is actually restored to the protected tenant under the Explanation to S. 38-E(1), the very object of the Legislature will, in our view, be not only delayed but defeated. Protected tenants will be driven from pillar to post to get possession and they will not be able to get the ownership Certificates expeditiously.

43. It is argued for the landholders that if the Tahsildar, in proceedings under the latter part of the Explanation to S. 38-E arrives at 'findings which have a bearing on the conditions for grant of ownership certificates under S. 38-E(2), the ownership certificates already granted would be able to be revoked or cancelled and that such a situation cat be avoided only if the possession proceedings under the Explanation are completed before granting the ownership certificate.

44. In our view, this contention is not correct. If a protected tenant is already in physical possession on the date of notification there is no problem at all. If proceedings under S. 19, 32 or 44 are pending, the date of vesting gets itself postponed. If the 'protected tenancy' stood validly terminated by the date of notification under S. 19, 32 or 44, in that case no certificate at all can be issued. But, as long as a person continued to be a 'protected tenant' either under S. 34 37 or 37-A, as per the Act and has not that status, whether he is in actual possession or not on the date of notification, and is also to be 'deemed' to be in possession under the first part of the Explanation subject to S.32(7) and the proviso to S. 38-E(1), the ownership stands transferred straightway to such protected tenant by the very force of S. 38- E(1). Further, S. 38-E(2) read with the A. P. (T.A.) Protected Tenants (Transfer of Ownership of Lands) Ruin 1973 contemplates a full-fledged inquiry after notice to the landholders or after hearing objections of any other interested person (vide Rr. 4, 5). Once a certificate is issued, the same is, under 5. 3SE(2),'conclusive evidence' of the ownership of the protected tenant, and cannot be defeated by the result of any inquiry under second part of the Explanation to S. 38- E. Another reason for this view is that the inquiry under S. 38-E(2) read with the Rules of 1973 referred to above, is to be done the Tribunal (the Revenue Divisional Officer) and obviously his decision to grant the ownership certificate will not and cannot be jeopardised by the result of any inquiry by a subordinate official like the Tahslidar, who deals with the granting of possession to a 'protected tenant.'

45. In fact, this argument does not any longer hold after the introduction of the new proviso to S. 38-E(2) by Act 2 of 1979 under which, the former-protected tenant who has become owner, is entitled to possession independently under that provision. The scope of the enquiry under the latter part of the Explanation to Sec. 38-E(1) is only as long as the person continues as 'protected tenant' and not if he has become 'owner' for, in the latter case, it is the new proviso to S. 38-E(2) that comes into operation and not the Explanation to S. 38-E(1).

46. It is then argued for the landholder that the Explanation was introduced in 1971 to remedy the effect of the decision in Nerella Janaiah's case (1959 Andh LT 924) in 1959 that the protected tenant must be put in physical possession as on the date of notification. Reference is made to the Statement of Objects and Reasons for the Act 15 of 1971. We are unable to read any such clue in the Statement of Objects and Reasons. On the other hand, they do not intend to cure any defect pointed out in Nerella Janaiah's case but only refer to the batch of petitions questioning the validity of S. 38-E, namely, Md. Shoukat Khan v. State of A. P. (ILR (1970) Andh Pra 1151). This argument has, therefore, no force.

47. Learned Counsel for the landholders referred to certain decisions of the Bombay High Court under the Bombay Act of 1948 as amended from time to time, but having regard to the series of amendments in Andhra Pradesh and the difference in the language of the Bombay Act and our Act, we are of the view that those decisions are of no assistance.

48. For the aforesaid reasons, we hold that the restoration of possession to the protected tenant under the latter part of the Explanation to S. 38-E(1) is not a condition precedent for initiation or grant of ownership certificate u/s 38-E(2). On this point also, we overrule the view taken in Narsaiah's case (1979 (1) Andh WR (HC) 23) and approve the view in G. Chennaiah and Another Vs. State of Andhra Pradesh and Others, . Point No. 2 is decided accordingly.

49. PointNo.3:-This point deals with the scope of the inquiry under S. 38-E(2) read with the A. P. (T.A.) Protected Tenant (Transfer of Ownership of Lands) Rules. 1973 and as to the effect of the certificate issued u/s 38-E(2).

50. Now a person who is declared as a protected tenant under Ss. 34,,37, 37-A and continues to hold that status even on the notified date would, subject to S. 38(7) and the proviso to S. 38-E(I) becomes owner by statutory transfer of title, whether physically in possession or not on the date of notification and without being restored to possession by the notified date.

51. In the inquiry under S. 38-E(2) read with R. 4 of the Rules of 1973, the Tribunal considers the matter on the above basis. This it does by considering the tenancy records or other record of rights or revenue accounts and after determining the extent of holding of the protected tenant and the landholder and provided these extents are within the limits mentioned in S. 38(7). If under Ss. 19, 32 and 44, the protected tenants have ceased to be such, by the date of notification, there is no question of declaring them to be owners. If the proceedings under Ss. 19,32and44are pending, the inquiry under S. 38-E(2) is not ,to be commenced till they are finally concluded in favour of the protected tenants. The Tribunal decides the extent which the protected tenant is entitled to purchase and prepares a provisional list in Form I, then objections are invited as per the procedure prescribed. Under Rule4(3) the objections of the landholder are beard. Objections of any other interested persons, if filed, are also beard and then, the certificate is issued in Form II to the protected tenant and under Form III to the landholder. Once the ownership certificate is issued, it is from that date 'conclusive evidence' as against the landholder and all other persons having any interest therein. It clearly takes effect, retrospectively, from the date of notification issued u/s 38-E(1). As stated under Point No. 2, the transfer of ownership is not kept in abeyance during the inquiry under S. 38-E(2), and once it is issued it binds the landholder and all persons claiming through him. whether they are agreement-holders or vendees and it also binds all other persons having any interest therein, provided the principles of natural justice mentioned in the next paragraphs are satisfied.

52. We are in entire agreement with the learned Judges in G. Chennaiah and Another Vs. State of Andhra Pradesh and Others, that once the certificate is issued, and has, after any proceedings in appeal or revision, become final, it is conclusive proof of ownership and the validity thereof cannot be challenged by the landholder or anybody claiming through him or other persons having any interest therein', (as stated in S. 38-E(2)) in proceedings for delivery of the land under the new proviso to S. 38-E(2) or in any other collateral proceedings, provided the principles of-natural justice hereunder mentioned (see next para) are satisfied. Section 99 of the Act also bars the jurisdiction of the Civil Courts in this regard.

53. It was repeatedly stressed by Sri B. Subhashan Roddy that, if that be the position, it would cause great hardship to landholders and persons claiming through them and to other persons interested in the land inasmuch as it would violate principles of natural justice. In our view, this contention is not correct. The ownership-certificate Rules of 1973 provide for a procedure consistent with principle of natural justice. As held by Jeevan Reddi, J. in P. M. Narayanaswamy v. The Addl. R.D.O. (LRA), (1978) 1 Andh LIT 16 (NRC) : 1978 APHN 20 : 1978 (1) APLJ 7 (NRC), the mere affixture of a copy of the provisional list on the notice board of the village chavidi any other conspicuous place in the village, or by beat of tom-torn in the village is not deemed sufficient notice by the rule, making authority itself. Since it has taken care to provide that such list should also be communicated to the landholders and the protected tenants individually at their usual place of residence. If the provisional list contains only the names of those tenants who, according to the Tribunal are entitled to be declared as owners, then the other protected tenants will have no opportunity or occasion to submit their objections. The general publication of the provisional list in the village is not sufficient, which is evident from the very fact that R. 4(2) itself provides for individual communication of the said list to both the landholders and protected tenants.

54. When such procedure consistent with principles of natural justice has been laid down in the Rules, we fad to see how any question of hardship or . injustice can legitimately remain even after the issuance of certificate under S. 38-E(2) after following the said procedure. It is for that reason that the certificate if it has become final, becomes ,conclusive evidence' as stated in S. 38-E(2). All objections to the very grant of the certificate must be raised before it is granted or in appeals or revision and cannot be permitted to be raised at the stage of delivery proceedings under the new proviso to S. 38E(2). We hold accordingly on point No. 3.

55. Point No. 4:-The point is whether the new proviso to S. 38-E(2) added by Act 2 of 197gisretrospectiveandpermitsrestoration of possession where ownership certificate is issued before 11-1-1979 when Act 2 of 1979 has come into force.

56. Now the new proviso to S. 38-E(2) was introduced by Act 2 of 1979 to get round the difficulty created by the judgment in Narsaiah's case (1979 (1) Andh WR (HC) 23). There, it was held, that once the protected tenant has become owner, there is no machinery in the Act enabling him to obtain possession. It was pointed out that the provision in the latter part of the Explanation to S. 38-E(1) enabling a 'protected tenant' to obtain possession through the Tahsildar was not applicable to the case of an application by an owner, even if it be a case of a protected tenant becoming an owner.

57. In our view, the Legislature wanted to fill up the difficulty created by Narsaiah's case when it added the new proviso to 5. 38E(2) enabling the Tahslidar to restore possession to a former protected tenant who had become the owner.

58. It is, however, argued that this amendment is prospective from 11-1-1979 and that the benefit of restoration of possession through the Tahsildar is Available only to those protected tenants who have been given ownership certificates after 1 I- I- 1979. In our view, this is not correct. It was, in our view, not the intention of the Legislature that these protected tenants who obtained ownership certificates before 11- I- 1979 should go to the Civil Court and those obtained certificates after 11-1-1979 should go to the Tahsildar. The intention of the Legislature was to benefit all cases, whether the ownership certificates were issued before or after Act 2 of 1979. As already stated, the actual date of issuance of the ownership certificate has, no bearing on the statutory transfer of ownership under S. 38-E(1) with effect from the date of notification for the certificate dates back to the date of the notification under S. 38-E(1).

59. It is then argued that the words 'the ownership has been transferred" in the new proviso to S. 38-E(2) show that the amendment does not apply to cases where the ownership certificate has been issued before 11-1-1979. This interpretation is not correct. We fully endorse the reasons given in G. Chennaiah and Another Vs. State of Andhra Pradesh and Others, to say that these words cannot be given such a restricted meaning. Point No. 4 is decided accordingly.

60. Point No. 5 : - The question is whether the proviso introduced in S. 38-E(2) by Act 2 of 1979 is violative of Art. 14 of the Constitution of India and whether it is also contrary to the scheme of the Act. The fixed argument for the landholders is that inasmuch as normally owners of properties are to recover possession through civil courts, the special procedure envisaged in the new proviso to S. 38-E(2) enabling protected tenants who have become owners to recover possession through the Tahslidar is discriminatory. In our view, this contention is not tenable. The Act is a piece of agrarian reform under which pattedari or ownership rights are conferred on protected-tenants. These persons whose 'protected tenancy was in force as on the notified date (i.e. l- l- 1973) and upon whom ownership rights are conferred, definitely form an identifiable and special class of owners who till then were protected tenants and the Legislature thought that it was its duty to see that such persons are able to realise the fruits of their new ownership rights as early as possible. Even if Art 14 is applicable, the classification of these persons is, in our view, perfectly reasonable having regard to the object of agrarian reform. Further, the proviso falls under Art. 31A and is clearly protected. The other argument that the new proviso to S. 38-E(2) is contrary to the scheme of the Act and that it is not part of a law regulating the relationship of landlord and tenant and therefore bad, is not correct. The Act does not merely regulate the relationship of landlord and tenant but deals, as stated in the preamble, with the 'allenation' of agricultural land, which obviously includes the transfer of the landholder's interests to protected tenants. Further, the grant of pattedari or ownership rights which is part of agrarian reform, rightly finds its place in the Act. If this court and the Supreme Court have already upheld the provisions of S. 38-E both under Arts. 31-A and 31-B, there is no question of attacking the new proviso to S. 38E(2) as being out of tune with the scheme of Act. The provision being within the legislative competence of the State Legislature as suited in Chennaiah's case and not violative of Art. 14, it is not permissible to attack this proviso on the ground that it is incongruous to the scheme of S. 38-E. This contention is therefore rejected. Point No. 5 is decided accordingly.

61. Point No. 6:- It was argued that certain passages in G. Chennaiah and Another Vs. State of Andhra Pradesh and Others, are mutually contradictory. While in the earlier paragraph the Division Bench hold that once the ownership certificate was issued, no further objection could be raised later, the Bench observed in the latter paragraph that under the new proviso to S. 38-E(2) read with the Rules in O.O. M& No. W64 Rev.(F) dt. 7- 5-1980, the affected parties were given an opportunity to make their representation This raises the question as to the scope of the inquiry under the new proviso to S. 38E(2) read with the above Rules.

62. It will be noticed that in Narsaiah's case (1979 (1) Andh WR (HC) 23) the Division Bench observed that there was no effective machinery in the Act to restore possession to a person who had become owner under S. 38E(1) and that possession could not be restored to such baron without observing principles of natural justice. It is precisely to meet this criticism that the new proviso to S. 38-E(2) was added and thew Rules made. But, merely because an opportunity is afforded to those who may object to such grant of possession, it does not mean that, in such proceedings under these Rules dt.. 7-.5- 1980, the ownership certificate can be Main questioned. So far as landholders and was claiming through them and persons who have objected before the grant of the certificate, before the Tribunal are concerned, they cannot be permitted to reagitate the very question which they either raised or could nave raised before the grant of certificate in this inquiry. Further the ownership certificate is binding on 'other persons' having any interest therein provided that if the ownership certificate had been issued under the A.P. (T.A.) Protected Tenants (Transfer of Ownership of Lands) Rules 1973 by following the procedure as envisaged in those rules as explained under. In that event the ownership certificate is conclusive evidence against the above said persons and cannot be regitated during the delivery proceedings under the new proviso to S. 3SE(2) read with the Rules dt 7-5-1980. Point No. 6 is decided accordingly.

63. Point No. 7 :- Cases of surrender (see CRP No.'915179 below) by the tenant or the protected tenant have raised certain problems. In several cases the landholders contend that surrender by the protected tenants has deprived such tenants from any right to claim ownership.

64. At one stage, Sri C. R. Pratap Reddi for the protected tenants argued that the provisions of S. 19(1)(a) deal only with surrender by tenants but not by protected tenants, and that in fact both S.19(1) and S. 19(2) do no,, apply to protected tenants. In our view, ~ contention is not correct. The proviso to S. 38-E(1) clearly contemplates surrender toy protected tenants and the Explanation to S. 38-E(1) squarely deals with S. 32 as being applicable to protected tenants. Rule 13(d) of the Rules made under S.35, 37. 38(3) (6), 39(1)(2) in 1950, clearly speaks of proceedings under S. 19 or 44 with regard to protected tenants. We are clearly of the view that Ss. 19 and 32 apply to 'tenants' as well as to 'protected tenants'. In fact in M& Shaukat Khan v. State of A.P. (ILR (1970) Andh Pra 1151) Jaganmohan Reddi, C. J. (as he then was), speaking for the Division Bench clearly held (p. 1170) that notwithstanding the definition of 'tenant' and 'protected tenant',

"a protected tenant is nonetheless a tenant and if he satisfies certain other conditions specified in S. 34, he acquires certain rights as a 'protected tenant' ...... It is no answer to say that if a protected tenant does not pay the rents, the Civil Courts have jurisdiction to evict them."

and pointed out that if S. 19 were not applicable, protected tenants would be in a worse position than tenants. That, surely, was not the legislative intention.

65. But, surrender under 5. 19 does not, in our opinion, result from mere absence from possession. It must have been a conscious relinquishment of a legal right. Further, under 5. 19(1)(a) as it-stood before amendment by Act 3 of 1954-on 4-2-1954, the tenant (or protected tenant) could simply surrender his rights even orally and without anything in writing. In Seetharamamma v. Badnath Herija 1959 ALT 650, Chandra Reddi CJ. and Srinivasachari, J. while, deal with a surrender of the year 1953 held that it was valid even if it was not in writing, that surrender without the permission of the Tahsildar under S. 32(2) was valid and that S. 32(2) did not apply where the tenant, of his own, put the landholder in possession. The provisions of S. 32(2) could be invoked by the landholder only in cases where the tenant did not voluntarily put the landholder in possession. Though the section was amended in 1954, the Legislature did not think fit to make the amendment to S. 19(1)(a) retrospective. After the amendment on 4-2- 1954 the surrender by the tenant or protected tenant) was required C be in writing and also to be admitted by the tenant in good faith before the Tahsildar. If the surrender, after 4-2-54, did not satisfy these mandatory provisions, the protected tenancy did not stand terminated and the protected tenant could recover back possession under S. 32, even if he. had been dispossessed without force. (Venkanna v. Buchamma, (1971) 2 APLJ (HC) 266, decided by Chinnappa Reddi, J. (as he then was) and A. D.V. Reddi, J.)

66. For purposes of S. 38E(1) the protected tenant should not have validly surrendered his tenancy rights by the date of notification under S. 38E(1). But if he had voluntarily surrendered his rights prior to 4- 2-1954 (the date of the 1954 amendment) and put the landholder in possession, be it without the intervention of the Tahsildar, he could not claim any rights of ownership under 5. 3SE(I) upon the issue of the notification. Likewise, if the surrender was after 4-2-1954 and before the date of notification under S. 38E(1) and such surrender satisfied the requirements of S. 19 and was a valid surrender, the protected tenant could not claim ownership rights. If, however, there was no valid surrender whether before (being not voluntary but forcible) or after(being not in conformity with S. 19), the protected tenant had aright to be put back in possession under S. 32 as stated in Venkanna v. Buchamma and such protected tenants, (if they had not otherwise lost their status under S. 32 or 44 by the notified date) would be entitled to ownership rights under S. 38E(1) and would be entitled to the ownership certificate under S. 38-E(2). Incases where proceedings under S. 19 are pending on the date of notification and end in favour of the protected tenant thereafter, the date of vesting gets postpone till the said decision. Point No. 7 is decided accordingly.

67. Point No. 8 :- The question is frequently raised as to whether the landholder can plead and-prove adverse possession before the tribunals or authorities under the Act, as against the protected tenant'

68. There is no provision in the Act dealing with adverse possession. The only provision dealing with 'limitations' is the one contained in S. 93 of the Act which initially stated (before the Amendment by Act 2 of 1979) that every appeal or application for revision should be filed within 60 days of the order against which the appeal or revision is filed, and that the provisions of the Limitation Act, 1903 applied only for the purposes of computation of the said period. After the amendment by Act 2 of 1979, it is now stated that the provisions of S. 5 and Ss. 12 - 24of the Limitation Act, 1963, shall apply for the purposes of extension and computation. Again under S. 29(2) of the Limitation Act, 1963 also, if the period prescribed by any special or local law for any suit, appeal or application, is, different from the one prescribed under the Limitation Act, 1963, the periods prescribed in those laws apply as if prescribed in the Schedule to the limitation Act and, for determining any such period, the provisions of Ss.4 to 24 shall apply except to the extent excluded by the special or local law. Under S. 28(2) of the new Limitation Act there is no provision making Art. 65 and S. 27 thereof applicable to special laws. Similarly, even under S. 29(2) of the old Limitation Act, 1908, there is no provision making Art. 144 and S. 28 thereof applicable to special laws., Thus, either under the new Limitation Act, 1963 or under the old Limitation Act, 1908, there is no possibility for the landholders to invoke either the plea of adverse possession (under old Art. 144 or new Art. 65) or the plea of extinguishment of any right (under old s. 28 or new s. 27) inclusive of the right of protected tenancy under the Act. The right of protected tenants to recover possession is uninhibited by any principle of adverse possession.

69. There is another strong objection to the plea of adverse possession set up by the landholders. It is to be noted that the provisions of the Limitation Act (except those applied to special laws by force of S. 28(2) of the new Act or S. 29(2) of the old Act) are not attracted for enforcing rights before the revenue authorities or tribunals under the special laws. The provisions of the Limitation Act are applicable only to Proceedings before Civil Courts. In a case arising under this very Act, the Supreme Court has recently restated this proposition. In Sakuru Vs. Tanaji, Balakrishna Eradi J. stated :

"......... the provisions of the Limitation Act, 1963 apply only to proceedings in 'Courts' and not to appeals or applications before bodies other than 'Courts', such as quasi- judicial Tribunals to executive authorities." and their Lordships approved the judgment of M. Ramachandra Raju and B. P. Jeevan Reddi, JJ. in K. Venkaiah and Others Vs. K. Venkateswara Rao and Another, where, in a case arising under this very Act, it was stated that the Limitation Act, 1963 did not apply to tribunals and revenue authorities except to the extent permitted by S. 28(2) of-the Act.

70. The decision of the Supreme Court in Smt. Shakuntala S. Tiwari Vs. Hem Chand M. Singhania, that provisions of the Limitation Act, 1963 applied to suits under the Bombay Rents, Hotel and Lodging House Rates Control Act, 1947 is clearly distinguishable because, the case clearly related to suits. In fact, Ramaswamy, J. has recently held and, in our view, rightly, Ushanna v. Sambu Goud, (1985) 3 APLJ (HC) 32 that the plea of adverse possession cannot be raised under this Act against a protected tenant. We overrule the view expressed by the Division Bench in Narsaiah's case (1979 (1) Andh WR (HC) 23) that pleas of adverse possession are admissible against protected tenants. We do not also approve of the observations in G. Chennaiah and Another Vs. State of Andhra Pradesh and Others, that the plea of adverse possession could be raised by the landholders before the revenue authorities or tribunals under the Act. Thus there is no question of applying the principle of adverse possession either under the old Limitation Act, 1908 or the new Limitation Act, 1963, for contending that the protected tenancy rights are lost or extinguished on that count. (see S.A. 547181 and C.Rf. No. 331,7/82 below).

71. Thus, practically, we have restored the principles of law laid down by Jeevan Reddi, J. in Narsaiah's case before they were reversed by the Division Bench of Madhava Reddi, 3. (as he. then was) and Narsing Rao, J. in Narsalah's case.

72. In cases where the landholders have sold the property, it is to be noted that the sales offend take statute which requires the offer of sale to be made to the protected tenant. Point No. 8 is decided accordingly.

73. Point No. 9 :- This relates to an inquiry under S. 38(5), intended to be made by the Collector, at any time, - and notwithstanding anything in S. 19 or S. 38-E, for deciding the genuineness of any surrender, "for the purpose of effecting a transfer of ownership", subject to observing principles of natural justice. Obviously, the inquiry in regard to surrender before 4-2-1954 (date of Act 3 of 1954) will be on the basis that an org voluntary surrender by tenant was valid, if made, before 3-2-1954, as decided in Seetharamamma v. Badnath Herija (1959 ALT 650) and on the basis that with effect from 4-2-1954, it must satisfy the mandatory requirements stated in Venkanna v. Buchamma (1971 (2) APU (HC) 266). We have so held under point No. 7. Further the inquiry is only for the purposes of effecting a transfer where it has not already been effected in favour of the protected tenant. (see also under CRP No. 915/79 below). Point No. 9 is decided accordingly.

74. (1) W. A. No. 1082 of 1982. In this writ appeal, the purchaser from the landholder is the appellant-writ petitioner. The sale itself was contrary to the provisions of the Act as stated in the counter. The ownership certificate was issued in favour of the protected tenant on 21-1-1975 by the R.D.O., after due notice to the original landholders. An appeal preferred on 27-9-1976, by the appellant with a delay of 556 days before the District Revenue Officer, was dismissed on S- 10.1976. The appellant filed C.R.P. No. 2032/1976 in this Court under S.91 of the act and that was dismissed. The ownership certificate has become final. The appellant h= now filed the writ petition out of which this appeal arises, on grounds which he has raised or should have raised in proceedings under the Act. Having faded in the appeal and revision, he is clearly barred from raising the same questions in this writ petition. The .objection raised for the respondents by Sri Raghuram is sustained. Under point Nos. 1, 2, 3, 4, 5 and 6 raised by Sri B. Subhashan Reddl for the appellants, we have held against the landholders, and our opinions thereon need not be repeated. The Writ Appeal is therefore dismissed.

75. (2) W.A. No. 23/83 In this case too, the appellant who claims to be a purchaser from the landholder on 30-1-1970,' admits that the validity of the ownership certificate issued to the respondent-protected- tenants was affirmed in proceedings under the Act, finally in C.R. No. 427177. When the respondents took out proceedings for delivery of possession, under proviso to S. 38-E(2), the appellant filed this writ petition raising various points, including surrender by the protected tenants. Having filed in the proceedings under the Act, the appellant cannot be permitted to re-open those issues against. The writ appeal is therefore dismissed.

76. (3) W.P. No. 1402182 :- This writ petition is filed by the landholders alleging oral surrender by the protected tenants before 1954. Neither the protected tenants nor their legal heirs have been impleaded in this writ petition. On this ground alone, this writ petition is liable to be dismissed. Apart from that, it is admitted that in 1975, the R.D.O. issued ownership certificates to the protected tenants. The same does not appear to have been contested by pursuing the procedure of appeals and revisions under the Act. It is not even argued by the petitioner's counsel with reference to any record that the procedure relating to notice under the 1973 Rules was not followed before issue of ownership certificate to the protected tenants. All the objections are now raised at the stage of delivery proceedings initiated under the new proviso to S. 38E(2). As held earlier, these objections cannot be permitted to be raised at this stage. The writ petition is, therefore, dismissed.

77. (4) S.A. No. 547181 :- This case raises a plea of adverse possession. The appellants are protected tenants who were granted ownership certificates on 16-6-1977 ,and they were also put in possession by the Tahsildar in August, 1977. Thereafter, the respondent-plaintiff, claiming to be a purchaser under an agreement of sale of 1962 filed the suit in 1978 for possession in the Civil Court and for a declaration that the ownership certificates are not valid. The trial Court decreed the suit on the ground that the protected tenants were out of possession by the grant of ownership-certificates following Narasaiah's case (1979 (1) A WR (HC) 23). That judgment of the trial Court was affirmed by the lower appellate Court on 22-6-1981, even though by that date, the amending Act 2/1976 had come into force. It also upheld the plea of adverse possession. In our view, the suit is barred under S. 99 of the Act and further, on merits, it is clearly found, as a fact, that notice was issued not only to the original landholders but a public notice was also given, and the plaintiff- purchasers actually appeared before the Tribunal and filed objections and those objections were rejected. This is clear from the clear admission of P.W. 1 in cross- examination. The plaintiffs did not pursue the matter in appeal or revision under the Act and are barred from seeking possession and the declaration sought for. If the suit was barred under S. 99 and the pleas now raised, including adverse possession are also available under the Act, the same cannot be permitted to be raised in the Civil Court. The Second Appeal is accordingly allowed and the suit dismissed.

78. (5) C.R.P. No. 915/1979 .- This C.R.P. raises a question of ,4urrender found to have been made before 1954 by the petitioner-protected-tenant and also plea of adverse possession. The petitioner and other were granted ownership certificates on 20-8- 1974 by the Tribunal. The landholders preferred appeal to the D.R.O. and the same was dismissed on 17-1-1976. But in C.R.P. No. 113/76 preferred by the two landholders, K. Janardan Reddi and K. Ranga Reddi, it was held that so far as Janardhan Reddi was concerned, he was given notice in the ownership certificate proceedings and was also present when the Tribunal passed its orders on 20-8-1974. While rejecting the case of. K. Janardan Reddi as time barred, it was observed that that so far as K. Ranga Reddi is concerned, he could move the appropriate authority. Thereafter, K. Ranga Reddi moved the Tribunal again but his application was dismissed on 14-11-1977. On appeal by Ranga Reddi to the Joint Collector, the same was allowed against 5 protected-tenants (respondents in that appeal) and the 1st respondent in that appeal is Avusula Brahmalah and he was interested in S. No. 243 while the others were interested in 5. Nos. 244 and 246. The Joint Collector in his order dt 7- 12-1978 dealt with the S. No. 243 separately S. Nos. 244, 246 separately and upheld the plea of surrender of S. No. 243 prior to 1950 in full and partly for 5. Nos. 244, 246. We are now concerned in this C.R.P. by the protected- tenant, Avusula Brahmaiah, only with 5. No. 243. It is clearly found by the Joint Collector that the petitioner surrendered .his tenancy rights prior to 1950 orally. The finding was supported by affidavits of neighboring ryots and was not, it was observed. controverted by the petitioner by filing a counter-affidavit. We have held that an oral Voluntary surrender was permissible prior to 4-2-1954 when Act3/1954was passed. It Is not the case of the petitioner that the surrender was by force. Such surrender, though not in writing is valid. The petitioner had not taken- any proceedings under S. 32 for restoration all these years. The petitioner still feels aggrieved. he may invoke the provisions of S.38(5) provided to decide. The revision is accordingly dismissed. subject to the above observations.

79. (6) C.R.P. No. 2319/79:- The petitioner is the landholder. He moved the Tribunal for cancellation of the ownership certificates issued to respondents on the round that the petitioner had less than two family holdings (vide S. 38(7)) and on a plea C surrender of 1953. The Tribunal, by its order dt. 2-5-75 rejected the petitioner's claim., an appeal, the D.R.O. in his order dt. 22-3-76 missed the appeal holding that there was o proof of- surrender before 1954. He observed that the holding of the petitioner as 'less than two family holdings. On revision C.R.P. 1022/76, dt. 10-3-77, it was held that in the finding relating to two holdings, are might. have been a typographical error y omission of not and the matter remanded. The decision that there was no surrender was ot disturbed in C.R.P. On remand, the D.R.O. clearly held by his order dt. 3-11-1978 that he landholder's holding even on 1-1-1973 was more than two family holdings and the alleged oral gifts by the landholder were not rue and valid. He directed the R.D.O. to take steps to put the respondents in possession. As the surrender is not proved and the landholder's holding is more than two family holdings, this C.R.P. is dismissed.

80. (7) C.R.P. No. 5162/1979 :- The Petitioners are the landholders. Ownership certificates were issued to the protected tenants on 20-4-1975. On appeal, the D.R.O. n his order dt. 12-4-1979 has found that the Appellants have failed to prove the plea of oral surrender by the protected tenants in 953 and that the appellants own more than two family holdings as per revenue records. In these findings of fact, and in view of our decision on point Nos. 1 to 9, there are no merits in this C.R.P. and it is accordingly dismissed.

81. (8) C.R.P. No. 1277/81 :- The Petitioner is the landholder. The Tribunal granted ownership certificates and thereafter he petitioner moved the Tribunal and it was said on 31-1-1975 that the protected tenants mere dispossessed otherwise than under S. 32. to argument regarding oral surrender before 1954 appears to have been advanced or proved. On appeal, the D.R.O. in his order It. 9-3-81 confirmed the said finding and observed that any orders of injunction obtained by the petitioner from the Civil Court are of no avail. In view of these findings fact, the C.R.P. is dismissed.

82. (9) C.R. P. No. 3313/82 The on question here is one of adverse possession The petitioner's father was given ownership certificate by the R.D.O. and on appeal, then was a remand to the Tribunal on 29-8-80 are thereafter the Tribunal held on 27-1-1981 the ownership certificates were liable to be cancelled only on the plea of adverse possession by the landholder alleged extinguishing the rights of protected tenant. On appeal, the same was confirmed on 8- 1 81'only the ground of adverse possession. In view of our decision on point Nos. 1 to 1 particularly, point No. 8, the plea of adverse possession is not permissible. The C.R.P. allowed and the orders of the R.D.O. an D.R.O. are set aside and 'the ownership certificates are held valid. The C.R.P. allowed.

83. Accordingly, we overrule Narsaiah case (1979(1) Andh WR (HC) 23) and approval Chennaiah's case (AIR 1983 Andh Pra 3, (except on point No. 8) and we decide all the nine points as stated above.

84. In the result, W.A. No. 1082/82, W.A No. 25/83. W.P. No. 1402/82, C.R.1 Nos. 2319/79, '5162/79 and 1277/81 are dismissed. C.R.P. No. 9 15/79 is also dismissed subject to the observations made in th judgment. S.A. No. 547/81 is allowed and the suit out of which it arises is dismissed. C.R.1 3313/1982 is allowed. In the circumstance, there will be no order as to costs in any of the matters. Advocate fee Rs.250/- in each case.

85. Immediately after the judgment was pronounced. Sri Subbashan Reddy, the learned counsel for the appellants in W.A Nos. 1082/82 and 2.5/83, made an oral request for leave to appeal to Supreme Court. We do not find any substantial question of law &, general importance involved in these writ appeals. Hence leave declined. However, the appellants shall not be evicted from the properly till 30th November, 1987.

86. Order accordingly.