Holding

A protected tenant cannot be dispossessed or have the tenanted land alienated without first being offered the right to purchase, rendering the Association's claim invalid and mandating restoration of possession to the tenants.

Summary

The appellants, Kotaiyan and others, were recognized as protected tenants of agricultural lands originally held by Rev. Rutar Ford Padri and Vandru Padri. The lands were later transferred to the Property Association of Baptist Churches (Pvt.) Ltd. (the Association) without offering the tenants a first right of purchase as required by the Andhra Pradesh (Tenancy & Agricultural Lands) Act, 1950. The Association served a notice under section 19(2) terminating the tenancy and obtained symbolic possession through the Tehsildar, which the appellants contested, asserting their protected tenant rights. The Supreme Court examined the statutory provisions, particularly sections 38(0) and 38(E), which prohibit alienation of tenanted land without first offering it to the protected tenant and provide for restoration of possession if dispossessed illegally. Finding that the Association had no valid claim and that the termination notice was ineffective, the Court reversed the lower courts' orders, directing the Tehsildar to restore possession to the appellants and ordering the Association to pay costs.

Issues considered

The applicability of the first‑right‑to‑purchase provision under section 38(0) of the A.P. Tenancy & Agricultural Lands Act to the transfer of land to the Association.
Whether the notice under section 19(2) validly terminated the protected tenancy of the appellants.
Whether the Association could obtain symbolic possession of the land despite the appellants' protected tenant status.
The effect of the protected tenant's right to restoration of possession under section 38(E) and its explanation.

Legislation cited

Andhra Pradesh (Tenancy & Agricultural Lands) Act, 1950s. 19, s. 28, s. 32, s. 34, s. 37, s. 38(D), s. 38(E), s. 5

Subjects

protected tenantfirst right of purchaseland alienationtenancy terminationsymbolic possessionland reformAndhra Pradesh Tenancy Act

Judgment

A KOTAIAN AND ANR.
v.
PROPERTY ASSOCIATION OF BAPTIST CHURCHES
(PVT.) LTD.

JULY 21, 1989
B
[G.L. OZA, S. NATARAJAN AND K. JAGANNATHA
SHETIY, JJ.]

A.P. (T.A.) Tenancy & Agricultural Lands Act, 1950: Sections
8, 19, 28, 32, 38(D) and 38(£)-Protected Tenant-Right to become ~ -
C owner-Termination of Tenancy-Dispossession of-Land holders
prohibited from alienating the tenanted land to their parties-First offer
must be given to protected tenant-Alienation in contravention is illegal.

The appellants were in possession of certain agricultural lands as
tenants. Rev. Rutar Ford Padri and Vandru Padri were their landlords
D who had left the country long ago. But it was alleged that the land was
purchased for the benefit of American Baptist Formation Society and
the respondents claim to be the Property Association of the Baptist
Chun-hes (Pvt.) Ltd. ("The Association"). The land stood transferred
to the Association as per order made by the Madras High Court in
nHnpany petition. The Association thus claimed to be the owner and
E also in defacto possession of the lands.

In 1975 the Association issued notice u1s 19(2) of the Act terminat-
ing the appellant's tenancy on May 31, 1975. The appellants received ..
the said notice but did not send any reply. Thereafter the Association
moved the Tehsildar u/ss 19(2) read with 28(1) of the Act for the
F symbolic possession of the lands from the appellants. Before the
Tehsildar, appellants denied all the allegations and asserted that they
were protected tenants. On Nov., 1977 Tehsildar made an order accept-
ing the contentions of the Association holding that the appellants had no
right since their tenancy stood terminated. Appellants appeal was also
dismissell by the Joint Collector, Warrangal. The appellants then
G approached the High Court by way ofrevision petition u/s 91 of the Act.
The High Court dismissed the revision. Thereafter appellants came up
before the Supreme Court by way of Special Leave to appeal.

Accepting the appeal, this Court,

H HELD: That the contentions of the Association that it is in
472
--1
::~:,;a;
·- ..~'
"""-

KOTAIAN v. BAPTJSFCHURCHES [SHETIY, J.J 473

det'acto possession and entitled to symbolic possession is unavailable
A
arid indeed unacceptable, Firstly, there can not be any dispute in this

~ case. about the protected tenancy rights of the appellants. The revenue
documents like Pananipatrika and final record of Agric!lltural tenancy
clearly establish thatthe appellants were recognised as protected ten-
-fr
ants. Secondly, it was not the case of the Association that Rev, Rutar
Ford Padri and Vandru Padri first offered the land to the ·appellants B
before they transferred the same to the Association. The Court also
observed that the Association cannot be permitted to take advantage of
its high handedness. It is an exploitation of the exploited. It is an op-
pression of the oppressed. The Conrt cannot countenance it. [482F-G; 483B]

Reversing the impugned orders the Court directed the Tehsildar
to put the appellants in possession of the agricultural land in question c
within one month and ordered that the Association mnst pay the costs of
the appellants quantified at Rs.20,000. [483C-D] ·

CIVIL APPELLATE JURISDICTION: Civil Appeal No. 2098
of 1980. D

From the Judgment and Order dated 20.6.1980 of the Andhra
Pradesh High Court in Civil Revision Petition No. 736 of 1980.
·} K. Madhava Reddy, A.D.N. Rao, and A.Subba Rao for the
Appellant. E

.. U.R. Lalit, C.P. Sar.thy and A.T.M. Sampath for the
Respondent.

The Judgment of the Court was delivered by
F
K. JAGANNATHA SHETTY, J. This appeal with leave arising
out of a judgment of the High Court of Andhra Pradesh illustrates how
the "land reform" and the progressive policy of "land to the tiller"
could be defeated by vested interests and lukewarm attitude of statu-
tory authorities.
G
The relevant facts.

The appellants were in possession of certain agricultural lands as
tenants. After coming into force of the A.P. (T.A.) Tenancy & Ag-
ricultural Lands Act, 1950 ('The Act"), they were recognised as pro-
tected tenants. A "protected tenant" means that he is protected from H
474 · SUPREME COURT REPORTS [1989) 3 S.C.R.

eviction. If he is dispossessed, the Tehsildar suo motu or on applica-
A
tion shall put him in possession. Rev. Rutar Ford Padri and Vundru
Padri were admittedly their landlords. The appellants had no problem
with them. It seems that they had left the country long long ago. The
first respondent claims to be the Property Association of the Baptists
Churches (Pvt.) Ltd. ("The Association"). The Association does not
B dispute that the lands were originally purchased by Rev. Rutar Ford
Padri and Vandru Padri but it says that they purchased for the benefit
of American Baptish Formation Society. The lands stood transferred
to the Association as per order made by the Madras High Court in
company petition Nos. 109 and 110 of 1973. The Association thus
claims to be the owner and also says that it is in defacto possession of
the lands.
c
In 1976, the Association issued notice under sec. 19(2) of the Act
terminating the appellants' tenancy. In the notice, it was alleged that
the appellants were self styled tenants. They have. not paid the rents
for more than three decades. They were working off and on as casual
D labourers. They were being paid for their services. There was no other
relationship between them and the Association. It was further alleged
that the appellants sub-divided the lands and alienated bit by bit to
third parties and thereby denied title of the landholder. They have
been, therefore, treated as trespassers.

E On May 31, 1976, the appellants received the said notice but did
not send anyseply. Thereafter the Association moved the Tehsifdar
Jangaon under secs. 19(2) read with 28(1) of the Act seeking symbolic
possession of the lands from the appellants. It is interesting to note
•
some of the averments made in that application:

F "Neither of the above persons had possession during j
the statutory period under sec. 34 of the Tenancy Act to
claim protected tenancy over the said lands. The said
persons by taking undue advantage of the similarity of the
names appearing in the Tenancy Registers with respect to
the said lands .are asserting fictitious and imaginery rights
G of Protected Tenancy in the above lands.. It is submitted
that without any basis or foundation and are made without
any notice to the then landlords and even if it is to assume
that the said persons are the protected tenants with respect
to the above lands, their so called rights have been duly and
legally terminated under sec. 19 of the Tenancy Act by
H giving them notices for the Statutory period of six months
KOTAIAN v. BAPTIST CHURCHES [SHEITY, J.] 475

which they have received on 31.5.1976 but failed to give
A
reply to it. The termination of the Protected Tenancy
Rights is irrevocable and after the expiry of the statutory
period from the said date of receipt of the notice, they are
not entitled to claim any rights whatsoever much less Pro-
tected Tenancy Rights on the above lands."
B
xx xx xx xx xx xx

"In all the above lands the appellant is having his own
cultivation for the benefit of the said schools and hostels.
Some lands are cultivated by the students themselves under
the "Cow-Boy" System. All the above lands are in physical
possession of the applicant herein. But to overcome the
c
legal implications, the applicants are claiming symbolic
possession pursuant to termination notice."

Before the Tehsildar, the appellants denied all the above allega-
tions. They did not recognise the Association as their landlord. They D
asserted that they were protected tenants entitled to remain in posses-
sion of the lands.

On November 28, 1977, the Tehsildar made an order accepting
the contentions of the Association. The Association was held to be the
owner of the lands. The appellants were held to have no right since E
their tenancy was duly terminated.

.. The appellants appeared to the Joint Collector, Warrangal, who
dismissed the appeal with the following observations:

"It is evident from records that the appellants are not_ F
in possession of the suit lands whereas the respondent
Association is possessing and enjoying it. The suit land is
covered by structures like Mission School, residential
quarters, hostels for students, etc. and the rest of the land
is in possession and occupation of respondent-Associa-
tion and some third persons. Since the appellants are G
adversely out of possession, their rights also stands
extinguished under sec. 27 of the I.imitation Act .....
Since the facts of non-payment of rents, assignment of in-
terest in the land personally which--constitute the grounds
for respondent Association to terminate the tenancy under
sec. 19 of the Act are proved before the lower court and H
476 SUPREME COURT REPORTS [1989] 3 S.C.R.

A neither rebutted in this appeal nor the findings of the lower
court on these points are challenged, the appeal does not
merit any consideration."

The appellants then approached the High Court with revision peti-
B tion under sec. 91 of the Act. The High Court did not do anything
better except blessing the observations made by the Collector. The
High Court observed that the appellants were not cultivating the lands
personally, They did not dispute non-payment of rent. Not denied
assignment of interest in the land to third parties. So Stating, the
revision was dismissed. I
~ .
I
C The contentions.

Counsel for the appellants argued that Rutar Ford Padri and
Vundru Padri were the landholders under whom the appellants were
protected tenants. That has been so recorded in the final record of
D Agricultural tenancy. The appellants were not parties to the company
petition Nos. 109 and 110 of 1973 in the High Court of Madras. Nor
they had any notice of that proceedings. Since they were protected
tenants, the landholders had no right to transfer the lands to the As-
sociation without first offering the same to them. It is a mandatory
requirement under the Act. The alienation to the Association even if
true, was in contravention of the statute and therefore, invalid and
E
unenforceable. The appellants could not pay the rent to Rutar Ford
Padri and Vundru Padri because their whereabouts were not known.
The Association has adopted illegitimate means to dispossess the
appellants by setting students against them. The action of the Associa- •
tion was illegal and an offence punishable under the Act.
F
With these and other contentions, it was urged that the posses-
sion of lands should be restored to the appellants.

Counsel for the Association on the other hand sought to justify
the orders under appeal.
G
We heard counsel for both the parties. We have carefully
perused the material on record.

The relevant statutory provisions:

1-1 Section 5 of the Act reads:
KOTAIAN v. BAPTIST CHURCHES [SHETTY, J.] 477

"5. Persons deemed to be tenants: A person lawfully A
cultivating any land belonging to another person shall be
deemed to be a tenant if such land is not cultivated person-
ally by the landholder and if such person is not-

(a) a member of the landholder's family; or
B
(b) a servant on wages payable in cash or kind, but
not in crop share or a hired labourer cultivating the land
'
under the personnel supervision of the landholder or any
member of the landholder's family; or
. ~ ,

(c) a mortgagee in possession.
c
Provided that if upon an application made by the
y landholder within one year from the commencement of this
Act to the Tehsildar within whose jurisdiction the land is
situated-
D
(a) The Tehsildar declares that such person is not a
'tenant and his decision is not reversed on appeal or revi-
sion, or

(b) ,The Tehsildar rufuses to make such declaration
but his decision is reverted on appeal or revision such E
person, shall not be a tenant."

... Section 19 prnvides for termination of tenancy and so far as
material it is as follows:

"19. Termination of tenancy; F

19( 1) XXJi: XXJi: xxx XXJi:

19(2} The landholder may terminate a tenancy on the
grounds tfiat the tenant-
G
(a)(i} has failed to pay in' any year, within fifteen
days from the day fixed under the Andhra Pradesh
(Te1engana\ A\rea) Lam;! Revenue Act 1317 F} for the pay-
ment of the last instalment 0f land revenue due for the iand
con·cerned in that year,. the.rent of such land for the year;
or H
478 SUPREME COURT REPORTS [1989] 3 S.C.R.

(ii) xxx xxx xxx xxx

(iii) xxx xxx xxx xxx

(b) has done any act which is destructive or perma-
nently Injurious to the land; or
B
(c) has sub-divided the land; or

(d) has sub-let the land or failed to cultivate the land;

or
(e) personally, or has assigned any interest therein; t •
I
c
(f) has used such land for a purpose other than 'f
agriculture;

Provided that no tenancy of any land by a tenant shall
D be terminated on any of the grounds mentioned in this
.sub-section unless the landholder gives six months' notice
in writing intimating his decision to terminate the tenancy
and the grounds for such termination."

Section 28 provides relief against termination of tenancy for non- ~-
E payment ofrent.

Section 32 provides for taxing possession of tenanted lands:
...
"32. Procedure of taking possession:

F (1) A tenant of an agricultural labourer _or artisan en-
titled to possession of any land or dwelling house under any l
of the provisions of this Act may apply to the Tehsitdar in
writing in the prescribed form for such possession.

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

(3) On receipt of an application under sub-sec. (1) of
sub-section (2), the Tehsitdar shall, after holding an en-
quiry pass such order thereon as he deems fit.
KOfA!AN v. BAPTIST CHURCHES [SHETI'Y, J.] 479

. (4) Any person taking possession of any land or A
dwelling house otherwise than in accordance with the pro-
visions of sub-section (1) or sub-section (2) as the case may
be, shall, without prejudice to his liability to the penalty
provided in sec. 96, he liable to forfeiture of the crops, if
any, grown on the land to the payment Of such costs as may
be awarded by the Tehsildar or by the Collector on appeal B
from the Tehsildar."

It will be convenient at this stage to read four other sections,
namely, secs. 34, 37, 38(D) and 38(E). They are as follows:

-~ Sec. 34, omitting immaterial words provides: c
"Protected tenants: (1) A person shall, subject to the
provisions of sub-secs. (2) and (3) be deemed to be a Pro-
tected Tenant in respect of land, if he-

(a) has held such land as a tenant continuously D

(i) for a period of not less than six years, being a
period wholly included in the Fasli years 1342 to 1352 (both
years indusive) or

(ii) for a period of not less than six years immediately E
preceding the 1st day ofJanuary, 1948 or

(iii) for a period of not less than six years commenc-
ing not earlier than the 1st day of Fasli year 1353 (6th
October, 1943) and completed before the commencement
of this Act, and F

(b) has cultivated such land personally during such
period."

Section 37 is in these terms:
G
"37. Persons not entitled under sec. 34 deemed in
certain circumstances to be protected tenants:

(1) Every person who at the commencement of this
Act holds as tenant any land in respect of which no person
is deemed to be a protected tenant under sec. 34, shall, on H
480 SUPREME COURT REPORTS [1989] 3 S.C.R.

A the expiration of one year from such commencement or,
the final rejection of all claims by any other person to be
deemed under sec. 34 to be a protected tenant in respect of
such land, whichever is later, be deemed to be a protected
tenant in respect of such land unless the landholder has
before such expiration or final rejection as aforesaid made
B an application in the pescribed form to the Tehsildar for a
declaration that such person is not a protected tenant."
(Emphasis Supplied)

Section 38(0) reads:

c "Procedure when landholder intends to sell land to a pro-
tected tenant:
~
'
-
(1) If the landholder at any time intends to sell the
land held by the protected tenant, he shall give a notice in
writing of his intention to such protected tenant and offer
D to sell the land to him. In case the protected tenant intends
to purchase the land, he shall intimate in writing his readi-
ness to do so within six ·nonths, from the date of the receipt
of such notice. If there is any dispute about the reasonable
price payable by the protected tenant for the land, the
provisions of sub-section (3) to (8) of sec. 38 shall apply
E mutatis mutandis.

(2) If the protected tenant does not exercise the right
of purchase in response to the notice given to him by the
landholder under sub-sec. (1) such protected tenant shall
forfeit his right of purchase of the same and the landholder
F shall be entitled to sell such land to any other person. On
such a purchase by any other person, the protected tenant J
shall forfeit all his rights in the land save those provided for
in sec. 41."

Section 38(E) provides:
G
"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, judg-
H ment, decree, contract or grant to the contrary, the
KOTAIAN v. BAPTIST CHURCHES ISHEITY, J.l 481

Government may, by notification in the Andhra Pradesh A
Gazette, declare in respect of any area and from such date
as may be specified therein, that ownership of a)! lands held
by protected tenants which they are entitled to purchase
from their landholder in such area under any provision of
this chapter shall, subject to the condition laid down in
8
sub-section (7) of sec. 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;

-·f Provided that where in respect of any such land any
proceeding under sec. 19 or sec. 32 or sec. 44 is pending on C
'y 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 proceed-
mg.
D
Explanation: If a protected tenant, on account of his
• being dispossessed otherwise than in the manner and by
order of the Tehsildar as provided in sec. 32, is not in
possession of the land on the date of the notification issued
•
hereunder, then for the purpose of the sub-section, such
protected tenant shall, notwithstanding any judgment, E
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 Tehsildar shall notwithstanding anything
contained in the said section 32, either suu motu or on the
application of the protected tenant hold a summary F
enquiry, and direct that such land in possession of the land-
holder or any person claiming through or under him in that
area, shall be taken from the possession of th~ landholder
or such person, as the case may be, and shall be restored to
the protected tenant and the provisions of this section shall G
apply thereto in every respect as if the protected tenant has
held the land on the date of such notification."

This then is the main structure of the Act.

In sum ........ .
H
. 482 SUPREME COURT REPORTS [1989] 3 S.C.R.

A (i) The protected tenant has a right to become full owner of the ~
lapds in his possession. He becomes the owner when the Government ~

issues a notification under section 38(E). We are told that the Govern-
ment had issued such a notification on October I, 1973, relating to the
District where the lands in question are situated. It was about three
years earlier to termination of the appellants' tenancy by the Associa·
B tion. If the appellants had a right to become owners of the tenanted ~
lands, the question of terminating their tenancy would not arise.

(ii) The protected tenant cannot be dispossessed illegally by the
landlord or anybody else. If so dispossessed, the Tahsildar either suo
motu or on application must hold a summary inquiry, and direct that
the land be restored to the protected tenant. That is the mandate of
t-
c section 38(E) and the Explanation thereof. '1
(iii) The landholder by himself cannot dispossess the protected
tenant even if the tenancy is terminated in accordance with the law.
The landholder will have to take recourse to sec. 32. He must
[) approach the Tahsildar to hold an enquiry and pass such order as he ~
deems fit.

(iv) Section 38(0) prohibits the landholder from alienating the

E
tenanted land to third parties. If the landholder intends to sell the
land, he must give notice in writing of his intention to the protected
tenant. The first offer111ust be given to the protected tenant. It is only
~ -
when the protected tenant does not exercise the right to purchase, the
landholder could sell the land to this parties. The alienation made in
contravention of these provisions has no legal effect.

So return to the case. The.contention of the Association that it is
F in defacto possession and entitled to symbolic possession is unavailable
l
and indeed, unnacceptable. Firstly, there cannot be any dispute in this
case about the protected tenancy rights of the appellants. The revenue
documents like Pananipatrika and final record of agricultural tenancy
clearly establish that the appellants were recognised as protected
tenants. Secondly, it was not the case of the Association that Rev.
G Rutar Ford Padri and Vundru Padri first offered the land to the appel·
!ants before they transferred the same to the Association. Therefore,
in the light of the statutory provisions to which we have called atten·
tion, the appellants title cannot be said to be legitimate.

Counsel for the Association also appeared to have anticipated
Ii this inevitable result. He made an impassioned appeal for leave to
KOTAJAN v. BAPTIST CHURCHES [SHETIY, J.] 483

withdraw the original petition filed before the Tehsildar. He perhaps A
wanted to give quietus to these proceedings, leaving the appellants
free to agitate their rights elsewhere.

But we cannot agree with him. We cannot also accede to his
request. The Association cannot be permitted to take advantage of its B
high handedness. It is an exploitation of the exploited. It is an oppres-
sion of the oppressed. The Court cannot contenance it.

In the result, we allow the appeals. In reversal of the impugned
orders, we direct the Tehsildar to put the appellants in possession of
the agricultural lands in question within one month. The appellants
however, are not interested in taking possession of theirlands covered C
with buildings of the Association. They want to be fair in spite of their
tribulation. The lands covered with the buildings may, therefore, be
excluded.

The Association must pay the costs of the appellants which we D
quantify of Rs.20,000.

The Collector is directed to ensure that this order is faithfully
complied with by the concerned.

R.N.J. Appeal allowed.
E
\