Andhra HC (Pre-Telangana)
Kakarla Nageswara Rao And Ors. vs Government Of A.P. Rep. By Its Secretary ... on 25 July, 1995
Equivalent citations: 1995(3)ALT164, 1995 A I H C 6615, (1995) 2 LS 317 (1995) 2 APLJ 350, (1995) 2 APLJ 350
ORDER D. Reddeppa Reddy, J.
1. These four writ petitions arise under the Andhra Pradesh Scheduled Areas Land Transfer Regulation, 1959 (for short "the Regulation") as amended from time to time. It would be convenient to dispose them of together since common questions arise in all the matters.
2. The material facts are: All the petitioners are non-tribals. They purchased lands situated in the Agency tracts from non-tribals through sale deeds registered in the year 1978. On complaints filed by the Special Deputy Tahsildar, Tribal Welfare No. 1, Eluru, the third respondent viz., the Agency Divisional Officer-cwm-Special Deputy Collector, Kota Ramachandrapuram, West Godavari District, Eluru, initiated proceedings for ejectment of the petitioners under Section 3(2) a) of the Regulation. After due enquiry, he passed orders of ejectment on 301 September, 1982. Aggrieved by the same, the petitioners preferred appeals to the second respondent viz., the Agent to the Government, West Godavari District. The said appeals were dismissed by separate orders dated 4th day of November, 1983. They carried the matter through a Counsel to the first respondent viz., the Government of Andhra Pradesh by way of revision petitions under Section 6; but they were also dismissed by proceedings dated 4-5-1984 and 14-5-1984. Review petitions filed nearly ten years thereafter on the ground that the proceedings dated 4-5-1984 and 14-5-1984 were not communicated to the petitioners, were also rejected as not maintainable by the impugned proceedings dated 28th day of November, 1994.
3. In the previous round of litigation i.e., in Writ Petition Nos. 12021, 12054, 12065 and 12066 of 1994, it was admitted that the petitioners were dispossessed from the subject lands. However, in the affidavits filed in support of the present writ petitions, it is stated that the petitioners have raised cashew and tobacco crops. When they came up for admission on the 25th day of January, 1995, this Court, while giving time to the learned Government Pleader for obtaining instructions, granted interim directions to the respondents to permit the petitioners to cultivate the subject lands for a period of eight weeks which were later extended. On behalf of the respondents, counter affidavit along with a petition to vacate interim directions has been filed in each case.
4. Learned Counsel for the petitioners raises four principal contentions: They are (1) The transfer in favour of the petitioners is not hit by the provisions of Section 3(1) (a) of the Regulation as they were put in possession of the subject lands pursuant to the agreements of sale dated 15-4-1969 and 15-7-1969.
(2) The petitioners being small farmers are entitled to the benefit envisaged under G.O.Ms.No. 129, Social Welfare Department, dated 13-8-1979.
(3) The proceedings of the first respondent dated 4-5-1984 and 14-5-1984, rejecting the petitioners' revision petitions without giving opportunity of being heard to them are unsustainable in view of proviso to Section 6.
(4) The proceedings of the first respondent dated 4-5-1984 and 14-5-1984 were not communicated to the petitioners and they came to know of the same only in the year 1994 when they were sought to be ejected. Hence, there are no laches on their part in filing the present writ petitions.
5. The first contention centres around the provisons of Section 3(1) (a) and the definition of transfer as defined in Section 2(g). Section 3(1) (a) reads:
"3. TRANSFER OF IMMOVABLE PROPERTY BY A MEMBER OF A SCHEDULED TRIBE:- (1) (a) Notwithstanding anything in any enactment, rule or law in force in the Agency tracts, any transfer of immovable property situated in the Agency tracts by a person, whether or not such person is a member of a Scheduled Tribe, shall be absolutely null and void, unless such transfer is made in favour of a person, who is a member of a Scheduled Tribe or a society registered or deemed to be registered under the Andhra Pradesh Co-operative Societies Act, 1964 (Act 7 of 1964) which is composed solely of members of the Scheduled Tribes".
It came into force with effect from 3-2-1970. Admittedly, the petitioners are nontribals and they purchased the subject lands from non-tribals through registered sale deeds dated 22-5-1978,23-9-1978, 21-9-1978 and 20-5-1978. Thus, if the date of execution of sale deeds is taken as the date of transfer, there can be no objection to declare the said transfer as null and void. Learned Counsel for the petitioners does not dispute this legal position. But, his contention is that the petitioners came into possession of the subject lands prior to 3-2-1970 by virtue of agreements of sale dated 15-4-1969 and 15-7-1969. Therefore, in view of the definition of "transfer" in Section 2(g), the transfer in favour of the petitioners dates back to the date of agreements of sale. To appreciate this contention of his, it is necessary to refer to the meaning of "transfer". It reads:
" "Transfer" means mortgage with or without possession, lease, sale, gift, exchange or any other dealing with immovable property, not being a testamentary disposition and includes a charge on such property or a contract relating to such property or a contract relating to such property in respect of such mortgage, lease, gift, sale, exchange or other dealing". (Section 2(g)).
It is clear from the plain reading of the above that 'transfer' includes a contract to sell. Thus, if the agreements of sale dated 15-4-1969 and 17-5-1969 set up by the petitioners are accepted as genuine, it must be held that the transfer in favour of the petitioners is not hit by Section 3(1) (a) of the Regulation. But, the primary authority as well as the appellate authority refused to accept the plea of the petitioners that the registered sale deeds were preceded by agreements of sale. The Primary authority viz., the third respondent rejected this plea on the ground that the alleged agreements of sale have not at all been produced before him. The appellate authority, viz., the second respondent rejected the said plea on three grounds -
(1) It is recited in the registered sale deeds that the petitioners were put in possession of the subject lands on the date of execution of the sale deeds;
(2) There is no reference to the alleged agreements of sale in the sale deeds; and (3) There is no evidence in proof of either the petitioners' possession or their paying land revenue from 1969 to 1978.
6. These reasons, in my considered view, are sufficient enough to discard the plea of the petitioners. Therefore, the first contention must fail.
7. The second contention too did not find favour with respondents 2 and 3. The third respondent rejected this contention on the ground that the provisions of a Government Order cannot override the statutory provisions. The second respondent rejected this plea on the ground that the petitioner in Writ Petition No. 1192 of 1995 owns more man 10 acres and the petitioners in other writ petitions failed to adduce any evidence in proof of their plea that they are small farmers. No such plea is raised in any of the writ petitions. Not even a copy of CO.Ms.No. 129, Social Welfare C partment, dated 13-8-1979 is filed before this Court. In the circumstances, I find it difficult to accept the second contention. It is, accordingly, rejected.
8. It is necessary to refer to the provisions of Section 6 of the Regulation for better appreciation of the third contention. It reads:
"6. Revision:- The State Government may revise any decree or order passed by the Agent, the Agency Divisional Officer or any other prescribed officer under this Regulation:
Provided that this power shall be exercised only after due notice to the parties affected by the decree or order and after giving them a reasonable opportunity of being heard".
9. Learned Counsel for the petitioners, placing reliance on proviso to the section, submits that the first respondent erred in rejecting the revision petitions without affording opportunity of being heard to the petitioners or their Counsel. This submission, in my considered view, is fallacious. These are not the cases where the first respondent in exercise of its power under Section 6 revised the orders of the 2nd respondent and passed orders adverse to the petitioners. On the other hand, these are cases where the first respondent affirmed the orders of the 2nd respondent and refused to revise the same. No doubt, Section 6 confers power of revision on the State Government. However, proviso to Section 6 will come into play only when the State Government decides to revise any decree or order by the Agent, the Agency Divisional Officer or any other prescribed authority. According to Black's Law Dictionary, the word 'revise' means:
"To review and re-examine for correction. To go over a thing for the purpose of amending, correcting, rearranging, or otherwise improving it; as, to revise statutes, or a judgment".
In the present cases, the first respondent did not make any correction or amendment to the orders of the second respondent A combined reading of Section 6 and proviso thereto makes it clear that the question of affording of opportunity of being heard will arise only when the State Government decides to alter, amend, correct, modify or reverse the decree or order of the Agent or the Agency Divisional Officer, as the case may be. To be more specific, proviso to Section 6 does not contemplate giving opportunity of being heard when the State Government affirms the decree or order sought to be revised. In the circumstances, the petitioners have no case to complain of violation of proviso to Section 6. Therefore, this contention also must fail.
10. It is strensously urged before me that the proceedings of the first respondent dated 4-5-1984 and 14-5-1984 were not communicated to the petitioners. I am unable to accept this contention. It is clear from those proceedings that they were communicated to the petitioners' Counsel Sri A. Rangacharyulu.lt is well settled that communication of an order to the Counsel is communication to the party. No affidavit has been filed by the petitioners' Counsel Sri A. Rangacharyulu stating that those orders were not communicated to him. In the circumstances, I find no substance in the fourth contention. It is, accordingly, rejected.
11. Though the writ petitions have been filed questioning the proceedings of the first respondent dated 28-11-1994 rejecting the review petitions filed by the petitioners as not maintainable, it is not urged before me that the Regulation confers power of review on the State Government. On perusal of the Regulation, I find that no such power is conferred on the State Government.
12. As already noted, it was admitted by the petitioners in the previous round of litigation that they were dispossessed in the year 1994. In the counter affidavit filed on behalf of the respondents, it is stated that possession of the subject lands was taken over on 4-7-1994. In V. Somalamma v. Dy. Collector, Tribal Welfare, 1993(1) ALT 403 (F.B.) a Full Bench of this Court observed that all laws made applicable to the Scheduled areas "indicate an anxiety to safeguard the interest of the tribals in the scheduled areas and to see that the land in the scheduled areas should be in possession of tribals only". In view of this, I see no justification to reinduct the petitioners, who are admittedly non-tribals, into possession of the subject lands at this distance of time.
13. Thus, viewed from any angle, there are no merits in the writ petitions. They are, accordingly, dismissed. Consequently, the interim directions dated 25-1-1995 permitting the petitioners to cultivate the subject lands shall stand vacated.