Telangana High Court
Dugini Babu vs State Of Telangana on 27 March, 2024
Author: Nagesh Bheemapaka
Bench: Nagesh Bheemapaka
HON'BLE SRI JUSTICE NAGESH BHEEMAPAKA
WRIT PETITION No. 8269 OF 2023
ORDER:
Challenge in this Writ Petition is to the order passed by the 5th respondent - Additional Agent to Government & Project Officer, ITDA, Eturunagaram dated 16.09.2022, which confirmed the order in CMA No. 95 of 2015, dated 07.01.2017. These orders were issued following the directives of Writ Petition No. 30123 of 2022, dated 04.08.2022. A consequential direction is sought to the respondents to allocate petitioner's land in Survey No.9/A, measuring Ac. 0.02 guntas located at Akulavarighanpur Village, Eturunagaram Mandal, Mulugu District.
2. Petitioner claims to be a Scheduled Tribe stated to have purchased the subject land through a valid sale known as Sadabainama on 12.09.2012 from Ersavadla Shankaraiah, who is non-tribal and acquired land in 1998. Following the purchase, his name was duly recorded in revenue records and has been in continuous possession and enjoyment of land since then, facing no interruptions from either private individuals or the government. It is stated petitioner's vendor acquired land from the 12th respondent, a non-tribal. In fact, the subject land is situated in scheduled area, as such, non-tribals do not have 2 rights over land. Despite the same, sons of the 12th respondent, Respondents 13 and 14, illegally dispossessed petitioner from the land in 2013. Based on the complaint regarding illegal encroachment by Respondents 12 to 14, the Special Deputy Collector ruled in favor of petitioner on 29.09.2014, ordering restoration of land from non-tribals. The unofficial respondents, aggrieved with the said order, filed CMA No.95 of 2015, which was dismissed directing the Tahsildar to take custody of the land and assign it to eligible tribes as per rules.
Petitioner is stated to have submitted the representation 25.04.2022 and 12.10.2022 to comply with the order dated 29.09.2014, inaction on which, prompted petitioner to file Writ Petition No. 30123 of 2022. This Court issued an interim direction on 04.08.2022 to consider the representations and issue appropriate orders. Subsequently, vide order impugned, the 5th respondent upheld the earlier orders passed in CMA.No.95 of 2015.
Prior to filing of Writ Petition, the unofficial respondents initiated construction on the petitioner's land. Despite petitioner's request for governmental intervention, construction continued unabated. Upon complaint, the Tahsildar instructed the Mandal Girdawar to conduct a physical inquiry, resulting in a report detailing the illegal construction. 3 Consequently, on 22.08.2022, the Tahsildar ordered formal takeover of land and construction through Panchanama.
Petitioner realized that his counsel mistakenly challenged the orders of the 6th respondent instead of order in CMA No. 95 of 2015; consequently, the earlier Writ Petition was withdrawn.
3. While issuing notice before admission, this Court vide order dated 25.04.2023, directed the respondents to maintain status quo in respect of the subject property.
4. The 5th respondent filed the counter stating that Village Akulavari Ghanapuram falls within scheduled area where land transfer is restricted by Regulation 1 of 1970. According to this regulation, land transfer between non-tribals within agency tracts is null and void. Petitioner claims to have purchased land from Erusavadla Shankaraiah, a non-tribe, under a simple sale deed dated 12.09.2012 who allegedly acquired it from the 12th respondent under a simple sale deed dated 25.06.1998, which violates Section 3(1)(a) of Land Transfer Regulation, 1959, as amended, particularly Regulation 1 of 1970. Consequently, the transfer from the 12th respondent to Shankaraiah in 1998 itself is legally invalid. The order passed in C.M.A.No.95 of 2015 directed the 8th respondent to take possession of land in question under panchnama and assign it 4 to eligible tribes. The said order was confirmed vide impugned order. It is stated, custody of land along with structure thereon, is confirmed to have been taken over by the 8th respondent, which is not disputed. Though petitioner is a tribal, he cannot be entitled to land allotment due to his purchase of Ac.0.02 guntas of land under a simple sale deed in 2012 and his occupation is agriculture. It is argued that petitioner has not exhausted available legal remedies; as per Section 3(3)(a) of the Land Transfer Regulation, 1959, against any order passed by the Additional Agent, a Revision shall lie within two months before the State Government from the date of the said order. Hence, the Writ Petition is deemed premature and should be dismissed on these grounds.
5. The 11th respondent from whom it is claimed petitioner's vendor purchased the property, filed the counter stating that petitioner created fabricated and forged documents with regard to subject land. It is stated, this respondent is in possession of land bearing Survey No. 9/a to an extent of Ac.1.20 guntas at Akulavari Ghanpur Village and he bequeathed the prerty to his sons in 1989. However, revenue authorities, allegedly in collusion with petitioner, recorded entries favoring him in 2013. It is contended that they have peacefully enjoyed possession of their built house without facing 5 any coercive measures. A recent panchanama conducted by the 7th respondent on 22.08.2022 confirmed existence of a house on the disputed land prior to filing the case. They assert that the boundaries mentioned in the alleged fabricated document do not correspond to reality, as the land mentioned in the document has been acquired for the construction of a highway road. The respondent highlights the failure of Revenue Authorities, Project Officer, ITDA and other adjudicating authorities to recognize the alleged unregistered sale deed as null and void. They draw the Court's attention to Section 5-A of the A.P. Rights in Land and Pattadar Pass Books Act, 1971, in support of their argument which reads as under:
" 5-A, Regularization of certain alienations or other transfers of lands:--
(1) Notwithstanding anything contained in this Act, the Transfer of Property Act, 1882, the Registration Act, 1908 or any other law for the time being in force, (where a person is an occupant) by virtue of an alienation or transfer made or effected otherwise than by registered document, the alienee or the transferee may, within such period as may be prescribed, apply to the Mandal Revenue Officer for a certificate declaring that such alienation or transfer is valid.
(2) On receipt of such application, the Mandal Revenue Officer shall after making such enquiry as may be prescribed require the alienee or the transferee to deposit in the office of the Mandal Revenue Officer an amount equal to the registration fees and the stamp duty that would have been payable had the alienation or transfer been effected by a registered document in accordance with the provisions of the Registration Act, 1908, as fixed by the Registering Officer on a reference made to him by the Mandal Revenue Officer on the basis of the value of the property arrived at in such manner as may be prescribed: Provided that the Mandal Revenue Officer shall not require the alienee or the transferee to deposit the amount under this sub-section unless he is satisfied that the alienation or transfer is not in contravention of the provisions of the Andhra Pradesh Land Reforms (Ceiling on Agricultural Holdings) Act, 1973, the Urban Land (Ceiling and Regularization) Act, 1976, the Andhra Pradesh Scheduled 6 Areas Land Transfer Regulation, 1959 and the Andhra Pradesh Assigned Lands (Prohibition of Transfers) Act, 1977 (3) Nothing contained in Sub-section (1) and Sub-section (2) shall be deemed to validate any alienation where such alienation is in contravention of the provisions of the Andhra Pradesh Land Reforms (Ceiling on Agricultural Holdings) Act, 1973, the Urban Land (Ceiling and Regulation) Act, 1976, the Andhra Pradesh Scheduled Areas Land Transfer Regulation, 1959 and the Andhra Pradesh Assigned Land (Prohibition of Transfers) Act, 1977 The Andhra Pradesh Scheduled Areas Land Transfer Regulation Act 1959 (Amendment 1/1970), (LTR 1/70) bans all land transactions between tribals and non-tribals and non-tribals and non-tribals and was legislated with the intent of preventing exploitation of the gullible tribal people by non-tribals The only exceptions are transfers which took place between tribals and non-tribals before December 1, 1963 and between non-tribals and non-tribals before February 3, 1970 From the provided content, it is evident that there was never a valid transaction between the 11th respondent, Shankaraiah of Govindaraopet Village & Mandal, and Mr. Irsavadla, therefore, it can be inferred that the alleged transfer of property did not occur and petitioner was never in possession of the land. Instead, the widow of Respondent No. 13 was in possession, having a tiled house and now attempting to construct a permanent structure.
6. Heard learned Senior Counsel Sri Jalli Kanakaiah on behalf of Sri Narender Jalli, learned counsel for petitioner, learned Government Pleader for Social Welfare and Sri Mahesh Mamindla, learned counsel for Respondents 11.
7. A perusal of the material on record and the averments and counter-averments, it is clear that there are disputed questions of fact. On the other hand, the orders 7 impugned which were passed after through enquiry, directed resumption of land in favour of government. However, since Revision is provided under Section 3(3)(a) of the Land Transfer Regulation, 1959 to the government, against the order of the Additional Agent to the Government, this Court does not wish to go into merits or otherwise of the matter.
8. Therefore, the Writ Petition is disposed of directing petitioner to avail the remedy of Appeal before the government under Section 3(3)(a) of the Land Transfer Regulations, 1959 within a period of two months from the date of receipt of a copy of this order. The period exhausted in filing the Writ Petition shall be given credit to. Needless to say that on such Revision being filed, as stated supra, the 2nd respondent shall consider the same in accordance with law and pass appropriate orders within two months thereafter. No costs.
9. Consequently, the miscellaneous Applications, if any shall stand closed.
--------------------------------------
NAGESH BHEEMAPAKA, J 27th March 2024 ksld