Andhra HC (Pre-Telangana)
Kalagara Vighneswararao vs Government Of A.P. And Ors. on 5 January, 2006
Equivalent citations: 2006(2)ALD683
Author: R. Subhash Reddy
Bench: R. Subhash Reddy
ORDER R. Subhash Reddy, J.
1. This writ petition is filed, questioning the order of the Government in G.O. Ms. No. 68, Social Welfare (LTR.1) Department, dated 30-7-2001, by which, it has confirmed the order of eviction passed by the Special Deputy Collector, Tribal Welfare, Eluru, in S.R.No.26/78, dated 29-9-1978, in exercise of powers under the A.P. Scheduled Area Land Transfer Regulation 1 of 1959 (for short 'the Regulation 1/1959'), as amended by Regulation 1 of 1970.
2. It is the case of the petitioner, that he is the owner and possessor of the land admeasuring Ac.9.05 guntas, situated in R.S.No.637 of Buttaigudem Village and Mandal, West Godavari District. It is stated, that his late father had purchased the land in question from one Smt. Gundumogula Kusumamba, w/o Laxmanrao, initially by agreement of sale dated 2-5-1969, and, thereafter, obtained registered sale deed in the year 1975.
3. The Special Deputy Collector, Tribal Welfare, Eluru, basing on the report sent by the Special Deputy Tahasildar, Tribal Welfare, Eluru, initiated proceedings for eviction against the late father of the petitioner herein, on the ground, that the transfer of the property in his favour was in violation of the provision under Sub-section (1) of Section 3 of the Regulation 1 of 1959, and, called for explanation from him, why he should not be evicted from the land in question. Late father of the petitioner responded to the show-cause notice and filed explanation. The Special Deputy Collector, Tribal Welfare, Eluru, ordered for eviction, by order 29-9-1978 passed in S.R.No.26/78. As against the same, an appeal was preferred before the Agent to Government, and, the same was also confirmed, on further revision of the petitioner, by the Government. In the impugned order, the revisional authority has observed, that the agreement of sale dated 2-5-1969 is not valid one, inasmuch as the same was not registered. Further, making reference to the registered sale deed, which was executed on 24-6-1975, the revisional authority recorded the finding that the transaction is hit by the provision under Section 3(1)(a) of the Regulation 1 of 1959.
4. It is the case of the petitioner, that initially purchase was made and agreement of sale was entered into on 2-5-1969, and he was inducted into actual possession of the same. It is his further case, that subsequently, registered sale deed was obtained on 24-6-1975.
5. It is submitted by Sri P.R.K. Amarendra Kumar, learned Counsel appearing for the petitioner, that as much as the purchase was on 2-5-1969 from non tribal, as such, the transfer was not in violation of the Regulation 1 of 1959, as amended by Regulation 1 of 1970. It is further submitted, that prohibition of transfer between two non tribals came into force with effect from 3-2-1970; as such, it is submitted, inspite of the same, eviction order was passed by the primary authority. It is the case of the learned Counsel, that agreement of sale is made compulsory for registration with effect from 1-4-1999, in view of the State amendment to the Registration Act, by amending Act 4 of 1999. As such, it is submitted, that rejection of revision petition by the Government, only on the ground that the agreement was not registered, is also not sustainable under law. The learned Counsel has placed reliance on the judgment of the Full Bench of this Court, in the case of Gaddam Narasa Reddy v. Special Deputy Collector, Adilabad ; as upheld by the Apex Court in the case of Dy. Collector v. S. Venkata Ramanaiah .
6. On the other hand, it is submitted by the learned Government Pleader, that originally the fifth respondent-tribal was the owner of the said property, and, the same was transferred by way of lease to one Sri Karatam Rayudu, who in turn, transferred to his daughter, by name, Smt. Lakshmi Narasayamma as 'Pasupukumkuma', from whom, one Sri G. Kusumamba had purchased it, and, sold to the father of the petitioner. As such, it is submitted, that the very lease at the first instance itself is in violation to the Regulations. In that view of the matter, there are no grounds to interfere with the order passed by the Special Deputy Collector, as confirmed by the revision authority Government.
7. Heard the learned Counsel for the petitioner, and, the learned Government Pleader, at length, and, perused the order of eviction passed by the primary authority, as confirmed by the appellate and revisional authorities.
8. At first instance, the primary authority had passed the order, by issuing notice in Form-E under Rule 7(2) of the Rules framed under the Regulations. In the said notice, there was no reference to any of the earlier transfers alleged to have been made by the tribal by way of lease in the year 1924, or, subsequent transfer in the year 1954. In the said show-cause notice, petitioner was called upon to explain why he should not be ejected from the schedule property, on the ground, that transfer made in his favour was in violation of the provision under Sub-section (1) of Section 3 of the Regulation 1 of 1959. With reference to the said show-cause notice, late father of the petitioner had filed explanation, claiming purchase from non-tribal, G. Kusumamba, by agreement of sale on 2-5-1969. It is not disputed by the learned Government Pleader, that so far transfer of land in favour of the petitioner is concerned, there is no direct transfer from any tribal, but the same is by way of registered sale deed, preceded by agreement of sale, from one G. Kusumamba, a non-tribal. It is now well settled by the authoritative pronouncement of this Court, in the case of Gaddam Narasareddy (supra), that transfer of land from tribal was prohibited from 3-2-1970. This Court has held in the above referred judgment, that prohibition is prospective in operation and not retrospective. I have perused the copy of registered sale deed dated 14-9-1975. It makes reference to the agreement of sale dated 2-5-1969.
9. Section 2(g) of the Regulation 1 of 1959 defines 'transfer' as follows :
'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 in respect of such mortgage, lease, sale, gift, exchange or other dealing.
10. From the above said definition, it is very clear, that a contract relating to property is also 'transfer' for the purpose of this Regulation. In that view of the matter, in this case, the transfer is deemed to have been made on 2-5-1969, when agreement of sale was entered into and, on 14-9-1975, registered sale deed was obtained. As much as purchase in favour of the petitioner from non-tribal was on 2-5-1969, the said transfer is not hit by Regulation 1 of 1959, or, as amended by Regulation 1 of 1970. Further it is to be noted, that the earlier transfers were not the subject-matter of scrutiny, and, transfer, which was made in the year 1969 in favour of the petitioner is, before prohibition came into force. Further, the revisional authority had rejected the plea of the petitioner while examining the validity of transfer only on the ground, that agreement of sale dated 2-5-1969 was not registered one. So far agreement of sale relating to immovable properties is concerned, at that point of time, the registration was not compulsory. Only by virtue of State amendment, by amending Act 4 of 1999, agreement of sale relating to immovable property is made compulsory with effect from 1-4-1999. In that view of the matter, the only reason assigned by the revisional authority is also not sustainable under law. As much as the earlier transfer is not the subject-matter of scrutiny, and the parties to the documents are also not the parties to the proceedings, and, further, the sale deed obtained by the petitioner was in the year 1969; in that view of the matter, the order of eviction passed by the primary authority is not sustainable under law. Further, it is also to be noted, that the limited scope of jurisdiction conferred on the authority under Regulation 1 of 1959, as amended by Regulation 1 of 1970 is only to see whether transfer was made after regulations have came into force in violation of prohibitory clauses. As evident from the definition under Section 2(g) of the Regulation, a contract relating to property is also a transfer, in that view of the matter, the order of eviction passed by the primary authority, as confirmed by the revisional authority is fit to be set aside.
11. For the foregoing reasons, the writ petition is allowed, and, the order of the Special Deputy Collector, Tribal Welfare, Eluru, dated 29-9-1978 passed in Sr.No.26/ 78, as confirmed by the appellate authority and revisional authority, is hereby set aside. No order as to costs.