Telangana High Court
Atram Sudhakar vs The Special Agent To Govt. And Project ... on 22 October, 2024
Author: T. Vinod Kumar
Bench: T. Vinod Kumar
THE HON'BLE SRI JUSTICE T. VINOD KUMAR
WRIT PETITION No.26422 OF 2006
This Writ Petition is filed with the following prayer:
"Issue a writ, order or direction more in the
nature of writ of CERTIORARI call for the records
relating to the order vide Proc. No.A4/03/1988 dated
02.09.2006 passed by the 1st respondent as illegal,
arbitrary, contrary to the evidence on record and also contrary to the provisions of A.P. Schedule Areas Land Transfer (Regulation) 1959"
2. Heard Sri V Ravi Kiran Rao learned Senior Counsel appearing on behalf of Sri V. Rohith, learned Counsel for the petitioner, learned Government Pleader for Social Welfare appearing for respondent Nos.1 and 2. Despite the name of Counsel appearing for respondent No.3 is shown in the cause list, there is no representation on behalf of the 3rd respondent.
3. Petitioner Nos.2 to 5 are the legal representatives (LRs) of the 1st petitioner who had deceased during the pendency of the present Writ Petition and are brought on record as per Court order dated 19.04.2023.
4. The case of the petitioners, in brief, is that the 1st petitioner (deceased) is the grandson of one late Jalpath Rao, S/o Hanmanth Rao, resident of Lakkaram village; that the petitioners belong to Schedule Tribe; that the 1st petitioner's 2 grandfather was the owner and possessor of land in Sy. No.17 to an extent of Ac. 5.35 Gts., in Lakkaram village, the then Utnoor Taluq of Adilabad District; that the name of the grandfather of the 1st petitioner was shown as pattadar in Khasra Phani of the year 1954-55 in respect of the subject land; and that the aforesaid village is notified as Scheduled Area as per A.P. Schedule Areas Land Transfer Regulation 1959.
5. It is the case of the petitioners that while the grandfather of the 1st petitioner was shown as pattadar of the subject land, there is no evidence on record to show that Sri. Perika Bhemanna, a Non-tribal was in possession and enjoyment of the land prior to Regulation, 1959 being made applicable to the subject area; and that the said Perika Bhemanna being a non- tribal could not have sold the land to the father of the 3rd respondent during the year 1967-68.
6. Petitioners further contend that even Perika Bhemanna could not have claimed of being in possession and enjoyment of the subject land prior to 01.12.1963 as prior to Andhra Pradesh scheduled area Land Transfer Regulation 1959 being made applicable to the Scheduled Areas of Adilabad District, the transactions of sale of land in subject area was governed by the provisions of Agency Tracts Interest and Land Transfer Act, 1 of 3 1917 (Act of 1917), which mandated permission to be obtained from the Agent to Government; and that with the Regulation 1959 being made applicable w.e.f. 01.12.1963, sanction of Government or consent of Agent is required to be obtained under Section 3(1) of the Regulation for sale / purchase of the land from a tribal to non-tribal.
7. Petitioners contend that the 2nd respondent in the year 1983 taking note of the fact that the subject land being situated in Schedule Area and is being claimed by a non-tribal, had initiated suo moto proceedings invoking the provisions of A.P. Schedule Areas Land Transfer Regulation 1959, by issuing notice to the grandfather of the 1st petitioner and also to the father of the 3rd respondent stating that there was a reason to believe that the transfer of immovable property was made in contravention of Section 3 (1) of the Regulation; and that after issuance of notice, as the grandfather of the 1st petitioner had deceased, the father of the 1st petitioner was brought on record as LR of the original pattadar.
8. Petitioners also contend that the 2nd respondent after recording the oral evidence of the father of the 1st petitioner and also that of the father of the 3rd respondent in exercise of powers conferred under the Act and the Rules made thereunder 4 viz., AP Schedule Areas Land Transfer Rules 1969, had passed order dated 28.12.1983, holding that -
"that the non-tribal respondent has not produced any document to prove his possession over the subject land prior to 01.12.1963 and as the subject land belongs to tribal pattadar, the transaction made if any by the non-tribal and the non-tribal respondent is nullified as the suit land belongs to the tribal pattadar and the said land is situated in the notified scheduled area and thus the transfer is the therefore void. Illegal, un-authorised and in contravention of Section 3(1) of Regulation 1959."
9. Petitioners further contend that on the 2nd respondent passing the aforesaid order, the 3rd respondent had approached this Court by filing Writ Petition vide W.P. No.7490 of 1984 claiming that he belongs to the 'Goud' community which is also considered as Schedule Tribe and, as such, there is no contravention of provisions of Section 3(1) of the Regulation, 1959; and that this Court having regard to the judgment rendered in W.P. No.4941 of 1983 dated 14.09.1983 had initially granted suspension of the order of the 2nd respondent.
10. Petitioners further contend that the order in W.P. No.4941 of 1983 was the subject matter of a Writ Appeal and in the said Writ Appeal, this Court was pleased to set aside the order in W.P. No.4941 of 1983; and that on the Division Bench of this Court reversing the order in Writ Petition No.4941 of 1983, the Writ Petition filed by the 3rd respondent was also dismissed on 20.04.1988.
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11. It is also the contention of the petitioners that on this Court dismissing the Writ Petition filed by the 3rd respondent, the 2nd respondent gave effect to the order dated 28.12.1983 and the possession of the subject land was taken over from the 3rd respondent and handed over to the father of the 1st petitioner by conducting panchanama on 17.05.1988.
12. Petitioners also contend that after dismissal of the Writ Petition, the father of the 3rd respondent filed an Appeal against the order of 2nd respondent dated 28.12.1983; and that during the pendency of the said appeal, the father of the 3rd respondent herein having deceased, the 3rd respondent has come on record in the appeal pending before the 1st respondent.
13. Petitioners further contend that in the appeal filed by the father of the 3rd respondent though various grounds have been raised, the 1st respondent without appreciating the real issue involved and without taking note of the applicable provisions of the Regulation 1959 as made applicable w.e.f. 01.12.1963 had set aside the order of the 2nd respondent dt. 28.12.1963.
14. Petitioners also contend that the 1st respondent while setting aside the order of the 2nd respondent, had erroneously placed reliance on the Ordinary sale deed dt. 24.08.1967 purported to have been executed by Perika Bhemanna in favour 6 of the father of the 3rd respondent as having been established, and the transaction being between tribal to non-tribal, is not governed by the provisions of Regulation 1 of 1970 being prior in point of time.
15. Petitioners further contend that the father of the 3rd respondent had never pleaded the existence of the ordinary sale deed dated 24.08.1967 in the proceedings before the 2nd respondent initiated during the year 1983 are in the Writ Petition filed before this Court vide W.P. No.7490 of 1984 and the said ordinary Sale deed was brought into existence only in the appeal filed after the dismissal of the Writ Petition in the year 1988, which fact the 1st respondent had failed to take note of.
16. Petitioners also contend that if only the said ordinary sale deed dated 24.12.1967 really existed, the same would have been mentioned by the father of the 3rd respondent of he having purchased the subject land from Perika Bheemanna on the 2nd respondent initiating proceedings in the year 1983 or in the validation certificate dt. 18.08.1976 issued the by the Tahsildar under Section 50-B of the A.P. (Telangana Area) Tenancy & Agricultural Lands Act, 1950. Petitioners also contend that in the validation certificate, except mentioning the amount 7 deposited on 20.05.1972 for registration as per the provisions of Registration Act being equal to the registration fee and the stamp duty, no reference is made to the alleged sale deed.
17. Thus, the petitioners contend that the 1st respondent while setting aside the order of the 2nd respondent did not also take into consideration the fact that the possession of the subject property by Perika Bheemanna itself is in contravention of Section 3 (1) of the Regulation and thus, the subsequent sale of the subject land by Perika Bheemanna under the alleged ordinary sale deed in favour of the father of the 3rd respondent would not become valid.
18. Petitioners contend that if only the ordinary sale deed purported to have been executed in favour of the father of 3rd respondent existed at the relevant point of time, the father of the 3rd respondent would not have failed to place the same before the 2nd respondent in the suo moto proceedings initiated in the year 1983 or even at the time when he was being evicted from the subject land subsequent to dismissal of the Writ Petition vide W.P. No.7490 of 1984 on 17.05.1988.
19. Petitioners thus, contend that the entire premise of the order of the 1st respondent is based on the ordinary sale deed stated to have been executed by Perika Bheemanna in favour of 8 the father of the 3rd respondent in the year 1967 as having been established and since, the same being prior in point of time of coming into force of Regulation 1 of 1970, the order of the 2nd respondent is not sustainable, is without taking note of the fact that prior to Regulation 1 of 1970 coming into force the subject area was covered by Regulation1959 w.e.f 01.12.1963 and transfer from Tribal to Non-tribal is not permitted.
20. In support of the aforesaid contentions, petitioners have placed reliance on the following decisions:
i). Vangala Narasaiah v. Goovuri Narayana 1; ii). Penmetsa Ramabhadri Raju v. State represented b y the Special Deputy Tahsildar (Tribal Welfare) No.1, Eluru, West Godavari District 2; iii). Deputy Collector and another v. S. Venkatramanaiah 3; iv). Vaddi Veeraiah v. The Agent to Government 4; v). Vanka Venkanna v. Special Deputy Collector (TW) Paloncha, Khammam District 5; vi). Yandapu Satyavati and another v. Secretary to Govt. of A.P. Tribal Welfare Department, Hyderabad 6; vii). Tellam Venkat Rao 1 1969 APLJ 27 2 1988(1) ALT 411 3 (1995) 6 SCCs 545 4 1996 (1) ALD 107 (DB) 5 2001 (2) ALT 709 6 2007 (5) ALT 271 9 v. Govt. of A.P 7; viii). P. Gangaraju v. Agent to Government, West Godavari District 8; and ix). P. Rami Reddy v. State of A.P. 9
21. Per Contra learned Government Pleader appearing for the respondent Nos.1 and 2 would submit that the order of the 2nd respondent dated 28.12.1983 is based on the possession of the land having regard to the provisions of Regulation 1959 and the Rules made thereunder, while the order of the 1st respondent in appeal is based on the ordinary sale deed dated 28.08.1967 which was not considered by the 2nd respondent, while passing the order in suo moto proceedings initiated by him.
22. Learned Government Pleader would further contend that since the order of the 1st respondent also takes note of the fact that the father of the 3rd respondent having paid the registration charges on 20.05.1972 vide challan No.251 and 252, in respect of sale of the subject land made to him by Perika Bheemanna, though by an ordinary sale deed dated 24.08.1967, the sale of the subject land being prior to the cut-off date mentioned under Regulation 1 of 1970, the same is to be considered as not being hit by Regulation 1 of 1970.
7 2012 (1) ALT 102 (DB) 8 1989 (2) (HC) 232 9 (1988) 3 SCC 433 10
23. Learned Government Pleader would further contend that the 1st respondent while passing the impugned order had also taken note of the fact that the 1st petitioner's father had deposed that the subject land belongs to his grandfather late Hanmanth Rao; that Perika Bheemanna was cultivating the above land; and that the name of Perika Bheemanna was mutated in the revenue records and pahani for the year 1955-56 are factors which supports the order of 1st respondent.
24. Learned Government Pleader would also contend that the name of the Perika Bheemanna having been entered in the Pahani for the year 1955-56, he had tried to sell the subject land to one Ahmad Sharif in the year 1959-60, however, due to non-payment of the sale consideration, the transaction was cancelled and it is thereafter the subject land was sold to the father of the 3rd respondent under ordinary sale deed dated 28.04.1967; and that the name of the father of the 3rd respondent was recorded in the revenue records of the year 1968-69 as cultivator.
25. Learned Government Pleader thus contended that the 1st respondent while passing the impugned order had taken note of the entries in revenue records as well as the father of the 3rd respondent having established the purchase of the subject land 11 under ordinary sale deed dated 24.08.1967 and his name having been entered in revenue records had found the said transaction having taken place before the cut-off date of the provisions of Regulation 1 of 1970 coming into force and the transaction not being hit by the provisions of Section 3(1) of Regulation 1959 read with the amended Regulation 1 of 1970. Thus, the learned Government Pleader sought for dismissal of the Writ Petition.
26. I have taken note of the respective contentions urged.
27. Firstly, it is to be noted that prior to Regulation 1 of 1970 coming into force, the transactions in schedule area i.e. Adilabad are governed by the provisions of A.P. Scheduled Areas Land Transfer Regulation 1959, w.e.f. 01.12.1963 and the relevant provision which is applicable in Section 3(1) of Regulation 1 of 1959, prior to amendment reads as under:
"3. Transfer of immovable property by a member of a scheduled Tribe: - 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 member of a Scheduled Tribe, shall be absolutely null and void unless made -
(i) in favour of any other member of a Scheduled Tribe or a registered society as defined in clause (f) of Section 2 of the Madras Co-operative Societies Act, 1932 12 (Madras Act VI of 1932), composed solely of members of the Scheduled Tribes, or
(ii) with the previous sanction of the State Government or subject to rules made in this behalf, with the previous consent in writing of the Agent or of any prescribed officer".
28. A perusal of the order of the 1st respondent would show that it is based on the premise that the father of the 3rd respondent having established his claim of the subject land having been purchased by him from Perika Bheemanna under ordinary sale deed dated 24.08.1967, and the said transaction as not being hit by the provisions of Section 3 (1) of A.P. Scheduled Areas Land Transfer Regulation 1 of 1970. However, the 1st respondent authority did not take into consideration as to whether Perika Bheemanna who himself is a non-tribal could have claimed the subject land as having been purchased by him from the grandfather of the 1st petitioner, who is a tribal during the subsistence of Regulation 1 of1959 or prior thereto under the Act of 1917.
29. Further, it is also to be seen that the 1st respondent in the impugned order, whereby the appeal filed by the father of the 3rd respondent was allowed and the order of the 2nd respondent was set aside with a direction to restore the subject land in favour of 13 the non-tribal, i.e., 3rd respondent being recognized as just and rightful owner of the subject land, the 1st respondent did not take into consideration that subsequent validation of an ordinary sale deed would not automatically make the said sale deed valid and proved, and would only allow the same for the purpose of marking the document in order to establish and to prove the claim made thereunder.
30. Though the father of the 3rd respondent had claimed to have purchased the subject land under ordinary sale deed dated 24.08.1967, it is not shown that the father of the 3rd respondent while defending proceedings before the 2nd respondent which were initiated during the year 1983 had claimed the subject land being possessed by him under the said ordinary sale deed executed by Perika Bheemanna. On the other hand the father of the 3rd respondent in the Writ Petition filed before this Court vide W.P. No.7490 of 1984 assailing the order of 2nd respondent had claimed that since he belongs to 'Goud' community, which is also recognized as a Scheduled Tribe in the said area, the transaction of sale by Perika Bheemanna is from a non-tribal to Tribal and as such is not hit by the provisions of Regulation 1959.14
31. Further, the father of the 3rd respondent in order to claim the transaction to be valid transaction had solely relied on Section 50-B certificate issued by the then Tahsildar, wherein also there is no mention or reference to the ordinary sale deed on which much reliance has been placed by the 1st respondent while passing the impugned order.
32. Further, a perusal of the impugned order would also show that the 1st respondent had assumed that validation of ordinary sale deed would automatically make the said ordinary sale deed valid and cannot be questioned which conclusion of the 1st respondent is contrary to the settled position of law (See: Pamshetty Jojappa and Ors. Vs. State of Telangana and Ors 10, Ramaraj Sitarama Rao Vs. State of Telangana and Ors 11).
33. The 1st respondent while passing the impugned order though had framed two questions to be answered as to whether any transaction of scheduled property between a tribal to a non- tribal or non-tribal to another non-tribal is violation of Land Transfer Regulation provisions, however, proceeded on an assumption that ordinary sale deed dt. 28.04.1967 as validly 10 MANU/TL/0104/2020 11 MANU/TL/1268/2022 15 executed, without taking note of the fact that as per Section 3(1) of the Regulation 1959. As per Section 3(1) of the Regulation 1959, prior sanction of the State Government or consent of agent to Government is required to be obtained for effecting sale of immovable property from a tribal to non-tribal. In absence of any such consent or sanction having been obtained from the State Government or agent, Perika Bheemanna could not have claimed of purchasing the subject land from the grand father of the 1st petitioner being a scheduled tribe and being situated in schedule area. Consequently, the father of the 3rd respondent could not have claimed the subject land having purchased by him under the ordinary sale deed dated 24.08.1967 from a non- tribal, who himself cannot claim the subject property validly.
34. Since, the 1st respondent while passing the impugned order has proceeded only on the basis of the ordinary sale deed dt. 24.08.1967 and having concluded that the transaction is not hit by the provisions of Section 3(1) of Regulation 1959 as amended by Regulation 1 of 1970 which conclusion as noted herein above is without examining as to whether the claim being made by the vendor of the 3rd respondent i.e. Perika Bheemanna itself is valid or not and is hit by Section 3(1) of the Regulation 1959, this Court is of the view that the impugned order as 16 passed by the 1st respondent is without a detailed examination of the issue involved and the application of provisions of Section 3 (1) of Regulation 1959 as amended by Regulation 1 of 1970 for it to be sustained.
35. Accordingly, the impugned order as passed by the 1st respondent authority is set aside and the matter is remitted back to the 1st respondent authority for passing orders afresh by considering the applicability of provisions of i) Agency Tracts Interest and Land Transfer Act, 1 of 1917, and ii) Regulation 1959 to the subject land. The 1st respondent shall issue notice to all the parties concerned before passing the order afresh.
36. Subject to above direction, the Writ Petition is disposed of.
Miscellaneous Petitions if any pending shall stand closed. No order as to costs.
__________________ T. VINOD KUMAR, J Date: 22.10.2024 MRKR