Anangi Tirupathaiah, Khammam ... vs The Special Deputy Collector, ...
2023 Latest Caselaw 3384 Tel

    THE HON'BLE THE CHIEF JUSTICE ALOK ARADHE

                              AND

    THE HON'BLE SRI JUSTICE N.V.SHRAVAN KUMAR


                WRIT APPEAL No.1162 of 2008


JUDGMENT: (Per the Hon'ble Sri Justice N.V.Shravan Kumar)


      Heard    Mr.   P.V.Ramana,     learned   counsel      for   the

appellants     and   Mr.   Pattipaka    Ram    Prasad,      learned

Government Pleader for Social Welfare Department for the

respondents.


      2.     This intra court appeal is filed against the order

dated 31.07.2008 passed by the learned Single Judge

dismissing W.P.No.745 of 2001 filed by the appellants as the

writ petitioners.


      3.     Appellants had filed W.P.No.745 of 2001 assailing

the legality and validity of the orders dated 15.02.1999

passed by respondent No.1 in LTR Case No.129/97/CGH and

LTR case No.131/97/CGH ordering for ejectment of the lands

situated in Survey Nos.23, 28 and 29 admeasuring to an

extent of Ac. 16.30 guntas, Ac. 3.00 guntas and Ac. 4.00
                               ::2::



guntas    respectively,   situated    in   Ravikampadu   Village,

Chandrugonda Mandal, Khammam District and directing for

distribution of the said lands to the landless poor tribes and

the consequential orders dated 16.12.2000 passed by the 2nd

respondent in C.M.A.No.20 of 1999.


     4.     Facts

arising in the writ petition briefly stated are

that one late Anangi Muthaiah, who is the father of appellant

No.1, father-in-law of appellant No.2 and grandfather of

appellant No.3 purchased lands to an extent of Ac. 16.30

guntas in Survey No.23, Ac. 3.00 guntas in Survey No.28 and

Ac. 4.00 guntas in Survey No.29, situated in Ravikampadu

Village, Chandrugonda Mandal (for short, 'subject lands') from

Cherupathi Hanumantha Rao and Sarikonda Narayana Raju

vide unregistered sale deeds dated 14.05.1961, 10.12.1965

and 21.09.1965 respectively for a valid consideration. Land

to an extent of Ac. 4.00 guntas in Survey No.29 was

purchased by late Anangi Muthaiah from Smt. Cherupathi

Lalitha through agreement of sale on 21.09.1965. After the

death of the said Anangi Muthaiah, the appellants were in

continuous possession and enjoyment of the subject lands by ::3::

paying land revenue regularly. The subject lands were

purchased by sada sale deeds as per practice invoked in

Telangana Area. The name of appellant No.1 was also

mentioned in the occupant column of the revenue records for

the years 1968-69, 1969-70 in respect of the subject lands.

The name of the father of appellant No.1 was wrongly

mentioned in the occupant column as Late A.Tirupathaiah,

but Ryothwari Patta Passbooks were granted in favour of late

Anangi Muthaiah as the purchaser and the said transfer took

place prior to Regulation I/1970, which came into force with

effect from 03.02.1970. As per the certified copies of the

pahanies for the years 1967-68, 1969-70 and 1995-96, the

subject lands were transferred prior to Regulation I/1970,

which came into force with effect from 03.02.1970. The

appellants challenged the initiation of cases on a report filed

by the Special Deputy Tahsildar, Tribal Welfare, Palvancha on

07.02.1997 before the Special Deputy Collector, Tribal

Welfare, Palvancha in LTR Case No.129/97/CHG and LTR

Case No.131/97/CHG as illegal and arbitrary. Learned

counsel for the writ petitioners submitted that it is an

undisputed fact that the original owners of the subject lands ::4::

namely Cherupathi Hanumantha Rao and Sarikonda

Narayana Raju are non-tribals and the father of appellant

No.1 Late Anangi Muthaiah is also a non-tribal. If that be so,

it is not in dispute that the transfer of the land by a non-tribal

in favour of a non-tribal prior to commencement of Regulation

I/1970, which came into force from 03.02.1970 was not

prohibited. The father of appellant No.1 has purchased the

subject lands vide simple sale deed dated 10.12.1968, which

was prior to the commencement of Regulation I/1970 which

came into force with effect from 03.02.1970 prohibiting the

said sale. Accordingly, respondent No.1 came to the

conclusion that the appellants came into possession of the

subject lands after commencement of Regulation I/1970

without any valid records and the appellants have failed to

discharge the burden on them to prove their possession prior

to Regulation I/1970 with effect from 03.02.1970 and in

exercise of powers vested in him under Section 3(2)(A) of

Regulation I/1959 and thus, respondent No.1 ordered

ejectment of the appellants from the subject land by order

dated 15.02.1999. Aggrieved by the said order, the appellants

filed an appeal in C.M.A.No.20 of 1999 on the file of ::5::

respondent No.2 and the appellate authority confirmed the

order of respondent No.1 and dismissed the appeal.

Challenging the same, W.P.No.745 of 2001 was filed.

5. Learned Single Judge while dismissing the writ

petition observed that the sale deed dated 10.12.1968 is not a

valid deed of transfer of property and therefore, question of

deciding validity or otherwise of the sada sale deed by a forum

to decide the dispute relating to immovable property does not

arise. Even the pahanies are said to have been interpolated,

to decide the same, whether the interpolation is incorrect or

not and whether the appellants are really in possession prior

to Regulation I/1970 came into force with effect from

03.02.1970, no other document has been filed, such as land

revenue receipts or any other corroborative evidence and

therefore, learned Single Judge did not see any merit in the

writ petition warranting interference of the concurrent

findings of the court below and accordingly dismissed the writ

petition.

6. Learned counsel for the appellants submits that

the learned Single Judge failed to notice that once the ::6::

possession is claimed under the agreement of sale and that

there are no claimants claiming the subject lands particularly

when no tribal interest is involved, the question of declaring

that the appellants are in possession over the subject lands

contrary to Section 3 of Andhra Pradesh Scheduled Areas

Transfer Regulation I of 1970 is arbitrary and illegal and as

such, the orders under appeal are bad in law. He would

further submit that the findings of the learned Single Judge

and both the lower authorities that the appellants have not

produced any evidence to show their possession prior to

03.02.1970, which is also contrary to the revenue records,

since the revenue records establish possession of the

appellants prior to Regulation I of 1970, which came into

force with effect from 03.02.1970, the authorities below

ignoring such evidence has passed the impugned orders and

the same have been confirmed by the learned Single Judge is

arbitrary and illegal.

7. Learned counsel for the appellants draws attention

of this Court to Full Bench judgment of erstwhile High Court

of Andhra Pradesh reported in Gaddam Narsa Reddy v.

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Collector, Adilabad Dist. 1, wherein it is observed that as per

Andhra Pradesh Scheduled Areas Land Transfer Regulation

(1959) Section 3 (as amended by Regulation 2 of 1963 and I of

1970) have verified the applicability of Section 3 Sub-Section

(1) in Andhra Pradesh Scheduled Areas Land Transfer

Regulation I of 1970 and observed that same is not

retrospective in operation and same cannot be adjudicated by

authorities under Section 3(2) and referred to at para 31,

which is held as follows:

"31. To sum up our conclusions on the questions arising on this reference to the Full Bench are as follows:

(1) A transfer of immovable property situate in agency tracts, made after the coming into force of the A.P. Scheduled Areas Land Transfer Regulation I of 1959 or its amendment Regulation II of 1963 or Amendment Regulation I of 1970, even if made in compliance with the provisions of the Transfer of Property Act, Indian Registration Act or Hyderabad Tenancy and Agricultural Lands Act or any other law applicable thereto, is null and void, if it contravenes the provisions of S.3(1) of the Regulation I of 1959 or its amending regulations, and under S.3(2) of the said Regulation, the authorities mentioned therein can decree ejectment of the persons claiming under such transfer and pass orders restoring the lands to the transferors or their successors or pass orders for disposing of the said property as directed therein.

1 AIR 1982 Andhra Pradesh 1 ::8::

(2) Section 3 (1) of the Regulation I of 1995 and its amendments by Regulation II of 1963 and I of 1970 have no retrospective operation and do not affect transfers made prior to the said Regulation or its amendments coming into force and the authorities under Section 3 (2) of the Regulation have no jurisdiction to pass orders in relation to the immovable property covered by such transfers.

(3) The validity or otherwise of the transfers made prior to S.3(1) or its amendments by Regulation II of 1963 or I of 1970, coming into force, cannot be adjudicated upon under S.3(2) of the Regulation and the same has to be challenged in an appropriate forum constituted for deciding disputes relating to immovable property situate in Schedule Areas."

8. Learned counsel for the appellants has also relied

upon another judgment of the erstwhile High Court of Andhra

Pradesh reported in Kola Mahalaxmi v. Agent to

Government, Khammam 2, wherein learned Single Judge at

para 7 has held as follows:

"7. But the learned Counsel for the contesting respondent and also the Counsel for the Government contended that the said sale dated 11-3-1963 was not valid for being not registered. As against this contention, the Counsel for the petitioner submitted that on the basis of the unregistered sale deed, the petitioner has been in possession all alone right from the year 1963 and the validity of the sale deed, if any, can be

2 1999 (6) ALT 174 ::9::

questioned only in civil Court, subject to the defence available to the petitioner and the validity of the sale as such cannot be considered by the authorities constituted under the Regulations. In support of his contention, he relied upon the Full Bench judgment of this Court reported in G.Narsa Reddy\'s case (supra). For immediate reference, I think it appropriate to extract the relevant part of the said judgment as under:

"We therefore, hold that the provisions of Regulations II of 1963 and the provisions of Regulation I of 1970 amending the provision of Section 3(1) of Regulation I of 1959 have no retrospective operation and do not affect transfers made prior to the coming into force of the said amending regulations

30. The question whether transfers made prior to the coming into force of the amending Regulations II of 1963 and 1 of 1970 are not valid either for want of registration under the Indian Registration Act or for non-compliance of the provisions of Section 47 or Section 50-B of the Hyderabad Tenancy and Agricultural Lands Act and whether the transferee would be entitled to the protection of Section 53-A of the Transfer of Properly Act, can only be gone into in a forum constituted for deciding such questions in respect of lands in scheduled area.

31. To sum up our conclusions on the questions arising on this reference to the Full Bench are as follows:- (1) A transfer of immovable property situate in agency tracts, made after the coming into force of the Andhra Pradesh Scheduled Areas Land Transfer Regulation I of 1959 or its amendment Regulation II of 1963 or Amendment Regulation I of 1970, even if made in compliance with the provisions of the Transfer of Property Act, Indian Registration Act or Hyderabad Tenancy and Agricultural Lands Act or any other law applicable thereto, is null and void, if it contravenes the provision of Section 3(1) of the Regulations 1 of 1959 or its amending regulations and under Section 3(2) of the said Regulation, the authorities mentioned therein can decree ::10::

rejectment of the persons claiming under such transfer and pass orders restoring the lands to the transferors or their successors or pass orders for disposing of the said property as directed therein.

(2) Section 3(1) of the Regulation 1 of 1959 and its amendments by Regulation II of 1963 and I of 1970 have no retrospective operation and do not affect transfers made prior to the said Regulation or its amendments coming into force and the authorities under Section 3(2) of the Regulation have no jurisdiction to pass orders in relation to the immovable property covered by such transfers.

(3) The validity or otherwise of the transfers made prior to Section 3(1) or its amendments by Regulation II of 1963 or 1 of 1970, coming into force, cannot be adjudicated upon under Section 3(2) of the Regulation and the same has to be challenged in an appropriate forum constituted for deciding disputes relating to immovable property situated in Scheduled Areas.

32. Applying the said conclusions to the facts of the present case, the transfers in PP No.4202 of 1977 having been made prior to the coming into force of the Regulation, they do not contravene the provisions of Section 3(1) and, therefore, the Special Deputy Collector, Tribal Welfare as the District Collector-cum-Agent to the State Government have no jurisdiction to pass orders under Section 3(2) of the said Regulations declaring the said transfers as null and void.

33. Accordingly, the writ petition WP No.4204 of 1977 is allowed and the impugned order is quashed, but in the circumstances without costs. Advocate\'s fee Rs. 150/-\"

In view of the above judgment of this Court, in my opinion there is substance in the argument of the petitioner\'s Counsel. The fact that the sale has taken place on 11-3-1963 is not disputed. In fact, the contesting respondent\'s father himself had challenged the said sate before the competent authority under the Regulations. But the same was dismissed.

::11::

If that is so, the fact that the sale has taken place on 11-3- 1963 cannot be disputed. As held by the Full Bench of this Court, the validity of such a sale or otherwise has to be decided only by a competent Court. In other words, if there is any sale, which is in contravention of the Registration Act etc. it is only for the appropriate Court to decide its validity and no such powers are conferred on the authorities under the Regulations. The authorities have to simply see whether there are any transfers between the tribals and non-tribals or between tribals and tribals only after the commencement of the Regulations and if they are not in accordance with the Regulations, then declare such transfers as void in terms of the Regulations. Moreover, on verification I find that the Full Bench Judgment of this Court reported in G. Narsa Reddy\'s case (supra) was the very judgment that was under consideration before the Hon\'ble Supreme Court in the decision reported in Dy. Collector\'s case (supra) and the Hon'ble Supreme Court has confirmed the law laid down by the Full Bench of this Court. Considering all the above judgments, another learned single Judge of this Court in the decision reported in G. Venkata Apparao v. Special Deputy Collector, 1996 (3) ALD 287, also held that Regulations and its amendment are prospective and they do not apply to the transactions prior to the commencement of the Regulations. In this view of the matter, I cannot accede to the contention of the Counsel for the respondents that the said sale for not being registered was not valid, therefore, the same could be set aside by the authorities. \'But in my considered view as long as the said sale deed is prior to the commencement of the Regulations, the authorities have no jurisdiction to consider the same as offending the Regulations. However, the Counsel for respondents relied upon an unreported judgment of this Court date 22-8-1989 passed in WP No. 16934 of 1988 and ::12::

also the reported judgment of this Court in Vaddi Veeraiah v. The Agent to Government, Khammam, 1996 (1) ALD 107. From reading of these two judgments, it is clear that though it was pleaded on behalf of the non-tribals that the sale has taken place prior to the commencement of the Regulations, but the fact finding authorities gave a clear finding on the basis of the revenue records that the sale was after the commencement of the Regulations, and that non-tribals came into possession according to the evidence on record only after the commencement of the Regulations. Therefore, in both the judgments a finding was given that the alleged transfers took place after the commencement of the Regulations and on the basis of that finding alone, in both the judgments this Court held that those sales were hit by the Regulations and accordingly declared that they were illegal and void. But in the instant case, as I have already notice above, it is an admitted fact on both sides that the sale took place on 11-03-1963, prior to the commencement of the Regulations on 01-12-1963. Therefore, these judgments relied upon by the Counsels for the respondents do not apply to the facts of this case."

9. The facts and circumstances of both the decisions

referred above are similar to that of the present case.

10. In Kola Mahalaxmi's case (supra), in para 14

learned Single Judge has held as follows:

"14. From the above facts it is clear that the sale deed in question is dated 15-3-1962 and prior to the commencement of the Regulations Telangana area where it came to force with ::13::

effect from 1-12-1963 and as per the law that I have noted above, the authorities have no power or jurisdiction to deal with the sale-deed dated 15-3-1962 under the Regulations. In this case the said sale deed dated 15-3-1962 is an unregistered sate deed. As I have already noticed above, the Full Bench of this Court held that if the sale is prior to the commencement of the Regulations, its validity on some other grounds like non- registration etc., could not be challenged before the authorities under the Regulation and that is matter for the competent Court to do so in an appropriate proceedings. The order of the first authority itself shows the these proceedings were initiated on the basis of the notices served on the vendee on 1-6-1974 and 15-6-1974. The sale deed is admittedly dated 15-3-1962 and initiating proceedings on the basis of the notices served on 1-6-1974 and 15-6-1974 was clearly beyond the period of twelve years and such an initiation of proceedings after a period of 12 years is unreasonable as per the law consistently declared by this Court in the judgments which I have referred to above. From this it follows that for the same reasons, that I have given in the earlier writ petition, even the impugned orders in this writ petition are also liable to be set aside."

11. Thus, from the above referred decision, it is

observed that the sale deed in question is dated 15.03.1962

and prior to the commencement of the Regulations Telangana

area where it came to force with effect from 01.12.1963 and

as per the law, the authorities have no power or jurisdiction

to deal with the sale deed dated 15.03.1962 under the ::14::

Regulations. It is further observed that if the sale is prior to

the commencement of the Regulations, its validity on some

other grounds like non-registration etc., could not be

challenged before the authorities under the Regulation and

that is matter for the competent Court to do so in an

appropriate proceedings.

12. In the instant case, the father of appellant No.1

has purchased the subject lands vide simple sale deed dated

10.12.1968 and the cut-off date as prescribed in Regulation

I/1970, which came into force with effect from 03.02.1970.

Thus, the father of appellant No.1 has purchased the subject

lands before the cut-off date.

13. Learned Government Pleader for Social Welfare

Department for the respondents would submit that in

W.P.No.745 of 2001, the learned Single Judge has rightly

supported the observations made in Gaddam Narsa Reddy's

case (supra) and submits that no evidence has been placed

by the appellants. Learned Government Pleader further

submits that the records have been manipulated and as

referred to the orders passed by respondent No.1 that the ::15::

certified copies of pahanies for the years 1967-68, 1969-70

and 1995-96 with endorsement that the name of appellant

No.1 was written subsequently was shown in Column 16 with

different ink and different writing. On a query the learned

Government Pleader further submits that there is no such

finding to the effect that the records have been manipulated

and that apart, the documents are within the custody of the

respondent authorities and if such is the case, the respondent

authorities cannot pass the impugned proceedings without

verifying the same.

14. In the instant case, the sale deed dated

10.12.1968 is prior to the cut-off date as prescribed in

Regulation I/1970, which came into force with effect from

03.02.1970. Admittedly, the father of appellant No.1 has

purchased the subject lands before the cut-off date and it is

also supported by certified copies of the pahanies for the

years 1967-68, 1969-70 and 1995-96, which is not disputed

by learned Government Pleader for Social Welfare Department

for the respondents. This aspect was not observed by the

respondent authorities and the learned Single Judge.

::16::

Moreover, the respondent authorities have not disputed the

date of execution of the sada sale deed before the cut-off date

as prescribed in Regulation I/1970 which came into effect on

03.02.1970. As such they cannot declare such transfer as

void in terms of the Regulations.

15. Learned Single Judge though held that the sale

deed dated 10.12.1968 is not a valid deed of transfer of

property has not given any cogent reasons to that effect. It is

pertinent note that based on the sale deed only entries were

made in the pahanies substantiating the appellants' rights.

16. Admittedly, no claim is made on the title of the

subject lands and that the names of the appellants were also

mentioned in the revenue records, which establishes the

possession of the appellants prior to the Regulation I of 1970,

which came into force with effect from 03.02.1970.

17. That apart, the proceedings were initiated on a

report filed by the Special Deputy Tahsildar, Tribal Welfare,

Palvancha on 07.02.1997 before the Special Deputy Collector,

Tribal Welfare, Palvancha in LTR Case No.129/97/CHG and ::17::

LTR Case No.131/97/CHG. In the present case, the sale deed

pertains to the year 1968 and the proceedings were initiated

on 07.02.1997, which is after a delay of 29 years and the cut-

off date is 03.02.1970, which is unreasonable. Therefore, the

order dated 31.07.2008 passed by learned Single Judge in

W.P.No.745 of 2001 is unsustainable and the same is set

aside.

18. Writ Appeal is accordingly allowed. There shall be

no order as to costs.

Miscellaneous applications, if any pending, shall stand

closed.

_______________________________ ALOK ARADHE, CJ

_______________________________ N.V.SHRAVAN KUMAR, J Date: 30.10.2023 KL