* HON’BLE SRI JUSTICE B. PRAKASH RAO AND HON’BLE SRI JUSTICE V. SURI APPARAO + W.P.No.3373 of 2000 % 06-04-2011 # Tellam Venkata Rao and another ….Petitioner Vs. $ Government of Andhra Pradesh and another …. Respondents ! Counsel for the Petitioner: Sri K. Balagopal ^ Counsel for Respondents: G.P. for Social Welfare <Gist : >Head Note: ? Cases referred: AIR 1997 SC 3297 HON’BLE SRI JUSTICE B. PRAKASH RAO AND HON’BLE SRI JUSTICE V. SURI APPARAO W.P.No.3373 of 2000 DATE: 06-04-2011 Between: Tellam Venkata Rao and another …………. Petitioners And Government of Andhra Pradesh and another …….. Respondents HON’BLE SRI JUSTICE B. PRAKASH RAO AND HON’BLE SRI JUSTICE V. SURI APPARAO W.P.No.3373 of 2000 ORDER: (Per BPR, J) The petitioners, who are the tribals, filed this writ under Article 226 of the Constitution of India, inter alia, seeking a Mandamus to declare para-3 of the Circular Memo No.889/RH1/99, dated 08-07- 1999 issued by the Housing (RH) Department of the Government of Andhra Pradesh, as illegal and null and void. The petitioners, who claim to belong to Koya Dora tribe and Kondareddy tribe respectively, found fault with the aforesaid circular, of which the relevant para is hereafter extracted, and complain that it makes serious enroots into the substantive and vested rights of the scheduled tribes which are provided under the provisions of the A.P. Scheduled Areas Land Transfer Regulations, 1959 apart from para- 5(2)(a) of the fifth schedule to the Constitution of India. For convenience sake, the impugned portion of the circular reads as follows: “In respect of the eligible non-tribal beneficiaries who are in possession of house-sites in the village site/abadies but cannot readily establish his legal possession, there is a difficulty in mortgaging such houses along with the houses constructed thereon in favour of the A.P. State Housing Corporation Ltd., as security to the loans extended by the latter. Government have examined the issue carefully in consultation with the Law Department and Advocate General of Andhra Pradesh and the following instructions are issued: 1. For any reason if a non-tribal eligible beneficiary is not in a position to readily establish his legal possession of house site in village site/abadi and is in occupation of the house- site in question though such possession may not be strictly according to the Law, he can also be considered for grant of loan by the A.P. State Housing Corporation Ltd., for constriction of Weaker Section Housing on the basic of security offered by him in regard to the super-structure existing on the site together with the stipulation that the house to be constructed on the said site through the loan extended by the A.P. State Housing Corporation Ltd., shall also be treated as offered as security for the due repayment of the said loan. 2. Such security namely the existing super-structure with the house going to be constructed may be mortgaged by a simple registered mortgage deed in favour of A.P. State Housing Corporation Board, as security. 3. The officials of A.P. State Housing Corporation Ltd., will verify the possession of house-site by the non-tribal eligible beneficiary in village site/abadi and then accept the mortgage of the same along with the house going to be constructed thereon, as security. 4. The format of the mortgage deed to be taken and registered in favour of the A.P. State Housing Corporation Ltd., shall be communicated to all Collectors and the District Managers (Housing), A.P. State Housing Corporation Ltd., in the Scheduled Areas, separately. 5. The delegation of powers to register such mortgage deeds by the officials of A.P. State Housing Corporation Ltd., as per the provisions of Stamps and Registration Act, 1908 is under consideration of the Government separate orders will be issued in this regard. Till such time the mortgage-deed shall be registered by the officers of the Registration Department only. 4. All Collectors and the A.P. State Housing Corporation Ltd., officials in Scheduled Areas are requested to take action accordingly.” On a bare reading of the circular, it aims at providing an enabling provision for the purpose of giving security for the loan given by the A.P. State Housing Corporation Limited to the non-tribal beneficiaries residing in the scheduled areas on par with the other beneficiaries residing in the plains area. It tries to put the beneficiaries of other area in securing the loans by mortgaging D-form possession certificate of house sites owned by them along with the houses constructed thereon as the guarantee for the purpose of obtaining loans from the Corporation, but, however, found that it is not so in the scheduled areas since the provisions of A.P. Scheduled Areas Land Transfer Regulations, 1959, as amended from time to time, restricts all eligible non-tribal beneficiaries in the scheduled areas from mortgaging their houses and house sites. Therefore, by trying to extend the enabling provision under Sections 3 and 3-A of the A.P. Scheduled Areas Land Transfer Regulations, 1959 for the purpose of mortgaging to the said corporation, which is one of the financial institution approved by the State Government, the above object is sought to be achieved. Para-3 of the circular virtually liberalizes the protective area in the scheduled areas inspite of the fact that it takes note of the basic failure on the part of the non-tribals to establish the legal possession over the site and occupation thereof, since such possession may not be strictly according to law, and yet it enables the Corporation for mortgaging those sites and structures for the purpose of availing loans. On the face of it, the aforesaid provision, which was issued by way of a circular, virtually runs contrary to the scope and the mandate as provided under the law including the Constitution in respect of the scheduled areas. It is needless to mention that the sovereign provision for the benefit of the tribals in the scheduled areas is enunciated in para-5(2) (a) of the fifth schedule to the Constitution, which reads as follows: “(2) The Governor may make regulations for the peace and good government of any area in a State which is for the time being a Scheduled Area. In particular and without prejudice to the generality of the foregoing power, such regulations may – (a) prohibit or restrict the transfer of land by or among members of the Scheduled Tribes in such area.” Coming to back to the provisions of the A.P. Scheduled Areas Land Transfer Regulations, 1959, it aimed at against any activity of the non-tribals and tries to protect the rights of the tribals. There is a clear- cut prohibition of any transfer from a non-tribal to another non-tribal and including any meddling with the properties by the non-tribal in that area. Therefore, the question of legitimizing any acts on the part of or for the benefit of the non-tribal in the scheduled area is a measure which deviates the protection as provided to the tribals in the area. I n SAMATHA v. STATE OF A.P. [1], the Supreme Court has reiterated the mandate under para-5(2)(a) of the fifth schedule to the Constitution of India. A Division Bench of this Court as per its Judgment, dated 23- 01-1973 in W.P.No.4968 of 1970, which was filed at the instance of the bank seeking a Mandamus directing the respondents therein to act according to law by forbearing them from giving effect to Section 3 of the Andhra Pradesh Scheduled Areas Land Transfer Regulations, 1959, as amended by the Andhra Pradesh Regulation 1 of 1970 on the ground that it is not able to extent its finances, it was held, after referring to the aforesaid provisions, as follows: “It will thus be plain that similar argument was advanced earlier by the non-tribal petitioners and was negatived by this Court. The said judgment is binding upon us. When the fundamental right of the non- tribals in regard to their immovable property is found not to have been affected as the restriction imposed was found to be reasonable, we fail to see how the Land Mortgage Bank can now complain that the Bank has got fundamental right to get the lands of non-tribals mortgaged with them for the purpose of securing the loans which they propose to advance to the non-tribals. When thus the non-tribals cannot transfer their lands except to the tribals and that provision of law has been found to be intra vires of the Constitution, we are unable to understand how the Land Mortgage Bank who draws interest in the immovable property or land only from the non-tribal people to whom the Bank advances the loan and gets the land mortgaged can be said to have better rights than the non- tribal people. The interest of the Land Mortgage Bank would be subjected to the same restrictions as are imposed upon the principal non-tribal who holds the land. We do not therefore think that the restriction, which has been found by this Court to be reasonable in so far as non-tribals are concerned, can be said to be unreasonable in so far as Land Mortgage Bank is concerned. We do not therefore experience any difficulty in rejecting this contention.” In view of the aforesaid valid precedent, it can safely be said that no such benefit could have been extended to in liberalization fashion by the Government in deviating the letter of the law and the protection founded under the Constitution. In the counter affidavit filed on behalf of the respondents, which is sworn to by the then Assistant Secretary, M. Sarada, it sought to justify the circular stating that the safeguard is only in regard to the sale of the lands in the scheduled area, but not against any non-tribal residing in scheduled area who can mortgage the land under his possession to any financial institutions approved by the government for the said purpose. Therefore, it tries to say that the Government by its order in G.O.Ms.No.2, Social Welfare (I.TR) Department, dated 01-01-2000 approved the A.P. State Housing Corporation Limited as a financial institution for the purpose of advancing loans to non-tribals residing in scheduled area on mortgage of superstructure as security towards loan. It is further stated that the circular is to facilitate the non- tribal beneficiaries residing in the scheduled areas to raise the loans from the said Corporation for construction of houses by mortgaging the superstructure to be constructed. It is not back door regularization of land possessing by the non-tribals in the scheduled areas. Surprisingly, this assertion on the part of the Government in trying to justify and extending the enabling provision to such non-tribals in the scheduled areas could not have been made to the detriment of those who are sought to be protected in the area. The move by the Government through the circular is certainly a way out which they could not have done directly. By reading the aforesaid provision of the Constitution and also the provisions of the A.P. Scheduled Areas Land Transfer Regulations, 1959, there is no question of any semblance of right, title and interest whatsoever in nature in respect of any person other than a tribal in the scheduled area. In such an event, the creation of any such enforceable right in a prohibited area, which is amply protected under the Constitution, is not only illegal, but also ultra vires the Constitution. It is also seen, on a bare reading of the circular, that except taking the decision suo moto on its own instance, there is no consultation or whatsoever in nature nor consideration of the rights of the tribals in the area which could be affected. No justification also has been made to have such exemptive act on the part of the Government. Even otherwise, there being no such sanction under the Constitution, there could not have been any such move by the Government other than the manner contemplated under the law. In view of the aforesaid reasons, we are of the view that the impugned circular is totally vitiated and liable to be set aside. Accordingly, the writ petition is allowed and Para-3 of the impugned Circular Memo No.889/RH1/99, dated 08-07-1999, is set aside declaring the same as ultra vires the Constitution and also the provisions of the A.P. Scheduled Areas Land Transfer Regulations, 1959. No order as to costs. _________________ B. PRAKASH RAO, J __________________ V.SURI APPA RAO, J Date:06-04-2011 L.R. copy to be marked. YCR [1] AIR 1997 SC 3297