HONOURABLE SRI JUSTICE A.GOPAL REDDY AND HONOURABLE SRI JUSTICE P.DURGA PRASAD WRIT APPEAL No.889 OF 2004 Between: The District Collector and others …. Appellants and Palacherla Sattiraju and others …. Respondents This court made the following: HONOURABLE SRI JUSTICE A.GOPAL REDDY AND HONOURABLE SRI JUSTICE P.DURGA PRASAD WRIT APPEAL No.889 OF 2004 JUDGMENT: (per the Hon’ble Sri Justice A.Gopal Reddy) This writ appeal under clause 15 of the Letters Patent Appeal is directed against the order of the learned Single Judge of this Court in allowing W.P.No.35068 of 1997, dated 09.01.2004. Facts, which give rise to this appeal, are briefly stated as under: Writ petitioners, who are 8 in number, obtained a rule from this Court calling upon the respondents to show cause as to why a writ in the nature of Certiorari shall not be issued for calling up of the records relating to case Nos.L3/24/95 to L3/33/95 on the file of the Commissioner of Survey Settlement and Land Records, Hyderabad- respondent No.2, dated 10.12.1997, in dismissing the appeals preferred by the petitioners and confirming the orders of the District Collector, East Godavari District-respondent No.1 in A.P.Nos.1/1990 to 10/1990, dated 11.11.1994, and to quash the same and consequently set aside the assignment of the schedule land made to third parties enumerated in annexure-I to the writ petition and grant patta to the petitioners under Section 5 of A.P.Mutta Regulations (Abolition and Conversion into Ryotwari) Regulation, 1969 (for brevity, “Act 2 of 1969”) and restore possession in respect of the land shown at Annexure – I situated in Mallavaram Mamillu addateegala Mandal, East Godavari District. The facts of the case have been set out in detail in the impugned order and hence we are not repeating the same here. The Governor of Andhra Pradesh, in exercise of powers under Paragraph 5(2) of the Fifth Schedule to the Constitution of India and with the assent of the President of India, made the Act 2 of 1969. Under these Regulations, all the rights and interests of a Muttadar in respect of a Mutta created under the Sanad granted to him by the Government stood transferred to, and vested in the Government, free from all encumbrances. Certain enactments of the State Legislature were extended to such lands. Section 5 of Act 2 of 1969 provided for grant of ryotwari pattas in favour of ryots in a Mutta, in respect of agricultural lands held by him. This section provided a dichotomy between tribal and non-tribal ryots, in the matter of grant of ryotwari pattas. In case of tribals, it was sufficient if he was in possession of the land for a period of not less than one year immediately before the notified date. As regards non-tribal ryots, it stipulated that he shall have been in lawful possession or occupation of the land for a continuous period of not less than eight years, immediately before the notified date and that the possession or occupation of the land by them was not void or illegal under the Act 1 of 1959, or any other law for the time being in force. The Act 2 of 1969 came into force with effect from 26.12.1970. It is not in dispute that one Chekka Lingam Dora, Muttadar was granted rights and privileges in respect of lands in as many as 74 villages, called as ‘Ducharti Mutta’ in Yellavaram Division, East Godavari District by Sanad, dated 21.11.1918, by the Agent to Government of Erstwhile British Government. The Mutteddar was conferred with the rights to enjoy the lands subject to the condition that he shall not alienate the same by gift, mortgage or sale and that he shall pay a sum of Rs.1200/- towards Kattubadi. The Muttadar in turn had leased an extent of 100 acres of land of Buruguloddi village to one Tsalika Ramanna and others including Tsalika Tirupathaiah relinquished his share and the same was granted on lease to one Palacherla Kondal Rao. The petitioners claiming to be the legal descendents of the said Kondal Rao made applications for grant of ryotwari pattas under Section 5, to the Settlement Officer, Rajahmundry. Their applications were rejected through orders dated 02.04.1975 on the ground that their possession was not supported by any individual lease deed and that they do not derive any rights through a common lease deed of the year 1953. It was also observed that the petitioners failed to establish any lease subsequent to the expiry of the original lease and their possession was not valid during the period prior to the notified date. The appeals preferred by the petitioners before the Director of Settlement, respondent No.3, were dismissed for default through orders dated 23.04.1977. Subsequently they were restored to file. In the meanwhile, the then Tahsildar assigned an extent of about 30 acres to various individuals. The appeals were ultimately allowed through orders dated 25.11.1981. The Tahsildar preferred appeals before respondent No.2 against the orders of respondent No.3. These appeals were dismissed on 04.03.1983. Seeking the relief of cancellation of alienation of part of their lands, the petitioners filed W.P.No.11862 of 1984. While this writ petition was pending, respondent No.1-District Collector filed W.P.No.2859 of 1986, challenging the orders of respondent No.3, dated 25.11.1981, which was confirmed by respondent No.2 on 04.03.1983. Both the writ petitions were disposed of through a common order dated 19.09.1989 by setting the order of respondent No.3 and remanding the matter to him for fresh consideration. In the meanwhile, the Government changed the forum of appeal. The appellate jurisdiction, hitherto conferred on the Director of Settlements, was made over to the District Collector. Thereby the matters came to be dealt with by the District Collector, consequent to the remand. Through order dated 11.11.1994, the District Collector dismissed the appeals. Aggrieved thereby, the petitioners preferred further appeals before respondent No.3. The appeals were dismissed on 10.12.1997. Hence, the writ petition. Learned singe Judge after considering the various contentions advanced on either side by well considered order, dated 09.01.2004, allowed the writ petition setting aside the order passed by the Collector, dated 11.11.1994 as confirmed by the Commissioner, survey settlement, and land records and held that the petitioners are entitled to be granted Ryotwari Pattas under Section 5 of the Act 2 of 1969. Questioning the correctness of the order, the present writ appeal is filed. Learned Government Pleader for Revenue contends that the Regulation 5 of Act 2 of 1969 specifies lands in which ryot is entitled to ryotwari patta. As per proviso (a) of Regulation 5, such ryot who has been in lawful possession or occupation of land for a continuous period of not less than eight years, immediately before the notified date is entitled to ryotwari patta. Since the petitioners are non-tribes regulation 3 of the Act 1 of 1959, as repealed by sub-regulation 1(a) of regulation 3 prohibits transfer of immovable property. Original muttadar is a schedule tribe (hill tribe), whereas writ petitioners are not schedule tribes. The term ‘Transfer’ has been defined under regulation 2(g) of the Act 1 of 1959, whereas under The Agency Tracts Interest and Land Transfer Act, 1917 (for brevity, “Act 1 of 1917”) the term ‘Hill Tribe’ has been defined under Section 2(c). Under Section 4 of Act 1 of 1917 the transfer of immovable property by a member of a hill tribe has been prohibited notwithstanding any other law for the time being in force contrary to the said regulations. Section 3(5) of the Andhra Pradesh (Andhra Area) Estates Land Act, 1908 (for brevity, “Act 1 of 1908”) defines “landholder”, which has been repealed by the Andhra Pradesh (Andhra Scheduled Areas) (Estate Land Repealing) Regulation, 1943 (for brevity, “Act 1 of 1943”). Therefore, the finding recorded by the learned single judge defining the hill tribe and lawful possession is erroneous. The assignees are not made parties to the writ petition, hence, the writ petition is also liable to be dismissed for non joinder of necessary parties. Learned counsel for the respondents/writ petitioners sustained the impugned order contending that the Regulation 5 of Act 2 of 1969 only prescribe lawful possession and the act does not define lawful possession. In view of the above submissions, the point that arise for consideration is as to whether the finding recorded by the learned single Judge that the petitioners are entitled to be granted the ryotwari pattas under Section 5 of the Act 2 of 1969, is legal and sustainable? It is not in dispute that the lands in question were initially held by Muttadar under Sanad, dated 21.11.1918. On 26.08.1953 an extent of Acs.100-00 called Buruguloddi and Acs.100-00 called Mallavarapupadu in Nimmalapalem Village was granted by way of lease by Sri Rao Saheb Chekka Lingam Dora, Muttadar of Dutcherthi, Yellavaram Taluq in favour of Sri Tsalika Ramanna and others of Vetlapalem for bringing the land under cultivation. On Tsalika Tirupathaiah relinquishing his share, the Muttadar granted it to Palacherla Kondal Rao on 26.07.1954. The agent to Government by proceedings dated 24.06.1953 in Ref.F1-3359/58 cancelled the lease and ordered eviction of the lessees from the leased land on the ground that alienation of lands by lease was infringement of the conditions of Mutta Sanad granted to Muttadar and they adversely effect the interests of the tribesmen. On appeal by the lessees the order of the Agent was set aside by the Government in G.O.Ms.No.1681, dated 17.08.1960, on the ground that the agent failed to determine the Social status of the Muttadar and remitted the matter to the Agent for fresh enquiry. On such remand, the Agent by order dated 31.08.1961 held that the lease was null and void on the ground that Muttadar was a member of a hill tribe and writ petitioners are not the members of any hill tribe and directed their eviction. Against the orders of the agent, ordering eviction of the petitioners they filed appeal before the State Government and the same was dismissed in G.O.Ms.No.1997, Muttadar of Dutcharthi Sri Chekka Venkanna Dora and his son were held to be tribals i.e., Konda Kapu. When the Muttadar filed appeals against the very same order of the Agent, dated 31.08.1961, the Government through G.O.Ms.No.779 dated 08.08.1967, set aside the orders of the Collector and agent to Government in his proceedings, dated 31.08.1961 treating the Muttadar as Kapu by caste and not Konda Kapu and the lease granted by the Mutadar were held to be valid. Further it was held that under Section 3 of Regulation 1 of 1959 any transfer of immovable property situated in Agency Tracts by a member of the Schedule Tibe in favour of plainsmen alone was prohibited and that under condition-3 of the Sanad granted to Muttadar, the Mutadar alone had the right to enjoy the property without alienating it by way of gift, mortgage. or sale and as the transaction in question was not sale or transfer of ownership but only lease, in perpetuity condtion-5 of the Sanad was not attracted and there was nothing in the Sanad precluding plainsmen or plains community men from being a Muttadar in a tribal area. Consequent to the abolition of the Muttas under Muttas Regulation, rules were framed known as the Andhra Pradesh Muttas (Abolition and Conversion into Ryotwari) Rules, 1970 which came into force on 26.12.1970. As per the rules so framed, the petitioner made an application for grant of Ryotwari patta under Section 5 of the Mutta Regulations to the Settlement Officer, Rajahmundry. The settlement officer, by proceedings, dated 02.04.1975, held that the petitioners are not entitled to Ryotwari Patta as they produced common lease deed obtained from Muttadar in the year 1953 and did not produce any subsequent lease deeds or valid recorded evidence to prove valid possession and enjoyment of the land for a period of eight years prior to the notified date i.e., 26.12.1970. Aggrieved by the same, the petitioners filed appeal before the Director of Settlements, A.P.Hyderabad and the said appeals were dismissed on 23.04.1977. On petitioners filing application before the Director of settlement, the appeals have been restored by order dated 27.04.1981. Meanwhile, the petitioner filed W.P.No.3135 of 1978 for restraining the respondents from evicting them from their lands, in which this Court granted stay of their eviction on 16.08.1978 in WP.MP.No.4177 of 1978 in W.P.No.3135 of 1978. In the interregnum, the Tahsildar assigned an extent of Hectars 29-79 out of the total extent of Hectors 61.74 to 14 landless poor tribals, who brought the land into cultivation. On restoration of the appeals, the Director of Settlement allowed the appeals by order, dated 25.11.1981, holding that the writ petitioners have satisfied conditions under Section 5 of Muttas Regulation for grant of patta and that the Tahsildar in violation of the Government memo assigned the lands. The Tahsildar filed revision petition before the Commissioner, Survey, Settlement and Land Records against the order of the Director of settlement dated 25.11.1981. The said revision was dismissed confirming the orders of the Director of settlement by the Commissioner in his order No.L4/831/82, dated 04.03.1983. On dismissal of the revision filed by the Tahsildar, petitioners filed W.P.No.11862 of 1984 seeking cancellation of the assignment made by the Tahsildar. Whereas the District Collector-respondent No.1, filed W.P.No.2859 of 1986 for setting aside the order of the Director of Settlement, dated 25.11.1981, as confirmed by the Commissioner on 04.03.1983. Both the writ petitions were disposed of by a common order dated 19.09.1989 by a Division Bench of this Court remitting the matter to the Director of Settlement to dispose of the appeals preferred by the petitioners afresh in accordance with law. The remand order, reads as under: “The proper course in such a situation would be to direct that the said issue should be determined afresh in these proceedings. In other words, whether the lessor (Muttadar) was a member of hill tribe, as defined in the 1917 Act, and whether the lease, granted by him in favour of the petitioners is void and illegal within the meaning of section 4 of the said Act, should be decided afresh now. On this occasion, however, it is not necessary to hear the Muttadar because Muttas have been abolished and the only persons claiming ryotwari pattas are the petitioners. In this connection, the authority to whom we are sending the matter back, will also have to consider whether the Muttadar even if he is proved to be a member of hill tribe by birth ceased to be a member of hill tribe by virtue of being a landholder, as defined in the Estates Land Act. it hs to be examined whether the Muttadar can be treated as a landholder within the meaning of the 1908 Ct, and further what is the effect of repeal of 1908 Act, vis-à-vis the agency areas in 1943 (vide A.P. (Andhra Scheduled Areas) Estates Land Repealing regulation 1943, beig Regulation 1 of 1943)? In this connection, we may also point out that both the Director and the Commissioner in this case have held the Muttadar not to be a member of hill tribe on the ground that he is a landholder, as defined by the Estates Land Act, 1908. they have not held that the Muttadar is not a member of hill-tribe by birth. They have not, however, noted the effect of 1943 regulation repealing the Estates Land Act with respect to Agency areas. All these questions have to be examined a new.” On remand, the appeals were taken afresh by the Director of settlement renumbered them as A.P.Nos.1/1990 to 10/1990 and the said appeals were transferred to the Collector, East Godavari District at Kakinada, who was conferred with the appellate powers pursuant to the notification issued by the Government in G.O.Ms.No.741 (Revenue), dated 09.08.1990. Respondent No.1- the District Collector framed the following points for consideration:- 1. Whether the Muttadar was a member of hill tribe as defined under Act 1 of 1917? 2. Whether the lease granted by him in favour of the petitioners are void and illegal within the meaning of Section 4 of the said Act (Act 1/17)? 3. Whether the muttadar even if, he is proved to be a member of hill tribe by birth does he cease to be a member of hill tribe by being a land owner as defined in the Estates Land Act, 1908? 4. What is the effect of the repeal of estates Land act, 1908 vis-à-vis A.P.(Andhra Scheduled Areas) Estates Land Act repealing Regulation 1943 (Regulation 1 of 1943)? 5. Whether the possession of the appellant are lawful as contemplated in Section 5 of the Regulation 2 of 1969? On point Nos.1 and 2, it was held that Muttadar is a member of hill tribe and the lease deed shows that the lease deeds are for more than one year, which require registration and even if it is executed by a non-hill tribe, it has to be registered. Since the lease granted by the Muttadar under Section 4 of the Act 1 of 1917 was not registered, it is not a valid lease. On point Nos.3 and 4 it was held that Muttadar cannot be treated as a landholder within the meaning of Act 1 of 1908 for the reason that Act 1 of 1908 has been repealed by Act 1 of 1943. So the support taken by the Muttadar under the Act 1 of 1908 as he is landholder and not a member of hill tribe, cannot be acceptable since the Act 1 of 1908 has been repealed by Act 1 of 1943. Therefore, the definition of landholder as defined under the Act 1 of 1908 cannot be taken to the advantage of Muttadar. It was further held that the writ petitioners are continued to be in possession since the execution of the so called lease deed in pursuance of the court orders, Government orders or some other litigation. Since by birth Muttadar is a hill tribe, he cannot become a non hill tribe under the Act 1 of 1908, since it was repealed by Regulation 1 of 1943. Therefore, the muttadar cannot be treated as a landholder within the meaning of Act 1 of 1908. The transaction took place between the hill tribe and a non-hill tribe. On point No.5 it was held that as per Section 5 of Mutta Regulation, a ryotwari patta can be given to person who is in continuous possession or occupation of land for not less than 8 years prior to the notified date i.e., 26.07.1970 in case of non-tribals. According to section 2(g) of Act 1 of 1959 the transfer includes ‘lease’. Hence, the said transfer is hit by Section 3 of regulation 1 of 1959. The cist receipts do not establish that the writ petitioners were in continuous possession of the schedule land for eight years prior to the notified date. Therefore, no credence can be given to cist receipts and accordingly dismissed the appeals. On appeals being filed by the writ petitioners, the Commissioner, Survey Settlement and land records dismissed the appeals confirming the orders passed by the collector. There is no dispute with regard to the possession of the petitioners for more than eight years. As per Proviso (a) of Regulation 5 of Act 2 of 1969, such possession should be lawful possession or occupation of land for a continuous period of not less than eight years. The petitioners’ possession was treated as not lawful only on the ground that the lease in their favour was for a period of five years and the same was through an unregistered document. The Hon’ble Supreme Court in Krishna Kishore Firm v. Government of A.P. and others[1] drawn the distinction between lawful and legal. The principal distinction between the terms ‘lawful’ and ‘legal’ is that former contemplates the substance of law, the latter the form of law. To say of an act that it is lawful implies that it is authorized, sanctioned or at any rate not forbidden by law. Same thought about lawful has been brought out by Pollock and Wright by explaining that Lawful possession means a legal possession which is also rightful or at least excusable. Thus that which is not stricto legalo may yet be lawful. It should not be forbidden by law. In fact legal is associated with provisions in the Act, rules etc. whereas lawful visualises all that is not illegal against law or even permissible. Lawful is wider in connotation than legal. A tenant after expiry of period of lease may be holding over and the lessor may acquiesce in his continuance expressly or impliedly. That is from conduct of lessor the tenant’s possession may stand converted into lawful. The other may be where lessor may not agree to renew the lease nor he may acquiesce in his continuance. Such a lessee cannot claim any right or interest. Since the lawful possession is not being defined either under the Act 2 of 1969 or any of the enactments, the learned Single judge after elaborately considering the issue and after referring to the judgment of the Division Bench of this Court in M.Annapurnaiah v. M.Narasimha Rao[2] and the judgment of the Hon’ble Supreme Court in Bhawanji Lakhamshi v. Himatlal J.Amnadas Dani[3] held that they were lawfully inducted into possession by the Muttadars and that continuance over the possession of the land beyond five years does not render the possession illegal or unlawful. They can be treated only as a tenants by holding over or tenants by sufferance. It was further held that another limb of Section 5 of the Act 2 of 1969 is whether the possession or occupation of the land was not void or illegal under the Act 1 of 1959, which prohibits transfer of land in schedule area in favour of non-tribals. The Sanad issued in favour of Muttas prohibiting sale, mortgage and gift alone and it did not prohibit the lease of the land. Act 1 of 1959 came into force in the year 1959 including prohibiting the transfer by way of lease and the same will not have the effect of annulling the lease made prior to the enforcement of the Act 1 of 1959, as held by this Court in Venkata Ramanaiah v. Deputy Collector[4]and as upheld by the Full Bench of this Court in G.Narsa Reddy v. collector Adilabad[5] and the Hon;ble Supreme Court in Deputy collector v. S.Venkataramanaiah [6]. Once the Muttadar was held to be a non-tribal by the Government by allowing the appeals filed by him in G.O.Ms.No.779, dated 08.08.1967, which has become final, the learned single Judge rightly taking into consideration of the same set aside the finding of respondent No.1 that Muttadar was a hill tribe. He cannot stand over the finding recorded by the Government which has attained finality. The term ‘hill tribe’ as defined under Section 2(c) of Act 1 of 1917, is as follows: “2. (c) “Hill Tribe”:- Hill Tribe means any body or class of persons resident in the Agency tracts (not being a landholder as defined in the Andhra Pradesh (Andhra Area) Estates Lan Act, 1908 (Act 1 of 1908) that may from time to time be notified as such for the purposes of the Act by the State Government.” The term ‘Landholder’ as defined under Section 3(5) of Act 1 of 1908, is as follows: - “Sec.3(5)-Landholder: - Landholder means a person owning an estate or part thereof and includes every person entitled to collect the rent of the whole or any portion fo the estate by virtue of any transfer from the owner of his predecessor-in-title or of any order of a competent court or of any provision of law.” On repealing of the Act 1 of 1908 by Act 1 of 1943, it will not have any impact on the definition of hill tribe under the Act 1 of 1917. Hence, the Muttadar cannot be treated as a member of hill tribe being a landholder. Consequently, the possession and occupation of the land by the petitioners is not prohibited by the Act 1 of 1959 or by the Act