*THE HON’BLE Ms. JUSTICE G. ROHINI +WRIT PETITION NO.20733 OF 2002 & BATCH % 14/08/2006 # Karatam Narayana Rao .... PETITIONER AND $ The Government of A.P., Rep., by Secretary, West Godavari District, Eluru and six others. ....RESPONDENTS < Gist > Head Note : ! Counsel for the petitioner : Sri M.R.K. Amarendra Kumar ^ Counsel for the respondents : Govt. Pleader for Social Welfare Cases Referred : [1] 2000 (2) ALD 365 2 2000 (4) ALD 443 3 2001 (6) ALT 226 (F.B.) 4 2002 (4) ALT 669 (D.B.) 5 1994 (2) An.W.R. 216 6 1999 (5) ALD 430 THE HON’BLE Ms. JUSTICE G. ROHINI WRIT PETITION NO.20733 OF 2002, WRIT PETITION NO.22929 OF 2001, WRIT PETITION NO.15197 OF 2002, WRIT PETITION NO.11849 OF 2002, AND WRIT PETITION NO.9507 OF 2002 DATED: 14th AUGUST, 2006. In W.P.No.20733 of 2002 Between: Karatam Narayana Rao .... PETITIONER AND The Government of A.P., Rep., by Secretary, West Godavari District, Eluru and six others. ....RESPONDENTS In W.P.No.22929 of 2001 Between: Gadde Raghunatharao ..... PETITIONER AND The Agent to Government, West Godavari District, Eluru and six others. ....RESPONDENTS In W.P.No.15197 of 2002 Between: Karatam Surendranath Benarji ..... PETITIONER AND The Agent to Government/District Collector(TW), West Godavari District, Eluru and six others. ....RESPONDENTS IN W.P.No.11849 of 2002 Between: Gandrothu Veera Raghavamma ... PETITIONER AND The Agent to Government/District Collector(TW), West Godavari District, Eluru and six others. .. Respondents AND IN W.P.No.9507 of 2002 Between: Karatam Surendranath Benarji ..... PETITIONER AND The Agent to Government/District Collector(TW), West Godavari District, Eluru and two others. ....RESPONDENTS THE HON’BLE Ms. JUSTICE G. ROHINI WRIT PETITION NO.20733 OF 2002, WRIT PETITION NO.22929 OF 2001, WRIT PETITION NO.15197 OF 2002, WRIT PETITION NO.22929 OF 2001, WRIT PETITION NO.11849 OF 2002, AND WRIT PETITION NO.9507 OF 2002 COMMON ORDER: All these writ petitions, which arise out of the orders of ejection passed under the provisions of A.P. Scheduled Area Land Transfer Regulation, 1959 (for short “the Regulation 1 of 1959), involve common questions of fact and law. Hence, they are heard together and decided by this common order. The lands, which are the subject-matter of this batch of writ petitions, are admittedly situated in Buttaigudem village of West Godavari District which is declared as an agency area attracting the provisions of Regulation 1 of 1959. The petitioners in all these writ petitions are non-tribals, who claim title and possession in respect of various extents of lands situated in different survey numbers of Buttaigudem village. One Basha Venkanna and three others, who are arrayed as respondents 5 to 8 in all these writ petitions, filed W.P.No.7147 of 1997 seeking a declaration that the action of the respondents therein in not taking any steps for restoration of the lands situated in R.S.Nos.414/2, 416, 417/1, 418, 419 and 420 of Buttaigudem Village of West Godavari District as arbitrary and illegal. While claiming to be the members of a Scheduled Tribe, it was alleged that they were evicted forcibly from the above lands and though they made a representation, the officials failed to take any action for restoration of the lands in terms of the provisions of the Regulation 1 of 1959 read with Regulation 1 of 1970. The said writ petition was disposed of by this Court by order dated 10-04-1997 with a direction to the Special Deputy Collector, Tribal Welfare, Kota Ramachandrapuram, West Godavari District to dispose of the representation made by the petitioners therein, as expeditiously as possible, preferably within a period of four months after conducting necessary enquiry in accordance with law. Pursuant thereto, the Special Deputy Collector (Tribal Welfare), Kota Ramachandrapuram, issued notices to the petitioners in W.P.No.20733 of 2002, W.P.No.22929 of 2001 and W.P.No.11849 of 2002 apart from one Karatam Lakshmi Kanthamma calling upon them to show-cause as to why they should not be evicted from the petition schedule lands. In the schedule to the said notices, the land in question was described as Ac.40.00 of land out of Ac.80.00 covered by old Patta No.17 of Gallavarigudem village, which the respondents 5 to 8 herein claimed as their ancestral property and sought restoration alleging that they were forcibly dispossessed. The respondents claimed that as per the survey and settlement operations conducted during the period from 1970 to 1977, old Patta No.17 correlates to the land situated in R.S.Nos. as under: New RS.No. Extent Ac-cts. 413 13.89 414/1 3.90 414/2 3.24 415 10.58 416 4.28 417/1 8.50 417/2 4.35 418 7.86 419 7.35 420 9.20 427/1 1.04 _______ Total 74.19 The petitioners in W.P.Nos.20733 of 2002 (Karatam Narayana Rao), W.P.No.22929 of 2001 (Gadde Raghunadha Rao) and W.P.No.11849 of 2002 (Gandrothula Veera Raghavamma) submitted their detailed explanations denying the allegations made in the show- cause notices and stating that their possession was not in contravention of the provisions of the Regulation 1 of 1959. It was also pleaded that the proceedings initiated against them earlier under Section 3(2) of Regulation 1 of 1959 read with Regulation 1 of 1970 on the same allegations in respect of the same land were decided in their favour after due enquiry and therefore, fresh proceedings were unwarranted apart from being arbitrary and illegal. Before going into further details, for proper appreciation of the controversy involved, it is necessary to note the facts in brief in each writ petition as under : W.P.No.20733 of 2002 (Karatam Narayana Rao): He claims title and possession in respect of Ac.4.65 cents in R.S.No.757, Ac.7.35 cents in R.S.No.419, Ac.4.20 cents in R.S.No.420, Ac.7.86 cents in R.S.No.418 and Ac.3.34 cents in R.S.No.414/2 of Buttaigudem village. It is stated that an extent of Ac.40.00 forming part of old Patta No.17 was purchased by his grandfather by name Mareddi Sarvaryudu from a tribal by name Basha Muthi Gadu under Registered sale deed No.174/1933 after obtaining the permission from the Assistant Agent of Bhadrachalam vide proceedings dated 08.06.1932. Another extent of Ac.40.00 was also purchased by his grandfather from one Nissakula Venkanna, who was a non-tribal, under a Registered sale deed dated 16.05.1928. Out of the above lands, different extents situated in R.S.Nos.757, 419, 420, and 418 as mentioned above were allotted to the petitioner in the family partition and from the said date he continued in possession and enjoyment of the same. While so, the Special Deputy Tahsildar (TW), Kota Ramachandrapuram filed a complaint under Section 3 (2) (a) of Regulation 1 of 1959 complaining that the above said lands in possession and enjoyment of the petitioner, a non-tribal, who in contravention of Section 3(1) of Regulation 1 of 1959. In pursuance thereof, the Special Deputy Collector (TW) having registered a case being SR.No.262 of 1984 issued a show-cause notice, to which the petitioner submitted his explanation denying the allegations. After conducting due enquiry, the Special Deputy Collector (Tribal Welfare) held that the transactions under which the petitioner acquired the land were not hit by the provisions of Regulation 1 of 1959 as amended by Regulation 1 of 1970 and accordingly rejected the complaint made by the Special Deputy Tahsildar (TW). Since the said order dated 23-07- 1990 became final, the petitioner contended that the fresh proceedings initiated in respect of the very same land were not maintainable. W.P.No.22929 of 2001 (Gadde Raghunatharao): He claims title and possession in respect of Ac.10.00 of land situated in R.S.No.415 and Ac.15.16 cents of land in R.S.Nos.416 and 417/1 of Gallavarigudem village, h/o Buttaigudem village. It is stated that the said Ac.10.00 of land in R.S.No.415 was purchased by him (being minor represented by his mother Smt.Gadde Mangamma) on 01-09-1967 under an agreement of sale from Karatam Ramachandrarao, a non tribal. So far as Ac.15.16 cents of land situated in R.S.No.416 and 417/1 is concerned, it is stated that the same was purchased by his father under an agreement of sale dated 01-09-1967 from one Karatam Mohanarao, a non-tribal. Under the said agreements, they were put in possession and since then they have been continuing in possession and enjoyment of the land. While so, on a complaint made by the Special Deputy Tahsildar (TW) under the provisions of Regulation 1 of 1959 as amended by Regulation 1 of 1970, proceedings for eviction were initiated against his mother and father (Smt. Gadde Mangamma and Sri Gadde Satyanarayana) in S.R.No.17/89 and S.R.No.76/79 respectively under Section 3 (2) (a) of Regulation 1 of 1959. However, the said proceedings were disallowed by orders dated 01-07-1990 and 09-05- 1980 respectively holding that their possession was not in contravention of the provisions of the Regulation 1 of 1959. The said orders became final and therefore, the Special Deputy Collector (TW) has no jurisdiction to make a fresh enquiry in respect of the very same lands. It was also pleaded that on an application made by him under Section 9 of Regulation 2 of 1970 seeking grant of Ryotwari patta in respect of the above said lands, the Settlement Officer, Eluru, having conducted due enquiry, by order, dated 20-6-1986, granted patta in favour of the petitioner in respect of Ac.4-28 cents in RS.No.416 and Ac.8-50 cents in RS.No.417/1 of Buttaigudem village and the said order has become final. W.P.No.11849 of 2002 (Gandrothula Veera Raghavamma): She claims to be the owner of the land situated in R.S.No.414/2 to an extent of Ac.3.34 cents of Buttaigudem village. It is claimed that the said land was purchased by her grand father by name Mareddi Sarvarayudu from a non-tribal by name Nissakula Venkanna under a registered document dated 16-05-1928 and during the family partition the same was allotted to her. It was also stated that on a complaint made by the Special Deputy Tahsildar (TW) Kota Ramachandrapuram, though eviction proceedings were initiated against her bother Karatam Narayanarao in S.R.No.262 of 1984 on the file of the Special Deputy Collector (TW) Kota Ramachandrapuram, the said proceedings were disallowed by order dated 23-07-1990. Subsequently, in pursuance of the order in W.P.No.7147 of 1997, when the proceedings were reopened, she was also served with a notice and her husband Gandrothula Veera Raghavulu appeared before the Special Deputy Collector and deposed that Ac.3-24 cents of land situated in RS.No.414/2 was given to his wife Gandrothula Veera Raghavamma as Pasupukumkuma at the time of marriage about 40 years ago. The said land originally belonged to Mareddi Sarvarayudu, maternal grandfather of Gandrothula Veera Raghavamma, having purchased the same under a Registered Sale Deed, dated 15-3-1928, from Nissakula Venkanna, a non-tribe. The said land was given to his daughter Karatam Lakshmi Kanthamma as Pasupukumkuma and in turn, the same land was given to Gandrothula Veera Raghavamma as Pasupukumkuma at the time of her marriage. Thus, it was pleaded that the land in possession of Gandrothula Veera Raghavamma originally belonged to a non-tribe and has nothing to do with the complainants Basha Pullaiah and Muthyalu. From the above explanations, it is clear that the petitioners in all the said three writ petitions raised a specific objection that in view of the orders already passed by the Special Deputy Collector (TW), dropping the eviction proceedings initiated under Section 3 (2) (a) of Regulation 1 of 1959, reopening of the case in SR.No.262 of 1984 was per se bad in law and without jurisdiction. The Special Deputy Collector (TW), though took note of the said objection, proceeded with the enquiry and recorded a finding on merits that the writ petitioners did not acquire valid title in respect of the land in their possession since there was no material to establish the permission of the Assistant Agent to the Government, dated 8-6-1932. Accordingly, by order, dated 22-12-1997, S.R.No.262 of 1984 was allowed and the Mandal Revenue Officer, Buttaigudem was directed to take possession of the petition schedule land which was registered under Document No.174/1933 as per the boundaries noticed in the document and restore the same to the original transferor of the petition schedule land or to his legal heirs. The petitioner in W.P.No.20733 of 2002 (Karatam Narayana Rao) along with her sister Gandrothula Veera Raghavamma (Petitioner in W.P.No.11849 of 2002) preferred an appeal being SRA.No.3/1998 before the Agent to the Government. The said appeal was dismissed by order dated 26-11-2001 and the Revision preferred by him before the Government was also dismissed vide G.O.Ms.No.111, Social Welfare (LTR.1) Department, dated 30-9-2002. Aggrieved by the same, he filed W.P.No.20733 of 2002. Similarly, questioning the order of eviction in SR.No.262/84, the petitioner in W.P.No.22929 of 2001 (Gadde Raghunadha Rao) preferred SRA.No.4/1998 before the Agent to the Government. The said appeal was dismissed by order dated 20-10-2001. He did not prefer any further Revision, but filed W.P.No.22929 of 2001 challenging the order of the Special Deputy Collector, dated 22- 12-1997 as confirmed in SRA.No.4/1998. The petitioner in W.P.No.11849 of 2002 (Gandrothula Veera Raghavamma) who was one of the appellants in SRA.No.3/1998 alleged that pursuant to the dismissal of the said Appeal, the Mandal Revenue Officer was attempting to take possession of her land to an extent of Ac.3-34 cents situated in RS.No.414/2 which did not form part of 40 acres of land covered by Old Patta No.17, which was the subject-matter of the claim made by the respondents 5 to 8. Hence, she filed W.P.No.11849 of 2002 seeking a declaration that the order of the Special Deputy Collector, dated 22-12-1997 in SR.No.262/84 as confirmed in SRA.No.3/1998 by the Agent to the Government as arbitrary and illegal. W.P.Nos.9507 of 2002 and 15197 of 2002 (Karatam Surendranath Benarjee) These two writ petitions are filed by one Karatam Surendranath Benarjee, S/o. Karatam Butchi Raju, who claims to be the owner and possessor of the land to an extent of 5.62 hectares in R.S.No.413, 1.5 hectares in RS.No. 414/1 and 0.42 hectares in R.S.No.427 of Gallavarigudem village, h/o. Buttaigudem. It is stated that his paternal grandmother Karatam Lakshmikanthamma was given an extent of Ac.40-00 cents of land in Gallavarigudem village as Pasupukumkuma by her father Mareddy Sarvarayudu, who purchased the said land under a Registered Sale Deed dated 4-5-1933 from a tribal Basha Muttigadu after obtaining the permission of the Assistant Agent to the Government, Bhadrachalam vide proceedings dated 8-6-1932. It is stated that another extent of Ac.16-00 cents was purchased by his grandmother Lakshmi Kanthamma under a Registered Sale Deed, dated 3-7-1929 from one Borra Subbaiah. During the family partition effected in the year 1957, the said land fell to the share of his father Karatam Butchi Raju. After the death of Karatam Butchi Raju, the petitioner succeeded to the said land. On a complaint made by the Deputy Tahsildar (TW), K.R. Puram eviction proceedings were initiated during the lifetime of his father by the Special Deputy Collector (TW), K.R. Puram vide S.R.Nos.145/1985, 341/1985 and 343/1985 under Section 3 (2) (a) of Regulation 1 of 1959. However, after conducting due enquiry, the cases were dismissed by a common order dated 3-8-1990 and the said order became final. That apart, in terms of the provisions of Regulation 2 of 1970 the Settlement Officer, Kovvur, W.G. District granted ryotwari patta in respect of the above said land vide proceedings dated 28-8-1997 in favour of his father Karatam Butchi Raju. While so, having reopened the proceedings in SR.No.262/84 in respect of the land covered by old Patta No.17 of Buttaigudem village, the Special Deputy Collector (TW) passed an order of ejectment in respect of 40 acres of land out of 80 acres situated in Patta No.17. The petitioner (Karatam Surendranath Benarjee) was not a party to the said proceedings and no notice was issued to him at any point of time and as a matter of fact the lands in his possession did not form part of the 40 acres of land in respect of which ejectment was ordered. However, the Mandal Revenue Officer, Buttaigudem, in pursuance of the order of ejectment in SR.No.262/84, started interfering with the possession of the petitioner and attempted to evict him from the lands in his possession. In the circumstances, he filed W.P.No.9507 of 2002 seeking a declaration that the action of the respondents in trying to evict him from the lands in his occupation as arbitrary and illegal. Pending the said writ petition, this Court granted interim stay of all further proceedings including eviction of the petitioner from the lands in question. However, it is alleged that he was dispossessed by the Mandal Revenue Officer under a panchanama. Hence, he filed W.P.No.15197 of 2002 contending that reopening of the case in SR.No.262/84 and passing an order of eviction without notice to him or his father Karatam Butchi Raju, is arbitrary and illegal. Accordingly, he sought a writ of certiorari to call for the records relating to the order dated 22-12-1997 in SR.No.262/84 on the file of the Special Deputy Collector (TW), K.R. Puram as well as the consequential proceedings and to quash the same being arbitrary and illegal. Counter-affidavits have been filed by the Special Deputy Collector (TW), K.R. Puram on behalf of the official respondents contending that the purchase through Document No.174/33 from a hill tribe was void in the absence of the permission from the competent authority. The permission dated 8-6-1932 said to have been obtained from the Assistant Agent, Bhadrachalam was never produced in the earlier proceedings for ejection and the orders dropping the said proceedings were obtained by the petitioners by fraud. Hence, as per the orders in W.P.No.7147 of 1997, the matter was enquired afresh after giving notice to both the parties and the order of ejection was rightly passed. The allegation that the Mandal Revenue Officer, Buttaigudem had taken possession of more than 40 acres without identifying the lands was denied and it is stated that the possession of 40 acres out of 80 acres was taken as per the boundaries noted in the Registered Document No.174/1933 and the same was handed over to the respondents 5 to 8 on 26-2-2002. In the counter-affidavits filed on behalf of the respondents 5 to 8, it is stated that the lands in question said to have been acquired by the writ petitioners were originally held by Basha Pullaiah and Basha Muthyalu, who were hill-tribes. The transactions under which the petitioners said to have acquired title to the said lands were hit by the provision of Regulation 1 of 1959 as amended by Regulation 1 of 1970. Hence, being the legal heirs of Basha Pullaiah and Basha Muthyalu, they filed W.P.No.7147 of 1997 and after a detailed enquiry the Special Deputy Collector (TW), K.R. Puram passed order of ejection and the same was confirmed in Appeal and Revision. The orders said to have been passed under Regulation 1 of 1970 granting patta in favour of some of the petitioners are not binding on them since the same were granted by misleading the authorities and without notice to them. Since the transaction under which they acquired the land itself was null and void, while ordering ejectment the land in question was rightly directed to be restored to them. I have heard the learned Counsel for both the parties and perused the material on record. The learned Counsel for the petitioners Sri P.R.K. Amarendra Kumar primarily contended that the Special Deputy Collector (TW) has no jurisdiction to reopen the proceedings in SR.No.262/84 and to make a fresh enquiry which is nothing but review of the earlier orders passed under Section 3 (2) (a) of Regulation 1 of 1959 in respect of the very same property. In support of the said submission, the learned Counsel for the petitioners relied upon the decisions of the Division Bench in DATLA NARASIMHA RAJU AND OTHERS vs. PRINCIPAL SECRETARY TO GOVERNMENT OF A.P. SPECIAL WELFARE DEPARTMENT AND OTHERS[1] and C. RAMALINGA RAJU v. DISTRICT COLLECTOR, ELURU, WEST GODAVARI DISTRICT[2]. The learned Government Pleader appearing for the respondents 1 to 4 contended that the principle of res judicata is not applicable since the parties to the earlier proceedings and the present proceedings are entirely different. The learned Government Pleader pointed out that whereas the earlier proceedings initiated suo motu ended in dismissal, fresh proceedings were initiated on a complaint made by the aggrieved tribals in compliance with the order of this Court in W.P.No.7147 of 1997. The learned Counsel for the respondents 5 to 8, Sri V. Venugopala Rao, contended that the concurrent findings recorded by the respondents 1 to 3 are based on proper appreciation of the material on record and the same do not warrant any interference. The learned Counsel, while submitting that in pursuance of the impugned order of ejectment the possession of the land in question was already taken by the Mandal Revenue Officer, Buttaigudem and the same was handed over to the respondents 5 to 8 in the year 2002 itself, contended that since the earlier orders were obtained by the petitioners by playing fraud, the Special Deputy Tahsildar (TW) has inherent power to recall the earlier order even in the absence of specific power of review under Regulation 1 of 1959. In support of his contention, the learned Counsel has relied upon a decision of the Full Bench in DIGAMBAR RAO v. GOVT. OF A.P.[3]. Section 3 of Regulation 1 of 1959 runs as under : 3. Transfer of immovable property by a member of a Scheduled Tribe :-- (1) (a) 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 person, whether or not such person is a member of a Scheduled Tribe, shall be absolutely null and void, unless such transfer is made in favour of person, who is a member of a Scheduled Tribe or a society registered or deemed to be registered under the Andhra Pradesh Co-operative Societies Act, 1964 (Act 7 of 1964) which is composed solely of members of the Scheduled Tribes. (b) Until the contrary is proved, any immovable property situated in the Agency tracts and in the possession of a person who is not a member of Scheduled Tribe, shall be presumed to have been acquired by person or his predecessor in possession through a transfer made to him by a member of a Scheduled Tribe. (c) … … .. .. .. .. . . (2) (a) Where a transfer of immovable property is made in contravention of sub-sec. (1), the Agent, the Agency Divisional Officer or any other prescribed Officer, may on application by any one interested, or on information given in writing by a public servant, or suo motu decree ejectment against any person in possession of the property claiming under the transfer, after due notice to him in the manner prescribed and may restore it to the transfer or his heirs. (b) … … .. .. .. .. . …” On a reading of sub-section (2) of Section 3 of Regulation 1 of 1959, it is clear that the proceedings for ejectment can be initiated either on application by anyone interested or on information given in writing by a public servant or suo motu by the Agent or the Agency Divisional Officer or any other prescribed officer. As noted above, the earlier proceedings of ejectment were initiated in respect of the land claimed by the petitioners under Section 3 (2) of Regulation 1 of 1959 on complaints/information given by the Special Deputy Tahsildar. In the complaints made by the Special Deputy Tahsildar (TW), it was alleged that the schedule mentioned lands situated in an agency area, were in possession and enjoyment of non-tribals in contravention of sub-section (1) of Section 3 of Regulation 1 of 1959. In pursuance thereof, having issued a show- cause notice and having considered the explanations offered by the writ petitioners together with the evidence produced both oral and documentary, the Special Deputy Collector held that the cases were not hit by the provisions of Regulation 1 of 1959 as amended by the Regulation 1 of 1970. Admittedly, the subsequent proceedings were initiated on a complaint made by the respondents 5 to 8 herein who are the tribals, claiming title to the lands in question in terms of the order in W.P.No.7147 of 1997. It is not in dispute