* THE HON’BLE SRI JUSTICE V.V.S.RAO AND THE HON’BLE SRI JUSTICE G.V.SEETHAPATHY + WRIT PETITION Nos. 1241, 3841, 11731, 11732, 11733, 14138, 23892, 4660 AND 26029 of 2005; 462, 13775, 13800, 18900, 23097, 26412, 26417, 21632 OF 2006; AND 1427, 1959, 2232, 2268, 1620, 2688, 3951, 4258, 4334, 4494, 4854, 3642, 6004 AND 6316 OF 2007 % Dated 09.08.2007 # Kurapati Lakshmaiah, S/o.Late Appaiah, and others. … Petitioners VERSUS $ Additional Agent to Government and Project Officer, ITDA, Bhadrachalam, Khammam District, and others. … Respondents. ! Counsel for Petitioners: Sri R.Kameswar Rao Sri P.Vishnuvardhan Reddy Sri P.V.Ramana Sri P.Veera Reddy Sri K.Rathanga Pani Reddy Sri Badana Bhaskara Rao Sri K.Venkatesh ^Counsel for Respondents: GP for Revenue GP for Social Welfare Sri K.Bala Gopal Sri M.Rajamalla Reddy Sri V.Raghu Sri Kowturu Vinaya Kumar GIST: >HEAD NOTE: ? Cases referred 1. AIR 1970 SC 951 (para 25) 2. 1971 (2) AnWR 123 3. AIR 1993 AP 312 (FB) THE HON’BLE SRI JUSTICE V.V.S.RAO AND THE HON’BLE SRI JUSTICE G.V.SEETHAPATHY WRIT PETITION Nos. 1241, 3841, 11731, 11732, 11733, 14138, 23892, 4660 AND 26029 of 2005; 462, 13775, 13800, 18900, 23097, 26412, 26417, 21632 OF 2006; AND 1427, 1959, 2232, 2268, 1620, 2688, 3951, 4258, 4334, 4494, 4854, 3642, 6004 AND 6316 OF 2007 Dated:09.08.2007 Between: Kurapati Lakshmaiah, S/o.Late Appaiah, and others. …Petitioners and Additional Agent to Government and Project Officer, ITDA, Bhadrachalam, Khammam District, and others. …Respondents THE HON’BLE SRI JUSTICE V.V.S.RAO AND THE HON’BLE SRI JUSTICE G.V.SEETHAPATHY WRIT PETITION Nos. 1241, 3841, 11731, 11732, 11733, 14138, 23892, 4660 AND 26029 of 2005; 462, 13775, 13800, 18900, 23097, 26412, 26417, 21632 OF 2006; AND 1427, 1959, 2232, 2268, 1620, 2688, 3951, 4258, 4334, 4494, 4854, 3642, 6004 AND 6316 OF 2007 COMMON ORDER: (Per Hon’ble Sri Justice V.V.S.Rao) Introduction and Background The petitioners in this batch of writ petitions are residents of different villages in either Khammam District or East Godavari District in State of Andhra Pradesh. Some Taluks/Mandals in these two Districts are scheduled areas having been statutorily notified as such long back. All the petitioners do not belong to scheduled tribes (in this order they are referred to as non-tribals). They own agricultural lands in their villages. They allege that either they or their ancestors or predecessors in title purchased from other non-tribals under agreements of sale and other transfer documents. In some cases, they also claim that they were granted ryotwari patta under relevant law. The jurisdictional Special Deputy Collector (Tribal Welfare) (SDC, for brevity) initiated action under Section 3(2) of Andhra Pradesh Scheduled Areas Land Transfer Regulation, 1959 (Regulation No.I of 1959), as amended by Regulation I of 1970 (the Regulation, for brevity). All the petitioners were ordered to be ejected from the respective lands and land in their possession was directed to be restored to the Government or persons belonging to scheduled tribes. The petitioners then filed appeals under Section 3(3)(a)(ii) of the Regulation before the concerned District Collector and Agent to the Government. Agent to the Government transferred the cases to Project Officer of Integrated Tribal Development Agency (ITDAs), who is Additional Agent to the Government. In some of the cases, Additional Agent dismissed the appeals upholding the orders of SDC. In some cases, action was dropped by original authority, but on appeal by the tribals or Special Deputy Tahsildar (SDT, for brevity), Additional Agent ordered notice of hearing. In some cases, Additional Agent declined to condone the delay in filing appeal or declined to grant stay of orders of original authority. A writ petition is also filed challenging the order of the Agent transferring the case to Additional Agent. In this varied background, all the petitioners filed these writ petitions challenging Notification of the Government in G.O.Ms.No.193, Revenue (SCR.I) Department, dated 17.04.2002, whereby and where under Project Officers, ITDAs are designated as Additional Agents. Facts in brief Taking W.P.No.14138 of 2005 as an illustrative case, the facts may be noticed. The petitioner is in possession of land admeasuring Acs.2.04 guntas in survey No.312 situated at Janampet Village of Pinapaka Mandal of Khammam district. He claims possession of the property from 1962, through his grandfather, Devuni Subbaiah @ Devuni Subba Reddy, whose name is allegedly incorporated in revenue accounts like 10(1) Adangals, Pahani Patrika for 1962-1963. Korsa Laxmaiah (fourth respondent in W.P.No.14138 of 2005) gave a complaint to SDC, Paloncha, alleging that the petitioner encroached his lands to an extent of Acs.3.00 in survey Nos.312 and 313 and prayed for restoration of the same. SDC, Paloncha, dismissed the said L.T.R.Case on 16.07.1992, recording finding that there is no transfer of land contrary to the Regulation. Laxmaiah then filed appeal before the Additional Agent, Bhadrachalam in C.M.A.No.12 of 2004. The same was allowed directing the Mandal Revenue Officer, Pinapaka (MRO) to take possession of the land from petitioners and assign it to Laxmaiah. Therefore, the writ petition is filed challenging the Government Notification vide G.O.Ms.No.193 and for a writ of Mandamus invalidating the order of Additional Agent in C.M.A.No.12 of 2004. In W.P.Nos.11731, 11732, 11733, 14138, 23892, 4660 and 26029 of 2005; 462 and 13775 of 2006 also, the Government Notification along with the orders of the Additional Agent are impugned. In W.P.Nos.13800, 18900, 23097, 26412, and 26417 of 2006; 1427, 1959, 2232, 2268, 1620, 21632, 2688, 3951, 4258, 4334, 4494, 4854, 3642, 6004 and 6316 of 2007, the Civil Miscellaneous Appeals filed either by SDT or the concerned tribals are challenged even though final orders are not passed by Additional Agent. In this group, the facts in W.P.No.13800 of 2006 filed by six (6) residents of Induripet Village, Devipatnam Mandal in East Godavari District may be noticed. One Chandrupatla Hanumantha Rao and Mirthivada Subba Reddy purchased an extent of Acs.9.38 in R.S.No.5 (new survey No.309) under a registered sale deed, dated 23.08.1937 allegedly after obtaining permission from Special Agent to Government. The predecessors of the petitioners purchased land from Hanumantha Rao under registered sale deeds and sixth petitioner claims to be in possession of Acs.1.50 being grandson of Hanumantha Rao. In 1976, Mirthivada Parimi Reddy filed a petition before the Special Assistant Agent, against the vendor for ejectment. The said case being S.R.No.159 of 1976 was dismissed by Special Assistant Agent on 06.05.1996, holding that the transaction between non-tribals and non-tribals before 1959 is valid. Again in 1980, SDT filed L.T.R.P.No.314 of 1980 against grandfather of third petitioner. The same was dismissed on 19.10.1991. Yet again in 2004, SDT filed L.T.R.P.No.65 of 2004 alleging that the petitioners are in possession of land in contravention of the Regulation. The SDC dismissed these applications on 26.07.2004. Against the said order, SDT, Devipatnam, filed C.M.A.No.93 of 2005 before the Additional Agent to Government, East Godavari District. Questioning the jurisdiction of Additional Agent to entertain appeal, the petitioners filed the writ petition also challenging the Government notification conferring powers of Additional Agent on the Project Officer. The Secretary to Government of Andhra Pradesh in Social Welfare (Tribal Welfare) Department filed counter affidavit in W.P.No.14138 of 2005, which is treated as counter affidavit in all the cases. The issue of the impugned notification is justified under Regulation I of 1959 as amended by Regulation I of 1970 as well as Paragraph 5(1) of Fifth Schedule to Constitution of India (hereafter called Fifth Schedule). A reference is also made to Section 3 of A.P. District Collector’s Powers (Delegation) Act, 1961 (hereafter called, Delegation Act) and the Notification issued thereunder vide G.O.Ms.No.77, dated 22.01.1978. Submissions of Petitioners Learned Counsel for petitioners M/s.R.Kameswara Rao, P.V.Ramana and B.Bhaskara Rao, made the submissions to the following effect. The impugned notification in G.O.Ms.No.193, which is purportedly issued under Paragraph 5(1) of Fifth Schedule read with Section 3 of Delegation Act, is illegal and unconstitutional. Section 3 of Delegation Act empowers State Government to delegate the powers of District Collectors only in respect of laws made by State Legislature with reference to various legislative matters enumerated in List-II or List-III of Seventh Schedule to Constitution of India (hereafter called, Seventh Schedule). Regulation I of 1959 was made by the Governor in accordance with Paragraph 5(2) of Fifth Schedule and therefore the impugned notification is illegal and ultra vires. Regulation I of 1959 empowers the Government to designate only one “Agent to Government” (Agent, for brevity) and therefore there is no law empowering the Government to delegate powers to Project Officer, ITDA, as Additional Agent for the purpose of the Regulation. Unless and until consent of the President of India is obtained as required under Paragraph 5(4) of Fifth Schedule, the impugned notification cannot be enforced. The power of the Governor under Paragraph 5(1) of Fifth Schedule can be exercised only in the event of there being existing law made by the State Legislature. Unless and until the procedure contemplated under Paragraphs 4 and 5 is followed, the impugned notification is unsustainable. Lastly, the District Collector has no power to transfer appeals pending before him to Project Officer, ITDA. Submissions of Respondents Sri K.G.Kannabhiran, learned Senior Counsel, and Sri D.S.N.V. Prasad Babu, learned Government Pleader for Social Welfare, support the impugned G.O. as well as the orders passed by the District Collectors of East Godavari and Khammam Districts, in transferring the pending appeals to Project Officers of ITDA, who are now designated as Additional Agents for the purpose of the Regulation. Summary of their argument is as follows. All laws made by Parliament and State Legislature would apply to scheduled areas unless the Governor notifies under Paragraph 5(1) of Fifth Schedule that such law shall not apply or such law shall apply with certain modifications. While issuing a notification under Paragraph 5(1) of Fifth Schedule by the Governor, the Constitution does not require the assent of the President of India, which is only made mandatory in the case of Regulation made by the Governor for peace and good government of scheduled areas in the State. By impugned notification the Governor virtually applied Section 3 of Delegation Act and ordered that the powers of Agent under Regulation I of 1959 as an Additional Agent. To that extent Delegation Act (Act No.XXXII of 1961) has been modified by the Government of Andhra Pradesh and the same is valid. Under Paragraph 2 of Fifth Schedule, the executive power of the State extends to scheduled areas in the State and therefore it is always permissible for the Government to notify officers who can act as Agents in scheduled areas. Under Section 2(b) read with Section 8 of the Regulation, it is competent for State to designate Project Director of ITDA as Additional Agent and there is no bar to do so. The impugned G.O.Ms.No.193 is only modification of G.O.Ms.No.19 and without questioning the latter, the petitioners cannot maintain the challenge to G.O.Ms.No.193. Points for Consideration The background of cases and rival submissions give rise to following points for consideration. (1) Whether a notification issued by the Governor of State under Paragraph 5(1) to Fifth Schedule to Constitution of India shall have no effect until assented by the President of India? (2) Whether Section 3 of the District Collector’s Powers (Delegation) Act, 1961 (Act No.XXXII of 1961) would not apply to Regulation made by the Governor under Paragraph 5(2) of the Constitution of India? (3) Whether the Government of Andhra Pradesh cannot designate Project Director, ITDA, as Additional Agent to Government in Scheduled Areas? (4) Whether the District Collector/Agent to Government is not entitled to transfer cases pending before him to Additional Agent to Government (Project Director, ITDA)? In Re point No.1 Part X of Constitution of India deals with scheduled and tribal areas. Article 244(1) is to the effect that the provisions of Fifth Schedule shall apply to the administration and control of the scheduled areas and scheduled tribes in the States other than the States of Assam, Meghalaya, Tripura and Mizoram. As per Article 244(2), the provisions of VI Schedule apply to the administration of tribal areas in the States of Assam, Meghalaya, Tripura and Mizoram. Fifth Schedule to Constitution of India is titled as “Provisions as to the administration and control of Scheduled areas and Scheduled tribes”. It contains Parts A, B, C and D. Part C deals with the Presidential declaration of certain areas as scheduled areas and part D deals with amendment of Fifth Schedule. Part A contains three (3) Paragraphs. As per Paragraph 2, subject to provisions of Fifth Schedule, executive power of State extends to scheduled areas in the State. Paragraph 3 inter alia provides that the executive power of the Union shall extend to the giving of directions to the State as to the administration of the said areas. Part B contains two Paragraphs. Paragraph 4 deals with tribes advisory council, and Paragraph 5 contains five sub-Paragraphs. It is relevant and reads as under. 5. Law applicable to Scheduled Areas:- (1) Notwithstanding anything in this Constitution, the Governor may by public notification direct that any particular Act of Parliament or of the Legislature of the State shall not apply to a Scheduled Area or any part thereof in the State or shall apply to a Scheduled Area or any part thereof in the State subject to such exceptions and modifications as he may specify in the notification and any direction given under this sub-paragraph may be given so as to have retrospective effect. (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; (b) regulate the allotment of land to members of the Scheduled Tribes in such area; (c) regulate the carrying on of business as money- lender by persons who lend money to members of the Scheduled Tribes in such area. (3) In making any such regulation as is referred to in sub- paragraph (2) of this paragraph, the Governor may repeal or amend any Act of Parliament or of the Legislature of the State or any existing law which is for the time being applicable to the area in question. (4) All regulations made under this paragraph shall be submitted forthwith to the President and, until assented to by him, shall have no effect. (5) No regulation shall be made under this paragraph unless the Governor making the regulation has, in the case where there is a Tribes Advisory Council for the State, consulted such Council. A reading of Paragraph 5(1) shows that (i) all Acts made by the Legislature of the State or Parliament shall apply to the scheduled areas; (ii) it is competent to the Governor to direct that any such Act shall not apply to scheduled areas or any part of scheduled area; (iii) the Governor may direct that an Act or Parliament or State Legislature shall apply to a scheduled area or part thereof in the State subject to such exceptions and modifications as may be specified; and (iv) the Governor by public notification may prohibit enforcement of a law or enforcement of a law with modifications either with prospective or retrospective effect. That all laws made by State Legislatures and Parliament would automatically apply to schedule areas would become clear by reference to Government of India Act, 1935 (1935 Act, for brevity) which is repealed by Article 395 of Constitution of India. Section 91 of 1935 Act empowered Government of India to declare certain areas as excluded areas and/or partially excluded areas. Section 92 of 1935 Act provides for administration of excluded areas and partially excluded areas. The same reads as under. 92. Administration of excluded areas and partially excluded areas:- (1) The executive authority of a Province extends to excluded and partially excluded areas therein, but, notwithstanding anything in this Act, no Act, of the Federal Legislature, or of the Provincial Legislature shall apply to an excluded area or a partially excluded area, unless the Governor by public notification so directs, and the Governor in giving such a direction with respect to any Act may direct that the Act shall in its application to the area, or to any specified part thereof, have effect subject to such exceptions or modifications as he thinks fit. (2) The Governor may make regulations for the peace and good government of any area in a Province which is for the time being an excluded area, or partially excluded area, and any regulations so made may repeal or amend any Act of the Federal Legislature or of the Provincial Legislature, or any existing Indian Law, which is for the time being applicable to the area in question. Regulations made under this sub-section shall be submitted to the Governor-General and until assented to by him in his discretion shall have no effect, and the provisions of this part of this Act respect to the power of His Majesty to disallow Acts shall apply in relation to any such regulations assented to by the Governor-General as they apply in relation to Acts of a Provincial Legislature assented to by him. (3) Omitted. A plain reading of the above provision would reveal the position under 1935 Act as under. Though it is within the province of the Sovereign to declare an excluded area or partially excluded area, the executive Authority of the Province extends to such excluded or partially excluded areas. But the Act made by Federal Legislature or Provincial Legislature shall not apply to excluded or partially excluded areas unless the Governor by public notification directs that it shall apply (See Ram Kirpal v State of Bihar[1]). Under Section 92(2) of 1935 Act, it is only the Regulations made under subsection (2) of Section 92 that require the assent of the Governor General and not the notification issued by the Governor under Section 92(1) of 1935 Act. Section 92 with modifications was enacted as Paragraph 5 in Fifth Schedule. Insofar as Section 92(1) is concerned, a drastic departure is made, as noticed supra. As per Paragraph 5(1), laws made by the Parliament or State Legislatures would apply to scheduled areas (erstwhile excluded or partially excluded areas) unless the Governor of the State says that it does not apply. Under 1935 Act, Governor had to say the law of Parliament or State Legislature applies and under Indian Constitution, Governor has to say law of Parliament or State Legislature shall not apply. This has bearing on the question whether assent of the President of India is required or not, when a public notification is issued under Paragraph 5(1) in Fifth Schedule. Paragraph 5 of Fifth Schedule contains two distinct parts. Paragraph 5(1) is the first part and sub-Paragraphs 2 to 5 forms second part. The first part enables and empowers the Governor of the State to direct by notification that a Law of Parliament or State Legislature shall not apply; nothing more or nothing less. Under Paragraph 5(1) itself the Governor can direct that a Law of the Parliament or the State Legislature shall apply to Schedule area subject to exceptions and modifications as he may specify in the notification. To this limited extent, the Governor enjoys the power to modify Law in its application to Schedule area. Even when the Governor directs that a law applies with such exceptions and modifications, what is required is only a Notification and not a Regulation. Paragraph 5(1) nowhere employs ‘Regulation’ but only uses the term ‘Notification’. Sub-Paragraphs (2) to (5) of Paragraph 5 of Fifth Schedule form a distinct part as mentioned supra. These deal with the power of the Governor to make Regulations for ‘peace and good government of the Schedule areas’ and apart from this general power, it is competent for the Governor to make Regulations prohibiting or restricting transfer of land among members of scheduled tribe or others, regulating allotment of land to members of scheduled tribes and regulating money lending business by persons who give money to members of scheduled tribes. Thus, Paragraph 5(2) confers powers on the Governor, which are ordinarily exercised by the State Legislature or in the absence of legislation by Executive. As the powers exercised by the Governor in making Regulations, prima facie deal with fundamental freedoms guaranteed by Article 19 as also the provisions in Part XIII (Trade, Commerce within the territory of India), the Constitution requires all Regulations made by the Governor under Paragraph 5(2) to be submitted to the President and not to be enforced until he gives assent to such Regulations. Apart from obtaining assent of the President, the Governor is also required to consult the Tribes Advisory Council constituted under Paragraph 4 of the Fifth Schedule. That Regulations made in Paragraph 5(2) only require the assent of the President becomes clear by reference to Section 92(2) of 1935 Act, which says that Regulations made under sub-section (2) of Section 92 requiring assent of the Governor General. We are aware that an argument can always be made with reference to the language employed in Paragraph 5(4) of Fifth Schedule. It is to the effect that, “all Regulations made under this Paragraph shall be submitted forthwith to the President” for his assent. When Paragraph 5(4) uses the word ‘under this Paragraph’, argument might run, that assent is necessary even when action is taken under Paragraph 5(1). This argument, however, has inherent flaw. If one looks at the language used in sub-paragraph (1) on one hand and the language used in sub- paragraphs (2), (3), (4) and (5), there cannot be any doubt that sub- Paragraph (4) only refers to the Regulations made under Paragraph 5(2) and not the Notification issued by the governor under Paragraph 5(1). When the Laws made by Parliament/State Legislature apply to Schedule areas unless directed by the Governor that they would not apply, if one reads Paragraph 5(4) as requiring the Notification issued by Governor under Paragraph 5(1) to be assented to by the President of India, it would mean that all the Laws made by the Parliament/Legislature would continue to apply and the Governor would have no authority to modify the Laws in their application to scheduled areas. That was not the intention of the Constitution makers. When Paragraph 5(4) refers to ‘all Regulations made under this Paragraph’, it only means the Regulations made under Paragraph 5(2). It would not certainly include the Notification issued by the Governor under Paragraph 5(1). Therefore, we hold that the impugned Notification issued by the Government vide G.O.Ms.No.193, dated 17.04.2002 does not suffer from any vice or invalidity by reason of not being assented to by the President of India under Paragraph 5(4) of Fifth Schedule to Constitution of India. In Re Point Nos.2 and 3 The term ‘Collector’ or ‘District Collector’ is not defined in Delegation Act or Regulation I of 1959 or any of the relevant Laws specially made for and enforced in the schedule areas. Section 3(11) of the General Clauses Act, 1897 (Central Act No.10 of 1897) defines the ‘Collector’ means in a Presidency Town, the Collector of Calcutta, Madras or Bombay, as the case may be, and elsewhere the Chief Officer incharge of Revenue Administration of a District. Section 3(6) of A.P.General Clauses Act, 1891 (A.P. Act No.1 of 1891), in Section 3(6) defines that ‘Collector’ includes Special Officer, who for the time being is authorized to be so. Section 3(8) of the State General Clauses Act defines ‘District Collector’ means the Chief Local Officer incharge of Revenue Administration of a District. Thus, the Officer who is Chief Officer incharge of Revenue Administration of a District is District Collector and when such powers are conferred on an Officer who is authorized to exercise the powers of the Collector, such officer also comes within the definition of a District Collector. In State of Andhra Pradesh, the Revenue Administration of the District including the law and order, taxation, development, welfare was entrusted to the overall supervision of the District Collector. This was found to