IN THE HIGH COURT OF JUDICATURE, ANDHRA PRADESH AT HYDERABAD (Special Original Jurisdiction) THURSDAY, THE THIRTY FIRST DAY OF JULY TWO THOUSAND AND EIGHT PRESENT THE HON'BLE MR JUSTICE V.ESWARAIAH WRIT PETITION NO : 745 of 2001 Between: 1 Anangi Tirupathaiah, S/o. Muthaiah, R/o. Ravikampadu Village, Chandrugonda Mandal, Khammam District. 2 Smt.Anangi Savithiri, W/o. Tirupathaiah, R/o. Ravikampadu Village, Chandrugonda Mandal, Khammam District. 3 Anangi Saravaiah, S/o. Tirupathaiah, R/o. Ravikampadu Village, Chandrugonda Mandal, Khammam District. ..... PETITIONERS AND 1 The Special Deputy Collector, Tribal Welfare, Palvancha, Khammam District. 2 The Agent to the Government, Khammam District. 3 Cherupathi Hanumantha Rao, R/o. RAvikampadu Village, Chandrugonda Mandal, Khammam District. 4 Sarikonda Narayana, Raju, R/o. Ravikampadu Village, Chandrugonda Mandal, Khammam District. .....RESPONDENTS Petition under Article 226 of the constitution of India praying that in the circumstances stated in the Aﬃdavit ﬁled herein the High Court will be pleased to issue a Writ, order or direction more in the nature of Mandamus declaring the orders passed by the Respondent No.1 in LTR Case No.129/97/CGH and LTR case No.131/97/CGH, dated 15-2-1999 ordering for ejectment of the Lands situated in Ravikampadu Village, Chandrugonda Mandal, Khammam District, situated in Sy.Nos.23, 28 and 29 to an extent of Acres. 16-30, 3-00, and 4- 00 respectively and directing for distribution of the said lands to the landless poor Tribes and the consequential orders passed by the 2nd Respondent in C.M.A. No.20/1999 dated 16-12-2000 is without having any power and jurisdiction in view of the Full Bench Judgement of the High Court of Andhra Pradesh, which is reported in AIR 1982 A.P., at page No.1, and also the judgment of the Hon'ble Supreme Court of India which is reported in 1995 (6) SCC-545 and consequentially to direct the respondents not to resort to any Highhanded action is respect of the petitioners possession over the said lands and also to Quash the above impugned orders and to pass Counsel for Petitioners: MR.P.V.RAMANA Counsel for Respondents 1 and 2: GP FOR SOCIAL WELFARE The Court made the following : ORDER: Heard learned counsel appearing for the petitioners as well as learned Government Pleader appearing for respondents 1 and 2. It is the case of the petitioners that late Anangi Muthaiah, who is the father of the ﬁrst petitioner, father-in-law of the second petitioner and grandfather of the third petitioner, purchased an extent of Acs.16.30 gts, in S.No.23, Acs.3.00 in S.No.28 and Acs.4.00 in S.No.29, situated at Ravikampadu village, Chandrugonda Mandal 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. It is stated that the land to an extent of Acs.4.00 in S.No.29 is concerned it was purchased from Smt. Cherupathi Lalitha through agreement of sale on 21.09.1965. After the death of the said Anangi Muthaiah, the son of Muthaiah, i.e., the ﬁrst petitioner and the second petitioner, who is the wife of the ﬁrst petitioner, and the third petitioner, who is the son of the ﬁrst petitioner, have continued in possession and enjoyment of the said land by paying land revenue regularly. It is stated that the said lands were purchased by simple (sada) sale deeds as per practice invoked in Telangana Area. It is stated that insofar as the name of Anangi Tirupathaiah, his name also ﬁnd place in the occupant column of the revenue records for the years 1968-69, 1969-70 in respect of Ac.16.30 gts., in S.No.23, so also in respect of the other extents of lands in S.Nos.28 and 29. But a perusal of the writ aﬃdavit at paragraph 3(d) it is stated that the first petitioner, who sworn the affidavit, namely, Anangi Tirupathaiah, states that the name of his father late A. Tirupathaiah name was found in occupant column, but the learned counsel appearing for the petitioner stated that it was a mistake in describing the name of late father of the petitioner. It is stated that Ryothwari Patta Passbooks were granted in favour of Anangi Muthaiah as the purchaser and the said transfer was took place prior to 3.2.1970. The certiﬁed copies of the pahanies for the years 1967-68, 1969-70, and 1995-96 go to show that the land was transferred prior to Regulation I/1970, which came into force w.e.f. 3.02.1970. Thus it is the case of the petitioners that initiation of cases on a report ﬁled by the Special Deputy Tahsildar, Tribal Welfare, Palvancha on 7.02.1997 before the Special Deputy Collector, Tribal Welfare, Palvancha, in LTR Case No.129/97/CHG and LTR Case No.131/97/CHG is illegal and arbitrary. The undisputed facts are that the original owners of the said land are non-tribals, namely, Cherupathi Hanumantha Rao and Sarikonda Narayana Raju. The petitioners claiming right, title and possession through the father of the ﬁrst petitioner, namely, Anangi Muthaiah, who 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 3.02.1970, was not prohibited. It is also not in dispute that the land situated in scheduled area by a non-tribal to tribal was prohibited under Regulation I/1959. The question that arises for consideration as to whether there was any transfer of the aforesaid land between non-tribals prior to Regulation I/1970, which came into force from 3.02.1970. It is the case of the Special Deputy Tahsildar, Tribal Welfare, Palvancha, before the Special Deputy Collector, Tribal Welfare, Palvancha in the aforesaid LTR cases that there is a reasonable plea that the lands have been transferred by a non- tribal in favour of the father of the ﬁrst petitioner and the ﬁrst petitioner, in contravention of Regulation I/1970, and accordingly, a notice in Form-E under Rules 7 (1) and 7(2) of the Andhra Pradesh Scheduled Areas Land Transfer Regulation Rules, 1969 framed under Regulation 1/1959 was issued to the petitioners herein, which was served on them. Thereafter, the petitioners herein have ﬁled a written reply in response to the said notice in Form-A and the case was called on 20.11.1998, 5.12.1998, 26.12.1998, 18.01.1999 and ﬁnally on 30.01.1999. The second petitioner herein attended the Court of the Special Deputy Collector, Tribal Welfare, on behalf of the petitioners and deposed that his father purchased the suit land 40 years ago through a sale deed from the pattadars, namely, Cherupathi Hanumantha Rao and Sarikonda Narayana Raju, and ever since, the suit land is under their possession. He further deposed that the simple sale deeds and land revenue receipts were gutted in a major ﬁre accident occurred in their village. He came into possession over the suit land before enforcement of Regulation I/1970. In support of his claim he ﬁled certiﬁed copies of Pahanies for the years 1968-69, 1969-70 and 1995-96. He also filed copy of the simple sale deed dated 10.12.1968 executed by Sarikonda Narayana Raju in favour of his father Anangi Muthaiah. The aforesaid documents ﬁled by the petitioners were examined and after perusing the said documents it was observed that the name of the ﬁrst petitioner herein, namely, Anangi Tirupathaiah was written subsequently in Column No.16 with diﬀerent ink and diﬀerent writing. Except the said copy of the pahanies and the sada sale deeds, no other documents have been ﬁled in proof of possession of the petitioners prior to Regulation I/1970 came into force w.e.f. 3.02.1970. Accordingly, the ﬁrst respondent came to the conclusion that the petitioners have came into possession of the said land after commencement of Regulation I/1970 without any valid records and the petitioners have failed to discharge the burden on them to prove their possession prior to Regulation I/1970, w.e.f. 3.02.1970 and in exercise of powers vested in him under Section 3(2) (A) of Regulation I/1959 ordered ejectment of the petitioners from the said land by order dated 15.02.1999. Aggrieved by the said order, the petitioners ﬁled an appeal in C.M.A.No.20 of 1999 on the ﬁle of Agent to Government, Khammam-the second respondent herein and the second respondent herein after elaborate consideration, made the following observations. 1. The entries of the pahanies against the schedule lands of Sy.Nos. are witnessed that neither the name of the father of appellants nor the names of the appellants are found in pahani during the crucial period and that whatever the names in occupants column existing against the suit scheduled lands are found with diﬀerent inks and hand writing, which are subsequent developments i.e., after promulgation of Regulation I of 1970. Hence not considered as bona fide occupants. 2. The appellants failed to produce land revenue receipts having paid the land revenue to the Government.. 3. The appellants failed to submit sale agreement nor any supported documents in support of their claims. 4. No corroborative evidences to substantiate to establish their legal rights over their suit scheduled lands, have been ﬁled in support of their claims. Hence proved no evidence. Accordingly, the appellate authority conﬁrmed the order of the first respondent and dismissed the appeal. Learned counsel appearing for the petitioner Sri P.V. Ramana, submitted that the ﬁrst respondent has not discharged the initial burden cast on him with regard to their contention of that the petitioners came into possession of the said land after Regulation 1/1970. It is further stated that the ﬁrst respondent doubted the documents issued by the Revenue Authority stating that there was interpolation and the name in the occupant column was written with diﬀerent ink and with diﬀerent writing and when a sada sale deed was ﬁled, the ﬁrst respondent ought not to have decided the question with regard to the genuineness or otherwise of the sale deed, but they should have taken appropriate steps for appropriate decision of the sale deed and the pahanies ﬁled by the petitioners, but not in the proceedings initiated under Regulation I/1959. I have heard the arguments elaborately and considered the same. A perusal of the provisions of the A.P. Scheduled Areas Land Transfer Regulation I/1959, Regulation 3(1)(a) of the Regulation as amended by Regulation I/1970 – 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 Cooperative Societies Act, 1964 (Act 7 of 1964) is legal. Under Regulation 3(1) (b) of the said Regulation – 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. Therefore, the burden lies on the person, who is claiming possession pursuant to the purchase of the schedule area prior to Regulation I/1970, which came into force w.e.f. 3.02.1970 and the Rules made there under in Form-E under Rule 7(2) of the A.P. Scheduled Areas Land Transfer Rules, 1959 indicate that if there is a reasonable belief that the transfer of the immoveable property has been made in contravention of sub- section (1) of Section 3 of the Rules action can be initiated for ejectment from the property. In the instant case, originally the land was possessed by a non-tribal. Whether non-tribal has transferred the said land prior to Regulation I/1970, which came into force w.e.f. 3.02.1970, the burden lies on the petitioners alone. To discharge the burden, the petitioners have ﬁled only one sale deed i.e., the sale deed dated 10.0-2.1968, said to have been executed by Sarikonda Narayana Raju in favour of the father of the ﬁrst petitioner, namely, Anangi Muthaiah. That sale deed is a simple sale deed, which is an unregistered one. The other documents, which were ﬁled, are the certiﬁed copies of the pahanies for the years 1968-1969 and 1969-1970. It is stated that but in the occupant column No.16 was written with diﬀerent ink and with diﬀerent writing. If that be so, even no additional evidence has been adduced before the appellate authority, i.e., Agent to the Government, to prove the genuineness or otherwise of the possession of the petitioners prior to 3.02.1970. Admittedly no land receipt has been ﬁled either before the primary authority or before the appellate authority, nor any evidence has been adduced examining the neighbours or any other persons in proof of their possession prior to 3.02.1970. Further, admittedly the transfer of the land is not by any registered document and even the sada sale deed also has not been proved. The learned counsel appearing for the petitioner relied on a Full Bench judgment of this Court in Gaddam Narsa Reddy and others. V. Collector, Adilabad District and others [1] and submits that the validity or otherwise of the transfer made prior to Section 3(1) or its amendments by Regulation II/1963 or I/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 situate in Scheduled Areas. Para-31 of the said Full Bench Judgment reads 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 Section 3(1) of the Regulation I of 1959 or its amending regulations, and under Section 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. (2) Section 3(1) of the Regulation I 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 I 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 situate in Schedule Areas. Even as per para-31 (3) of the aforesaid judgment of the Full Bench, it is to be seen that the validity or otherwise of the transfer made prior to Section 3 (1), no doubt, is to be decided by an appropriate forum constituted for deciding the disputes relating to immoveable property but not under Section 3(2) of the Regulation. In the instant case, admittedly, the sale deed 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 immoveable property, does not arise. Even the Pahanies are interpolated, to decide the same, whether the interpolation is incorrect or not and whether the petitioners are really in possession prior to Regulation I/1970 came into force w.e.f. 3.02.1970, no other document has been ﬁled, such as land revenue receipts or any other corroborative evidence. Therefore, I do not see any merit in the writ petition warranting interference of the concurrent ﬁndings of the Court below. Accordingly, the Writ Petition is dismissed. No costs. __________________ (V. ESWARAIAH, J.) 31st July, 2008 Js. ASSISTANT REGISTRAR // TRUE COPY // SECTION OFFICER To 1 The Special Deputy Collector, Tribal Welfare, Palvancha, Khammam District. 2 The Agent to the Government, Khammam District. 3 2 CCs to G.P. for Social Welfare, High Court of A.P. Hyderabad. (OUT) 4 2CD copies. [1] AIR 1982 A.P. 1