THE HON’BLE SRI JUSTICE M.S.RAMACHANDRA RAO W.P.NO.2825 OF 2003 %29.07.2013 # Smt.G.Varalaklshmi ...APPELLANT VERSUS $ The Secretary to Government, Social Welfare Deprtment and others. ...RESPONDENTS < GIST: > HEAD NOTE: !Counsel for Petitioner: Sri Sita Ram Chaparla ^Government Pleader for R-1 to R-3: G.P. for Social Welfare !Senior Counsel for Respondent No.4: Sri B.Adinarayana Rao ? Cases referred [1] 1983 (2) A.P.L.J. 96 2 1999 (5) ALD 430 3 1996 (2) An.W.R. 516 4 2000 (5) ALD 588 5 (1995) 6 SCC 545 6 2007 (5) ALD 769 7 2000 (2) ALD 365 8 1998 (1) ALT 179 9 (2011) 8 S.C.C. 656 10 AIR 1990 S.C. 2300 11(2006) 11 S.C.C. 464 12 (1988) 4 S.C.C. 709 13 AIR 1970 S.C. 349 14 AIR 1968 S.C. 1336 15 AIR 1997 S.C. 2523 16 AIR 1982 A.P. 1(F.B) 17 ILR 1969 AP 1083 18 (1982) ILR 54 All. 1067 19 See Rajasthan State Industrial Development & Investment Corporation v. Diamond & Gem Development Corporation Ltd .. (2013) 5 SCC 470 and Ritesh Tewari v. State of U.P… (2010) 10 SCC 677. THE HON’BLE SRI JUSTICE M.S. RAMACHANDRA RAO WRIT PETITION No.2825 of 2003 O R D E R: In this Writ Petition, petitioner is questioning G.O.Ms.No.73 Social Welfare (LTR.1) Department dt.22-7- 2002 issued by 1st respondent on the ground that it is contrary to the provisions of Section 7 of the Andhra Pradesh Scheduled Areas Land Transfer Regulation,1959 (Regulation No.1 of 1959) (for short, ‘the Regulation’) apart from being illegal and arbitrary and prays to set it aside. He also seeks a declaration that the petitioner is the lawful owner of lands in Sy.Nos.79, 82/1, 82/2, F83 and 84/3 admeasuring Ac.20-50 cents situated at Itukulakunta village, Polavaram Mandal, West Godavari District (for short, ‘the subject lands’). 2. The subject lands originally belonged to one Sanyasi Nagulu, a member of the Scheduled Tribe community. Under a registered sale deed dt.31-10-1938, he sold it to another member of the said community by name Kovvasu Parvathamma. On her death, Kovvasu Pottaiah, her son, allegedly sold the land to one Punem Singayya, also a member of the Scheduled Tribe community, under a registered sale deed dt.08-08-1963. Under Section 3 (1) (i) of the Regulation as it stood then, the Governor of the State of Andhra Pradesh accorded sanction for the sale of this land in favor of the petitioner, a non-tribal vide G.O.Ms.No.2285 (Education) dt.15-11- 1967. Thereafter, Punem Singayya executed a registered sale deed dt.06-12-1967 in favor of the petitioner. 3. While so, the Special Deputy Tahsildar, Tribal Welfare No.II, Eluru filed a complaint in 1980 under Section 3 (2) (a) of the Regulation No.1/1959 as amended by Regulation 1/1970 contending that the land belongs to Kovvasu Polamma, wife of Kovvasu Pottaiah; that she belongs to the Scheduled Tribe community; that the petitioner, a non-tribal, is in possession and enjoyment of the subject lands; that Punem Singayya, although a member of the Schedule Tribe community, was a farm servant of the petitioner; the sale under registered sale deed dt.08-08-1963 in favor of Punem Singayya by Koovvasu Pottaiah is a benami transaction and Punem Singayya was a benamidar for petitioner; no consideration was paid to Kovvasu Pottaiah and therefore, possession of the land should be restored to Kovvasu Polamma after evicting petitioner and her husband from the land. 4. This complaint was numbered as S.R.No.219 of 1980 by the then Special Deputy Collector, Tribal Welfare, Eluru. He issued notices to petitioner, her husband and Pottaiah. In the said proceeding, petitioner and her husband participated, filed a written statement and contended that Singayya had sold lands to her after obtaining permission from the Government after receiving full consideration; and that the transaction under sale deed dt.06-12-1967 in her favor was valid and genuine. The Special Deputy Collector, Tribal Welfare, Eluru also examined Kovvasu Polamma, wife of Pottaiah, who stated that the petitioner’s husband dispossessed her and her son from the subject land after the death of her husband stating that they gave money to her husband for the lands and threatening them not to enter into the land. She stated that her husband never told her that he sold away the land and that she has been putting petitions about the injustice done to her family, but no action was taken. She also stated that her husband had not sold the land to Singayya, who is a farm servant of the petitioner and her husband. The husband of the petitioner was examined as R.W.1 and the petitioner herself was examined as R.W.2. Singayya was examined as R.W.3, and the village Karanam was also examined in the said enquiry. 5. After considering the oral and documentary evidence on record, by order dt.31-08-1981, the Special Deputy Collector, Tribal Welfare, Eluru held that petitioner and her husband used Singayya, their farm servant, to circumvent the provisions of the above Regulation. He held that Singayya was a tribal of Tangellagudem, hamlet of Dippakalapadu without any substantial means to purchase Acs.20-00 of land; that the subject land was too far away from his village and is considered to be not at all fertile and there is no valid explanation why he should have bought it; Singayya was a farm servant of the petitioner and her husband and they found him very handy as he was obliged to them and could not displease them under any circumstances; from the demeanor of Singayya and from his conflicting statements, it is clear that he was only a tool in the hands of petitioner; that the village Karanam stated that Punem Singayya had Acs.2- 20 cents of land in Dippakayalapadu village only after the sale by him in favor of the petitioner; that this bit of land was given to Singayya as reward by a relative of the petitioner for his faithful act of lending his name as a vendor in the sale deed dt.08-08-1963 executed by Pottaiah; that Singayya stated that he sold a few goats and purchased Acs.20-00 cents of land and such statement cannot be believed. He also held that the petitioner and her husband were not able to show that the transaction of sale by Pottaiah in favor of Singayya under registered sale deed dt.08-08-1963 was a genuine one, and if that transaction is not genuine, permission granted by the Government under G.O.Ms.No.2285, Education Department dt.15-11-1967 is of no avail to the petitioner and her husband; that the Government had no occasion to consider whether the above sale transaction dt.08-08-1963 was genuine or not; and therefore, it is in violation of Section 3 (i) (a) read with Section 4 of the Regulation of 1/1959 as amended by Regulation 1/1970 since it is a transaction, though by a member of the Scheduled Tribe in favor of another member of a Scheduled Tribe, for the benefit of non-tribals. 6. Aggrieved thereby, petitioner preferred an appeal before 2nd respondent under Section 3 (3) of the Regulation. This appeal was numbered as S.R.A.No.37/1981. By order dt.15-01-1982, the 2nd respondent rejected the appeal and confirmed the findings of the Special Deputy Collector (Tribal Welfare), Eluru in S.R.No.219/1980. He also elaborately considered the evidence on record and came to the conclusion that the sale deed dt.08-08-1963 was not genuine and it is difficult to believe that a poor tribal would buy the lands situated in a village at a distance of about 10 kms from his place of residence instead of purchasing land in his own village; that the evidence on record reveals that Singayya never cultivated the subject lands; that he was only a farm servant and henchman of the petitioner; these facts were not contradicted by petitioner; that Singayya had stated before the Special Deputy Collector (Tribal Welfare), Eluru, initially that he purchased the land for Rs.3,000/- about 15 years back with the income from his Ac.1-00 of land and with the sale consideration of 30 goats and that he did not incur any debt for purchasing of these lands, but subsequently stated that he obtained a loan from the father of the petitioner by name Kakarla Venkata Subbanna, who is residing about 24 kms away from the place of his residence. He held that these facts established that Singayya is not the real purchaser and petitioner is the real purchaser under the sale transaction dt.08-08-1963 and enjoyer of the above land. 7. This was challenged by the petitioner in a Revision petition dt.19-01-1983 before the 1st respondent. Vide memo No.299/F1/83-3 dt.02-04-1993, the said Revision Petition was rejected. 8. Aggrieved thereby, petitioner filed W.P.No.12196 of 1993. Initially, the said Writ Petition was allowed, but subsequently, the 4th respondent and other legal heirs of Kovvasu Polamma, who died in the meantime, filed a review petition in Rev.W.P.M.P.No.8044 of 1995 to review the said order. The said application was allowed by order dt.31-07-1996 and the Writ Petition was dismissed. 9. It was challenged by petitioner in Writ Appeal No.1341 of 1997. By order dt.28-02-2002, a Division Bench of this Court, set aside the order dt.31-07-1996 in Rev.W.P.M.P.No.8044 of 1995 and also the order dt.02- 04-1993 in Memo No.299/F1/83-3 of 1st respondent and allowed the Writ Petition No.12196 of 1993. It remitted the matter back to 1st respondent with a direction to hear and dispose of the Revision petition afresh. It further permitted the petitioner to raise the contention relating to bar of limitation for initiation of the proceedings before the 1st respondent in the Revision. 10. After remand, vide G.O.Ms.No.73, Social Welfare (LTR.I) Department dt.22-07-2002, 1st respondent again dismissed the Revision filed by petitioner and confirmed the order dt.15-01-1982 in S.R.A.No.37 of 1981 of the Agent to the Government (2nd respondent). 11. This is impugned in the present writ petition. 12. Heard Sri Sita Ram Chaparla, learned counsel for petitioner, learned Government Pleader for Social Welfare appearing for respondents 1 to 3 and Sri B.Adinarayana Rao, learned Senior counsel for 4th respondent. 13. The learned counsel for petitioner contended principally that when the Government vide G.O.Ms.No.2285 Education Department dt.15-11-1967 granted permission to Singayya to sell the above land to the petitioner, a non-tribal, the sale in favor of petitioner cannot be invalidated by the respondent no.s 1 to 3 at the instance of 4th respondent; that they are subordinate in hierarchy to the authority which issued the said G.O.Ms.No.2285 and it is impermissible for them to do so; under Section 7 of the Regulation, the provisions of Limitation Act,1908 apply to proceedings under the Regulation, and therefore, it was not open to the Special Deputy Collector (Tribal Welfare), Eluru in 1980 to seek to reopen and invalidate the sale deed dt.06-12-1967 in favor of petitioner by Singayya; the issue of limitation was specifically raised before 1st respondent, but it was rejected without proper consideration; that in the order dt.28-02-2002 in Writ Appeal No.1347 of 1997, it was held that provisions of the Limitation Act,1908 would apply to all proceedings under the Regulation; and therefore, the 1st respondent has erred in holding that provisions of Limitation Act,1908 do not apply to proceedings before him; in any event, Regulation 1/1970 has no application to the present case as petitioner had purchased the property prior to 03-02-1970 and the said Regulation has been held to be prospective in operation by this Court and by the Supreme Court. He relied upon the decisions reported in Javvadi Samba Murthy Vs. The Agent of the Government, East Godavari at Kakinada and others[1], Gadde Nagabushanamma Vs. Government of A.P., and others[2], Ambati Obi Reddy Vs. The Commissioner of Survey, Settlement and Land Record, Hyderabad and others[3], K.Mahalaxmi and another Vs., Government of Andhra Pradesh and others[4], Dy. Collector and another Vs. S.Venkata Ramanaiah and another[5], Yandapu Satyavati Vs., Secretary to Government of Andhra Pradesh, Tribal Welfare Department Hyderabad[6], Datla Narasimha Raju and Others Vs. Principal Secretary to Government of Andhra Pradesh, Special Welfare Department and Others[7], and Pandi Ramulu Vs. Agent to Government, E.G. District, Kakinada and Others[8]. 14. Learned counsel for 4th respondent contended that the petitioner’s contentions are not tenable; that orders passed by respondent no.s 1 to 3 do not suffer from any error of jurisdiction or infirmity either in law or on fact; that respondent no.s 1 to 3 rightly focussed on the transaction under the sale deed dt.08-08-1963 by Pottaiah in favor of Singayya and held that the said transaction is a benami transaction and Singayya, a farm servant of petitioner was simply a name lender to the transaction and that the real purchaser of the subject lands was petitioner; even under Section 3 of the Regulation 1 of 1959 as it stood prior to its amendment by Regulation 1 of 1970, the respondents were entitled to go into the issue whether a transaction, which is apparently a transaction between a tribal and tribal, is in reality also such a transaction or whether it was actually a transaction between tribal and a non-tribal; if the respondent no.s 1 to 3, on appreciation of evidence, come to the conclusion that the transaction under the sale deed dt.08-08-1963, is in fact, a transaction between Pottaiah, a tribal and the petitioner, a non-tribal, they are entitled to set it aside; G.O.Ms.No.2285 dt.15-11- 1967 issued by 1st respondent will then not be of any assistance to petitioner as the real nature of the transaction of 1963 was not the subject matter of the said proceeding; when the fraud played by petitioner to circumvent the provisions of the Regulation (by using the services of her farm servant Singayya) is established, it vitiates the purchase not only by Singayya, but also the subsequent purchase under the sale deed dt.06-12-1967 by petitioner from Singayya; the plea of the petitioner about the applicability of the law of limitation to initiation of proceeding by the 3rd respondent against the petitioner is not tenable as the authorities under the Act are empowered to initiate proceedings, without prescribing any limitation, under Section 3 of the Regulation 1 of 1959 to evict a non-tribal in possession of the property without any right to continue in possession thereof; Section 3 (2) (a) of the Regulation does not prescribe any period of limitation for respondent no.s 1 to 3 to take such action for eviction of a non-tribal; the law of limitation as provided in the Limitation Act, 1908 or in the Limitation Act, 1963 applies only to Courts and not to authorities such as respondent no.s 1 to 3 stated under the Regulation; Section 7 of the Act is intended to cover only situations governed by Section 4 of the Act in respect of suits filed before the Agent to the Government and not to proceeding under Section 3; sub-Section (4) of Section 3 of Regulation 1 of 1959, although inserted by Regulation 1 of 1970, has to be considered as having retrospective effect, notwithstanding the fact that Regulation 1 of 1970 has been held to be prospective in operation by this Court and by the Supreme Court; that sub-Section (4) of Section 3 is to be considered as explanatory and therefore it would have retrospective operation, as it merely clarifies the legal position; 4th respondent’s mother had been found to have made several representations to respondent no.s 1 to 3 to take action for eviction of petitioner and any delay on the part of respondent no.s 1 to 3 in taking action cannot be taken advantage of by petitioner; in the facts and circumstances of the case, it has to be held that proceedings were initiated within a reasonable period and without undue delay; in any event, it is not the case of petitioner that 4th respondent or his mother or father have acquiesced in the transaction or that they have otherwise altered their position; in the absence of such evidence, even if there is a delay in initiation of proceedings, such delay will not prejudice the 4th respondent in any manner; as the transaction under the registered sale deed dt.08-08-1963 between Pottaiah and Singayya is void and contrary to the provisions of the Regulation, it is not open to the petitioner to plead any equities; having been a party to the fraud of obtaining a sale deed from a tribal Pottaiah, the petitioner cannot be allowed to contend that the delay in initiation of proceedings defeats her rights and ask this Court to perpetuate the fraud; and therefore prayed that the writ petition be dismissed. The learned counsel for 4th respondent relied on decisions in State of Jharkhand and Others Vs. Shivam Coke Industries, Dhanbad and Others[9], M/s.Punjab Traders and Others Vs. State of Punjab and Others[10] U.P.Jal Nigam and Another Vs. Jaswant Singh and Another[11], Subhash Kumar Lata Vs. R.C.Chhiba and Another[12], Chaman Singh and Another Vs. Smt. Jai Kaur[13], Keshavlal Jethalal Shah Vs. Mohanlal Bhagwandas and Another[14] and Commissioner of Income-Tax, Bombay etc. Vs. M/s.Podar Cement Pvt. Ltd. Etc.[15]. 15. The learned Government Pleader for Social Welfare appearing for the respondents 1 to 3 adopted the submissions of the learned counsel for the 4th respondent. 16. I have noted the submissions of both sides. 17. In the light of the above pleadings and contentions of the parties, the following points arise for consideration: (a) Whether proceedings initiated by the mother of the 4th respondent in 1981 impugning the transaction under the sale deed dt.08-08-1963 executed by her husband Pottaiah in favor of Singayya and the consequent transfer by Singayya in favor of the petitioner are barred by limitation? (b) Whether the respondent no.s 1 to 3 are entitled to ignore G.O.Ms.No.2285 Education dt.15-11- 1967 issued by 1st respondent granting permission under Section 3 (1) (ii) of Regulation 1 of 1959 permitting transfer of the subject land by Singayya in favor of the petitioner and to go into validity of the sale deed dt.08-08- 1963 executed by Pottaiah in favor of Singayya? (c) Whether the authorities under the Act were entitled to declare the sale deed dt.08-08-1963 between Pottaiah, a tribal and Singayya, a tribal, as a benami transaction for the benefit of the petitioner? (d) Whether the orders passed by respondents 1 to 3 are sustainable in law? 18. Before answering the above issues, the basic facts may be noted. The subject land was admittedly belonging to a tribal and he sold it in favor of Kovvasu Parvathamma, also a tribal, under a registered sale deed dt.31-10-1938. On her death, her son Kovvasu Pottaiah, a tribal, sold the land in favor of Singayya (a tribal), under registered sale deed dt.08-08-1963. Thereafter permission was granted by 1st respondent under G.O.Ms.No.2285 Education dt.15-11-1967 for alienation by Singayya to the petitioner, a non-tribal, in exercise of power under Section 3 (1) (ii) of Regulation 1 of 1959 (as it stood prior to its amendment by Regulation 1 of 1970). Subsequently a registered sale deed dt.06-02-1967 was executed by Singayya in favor of petitioner. 19. As these transactions have taken place prior to the amendment of Regulation 1 of 1959 by Regulation 1 of 1970, the pre-existing/un-amended Regulation 1 of 1959 only would apply to the facts of the case. The said provision is extracted hereunder: “3(1). Notwithstanding anything contained in any enactment, rule or law in force in the Agency Tracts, any transfer of immovable proper 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- (1) in favor of any other member of a Scheduled Tribe or a registered Society as defined in clause (f) of Section 2 of the Madras Co-operative Societies Act, 1932 (Madras Act VI of 1932), composed solely of members of the Scheduled Tribes, or (ii) with the previous sanction of the State Government, or subject to rules made in this behalf, with the previous consent in writing of the Agent or of any prescribed officer. (2) (a) Where a transfer of immovable property is made in contravention of subsection (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 transferor or his heirs." (b) If the transferor or his heirs are not willing to take back the property or where their whereabouts are not known, the Agent the Agency Divisional Officer or prescribed officer, as the case may be, may order the assignment of sale of the property to any other member of a Scheduled Tribe or a registered Society as defined in clause (f) of Section 2 of the Madras Co-operative Societies Act, 1932 (Madras Act VI of 1932) composed solely of members of the Scheduled Tribes, or otherwise dispose of it, as if it was a property at the disposal of the State." The said provisions make the transfer of immovable property from a tribal to a non-tribal null and void. Sub- section (2) of Section 3 empowers the Agent, the Agency Divisional Officer or any other prescribed Officer, on an application by any interested person, relied on information given in writing by a public servant or suo motu decree ejectment of the person in possession of the property claiming under the transfer, after prescribed notice etc. and may restore the property to the transferor or his heirs, If the transferor or his heirs are not willing to take back the property or their whereabouts are not known, the Agent, Agency Divisional Officer or the Prescribed Officer, as the case may be, may order assignment or sale of the property to any other member of a schedule tribe. Therefore, by virtue of the provisions of Regulation I of 1959 any transfer made by a tribal to a non-tribal is made null and void and the authorities were empowered to restore possession of the said property, after ejecting the person in possession under the void transfer to the transferor or his heirs and if their whereabouts are not known, the authorities are empowered to order assignment or sale of the property to any member of a scheduled tribe.” 20. Regulation 1 of 1970, amended Regulation 1 of 1959 and came into effect from 03-02-1970. Section 3 as amended by Regulation 1 of 1970 states: “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 or immovable property situated in the Agency tracts by Scheduled Tribe, shall be absolutely null and viod, unless such transfer is made in favor 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 presumed to have been acquired by person or his predecessor in possession through transfer made to him by a member of a Scheduled Tribe. (c). Where a person intending to sell his land is not able to effect such sale, by reason of the fact that no member of a Scheduled Tribe is willing to purchase the land or is willing to purchase the land on the terms offered by such person, then such person may apply to the Agency, the Agency Divisional Officer or any other prescribed officer of the acquisition of such land by the State Government, and the Agent. Agency Divisional Officer or the prescribed officer, as the case may be, may by order, take over such land on payment of compensation in accordance with the principles specified in Section 10 of the Andhra Pradesh Ceiling on Agricultural Holding Act, 1961