THE HON’BLE SRI JUSTICE C.V.NAGARJUNA REDDY WRIT PETITION NO.215 OF 2002 Dated 22nd July, 2010 Between: Talluri Jayasekhar …Petitioner And The Agent to Government, Khammam and six others …Respondents Counsel for the petitioner : Sri R.Kameswara Rao Counsel for the respondents: None appeared The Court made the following ORDER: This writ petition is filed for a Certiorari to quash orders dated 15.11.1991 and 12.10.2001 passed by respondents 2 and 1 respectively. At the hearing, neither the Government Pleader for Social Welfare nor any of the Assistant Government Pleaders representing respondents 1 to 3 are present. Though notices were served on respondents 4, 6 and 7, either by direct service or through substitute service, as the came may be, appearance has not been entered on their behalf. I have heard Sri R.Kameswara Rao, learned counsel for the petitioner, and perused the record. The dispute pertains to an extent of Ac.2.05 guntas in Survey No.166 of Virivendi Village, Burgampad Mandal, which is a scheduled area in Khammam District. The petitioner is a non-tribal. Finding that he is in possession of the abovementioned extent of land, the Mandal Revenue Officer, Burgampad Mandal, submitted a report on 28.06.1990 to respondent No.2 under the provisions of the Andhra Pradesh (Scheduled Areas) Land Transfer Regulation 1 of 1959 (for short “Regulation 1 of 1959). Consequently a notice was issued on 11.07.1990 on the petitioner to show cause why he should not be ejected from the land. In response to the said notice, the petitioner appeared before respondent No.2 and gave his statement, wherein he has stated that the land in question was originally held by Nupa Veeraiah and on his death, the patta was transferred in the name of Nupa Bhadraiah; that the said land was originally purchased by a person by name Anumaiah on 05.03.1959 and that the father of the petitioner purchased the same from the said Anumaiah under a sada sale deed on 15.05.1959. After completing the enquiry, respondent No.2 passed order dated 15.11.1991 directing the eviction of the petitioner. The said order was confirmed in CMA No.20 of 1992 by respondent No.1. Assailing these two orders, the present writ petition is filed. At the hearing, the learned counsel for the petitioner submitted that both the authorities below have committed a patent illegality in directing eviction of the petitioner by disbelieving the plea put forth by the petitioner that the transaction has taken place prior to the commencement of Regulation 1 of 1959. The learned counsel also contended that the findings of both the authorities below that the revenue records were tampered with cannot be sustained. The learned counsel further submitted that Nupa Pedagopaiah filed a counter before respondent No.1 admitting that his brother, Nupa Bhadraiah, who was the Manager of the family, sold away the property in favour of one Bathula Anumaiah in the year 1959 and respondent No.1 has ignored this vital admission. I have carefully considered the submissions of the learned counsel with reference to the material available on record. Regulation 1 of 1959 declared any transfer of immovable property situated in the agency tracts by a person whether or not such a person is a member of the scheduled tribe shall be absolutely null and void unless such transfer is made in favour of a person who is a member of scheduled tribe or a society registered under the Andhra Pradesh Cooperative Societies Act composed solely of members of the scheduled tribe. This Regulation came into force in Telangana area on 01.12.1963 and the same was subsequently amended by Regulation 1 of 1970, which prohibited transfers between two non- tribals as well. A Full Bench of this Court in Gaddam Narsa Reddy v. Collector, Adilabad District[1], held that Regulation 1 of 1959 is prospective and that a transfer made prior to commencement of the said Regulation is not affected by the said Regulation. Therefore, unless it is found that the alleged transaction is hit by the provisions of Regulation 1 of 1959; a non-tribal cannot be evicted. In his order, respondent No.2 found that the pahanies for the years 1961-62; 1962-63; 1963-64 and 1989-90 have recorded the name of Nupa Veeraiah as pattadar and the names of the family members of the petitioner as cultivators. However, an observation is made that the pahanies were found tampered with. It was also observed that the petitioner did not file sale deeds; pahani copies and land revenue receipts in support of his claim over the land. Respondent No.1, in his order, has given a finding that the petitioner has filed photocopies of land revenue receipts for 1966-67; 1967-68 and failed to produce land revenue receipts for 1959-60 to 1965-66 and that he has verified the revenue record, wherein the names of the family members of the petitioner were recorded as cultivators during 1961-62; 1962-63; 1963- 64 and 1989-90 with different ink, hand writings and the record was tampered. A further finding was rendered that the name of Talluri Panchaksharaiah was forged in the cultivator column for the year 1961-62; the name of Bhadraiah was forged in the cultivator column of 1962-63 and the name of Gopaiah was recorded in the cultivator column for 1963-64. For 1964-65 and 1966-67, the cultivator column was kept blank. Respondent No.1 has also taken note of sada sale agreement dated 05.03.1959 executed by Nupa Pedagopaiah in favour of Bathula Anumaiah, S/o Kondaiah and sada sale agreement dated 15.05.1959 executed in favour of Talluri Panchaksharaiah (father of the petitioner) by Anumaiah. Before dealing with the finding pertaining to alleged tampering of the revenue record, I would like to dwell on a crucial aspect of the case. In his order respondent No.1 held that as the sale deeds do not conform to the provisions of the Registration Act, the petitioner cannot claim that the property was legally and validly transferred, this aspect is no longer res integra in view of the Full Bench judgment of this Court in Gaddam Narsa Reddy (supra), wherein it was held as under: “The authorities under Section 3(2) (a) of the Regulation are conferred special or exclusive jurisdiction to determine the limited question whether the transfer of immovable property situated in the agency tracts is made in contravention of the provisions of Section 3(1) of the Regulation, and any other question is outside the scope of such a proceeding under Section 3(2)(a) of the Regulation. In this view, it is not open to the authorities under Section 3(2)(a) to go into the question whether the sale or agreement to sell is registered or not, or whether the transferee under such a transfer is entitled to the protection of Section 53-A of the Transfer of Property Act in the absence of any prior permission under Section 47 of the Hyderabad Tenancy and Agricultural Lands Act or validation certificate under Section 50-B of the said Act.” The two transactions referred to above have taken place prior to the commencement of Regulation 1 of 1959. Therefore, it cannot be gainsaid that the possession claimed by the petitioner is in pursuance of a transaction, which has taken place prior to the commencement of Regulation 1 of 1959. The claim of the petitioner that the transactions have taken place prior to coming into force of the said Regulation is fortified by the counter-affidavit filed by Nupa Pedagopaiah before respondent No.1, at the appellate stage, wherein it is stated as under- 1. “That respondent No.2 and respondent No.3 and respondent No.4 are the sons of late Nupa Veeraiah. The said Nupa Veeraiah died in the year 1950. 2. That Nupa Bhadraiah, who is respondent No.4, used to manage the family. Respondents have sold away the suit schedule property of Ac.2.05 gts in S.No.166 in the year 1959 in favour of on Bathula Anumaiah to meet his family necessity. The said Ac.2.05 guntas was given to respondent No.2 by his brother respondent No.4 herein on his demand for partition. Respondent No.4 promised to make partition of the property. But he did not do it till this day and enjoying all the property of about Ac.17.00 acquired by their father. 3. That in the event of the following the reversion of property, the same may be allotted to respondent No.2 as he is entitled to it.” That such a counter was filed by the said person is not disputed in this writ petition. Respondent No.1 failed to advert to the said counter-affidavit, which clearly goes to show that the property was originally transferred in favour of Bathula Anumaiah by Nupa Veeraiah, the father of respondents 4 to 6. Therefore, in my opinion, in the light of this uncontroverted fact, the finding that the two transactions appeared to have been brought into existence is based on an inference which has no basis. Coming to the findings on the entries in the revenue record, respondents 1 and 2 gave findings that there are over writings and change of ink etc in the original pahanies. Respondent No.1 went to the extent of observing that the names of the family members of the petitioner were forged. It is not the pleaded case of the Revenue officials that the original pahanies were in the custody of the family of the petitioner. The pahaies were maintained by the Revenue Officer concerned. It is, therefore, for respondents 1 and 2 to explain as to who is responsible for the alleged tampering of the entries. Even assuming the entries had over writings, respondents 1 and 2 failed to explain the effect of these over writings. Strangely respondent No.1 used the phrase ‘forged’ in his order repeatedly. This expression used in the context of the case is wholly inappropriate, because ‘forgery’ is associated with signatures and not with the names. No finding is given to the effect that initially the names of some other persons were mentioned and that by striking off those names, the names of the family members of the petitioner have been mentioned. It cannot be said that mere change of ink or over writings would always lead to the presumption that they were made only with a view to tamper with the record. Respondents 1 and 2 completely failed to render any finding as to the effect of these over writings or change of ink. As respondents 1 and 2 are not represented at the hearing and no record is produced, this Court had no opportunity to verify the original record. Be that as it may, as the material on record clearly establishes that the property has changed hands twice even before Regulation 1 of 1959 came into force, in my opinion, the alleged tampering of record has no relevance whatsoever. On the premises as above, the orders of respondents 1 and 2 are quashed. The writ petition is accordingly allowed. C.V.NAGARJUNA REDDY, J Dated 22nd July, 2010 vrn [1] AIR 1982 A.P 1