Research › Search › Judgment

Andhra High Court · body

2008 DIGILAW 1089 (AP)

V. R. Koteswar Rao v. Government of A. P.

2008-12-22

L.NARASIMHA REDDY

body2008
JUDGMENT : The petitioner challenges the orders passed by the first respondent in G.O.Ms.No.54 Social Welfare (LTR.1) Department, dated 24.05.2001. The facts, that gave rise to the filing of the writ petition, are as under: The petitioner is a resident of Dharbagudem Village of Jeelugumilli Mandal, West Godavari District, which is in scheduled area. The petitioner claims to have purchased an extent of Acs.10.00 of land in survey No.300 of that village from a non-tribal, by name Konakala Laxmikanthamma, under an agreement of sale, dated 15.11.1968. Possession of the land is said to have been delivered to him and that about four years later, a sale deed was executed on 18.10.1972. The Special Deputy Tahsildar (Tribal Welfare-I) Eluru, submitted a complaint before the Special Deputy Collector (Tribal Welfare) K.R.Puram, West Godavari District, the fourth respondent herein, stating that the transaction in favour of the petitioner is contrary to the provisions of the Andhra Pradesh Scheduled Areas Land Transfer Regulations, 1959, as amended by Regulation 1 of 1970 (for short ‘the Regulations’). The complaint was taken up as S.R.No.419 of 1979 by the fourth respondent. The petitioner, his father by name Bamayya, their vendor Laxmikanthamma, Karnam of Dharbagudem Village Sri Venkatasarma, and Karnam of neighbouring village, by name Nageswar Rao etc., were examined as witnesses. It was pleaded that the entire consideration was paid and possession was delivered in the year 1968 itself and the sale deed was executed in the year 1972. The fourth respondent took the view that the agreement of sale is not genuine and that the actual sale has taken place only in the year 1972, much after the Regulations came into force. On that basis, he had directed resumption of the land in favour of the Government, through his order, dated 11.10.1980. The petitioner filed an appeal before the Agent to the Government, West Godavari District, the second respondent herein, and the same was taken up as S.R.A.No.23 of 1981. The appeal was dismissed on 10.01.1983. In the revision preferred to the first respondent, an order was passed in G.O.Ms.No.87, Social Welfare (LTR) Department, dated 26.09.2000, almost dismissing the revision, for default. The petitioner filed an application before the first respondent for review of the order in G.O.Ms.No.87, dated 26.09.2000. The review was rejected, through the impugned order. The appeal was dismissed on 10.01.1983. In the revision preferred to the first respondent, an order was passed in G.O.Ms.No.87, Social Welfare (LTR) Department, dated 26.09.2000, almost dismissing the revision, for default. The petitioner filed an application before the first respondent for review of the order in G.O.Ms.No.87, dated 26.09.2000. The review was rejected, through the impugned order. Sri K.Rambabu, the learned counsel appearing for Sri C.B.Rammohan Reddy, the learned counsel for the petitioner, submits that a transaction between two non-tribals in the scheduled area is, no doubt, prohibited under the Regulations, but in the instant case, it took place before the notified date. He contends that the vendor in the transaction as well as the Karnam of the village have supported the case of the petitioner and despite the same, the fourth respondent has taken a different view. The learned counsel submits that the appellate and the review authorities did not appreciate the matter from the correct perspective. The learned Government Pleader for Tribal Welfare, on the other hand, submits that the petitioner pleaded the agreement of sale, dated 15.11.1968, only with a view to overcome the impact of the Regulations, which came into force in the year 1959. He contends that once the Regulations came into force, even a non-tribal is prohibited from selling the land in the scheduled area in favour of a non-tribal. He contends that the authorities, at every stage, have examined the matter with reference to the evidence on record and relevant provisions of law and that no interference is warranted. The Regulations were enacted by the Governor of A.P., in exercise of powers under Schedule-V of the Constitution of India. Though the Regulations came into force on 04.03.1959, the clause prohibiting the transactions in the area in favour of any non-tribal was inserted through Regulation 1 of 1970 with effect from 03.02.1970. Any transaction in favour of a non-tribal whether by a tribal or non-tribal, stands prohibited with effect from that date. The petitioner claims to have purchased the land initially, through an agreement of sale, dated 15.11.1968, and it was followed by a sale deed, dated 18.10.1972. Obviously going by the date of sale deed, the Special Deputy Tahsildar initiated proceedings against the petitioner before the fourth respondent. It was the consistent case of the petitioner that the sale deed was preceded by an agreement of sale, dated 15.11.1968. Obviously going by the date of sale deed, the Special Deputy Tahsildar initiated proceedings against the petitioner before the fourth respondent. It was the consistent case of the petitioner that the sale deed was preceded by an agreement of sale, dated 15.11.1968. The vendor in the transaction, by name Laxmikanthamma, vouched for the genuinity and truthfulness of the agreement of sale, dated 15.11.1968. The Karnam of the village stated that he is acquainted with the petitioner and that he was informed that the agreement of sale in respect of the land took place much prior to the sale deed. He has also stated that except the land covered by the transaction, the petitioner does not own any other land. The Regulations had defined the transfer under Regulation 2(g) to mean as under: “2(g): “Transfer” means mortgage with or without possession, lease, sale, gift, exchange or any other dealing with immovable property, not being a testamentary dispossession and includes a charge on such property or a contract relating to such property or a contract relating to such property in respect of such mortgage, lease, gift, sale, exchange or other dealing.” This definition is at substantial variation with the one under the Transfer of Proper Act. It takes, in its fold, not only the mortgage, lease, sale, gift or exchange, but also any other dealing with the immovable property or a contract relating to such property. In other words, even a contract for sale, subsequent to the notified date, is void under Regulation 3 of the Regulations and would not give rise to any rights. Conversely, if such a transaction or contract, which is equivalent to ‘transfer’, as defined under the Regulations has taken place before the notified date, it is saved. Therefore, the agreement of sale, which was accepted by both the parties to the transaction, answers the description of a ‘contract’ relating to the property. Since this has taken place much prior to the notified date, the transaction is not hit by Regulation 3 of the Regulations. This Court has taken a similar view in K.NAGESWAR RAO v GOVERNMENT OF A.P. 1995 (3) ALT 164 . It is true that the fourth respondent has undertaken extensive discussion before he arrived at a conclusion that the transaction in favour of the petitioner is hit by Regulation 3 of the Regulations. This Court has taken a similar view in K.NAGESWAR RAO v GOVERNMENT OF A.P. 1995 (3) ALT 164 . It is true that the fourth respondent has undertaken extensive discussion before he arrived at a conclusion that the transaction in favour of the petitioner is hit by Regulation 3 of the Regulations. However, he took the sale deed alone into account and proceeded as though any other form of transaction or other than a registered sale deed cannot be recognized in law. The appellate authority adopted the same view. So far as the first respondent is concerned, initially the revision was dismissed almost for default on the ground that the counsel for the petitioner did not turn up in spite of the repeated notices. In fairness to the petitioner, it entertained a review and examined the matter in detail, though no power of review is conferred upon it. A combined reading of the two orders, namely G.O.Ms.No.87, dated 26.09.2000, and G.O.Ms.No.54, dated 24.05.2001, discloses that the contentions advanced on behalf of the petitioner were taken into account. The fact, however, remains that the wider definition adopted under Regulation 2(g) of the Regulations was not taken into account and all the authorities were of the view that the date of actual sale deed alone becomes material. Such a view is contrary to law particularly when the agreement of sale, dated 15.11.1968, was admitted by the vendor and was proved through other cogent evidence. Hence, the writ petition is allowed, as prayed for. It is presumed that the orders passed by the fourth respondent in S.R.No.419 of 1979 and the one passed by the second respondent in S.R.A.No.23 of 2001 have merged into the one in G.O.Ms.No.87 dated 26.09.2000 and the latter, in turn, had merged into the order in review, namely G.O.Ms.No.54 dated 24.05.2001. Hence, the proceedings initiated against the petitioner stand set aside. There shall be no order as to costs.