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1993 Supreme(AP) 75

Andhra Pradesh High Court
Judges : A.LAKSHMANA RAO, P.L.N.SHARMA, P.VENKATRAMA REDDY
Vemana Somalamma - Appellant
Versus
Dy Collector, Tribal Welfare, Rampachodavaram, E.G.Dist. - Respondent
W.A.No.78/91 etc.
Decided On : 02-17-93
Advocates Appeared :
Mr. M. Lakshmanasarma

Headnote:A.P. Scheduled Areas Land Transfer Regulations, 1959, as amended by Regulation 1 of 1970, Sec. 3(1) and (2) - Transfer of land situate in a Scheduled area by a non - tribal in favour of another non- tribal - Competent authority is riot bound to restore the land to non- tribal transfer or though the transfer is null and void.

       HELD: in the case of transfer of land situate within the scheduled area by a non-tribal in favour of another non-tribal which is absolutely null and void under the provisions of subsection (1) of Sec.3, the non-tribal transferor is not entitled to have the land restored to him and clause (a) of sub-section (2) of Sec. 3 of Regulation 1 of 1959, as amended by Regulation 1 of 1970 has no application to such a transfer. Even the transferer non-tribal is also not entitled to retain the property.

       Clause (b) of sub-sec. (1) of Sec. 3 makes it very clear that the possession of a person who is not a member of schedule tribe of any property situated in Agency Tracts shall be presumed to have been acquired by such person or predecessor-in-possession through a transfer made by a member of schedule tribe. Even without reference to any actual transfer, mere possession of the property situated in Agency Tracts by a non-tribal raised the presumption under Clause (b) sub-sec. (1) of Sec. 3 to the effect that such possession was obtained only on a transfer made by a schedule tribe which is hit by Sec. 3 (1) (a) and the possession of the said land can be restored back to a tribal under clause (b) of sub-section (2) of Sec. 3 of course, this is subject to any enquiry in which the non-tribal will be given an opportunity to prove otherwise. Therefore, the object seems to be that all the immovable properties in Agency Tracts, as far as possible the be restored back to the tribals, which was held by tribals at one time. Therefore, it is not possible to hold that restoration under an invalid transfer made by a non-tribal can also be made in favour of him.

       Having regard to the language of clause (b) of sub-sec. (2) of Section 3 and also having regard to the object and intention of the legislation, the restoration can only be in the case of transfer made by a tribal. In other words, the intention of clause (a) of sub-section (2) of Section 3 is that restoration can only be made to a tribal transferor.

       Undeported judgments in W.P.No.9692/86, dt.28-11-89 and 13673/84 dt.6-3-90B.P.J.R., & S.S.M.O., (JJ) over - ruled.

       W.As. & W.Ps. Dismissed

       

P. L. N. SARMA, J.

( 1 ) WHEN these matters came up before a Division Bench of this Court consisting of Sardar Ali Khan and M. N. Rao, JJ. a Judgement in W. P. No. 13673 of 1984 dt. 6-3-1990 was brought to the notice of the learned Judges, wherein in similar circumstances, the learned Judges directed the authorities to restore the land to the non-tribal transferor on the basis of Sub-Section (2) of Section 3 of Regulation I of 1959 as amended (herein after referred to as "regulation I of 1959" ). In fact, B. P. Jeevan Reddy and Syed Shah Mohammed Quadri, JJ. took a similar view in W. P. No. 9692 of 1986 dated 28-11-1989. Sardar Ali Khan and M. N. Rao, JJ. were of the opinion that the matters are eminently suitable to be decided by a Full Bench and accordingly directed the papers to be placed before the Hon ble The Chief Justice for obtaining suitable orders in the matter. After obtaining suitable orders, the matters are referred to us and that is how these matters have come up before us.

( 2 ) THE point referred to this Full Bench for decision is as under :"whether in the case of transfer of land situate within the scheduled areas by a non-tribal in favour of another non-tribal which is made absolutely null and void under the provisions of Sub-Section (1) of Section 3, the Agent, Agency Divisional Officer or any other prescribed Officer, as the case may be, is bound to restore the said land to the non-tribal transferor under the provisions of Clause (a) of Sub-Section (2) of Section 3 of the Andhra Pradesh Scheduled Areas Land Transfer Regulation 1959 (Regulation I of 1959) as amended by Regulation I of 1970 ?"

( 3 ) IN Writ Appeal No. 78 of 1991, a non-tribal sold an extent of Ac. 1-40 cents in the Scheduled Area to the appellant (transferee) under a sale deed dated 17-10-1973. Proceedings were taken by the competent authorities for his ejectment from the said property under the provisions of Regulation I of 1959 and orders were also passed to that effect. Questioning the final order, writ petition was filed by him and on its dismissal, present writ appeal was filed.

( 4 ) IN Writ Appeal No. 1664 of 1988, a non-tribal executed a settlement dated 20-4-1970 settling an extent of Ac. 2-00 situate in scheduled area in favour of his own daughter. It is stated that both the settler and settle died. Now the son of the settler filed writ petition questioning the orders passed by the authorities under the provisions of Regulation I of 1959 as amended for his eviction from the said property.

( 5 ) NON-TRIBAL transferor is the petitioner in Writ Petition No. 13377 of 1986. Transfer was affected by him by way of a registered sale deed dated 14-4-1975 covering an extent of Ac. 5-40 cents. When proceedings were taken under the provisions of Regulation I of 1959 he claimed that he is entitled for restoration of possession of the land.

( 6 ) LIKE-WISE, in Writ Petition No. 13470 of 1986 also, a non-tribal transferor is the petitioner. In the said case, sale deed was executed on 3-7-1972 covering an extent of Ac. 9-15 cents.

( 7 ) WHILE the non-tribal transferee in Writ Appeal No. 78 of 1991 claims that in view of the fact that the alienation itself is held to be absolutely null and void, possession of the land must remain with him, viz. , that the land must remain where it is, the transferors contend that in view of the fact that the transfers effected by them are in contravention of Sub-Section (1) of Section 3, they are entitled for restoration of the land under the provisions of Clause (a) of Sub-Section (2) of Section 3 of Regulation I of 1959 as amended.

( 8 ) TO appreciate and answer the point referred to us for decision, it is necessary to trace the history of legislation as is made applicable to the Scheduled Areas and gather the intention there-from.

( 9 ) PRIOR to 1874 certain enactments were made to provide for the administration of justice and for collection of revenue in the agency Areas. In view of the fact that certain doubts ha
























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