(BPR, J)

The petitioners, who are the tribals, filed this writ under Article 226 of the Constitution of India, inter alia, seeking a Mandamus to declare para-3 of the Circular Memo No.889/RH1/99, dated 08-07-1999 issued by the Housing (RH) Department of the Government of Andhra Pradesh, as illegal and null and void.

2. The petitioners, who claim to belong to Koya Dora tribe and Kondareddy tribe respectively, found fault with the aforesaid circular, of which the relevant para is hereafter extracted, and complain that it makes serious enroots into the substantive and vested rights of the scheduled tribes which are provided under the provisions of the A.P. Scheduled Areas Land Transfer Regulations, 1959 apart from para-5(2)(a) of the fifth schedule to the Constitution of India. For convenience sake, the impugned portion of the circular reads as follows:

“In respect of the eligible non-tribal beneficiaries who are in possession of house-sites in the village site/abadies but cannot readily establish his legal possession, there is a difficulty in mortgaging such houses along with the houses constructed thereon in favour of the A.P. State Housing Corporation Ltd., as security to the loans extended by the latter. Government have examined the issue carefully in consultation with the Law Department and Advocate General of Andhra Pradesh and the following instructions are issued:

1. For any reason if a non-tribal eligible beneficiary is not in a position to readily establish his legal possession of house site in village site/abadi and is in occupation of the house-site in question though such possession may not be strictly according to the Law, he can also be considered for grant of loan by the A.P. State Housing Corporation Ltd., for constriction of Weaker Section Housing on the basic of security offered by him in regard to the super-structure existing on the site together with the stipulation that the house to be constructed on the said site through the loan extended by the A.P. State Housing Corporation Ltd., shall also be treated as offered as security for the due repayment of the said loan.

2. Such security namely the existing super-structure with the house going to be constructed may be mortgaged by a simple registered mortgage deed in favour of A.P. State Housing Corporation Board, as security.

3. The officials of A.P. State Housing Corporation Ltd., will verify the possession of house-site by the non-tribal eligible beneficiary in village site/abadi and then accept the mortgage of the same along with the house going to be constructed thereon, as security.

4. The format of the mortgage deed to be taken and registered in favour of the A.P. State Housing Corporation Ltd., shall be communicated to all Collectors and the District Managers (Housing), A.P. State Housing Corporation Ltd., in the Scheduled Areas, separately.

5. The delegation of powers to register such mortgage deeds by the officials of A.P. State Housing Corporation Ltd., as per the provisions of Stamps and Registration Act, 1908 is under consideration of the Government separate orders will be issued in this regard. Till such time the mortgage-deed shall be registered by the officers of the Registration Department only.

4. All Collectors and the A.P. State Housing Corporation Ltd., officials in Scheduled Areas are requested to take action accordingly.”

3. On a bare reading of the circular, it aims at providing an enabling provision for the purpose of giving security for the loan given by the A.P. State Housing Corporation Limited to the non-tribal beneficiaries residing in the scheduled areas on par with the other beneficiaries residing in the plains area. It tries to put the beneficiaries of other area in securing the loans by mortgaging D-form possession certificate of house sites owned by them along with the houses constructed thereon as the guarantee for the purpose of obtaining loans from the Corporation, but, however, found that it is not so in the