Allowed

Marri Siva v. The Government of Andhra Pradesh, rep. by the

Telangana HC10 Oct 2018WP/22806/2008

Case brief

AI extract

What is this about?

A single judge allowed a writ petition declaring orders ejecting non-tribal petitioners from government land without jurisdiction, as the relevant Scheduled Area Land Transfer Regulations require a transfer by a scheduled tribe and the lands were merely illegally occupied.

What did the court decide?

Writ petition allowed; impugned orders in LTRs, CMAs and G.O.Ms.No.182 set aside as without jurisdiction; respondents directed to initiate proceedings under Land Encroachment Act.

Marri Siva Vs The Government of Andhra Pradesh, rep. by… — Property and Title | Telangana HC (2018)

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THE HON’BLE SRI JUSTICE U.DURGA PRASAD RAO

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WRIT PETITION No.22806 of 2008

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ORDER:

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The petitioners seek writ of Mandamus declaring the orders issued by respondent No.3 in LTR Nos. 374, 375, 389, 392, 394 of 1994 and 378 of 2002, the orders issued by respondent No.2 in CMA Nos. 30, 31, 32,33, 34 and 37 of 2002, dated 14.7.2006 and the order of respondent No.1 in G.O.Ms.No.182 Social Welfare (LTR) Department, dated 12.9.2008, as illegal, arbitrary and without jurisdiction and consequently direct respondents not to dispossess petitioners from the scheduled lands.

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The petitioners’ case is that they are residents of Koyyuru Mandal, Visakhapatnam District and they are agriculturalists. The ancestors of petitioners have occupied the Government lands in Koppukonda of Koyyuru Mandal and particulars of the lands occupied and in possession of petitioner-wise were given in a tabular form in the writ petition. They have been paying the land revenue to the Government from 1951 onwards. In fact, the Tahsildar, Chintapally, who was having jurisdiction over the village Koppukonda tentatively assigned the lands occupied by the ancestors of petitioners in 1975. It is, thus, clear from the

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said proceedings that the lands are Government lands classified as un-assessed waste lands and tentatively assigned to forefathers of petitioners pending finalization of sub division records. The lands are Government lands and are not that of Tribals. Hence, the provisions of Andhra Pradesh Scheduled Areas Land Transfer Regulation, 1959 amended by Regulation 1 of 1970 (for short, ‘Regulation 1 of 1959’) have no application. However, the authorities have initiated proceedings in LTR Nos. 374, 375, 389, 392, 394 of 1994 and 378 of 2002 and passed orders ejecting petitioners. Aggrieved, petitioners filed C.M.A Nos. 30, 31,32, 33, 34 and 37 of 2002 before respondent No.2 agitating that the provisions of Regulation 1 of 1959 have no application, as the petitioners have been in occupation of the Government lands since five decades and the interest of tribals was not involved. However, respondent No.2 dismissed the appeals, without properly considering the contentions of petitioners. Thereafter, petitioners have filed Revision against the order in appeals passed by respondent No.2. However, the revision was dismissed by respondent No.1 observing that petitioners are in illegal possession of the banjar land/Government land in Koppigunta village in Koyyuru Mandal of Visakhapatnam District, they have not filed any documentary evidence to show their rightful ownership of the said lands and their illegal occupation of the Government land is objectionable one as per the Revenue Board Standing Orders and also provisions

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laid down under Andhra Pradesh Land Encroachment Act, 1905, since their possession is prima facie illegal and cannot be ratified. Further, G.O.Ms.No.971 dated 7.10.1969 prohibits all assignments of Government lands in agency area in favour of non-tribal. On these observations, respondent No.1 dismissed the revision petition and consequently G.O.Ms.No.182 Social Welfare (LTR) Department, dated 12.9.2008 was issued. Hence, the instant writ petition.

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Heard Sri T. Vijay Hanuman Singh, learned counsel for petitioners and learned Government Pleader for Social Welfare (A.P.), who filed his counter and opposed the writ petition.

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The submission of learned counsel for petitioners is that petitioners and their forefathers have occupied the Government land about five decades prior to LTR Proceedings and they are in possession and enjoyment of the same and the lands occupied do not belong to any tribals, though the lands are situated in Agency tracts. Learned counsel for petitioners would further submit that petitioners have been paying the land revenue regularly to the Government and enjoying the land and some time prior to initiation of LTR proceedings, the then Tahsildar of Chintapally, in fact, issued a tentative assignment proceedings in 1975 in favour of Marri Appanna, husband of third petitioner and also Lalam Lachanna. In that view of the matter, the provisions of Regulation 1 of 1959, as amended by Regulation 1 of 1970

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have no application. Referring to Section 2 (g) of Regulation 1 of 1959, learned counsel for petitioners would submit that Section 2 (g) defines ‘Transfer’ which means mortgage with or without possession, lease, sale, gift, exchange or any other dealing with immovable property, not being a testamentary disposition and includes a charge on such property or a contract relating to such property in respect of such mortgage, lease, sale, gift exchange or other dealing and in the instant writ petition, no transfer by any of the above modes is taken place and on the other hand, petitioners’ case is that they have occupied the Government poramboke lands about decades prior to launching of LTR proceedings and the land in question do not relate to the Schedule Tribes. Therefore, he would argue, the provisions of Regulation 1 of 1959 have no application to the facts of the case. In spite of taking such a crucial legal plea by petitioners, respondent-authorities at various stages, such as LTR proceedings, appeal and revision, have not considered the said plea and passed an order directing the ejectment of petitioners on the sole ground that petitioners have been in occupation of the Government land.

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Learned counsel for petitioners would further submit, mere occupation of the Government land in agency tracts by a person itself will not attract the provisions of the Regulation 1 of 1959, unless any transfer takes place from the Schedule

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Tribes. Since the said fact is absent, the provisions of Regulation 1 of 1959 have no application. To buttress the argument, learned counsel for petitioners relied upon a decision of this Court reported in U.Subhashchandra Vs. Agent to Government and District Collector, Visakhapatnam¹ . He thus, prayed to allow the writ petition and set aside the impugned orders passed by respondents.

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Per contra, learned Government Pleader, Social Welfare, would submit that petitioners have illegally occupied the Government lands situated at Agency tracts and therefore, the provisions of Regulation 1 of 1959 indeed applied against them and therefore, the respondent-authorities were right in ordering ejection of petitioners. Learned Government Pleader further submits that in W.P.M.P. No.2970 of 2008, this Court, while granting interim suspension of the impugned order in G.O.Ms.No.182 Social Welfare (LTR) Department, dated, 12.9.2008 directed the petitioners to deposit Rs.2,000/- per acre per annum for cultivating the lands pending disposal of the writ petition and since this Court permitted petitioners to cultivate the lands by paying the amount, the transaction shall be taken as lease and since the land in question belongs to Government and in that context, the provisions of Regulation 1 of 1959 will apply. He would argue, petitioners cannot have any right over Government lands, though they are in

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1 1992(I) ALT 52

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occupation of the said lands. He thus, prays to dismiss the writ petition.

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As can be seen from the record, it is not in dispute that petitioners and their forefathers have occupied the subject lands about five decades prior to initiation of LTR proceedings and they have been enjoying those lands by paying the land revenue to the Government. The lands are classified as AWD and recorded as such in Revenue and Settlement records. It is also admitted that the petitioners are non-tribals. However, the subject lands are not relating to any scheduled tribes and the interest of schedule tribes is not involved in the instant case. As such, it is germane to consider whether the provisions of A.P. Schedule Areas Land Transfer Regulation 1 of 1959, as amended by Regulation 1 of 1970 are indeed have any application to empower the respondent-authorities to initiate the proceedings under the aforesaid regulation. Regulation 1 of 1959 would show that it was a regulation to regulate the transfers of land in the Scheduled Areas of East Godavari, West Godavari, Visakhapatnam, (Srikakulam, Adilabad, Warangal, Khammam, Mahaboobnagar) Districts of A.P. Section 2 (g) defines “transfer” as under:

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‘Transfer’ means mortgage with or without possession, lease, sale, gift, exchange or any other dealing with immovable property, not being a testamentary disposition and includes a charge on such property or a contract relating to such property in respect of such mortgage, lease, sale, gift, exchange or other dealing”

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Section 3 of Regulation 1 of 1959 lays down that notwithstanding anything contained in any enactment, rule or law in force in the Agency Tracts, any transfer of immovable property situated in Agency Tracts by any member of any Scheduled Tribe shall be absolutely null and void unless in favour of any other member of schedule Tribe or a registered society as defined in clause (f) of Section 2 of Madras Cooperative Societies Act, 1932 composed solely of members of the Scheduled Tribes or 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. Therefore, a transaction to be brought within the fold of Section 3 of Regulation 1 of 1959, it must be effected from a Schedule Tribe. Then Section 3 has been amended by Regulation 1 of 1970. The amended Section 3 (1) (a) would show that notwithstanding anything contained in any enactment, rule or law in force in the Agency tracts, any transfer of immovable property situated in the Agency tracts by a person, whether or not such person is a member of Schedule Tribe, shall be absolutely null and void, unless such transfer is made in favour of a person, who is a member of a Schedule Tribe or a Society registered or deemed to be registered under the A.P. Co-operative Societies Act, 1964, which is composed solely of members of the Scheduled Tribes. So to attract the amended Section 3 (1) (a), there shall be a transfer of immovable property situated in Agency tracts

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by a person whether belonging to Schedule Tribe or not. So to attract Section-3 either prior to or subsequent to the amendment, there must be a transfer of immovable property situated in Agency tracts and as already stated supra, the word “transfer” was defined under Section 2 (g) which is extracted supra. When the above provisions are applied to the facts of the present case on hand, it can be said that there is no element of transfer present in the instant case. Admittedly, the petitioners have been in occupation of the Government land since five decades prior to initiation of LTR proceedings. Therefore, it can be concluded that the provisions of A.P. Scheduled Areas Land Transfer Regulation, 1959 amended by 1 of 1970 have no application. My view gets fortified by the decision in U.Subhashchandra Vs. Agent to Government and District Collector, Visakhapatnam wherein the facts are that the lands in question were poramboke lands belonging to the Government and the petitioners therein encroached the same and made unauthorized constructions. In that backdrop, this Court held that the matter cannot be brought under the provisions of Regulation 1 of 1959 and by no stretch of imagination, it can be said that there is any transfer contrary to the provisions of A.P. Scheduled Areas Land Transfer Regulation, 1959. As the matter clearly falls out of the A.P. Scheduled Areas Land Transfer Regulation, 1959, the action of the respondents in that regard is undoubtedly without jurisdiction. The

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aforesaid ruling squarely applies to the case on hand. Unfortunately, though this point of argument was canvassed by the petitioners, at various stages, the respondentauthorities did not consider the same while passing the ejectment order. Therefore, the orders, passed in different stages by the respondents, are without jurisdiction and hence, they are liable to be set aside. At this stage, learned Government Pleader would submit that the respondentauthorities may be permitted to initiate proceedings against petitioners under the Land Encroachment Act, 1905. If the respondent-authorities are so advised, they are at liberty to proceed against the petitioners, by following due process of law.

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In the result, the writ petition is allowed setting aside the order in G.O.Ms.No.182, dated 1.9.2008 passed by respondent No.1 and consequently, the common order dated 14.7.2006 passed by respondent No.2 in CMA Nos. 30, 31, 32, 33 and 37 of 2002 and also the orders in LTR Nos. 374, 375, 389, 392, 394 of 1994 and 378 of 2002, passed by respondent No.3, as being without jurisdiction. However, the respondent-authorities are at liberty to initiate proceedings against the petitioners for eviction from the subject lands by following due process of law. Till then, the possession of the

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petitioners, in respect of subject lands, shall be protected subject to the conditions imposed in W.P.M.P.No.29703 of 2008, dated 20.10.2008.

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As a sequel, miscellaneous petitions pending if any, shall stand closed.

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___________________________ U.DURGA PRASAD RAO, J

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Date: 10/10/2018 Slk

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THE HON’BLE SRI JUSTICE U.DURGA PRASAD RAO