JUDGMENT
S.R. Nayak, J.
1. This writ appeal filed by the Special Deputy Collector, Tribal Welfare, Palwancha is directed against the
order of the learned single Judge of this Court dated 29-7-1997 made in WP No. 2182 of 1989. The 1st respondent herein Gummadapu Mohan Rao filed the above writ petition seeking quashing of the notice issued under Rule 7(2) in LTR No. 1032/88 dated 13-1-1989 calling upon the writ petitioner to show-cause. The writ petitioner without showing cause straight away filed the writ petition seeking quashing of the notice. The background facts leading to the filing of the above writ petition may be briefly noted in the first instance, and they are as follows:
2. The petitioner’s father-in-law by name Godem Koteswar Rao purchased two acres of land comprised in S.No. 297 situated in Naidupet village under a registered sale deed dated 21-11-1959 from Tati Pottenna, the 2nd respondent in the writ petition who is said to be a tribal. On an earlier occasion, proceeding in Case No. 1409/74, dated 15-4-1975 was initiated against the father-in-law of the writ petitioner alleging that he purchased the subject land in contravention of the provisions of Section 3 of the Regulation 1 of 1959 as amended by Regulation 1 of 1970. After holding enquiry, the Special Deputy Collector, Tribal Welfare held that the transaction did not contravene Regulation 1 of 1959 and accordingly the proceeding initiated against the father-in-law of the petitioner was dropped. When the matter stood thus, notice impugned in the writ petition was issued by the Special Deputy Collector, Tribal Welfare again under Section 3 of the Regulation 1 of 1959 to the petitioner alleging that he is found to be in possession of the land, which originally belonged to a tribal. The writ petitioner without replying to the Form ‘E’ Notice under Rule 7(2) filed the writ petition.
3. Before the learned single Judge, it was contended that the initiation of the proceeding by issuing the impugned notice
is hit by the principle of res judicata, because, on an earlier occasion, the Special Deputy Collector, Tribal Welfare had initiated the proceeding against the father-in-law of the petitioner and those proceeding having been dropped, the present initiation of the proceeding is unauthorised and illegal. The learned single Judge accepting the above contention advanced on behalf of the writ petitioner held that the impugned notice issued by the 1st respondent is hit by the principle of res judicata inasmuch as the issue was already decided between the petitioner’s father-in-law and the 2nd respondent earlier in case No. 1409/74- dated 15-4-1975. The learned single Judge also held that there was no transfer of the subject land in favour of the writ petitioner and the subject property devolved on the wife of the writ petitioner who was no other than the daughter of Godem Koteshwar Rao. So opining the learned Judge has quashed the impugned notice and injuncted the 1st respondent not to proceed with the enquiry pursuant to the impugned notice, by his order dated 29-7-1997. Hence this writ appeal by the Special Deputy Collector, Tribal Welfare.
4. Learned Government Pleader for Social Welfare appearing for the appellant contended that both the grounds stated by the learned single Judge are untenable. The learned Government Pleader further contended that even assuming that the purchase made by G. Koteshwar Rao, father-in-law of the writ petitioner is valid and legal, as held in Case No. 1409/74 dated 15-4-1975 by the Special Deputy Collector, Tribal Welfare, that finding or circumstance itself would not operate as a bar, much less as a res judicata from initiating the proceeding under Section 3 of Regulation 1 of 1959 on the ground that the writ petitioner who is admittedly a non-tribal is found in possession of the subject property which originally belonged to a tribal, and such an
action is permissible having regard to the provisions of Clause (b) of Sub-section (1) of Section 3 of the Regulation. The learned Government Pleader also contended that the finding recorded by the learned single Judge that the subject land was devolved on the wife of the writ petitioner is without any basis and evidence, and on the other hand, even according to the writ petitioner as reflected in para 4 of the affidavit filed in support of the writ petition, G. Koteshwar Rao allotted 30 cents of land out of the land purchased by him to the writ petitioner and that it is not the case of the writ petitioner that the land was devolved on his wife. The record placed before us also do not reflect that G. Koteshwer Rao has expired.
5. On the other hand, learned Counsel for the 1st respondent-writ petitioner supported the order of the learned single Judge and contended that the wife of the writ petitioner is the only daughter of G. Koteshwar Rao and therefore, simply because the writ petitioner, being the husband of the daughter of G. Koteshwer Rao was found to be in possession of the subject land, it could not be said that the provisions of Section 3 of the Regulation 1 of 1959 are violated and looking from that angle also, the initiation of the proceeding by issuing Form ‘E’ Notice under Rule 7 of the Rules, is totally unwarranted and illegal.
6. Sections 1 and 2 of Section 3 of the Regulation reads as follows:
(1) (a) Notwithstanding anything 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 a Scheduled Tribe, shall be absolutely null and void, unless such transfer is made in favour of a person, who is a member of a Scheduled Tribe or a society registered or deemed to be
registered under the Andhra Pradesh Co-operative Societies Act, 1964 (Act 7 of 1964) which is composed solely of members of the Scheduled Tribes.
(b) Until the contrary is proved, any immovable property situated in the Agency tracts and in the possession of a person who is not a member of Scheduled Tribe, shall be presumed to have been acquired by person or his predecessor in possession through a transfer made to him by a member of a Scheduled Tribe.
(c) Where a person intending to sell his land is not able to effect such sale, by reason of the fact that no member of a Scheduled Tribe is willing to purchase the land or is willing to purchase the land on the terms offered by such person, then such person may apply to the Agent, the Agency Divisional Officer or any other prescribed officer for the acquisition of such land by the State Government, and the Agent. Agency Divisional Officer or the prescribed officer, as the case may be, may by order, take over such land on payment of compensation in accordance with the principles specified in Section 10 of the Andhra Pradesh Ceiling on Agricultural Holdings Act, 1961 (Act X of 1961), and such land shall thereupon vest in the State Government free from all encumbrances and shall be disposed of in favour of members of the Scheduled Tribes or a society registered or deemed to be registered under the Andhra Pradesh Co-operative Societies Act, 1964 (Act 7 of 1964) composed solely of members of the Scheduled Tribes or in such other manner and subject to such conditions as may be prescribed);
(2) (a) Where a transfer of property is made in contravention of Sub-section (1), the Agent, the Agency Divisional Officer or any other prescribed officer may, on application by any one interested, or on information given in writing by a public servant, or suo motu decree ejectment against any person in possession of
the property claiming under the transfer, after due notice to him, in the manner prescribed and may restore it to the transferor or his heirs.
(b) If the transfer or his heirs are not willing to take back the property or where their whereabouts are not known, the Agent, the Agency Divisional Officer or prescribed officer as the case may be, may order the assignment or sale of the property to any other member of a Scheduled Tribe or a Society registered or deemed to be registered under any law relating to Co-operative Societies for the time being in force in the State composed solely of members of the Scheduled Tribes, or otherwise dispose of it, as if it was a property at the disposal of State Government.
7. What is relevant for our purpose in deciding this writ appeal is the provisions of Clause (b) of Sub-section (1) of Section 3. It is true that in the earlier proceeding initiated in Case No. 1409/74 dated 15-4-1975, the Special Deputy Collector, Tribal Welfare, Palwancha held that the purchase made by Koteshwer Rao, the father-in-law of the writ petitioner was not in contravention of the provisions of Section 3 of the Regulations and that order has become final. The bar contained in Sub-section (1) of Section 3 of the Regulation operates in presenti. It is not that bar would be applicable only to those transactions entered into between the parties prior to enactment of the Regulation. Even after the enactment of the Regulation, there is a total bar on alienation of the properties situated in the Agency tracts by a person, whether or not such a person is a member of Scheduled Tribe. Further the provisions of Clause (b) in an unmistakable language provides that if any immovable property situated in the Agency tracts is found to be in the possession of a person who is not a member of Scheduled Tribe, such a person should be presumed to have acquired such land through a transfer made to him by a member of a Scheduled
Tribe. Of course, the presumption incorporated in Clause (b) of Sub-section (1) can be rebutted or dislodged by adducing evidence by a person concerned. Whether the writ petitioner has the evidence to dispel the presumption incorporated in Clause (b) or not is not the concern of the Court at this stage and it is for the Special Deputy Collector, Tribal Welfare to decide that question on merits of the matter holding enquiry and after giving opportunity to both sides. But, it cannot be said that the issuance of notice in Form ‘E’ is one without authority of law or competence. It is nobody’s case that the Special Deputy Collector, Tribal Welfare, Palwancha is not the prescribed competent authority to initiate the proceeding under Sub-section (2) of Section 3 of the Regulation. It is well settled that a Statutory authority cannot be prevented from exercising the power conferred upon it by issuing a writ of prohibition. The writ of prohibition could lie only where the reviewing Court finds that the person or the authority which has issued she show-cause notice to initiate proceeding under the Statute is not the prescribed competent authority or is disabled otherwise. That is the only exception where the Court can entertain a writ petition, but not otherwise. We also find considerable force in the contention of the learned Government Pleader that it is nobody’s case that the subject land devolved on the wife of the writ petitioner. We have perused the averments in para (4) of the writ affidavit. The writ petitioner himself has stated that his father-in-law allotted 30 cents of land to him and that in the affidavit nowhere it is stated that the said land, on the demise of the father-in-law or otherwise, fell to the share of the wife of the writ petitioner, and the writ petitioner being the husband of that lady has been in joint possession and enjoyment of the property. If that is not so, certainly, the impugned notice issued by the Special Deputy Collector, Tribal Welfare to the writ
petitioner is maintainable and it is well within the powers of the said officer under Sub-section (2) of Section 3 of the Regulation. In view of the opinion we have taken, with respect, we cannot sustain the order of the learned single Judge. The writ appeal is, therefore, allowed and the order of the learned single Judge is set-aside and the writ petition is dismissed. Now it is open to the appellant, the Special Deputy Collector, Tribal Welfare, Palwancha to take further steps in pursuance of the impugned Form ‘E’ Notice dated 13-1-1989 in LTR No. Case No. 1032/88 in accordance with law. No order as to costs.