ORDER
L. Narasimha Reddy, J.
1. The petitioners challenge the orders dated 11-11-1994 and 10-12-1997 passed by the District Collector, East Godavari District at Kakinada, the 1st respondent and Commissioner of Survey, Settlement and Land Records. Hyderabad, the 2nd respondent, respectively. The subject-matter of this writ petition has a background spread over several decades. Briefly stated, it is as under:
2. Through a Sanad dated 21-13-1918, the Agent to Government of the erstwhile British Government granted rights and privileges of Muttedar in favour of one Chakka Lingam Dora, in respect of lands in as many as 74 villages, called as ‘Ducharti Mutta’ in Yellavaram division. East Godavari District. The Muttedar was conferred with the rights to enjoy the lands subject to the condition that he shall not alienate the same by gift, mortgage or sale and that he shall pay a sum of Rs. 1200/-towards Kattubadi. The Muttedar in turn had leased an extent of 100 acres of land in Buruguloddi village to one Tsalika Ramanna and others. One of the lessees by name Tsalika Tirupathaiah relinquished his share and the same was granted on lease to one Palacherla Kondal Rao. The petitioners claim to be the legal descendents of the said Kondal Rao.
3. Even after independence, the legal regime as regards lands in Schedule Areas continued. The Agent to Government cancelled the lease in favour of Kondal Rao through proceedings dated 24-6-1958 and directed his eviction from the land, on the ground that grant of lease in his favour was in violation of the conditions of Mutta Sanad granted in favour of Lingam Dora. An appeal was preferred by the lessees to the Government. One of their contentions was that it was only the transfers made by members of hill tribe that were prohibited and that the Muttedar was not a member of hill tribe. The appeal was allowed by the Government through its order in G.O. Ms. No 1681, dated 17-8-1960. The matter was remanded to the Agent to Government for fresh enquiry and consideration, especially as regards the social status of Muttedar. The Agent to Government passed orders dated 31-8-1961 consequent on the remand. It was held that the Muttedar was a member’ of hill tribe and that the petitioners are not members of any hill tribe.
4. Aggrieved by the order of the Agent to Government, the petitioners filed an appeal before the Government for the 2nd time. The appeal was initially rejected through orders in G.O. Ms. No. 1997 dated 27-12-1962. On an application made by the Muttedar, the Government considered the matter afresh and passed orders in G.O.Ms. No. 779 dated 8-8-1967. Through this order, the Government held that the Muttedar was not a tribal. The order took note of the effect of A.P. (Scheduled Area) Land Transfer Regulations 1959 (for short ‘the Land Transfer Regulations’) and the impact of Section 3 thereof on the lease granted by the Mattadar in favour of the petitioners. It was held that the lease in favour of the petitioners was not hit by any conditions of Sanad or the provisions of the Land Transfer Regulations. The proceedings initiated against the petitioners and their predecessor by the Agent to Government through orders dated 24-6-1958 came to be terminated.
5. The Governor of Andhra Pradesh, in exercise of powers under Paragraph 5(2) of the Fifth Schedule to the Constitution of India and with the assent of the President of India, made the Andhra Pradesh Muttas (Abolition and Conversion into Ryotwari) Regulation, 1969 (for short ‘the Mutta Regulations’). Under these Regulations, all the rights and interests of a Muttedar in respect of a Mutta created under the Sanad granted to him by the Government stood transferred to, and vested in the Government, free from all encumbrances. Certain enactments of the State Legislature were extended to such lands.
6. Section 5 of Mutta Regulations provided for grant of ryotwari pattas in favour of ryots in a Mutta, in respect of agricultural lands held by him. This Section provided a dichotomy between tribal and non-tribal ryots, in the matter of grant of ryotwari pattas. In case of tribals, it was sufficient if he was in possession of the land for a period of not less than one year immediately before the notified date. As regards non-tribal ryots, it stipulated that he shall have been in lawful possession or occupation of the land for a continuous period of not less than eight years, immediately before the notified date and that the possession or occupation of the land by them was not void or illegal under the Land Transfer Regulations, or any other law for the time being in force. The Mutta Regulations came into force with effect from 26-12-1970.
7. The petitioners made applications for grant of ryotwari pattas under Section 5, to the Settlement Officer, Rajahmundry. Their applications were rejected through orders dated 2-4-1975 on the ground that their possession was not supported by any individual lease deed and that they do not derive any rights through a common lease deed of the year 1953. It was also observed that the petitioners failed to establish any lease subsequent to the expiry of the original lease and their possession was not valid during the period prior to the notified date. The appeals preferred by the petitioners before the Director of Settlement, the 3rd respondent, were dismissed for default through orders dated 23-4-1977. Subsequently they were restored to file. In the meanwhile, the then Tahsildar assigned an extent of about 30 acres to various individuals. The appeals were ultimately allowed through orders dated 25-11-1981. The Tahsildar preferred appeals before the 2nd respondent against the orders of the 3rd respondent. These appeals were dismissed on 4-3-1983.
8. Seeking the relief of cancellation of alienation of part of their lands, the petitioners filed W.P. No. 1 1862/84. While this writ petition was pending, the 1st respondent-District Collector filed W.P. No. 2859/1986, challenging the orders of the 3rd respondent dated 25-11-1981, which was confirmed by the 2nd respondent on 4-3-1983. Both the writ petitions were disposed of through a common order dated 19-9-1989 by setting aside the order of the 3rd respondent and remanding the matter to him for fresh consideration.
9. In the meanwhile, the Government changed the forum of appeal. The appellate jurisdiction, hitherto conferred on the Director of Settlements, was made over to the District Collector. Thereby the matters came to be dealt with by the District Collector, consequent to the remand. Through order dated 11-11-1994, the District Collector dismissed the appeals. Aggrieved thereby, the petitioners preferred further appeals before the 3rd respondent. The appeals were dismissed on 10-12-1997. Thus arises the writ petition.
10. Sri D. V, Seetharam Murthy, learned Counsel for the petitioners, contend that the order passed by the 1st respondent is vitiated by malice in law and official bias. He contends that it was the 1st respondent who challenged the orders of the 3rd respondent by filing WP.No.2859/1986 and that being the case; he ought not to have decided the appeals, notwithstanding the delegation of powers. It is his contention that the view taken by Respondents 1 and 3 that the lease was hit by the provisions of the Land Transfer Regulations or that the Muttedar was a tribal was unsustainable, in view of the specific orders passed by the Government on earlier occasions. He also contends that Respondents 1 and 3 have erred in treating the Muttedar as member of hill tribe, that the lease granted in favour of the petitioners was not legal being not in conformity with Section 107 of the Transfer of Property Act and that the possession of petitioners over the lands in question was not legal. He referred to various judgments rendered by this Court and the Hon’ble Supreme Court.
11. Learned Government Pleader for revenue submits that the adjudication of the appeals by the 1 st respondent was necessitated on account of change of the authority and mat the same is protected under the Doctrine of Necessity. He contends that Respondents 1 and 3 have dealt with the matter with reference to relevant provisions of the law as well as the Judgment of this Court in W.P. No. 2859/ 1986; and that no exception can be taken to the same.
12. Petitioners seek a writ of certiorari to quash the proceedings referred to above. The adjudication, therefore, depends mostly on the interpretation of the provisions than on the pleadings of the parties.
13. The lands in question were initially held by the Muttedar under a Sanad dated 21-11-1918. The Muttedar granted lease in the year 1953 in favour of the predecessors of the petitioners for a period of 5 years. Though no extension was granted thereafter, the petitioners continued to be in possession of the land. On the ground that the lease constituted alienation in violation of the condition of Sanad, the Agent to Government directed eviction of the petitioners through orders dated 24-6-1958. That round of litigation was brought to rest with the orders passed by the Government through G.O. Ms. No. 779 dated 8-8-1967.
14. Another set of proceedings came to emerge in the context of the enactment of Mutta Regulations. Section 5 thereof provides for grant of ryotwari pattas in favour of the occupants and possessors of the land. As observed earlier. Section 5 maintains a distinction between tribals and non-tribals, in the matter of grant of pattas. Petitioners are non-tribals. In addition to establishing that, they had been in lawful possession of the land for a period not less than 8 years preceding the notified date, they were also required to establish that their possession and occupation was not void and illegal under the Mutta Regulations or any law for the time being in force. For this purpose, the nature of rights held by them as well as the social status of the Muttedar becomes relevant.
15. The fact that the possession of the petitioners over the lands in question is for a period exceeding 8 years is not in dispute. The controversy was as to whether their possession was lawful and whether the same is in contravention of the Land Transfer Regulations.
16. The claim of the petitioners under Section 5 was rejected by the Settlement Officer through orders dated 2-4-1975. The 2nd respondent allowed the appeals preferred by the petitioners under Section 9 of Mutta Regulation and the same were confirmed by the 3rd respondent through orders dated 25-11-1981. The matter would have rested there, but for the anxiety of the petitioners to seek cancellation of the assignment of part of their land. They filed WP.No. 11862/84 for cancellation of the assignment. Two years thereafter the 1st respondent filed WP No. 2859/1986. This Court passed a common order in both the writ petitions, setting aside the order of the 3rd respondent and remanded the matter for fresh consideration.
17. Before discussing the matter on merits, the contention of the learned Counsel for the petitioners in relation to bias needs to be dealt with. Section 9 of the Mutta Regulations provides for appeal to Director of Settlements, against the orders of the Settlement Officer. In exercise of Rule Making Power under Section 35, the Government issued orders delegating powers of appellate authority under Section 9 to the concerned District Collectors. Therefore, the 1 st respondent took up the matter and passed the order dated 11-11-1994, dismissing the claim of the petitioners.
18. Strictly speaking, the exercise of power by the 1st respondent to pass the impugned order cannot be said to be legal. It was at his instance that the order passed by the then appellate authority, the 3rd respondent was set aside. He was the petitioner in W.P. No. 2859/1986. Even if the power of the 3rd respondent was delegated to him, he ought to have excused himself from adjudicating the matter. One of the parties to litigation cannot be permitted to adjudicate upon that very matter, even if it is after remand. Such a course of action runs at the teeth of the basic tenets of adjudication. This is so; independent of the fact whether it was the same incumbent who filed the writ petition or his successor in office, that has passed the order. The doctrine of official bias gets attracted here in such cases.
19. It is true that there are instances where the situations referred to above are saved by the Doctrine of Necessity. The question as to whether it was inevitable for the 1st respondent to proceed to adjudicate the matter and whether the mater could not have been entrusted to any other authority of equivalent jurisdiction is omitted from consideration for the reason that this Court does not intend to confine the examination of the matter to the aspect of bias. Having regard to the fact that the matter is pending since several decades, after several rounds of litigation and in view of the fact that the 1st respondent has undertaken extensive discussion touching on various aspects of the matter, it is proposed to consider the matter on merits.
20. While remanding the matter, this Court directed the appellate authority to consider certain aspects. They were (a) whether the lessor/Muttedar was a member of hill tribe as defined under Section 4 of the Agency Tracts, Interest and Land Transfer Act, 1917 (for short ‘the 1917 Act’); (b) whether the lease granted by him in favour of the petitioners is void and illegal, within the meaning of the said Act; and (c) whether the Muttedar can be treated as a land holder as defined under the A.P. (Andhra Area) Estates Land Act, 1908 (for short ‘the Estates Act’) and the effect of the repeal thereof. The 1st respondent framed necessary issues touching on these aspects. Ultimately he recorded findings to the effect that the Muttedar was a tribal, the lease granted by him in favour of the petitioners was hit by Land Transfer Regulations and that the possessions of the petitioners was not lawful. Thereby he found that the petitioners were not entitled to be granted ryotwari pattas. The 3rd respondent affirmed this order.
21. First of all, it needs to be seen as to whether the possession of the petitioners over the lands was lawful and whether the lease in favour of the petitioners is, in any way, hit by the provisions of the Land Transfer Regulations. In a way, these questions overlap with each other. The social status of the landholder also assumes significance in this context.
22. One of the grounds on which the 1st respondent treated the possession of the petitioners as not lawful was that the lease in their favour was for a period of 5 years and it was through a document not registered as required under Section 107 of he Transfer of Property Act. In this context, it needs to be seen that the term ‘lawful’ is not defined either under Mutta Regulations or in any other enactments. This expression has to be understood both in the context of permissibility and proscription of an act or omission by any law for the time being in force. One of the methods to verify whether an act or omission is lawful is to see if it is permitted by statute or other instrument having force of law. Where no such provision exists to deal with the situation, it is to be verified as to whether such acts or omissions are prohibited by law. No other mechanism appears to be discernible.
23. It is not in dispute that the petitioners were inducted into possession of the lands as lessees. It is true that every lease for a period exceeding one year in respect of an immovable property is required to be registered. It may also be true that an unregistered lease deed is not admissible in evidence to prove the lease. However, the fact that the lease deed was not registered becomes relevant mostly from the point of view of the lessor. The admissibility of an unregistered document for collateral purposes such as possession is beyond any pale of doubt. The continuance over the possession of the land beyond 5 years does not render their possession illegal or unlawful. They can be treated as tenants holding over or tenants by sufferance. Such type of possession is not only permissible, but is protected in law. Hence, it becomes and continues to be lawful. A Division Bench of this Court in M. Annapurnaiah v. M. Narasimha Rao, , held that the possession by a tenant by sufferance is juridical so much so that he is entitled to be granted an injunction even against a landlord from interfering with his possession. Reference in this context can be made to the judgment of the Supreme Court in Bhawanji Lakhamshi v. Himatlal J Amnadas Dani, . Therefore, the view taken by the 1st respondent in this regard cannot be accepted.
24. Another limb of Section 5 of Mutta Regulations is whether the possession or occupation of the land by a non-tribal was not void or illegal under the land Transfer Regulations. These regulations prohibited any transfer of land in Scheduled Areas in favour of non-tribals. The Sanad issued in favour of the Muttedar prohibited the sale, mortgage and gift. It did not prohibit lease. However, we have to proceed on the basis that lease is one of the categories prohibited under the Land Transfer Regulations. Such transfer came to be effected in favour of the petitioners way back in the year 1953 when the original lease was granted, and in 1954 when it was transferred in favour of the predecessor in title of the petitioners. The Land Transfer Regulations came into force in the year 1959. The question as to whether these Regulations would have the effect of annulling the transfers, which took place before the Regulations came into force, was considered by this Court in Venkata Ramanaiah v. Deputy Collector, 1976 (2) An.WR 383. Justice O. Chinnappa Reddy, as he then was, took the view that transfers which took place earlier to the Regulations are not affected. It was held as under:
“In order that a sale may become null and void under the provisions of Section 3(1) of the Regulation, the sale has to be subsequent to 1959. The present sale was long prior to 1959 and therefore the Land Transfer Regulations has no application.”
This view was upheld by A Full Bench of this Court in G. Narsa Reddy v. Collector Adilahad, 1981 (2) An.WR 358, and the Hon’ble Supreme Court in Dy. Collector v. S. Venkataramanaiah, .
25. Section 5(b) refers of Mutta Regulations refers to any other law for the time being in force. The 1917 Act becomes relevant, in this context. Section 4 of this Act prohibited transfer of immovable property by a member of hill tribe. In the judgment in Venkataramanaiah’s case, it was held that transfer made by a non-tribal is not hit in any way by Section 4 of 1917 Act. For this purpose, it needs to be seen as to whether the Muttedar was a tribal or a non-tribal.
26. This question squarely fell for consideration before the Government in the appeals preferred by the petitioners when they were sought to be evicted by the Agent to Government on the ground that the lease in their favour was illegal. Initially, the Government upheld the findings of the Agent that the Muttedar was a tribal. However, when the Muttedar approached the Government, it passed orders in G.O. Ms. No. 779 dated 18-8-1967, the Government discussed the matter both with reference to the applicability of the Land Transfer Regulations as well as the social status of the Muttedar. It was held as under:
“The Government have carefully examined the matter with the connected records. They observe from the ref received from the Collector and Agent to Government East Godavari District and Board of Revenue and from the detailed enquiry reports including the confidential enquiry that Sri Chekka Venkanna Dora Muttedar or Ducherti in Yellavaram Taluk, East Godavari District, is a Kapu caste and not a konda kapu”.
While remanding the matter for fresh adjudication, the Division Bench observed as under:
“The proper course in such a situation would be to direct the said issue should be determined afresh in these proceedings. In other words, whether the lessor (Muttedar) was a member of hill tribe, as defined in the 1917 Act and whether the lease granted by him in favour of the petitioners is void and illegal within the meaning of Section of the said Act, should be decided afresh now.”
27. Since this Court directed that the question whether the Muttedar was a member of hill tribe, an issue was framed by the 1st respondent in this regard. The petitioners adduced evidence. The date of birth certificate of Muttedar was filed through a person who worked as his clerk. This is how the 1st respondent appreciated the evidence in this regard.
“A birth extract has been produced in which the case is also mentioned. By and large, the birth extracts do not have any column for caste. So the evidence of Chintalapudi Nagabhushana Rao has to be read with scepticism. Insofar as the oral evidence of Sri Chikka Lingam Dora and the fact of Lingam Dora being the erstwhile Mutttadar is mentioned in the death extract. His evidence appears to be doubtful. Therefore his evidence is not considerable to decide the issue as to the Tribal status of the Muttedar.”
28. The 1st respondent described the claim of the Muttedar as Kapu, as a process of climbing up the caste ladder and branded it as “process of sanskritisation”. Thus he started the consideration of the issue with “scepticism” and ended with “cynicism”. He made no secret of his contempt towards an ancient culture. He has proved as to how unsafe it is to leave appellate power under an important enactment, in the hands of persons not properly equipped with basic principles of law and those who cannot distinguish between administration and adjudication. The officer did not even bother to refer to the material that constituted the basis for the orders of the Government in G.O. Ms. No. 779 dated 18-8-1967. The finding recorded by him cannot be sustained.
29. Even assuming that the Muttedar was a member of hill tribe, the lease in favour of the petitioners remains unaffected, if he was a landholder. The expression ‘hill tribe’ is defined under Section 2(1) of the 1917 Act as under:
” ‘Hill tribe’ means any body or class of persons resident in the Agency tracts (not being a landholder as defined in the Andhra Pradesh (Andhra Area) Estates Land Act, 1908 (Act 1 of 1908.) that may from time to time be notified as such for the purposes of the Act by the State Government.”
30. It is evident that for the purpose of this Act an individual, who is in fact a member of hill tribes, ceases to be so, if he is a landholder as defined under the Estates Act. Section 3(5) of the same defines ‘landholder’ as under:
” ‘Landholder’ : Landholder means a person owning an estate or part thereof and includes every person entitled to collect the rents of the whole or any portion of the estate by virtue of any transfer from the owner of his predecessor-in-title or of any order of a competent Court or of any provision of law.”
31. It is not in dispute that the Muttedar was conferred with the right to collect rents in respect of lands, under the Sanad and that the land constitutes an estate, as defined Section 3(2) of the Estates Act.
32. The incidence of these provisions of law was sought to be neutralised on the ground that the Estates Act was repealed through A.P.(Andhra Scheduled Areas) (Estates Land Repealing) Regulation, 1943 (for short ‘the 1943 Regulations’). The fact that the Estates Act was repealed in 1943 hardly makes any difference, so far as the 1917 Act concerned. The reason is that the adoption of definition of ‘landholder’ from the Estates Act was nothing more than an attempt to maintain brevity. Instead of repeating the relevant paragraphs dealing with the definition of the term ‘landholder’ it was felt appropriate to make a reference to the existing provision.
33. The impact of the repeal of an enactment would be felt in the operation or provisions of another enactment, if only both of them were operating in tandem. For instance, the invocation of the provisions of one enactment may need a step to be taken under the other enactment. In such a case, repeal of one of them would render the corresponding provisions in other otiose. This cannot be a case where certain terms or expressions of an enactment are chosen from another legislation, instead of a dictionary, thesaurus or glossary.
34. Crawford in his treatise “Interpretation of Statutes” has this to say:
“A statute may adopt all or only a part of another statute by express reference, or by re-enactment of by the former in verbatim or in substantially the same language. Where this is true, the adopted provisions become a part of the adopting statute. Similarly, a statute may adopt the provisions of another statute by what is known as descriptive reference. In this case, the adopted provisions become a part of the adopting statute but only those provisions which relate to the new statute’s subject.”
35. Hence, the repeal of Estates Act has no impact whatsoever, on the definition of ‘hill tribe’ under the 1917 Act. Thereby, the Muttedar cannot be treated as a member of hill tribe, being landholder. Consequently, the possession and occupation of the land by the petitioners is prohibited by the Land Transfer Regulations or by 1917 Act.
36. This Court, therefore, finds that the order of the 1st respondent is not sustainable. The appellate authority viz., the 2nd respondent had confirmed the findings without discussing the matter from the above perspective. Hence, the writ petition is allowed and the orders dated 11-11-1994 passed by the 1st respondent and the one dated 10-12-1987 passed by the 2nd respondent are set aside. Consequently it is held that the petitioners are entitled to be granted the ryotwari pattas under Section 5 of Mutta Regulations nO costs.