{"id":41496,"date":"1993-02-17T00:00:00","date_gmt":"1993-02-16T18:30:00","guid":{"rendered":"https:\/\/www.legalindia.com\/judgments\/vemana-somalamma-and-others-vs-deputy-collector-tribal-on-17-february-1993"},"modified":"2018-12-22T17:00:26","modified_gmt":"2018-12-22T11:30:26","slug":"vemana-somalamma-and-others-vs-deputy-collector-tribal-on-17-february-1993","status":"publish","type":"post","link":"https:\/\/www.legalindia.com\/judgments\/vemana-somalamma-and-others-vs-deputy-collector-tribal-on-17-february-1993","title":{"rendered":"Vemana Somalamma And Others vs Deputy Collector, Tribal … on 17 February, 1993"},"content":{"rendered":"
Andhra High Court<\/div>\n
Vemana Somalamma And Others vs Deputy Collector, Tribal … on 17 February, 1993<\/div>\n
Equivalent citations: AIR 1993 AP 312, 1993 (1) ALT 409<\/div>\n
Bench: A L Rao, P N Sarma, P V Reddi<\/div>\n<\/p>\n
<\/pre>\n
ORDER<\/p>\n
P.L.N. Sarma<\/p>\n
1.  When these matters came up before a Division Bench of this Court consisting of Sardar Ali Khan and M. N. Rao, J,(. a Judgment in W.P. No. 13673 of 1984 dt. 6-3-1990 was brought to the notice of the learned Judges, wherein in similar cir-cumstances, 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 1 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.\n<\/p>\n
2. The point referred to this Full Bench for decision is as under :\n<\/p>\n
 “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<\/p>\n
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 ?”\n<\/p>\n
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 salt 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.\n<\/p>\n
4. In Writ Appeal No. 1664 of 1988, a non-tribal executed a settlement dated 20-4-1970 settling an extent of Ac. 2-QO situate in scheduled an-a in favour of his own daughter. It is stated that both the settlor and settlee  died. Now the son of the settlor 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.\n<\/p>\n
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.\n<\/p>\n
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.\n<\/p>\n
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<\/p>\n
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.\n<\/p>\n
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.\n<\/p>\n
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 have arisen as to which Acts or Regulations were in force in some of the parts of British India, the Scheduled Districts Act XIV of 1874 came to be passed. The said Act defined the term “Scheduled Districts” as meaning the territories mentioned in the first schedule annexed thereto and shall also include any other territory to which the Secretary of State for India by resolution in Council, may declare the provisions to be applicable. By a subsequent notification, the Act was extended to the taluk of Badra-chalam in East Godavari District. Exercising the power under Section 6 of the Scheduled Districts Act, 1874, local Government issued rules for the administration of the Agency Tracts and for regulation of the procedure of the Officers so appointed to administer them. Subsequently, the Agency Tracts Interest and Land Transfer Act 1917 (Act 1 of 1917) came to be passed with the object of limiting the rate of interest and to check the transfer of lands in the Agency Tracts in Ganjam, Vizagapatnam and Godavari Districts. Under Section 2 of the said Act, Agency Tracts are defined as meaning Schedule Districts as defined in the Acts XIV and XV of 1874. Therefore, Scheduled Districts within the meaning of Scheduled Districts Act XIV of 1874 were treated as Agency Tracts by virtue of Section 2(a) of Act 1 of 1917. The object of Act I of 1917 is to limit the rate of interest and also to check the transfer of lands in the Agency Tracts. Section 4 of the said Act is as under :\n<\/p>\n
“4. Transfer of immovable property by a member of a hill tribe.\n<\/p>\n
(1) Notwithstanding any rule of law or<\/p>\n
enactment to the contrary, any transfer of immovable property situated within the Agency Tracts by a member of a hill tribe shall be absolutely null and void unless made in favour of another member of a hill tribe, or with the previous consent in writing of the Agent or of any other prescribed officer.\n<\/p>\n
(2) Where a transfer of property is made in contravention of sub-section (1), the Agent or any other prescribed Officer may on application by any one interested, decree ejectment against any person in possession of the property claiming under the transfer and may restore it to the transferor or his heirs.\n<\/p>\n
(3) Subject to such conditions as may be prescribed an appeal against a decree or order under sub-section (2) if made by the Agent shall lie to the Government in Council and if made by any other officer shall lie to the Assistant Agent or to the Agent as may be prescribed.”\n<\/p>\n
While so, the Government of India Act, 1935 came into force. By virtue of the Government of India (Excluded and partially Excluded Areas) Order, 1936 issued under Section 91 of . the Act, “Scheduled Districts” as defined in Schedule Districts Act (XIV of 1974) were treated as excluded and partially excluded areas. The administration of the areas so declared as excluded areas and partially excluded areas vested in the Governor under Section 92 of the Government of India Act, 1935. It is similar in terms to Article 244 of the Constitution of India. Section 92 of the Government of India Act, 1935 is as follows :\n<\/p>\n
“92. (1) The executive authority of a Province extends to excluded and partially excluded areas therein, but, notwithstanding anything in this Act, no Act of the Federal Legislature or of the Provincial Legislature shall apply to an excluded area or a partially excluded area, unless the Governor by public notification so directs, and the Governor in giving such a direction with respect to any Act may direct that the Act shall in its application to the area, or to any specified part thereof, have effect subject to such exceptions or modifications as he thinks fit.\n<\/p>\n
(2) The Governor may make regulations<\/p>\n
for the peace and good government of any area in a Province which is for the time being an excluded area, or a partially excluded area, and any regulations so made may repeal or amend any Act of the Federal Legislature, or of the Provincial Legislature or any existing Indian Law, which is for the time being applicable to the area in question. Regulations made under this sub-section shall be submitted forthwith to the Government General and until assented to by him in his discretion shall have no effect, and the provisions of this Part of this Act with respect to the power of His Majesty to disallow Acts shall apply in Nation to any such regulations assented to by the Governor General as they apply in relation to Acts of a Provincial Legislature assented to by him.\n<\/p>\n
(3)….. Subsequently by, The Government of India (Adoption of Indian Laws) Order, 1937, Schedule Districts Act, 1874 was repealed. The excluded and partially excluded areas came directly under the gov-erance of the Governor under Section 92 of the Government of India Act, 1935. These excluded and partially excluded areas became scheduled areas by virtue of the Scheduled Areas (Part ‘A’ States) Order, 1950 and Scheduled Areas (Part ‘B’ States) Orders, 1950 issued by the President of India.\n<\/p>\n
10. Simultaneously, with the advent of the Constitution, in exercise of power conferred by sub-para 6 of the Vth Schedule to the Constitution of India, the President issued Scheduled Areas (Part ‘A’ States) Order, 1950 declaring specified areas therein to be scheduled areas within the States specified in Part ‘A’ of first schedule to the Constitution of India. Among others, East Godavari, West Godavari and Visakhapatnam agencies were declared to be scheduled areas in the then State of Madras. The President also made “Scheduled Areas (Part ‘B’ States) Order, 1950” on 7-12-1950, purporting to exercise the power as indicated above, declaring certain specified areas as scheduled areas in Part’B’ States including the State of Hyderabad. The relevant Article in the Constitution of India for the purpose of present _ discussion is Article 244 which is as follows :\n<\/p>\n
“Art. 244. Administration on Scheduled Areas and Tribal Areas —\n<\/p>\n
(1) The provisions of the Fifth schedule shall apply to the administration and control of the Scheduled Areas and Scheduled Tribes in any State other than (the States of Assam, Meghalaya, Tripura and Mizoram).\n<\/p>\n
(2) The provisions of the sixth schedule shall apply to the administration of the tribal areas in (the States of Assam, Meghalaya, Tripura and Mizoram)”.\n<\/p>\n
11. The above Article provides that for administration and control of the scheduled areas in any State, other, than the States of Assam, Meghalaya and Tripura, provisions of Fifth Schedule shall apply. Clause (5) of Fifth schedule is to the effect that notwithstanding anything in the Constitution, the Governor may by public notification direct that any particular Act of Parliament or of the Legislature of the State shall not apply to scheduled area or any part thereof in the State or shall apply to scheduled area or any part thereof in the State subject to such exceptions and modifications as he may specify in the notification etc. Sub-clause (2) of Clause (5) is relevant in this context and it is as under :\n<\/p>\n
(2) The Governor may make regulations for the peace and good government of any area in a State which is for the time being a Scheduled Area. In particular and without prejudice to the generality of the foregoing power, such regulations may —\n<\/p>\n
(a) prohibit or restrict the transfer of land by or among members of the Scheduled Tribes in such area;\n<\/p>\n
(b) regulate the allotment of land to members of the Scheduled Tribes in such area;\n<\/p>\n
(c) regulate the carrying on of business as money-lender by persons who lend money to members of the Scheduled Tribes in such area.”\n<\/p>\n
All regulations made under this paragraph shall be submitted to the President forthwith and until assented to by him, shall have no effect. If there is Tribes Advisory Council for<\/p>\n
the State, no regulation shall be made under this paragraph unless the Governor making the regulation has consulted such council. Therefore, the Governor may make a regulation for the peace and good Government of a scheduled area in a State. Such regulation can be made by the Governor after consulting the Tribes Advisory Council of the State if one is existing. Such regulation will have effect when President assented to the same.\n<\/p>\n
12. Having regard to the above, it is clear
\nthat the Governor can issue regulations in
\naccordance with sub-para (2) of para (5), in
\nparlicular, without prejudice to the generality
\nof the powers, prohibiting or restricting
\ntransfer of land and by or among the members
\nof the scheduled tribes in such area; regulate
\nthe allotment of land to members of the
\nScheduled Tribes in such area. Exercising the
\nabove power conferred by para (5) of Fifth
\nSchedule, the Governor issued the A. P.\n<\/p>\n
Scheduled Area Land Transfer Regulation,
\n1959 (“Regulation I of 1959) which came into
\nforce on 4-3-1959. This was made to regulate
\nthe transfer of lands in the scheduled areas of
\nEast Godavari, West Godavari, Visakha-\n<\/p>\n
patnam and Srikakulam. The said regulation
\nwas amended by Regulation II of 1963 by
\nincluding, within the meaning of Agency
\nTracts, the areas in the Districts of Adilabad,
\nWarangal, Khammam and Mahaboobnagar.\n<\/p>\n
With the result, Andhra Pradesh Scheduled
\nAreas Land Transfer Regulation, 1959 was
\nmade applicable to the areas in the Districts of
\nAdilabad, Warangal, Khammam and
\nMahaboobnagar also. Section 3 of Regu
\nlation I of 1959 deals with the transfer of land
\nin the scheduled areas. It is as follows:\n<\/p>\n
“Section 3.\n<\/p>\n
(1) 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 member of a Scheduled Tribe, shall be absolutely null and void unless made —\n<\/p>\n
(1) in favour of any other member of a Scheduled Tribe or a registered society as defined in clause (f) of Section 2 of the Madras Co-operative Societies Act, 1932<\/p>\n
(Madras Act VI of 1932), composed solely of members of the Scheduled Tribes, or<\/p>\n
(ii) with the 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.\n<\/p>\n
(2) (a) Where a transfer of immovable property is made in contravention of subsection (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 moto 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.\n<\/p>\n
(b) If the transferor 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 registered society as defined in clause (f) of Section 2 of the Madras Co-operative Societies Act, 1932 (Madras Act VI of 1932), composed solely of members of the Scheduled Tribes, or otherwise dispose of it, as if it was a property at the disposal of the State Government.”\n<\/p>\n
The said provisions make the transfer of immovable property from a tribal to a non-tribal null and void. Sub-section (2) of Section (3) empowers the Agent, the Agency Divisional Officer or any other prescribed Officer, on an application by any interested person, or on information given in writing by a public servant or suo motu decree ejectment of the person in possession of the property claiming under the transfer, after prescribed notice etc., and may restore the property to the transferor or his heirs. If the transferor or his heirs are not willing to take back the property or their whereabouts are not known, the Agent, Agency Divisional Officer or the Prescribed Officer, as the case may be, may order assignment or sale of the property to any other member of a schedule tribe.\n<\/p>\n
Therefore, by virtue of the provisions of Regulation I of 1959 any transfer made by a tribal to a non-tribal is made null and void and the authorities were empowered to restore possession of the said property, after ejecting the person in possession under the void transfer to the transferor or his heirs and if their whereabouts are not known, the authorities are empowered to order assignment or sale of the property to any member of a schedule tribe.\n<\/p>\n
13. These provisions were amended by Regulation I of 1970. The provisions as amended are as follows:\n<\/p>\n
“3. Transfer of immovable property by a member of a Schedule Tribe–\n<\/p>\n
(1)(a) 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 a Scheduled Tribe, shall be absolutely null and void, unless such transfer is made in favour of 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.\n<\/p>\n
(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 such person or his predecessor in possession through a transfer made to him by a member of a Scheduled Tribe.\n<\/p>\n
(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 ovor such land on payment<\/p>\n
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;\n<\/p>\n
2 (a) Where a transfer of immovable property is made in contravention of subsection (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.\n<\/p>\n
(b) If the transferor 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 properly 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 the State Government.”\n<\/p>\n
By virtue of the amended provisions, the transfer of immovable property sifuate in Agency Tracts by a person whether or not such a person is a member of Schedule Tribe, is made absolutely null and void unless such a transfer is made in favour of a member of a Schedule Tribe or in favour of Co-operative Society which is composed solely of members of Schedule Tribes. Therefore, under the amended provisions, any transfer by a person is prohibited unless it is in favour of a tribal or<\/p>\n
a society solely composed of members of Schedule Tribe. Clause (b) of Section 3(1), which was substituted by Regulation I of 1970 raised a presumption that the property situate ‘ in Agency Tracts in possession of a non-tribal shall be presumed to have been acquired by such a person or his predecessor-in-posses-sion through a transfer made to him by a member of Schedule Tribe. In other words, if any non-tribal is in possession of the property situate in Agency Tracts, it is presumed that he or his predecessors acquired the same through a transfer made to him by a member of Schedule Tribe which is prohibited. Of course, this is a rebuttable presumption. However, sub-section 2(a) of Section 3 of the Regulation was not touched by the amendments made by the Regulation I of 1970, which is to the effect that the Agent, the Agency Divisional Officer or any ther prescribed Officer may on an application by any one interested, or on information given in writing by a public servant or suo motu decree ejectment against a person in possession under a void transfer and may restore it to the transferor or his heirs. (Underlining is ours)<\/p>\n
14. We have traced the development of the laws in the foregoing paragraphs as are made applicable to the scheduled areas. The laws which are referred to above as are made applicable to the scheduled areas indicate an anxiety to safe-guard the interest of the tribals in the scheduled areas and to see that the land in the shceduled areas should be in possession of tribals only. In fact, even from the year 1839, the authorities desired that the agency areas require special attention and special safe-guards to protect the tribals from the exploitation of the people from the plains and therefore, separate orders or laws were issued in that regard from time to time. This is because of the fact that the non-tribals who were economically more advanced, intelligent and also powerful having infiltrated into Agency Tracts were able to exploit the tribals who are illiterate, ignorant and poor. In fact the history of the law relating to the Agency Tracts from the Agency Tracts Interest and Land Transfer Act, 1917 till the date of Regulation I of 1970 was traced by their Lordships of the Supreme Court in P. Rami<\/p>\n
Reddy v. State of A.P., . The learned Judges also referred to the reason behind the laws made applicable to the scheduled areas. The relevant observations regarding the history of the legislation are as follows:\n<\/p>\n
“A short history of the legislation may be briefly traced to the extent considered necessary. In the Andhra Area there existed before the inauguration of the Constitution, certain laws including the Agency Tracts Interest and Land Transfer Act, 1917 which inter alia prohibited tranfer of land in the Agency Tract areas except in favour of members of hill tribes conferring upon the persons belonging to the Scheduled Tribes certain benefits. After the Constitution of India came into force, Art. 244 of the Constitution and the Fifth Schedule were made applicable to the administration of the scheduled areas. Para 6 of the Fifth Schedule empowered the President to notify the scheduled areas in consultation with the Governor of the State. The scheduled areas in Andhra region of this state were notified by the President through the Scheduled Area (Para ‘A’ States) Order, 1950. Para 5(2) of the Fifth scheduled powered the Governor of the State to make Regulations for the peace and good Government of the Scheduled Areas. Accordingly, the Governor made the A. P. Scheduled Areas Land Transfer Regulation, 1959 (Regulation I of 1959), This Regulation came into force with effect from 4-3-1959. Section 3(1) of this Regulation prohibited transfer of immovable properties situated in the scheduled areas from a member of scheduled tribe to non-tribals without 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. Similar laws designed to protect the tribals from exploitation were in operation in the Telen-gana area of the then State of Hyderabad. In exercise of powers under paragraph 5(2)(a) of Fifth Schedule of the Constitution the Governor enacted the Andhra Pradesh Scheduled Area Laws (Extension and Amendment) Regulations, 1963 whereby certain rules and legulations which already existed and were in operation in the Andhra<\/p>\n
Area of the State were extended to all parts of the State. The result was that the Andhra Pradesh Scheduled Areas Land Transfer Regulations came to be extended to the Telangana area of the State as well.\n<\/p>\n
Under the 1959 Regulation, any transfer of immovable property situated in the Agency Tracts, by a member of a Scheduled Tribe was declared null and void unless, made in favour of any other member of a Scheduled Tribe or a registered co-operative society composed solely of members of the Scheduled Tribes or with the previous consent in writing of the Agent. The said Regulation further empowered the Agent to decree an ejectment against any person in possession of any immovable property, the transfer of which was made in contravention of its provisions and to restore it back to the transferor or his heirs. If the transferor or his heirs were not willing to take the property or where their whereabouts are not known, the Agent was further empowered to order assignment or sale of the property to any other member of a Scheduled Tribe or a registered Co-operative Soceity composed solely of members of the Scheduled Tribes or otherwise dispose of it, as if it was a property at the disposal of the State Government.\n<\/p>\n
However, as difficulties were exprienced by the Government in implementing the ejectment procedures under the said Regulation, inasmuch as it was not always easy for the concerned authority to ascertain the origin of the right under which the non-tribal is claiming possession and whether the land now under the possession of a non-tribal was previously acquired from a tribal or not, the said 1959 Regulation was amended by the Andhra Pradesh Scheduled Areas Land Transfer (Amendment) Regulation, 1970 with view to remedy the said mischief. The amending Regulation of 1970 in order to facilitate effective enforcement of the said 1959 Regulation introduced inter alia, the following changes, namely:\n<\/p>\n
(i) A rule of presumption was introduced to the effect that unless the contrary is proved, where a non-tribal is in possession of land in the scheduled areas, he or his predecessor-in-interest, shall be deemed to have acquired it through transfer from a tribal;\n<\/p>\n
(ii) Transfers of land in Scheduled Areas in favour of non-tribals shall be wholly prohibited in future;\n<\/p>\n
(iii) Non-tribals holding lands in the Scheduled Areas shall be prohibited from transferring their lands in favour of persons other than tribals. Only partitions and devolution by succession of lands held by them shall be permitted; and<\/p>\n
(iv) Where a tribal or non-tribal is unable to sell his land to a tribal on reasonable terms, it shall be open to him to surrender the land to Government who shall thereupon be obliged to acquire it on payment of appropriate compensation.\n<\/p>\n
Clause (a) of substituted Section 3(1) rendered all the transfers made except those in favour of a tribal, to be null and void. Clause (b) of sub-section (1) of Section 3 raises a presumption that any immovable property in possession with a non-tribal would be presumed to have been acquired by such person through a tribal. Clause (c) of sub-section (I) of Section 3 provides for payment of compensation to the non-tribal at the rate specified in Section 10 of Andhra Pradesh Ceiling on Agricultural Holdings Act, 1961. The Andhra Pradesh Regulation No. 1 of 1970 inserts subsection (4) in Section 3 whereby ‘transfer’ has been defined to include a sale in execution of a decree including a benami transaction. The only species of transfer which has been excluded from the operation of the regulation is partition or devolution by succession. Provision has been made for the ejectment of persons who came into possession of such lands as a result of such transfers and for the restoration of land to the original transferor or his heirs.”\n<\/p>\n
It is also relevant to extract some of the observations of the learned Judges regarding the intention and object behind the legislation made on a consideration of the material placed before them, which are as follows:\n<\/p>\n
“Within the scheduled areas of both Telangana and Andhra regions the land was<\/p>\n
entirely in occupation of different tribal communities. The area was an inaccessible tract of land covered by forests and hills. These tribal communities were in occupation of lands and lived by shifting cultivation and gathering whatever produce that was available.\n<\/p>\n
The non-tribals who arrived in these areas late in the 19th Century in certain areas and the early 20th Century in certain other areas found the tribals who were in occupation of these lands an easy prey for the schemes of exploitation. The non-tribals were lending money to the tribals communities and taking the land belonging to them as security though nothing was taken in writing from a tribal. The rates of interest charged ranged between 25 to 50 per cent and in certain crises even 100 per cent. The tribals who were traditionally honest and who were simple in their thought and habits fell an easy prey to the schemes of the non-tribals.\n<\/p>\n
It was observed by several committees that the non-tribals were able to find ways and means to circumvent the provisions of Regulation 1 of 1959 by entering into benami transactions and other clandestine transactions with unsophisticated tribals. It is absolutely necessary to create conditions for peace and maintain peace and prevent the new non-tribals from settling down in the scheduled area. If the alienations are permitted to the non-tribals there is a danger of large-scale exploitation by the new non-lribals again with the result peace will be disturbed in that area.\n<\/p>\n
Unless new entrants into the scheduled areas are prevented from settling down in the scheduled areas by purchasing properties either from tribals or non-tribals, it is not possible to prevent the exploitation of the unsophisticated tribals. It is only with a view to enforce the valid provisions of Regulation I of 1959, the Regulation viz., Regulation I of 1970 was made. It is in the interests of the tribals and for their protection Regulation I of 1970 was passed, because without restricting or prohibiting the alienation of lands in the possession of non-tribals to non-tribals the objectives cannot be achieved.\n<\/p>\n
x x x x x x x x x x x x x x x x x x x x x x x x<\/p>\n
True, transfer by ‘non-tribals’ to ‘non-tribals’ would not diminish the pool. It would maintain status quo. But is it sufficient or fair enough to freeze the exploitative deprivation of the ‘tribals’ and thereby legalize and perpetuate the past-wronginstead of effecting the same. As a matter of fact it would be unjust, unfair and highly unreasonable merely to freeze the situation instead of reversing the injustice and restoring the status quo ante.”\n<\/p>\n
It is true that the learned Judges of the Supreme Court were dealing with constitutional validity of the provisions of Regulation 1 of 1959 as amended by Regulation I of 1970 and not directly dealing with the question that we are required to answer in these proceedings. However, the intendment and content of the legislation as laid down by their Lordships of the Supreme Court must be kept in view and is very relevant to appreciate the point to be decided in these proceedings. It is clear from the above that the intention of the legislation is to see that the transfer can only be in favour of a tribal or a society which is composed of tribals only. Even though under Regulation 1 of 1959 unamended, the transfer by a non-tribal to a non-tribal was valid, by way of amendment made by Regulation I of 1970, the said transfer was also made null and void. Therefore, every transfer is made null and void except the one in favour of a tribal. By the substituted provisions of Section 3(1)(b), a presumption is also raised that possession of a non-tribal is deemed to be by virtue of a transfer made by a tribal only which is absolutely null and void and the consequences thereof will follow. The provisions of the Act and the development of law in relation to the scheduled areas clearly indicate one purpose viz., to see that the entire land in Agency Tracts as far as possible be given to tribals only. This is because of the fact, as stated by the learned Judges of the Supreme Court in the above mentioned Judgment, that within the scheduled areas, the land was entirely in occupation of tribals communities originally and that the non-tribals by exploiting their ignorance and illiteracy came into<\/p>\n
possession of the properties, in many cases, by means which are not fair.\n<\/p>\n
15. Keeping this object of the legislation in view, now we have to consider the point that is referred to us viz., that when the property situated in Agency Tracts is transferred by a non-tribal in favour of another non-tribal, which is made null and void by the provisions of Section 3(1) of Regulation 1959 as amended, whether the authorities are bound to restore back the said property to the transferor who happens to be a non-tribal or his heirs as per the terms of Clause (a) of sub-section (2) of Section 3.\n<\/p>\n
16. Sri Lakshmana Sarma, learned counsel for the appellants contended on the basis of Clause (a) of sub-section (2) of Sections that the authorities, in such a situation, are ‘bound to restore the same to the transferor or his heirs. Learned counsel relied upon the language of Section 2(a) in support of his contention. He also contended that when once the transfer is held to be null and void by virtue of the provisions of Section 3(l)(a), it is as though that the transfer is non est in the eye of law and therefore, the transfer of land to a non-tribal by a non-tribal cannot be taken note of and the property either must remain with the transferee or must be restored back to the transferor under Clause (a) of subsection (2) of Section 3. It was also contended that the authorities cannot treat the person in possession, in such a situation, to be a person in possession of the property under a transfer.\n<\/p>\n
It is necessary to scrutinise carefully the relevant provisions of Regulation I of 1959 as amended by Regulation I of 1970 to appreciate the contentions. Section 3(!)(a) clearly enacts that the transfer by a non-tribal to a non-tribal is also absolutely null and void. Before the substitution of Section 3 by Regulation I of 1970, only the transfer by a tribal in favour of a non-tribal was prohibited. Section 3(l)(a) as substituted now clearly makes any transfer made by any person absolutely null and void unless it is, made in favour of a tribal. The constitutional validity of these provisions was upheld by the Supreme Court in the judgment referred to<\/p>\n
supra (1). The learned Judges of the Supreme Court clearly held that transfer by a non-tribal in favour of a non-tribal is absolutely null and void. Therefore, those questions are no longer res Integra. The only question now remains is whether in such a situation Clause (a) of sub-section (2) of Section 3 compels the authorities to restore the land to the transferor or his heirs. It is no doubt true that while substituting Section 3(1) in Regulation I of 1959 by Regulation I of 1970, correspondingly clause (a) of sub-section (2) of Section 3 was not amended. The object and intention of the legislation, as referred to above, is to see that the property in Agency Tracts should go to the hands of the tribals only. If that is so, restoring the property which was the subject matter of a transfer to the non-tribal transferor wilt be putting a premium on an illegal act. It also goes against the concept of remedying the mischief, viz., to see that the lands which were originally in the hands of tribals must go to the tribals only. This view is also fortified by the language of Clause (b) of sub-section (2) of Section 3 of Regulation I of 1959 as amended. Insofar as it is relevant for the purpose of the present discussion, it reads as follows:\n<\/p>\n
“(b) If the transferor or his heirs ‘are not willing to take back the property ….. 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 schedule tribe …..\n<\/p>\n
(Underlining is ours)<\/p>\n
A reading of the above clause indicates that the word “transferor” is qualified by the words “other inembr of a schedule tribe”. That means the transferor also must be aj member of a schedule tribe. Otherwise, the clause would have read as “to a schedule tribe” instead of” to any other member of a schedule tribe”.\n<\/p>\n
17. Having regard to the language Clause (b) of sub-section (2) of Section 3 and also having regard to the object and intention of the legislation, we are clearly of the opinion that restoration can only be in the case of transfer made by a tribal. In other words, the<\/p>\n
intention of Clause (a) of sub-section (2) of Section 3 is that restoration can only be to a tribal transferor.\n<\/p>\n
18. Having regard to the object, the content of the legislation and in the context, the word “transferor” occurring in clause (a) of sub-section (2) of Section 3 should be construed as ‘tribal transferor’ and if so construed, neither the transferee, who is the appellant in Writ Appeal No. 78 of 1991, nor tranferors in Writ Petition Nos. 13377 and 13470 of 1986 and heir or transferee as well as transferor in Writ Appeal No. 1664 of 1988 will be entitled to any relief in these writ proceedings. Admittedly, the transfers were effected on 17-10-1973, 20-4-1970, 14-4-1975 and 3-7-1992 respectively in Writ Appeal No. 78 of 1991 and 1664 of 1988, Writ Petition Nos. 13377 and 13470 of 1986 which are all subsequent to the coming into force of Regulation I of 1970 i.e., 3-2-1970. This conclusion of ours is also supported by the presumption raised by Clause (b) of subsection (1) of Section 3. The object and intention of the enactment is very clear from this clause. The said provision 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) of sub-section (1) of Section 3 to the effect that such possession was obtained only on a transfer made by a schedule tribe which is hit by Section 3(1)(a) and the possession of the said land can be restored back to a tribal under Clause (a) of sub-section (2) of Section 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, asfar as possible, must 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.\n<\/p>\n
19. Accordingly, we hold that when a non-tribal transfers the land to a non-tribal in contravention of the provisions of S. 3(1)(a), he will not be entitled to ask the authorities for restoration of the property in his favour invoking the provisions of Clause (a) of subsection (2) of Section 3. The said clause will not apply to a non-tribal transferor.\n<\/p>\n
20. Learned Government Pleader referred to a decision of the Supreme Court in Sri Manchegowda v. State of Karnataka, . In the said case, the learned Judges were considering the constitutional validity of certain provisions of Karnataka Scheduled Castes and Scheduled Tribes (Prohibition of Transfer of Certain Lands) Act (2 of 1979). The learned Judges of the Supreme Court upheld the constitutional validity of the same. The question that fell for consideration by their Lordships in the said case is whether the provisions of Act 2 of 1879 invalidating the transfer by Scheduled Castes and Scheduled Tribes of the land originally granted by the State to them are constitutionally valid or not. The learned Judges, on a consideration of the relevant provisions and case law, held that Sections 4 and 5 of the Act 2 of 1879 are constitutionally valid.\n<\/p>\n
21. We fail to appreciate as to how the above judgment is relevant for resolving the present controversy.\n<\/p>\n
22. Sri G. Manohar, learned Counsel appearing for fourth respondent, viz., Integrated Scheduled Development Agency (im-pleaded as 4th respondent by virtue of orders in W.P.M.P. No. 2364 of 1988 dated 2-3-1989) relied upon the decisions in Bengal Immunity Co. v. State of Bihar,<\/a> ; Tirath Singh v. Bachittar Singh,<\/a> ; and Workmen A.E.I.B. Corporation v. Management, A.E.I.B. Corporation,<\/a>  for the proposition that for the sure and true interpretation of all Statutes, four things are to be discerned including the question as to what was the mischief and defect sought to be remedied by the Legislature and the cure it has prescribed.\n<\/p>\n
23.    Learned counsel on the basis of the<\/p>\n
above judgments of the Supreme Court stated that the amendment by Regulation I of 1970 was brought about to Regulation I of 1959 to remedy the mischief, viz., to see that all the lands in the scheduled areas, which originally belonged to scheduled trjbes, go back to the scheduled tribes only. We have already dealt with the scheme and content of the legislation in the foregoing paragraphs and it is not necessary to deal with the same again.\n<\/p>\n
24. Learned counsel also contended on the basis of the judgment referred to supra (4) that when the literal and grammatical interpretation of Clause (a) of sub-section (2) of Section 3 leads to a manifest contradiction of the apparent purpose of the enactment, or to some inconvenience or absurdity, hardship or injustice, presumably not intended, a construction may be put upon it which modifies the meaning of the words, and even the structure of the sentence. We have already construed the true meaning of the word “transferor” occurring in Clause (a) of subsection (2) of Sections, taking into consideration the object of the enactment and also the mischief sought to be remedied by the enactment.\n<\/p>\n
25. The only thing that remains to be considered are the two judgments of Division Benches of this Court consisting of B. P. Jeevanreddy and Syed Shah Mohammad Quadri JJ, in Writ Petition Nos. 9692 of 1986 dated 28-11-1989 and 13673 of 1984 dated 6-3-1990. The learned Judges, on the basis of the language of the provisions of Clause (a) of sub-section (2) of Section 3, held that even in the case of a transfer of land by a non-tribal to a non-tribal, the provisions will apply and the non-tribal transferor will be entitled to ask for restoration of possession of the land transferred by him. The successive legislations as are made applicable to the scheduled areas and their intendment and content as well as the reasons behind the legislation as explained by the Supreme Court were not adverted to by the learned Judge. We are unable to accept the literal construction placed by the learned Judges. Having regard to the decision arrived at by us, we are of the opinion that the two judgments referred to above are not correct in law and they are accordingly overruled.\n<\/p>\n
26. Having regard to the above, we hold that in the case of a 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 sub-section (1) of Section 3, the non-tribal transferor is not entitled to have the land restored to him and that Clause (a) of subsection (2) of Section 3 of Regulation I of 1959, as amended by Regulation I of 1970, has no application to such a transfer. Even the transferee-non-tribal is also not entitled to retain the property. Accordingly, our answer to the reference is in the negative.\n<\/p>\n
27. Having regard to the above, Writ Appeals as well as Writ Petitions are dismissed, but in the circumstances without costs.\n<\/p>\n
28. Order accordingly.<\/p>\n","protected":false},"excerpt":{"rendered":"
Andhra High Court Vemana Somalamma And Others vs Deputy Collector, Tribal … on 17 February, 1993 Equivalent citations: AIR 1993 AP 312, 1993 (1) ALT 409 Bench: A L Rao, P N Sarma, P V Reddi ORDER P.L.N. Sarma 1. When these matters came up before a Division Bench of this Court consisting of Sardar […]<\/p>\n","protected":false},"author":1,"featured_media":0,"comment_status":"open","ping_status":"open","sticky":false,"template":"","format":"standard","meta":{"_lmt_disableupdate":"","_lmt_disable":"","_jetpack_memberships_contains_paid_content":false,"footnotes":""},"categories":[10,8],"tags":[],"class_list":["post-41496","post","type-post","status-publish","format-standard","hentry","category-andhra-high-court","category-high-court"],"yoast_head":"\nVemana Somalamma And Others vs Deputy Collector, Tribal ... on 17 February, 1993 - Free Judgements of Supreme Court & High Court | Legal India<\/title>\n<meta name=\"robots\" content=\"index, follow, max-snippet:-1, max-image-preview:large, max-video-preview:-1\" \/>\n<link rel=\"canonical\" href=\"https:\/\/www.legalindia.com\/judgments\/vemana-somalamma-and-others-vs-deputy-collector-tribal-on-17-february-1993\" \/>\n<meta property=\"og:locale\" content=\"en_US\" \/>\n<meta property=\"og:type\" content=\"article\" \/>\n<meta property=\"og:title\" content=\"Vemana Somalamma And Others vs Deputy Collector, Tribal ... on 17 February, 1993 - 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