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Section 3(1) in The Central Agricultural University Act, 1992
The Central Agricultural University Act, 1992
Section 3(2) in The Central Agricultural University Act, 1992
Section 3 in The Central Agricultural University Act, 1992
The Transfer of Property Act, 1882

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Andhra High Court
K. Mahalaxmi And Another vs Government Of Andhra Pradesh And ... on 28 August, 2000
Equivalent citations: 2000 (5) ALD 588, 2000 (5) ALT 517
Bench: G Bikshapathy



JUDGMENT

 

1. The question that arises for consideration in this writ petition is "whether the Special Deputy Collector, Tribal Welfare (Competent Authority) under Section 3 of the A.P. Scheduled Areas Land Transfer Regulation, 1959 is having jurisdiction to decide the validity or otherwise of the sale transactions effected prior to the coming into force the Regulations in Telangana districts of Andhra Pradesh."

2. The facts leading to the present writ petition are that one Pendnim Bhikku was a tribal holding patta land of an extent of 9 acres in S No.90 of Muthyampet village, Luxettipet taluk, Adilabad District. The lands fall in notified schedule area. He had sold the said land under registered sale deeds. An extent of Ac.4-20 gts., were sold to Chitukwi Venkaiah and equal extent to Padala Soya Gaud under registered saledeed bearing No.30 of 1338 Fasli dated 2nd Ardibesht, 1338 Fasli. The said Chilukuri Venkaiah sold his lands to Sunga Bheemaiah under un-registered sale deed and got mutated his name in revenue records. Simga Bheemaiah, in turn sold the lands to Muthe Hanumaiah, Similarly, after the death of Padala Soya Goud, his son sold these lands along with other lands to Komareddy Rajaiah and Bodakunta Ramlu under Registered Sale Deed No.871 of 1344 F, dated 4th Amesdad. While so, Chellasani Purnachandra Rao purchased Ac.4-20 gts., from Mutha Hanumaiah under registered sale deed No.712/64, dated 7-10-1964 and similarly he purchased Ac.2-10 gts. from Bodakunta Pocham under registered document No.104 of 1964, dated 10-2-1964. The said total extent was sold to Gouranima under registered sale deed bearing No.896 of 1965, dated 14-6-1965. After death of Gouranima, her husband Veeramma gifted Ac.4-20 gts, to Smt. Rajeshwari under registered gift deed No. 1402 of 1966, dated 14-7-1977 in S. No.90/A and the other extent of Ac.2-10 gts. in S. No.90/B in favour of Malialakshmi under registered gift deed No. 1211 of 1967, dated : 20-7-1967.

3, In 1338 Fasli there was no Special Law for the administration of the tribal areas in Adilabad District. Ever since the purchase by Chihikuri Venkaiah and Padala Soya Gaud, who were non-tribal have been cultivating the land as owners. The predccessors-in-title of the petitioners purchased the said land in two pieces. The petitioners were gifted the above said land into two pieces. An extent of Ac.4-20 gts. in S. No.90/A and an extent of Ac.2-10 gts. in S. No-90/B were gifted to the petitioners under two gift deeds bearing No.1402 of 1966, dated 14-7-1966 and 1211 of 1967, dated 20-7-1967. Regulation 1 of 1959 and subsequent amended Regulations have no applicability to the sale transactions. It is stated that all the sale transactions from 1338 Fasli to 1967 were between thenon-tribals to non-tribals and as such A.P. Scheduled Areas Land Transfer Regulation, 1959 were not attracted. The Laws which were prevailing in the erstwhile State of Hyderabad, A.P. (Telangana Tribal Areas) Regulation 1359 Fasli, Regulation 3 of 1359 Fasli which came into force on 31st Azur, 1359 Fasli which was approximately 1949 A.D. Prior to 1359 Fasli Regulations, Tribal Areas Regulation, 1356 Fasli was in force and prior to that there was no law in the State of Hyderabad under the then King applicable in Adilabad areas prohibiting sale transactions from tribal to non-tribal. Therefore, the transaction which took place in 1338 Fasli are quite legal and valid and they are not hit by any of the legal provisions. While the petitioners were enjoying the property suo motu proceedings were, initiated by the 2nd respondent-Special Deputy Collector, Tribal Welfare alleging that the petitioners are in possession and enjoyment of the tribal land and that the transfer of the land in the notified area was made in contravention of Section 3 of A.P. Scheduled Areas Land Transfer Regulation, 1959. The petitioner submitted a detailed justification stating that the predecessors-in-title had purchased the land under a registered sale deed in 1338 Fasli and thereafter the petitioners came in possession of the said land by virtue of the registered gift deed executed in their favour. The name of the predecessors of the petitioner was also mutated in the revenue records, necessary entries were also made in the revenue records. However, Special Deputy Collector observing that in the year 1350 Fasli, Agricultural Lands Alienation Act, 1349 Fasli was in force and it prohibited the transfer of agricultural land from one class to other class. Therefore, such transfer from tribal to non-tribal was illegal. He also observed that the Agricultural Lands Alienation Act, 1349 Fasli was in force till it is replaced by the Hyderabad Tenancy and Agricultural Lands Act, 1950. Before enforcement of Hyderabad Tenancy andAgricultural Lands Act, 1950, Tribal Regulations 1359 Fasli and the Rules made thereunder were governing the field. The Regulations came into force on 31-1-1359 Fasli and 16-2-1359 Fasli and the Regulations were having overriding effect. The Notified Tribal Area Regulation and Rules of 1359 Fasli were in force till 1-12-1963 on which date they were repealed and replaced by A.P. Scheduled Areas Land Transfer Regulation, 1959 which is also having overriding effect. Thus, holding that the transfer from the tribal to non-tribal in 1338 Fasli was contrary to the relevant Regulation. Accordingly, passed orders holding that the transfer of scheduled lands and their possession by the petitioners was contrary to 1959 Regulation and directed their eviction by an Order dated 27-12-1978.

4. An appeal was filed before the District Collector (Agent to the Government) under Regulation 3(3)(a)(ii) of A.P. Scheduled Areas Land Transfer Regulation, 1959. The said appeal was also dismissed. Thereafter, a revision was filed before the Government and the Government rejected the revision filed by the petitioners in G.O. Ms. No.38, Social Welfare Department dated 26-3-1997. The present writ petition is filed assailing the Order of the Government confirming the Order of the lower authorities as referred to above.

5. It is the case of the petitioners that the predecessors-in-title had purchased the land in question from a tribal in 1338 Fasli and there was no Regulation governing the transfer of the land from tribal to non-tribal at the relevant time and subsequently it was transferred from non-tribal to other non-tribals. Ultimately, by virtue of registered gift deeds executed in favour of the petitioners in the year 1967, they became the owners of the land in question and therefore, the authority constituted under Regulation 3 has no power to declarethe transfers effected in 1338 Fasli as illegal and contrary to the provisions of the A.P. Scheduled Areas Land Transfer Regulation, 1959.

6. In the counter filed by the respondents, it is stated that one Mr. Pendram Dharmu had reported that the subject land was a patta land standing in the name of his late father Pendram Maru, son of Bhikku and these lands were mortgaged by his father to non-tribals, who subsequently became pattedars. It is stated that the petitioners filed certified copies of pahanies for the years 1346 Fasli to 1357 Fasli. They have not filed certified copies of pahanies for the years 1350 Fasli to 1355 Fasli. But, on verification of the records, it was revealed that from 1351 Fasli to 1355 Fasli, Pendnim Dharmu was shown as pattedar. It is stated that the petitioners did not file the registered documents, but only filed certified copies of the registered sale deeds. It is further stated that in the year 1350 Fasli Prevention of Agricultural Alienation Act 1350 Fasli were in force with effect from 10-1-1350 Fasli and according to Section 4 of the Act, the transfer of agricultural land from one class of agricultural group to another class as mentioned in the notification No.19, dated : 19-1-1350 Fasli was prohibited. Pendnim Dharmu., a tribal and Chilukuri Venkaiah, a non-tribal, formed a different class. A transfer effected in the year 1356 Fasli or 1357 Fasli, permission of the Collector was essential and therefore, the transfer was hit by the provisions of the Regulations which were in force at the relevant time. The said Regulations were in force till replaced by Hyderabad Tenancy and Agricultural Lands Act, 1950 with effect from 10-6-950. Even in Hyderabad Tenancy and Agricultural Lands Act, 1950, the permission of the competent authority was necessary under Sections 47 and 48 for alienation of the agricultural land. It is also stated that before the enforcement of the Hyderabad Tenancy and Agricultural Lands Act, 1950, the A.P.(Telangana Tribal Areas) Regulation 1359 Fasli, Regulation 3 of 1359 Fasli were in force from 31-1-1359 Fasli and 16-2-1359 Fasli respectively, the Regulations were having overriding effect. They were in force till 1-12-1963, the day on which the A.P. Scheduled Areas Land Transfer Regulation, 1959 were brought into force in the Agency areas of Telangana districts. It is further stated that Chellasani Purnachandra Rao has no right to transfer the land to any non-tribal Gouramma, as she did not obtain the permission as required under Section 47 of the Hyderabad Tenancy and Agricultural Lands Act, 1950, the gift of the said lands by Gouramma in favour ofher daughters were also illegal and unlawful as she did not acquire any right and title of ownership and permission of the competent authority.

7. The learned Government Pleader appearing for the respondents submits that the transfer effected by the tribal in 1338 Fasli was wholly illegal and contrary to law and therefore, any subsequent transfers took place after 1338 Fasli are illegal and contrary to the provisions of the A.P. Scheduled Areas Land Transfer Regulation, 1959. Therefore, the Order passed by the respondents are quite legal and valid.

8. The question that calls for consideration is whether the Order of ejectment passed by the 3rd respondent as confirmed by the appellate authority and the Government is legal and valid?

9. For proper appreciation of the case, it is necessary to cull out the history of the Scheduled Area Land Transfer Regulations. The law, which is prevailing prior to Regulation 1/59 in Andhra area, is not much relevant. But, it has to be noted that the A.P. Scheduled Areas Land Transfer Regulation, 1959 (Regulation I of 1959) had entered the force on 4-3-1959. This was made to regulate the transfer of lands in theScheduled Areas of East Godavari, West Godavari, Srikakulam and Visakhapatnam Districts. The said Regulation was amended by Regulation II of 1963 by including, within the meaning of Agency Tracts, the areas in the Districts of Adilabad, Warangal, Khammam and Mahabubnagar. With the result, the A,P. Scheduled Areas Land Transfer Regulation, 1959 was made applicable to the areas of the districts of Adilabad, Warangal, Khammam and Mahabubnagar districts also with effect from 1-12-1963.

10. Section 3 of Regulation 1 of 1959 is extracted below for proper appreciation of the matter:

"3(1) Notwithstanding anything contained in any enactment, rule or law in force in the Agency Tracts, any transfer of immovable proper 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-

(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 (Madras Act VI of 1932), composed solely of members of the Scheduled Tribes, or

(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.

(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 underthe transfer after due notice to him in the manner prescribed and may restore it to the transferor or his heirs."

(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 of 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."

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, relied 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. 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 scheduled tribe.

11. These Regulation entered force in Andhra area with effect from 4-3-1959 and these Regulations were made applicable to the districts in Telangana area through Regulation II of 1963 with effect from 1-12-1963.

12. These provisions were amended by Regulation I of 1970. The provisions as amended reads as follows:

"3. Transfer of immovable property by a member of a Scheduled Tribe-

(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 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 such 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 Officeror 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 immovable property is made in contravention of subsection (i), 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 transfer of his heirs.

(b) If the transferor or his heirs, are not willing to take back the property or where their whereabouts are not known, the Agency, the Agency Divisional Officer or prescribed officer, as the case may be may order the assignment or safe 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."

Regulation I of 1959 came into force in Telangana area with effect from 1-12-1963by which any transfer of land from tribal to non-tribal was prohibited. Subsequently, further amendment was made by virtue of the amended Regulation 1 of 1970, the transfer of immovable property situated in Agency areas by a person or whether or not a member of Scheduled Tribe is made absolutely null and void. Thus the transfer of land from non-tribal to non-tribal was also prohibited unless such transfer is made in favour of the Scheduled Tribe or in favour of Co-operative Society composed of solely members of the Scheduled Tribe. -We are not concerned with Regulation I of 1970 as the petitioners came to be in possession of land by virtue of the registered gift deeds in the year 1967.

13. The learned Counsel for the petitioner Mr. C.R. Prathap Reddy submits that Regulation I of 1959 has no retrospective effect the Special Deputy Collector-2nd respondent has no jurisdiction to enquire into whether the transfer effected prior to coming into force the Regulation I of 1959 in Telangana and that the Order passed by the 2nd respondent is wholly illegal and without jurisdiction. He relies on the judgments of the Division Bench of this Court in Munja v. Perchaki Raju, 1976 (2) APLJ (HC) 103, Gaddam Narsa Reddy v. Collector, Adilabad District, AIR 1982 API, Dy. Collector v. S. Venkata Ramanaiah, , Gottipulla Venkata Appara Rao v. Special Deputy Collector, 1996 (3) ALD 287, Kola Mahalaxmi v. Agent to Government, Khammam, .

14. On the other hand, the learnedGovernment Pleader relies on the judgments of this Court reported in Meram Pocham v. The Agent to the State Government (Collector), District Adilabad, 1978 (1) APLJ 202, Gaddam Narsa Reddy v. Collector, Adilabad District, 1981 (2) APLJ 260, P.Narsaiah v. P. Raja Reddy, 1988 (2) APLJ 1, Vemana Somalamma v. DeputyCollector, Tribal Welfare, Ratnpachodavaratn, , Samatha v. State of Andhra Pradesh, , Vaddi Veeraiah v. The Agent to the Government, Khammam, 1996 (1) ALD 107 (DB), Deputy Collector v. S. Venkata Ramanaiah, , Gadde Nagabushanamma v. Government of Andhra Pradesh, and Smt. Palchuri Hanumayamma v. Tadikamalla Kotilingam, 1986 (2) APLJ 90.15. It is not in dispute that the original pattedar in respect of the subject land was a tribal. But, however, it was purchased by non-tribal Chilukuri Venkaiah and Padala Soya Goud under a registered sale deed in 1338 Fasli. Thereafter, the land changed many hands. It was sold to one Mr. Chellasani Purnachandra Rao and later on it was purchased by Gouramma, who was executed registered gift deeds in favour of her two daughters, who are the petitioners herein. In 1338 Fasli, the land was transferred in favour of non-tribal under registered sale deed and thereafter it was being transferred from non-tribal to non-tribal only. Last transfer was made in favour of the petitioners vide registered gift deeds dated 19-7-1966 and 20-10-1967 by which time the amended Regulation I of 1970 did not come into force. It is also not in dispute that the revenue records i.e., pahanies for the years 1356-57 Fasli showed that the Pendrum Maru was not the pattedar. The certified copies of the registered documents were also filed before the authorities to establish that the transfer took place in 1338 Fasli between the tribal and a non-tribal and it was contended that at the relevant time, there was no prohibition as such.

16. In Munja's case (supra), suo motu proceedings were initiated by the Special Deputy Collector. It was the contention of the petitioner that the tribal had entered into an agreement with the petitioner on15-2-1963 agreeing to sell the land for Rs.1,000/-. That amount was paid on the date itself and the possession was taken from the tribal and thereafter a regular sale deed was executed on 24-3-1965. The Regulation was extended to Telangana area only on 1-12-1963 as the petitioner had obtained possession under the agreement of sale long before that date, there is no prohibition Section 3(1) could not be attracted. Referring to Section 53-A of the Transfer of Property Act and Section 47 of Hyderabad Tenancy and Agricultural Lands Act, 1950, the learned Judge held that the Vendee (non-tribal) can rely on the doctrine of part performance under Section 53-A of the Transfer of Property Act and resist the proceedings for ejectment initiated against him. The fact that no permission was obtained under Section 47 of the Hyderabad Tenancy and Agricultural Lands Act, 1950, does not make any difference. This decision is not directly applicable to the facts of the case on hand.

17. In Gaddam Narsa Reddy's case, (supra), the case dealt with by the Full Bench arose out of a suo motu proceedings initiated by the Special Deputy Collector in respect of the land situated in former Adilabad taluk. Lands in S. Nos.33 and 34 were purchased under agreement of sale dated : 10-2-1955 by a non-tribal from a tribal. The land in S. No.8 was purchased under agreement of sale dated : 8-3-1963 by a non-tribal from a tribal. The tribals filed a petition under Section 3(2) of the Act alleging that the transfer of the land under agreement of sale was in contravention of the provisions of 3(1) Regulations and they are entitled to be put back in possession. The Special Deputy Collector allowed the claim holding that the transfer of land in favour of the petitioners was not effected by the registered document as required under Section 17 and they did not acquire the title to the same and the possession of the petitioner was unlawful and unauthorised asit was made in contravention of the provisions of 3(1) of the Regulations and accordingly, directed the eviction of the non-tribal. Having been unsuccessful before the appellate authority and the Government, non-tribal filed the writ petition. It was contended on behalf of the petitioners that provisions of Regulation (I) of 1959 came into force in Telangana area on 1-12-1963 and it has no retrospective in operation and would not effect the transfer made by tribal to non-tribal and even otherwise the non-tribal would be entitled to protection of Section 53-A of the Transfer of Property Act and that the Order of eviction was illegal.

18. The Full Bench after considering various provisions of the Regulations and the case law on the subject answered the reference as follows:

"1. A transfer of immovable property situate in agency tracts, made after the coming into force of the A.P. Scheduled Areas Land Transfer Regulation 1 of 1959 or its amendment Regulation II of 1963 or Amendment Regulation I of 1970, even if made in compliance with the provisions of the Transfer of Property Act, Indian Registration Act or Hyderabad Tenancy and Agricultural Lands Act or any other law applicable thereto, is null and void, if it contravenes the provisions of Section 3(1) of the Regulation I of 1959 or its amending regulations, and under Section 3(2) of the said Regulation, the authorities mentioned therein can decree ejectment of the' persons claiming under such transfer and pass orders restoring the lands to the transferors or their successors or pass orders for disposing of the said property as directed therein.

(2) Section 3(1) of the Regulation I of 1959 and its amendments by Regulation II of 1963 and I of 1970 have no retrospective operation and do not affect transfers made prior to the said Regulation or its amendments coming into force and the authorities under Section 3(2) of the Regulation have no jurisdiction to pass Orders in relation to the immovable property covered by such transfers.

(3) The validity or otherwise of the transfers made prior to Section 3(1) or its amendments by Regulation II of 1963 or I of 1970, coming into force, cannot be adjudicated upon under Section 3(2) of the Regulation and the same has to be challenged in an appropriate forum constituted for deciding disputes relating to immoveable property situate in Scheduled Areas."

Similar identical issue came up before the Supreme Court in S. Venkata Ramanaiah's case (supra), as to whether the Section 3( 1)(a) has retrospective effect, the Supreme Court while upholding the Full Bench decision in Goddam Narsa Reddy's case (supra), held as follows:

"A close reading of Section 3(1)(a) indicates that after coming into force of the said provisions any transfer of immovable property which is in the sweep of Section 3(1)(a) would be absolutely null and void unless the transfer falls within the excluded category as mentioned in the said provision. This section nowhere indicates either expressly or even impliedly that it is meant to adversely affect completed transactions of transfer which might have taken place prior to the coming into force of Section 3(1)(a) of the Regulation. Mrs. Amareshwari, learned senior Counsel could not effectively urge that there was any such express indication of retrospectivity in the said provision or any other part of the Regulation. It is obvious that if Section 3(1)(a) was to apply retrospectively to hit even past transfers it would have mentioned withreference to transfer of immovable property as under:

'Whether effected before of after coming into operation of this Regulation, "

Such or similar words are conspicuously absent. Therefore, Section 3(1)(a) as it stands cannot be said to have any express retrospective effect. "

Agreeing with the submissions of Mr. Bobde, the learned Counsel for the respondents, the Supreme Court held that provisions of Section 3(1) of the Regulation are purely prospective in nature and do not affect past transactions of transfers effected between tribals and non-tribals or between non-tribals and non-tribals themselves in the Agency Tracts at a time when neither Regulation I of 1959 nor Regulation II of 1963 or Regulation I of 1970 was in force. Such past transactions remained untouched by the sweep of the aforesaid subsequently enacted Regulations. However, it was sought to be contended on behalf of the tribals that even assuming that all these Regulations do not adversely affect past transactions even then, after coming into force of these Regulations in the concerned Agency Tracts, the possession of erstwhile transferees would become illegal and get hit by Section 3(1) of the Regulation.

19. The Supreme Court said:

"It is not possible to agree with this contention for the simple reason that before the continued possession is found fault with, it must be shown that the initial entry of the transferee was violative of any provision of law or that by any subsequent statute such continuance of possession under an originally valid transaction would get adversely affected. Section 3(1) nowhere whispers about such an eventuality. On the contrary, employment of terminology to the effect, 'transfer of immovable property situatedin 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' clearly indicates that Section 3(I)(a) seeks to hit only those transfers which take place after the coming into force of that provision and when such transfers are found to be absolutely mill and void then only the question of continued illegal possession of such transferee and of evicting such transferee from the land and restoration of such land to the transferor would arise under Section 3(2)(a).

The Supreme Court further observed :

"On a conjoint reading of Section 3(1)(a) and Section 3(2)(a), it becomes clear that the section seeks to hit the transfers effected after the section came into force and possession only under such invalid transfers is sought to be dealt with for the purpose of eviction of transferees and restoration of possession to transferors, as the case may be, under Section 3(2)(a) of the Regulation. Consequently, the alternative submission of learned senior Counsel for the authorities that even though transfer of immovable property in the Agency tracts may not be hit by Section 3(1)(a) still possession under such transfers could be restored to the original transferor under Section 3(2)(a), cannot be countenanced. Section 3(2)(a) is a corollary to Section 3(1)(a) and cannot have any independent role to play. Nor can it cover any area which is not encompassed by the sweep of Section 3(1)(a).

20. Thus the Supreme Court has categorically held that Section 3(1)(a) read with Section 3(2)(a) of the Regulation seeks to hit only those transfers of lands in Agencytracts which take place after the enforcement of Section 3(1)(a) of the Regulation. Possessions under transfers which are beyond the sweep of Section 3(1)(a) cannot be said to have continued under any invalid transfers as envisaged by Section 3(1)(a). Such possessions obtained under the then existing old and valid transfers would be outside the ken of the Regulation itself.

21. It further held that as the transfers in these cases were prior to coming into the Regulations in question, they could not be covered by the Regulation. The authorities acting under the Regulations had no jurisdiction to deal with them.

22. I need not refer to the decision ofthe learned single Judge of this Court reported in G. Venkata Appa Rao's case (supra), and K. Maha/axini's case (supra), holding that Section 3(1)(a) and 3(2)(a) have only prospective effect and they do not have retrospective enforceability.

23. The learned Government Pleader relies on the Division Bench decision of this Court reported in Meram Pocham's case (supra), wherein it was held that even if a delivery of possession in pursuance of the contract of sale took place it was invalid and unlawful on account of failure to secure permission under Section 47. Such possession and transfer could not be validated under Section 50-B. Therefore, it necessarily follows that if the transferee or alienee did not avail himself of this opportunity of getting his alienation and possession validated under Section 50-B, he should suffer the consequences, since the transfer and delivery of possession in his favour remained invalid and unlawful.

24. It further held that there was no indefeasible title or right created in the petitioners before 1-12-1963 on which date the Regulation came to be applied to Telangana area after 1-12-1963 overriding effect of Section 3 have come into force.Section 3 of the Regulation had, on and from, 1-12-1962, overriding effect despite any other enactment, rule or law in force in agency tracks in respect of transfer of immovable property situate in scheduled areas by a tribal in favour of a non-tribal. These provisions had no retrospective effect. But, then there was no indefeasible right in the petitioners by 1-12-1963. What all they had by that date was a contract of sale and unauthorised and illegal possession of the land. By virtue of Section 3 of the Regulation the agreement of sale and the subsequent safe deeds which the petitioners obtained, were null and void.

25. This decision would not apply to the facts of the case as the transfer of land took place in 1338 Fasli by virtue of the registered sale deeds. At that relevant time, there was no prohibition under any laws. Even assuming that the 1957 Regulation were brought into effect in Telangana area, year, in 1338 Fasli, no such Regulations were existing whereby prohibition of transferor tribal to non-tribal was in force. Even under the later regulation of 1359 Fasli what was prohibited was from one class of person to another class of person and it did not mention in so many words that transfer from tribal to non-tribal was prohibited. In the wake of Supreme Court judgment in Venkata Ramaiah's case (supra), it has to be held that any transfers effected prior to 1-12-1963 in Telangana area are not covered by Regulation 1 of 1959.

26. In Samatha's case (supra), the issue that was considered by the Supreme Court was whether the person as mentioned in Section 3(1) would include natural persons or juristic person and constitutional Government. But, the interpretation of Section 3(1)(a) and 3(2) did not arise for consideration. Therefore, the decision of the Supreme Court is of no assistance to the Government.

27. The learned Government Pleader also relied on the judgment of the Division Bench of this Court reported in Vaddi Veeraiah's case (supra). It was a case where a non-tribal purchased Ac. 1.20 gts. in a scheduled area under unregistered sale deed dated 3-5-1960 on a stamped paper of Rs.1.50 possession. The Special Deputy Collector initiated proceedings under Section 3(1), the Special Deputy Collector held that the non-tribal purchased for a valid consideration before the Regulation came into force. But, however in appeal, the order of the Special Deputy Collector was reversed taking the view that the revenue records disclosed that the non-tribal came into possession only in the year 1973-74 and that there was no evidence to show that the non-tribal respondent has purchased the land prior to 1-12-1963. The Division Bench relying on the decision of the Full Bench report in Gaddam Narsa Reddy's case (supra), and referring to clause (b) of subsection (1) of Section 3 held against the non-tribal. The plea that purchase was effected on 3-5-1960 was rejected on the ground that there was a finding of fact arrived by the appellate authority that the non-tribal came into possession only in the year 1973-74. Therefore, on that basis, the claim of the non-tribal was rejected and the order of the appellate authority was confirmed.

28. In the instant case, it is not disputed that the transfer took place in 1338 Fasli under registered sale deed and as held by the Supreme Court in S. Venkataramanaiah 's case (supra), that Regulation 1 of 1959, II of 1963 and I of 1970 have only prospective effect and they have no retrospective effect and that it covers only the land transfer transactions' which took place subsequent to the coming into force the concerned Regulations.

29. The learned Government Pleader relies on the judgment of this Court reportedin Gadde Nagabushanamma's case (supra). In Hie said case, the petitioner alleged to have purchased the land from Chebrolu Dharmaiah under an agreement of sale dated 20-9-1968 and took the delivery of possession. Both Dharmaiah and the petitioner arc not tribals and the laud is situated in scheduled area of Polavaram taluk. Subsequently, Dharamaiah died issueless. Pursuant to the Andhra Pradcsh Scheduled Area Ryotwari Settlement Act, 1970, all the lands in scheduled area were surveyed, the petitioner applied for ryotwari patta under the provisions of the Regulation 2 of 1970 which was rejected and in the appeal she was unsuccessful. The learned Judge observed that the Regulation 1 of 1970 came into force with effect from 3-2-1970, which declared null and void, any transfer of the immovable property of a member of Schedule Tribe or Society consisting of Scheduled Tribe members. Section 3(l)(b) incorporated presumption. The land was registered in favour of the petitioner through registered sale deed dated 21-7-1971. The contention of the petitioner was that in view of the overriding effect of the provisions of settlement Regulation 2 of 1970 having come into force from 1-4-1970 subsequent to the amended Regulation I of 1959, ryotwari patta granted in favour of the petitioner by proceedings dated 6-4-1981 of Director of Settlements and appellate authority prevails over the provisions of the Amended 1959 Regulations and consequently the possession of the petitioner of the property was not liable to be disturbed or liable to be declared as null and void. The learned Judge observed that 1959 Regulation was a special enactment intended to protect the interest of the tribals. The determination and validity or otherwise of the transfer under this regulation is the conclusive of the issue and binds identical questions arising under any other Regulation whether earlier or later in point of time. The learned Judge observed that the title of the petitioner was referable to the registered sale deed dated 21-7-1977 which issubsequent to the coining into force the 1959 Regulation. Consequently, transfer in his favour was rightly declared as null and void. The learned Judge referring to Samatha's case (supra), observed that the prohibition against transfer and the declaration of nullity enjoined under Amended 1959 Regulation having been held to be an emanation of Para 5(2) of the Fifth Schedule to the Commission itself, the determination of invalidity declared under the provisions of Amended 1959 Regulation will have to be held as overriding any contrary determination under any other Regulation. But, this case is also not applicable to the facts of the case on hand. The issue before the learned Judge was as to whether the determination under Regulation 2 of 1970 (A.P. Scheduled Areas Ryotwari Settlement Regulation, 1970) has overriding effect on the decision rendered by the authority under the Regulation 1 of 1959 (A.P. Scheduled Areas Land Transfer Regulation, 1959). It was held that the latter will prevail over the former.

30. The most crucial issues are whether the Special Deputy Collector sitting under Section 3 is entitled to declare the transfers effected prior to coming into force ?

31. Firstly, it was not disputed that the transfer took place from tribal to non-tribal in 1358 Fasli and the revenue records also reveal that the mutations took place. But, this was rejected on the ground that the original registered documents were not fifed, but only the certified copies of the registered sale deeds were filed. Therefore, when once it is accepted that the transfer from tribal to non-tribal had taken place as early as in 1338 Fasli and there was no prohibition at all in a subsequent enactments from non-tribal to non-tribal. Only in 1959 Regulation prohibiting the transfer of the lands in Agency Tracks in the Scheduled Areas from tribal to non-tribal was brought into effect and that prohibition was brought into effectin Telangana areas in December, 1963. But, however, the prohibition from non-tribal to non-tribal was also brought into effect by virtue of the Amended Regulation I of 1970. Subsequent to the coming into force the Regulation I of 1970, there was no such transactions at all. The petitioners have came into possession by way of registered gift deed prior to coming into force the Regulation 4 of 1979. The Full Bench had categorically held that the Special Deputy Collector has no jurisdiction to decide the validity or otherwise of the documents executed prior to coming into force the Regulation. Therefore, the possession of the predecessors of the petitioners right from 1338 Fasli was not hit by any of the provisions. Even assuming that Regulations 1359 Fasli were governing the field in Telangana area, yet, transactions took place in 1338 Fasli much prior to the Regulation coming into force. It is very much doubtful whether that Regulations are applicable to the facts of the present case. Inasmuch as, prohibition was only in respect of transfer from one class agricultural land to another class of agricultural land class and there was no reference to the tribal and non-tribal. The Special Deputy Collector of the view that when Pumachandra Rao has transferred the lands in favour of Gouramma and Gouramma transferred the land in favour of her two daughters by way of Registered gift deeds, the permission of thecompetent authority as required under Section 47 of the Telangana Area Land Tenancy Act was not obtained, but that is an irrelevant consideration. As held by the Division Bench and also the Supreme Court in S. Venkata Ramanaiah's case (supra), when once the authority is held to be not having the jurisdiction in respect of the transactions which took place prior to coming into force the Regulations equally the authorities has no jurisdiction to interfere with such transfers and it is only the competent authority under the relevant provisions is entitled to initiate the action. Admittedly, the petitioners cameinto possession by virtue of the registered gift deed and such a transfer was not prohibited at the time when the registered gift deed was executed. As the transfer took place between the non-tribal prior to 1970 and the non-tribal and the prohibition came into effect only in the year 1970. The alleged reference to the transfers subsequent to 1970 are not subject matter in the suo motu proceedings. The suo motu proceedings were initiated against the writ petitioners and therefore, it was not within the province of the Special Deputy Collector to give finding that some other persons purchased the land subsequently coming into force the -Regulation 1 of 1970 and that finding is wholly extraneous to the issue under adjudication. As can be seen from the Order of the Special Deputy Collector, the respondents are only the writ petitioners and not others. Hence the possession of the petitioners with reference to the date on which the transaction took place has to be considered.

32. In S. Venkata Ramanaiah's case (supra), the Supreme Court has categorically held that Section 3(2)(a) cannot be applied to evict the transferee under transactions which were completed before enforcement of the Regulation and it had categorically held that Section 3(1)(a) only aims at nullifying those transfers which take place after coming into force the Regulation and when such transfers are found to be absolutely null and void, then only the question of continued illegal possession of such transferee and of evicting such transferee from the land and restoration of the land to the transferor would arise under Section 3(2)(a). Thus, even assuming for the sake of argument that the transferee was in illegal possession prior to coming into force the Regulation, the Special Deputy Collector has no jurisdiction to evict them by invoking Section 3(1)(a) and 3(2)(a) as the transaction was not encompassed by sweep of Section 3(1)(a). The SupremeCourt has observed that before continued possession is found fault with, it must be shown that initial entry of the transferee is violative of any of the provisions of the law or any subsequent statute. Such continuation of possession originally valid transaction would get adversely effected. Section 3 nowhere whispers that eventuality. Therefore, the possession of the non-tribal prior to coming into force, whether even assuming that it is illegal cannot be disturbed under Section 3(1). Thus Section 3(1)(a) and 3(2)(a) cannot be invoked by Special Deputy Collector to declare the transactions which took place prior to coming into force Regulation 1 of 1959. In Para 25, the Supreme Court observed that when the transfers were effected prior to the coming into force the Regulations though could not be covered by this Regulation, the authorities acting under the Regulations has no jurisdiction to deal with them and the Full Bench decision is very categoric on this point that the validity or otherwise of the transfers made prior to 3-6-1951 or its amended Regulation I of 1959 and I of 1970 coming into force cannot be adjudicated upon under Section 3(2) of the Regulations and the same has to be challenged in a proper Forum constituted for deciding the disputes relating to immovable property situated in the scheduled areas. Therefore, even assuming that for arguments sake that the Regulations prohibiting transfer by tribal to non-tribal was in force at the time when the transfer had taken place between the tribal to non-tribal, but still that cannot be decided under Section 3(2) and it has to be only agitated before the appropriate Forum constituted for deciding such disputes. Therefore, on this ground also, the order of the Special Deputy Collector is illegal and is wholly without jurisdiction. Admittedly, the proceedings were initiated in 1978 on the ground that the transfer of the immovable property was made in contravention of subsection (3) of Section 3 of Regulation 59. Therefore, when once it is established thatthe transfer took place prior to coming into force the Regulation 1 of 1959 and 2 of 1963 and 1 of 1970, it oust the jurisdiction of the Special Deputy Collector sitting under Section 3 of Regulation 1 of 1959 and the matter has to be decided in accordance with the relevant provisions if any existed as on the date of such transfer and the relevant statute.

33. Accordingly, I have to necessarily hold that the order passed by the Special Deputy Collector dated 22-12-1978 as confirmed by the appellate authority dated 27-6-1990 and the Government dated 26-3-1997 are wholly illegal and without jurisdiction.

34. The learned Counsel for the petitioner further submits that initiation of suo motu proceedings under Section 3 are bad in law as proceedings were not initiated within a reasonable time as held by the Supreme Court. I need not go into the aspect in view of my finding supra regarding jurisdiction of the authority.

37. The writ petition is accordingly, allowed. There shall be no order as to costs.