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Kakarla Nageswara Rao v. Govt. Of A.P & Ors.
Structured Summary of the Opinion
Factual and Procedural Background
Four writ petitions were filed under the Andhra Pradesh Scheduled Areas Land Transfer Regulation, 1959 (as amended). All petitioners are non-tribals who purchased lands in Agency tracts from non-tribals by registered sale deeds executed in 1978. On complaints by the Special Deputy Tahsildar, Tribal Welfare No. 1, Eluru, the Agency Divisional Officer-cum-Special Deputy Collector (third respondent) initiated ejectment proceedings under Section 3(2)(a) of the Regulation and passed orders of ejectment on 30 September 1982. The petitioners appealed to the Agent to the Government, West Godavari District (second respondent), and the appeals were dismissed by orders dated 4 November 1983. Revision petitions to the State Government (first respondent) were dismissed by proceedings dated 4 May 1984 and 14 May 1984. Review petitions filed nearly ten years later were rejected as not maintainable by proceedings dated 28 November 1994. In an earlier round of litigation the petitioners admitted they were dispossessed; in affidavits filed in the present petitions the petitioners stated they had raised cashew and tobacco crops. On 25 January 1995 this Court granted interim directions allowing the petitioners to cultivate the lands for eight weeks (later extended). Respondents filed counter-affidavits and petitions to vacate the interim directions. The present opinion disposes of these four petitions together because common questions arise.
Legal Issues Presented
- Whether the transfers to the petitioners are outside the prohibition in Section 3(1)(a) of the Regulation because the petitioners were placed in possession pursuant to agreements of sale dated 15-4-1969 and 15-7-1969 (i.e., whether the date of "transfer" for the purpose of Section 3(1)(a) is the date of the contract/agreement rather than the date of the registered sale deed).
- Whether the petitioners, being small farmers, are entitled to protection or benefit under G.O.Ms No. 129, Social Welfare Department, dated 13-8-1979, in a manner that would defeat the ejectment proceedings under the Regulation.
- Whether the State Government's rejection of the petitioners' revision petitions by orders dated 4-5-1984 and 14-5-1984 without affording opportunity of being heard violates the proviso to Section 6 of the Regulation.
- Whether non-communication to the petitioners of the State Government's orders of 4-5-1984 and 14-5-1984 (if that were so) excuses delay and prevents laches from operating against the petitioners in filing the present writ petitions.
Arguments of the Parties
Petitioners' Arguments
- The transfers are not hit by Section 3(1)(a) because they were put in possession under agreements of sale dated 15-4-1969 and 15-7-1969, and "transfer" (per Section 2(g)) includes a contract to sell, so the effective date should be 1969 (prior to the Regulation coming into force on 3-2-1970).
- As small farmers, the petitioners claim entitlement to benefits under G.O.Ms No. 129, Social Welfare Department, dated 13-8-1979, which they say should protect their interests in the lands.
- The State Government rejected their revision petitions without giving an opportunity to be heard, contrary to the proviso to Section 6 of the Regulation.
- The State Government's orders dated 4-5-1984 and 14-5-1984 were not communicated to the petitioners; they became aware of those orders only in 1994 when ejectment was sought, hence there is no laches in filing the writ petitions.
Respondents' Arguments and Administrative Findings
- The third respondent (primary authority) found that the alleged agreements of sale were not produced before him and therefore rejected the petitioners' claim of earlier possession.
- The second respondent (appellate authority) rejected the plea of pre-1970 transfer for three stated reasons: (a) the registered sale deeds recited that possession was given on the date of execution of the sale deeds; (b) the sale deeds contained no reference to any antecedent agreements of sale; and (c) there was no evidence produced proving possession or payment of land revenue by the petitioners from 1969 to 1978.
- On the claim under G.O.Ms No. 129, respondents observed that a Government Order cannot override statutory provisions; additionally, one petitioner was found to own more than 10 acres and others failed to prove small-farmer status; no copy of the G.O. was placed before the Court.
- Regarding Section 6, respondents (as characterized by the Court) treated the State Government's action as an affirmation of the earlier orders rather than a revision altering or reversing them; therefore, the proviso (which requires notice and an opportunity to be heard when the State Government exercises revisionary powers) was said not to be engaged.
- On communication, respondents relied on the fact that the State Government's orders were communicated to the petitioners' counsel (Sri A. Rangacharyulu), and communication to counsel was treated as sufficient communication to the party; no affidavit was filed by that counsel averring non-receipt.
- Respondents asserted and the record showed that possession of the subject lands was taken over on 4-7-1994; petitioners had earlier admitted dispossession in prior proceedings.
Table of Precedents Cited
| Precedent | Rule or Principle Cited For | Application by the Court |
|---|---|---|
| V. Somalamma v. Dy. Collector, Tribal Welfare (Full Bench), 1993 (1) ALT 403 (FB) | That laws made applicable to Scheduled Areas reflect an intent to safeguard the interests of tribals and to ensure that land in Scheduled Areas remains in possession of tribals. | The Court invoked this observation to support the conclusion that there was no justification to reinduct non-tribal petitioners into possession of land in the Agency tracts after dispossession, given the statutory purpose to keep land in possession of tribals. |
Court's Reasoning and Analysis
The Court proceeded issue by issue, applying the statutory text and the administrative record without expanding beyond the material in the opinion.
First issue — transfer date and Section 3(1)(a): Section 3(1)(a) (effective from 3-2-1970) declares transfers of immovable property in Agency tracts null and void unless made in favour of certain tribal persons or societies. The petitioners conceded that their registered sale deeds were executed in 1978 (thus within the prohibition) but contended that the earlier agreements of sale (1969) should operate as the date of transfer because Section 2(g) defines "transfer" to include a contract relating to sale. The Court examined the administrative findings: the primary authority found the alleged agreements were not produced; the appellate authority gave three reasons to reject the claim (recital of possession in the 1978 deeds, no reference to agreements in the deeds, and absence of evidence of possession or payment of land revenue between 1969–1978). The Court held these reasons sufficient to reject the petitioners' contention and therefore concluded the first contention must fail.
Second issue — claim under G.O.Ms No. 129: The Court noted that respondents rejected the contention on two main grounds: a Government Order cannot override the statutory scheme of the Regulation, and the petitioners failed to prove small-farmer status (one petitioner allegedly owns more than 10 acres and others offered no evidence). No copy of the Government Order was placed before the Court. Given these factors, the Court found the second contention unsustainable and rejected it.
Third issue — proviso to Section 6 and the right to be heard: Section 6 empowers the State Government to revise orders of the Agent or Agency Divisional Officer, and contains a proviso requiring notice and reasonable opportunity of being heard. The petitioners argued that the State Government erred in rejecting their revision petitions without hearing. The Court analyzed the language and purpose: the proviso applies when the State Government exercises its power to revise (i.e., to alter, amend, correct, modify, or reverse an order). The Court quoted an ordinary meaning of "revise" (from Black's Law Dictionary) and concluded that where the State Government merely affirms an order and does not change it, the proviso's requirement of an opportunity to be heard is not triggered. Because the State Government affirmed the orders of the second respondent rather than modifying them, the Court held the proviso did not apply and the petitioners had no valid complaint on that ground.
Fourth issue — communication of State Government orders and laches: The petitioners claimed the State Government's orders of 4-5-1984 and 14-5-1984 were not communicated to them and thus they only became aware in 1994. The Court found the records showed those proceedings were communicated to the petitioners' counsel (Sri A. Rangacharyulu). The Court applied the well-settled principle that communication to counsel constitutes communication to the party, observed there was no affidavit from that counsel denying receipt, and rejected the contention of non-communication and related arguments about laches.
Additional procedural observation — review power: The writ petitions challenged the State Government's 28-11-1994 proceedings rejecting review petitions as not maintainable. The Court observed that the Regulation did not confer power of review on the State Government. The petitioners had admitted dispossession previously, and respondents' affidavit stated possession was taken over on 4-7-1994. Coupled with the policy noted in V. Somalamma, the Court found no ground to reinstate non-tribal petitioners into possession after such lapse.
Holding and Implications
Holding: The writ petitions are dismissed. The Court concluded there were no merits in the petitions and therefore refused relief to the petitioners. Consequently, the interim directions dated 25-1-1995 permitting cultivation on the subject lands are vacated.
Implications: The direct effects are (a) the petitioners remain dispossessed of the subject lands and (b) the temporary permission to cultivate those lands granted by this Court is withdrawn. The Court applied existing statutory interpretation and administrative findings and relied on an earlier Full Bench observation (V. Somalamma) regarding the protective object of laws made applicable to Scheduled Areas; the opinion does not purport to create or announce a new legal precedent beyond applying these authorities and the Regulation to the facts.
1. These four writ petitions arise under the Andhra Pradesh Scheduled Areas Land Transfer Regulation, 1959 (for short “the Regulation”) as amended from time to time. It would be convenient to dispose them of together since common questions arise in all the matters.
2. The material facts are: All the petitioners are non-tribals. They purchased lands situated in the Agency tracts from non-tribals through sale deeds registered in the year 1978. On complaints filed by the Special Deputy Tahsildar, Tribal Welfare No. 1, Eluru, the third respondent viz., the Agency Divisional Officer-cum-Special Deputy Collector, Kota Ramachandrapuram, West Godavari District, Eluru, initiated proceedings for ejectment of the petitioners under Section 3(2)(a) of the Regulation. After due enquiry, he passed orders of ejectment on 30th September, 1982. Aggrieved by the same, the petitioners preferred appeals to the second respondent viz., the Agent to the government, West Godavari District. The said appeals were dismissed by separate orders dated 4th day of November, 1983. They carried the matter through a counsel to the first respondent viz., the Government of Andhra Pradesh by way of revision petitions under Section 6, but they were also dismissed by proceedings dated 4-5-1984 and 14-5-1984. Review petitions filed nearly ten years thereafter on the ground that the proceedings dated 4-5-1984 and 14-5-1984 were not communicated to the petitioners, were also rejected as not maintainable by the impugned proceedings dated 28th day of November, 1994. In the previous round of litigation i.e, in Writ Petition Nos. 12021, 12054, 12065 and 12066 of 1994, it was admitted that the petitioners were dispossessed from the subject lands. However, in the affidavits filed in support of the present writ petitions, it is stated that the petitioners have raised cashew and tobacco crops. When they came up for admission on the 25th day of January, 1995, this Court, while giving time to the learned Government Pleader for obtaining instructions, granted interim directions to the respondents to permit the petitioners to cultivate the subject lands for a period of eight weeks, which were later extended. On behalf of the respondents, counter affidavit along with a petition to vacate interim directions has been filed in each case.
3. Learned Counsel for the petitioners raises four principal contentions: They are
(1) The transfer in favour of the petitioners is not hit by the provisions of Sec. 3(1)(a) of the Regulation as they were put in possession of the subject lands pursuant to the agreements of sale dated 15-4-1969 and 15-7-1969.
(2) The petitioners being small farmers are entitled to the benefit envisaged under G.O.Ms No. 129, Social Welfare Department, dated 13-8-1979.
(3) The proceedings of the first respondent dated 4-5-1984 and 14-5-1984, rejecting the petitioners' revision petitions without giving opportunity of being heard to them are unsustainable in view of proviso to Section 6.
(4) The proceedings of the first respondent dated 4-5-1984 and 14-5-1984 were not communicated to the petitioners and they came to know of the same only in the year 1994 when they were sought to be ejected. Hence, there are no laches on their part in filing the present writ petitions.
4. The first contention centres around the provisions of Section 3(1)(a) and the definition of transfer as defined in Section 2(g). Section 3(1)(a) reads:
“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 a person, who is a member of a Scheduled Tribe or a society registered or deemed to be registered under the Andhra Pradesh Co-operative Societies Act, 1964 (Act 7 of 1964) which is composed solely of members of the Scheduled Tribes.”
5. It came into force with effect from 3-2-1970. Admittedly, the petitioners are non-tribals and they purchased the subject lands from non-tribals through registered sale deeds dated 22-5-1978, 23-9-1978, 21-9-1978 and 20-5-1978. Thus, if the date of execution of sale deeds is taken as the date of transfer, there can be no objection to declare the said transfer as null and void. Learned counsel for the petitioners does not dispute this legal position. But, his contention is that the petitioners came into possession of the subject lands prior to 3-2-1970 by virtue of agreements of sale dated 15-4-1969 and 15-7-1969. Therefore, in view of the definition of “transfer” in Section 2(g), the transfer in favour of the petitioners dates back to the date of agreements of sale. To appreciate this contention of his, it is necessary to refer to the meaning of “transfer”. It reads:
““Transfer” means mortgage with or without possession, lease, sale, gift, exchange or any other dealing with immovable property, not being a testamentary disposition and includes a charge on such property or a contract relating to such property in respect of such mortgage, lease, gift, sale, exchange or other dealing.” (Section 2(g))
It is clear from the plain reading of the above that ‘transfer’ includes a contract to sell. Thus, if the agreements of sale dated 15-4-1969 and 17-5-1969 set up by the petitioners are accepted as genuine, it must be held that the transfer in favour of the petitioners is not hit by Section 3(1)(a) of the Regulation. But, the primary authority as well as the appellate authority refused to accept the plea of the petitioners that the registered sale deeds were preceded by agreements of sale. The primary authority viz., the third respondent rejected this plea on the ground that the alleged agreements of sale have not at all been produced before him. The appellate authority, viz., the second respondent rejected the said plea on three grounds—
(1) It is recited in the registered sale deeds that the petitioners were put in possession of the subject lands on the date of execution of the sale deeds;
(2) There is no reference to the alleged agreements of sale in the sale deeds; and
(3) There is no evidence in proof of either the petitioners' possession or their paying land revenue from 1969 to 1978.
6. These reasons, in my considered view, are sufficient enough to discard the plea of the petitioners. Therefore, the first contention must fail.
7. The second contention too did not find favour with respondents 2 and 3. The third respondent rejected this contention on the ground that the provisions of a Government Order cannot over ride the statutory provisions. The second respondent rejected this plea on the ground that the petitioner in Writ Petition No. 1192 of 1995 owns more than 10 acres and the petitioners in other writ petitions failed to adduce any evidence in proof of their plea that they are small farmers. No such plea is raised in any of the writ petitions. Not even a copy of G.O.Ms No. 129, Social Welfare Department, dated 13-8-1979 is filed before this Court. In the circumstances, I find it difficult to accept the second contention. It is, accordingly, rejected.
8. It is necessary to refer to the provisions of Section 6 of the Regulation for better appreciation of the third contention. It reads:
“6. Revision:— The State Government may revise any decree or order passed by the Agent, the Agency Divisional Officer or any other prescribed officer under this Regulation:
Provided that this power shall be exercised only after due notice to the parties affected by the decree or order and after giving them a reasonable opportunity of being heard.”
9. Learned counsel for the petitioners, placing reliance on proviso to the section, submits that the first respondent erred in rejecting the revision petitions without affording opportunity of being heard to the petitioners or their counsel. This submission, in my considered view, is fallacious. These are not the cases where the first respondent in exercise of its power under Sec. 6 revised the orders of the 2nd respondent and passed orders adverse to the petitioners. On the other hand, these are cases where the first respondent affirmed the orders of the 2nd respondent and refused to revise the same. No doubt, Section 6 confers power of revision on the State Government. However, proviso to Section 6 will come into play only when the State Government decides to revise any decree or order by the Agent, the Agency Divisional Officer or any other prescribed authority. According to Black's Law Dictionary, the word “revise” means:
“To review and re-examine for correction. To go over a thing for the purpose of amending, correcting, rearranging, or otherwise improving it; as, to revise statutes, or a judgment.”
10. In the present cases, the first respondent did not make any correction or amendment to the orders of the second respondent. A combined reading of Sec. 6 and proviso thereto makes it clear that the question of affording of opportunity of being heard will arise only when the State Government decides to alter, amend, correct, modify or reverse the decree or order of the Agent or the Agency Divisional Officer, as the case may be. To be more specific, proviso to Section 6 does not contemplate giving opportunity of being heard when the State Government affirms the decree or order sought to be revised. In the circumstances, the petitioners have no case to complain of violation of proviso to Sec. 6. Therefore, this contention also must fail.
11. It is strenuously urged before me that the proceedings of the first respondent dated 4-5-1984 and 14-5-1984 were not communicated to the petitioners. I am unable to accept this contention. It is clear from those proceedings that they were communicated to the petitioners' counsel Sri A. Rangacharyulu. It is well settled that communication of an order to the counsel is communication to the party. No affidavit has been filed by the petitioners' counsel Sri A. Rangacharyulu stating that those orders were not communicated to him. In the circumstances, I find no substance in the fourth contention. It is, accordingly, rejected.
12. Though the writ petitions have been filed questioning the proceedings of the first respondent dated 28-11-1994 rejecting the review petitions filed by the petitioners as not maintainable, it is not urged before me that the Regulation confers power of review on the State Government. On perusal of the Regulation, I find that no such power is conferred on the State Government. As already noted, it was admitted by the petitioners in the previous round of litigation that they were dispossessed in the year 1994. In the counter affidavit filed on behalf of the respondents, it is stated that possession of the subject lands was taken over on 4-7-1994. In V. Somalamma v. Dy. Collector, Tribal Welfare (1) 1993 (1) ALT 403 (FB) a Full Bench of this Court observed that all laws made applicable to the Scheduled areas “indicate an anxiety to safeguard the interest of the tribals in the scheduled areas and to see that the land in the scheduled areas should be in possession of tribals only”. In view of this, I see no justification to reinduct the petitioners, who are admittedly non-tribals, into possession of the subject lands at this distance of time.
13. Thus, viewed from any angle, there are no merits in the writ petitions. They are, accordingly, dismissed. Consequently, the interim directions dated 25-1-1995 permitting the petitioners to cultivate the subject lands shall stand vacated.
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