Madhava Reddy, C.J..:-
(1) This is a petition under article 226 of the constitution of india to quash the order made by the special deputy collector, tribal welfare, adilabad, the 3rd respondent herein, and confirmed by the collector, adilabad the 2nd respondent herein, and the state of andbra pradesh, the 1st respondent herein, and to issue a writ of mandamus restraining them from taking any action to nullify the transfer of ownership in favour of the petitioner under the provisions of the andhra pradesh (telangana area) tenancy and agricultural lands act, 1950 (hereinafter referred to as 'the tenancy act') or under the provisions of the andhra pradesh scheduled areas land transfer regulation, 1958 (hereinafter referred to as "the land transfer regulation).
(2) A few facts necessary to appreciate the contentions raised in this writ petition may be briefly stated: the petitioner's father, a non - tribal, who was in possession of the land of an extent of ac. 8. 09 guntas in s. No. 150 of kasipet village, in luxettipet taluk of adilabad district which is an agency tract within the meaning of section 2 (a) of the land transfer regulation, was declared "a protected tenant" under the provisions of the tenancy act. On his death, the right of protected tenancy devolved on the petitioner under section 40 of the tenancy act and the petitioner was continuing in possesion thereof as a protected tenant. The provisions of section 38 - e of the tenancy act were extended to adilabad district by way of a notification with effect from 1st january, 1973 and as a consequence thereof the ownership of the land stood transferred to the petitioner. The special deputy collector. Tribal welfare, adilabad (3rd respondent) , purporting to act as an assistant agent under the provisions of land transfer regulation issued a notice under section 3 of the said regulation as to why the petitioner should not be treated as an illegal and unauthorised occupant and why he should not be evicted. The' petitionei represented the above facts and pleaded that as he was in authorised possession of the land in question, he. Should not be evicted. However, rejecting the petitioner's pleas, the 3rd respondent, by his order dated 7th july, 1976, directed his eviction. The petitioner carried the matter in appeal to the 2nd respondent; but the appeal was alse dismissed on "th may, 1977. The petitioner further carried the matter in revision to the government but the government dismissed the same on 14th october, 1977. It is these proceedings that ate called in question in this writ petition.
(3) The petitioner claims that his father was declared a protected tenant in respect of the land in question and that, after his death, he has been in possession of the land as a protected tenant and, therefore, he has acquired the right of protected tenancy under the provisions of the tenancy act. The ownership of the land stood transferred to him under section 38 - e of the tenancy act. There was no transfer in his favour within the meaning of section 2 (g) of the land transfer regulation and as such, no proceedings under the land transfer regulation could be taken against him much lest couid he be treated as an unauthorised occupant of the land liable to be evicted under section 3 of the land transfer regulation,
(4) It is common ground that the tenancy act applies to adilabad district in which this land is situated the tenancy act came into force on 10th june, 1950 and at that point of time, the andhra pradesh (telangana tribal areas) regulation, 1359 f. (regulation iii of 1359 f). Which came into force on 31st azur 1359 f. Corresponding to 26th october, 1949, wai in force. Under that tribal areas regulation, there is no prohibition against transfer of a land held by a tribal in favour of a non - tribal. However, power is vested in the government under section 3 of that tribal areas regulation to direct that any act, regulation, or rule for the time being in force in the state shall not apply to any notified tribal areas specified in the notification or shall apply thereto with such omissions and modifications as may be so specified. However, in view of such power vested in the government, the tenancy act was not amended or modified. It applied to tribal areas including adilabad and non - tribal areas uniformly. So much so, if a person was actually cultivating the land of another person during any of the six years mentioned in section 34 of the tenancy act or on 10th june, 1950, the law recognised him as a protected tenant. There is no dispute that the petitioner and his father were in possession and cultivating the land and that their names were recorded in the khasra pahani prepared under the provisions of the tenancy act as cultivating tenants and a protected tenancy certificate was issued to the petitioner's father. This protected tenancy certificate, which was issued under the provisions of the tenancy act, has become final, for it was not challenged either by a tribal nor was it set aside by any authority under the tenancy act. When, by virtue of the notification issued under section 38 - e the ownership of the land stood transferred with effect from 1st january, 1973 in favour of the petitioner, who continued to 'hold' the land as a protected tenant, he became the owner thereof, it is this transfer that is said to be in contravention of the provisions of the land transfer regulation which was extended to adilabad district with effect from 1st december, 1963.
(5) We have, therefore, to first consider whether the vesting of ownership in the protected tenants holding the land on 1st january, 1973 would amount to a "transfer" within the meaning of section 2 (q) of the land transfer regulation which reads as follows : - "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, sale, gift exchange or other dealing. " a close reading of the definition would make it abundantly clear that the transfer envisaged by the land transfer regulation is a transfer inter vivos and the result of the act of the parties. "testamentary disposition" is specifically excluded from the definition of "transfer". Under the regulation, transfer can only be the result of the persons entering into a contract relating to immovable property by way of mortgage, lease, sale, gift, exchange, or some other dealing by the parties. The transfer of onwaership effected under section 38 - e and the vesting of such ownership in the protected tenant is not with the consent of parties or the result of any contract between the landlord and the protected tenant, but is by virtue of the operation of law i. E section 38 - e of the tenancy act. If the conditions prescribed under section 38 - e are satisfied, the notification issued applying section 38 - e to the particular area would automatically vest ownership in the protected tenant. The learned government pleader, mr. Ramakrishna, however, contends that, though the expression "transfer" may not squarely fall within the inclusive definition of lease, sale, gift or exchange, the words "any other dealing with immovable property" are comprehensive enough to include such a vesting of ownership. We are unable to agree with this contention, firstly for the reason that, if lease, sale, gift or exchange of property is effected as a result of the contract between the parties, the expression "any other dealing with immovable property" following the said terms must be read "ejusdem generis" and also must be a dealing with immovable property by the parties. Secondly, if an anactment envisaged the transfer of ownership by one and the vesting of the same on the other not by virtue of any contract between the parties but by operation of law, it could not have been the intention of the legislature to nullify such transfer by another enactment. If it intended to do so, either the word "transfer" should have been defined so as to include transfer by operation of law or otherwise exprestly brought transfers affected under section 38 - e within the - purview of land transfer regulation. Although section 3 of the land transfer regulation has a overriding effect, in our view, it could never take in transfers, by operation of law. That being so, no proceedings under the land transfer regulation could have been taken against the writ petitioner, who was a protected tenant long prior to the extension of the land transfer, regulation to adilabad district and who had acquired the rights of ownership by operation of law.
(6) The learned government pleader, however, contended that the protected tenancy certificate itself is non - est therefore, the ownership of the land could not vest in the petitioner by virtue of any notification under section 38 - e of the tenancy act he contends that, in the tribal area, only the agent or assistant agent has jurisdiction to exercise the powers, civil revenue and criminal, under any enactment. It is pointed out that, under the tribal areas regulation, 1359 f. , a notification no. 3272 - b dated 9th march, 1950 was issued appointing social service officer (special tribes officer) and the junior social service officer, adilabad, as the assistant agents for such notified tribal areas of adilabad district as may be defined for each by the agent under rule 3 of the notified tribal agents rules 1359 f. , and directing that, till the jurisdiction of the said two assistant agents is so defined by the agent, the special social service officer (special tribes officer) shall continue to be the assistant agent for the notified tribal area of the adilabad district. The agent, the assistant agents and the panchayats were vested with jurisdiction to try criminal, civil and revenue cases. But it would be seen that, while the agent or assistant agents were vested with the jurisdiction the special jurisdiction vested in the tahsildars and the tribunals under the respective provisions of the tenancy act was not withdrawn. The tenancy act is a special enactment, which vested jurisdiction in specified authorities to take proceedings under the said act and exercise the specific powers vested in them under sections 32, 34 and 38 - e of the act. The fact that assistant agents were vested with certain jurisdiction under the said notification does not debar the authorities constituted under the tenancy act from exercising the jurisdiction vested in them under the said enactment. Nor does the protected tenancy certificate issued under the provisions of the said act by these authorities become non est so at to be ignored by any authority exercising jurisdiction under the tribal areas regulation, 1359 f. , or the land transfer regulation, 1959, which which was extended to this area subsequently. There is no provision in these enactments which renders any action taken under the tenancy act, which is a special enactment to nullify it or to ignore the certificates issued thereunder only the authorities that have now been 'vested with the jurisdiction may take appropriate action in accordance with law including the tenancy act. When once it is held that, at the time when the tenancy act came into force, the non - tribals were not prohibited from taking the lands on lease in a tribal area even if a tribal and that, under the said law, they were granted protected tenancy certificates by the tahsildar, who is the competent authority under the tenancy act, those certificates cannot be ignored or treated as non est. It is nobody's case that the petitioner or his father was not in possession of the land in question during that period. Assuming that the petitioner or his father was not entitled to the grant of a protected tenancy certificate, the certificate granted under the tenancy act could not be just ignored and any person aggrieved could only take steps to get it set aside in accordance with the provisions of the said act. No steps were taken either by the authorities suo motu or by the parties, who may have been affected by the grant of the certificate to the petitioner, to cancel such certificate within time. That certificate cannot be set aside by taking any proceedings under the land transfer regulation, which came into force long after the grant of the protected tenancy certificate. The act can only operate prospectively, as held by the full bench of this court in g. Narsa reddy v. Collector, adilabad. It is pertinent to note that neither the president nor the governor in exercise of the powers vested in them under para. 5 of schedule v of the constitution of india have modified the tenancy act or the land tenancy act or the land transfer regulation in its application to adilabad district where the land in question is situated. If protected tenancy certificate cannot therefore, be ignored or set aside, then, by virtue of the provisions contained in section 38 - e of the lenancy act and the notification issued thereunder, the ownership of the land stands transferred to and vest in the petitioner and as that does not amount to a "transfer" within the meaning of section 2 (g) of the land transfer regulation,no proceedings under the land transfer regulation can be taken. The proceedings, which commenced with the issuance of a notice by the assistant agent and culminated in the passing of the order of eviction by him on 7th july, 1976 and the order of the government dated 14th octobe, 1977, are, therefore, wholly without jurisdiction and illegal. These orders are accordingly quashed and respondents are hereby restrained from questioning the ownership of the petitioner, which stood transferred to him under section 38 - e of the tenancy act. It is brought to our notice that, pursuant to these orders now quashed, the petitioner has been evicted from the land. Now that the orders are quashed, the authorities shall restore status quo ante by putting the petitioner in possession within two weeks from the date of receipt of this judgment.
(7) The writ petition is accordingly allowed and a direction shall issue to the respondents to put the petitioner in possession of the land in question within two weeks from the date of receipt of this judgment. In the circumstances, there will be no order as to costs. Advocate's fee rs. 150 writ petition allowed.