MANYAM GANGARAJU Vs. DEPUTY COLLECTOR RAMPACHODAVARAM EG DIST

JUDGEMENT

(1.) The Petitioners are 10 in number. They seek Writ of Mandamus directing the respondents not to proceed with the enquiry under Sec 3 of the A.P. (Scheduled Areas) Land Transfer Regulation 1 of 1959 (for short "the regulation'') pending appeals before the Settlement authorities under the A.P, Scheduled Areas Ryotwari Settlement Regulation No. 2 of 1979 (for short the Ryotwari Settlement Regulation).

(2.) The case of the Petitioners as set out in the affidavit is that their lands are situated in A. Veeravaram, Pudipalli, Ganugulagondi. Chinnaramanaiahpeta and Devipatnam within the scheduled area in Rampachodavaram taluk, East Godawari District. They are situated in Pitapuram and Dandangi Estate which were notified under Sac.3 of the A.P. (Andhra Area) Estates Abolition and Conversion into Ryotwari Act 26 of 1948. The proceedings for issuance of pattas under Sec. 7 of the Ryotwari Settlement Regulation are either pending before the original authority or on rejection pending before the appellate authority. While the proceedings are thus pending, the 2nd respondent has issued a notice calling upon the petitioners to appear before him for an enquiry under Sec.3 of the Regulation The enquiry under the Ryotwari Settlament Regulation is more comprehensive. There the respondents should appear and contest the claim of the petitioners for issuance of the ryotwari patta Once the patta is granted under Sec.7 of the Ryotwari Settlement Regulation, it is final and conclusive. It is binding on the authorities under the Regulation. Therefore, the enquiry under the Regulation is a needless exercise and in view of the pendency of the proceedings before the Settlement authorities under the Ryotwari Settlement Regulation, the enquiry under the Regulation is without jurisdiction and is redundant. Counter affidavit has been filed by the 1st respondent. It is stated that under Sec.5 of the A ? Mahals (Abolition and Conversion into Ryotwari) Regulation, 1969, (Regulation 2 of 1969) a npn tribal is not entitled to patta unless he is in lawful possession for continuous specified period before the notified date. The notification was issued on December, 26, 1970 and such persons who were in possession ten years preceding that date are entitled to regular pattas. The petitioners have purchased the lands after February 3, 1970. The transactions are void under Sec 3 of the Regulation as amended by Regulation 1 of 1970. The Petitioners claims were enquired into by the Special Deputy Tahsildar, Devipatnam. Petitioners 1, 3 to 5, and 8 to 10 being in possession filed their claims under the Regulation and others have not filed their claims at all. The respondents under the Regulation have got exclusive jurisdiction In the preliminary enquiry the claims of the petitioners were found to be not correct for issuance of the ryotwari patta. The petitioners are all nontribals and therefore they are not entitled to be in possession of the lands in the tribal area. Though the jurisdiction under the Regulation and the Ryotwari Settlement Regulation are concurrent there is no prohibition for the authorities under the Regulation to make an enquiry. The enquiry under the Regulation is comprehensive in nature whereas the authorities under the Ryotwari Settlement Regulation are bound by the ordera passed under the Regulation and therefore the respondents have jurisdiction to proceed with the enquiry.

(3.) Mr. Duba Mohan Rao, learned counsel for the petitioners has contended that under the Ryotwari Settlement Regulation there is an elaborate procedure provided for consideratinn of claims qf a ryot for issuance of the ryotwari patta by the Settlement Officer and against that there is a right of appeal to the Director and there is a further right of appeal to the Board. The patta granted Under Sec.7 of the Ryotwsri Settlement Regulation is conclusive and binding and once the patta granted under Sec. 7 becomes final the authorities under the Regulations are devoid of jurisdiction to enquiry into once over. The question whether the petitioners are non-tribals, whether they are entitled to continue in possession or not, in view of the comprehensive nature of the enquiry contemplated under the Ryotwari Settlement Regulation the authorities under the Regulation are devoid of jurisdiction to enquiry into the claims either on an application or suo-muto. The question therefore is whether the authorities under the Regulation have jurisdiction when the enquiry under the Ryotwari Settlement Regulation is pending To appreciate this contention it is necessary to look into the relevant provisions under the Regulation and the Ryotwari Settlement Regulation. It is not in dispute that the lands in dispute are situated in the Agency tracts and the petitioners are non-tribals. Under Sec.2 (g) of the Regulation, "transfer" has been defined to mean 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 of such mortgage, lease, sale, gift, exchange or other dealing. Sec. 3 of the Regulation prohibits the transfer of immoveable property which is as follows:- (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 persons, who is a member of a Scheduled Tribe or a society registered or deemed to be registered under the A P Co-operative Societies Act, 1964 (Act 7 of 1964) which is composed solely of members of the Scheduled Trlbes." (b) Until the contrary is proved any immovable property situated in the Agency tracts and in the possession of 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". (Other provisions are not necessary for the purpose of this case). A reading of these two clauses would manifest that not withstanding anything contained in any other law in force, the transfer of immovable property situated in the Agency tracts by whatever means known to law shall be absolutely null and void, unless such transfer is made in favour of a member of a Scheduled Tribe and a person in possession shall be presumed to have acquired such possession through a transfer made to him by a member of a Scheduled Tribe. The area of consideration before the authorities under the Regulation is, whether he is a Scheduled Tribe and whether the non tribal has valid title to be in possession. If he has no valid title then such a transfer shall be null and void and his possession wili not be countenanced in law. In view of the admitted fact that the lands are situated either in Mahaila as contended by the Respondents in the counter or Regulation 4 of 1951, the fact remains that the lands are situated in an estate within the meaning of Sec.3 (2) of the A.P. (Andhra Area) Estates Land Act, 1908 end the totality of the estate stands vested in the Government, unless the person in possession has a right and obtained a ryotwari.patta thereunder. Sec. 7 of the Ryotwari Settlement Regulation confers pawer on the Settlement authorities to grant ryotwari patta in respect of ail cultivable lands which were properly included or which ought to have been properly included in his holding and which are not lands in respect of which any other person is entitled to a ryotwari patta under any other law for the time being in force in the State relating to grant of ryotwari patta. Second proviso (b) provides thus; "such possession or occupation shall not be void or Illegal under the Andhra Pradesh Scheduled Areas Land Transfer Regulation, 1959 or any other law for the time being in force". Thus the possession of a ryot, though is a non-tribal on his grant of ryotwari patta, his possession is protected by operation of Sec. 7(1) proviso (b) of Ryotwari Settlement Regulation. The patta ''shall be granted to such a ryot under Sec. 9 of the Ryotwari Settlement Regulation and there is a right of hierarchy of appeals provided under Sec. 9 (3) against the orders passed by the Settlement Officer under Sec. 9 (2). Under Sec, 15 thereof the Ryotwari Settlement Regulation shall have effect notwithstanding anything inconsistent there with in the Andhra Pradesh (Andhra Scheduled Areas) Estates (Abolition and Conversion into Ryotwari) Regulation. 1951 and A.P. (ASA) Estates Abolition and Conversion into Ryotwari) (Amendment) Regulation, 1960 or any other law, custom, usage or agreement for the time being in forco, or any decree or order of a Court, tribunal or other authority.