C SARADA BAI Vs. GOVERNMENT OF ANDHRA PRADESH

JUDGEMENT

(1.) THE 1st petitioner Smt.C. Sarada Bai, resident of Inda village, Utnur taluk, and the 2nd petitioner Jaivantha Rao, son of Tukaram, minor represented by father Tukaram claim to be Scheduled Tribes and according to them, they purchased the lands from Sri Mesram Indru, son of Chitru, resident of Gothi in Utnur taluk of Adilabad Dist., for Rs.7,000/- and Rs.6,500/- respectively, and they presented their documents for registration under Sec. 17 of the Indian Registration Act before the Sub Registrar, Adilabad, on December 16, 1978. THE case of the petitioner is that the registering authorities are refusing to exercise the power of registration on the solitary ground that pursuant to Sec.3-B of the Andhra Pradesh (Scheduled Areas) Land Transfer Regulation, 1959, as amended in Regulation No.1 of 1978 (for short "the Regulation") no rules have been made which contemplates of issue of rules with regard to enquiry into the status of the tribal transferee. THErefore, the registration was kept in abeyance. THE petitioners contend that the action on the part of the respondents is a failure to exercise the power under the Registration Act, 1908. THE petitioners cannot be made to await the making of the rules in affecting the transfer of their property. THErefore, they seek a writ of Mandamus compelling the respondents to afiact the registration of document No.2 etc. THE question is whether the respondents are justified in refusing to register the document. Sec.3 of Regulation No.1 of 1959 postulates that 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, shal 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 under the Andhra Pradesh Co-operative Societies Act, 1964 (Act No.7 of 1964), which is composed solely of members of the Scheduled Tribes. THErefore, Sec.3 prohibits a transfer notwithstanding anything contained in any other law, in the Agency tracts of immovable property in favour of any person other than a Scheduled Tribe or a co-operative society solely composed of Scheduled Tribe members. Sec.3-B posits thus: "Notwithstanding an/thing contained in the Registration Act, 1908, no document relating to transfer of immovable property situated in the agency tracts shall be registered by any registering officer appointed under the said Act, unless the person presenting the document furnishes a declaration by the transferee in the prescribed form which shall be subject to verification in the prescribed manner, that the transferee 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, which is composed solely of members of the Scheduled Tribes". A conjoint reading of both Sec.3 and Sec.3-B would lead to the following conclusions: (1) Notwithstanding anything contained in any other Jaw for the time being in force, no transfer of immoveable property situated in Agency tracts shall be affected except in favour of Scheduled Tribes. (2) THE transferee shall furnish a declaration in the prescribed form that the transferee is a member of the Scheduled Tribes or a member of a Society solely composed of the Scheduled Tribes and duly registered under Act No.7 of 1964 (A.P.Co-operative Societies Act). (3) For the purpose of enabling the registering authority to know that the transferee is a Scheduled Tribe, Sec.3-B contemplate of a proforma being prescribed, declaring that the transferee is a Scheduled Tribe for verification. In case of a doubt being entertained by the registering authority that the transferee in fact is a Scheduled Tribe, or not it is to be verified in the prescribed manner. In the context, the prescription of the proforma does arise. It is true that the respondents are endeavouring to make a rule prescribing a proforma under which enquiry is got to be made in that regard in case the registering authority entertains a doubt that the transferee is in fact a Scheduled Tribe or not. THEn basing on the particulars furnished under the proforma, the enquiry has got to be made within a reasonable time and then affect the registration. In this case, the mere fact that proforma has not been prescribed does not take away the power of the registering authority, but the registering authority himself can make an enquiry within a reasonable time. Obviously, the proforma intended to prescribe the name of the transferee, his father, residence and such other material particulars. It is a sad State of affair that though amendment to Sec.3-B was introduced as early as 1968, till date no rules have been made, prescribing the proforma and the manner of enquiry. But on that ground, a citizen cannot be deprived of his right to affect transfer of his immoveable property for his own domestic reasons. THErefore, I hold that the inaction on the part of the respondents is not warranted. Accordingly, there shall be a direction to the respondents first to make an enquiry with regard to the status of the transferees whether in fact they are the Scheduled Tribes in the agency tracts. This enquiry shall be completed within a period of six weeks from the date of receipt of this order and in case they are satisfied that the petitioners are Scheduled Tribes then affect the registration according to law.

(2.) THE writ petition is accordingly allowed with costs. Advocate's fee Rs.150/-. W.P. allowed.