P GANGARAJU Vs. AGENT TO GOVERNMENT WEST GODAVARI

JUDGEMENT

(1.) The Petitioner is admittedly a non-tribal and is in possession of Ac. 15-60 cents in R S Nos 251,255/1 and 257/2 situated in Buttaigudem an agency tract in West Godavari district. On a report submitted by the Special Deputy Tahsildar the Special Deputy Collector (Tribal Welfare) initiated proceedings in S R No- 269/84, & 273/84 issued notice in Form E, under Rule 7 (2) of the Andhra Pradesh Scheduled Land Rules 1969 calling upon the petitioner to show cause why the petitioner should not be ejected under Section 3 (1) of the Andhra Pradesh Scheduled Areas Land Transfer Regulation (Regulation I of 1959) for short "the Regulation" read with Regulation I of 1970. The petitioner had submitted his explanation he was given a reasonable opportunity through a counsel to put forth his case and by order dated May 8, 1986 ordered of ejectment from the land on the ground that the petitioner is in possession of the land in violation of Section 3 of the Regulation and he had not established that be has a valid title and has not contravened the provisions of the Regulation. On appeal in SRA No. 23/86, by order dated February 2, 1987 the Agent to the Government West Godavari confirmed the said order which is the subject matter of assailment in this writ petition.

(2.) Sri Mangachary learned Counsel for the petitioner reiterated his contentions before the Tribunals below viz., that under Section 3 of the Regulation the tribal is a necessary party non-impleading the tribal as eo-nominee party respondent to the petition vitiates the order passed by the Tribunals below. Section 3 (1) of the Regulation reads thus :

(3.) It is next contended that the tribat shall prove in the first instance that the immoveable property situated in agency tracts has been transfered to a non - trisbal under a conveyance, etc., on proof thereof only the burden would lie on the non-tribal to establish that the transfer is not in contravention of Section 3 (1) (a) of the Regulation and then alone the presumption under Sec. 3 (1) (b) would arise Until then, the presumption would not come into vogue. In support thereof, he places reliance on Gudla Satyanarayana Vs. Special Deputy Collector, Tribal Welfare (1) 1972 (2) APLJ 173. It is seen that Section 3 (I) (a), by introducing non-obstendi clause, excludes the operation of any enactment, rule of law in force in the agency tract and declares that any transfer whether or not such a person is a Scheduled Tribe is absolutely null and void Thereby, an absolute embargo has been created for alienation of the immoveable property situated in the agency tracts. An exception in this regard is engrafted in the latter clause, viz., such transfer should be made in favour of a Scheduled Tribe or Co-operative society registered or deemed to be registered under the Andhra Pradesh Co-operative Societies Act, 1964, consisting of members solely belonging to Scheduled Tribes. Under Regulation 1 of 1970, the transfer between non-tribals inter se is also prohibited Clause (b) of Sub-section (1) of Section 3 provides presumptive rule of evidence declaring that a non-tribal in possession of the immoveable property situated in agency tracts shall be presumed to have been acquired title to the said lands either by himself or by his predecessor through a transfer made to him by a member of the - Scheduled Tribe until the contrary is established by the nod tribal. Thereby, a statutory rebuttable initial presumption has been drawn by the Legislature casting the burden on the non-tribal to establish that he/she is in possession of the immoveable property situated in the agency tract and such possession is through a valid transfer from a tribal and the title thereto was acquired only through the transfer inter vivos. The Constitutional validity of Sec. 3 (2) (b) was upheld by the Division Bench of this Court in Rama- krishna Rao & Others Vs State of Andhra Pradesh (2) W P No. 776/70 & batch, d/ Sept. 24, 1971. Thereby, the initial burden is always on the non-tribal to establish that he/she acquired valid title to the immoveable property from a tribal through a valid transfer which does not impinge upon its validity by operation of Section 3 (1) (a) of the Regulation. The reason is obvious. The tribals are mostly illiterate, ignorant and gullible people without worldly wisdom. The lands situated in agency tracts originally belonged to tribals and the plain people deprived them of their possession by several exploitive methods and legal contrivances. Naturally, the tribals on account of their indigency, illiteracy and lack of worldly knowledge suffer from the inevitable handicaps in setting UD proper pleadings or adduction of material evidence for the purpose of proof or they lack the necessary material in initial proof of the invalidity of transfer under Section 3 (1) (a) of the Regulation. The Governor in realising these obvious handicaps with which the Tribals suffer, from felt it expedient that the initial burden of proof, as a rule of evidence should be placed on the non-tribal who has in his power, control or possession, the title deeds or source of information or material evidence relating to the transfer of immoveable property in his/her/or predecessor's favour and the basis on which he/she is continuing in possession of the immoveable property in the agency tracts. Thereby, the non-tribal who knows the source of title under which he/she/or the predecessor acquired the immoveable property situated in the agency tracts is required to discharge the initial burden of proof that the transfer is not in violation of Section 3 (1) (a) and that he/she has a valid title. As stated earlier, the presumptive evidence engrafted in Sec. 3(1) (b) was upheld to be a reasonable one. The non-tribal thereby is enjoined to adduce evidence to disclose the source of his title to the immoveable property and establish that it is a valid one so that the tribal could rebut the evidence so adduced by placing the necessary material in disproof of the contention by the non-tribal. In In re Ramji's W P No. 3096/75 dated June 11, 1975, Chinnappa Reddy, J. (as he then was) held that the doctrine of adverse possession cannot be extended and the authority under Section 3(2) (a) has.no jurisdiction to go into that question Thereby, it is clear that the length of possession is not a material factor until it is established that the transfer of immoveable property situated in the agency tracts is not in contravention of Section 3 (1)(a) of the Act. In M. Pocham Vs. Agent State Govt., Adilabad (3) AIR 1978 A. P. 242 the Division Bench speaking through Sambasiva Rao, J. (as he then was) held that invalid or unlawful possessions are not protected under Section 53-A of the Transfer of Property Act. The plea of part performance available under Sec. 53-A is inapplicable to the proceedings under Sec. 3 (1) (a) of the Regulation. Even validation of the oral sales under Section 50-B of the Andhra Pradesh (Telangana Area) Tenancy and Agricultural Lands Act, 1950, also are not applicable to the proceedings under the Regulation. In G. Narasa Reddy Vs. Collector, Adilabad (4) 1981-11 APLJ 260 the Full Bench speaking through Ratna- chandra Rao, J. (as he then was) held that;