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Jalagam Sitarama Rao and anr. Vs. the State of Andhra Pradesh - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtAndhra Pradesh High Court
Decided On
Case NumberTr. Civil Misc. Petn. Nos. 5301 and 7231 of 1977
Judge
Reported inAIR1978AP82
ActsCode of Civil Procedure (CPC), 1908 - Sections 24; Agency Rules - Rule 12
AppellantJalagam Sitarama Rao and anr.
RespondentThe State of Andhra Pradesh
Appellant AdvocateM.R.K. Chowdary and ;V. Rajendra Babu, Advs.
Respondent AdvocateGovt. Pleader for Commercial Taxes
Excerpt:
civil - transfer of suits - rule 12 of agency rules and section 24 of code of civil procedure, 1908 - suit against government and agent - reasonable apprehension of bias compelled plaintiff-agent to seek transfer of such suit to court other than agency court - agency court vested with jurisdiction to dispose civil suits - high court competent to transfer matters pending before subordinate civil courts - authority of agent himself to apply for transfer of suits does not restricts competency of high court to direct transfer of suits pending before agency courts - prohibition of transfer of suits against member of scheduled tribe from agency court cannot be extended to all matters - agency courts admittedly subordinate to high court and holds civil jurisdiction - suit against agent directed.....madhava reddy, j.1. these two transfer c. m. ps. under s. 24 of the civil p. c. are for the transfer of the suits from the agency court to a civil court. tr. c.lm. p. no. 5301/77 is filed for transfer of the suit, o. s. no. 5/77 on the file of the agent to government at khammam to the court of the subordinate judge at khammam. tr. c. m. p. no. 7231/77 is for the transfer of o. s. no. 8/76 on the file of the agent to the state government (district collector), warangal to the file of the subordinate judge's court or district judge's court at warangal.2. both the suits are filed against the state of andhra pradesh represented by the district collector who is also designated as the agent to the government in the respective areas. for the disposal of these petitions, it is enough to state the.....
Judgment:

Madhava Reddy, J.

1. These two transfer C. M. Ps. under S. 24 of the Civil P. C. are for the transfer of the suits from the Agency Court to a Civil Court. Tr. C.lM. P. No. 5301/77 is filed for transfer of the suit, O. S. No. 5/77 on the file of the Agent to Government at Khammam to the Court of the Subordinate Judge at Khammam. Tr. C. M. P. No. 7231/77 is for the transfer of O. S. No. 8/76 on the file of the Agent to the State Government (District Collector), Warangal to the file of the Subordinate Judge's Court or District Judge's Court at Warangal.

2. Both the suits are filed against the State of Andhra Pradesh represented by the District Collector who is also designated as the Agent to the Government in the respective areas. For the disposal of these petitions, it is enough to state the facts in Tr. C. M. P. No. 5301/77. That suit is filed for an injunction against the Government and in particular against the Agent to the Government restraining him from interfering with the possession of the petitioner over the lands situated in an agency area. The Agent is impleaded as a party-defendant in the suit. The transfer of the suit is sought on the ground that in the suit certain allegations are made against the Agent himself and that the action of the Agent in seeking of the powers conferred on him under the Scheduled District Act and the Agency Rules made thereunder, read with the provisions of the Andhra Pradesh Scheduled Areas Land Transfer Regulation, 1959 furnishes the cause of action for the suit. The plaintiff-petitioner apprehends that justice would not be done and it is therefore inexpedient that the suit should be tried by the Agent.

2-A. A preliminary objection to the maintainability of the petition under S. 24 of the Civil P. C. is raised by the learned Government pleader appearing for the respondent in these two petitions.

3. It may be stated at the outset that on the facts of these cases in particular the respondent has not opposed the transfer of the suits from the file of the particular Agency Court. The respondent opposes only on the ground that the High Court cannot invoke its jurisdiction under S. 24 C. P. C. to transfer a suit from an Agency court. The Government contends that C. P. C. does not apply to Agency Area or Agency Courts and that in any event the transfer of suit pending in an Agency Court could be made only to another Agency Court but not to a Civil Court. On the other hand the petitioner contends that the Civil P. C. is in force in the territory in which the suits are filed and the power vested in the High Court under S. 24 C. P. C. is not curtailed in any manner by the Scheduled Districts Act or the Agency Rules made thereunder so as to prohibit the transfer of a suit pending in an Agency Court to a Civil Court. It is therefore necessary to examine firstly whether the Code of Civil Procedure is in force in the territory in which the Agency Court in which the present suits have been filed is situate, and secondly if there is anything in the Code of Civil Procedure or the Scheduled District Act, the Agency Rules made thereunder or the Andhra Pradesh Schedule Areas Land Transfer Regulation, which curtails the power vested in the High Court under S. 24 C. P. C. either expressly or by necessary implication to transfer a suit pending in the Agency Court to a Civil Court.

4. One of the suits, as already noticed above, is pending before the Agent to the Government at Khammam and the other before the Agent to Government at Warangal. These suits were instituted in the years 1975 and 1976 respectively. The Civil P. C. as amended by Amendment Act 104 of 1976 came into force on 1st February, 1977. These petitions for transfer have been filed subsequent to this amendment. S. 1 (3) and (4) of the amended Code of Civil Procedure reads as follows:

'1. (3) It extends to the whole of India except:-

(a) the State of Jammu and Kashmir;

(b) State of Nagaland and the tribal areas;

Provided that the State Government concerned may, by notification in the Official Gazette, extend the provisions of this Code or any of them to the whole or part of the State of Nagaland or such tribal areas, as the case may be, with such supplemental, incidental or consequential modifications as may be specified in the notification.

Explanation:- In this clause, 'tribal areas' means the territories which, immediately before the 21st day of Jan. 1972, were included in the tribal areas of Assam as referred to in para 20 of the sixth Schedule to the Constitution.

(4) In relation to Amindivi Islands, the East Godavari, West Godavari and Visakhapatnam Agencies in the State of Andhra Pradesh and the Union territory of Lakshadweep, the application of this Code shall be without prejudice to the application of any rule regulation for the time being in force in such islands, Agencies or such Union territory, as the case may be, relating to the application of this case.'

It would be seen that by virtue of sub-sec. (3) of S. 1, the Civil P. C. extends to the whole of India except (among others) of the 'tribal Areas.' The areas which are deemed to be 'Tribal Areas for the purposes of sub-sec. (3) of Sec. 1, are specified in the Explanation.' 'Tribal Areas' do not comprise of every area where there are tribals, but only such of those areas which immediately before the 21 day of Jan. 1972, were included in the tribal areas of Assam as referred to in para 20 of the sixth Schedule to the Constitution. However, sub-sec. (4) of S. 1 declares that in relation to the territories mentioned therein, the application of the Code shall be without prejudice to the application of any rule or regulation for the time being in force in such Islands, Agencies or such Union territories. The territories referred to therein, so far as the State of Andhra Pradesh is concerned, are East Godavari, West Godavari and Visakhapatnam Agencies. It would thus be noticed that no portion of Khammam District or Warangal district falls within the exceptions specified in Cl. (A) or (b) sub-sec. (3) or (4) of S. 1 C. P. C. Therefore, the Code of Civil Procedure by virtue of the territorial extent defined under S. 1 of the Act, applies to Khammam and Warangal Districts of Andhra Pradesh as well. S. 4 of the Code however declares that in the absence of any specific provision to the contrary, nothing in this Code shall be deemed to limit or otherwise affect any special or local law now in force or any special jurisdiction or power conferred, or any special form of procedure prescribed, by or under any other law for the time being in force. S. 5 (1) and (2) of the Code further declares as follows:-

'5. Application of the Code to Revenue Courts:-

(1) Where any Revenue Courts are governed by the provisions of this code in those matters of procedure upon which any special enactment applicable to them is silent, the State Government may, by notification in the Official Gazette, declares that any portions of those provisions which are not expressly made applicable by this Code shall not apply to those courts, or shall only apply to them with such modifications as the State Government may prescribe.

(2) 'Revenue Court' in sub-sec. (1) means a Court having jurisdiction under any local law to entertain suits or other proceedings relating to the rent, revenue or profits of land used for agricultural purposes, but does not include a Civil Court having original jurisdiction under this Code to try such suits or proceedings as being suits or proceedings of a Civil nature.' Thus, in respect of Revenue Courts which are governed by the Civil P. C. in matters upon which the Special enactment is applicable to them is silent, Government is vested with the power to declare that all or any portion of those provisions of the Civil P. C. shall not apply to those courts. It may be stated that apart from what is contained in the Agency Rules which are framed under the Scheduled District Act, there is no other notification which either expressly applies the provisions of the Code of Civil Procedure or excludes the provisions or modifies the provisions of the Civil P. C. How far the provisions contained in the Agency Rules modify the provisions of the Civil P. C. in their application to the Agency courts themselves, does not strictly fall for consideration in these petitions. However, their impact on the power of the High Court to exercise its jurisdiction under S. 24 of the Civil P. C. to transfer a case pending before an Agency Court to any other Agency Court or Civil Court requires to be considered by us.

5. At the present juncture, it would be sufficient to note that the Civil P.C. in view of the territorial extent defined by sub-secs. (3) and (4) of S. 1 of the Act, applies to the Districts of Khammamas well as Warangal irrespective of whether that area of Khammam District and that area of Warangal District with respect to which the petitions are filed are within or beyond the agency area of Khammam and Warangal respectively.

6. Section 3 of the Civil P.C. declares that for the purpose of the Code, the District Court, and every Civil Court of a grade inferior to that of a District Court, and every court of small causes is subordinate to the High Court and District Court. But what is a 'Civil Court' is not defined in the Code.

7. Section 9 of the Code states that the Courts shall have jurisdiction to try all suits of a civil nature excepting suits of which their cognizance is either expressly or impliedly barred. Where a right to property is contested that is deemed to be a suit of Civil nature. It is not disputed in these petitions that the suits filed by the plaintiffs-petitioners are with respect to immovable property, the transfer of which, according to the provisions of the Andhra Pradesh Scheduled Areas Land Transfer Regulations, 1959. Where right to the land situated within an agency court as laid down in the Schedule District Act and the Agency Rules made thereunder. It would be convenient to refer at this stage to the said enactments and the Rules.

8. The Schedule Districts Act, 1874, which was in force in the former Madras Presidency was later extended to the State of Andhra Pradesh.

9. The Agency Rules made thereunder were also amended under the Andhra Pradesh Regulation II of 1963 and the came into force on 1-12-1963. By virtue of this amendment, the Andhra Pradesh Schedule District Act and the Andhra Pradesh Agency Rules were enforced in the Districts of Adilabad, Warangal, Khammam and Mahaboob Nagar. The Schedule District Act itself does not contain any provisions declaring that the Civil P.C. would apply to the Schedule Districts or areas or tracts therein or the Courts constituted thereunder. S. 6 authorises the local Government to appoint Officers and regulate their procedure from time to time. It also empowers it to define the jurisdiction of the officers and their powers and duties. Section 7 authorises continuance of the existing rules and the officers within the said area. Section 3 authorises the local Government to notify in the local gazette from time to time what enactments are actually in force in any of the Scheduled Districts or in any part of such Districts. Upon such a notification being issued the particular enactment shall be deemed to be in force or not in force according to tenor of such notification. Section 2 declares that the enactments mentioned in the second schedule shall be replaced. Section 5 authorises the extension of the enactments in force in any part of the territory of India to the Scheduled Districts. Section 5A authorises the modification of those enactments in their applications to the Scheduled Districts. In exercise of these powers, the Code of Civil Procedure has not been expressly extended to the Scheduled Districts nor declared to be not in force; nor is it applied with any modifications to the scheduled Districts. However, under the Agency Rules, framed in exercise of powers conferred on the Governor under S. 6 of the Scheduled Districts Act while stating the authorities shall have power to administer criminal and civil justice, it is declared under R.3 that the Courts shall, subject to the provisions contained in the Agency Rules, have jurisdiction to try all suits of civil nature excepting suits of which their cognizance is either expressly or impliedly barred. The procedure prescribed under Rr. 5 to 28 is akin to the procedure laid down under the Code of Civil Procedure , but in some material aspects it is made much more simple. We are however not concerned in these petitions with the question as to what procedure would govern the proceedings before any Agency Court. Suffice to note that none of these rules except Rr.11 and 12 refer to the power to transfer proceedings pending in an Agency Court. They do not refer to the power vested in the High Court under S. 24 of the Code of Civil Procedure . None of these rules, except Rr. 12, 48 and 49 refer to the High Court. The reference to the High Court under R.12 is in the context of Transfer of a suit from an Agency Court to a Civil Court at the instance of the Agent. The reference to the High Court under R.48 is in the context of a further appeal to the High Court from a decree passed by the Agent to the State Government on appeal from an original decree passed by any Court subordinate to him, on grounds specified in S. 100, Civil P.C. ., and R.49 provides for an appeal to the High Court from every original decree passed by the Agent to the State Government. None of the provisions in the Scheduled District Act and Rules made thereunder specifically curtail the power vested in the High Court under S.24 of the Civil P.C.

10. We may therefore now examine the scope and ambit of S. 24 of the Civil P.C. which reads as follows:-

' 24. General power of transfer and withdrawal:

(1) On the application of any of the parties and after notice to the parties and after hearing such of them as desired to be heard, or of its own motion without such notice, the High Court or the District Court may at any stage ;

(a) transfer any suit, appeal or other proceedings pendings before it for trial or disposal to any Court subordinate to it and competent to try or dispose of the same, or

(b) Withdraw any suit, appeal or other proceeding pending in any Court subordinate to it, and

(i) Try or dispose of the same; or

(ii) transfer the same for trial or disposal to any Court subordinate to it and competent to try or dispose of the same; or

(iii) re- transfer the same for trial or disposal to the court from which it was withdrawn.

(2) Where any suit or proceedings has been transferred or withdrawn under sub-s. (1), the Court which is thereafter to try or dispose of such suit or proceeding may subject to any special directions in the case of an order of transfer either re-try it or proceed from the point at which it was transferred or withdrawn.

(3) For the purposes of this Section:

(a) Courts of Additional and Assistant Judges shall be deemed to be subordinate to the District Court;

(b) 'Proceedings' includes a proceeding for the execution of a decree or order;

(4) The Court trying any suit transferred or withdrawn under this section from a Court of Small Causes shall, for the purposes of such suit, be deemed to be a Curt of Small Causes.

(5) A suit or proceeding may be transferred under this section from a Court which has no jurisdiction to try it'.

11. Section 24, among others, empowers the High Court to transfer any suit, appeal or other proceeding pending in any subordinate Court to any Court subordinate to it and competent to try or dispose of the same. For the exercise of this power by the High Court, the suit, appeal or other proceeding must be pending before a Court subordinate to the High Court.

12. It is therefore necessary to examine whether the Agent to the Government before whom the suits in question are pending is a ' Court Subordinate to the High Court'.

13. The Agent before whom the suits are pending is an authority constituted under S. 6 of the Scheduled Districts Act and is vested with the jurisdiction to administer civil and criminal justice. The district Collectors, Khammam and Warangal respectively are designated under R.1 of the Andhra Pradesh Agency Rules, as Agents to the State Government and are also constituted as the ' District Judges' within the Agency tracts included in their respective districts. Under sub-r. (2) of R.1, the Agent to the Government is vested with the same powers as are vested in the District and Revenue Courts. Rule 3 empowers the Courts to try all suits of a civil nature except the suits of which their cognizance is either expressly or impliedly barred. In trying the cases, the Agents are required to follow the procedure laid down under Rr.5 to 48 . From every decree made by the Agent, an appeal is provided under R.49, to the High Court. If the decree is passed by the Agent to the Government in an appeal from an original decree passed by a Court subordinate to him, a second appeal lies to the High Court under R.48 of the grounds specified in S. 100. C.P.C. An Agent to the State Government is empowered under R. 54 to review his own judgment. Further, under R. 59, all petitions against the proceedings of the Agent to the Government in respect of matters not otherwise provided for in the rules must in the first instance be submitted to the State Government which may, if necessary, refer them to the High Court. Thus, while disposing of the suits of civil nature, the Agent is required to follow the procedure which is similar in many respects to the procedure laid down in the Civil P.C. The decree that is ultimately passed by him is subject to the appellate jurisdiction of the High Court under the Agency Rules. In respect of other matters not governed by any specific rule, the proceedings of the Agent are subject to the orders that may be passed by the High Court on reference to it under R.59. Thus, the Agent is expressly constituted as a ' Court subordinate to the High Court' and that is as it should be for, the Agent is after all, by virtue of the powers conferred on him under the Scheduled Districts Act and the Agency Rules, vested with the jurisdiction to decide the disputes of civil nature and the rights with respect to the properties within the Scheduled District. We have therefore little doubt that the Agency Court in so far as it disposes of suits of a civil nature under the Agency Rules, is a Court subordinate to the High Court.

14. Our learned brother, Sambasiva Rao, J., in R. Jagadeswara Rao v. A. Subbaiah, (1968) 2 an WR 390 on a consideration of the agency Rules, held that the Court of Agent is a Court subordinate to the High Court for the purpose of appeal. Though the learned counsel for the respondent contended that in that case this Court was concerned with the transfer of a suit pending in the Court of the Subordinate Judge, Kavali to the Agent's (Collector) Court, Khammam, the question whether the Agent's Court was a Court subordinate to the high Court did not specifically arise for consideration. We are unable to agree with this contention. Sambasiva Rao, J., had to consider the question whether the Agent's Court was a Court subordinate to the High Court because for transferring a suit under S. 24, C. P. C., that suit should not only be pending in a Court subordinate to the High Court but could be transferred only to a (court) subordinate to the High Court and not to any other Court. The observation in R. Jagadeswara Rao v. A. Subbaiah, (1968) 2 An WR 390 in our view, were not obiter but were necessary for the disposal of those petitions.

15. Venkatarama Sastry, J. in Tr. C. M. P. No. 3177 of 1973 and c. M. P. No. 3178 of 1973 (Judgment dated 23-3-1974) (Andh Pra) dealing with an application under S. 24, c. P. C., for transfer of a case from an agency Court to a Civil Court held that R. 12 does not in terms prohibit a party who filed a suit in an Agency Court from approaching the High Court for a transfer of the case. On the other hand, it is only an enabling provision empowering the agent to the State Government, with the sanction of the State Government, to approach the High Court for transfer. The learned Judge further held that there is no prohibition under r. 12 of the Agency Rules to any of the parties to litigation before an Agency Court to seek a transfer of the case under S. 24, C. P. C. He further held that the Agency Court is a Court subordinate to the High Court and that the High Court has power to transfer suits under S. 24 of the Civil P. C.

16. Our brother, Gangadhara Rao, J., in Transfer C.M.P. Nos. 7886 of 76 and batch (Judgment dated 6-11-1976) (Andh Pra) had to consider whether a case to which S. 4 of the Andhra Pradesh Scheduled Areas Land Transfer Regulations, 1959 applied be transferred from an Agency Court to a Civil Court. Section 4 lays down that notwithstanding anything contained in any enactment, rule or law in force in the Agency tracts, every suit against a member of a Scheduled Tribe instituted after commencement of this Regulation shall be instituted only in the Court having jurisdiction over the Agency tracts. Considering the question whether a suit to which S. 4 of the said Regulations applied could be transferred to a Civil Court, our learned brother held that the transfer could not be effected under s. 24 of the Civil P. C. But even while so holding, he observed that 'there was no dispute that the Agency Court is a Court subordinate to the High Court.' The transfer was refused for the reason that the suit was filed against a member of a Scheduled Tribe and such a suit, in view of S. 4 of the Regulations could be instituted only in an Agency Court. However that an Agency Court is a Court subordinate to the High Court was never disputed before the learned Judge, nor did the learned Judge in that judgment hold that it was not a Court subordinate to the High Court.

17. In the L. P. A. preferred, against the judgment (L.P.A. No. 200 of 1976 & Batch, D/- 17-12-1976) (AP) a Bench of this Court, while dismissing the Transfer C. M. P. Observed:

'The question is not whether the High Court has power to transfer the case or whether the suit or proceeding should be tried before another Agency Munsif or any Agency Divisional Officer, but the question is whether it is competent to an ordinary Civil Court to try a suit or proceeding cognizable by an Agency Munisif's Court. Under the scheme of the Agency Rules, it is not open to a Civil Court to try a suit or proceeding which is within the jurisdiction of the Agency Munsif's Court.'

18. The Bench after considering the purpose behind the enactment of Agency Rules and the whole scheme of setting up by the Agency Munsifs' Court cannot be heard or disposed of by an ordinary Civil Court. It would be depriving the tribals of the special facilities given by the practice and procedure set out in the Agency Rules, if they are to be driven to litigation in any ordinary Civil Courts. It is because of this peculiar feature of the protection of the tribals for whose benefit the Agency Rules have been framed that we hold that a suit cognizable by an Agency Munsif's Court is not cognizable by any ordinary civil Court except to the limited extent recognized by the Agency Rules themselves, e.g. in Rule 12.'

19. In that view, their Lordships while dismissing the Transfer, C. M. P. observed that it is desirable that the suit should be transferred to another Agency Munsif's Court and that the parties may move the Agent to State Government in that behalf. The Bench did not specifically hold that the Agency Courts constituted under the Scheduled Districts Act and the Agency Rules thereunder, are not Courts subordinate to the High Court. In fact, from the reference made in aforesaid judgment to the decisions of our learned brother Sambasiva Rao, J., in R. Jagadeswara Rao v. A. Subbaiah, (1968) 2 An WR 390 and Venkatarama Sastry, J., in Transfer C. M. P. 3177 and 3178 of 1973 dated 23rd March, 1974 (Andh Pra) it would appear that the view expressed therein that the High Court had power under S. 24, C. P. C. to transfer matters pending before an Agency Court was not intended to be dissented from. Thus on the question whether the Agency Court is a Court Subordinate to the High Court within the meaning of S. 24, C. P. C. there does not appear to be any divergent opinion so far as this High Court is concerned. For the reasons mentioned, we hold that the Agency Court whether an Agency Munsif's Court subordinate to the High Court for the purpose of S. 24 of the Civil P. C.

20. When once it is held that the Agency Court is a Court Subordinate to the High Court, there can be little doubt that the High Court is competent to transfer a suit pending in the Agency Court to another Court Subordinate to it and competent to try the suit. The learned Government Pleader however contended that having regard to R. 12 of the Agency Rules the power vested in the High Court under S. 24, C. P. C., must be deemed to have been impliedly taken away. Rule 12 of the Agency Rules reads as follows:-

'12 (1) On the application of the Agent to the State Government made with the sanction of the State Government, the High Court may transfer a suit, appeal or proceeding instituted in any Agency Court to such Civil Court subordinate to the High Court situate outside the area comprised in the jurisdiction of the said Agent to the State Government as will have jurisdiction to try such suit, appeal or proceeding if it arose within the local limits of the jurisdiction of such Court.

(2) The law and procedure applicable to any case so transferred shall be the law and procedure which would have been applicable if the transfer had not taken place;

Provided that an appeal from an order or decree in any such case shall be filed in the Court to which appeals would ordinarily lie from the orders and decrees of such Court.

EXPLANATION: The expression 'law and procedure' in this sub-rule shall include also the law and procedure prescribed for appeals in Rr. 17 to 56 (both inclusive).'

21. This rule authorises the High Court to transfer a suit, appeal or other proceeding instituted in any Agency Court to a Civil Court subordinate to the High Court on an application made to it by the Agent to the Government with the sanction of the State Government. Upon such an application being filed, the High Court may transfer the suit to a Civil Court subordinate to the High Court even if such Civil Court is situated beyond the jurisdiction of the said Agent. Rule 12 does not confer a right on any party to a proceeding to apply to the High Court for the transfer of a suit, appeal or proceeding from one Agency Court to another Agency Court or from an Agency Court to a Civil Court. That the right vested in a party to a proceeding under R. 11 of the A. P. Agency rules is only to move the Agent for the transfer of a suit, appeal or other proceeding pending in an Agency Court under the jurisdiction of that Agent to any other Agency Court within its jurisdiction. Rule 12 which is very restricted in its scope and which does not confer any right on a party to a proceeding to move for transfers cannot be construed as affecting in any manner the jurisdiction of the High Court under S. 24, C. P. C. It does not expressly take away the jurisdiction of the High Court. Nor are there any words in R. 12 which by necessary implication excluded the jurisdiction of the High Court. That rule only empowers the Agent to move the high Court for the transfer of a suit from out of his jurisdiction. From that it cannot be inferred that the jurisdiction vested in the high Court under S. 24, C. P. C. is in any way restricted or taken away. But for S. 24, C. P. C. the agent would not have the right to move the High Court. Rule 12 of the Agency Rules merely enables the Agent or vests a right in him and to move the high Court for transfer. That provision cannot be construed as limiting the power of the High Court under S. 24, C. P. C.

22. It was also argued that under the Act the Agency Courts indisposing of suits, appeals or other proceedings of a civil nature have to follow the procedure laid down under the Agency Rules and not the Civil P. C. and since S. 24, C. P. C. is not made applicable to Agency Courts expressly under the Rules, the transfer of such suits cannot be made by the high Court. It must be pointed out that this contention ignores the basic fact that the Scheduled Districts Act and the Agency Rules made thereunder are intended to govern the proceedings in suits, appeals or other proceedings pending before the Agency Courts and do not enlarge or restrict the power of the High Court. Agency Court is a creature of a statute and the power to transfer a suit is vested in the high Court by an independent enactment. Any procedure laid down in the Agency Rules can only govern the Courts constituted thereunder and not limit the power of the high Court vested in it under a different enactment. For the same reason the contention of the learned Government pleader that certain provisions of the Civil P. C. not having been made applicable to the proceedings before the Agency Courts the high court is precluded from transferring the suit from one Agency Court to another except in accordance with R. 12 of the Agency rules cannot be accepted. Further S. 12(2) lays down that even if a suit were transferred from the Agency Court to Civil Court, the same procedure as was required to be followed by an Agency Court is to be followed by the transferee Court in disposing of the suit or other proceeding transferred to it. Hence that fact also cannot be a valid consideration for holding that the proceeding in an Agency Court cannot be transferred by the high Court or to a Civil Court.

23. It was next contended that the Agency Courts are conferred with a special and exclusive jurisdiction to try matters with respect to the property lying within the Agency Tracts. No doubt the Agency Rules confer power on the Agency Court constituted in this behalf to try all suits of the Civil nature except those the cognizance of which is expressly or impliedly barred. Under S. 4 of the Scheduled Areas land Transfer Regulation, suits against a member of a Scheduled Tribe can be instituted only in a Court having jurisdiction over the Agency Tracts and not before an ordinary Civil Court. But when once such a suit is instituted whether that suit could be transferred only to an Agency Court under R. 11 or R. 12 of the Agency Rules or could be transferred to a Court is a matter for which there is no express provision in the Schedule Area Regulation. On the contrary, R. 12 of the Agency Rules provided that on the application of an Agent to the State Government the High Court may transfer any suit, appeal or proceeding instituted in any Agency Court or a Civil Court subordinate to the High Court. This rule is of very wide application and covers all suits irrespective of whether those suits are instituted by or against a tribal or a non-tribal and also to those to which both the parties are non-tribals. In short all suits irrespective of whether the parties thereto are members of Scheduled Tribes or not one instituted in an Agency Court may be transferred to any Civil Court subordinate to the High Court. Under S. 4 of the Scheduled Areas Land Transfer Regulation, the prohibition is only regarding the institution of a suit against a member of the Scheduled Tribe in a Court other than an Agency Court. There is, however, no prohibition against transfer of such suits to a Civil Court either under R. 11 or R. 12 of the Agency Rules. In fact sub-r. (2) of R. 12, already extracted above, which lays down that when any suit instituted in an Agency Court is transferred to a Civil Court, the same law and procedure which would have been applicable to the suit if the transfer had not taken place would be applicable even after the transfer of the case to a Civil Court would indicate that even a suit instituted by or against a Tribal could be transferred to a regular Civil Court and not necessarily to an Agency Court. However, notwithstanding such transfer, the protection afforded by the special law and procedure laid down for the administration of the Scheduled Districts and the agency tracts is assured to the members of the Scheduled Tribes. Such transfer does not affect the rights of any of the parties either in the matter of substantive law or procedural law for even after the transfer the law and procedure applicable to such suits while they were pending in the Agency Courts is assured to them even after the transfer to the Civil Court. In view of the above merely because there is a prohibition against institution of suits against Scheduled Tribes in a Court other than an Agency Court, there is no warrant for concluding that the transfer of such a suit to a Civil Court is prohibited. So far as the suits against persons other than the Scheduled Tribe there is no express prohibition against institution in any Court other than the Agency Court. Hence the fact that there is a prohibition against the institution of certain suits in a Court other than the Agency Court under S. 4 of the Scheduled Areas land Transfer Regulation the jurisdiction of the high Court under S. 24, C. P. C. to transfer suits pending in an Agency Court to a Civil Court is not in any way affected.

24. In view of the above discussion we are clearly of the view that the Agency Court constituted under the Scheduled Districts Act and the Andhra Pradesh Agency Rules framed thereunder is a Court subordinate to the High Court and the high Court has power under s. 24, C. P. C. to transfer the suit pending in such Agency Court either to an other Agency Court or to a Civil Court. However, on such transfer the said suit would have to be tried in accordance with the same law and procedure as would have been applicable to that suit if it were to continue before the Agency Court.

25. On the facts of the present two cases even the respondent does not deny that these were eminently fit cases which ought to be transferred from the Agency Court to another Court. The suits are against the Government and plaintiffs made certain allegations against the Agent as furnishing cause of action for those suits. It is, therefore, just and necessary to transfer the suits to a Civil Court instead of to another Agency Court.

26. These petitions are, accordingly allowed and the suit O. S. No. 5 of 1977 on the file of the Agent (Collector) to the State Government at Khammam is transferred to the Court of the Subordinate Judge, Khammam and O. S. No. 8 of 1976 on the file of the Agent (Collector) to the State Government at Warangal is transferred to the Court of the Subordinate Judge, Warangal. There will be no order as to costs.

27. Petitions allowed.


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