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Gaddam Narsa Reddy and ors. Vs. Collector, Adilabad District and ors. - Court Judgment

LegalCrystal Citation
SubjectProperty
CourtAndhra Pradesh High Court
Decided On
Case NumberWrit Petn. No. 4204 of 1977, W.A. Nos. 64, 68 and 231 of 1979 and A.A.O No. 151 of 1979
Judge
Reported inAIR1982AP1
ActsAndhra Pradesh Scheduled Areas Land Transfer Regulation, 1959 - Sections 3, 3(1) and 3(2); Andhra Pradesh Scheduled Areas Land Transfer (Amendment) Regulation, 1963; Hyderabad Tenancy and Agricultural Lands Act, 1950 - Sections 47 and 50B; Transfer Property Act, 1882 - Sections 53A; Constitution of India - Article 244 (1)
AppellantGaddam Narsa Reddy and ors.
RespondentCollector, Adilabad District and ors.
Appellant AdvocateB. Subhashan Reddy, ;M.R.K. Choudary, ;V. Jogayya Sarma and ;Y. Bhaskara Rao, Advs.
Respondent AdvocateGovt. Pleader, ;Adv. General and ;M. Ramachandra Reddy, Adv.
Excerpt:
property - transfer of land - sections 3, 3 (1) and 3 (2) of andhra pradesh scheduled areas land transfer regulation, 1959, andhra pradesh scheduled areas land transfer (amendment) regulation, 1963, sections 47 and 50b of hyderabad tenancy and agricultural lands act, 1950, section 53a of transfer of property act, 1882 and article 244 (1) of constitution of india - petitioner purchased suit land from respondents - collector opined that transfer in favour of petitioner was in contravention of section 3 (1) of regulation therefore transfer was null and void - high court observed that transfer was made prior to regulations coming into force - transfer did not contravene provisions of section 3 (1) - commissioner had no jurisdiction to pass order under section 3 (2) of regulation declaring.....ramachandra rao, j. 1. the writ petition w. p. no. 4204/77 has been referred to a full bench by our learned brothers madhava rao and raghuvir, jj. in view of the conflict of decisions. the other matters have been directed to be posed along with w. p. no. 4204/ 17 on the ground that common questions arise in all the matters. as the main case referred to the full bench is w. p. no. 4204/77, we shall refer to the facts in that case to determine the questions that arise for consideration on this reference. 2. the dispute in this write petition relates to ac. 3.12 cents in s. no. 8, ac. 0.17 cents in s. no. 33 and ac. 13.02 cents in s. no. 34 of nandgaon village situated in adilabad taluk, which is a scheduled area. the lands in s. nos. 33 and 34 were purchases under an agreement to sell dated.....
Judgment:

Ramachandra Rao, J.

1. The Writ Petition W. P. No. 4204/77 has been referred to a Full Bench by our learned brothers Madhava Rao and Raghuvir, JJ. in view of the conflict of decisions. The other matters have been directed to be posed along with W. P. No. 4204/ 17 on the ground that common questions arise in all the matters. As the main case referred to the Full Bench is W. P. No. 4204/77, we shall refer to the facts in that case to determine the questions that arise for consideration on this reference.

2. The dispute in this write petition relates to Ac. 3.12 cents in S. No. 8, Ac. 0.17 cents in S. No. 33 and Ac. 13.02 cents in S. No. 34 of Nandgaon village situated in Adilabad Taluk, which is a scheduled area. The lands in S. Nos. 33 and 34 were purchases under an agreement to sell dated 10-5-1955 by Abdul Nadem, the third petitioner herein from one Jaithu, a member of the Scheduled Tribe. The petitioner 1 and 2 are said to be cultivating the said lands as tenants of the third petitioner. The land in S. No. 8 was purchased under an agreement of sale dated 8-3-1963 by the brother of 1st petitioner from the 4th respondent, the daughter of Jaithu. They filed as petition under Section 3 (2) of the Andhra Pradesh Scheduled Areas Land Transfer Regulation I of 1959 (hereinafter called 'the Regulation') before the Special Deputy Collector, Tribal Welfare, Adilabad alleging that the transfers of the lands under the agreements of sale contravene of the provisions of Section 3(1) of the Regulation, and that they were entitled to be put back in possession of the said lands. The Special Deputy Collector, Tribal Welfare, held that the transfer of the land in favour of the petitioners was not effected by a registered document as required by Sec. 17 of the Indian Registration Act, and that they did not acquire any title to the same, and that the possession of the petitioners over the said lands was unlawful and unauthorised, as the transfers were made in contravention of the provisions of Section 3(1) of the Regulation, and accordingly, directed the petitioners to be evicted from the lands and the respondents 3 and 4 were directed to be put in possession of the said lands. This order was confirmed on appeal preferred by the petitioners to the District Collector and Agent to the State Government, Adilabad. The petitioners field the above write petition W. P. No. 4204/77 seeking the issue of a writ of mandamus declaring the orders of the Special Deputy Collector and the Collector, Tribal Welfare as illegal, arbitrary and without jurisdiction.

3. It is contended on behalf of the petitioners that the provisions of Regulation I of 1959 came into force in Telangana area on 1-2-1963, and that it is not retrospective in operation and would not affect transfers made by the tribals to non-tribals prior to the coming into force of the said Regulation in Telegana area, and that even otherwise, the petitioners would be entitled to the protection of Section 53-A of the Transfer of Property Act, and that the orders of eviction passed by Special Deputy Collector and the Collector are illegal and devoid of jurisdiction.

4. A counter-affidavit was filed by the Special Deputy Collector stating that as the transfer of the suit lands worth more than Rs. 100/- not having been registered as required by Section 17 of the Indian Registration Act, the petitioners did not acquire any title to the suit lands, and that even otherwise, the transfer of the lands by tribals to non-tribals contravened the provisions of the Regulation, and therefore, the petitioners were liable to be evicted and the possession of the lands restored to the triabals.

5. When the writ petition came up for hearing before our learned brothers Madhava Rao and Reghuvir, JJ., it was contended on behalf of the petitioners that the transfer of the land having taken place prior to 1-2-1963, ie. before the coming into force of the Regulation, it would not be affected by the said regulation as it has no retrospective effect, and that the possession of the petitioners was protected the provisions of Sec. 53-A of the T. P. Act, But, it was contended on behalf of the Government relying on the decisions of this Court in Mram Pocham v. State of A. P., : AIR1978AP242 that though the Regulation was held to be not retrospective in operation, the contract of sale accompanied by delivery of possession having been made without obtaining the necessary sanction under Section 47 of the Hyderabad Tenancy and Agricultural Lands Act and without obtaining a validation certificate under Sec. 50-B of the said Act, the purchaser would not be entitled to the protection of S, 53-A of the T. P. Act. Before the learned Judges, several decisions were cited in which conflicting views were expressed with regard to the applicability of Section 53-A of the T. P. Act to the transfers made without prior permission under Section 47 of the Hyderabad Tenancy and Agricultural Lands Act or which have not validated under S. 50-B of the said Act,

6. In Meram Pocham v. State of A. P. (supra), Sambasiva Rao, J. (as he then was) and Jayachandra Reddy, J. took the view that a contract of sale accompanied by delivery of possession made prior to the coming into force of the Regulation without obtaining the necessary sanction under Section 47 or validation under Section 50-B of the Hyderabad Tenancy and Agricultural Lands Act remained invalid the persons in possession under such invalid transfers could not claim protection under Section 53-A of the T. P. Act after the Regulation came into force, and that they were liable to be evicted.

7. Chinnappa Reddy, J. (as he then was) and Gangadhara Rao, J. took the view that in such cases the safeguard under Section 53-A of the T. P. Act would not be available to the purchasers, while Alladi Kupppuswami, J. (as he then was) took the view that the protection would continue to be available to the purchasers under Sec. 53-A despite the coming into force of the Regulation. Parthasarathi, J. took the view in Hafeezunnisa Begum v. Syed Arab, (1969), 2 Andh WR 317, that Section 50-B of the Hyderabad Tenancy & Agricultural Lands Act was merely an enabling provisions and the omission of a party to take advantage of it would not put the validation in jeopardy. But, this view was dissented from in Meram Pocham v. State of A.P (supra).

8. Madhaya Reddy, J. took the view in S. A. No. 520/68 dated 20-7-1970 (reported in ILR (1972) Andh Pra 1313) that Section 50-B of the Hyderabad Tenancy and Agricultural Lands Act by necessary implication retrospectively validates transfers made when Sec. 47 was in force and were invalid for want of prior sanction, and that possession under such agreements of sale could not be deemed to be unauthorised and persons in possession under such agreements of sale would be entitled to the protection of Section 53-A of the T. P. Act.

9. In Syed Jalal v. Targopal, : AIR1970AP19 , it was held that though the agreement to sell agricultural land was not prohibited by Sec. 47 it was valid and could be enforced by a suit for specific performance. But the possession delivered, though in pursuance of such agreement, was unauthorised because of Section 47 read with Section 98 of the Hyderabad Tenancy and Agricultural Lands Act.

10. In L.P. A. No. 139/70 (reported in ILR (1974) Andh Pra 119) preferred against the decision of Madhava Reddy, J, in Second Appeal No. 520/68 (reported in ILR (1972) Andh Pra 1313), the Letters Patent Bench observed as follows:-

'We think that the position materially alters Section 47 is removed. It is true that Section 98 continues to hold the field. Under that provisions, a transferor of an agricultural land made prior to 18-3-1969 can still file an application for delivery of possession against his transferee, where such transfer was made without prior permission by treating the position of transferee as unauthorised one. But, in our view, the existence of this remedy does not and should not deprive the purchaser from invoking the principles of part--performance to protect his possession after Section 47 is deleted from the statute book.'

In that view, the learned Judges of the Letters Patent Bench held that since Section 47 was deleted, the obstruction to transfer was removed and the statutory right under Section 53-A of he Transfer of Property Act would be available to the transferee, and thus, agreed with view taken by Madhava Reddy, J.

11. In view of the said conflict of decisions, the learned Judges thought fit to refer this case to a Full Bench. That is how the matter has come up before this Full Bench,

12. Sri B. Subhashana Reddy, the learned counsel for the petitioners in the writ petition W. P. No. 4204/77 and the other learned counsel appearing for the petitioners or appellants in the connected matters, which have been directed to be posted along with the said writ petition, contended that the Regn. I of 1959 which came into force in Telengana Area on 1-12-1963 has no retrospective operation, and, therefore, the transfers made by the tribals to non-tribals would not be affected by the provisions of Section 3 (1) of the said Regulation. If so, the Special Deputy Collector, Tribal Welfare and the Collector on appeal, has no jurisdiction to declare under Section 3 (2) of the said Regulation the transfers as illegal or null and void, and to direct the eviction of the petitioners from the lands in question or to direct that possession of the land should be restore to the tribals.

13. The learned Advocate General sought to content that the transfer made in favour of the petitioner, though under agreements to sell prior to the coming into force of he Regulation in Telengana Area, the transfer was not valid, as no permission under Section 47 of the Hyderabad Tenancy and Agricultural Lands Act was obtained nor was the transfer validated by obtaining a certificate as required by Section 50-B of the said Act, and therefore, no title passed to the transferees and their possession of the lands became unlawful on the date of the coming into force of the Regulation in Telengana area, and the petitioners would not, therefore, be entitled to claim the protection of the provisions of Section 53-A of the Transfer of Property Act.

14. In order to appreciate the rival contentions, it is necessary to notice the relevant provisions of the Andhra Pradesh Scheduled Areas Land Transfer Regulation I of 1959 and the subsequent amendments thereto. The object of the Regulation is to regulate the transfers of the land in the Scheduled Areas. The Regulation first came into force in the Scheduled Areas, in the districts of East Godavari, West Godavari, Visakhapatnam and Srikakulam. By Regulation has been extended to the Scheduled areas in the districts of Adilabad, Warangal, Khammam and Mohaboobnagar.

15. Section 2(g) of the Regulation defined 'transfer' as meaning:

'Mortagage 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.'

16. Section 3(1) (a) and (b) which deal with transfers of immovable property by a member of a Scheduled Tribe reads as follows:-

'3 (1) (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 be absolutely null and void, unless such transfer is made in favour of a person, who is a member of Scheduled Tribe or a society registered under the Andhra Pradesh Co-operative Societies Act, 1964 (Act 7 of 1964) which is composed solely of members of the Scheduled Tribes.

(b) Until the contrary is proved, any immovable property situated in the Agency tracts and in the possession of a 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.'

Section 3(1) (a) prohibits transfer of immovable property situated in the agency tracts by a person whether or not such person is a member of a Scheduled Tribe except to persons or societies mentioned therein. Section 3 (2) (a) confers power on the Agent of these Agency Divisional Officer to pass a decree of ejecment against any person in possession in contravention of Section 3 (1) and for restoration of possession to the transferor triable or his heirs. Section 3(3) (a) provides for an appeal against an order passed under Section 3 (2). By A. P. Regulation I of 1970, which came into force with effect from 3-2-1970, even transfers made by a non-tribal to a non-tribal of land in the agency tracts were declared as null and void.

17. The main contention of the leaned counsel for the petitioners is that the aforesaid provisions of Regulation I of 1959 which came into force in Telengana area on 1-12-1963 as subsequently amended by Regulation I of 1970 would not affect transfers made prior to 1-12-1963 or transfers between non-tribals made prior to 3-2-1970, and that, therefore, the Special Deputy Collector has no jurisdiction to declare such transfers as null and void under Section 3 (2) of the Regulation. It is also contended by the learned counsel that the Special Deputy Collector, Tribal Welfare has no jurisdiction to decide the question that in the absence of a permission for the transfer under Sec. 47 of the Hyderabad Tenancy and Agricultural Lands Act and a Validation certification under Section 50-B of the said Act the transferees would not be entitled to the protection of Section 53-A of the Transfer of Property Act.

18. So far as the latter submission is concerned, it is clear from the provisions of Section 3 (2) (a) of the Regulation that the Agency or the Agency Divisional Officer or the other officer mentioned therein can only pass a decree of ejectment against any person in possession of the property claiming under a transfer from a tribal where such transfer of immovable property is made in contravention of sub-section (1) of Section 3 (2) of the authorities mentioned therein to pass a decree of ejectment is limited to determine the question whether the transfer effected is made in contravention of the provisions of Section 3 (1) (a) and (b). But, in a proceeding under Section 3 (2) (a), the Agent or the other authorities mentioned therein are not empowered to determine whether the protection of Section 53-A of the Transfer of Property Act would be available to the transferees in the absence of prior permission under S. 47 of the Hyderabad Tenancy and Agricultural Lands Act or a validation certificate under S 50-B of the said Act. Under S. 3(2) of the Regulation, the enquiry of the authorities is confined only to declare null and void the transfer of immovable property situated in agency tracts if it contravened the provisions of Section 3 (1) of the Regulation and to decree ejectment against any person in possession of the property claiming under such transfer. To such a transfer falling within the purview of Section 3 (1) (a), the provisions of the Transfer of Property Act or the provisions of Hyderabad Tenancy and Agricultural Lands Act or the Indian Registration Act would not apply, and, therefore, the protection of Section 53-A of the Transfer of Property Act would not be available to a person in possession claiming under a transfer falling within the purview of Section 3 (1) (a) of the Regulation. In other words, where a transfer contravenes the provisions of Section 3 (1) (a) of the Regulation, it will not be saved even if it has been made in conformity with the relevant provisions of the Transfer of Property Act or the Indian Registration Act or the Hyderabad Tenancy and Agricultural Lands Act or any other law applicable -thereto. Thus, a person in possession of immovable property in agency tract by virtue of a transfer made in contravention of the provisions of Section 3 (1) (a) would not be entitled to claim the benefit of Section 53-A of he Transfer of Property Act whether it conforms to the relevant provisions of the Transfer of Property Act, Indian Registration Act or the Hyderabad Tenancy and Agricultural Lands Act. The authorities under Section 3 (2) (a) of the Regulation are conferred special or exclusive jurisdiction to determine the limited question whether the transfer of immovable property situated in the agency tracts is made in contravention of the provisions of Section 3 (1) of the Regulation, and any other question is outside the scope of such a proceeding under Section 3 (2) (a) of the Regulation. In this view, it is not open to the authorities under Section 3 (2) (a) to go into the question whether the sale or agreement to sell is registered or not, or whether the transferee under such a transfer is entitled to the protection of Sec. 53-A of the Transfer of Property Act in the absence of any prior permission under Section 47 of the Hyderabad Tenancy and Agricultural Lands Act or validation certificate under Section 50-B of the said Act. Hence, it is unnecessary for us to go into the conflicting views expressed by several decisions of this Court on the question whether the protection of Section 53-A of the Transfer of Property Act is available to a transferee in possession under an agreement to sell, where the provisions of Sec. 47 or Section 50-B of the Hyderabad Tenancy and Agricultural Lands Act have not been complied with.

19. The only question then for consideration is, whether the provisions of Section 3 (1) (a) of Regulation I of 1959 are retrospective in operation. This Regulation was made by the Governor of the State of Andhra Pradesh in exercise of the powers conferred under Art. 244(i) of the Constitution of India read with the 5th Schedule to the Constitution. Article 244(1) provides that the provisions of 5th Schedule of the Constitution shall apply to the administration and control of the Scheduled Tribe in any State other than the States of Assam and Meghalaya. Para (2) of the 5th Scheduled provides that the executive power of the State extends to the Scheduled areas therein subject to the provisions of the said Scheduled . Para (4) of Part B of the said Scheduled provides for the establishment of Tribes Advisory Council in each State having scheduled areas for advising on such matters pertaining to the welfare and advancement of the Scheduled Tribe in the State as may be referred to them by the Governor.

20. Para 5 (1) of the said Scheduled confers power on the Governor to direct by public notification that a particular Act of Parliament or of the Legislature of the State shall not apply to a Scheduled Area or any part thereof in the State or shall apply to a Scheduled area or any part thereof in the State subject to the exceptions and modifications as be may specify in the Notification and any direction given under this sub-paragraph may be given so as to have retrospective effect. This provision corresponds to Section 92(1) of the Government of India Act, 1935.

21. In Jatindra v. Province of Bihar, 1949 FLJ 225; AIR 1949 FC 175, the Federal Court held that under Sec, 92 (1) of the Government of India Act, 1935, the Governor had no power by his notification to give retrospective effect to a Statute which itself was not retrospective . To get over the effect of that decision, the words 'so as t have retrospective effect' have been engrafted in para (5) Clause (1) of the 5th Scheduled to the Constitution expressly providing that in applying an act of Parliament or of a State Legislature, the Governor may make such application retrospective .

22. In the instant cases, we are concerned with the Regulation made by the Governor under Para 5 Clause (2) of the 5th Schedule, after the coming into force of the Constitution of India. Para 5 (2) of the said Scheduled empowers the Governor to make regulations for the peace and good government of any area in a State in respect of a Scheduled Area. In particular and without prejudice to the generality of the said power, such regulations may prohibit or restrict the transfer of land by or among the members of the Scheduled Tribe in such area and also regulate allotment of lands to the members of Scheduled Tribe, or carrying on business as moneylenders by persons who lend money to members of the Scheduled Tribe in such area. In making such Regulation, the Governor may repeal or amend any Act of Parliament or of the Legislature of the State or any existing law which is for the time being applicable to such area. Para (6) of Part C of the 5th Scheduled empowers the President to make an order declaring the areas as schedule areas and the same may be altered or varied. Para (7) of Part C empowers the Parliament to amend any of the provisions of the Scheduled by way of addition, variation or repeal.

23. Pursuant to the power conferred by sub-para (2) of para 5 of the 5th Scheduled , the Governor made the AP Scheduled Areas Land Transfer Regulation I of 1959. As already noted, the said Regulation came into force into the Scheduled areas of East Godavari, West Godavari, Viskhapatnam and Srikakulam in he year 1959. By a subsequent Regulation, A. P. Regulation No. II of 1963, it has been extended to the Scheduled areas in Adilabad, Warangal, Khammam and Mohboobnagar districts of Telangana area. Section 3 (1) (a) of the Regulation declared as absolutely null and void any transfer of immovable property situated in agency tracts, by a Member of a Scheduled Tribe in favour of a person unless the transfer is made in favour of a person belonging to the Scheduled Tribe or a society deemed to be registered under the Andhra Pradesh Co-operative which is composed solely of the Members of the Scheduled Tribe. The said Section 3 (1) (a) of the Regulation was further amended by A. P Regn. No. I of 1970 declaring as null and void even transfers of immovable property situated n agency tracts made by Members of non-tribal unless it is made in favour of the Members of Scheduled tribes or a society under the A. P Co-operative composed solely of the members of Scheduled Tribe.

24. It is well settled, and it is not disputed before us, that under Art. 244 of the Constitution read with the 5th Scheduled to he Constitution, the Governor can made regulations with retrospective effect. In Venkata v. State of A. P., : [1962]2SCR535 , it was held that the Governor could give retrospective effect to a Regulation made in exercise of the power conferred by Para 5 (1) and (2) of the 5th Scheduled to the Constitution. Para (1) of Article 244 confers power on the Governor to apply an Act of Parliament or of the Legislature of a State to Scheduled areas or part thereof subject to such exceptions and modifications with retrospective effect.. Para (2) confers plenary power on the Governor of making independent legislations in respect of any matters falling under the three lists of 7th Schedule and such regulations can also be given retrospective effect.

25. The question for consideration is, whether the Regulation I of 1959 as amended by the subsequent Regn. II of 1963 and Regulation I of 1970, has retrospective effect and affects transfers made prior to coming into force of the said Regulation. That is, whether the said Regulation would affect transfer made by members of the Scheduled Tribe in the agency tracts of Telangana area prior to 1-12-1963 or to transfers made by lands in the agency tracts by non-tribals to the coming into force of the Regulation I, of 1970. There is no express provision in the said Regulation giving retrospective effect. Section 2 (g) merely defines 'transfer' and it includes a contract to sell; but it does not indicate whether it applies to transfers made prior or subsequent to the said Regulation. Section declares that 'any transfer of immovable property situated in Agency tracts by a person, whether or not such person is a member of a Scheduled Tribe . . .. . . . shall be absolutely null and void unless the transfer is made in favour of a person who is a member of a Scheduled Tribe or a society mentioned therein.' Section 3 (2) (a) applies only to a transfer made in contravention of sub-sec. (1) of Section 3. These provisions do not indicate whether they are applicable to transfers made prior to the coming into force of the said Regulation as amended from time to time. The language of Section and 3 (2) (a) does not expressly give them retrospective effect.

26. The question then for consideration is, whether they can be construed as having retrospective effect by necessary implication. It is a cardinal principle of construction that every statute is prima facie prospective unless it is expressly or by necessary implication made to have retrospective operation. Unless there are words in the statute manifesting an intention to affect existing rights, it shall be deemed to be prospective in operation. Every statute which takes away or impairs vested rights acquired under existing laws or creates a new obligation, or imposes a new duty, or attaches a new disability in respect of past transactions, must be presumed to be intended not to have a retrospective effect, and that a statute or a section in it is not to be construed so as to have larger retrospective operation than its language renders necessary. The question whether the statute or any provision in it has retrospective operation has to be determined with reference to the dominant intention of the legislature to be gathered from the language used, the object and the scheme of the Act, the nature of the rights affected and the circumstances under which the statute came into being.

27. It has been held in Central Bank of India v. Their Workmen, : [1960]1SCR200 , that (at p. 27):

'A remedial act, on the contrary, is not necessarily retrospective ; it may be either enlarging or restraining and it takes effect prospectively, unless it has retrospective effect by express terms or necessary intendment'.

The provisions of Section seek to nullify transfers made of lands in Scheduled areas null and void unless the transfer is made in favour of a person or a society mentioned therein. If the provisions of Section are to be given retrospective effect, it will take away or affect vested or accrued rights and the provisions of Section are to be given retrospective effect, it will take away or affect vested or accrued rights and the provisions of section 3 (1) (a) cannot be construed as having retrospective effect in the absence of express enactment or necessary intendment.

28. In Venkataramanaiah v. Deputy Collector, Tribal Welfare, (1976) 2 AP LJ (HC) 212, it was held that the provisions of S. 3 (1) of the Regulation I of the 1959 had no application to a sale which took place long prior to the coming into force of the said Regulation. The question as to the constitutional validity of the Regulation I of 1959 as amended by Regulation I of 1970 and whether it has Regulation effect, came up for consideration in an unreported decision in Re Talluri Lakshmayya, Judgment in W. P. No. 776/70 & batch Dt. 24-9-1971. The learned Judges, K. V. Narasimham, Chief Justice and Kuppuswami, J., (as be then was), by judgment dated 24-9-1971 held that the provisions of Section 3 (1) of the Regulation I of 1959 as amended by the Regulation I of 1970 is not retrospective in operation and does not affect transfers made by tribals with consent as prescribed or by non-tribals for which transferee's consent was not necessary. The learned Judges held that the amending regulation was not declamatory in character, and that there is nothing in the language of the amending regulation to give it retrospective operation, and that it is a well recognised rule that a satute should be interpreted as not to affect vested rights, and that the amending regulation would not affect transfers of immovable property made prior to the coming into force of the amending regulation. Therefore, either on principle or on authority, the provisions of Section 3 (1) of Regulation I of 1959 as amended by Regulation II of 1963 or Regulation I of 1970 cannot be given retrospective effect so as to affect transfers made prior to the counting into force of the regulation or its amendments by Regulation II of 1963 or Regulation I of 1970.

29. If the provisions of Section 3 (1) of the Regulation as amended are to be given retrospective effect, it will nullify transfers made prior to the coming into force of the said regulation as amended and would unsettle rights which had accrued and vested to the persons in possession under such transfers and would affect bona fide and innocent persons in possession of the lands under such transfers even if made in accordance with the provisions of law in force at the time of such transfers. Moreover, the decisions of this Court in re Talluri Laskshmayya (supra), rendered on 24-9-1971, holding that the provisions of Section 3 (1) of the Regulation as amended by Regulation I of 1970 has no retrospective effect, has been accept and has not been challenged by way of an appeal and has become final, and no steps have also been taken to amend the said Regulation giving it retrospective effect, nor has any subsequent regulation been made to give the provisions of Sec. 3 (1) of the Regulation I of 1959 as amended retrospective effect. We, therefore, hold that the provisions of Regulation I of 1963 and the provisions of Regulation I of 1970 amending the provisions of Section 3 (1) of Regulation 1 of 1959 have no retrospective operation and do not affect transfers made prior to the coming into force of the said amending regulations.

30. The question whether transfers made prior to the coming into force of the amending Regulation II of 1963 and I of 1970 are not valid either for want of registration under the Indian Registration Act or for non-compliance of the provisions of Section 47 or Sec. 50-B of the Hyderabad Tenancy and Agricultural Lands Act and whether the transferee would be entitled to the protection of Section 53-A of the Transfer of Property Act, can only be gone into in a forum constituted for deciding such questions in respect of lands in Scheduled areas.

31. The sum up our conclusions on the questions arising on this reference to the Full Bench are as follows: (1) A transfer of immovable property situate in agency tracts, made after the coming into force of the A. P. Scheduled Areas Land Transfer Regulation I of 1959 or its amendment Regulation II of 1963 or Amendment Regulation I of 1970, even if made in compliance with the provisions of the Transfer of Property Act, Indian Registration Act or Hyderabad Tenancy and Agricultural Lands Act or any other law applicable thereto, is null and void, if it contravenes the provisions of S. 3(1) of the Regulation I of 1959 or its amending regulations, and under S. 3 (2) of the said Regulation, the authorities mentioned therein can decree ejectment of the persons claiming under such transfer and pass orders restoring the lands to the transferors or their successors or pass orders for disposing of the said property as directed therein.

(2) Section 3 (1) of the Regulation I of 1959 and its amendments by Regulation II of 1963 and I of 1970 have no retrospective operation and do not affect transfers made prior to the said Regulation or its amendments coming into force and the authorities under Section 3 (2) of the Regulation have no jurisdiction to pass orders in relation to the immovable property covered by such transfers.

(3) The validity or otherwise of the transfers made prior to S. 3(1) or is amendments by Regulation II of 1963 or I of 1970, coming into force, cannot be adjudicated upon under S. 3 (2) of the Regulation and the same has to be challenged in an appropriate forum constituted for deciding disputes relating to immovable property situate in Scheduled Areas.

32. Applying the said conclusions to the facts of the present case, the transfers in P.P. No. 4204/77 having been made prior to the coming into force of the Regulation, they do not contravene the provisions of Section 3 (1) and, therefore, the Special Deputy Collector, Tribal Welfare as the District Collector-cum-Agent to the State Government have no jurisdiction to pass orders under S. 3 (2) of the said Regulation declaring the said transfers as null and void.

33. Accordingly, the writ petition W. P. No. 4204/77 is allowed and the impugned order is quashed, but in the circumstances, without costs, Advocate's fee Rs. 150/-

Writ Appeals Nos. 64/79, 68/79, 231/79 and CMA. 151/79.

34. These appeals will be posted before the Division Bench for disposal in the light of opinion rendered by us on this reference.

W. P. No. 4204 of 1977:-

35. The learned Government Pleader for Industries has made an oral application for grant of leave to appeal to the Supreme Court of India under Art 133 of the Constitution. But we do not think any substantial question of law of general importance arises which, in our opinion, requires to be decided by the Supreme Court of India. Hence leave is refused.

36. Order accordingly.


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