P. Gangamma vs Vasudha Misra and Another

This contempt case is filed contending that the order of this Court dated 18-11-1997 has been violated by the contemnors.

During the pendency of the contempt case at the instance of Sakthi, Non-Governmental Organisation (for short ''NGO''), a meeting of the officials of various departments has taken place in the chambers of Pr-1, Secretary (SW), Department, Government of A.P., at Hyderabad on 22nd October, ''97 and they arrived at an undertaking on the modalities to be adopted for implementation of the provisions of various regulations. The decisions taken in that meeting and the instructions given by the Government earlier on the subject pursuant to the Cabinet Sub-Committee meeting held on 24-9-1997 were produced before this Court.

With referenceto various regulations relating to tribal areas that arc in force, the Government has taken up survey operations excluding NGOs and tribals to identify the lands held by the tribals as well as the non-tribals, on 6-1-1997 pursuant to a review meeting held in the chambers of the Chief Secretary to contain tribal unrest in West Godavari District on 30-12-1996. This has resulted in law and order problem in the agency area of W.G. District and the issue has been discussed at various levels i.e., at the official level, Committee of Ministers. In all these meetings, several guidelines were given to the staff for implementation of Agency Laws. While some directions are overlapping, some others require clarification and the Court feds that some more guidelines are required for the effective implementation of the legislations that are governing the field. Hence, the Court requested senior Counsels Sri B. Tharakam who is well versed with the problems of the tribals and also another senior Counsel Sri M.R.K. Chowdary who hails who hails from the tribal areas and having sufficient knowledge and experience having appeared in various Court matters on behalf of non-tribals.

The Government was issuing various guidelines from time to time to resolve the disputes in the tribal areas over the land and to protect the interest of tribals as well as non-tribals. The experience of this Court is that as and when there is some trouble in the agency area, the officials concerned will pass some orders without looking into the record and without giving any opportunity to the non-tribals to putforth their cases. These orders naturally resulted in a plethora of appeals. With the result the symbolic acts done by the officials in implementing the regulations did not yield any results and infact these regulations in the statute book are staringly looking at the civilised society without implementation.

Before giving guidelines, I would like to advert to the historical background of the laws of the agency for better understanding of the problem by all the concerned. Both before and after Independence, the tribal areas have been treated separate from the plains and they are governed by separate set of laws in view of the living conditions of the tribals prevailing in the tribal areas. As we are now concerned with the land, I am referring only to those regulations meant for the welfare of the tribals remained on the statute book un-implemented. It is also seen from the record that as and when there is an unrest in the tribal areas resulting in loss of properties and lives, the Government was coming up with some regulations to pacify the situation. The first among them is the Agency Tracts Interests and Land Transfer Act 1/1917. Under that a tribal can alienate his land to a non-tribal only after obtaining the written permission of the agent to the Government and the District Collector is nominated as agent to the Government. This Act came into force as a sequel to the rampa rebellion of 1879. After attaining freedom, the Constitution was adopted on 26-1-1950. Part X deals with the administration of Scheduled areas. While provisions of V Schedule are applicable to the Scheduled areas in States other than Assam, Meghalaya, Tripura and Nagaland, those States are governed by the provisions of VI Schedule. Under Part ''A'' of the above Schedule, the Governor of the State has to submit the status report annually or whenever the President requires it regarding the administration of the Scheduled areas in the State and the Union is empowered to give directions to the State as to the administration of said areas. In Part ''B'' of the Schedule it is stated that for administration of these Scheduled areas in every State, the Tribes Advisory Council has to be constituted with not more than 22 members of whom atleast 3/4th shall be the representatives of the Scheduled Tribes in the Legislative Assembly of the State. If the number of Scheduled Tribe representatives in the Legislative Assembly is less than the number of seats to be filled in by such representatives, the remaining seats shall be filled by either members of those tribes. The Tribes Advisory Council is duty bound to advise the Government on such matters pertaining to the welfare and advancement of the Scheduled Tribes in the State. It is not in dispute that several representatives are being elected from Scheduled Tribes and if the Counsel is really functioning, it is not known how such pathetic conditions in the tribal areas are continuing even after 50 years of Independence. Perhaps, this question can be answered by the so-called representatives of tribals themselves than any others. A time has come to question their inner hearts what they are doing for the people, who sent them to the Legislative Assembly.

Leaving the matter there, the Governor is empowered to make regulations to enforce peace and good Government in any Scheduled area in the State, in particular without prejudice to the generality of the foregoing power. Such regulations may prohibit or restrict the transfer of land or by any member of the Scheduled Tribes in such area.

Under Regulation 5(3), while making regulations for the above purpose, the Governor is empowered to repeal or amend any Act rendered by the State or any existing law which is for the time being applicable to the area in question. Under Regulation 5(5), if Tribes Advisory Council is functioning in the State, such regulations can be issued only in consultation with the Council. Under Part ''C'', the President is empowered to issue an order at any time declaring particular area as Schedule area or seized to be a Scheduled area. After the advent of the Constitution the first regulation that came into force is of the year 1959 i.e., the Andhra Pradesh Scheduled Areas Land Transfer Regulation, 1959. Under this regulation, no tribal can alienate his land to a non-tribal, while transfer of land between non-tribals are permitted. This regulation was amended by the Andhra Pradesh Scheduled Areas Land Transfer Regulation of 1970, (hereinafter referred as ''Regulation I of 1970''). Under this regulation, a presumption has been created that all the lands in Scheduled areas belong to tribals unless proved otherwise. In other words the burden of proof lies on non-tribals to prove that the land does not belong to a tribal. It is needless to observe that this regulation was enacted to prevent the growth of naxalite movement that has started in the State in the year 1968 in Sreekakulam Forest. At the same time, another regulation i.e., the Andhra Pradesh (Scheduled Area Ryotwari Settlement) Regulation, 1970 (herein after referred as ''Regulation n of 1970''), was made dealing with the villages in the erstwhile Estates which were abolished in the year 1948 and taken over by the Government, but at the same time the survey and settlement operations could not be finalised. Under this regulation, a non-tribal has to prove his legal and uninterrupted possession atleast 8 years prior to the abolition of the estate. The respondents went a step ahead by issuing an amendment to the Regulation I of 1970 in 1978 providing penal provision for violation of the provisions of the regulations i.e., a penalty of imprisonment of one year was imposed on persons violating the land transfer regulations, and the Supreme Court upheld the amendment. Though the authorities claim to be passing orders under these regulations from time to time there seems to be no instance where action was initiated under this amendment. Thus though an impression is given that everything possible is being done to prevent exploitation of tribals on paper, in action the officers implemented these regulations more in breach.

As stated supra, as and when some unrest or discontentment is expressed by the tribals, the Governmental machinery immediately jumps into action and pretends that they are taking action to evict non-tribals from the lands belonging to the tribals. In their enthusiasm, the Courts have noticed, time and again that these Special Deputy Collectors (Tribal Welfare) who are entrusted with the duty to enquire into the claims of the tribals, were passing orders without observing even the principles of natural justice. Such orders have naturally resulted in appeals to the agent, who normally sits over the appeals tilt another unrest arises in the area. When the situation is again going out of control, the agent without bothering whether notices are served or not, whether Advocates are present or not passes some orders and wash of his hands. The matter, thereafter, comes to Secretariat by way of a revision and again the concerned Secretary having entertained the revision thinks that his duty is over by staying the operation of the orders of the agent till another unrest takes place. Again the orders passed by the Government will be the subject matter of writ petitions in the High Court. With the result though Regulation 1959 came into force nearly half a century ago, the instances of restoring the land to the tribals are very very meagre, if I cannot say no.

At this stage, the learned Government Pleader takes serious objections to the observations made by the Court stating that there is no material to substantiate the observations made by the Court. It is suffice to state that the writ petitions that are being filed in this Court from time to time themselves speak of these facts.

While the implementation of the land transfer regulations are going in this manner, the Government seemed to have issued executive instructions for assignment of Government land in tribal areas from time to time. Initially the Government issued G.O.Ms. No.971, Revenue, dated 7-10-1969, whereunder orders were issued prohibiting assignment of Government lands situated in Scheduled area to non-tribals. The said GO. was amended by G.O. Ms. No.41, Revenue, dated 12-10-1997, directing the authorities concerned not to evict the Sivai Zamadars in occupation of Government lands up to an extent of Ac. 2-1/2 wet or Ac. 5.00 of dry land, if they are in continuous possession of those lands for a period of not less than 10 years. Subsequently, in 1974, the Government issued yet another order in G.O.Rt.No.951 (CE&SW) Department, dated 4-12-1974 directing the authorities concerned not to evict Sivai Zamadars belonging to Scheduled Castes in occupation of Government lands upto an extent of Ac. 2-1/2 wet and Ac.5.00 dry land, if they are in occupation of those lands since 1969. Once again in 1979, the Government issued G.O. Ms. No.129 (SW) Department, dated 13-8-1979, directing the officers concerned not to evict non-tribal land less poor persons in occupation of Government lands in Scheduled areas upto an extent of Ac.5.00 of wet land or Ac. 10.00 dry iand. Questioning the said G.O. A.P. Girijan Welfare Students and Youth Union, Kowuru, filed Writ Petition No. 1755/90 in the High Court of A.P. which intum quashed the G.O. by its order dated 5-12-1984 by holding that the Government order is illegal and without jurisdiction. But, the officers of the Tribal Welfare Department did not take any action for evicting the non-tribal Sivai Zamadars in occupation of the Government land in Scheduled areas by contending that though G.O.Ms.No.129 was struck down by this Court the G.Os. issued earlier i.e.. G.O.Rt.No.951 and GO. Ms. No.41, shall continue to be in operation as those G.Os. were not specifically struck down by the Court. This has naturally caused heart bum among the tribals. In the mean time, the Non-Governmental Organisations (for short ''NGO'') like Sakthi, Tara and political parties like CPI (M) started organising tribats and educating them of their rights in the lands in Scheduled areas. By 1996, the issue has been taken a violent turn and a series of clashes between tribals and non-tribals started taking place in the agency areas in W.G. District. To pacify the said situation the senior officers at the Governmental level once again started monitoring developments that are taking place in West Godavari District. In that direction, the Commissioner Tribal Welfare, Hyderabad in Fax message No.2278/96/TRI/RLW, dated 6-1-1997 communicated the decisions taken by the Chief Secretary to Government after reviewing the tribal unrest in the District. To avoid repetition,. I am not adverting to the decisions taken by the Chief Secretary or as a matter of fact, the subsequent meetings where decisions have been taken, as they will be dealt with while giving directions by this Court. Having received the fax message, the Government officials seemed to have started survey operations without permitting the representatives of the NGOs or the tribals and the situation became further worse. Though a decision was taken to convene a meeting in the chambers of the Chief Ministers at 3:30 p.m. on 17-2-1997 with the representatives of various NGOs, the same seemed to have not been convened for the reasons best known to the Government. Subsequently, as the situation is further deteriorating a Cabinet Sub-Committee meeting under the Chairmanship of the Hon''ble Minister of Revenue has taken place on 11-8-1997 in his chambers, followed by another Cabinet Sub-Committee on 24-9-1997. The decisions taken in these two meetings also did not yield much results, and the mode of verification of the claims of the rival claimants became the bone of contention between the tribals, NGOs on one side and the Government and the non-tribals on the other. A meeting of senior officials with Director, SAKTI has taken place in the chambers of Principal Secretary (SW) on 4:00 p.m. on 22nd October, 1997, wherein some more directions were given for verification of the claims of the respective parties.

I have gone through the decisions taken by these Committees from time to time and I am satisfied that by and large they are likely to serve the purpose. But, I feel, while some decisions require clarification some other require modification apart from giving some more directions to achieve the desired results and to have a finality to the long drawn disputes between the tribals and non-tribals and for restoration of peace and harmony in the area.

Further, as observed supra, the Court is having a feeling that though the Governmental Officers now and then tried to give an impression that the land transfer regulations are being implemented, they were never implemented in their proper perspective and the ultimate victims are peace and tranquility in the Scheduled areas, apart from leaving the tribals in utter poverty even without bread, butter, clothes and shelter. Likewise, Damoclean sword was always hanging over the head of the non-tribals who migrated to tribal areas and acquired properties and they do not know how things are again to take shape in a given set of circumstances. I fed that the rights of the tribals and non-tribals should not only be protected but also there should be a quitos to the disputes. Keeping all these factors in mind I am inclined to restate the decisions taken by the various Committees from time to time in the form of an order of the Court fixing time limit for implementation of the same and to arrive at a finality to the dispute. The directions that are going to be given hereunder are not only consolidated but also comprehensive and are intended to be a one time measure. In other words the record of rights over the land in tribal areas that are going to be prepared in accordance with the guidelines given hereunder shall be final and binding on all the parties including the Government, of course, subject to the appellate jurisdiction.

District Level Committee :

(1) The entire process of implementing land transfer regulations including assignment of Government lands has to be done under the supervision of a District Level Committee, headed by the District Collector, representatives of the NGOs and political parties. Each of them shall be represented by one of their representatives.

(2) The decisions taken from time to time by the District Level Committee as well as the Village Level Committee should reflect in the form of resolutions reduced to writing in the minutes book maintained by each of them separately.

(3) The survey operations conducted in the years 1919 and 1934 in all the Government villages shall form basis for the verification of the claims of the respective parties.

(4) From the minutes of the Cabinet Sub-Committee meeting held on 11-8-1997 in the chambers of the Hon''ble Minister for Revenue, it is seen that as per the report of the Collector, 22 posts of VAOs in three Mandals are left unfilled and as the process of filling up of these vacancies with Scheduled Tribe candidates being a long drawn process, for the purpose of conducting survey operations and re-verification, the services of retired VAOs or qualified persons holding the posts of VAOs may be availed by paying consolidated amount to them for undertaking this work.

(5) This Committee shall constitute committees for all the Government villages to supervise the re-verification of the records and see that absolute peace is maintained during the verification work.

(6) The village Committee shall consist of surpanch of the village, Village Development Officer and three tribals among which one should be a Scheduled Caste person, one should be a Backward Class person and one should be an other caste person among which one should be a lady.

A nominee of the NGO well-versed with the Revenue Laws and Survey Operations viz., retired MROs, Asst. Director etc., shall also be included in the Village Level Committee.

The District Level Committee shall fix up the remuneration payable for each of these retired officials.

(7) The Committee shall see that the village maps are prepared and displayed at village chawadi or in a conspicuous place by showing the lands belonging to tribals, non-tribals and tribal lands under the occupation of non-tribals Government lands assigned to tribals and non-tribals as well and the Government lands immediately available for assignment in different colours for easy understanding of the residents, on the basis of revenue records along with a statement containing full particulars of the land i.e., Sy. No., pattedar, possessor, cultivation etc., atleast two weeks prior to commencement of re-verification work.

(8) After such publication, the concerned MRO shall be directed to make available the revenue records for inspection either by the rival claimants or by the representatives of NGOs for about one week. The dates and timings can be fixed for inspection of the records by the District Level Committee.

(9) After up-dating and preparing the records as directed above, the District Level Committee shall fix up the dates village-wise for sending verification teams and publish the schedule drawn atleast two weeks in advance both in the vernacular papers and by beat of ''tom-tom'', in the villages under the supervision of the Village Level Committee.

The schedule shall contain the following :

(a) Date on which the village map with survey numbers and land owner as suggested above, shall be made available in the village.

(b) The date or dates for inspection of records in the MRO Office, time to receive objections, claims from the claimants on either side shall be served by the Village Committee.

(c) The date on which the physical verification of the land with reference to revenue records will be taken up by the Government officials.

(d) The Village Level Committee shall take up the responsibility of serving notices on the rival claimants.

(e) The time limit to file their claims before the Special Deputy Collector (Tribal Welfare) under the land transfer regulations.

(10) Depending upon the work to be undertaken village-wise, the District Level Committee shall requisition the services of the necessary staff from Revenue and Survey Departments and each team shall be headed by an officer of the rank of not less than MRO.

(11) During the verification and survey operations, the non-tnbals who are found to be in possession of the lands belonging to tribals after 1917 regulations shall be asked to substantiate their claim to hold the property.

(12) Even if the case is pending before various judicial forums, the survey team shall complete the work of physical verification with reference to the records maintained by the Government and the title held by the non-tnbals, if necessary, by giving sufficient opportunity to prove their title to the property.

(13) After completion of the verification work, the Village Level Committee shall issue a joint statement as to the outcome of the survey. A copy of the final list of pattedars with all the details of the lands held by them shall be furnished to Project Officer for computerisation and also to report the result of the verification work to the Commissioner of Tribal Welfare.

(14) Five sets of the records should be prepared after completion of the verification work and they should be kept at the offices of the Collector, the Sub-Collector, the MRO, the Project Officer (TTDA) and the Commissioner for Tribal Welfare. The officers concerned shall take every possible step to preserve the records in the safe custody.

Assessed Waste Dry Lands

(1) It is not in dispute that G.O. Ms.No.129, (SW) Department, dated 13-8-1979, whereunder the Government has taken a decision not to evict non-tribals occupied Government lands upto Ac.5.00 wet land or Ac.10.00 dry land was struck down by this Court in its order dated 5-12-1984, but from the minutes drawn in the meeting of the Cabinet Sub-Committee held on 24-9-1997, it is seen that the Government Officials were under the impression that only the above G.O. was struck down and the remaining G.Os, issued earlier i.e., G.O.Ms.No.41 (Revenue), dated 12-10-1971 and G.O.Rt. No.951 (E&SW) Department, dated 4-12-1974 are still in vogue and the non-tribal sivai zamadars who are covered by the above G.Os. need not be disturbed.

Admittedly, these G.Os. were issued by the State Government in exercise of its executive powers contrary to the land transfer regulations. In fact, the subsequent G.O- i.e., G.O. Ms. No. 129, was quashed by this Court. The same reasoning was given by the High Court for quashing the said G.O. is equally applicable to these two G.Os. and it is well established principle that the State cannot issue orders in exercise of its executive power contrary to the statute. Hence, all the G.Os. permitting the continuance of the non-tribal Sivai Zamadars shall be ignored and all of them have to be necessarily dispossessed by following due process of law and by pressing into service the provisions of A.P. Land Encroachment Act.

In the light of the legal position, it is made clear that the decision of the Cabinet Sub-Committee meeting, not to evict non-tribal Sivai Zamadars covered by G.O. Ms. No.41 and GO. Rt. No.951, shall not be given effect to.

(2) With regard to the Government lands assigned in contravention of the land transfer regulations all the assignees shall be given show-cause notices why the assignment in their favour should not be cancelled and pass orders adverting to the objections raised by the assignees with reference to the Agency Laws.

(3) In the mean time, the lands available for assignment shall be assigned by identifying the eligible tribals without any further loss of time, at any rate not later than two months.

(4) The decision to assign the lands has to be taken on the merits of the individual cases and no scope should be given for political patronisation.

4(a) To minimise the plethora of appeals and to avoid unnecessary criticism, it is advisable to take up the assignment work by the District Level Committee itself.

(5) Each MRO, shall prepare the list of applicants with necessary information about their financial status etc. The assignment should be made strictly in accordance with the Board''s standing orders i. e., the poorest among the poor should get first priority in assignment of the lands.

(6) The Scheduled Caste Sivai Zamadars and the assignees of the Government lands who are going to be dispossessed in the re-verification process shall be assigned alternative lands in the plains, if they are willing to move out from the tribal areas and settle in plains.

(7) If the possession of any of the tribals on the Government lands is found to be non-objectionable, they shall be given pattas conferring ownership rights on them within the above stipulated time.

Estate Villages :

From the minutes of the Cabinet Sub-Committee meeting held on 24-9-1997, it is seen that just before the abolition of the estates, the land holders accelerated issuance of pattas in several cases even with regard to the waste lands in the estates by receiving paltry sums. It is also on record that the pattas given by the land holders were not yet confirmed on various grounds and such lands were classified as "Assessed Waste Dry" in survey records. It is also seen that Regulation II of 1970 dealing with the lands in the estate villages came into force on 3-3-1970.

(1) The settlement officer is directed to reopen all the pattas that were granted till now and after giving due opportunity to all the patta-holders shall pass orders with reasons whether they are entitled for pattas or not under the provisions of the regulations.

(2) It is also the case of the tribals as well as NGOs that the settlement officer appointed under G.O.Ms. No.661 (Revenue SS-I), Department, dated 9-8-1996, seemed to have disposed of all cases without following the procedure laid down in the regulations and this is one of the major factors that gave rise to law and order problem in the area. The District Level Committee shall go through all the cases disposed of by the settlement officer and if any order passed by him is not supported by the necessary material, they shall be set at naught and all those cases may be reopened and remanded back to the settlement officer to dispose of the cases afresh in accordance with law.

(3) From the minutes of the Cabinet Sub-Committee meeting held on 24-9-1997, it is seen that about Ac.5,500.00 of Assessed Waste Dry land is available for immediate assignment in these 28 erstwhile estate villages. The process of assignment should be completed strictly in accordance with Board''s standing orders and on the lines already indicated for assignment of Government Lands in the Government Villages.

(4) The lands that were given on ''Eksal'' lease to tribals shall be assigned to them by issuance of the pattas within the above prescribed time.

Judicial proceedings pending before various Forums:

(1) The Special Deputy Collector shall dispose of the pending cases on his file within four months from the date of receipt of a copy of this order, if they are not involved in election work and if the SDC is attending to election work, he shall complete the work by the end of July, 1998.

It is needless to state that every order passed by the SDC shall be supported by the required documentary and also oral evidence. If any of the claimants comes up before him with the plea that the title deeds are pledged with financial agencies like Co-operative Banks etc., they shall be given time to produce certified copies of the title deeds and in the mean time, the SDC shall also obtain information from the financial agencies on the basis of the information given by the parties concerned. The order to be passed shall be based on the records prepared in the survey operations that have taken place in 1919 and 1933 RSR

(2) The appeals pending before the agent of the Government shall be disposed of by 31st July, ''98. Every order passed in exercise of the appellate jurisdiction should confirm to the requirements of the law.

The agent/Collector, shall adjust his work in such a manner that atleast he will hold the Court once in a week till the disposal of all the appeals.

The Collectors instead of depending upon office note should try to dictate the judgments in the open Court after hearing the arguments on both sides in the presence of the advocates so that if any mistakes are committed by him in dictating the judgment, they can be corrected effectively then and there itself.

(3) The revisions pending before the Government shall also be disposed of before 31st July, 1988, on the lines already indicated above.

(4) The appellate/revisional authorities shall also consider the feasibility of remanding the matters to the original authority for fresh disposal after giving opportunity to both the parties to putforth their case, after the entire re-verification process is completed and the village records are prepared afresh.

(5) As already directed, the Government Pleader shall pick up all cases related to this subject and furnish the list of cases pending in the High Court by reopening day, so that all these writ petitions can be posted for orders and can be disposed of in the light of the directions given above.

This contempt case is closed by directing all the concerned involved in the implementation of agency laws including re-verification work, to implement the above directions. It is also made clear that violation of any of the above guidelines will be viewed seriously.