HIGH COURT OF ORISSA : CUTTACK O.J.C. No.2905 of 1994 In the matter of an application under Articles 226 & 227 of the Constitution of India. -------------Sitaram Patel & Others ……. Petitioners -VersusCollector, Sambalpur & Others For Petitioners ……. Opp. Parties : M/s. C.A. Rao, S.K.Behera, P.K. Sahoo and A. Tripathy. For Opp. Party Nos.1 to 3: Additional Government Advocate For Opp. Party No.4 : M/s. A. Mohapatra, H.N. Mall, R.C. Sahoo & B. Nayak --------------- P R E S E N T: THE HON’BLE MR. JUSTICE INDRAJIT MAHANTY. Date of hearing:
03. 04.2008 I. Mahanty, J.Date of Judgment:
12. 07.2012 In this writ application, the petitioners have sought to challenge the order dated 18.01.89 passed in O.L.R. Case No.07 of 1986 under Section 23 of the Orissa Land Reforms Act, 1960 (In short ‘O.L.R.’ Act) under Annexure-1/1, wherein, the learned S.D.O., Sadar, Sambalpur had concluded that the transfer of land in favour of the 2 petitioners by registered sale deed, belonging to the opposite party No.4, who is a member of Scheduled Tribe, was void since no prior permission for sale as required under Section 22 of the O.L.R. Act, 1960 had been obtained and directed restoration of the land in favour of opposite party No.4 under Section 23 (3) of the O.L.R Act, 1960. Being aggrieved by the order of the learned S.D.O., Sadar, Sambalpur, the present petitioners preferred an appeal before the learned A.D.M., O.L.R., Sambalpur which was registered as O.L.R. Appeal Case No.12 of 1989 (Annexure-2) and the said appeal came to be allowed (in favour of the petitioners) by order dated 16.04.1990 on the ground that the alleged transfer of land had been made on 27.04.1964, whereas the O.L.R. Act, 1960 came into force on 01.10.1965 and, therefore, the appellate authority came to hold that the provisions of O.L.R. Act, 1960 were not applicable for the said transfer for land. Being aggrieved by the said order, the opposite party No.4 preferred a revision before the learned Collector, Sambalpur in O.L.R. Revision Case No.4 of 1990, whereby, the learned Collector, Sambalpur by his order dated 11.03.1994 under Annexure-3 was pleased to quash the order of the learned A.D.M., O.L.R., Sambalpur in appeal and affirmed the order passed by the learned S.D.O., Sadar, Sambalpur and directed restoration of the land in favour of the opposite party No.4 herein”
2. Mr. C.A. Rao, learned counsel appearing for the petitioners, inter alia, contended that the petitioners had purchased the disputed land through a Registered Sale Deed No.1787 dated 27.04.1964 and the same was duly executed by one Bhagirathi Naik (the father of the present opposite party No.4), one Dasarathi Naik (the paternal uncle of the present opposite party No.4) and one Lokanath Naik, the present opposite party No.4 himself, being minot through his father guardian. It was stated that after receiving the total amount of consideration, the vendors delivered the possession of the disputed land to the present petitioners on the same date of the execution of the Registered Sale Deed and the petitioners being the rightful owner in possession continued to enjoy the disputed land without facing any disturbance. In the year 1981, the present petitioners have filed a Mutation Case No.610 of 1981 before the learned Tahasildar, Rengaloi, who after enquiring the factum of possession, directed for mutation of the disputed land in the names of the present petitioners. It was further asserted on behalf of the petitioners that the transfer of the disputed land took place on 27.04.1964 and the relevant provision under Section 23 of the O.L.R. Act, 1960 (relating to the transfer of immovable property by Scheduled Tribe persons) had not come into force by then, since the said provision came into force only with effect from 17.08.65 i.e. after transfer of the disputed land. 4 It was further contended on behalf of the petitioners that the present opposite party No.4 and his father as well as uncle belong to “Raj Gond”. caste and the said caste was not included under the Schedule Tribe Community as defined under the Constitution (Schedule Tribes) order 1950. On the other hand, it was asserted that insofar as State of Orissa is concerned, the caste “Gond”. was included as “Scheduled Tribe”.. The caste “Gond”. as well as “Raj Gond”. both were included under Scheduled Tribes Community for the State of Maharashtra and not for Orissa. It was stated that the caste “Raj Gond”. cannot be treated as Scheduled Tribe community insofar as State of Orissa is concerned. Therefore, since at the time of the aforesaid transfer i.e. on 27.04.1964 permission from competent authority was required only for transfer of land by the Scheduled Tribes member and the present opposite party No.4, his father and uncle being members of “Raj Gond”. caste, did not come under the Scheduled Tribe community. Hence, no permission under Section 22 of the O.L.R. Act, 1960 was required for such transfer.
3. On the records of the proceeding, it appears that the present opposite party No.4 filed a petition under Section 23 of the O.L.R. Act, 1960 before the learned S.D.O., Sadar, Sambalpur, praying to set aside the sale made through the Registered Sale Deed No.1787 dated 27.4.1964 and for recovery of the possession of the disputed land. In such proceeding, the learned S.D.O., Sadar, Sambalpur vide his order 5 dated 18.01.1989 in O.L.R. Case No.7 of 1986 under Annexure-1/1 came to hold that the sale of the disputed land in favour of the present petitioners was void as no permission for transfer as contemplated under Section 22 of the O.L.R. Act, 1960 has been taken from the competent authority and, therefore, the same was liable to be declared as void and the land in question was required in law to be settled in favour of the present opposite party No.4 under Section 23 of the O.L.R. Act, 1960. After taking evidence from both sides and going through the documents relied upon by both the parties, the learned S.D.O., Sadar, Sambapur came to conclude that even though it was contended on behalf of the opposite parties (Petitioners herein) that the O.L.R. Act , 1960 was not in force in the year 1964, yet there existed a restriction/ bar for transfer of land of the Scheduled Tribes under the C.P. Tenancy Act, 1898, which was in operation at that time and since, admittedly, no permission for transfer of land had been obtained from the competent authority under the C.P. Tenancy Act, 1898 by the writ-petitioners, as such, the transaction in question was void. In this respect reliance was placed by him on a judgment passed by the Board of Revenue in O.L.R. Revision Case No.68 of 1982 published in C.L.T. Vol-56 of 1983. The learned S.D.O. after consideration of the rival contentions came to a finding that in the “Hamid settlement”. the disputed land had been recorded in the name 6 of Padmalochan Naik, who was the father of Bhagirathi and Dasarathi and in the “Major settlement”. this land had been recorded in the name of Bagirathi and Dasarathi Naik, sons of Padmalochan Naik. He further found that even though in the sale deed the caste of the vendors had been mentioned as “Raj Gond”., yet from the evidence of the opposite parties, he came to a finding that they belongs to “Gond”. by caste and No.“Raj Gond”. and the said finding was arrived at on the basis of the further finding that there was no caste called “Raj Gond”. in the State of Orissa. Therefore, he came to a conclusion that the opposite party No.4 belongs to “Gond”. caste which was admittedly a Scheduled Tribe in the State of Orissa. Having arrived at such a finding reliance was placed on the decision given by the Board of Revenue in O.L.R. Revision Case No.68 of 1982 reported in C.L.T. Vol-56 of 1983. Reliance was also placed on a circular issued by the Government of Orissa in the Revenue and Excise Department in their letter No.6723/AG 7/76 and in paragraph-5 thereof, it was stated that, the provision of Claus(b) of Sub Section (2) of Section 46 of the C.P. Tenancy Act 1898 (as amended by the Orissa Act XIII of 1953) put restriction regarding transfer of land by members of Scheduled Tribes to others. Hence, even in 1964, when the sale deed was registered in favour of the petitioners, there was a necessity for the purchaser to obtain “prior permission”. from the competent authority 7 under the C.P. Tenancy Act, 1898 before effecting transfer of the land in favour of the petitioners since the vendors were members of the Scheduled Tribe. In the said decision, it had been held that Section 23 of the O.L.R. Act, 1960 will be applicable to such transfer, even though the O.L.R. Act was not in force at the time of transfer.
4. The present petitioners have relied upon the judgment of this Court, reported in C.L.T. 1980 short note 25 page-14 and submitted that this judgment of the High Court though placed before the learned S.D.O. Sadar, Sambalpur, was not properly understood. The aforesaid judgment of the High Court is quoted hereunder. “Admittedly no permission for alienation of land was taken. In fact, there could be no scope for taking of such permission inasmuch as Section 22 or for the matter or that the entire Chapter-II of the Orissa Land Reforms Act where Section 22 occurs was not in force on the date of Ext.1 (registered sale deed). The provision became operative only in 1965. The alienation under Ext.1 without previous permission in writing of the Revenue Officer was not void at the time the contract of sale had been entered into. Section 22 does not purport to have retrospective effect and, therefore, the transaction which had already been completed could not be hit by Section 22 of the Act.”
. The learned S.D.O. came to a conclusion that, while the said judgment of this Court was not doubt binding, the facts of the said case were not available in the said notes of the judgment and the said judgment was not a case where it was contended that “prior permission”. of transfer of S.T. land was required by law existing at the time of transfer in the form of C.P. Tenancy Act (as amended by the 8 Orissa Act XIII of 1953). The learned S.D.O. further came to conclude that the C.P. Tenancy Act, 1898 was in force in the area, where the disputed land exist, as on date of the alleged transfer. Therefore, since the C.P. Tenancy Act, 1960 (amended by the Orissa Act XIII of 1953) required prior permission of the Revenue Officer, even though, the amendment under Section 22(b) of Sub Section(2) of the Orissa Land Reforms Act, 1960, came into effect only in the year 1965, yet, the sale was void, on account of lack of non-obtaining of necessary permission from the Revenue Officer, as contemplated under the C.P. Tenancy Act, 1898. In this respect, the learned S.D.O. relied upon Clause(b) of Sub-Section-2 of Section 46 of the C.P. Tenancy Act (as amended by Orissa Act XIII of 1953) and came to hold that the said provision put restriction on transfer of land by Scheduled Tribe to a persons who do not belong to Scheduled Tribe even in the year 1964 since the C.P. Tenancy Act, 1960 was in force at the time of transfer. Hence, the sale made through Registered Sale Deed No.1787 dated 27.04.1964 in favour of the petitioner was declared to be void under Section 23(2) of the O.L.R. Act, 1960.
5. This order of the learned S.D.O., Sadar, Sambalpur, was challenged by the petitioners before the learned A.D.M., O.L.R., Sambalpur in O.L.R. Appeal Case No.12 of 1989 (under Annexure-2) and the said appeal came to be allowed in favour of the petitioners by order dated 16.04.1990 on the ground that the transfer had been 9 made on 27.04.1964, whereas the O.L.R. Act, 1960 came into force on 01.10.1965 and, therefore, the lower appellate authority came to hold that the provisions of O.L.R. Act, 1960 were not applicable.
6. The order of the learned A.D.M., O.L.R., Sambalpur was challenged by opposite party No.4 before the learned Collector, Sambalpur in O.L.R. Revision Case No.4 of 1990 and by judgment dated 11.03.1994 (under Annexure-3), the said revision was allowed, the order of the lower appellate authority (Annexure-2) was quashed and the order of the learned S.D.O., Sadar, Sambalpur (Annexure-1/1) confirmed by the learned Collector, Sambalpur. In the said revision, the present petitioners had raised similar grounds and the learned Collector, Sambalpur came to conclude that, though at the time of transfer of disputed land in question in favour of the petitioners on 27.04.64, the Orissa Land Reforms Act, 1960 had not been promulgated, even then in the sale of the disputed land, was required to comply with the provision of clause-(b) Sub-Section(2) of Section 46 of the C.P. Tenancy Act 1898 (as amended by the Orissa Act XIII of 1953) which required prior permission for transfer of land held by member of S.T. to members of Non-S.T and such mandate of law was in operation. Hence the learned Collector concluded that, it was a mandatory requirement for the petitioner (opposite party No.4 herein) to obtain necessary “prior permission”. from the competent authority before registering the sale deed and for effecting of lawful 10 transfer of land to the opposite parties (petitioners herein) in the year 1964. Thus he concluded that it was amply clear from the facts of the case that Section 23 of the O.L.R. Act, 1960 would become applicable and consequently upheld the order of the learned S.D.O., Sambalpur and quashed the order of the lower appellate authority.
7. Having heard learned counsel for the petitioners as well as the learned counsel for opposite party No.4 and after having perused the contentions raised in the petition as well as the judgments impugned herein, I am of the view that two issues arises for consideration in the present case i.e.: (1) Whether the opposite party No.4 belong to the Scheduled Tribe Community or not?. (2) Whether the Registered Sale Deed dated 27.04.1964 prior to coming into effect of the O.L.R. Act, 1960 on 01.10.65, can be the subject matter of the proceeding and directions and/or orders under the O.L.R. Act, 1960?.
8. Insofar as the first issue is concerned, the same is answered in favour of the opposite party No.4 and against the petitioners, inter alia, on the ground that the learned S.D.O., Sadar, Sambalpur in O.L.R. Case No.7 of 1986, in a proceeding under Section 23 of the O.L.R. Act in his judgment dated 18.01.1989 under Annexure-1/1 has categorically concluded the fact that, even though in the impugned sale deed, the caste of the vendors has mentioned as “Raj 11 Gond”., but from the evidence of the petitioner (Opposite party No.4 herein), he found that they belong to “Gond”. by caste and No.“Raj Gond”.. He further concluded that there was no caste in the State of Orissa called “Raj Gond”. and, therefore, came to hold that, since the opposite party-vendors belongs to “Gond”. by caste they belonged to the Scheduled Tribe for the State of Orissa. This finding of fact has been affirmed by the learned Collector, Sambalpur in the order of Revision dated 11.03.1994 (Annexure-3) passed in O.L.R. Revision Case No.4 of 1990. The findings of the learned S.D.O. were based upon both oral as well as documentary evidence. It is well settled in law that the mere mentioning of one’s caste in a sale deed cannot be determinative of the caste of a person. Once the trial court as well as the revisional court have affirmed a finding of the fact vis-a-vis the caste of a person, in a writ jurisdiction this Court need not enter into re-determination of any such finding of fact since this Court in writ jurisdiction is limited to consideration of questions of law. Accordingly, I am of the considered view that since the trial court as well as the revisional court have held that the opposite party No.4 belongs to “Gond”. by caste, therefore, this Court accepts such findings of facts and notes that the opposite party No.4 belonged to “Gond”. by caste and, therefore, is a member of Scheduled Tribe.
9. The next issue raises some interesting questions. Admittedly, the sale deed was registered on 27.04.64 and the O.L.R. Act”
12. came into force on 01.10.1965 yet, at the time, when the sale deed was effected i.e. on 27.04.64, the area in which the land is located was governed by the C.P. Tenancy Act, 1898 (as amended by the Orissa Act XIII of 1953). In view of Claus(b) of Sub Section (2) of Section 46 of the C.P. Tenancy Act 1898, it was the mandatory requirement that, permission had to be obtained prior to sale of land by a Scheduled Tribe person to a person who does not belong to Scheduled Tribe. Admittedly, the present petitioners are not the members of any Scheduled Tribe but belong to a General caste. It is also an admitted fact that, no permission under the C.P. Tenancy Act, 1898 (read with Orissa Amendment Act XIII of 1953) had been obtained by the petitioners. The objects and reason behind imposing such restrictions is well documented in several judgments of the Hon’ble Apex Court as well as the Hon’ble High Courts and need not be reiterated.
10. The Orissa land Reforms Act, 1960 and in particular Section 61 thereof categorically declare that, any order passed under the provision of this Act shall be subject to order passed in appeal or revision may be final and shall not be questioned in any court of law. In fact Section 67 specifically bars the jurisdiction of civil courts. While, there exists no bar to challenge an order under Articles 226 and 227 of Constitution, yet, the scope of such challenge is to be limited to only questions of law. By Section 74 of the O.L.R. Act, 1960, 13 while repealing the Orissa Land Tenant’s Relief Act 1955, on the same time Sub-Section(2) categorically stipulates that repeal shall not effect the previous operation of the said enactment or anything duly done or suffered there under or any right, privilege, obligation or liability acquired, accrued or incurred under the said enactment. It would be appropriate to mention herein that at the time of creation of the State of Orissa, certain areas were governed by the Madrass Presidency, Bengal Presidency, State of Bihar and Central provinces. Accordingly, until the State of Orissa created enactment to cover the entire State, various tenancy laws of different states applied to various parts of State of Orissa. Insofar as the case land is concerned, this land is located in the District of Sambalpur and until the enactment of the O.L.R. Act, 1960, this area was governed by the Central Provinces Tenancy Act, 1988 read with Orissa Amendment Act XIII of 1953.
11. As noted hereinabove, Clause(b) of Sub-Section(2) of Section-46 of the C.P. Tenancy Act, 1898, clearly imposed restriction regarding transfer of land by members of the Scheduled Tribe to nonmembers and Revenue Officer’s prior permission was required for such purpose. Admittedly, in the present case, no such permission as contemplated under the C.P. Tenancy Act, 1898 read with Orissa Amendment Act XIII of 1953 had been obtained by the petitioners, prior to registration of the sale deed. Therefore, all such transfer as held by the learned S.D.O. and confirmed by the learned Collector in 14 revision, have in my considered view been correctly declared to be void. Insofar as the notes of judgment of this Court relied upon by the present petitioners is concerned, reported in C.L.T. 1980 short note 25 page-14, I am completely agreement with the findings arrived at by the learned S.D.O., Sadar, Sambalpur, inter alia, on the ground that, the said case was not a case where the Hon’ble Court considered an existing enactment prior to the O.L.R. Act 1960 where law required prior permission to be obtained. In other words, that was not a case where, even prior to the O.L.R. Act, 1960 into force, prior permission of the Revenue Officer was mandatorily required as stipulated under the C.P. Tenancy Act, 1898 read with the Orissa Amendment Act XIII of 1953. Therefore, I am of the considered view that the said judgment has no application to the fact situation that arises for consideration in present case. On the other hand, the reliance placed by the learned S.D.O., Sadar, Sambalpur on the judgment rendered by the Board of Revenue in O.L.R. Revision Case No.68 of 1982 reported in C.L.T. Vol-56 of 1983 has been correctly applied to the facts and circumstances of the present case and the said facts are similar to the facts which arose for consideration in the present case.
12. Accordingly, I find no merit in the present writ application and, therefore, the writ application stands dismissed and the order passed by the learned S.D.O., Sadar, Sambalpur in O.L.R. Case No.7 15 of 1986 as affirmed by the learned Collector, Samablpur in O.L.R. Revision Case No.4 of 1990 is hereby affirmed. All the interim orders stand vacated. No costs. ……………………… I.Mahanty, J.ORISSA HIGH COURT : CUTTACK 12 h July, 2102 /PKP