BIDYA MAHANANDA (DEAD), AFTER HIM HIS LEGAL REPRESENTATIVES BAHADUR MAHANANDA v. GAJENDRA BHOI
1996-08-13
P.C.NAIK, P.K.MOHANTY
body1996
DigiLaw.ai
JUDGMENT : P.K. Mohanty, J. - The petitioners have challenged the orders u/s 23-A of the Orissa Land Reforms Act, 1960 (hereinafter referred to as "the Act") passed by Special Officer, Land Reforms, Sambalpur in O.L.R. Revision No. 4/9 of 1980 under Annexure-3 and the order of the Revenue Officer, Titilagarh in O.L.R. Case No. 8/A-55/73 under Annexure-1 of the writ application. 2. The short facts of the petitioners' case are that the petitioners alongwith opp. party No, 3 and their brother Laxmidhar Mahananda, since dead, purchased the disputed property from opp. party No. 2 by a Regd. Sale Deed dated 29-2-1964 for a consideration of Rs. 900/-and remained in peaceful possession thereof since then. 3. On the, basis of an application filed by opp. party No. 1, the son of opp. party No. 2, a proceeding u/s 23-A of the Act was registered and by order dated 21-10-1978, the Revenue Officer, Titilagarh directed that the possession should be restored in favour of the recorded tenants of their legal representatives, inter alia, on the ground that the transfer was invalid being hit by the provisions of Section 7(b)of the Orissa Merged States(Laws)Act, 1950,the transfer having been made without obtaining prior permission of the compete authorities. The petitioner challenged the order of the learned Revenue Officer in an appeal before opp. party No. 5, who allowed the appeal holding that the transfer being prior to 1-10-1965. provisions of the Act are not applicable, inasmuch as the purchasers had perfected their title by adverse possession. Being aggrieved by the order of the appellate authority, opp. party No. 1 filed O.L.R. Revision No. 4/9 of 1980. 4. The revisional authority, on consideration of the material on record, has held that the transfer was irregular as permission u/s 7 by of the Orissa Merged States (Laws) Act had not been taken prior to execution of sale deed. It was further held that in view of the provision of Section 23 A of the Act, the period of limitation being 30 years, the petitioners could not have acquired adverse possession, by his possession since 29-2-1964. 5. Opp.
It was further held that in view of the provision of Section 23 A of the Act, the period of limitation being 30 years, the petitioners could not have acquired adverse possession, by his possession since 29-2-1964. 5. Opp. parties 4, 5 and 6 have filed a comprehensive counter-affidavit controverting the averments and allegations made in the writ application, inasmuch as, it has been specifically stated that the period of limitation in respect of proceedings u/s 23-A of the Act is 30 years and not 12 years as contended, and as such, the orders of the original as well as revisional authority cannot be said to be illegal. It is stated that the petitioners are 'Ganda' by caste, which comes under Scheduled Caste category, whereas opp. parties 1 and 2 belong to Kandha, caste within the category of Scheduled Tribe. 6. Heard learned counsel for the parties. Learned counsel for the petitioners contends that since the transfer was made on 29-2-1964, much prior to 1-10-1955. the provisions of Section 22, 23 and 23-A of the Act are not applicable and, as such, the order passed by opp. party No. 4 and opp. party No. 6 are illegal and without jurisdiction. It is contended that the provisions of the Act are not retrospective in, operation and as such, any transaction completed before the Act cams into force, cannot be impugned by starting a proceeding u/s 23-A of the Act. It is the further contention of the learned counsel that assuming, the transaction was illegal u/s 7(b) of the Orissa Merged States (Laws) Act, there is no provision in the said Act to declare a transfer invalid and the only remedy is to file a suit in Civil Courts. It has been contended that assuming that Section 23-A of the Act is applicable to such a case/the proceeding having started beyond the period of 12 years from the date of sale, it should have been held that the purchasers had perfected their title by adverse possession and the proceeding was barred by limitation. The opp. party No. 6 has committed gross error of law in observing that the period of limitation provided in Section 23-A (2) of the Act is 30 years, while as a matter of fact. Section 23-B(2) of the Act has application only to the proceedings u/s 23 of the Act. 7.
The opp. party No. 6 has committed gross error of law in observing that the period of limitation provided in Section 23-A (2) of the Act is 30 years, while as a matter of fact. Section 23-B(2) of the Act has application only to the proceedings u/s 23 of the Act. 7. The main thrust of the argument of the learned counsel for the petitioner is that the revisional authority has misconceived the scope of applicability of Section 23-B(2) of the Act to a proceeding u/s 23-A of the Act inasmuch as Section 23-B(2) of the Act has absolutely no application to a proceeding u/s 23-A of the Act. A reference has been made to a Bench decision of this Court reported in Siani Nag Vs. Gobardhan Ganda and Others, wherein applicability of Section 23-B (2) of the Act has been considered and decided. While going through the order of the learned Special Officer, Land Reforms in Aunexure-3, we find that the Special Officer has abruptly come the a conclusion that in view of Section 23-B(2) of the Act. the period of limitation having been enhanced to 30 years, the petitioners cannot acquire title by adverse possession without considering the scope of the provision of law inasmuch as without recording his findings on other grounds has come to the conclusion that the appeal ought to have been dismissed on the ground of limitation. This reflects the non-application of mind by the revisional authority to the facts of this case. In that, view of the matter, we are of the considered opinion that it would be appropriate to remit, this matter to the Revisional Authority to hear the revision afresh. So order accordingly. On remand, the Commissioner shall decide/reconsider the matter afresh keeping in mind the law laid down in the case reported in Siani Nag Vs. Gobardhan Ganda and Others, wherein in has been indicated as to what would be the period of limitation in a case covered by Section 23-A of the Act. In view of what has been stated above, this will be the only question which is to be reconsidered by the Commissioner. It is made clear that the Commissioner shall not enlarge the scope to enter into other questions, even if raised. The entire exercise will be completed within a period of three months from the date of receipt of our order.
It is made clear that the Commissioner shall not enlarge the scope to enter into other questions, even if raised. The entire exercise will be completed within a period of three months from the date of receipt of our order. With the aforesaid observation and directions, the writ appplication is disposed of. P.C. Naik, J. I agree.