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1996 DIGILAW 291 (ORI)

JOGESWAR MAJHI v. RAMIA KISAN @ LAKRA

1996-09-25

DIPAK MISRA, P.C.NAIK

body1996
DIPAK MISRA, J. ( 1 ) IN this writ application under Articles 226 and 227 of the Constitution of India the petitioner calls in question the order passed by the Additional District Magistrate, Sundargarh (opposite party No. 2) in Revenue Appeal No. 1 of 1991 under Section 3 (3) of Regulation 2/1956 (hereinafter referred to as 'the Regulation') reversing the order passed by the Sub-Collector, Sundargarh in Revenue Misc. Case No. 24 of 1984 whereby the original authority had directed for restoration of possession to the present petitioner. ( 2 ) THE essential facts which are necessary for disposal of the writ application may be stated thus :-The present petitioner, Jogeswar Majhi instituted Revenue Misc. Case No. 24 of 1984 before the Sub-Collector, Sundargarh claiming restoration of possession from one Ramia Kishan @ Lakra, opposite party No. 1, in the present writ application. A show cause was filed by the opposite party therein indicating that he had not purchased the suit land situated at village Korgaon, Khata No. 150 and Plot Nos. 702 and 703. A report was called for through the Revenue Inspector. On the date of hearing the opposite party was absent and the Sub-Collector on perusal of the report of the Revenue Inspector and the show cause filed by the opposite party allowed the application and directed the Tahasildar to restore possession to the petitioner therein. The opposite party, Ramia Kishan preferred Revenue Appeal No. 1/91 before the Addl. District Magistrate, under Section 3 (3) of the Regulation. The appellant therein contended that the Sub-Collector had passed an absolute cryptic order without discussing the relevant law in the field and properly appreciating the tenor of the show cause submitted by him. It was also canvassed before the appellate authority that Sections 3 and 3 (A) of the Regulations are not applicable if both the parties belong to the Schedule Tribe. The other submission which was putforth before the appellate forum is that the appellant had perfected title by way of adverse possession. The appellate authority came to hold that neither Section 3 nor Section 3 (A) was applicable and the application filed before the Sub-Collector was misconceived. He further held that the appellant therein had not perfected his title by way of adverse possession. The appellate authority came to hold that neither Section 3 nor Section 3 (A) was applicable and the application filed before the Sub-Collector was misconceived. He further held that the appellant therein had not perfected his title by way of adverse possession. He also arrived at the conclusion that the order passed by the Subcollector was cryptic, and adequate opportunity had not been afforded to the contesting party to substantiate his claim. On the basis of the aforesaid analysis he allowed the appeal and directed that possession should be given back to the appellant as the same had already been taken in pursuance of the order passed by the Sub-Collector as reflected in the report dated 28-11-90 submitted by the Revenue Inspector, Kutra. The said order is the cause of grievance of the present petitioner. ( 3 ) A counter-affidavit has been filed by the Sub-Collector who has supported the order passed by him. ( 4 ) MR. B. P. Ray, the learned counsel for the petitioner assailing the order passed by the appellate authority contended that the interpretation given by the appellate authority with regard to the word 'person' occurring in Section 3 (A) of the Regulation is not correct as the meaning of the term 'person' cannot be confined to the Schedule Tribe persons alone. He has further submitted that such a narrow construction would defeat the object and purpose of the Regulation. With regard to grant of opportunity and crypticness of the order passed by the Sub-Collector, the learned counsel submitted that as opposite party No. 1 chose to remain absent on calls no fault should be found with the Sub-Collector in proceeding to determine the controversy. ( 5 ) MR. J. Behera, learned Additional Government Advocate supports the order passed by the Additional District Magistrate and contends that the meaning of the word 'person' in Section 3 (A) has to be read in harmony with the other provisions of the Regulation and cannot be extended to include a member of the Scheduled Tribe. ( 6 ) BEFORE we proceed to address ourselves to the rival submissions at the Bar, we must express our displeasure in the manner in which the Sub-Collector, Sundargarh had disposed of the case by Annexure 1. ( 6 ) BEFORE we proceed to address ourselves to the rival submissions at the Bar, we must express our displeasure in the manner in which the Sub-Collector, Sundargarh had disposed of the case by Annexure 1. We are conscious, the opposite party therein was absent, but that does not authorise an adjudicating authority to record a cryptic order without scrutiny of the facts and analysis of the law. We expect, the statutory authorities while disposing of matters should give adequate reasons so that the appellate forum, or this Court while dealing with the matters under Articles 226 and 227 of the Constitution can appreciate the reasonings. ( 7 ) WE must deal with the first contention first. If the proceeding before the Sub-Collector is regarded as non-maintainable other issues would become purely academic and we would refrain ourselves to answer the academic issues. The question that would determine the facts of this case is whether the word 'person' used in Section 3 (A) of the Regulation would include one and all including Scheduled Tribe or would exclude the Schedule Tribe from its functional operation. ( 8 ) FOR better appreciation of the actualistic scenario it is essential to refer to the object/purpose of the Regulations which has been stated in the preamble as follows :-"a Regulation to control and check transfers of immovable property in the Scheduled Areas of the State of Orissa by Scheduled Tribes. Whereas it is expedient to control and check transfers of immovable property by the Scheduled Tribes in the Scheduled Areas of the State of Orissa. . . . . "from the aforesaid it is quite clear that the Regulation was framed to control and check transfers by a member of the Scheduled Tribe in a Scheduled Area. The definition of transfer of immovable property as provided in 2 (f) reads as follows :-"'transfer of immovable property' means mortgage with or without possession, lease, sale, gift, exchange or any other dealings with such property not being a testamentary disposition and includes a charge or contract relating to such property. "the relevant portion of Section 3 (1) reads as follows :-"transfer of immovable property by a member of the Scheduled Tribe. "the relevant portion of Section 3 (1) reads as follows :-"transfer of immovable property by a member of the Scheduled Tribe. Notwithstanding anything contained in any law for the time being in force any transfer of immovable property situated within a Scheduled Area, by a member of a Scheduled Tribe shall be absolutely null and void and of no force or effect whatsoever unless made in favour of another member of a Scheduled Tribe or with the previous consent in writing of the competent authority. . . . . . " (Emphasis supplied) Section 3-A to the aforesaid Regulation was brought in by way of an amendment in the year 1975. Section 3-A reads thus :-"3-A. Eviction of person in unauthorised occupation of property.- (1) Where a person is found to be in unauthorised occupation of any immovable property of a member of the Scheduled Tribe by way of trespass or otherwise, the competent authority may, either on application by the owner or any person interested therein, or on his own motion, and after giving the parties concerned an opportunity of being heard, order ejectment of the person so found to be in unauthorised occupation and shall cause restoration of possession of such property to the said member of the Scheduled Tribe or to his heirs. "section 5 deals with surrender or relinquishment, Section 6 deals with bar to attachment of immovable property and Section 7 deals with penalty. It is worthwhile to quote Section 7 (1) :-"7. Penalty.- (1) If, after the commencement of this Regulation, any person who is not a member of a Scheduled Tribe is found to be in possession of any immovable property in contravention of the provisions of this Regulation, such person shall, without prejudice to his liability to ejectment under subsec. (2) of S. 3, be also liable to a penalty of an amount not exceeding two hundred rupees per acre of such immovable property for each year or any part thereof during which his unlawful possession continues. " (Emphasis supplied)Thus, the aforesaid provisions lead to an irresistible conclusion that a member who is not a Scheduled. Tribe cannot remain in unauthorised possession. As it appears the word 'person' is immediately qualified by 'who is not a member of a Scheduled Tribe'. " (Emphasis supplied)Thus, the aforesaid provisions lead to an irresistible conclusion that a member who is not a Scheduled. Tribe cannot remain in unauthorised possession. As it appears the word 'person' is immediately qualified by 'who is not a member of a Scheduled Tribe'. In this regard we may profitably refer to a decision rendered in the case of Smt. Subhadra Pradhan v. The A. D. M. Phulbani, reported in (1987) 63 Cut LT 197, wherein Justice D. P. Mohapatra as his Lordship then was, speaking for the Court expressed thus :-"8. From a perusal of the different provisions of the Regulation, is sufficiently indicative that the intention of the Legislature in framing the Regulation is to come to aid and assistance of the scheduled tribe people to recover their properties from members of the other castes. These provisions have been made on the well-recognised position that member of the scheduled tribe are usually exploited by the members of other undeveloped state. The legislature has even gone to the extent of providing in Section 7-C of the Regulation that notwithstanding anything contained in any other law for the time being in force if in any proceedings under the Regulation the validity of the transfer or relinquishment of any immovable property is called in question or if such proceedings are for the recovery of possession of immovable property, the burden of proving that the transfer or relinquishment was valid shall lie on the transferee and further that the Court shall, in any suit or proceeding relating to the transfer of immovable property of member of the scheduled tribe, have power to require any fact expressly or impliedly admitted by such member to be proved otherwise than by mere admission by such member to be proved otherwise than by mere admission by the scheduled tribe. Similarly Section 3a (a) of the Regulation vests suo motu power in the competent authority to initiate proceeding if he is satisfied that the property belonging to a schedule tribe is in unauthorised occupation of any person other than a scheduled tribe. From these provisions it is clear that the law recognises the incapacity of the members of the scheduled tribe to cope with the formalities and intricacies of developed society and to act with promptness and intelligence. From these provisions it is clear that the law recognises the incapacity of the members of the scheduled tribe to cope with the formalities and intricacies of developed society and to act with promptness and intelligence. "on a careful reading of the aforesaid paragraph, it becomes bright as day that the purpose of the Act is to protect the rights of the Scheduled Tribe members vis-a-vis any person other than a scheduled tribe. We may make it clear that in the aforesaid case their Lordships were not interpreting the term 'person' but in essence, they have given guidelines which lead to the conclusion that the term 'person' means any person other than a member of a scheduled tribe. ( 9 ) REASONS for enactment of a law is one of the most sanguine considerations which can be taken aid of for the purpose of interpretation of a provision in an Act. Objects and reasons become a positive guide to interpret purposefully a provision in an Act. In this connection, we may refer to the decision in the case of Utkal Contractors and Joinery Pvt. Ltd. v. State of Orissa, reported in AIR 1987 SC 1454 , wherein the Apex Court expressed thus (at Pp. 1459 and 1460 of AIR) :-". . . . A statute is best understood if we know the reason for it. The reason for a statute is the safest guide to its interpretation. The words of a statute take their colour from the reason for it. How do we discover the reason for a statute? There are external and internal aids. The external aids are Statement of Objects and Reasons when the Bill is presented to Parliament, the reports of Committees which preceded the Bill and the reports of Parliamentary Committees. Occasional excursions into the debates of Parliament are permitted. Internal aids are the Preamble, the scheme and the provisions of the Act. Having discovered the reason for the statute and so having set the sail to the wind, the interpreter may proceed ahead. No provision in the statute and no word of the statute may be construed in isolation. Every provision and every word must be looked at generally before any provision or word is attempted to be construed. The setting and the pattern are important. It is again important to remember that Parliament does not waste its breath unnecessarily. No provision in the statute and no word of the statute may be construed in isolation. Every provision and every word must be looked at generally before any provision or word is attempted to be construed. The setting and the pattern are important. It is again important to remember that Parliament does not waste its breath unnecessarily. Just as Parliament is not expected to use unnecessary expressions, Parliament is also not expected to express itself unnecessarily. Even as Parliament does not use any word without meaning something, Parliament does not legislate where no legislation is called for. Parliament cannot be assumed to legislate for the sake of legislation; nor can it be assumed to make pointless legislation. Parliament does not indulge in legislation merely to state what is already validly done. Parliament may not be assumed to legislate unnecessarily. Again while the words of an enactment are important, the context is no less important. For instance, "the fact that general words are used in a statute is not in itself a conclusive reason why every case falling literally within them should be governed by that statute, and the context of any act may well indicate that wide or general words should be given a restrictive meaning. " (See Halsbury, 4th Edn. Vol. 44 Para 874 ). "we may further refer to the case of Empress Mills v. Municipal Committee, Wardha, AIR 1958 SC 341 , wherein the Apex Court held as follows (at P. 348 of AIR) :-"it is also a recognised principle of construction that general words and phrases however wide and comprehensive they may be in their literal sense must usually be construed as being limited to the actual objects of the Act. " ( 10 ) IN this regard, we may refer to a passage from 'statutory Interpretation' by Francis Bennion. While dealing with the concept of purposive construction the learned author has stated thus :- "a purposive construction of an enactment is one which gives effect to the legislative purpose by- (a) following the literal meaning of the enactment where that meaning is in accordance with the legislative purpose (in this Code called a purposive and literal construction), or (b) applying a strained meaning where the literal meaning is not in accordance with the legislative purpose (in the Code called a purposive and strained construction ). "again, the learned author has delineated with purposive construction, in contrast with literal interpretation and expressed thus :"contract with literal construction - Although the term 'purposive construction' is not new, its entry into fasion betokens a swing by the appellate Courts away from literal construction. Lord Diplock said in 1975: 'if one looks back to the actual decisions of the (House of Lords) on questions of statutory construction over the last 30 years one cannot fail to be struck by the evidence of a trend away from the purely literal towards the purposive construction of statutory provisions'. The matter was summed up by Lord Diplock in this way -. . . . . . . . . . . I am not reluntant to adopt a purposive construction where to apply the literal meaning of the legislative language used would lead to results which would clearly defeat the purposes of the Act. But in doing so the task on which a Court of justice is engaged remains one of construction, even where this involves reading into the Act words which are not expressly included in it. "recently, the Apex Court in the case of S. Gopal Reddy v. State of Andhra Pradesh, 1996 AIR SCW 2803 has laid down as follows :-"10. It is well known rule of interpretation of statutes that the text and the context of the entire Act must be looked into while interpreting any of the expressions used in a statute. The Courts must look to the object which the statute seeks to achieve while interpreting any of the provisions of the Act. A purposive approach for interpreting the Act is necessary. " ( 11 ) WE have referred to the concept of purposive construction/ interpretation keeping in view of the preamble, various provisions of the Regulation and the real intention of the Legislature. We are conscious though preamble is a key to open the mind of the legislature, it can control or qualify the precise language used in an enactment. But, definitely it can be taken recourse to ascertain the true legislative intendment. Duty is cast on the Court to interpret a statute so as to promote object and purpose of enactment. While doing so it is open to the Court to depart from normal rule that the plain words should be interpreted according to their plain meaning. But, definitely it can be taken recourse to ascertain the true legislative intendment. Duty is cast on the Court to interpret a statute so as to promote object and purpose of enactment. While doing so it is open to the Court to depart from normal rule that the plain words should be interpreted according to their plain meaning. In this regard, we may refer to the decision rendered in the case of M/s. Girdhari Lal and Sons v. Balbir Nath Mathur, reported in AIR 1986 SC 1499 , wherein the Apex Court held as follows (at p. 1503 of AIR) :-"the primary and fore most task of a Court in interpreting a statute is to ascertain the intention of the legislature, actual or imputed. Having ascertained the intention, the Court must then strive to so interpret the statute as to promote and advance the object and purpose of the enactment. For this purpose, where necessary the Court may even depart from the rule that plain words should be interpreted according to their plain meaning. . (Quoted from the placitum) ( 12 ) KEEPING the aforesaid parameters in view and the observations in the case of Smt. Subhadra Pradhan (1987 (63) Cur LJ 197) (supra) we are of the considered view the word 'persons' as used in Section 3a (a) of the Regulations means any person who is not a member of the scheduled tribe. The word 'person' has different connotations in its etymological essence, but a confined/restricted meaning has to be given keeping the entire Regulation in view and reading the Regulation as a harmonious whole. Any other interpretation would frustrate the purpose of the Act and that is not permissible and is not to be encouraged. ( 13 ) IN view of our preceding analysis the application filed by the present petitioner against the opposite party No. 1 is not maintainable as he is a member of the scheduled tribe. As we are holding that the proceeding is not maintainable, we refrain ourselves from dealing with the other issues and contentions. ( 14 ) IN the result, the writ application is dismissed. There shall be no order as to costs. ( 15 ) WHILE agreeing with the conclusion arrived at by my brother Misra, J. , I would like to add the following. ( 14 ) IN the result, the writ application is dismissed. There shall be no order as to costs. ( 15 ) WHILE agreeing with the conclusion arrived at by my brother Misra, J. , I would like to add the following. ( 16 ) THE words "a person" in Section 3 (A) of Regulation II of 1956 can only refer to a person other than one belonging to a scheduled tribe. Any other interpretation would defeat the object of the provision. While interpreting the Regulation, the object for which it was framed has to be kept in mind and the interpretation is to be such as would further the object of the Regulation rather than defeat it. Said Regulation does not deal with a transaction between members of scheduled tribes. The provisions of the said Regulation are attracted only in a transaction between a scheduled tribe member and a nonscheduled tribe member. The object is thus to protect a member of scheduled tribes from entering into transaction of sale with a nonscheduled tribe person. Such transactions if entered into without permission in writing can be set at naught by the appropriate authority. However, it cannot be denied that there may be cases where without obtaining a sale deed, or by force or permission, a nonscheduled tribe person enters into possession of immovable property belonging to the scheduled tribe and refuses to vacate the same. Since such a possession is not by virtue of a deed of transfer, Section 3 (1) of Regulation would not be attracted. Had Section 3 (S) not been there, the authorities would have been helpless to take action against such persons. It is probably to remove this difficulty, this provision, i. e. Section 3 (A) was introduced. Now, by taking recourse to this provision, a person in forceful occupation or a person in occupation under any deed or agreement but not by way of transfer, can also be dealt with. Thus, this provision is in furtherance of the object of the Regulations. Therefore, the word 'person' occurring in the aforesaid provision can only refer to a person other than the member of scheduled tribe and cannot include a member of a scheduled tribe within its fold. Provision contained in Section 7 supports this. Thus, this provision is in furtherance of the object of the Regulations. Therefore, the word 'person' occurring in the aforesaid provision can only refer to a person other than the member of scheduled tribe and cannot include a member of a scheduled tribe within its fold. Provision contained in Section 7 supports this. ( 17 ) IT is really commendable that we have legislations to protect a member of a scheduled tribe or a scheduled caste from exploitation by the general caste, but should we not also think of having some legislation whereby a moneyed or a powerful person belonging to the scheduled tribe or scheduled caste cannot exploit a weaker or a down-trobben scheduled tribe or scheduled caste person, for it cannot be forgotten that even amongst scheduled tribes and scheduled castes there exists exploitation of the weaker section by the more powerful ones. Application dismissed. . .