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2007 DIGILAW 181 (ORI)

Urmila Ray v. State of Orissa

2007-03-14

A.S.NAIDU

body2007
ORDER Heard Mr. Roy, learned Sr. Counsel for the petitioner and learned counsel for opposite parties. 2. The order dated 25.2.2004 passed by the Addl.District Magistrate, Sundargarh (Rev) in R.A. No.23 of 2002 is assailed by the petitioner in this Writ Petition. 3. According to Mr. Roy, the petitioner has purchased the disputed lands way back in the year 1950 and was in peaceful possession thereof all through. In the year 1977 a proceeding was initiated under Regulation 2 of 1956 with an allegation that the disputed lands belongs to a Scheduled Tribe person and the peti¬tioner who belongs to general category is in unauthorized occupa¬tion of the said land. It is submitted that the said proceeding was dropped. Thereafter in the year 1995 another case was initi¬ated under Section 3(2) of Regulation 2 of 1956 before the Sub-Collector, Bonai and was registered as Regulation Case No.1 of 1995 for eviction of the petitioner. The said case was allowed by order dated 12.5.1997. Being aggrieved the petitioner filed an appeal before the A.D.M., Sundargarh. The appellate authority allowed the appeal, set aside the order of eviction and remanded the matter for fresh disposal to the Sub-Collector. After remand the Sub-Collector discussed the materials available on record again, and arrived at a conclusion that the petitioner is an unauthorized occupation of the land belongs to a Scheduled Tribe person and directed her eviction. Being aggrieved the petitioner once again approached the A.D.M., Sundargarh in R.A. No.23 of 2002. After hearing learned counsel for the parties and analyzing the evidence both oral and documentary the revisional Court came to the conclusion that the petitioner was the title holder and was in possession of the lands since 1950, but then as the trans¬action itself was illegal, as no permission was obtained from the competent authority, the petitioner’s possession should be treat¬ed to be unauthorized. According to learned A.D.M. as the lands originally belonged to a Scheduled Tribe person any transaction without obtaining prior permission from the competent authority is ab intio void and the purchaser has no right to possess the lands and should be evicted. Being aggrieved by the said order the petitioner has approached this Court. 4. Mr. Roy, learned Sr. According to learned A.D.M. as the lands originally belonged to a Scheduled Tribe person any transaction without obtaining prior permission from the competent authority is ab intio void and the purchaser has no right to possess the lands and should be evicted. Being aggrieved by the said order the petitioner has approached this Court. 4. Mr. Roy, learned Sr. Advocate relying upon the provi¬sions of Regulation 2 of 1956 submitted as the sale deed was executed in the year 1950 i.e. prior to promulgation of Regula¬tion 2 of 1956, and thus the bar imposed under the said regula¬tion shall not be applicable to the present case. Thus under no imagination it can be held that the sale deed was a void document as the same was executed without obtaining due permission. He further submits that an earlier a petition filed under Regulation 2 of 1956 having been dismissed, entertaining the later petition was not tenable, as the same was hit by the principles of res judicata. 5. In reply, learned counsel for the opposite parties drew attention of this Court to the schedule appended to Regulation 2 of 1956 and submitted that by the aforesaid regulation Orissa Merged States Laws Act, 1950 has been repealed to the following extent :- “Subject to the restrictions that no transfer of a holding from a member of an aboriginal tribe to a member of non-aboriginal shall be valid unless such transfer is made with the previous permission of the Sub-Divisional Magistrate concerned.” It is submitted that there was also a bar under the Orissa Merged States Laws Act restricting any alienation by a member of a aboriginal class to a general category class without obtaining prior permission. As the Orissa Merged States Laws Act has been repealed by Regulation 2 of 1956 any transactions made without obtaining prior permission from the competent authority shall also be deemed to be void in a proceeding under Regulation 2 of 1956 irrespective of the year of transaction. 6. Heard learned counsel for the parties at length. Pe¬rused the materials available on record. I find some force in the submissions raised by learned counsel for the parties. But then it appears that the learned A.D.M., Sundargarh has not kept in mind this aspect of the case while disposing of the appeal. 6. Heard learned counsel for the parties at length. Pe¬rused the materials available on record. I find some force in the submissions raised by learned counsel for the parties. But then it appears that the learned A.D.M., Sundargarh has not kept in mind this aspect of the case while disposing of the appeal. That apart as to whether the lands in question are situated in a Merged States or not is a question of fact and has to be decided by a fact finding Court. I therefore set aside the order dated 25.2.2004 (Annexure-10) and remit the matter to the learned A.D.M., Sundargarh with a direction to hear R.A. No.23 of 2002 de novo after giving opportunities to all the parties and dispose of the same expeditiously. The Writ Petition is accordingly disposed of. Urgent Certified Copy of this order be granted on proper application. Petition disposed of.