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2008 DIGILAW 845 (ORI)

Bijay Kumar Jally v. Member, Board of Revenue

2008-09-17

SANJU PANDA

body2008
JUDGMENT S. PANDA, J. — Challenge has been made in this writ appli¬cation to the order dated 17th July, 1993 passed by the Member, Board of Revenue, Orissa in OLR Revision Case No.43 of 1991 in a reference under Section 59(2) of the Orissa Land Reforms Act, 1960 (hereinafter referred to as “the Act”) setting aside the order dated 15.10.1991 passed by the Addl. District Magistrate, Puri in OLR Appeal Case No.23 of 1984 and confirming the order dated 25.11.1983 passed by the Revenue Officer, Puri in OLR Misc. Case No.5 of 1983. 2. The facts as narrated in the records are as follows : Petitioner is the wife of opposite party No.9 and the mother of opposite party No.10. They are ‘Kaibarta’ by profession and belong to Scheduled Caste. The family of the petitioner which consists of 6 to 7 members depends on the agriculture to maintain the livelihood. They obtained a certificate from the Tahasildar, Puri in Misc. Case No.1059 of 1983 on 21.12.1983 to the effect that they belong to Scheduled Caste under the Constitution (Scheduled Castes) Order, 1950 as amended by the Scheduled Castes & Scheduled Tribes (Amendment) Order Act, 1976 in the State of Orissa. Opposite party No.9 being addicted to intoxication trans¬ferred an area of Ac.2.27 decimals of land by a registered conditional mortgage deed dated 12.12.1969 in favour of Hari Sahoo. The said deed was executed without knowledge of the peti¬tioner and without any permission from the Revenue Authority as required under the Act. The sons of Hari Sahoo are opposite parties 5 to 7 in this writ application. Said Hari Sahoo subse¬quently transferred the disputed land to opposite party No.4 by registered sale deed on 20.9.1984. However, opposite party No.9 was in possession of the suit land, as stated above and paying rent in respect of the same. In the year 1982, it was ascertained by the petitioner that her husband executed the sale deed in favour of Hari Sahoo and said Hari Sahoo executed a registered sale deed in favour of opposite party No.4 when he wanted to take possession of the suit land. As such, she filed OLR Case No.5 of 1983 under Section 23 of the Act before the Revenue Officer, Puri for declaration of the said registered mortgage deed as invalid. As such, she filed OLR Case No.5 of 1983 under Section 23 of the Act before the Revenue Officer, Puri for declaration of the said registered mortgage deed as invalid. The Revenue Officer arbitrarily, without proper enquiry, by order dated 25.11.1983 dropped the said case observing that the ‘Kai¬barta’ caste was not initially included in the list for publica¬tion in respect of the State of Orissa regarding Scheduled Castes in the Presidential Notification and the said caste at best may be treated as Scheduled Caste from the date of the judgment in which this Court declared ‘Kaibartas’ as Scheduled Castes persons. The petitioner’s husband filed O.S. No.120 of 1974 with a prayer for redemption of the said registered mortgage deed executed by him. The said suit was dismissed on 5.11.1976. Being aggrieved, he filed a second appeal before this Court which was also dismissed on 6.12.1982. The petitioner stated that in view of Section 67 of the Act, all suits and decrees are inap¬plicable after 26.9.1970 which is the cut off date under the Act, if the subject matter is under the Special Act like Orissa Land Reforms Act. Since the original decree was passed on 5.11.1976, it was ineffective under the specific provision of the Act. Against the order passed by the Revenue Officer, opposite party No.4 preferred an appeal before the Addl. District Magistrate, Puri in OLR Appeal Case No.23 of 1984 who by order dated 15.10.1991 held that ‘Kaibartas’ by caste shall be deemed to be belonged to Scheduled Castes from the date of the Constitution (Scheduled Caste) Order, 1950 as amended in the Amending Order of 1976. Relying on a decision reported in (69) 1990 CLT 375, vide Annexure-4, he allowed the appeal declaring the registered mort¬gage deed dated 16.12.1969 executed by opposite party No.9 in favour of Hari Sahoo as void. Against the said order of the Addl. District Magistrate, opposite party No.4 filed a revision under Section 59(2) of the Act to refer the matter to the Member, Board of Revenue. On being referred, the Member, Board of Revenue on 11.12.1991 without issuing notice and without giving an opportu¬nity to the present petitioner or other opposite parties and without calling for the lower Court record, while answering the reference, exceeded his jurisdiction and misinterpreting the law, gave a finding on merit. Hence the present writ petition. 3. On being referred, the Member, Board of Revenue on 11.12.1991 without issuing notice and without giving an opportu¬nity to the present petitioner or other opposite parties and without calling for the lower Court record, while answering the reference, exceeded his jurisdiction and misinterpreting the law, gave a finding on merit. Hence the present writ petition. 3. The learned counsel appearing for the petitioner sub¬mitted once that the original transfer by opposite party No.9 in favour of late Hari Sahoo by a registered mortgage deed for obtaining loan without permission is declared to be invalid under the provisions of the Act and the decree dated 5.11.1976 passed by the Subordinate Judge in O.S. No.120 of 1974 is apparently after 26.9.1970 is inoperative under the specific provision laid down under the Act and subsequent illegal transfer by late Hari Sahoo cannot create any right, title and interest in respect of disputed land in favour of opposite party No.4. As such, those transactions were void and the petitioner is entitled to the relief claimed under the Act and the order passed by the Revenue Officer, Puri as well as the order passed by the Member, Board of Revenue is liable to be quashed. He further submitted that the amendment brought in the Presidential Order in respect of Sched¬uled Caste (Second Amendment Act), 2002 has a retrospective effect and such amendment was published on 18th December, 2002. So far as the State of Orissa is concerned, serial No.24 of the list was substituted and ‘Dhibara’, ‘Keuta’, and ‘Kaibarta’ were added in addition to the Caste ‘Dewar’ and the aforesaid amend¬ment in the Presidential Order was made in accordance with Arti¬cle 341 read with Article 361 of the Constitution of India. As the apex Court in the case of State of Maharashtra v. Milind and others reported in AIR 2001 SC 393 has held that there cannot be addition or deletion of castes or tribes by any authority except the Parliament, even the President and no authority or Court has power to declare a caste as synonymous to any entry made in respect of the scheduled caste and scheduled tribe in respective state. The amending Act whether it is retrospective and prospec¬tive is to be considered taking into consideration the Statement of Objects and Reasons of the Amending Bill. The amending Act whether it is retrospective and prospec¬tive is to be considered taking into consideration the Statement of Objects and Reasons of the Amending Bill. So far as State of Orissa is concerned, the amendment was made in view of the deci¬sion of Narayan Behera v. State of Orissa reported in 49 (1980) CLT 47 which was confirmed by the apex Court. The statement of objects and reasons which is relevant for the purpose is quoted below : “(iv) Modification in the existing entries in accordance with directives of Hon’ble High Court of Orissa in the case of Narayan Behera v. State of Orissa (OJC No.247 of 1978) and the Supreme Court in Bhaiya Ram Muna v. Anirudh Patar ( AIR 1971 SC 2533 ) and” 4. Law is well settled that no authority other than the Parliament by law can amend the Presidential Order. Neither the State Government nor the Courts or Tribunals or any other authority can assume jurisdiction to hold enquiry or take evi¬dence to declare that a caste or a tribe or a part of or a group within a caste or tribe is included in the Presidential Order in one entry or the other although they are not expressly and specifically included in the said order. The Amending Act of 2002 was published on 18.2.2002 and entry No.24 was substituted by adding ‘Dhibara’, ‘Keuta’, ‘Kaibarta’ to ‘Dewar’. A bare reading of the Statement of Objects and Reasons reveals that the amendment was by way of modification which became necessary in view of the directives of the apex Court in the case of Bhaiya Ram Munda v. Anirudh Patar and others reported in AIR 1971 SC 2533 and in the case of Zile Singh v. State of Haryana and others reported in AIR 2004 SCW 5842 wherein the apex Court has held as follows : “It is a cardinal principle of construction that every statute is prima facie prospective unless it is expressly or by necessary implication made to have a retrospective operation. The rule in general is applicable where the object of the statute is to affect vested rights or to impose new burdens or to impair existing obligations......... The presumption against retrospective operation is not applicable to declaratory statutes... In determining, therefore, the nature of the Act, regard must be had to the substance rather than to the form. The rule in general is applicable where the object of the statute is to affect vested rights or to impose new burdens or to impair existing obligations......... The presumption against retrospective operation is not applicable to declaratory statutes... In determining, therefore, the nature of the Act, regard must be had to the substance rather than to the form. If a new Act is ‘to explain’ an earlier Act, it would be without object unless construed retrospective. An ex¬planatory Act is generally passed to supply an obvious omission or to clear up doubts as to the meanings of the previous Act. It is well settled that if a statute is curative or merely declara¬tory of the previous law retrospective operation is generally intended... An amending Act may be purely declaratory to clear a meaning of a provision of the principal Act which was already im¬plicit. A clarificatory amendment of this nature will have retro¬spective effect”. 5. Therefore, the above ratio makes it clear that the Amendment Act, 2002 is declaratory and curative in nature and the amendment in the Presidential Order is having a retrospective effect even though there is no express provision to that effect. Since the amendment in question has relation back to the time when the original Presidential Order, 1950 was notified, there was no infirmity in the caste certificate issued by the Tahasil¬dar. As such, the transaction having made in favour of Hari Sahoo without permission was void. 6. This Court, for the foregoing reasons, sets aside the order dated 17th July, 1993 passed by the Member, Board of Reve¬nue, Orissa in OLR Revision Case No.43 of 1991 and confirms the order dated 15.10.1991 passed by the Addl. District Magistrate, Puri in OLR Appeal Case No.23 of 1984 in exercise of its juris¬diction under Article 227 of the Constitution of India. 7. The writ petition is accordingly allowed. No costs. Petition allowed.