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2013 DIGILAW 368 (ORI)

KORADA VIJAYA v. SUB COLLECTOR, RAYAGADA

2013-09-04

R.DASH

body2013
JUDGMENT : R. Dash, J. - In this writ petition the petitioners pray for quashment of a proceeding initiated by the Sub-Collector, Rayagada (O.P. No. 1) in OSATIP Case No. 1150/2005 u/s 3B of the Orissa Scheduled Areas Transfer of Immovable Property (By Scheduled Tribes) Regulations, 1956 (for short, the Regulation 2 of 1956). The case of the petitioners is that the original Khatadars of the case land being members of a Scheduled Tribe had sold the case land under Registered Sale Deeds after obtaining necessary permission from the competent authority as required under the provisions of the Regulation 2 of 1956. After Regulation 2 of 1956 underwent an amendment by introduction of Orissa Regulation 1 of 2000, the predecessor of the petitioners, who had purchased the case land from the original Khatadars filed returns in prescribed form on 3.9.2004. Thereafter, a notice in the name of the deceased vendee in a proceeding u/s 3-B(1) of Regulation 2 of 1956, which was registered as OSATIP Case No. 1150/2005, was received by the petitioners. A copy of the notice is annexed to the writ petition as Annexure-3 and the copy of the returns filed by the vendee in Form-2 is annexed as Annexure-4. The petitioners, who are the successors-in-interest of the deceased vendee, appeared before the authority who had issued the notice (O.P. No. 1) and appraised the fact that the deceased vendee had already filed returns in Form-2. Yet O.P. No. 1, instead of dropping the proceeding, has directed that the proceedings would continue and there is no question of dropping the same. According to the petitioners, since the vendors, after obtaining due permission, have sold the case land, O.P. No. 1, without appreciating the said fact, has illegally initiated the proceeding without verifying the records relating to the permission which are very well available with him. It is argued that O.P. No. 1 has mechanically initiated the proceeding without ascertaining or verifying from the records relating to the transaction in respect of the case land as well as the returns filed by the vendee vide Annexure-2. Therefore, it is contended, the impugned notice under Annexure-3 calling upon the vendee to appear and show cause is nothing but mere abuse of process of law intended to harass the petitioners. Hence, the prayer to quash the proceeding. 2. O.Ps. Therefore, it is contended, the impugned notice under Annexure-3 calling upon the vendee to appear and show cause is nothing but mere abuse of process of law intended to harass the petitioners. Hence, the prayer to quash the proceeding. 2. O.Ps. 2 to 5 are the successors-in-interest of the vendors, who have died in the meanwhile. They have filed a counter affidavit supporting the stand advanced by the petitioners. They have stated in their counter affidavit that the case land was sold after obtaining permission from the competent authority and there is no element of fraud or misrepresentation in the execution of the sale deeds in question. 3. Learned counsel for the State supports the continuation of the proceeding in OSATIP Case No. 1150/2005 even after submission of return in Form No. 2. It is contended that Section 3-B(3) of Regulation 2 of 1956 itself contemplates an enquiry to be taken up by the Sub-Collector concerned in all such cases in which he has received the information u/s 3-B(1) to find out whether on account of such transferee members of the Scheduled Tribes have been defrauded of their legitimate right. Therefore, it is submitted, the proceeding in OSATIP Case No. 1150/2005 cannot be dropped without such an enquiry merely on the ground that information has been furnished by the vendee in Form No. 2. 4. For the purpose of ready reference, Section 3-B of Regulation 2 of 1956 is reproduced hereunder: 3-B. Reversion of land of members of Scheduled Tribes which was transferred by fraud - (1) Every person who, on the date of commencement of the Orissa Scheduled Areas Transfer of Immovable Property (By Scheduled Tribe) Amendment Regulation of 2000, is in possession of agricultural land which belonged to a member of a Scheduled Tribe at any time during the period commencing on the 4th October, 1956 and ending on the date of commencement of the Amendment Regulation of 2000 shall, within two years of such commencement, notify to the Sub-Collector in such form and in such manner as may be prescribed, all the information as to how he has come in possession of such land. (2) If any person fails to notify the information as required by Sub-sec. (2) If any person fails to notify the information as required by Sub-sec. (1) within the period specified therein it shall be presumed that such person has been in possession of the agricultural land without any lawful authority and the agricultural land shall on the expiration of the period aforesaid, revert to the person to whom it originally belonged and if that person be dead, to his heirs. (3) On receipt of the information under Sub-sec. (1), the Sub-Collector shall make such enquiry as may be necessary about all such transactions of transfer and if he finds that the member of Scheduled Tribe has been defrauded of his legitimate right he shall declare the transaction null and void and- (a) where no building or structure has been erected on the agricultural land prior to such finding, pass an order revisiting the agricultural land in the transferor and if he be dead, in his heirs; (b) where any building or structure been erected on the agricultural land prior to such finding, he shall fix the price of such land in accordance with the principles laid down for fixation of price of land in the Land Acquisition Act, 1894 and order the person referred to in Sub-section (1) to pay to the transferor the difference, if any, between the price so fixed and the price actually paid to the transferor: Provided that where the building or structure has been erected after the commencement of the Amendment Regulation of 2000, the provisions of Clause (b) shall not apply: Provided further that fixation of price under Clause (b) shall be with reference to the price on the date of registration of the case before the Sub-Collector. 5. To comply with the requirement of Sub-section (1) of Section 3-B of Regulation 2 of 1956, information in Form No. 2 is to be filed and thereafter as per the provisions of Sub-section (3) of Section 3-B, the Sub-Collector, on receipt of the information, shall make such enquiry as may be necessary about all such transactions of transfer and if he finds that the member of Scheduled Tribe has been defrauded of his legitimate right he shall declare the transaction null and void. Therefore, it is very clear that mere filing of information as required under Sub-section (1) of Section 3-B of the Regulation 2 of 1956 does not automatically put an end to the proceeding. Therefore, it is very clear that mere filing of information as required under Sub-section (1) of Section 3-B of the Regulation 2 of 1956 does not automatically put an end to the proceeding. Rather, it takes the Sub-Collector to another stage of the proceeding in which the Sub-Collector shall have to make an enquiry about all such transactions. Nowhere, it is contemplated that where a transaction has been made by a member of a Scheduled Tribe after obtaining permission from the competent authority to alienate his land, no such enquiry is necessary and the Sub-Collector shall drop the proceeding. The manner in which the enquiry should be conducted is left to the discretion of the Collector. For the purpose of such enquiry he may notice the vendor and the vendee or their heirs and give them opportunity of being heard. Therefore, the learned Sub-Collector-O.P. No. 1 has rightly issued notice under Annexure-3 in order to give opportunity to the petitioners of being heard on the matter of information furnished by the deceased vendee in Form No. 2. O.P. No. 1 cannot be said to have issued the notice without having jurisdiction to do so. Nor can it be said that he has committed a manifest error apparent on the face of the proceedings. Therefore, the writ petition being without any merit is dismissed. There shall be no order as to cost. However, it is observed that the Sub-Collector, on production of a certified copy of this order before him shall take up the enquiry without further delay and complete the same and dispose of OSATIP Case No. 1150/2005 on merit as early as possible and preferably within a period of four months from the date of receipt of a copy of this order. Final Result : Dismissed