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2014 DIGILAW 517 (ORI)

Natabara Jena v. Collector, Jajpur

2014-08-21

B.K.NAYAK

body2014
ORDER 21.08.2014. - Heard learned counsel for the petitioner, learned counsel for opposite party No.4 and the learned State counsel. 2. Order passed by the Revenue Officer, Jajpur (Annexure-1) in OLR Case No. 19 of 1987 under Section 23 of the OLR Act as confirmed by the order under Annexure-2 passed by the Additional District Magistrate (OLR), Cuttack in OLR Appeal No. 28 of 1988 and order under Annexure-3 passed by the Collector, Jajpur in OLR Revision Case No.4 of 1991 (Cuttack)/No. 4 of 1994 (Jajpur) confirming the order passed by the Additional District Magistrate have been challenged in this writ petition. 3. Fact of the case are as follows: The father of the present petitioner, Iswar Jena, a Scheduled Caste person, obtained permission from the Revenue Officer for mortgaging the disputed land under Section 22 of the OLR Act in OLR Case No. 113 of 1969. In pursuance of such permission, he mortgaged the disputed land in favour of opposite party No.4 and his brother-Iswar Ch. Das by executing a registered deed dated 18.04.1969 and delivered possession of the land in pursuance of the mortgage. Again, the father of the petitioner sold the disputed land in favour of opposite party No.4 by virtue of the registered sale deed dated 31.03.1972. During the life time of his father the petitioner filed a petition under Section 23 of the OLR Act for setting aside the sale deed executed by his father and for restoration of possession, on the ground that there was no permission for such sale from the competent authority under Section 22 of the OLR Act. By the impugned order under Annexure-1 dated 09.10.1988 the Revenue Officer, Jajpur came to the conclusion that since permission for mortgage has already been granted, the said permission is valid for the subsequent sale effected by the father of the petitioner. The petitioner, thereafter filed OLR Appeal No. 28 of 1988 before the learned Additional District Magistrate, who by his order under Annexure-2 dated 26.08.1991 upheld the finding of the Revenue Officer. The petitioner challenged the said appellate order in OLR Revision Case. No. 04 of 1991 (Cuttack)/No. 04 of 1994 (Jajpur) and the Collector, Jajpur in the impugned order under Annexure-3 confirmed the said finding of both the Courts below. 4. The petitioner challenged the said appellate order in OLR Revision Case. No. 04 of 1991 (Cuttack)/No. 04 of 1994 (Jajpur) and the Collector, Jajpur in the impugned order under Annexure-3 confirmed the said finding of both the Courts below. 4. Learned counsel for the petitioner submits that since permission had been obtained only for mortgaging the property and by utilizing the said permission property was mortgaged, thereafter by virtue of the said permission order subsequent sale cannot be effected and therefore the authorities under the Act have gone wrong in holding that the permission for mortgage would be valid for any subsequent sale of the property. 5. Learned counsel for the opposite party No.4 on the other hand, defends the impugned order stating that the word 'transfer' used on Section 22 of the OLR Act includes all types of transfer, such as, mortgage, sale, lease etc. and once permission is granted for one type of transfer, the same can be utilized for any other type of transfer. It is also his submission that assuming for the sake of argument that the subsequent sale deed executed by the father of the petitioner is void as being without permission, still then the petitioner cannot recover possession from opposite party No.4, as because his possession is under the mortgage deed, which still subsists. He also submits that the petition filed by the petitioner is also barred by limitation. 6. Since the opposite party-authorities have held the sale to be valid stating that the permission for mortgage would hold good for executing the sale deed, they had no occasion to consider the question whether the property was liable to be restored in favour of the petitioner or whether the petition was barred by limitation. 7. The only point for consideration before this Court is whether the consistent findings of the learned Courts below that the permission for mortgaging the property will hold good for any subsequent sale and no permission for sale under Section 22 of the OLR Act is necessary, is legally correct. 7. The only point for consideration before this Court is whether the consistent findings of the learned Courts below that the permission for mortgaging the property will hold good for any subsequent sale and no permission for sale under Section 22 of the OLR Act is necessary, is legally correct. Section 22 of the OLR Act provides as under: "Restriction on alienation of land by Scheduled Tribes – (1) (Any transfer) of holding or part thereof by a raiyat, belonging to a Scheduled Tribe shall be void except where it is in favour of - (a) a person belonging to a Scheduled Tribe; or (b) a person not belonging to a Scheduled Tribe when such transfer is made with the previous permission in writing of the Revenue Officer: Provided that in case of a transfer by sale, the Revenue Officer shall not grant such permission unless he is satisfied that a purchaser belonging to a Scheduled Tribe willing to pay the market price for the land is not available, and in case of a gift unless he is satisfied about the bona fides thereof. (2) The State Government may, having regard to the law and custom applicable to any area prior to the date of commencement of this Act by notification, direct that the restrictions provided in Sub-section (1) shall not apply to lands situated in such area or belonging to any particular tribe throughout the State or in any part of it. (3) Except with the written permission of the Revenue Officer, no such holding shall be sold in execution of a decree to any person not belonging to a Scheduled Tribe. (4) Notwithstanding anything contained in any other law for the time being in force, where any document required to be registered under the provisions of Clause (a) to Clause (e) of Sub-section (1) of Section 17 of the Registration Act, 1908 (16 of 1908) purports to effect transfer of a holding or part thereof by a raiyat belonging to a Scheduled Tribe, in favour of a person not belonging to a Scheduled Tribe, no Registering Officer appointed under that Act shall register any such documents, unless such documents is accompanied by the written permission of the Revenue Officer for such transfer. (5) The provisions contained in Sub-section (1) to (4) shall apply mutatis mutandis, to the transfer of a holding or part thereof a raiyat belonging to the Scheduled Caste. (6) Nothing in this section shall apply - (a) to any sale in execution of a money decree passed, or to any transfer byway of mortgage executed, in favour of any Scheduled Sank or in favour of any Bank to which the Orissa Co-operative Society Act, 1962 (2 of 1963) applies; and (b) to any transfer by a member of a Scheduled Tribe within a Scheduled area)". 8. Sub-section (1) read with Sub-section (5) of Section 22 of the Act makes it clear that without permission of the competent authority for transfer of a holding or part thereof belonging to a scheduled caste shall be void. The very language of Sub-section (1) read with the proviso thereto makes it clear that permission for a particular type of transfer is required to be granted and not in general terms covering all or every type of transfer. Proviso to Sub-section (1) makes it clear that only in case of proposed, transfer by way of sale the competent Revenue Officer has to be satisfied that no purchaser belonging to S.C. community is willing to pay the market price of the land. Similarly in case of a proposed transfer by way of gift he has also to be satisfied that the gift is bona fide. Whereas; the satisfactions which are required to be reached in case of a permission for proposed sale or gift may not be required for permission for proposed transfer by way of mortgage or lease. It is, therefore, apparent that after considering the necessity and the nature of proposed transfer for which permission has been sought for, the authority grants permission for transfer of that very kind, which is being sought for and that no permission in general which would cover all types of transfer can be granted. It must, therefore, be held that the permission granted for mortgaging the property cannot be utilized for selling the property inasmuch as consideration for grant of permission for both types of transfer are different. In such view of the matter, the findings of the OLR authorities in Annexures-1, 2, and 3 that permission having been granted for mortgage, no further permission is required for sale, is unsustainable. In such view of the matter, the findings of the OLR authorities in Annexures-1, 2, and 3 that permission having been granted for mortgage, no further permission is required for sale, is unsustainable. Even otherwise once a permission has already been utilized for a particular property for a type of particular transfer, the same permission cannot be utilized for another type of transfer. 9. Hence the impugned orders are set aside and the matter is remitted back to the Revenue Officer i.e. the original authority, who shall consider as to whether, even if the sale of the year 1972 become invalid, opposite party No.4 is still liable to be evicted, since it is contended that the possession of opposite party No.4 over the land is by virtue of the earlier mortgage which has not yet been redeemed. It is open to both the parties to raise all other contentions available to them before the authority. The Revenue Officer shall do well to dispose of the proceeding expeditiously, preferably within a period of four months from the date of communication of this order. To cut short the delay, the petitioner and opposite party No.4 are directed to appear before the Revenue Officer, Jajpur on 09.09.2014, whereafter the Revenue Officer shall fix the date of hearing and dispose of the matter. The writ petition is accordingly disposed of. Issue urgent certified copy. Petition disposed of.