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2016 DIGILAW 1110 (ORI)

Abhimanyu Senapati v. Kursika Jambu

2016-11-17

BISWANATH RATH

body2016
JUDGMENT : Biswanath Rath, J. This writ petition has been filed by the petitioner assailing the impugned order under Annexure-5. 2. Brief fact involved in this case is that the opposite party No.1 being a Scheduled Tribe applied permission for selling of a portion of his land measuring Ac.1.28 cents of Plot No.114, Khata No.19/33 following the provision in Section 3(1) of the Regulation-II, 1956. A transfer permission proceeding was initiated vide OSATIP Case No.56/96. Being directed, an enquiry was conducted by the Revenue Inspector and a consequential report was submitted favouring grant of permission as available at Annexure-2. Depending upon the report, the Tahasildar also granted necessary permission by his order dated 5.7.1994 as available at Annexure-3. Annexure-4 is the specific permission order involving the suit land. 3. It is alleged that based on the permission granted by the competent authority, the petitioner and the private opposite party entered into a sale deed involving the disputed land. The sale deed was also registered accordingly. Almost after a gap of five years, a suo motu proceeding was initiated by the Collector taking aid of Section 3(a)(i) of the Regulation-II, 1956 for restoration of land in favour of the Scheduled Tribe person under alleged involvement of illegal transfer. The proceeding was registered as OSATIP Review Case No.6/99. This proceeding was decided on contest against the petitioner holding that there has been violation of the provisions contained in Section 3(1) of the Regulation-II, 1956. 4. Looking to the application at the instance of the private opposite and further report submitted by the R.I. after due inquiry and for the permission order granted by the Tahasildar, learned counsel appearing for the petitioner submitted that there has been absolutely no violation of condition attached to the Section 3(i) of the Regulation-II, 1956 and the Reviewing Authority has totally failed in appreciating the developments taken place and the observations made by the different authorities involving Section 3(i) proceeding and thereby, arrived at a wrong and erroneous impugned order. 5. Learned Additional Government Advocate strongly disputing the objections raised by the learned counsel for the petitioner submitted that the purpose of the Statute is to protect the interest of the Tribe people and since the Reviewing Authority has come to a conclusion that there has been violation of provision contained in Section 3 of the Regulation-II, 1956, the impugned order leaves no scope for interference. It is further alleged that looking to the conditions contained in Section 3(III) of the Regulation-II, 1956, it appears that there is no proper enquiry conducted by the Revenue Inspector and further, this aspect has not been properly dealt by the Tahasildar while granting permission. 6. Considering the rival contentions of the parties, this Court finds there is no dispute that the opposite party No.1 applied for permission for sell of the disputed land following the provision contained in Section 3(I) of the Regulation-II, 1956. Looking to the request made therein, it appears that the opposite party No.1 had desired to sale only to the extent of Ac.1.28 cents of land of Plot No.114, Khata No.19/33 out of a total land under his custody extending to Ac.5.25 decimals. Considering the provision contained in Section 3(I) of the Regulation-II, 1956 an enquiry was conducted by the then R.I. as appearing at Annexure-2. After making necessary enquiry the R.I. under Clause (III) has submitted as follows : “3) Village Description of the land wet or dry area the rent payable of the land to be transferred (Boundaries also be furnished, the total area of the lad held by the applicant on the date of application). The no. of his family members dependant on him and other service, if ay:- Bodo Matakabadi, Khata no.19/33. Plot no.114 Paddy-I Ac.1-28. Rate of rent:5-25 per acre. The total area held by the applicant Ac.3-53. The total family members held by the applicant: two (wife and husband) The applicant is a issue less person. He has no other services of income.” 7. Section 3 of the Regulation-II, 1956 reads as follows: “3. Plot no.114 Paddy-I Ac.1-28. Rate of rent:5-25 per acre. The total area held by the applicant Ac.3-53. The total family members held by the applicant: two (wife and husband) The applicant is a issue less person. He has no other services of income.” 7. Section 3 of the Regulation-II, 1956 reads as follows: “3. Transfer of immovable property by a member of the Scheduled Tribe-(1) [Notwithstanding anything contained in any law for the time being in force any transfer of immovable property by a member of a Scheduled Tribe, except by way of mortgage executed in favour of any public financial institution for securing a loan granted by such institution for any agricultural purpose, shall be absolutely null and void and of no force or effect whatsoever, unless such transfer is made in favour of another member of a Scheduled Tribe: Provide that – (i) Nothing in this sub-section shall be construed as to permit any member of a Scheduled Tribe or his successors-in-interest to transfer any immovable property which was settled with such member of Scheduled Tribe by or under any authority of the State or the Central Government or under any law for the time being in force; (ii) In execution of any decree for realization of the mortgage money, no property mortgaged as aforesaid shall be sold in favour of any person not being a member of a Scheduled Tribe; and (iii) A member of a Scheduled Tribe shall not transfer any land if the total extent of his land remaining after the transfer will be reduced to less than two acres in case of irrigated land or five acres in case of unirrigated land. xx xx xx” Coming to consider the allegation raised by the State that there has been violation of the provision contained in Section 3 of Regulation-II, 1956 and from reading of the Section 3 of Regulation (II) of 1956, it appears that the provision permits for sale of land of a Tribe under specific contingency. Looking to the order of permission granted by the Tahasildar, this Court finds the Tahasildar had taken all care in the matter of compliance of Sub-Section (III) of Section-3 of Regulation-II, 1956 and thereafter, made a categoric observation that after sale of Ac.1.28 cents of Plot No.114, Khata No.19/33, the opposite party No.1 will still have Ac.3.83 decimals of land with him. 8. 8. From the above and after going through the provisions contained in Sub-Section-(III) of Section 3 of Regulation-II, 1956, this Court finds there is no force in the submission of the learned State Counsel and on the other hand, for the R.I. report and the observations in the Tahasildar’s permission, this Court finds there was no infirmity in the grant of permission. Consequently, this Court finds there is no illegality in the transaction thereby. 9. Considering the rival contentions of the parties and for the observation made hereinabove, this Court finds the Reviewing Authority even though indicated the illegalities in the paragraph nos.1 & 4 at page 24 of the brief but failed in applying his mind in terms of the provision contained in Section 3 of the Regulation-II, 1956 and therefore, has failed in appreciating the requirement of the Section 3 of the Regulation-II, 1956. Accordingly, this Court finds the impugned order under Annexure-5 is not sustainable in the eye of law and therefore, while setting aside the impugned order under Annexure-5, this Court allows this writ petition. Parties to bear their respective costs.