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2016 DIGILAW 1221 (ORI)

K. Saraswati v. Tamala Raita

2016-12-09

A.K.RATH

body2016
JUDGMENT : A.K. Rath, J. The petitioners call in question the legality and propriety of the order dated 28.1.1995 passed by the Collector, Gajapati, opposite party no.2, in Regulation Appeal No.3/90, vide Annexure-6. By the said order, opposite party no.2 dismissed the appeal and confirmed the order dated 5.4.1990 passed by the Sub-Collector and Competent Authority, Parlakhemundi, opposite party no.3, in R.M.C. No. 20/89 vide Annexure-5, whereby and whereunder the opposite party no.3 directed for restoration of the land to opposite party no.1 under Regulation 7(1) of the Orissa Scheduled Areas Transfer of Immovable Property (By Scheduled Tribes) Regulations, 1956 (hereinafter referred to as “Orissa Regulation 2 of 1956”). 2. A suo moto case being R.M.C. No. 20/89 was instituted against one K. Polaya by the opposite party no.3 on the basis of the report of the Welfare Extension Officer, Guma under Regulation 3-A of the Orissa Regulation 2 of 1956 in respect of the plot nos.500, 502, 506, 501 appertaining to khata no.76, area Ac.1.036 dec. of mouza-Bapanbudi. The Welfare Extension Officer reported that the schedule land belongs to opposite party no.1. But then in the R.O.R., note of possession, the name of K. Polaya has been indicated. The opposite party no.3 came to hold that note of possession of K. Polaya in the ROR is erroneous and directed the Tahasildar, Parlakhemundi to strike out the name of K. Polaya. He further directed to restore possession of the opposite party no.1 and imposed penalty of Rs.50/-. 3. The legal heirs of K. Polaya, the present petitioners, filed Regulation Appeal No.3/90 before the opposite party no.2 after his death. Opposite party no.2 on a threadbare analysis of the materials on record came to hold that the petitioners belong to Sundi caste and the opposite party no.1 is a scheduled tribe. He further held that the unregistered sale deed was void under Orissa Regulation 2 of 1956, since no permission had been obtained under Orissa Regulation 2 of 1956. The recording of the name of the predecessor of the petitioners as a tenant in the ROR is in contravention of Orissa Regulation 2 of 1956. Held so, appellate court dismissed the appeal. 4. Heard Mr. S.S. Rao, learned counsel on behalf of Mr. Manoj Mishra, learned Senior Advocate along with Mr. B.K. Mohanty, learned counsel for the petitioners and learned Additional Government Advocate for the State-opposite party nos.2 and 3. Held so, appellate court dismissed the appeal. 4. Heard Mr. S.S. Rao, learned counsel on behalf of Mr. Manoj Mishra, learned Senior Advocate along with Mr. B.K. Mohanty, learned counsel for the petitioners and learned Additional Government Advocate for the State-opposite party nos.2 and 3. None appears for the opposite party no.1 in spite of valid service of notice. 5. Mr. Rao, learned counsel for the petitioners submitted that K. Polaya, predecessor in interest of the petitioners purchased the land by means of unregistered sale deed from K. Narayanma, who was not a scheduled caste/scheduled tribe. He purchased some other lands from N. Sindu by means of unregistered sale deed in respect of plot nos. 831, 861, 864 measuring an area of Ac.0.034 dec., which are not the subject matter of R.M.C. No.20/89. Thus the proceeding under Orissa Regulation 2 of 1956 is not maintainable. No opportunity was granted to K. Polaya by the opposite party no.3 and as such the order is vitiated. 6. Per contra, learned Additional Government Advocate for the State-opposite party nos.2 and 3 supported the impugned order. 7. Reliance placed on the alleged sale deed by Mr. Rao, learned counsel for the petitioners is totally misplaced. The unregistered sale deed vide Annexure-3 would show that the consideration amount was Rs.1500/-. Under Sec.17 of the Registration Act, 1908 the said document requires compulsory registration. The same has not been done. Furthermore, the description of the property has not been mentioned except the area. Thus sale deed is void one. Both the forum below concurrently held that opposite party no.1 is a scheduled tribe. He is the owner of the land. The land is in occupation of the predecessor of the petitioners and after him by the petitioners. Regulation 3-A of Orissa Regulation 2 of 1956 provides that where a person is found to be in unauthorised occupation of any immovable property of a member of the scheduled tribes by way of trespass or otherwise the competent authority may, either on application by the owner or any person interest therein, [or’ on information received from the Grama Panchayat] or on his own motion, and after giving the parties concerned an opportunity to being heard, order rejectment of the person so found to be in unauthorised occupation and shall cause restoration of possession of such property to the said member of the scheduled Tribes or to his heirs. 8. In view of the discussion made above, the inescapable conclusion is that the proceeding under the Orissa Regulation 2 of 1956 is maintainable. The petitioners are in unauthorised occupation of land. The forum below directed restoration of the land to the opposite party no.1. 9. There being no infirmity or illegality in the orders passed by the for a below, this Court is not inclined to interfere with the same. Accordingly, the petition is dismissed.