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2016 DIGILAW 228 (ORI)

Nrusingha @ Narasingha Panda v. Nath Palka

2016-03-22

A.K.RATH

body2016
JUDGMENT : Dr. A.K.Rath, J This writ application challenges the order dated 11.3.1999 passed by the Collector, Rayagada, opposite party no.3, in OSATIP Review Case No.115 of 1998 whereby and whereunder opposite party no.3 set aside the order dated 27.4.1994 of the competent authority passed in OSATIP Case No.41 of 1994 granting permission in favour of the opposite party no.1 to alienate the land as null and void and directed the Sub-Collector, Gunupur to restore the case land in favour of the opposite party no.1. 2. Shorn of unnecessary details, the short facts of the case are that the land measuring an area of Ac.1.00 dec. appertaining to Khata No.4/9, Plot No.4/105 of Mouza-Badapendrakhal originally belongs to opposite party no.1 along with others. Opposite party no.1 belongs to Scheduled Tribe community. To press his legal necessity,he intended to sale the land to the petitioner and applied to the competent authority under the Orissa Scheduled Areas Transfer of Immovable Property (By Scheduled Tribes) Regulations, 1956 (Regulation 2 of 1956), which was registered as OSATIP Case No.41 of 1994. The competent authority accorded permission. Thereafter, opposite party no.1 transferred the land to the petitioner by means of registered sale deed dated 27.4.1994. After sale, the petitioner mutated the land in his favour. He used to pay rent to the Government. While the matter stood thus, the Collector, Rayagada, opposite party no.3, initiated review case bearing OSATIP Review Case No.115 of 1998 under Section 3A(1) of Regulation 2 of 1956. By order dated 11.3.1999, opposite party no.3 set aside the order dated 27.4.1994 of the competent authority passed in OSATIP Case No.41 of 1994 granting permission in favour of the opposite party no.1 to alienate the land and directed the Sub-Collector, Gunupur to restore the case land in favour of the opposite party no.1. With this factual scenario, this writ application has been filed. 3. Heard Mr. Budhiram Das, learned counsel for the petitioner and Mr. B.P. Tripathy, learned Addl. Government Advocate for the State. None appears for the opposite party no.1. 4. Mr. Das, learned counsel for the petitioner, submitted that the opposite party no.1 was the owner of the land in question. To press his legal necessity, he intended to alienate the land in favour of the petitioner. Thereafter, he applied for permission to the competent authority for alienation of the land. None appears for the opposite party no.1. 4. Mr. Das, learned counsel for the petitioner, submitted that the opposite party no.1 was the owner of the land in question. To press his legal necessity, he intended to alienate the land in favour of the petitioner. Thereafter, he applied for permission to the competent authority for alienation of the land. After permission was accorded, he sold the land to the petitioner by means of registered sale deed dated 27.4.1994 for a valid consideration. Thereafter, the petitioner filed an application for mutation. The competent authority after causing enquiry recorded the land in his favour. The petitioner used to pay rent to the Government. In the OSATIP Review Case, no opportunity of hearing was provided to the petitioner to cross-examine the opposite party no.1. The finding of the Collector, Rayagada, opposite party no.3, that the petitioner as a landless person is perverse inasmuch as the opposite party no.1 is the owner of six acres of land. 5. Pursuant to issuance of notice, a counter affidavit has been filed by the opposite parties 2 and 3. It is stated that the petitioner is a non-Scheduled Tribe person. He had purchased the land of Ac.1.00 vide Plot No.4/105 under Khata No.4/9 in Mouza-Badapendrakhal in Bisam Cuttack Tahasil from opposite party no.1 who belongs to Scheduled Tribe community. Opposite party no.1 filed an application before the Tahasildar, Bissam Cuttack, opposite party no.2, seeking permission to sale the land to the petitioner. Opposite party no.2 without resorting to the legal procedure prescribed under Regulation 2 of 1956 granted permission. During the year 1991-92 to 1995-1996, a large extent of land belonging to the SC/ST had been alienated in a clandestine manner which became a sensitive issue in the tahasil of Bissam Cuttack. Consequently, the R.D.C., Southern Division, Berhampur caused an enquiry in the matter and submitted his report to the Government in the Revenue Department. The report unravelled the serious commission/omission and involvement of the authorities in Bissam Cuttack tahasil for which necessary proposal was made by the Government, whereafter necessary amended provision was introduced in Regulation 2 of 1956. As per the amended provisions embodied in Section 3(3-A)(i) of Regulation 2 of 1956, the Collector has been empowered to review the permission granted by the concerned Tahasildar after causing necessary enquiry. It is further stated that the notice had been issued to the vendor and vendee. As per the amended provisions embodied in Section 3(3-A)(i) of Regulation 2 of 1956, the Collector has been empowered to review the permission granted by the concerned Tahasildar after causing necessary enquiry. It is further stated that the notice had been issued to the vendor and vendee. Their statements were recorded in the proceeding. The petitioner had been provided ample opportunity to cross-examine the opposite party no.1, but he neither availed such opportunity nor cross-examined the opposite party no.1. In the process of enquiry, it was revealed that serious illegalities were committed by the competent authority in issuing necessary permission in OSATIP Case No.41 of 1994. It is further stated that the opposite party no.1 belongs to Scheduled Tribe community and applied for permission under Section 3(i) of Regulation 2 of 1956 on 13.4.1994 to sell the land of Ac.1.00 to the petitioner who is a non-S.T person. The R.I reported that the opposite party no.1 applied seeking permission to sell the land to meet the marriage expenses of his son. On the other hand, the concerned authorities vide order dated 27.4.1994 while granting permission did not discuss the exact purpose for which the permission was granted. It is further stated that the sale transaction had been made hastily on the very day when permission was accorded, which indicates that the petitioner was working in tandem with the competent authority who granted permission surreptitiously without following the due procedure of law. It is further stated that though the then Tahasildar invited objection which was published on 14.4.1994, the permission was granted on 27.4.1994 i.e. before completion of one month time stipulated for receiving objection. Further, though the report of the R.I indicates that the opposite party no.1 was having two acres of land, but after disposal of the said one acre of land, opposite party no.1 is now found to be a landless person. 6. Admittedly the permission was accorded before completion of 15 days of notice. The question does arise as to whether the same is a valid permission ? 7. Sub-Rule (4) of Rule 7 of the Orissa Scheduled Areas Transfer of Immovable Property (By Scheduled Tribes) Rules 1959 (hereinafter referred to as “Rules, 1959”) provides the manner of conducting enquiry by the Sub-Collector. The same is quoted below: “7. The question does arise as to whether the same is a valid permission ? 7. Sub-Rule (4) of Rule 7 of the Orissa Scheduled Areas Transfer of Immovable Property (By Scheduled Tribes) Rules 1959 (hereinafter referred to as “Rules, 1959”) provides the manner of conducting enquiry by the Sub-Collector. The same is quoted below: “7. Manner of conducting Enquiry by the Sub-Collector - xxx xxx xxx (4) The Sub-Collector may also serve a public notice on the village in which the land is situated, inviting their comments and views, if any, on the information within a period of 15 days from the date of service of notice. The notice shall be served in the manner prescribed in the Code of Civil Procedure.” 8. Rules, 1959 prescribe for issuance of notice inviting objections. The provision is mandatory in nature. The same has been blissfully overlooked by the competent authority while granting permission to the opposite party no.1 to alienate the land. Opposite party no.1 belongs to Scheduled Tribe community. Regulation 2 of 1956 has been enacted to control and check transfer of immovable property in the schedule areas of the State of Orissa by Schedule Tribes. One acre of land was sold for a paltry amount of Rs.12,000/-. 9. On a conspectus of the order of the opposite party no.3, it transpires that the competent authority has granted permission without mentioning the purpose for which the land was to be sold. Opposite party no.1 was having two acres of land after alienation of one acre of land in favour of the petitioner. Notice was issued by the competent authority on 14.4.1998 inviting objection. The permission was accorded on 27.4.1994, i.e., before completion of fifteen days of time. On the same day, the sale deed was executed. Opposite party no.3 came to the conclusion that the competent authority has not examined the case in its proper perspective and granted permission. 10. The Supreme Court in Zenit Mataplast Private Ltd. V. State of Maharashtra & others, (2009) 10 SCC 388 held that anything done in undue haste can also be termed as arbitrary and cannot be condoned in law. The action/order of the State or its instrumentality would stand vitiated, if it lacks bona fide as it would only be case of colourable exercise of power. 11. The action/order of the State or its instrumentality would stand vitiated, if it lacks bona fide as it would only be case of colourable exercise of power. 11. In view of the discussions made in the preceding paragraphs, a conclusion is irresistible that the order of the competent authority in according permission to opposite party no.1 to alienate the land suffers from the vice of arbitrariness. 12. There being no illegality or perversity in the impugned order, this Court is not inclined to interfere with the same. Accordingly, the petition is dismissed. No costs.