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2016 DIGILAW 503 (ORI)

Harekrishna Mahanta v. A. D. M. , Sundergarh

2016-07-12

BISWAJIT MOHANTY

body2016
JUDGMENT : Biswajit Mohanty, J. The present writ application has been filed by the petitioner with a prayer to set aside the order of dismissal passed by the learned A.D.M., Sundergarh (opp. party No.1) in Revenue Appeal No.13 of 2004 under Annexure-1 and also to set aside the order passed by the learned Sub-Collector, Bonai (opp. party No.2) in Regulation Case No.8 of 1999. 2. The case of the petitioner is that the case land was originally recorded in the name of one Joseph Munda, son of Gabriel Munda of village: Ghusariposh vide Sabik Khata No.24/02 (A) of Mouza: Ghusariposh measuring an area of Ac.13.45 decimals. Said Joseph Munda sold the entire land as indicated above to the father of the present petitioner for a consideration amount of Rs.5,000/-on 25.12.1959 in presence of witnesses and in token of such sale, Joseph Munda executed one plain paper un-registered sale deed on 25.12.1959 and delivered the possession of the said land to the father of the present petitioner. The said plain paper un-registered sale deed has been filed as Annexure-4 to the writ application. According to the petitioner, since 25.12.1959 the father of the petitioner had been in cultivating possession of the said land till his death and after him, his son, i.e., the present petitioner and not other sons has been cultivating and possessing the said land. Though during the settlement operation the present petitioner and his father produced the plain paper un-registered sale deed under Annexure-4 before the settlement authority, the settlement authority wrongly recorded the name of one Mina Kisan in respect of the case land vide Annexure-5 during 1974 with an endorsement showing the father of the petitioner to be in possession by way of Be. Kha. Su.Da, i.e., Beain Kharid Sutra Dakhal, in other words, possession through illegal purchase. The petitioner also relied on a number of rent receipts starting from the year, 1960 before opp. party No.2. The case of opp. party No.3 as revealed from records is that he belongs to Scheduled Tribe Community and according to him the case land was recorded land of his grandfather and the petitioner along with his brothers forcibly possessed the case land despite repeated protest of the opp. party No.3. The R.O.R. under Annexure-5 also made it clear that the father of the petitioner was in possession through illegal purchase. In such circumstances, the opp. party No.3. The R.O.R. under Annexure-5 also made it clear that the father of the petitioner was in possession through illegal purchase. In such circumstances, the opp. party No.3 filed Regulation Case No.8 of 1999 before opp. party No.2 under Section 3 (2) of Orissa Scheduled Areas Transfer of Immovable Property (By Scheduled Tribes) Regulations, 1956, for short, “Orissa Regulation 2 of 1956” for restoration of case land in his favour and to evict the present petitioner from the case land. There, the present petitioner as second party defended his case on the basis of adverse possession and secondly he claimed that Mina Kisan, the present recorded tenant was not the owner of the case land. Lastly, he contended that the opp. party No.3 was in no way related to said Mina Kisan. After perusing the case record and documents filed by both the parties, the opp. party No.2 relying on enquiry report submitted by learned Addl. Tahasildar, Bonai vide letter No.2023 dated 1.7.2002 came to the conclusion that opp. party No.3 was one of the the legal heirs of late recorded tenant of Mina Kisan and Mina Kisan has purchased the case land from Abraham Munda, the son of late Joseph Munda vide RSD No.376 of 1969. Thus, he came to hold that the plain paper chit/sale deed under Annexure-4 dated 25.12.1959 cannot extinguish the right, title and interest of opp. party No.3 over the case land. He also made it clear that no doubt, the present petitioner who was the opp. party before him has proved to have been in cultivating possession of the case land since 1959, however, being a member of non-Scheduled Tribe community and without any registered documents, the possession of the present petitioner over the case land which belongs to a Scheduled Tribe person was illegal. Opp. party No.2 repelled the contention of the petitioner with regard to his perfecting right and title over the case land by way of adverse possession by relying on the decision of the Hon’ble Supreme Court as reported in Volume98 (2004) CLT 19 (SC)/ AIR 2004 SC 3782 (Amrendra Pratap Singh v. Tej Bahadur Prajapati and others). Accordingly, opp. party No.2 directed the present petitioner to give vacant possession of the case land after its proper demarcation in presence of the parties and also directed to delete the name of illegal possession from the ROR. Accordingly, opp. party No.2 directed the present petitioner to give vacant possession of the case land after its proper demarcation in presence of the parties and also directed to delete the name of illegal possession from the ROR. Challenging the same, the present petitioner filed Revenue Appeal No.13 of 2004 before the A.D.M., Sundargarh (opp. party No.1). 3. A perusal of order under Annexure-1 rejecting the appeal of the petitioner shows that notwithstanding the case law as reported in Amrendra Pratap Singh’s case (supra), again the petitioner took the plea of acquiring right over the suit land by adverse possession. The opp. party No.1, in view of the decision of the Hon’ble Supreme Court as referred above refused to accept such submission of the petitioner and while rejecting the appeal, he also indicated that since permission was never given to the vendor of the father of the petitioner for sale as required under existing law, the possession of father of the petitioner as well as that of the petitioner was fully unauthorised. Thus, the appeal was rejected vide Annexure-1. Challenging the orders under Annexures-1 and 2, the present writ application has been filed. 4. Heard Mr. Bose, learned counsel for the petitioner and Mr. R.P. Mohapatra, learned Addl. Government Advocate for opp. parties 1 and 2. 5. Mr. Bose, learned counsel for the petitioner fairly submitted that in the face of the decision rendered by the Hon’ble Supreme Court in Amrendra Pratap Singh (supra), doctrine of adverse possession has no application to a case of present nature. However, he submitted that opp. party No.3 had no locus standi to move opp. party No.2 at the first instance by filing Regulation Case No.8 of 1999 under Section 3 (2) of “Orissa Reguation 2 of 1956”. According to him, it is only Mina Kisan who has purchased the case land vide R.S.D. No.376 of 1969 from Abraham Munda, son of late Joseph Munda and after him his LRs. have the locus standi to move the opp. party No.2 under “Orissa Regulation 2 of 1956” against the petitioner who undisputedly belongs to non Scheduled Tribe community. According to learned counsel for the petitioner, in fact, opp. party No.3 was in no way related to late Mina Kisan. This sole contention of learned counsel for the petitioner was vehemently opposed by Mr. Mohapatra learned Addl. party No.2 under “Orissa Regulation 2 of 1956” against the petitioner who undisputedly belongs to non Scheduled Tribe community. According to learned counsel for the petitioner, in fact, opp. party No.3 was in no way related to late Mina Kisan. This sole contention of learned counsel for the petitioner was vehemently opposed by Mr. Mohapatra learned Addl. Government Advocate by submitting that the original court, i.e., opp. party No.2 in its impugned order under Annexure-2 has made it clear that opp. party No.3 is one of the legal heirs of late Mina Kisan, for which opp. party No.2 has relied upon the enquiry report submitted by Addl. Tahasildar, Bonai vide letter No.2023 dated 1.7.2002. He further submitted that since Mina Kisan purchased the suit land by way of registered sale deed No.376 of 1969 from Abraham Munda, son of late Joseph Munda; the plain paper un-registered sale deed under Annexure-4 executed by Joseph Munda in favour of late father of the petitioner cannot override the registered sale deed No.376 of 1969, as indicated above. Once this is the position, opp. party No.3 has/had locus standi to file Regulation Case No.8 of 1999 under Section 3 (2) of “Orissa Regulation 2 of 1956”. Further, Mr. Mohapatra submitted that conceding for a moment but not admitting that opp. party No.3 is in no way related to Mina Kisan even on that ground the impugned order cannot be thrown out in the background of language used in Sub-Section (2) of Section 3 of “Orissa Regulation 2 of 1956” which gives the competent authority suo motu power of ordering ejectment of any non Scheduled Tribe person who is in possession of immovable property claiming title over it by way of transfer when such transfer has been done in violation of sub section (1) of Section 3 of “Orissa Regulation 2 of 1956”. According to him, the competent authority can also suo motu cause restoration of possession of such property to the transferor or his heirs. Mr. Mohapatra, learned Addl. Government Advocate further submitted that since Annexure-4 covers a case of transfer of immovable property by a member of Scheduled Tribe community in favour of non-Scheduled Tribe person, i.e., petitioner, such transfer as per Section 3(1) of “Orissa Regulation 2 of 1956” was/is absolutely null and void. Mr. Mohapatra, learned Addl. Government Advocate further submitted that since Annexure-4 covers a case of transfer of immovable property by a member of Scheduled Tribe community in favour of non-Scheduled Tribe person, i.e., petitioner, such transfer as per Section 3(1) of “Orissa Regulation 2 of 1956” was/is absolutely null and void. Had it also been registered, it would not have made any difference in the background of provisions of “Orissa Regulation 2 of 1956”. 6. In order to appreciate the rival contentions made at the bar, it would be profitable to quote sub-section (2) of Section 3 of Orissa Regulation 2 of 1956: “(2) Where a transfer of immovable property is made in contravention of Sub-section (1) the competent authority may, either on application by any one interested therein [or on information received from the Grama Panchayat] or on his own motion and after giving the parties, an opportunity of being heard, order ejectment against any person in possession of the property claiming under the transfer and shall cause restoration of possession of such property the transferor or his heirs. In causing such restoration of possession the competent authority may take such steps as may be necessary for securing compliance with the said order or preventing any breach of peace: [Provided that if the competent authority is of the opinion that the restoration of possession of immovable property to the transferor or his heirs is not reasonably practicable, he shall record his reasons thereof land shall, subject to the control of the State Government settle the said property with another member of Scheduled Tribe or in the absence of any such member, with any other person in accordance with the provisions contained in the Orissa Government Land Settlement Act, 33 of 1962. Explanation-Reservation of possession means actual delivery of possession by competent authority to the transferor or his heirs.] [Provided further that where, it is decided by the competent authority to settle the said property with any person other than a person belonging to a Scheduled Tribe in accordance with the Orissa Government Land Settlement Act, 1962, he shall obtain prior approval of the concerned Grama Panchayat, accorded with the concurrence of the Grama Sasan]”. For our purpose, reference to main provision of sub-section (2) of Section 3 of “Orissa Regulation 2 of 1956” will suffice. For our purpose, reference to main provision of sub-section (2) of Section 3 of “Orissa Regulation 2 of 1956” will suffice. A reading of main provision of sub-section (2) of Section 3 of “Orissa Regulation 2 of 1956”, as quoted above, makes it clear that in case of transfer of immovable property made in contravention of sub-section (1) of Section 3 of “Orissa Regulation 2 of 1956”, the competent authority can move in the matter: (1) when he receives an application from any person interested therein, or (2) when he receives information from the Grama Panchayat in the matter, or (3) on his own motion. In this case before passing the impugned order under Annexure-2, the opp. party No.2 after perusing the enquiry report of Addl. Tahasildar, Bonai submitted to him vide letter No.2023 dated 1.7.2002 has come to a clear finding that actually opp. party No.3 is one of the legal heirs of Mina Kisan, who unlike the father of the present petitioner purchased the suit land from Abraham Munda, the son of late-Joseph Munda vide R.S.D. No.376 of 1969. In such background, this Court comes to a conclusion that opp. party No.3 has enough interest in the subject matter to move opp. party No.2 under Section 3 (2) of “Orissa Regulation 2 of 1956”. But now the question arises; even if a person is not interested in immovable property which has been illegally transferred in violation of Sub section (1) of Section 3 of “Orissa Regulation 2 of 1956”, but if he brings such illegality to the notice of the competent authority; can such authority initiate a suo motu proceeding in the matter? To such a question, the answer of this Court is clearly in affirmative. When the competent authority receives information relating to an illegal transfer of immovable property in violation of mandate of Section 3 (1) of “Orissa Regulation 2 of 1956”, the competent authority can also make a move on his own. Here, strictly though the said contingency does not arise, however, even if opp. party No.3 is to be treated as a stranger for argument’s sake, still it cannot be denied that he has brought to the knowledge of competent authority, i.e., opp. party No.2 that an illegal transfer has taken place vide Annexure-4. Here, strictly though the said contingency does not arise, however, even if opp. party No.3 is to be treated as a stranger for argument’s sake, still it cannot be denied that he has brought to the knowledge of competent authority, i.e., opp. party No.2 that an illegal transfer has taken place vide Annexure-4. Since main object of “Orissa Regulation 2 of 1956” is to control and check illegal transfer of immovable property in the Scheduled Areas of the State by Scheduled Tribes so as to protect their interest therefore, having regard to the facts and circumstances of the present case, it can be said that the opp. party No.3 (assuming for a moment that he is no way connected with the immovable property) acted as a catalyst by bringing to the notice of the opp. party No.2 about illegal transfer and possession of the case land by the petitioner. In such background, the opp. party No.2 did no mistake in initiating a proceeding to uphold the beneficial provision of “Orissa Regulation 2 of 1956”. So even if it is assumed for a moment that opp. party No.3 is no way connected/no way interested vis-a-vis the immovable property in question, still then, the proceeding under Section 3 (2) of “Orissa Regulation 2 of 1956” as initiated by opp. party No.2 cannot be thrown out. It can be treated as a suo motu proceeding by the competent authority to do justice to Scheduled Tribe persons for whose protection “Orissa Regulation 2 of 1956” exists. Sub section (2) of Section 3 of “Orissa Regulation 2 of 1956” by giving suo motu power to the competent authority gives wide discretion to him to effectively implement the mandate of law so that the interest of Scheduled Tribe people remain protected. It nowhere debars the competent authority from proceeding in the matter after he receives relevant information from any person relating to violation of sub section (1) of Section 3 of “Orissa Regulation 2 of 1956”. 7. For all these reasons, the writ application is without any merit and as such the same is dismissed. But one thing is made clear that the possession pursuant to order vide Annexure-2 should be handed over strictly in accordance with law.