Research › Search › Judgment

Orissa High Court · body

2016 DIGILAW 819 (ORI)

Tirupati Panigrahi v. Collector, Gajapati

2016-09-16

BISWANATH RATH

body2016
JUDGMENT : Biswanath Rath, J. This writ petition arises out of an order passed by the Member, Board of Revenue, Orissa, Cuttack in O.L.R. Revision Case No.63/94 decided along with several other Revisions in exercise of power under Section 59(2) of the OLR Act, 1965 thereby allowing the reference made by the Collector holding the permission to sale the land in favour of the petitioner therein as bad and further directing the Collector to take steps for restoring the possession of the lands in favour of the tribal owners. 2. In assailing the impugned order, learned counsel for the petitioner contended that the sale to a person outside Tribe by the petitioner was based on a permission granted by the Competent Authority in exercise of power under Section 22 of the OLR Act to a Scheduled Tribe. In the initial stage the authority in exercising power under Section 22 of the OLR Act, after a thorough inquiry and examining different aspect in the matter of requirement under Section 22 of the Act though granted permission for sale but the permission was on reduction of the extent of land applied. The authority granted permission to sell only Ac.7.030 out of Ac.12 of land as a whole. For the reasons assigned in the grant order, it appears, there is full compliance of Section 22 of the OLR Act. Learned counsel Sri Rao submitted that under the circumstances, there was no scope for the Collector for referring the matter to the Board of Revenue for exercising its power under Section 59(2) of the Act. This writ petition involves the OLR Case No.15 of 1993 concerning the sale of the land by the particular petitioner. In the above premises, learned counsel submitted that in view of the report of the R.I. submitted for recommending permission for sale in favour of the tribe person, there was no scope for reference of the matter and further since the Board of Revenue observed that the authority in exercising its power under Section 22 of the OLR Act complied all the formalities except indicating the reason for reducing the area in his report and therefore, the Board of Revenue arrived at a wrong and illegal impugned order in illegal appreciation of whole aspect and the impugned order is liable to be interfered and set-aside. 3. 3. Learned State Counsel on the other hand, supporting the order of the Board of Revenue passed in OLR Revision Case No.63/94 contended that the authority in exercising its power apart from compliance of the requirement of Section 22 of the Act, is also required to follow the instructions given by the State Government in a memo issued for the purpose and the notification of the State having not been followed, the permission for sale was bad and therefore, there is no illegality in the impugned order. Consequently, there is no scope for interfering in the impugned order. 4. Considering the rival contentions, this Court finds there is no denial to the fact that the land owner being a Scheduled Tribe, applied for permission from the competent authority for sale of the land in exercising its power under Section 22 of the OLR Act, 1960. Section 22(1) A & B of the OLR Act reads as follows:- “22. Restriction on alienation of land by Scheduled Tribes – (1) [Any transfer]of holding or part thereof by a raiyats, 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.” Looking to the provisions indicated hereinabove, this Court finds the requirement of law is only to find out as to whether it was in favour of a person not belonging to a Scheduled Tribe when such transfer is made with the previous permission in writing of the Revenue Officer provided further that in case of transfer by sale, the Revenue Officer shall not grant such permission unless he is satisfied that a purchaser belonging to Scheduled Tribe willing to pay the market price for the land is not available. Since the case involves sell of land to a Tribe, the requirement was only to find out that there is no other person belonging to Scheduled Tribe available in the locality who are willing to pay the market price. The report of the Revenue Officer becomes final unless it is de-horsed the provision or arbitrary and further, in the event, the Tribe applied for remain dissatisfied with the manner of permission by the Revenue Authority. 5. Looking to the facts borne from the writ petition as well as the counter affidavit, this Court finds though there is a reference against the recommendation of the Revenue Officer and the consequential permission for sale but there is absolutely no discussion looking to the requirement of the proviso appended to Section 22(B) of the Act. Further perusal of the records and documents available in the writ petition, this Court finds the permission letter issued by the Sub-Collector has a clear indication of the fair market price in the locality. From the deposition of the opposite party No.4 vide Annexure-2, it also appears that the person, sold the land, has received a sum of Rs.3,000/- per acre and has thus entered into a document registering the sale remaining fully satisfied. 6. From the above, this Court finds the only requirement before granting permission under Section 22 of the OLR Act is the compliance of Section 22(B) of the OLR Act. 6. From the above, this Court finds the only requirement before granting permission under Section 22 of the OLR Act is the compliance of Section 22(B) of the OLR Act. From the observations and findings of the Board of Revenue made in the impugned order, this Court finds the Board of Revenue has not examined the matter from the point of view of requirement of the Section 22(B) of the Act and as to whether the permission was recommended in terms of Section 22(B) of the OLR Act. 7. Taking into consideration the submission of the learned State Counsel that apart from looking to the compliance of the requirement of Section 22(B) of the Act, the Revenue Officer is also required to comply the requirements under instruction memo issued by the State Government for the purpose, this Court finds instruction if any, cannot override the statutory provision. When the Statute prescribed a particular manner, the manner prescribed may not be diluted by imposition of further condition by a circular or memo or notification. 8. Under the circumstances, the impugned order under Annexure-4 in Revision No.63/94 involving Case No. 15/93 is set-aside and the revision is remanded back to the Board of Revenue to readdress the issue taking into consideration the observation of the Revenue Officer and the requirement of Section 22 of the Act and also giving opportunity of hearing to all the parties concerned. The entire exercise as directed hereinabove, be concluded within a period of three months from the date of communication of this order but however, giving opportunity of hearing to the parties concerned. 9. The writ petition stands disposed of with an order of remand and consequential direction. Parties to bear their own cost.