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2017 DIGILAW 643 (ORI)

Purna Chandra Bisoi v. State of Orissa

2017-06-30

BISWANATH RATH

body2017
JUDGMENT : Biswanath Rath, J. 1. In this writ petition, the petitioner has made the following prayer: “It is therefore prayed that the writ petition may be admitted, relevant records of OSATIP Case No.01/2001 and OSATIP Case No.203/2004 in the file of opp. party No.2 may be called for and after hearing the counsel for the petitioner, the writ petition may be allowed by quashing the impugned order dated 28.1.2008 passed in OSATIP Case No.203/2004 under Annexure-6; And/or Pass such other order/orders as may be deemed just and proper in the facts and circumstances of the case.” 2. In assailing the aforesaid impugned orders, Sri Nanda, learned counsel appearing for the petitioner raises the following grounds: (a) In view of the transaction of the land involving Scheduled Tribe by the State in favour of the petitioner involving certificate proceeding due to nonpayment of the loan dues of the public financial institution, initiation of the proceeding under Section 32 of Regulation 2 of 1956 is itself bad; (b) Sri Nanda also raised that since the proceeding was initiated under Section 3 (2) of Regulation 2 of 1956 , reading the provisions contained in “Section 3 (2) read with Section 3(1), it was incumbent upon the authority taking of the Regulation 2 proceeding to take a decision referring to first proviso of Section 3 Sub-Section(1). In absence of these, the impugned order under Annexure-6 cannot be sustained. 3. From the documents involved in the case, this Court finds that the Scheduled Tribe persons admittedly availed the loan from the public financial institution. For non-payment of loan dues, OPDR proceedings were initiated against the Scheduled Tribe Persons resulting Certificate Proceedings and Certificate Proceedings were concluded by court auction and after obtaining necessary permission from the competent authority. Consequent upon issuance of certificate of sale in favour of the petitioner, record-of-right was also prepared, as appearing at Annexure-2 and it is at this stage of the matter and after a long gap of 25 years, a suo motu proceeding under Regulation 2 of 1956 applying the provision under Section 3 (2) of the Regulation 2 was initiated. Regulation 2 proceeding initiated suo motu was registered as OSATIP Case No.203 of 2004 and this matter was disposed of against the petitioner holding that the sale transaction has been effected in non-compliance of the provision contained in Section 3(1) of the Regulation 2 of 1956. Regulation 2 proceeding initiated suo motu was registered as OSATIP Case No.203 of 2004 and this matter was disposed of against the petitioner holding that the sale transaction has been effected in non-compliance of the provision contained in Section 3(1) of the Regulation 2 of 1956. Referring to the impugned order and drawing this Courts attention to the provision under Section 3 of the Regulation 2 of 1956, Sri Nanda, learned counsel appearing for the petitioner contended that there has been no proper appreciation of first proviso involving Section 3(1) and therefore, the impugned order cannot be sustained. Sri Nanda, learned counsel also raises dispute with regard to the limitation on the premises that the Regulation 3 proceeding having been initiated after long lapse of time for which the proceeding is also otherwise not maintainable. It is in these premises, Sri Nanda, learned counsel prayed for setting aside the impugned order under Annexure-6 and thereby confirming the sale transaction in favour of the petitioner. 4. Sri Behera, learned State Counsel on the other hand defending the impugned order submitted that for the facts disclosed therein in the impugned order, the auction involving the disputed property taken place on 2.2.1979 and there being no prior approval, there has been clear violation of the provision contained in Section 3 of the Regulation 2 of 1956 and therefore, there is no illegality or impropriety in the impugned order and thus prayed for rejection of the writ petition for having no merit. 5. Considering the rival contentions of the parties, this Court finds that there is no dispute that the petitioner has purchased the disputed property belonging to a Scheduled Tribe in a certificate proceeding arising out of a proceeding under OPDR Act. Be that as it may, the question that is required to be decided here as to whether the sale in favour of the petitioner in fact is contravenes the provision under Section 3 of the Regulation 2, 1956 or not? Considering the admitted position indicated hereinabove, this Court now moves to consider the aforesaid question taking into consideration the provision contained in Section 3 of the Regulation, 1956. Section 3 of the Regulation 2 of 1956, as amended, is applicable to the case involving the sale certificate in the year,1982. 6. Section 3 of the Orissa Scheduled Areas Transfer of Immovable Property (By Scheduled Tribes) Regulation, 1956 reads as follows: 3. Section 3 of the Regulation 2 of 1956, as amended, is applicable to the case involving the sale certificate in the year,1982. 6. Section 3 of the Orissa Scheduled Areas Transfer of Immovable Property (By Scheduled Tribes) Regulation, 1956 reads as follows: 3. Transfer of immovable property by a member of Scheduled Tribe-(1) Notwithstanding anything contained in any law for the time being in force any transfer of immovable property situated within a Scheduled Area by a member of a Scheduled Tribe shall be absolutely null and void and of no force or effect whatsoever unless made in favour of another member of a Scheduled Tribe or with the previous consent in writing of the competent authority: [Provided that nothing in this Sub-section shall apply to any Transfer by way of mortgage executed in favour of any public financial institution for securing a loan granted by such institution for any agricultural purpose]: Looking to the first proviso attached to Section 3(1) of the Regulation 2 of 1956, it makes clear that the condition attached in Section 3(1) of Regulation 1 of 1956 will have no application in the event the property of a Scheduled Tribe mortgaged in favour of public financial institution for securing loan granted by such institution for agricultural purpose. From the fact scenario, it appears that the land originally belong to Scheduled Tribe and it is submitted by learned counsel for the petitioner that the land remain in agriculture status and reading of the entire pleadings as well as the impugned order, this Court is unable to find out as to purpose of the loan. This Court also finds the authority deciding the matter in OSATIP Case No.203 of 2004 has not considered this aspect of the matter and it appears that the authority has totally lost sight of the first proviso appended to Section 3(1) of the Regulation 2 of 1956. 7. This Court also finds the authority deciding the matter in OSATIP Case No.203 of 2004 has not considered this aspect of the matter and it appears that the authority has totally lost sight of the first proviso appended to Section 3(1) of the Regulation 2 of 1956. 7. Under the circumstance, this Court finds t the impugned order runs contrary to provision contained in Regulation 2 of 1956 and the matter is remitted back to the Sub-Collector, Gunupur to rehear the matter involving OSATIP Case No.203 of 2004 and decide the case on the issues framed thereunder involving the provision contained in first proviso and take a fresh decision in the matter giving opportunity of hearing to the present petitioner and also to the State authority further after calling for the relevant documents from the State custody. Petitioner is directed to appear before the Sub-Collector, Gunupur along with certified copy of this order on 21.7.2017 enabling the Collector to proceed in the matter. Parties are to bear their respective costs.