Research › Search › Judgment

Orissa High Court · body

2018 DIGILAW 688 (ORI)

Narsing Satnami v. Collector, Nuapada

2018-07-26

BISWANATH RATH

body2018
JUDGMENT BISWANATH RATH, J. - Heard Shri B. Panigrahi, learned counsel appearing for the petitioner and Shri K.K. Mishra, learned Addl. Government Advocate appearing for the State. In spite of appearance of a set of Counsel on behalf of opposite party No.2, nobody is present at the time of hearing. 2. This writ petition is filed challenging the orders at Annexures-4 and 5 passed by the appellate authority as well as the revisional authority involving the proceeding under Section 23 of the Orissa Land Reforms Act. 3. Short background involving the case is that the petitioner being the owner of the land sought for permission for sale of land mentioned herein from the competent authority under Section 22 of the Orissa Land Reforms Act (for short ‘the OLR Act’) for sale of the land specified herein and vide Annexure-1 the Sub-Divisional Officer while allowing the application granted permission to the petitioner to sell the land involved therein in favour of Ashok Kumar Bose at a cost not less than Rs.17,000/- by his order dated 19.05.1982. Vide Annexure-2 a certificate of permission was also issued, but however the certificate did not disclose the name of the buyer. After three years the petitioner sold Ac.8.00 and odd and for the balance land the petitioner entered into with a mortgage deed with opposite party No.2 with a condition for return of the land after ten years. It is submitted that after the expiry of period after taking possession of the land from opposite party No.2 back, the petitioner filed application under Section 23 of the OLR Act for declaring the mortgage deed which was in the form of sale deed on the premises of invalid document for the sale not been taking place within the time stipulation. The proceeding under Section 23 of the OLR Act was allowed vide Annexure-3. The opposite party No.2 being aggrieved by the original order involving proceeding under Section 23 of the OLR Act, preferred appeal and the appeal was allowed reversing the order of the revisional authority in favour of opposite party No.2. A revision being filed by the petitioner was also dismissed vide Annexure-5 giving rise to the present writ petition. 4. The opposite party No.2 being aggrieved by the original order involving proceeding under Section 23 of the OLR Act, preferred appeal and the appeal was allowed reversing the order of the revisional authority in favour of opposite party No.2. A revision being filed by the petitioner was also dismissed vide Annexure-5 giving rise to the present writ petition. 4. Challenging the orders at Annexure-4 and 5, Shri Panigrahi, learned Counsel appearing for the petitioner submitted that admittedly, the deal between the petitioner and opposite party No.2 was that of a mortgage deed, but however for the disclosures therein it was misunderstood to be a sale deed and, therefore, there was some complication between the petitioner as well as opposite party No. 2 resulting the petitioner undertaking a proceeding under Section 23 of the OLR Act. It is in the above background of the matter and taking this Court to the grant of permission under Section 22 of the OLR Act by the competent authority in 1982 and even assuming the documents being a sale deed for being entered into after expiry of the period granted therein, Shri Panigrahi, learned Counsel appearing for the petitioner contended that such sale deed become bad. The original authority though understood the matter and, therefore, allowed the application under the Section 23 of the OLR Act, the appellate authority as well as the revisional authority failed in appreciating this legal aspect of the matter and, accordingly, arrived at the wrong and erroneous conclusion, as such, are challenged herein. In the circumstances, Shri Panigrahi, learned Counsel for the petitioner prayed this Court for interference in the orders at Annexures-4 and 5 and set-aside both. 5. Shri K.K. Mishra, learned Addl. Government Advocate appearing for the State on the other hand taking this Court to the observations in Annexure-4 as well as Annexure-5 submitted that for the discussions and observations therein appears no infirmity in the impugned orders. Consequently, Shri Mishra, learned Addl. Government Advocate makes a request to this Court for not interfering in the impugned orders. 6. Government Advocate appearing for the State on the other hand taking this Court to the observations in Annexure-4 as well as Annexure-5 submitted that for the discussions and observations therein appears no infirmity in the impugned orders. Consequently, Shri Mishra, learned Addl. Government Advocate makes a request to this Court for not interfering in the impugned orders. 6. Considering the rival contentions of the parties and looking to the entire background narrated hereinabove, this Court finds, direction for sale of the land to the petitioner and looking to the mandate of provision of the OLR Act, the sale, if any, on the basis of Annexures-1 and 2 would have taken place within three years that too involving the person named therein Admittedly, the mortgage deed/sale deed involved herein was executed in 1985, but for the conditions imposed therein and for return of possession of the land by the mortgagee in favour of the petitioner, there remain no doubt that the document was a mortgage deed and further even assuming for the sake of argument that the document becomes a sale deed, but for being sold in favour of a person other than the person assigned in the permission order, the sale deed even otherwise becomes bad. As a consequence, this Court finds, though the original authority appreciating the legal aspect of the matter, but both the appellate authority and revisional authority failed in appreciating this legal aspect of the matter and thereafter arrived at wrong and erroneous impugned orders. As a consequence, this Court interfering with the impugned orders at Annexures-4 and 5, sets aside the same. 7. The writ petition succeeds. No order as to cost. Petition succeeds.