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2019 DIGILAW 381 (ORI)

Manglu Naik @ Harijan v. Thabiram Budhia

2019-05-01

A.K.MISHRA, S.K.MISHRA

body2019
JUDGMENT S.K. Mishra, J. - Heard Mr. A.K.Nanda, learned counsel for the appellant, Mr. S.D.Das, learned Senior Counsel for respondent No.1 and learned Additional Government Advocate for the State. 2. This wit appeal is preferred against the order dated 26.4.2017 passed in OJC No. 13554 of 2000, whereby learned Single Judge has laciniated the Annexures- 5, 6 and 7, the orders of Revenue officer, Appellate Authority and Re-visional Authority respectively directing restoration of possession of the property to the legal heirs of the transferor under Section 23(3) of the Odisha Land Reforms Act, 1960 (to be referred hereinafter as "OLR Act") 3. Butung Harijan, the grandfather of the present appellant, was a member of Scheduled Caste. He sold land to the extent of Ac.15.54 decimals under Khata No.16 to Nilambar Budhia, the father of the petitioner in OJC by means of a registered Sale Deed No. 2195 dated 13.6.1967. The transferee was a General Caste member. Butung Harijan is stated to have obtained permission under Section 22 of the OLR Act, vide letter No. 654 dated 29.5.1967 from the Sub-Divisional officer (Sadar), Kalahandi. Subsequently the vendor detected some mistakes in the said permission. He applied for correction. On 6.3.1972 vide RMC No. 20 of 1972, permission was accorded under Section 22 of the OLR Act for the land measuring Ac.15.54 decimals appertaining to Plot Nos. 138, 99, 212/100, 215/99, 216/101, 216/236 and 214/99 under Khata No. 16 in village Badibahal. The purchaser subsequently got the land mutated in his favour by the order of the Tahasildar, Lanjigarh and corrected ROR was issued. 3(a). The son of original vendor Arakhit Harijan filed a petition for restoration of the sold land on the ground that no valid permission was accorded for the Sale Deed dated 13.6.1967. The Sub-Collector, Bhawanipatna made an enquiry and found that there was no valid prior permission for transfer of the said land and declared the Sale Deed void. Consequentially order was passed for restoration of the said land in favour of the son of the vendor under Section 23 of the OLR Act, vide his order dated 12.2.1993 in RMC No. 27/1991. That order is annexure-5 in the OJC petition. 3(b). As against that order appeal was preferred by the purchaser-Thabiram Budia. The said appeal was dismissed by the Additional District Magistrate, Kalahandi vide order dated 4.3.1996 in OLR Appeal No. 9/1993. That order is annexure-5 in the OJC petition. 3(b). As against that order appeal was preferred by the purchaser-Thabiram Budia. The said appeal was dismissed by the Additional District Magistrate, Kalahandi vide order dated 4.3.1996 in OLR Appeal No. 9/1993. The said appellate order is Annexure-6 in the OJC petition. 3(c). Revision was preferred before the Collector, Kalahandi under Section 59 of the OLR Act against the appellate order. The said OLR Revision No. 11/1996 was dismissed on 16.10.2000. The revision order is annexure-7 in the OJC petition. 3(d). The orders of the Revenue officer, Appellate Authority and Re-visional Authority vide Anneuxres-5, 6 and 7 were challenged before the learned Single Judge. 4. Before the learned Single Judge, it was contended that the subsequent permission was nothing but the correction of the original permission obtained prior to the Sale Deed which was accepted and acted upon allowing mutation and correction of ROR and for that it could not be said that there was no valid permission under Section 22 of the OLR Act for the Sale Deed dated 29.5.1967. It was also contended that the petitioner-purchaser had acquired right by way of adverse possession for holding the disputed property for more than 12 years. The State did not support the stand of purchaser that correction was made in the original permission given for the Sale Deed dated 29.5.1967. 4(a). The learned Single Judge observed that the permission granted in the year 1972 was simply a correction of permission already granted in year 1967 and for that the registration of Sale Deed dated 29.5.1967 was backed by valid permission as required under Section 22 of the OLR Act and accordingly, the Court set aside the orders of the Sub-Collector, Appellate Authority and Re-visional Authority vide Anneuxres-5, 6 and 7 respectively. 5. As stated above, the said order of the learned Single Judge is impugned in this writ appeal. 6. Mr. A.K.Nanda, learned counsel for the appellant assiduously submitted that the permission stated to have been obtained for the land was not sold under Sale Deed No.2195 dated 13.6.1967 and the permission obtained after five years on 6.3.1972 was altogether for different land. The later permission cannot be given retrospective effect to validate the Sale Deed, which was registered on the basis of a permission in which the schedule Sale Deed land was not mentioned. The later permission cannot be given retrospective effect to validate the Sale Deed, which was registered on the basis of a permission in which the schedule Sale Deed land was not mentioned. Because of that, the restoration of land under Section 23(3) of the OLR Act was legal. For that the order of learned Single Judge in setting aside the restoration order is contrary to the law and should be reversed in this writ appeal. 6(a). On the second plank, it is submitted that in view of the amendment brought vide Odisha Act No.44 of 1976 to the Section 23B of the OLR Act, the limitation for acquisition of title by adverse possession was 30 years and the purchaser herein could not be said to have completed the said period as the sale was of the year 1967 and restoration of possession order was passed by the Revenue officer on 12.2.1993 vide Annexure-5. Learned Advocate for appellant, accordingly, prayed to set aside the impugned order dated 26.4.2017 passed by the learned Single Judge. 7. Mr. S.D.Das, learned senior counsel for respondent No.1 was fair enough not to dispute the contention with regard to adverse possession. 7(a). Per contra, Mr. Das, learned senior counsel submitted that the appeal is not maintainable as the impugned order was passed under Article 227 of the Constitution of India. On this score, Mr. Das, has relied upon the decisions reported in ( 2016)2 OLR-3, Saswati Patra vs. Saraswati Biswal and others, (2017) 1 ILR-CUT-24, Ananda Mahapatra vs. Bijay Mahapatra and others and (2018) 15 SCC 356 , Life Insurance Corporation of India vs. Nandini J.Shah and others. 7(b). Secondly, it is submitted by Mr. Das that correction of permission granted under Section 22 of the OLR Act is permissible and when the State has accepted the same by allowing mutation and correction of ROR, the State is estopped to raise the validity of the permission granted prior to the Sale Deed in the year 1967. Once the permission of the year 1972 was accorded as corrected permission of the year 1967, it could not regarded be said that the Sale Deed was executed without valid permission. The learned Single Judge, as submitted by Mr. Das, having considered all these aspects, the impugned order needs no interference. 8. In view of rival contentions, the following twin points arise for answer. (i) Whether writ appeal is maintainable? The learned Single Judge, as submitted by Mr. Das, having considered all these aspects, the impugned order needs no interference. 8. In view of rival contentions, the following twin points arise for answer. (i) Whether writ appeal is maintainable? (ii) Whether the subsequent permission of the year 1972 can cure the defect of the permission of the year 1967 granted under Section 22 of the OLR Act? 9. In the OJC before the learned Single Judge, Annexure-5 was the order dated 12.2.1993 in RMC No.27/1991, under Section 23 of the OLR Act, where under Sub Collector, Bhawanipatna had ordered for restoration of the land sold under RSD No.2195 dated 29.5.1967. The said order has sanction of law under the provisions of Section 23 of the OLR Act. That order is appealable under Section 58 of the OLR Act, which was exercised by the Additional District Magistrate in OLR Appeal Case No. 9/1993 vide Annexure-6 to the OJC. Against the appeal order, revision is prescribed under Section 59 of the OLR Act. Annexure-7 is the Re-visional order dated 16.10.2000 in OLR Revision No. 11 of 1996. 9(a). The Appellate Authority and Re-visional Authority are prescribed under Rules 42 and 42(B) of the Odisha Land Reforms (General) Rules, 1965 (to be referred hereinafter as OLR Rules"). Rules 42 and 42-B are extracted hereunder for reference:- "42. An appeal under Sub-section (1) of Section 58 An appeal under Section 58 shall lie to- (1) The Sub-divisional officer or an officer specially appointed by the Government in this behalf who is suitable for appointment as Sub-divisional officer if the order appealed against was passed by a Revenue officer below the rank of a Sub divisional officer and is against any order other than an order passed under Sections 22, 23 and 23A of the Act and any appeal against any such order pending on the date of commencement of the Odisha Land Reforms (General) (Amendment) Rules, 1980 shall be transferred to the Sub-divisional officer for hearing and disposal. (2) The Additional District Magistrate of the District or an officer specially appointed by Government in this behalf who is suitable for appointment as Additional District Magistrate if the order appealed against was passed by a Revenue officer not below the rank of Sub-divisional officer or against an order passed under Sections 22, 23 and 23 A: (Provided that any such appeal pending on the date of commencement of the Odisha Land Reforms (General) (Amendment) Rules, 1980 shall be heard and disposed of as if the said rules had not come into force.)" "42-B. Revision under Section 59 (1) An application for Revision under Subsection (1) of Section 59 shall lie to - (i) The Additional District Magistrate or an officer specially appointed by Government who is suitable for appointment as Additional District Magistrate if the order against which revision is filed who passed by an appellate authority under the Act below the rank of an Additional District Magistrate; (ii) The Collector of the district or an officer specially appointed by Government who is suitable for appointment as Collector of a district if the order was passed by an appellate authority under the Act of the rank of an Additional District Magistrate. (Provided that any applicant for revision under Sub-section (1) of Section 59 pending on the date of commencement of the Odisha Land Reforms (General) (Amendment) Rules, 1980 shall be heard and disposed of by the Additional District Magistrate of the district or an officer specially appointed by Government in this behalf who is suitable for appointment as Additional District Magistrate, if the appellate order against which revision is filed was passed by the Sub-divisional officer and by the Collector, if the appellate order was passed by the Additional District Magistrate.) (Provided further that any application for revision under Sub-section (1) of Section 59 pending with the Collector on the date of commencement of the Odisha Land Reforms (General)(Amendment) Rules, 1982 shall be heard and disposed of by the officer appointed by Government under Clause(ii))" 10. With reference to the above statutory provisions, the cited decisions are required to be read:- In Ananda Mahapatra case (supra), the decision of Saswati Patra (supra) has been considered. With reference to the above statutory provisions, the cited decisions are required to be read:- In Ananda Mahapatra case (supra), the decision of Saswati Patra (supra) has been considered. Relying upon the decisions of Hon'ble Supreme Court in Jogendrasinhji Vijaysiinghji vs. State of Gujarat, reported in (2015) 9 SCC 1 and Radhey Shyam vs. Chhabi Nath, reported in (2015) 5 SCC 423 , it is stated that:- "15........It will depend upon the Bench adjudicating the lis how it understands and appreciates the order passed by the learned Single Judge and as such, there cannot be a straitjacket formula for the same. But the High Court while exercising jurisdiction under Article 227 of the Constitution has to be guided by the parameters laid down by the Supreme Court. The apex Court in Jogendrasinhji Vijaysinghji (supra) summarized the guidelines in paragraph-45, which reads as follows: "45. In view of the aforesaid analysis, we proceed to summarize our conclusion as follows:- 45.1 Whether a letters patent appeal would lie against the order passed by the learned Single Judge that has travelled to him from the other tribunals or authorities, would depend upon many a facet. The court fee payable on a petition to make it under Article 226 or Article 227 of both, would depend upon the rules framed by the High Court. 45.2 The order passed by the civil court is only amenable to be scrutinized by the High Court in exercise of jurisdiction under Article 227 of the Constitution of India which is different from Article 226 of the Constitution and as per the pronouncement in Radhey Shyam vs. Chhabi Nath, (2015) 5 SCC 423 , no writ can be issued against the order passed by the civil court and, therefore, no letters patent appeal would be maintainable. 45.3 The writ petition can be held to be not maintainable if a tribunal or authority that is required to defend the impugned order has not been arrayed as a party, as it is a necessary party. 45.4 The tribunal being or not being party in a writ petition is not determinative of the maintainability of a letters patent appeal." 11. The petition in OJC was filed under Articles 226 & 227 of the Constitution of India. 45.4 The tribunal being or not being party in a writ petition is not determinative of the maintainability of a letters patent appeal." 11. The petition in OJC was filed under Articles 226 & 227 of the Constitution of India. The learned Single Judge has set aside the orders of Revenue Authority, Appellate Authority and Re-visional Authority which are prescribed under Section 58 of the OLR Act read with Rule 42 of the OLR Rules for appeal and Section 59 of the OLR Act read with Rule 42-B of the OLR Rules. As the order under section 23 of the OLR Act was passed by the Sub-divisional officer, the appellate authority was Additional District Magistrate of the district and as against appellate authority order, the Collector of the District is the Revisional Authority. The plain reading of Rule 42 and Rule 42-B of the OLR Rules demonstrates that Additional District Magistrate and Collector are the authorities as person designata. In that capacity, they have exercised their respective jurisdiction as Appellate Authority and Re-visional Authority. They are neither the Presiding officer of any court nor in that capacity are they appointed as Appellate Authority or Re-visional Authority. So they are persons designata under Rules 42 and 42-B of the OLR Rules, 1965. 11(a). In the Life Insurance Corporation of India case (supra) the power of appeal was conferred upon the District Judge of the district and the Hon'ble apex Court held that the District Judge was a member in his capacity as a pre-existing judicial authority in the district and was designated as such possessing essential qualification being a judicial officer. 11(b). But in the case at hand, as Rules 42 and 42-B of the OLR Rules, 1965 indicate that no such Appellate authority or Re-visional Authority has been created. So the orders of Revenue officer, Appellate Authority and Re-visional Authority under Section 23 of the OLR Act can be challenged under Article 226 of the Constitution of India and against that order, writ appeal lies. Ergo, this writ appeal is held maintainable. 12. The Sale Deed was executed on 13.6.1967. The copy of the said Sale Deed is not annexed to the writ petition. The copy of permission obtained on 29.5.1967 reveals that it was granted to sell Ac.18.92 decimals land appertaining to the plot No.70. The subsequent permission was granted on 6.3.1972 in RMC No.20/1972. 12. The Sale Deed was executed on 13.6.1967. The copy of the said Sale Deed is not annexed to the writ petition. The copy of permission obtained on 29.5.1967 reveals that it was granted to sell Ac.18.92 decimals land appertaining to the plot No.70. The subsequent permission was granted on 6.3.1972 in RMC No.20/1972. It was for different plots with Khata number. The area was Ac.15.54 decimal. The earlier plot No.70 is not found in the subsequent permission dated 6.3.1972. There is no mention that the subsequent permission dated 6.3.1972 was granted in correction of the earlier permission dated 29.5.1967. If the subsequent permission dated 6.3.1972 is to be accepted as a correction of the mistake of earlier permission dated 29.5.1967, the effect is to insert total new plots with Khata number and area in deletion of earlier plot numbers and area in the permission letter dated 29.5.1967. Such a consequence was not anticipated by the time the Sale Deed was registered on 13.6.1967. The object of Section 22 of OLR Act would be frustrated if such an effect is inferred from the subsequent permission. The relevant Sale Deed for contravention of the Section 22 of the OLR Act was void abinitio. Rectification of such invalidity, if allowed in any way, would nullify the provision of restoration of possession under Section 23 of the OLR Act. 13. In our considered view, the Sale Deed dated 13.6.1967 was executed without permission as required under Section 22 of the OLR Act and such sale was void abinitio. Once the sale is held invalid, the Revenue officer was within his jurisdiction to restore possession under Section 23 of the OLR Act. The Appellate Authority and Re-visional Authority had exercised their jurisdiction statutorily. No fault can be found with that. 14. In view of the above, the order of the learned Single Judge in setting aside Annexures-5, 6 and 7 is not sustainable and same is liable to be reversed. 15. In the result, the impugned order dated 26.4.1917 passed in OJC No. 13554 of 2000 is reversed. 16. The writ appeal is allowed.