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2021 DIGILAW 49 (ORI)

Dinabandhu Ekka v. State of Odisha

2021-02-08

KRUSHNA RAM MOHAPATRA, SANJU PANDA

body2021
JUDGMENT : Krushna Ram Mohapatra, J. 1. This Intra Court appeal has been filed assailing the order dated 14.08.2019 passed by learned Single Judge in W.P.(C) No. 16365 of 2018, whereby, he dismissed the writ petition and confirmed the orders passed by the authorities under the Orissa Scheduled Areas Transfer of Immovable Property (By Scheduled Tribes) Regulations, 1956 (for short, "the Regulations"). 2. Mr. Sidharth Mishra, learned counsel for the appellants narrating backdrop of the case necessary for proper adjudication of the appeal submitted that the dispute revolves around a piece of land pertaining to Sabik Plot No. 482 measuring Ac. 0.36 decimals and Plot No. 480 measuring Ac. 1.45 decimals under Sabik Khata No. 37 of mouza-Durgapur P.S. Uditnagar in the district of Sundargarh (for short, 'the case land'). 3. The case land originally stood recorded in the name of one Gudru Oram, the ancestor of the appellants, who belong to Scheduled Tribe Community. Said Gudru Oram died leaving behind two sons, namely, Bandhu and Gosein. Gosein died issueless. Bandhu died leaving behind four sons, namely, Bisu, Tunia, Godro and Chama. Tunia died leaving behind his widow, Dulia. All of them filed an application before the S.D.O., Panposh to accord permission to sell Ac. 0.36 decimals from Plot No. 482 in favour of one Sachidananda Pattnaik and another Ac. 1.45 decimal from Plot No. 480 in favour of Sreelal Agarwal and others. The said petition was registered as Revenue Misc. Case No. 240 of 1962-63. By order dated 03.11.1963, the S.D.O., Panposh accorded permission for such alienation. Thereafter, an Ac. 1.00 decimal was alienated in favour of Sreelal Agarwal by virtue of Registered Sale Deed No. 29.7/1964. The rest Ac. 0.45 decimal was alienated in favour of Iswardas Agarwal, the father of respondent Nos. 8 to 10 and Dwarika Prasad Agarwal, the father of the respondent Nos. 11 and 12 by virtue of RSD No. 298 of 1964. 4. While the matter stood thus, the S.D.O., Panposh initiated suo motu RMC No. 80 of 1972 under the provisions of the Regulations basing upon the report of the Revenue Inspector. The said Revenue Misc. Case was initiated on the allegation that the permission granted for sale of the case land was not legal and proper. The vendors are still in possession over the case land and title never passed to the vendees by virtue of the sale deeds in question. The said Revenue Misc. Case was initiated on the allegation that the permission granted for sale of the case land was not legal and proper. The vendors are still in possession over the case land and title never passed to the vendees by virtue of the sale deeds in question. Considering the materials available on record, the S.D.O., Panposh dropped the said Revenue Misc Case, vide order dated 30.04.1976 holding that permission for sale was just and proper and pursuant to the sale, the vendees are in possession over the case land. Subsequently, one Deogi Oram claiming herself to be the adopted daughter of Gosein Oram, filed RMC No. 222 of 1987 for restoration of the case land in her favour under the provisions of the Regulations. The said Revenue Misc. Case was also dropped, vide order dated 23.01.1990 holding that the objector had not made out any case for interference. Assailing the said order dated 23.01.1990, Bisra Oram claiming to be the adopted son of Deogi Oram, filed Revenue Appeal No. 10 of 1991 before the Additional District Magistrate, Sundargarh (Respondent No. 2). During pendency of the said appeal, Bisra Oram died and his widow Sugi Oram was substituted in his place. She also died during pendency of the appeal. One Chama Oram claiming to be the brother of Bisu Oram and guardian of the daughter of Bisu Oram pursued the appeal. The said appeal was allowed on 12.09.1996. Aggrieved by the said order dated 12.09.1996, Respondent Nos. 6 and 7 sons of Iswardas Agarwal filed OJC No. 5484 of 1997. Likewise, the Respondent Nos. 8 to 10, 11 and 12 also filed OJC No. 5088 of 1997. Both the Writ Petitions were allowed vide order dated 25.10.2016 and the matter was remanded to the Appellate Court for fresh adjudication. On remand, the Appellate Authority, upon de novo hearing of the matter, dismissed the appeal vide order dated 12.06.2018 against which W.P.(C) No. 16365 of 2018 was filed by the appellants. The said Writ Petition was also dismissed vide order dated 14.08.2019 against which this appeal has been filed. 5. Mr. Mishra, learned counsel for the appellants referring to Rule 3 of the Orissa Scheduled Areas Transfer of Immovable Property (By Scheduled Tribes) Rules, 1959 (for short, 'the Rules'), submitted that the permission in Revenue Misc. The said Writ Petition was also dismissed vide order dated 14.08.2019 against which this appeal has been filed. 5. Mr. Mishra, learned counsel for the appellants referring to Rule 3 of the Orissa Scheduled Areas Transfer of Immovable Property (By Scheduled Tribes) Rules, 1959 (for short, 'the Rules'), submitted that the permission in Revenue Misc. Case No. 240 of 1962-63 was granted to alienate the case land in favour of Sreelal Agarwal and others without naming the said proposed purchasers. Thus, the permission so granted for alienation of the case land was ambiguous and as such the permission and the sale pursuant to the said permission are void ab initio. Rule 3 of the Rules reads as follows: "3. Procedure for transfer to non-Scheduled Tribes-(1) A member of a Scheduled Tribe who intends to transfer any of his immovable property situated within a Scheduled Area to a member of any non-Scheduled Tribe, shall submit an application for the purpose and obtain the prior consent in writing of the competent authority under Section 3(1) of the Regulation. (2) On receipt of such application, the competent authority may cause necessary enquires of a summary nature to be made by an officer duly authorized by him for the purpose before passing orders. The enquiring officer shall submit his report in Form-I appended in that rules." 6. Elaborating his argument, Mr. Mishra, referred to Form-I of the Rules, which provides the format to submit the enquiry report. It is his submission that Clause-4 of the said format clearly prescribes that name and caste of the person to whom the land is to be alienated, should be stated. The permission granted in RMC No. 240/1962-63 only discloses that the case land was permitted to be alienated in favour of the Sreelal Agarwal and others. The names of the present respondents or their predecessors were not reflected in the format or permission granted pursuant to the order passed in RMC No. 240 of 1962-63. Hence, it is crystal clear that alienation in favour of the contesting respondents was made without any permission as contemplated under Rules. Although the said issue was raised before the Writ Court, learned Single Judge did not consider the same, which has materially affected the impugned order. Hence, it is crystal clear that alienation in favour of the contesting respondents was made without any permission as contemplated under Rules. Although the said issue was raised before the Writ Court, learned Single Judge did not consider the same, which has materially affected the impugned order. In support of his case, he relied upon the decision in the case of Narsing Satnami v. Collector, Nuapada and others, reported in 2018 (II) OLR 500 , paragraph-6 of which reads as follows:- "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 5 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." (emphasis supplied) 6.1. It is his further contention that the writ Court has not discussed the materials placed on record by the appellants. Thus, the impugned order is not sustainable and the appeal deserves to be allowed by setting aside the order dated 14.08.2019 passed in W.P.(C) No. 16365 of 2018. 7. Mr. Ramakanta Mohanty, learned Senior Advocate being assisted by Mrs. Sumitra Mohanty, learned counsel for the respondent Nos. 6 to 13, vehemently objected to the submission of Mr. Mishra, learned counsel for the appellants. Reiterating the factual aspect, Mr. 7. Mr. Ramakanta Mohanty, learned Senior Advocate being assisted by Mrs. Sumitra Mohanty, learned counsel for the respondent Nos. 6 to 13, vehemently objected to the submission of Mr. Mishra, learned counsel for the appellants. Reiterating the factual aspect, Mr. Mohanty, learned Senior Advocate submits that the suo motu proceeding in RMC No. 80 of 1972 was disposed of on contest by order dated 30.04.1976 and the said proceeding was dropped. Said order has never been challenged and has attained finality. 8. Thus, the issue involved in the said Revenue Misc. Case cannot be raised in any subsequent proceeding including R.M.C. No. 222 of 1987, from which the present Writ Appeal arises. He further submits that while disposing of the RMC No. 80 of 1972, the S.D.O., Panposh, had categorically held that the alienation of the case land was validly made pursuant to the permission granted in RMC No. 240 of 1962-63. Accordingly, he dropped the said RMC No. 80 of 1972. Hence, such issue is no more available to be raised in any subsequent proceeding. As such, initiation of RMC No. 222 1987 is an abuse of process of Court, as rightly held by the Writ Court. He, therefore, prays for dismissal of the appeal confirming the order passed in W.P.(C) No. 16365 of 2018. 9. Heard learned counsel for the parties at length and perused the materials together with the provisions of law and the case laws relied upon by learned counsel for the parties. Rule 3 of Rules, 1959 deals with the procedure for Transfer of Immovable Property of members of Scheduled Tribe to non-Scheduled Tribe person. Sub-rule (2) of Rule 3 provides that on receipt of the application for transfer of immovable Property of a member of Scheduled Tribe, the competent authority may cause necessary enquiry to be made by an Officer duly authorized by him for the purpose of passing the order in the said application. The said enquiry should be summary in nature and the Enquiring Officer has to submit a report in the Form-I appended to the Rules. It further appears that Clause-4 of Form-I of the said Rules, provides that name and caste of persons to whom, the land is to be alienated, should be stated. The said enquiry should be summary in nature and the Enquiring Officer has to submit a report in the Form-I appended to the Rules. It further appears that Clause-4 of Form-I of the said Rules, provides that name and caste of persons to whom, the land is to be alienated, should be stated. There is no dispute to the fact that the recorded tenants (successors of Bandhu) had made an application for grant of permission to alienate the case land in favour of Sreelal Agarwal and others. The said application was registered as RMC No. 240 of 1962-63. By order dated 03.11.1963, the said application was allowed and accordingly the impugned transactions (alienation) were made. The order passed in RMC No. 240 of 1962-63 was never challenged or varied. Subsequently, pursuant to receipt of a report from the concerned R.I., RMC No. 80 of 1972 was initiated by S.D.O., Panposh, which was dropped by order dated 30.04.1976. The said order was also never challenged and attained finality. While the matter stood thus, RMC No. 222 of 1987 was filed by one Deogi Oram, claiming to be the adopted daughter of Gosein Oram, who had died issueless. The said RMC No. 222 of 1987 was dropped. Against the said order R.A. No. 10 of 1991 was filed by her. Ultimately, the Appellate Court in R.A. No. 10 of 1991, while disposing of the appeal, categorically held that the 'others' referred to in the order in RMC No. 240 of 1962-63, included the predecessors of respondent Nos. 6 to 12. There is no material on record to come to a conclusion that the persons in whose favour alienation of the case land was made, were not the persons in whose favour permission for alienation was granted in RMC No. 240 of 1962-63. On the other hand, the order passed in R.A. No. 10 of 1991, which was under challenge in W.P.(C) No. 13635 of 2018, the Appellate Court on scrutiny of materials on record including the observations made in RMC No. 80 of 1972, came to a categorical conclusion that the permission granted in favour of the predecessors of Respondent Nos. 6 to 12 was proper. That being a finding of fact based on materials on record should not be interfered with in this WA in absence of any materials to the contrary. 10. 6 to 12 was proper. That being a finding of fact based on materials on record should not be interfered with in this WA in absence of any materials to the contrary. 10. Admittedly, the order passed in RMC No. 80 of 1972 was never challenged and the same has attained finality. The said Revenue Misc Case was disposed of on merit being contested by the successor of the recorded tenants of the case land. As such, the initiation of RMC No. 222 1987 is an abuse of process of Court as has been rightly held by the Writ Court. 11. Regulations have been promulgated to control and check transfer of immovable property in the Scheduled Areas in the State of Odisha by members of Scheduled Tribes, so that they are not exploited or duped. At the same time, it is the duty of the authorities under the Regulations to see that a bona fide purchaser of immovable property from a member of the Scheduled Tribes is not unnecessarily harassed, or dragged to litigation, by mis-utilizing the provisions of the Regulations. Taking into consideration the facts and circumstances of the case in its entirety it does not appear that the appellants or their predecessors are in any way exploited and duped by the alienation in question. Further, the case law cited by Mr. Mishra, learned counsel for the appellants have no application to the case at hand. 12. In that view of the matter, we find no infirmity in the order passed by the Writ Court. Accordingly, this Writ Appeal is dismissed being devoid of any merit, but in the circumstances, there shall be no order as to costs.