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2021 DIGILAW 70 (ORI)

Ashok Kuamar Nayak v. State Of Odisha

2021-02-18

K.R.MOHAPATRA

body2021
JUDGMENT K.R. Mohapatra, J. - The Petitioners, in this writ petition, pray for setting aside the order dated 30th September, 2019 (Annexure-4) passed by the Tahasildar, Barbil-Opposite Party No. 3 in Land Holding Certificate Case No. 6 of 2019 and also to direct the Tahasildar, Barbil to issue Land Holding Certificate in their favour for sale of immovable property recorded in the name of their predecessor, namely, Jogeswar Nayak. 2. It reveals from the averments made in the writ petition that the petitioners are members of Scheduled Tribe community and successors of one Jogeswar Nayak, who was the owner in possession of Plot No.1000/2646 to an extent of Ac. 0.030 decimals and Plot No.1000/2257 to an extent of Ac.0.050 decimals under Khata No. 458/655 Kissam Taila- II of Village- Barbil, Word No. 7, under Tahasil-Barbil in the district of Keonjhar (for short 'the case land'). The case land is the self-acquired property of said Jogeswar Nayak. In order to meet the expenses of treatment of petitioner No.6, the widow of Jogeswar and mother of petitioner Nos.1 to 5, the petitioners applied for a Land Holding Certificate under the provisions of Orissa Scheduled Area Transfer of Immovable Properties (by Scheduled Tribes) Regulations, 1956 (as amended by Regulation 1 of 2000) (for short 'Regulations'). The same was refused vide order dated 30th September, 2019 (Annexure-4) on the ground that the total extent of land owned by the petitioners is less than 5 acres, which does not satisfy the requirement under Clause (iii) of the Proviso to Section 3(1) of the Regulations for grant of Land Holding Certificate. Being aggrieved by the said order under Annexure-4, the petitioners have filed this writ application. 3. Mr. Mohanty, learned counsel for the petitioners submits that the predecessor of the petitioners, namely, Jogeswar was working as Field Officer in MMTC Ltd. The case land is the self-acquired property of said Jogeswar, which is situated in Barbil town. It is not an agricultural land. Thus, the provision under Clause (iii) of Proviso to Section 3(1) of the Regulations is not applicable to the case land. Section 3(1) of the Regulations provides that alienation of land to a non-scheduled tribe person shall be null and void. Further, Section-4 of the said Regulations makes a deed of transfer inadmissible for registration, if the same is made in contravention of the provisions of Regulations. Section 3(1) of the Regulations provides that alienation of land to a non-scheduled tribe person shall be null and void. Further, Section-4 of the said Regulations makes a deed of transfer inadmissible for registration, if the same is made in contravention of the provisions of Regulations. The petitioners intended to alienate the case land to meet with the expenses of treatment of petitioner No.6. Hence, they made an application for issuance of Land Holding Certificate. It is his submission that the Regulations are made to control and check the alienation of immovable properties in the scheduled areas, in order to prevent fraud and to protect the members of the scheduled tribe community from exploitation. The provisions of the Regulations cannot be intended to harass and prejudice the members of the scheduled tribe community. In the case at hand, the impugned order under Annexure-4 has immensely prejudiced the petitioners, as the ground on which the Land Holding Certificate has been refused runs contrary to the object of the Regulations. Although the provisions of the Regulations are not applicable to the instant case, but due to the restrictions, as stated above in the said Regulations, the petitioners were constrained to apply for the Land Holding Certificate for alienation of the case land. He, therefore, prays for the aforesaid relief. 4. Mr. Mishra, learned Government Advocate, on the other hand, submits that irrespective of the fact that the immovable property owned by the members of the scheduled tribe community in a scheduled area is not used for agriculture and is situated in an urban area; the provisions of the Regulations are applicable to alienation of such immovable property. As such, the contentions raised by Mr. Mohanty, learned counsel for the petitioners have no force and are not sustainable in law. 5. Heard learned counsel for the parties and perused the materials placed including the provisions of the Regulations. As such, the contentions raised by Mr. Mohanty, learned counsel for the petitioners have no force and are not sustainable in law. 5. Heard learned counsel for the parties and perused the materials placed including the provisions of the Regulations. Section 3(1) of the Regulations 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 by a member of a Scheduled Tribe, except by way of mortgage executed in favour of any public financial institution for securing a loan granted by such institution for any Agricultural purpose, shall be absolutely null and void and of no force or effect whatsoever, unless such transfer is made in favour of another member of a Scheduled Tribe: Provided that:- (i) nothing in this sub-section shall be construed as to permit any member of a Scheduled Tribe or his successor-in-interest to transfer any immovable property which was settled with such member of Scheduled Tribe by or under any authority of the State or the Central Government or under nay law for the time bring in force; (ii) in execution of any decree for realisation of the mortgage money, no property mortgaged as aforesaid shall be sold in favour of any person not being a member of a Scheduled Tribe; and (iii) a member of a Scheduled Tribe shall not transfer any land if the total extent of his land remaining after the transfer will be reduced to less than two acres in case of irrigated land or five acres in case of un-irrigated land. (iv) Explanation-I:- For the purposes of this sub-section, a transfer of immovable property:- (v) (a) in favour of a female member of a Scheduled Tribe, who is married to a person not belonging to any Scheduled Tribe, shall be deemed to be a transfer made in favour of a person not belonging to a Scheduled Tribe; and (vi) (b) shall include a transfer of immovable property to a person belonging to a Scheduled Tribe for consideration paid or provided by another person not belonging to any such Tribe. 5 of 1970 1 of 1963 1 of 1956 Transfer of immovable property by a member of the Scheduled Tribe 3 (vii) Explanation II:- For the purposes of clause (iii) of the proviso, the expression "irrigated land" shall mean such land which is irrigated at least for one crop in a year and the expression "un-irrigated land" shall be construed accordingly." 5.1 A bare reading of Section-3 of the Regulations make it abundantly clear that the said provision is applicable to all types of immovable properties of a member of scheduled tribe community situated in a scheduled area. There is no dispute to the fact that district of Keonjhar has been notified as a scheduled area. Although Barbil is an industrial township and is an urban area, but, the provisions of the Regulations does not make any distinction between an urban and rural area. Likewise, the provisions of the Regulations do not also make any distinction between an agricultural and non-agricultural land. The only difference that is apparent in the provisions of the Regulations is between 'irrigated' and 'non-irrigated' land, which has been clarified in Explanation-II to Section 3 of the Regulations. On a harmonious reading of Section-3 does not leave any iota of doubt that nonirrigated land takes within its ambit all kinds of immovable property to which no irrigation facility is available. Thus, it also includes a homestead immovable property. 5.2 Further, the kissam of the case land is Taila-II, which is undoubtedly an agricultural land. Thus, the restrictions made in Clause (iii) of proviso to Section 3(1) of the Regulations are squarely applicable to the case at hand. As such, the petitioners require a Land Holding Certificate for alienation of the case land, but they are not entitled to the same in view of the discussions made above. The Tahasildar, Barbil, therefore, has rightly exercised his jurisdiction in refusing to grant Land Holding Certificate to the petitioners, as total extent of immovable property held by the petitioners is less than 5 acres. 6. In view of the discussions made above, I find no infirmity in the impugned order under Annexure-4. Accordingly, the writ application being devoid of merit stands dismissed. No costs.