Orissa High Court
Sangeeta Prusty vs State Of Odisha & Ors. : Opposite Parties on 20 March, 2023
Author: Biswanath Rath
Bench: Biswanath Rath
ORISSA HIGH COURT : C U T T A C K
W.P.(C) NO.1955 OF 2023
An application under Articles 226 & 227 of
the Constitution of India.
Sangeeta Prusty : Petitioner
-Versus-
State of Odisha & ors. : Opposite Parties
For Petitioner : M/s.A.K.Pradhan, S.K.Swain
& A.Ray, Advs.
For O.Ps.1 to 3 : Mr.S.Mishra, ASC
For O.P.4 : M/s.R.K.Swain &
A.Nayak, Advs.
JUDGMENT
CORAM :
JUSTICE BISWANATH RATH Date of Hearing & Judgment : 20.03.2023
1. The Writ Petition involves the following prayer :-
"In the aforesaid circumstances, it is humbly prayed that your lordship would be graciously pleased to admit the petition, call for the L.C.R. from the Court below, issue a Rule "NISI"
calling upon the opp. parties to show cause as to why the O.L.R. Appeal bearing No.15 of 2022 pending in the Court of Ld.A.D.M.(Rev.), Cuttack shall not be quashed in view of the affidavit and undertaking is given by the opp. party No.4 on 18.12.2020 by himself and being authorised by others. Page 1 of 9
// 2 // If the Opp.Parties fail to show cause or show insufficient cause, the said rule may kindly be made absolute..."
2. Factual background involved herein, the Petitioner purchased a piece of land from one Iswar Chandra Dalai, vide Registered Sale Deed dated 22.11.2022 and got the land mutated in her name in the year, 2003. It appears, while she was in peaceful possession in the year 2014 while attempting to construct her first floor, the father of O.P.4 initiated a proceeding under the provision of Section 144(2) of the Cr.P.C. on the premises of illegal encroachment of his land, which proceeding was dropped directing the father of O.P.4 to approach appropriate forum, namely, Common Law Forum. It is an outcome of the above direction, father of O.P.4 preferred OLR Misc. Case No.3 of 2014 alleging contravention of the provision at Sections 22 & 23 of the OLR Act, which was dismissed with observation that the Registered Sale Deed remained operative, as there was no need for permission under Section 22 of the OLR Act looking to the date of registration of the Sale Deed. Which order has been challenged in OLR Appeal No.3 of 2016 by the father of O.P.4 under Section 58 of the OLR Act. In the meantime, father of O.P.4 moved this court, vide W.P.(C) No.14773/2017 in his attempt to obtain interim order till finalisation of Appeal. Which Writ Petition got disposed of with direction for timely disposal of Appeal along with an order of status quo in respect of the disputed property to be maintained by both the Page 2 of 9 // 3 // Parties. Appeal herein above was finally heard and in disposal of the Appeal, the matter was remitted to the original Authority for fresh disposal of the OLR Misc. Case No.3 of 2014. In the second attempt, OLR Misc. Case No.3 of 2014 by reasoned order got dismissed holding the Petitioner therein did not belong to Scheduled Caste on the date of execution of Registered Sale Deed and there is clear material establishing the father of O.P.4 was brought to the fold of Scheduled Caste by Government Gazette Notification No.61 of 2002 dated 18.12.2002. Being aggrieved by the aforesaid judgment of the Original Authority, OLR Appeal No.15 of 2002 has been brought under the provision of Section 58 of the OLR Act. The initiation of such Proceeding is challenged herein, firstly on the premises that for there is clear material establishing the father of the contesting O.P.4 was not a Member in the Scheduled Caste List as per the Presidential Notification available at the relevant time and secondly, the Sale Deed involved was registered on 22.11.2022, i.e., much prior to the date when the father of O.P.4 was brought under the fold of Scheduled Caste on 18.12.2002.
3. Mr.Swain, learned counsel for the contesting O.P.4 taking this Court to the grounds raised in the Appeal as well as claim made in OLR Misc. Case No.3 of 2014 while not disputing that the Sale Deed involved was registered on 22.11.2002 and the father of O.P.4 herein was brought to the Scheduled Caste List by way of amendment, a Notification of such Page 3 of 9 // 4 // amendment being published on 18.12.2002 and that there was clear statement made in the original forum on maintaining of Land Record in favour of present Petitioner in terms of Registered Sale Deed. However, taking this Court to the retrospectiveness in the amendment making it related back to 1979, the first List came into existence, learned counsel for O.P.4 contended any action taken place in the meantime shall be declared invalid. In his attempt to satisfy the above contentions, learned counsel for O.P.4 took this Court to a plethora of decisions submitted through the list of citations, such as Narayan Behera vrs. State of Orissa & ors. : 49(1980) CLT 47, Krushna Chandra Bariki vrs. State of Orissa : 1991(II) OLR 504, Sanatan Mangal vrs. State of Orissa & ors. :
1991(II) OLR 433, Sebati Behera vrs. Subasi Nayak & ors. : AIR 2014 Ori. 190, Janha Satapathy vrs. Satyabadi Behera & ors. : 2016(II) OLR, 81, Alekha Mantri vrs. Jagabandhu Mantri & ors. : AIR 1971 Ori. 127, Jaisri Sahu vrs. Rajdewan Dubey & ors. : AIR 1962 SC 83, Tribhovandas Purshottamdas Thakkar vrs. Ratilal Motilal Patel & ors. : AIR 1968 SC 372, Sant Lal Gupta & ors. vrs. Modern Cooperative Group Housing Society Ltd. & ors. : 2010 AIR SCW 7184, Safiya Bee vrs. Mohd. Vajahath Hussain Alias Fasi : AIR 2011 SC 421, Lokanath Meher & ors. vrs. Panchanan Majhi & ors. : MANU/OR/0072/2016, RSPL Ltd. vrs. Mukesh Sharma & ors. : MANU/DE/1862/2016 and Narayani Krishnan vrs. Union of India & ors. : MANU/KE/0154/2021. Page 4 of 9
// 5 // Through all the above decisions, Mr.Swain, learned counsel for O.P.4 contended, once the amendment is brought in the inclusion of Petitioner's father in Scheduled Caste List in December, 2002, his father became a Scheduled Caste since the initial inclusion of such Caste in the Scheduled Caste List.
However, for the involvement of the serious question of law as to even though the amendment will be relegated back to the date of initial publication or preparation of the Scheduled Caste List, the action taken prior to the amendment, if remained invalid, could not be able to show a single decision invalidating the Registered Sale Deed undisputedly registered prior to the amendment came into operation even through any of the decisions cited by him through the List of citations.
4. It is here considering the rival contentions of the Parties, this Court finds, there is no dispute that the sale transaction taken effect by virtue of a Registered Sale Deed dated 22.11.2002, whereas the father of the Petitioner was brought in the Scheduled Caste List on 18.12.2002 much after the execution of the Registered Sale Deed was the subject matter in the OLR Misc. Case No.3 of 2014. From the Sale Deed at the instance of father of the Appellant and contesting O.P. herein has clear confession of father of private O.P. that he belongs to General Caste. After over a decade, father turns back and claims, he is Scheduled Caste Page 5 of 9 // 6 // and the Sale Deed becomes invalid is nothing but a fraudulent action/attempt.
5. This apart, on perusal of the order at Annexure-6, this Court finds, the Original Authority in disposal of OLR Misc. Case No.3 of 2014 finds, the Original Authority came to the following clear findings as well as recordings of the undertaking/commitment of the contesting O.P. therein.
"xxx xxx xxx Upon hearing the parties and perusal of case records, the sole issue whether the caste of the petitioner/vendor of RSD 5658, Dt.22/11/2002 "Kaibarta" was scheduled caste on the date of execution of the sale deed so as to require permission U/S 22 of OLR Act for its validity. This issue was decided by this court referring the OJC No.8879 of 1994 and constitutional bench decision of Hon'ble Apex Court reported in AIR 2001 SC 393 (State of Maharastra Vrs. Millind and others (1990) 3 SCC 130 (Meri Chandra Sakhar Rao V. The Dean Seth G.S. Medical College and others and AIR 1995 SC (Kumari Madhuri Patil and another Vrs. Addl. Commissioner Tribal Development and Others). Besides relying upon the decisions of Hon'ble High Court of Orissa in WP(C) No.6097 of 2005 (Kasturi Sahu Vrs. State). OJC Nos.5015 and 5104 of 1994 (Khirod Rout Vrs. Bhakta Charan Meher and others) it is very much clear that the caste Kaibarta was included in the order (the schedule for the state of Orissa) by Central Act No.61 of 2002 published in Gazettee of India Ext. No.73 dated 18/12/2002. Prior to that "Kaibarta" caste was not schedule for the purpose of constitution. On the other hand learned advocate for the substituted petitoners has filed a petition admitting that at the relkevant time when the alleged sale deed was registered Caste, Kaibarta was not enlisted as scheduled caste in the Presidential order and the substituted petitioners will have no objection if the said RSD No.5658 Dt.22/11/2002 will be operative one.
In the view of the above facts & circumstances, it is very much clear that the sale deed in question was not in Page 6 of 9 // 7 // contravention of Section 23 of OLR Act in as much as the caste Kaibarta was not in the Presidential order by the time the said transaction took place.
Hence the case is dismissed."
6. Reading through the above, this Court finds, the order of the Sub-Collector, Sadar, Cuttack not only based on interpretation of the issue involved herein through several apex Court decisions as well as decisions of this Court recorded therein, at the same time, the Original Authority also recorded the concession of the Advocate of the substituted Petitioners, who have filed a Petition admitting that relevant point of time, the alleged Sale Deed got registered the Caste, "Kaibarta" was not even brought in the List of Scheduled Castes. Further the substituted Petitioners in the Petition also had a clear desire that they will have no objection in the event the said Registered Sale Deed will remain operative. This Court here finds, not only the registration of the Sale Deed was obtained when the father of the Petitioners therein was not even a Scheduled Caste meaning thereby there was no attraction of the provision at Sections 22 and/or 23 of the OLR Act but there is also clear recording that all the undertakings/commitments of the Petitioner therein, the legal heirs of the original Vendor, they have no objection in the operation of the Sale Deed. On a query to the contesting O.P., he has specifically submitted undisputedly the validation of the Registered Sale Deed not been assailed otherwise involving any other proceeding. In the Page 7 of 9 // 8 // circumstance, this Court finds, even though there lies an attempt against the orders of the Competent Authority under Section 58 of the OLR Act, however, for the clear recording of the reason by the Original Authority on merit aspect and further recording of the concession by the Counsel for the Petitioners therein, the contesting O.Ps. herein they are estopped from bringing an Appeal and the Appeal in the present form, vide OLR Appeal No.15 of 2022 will be an unnecessary one.
7. Further in the aforesaid circumstance, for there is no possibility of bringing such Appeal in undertaking such exercise, keeping such Appeal on toe, there will be not only wastage of time by the Appellate Authority but there will be also abuse of process of law in entertainment of such Appeal, For there is clear recording of undertaking of the Appellant by the Original Authority on their concessions to have no objection in the operation of the Registered Sale Deed, the private O.Ps. also completely debarred in bringing such Appeal.
8. This Court here perused the citations cited at the Bar and finds, when the citations cited by the Petitioner herein as recorded in the final part of the order in OLR Misc. Case No.3 of 2014, while supporting the case of the Petitioner herein, each of the decisions filed by the contesting O.P. does not support the stand of the contesting O.P. in taking out the validity of the Registered Sale Deed and/or giving any scope in Page 8 of 9 // 9 // interfering with the order of the original Authority involved in the Appeal involved herein.
9. In the aforesaid circumstance, this Court finds, the Appeal proceeding remains unsustainable in the eye of law. While declaring the Appeal bad in law, this Court allows the Writ Petition. There is no order as to costs.
(Biswanath Rath) Judge Orissa High Court, Cuttack.
The 20th March, 2023/M.K.Rout, A.R.-cum-Sr.Secy. Page 9 of 9