Orissa High Court
Dinabandhu Ekka @ Oram And Others vs State Of Odisha And Others on 8 February, 2021
Equivalent citations: AIR 2021 ORISSA 78, AIRONLINE 2021 ORI 40
HIGH COURT OF ORISSA: CUTTACK
W.A. NO. 406 OF 2019
In the matter of an Appeal under Clause -10 of the Letters Patent read with
Article-4 of the Orissa High Court Orders, 1948.
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Dinabandhu Ekka @ Oram and others ...... Appellants
-Versus-
State of Odisha and others ...... Respondents.
For Appellants : M/s. Sidharth Mishra(1),
S.K. Sahoo, A. Hussen &
S.S. Chaini
For Respondents : Mr.R.K.Mohanty, Sernior Advocate,
M/s. Sumitra Mohanty,
S.N. Biswal, K. Mohapatra &
T.R. Mohanty
(For Respondent Nos. 6 to 13)
Additional Government Advocate
(For Respondents Nos.1 to 5)
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Heard and Order delivered by Virtual Mode on 08.02.2021
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P R E S E N T:
THE HONOURABLE KUMARI JUSTICE S. PANDA
AND
THE HONOURABLE SHRI JUSTICE K.R. MOHAPATRA
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K.R. Mohapatra, J. 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,
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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
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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. 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
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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
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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
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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. 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
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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. 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.
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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. 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
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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
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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. 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
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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.
.......................... ...................
K.R. Mohapatra, J. S.Panda,J.
Orissa High Court, Cuttack Dated the 8th February, 2021/ss