Orissa High Court
Sri Muchiram Barik vs Revenue Officer on 4 September, 2019
Author: A.K. Rath
Bench: A.K. Rath
HIGH COURT OF ORISSA: CUTTACK
O.J.C. No.13127 of 2000
In the matter of an application under Articles 226 & 227 of the
Constitution of India.
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Sri Muchiram Barik ............... Petitioner
---versus--
Revenue Officer, Sadar, Sambalpur
and others ............... Opp. Parties
For Petitioner : Dr. Sujata Dash, Advocate
For O.P. Nos.1 to 3 : Mr. Swayambhu Mishra, A.S.C.
For O.P. No.4 : None
JUDGMENT
P R E S E N T:
THE HON'BLE DR. JUSTICE A.K. RATH
---------------------------------------------------------------------------- Date of Hearing: 22.08.2019 │ Date of Judgment:04.09.2019
---------------------------------------------------------------------------- Dr. A.K. Rath, J. This petition challenges the order dated 23.10.1999 passed by the Collector, Sambalpur, opposite party no.3, in OLR Revision Case No.6/99, Annexure-3, whereby the opposite party no.3 dismissed the revision and confirmed the order dated 20.04.1999 passed by the Addl. District Magistrate, Sambalpur, opposite party no.2, in OLR Appeal No.2/95, Annexure-2 and the order dated 13.6.1995 passed by the Revenue Officer, Sadar, Sambalpur, opposite party no.1, in OLR Case No.9/93, Annexure-1. By order dated 13.6.1995, the opposite party no.1 has evicted the petitioner from the land in question under Sec.23(1) of 2 the Orissa Land Reforms Act ("OLR Act") for unauthorised occupation of the land of the opposite party no.4.
2. Opposite party no.4 is a scheduled caste person. He filed an application under Sec.23(1) of the OLR Act before the Revenue Officer, Sadar, Sambalpur, opposite party no.1, for eviction of the petitioner stating inter alia that the petitioner is not a scheduled caste person. He approached the petitioner to sell the land. At the instance of the petitioner, the opposite party no.4 made an application under Sec.22 of the OLR Act in the year 1986. The case was dismissed on the ground of low valuation. The petitioner managed to prepare an agreement to sell in respect of the land. The opposite party no.4 put his signature in good faith on the agreement. The petitioner is in illegal occupation of the land without any permission from the competent authority and execution of the sale deed. The opposite party no.4 approached the petitioner to vacate the land. But the petitioner did not vacate the same.
3. Pursuant to issuance of notice, the petitioner, who was opposite party no.1 in the proceeding, entered appearance and filed a show cause stating that possession of the case land was delivered to him much prior to the coming into operation of the OLR Act. The opposite party no.4 had applied for permission under Sec.22 of the OLR Act. The agreement was genuine. The opposite party no.4 demanded higher price. The Revenue Officer rejected the petition. He has constructed a dwelling house over the land. He instituted T.S. No.39 of 1989 in the court of learned Munsif, Sambalpur for specific performance of contract. The suit was decreed. In T.A. No.21/4 of 1991-93, the judgment was reversed. Thereafter, he filed S.A. No.57 of 1994 before this Court.
34. The Revenue Officer, Sadar, Sambalpur came to hold that the case land stands recorded in the name of opposite party no.4 in the consolidation ROR. Opposite party no.4 is a scheduled caste person. The petitioner is a non-scheduled caste person. The petitioner has constructed a house by virtue of the agreement to sell on receipt of Rs.5500/- as advance. The opposite party no.4 applied for permission before the Revenue Officer, Sadar, Sambalpur under Sec.22 of the OLR Act. The same was rejected. The land has been transferred in contravention of the provision of the OLR Act. The possession of the petitioner over the suit land is unauthorized. The petitioner has taken delivery of possession of the land in the year 1980, i.e., much after coming into operation of the OLR Act. It negatived the plea of the petitioner that the case land has lost its characteristics and he has perfected title by way of adverse possession. It further held that even if learned civil court has passed the decree for specific performance of contract, it has jurisdiction to initiate a proceeding under Sec.22 of the OLR Act. Held so, it evicted the petitioner from the land and imposed penalty of Rs.30/- per year from the year 1985 @ Rs.200/- per acre. Unsuccessful petitioner filed OLR Appeal No.2/95 before the Additional District Magistrate, Sambalpur. The appeal having been rejected, he filed OLR Revision Case No.6/99 before the Collector, Sambalpur, which was eventually dismissed.
5. A counter affidavit has been filed by the opposite party nos.1 to 3 stating that the land in dispute is a part of chaka khata no.145 of village Lamdungri recorded in the name of opposite party no.4. The opposite party no.4 is the recorded raiyat of the land. The opposite party no.4 is a scheduled caste person. The petitioner is a non-scheduled caste person. The petitioner entered into possession of the land on the basis of an agreement to sell dated 9.4.86. No 4 permission under Sec.22 of the OLR Act was accorded for transferring the land. The opposite party no.4 had applied under Sec.22 of the OLR Act before the Revenue Officer for grant of permission to transfer the land in favour of a non-scheduled caste person vide OLR Case No.29/87. The case was dropped on 28.1.89. Therefore, occupation of the land by the petitioner is unauthorised. The petitioner is liable for eviction under Sec.23-A of the OLR Act. On the basis of the agreement to sell, there is transfer of any interest in land. Permission is required under Sec.22 of the OLR Act. Transfer of possession with condition of future passing of title on getting permission affects free enjoyment of the land. Even though mere contract for sale on future date is not void, where there is transfer of possession on the basis of such a contract, it would require permission of the Revenue Officer under Sec.22 of the OLR Act. No civil court shall direct specific performance of contract for sale without prior permission of the Revenue Officer. Under Sec.67 of the OLR Act, no civil court have jurisdiction to try and decide any suit or proceeding so far as it relates to any matter which any officer or other competent authority is empowered by or under the Act. The Revenue Officer has exclusive jurisdiction under Sec.23(4) of the OLR Act for eviction. In S.A. No.57/94, no stay order has been passed. The OLR authorities have not committed any illegality in proceeding with the case and deciding the same.
6. Heard Dr. Sujata Dash, learned Advocate for the petitioner and Mr. Swayambhu Mishra, learned A.S.C. for the opposite party nos.1 to 3. None appeared for the opposite party no.4.
7. Dr. Dash, learned Advocate for the petitioner submitted that the opposite party no.4 is a scheduled caste person. He was the owner of the land. To press the legal necessity, he executed an 5 agreement in favour of the petitioner to sell the land for consideration of Rs.7500/- on 9.4.86 and received Rs.5500/- towards part consideration. It was agreed that the balance consideration amount of Rs.2000/- shall be paid at the time of registration of the sale deed. The opposite party no.4 filed an application under Sec.22 of the OLR Act before the Revenue Officer. But he did not take any steps. The petition was rejected. Pursuant to the agreement to sell, the opposite party no.4 has delivered possession of the land to the petitioner. The petitioner has constructed a dwelling house and residing thereon with his family. The land situated within the jurisdiction of Hirakud NAC. The OLR Act has no application in respect of urban area. The Revenue Officer dehors its jurisdiction in entertaining the petition under Sec.23 of the OLR Act for eviction of the petitioner from the land. After construction of house, the land has lost its characteristics of agriculture and became homestead. The land is not capable of being used for agriculture purpose. The petition before the Revenue Officer is not maintainable. She further submitted that the petitioner instituted T.S. No.39 of 1989 in the court of learned Munsif, Sambalpur for specific performance of contract. The suit was decreed. The opposite party no.4 filed T.A. No.21/4 of 1991-93 before learned Addl. District Judge, Sambalpur. The appeal was allowed. The petitioner has filed S.A. No.57 of 1994 before this Court. The fate of the writ petition depends upon the result of S.A. No.57 of 1994.
8. Per contra, Mr. Mishra, learned A.S.C. for the opposite party nos.1 to 3 submitted that the fora below concurrently held that the petitioner is unauthorized occupation of the land of the opposite party no.4. The Revenue Officer has jurisdiction to entertain the petition during pendency of the civil suit. OLR Act 6 applies to all lands which are either used or capable of being used for agriculture purpose.
9. Before adverting to the contention raised by learned Advocates for the parties, it will be necessary to set out the provision of Sec.73 of the OLR Act.
"73. Act not to apply to certain lands - Nothing contained in this Act, shall apply -
(a) to the Government in respect of lands held by them and which is used or set apart for any public purposes; [(b) to land held by -
(i) the Government of India,
(ii) any local authority,
(iii) any University established by law in the State,
(iv) the Bhoodan Uagna Samiti established under the Odisha Bhoodan and Gramdan Act, 1970 (Odisha Act 2 of 1971),
(v) any Government, company as defined in the Companies Act, 1956 (1 of 1956),
(vi) any Corporation established under any law in force,]
(c) to any area which the Government may, from time to time by notification in the Official Gazette specify as being reserved for urban, non-agricultural or industrial development or for any other specific purposes; and [(d) to any land which was under the management of any Civil, Revenue or Criminal Court immediately prior to the 26th day of September, 1970, for so long as such management continues]"
10. On a bare perusal of clause (c) of Sec.73 of the OLR Act, it is manifest that the OLR Act shall not apply to any area which the Government may, from time to time by notification in the Official Gazette specify as being reserved for urban, non-agricultural or industrial development or for any other specific purposes. In the instant case, no such notification has been published under Sec.73
(c) of the OLR Act excluding Hirakud urban area from the purview of the OLR Act either before the fora below or this Court.
711. In Om Prakash Agarwal and others vs. Batara Behera and others, (1999) 3 SCC 231, the apex Court in no uncertain terms held that OLR Act applies to all land which is either used or capable of being used for agricultural purposes irrespective of whether it is situated within a municipal area or in villages. If there has been no notification showing the area for urbanization in official gazette, the OLR Act is applicable even the area is covered in master-plan.
12. In Dukhishyam Panda vs. Land Reform Commissioner, Orissa and others, 2005 (II) CLR 616, the disputed land is homestead and is situated in Cuttack town with a holding number by the Cuttack Municipality. This Court held that the OLR Act is applicable, unless it is so declared as an urban area by notification issued by the Government and published in the Odisha Official Gazette in consonance with Section 73 (c) of the OLR Act.
13. The decision in the cases cited supra proprio vigore apply to the facts of this case.
14. In the agreement to sell dated 9.4.1986 marked as Ext.1 in the suit, it is evident that possession of the land was delivered to the petitioner. The question does arise as to whether permission of the Revenue Officer under Sec.22 of the OLR Act is sine qua none for delivering possession.
15. In Ramnaresh Singh vs. Padmalochan Jaypuria (dead) and after him Gulapi Devi & others, 76 (1993) CLT 367, there was an agreement to sell and possession was delivered in part performance of contract. Transfer of possession was made on the basis of contract with a promise to sell after obtaining permission. This Court held that even though mere contract for sale on a future date would not be void, when there is transfer of possession on the 8 basis of such a contract, it would require permission of the Revenue Officer under Sec.22 of the OLR Act.
16. S.A. No.57/1994 is dismissed by this Court today. The upshoot of the above conclusion is that the petitioner is in unauthorized occupation of the land of opposite party no.4, who is a scheduled caste. The fora below concurrently held that the petitioner's possession is illegal. There is no perversity in the said finding.
17. In the ultimate analysis, the petition fails and is dismissed. There shall be no order as to costs.
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Dr. A.K. Rath,J.
Orissa High Court, Cuttack The 4th September,2019/Basanta