Hemanta Naik vs State Of Odisha on 23 August, 2024

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Orissa High Court

Hemanta Naik vs State Of Odisha on 23 August, 2024

1. The common issues involved in all the writ petitions are that, whether the provisions contained in Section 22 of the Odisha Land Reforms Act, 1960 are exempted for homestead lands situated in urban areas? And secondly, whether the notification issued by the Planning Authority dated 14th July, 1972 and other subsequent notifications issued by the Municipal Corporation to include the properties in the Municipal area would itself be sufficient to exclude the properties from the purview of the provisions of the OLR Act in terms of Section 73(c). W.P.(C) No.27920 of 2023 and Batch Page 22 of 37

2. Admittedly, the properties involved in each writ petition have been recorded as homestead land and coming within Sambalpur Municipal Corporation area.

3. The Petitioners have presented their respective deed of transfer before the registering authority which was rejected for want of written permission in terms of Section 22(1) of the OLR Act. The appeals preferred against such impugned orders of the registering authority have also been dismissed.

4. The facts in the leading case, i.e. WP(C) No.27920 of 2023 are to the effect that, the Petitioner, who is a member of Scheduled Tribe community, executed the deed of sale in favour of a person belonging to Non-ST category and presented the same before the Registering Authority, Sambalpur, who refused to register the same for want of written permission by order dated 30th May, 2023. Against said order of the Registering Authority the Petitioner preferred appeal. The Appellate Authority rejected the appeal vide impugned order dated 16 th August, 2023 under Annexure-5.

5. Section 22 of the OLR Act reads as follows:-

"22. Restriction on alienation of land by Scheduled Tribes -

W.P.(C) No.27920 of 2023 and Batch Page 23 of 37

(1). Any transfer of holding or part thereof by a raiyat, belonging to a Scheduled Tribes shall be void except where it is in favour of -

(a) a person belong to a Scheduled Tribe; or

(b) a person not belong to a Scheduled Tribe when such transfer is made with the previous permission in writing of the Revenue Officer:

Provided that in case of a transfer by sale, the Revenue Officer shall not grant such permission unless he is satisfied that a purchaser belonging to a Scheduled Tribe willing to pay the market price for the land is not available, and in case of a gift unless he is satisfied about the bona fides thereof.

(2) The State Government may, having regard to the law and custom applicable to any area prior to the date of commencement of this Act by notification, direct that the restrictions provided in Sub-section (1) shall not apply to lands situated in such area or belonging to any particular tribe throughout the State or in any part of it.

(3) Except with the written permission of the Revenue Officer, no such holding shall be sold in execution of a decree to any person not belong to a Scheduled Tribe.

(4) Notwithstanding anything contained in any other law for the time being in force, where any document required to be registered under the provisions of Clause (a) to Clause (e) of Sub-section (1) of Section 17 of the Registration Act, 1908, (16 of 1908) purports to effect transfer for a holding or part thereof by a raiyat belonging to a Scheduled Tribe, in favour of a person not belonging to a Scheduled Tribe, no Registering Officer appointed under that Act shall register any such documents, unless such documents is accompanied by the written permission of the Revenue Officer for such transfer.

(5) The provisions contained in Sub-section (1) to (4) shall apply mutatis mutandis, to the transfer of a holding or part thereof a raiyat belong to the Scheduled Caste.

(6) xxxxxxxx."

6. Further, Section 73 prescribes as follows;

"73. Act not to apply to certain lands - Nothing contained in this Act, shall apply-

(a) xxxxxxxxx

(b) xxxxxxxxxx W.P.(C) No.27920 of 2023 and Batch Page 24 of 37

(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) xxxxxxxxxx."

7. It is submitted on behalf of the Petitioners that, the provisions in the OLR Act are intended to deal with agricultural land and homestead connected therewith. Said provisions are not intended to deal with urban homestead lands unconnected to agricultural purposes. All the lands in question which fall under the urban area are thus exempted from the restrictions imposed for transfer. A further challenge is raised by the Petitioners questioning the power of registering authority to refuse the registration by adjudicating like a Revenue Authority.

8. Countering such submissions of the Petitioners, it is contended by the State counsel that homestead lands situated in urban area are not completely excluded from agricultural purpose and it is a question of fact whether they are ancillary or incidental to agriculture. By way of issuance of notification relating to Master Plan by the Housing and Urban Development Department and extension of municipal area of Sambalpur town would not per se satisfy the exemption from application of the provisions of the OLR Act. According to learned State counsel, in absence of any specific notification under the OLR W.P.(C) No.27920 of 2023 and Batch Page 25 of 37 Act to exempt application of the provisions thereof, mere inclusion of the lands in urban area does not deny application of the provisions of the OLR Act requiring permission from competent authority for transfer of land.

9. On the backdrop of such rival submissions, it is necessary to have a glance to the definitions of 'Land' and 'Homestead'. Section 2(14) of the OLR Act defines that 'land' means land of different class used or capable of being used for agriculture purpose and includes homestead. Section 2(12) speaks that 'homestead' means any land whether or not recorded as such, ordinarily used as a house site ancillary or incidental to agriculture.

10. The definition of 'land' under the OLR Act was interpreted in the case of Mahurilal Agarwalla v. Dusasan Sahu and Others, (Vol.XLIII) CLT 681 (DB). Said decision in Mahurilal case was relating to Orissa House Rent Control Act and involved the issue of interpretation of the provisions of the OLR Act relating to definition of 'land' and 'homestead'. The Division Bench of this court have held that, when the State Legislature aware of the existence of the Land Reforms Act and its ambit thought of an urban ceiling law, it is patently clear that the Land Reforms Act did not intend to deal with W.P.(C) No.27920 of 2023 and Batch Page 26 of 37 urban homestead (unless it was used or capable of being used for agricultural purposes). The relevant observations read as follows:-

"As we have already indicated, the disputed property is a house within the Talcher Municipal area and Mr. Patnaik for opposite parties 1 to 5 has stated that the property has been assigned holding no.135. In the absence of records of the House Rent Control proceeding, where this fact is stated to have been indicated, we are not in a position to verify the correctness of Mr. Patnaik's statement. There is. However, no scope for doubt that the disputed property is a house situated within the town of Talcher and would not come within the definition of 'land' unless it is established that the same is "homestead ordinarily used as a house site, ancillary or incidental to agriculture". According to the petitioner, the house had been tenanted out to him for several years by late Hrudaya Chandra and he has been in occupation of the property ever since then. That being so, there is no room for the contention that the disputed house is a homestead within the meaning of section 2(12) of the Act. It would follow that the house is not 'land' within the definition of section 2(14) and the Revenue Officer had no jurisdiction to deal with the property in the ceiling fixation proceeding and treat the same as surplus for the purposes of ceiling in the hands of Soubhagya. The determination by the Revenue Officer is thus without jurisdiction and consequently it is a nullity. That decision cannot affect rights of parties. The restriction imposed on transfer by the Act does not operate in respect of such property and, therefore, the Revenue Officer has no competency to render a decision which would adversely affect ownership of the property.

We find support for this conclusion from the fact that the Orissa State Legislature was a party to the resolution in terms of Article W.P.(C) No.27920 of 2023 and Batch Page 27 of 37 252(1) of the Constitution consenting to Parliament enacting a law on urban ceiling. In term of such resolutions by eleven State Legislatures, the Urban Land (Ceiling and Regulation) Act, 33 of 1976, was enacted providing for ceiling limits in respect of vacant homestead lands in urban holdings. It is true that the Central Act does not extend to Talcher town at present, but that is of no consequence in the matter of finding out the legislative intention. The Orissa State Legislature was competent to enact a law on the same line as Central Act 33 of 1976 and when it was thought appropriate that a law of uniform application throughout the country would be more convenient, Parliament was authorized to make the law. When the State Legislature, aware of the existence of the Land Reforms Act and its ambit thought of an urban ceiling law, it is patently clear that the Land Reforms Act did not intend to deal with urban homestead (unless it was used or capable of being used for agricultural purposes)."

11. In the case of Srimati Madanbati Lath v. S.D.O., Sadar, Sambalpur and Others, 1991 (1) OLR 46, which is relating to the applicability of the provisions of the OLR Act in respect of urban land, the Division Bench of this court have held as follows:-

"Therefore, the holding i.e. the land contemplated by Section 22, shall either be land used or capable of being used for agricultural purposes or homestead or ordinarily used as house-site, ancillary or incidental to agriculture. Unless the disputed land comes within the definition of 'homestead' or 'land' as defined in Clauses (12) and (14), Section 22 would not be attracted. There is no finding in any of the orders that the disputed property was either being used or capable of being used for agricultural purposes or was land W.P.(C) No.27920 of 2023 and Batch Page 28 of 37 ordinarily used as a house-site, ancillary or incidental to agriculture. This was a jurisdictional fact conferring authority on the Revenue Officer to apply Section 23 in the absence of any finding. No doubt it is true that opp. party No. 4 had made an application Under Section 22 seeking permission but that does not bind the transferee. The application may have been misconceived, may not have been made under proper instructions and guidance.

Therefore, it obligated the Revenue Officer under the Act to initially record that finding as a foundation on which the edifice of Section 23 could be built and directions issued. Unless the disputed property satisfied the definition of 'land' the Revenue Officer does not get jurisdiction to proceed further. Therefore, rightly it was observed in Bhanuganga's case (supra) that where lands are located in the urban area it is for the Revenue Officer to establish the link and, therefore, this Court (in its judgment to which one of us (R. C. Patnaik, J.) is a party) observed that mere situation of a land within the municipal area or that the land has potentiality of being used as homestead or for commercial purposes not relevant considerations for determination of the question. Vainly did we seek for the appropriate finding in the judgments of the Courts below. Since the law was not clear, perhaps appropriate evidence has not been led. We, therefore, remit the matter to the Sub-Divisional Officer, Sambalpur, for disposal of the proceeding afresh. It shall be open to the parties to lead evidence, if they are so advised. We, therefore, quash Annexures-1, 2 and 4, i.e. the decisions of the original, appellate and revisional authorities, and remit the matter to the S.D.O., Sambilpur, for disposal of the proceeding in accordance with law after giving the parties an opportunity of hearing. The original proceeding be disposed of within a period of four months from the date of receipt of the order."

W.P.(C) No.27920 of 2023 and Batch Page 29 of 37

12. Hon'ble Supreme Court in the case of Om Prakash Agarwal and Others v. Batara Behera and Others, (1999) 3 SCC 231 had the occasion to interpret the definition of 'land' as per Section 2(14) of the OLR Act and have observed as follows:-

"2. Mr. G.L. Sanghi, the learned Senior Counsel appearing for the appellants contended that the very purpose of the Orissa Land Reforms Act being a progressive legislation relating to agrarian and land tenures, the said Act cannot have any application to the land which is a part of the master plan of a City and, therefore, the High Court committed error in applying the provisions of the Land Reforms Act to the case in hand. Mr. Sanghi further contended that in the absence of any materials to indicate that the vendors of the sale deeds belong to the Scheduled Castes the embargo contained under Section 22 of the Act will not apply and, therefore, the application under Section 23 of the Act was not tenable. Mr. Sanghi also submitted that in view of Section 73(c) of the Land Reforms Act and in view of the fact that the area comes within a master plan thereby necessarily reserved as an urban area, the Act cannot have any application. The learned senior counsel for the respondents on the other hand contended that the definition of 'Land' in Section 2(14) is wide enough to include the lands within the municipal area provided the same is used for agricultural purposes or is capable of being used for agricultural purposes and in that view of the matter the High Court rightly remitted the matter to the Sub-Divisional Officer for re-consideration.

3. In view of the rival submissions at the Bar the first question that arises for consideration is whether the land as defined in Section 2(14) of the Act and which is either being used or W.P.(C) No.27920 of 2023 and Batch Page 30 of 37 capable of being used for agricultural purposes within the municipal area, does come under the purview of the Orissa Land Reforms Act. The Act, no doubt, is a measure relating to agrarian reforms and land tenures and abolition of intermediary interest but there is no provision in the Act which excludes such agricultural lands merely because they are situated in an Urban Agglomerations. The 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. The very object of the legislation being an agrarian reform, the object will be frustrated if agricultural lands within the municipal area are excluded from the purview of the Act. In this view of the matter we have no hesitation to come to the conclusion that the Act applies to all lands which is used or capable of being used for agricultural purposes irrespective of the fact wherever the said land is situated and the conclusion of the High Court on this score is unassailable. The first submission of Mr. Sanghi is, therefore, devoid of any force. So far as the question that the vendors do not belong to Scheduled Castes is concerned, it appears that the Sub-Divisional Officer on the basis of materials produced before him came to a positive conclusion that the vendors of the sale deeds belong to Scheduled Castes which is confirmed by the record of right. This conclusion of the Sub-Divisional Officer had not been assailed before the Appellate Authority, as is apparent from paragraph 2 of the Appellate judgment. Since the finding of the Sub- Divisional Officer on the question whether the vendors of the sale deeds belong to Schedule Castes or not had not been assailed before the Appellate Authority, the said finding has become final and cannot be permitted to be re-agitated again. Rightly, therefore, the High Court did not consider the said question and in our considered opinion, that question cannot be re-opened now.

W.P.(C) No.27920 of 2023 and Batch Page 31 of 37

4. So far as the third submission of Mr. Sanghi is concerned, we do not have an iota of material on record to establish that the area in question has been reserved for urbanisation by a notification issued in the Official Gazette of the Government within the ambit of Section 73(c) of the Act so that the Act cannot have any application. In the absence of such material it is difficult for us to sustain the said submission of Mr. Sanghi, learned Senior Counsel appearing for the appellants."

13. A Division Bench of this court in a recent decision, i.e., Harful Agrawal v. Tamal Behera and Others, 2022 (III) ILR-CUT-338, had the occasion of dealing with a same question that, whether prior permission in terms of Section 22 is required for homestead land within an urban area. The Division Bench after dealing with several decisions including the case of Om Prakash Agarwal (supra) have held that there is no escape from applicability of Section 22 and 23 of the OLR Act to the land in question. The relevant observation at para 21 of the said decision reads as follows:-

"21. Since the law in the question is governed by the decision in Omprakash Agarwal (supra), the Court has no hesitation in holding that in the present case there is no escape from the applicability of Sections 22 and 23 of the OLR Act to the land in question. This is irrespective of the fact that the learned Single Judge may not have been correct in observing that the entire Titilagarh area would be a scheduled area. The fact remains that Sections 22 and 23 of the OLR Act do apply to the land in question and inasmuch as prior permission was not obtained at the time of W.P.(C) No.27920 of 2023 and Batch Page 32 of 37 execution of the sale deed in favour of the Appellant, it was unsustainable in law. For the aforementioned reasons, the Court finds no ground to interfere with the impugned judgment of the learned Single Judge. The appeal is dismissed. The interim order passed earlier stands vacated."

14. In the light of the principles propounded in the afore-cited cases it is now required to examine the cases at hand on the factual aspect.

15. It is true that all such lands in question are fall within the urban area of Sambalpur Municipal Corporation and no dispute has been raised regarding the same. So far as the status of lands concerned, they are recorded as homestead. It is stated on behalf of the Petitioners that the lands are neither being used for agricultural purpose nor ancillary to agriculture. This is disputed in the counter affidavit by the State Authorities stating that they are just converted homestead category of lands and never used for residential purpose. None of the Petitioners has stated about existence of any residential house on the respective lands nor have specified the adjoining area thereof used as residential houses. It is true that all such lands are covered by the notification of Housing and Urban Development Department for their inclusion in Sambalpur Municipal Corporation area. As explained in the case of Om Prakash Agarwal (supra), the OLR Act applies to all the lands W.P.(C) No.27920 of 2023 and Batch Page 33 of 37 which are either used or capable of being used for agricultural purposes irrespective of whether they are situated within the municipal area or in villages. The decision of the Hon'ble Supreme Court in Om Prakash Agarwal would obviously prevail over the decision of this court in Mahurilal's case (supra). Likewise the decisions in Madanbati and Harful's case (supra) do speak the propositions that the land contemplated by Section 22 shall be the land used or capable of being used for agricultural purposes. Here, for the lands in question, there is no specific finding of the competent authority regarding usability of the same other than agricultural purpose. It is mentioned in the impugned order of the registering authority that there is no house over the plots in question.

16. It is seen that a reference was made to the Revenue and Disaster Management Department of Government of Odisha by the Collectors regarding applicability of the OLR Act to urban areas, particularly Section 22. The Government in Revenue and Disaster Management Department in letter dated 21st December, 2012 (Annexure-A/3) have clarified that, in absence of any definition of the expression 'ancillary or incidental to agriculture', the same remains as a question of fact and since this is a jurisdictional fact conferring authority on revenue W.P.(C) No.27920 of 2023 and Batch Page 34 of 37 officer, he is to establish the link, i.e. to show that such lands are connected to agriculture.

Present lands in question, except being recorded as homestead in the RoR, are not disclosing anything else to show that the same are for purely residential purposes and not capable of being used as agricultural lands. None of the cases do reveal any enquiry report of the Revenue Authority to satisfy the fact that the lands are not capable of being used for agricultural purpose anymore. So, in absence of any report from the Revenue Authority, it is difficult on the part of this court to opine anything regarding no more usability of the land for agricultural purpose or ancillary to it. Thus while holding that mere inclusion of the land in an urban area or within Sambalpur Municipal Corporation area would not exclude applicability of provisions of the OLR Act, particularly Section 22, this court directs the competent Revenue Authority to give a fact finding enquiry report in each case regarding usability of the land in question for other than the agricultural purpose.

17. So far as the challenge of the Petitioners with regard to authority to adjudicate of the registering officer is concerned, this court is of the opinion that the registering authority is empowered under Section W.P.(C) No.27920 of 2023 and Batch Page 35 of 37 22(4) of the OLR Act to refuse registration of the document without written permission of the Revenue Officer and the registering authority acquires the authority to enter into and see the reasons for refusal. It needs to be mentioned here that, if the authority has the entitlement to enter upon the question to refuse after verification of facts, then he acquires the jurisdiction to decide. The registering authority has been authorized to verify the state of facts existing, i.e. whether the document is supported with written permission of the competent authority. So his decision to deny or refuse cannot be said as without jurisdiction. When the Legislature has conferred the authority upon the registering officer to determine whether the facts are satisfying for registering the document, then he definitely acquires the jurisdiction by finding the facts to proceed further in performing the statutory task. Thus, the arguments led by the Petitioners to dispute the jurisdictional authority of the registering officer to adjudicate and refuse registration for want of permission, are all without any substance. Such objections raised by the Petitioners are thus rejected.

18. In the result this court disposes of all the writ petitions granting liberty to each Petitioner to approach the competent Revenue Authority, i.e. concerned Tahasildar to give his opinion on the usability W.P.(C) No.27920 of 2023 and Batch Page 36 of 37 of the land and in such event the concerned Tahasildar is directed to give his opinion in respect of each specific land of respective Petitioners regarding its usability for agricultural purpose any more in the present scenario, within a period of 60 days from the date of application. Depending upon the opinion of the Revenue Authority, the Petitioners are at liberty to approach the registering officer again.

19. All the writ petitions are disposed of accordingly.

(B.P. Routray) Judge M.K. Panda/P.A. Signature Not Verified Digitally Signed Signed by: MANAS KUMAR PANDA Designation: Personal Assistant Reason: Authentication Location: OHC, Cuttack Date: 23-Aug-2024 14:51:31 W.P.(C) No.27920 of 2023 and Batch Page 37 of 37

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