Orissa High Court
Gopal Bariha vs Satyanarayan Das And Ors. on 19 January, 1990
Equivalent citations: AIR1991ORI131, [1992]194ITR469(ORISSA), AIR 1991 ORISSA 131, (1992) 194 ITR 469 (1992) 64 TAXMAN 511, (1992) 64 TAXMAN 511
Author: G.B. Patnaik
Bench: G.B. Patnaik
JUDGMENT A.K. Padhi, J.
1. The petitioner, a member of Scheduled Tribe assails the order of the revisional authority arising out of a proceeding under Section 23 of the Orissa Land Reforms Act (hereinafter referred as 'the O.L.R. Act').
2. The opposite party No. 2 is a member of Scheduled Tribe had purchased the disputed property comprising of an area of A.O. 22 dec. of land in village Padhel on 25-8-1975. According to the petitioner, though the sale deed stands in the name of opposite party No. 2, the real transferee was opposite party No. 1 who belongs to a non-Scheduled Tribe. On these allegations a petition was filed under Section 23 of the O.L.R. Act praying for restoration of possession.
3. The opposite parties 1 and 2 appeared and according to them opposite party No. 2 was the real purchaser and the transfer being from one Scheduled Tribe member to another Scheduled Tribe member, no permission was required before such transfer.
4. On enquiry, the learned Revenue Officer held that the real transferee was opposite party No. 1 and to play fraud on the prohibition under Section 22 of the O.L.R. Act, the sale deed had been executed in favour of opposite party No. 2 and this order of the learned Revenue Officer was confirmed by the appellate Court. The opposite parties 1 and 2 carried revision and the revisional authority allowed the revision and rejected the claim of the present petitioner on the ground that under Section 23 of the O.L.R. Act the Court has no jurisdiction to decide as to who is the real transferee when the sale deed stands in the name of opposite party No. 2. This order of the revisional authority is assailed in this writ application.
5. The learned advocate for the petitioner submits that the authorities under the O.L.R. Act has the jurisdiction to decide the question of Benami character of the sale and as such the revisional authority was required under law to give finding on fact as to whether the document which purported to transfer the interest of the petitioner to opposite party No. 2 was whether a real transfer to opposite party No. 1. As such the order of the revisional authority is not sustainable under law.
6. The learned advocate for the State submits that:
(a) In view of The Benami Transactions (Prohibition) Act, 1988 (in short 'the Act'), this Court can no more go into the question as to whether opposite party No. 1 was the real transferee; and
(b) The O.L.R. authorities had no jurisdiction to decide as to whether the opposite party No. 1 was the real transferee when the sale deed was executed in favour of opposite party No. 2.
7. It is no more res integra that the Benami Transactions (Prohibition) Act, 1988 is retrospective in operation (see AIR 1989 SC 1247 (Mithilesh Kumari v. Prem Behari Khare)). Hence, the provisions of the Act have to be considered to find out whether the Court has jurisdiction to enquire into the Benami nature of the transactions.
Section 4 of the Act reads as follows :--
"4. Prohibition of the right to recover property held benami-
(1) No suit, claim or action to enforce any right in respect of any property held Benami against the person in whose name the property is held or against any other person shall lie by or on behalf of a person claiming to be the real owner of such property.
(2) No defence based on any right in respect of any property held Benami, whether against the person in whose name the property is held or against suit, claim or action by or on behalf of a person claiming to be real owner of such property.
XX XX XX XX XX XX XX XX XX In AIR 1989 Ker 12 (Velayudhan Rama-krishnan v, Rajeev), while considering a case under the Benami Transactions (Prohibition of the Right to Recover Property) Ordinance, 1988 his Lordship has observed (Paras 33 and 34):
"..... It destroys a right hitherto enjoyed by a class of persons who, for diverse reasons, felt it desirable to acquire property in the name of another in the then prevailing situation. In the past, the real owner could acquire property in the name of another, without incurring any pejorative reputation. The motive for putting up such a facade can be many and varied. The man who paid the money, who could therefore rightly deal with the property, could pull down the benami facade at any time he pleased. If the trusted person does not oblige by a prompt reconveyance, the real owner could get relief by a suit.instituted in that behalf. The Court may, on applying the tests evolved and elucidated by judicial decisions come to the conclusion that the real owner is yet another person, the outwards form of the deed notwithstanding. The real owner thus could , remove the cobwebs around his title and could parade his proprietorship in full shine and strength.
This right hitherto recognised by law is unambiguously cut and curtailed by Sub-section (1). The real owner is deprived of a right and a remedy, in view of the positive provision contained in Section 1 of the Ordinance. He cannot bring any suit, claim or action raising Benami plea."
This view has again been reiterated in AIR 1989 Ker 256 (C. Narayanan v. Ganga-dharan), where his Lordship has observed (Para 7) :--
"The right to recover property held benami, after the coming into force of Section 2, cannot be enforced through Court, because no suit, claim or action to enforce any right in respect of any property held Benami against the Benamidar shall lie by or on behalf of the real owner of such property."
8. Section 2 of the Ordinance is now Section 4 of the Act. In our opinion, under Section 4(1) the real owner cannot bring any suit, claim or action to enforce his right as the real owner on the plea that ostensible owner is a Benamidar. Section 4(1) of the Act prohibits the right of the real owner to enforce the same through Court against the Banamidar and Section 4(2) destroys the right of defence of the owner to claim that he is the real transferee when the Benamidar brings a suit to enforce his right. Hence Section 4 takes into its ambit the right of a real owner vis-a-vis ostensible owner. In our opinion, the prohibition under Section 4(1) and (2) does not prohibit the right of a third party to get such a declaration. As such, the contention of the counsel for the State is not acceptable. The petitioner has the right to raise the contention that opposite party No. 1 was the real transferee and the sale deed was only executed in the name of opposite party No. 2 who was a Benamidar.
9. The next question which arises for consideration is as to whether the O.L.R. authorities had the jurisdiction to decide the nature of transaction. Section 23(1) of the O.L.R. Act reads as follows :--
"23. Effect of transfer in contravention of Section 22-- (1) In the case of any transfer in contravention of the provisions of (sub-section (1) of Section 22) the Revenue Officer on his own information or on the application of any person interested in the land may issue notice in the prescribed manner calling upon the transferor and transferee to show cause why the transfer should not be declared invalid."
Such prohibition is also there in Regulation-11 of 1956. Section 3(1) and (2) of Regulation-II of 1956 reads as follows :--
"(1) Notwithstanding anything contained in any law for the time being in force any transfer of immovable property situated, within a Scheduled Area, by a member of a Scheduled Tribe shall be absolutely null and void and of no force or effect whatsoever unless made in favour of another member of a Scheduled Tribe or with the previous consent in writing of the competent authority:
(Provided that .......) (2) Where a transfer of immovable property is made in contravention of Sub-section (1) the competent authority may, either on application by any one interested therein or on his own motion and after giving the parties an opportunity of being heard order ejectment against any person in possession of the property claiming under the transfer and shall cause restoration of possession of such property to the transferor or his heirs. In causing such restoration of possession the competent authority may take such steps as may be necessary for securing compliance with the said order or preventing any breach of peace:
(Provided that...................) Considering a case under Regulation-II of 1956 which is pari materia same as that of Section 22 of the O.L.R. Act, their Lordships have observed in AIR 1970 Ori 138 (Himarika Ramuda v. Kondagorri Buchhancna) as follows (Para 7):--
"....... Under the scheme of the Regulation a transfer by a member of the Scheduled Tribe in favour of a member of a non-Scheduled Tribe is wholly null and void. In no case a real transferee would admit that he claims any interest under an ostensible transfer. It is the duty of the competent authority to examine the real character of the transaction and even if the real transferee disclaims any title, it is open to the competent authority on evidence in the enquiry to come to the conclusion that he was the real transferee."
This decision, in our opinion lays down the correct interpretation of Section 3(1) and (2) of the Regulation-II of 1956. The language of Section 3(1) and (2) are in pari materia with Section 22(1) and Section 23(1) of the O.L.R. Act. In that view of the matter, the principles laid down in this case shall also be applicable to a case under Sections 22 and 23 of the O.L.R. Act.
10. In our view the O.L.R. authorities have the jurisdiction to examine the real character of a transaction, even if the real transferee disclaims to be the real owner.
11. The revisional authority has given no finding with regard to the nature of the transaction, but has only allowed the revision, holding that the O.L.R. authorities have no jurisdiction to decide the real nature of the sale deed. In that view of the matter, the judgment of the revisional authority cannot be sustained and is liable to be quashed.
12. Since the revisional authority is the final Court of fact has given no finding on the nature of the transaction, after quashing Annexure-1, the order of the revisional authority, opposite party No. 3 the matter is remanded to the revisional authority to give a finding on the nature of the sale deed dated 25-8-1975 and to proceed in accordance with law.
13. In the circumstances of the case, there shall be no order as to costs.
G.B. Patnaik, J.
14. I, agree.