Orissa High Court
Bidya Bharati Educational Trust vs Alangu Gomango And Others .... Opp. ... on 3 December, 2021
Author: K.R.Mohapatra
Bench: K.R.Mohapatra
IN THE HIGH COURT OF ORISSA AT CUTTACK
OJC No. 3194 of 2002
Bidya Bharati Educational Trust, .... Petitioner
Gunupur
Mr. Ashok Mohanty, Senior Advocate
along with Mr. Budhiram Das, Advocate
-versus-
Alangu Gomango and others .... Opp. Parties
Mr. G. N. Padhi, Advocate
(For Opposite Party Nos.1 to 27)
Mr. Dillip Kumar Mishra,
Additional Government Advocate
for Opposite Party Nos.33 to 35)
Mr. S.K. Mohapatra, Advocate
(For Opposite Party No.32)
CORAM:
JUSTICE K.R.MOHAPATRA
ORDER
23.11.2021 Order No. OJC Nos. 3225 and 3194 of 2002
10. 1. These matters are taken up through hybrid mode.
2. The challenge in both the writ petitions is being made to the order dated 11th March, 2002 passed by Collector, Rayagada in OSATIP Review Case No.243 of 2001, whereby he directed to restore the land in question in favour of Opposite Party Nos. 1 to 27 (in OJC No.3194 of 2002). Hence, these two writ petitions are taken up together for hearing analogously and disposed of by this common order. For the sake of convenience of discussion, the parties to the writ Page 1 of 8 // 2 // petitions are described as per their status in OJC No. 3225 of 2002.
3. The proceeding in OSATIP Review Case No.243 of 2001 was initiated suo motu by the Collector, Rayagada in exercise of power under Section 3-A(1) of the Orissa Schedule Areas Transfer of Immovable Property (By Scheduled Tribes) Regulation, 1956 (for convenience 'the Regulations'). Shorn of unnecessary details, facts relevant for proper adjudication of the case are that Opposite Party Nos.1 to 27, who belong to Schedule Tribe community sold different portions of the land in question to one Busigram Sabar-Opposite Party No.32 (in OJC No.3194 of 2002) after obtaining permission from the competent authority. Said Busigram Sabar is also a member of Schedule Tribe community. Subsequently, said Busigram Sabar by virtue of Gift Deed donated an area of Ac.2.46 decimals of land in favour of one Bidya Bharati Educational Trust, Gunupur and members of its Trust Board for construction of an Engineering College. Subsequently, the aforesaid suo motu review case was initiated by the Collector, Rayagada and the impugned order has been passed, relevant portion of which is quoted hereunder:
"ORDER In view of the above findings, the permission granted by the C.A.-cum-Sub-Collector, Gunupur is declared illegal as the same has been given without proper application of mind and contrary to the provisions of the Regulation. Hence, the transaction made subsequently to such permission accorded by the C.A.-cum-Sub-Collector, Gunupur in OSATIP Case No.24/98, u/s 3(1) is declared void ab initio. The Sub-Registrar, Gunupur is hereby ordered to record a note of cancellation on the sale deeds No.76/98, 77/98, 78/98, 79/98, 354/98, 348/98, 63/2000, 64/2000 and 65/2000. The Tahasildar, Gunupur should take immediate action for restoration of the land to the legal Page 2 of 8 // 3 // heirs of the original recorded tenants. The correction of R.O.R., if necessary should be done and the copies of R.O.R. shall be provided at the time of delivering physical possession.
Besides it is hereby ordered that:
1. The 2nd party members shall restore the land to its original classification bearing costs, to the satisfaction of Tahasildar, Gunupur by demolition of structure if any, leveling the land etc. within one month time.
2. The 2nd party members are hereby prohibited to carry any further developmental works on the suit land.
3. The District Office shall frame draft charges against the officers responsible for the land scam and submit to the Appropriate Authority for initiating disciplinary action.
Intimate S.P., Rayagada, Sub-Collector, Gunupur, Tahasildar, Gunupur and Sub-Registrar, Gunupur for necessary follow up action.
Pronounced in the open Court today this 11th day of March, 2002."
4. Briefly stated the contentions of Mr. Mohanty, learned Senior Advocate appearing for the Petitioners are as follows:
(i) Although the Gift Deed was made in favour of Bidya Bharati Educational Trust, Gunupur, but it was not made a party to the said proceeding. Few members of the trust board were made parties to the said proceeding.
(ii) The scope and ambit of Section 3-A(1) of the Regulations speaks of unauthorized occupation of a non-
Schedule Tribe member over the land held by a Schedule Tribe member. In the case at hand, while adjudicating the matter, the Collector, Rayagada delved into the legality and validity of the sale made by Schedule Tribe members in favour of another Schedule Tribe member, namely, Busigram Sabar, which is not tenable in the eyes of law.
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(iii) Although the trust board members as well as said Busigram Sabar made prayer to call for the witnesses for cross-examination, the same was not allowed and only taking into consideration the plea made by the Government Pleader that they are not available in court at the time of hearing of the case, the Collector proceeded with the case.
(iv) The Collector, while exercising power under Section 3- A(1) of the Regulations, does not have power to declare any transaction to be null and void. It is only the Sub-Collector, while exercising power under Section 3-B of the Regulations, can declare a transaction to be null and void. 4.1 In that view of the matter, he prays for setting aside the impugned order.
5. Mr. Mishra, learned Government Advocate for the State refuting the submission made by Mr. Mohanty, learned Senior Advocate appearing for the Petitioners contended that the Collector, Rayagada has committed no error in passing the impugned order. The Collector, Rayagada, while adjudicating the matter, has dealt with every aspect of the matter and passed a reasoned order by scrutinizing the materials available on record. When permission for alienation was not in accordance with law, the Collector cannot be a mute spectator to it. He has jurisdiction to delve into the correctness of such permission. It is his submission that while scrutinizing the validity of the transaction made between Busigram Sabar and the Educational trust, the Collector, Rayagada has the authority to go into the validity of the transaction made between the Schedule Tribe members and Busigram Sabar. He, however, does not dispute that both Busigram Sabar and his vendors are Schedule Tribe Page 4 of 8 // 5 // members. He further contended that the transactions in question had taken place between Busigram Sabar in one hand and the Bidya Bharati Educational Trust as well as the trust board members on the other. Since the trust board members are made parties, the proceeding cannot be held to be vitiated for not impleading the educational trust as a party to the said suo motu review case. It is his submission that by not impleading the education trust, the trust board members are not prejudiced. As such, these writ petitions are devoid of any merit. He, therefore, prays for dismissal of these writ petitions.
6. Mr. Padhi, learned counsel for the Opposite Party Nos.1 to 27-Schedule Tribe members and Mr. Mohapatra, learned counsel for the Opposite Party No.32 supported the case of the Petitioners and submitted that although they asked for opportunity of hearing in the case, but the same was denied and the Collector, Rayagada proceeded with the matter on the basis of the reports made available by the sub-ordinate authorities.
7. Heard learned counsel for the parties. Perused the materials available on record.
8. It is the admitted case of the parties that Opposite Party Nos.1 to 27 sold the land to one Busigram Sabar after obtaining permission from the competent authority. Although permissions were granted in different permission cases, the Collector, Rayagada appears to have clubbed all the permission cases and passed a common order holding the permission to be not legal. Be that as it may, the Collector, Rayagada while adjudicating the matter has to act within the scope and ambit of Section 3-A(1) of the Regulations and Page 5 of 8 // 6 // cannot travel beyond it. On perusal of the impugned order, it appears that the Collector, Rayagada has travelled beyond the scope of Section 3-A(1) of the Regulations by declaring the transactions made between Schedule Tribe members to be null and void. Further, it appears that before appearance of the parties in the review case, some witnesses were examined. Although prayer was made to call for those witnesses for cross-examination, but the Collector, Rayagda proceeded without hearing of the matter holding as under:
"The Advocate for the vendees, who is present files his counter along with two petitions, one for praying to call for the persons examined in this case earlier for cross examination and the other for an adjournment to get reasonable opportunity to defend the case.
Let me first discuss on the reasonable opportunity and cross examination of the persons examined in this case. The case was started on 4.12.2001 and adjourned 8 times. The notices have been served on the vendors and as well as the vendees in this case. Tahasildar, Gunupur in his letter No.1481 dated 15.2.2002 reported that notices were served on the 1st party members. He personally asked the parties to come in his vehicle to appear before this court on 15.2.2002, but they did not accompany him for the appearance. It is also a fact that some of the vendors namely Bali Gomango, Arjuna Gomango, Ram Sabar, Jasu Gomango, appeared through their Advocate on 22.2.2002 and asked for time to file counter. However, neither counter nor any submission was made before this Court by them.
The Advocate for the Vendees asked for adjournment though submitted a counter on 11.3.2002. On 11.3.2002, he wanted to cross examine the persons, who have been examined by this Court earlier. The Government Pleader submitted that the allegations made by the advocate for the 2nd party about the vendors having given wrong statement with ulterior motives being lured with the false hopes, are false. According to him, the witnesses were present in the Court verandah to-day, who he has seen at 11.00 A.M. But they are not available at 2.00 P.M. at the time of taking of the case. He sincerely believes that they have been hijacked by the parties to linger the trial and prayed for a hearing today as sufficient evidence is available on record for final orders."Page 6 of 8
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9. Thus, it is crystal clear that the parties, more particularly, the Petitioners were not given any opportunity of hearing in the suo motu review case at least to cross-examine the witnesses, whose statements have been utilised against the Petitioners. The provision of Section 3-A(1) of the Regulations provides that the parties should be given an opportunity of hearing. The Collector, Rayagada in haste to dispose of the proceeding, apparently usurped his jurisdiction conferred under the Regulations. Further, the Collector by virtually apportioning the share in the property in question between the co-sharers of the recorded Schedule Tribe tenant, came to a conclusion that there was no sufficient land left with the Scheduled Tribe members after alienation of the property in question, which is not the case of the either of the parties to the proceeding including Opposite Party Nos.1 to 27. In view of the above, this Court is of the considered opinion that the matter requires a fresh adjudication giving opportunity of hearing to the parties concerned.
10. Accordingly, the impugned order dated 11th March, 2002 (in both the writ petitions) passed by Collector, Rayagada in OSATIP Review Case No.243 of 2001 is set aside. The matter is remitted back to the Collector, Rayagada for fresh adjudication in OSATIP Review Case No.243 of 2001 strictly in accordance with law giving opportunity of hearing to the parties concerned. Since the Regulations amended in the year 2002 and the power is vested with the Collector, the parties are directed to appear before the Sub-Collector, Gunupur.
11. Since the matter is of the year, 2001, this Court in order to avoid further delay, directs the parties to appear before Page 7 of 8 // 8 // the Sub-Collector, Gunupur on 20th December, 2021 along with certified copy of this order to receive further instruction in the matter. The Sub-Collector, Gunupur shall also issue notice to the parties, who cannot appear on 20th December, 2021.
12. The writ petitions are disposed of accordingly with the aforesaid observations and direction.
Urgent certified copy of this order be granted on proper application.
( K.R. Mohapatra) Judge jm Page 8 of 8