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Orissa High Court
R. N. MISRA, AND B. K. RAY, JJ.
Mathew Aymanithal - Appellant
Versus
Collector, Phulbani - Respondents
Original Jurisdiction Case No. 48 of 1972
Decided On : 2 July 1974
CONSTITUTIONAL LAW - ARTICLE 19(1)(F) - KHONDMALS LAWS REGULATION, 1936, SECTION 60 - RESTRICTION ON ALIENATION OF PROPERTY - REASONABLENESS - INTERESTS OF GENERAL PUBLIC - ULTRA VIRES.
Fact of the Case:
The petitioner, a member of the Scheduled Tribes, purchased land from four co-sharers, who obtained permission from the Deputy Commissioner under Section 60 of the Khondmals Laws Regulation, 1936, for the alienation. The petitioner then obtained permission for the transfer in his favor. However, the Sub-divisional Officer, upon an application by third parties claiming to be tenants in possession, directed that possession of the disputed property be made over to them, finding that the alienation was invalid due to non-compliance with Section 60(1) of the Regulation. The petitioner challenged this order and the subsequent dismissal of his appeal by the Collector, arguing that Section 60(1) was ultra vires the Constitution.
Finding of the Court:
The Court held that Section 60(1) of the Khondmals Laws Regulation, 1936, which imposed a blanket restriction on the alienation of property by tenure-holders or raiyats without the written consent of the Deputy Commissioner, was ultra vires the Constitution, as it imposed an unreasonable restriction on the fundamental right to dispose of property guaranteed under Article 19(1)(f) of the Constitution. The Court found that the restriction was not necessary to protect the interests of the general public, as the Regulation already provided specific protection for members of the Scheduled Tribes under Section 3(1) of the Orissa Regulation 2 of 1956 and Section 22 of the Orissa Land Reforms Act, 1960.
Issues: 1. Whether Section 60(1) of the Khondmals Laws Regulation, 1936, which imposed a blanket restriction on the alienation of property by tenure-holders or raiyats without the written consent of the Deputy Commissioner, was ultra vires the Constitution.
Ratio Decidendi: The Court held that Section 60(1) of the Khondmals Laws Regulation, 1936, was ultra vires the Constitution because: * It imposed an unreasonable restriction on the fundamental right to dispose of property guaranteed under Article 19(1)(f) of the Constitution. * The restriction was not necessary to protect the interests of the general public, as the Regulation already provided specific protection for members of the Scheduled Tribes under Section 3(1) of the Orissa Regulation 2 of 1956 and Section 22 of the Orissa Land Reforms Act, 1960.
Final Decision: The Court allowed the petition, quashed the proceedings of the Sub-divisional Officer and the Collector, and directed that possession of the disputed property be restored to the petitioner.
Judgement
R. N. MISRA, J. :- This is an application for a writ of certiorari directed against the order of the Subdivisional Officer, Khondamals (Opposite party No. 2) passed under Section 60 of the Khondmals Laws Regulation 1936 (hereinafter referred to as the Regulation , as also the order of the Collector, Phulbani (Opposite party No. 1), in appeal against the former order.
2. One Sidheswar Mallik a member of the Scheduled Tribes was a joint owner of certain lands along with four co-sharers and obtained transfer of the interest of the co-sharers in his favour. Sidheswar applied for permission to the opposite party No. 2 for alienation of the property now in dispute in favour of the petitioner and permission was accorded in May 1968, vide Annexure-2. The petitioner claims that the sale took place thereafter and he was put into possession. Opposite parties 3 to 4 were set up by some enemies of the petitioner and applied to the Sub-divisional Officer (opposite party No. 2) under Section 60 of the Regulation on the allegation that the lands in dispute were in their possession as tenants and their possession could not be affected by the alienation made by the co-sharers in favour of Sidheswar. The subsequent alineation by Sidheswar in favour of the petitioner was, therefore, bad. The Sub-divisional Officer got the application inquired into by the Tahsildar, Khondmals. In the inquiry, Sidheswar produced a copy of the unregistered sale deed dated 6-3-1968 under which he purchased 26.36 acres of land from his four co-sharers for a consideration of Rs. 2,500/-. Thereafter he obtained the requisite permission for transfer under Section 60 of the Regulation. Permission was granted in R. L. T. Case No. 19 of 1968 on 16-5-1968 and the sale deed was executed by Sidheswar in favour of the petitioner. Upon measurement, the area alienated was found to be 21.61 acres only. By order dated 28th of August, 1969, the Sub-divisional Officer, in exercise of powers under Section 60 (3) of the Regulation, directed that possession of the disputed property be made over to the opposite parties. The petitioner filed an appeal before the Collector (opposite party No. 1). That however, was dismissed on 25-7-1970 as barred by limitation. This writ application has thereafter been filed.
3. Mr. Asok Das for the petitioner contends-
(i) The restriction imposed under Section 60 of the Regulation is ultra vires the Constitution, inasmuch as it casts an unreasonable restriction on the fundamental right guaranteed under Article 19 (1) (f) of the Constitution.
(ii) The provision in Section 60 (1) of the Regulation vests unguided and uncontrolled discretion in the executive and the provision, therefore, is ultra vires the Constitution.
(iii) The Regulation has been impliedly repealed by Orissa Regulation 2 of 1956- therefore, the opposite party No. 2 had no jurisdiction to set aside the sale and direct possession to be restored of the property in question as the alienation by the four co-sharers in favour of Sidheswar was not to be affected by Regulation 2 of 1956.
(iv) The opposite parties 3 to 14 have no interest in the property and possession could not be restored to them even under the scheme of the Regulation.
4. Counsel for both parties agreed that if the first contention or Mr. Das is accepted, the writ application is bound to succeed. Since that is the most fundamental
aspect in the matter, we propose to deal with it first.
5. The Regulation came into force with effect from 1st April 1936. As its preamble shows it was a consolidating statute for the purpose of peace and good Government of the Khondmals district. Chapter IX of the Regulation deals with the subject of landlord and tenant. Section 60 which is impugned before us provides:-
" (1) No transfer or charge whether permanent or temporary by a tenure-holder or raiyat of his right in his tenure or holding or any portion thereof, whether by mortgage, lease, sale, gift, exchange or otherwise, shall be valid unles
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