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HIGH COURT OF ORISSA
R. L. Narasimham, C. J. And R. K. Das, J.
RAGHUNATH CHOUDHURY - Appellant
Versus
BUDHI NAIK - Respondent
Second Appeal 267 Of 1961
Decided On : JULY 11, 1963
LAND TRANSFER - Nayagarh Land Transfer Rules, Rule 3 - Validity - Restrictions on transfer of land by aboriginals and low castes - Reasonableness and interest of general public - Constitutional validity - Article 19 (1) (f) and (5) of the Constitution of India.
Fact of the Case:
The plaintiff, belonging to the Tanla caste, executed a sale deed in favor of the defendant for Rs. 500/- on 28-1-1958. The two lower courts held the sale deed to be valid but invalidated the transaction due to contravention of Rule 3 of the Nayagarh Land Transfer Rules, which prohibited the sale of land by aboriginals or low castes to high caste Hindus without written sanction from the State authority.
Finding of the Court:
The court held that Rule 3 of the Nayagarh Land Transfer Rules was a valid restriction on the right of transfer of immoveable property by certain classes of people who are either aboriginals or members of low castes. The court found that such restrictions were meant to protect the weaker sections of the public from exploitation by rich moneylenders and were justified as having been based on the larger principle of the State intervening to prevent the exploitation of the weaker sections of the community by more powerful and richer sections.
Issues: 1. Whether Rule 3 of the Nayagarh Land Transfer Rules was a valid restriction on the right to transfer property under Article 19 (1) (f) of the Constitution of India? 2. Whether the restrictions imposed by Rule 3 were reasonable and in the interests of the general public?
Ratio Decidendi: 1. The court held that Rule 3 of the Nayagarh Land Transfer Rules was a valid restriction on the right to transfer property under Article 19 (1) (f) of the Constitution of India. The court found that the restrictions were reasonable as they were meant to protect the weaker sections of the public from exploitation by rich moneylenders and were justified as having been based on the larger principle of the State intervening to prevent the exploitation of the weaker sections of the community by more powerful and richer sections. 2. The court also held that the restrictions imposed by Rule 3 were in the interests of the general public as the protection of the weaker sections of the public, especially members of low castes, might well be in the interests of the general public.
Final Decision: The court affirmed the decision of the two lower courts and held the impugned sale deed to be invalid. However, the court allowed the appeal to the limited extent of directing the respondent-plaintiff to pay the consideration money of Rs. 500/- (Rupees five hundred) to the appellant-defendant within two months from the date of the judgment.
NARASIMHAM, C. J.
( 1 ) THIS is a defendant's appeal against the concurrent decisions of the two lower courts decreeing the plaintiffs suit and declaring that a sale deed executed by the plaintiff on 28-1-1958 for Rs. 500/- in favour of the defendant was invalid and did not convey any title. The plaintiff belongs to Tanla caste in the sub division of nayagarh which was a former Feudatory State of Orissa. He was in possession of the disputed property as Tokari Jagiri land.
( 2 ) IT was found by the two lower courts that on 28th January 1958 he executed a sale deed con-veyingi the said property to the defendant for a sum of Rs. 500/ -. The defendant is admittedly a high caste Hindu. Though the two lower courts held that the sale deed was validly executed and there was consideration, they nevertheless held that the transaction was invalid on account of contraven tion of rule 3 of the Nayagarh Land Transfer Rules. That Rule reads as follows:
"3. No land or other immoveable property of an aboriginal or a person of low caste, specially Pans, Haris, and Khonds, will be sold, mortgaged, or leased put to ryots of high class without the written sanction of the State authority. Note: For the purpose of this Rule the following are considered aboriginals or persons of low caste: Tanti, Jawra, Pathuria, Dora, Khaira, idika, Parida Khatia, Tulabhina, Gokha, Bhogia, Raouls, Dombs, Khandal bauri, Tanla, Siela, Mochi, Sujan, Kandra, Kela, Dom, Pan, Hadi, sanakia, Kondh, Sabar and Nodha. "
When the Feudatory State of Nayagarh was merged with the Province of Orissa on 1-1-1948 the Government of Orissa, exercising delegated powers of the Central government made the well known Administration of Orissa States Order 1948 by which while applying some of the laws of the Province, in force, to the merged state, the existing laws of Nayagarh State were also continued in force, so long as they were not repugnant to the laws so applied. Hence notwithstanding the merger, the Nayagarh Land Transfer Rules continued to remain in force as there was no repugnancy between those Rules and the laws applied to that State by that order. Even after the expiry of the said order the Nayagarh Land Transfer Rules continued to remain in force in. Nayagarh by virtue of paragraph 4 of the State merger Governors Provinces Order of 1949. Subsequently the Orissa Legislature passed the Orissa Merged States Laws Act in 1950. Section 7 of that Act modified she tenancy laws in force in the merged States to the extent indicated therein. Clause (b) of that section prohibited the transfer of an occupancy holding by an occupancy tenant who was a member of an aboriginal tribe to a person who was not a member of an aboriginal tribe unless such transfer was made with the previous permission of the Subdivisional Magistrate concerned. The expression "aboriginal tribe" was defined in Clause (ii) of the Explanation to Clause (b) of that section as meaning "any tribe that may from time to time be notified as such by the Provincial Government". It was stated before us by counsel for both sides that till now no notification has been issued under that clause defining 'aboriginal tribes'. Hence if section. 7 of the Merged States Laws be held to apply to the present case the plaintiff cannot get the benefit of Clause (b) of Section 7 as he has not been notified as belonging to a member of the aboriginal tribe.
( 3 ) MR. Misra for the respondents contended that Clause (b) of Section 7 applies only to transfer of a holding belonging to an occupancy tenant and that there was no evidence in this case to show that the plaintiff was an occupancy tenant. All that was admitted was that he was holding the jagir land. There was also no evidence to show that a jagir land ceased to be so on payment of rent thereby rendering the jagir also an occupancy holding by virtue of Clause (g) of Section 7 of the aforesaid Act. As there is no evidence on these matters we must bold that section 7 of the Merged States Law
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