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HIGH COURT OF ORISSA
G. K. Misra, C. J. And R. N. Misra, J.
HIMARIKA RAMUDU - Appellant
Versus
KONDAGORRI BUCHHANNA - Respondent
O. J. C. 723 Of 1968
Decided On : SEPTEMBER 23, 1969
SCHEDULED AREAS TRANSFER OF IMMOVABLE PROPERTY (BY SCHEDULED TRIBES) REGULATION, 1956 - SECTION 3(1), 3(2), 7(1), 7(2) - JURISDICTION OF COMPETENT AUTHORITY - VALIDITY OF TRANSFER - BURDEN OF PROOF.
Fact of the Case:
A usufructuary mortgage of land was executed by a member of a Scheduled Tribe in favor of another member of a Scheduled Tribe, but it was alleged that the real transferee was a non-Scheduled Tribe member. The competent authority under the Orissa Scheduled Areas Transfer of Immovable Property (By Scheduled Tribes) Regulation, 1956, conducted an inquiry and found that the transfer was in contravention of the Regulation and ordered the restoration of possession to the transferor and imposed a penalty on the non-Scheduled Tribe member.
Finding of the Court:
The court held that the competent authority had jurisdiction to conduct the inquiry and determine the validity of the transfer, even though the ostensible transferee was not made a party to the proceeding. The court also held that the burden of proving the validity of the transfer lay on the transferee, and that the non-Scheduled Tribe member could not disclaim any interest under the mortgage deed to avoid the consequences of the Regulation.
Issues: 1. Whether the competent authority had jurisdiction to conduct the inquiry and determine the validity of the transfer. 2. Whether the burden of proving the validity of the transfer lay on the transferee.
Ratio Decidendi: 1. Section 3(2) of the Regulation expressly vests jurisdiction in the competent authority to determine questions of the nature of whether the apparent transfer is a real one. 2. Section 7(2) of the Regulation places the burden of proving the validity of the transfer on the transferee.
Final Decision: The court dismissed the writ petition challenging the validity of the impugned order.
G. K. MISRA, C. J.
( 1 ) PETITIONER No. 1 and opposite party No. 1 are members of Scheduled Tribe and petitioner No. 2 is a member of a non-Scheduled Tribe. On 5-3-64 opposite party no. 1 executed a registered usufructuary mortgage of the disputed land, 1. 48 acres in area, for Rs. 400/- in favour of petitioner No. 1. On 20-11-66 opposite party No. 1 filed an application before the Sub-Collector of Rayagada, opposite party No. 2, complaining that petitioner No. 2 had taken the disputed land on mortgage for a paltry sum of paddy advanced by way of loan and prayed that the disputed land be released from mortgage after adjustment of the dues. No notice was issued on petitioner No. 1 who was not a party to the proceeding. Opposite party No. 2 held an enquiry under Section 3 (2) of the Orissa Scheduled Areas transfer of Immovable Property (By Scheduled Tribes) Regulation, 1956 (Orissa Regulation No. 2 of 1956) (hereinafter referred to as the Regulation) and came to the conclusion that though apparently the mortgage deed was executed in favour of petitioner No. 1, it was a camouflage and the real transferee was petitioner No.
( 2 ) HE accordingly ordered that the disputed land be formally restored to opposite party No. 1. Petitioner No. 2 was further directed to pay a penalty of Rs. 470/- at, the rate of Rs. 80/- per acre by 3-8-68, failing which the sum was to be realised from him by certificate procedure. Out of the penalty realised, 40 per cent was to be paid to opposite party No. 1 to compensate him on account of the loss sustained for the land during long possession of petitioner No. 2, The writ application has been filed under Articles 226 and 227 of the Constitution challenging the validity of the impugned order as being without jurisdiction. 2. Mr. Ramdas contends that opposite party No. 2 had no jurisdiction to make an enquiry of the aforesaid nature and it is only the Civil Court which has got jurisdiction to declare such a transaction void even assuming that it was a transfer in favour of petitioner No. 2 though apparently it was in favour of petitioner No. 1. This contention requires a careful examination of the relevant sections of the regulation.
( 3 ) THE preamble of the Regulation shows that the object in passing such a regulation was to control and check transfers of immovable property by the scheduled Tribes in the Scheduled Areas of the State of Orissa. It is not challenged that the disputed lands are situate in a Scheduled area of the State of orissa.
"competent Authority" has been defined in Section 2 (a) to mean "the collector and includes any other officer or officers appointed by the State government by notification to perform all or any of the functions of a competent authority under this Regulation". That the S. D. O. , Rayagada has been appointed as a competent authority has not been disputed, "transfer of immovable property" under Section 2 (f) of the Regulation means "mortgage with or without possession, lease, sale, gift, exchange or any other dealings with such property not being a testamentary disposition and includes a charge or contract relating to such property". The impugned mortgage was with possession and comes clearly within the definition of the expression "transfer of immovable property. "
( 4 ) SECTION 3, so far as relevant, runs thus:--
"3 (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. (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 per
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