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High Court Of Orissa
G. B. Pattanaik , A. K. PADHI
GOPAL BARIHA - Appellant
Versus
SATYANARAYAN DAS - Respondent
ORIGINAL JURDN. CASE 1497 Of 1983
Decided On : 01/19/1990
LAND REFORMS - OLR ACT - S. 23 - JURISDICTION OF OLR AUTHORITIES - BENAMI TRANSACTIONS (PROHIBITION) ACT, 1988 - S. 4 - RIGHT OF REAL OWNER TO ENFORCE RIGHT AGAINST BENAMIDAR - RIGHT OF THIRD PARTY TO GET DECLARATION - OLR AUTHORITIES HAVE JURISDICTION TO EXAMINE REAL CHARACTER OF TRANSACTION.
Fact of the Case:
Petitioner, a member of Scheduled Tribe, challenged the order of the revisional authority arising out of a proceeding under S. 23 of the Orissa Land Reforms Act (OLR Act). The opposite party No. 2, also a member of Scheduled Tribe, had purchased the disputed property from the petitioner. The petitioner alleged that the real transferee was opposite party No. 1, who belonged to a non-Scheduled Tribe, and that the sale deed was executed in the name of opposite party No. 2 to circumvent the prohibition under S. 22 of the OLR Act.
Finding of the Court:
The court held that the Benami Transactions (Prohibition) Act, 1988 (Benami Act) is retrospective in operation and prohibits the right of the real owner to enforce his right as the real owner on the plea that the ostensible owner is a Benamidar. However, the court clarified that the prohibition under the Benami Act does not prohibit the right of a third party to get a declaration regarding the real nature of the transaction.
Issues: 1. Whether the OLR authorities have the jurisdiction to decide the question of Benami character of the sale. 2. Whether the revisional authority erred in holding that it had no jurisdiction to decide the real nature of the sale deed.
Ratio Decidendi: 1. The court interpreted S. 4 of the Benami Act and held that it prohibits the right of the real owner to enforce his right against the Benamidar, but it does not prohibit the right of a third party to get a declaration regarding the real nature of the transaction. 2. The court interpreted S. 23(1) of the OLR Act and S. 3(1) and (2) of Regulation-II of 1956 (which is pari materia with S. 22 of the OLR Act) and held that the OLR authorities have the jurisdiction to examine the real character of a transaction, even if the real transferee disclaims to be the real owner.
Final Decision: The court quashed the order of the revisional authority and remanded the matter back to the revisional authority to give a finding on the nature of the sale deed and to proceed in accordance with law.
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 S. 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 S. 23 of the O. L. R. Act praying for restoration of possession.
( 3 ) THE opposite parties 1and 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 S. 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 S. 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. 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- (L) 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 Ramakrishnan 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,
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