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High Court Of Orissa
S. K. Ray And P. K. Mohanti, JJ.
RAM KRUSHNA PANDA - Appellant
Versus
SUB-DIVISIONAL OFFICER - Respondent
Original Jurisdiction Case 656 Of 1976
Decided On : 04/26/1977
LAND REFORMS - ORISSA LAND REFORMS ACT, 1960 - SECTION 22(1), 23 - TRANSFER OF LAND BY SCHEDULED TRIBE TO NON-SCHEDULED TRIBE - PENALTY - IMPOSITION - TRANSFER DECLARED INVALID AFTER TRANSFEREE RELINQUISHED POSSESSION - WHETHER PENALTY CAN BE IMPOSED FOR PAST POSSESSION - YES
Fact of the Case:
A non-scheduled tribe person (petitioner) purchased land from a scheduled tribe person (opposite party No. 4) in 1969. The petitioner remained in possession of the land from 1969-70 to 1972-73. In 1973-74, the opposite party No. 4 recovered possession of the land. In 1974, the opposite party No. 4 filed an application under Section 23 of the Orissa Land Reforms Act, 1960 (the Act) before the Sub-Divisional Officer (SDO) seeking a declaration that the transfer of land was invalid and imposition of penalty on the petitioner. The SDO declared the transfer invalid and imposed a penalty of Rs. 2,400/- on the petitioner. The petitioner challenged the order of the SDO before the Additional District Magistrate (ADM), who reduced the penalty to Rs. 200/-. The petitioner then filed a writ petition in the High Court challenging the orders of the SDO and the ADM.
Finding of the Court:
The High Court held that the petitioner was liable to be penalized for all the years during which he was found to be in possession under the illegal transfer whose illegality was only subsequently declared. The Court further held that the petitioner was given adequate opportunity to rebut the report of the Revenue Inspector and that principles of natural justice and fair play were not violated.
Issues: 1. Whether penalty can be imposed on a transferee for past possession of land transferred in contravention of Section 22(1) of the Act, even if the transfer is declared invalid after the transferee has relinquished possession? 2. Whether the petitioner was given adequate opportunity to rebut the report of the Revenue Inspector?
Ratio Decidendi: 1. The purpose of the Act is to protect scheduled tribesmen from exploitation by unscrupulous persons not belonging to scheduled tribes and to deter the latter from entering into transactions of transfer of land with the former. The transferee's possession is illegal from the date of transfer and he is liable to be penalized therefor. The quantum of penalty is to be computed with reference to the area of the transferred land and the length of transferee's illegal possession. 2. The petitioner appeared in the proceedings before the SDO and his Advocate never wanted an opportunity to rebut the report of the Revenue Inspector. The petitioner did not tender any evidence from his side. In these circumstances, it cannot be said that principles of natural justice and fair play have been violated.
Final Decision: The writ petition was dismissed.
S. K. RAY, J.
( 1 ) THIS is an application under Arts. 226 and 227 of the Constitution of India for quashing the order dated 11-6-74 of the S. D. p. Dharamgarh passed in a proceeding under Section 23 of the Orissa Land Reforms Act (hereinafter called the Act) imposing a penalty of Rs. 2,400/- on the petitioner (Annexure-1), the appellate order dated 2-11-74 of the A. D. M. Kalahandi passed in appeal from the order of the S. D. O. in Revenue Appeal No. 11 of 1974 (Annexure 2)reducing the fine to Rs. 200/-, and the order dated 31-1-76 passed in revision by the Board of Revenue in Revision Case No. 85 of 1974 (An-nexure-3)confirming Annexure-2.
( 2 ) IT is not in dispute that opposite party No. 4 is a member of scheduled tribes and the petitioner is a person not belonging to scheduled tribes. Opposite party no. 4 transferred, under a registered mortgage deed dated 30-4-1969, A. 3. 13 dec. of land to the petitioner for a consideration of Rs. 800/ -. As disclosed by an enquiry caused to be made through the Revenue Inspector, the petitioner, pursuant to the aforesaid mortgage, remained in possession of the said lands for four years, viz. , from 1969-70 till 1972-73 and that opposite party No. 4 got back possession in 1973-74 and is in continuous possession since then.
( 3 ) ON the basis of an application made by opposite party No. 4 under Section 23 of the Act before opposite party No. 1, Misc. Case No. 11 of 1974 was registered. After notice to the petitioner and after holding an enquiry into the allegations made in the petition opposite party No. 1 declared the aforesaid transfer invalid and imposed a penalty of Rs. 200/- per year per acre for four years aggregating to a sum of Rs. 2,400/- holding that though opposite party no, 4 had recovered possession since 1973-74, nevertheless, the petitioner was in illegal possession for four years from 1969-70 till the end of 1972. This order of the opposite party No. 1 was varied in appeal only to the extent of reducing the fine to Rs. 200/-and this appellate order was confirmed in revision.
( 4 ) LEARNED counsel for the petitioner contends that opposite party No. 1 erred in exercise of his jurisdiction by imposing penalty on the petitioner for his possession prior to the order declaring the transfer to be invalid. In other words, he contends that the application under Section 23 having been filed after 29-9-73, when the President's Act 17 of 1973 came into force, penalty should not have been imposed for past possession of the petitioner, as such possession cannot be said to be possession which continued after the transfer was declared to be invalid. Lastly, it is contended that rules of natural justice were violated inasmuch as opposite party No. 1 acted upon a report of the revenue Inspector which was never put in evidence in presence of the petitioner and inasmuch as no opportunity was given to him to rebut the same.
( 5 ) SECTION 22 of the Act provides for restriction on alienation of lands by scheduled tribes. Sub-section (1) thereof runs as follows:-
" any transfer of a holding or part thereof by a raiyat, belonging to a scheduled Tribe shall be void except where it is in favour of- (a) a person belonging to a Scheduled Tribe, or (b) a person not belonging to a Scheduled Tribe when such transfer is made with the previous permission in writing of the Revenue Officer:"
Proviso to Sub-section (4) excludes transfer by a member of the Scheduled tribes within a Scheduled Area from the purview of Sub-section (1 ).
( 6 ) BY President's Act 17 of 1973 Sub-sections (3) and (4) of Section 22 of the act were substituted by Sub-sections (3), (4) and (5) and the original proviso to Sub-section (4) was re-enacted in Sub-section (6 ).
( 7 ) SUCH provisions of Section 23 of the Act, both before and after amendment, which are relevant for the present purpose are extracted hereinbelow. Section 23- (1) of the Act runs as follows:--
"in the case of any transfer in contravention of the provisions of S
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