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IN THE HIGH COURT OF ORISSA
D. Pathak, S.C. Mohapatra, JJ.
KARUNAKAR GOND AND ANOTHER - APPELLANT
Versus
PITABAS SAHU AND OTHERS - RESPONDENT
O. J. C. No. 1575 of 1978
Decided On : 10-12-1985
LAND REFORMS - ORISSA LAND REFORMS ACT, 1960 - SECTION 22 AND 23 - SALE OF LAND BY SCHEDULED TRIBE MEMBER TO NON-SCHEDULED TRIBE MEMBER WITHOUT PERMISSION - VOID - POSSESSION TAKEN AFTER PERMISSION - RESTORATION OF POSSESSION TO TRANSFEROR.
Fact of the Case:
Petitioners' father, a member of the scheduled tribe, sold land to opposite parties 1 and 2, non-scheduled tribe members, without obtaining permission under Section 22 of the Orissa Land Reforms Act, 1960. Petitioners' father filed a petition under Section 23 of the Act to set aside the sale and restore possession of the land. The Revenue Officer rejected the petition, but the Additional District Magistrate set aside the order. The Board of Revenue upheld the Revenue Officer's order.
Finding of the Court:
The sale deed was void as permission under Section 22 was not obtained on the date of registration. Possession was taken by the opposite parties in January 1966, after the permission was granted on 25-1-1966.
Issues: Whether the sale deed was void as permission under Section 22 was not obtained on the date of registration.
Ratio Decidendi: Section 22(1) of the Orissa Land Reforms Act, 1960, prohibits the transfer of land by a scheduled tribe member to a non-scheduled tribe member without permission from the Revenue Officer. The sale deed was void as permission was not obtained on the date of registration.
Final Decision: The writ application was allowed, and Annexures 3 and 5 were quashed. No order for costs was made.
JUDGMENT :
Pathak, C.J. - This writ application under Articles 226 and 227 of the Constitution of India arises cut of a proceeding u/s 23 of Orissa Land Reforms Act, 1960 (hereinafter referred to as the 'Act')
2. A thumb nail narration of the facts leading to the present writ application if that on 29-12-65 the father of the petitioners sold Ac. 6.4 decimals of land in plot Nos. 1023. 1022, 1021. 976,977, 970/2 and 975 in Khata No. 72 of village Tipiguda to opposite parties 1 and 2 for a consideration of Rs.2,500/-. The petitioners are members of the scheduled tribe. A petition u/s 23 of the Act was filled by the father of the petitioners before the Sub-divisional Officer, Dharmgarh for setting aside the sale effected on 29-12-65 without obtaining the permission required u/s 22 of the Act with a further prayer restoration of possession of the land in question. The learned Revenue Officer, opposite party No. 3, by order dated 25-2-75 ( Annexure-3) in Revenue Misc. Case No. 53 of 1974, rejected the prayer of the petitioners' father holding inter alia that though on the date of execution of the sale deed the permission required u/s 22 of the Act was not there, the same was obtained on 25-1-66 on an application filed by the vendor (petitioners' father) on 29-12-65 and that some time in January 1966 possession was delivered to the opposite parties. Being aggrived by that order, the petitioner' father preferred an appeal u/s 53 of the Act before the Additional District Magistrate, Kalahandi, registered as Revenue Appeal Case No. 5 of 1975. The learned Additional District Magistrate, opposite party No. 5 by a short order dated 20-9-75 set aside the order passed by the Revenue Officer in Annexure-3. Against that order of the appellate authority, the opposite parties preferred O. L. R. Revision Case No. 16 at 1975 before the Board of Revenue. The learned Member, Board of Revenue, opposite party No. 4, by order dated 3-9-76 (Annexure-5) upheld the order of the Revenue Officer and set aside the order passed by the appellate authority.
3. It is contended at the bar that after the order dated 3-9-76 (Annexure-5) was passed by the Member, Board of Revenue, the petitioners' father filed a review petition and after some clarification being made to the order dated 3-9-76 it was sustained.
4. Before considering the rival contentions of the parties, we may quote Sections 22 and 23 of the Act.
22. Restriction on alienation of land by Scheduled Tribes :
(1) Any transfer of a holdidg 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 :
(b) a person not belonging to a Scheduled Tribe when such transfer is made with previous permission in writing of the Revenue Officer.
Provided that in case of a transfer by sale, the Revenue Officer shall not grant such permission unless he is satisfied that a purchaser belonging to a Scheduled Tribe willing to pay the market price for the land is not available and in case of a gift unless he is satisfied about the bona fides thereof.
(2) The State Government may having regard to the law and custom applicable to any area prior to the date of commencement of this Act by notification direct that the restriction provided in Sub- Section (1) shall not apply to lands situated in such area or belonging to any particular tribe throughout the State or in any part of it.
(3) Except with the written permission of the Revenue Officer, no such holding shall be sold in execution of a decree to any person not belonging to a Scheduled Tribe.
(4) Notwithstanding anything contained in any other Saw foe the time being in force, where any document required to be registered under the provisions of Clause (a) to Clause (e) of Sub-Section (1) of Section 17 of the Registration Act, 1908, purports to effect transfer of a holding or part thereof by a raiyat belonging to a Scheduled Tribe, in favour of a person belonging to a Scheduled Tribe, no Registerin
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