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2019 Supreme(Ori) 22
IN THE HIGH COURT OF ORISSA, CUTTACK
K.S. Jhaveri, K.R. Mohapatra, JJ.
Jami Ramesh And Others - Appellants
Vs.
State of Orissa And Others - Respondents
Writ Petition (C) No. 14733 of 2006, Writ Petition (C) No. 5120 of 2003, Writ Petition (C) No. 4958 of 2004, Writ Petition (C) No. 14734 of 2006, Writ Petition (C) No. 14735 of 2006, Writ Petition (C) No. 14736 of 2006, Writ Petition (C) No. 14737 of 2006, Writ Petition (C) No. 14738 of 2006, Writ Petition (C) No. 14739 of 2006, Writ Petition (C) No. 14740 of 2006, Writ Petition (C) No. 14741 of 2006, Writ Petition (C) No. 14742 of 2006, Writ Petition (C) No. 14743 of 2006, Writ Petition (C) No. 17242 of 2007, Writ Petition (C) No. 7067 of 2008, Writ Petition (C) No. 2478 of 2009, Writ Petition (C) No. 2479 of 2009, Writ Petition (C) No. 10442 of 2009, Writ Petition (C) No. 14128 of 2009, Writ Petition (C) No. 15714 of 2009, Writ Petition (C) No. 15919 of 2009, Writ Petition (C) No. 15935 of 2009, Writ Petition (C) No. 16638 of 2009, Writ Petition (C) No. 17074 of 2009, Writ Petition (C) No. 17075 of 2009, Writ Petition (C) No. 17207 of 2009, Writ Petition (C) No. 17208 of 2009, Writ Petition (C) No. 18275 of 2009, Writ Petition (C) No. 18277 of 2009, Writ Petition (C) No. 18278 of 2009, Writ Petition (C) No. 18339 of 2009, Writ Petition (C) No. 18340 of 2009, Writ Petition (C) No. 18341 of 2009, Writ Petition (C) No. 18373 of 2009, Writ Petition (C) No. 18664 of 2009, Writ Petition (C) No. 18866 of 2009, Writ Petition (C) No. 18906 of 2009, Writ Petition (C) No. 18907 of 2009, Writ Petition (C) No. 19062 of 2009, Writ Petition (C) No. 19075 of 2009, Writ Petition (C) No. 19076 of 2009, Writ Petition (C) No. 19077 of 2009, Writ Petition (C) No. 20191 of 2009, Writ Petition (C) No. 20287 of 2009, Writ Petition (C) No. 20472 of 2009, Writ Petition (C) No. 252 of 2010, Writ Petition (C) No. 511 of 2010, Writ Petition (C) No. 512 of 2010, Writ Petition (C) No. 513 of 2010, Writ Petition (C) No. 963 of 2010, Writ Petition (C) No. 1583 of 2010, Writ Petition (C) No. 1941 of 2010, Writ Petition (C) No. 1942 of 2010, Writ Petition (C) No. 2061 of 2010, Writ Petition (C) No. 2062 of 2010, Writ Petition (C) No. 2063 of 2010 Writ Petition (C) No. 2231 of 2010, Writ Petition (C) No. 2232 of 2010, Writ Petition (C) No. 2361 of 2010, Writ Petition (C) No. 2388 of 2010, Writ Petition (C) No. 2389 of 2010, Writ Petition (C) No. 2401 of 2010, Writ Petition (C) No. 2402 of 2010, Writ Petition (C) No. 2403 of 2010, Writ Petition (C) No. 2404 of 2010, Writ Petition (C) No. 2405 of 2010, Writ Petition (C) No. 2771 of 2010, Writ Petition (C) No. 2926 of 2010, Writ Petition (C) No. 2927 of 2010, Writ Petition (C) No. 2928 of 2010, Writ Petition (C) No. 2929 of 2010, Writ Petition (C) No. 2931 of 2010, Writ Petition (C) No. 2932 of 2010, Writ Petition (C) No. 2933 of 2010, Writ Petition (C) No. 2934 of 2010, Writ Petition (C) No. 3407 of 2010, Writ Petition (C) No. 3408 of 2010, Writ Petition (C) No. 3409 of 2010, Writ Petition (C) No. 3411 of 2010, Writ Petition (C) No. 3412 of 2010, Writ Petition (C) No. 4084 of 2010, Writ Petition (C) No. 4085 of 2010, Writ Petition (C) No. 4086 of 2010, Writ Petition (C) No. 4099 of 2010, Writ Petition (C) No. 4304 of 2010, Writ Petition (C) No. 4441 of 2010, Writ Petition (C) No. 4442 of 2010 Writ Petition (C) No. 4465 of 2010, Writ Petition (C) No. 4807 of 2010, Writ Petition (C) No. 4828 of 2010, Writ Petition (C) No. 4987 of 2010, Writ Petition (C) No. 5077 of 2010, Writ Petition (C) No. 5094 of 2010, Writ Petition (C) No. 5156 of 2010, Writ Petition (C) No. 5258 of 2010, Writ Petition (C) No. 5288 of 2010, Writ Petition (C) No. 5289 of 2010, Writ Petition (C) No. 5291 of 2010, Writ Petition (C) No. 5292 of 2010, Writ Petition (C) No. 5333 of 2010, Writ Petition (C) No. 5334 of 2010, Writ Petition (C) No. 5535 of 2010, Writ Petition (C) No. 5549 of 2010, Writ Petition (C) No. 5816 of 2010, Writ Petition (C) No. 7792 of 2010
Decided On : 12-04-2019
For the Appellant : M/S. C. Ananda Rao M/S. B.K. Sharma Mr. D.K. Sharma, M/S. C. Ananda Rao, M/S. M.K. Mohapatra M/S. C. Ananda Rao, Mr. Jagjit Panda, M/S. P.K. Rath, M/S. C. Ananda Rao M/S. S.K. Dash, M/S. D.R. Bhokta, M/S. B. Muduli, M/S. P.K. Nanda, M/S. D.R. Bhokta, M/S. S. Mohanty, M/S. P.K. Nanda, M/S. S. Mohanty M/S. S.K. Mishra, M/S. D.K. Bhokta, MD. G. Madani, M/S. B. Pujari MD. G. Madani, M/S. D.R. Bhokta M/S. A.K. Nanda, M/S. D.R. Bhokta, M/S. P.K. Parhi, M/S. D.R. Bhokta, M/S. S.K. Dash, M/S. S. Mohanty, M/S. D.R. Bhokta, M/S. D.P. Dhal, M/S. D.R. Bhokta, Mr. Jagjeet Panda, Mr. Jagjit Panda, M/S. D.R. Bhokta M/S. G.N. Mishra M/S. G. Mohanty M/S. A.K. Nanda Mr. S. Mishra-1 Mr. S. Mishra, M/S. D.R. Bhokta, M/S. S.B. Sahoo, M/S. P.K. Rath, M/S. T.K. Mishra M/S. D.R. Bhokta M/S. S. Mohanty M/S. P.K. Nanda,
For the Respondent:Mr. B. P. Pradhan, Additional Government Advocate (for State of Orissa)
The Amendment Regulation, 2000 will have a prospective effect, and any amendment made to the Act will have a prospective effect unless expressly provided or by necessary implications made retrospective.
Headnote:
Fraudulent Land Transaction - Orissa Scheduled Areas Transfer of Immovable Property (By Scheduled Tribes) Amendment Regulation, 2000 - Section 3(1) and 3(B)
Fact of the Case:
The petitioner challenged the proceedings initiated in OSATIP Case Nos.1116 of 2005 to 1126 of 2005 and the final order dated 07.10.2006, which reverted the land to the original tribal owners. The petitioner also challenged the provisions under Section 3(1) and 3(B) of the Orissa Scheduled Areas Transfer of Immovable Property (By Scheduled Tribes) Amendment Regulation, 2000 and prayed to declare the same as ultravires to the Constitution of India.
Finding of the Court:
The court held that the Amendment Regulation, 2000 will have a prospective effect and directed the authority to reconsider the cases of the petitioners and pass appropriate orders. The impugned order was set aside and the matter was remitted back to the authority for further consideration.
Issues: The issues involved were the validity of the proceedings initiated in OSATIP Case Nos.1116 of 2005 to 1126 of 2005, the final order reverting the land to the original tribal owners, and the challenge to the provisions under Section 3(1) and 3(B) of the Amendment Regulation, 2000.
Ratio Decidendi: The Amendment Regulation, 2000 will have a prospective effect and will be applied to transactions made on or after the date of publication. The court also emphasized that any amendment made to the Act will have a prospective effect unless expressly provided or by necessary implications made retrospective.
Final Decision: The impugned order was set aside, and the matter was remitted back to the authority for reconsideration. The possession of the petitioners was not to be disturbed until the matter was heard by the authority.
JUDGMENT :
K.S. Jhaveri, J.
Since the issues involved in all the writ petitions are similar, as agreed upon by learned counsel for the parties, those are taken up together for analogous hearing and are disposed of by a common judgment. For the sake of convenience of discussion, W.P.(C) No.14733 of 2006 is taken up as the leading case.
2. By way of the writ petition, the petitioner has challenged the entire proceedings initiated in OSATIP Case Nos.1116 of 2005 to 1126 of 2005 and the final order dated 07.10.2006 (Annexure- 11) passed therein by the Sub-Collector, Jeypore-opposite party no.3, holding the transaction of land is fraudulent and reverting the same to the original tribal owners. The petitioner has also challenged the provisions under Section 3(1) and 3(B) of the Orissa Scheduled Areas Transfer of Immovable Property (By Scheduled Tribes) Amendment Regulation, 2000 (hereinafter referred to as "the Amendment Regulation, 2000") and has prayed to declare the same as ultravires to the Constitution of India.
3. The facts of the case as stated in the writ petition in a nutshell are that on 02.01.2003, the petitioner and his family members had purchased the case land from the vendors (general caste) and the case land was mutated in their names and the R.O.Rs were corrected accordingly vide Annexure-1 and 2 series. The vendors of the petitioner had originally purchased the case land from the tribal owners after obtaining due permission and following due procedure of laws as required under regulation 2/1956, from the then competent authority in the year 1984 to 1989. After purchasing the case land, the vendors mutated the same in their names and paid rent regularly. After mutation of case land, RORs were corrected vide Annexures-3 and 4, 5 & 6 series).
Subsequently, on 25.3.2005, the case lands were sold by the petitioner and his family members to M/s. Sri Sai Rameswar Solvents Pvt. Ltd., represented by the petitioner as Managing Director and the lands were mutated in the name of the Company and R.O. Rs were corrected accordingly vide Annexures-7 & 8 series. However, on filing of information regarding details of purchase of land by the petitioner and his family members and occupation of land in the prescribed form (Form-2) supported by affidavit as required under Section 3-B of Amended Regulation 2000 under Annexure-9 series, the Sub-Collector, Jeypore initiated eleven cases against the petitioners i.e. OSATIP No.1116/05 to 1126/2005 and issued notice to appear on 06.06.2006, which was served on 07.06.2006 (Annexure-10 series). It is stated that on different dates the cases were taken up in the absence of the petitioners or without issuing notice to the petitioners. And finally, the Sub-Collector passed the impugned order dated 07.10.2006 at Annexure-11, reverting the case land to the original tribal owners. For ready reference, the said order dated 07.10.2006 is quoted hereunder:
"The case is taken up today. I have examined Mangaru Kandha, Sukuru Kandha, Ramanidhi Samarath villagers of Murtahandi & Tima Kutuka, Rukuna Mahuka, Jami Mahuka, Indra Mahuka, Lima Nachika and Ketu Mahuka of Kachiakanadi village. All are related to the transactions of suit land. The statements of them are attached to the case record. From statements of all one thing revealed that Judhistir Samantray was a Contractor who motivated the tribals and tried to fetch a sizeable chunk of land in a single patch. For the same purpose he first purchased tribal lands in the name of Sadhaba Samaratha and later on could be able to regularize the same by obtaining permission. Sri Ramanidhi Samarath revealed that some land was also purchased in his name. Since the informant could not produce Sri Judhisir Samantray and the connected records. This could not be examined. But the fact is corroborated that the vendors and their legal heirs are aware of the fact that they knew only Judhistir Samantray and not Sadhab or Ramanidhi Samarath. This Sadhab Samarath belong to village M
