The court established that the provisions of the Regulations applied to all types of immovable properties of a member of the scheduled tribe community in a scheduled area, without distinction between urban and rural areas or agricultural and non-agricultural land.

JUDGMENT

K.R. Mohapatra, J. - The Petitioners, in this writ petition, pray for setting aside the order dated 30th September, 2019 (Annexure-4) passed by the Tahasildar, Barbil-Opposite Party No. 3 in Land Holding Certificate Case No. 6 of 2019 and also to direct the Tahasildar, Barbil to issue Land Holding Certificate in their favour for sale of immovable property recorded in the name of their predecessor, namely, Jogeswar Nayak.

2. It reveals from the averments made in the writ petition that the petitioners are members of Scheduled Tribe community and successors of one Jogeswar Nayak, who was the owner in possession of Plot No.1000/2646 to an extent of Ac. 0.030 decimals and Plot No.1000/2257 to an extent of Ac.0.050 decimals under Khata No. 458/655 Kissam Taila- II of Village- Barbil, Word No. 7, under Tahasil-Barbil in the district of Keonjhar (for short 'the case land'). The case land is the self-acquired property of said Jogeswar Nayak. In order to meet the expenses of treatment of petitioner No.6, the widow of Jogeswar and mother of petitioner Nos.1 to 5, the petitioners applied for a Land Holding Certificate under the provisions of Orissa Scheduled Area Transfer of Immovable Properties (by Scheduled Tribes) Regulations, 1956 (as amended by Regulation 1 of 2000) (for short 'Regulations'). The same was refused vide order dated 30th September, 2019 (Annexure-4) on the ground that the total extent of land owned by the petitioners is less than 5 acres, which does not satisfy the requirement under Clause (iii) of the Proviso to Section 3(1) of the Regulations for grant of Land Holding Certificate. Being aggrieved by the said order under Annexure-4, the petitioners have filed this writ application.

3. Mr. Mohanty, learned counsel for the petitioners submits that the predecessor of the petitioners, namely, Jogeswar was working as Field Officer in MMTC Ltd. The case land is the self-acquired property of said Jogeswar, which is situated in Barbil town. It is not an agricultural land. Thus, the provision under Clause (iii) of Proviso to Section 3(1) of the Regulations is not applicable to the case land. Section 3(1) of the Regulations provides that alienation of land to a non-scheduled tribe person shall be null and void. Further, Section-4 of the said Regulations makes a deed of transfer inadmissible for registration, if the same is made in contravention of the provisions of Regulations. The petitioners intended to alienate the case land to meet with the expenses of treatment of petitioner No.6. Hence, they made an application for issuance of Land Holding Certificate. It is his submission that the Regulations are made to control and check the alienation of immovable properties in the scheduled areas, in order to prevent fraud and to protect the members of the scheduled tribe community from exploitation. The provisions of the Regulations cannot be intended to harass and prejudice the members of the scheduled tribe community. In the case at hand, the impugned order under Annexure-4 has immensely prejudiced the petitioners, as the ground on which the Land Holding Certificate has been refused runs contrary to the object of the Regulations. Although the provisions of the Regulations are not applicable to the instant case, but due to the restrictions, as stated above in the said Regulations, the petitioners were constrained to apply for the Land Holding Certificate for alienation of the case land. He, therefore, prays for the aforesaid relief.

4. Mr. Mishra, learned Government Advocate, on the other hand, submits that irrespective of the fact that the immovable property owned by the members of the scheduled tribe community in a scheduled area is not used for agriculture and is situated in an urban area; the provisions of the Regulations are applicable to alienation of such immovable property. As such, the contentions raised by Mr. Mohanty, learned counsel for the petitioners have no force and are not sustainable in law.

5. Heard learned cou