IMPORTANT POINT
A member of a Scheduled Tribe does not lose her status as a member of ST upon marrying a non-ST member, and the explanation added to the Regulation in 1976 is substantive, not clarificatory, thus not retroactively applicable.

JUDGMENT

Chakradhari Sharan Singh, CJ.

The present intra-Court appeal has been filed under Clause 10 of the Letters Patent Appeal of the High Court of Patna read with Clause 4 of the Orissa High Court Order, 1948 assailing an order dated 18.10.2000 passed by a learned Single Judge in a writ petition i.e. OJC No.4774 of 1999 whereby a learned Single Judge of this Court has quashed an order dated 30.01.1993 passed by the respondent No.4, whereby he had declared a sale deed dated 19.03.1964 as void with a direction for restoration of the land in favour of the appellant herein.

2. The foundational facts relevant for adjudication of the present case are not all in dispute. The appellant is a member of the Schedule Tribe (in short, 'ST'). Her father-in-law, also a member of the ST owned an immovable property admeasuring 6.47 acres (in short 'land in question'). The appellant had made an application before respondent No.4 with an allegation that the land in question was under unlawful occupation of respondent No.6 (not a member of ST). In a proceeding under the provisions of the Orissa Scheduled Areas Transfer of Immovable Property (by Schedule Tribes) Regulation, 1956 (hereinafter referred to as 'the Regulation') the respondent No.6 denied the allegation with a plea that his father-in-law, a member of ST, had purchased the land in the name of his daughter respondent No.7 who was married to him (respondent No.6) and requisite permission from the competent authority in that regard was obtained. He produced an attested copy of the permission order No.13434/79 issued in OSATTP Case No.37/1979 of 21.11.1979 in respect of Plot No.139 under Khata No.65/5 in village Similiguda admeasuring 2.79 acres. Respondent No.6 claimed himself to be a member of ST which was found by the respondent No.4 to be untrue. Respondent No.4 concluded, in his order dated 30.01.1993 that the permission order No.13434/79 issued in OSATTP Case No.37/1979 on 21.11.1979 was incompetent to validate the registered sale deed dated 19.03.1964. He also concluded that respondent No.7, in whose name the land in question was purchased, ceased to be a member of the ST for the purpose of Regulation 2 of the Regulation consequent upon her marriage to respondent No.6, not a member of ST. Respondent No.4 accordingly held that respondent No.6 had grabbed the land of a member of ST fraudulently taking advantage of simplicity, ignorance and illiteracy of the vendor. Accordingly, respondent No.4 had directed for restoration of the land in favour of the appellant after declaring the said registered sale deed dated 19.03.1964 executed in favour of respondent No.7 to be void. While directing correction of the records accordingly, respondent No.4 imposed penalty on respondent No.6 @ Rs.200/- per acre per year of unauthorized occupation.

3. Challenging the said order dated 30.01.1993, respondent Nos.1, 2 & 3 approached this Court by filing the aforesaid writ petition i.e., OJC No.4774 of 1999. By the impugned order dated 18.10.2000, the learned Single Judge allowed the writ petition setting aside the order passed by the respondent No.4, taking into account the admitted fact that respondent No.7 was admittedly a member of ST. As has been noticed above, the respondent No.4 had set aside the sale deed invoking Section 3(1) of the Regulation on the ground that respondent No.6 ceased to be a member of the ST after her marriage to respondent No.6 (since deceased). The learned Single Judge opined in the impugned order that merely by virtue of marriage to a non-member, a member of the ST does not cease to be a member of the ST and therefore, no permission was required for the transaction made in the year 1964. A submission was advanced before the learned Single Judge that the transaction was Benami inasmuch as the property was purchased by the father of respondent No.6 in the name of respondent No.7. The learned Single Judge found that father of respondent No.7, in any case, was a member of a ST.

4. A