The transfer of land mortgaged to a Scheduled Bank is exempt from restrictions under Section 22 of the OLR Act, allowing the Petitioner to effectuate a valid mutation as auction purchaser.

JUDGMENT :

B.P. Routray, J.

1. Heard Mr. A. Das, learned counsel for the Petitioner, Mr. T. Sahu, learned counsel for Opposite Party No.4 (Bank) and Mr. S. Ghose, learned AGA for State – Opposite Parties.

2. The order of the Tahasildar under Annexure-4, confirmed in appeal by the Sub-Collector under Annexure-5, rejecting the prayer of the Petitioner for mutation is challenged in the present writ petition.

3. The admitted facts remain that the Petitioner is the auction purchaser of the case land, i.e. Plot No.644 measuring Ac.0.24 dec. under Khata No.243/193 of Mouza Palasa, in terms of the provisions of the SARFAESI Act. The Sale Certificate is at Annexure-3. After the deed of certificate executed between the bank (O.P. No.4) and the Petitioner under Annexure-1, the Petitioner applied for mutation of the case land in his favour and the Tahasildar by the impugned order held that since the land was belonging to a scheduled caste person, execution of the sale deed is hit by the provisions contained in Section 22 (1) of the OLR Act without and in absence of written permission from the competent authority. The matter was then carried in appeal to the court of Sub- Collector who also confirmed the order of the Tahasildar taking the same view. Both the orders of the Tahasildar and Sub-Collector are subject matter of challenge here.

4. Section 22 of the OLR Act reads as under:-

“22. Restriction on alienation of land by Scheduled Tribes.

(1) Any transfer of 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:

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 restrictions 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 law for 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, (16 of 1908) purports to effect transfer of a holding or part thereof by a raiyat belonging to a Scheduled Tribe, in favour of a person not belonging to a Scheduled Tribe, no Registering Officer appointed under that Act shall register any such documents, unless such documents is accompanied by the written permission of the Revenue Officer for such transfer.

(5) The provisions contained in Sub-section (1) to (4) shall apply mutatis mutandis, to the transfer of a holding or part thereof a raiyat belonging to the Scheduled Caste.

(6) Nothing in this section shall apply –

(a) to any sale in execution of a money decree passed, or to any transfer by way of mortgage executed, in favour of any Scheduled Bank or in favour of any Bank to which the Orissa Co-operative Society Act, 1962 (2 of 1963) applies; and

(b) to any transfer by a member of a Scheduled Tribe within a scheduled area.]”

5. A bare reading of Clause (a) of Sub-section (6) of Section 22 reveals that any transfer made by way of mor