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2023 Supreme(Online)(ORI) 901
ORISSA HIGH COURT
ABHIMANYU MALLIK – Appellant
Versus
COLLECTOR, GANJAM – Respondent
WP(C)/35313/2022
The competent authority under the Odisha Regulation 2 of 1956 loses jurisdiction once an order for restoration of possession is passed, and no mandamus can be issued to compel further action.
Headnote:
ORISSA REGULATION 2 OF 1956 - RESTORATION OF POSSESSION - MANDAMUS
Fact of the Case:
Petitioner sought a writ of mandamus against public authorities for failing to complete the discharge of a direction passed under the Odisha Regulation 2 of 1956, which ordered the restoration of possession of land to a tribal member.
Finding of the Court:
The court found that the competent authority had already passed an order for restoration of possession in favor of the petitioner and that the Regulation 2 of 1956 provided ample mechanisms for the eviction of unauthorized occupiers involving Scheduled Tribe members.
Issues: Whether mandamus could be issued to compel the public authorities to complete the discharge of the direction for restoration of possession.
Ratio Decidendi: The court held that once an order for restoration of possession is passed under Section 3 of the Regulation 2 of 1956, the competent authority loses jurisdiction and no further interference is permissible. The court also noted that the Regulation provides mechanisms for eviction of unauthorized occupiers, including punishment for non-compliance.
Final Decision: The court dismissed the writ petition, observing that the petitioner could avail remedies through the provisions of the Regulation 2 of 1956.
Page 1 of 6
ORISSA HIGH COURT : C U T T A C K
W.P.(C) NO.35313 OF 2022
An application under Articles 226 & 227 of
the Constitution of India.
Abhimanyu Mallik
: Petitioner
-Versus-
Collector, Ganjam & Ors. : Opposite Parties
For Petitioner
: Mr.B.N.Mohapatra, Adv.
For O.Ps.
: Mr.U.K.Sahoo,ASC
J U D G M E N T
CORAM :
JUSTICE BISWANATH RATH
Date of Hearing & Judgment : 03.01.2023
1.
This is a Writ Petition seeking mandamus against the
public authority for failing to complete discharge of the
direction passed by the competent authority under the provision
of Odisha Regulation 2 of 1956.
2.
This Court here records the submission of Mr.Sahoo,
learned State Counsel and looking to the provision at Section 3
of the Regulation 2 of 1956, once there is order under Section
3 for restoration of possession, the competent authority loses
his jurisdiction and such order should be construed to be in
// 2 //
Page 2 of 6
restoration of possession of the land in favour of the tribe
member. It is contended for there is no other provision under
the statute to interfere in any situation thereafter, no mandamus
can be issued. It is thus contended Petitioner if has any other
option may avail the same.
3.
This Court finds the provision of Section 3 of the
Regulation 2 of 1956 reads as follows:-
3. Transfer of immovable property by a member of
the Schedule Tribe- (1) Notwithstanding anything
contained in any law for the time being in force any
transfer of immovable property by a member of a
Scheduled Tribe, except by way of mortgage executed
in favour of any public financial institution for securing
a loan granted by such institution for any agricultural
purpose, shall be absolutely null and void and of no
force or effect whatsoever, unless such transfer is
made in favour of another member of a Scheduled
Tribe:
Provided that-
(i) nothing in this sub-section shall be construed as to
permit any member of a Scheduled Tribe or his
successor-in-interest
to
transfer
any
immovable
property which was settled with such member of
Scheduled Tribe by or under any authority of the State
or the Central Government or under any law for the
time being in force;
(ii) in execution of any decree for realization of the
mortgage money, no property mortgaged as aforesaid
shall be sold in favour of any person not being a
member of a Scheduled Tribe; and
(iii) a member of a Scheduled Tribe shall not transfer
any land if the total extent of his land remaining after
the transfer will be reduced to less than two acres in
case of irrigated land or five acres in case of
unirrigated land.”
4.
Looking to the provision this Court finds, there is only
authorization to the competent authority to determine the
dispute involving restoration of the land and manner prescribed
// 3 //
Page 3 of 6
therein. Looking to the order taken support by the Petitioner
also claims to have been confirmed in W.P.(C) No.17399 of
2011 and Writ Appeal No.661 of 2019, this Court finds the
order contains clear direction as follows:-
“This case is taken up today. Bhima Mallik
is present on behalf of the 1st party. Learned
Advocate for the respondent appeared and
moved a petition praying for an adjournment.
Perused the case record. It is revealed that so
many adjournments have been allowed in this
case. But the respondent has not filed any
documentary evidence and show cause as yet.
The case land has been purchased by one
Kandha Suara S/O- Dandapani Suara, Caste
Brahmin
vide
R.S.D.
No.1329
Dated
30.08.1957 after the appointed date i.e.
4.10.1956 in contravention of U/s. 3(1) of the
Orissa Regulation 2 of 1956. Prior to sale
transaction is made, no permission has been
obtained from the competent authority. The
purchaser or the present occupant of the case
land have also not filed statement of return
filed the stipulated period i.e. from 08.09.03 to
07.09.05. As such it
