Orissa High Court
Soda Bhotra And Others vs Add. Dist. Magistrate on 31 October, 2022
AFR IN THE HIGH COURT OF ORISSA CUTTACK
W.P.(C) No.2463 of 2007
In the matter of an application under Articles 226 & 227 of the
Constitution of India.
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Soda Bhotra and others .... Petitioners
Versus
Add. Dist. Magistrate,Koraput & Ors. .... Opposite Parties
For Petitioners ... Mrs.P.P.Mohanty Advocate
For Opposite Parties ... Mr. U.K.Sahoo, Additional
Standing Counsel
JUDGMENT
PRESENT:
THE HONOURABLE JUSTICE BISWANATH RATH
Date of Hearing and Judgment: 31.10.2022
Biswanath Rath, J. In spite of notice on the private Opposite
Parties, nobody is appearing. Heard learned counsel for the Petitioners as
well as learned counsel for the State.
2. The Writ Petition involves confirming orders vide Annexures- 1 &
2 passed by the competent authority under the provision of Regulation 2
of 1956 Act. Through the pleading in the Writ Petition Mrs. Mohanty,
learned counsel for the Petitioners raises a point of law reading through
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the provisions at Regulation 3 of the 1956 attacking the institution of
the proceeding involved herein itself for both the parties involved herein
belonging to Schedule Tribe and submitted the institution of proceeding
itself bad in law.
Reading through the provision at Regulation 3 of 1956, both the
provisions at Sub-Section(1) & (2) of the Regulation 1956, an attempt is
made by Mrs. Mohanty, learned counsel for the Petitioners that once the
parties involved belong to Schedule Tribe, there is no question of
initiation of such proceeding particularly under the Regulation involved.
3. In the circumstance and for a question of law involved herein
further submission is advanced by Mrs. Mohanty, learned counsel for the
Petitioners saying even though such a plea was not taken in the forum
below however a point of law even raised at this stage can be adjudicated
and in the above background Mrs. Mohanty, learned counsel for the
Petitioners request for interference in both the impugned orders
Annexures-1 & 2 and setting aside the both.
4. Mr.Sahoo, learned Additional Standing Counsel however reading
through both the orders contested on the entertainability of the Writ
Petition on the premises that none of the forums involved the question
raised by the Petitioners herein, therefore there should be restriction in
challenging the impugned orders on absolutely surprising ground in a
Writ Petition and thus requests for dismissal of the Writ Petition. There
is however no dispute that both the private parties involve herein belong
to Tribe.
5. Considering the rival contentions of the Parties, this Court finds
the moot question required to be decided herein looking to the
provisions made in Regulation 3 of the 1956 and since both the parties
belonging to schedule tribes, if the proceeding vide OSATIP Case
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No.12 of 1995 was maintainable ? Keeping in view contest of the
Parties through a common provision of law, this Court here takes into
account the provision at Regulation 3(1) and 3(2) read as follows:-
3. Transfer of immovable property by a member of the
Scheduled Tribe-(1) Notwithstanding anything contained in any law
for the time being in force any transfer of immovable property by a
member of 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
successors-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.
(2) Where a transfer of immovable property is made in
contravention of Sub-section (10 the competent authority may,
either on application by anyone interested therein or on
information received from the Grama Panchayat or on his own
motion and after giving the parties, an opportunity of being
heard, order ejectment against any person in possession of the
property claiming under the transfer and shall cause restoration
of possession of such property the transferor or his heirs. In
causing such restoration of possession the competent authority
may take such steps as may be necessary for securing
compliance with the said order or preventing any breach of
peace.
Provided that if the competent authority is of the opinion that
the restoration of possession of immovable property to the
transferor or his heirs is not reasonably practicable, he shall
record his reasons thereof land shall, subject to the control of
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the State Government settle the said property with another
member of Scheduled Tribe in the absence of any such member
with any other person in accordance with the provisions
contained in the Odisha Government Land Settlement Act, 33
of 1962."
Reading through the aforesaid provisions there remain no doubt
that occasion for instituting proceeding under such regulation arises only
when there is occupation of a tribe property by a non-tribe and even
involving any transaction at the instance of the tribe against non-tribe.
There is clear material disclosing both private parties belong to tribe
community and thus Petitioners get support to their case through
Regulation 3 herein.
5. In the circumstance this Court finds there is force in the
submission of learned counsel for the Petitioners that the original
proceeding involved herein was not entertainable in the eye of law. This
Court accordingly interferes in the order at Annexure-1 & 2 and sets
aside the same.
6. The Writ Petition succeeds. No order as to cost.
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BISWANATH RATH, J.
Orissa High Court, Cuttack.
Dated the 31st day of October, 2022/Swarna, Junior Stenographer
