Sangeeta Prusty vs State Of Odisha & Ors
2023 Latest Caselaw 2238 Ori

          ORISSA HIGH COURT : C U T T A C K
                        W.P.(C) NO.1955 OF 2023
                  An application under Articles 226 & 227 of
                       the Constitution of India.


Sangeeta Prusty                                    : Petitioner

                               -Versus-

State of Odisha & ors.                             : Opposite Parties



      For Petitioner                  : M/s.A.K.Pradhan, S.K.Swain
                                        & A.Ray, Advs.

      For O.Ps.1 to 3                 : Mr.S.Mishra, ASC

      For O.P.4                       : M/s.R.K.Swain &
                                        A.Nayak, Advs.

                               JUDGMENT

CORAM :

JUSTICE BISWANATH RATH

Date of Hearing & Judgment : 20.03.2023

1. The Writ Petition involves the following prayer :-

"In the aforesaid circumstances, it is humbly prayed that your lordship would be graciously pleased to admit the petition, call for the L.C.R. from the Court below, issue a Rule "NISI" calling upon the opp. parties to show cause as to why the O.L.R. Appeal bearing No.15 of 2022 pending in the Court of Ld.A.D.M.(Rev.), Cuttack shall not be quashed in view of the affidavit and undertaking is given by the opp. party No.4 on 18.12.2020 by himself and being authorised by others.

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If the Opp.Parties fail to show cause or show insufficient cause, the said rule may kindly be made absolute..."

2. Factual background involved herein, the Petitioner purchased

a piece of land from one Iswar Chandra Dalai, vide Registered Sale Deed

dated 22.11.2022 and got the land mutated in her name in the year, 2003.

It appears, while she was in peaceful possession in the year 2014 while

attempting to construct her first floor, the father of O.P.4 initiated a

proceeding under the provision of Section 144(2) of the Cr.P.C. on the

premises of illegal encroachment of his land, which proceeding was

dropped directing the father of O.P.4 to approach appropriate forum,

namely, Common Law Forum. It is an outcome of the above direction,

father of O.P.4 preferred OLR Misc. Case No.3 of 2014 alleging

contravention of the provision at Sections 22 & 23 of the OLR Act, which

was dismissed with observation that the Registered Sale Deed remained

operative, as there was no need for permission under Section 22 of the

OLR Act looking to the date of registration of the Sale Deed. Which

order has been challenged in OLR Appeal No.3 of 2016 by the father of

O.P.4 under Section 58 of the OLR Act. In the meantime, father of O.P.4

moved this court, vide W.P.(C) No.14773/2017 in his attempt to obtain

interim order till finalisation of Appeal. Which Writ Petition got disposed

of with direction for timely disposal of Appeal along with an order of

status quo in respect of the disputed property to be maintained by both the

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Parties. Appeal herein above was finally heard and in disposal of the

Appeal, the matter was remitted to the original Authority for fresh

disposal of the OLR Misc. Case No.3 of 2014. In the second attempt,

OLR Misc. Case No.3 of 2014 by reasoned order got dismissed holding

the Petitioner therein did not belong to Scheduled Caste on the date of

execution of Registered Sale Deed and there is clear material establishing

the father of O.P.4 was brought to the fold of Scheduled Caste by

Government Gazette Notification No.61 of 2002 dated 18.12.2002. Being

aggrieved by the aforesaid judgment of the Original Authority, OLR

Appeal No.15 of 2002 has been brought under the provision of Section 58

of the OLR Act. The initiation of such Proceeding is challenged herein,

firstly on the premises that for there is clear material establishing the

father of the contesting O.P.4 was not a Member in the Scheduled Caste

List as per the Presidential Notification available at the relevant time and

secondly, the Sale Deed involved was registered on 22.11.2022, i.e.,

much prior to the date when the father of O.P.4 was brought under the

fold of Scheduled Caste on 18.12.2002.

3. Mr.Swain, learned counsel for the contesting O.P.4 taking this

Court to the grounds raised in the Appeal as well as claim made in OLR

Misc. Case No.3 of 2014 while not disputing that the Sale Deed involved

was registered on 22.11.2002 and the father of O.P.4 herein was brought

to the Scheduled Caste List by way of amendment, a Notification of such

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amendment being published on 18.12.2002 and that there was clear

statement made in the original forum on maintaining of Land Record in

favour of present Petitioner in terms of Registered Sale Deed. However,

taking this Court to the retrospectiveness in the amendment making it

related back to 1979, the first List came into existence, learned counsel

for O.P.4 contended any action taken place in the meantime shall be

declared invalid. In his attempt to satisfy the above contentions, learned

counsel for O.P.4 took this Court to a plethora of decisions submitted

through the list of citations, such as Narayan Behera vrs. State of Orissa

& ors. : 49(1980) CLT 47, Krushna Chandra Bariki vrs. State of Orissa

: 1991(II) OLR 504, Sanatan Mangal vrs. State of Orissa & ors. :

1991(II) OLR 433, Sebati Behera vrs. Subasi Nayak & ors. : AIR 2014

Ori. 190, Janha Satapathy vrs. Satyabadi Behera & ors. : 2016(II) OLR,

81, Alekha Mantri vrs. Jagabandhu Mantri & ors. : AIR 1971 Ori. 127,

Jaisri Sahu vrs. Rajdewan Dubey & ors. : AIR 1962 SC 83,

Tribhovandas Purshottamdas Thakkar vrs. Ratilal Motilal Patel & ors.

: AIR 1968 SC 372, Sant Lal Gupta & ors. vrs. Modern Cooperative

Group Housing Society Ltd. & ors. : 2010 AIR SCW 7184, Safiya Bee

vrs. Mohd. Vajahath Hussain Alias Fasi : AIR 2011 SC 421, Lokanath

Meher & ors. vrs. Panchanan Majhi & ors. : MANU/OR/0072/2016,

RSPL Ltd. vrs. Mukesh Sharma & ors. : MANU/DE/1862/2016 and

Narayani Krishnan vrs. Union of India & ors. : MANU/KE/0154/2021.

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Through all the above decisions, Mr.Swain, learned counsel for O.P.4

contended, once the amendment is brought in the inclusion of Petitioner's

father in Scheduled Caste List in December, 2002, his father became a

Scheduled Caste since the initial inclusion of such Caste in the Scheduled

Caste List.

However, for the involvement of the serious question of law

as to even though the amendment will be relegated back to the date of

initial publication or preparation of the Scheduled Caste List, the action

taken prior to the amendment, if remained invalid, could not be able to

show a single decision invalidating the Registered Sale Deed

undisputedly registered prior to the amendment came into operation even

through any of the decisions cited by him through the List of citations.

4. It is here considering the rival contentions of the Parties, this

Court finds, there is no dispute that the sale transaction taken effect by

virtue of a Registered Sale Deed dated 22.11.2002, whereas the father of

the Petitioner was brought in the Scheduled Caste List on 18.12.2002

much after the execution of the Registered Sale Deed was the subject

matter in the OLR Misc. Case No.3 of 2014. From the Sale Deed at the

instance of father of the Appellant and contesting O.P. herein has clear

confession of father of private O.P. that he belongs to General Caste.

After over a decade, father turns back and claims, he is Scheduled Caste

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and the Sale Deed becomes invalid is nothing but a fraudulent

action/attempt.

5. This apart, on perusal of the order at Annexure-6, this Court

finds, the Original Authority in disposal of OLR Misc. Case No.3 of 2014

finds, the Original Authority came to the following clear findings as well

as recordings of the undertaking/commitment of the contesting O.P.

therein.

"xxx xxx xxx Upon hearing the parties and perusal of case records, the sole issue whether the caste of the petitioner/vendor of RSD 5658, Dt.22/11/2002 "Kaibarta" was scheduled caste on the date of execution of the sale deed so as to require permission U/S 22 of OLR Act for its validity. This issue was decided by this court referring the OJC No.8879 of 1994 and constitutional bench decision of Hon'ble Apex Court reported in AIR 2001 SC 393 (State of Maharastra Vrs. Millind and others (1990) 3 SCC 130 (Meri Chandra Sakhar Rao V. The Dean Seth G.S. Medical College and others and AIR 1995 SC (Kumari Madhuri Patil and another Vrs. Addl. Commissioner Tribal Development and Others). Besides relying upon the decisions of Hon'ble High Court of Orissa in WP(C) No.6097 of 2005 (Kasturi Sahu Vrs. State). OJC Nos.5015 and 5104 of 1994 (Khirod Rout Vrs. Bhakta Charan Meher and others) it is very much clear that the caste Kaibarta was included in the order (the schedule for the state of Orissa) by Central Act No.61 of 2002 published in Gazettee of India Ext. No.73 dated 18/12/2002. Prior to that "Kaibarta" caste was not schedule for the purpose of constitution. On the other hand learned advocate for the substituted petitoners has filed a petition admitting that at the relkevant time when the alleged sale deed was registered Caste, Kaibarta was not enlisted as scheduled caste in the Presidential order and the substituted petitioners will have no objection if the said RSD No.5658 Dt.22/11/2002 will be operative one.

In the view of the above facts & circumstances, it is very much clear that the sale deed in question was not in

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contravention of Section 23 of OLR Act in as much as the caste Kaibarta was not in the Presidential order by the time the said transaction took place.

Hence the case is dismissed."

6. Reading through the above, this Court finds, the order of the

Sub-Collector, Sadar, Cuttack not only based on interpretation of the

issue involved herein through several apex Court decisions as well as

decisions of this Court recorded therein, at the same time, the Original

Authority also recorded the concession of the Advocate of the substituted

Petitioners, who have filed a Petition admitting that relevant point of

time, the alleged Sale Deed got registered the Caste, "Kaibarta" was not

even brought in the List of Scheduled Castes. Further the substituted

Petitioners in the Petition also had a clear desire that they will have no

objection in the event the said Registered Sale Deed will remain

operative. This Court here finds, not only the registration of the Sale

Deed was obtained when the father of the Petitioners therein was not even

a Scheduled Caste meaning thereby there was no attraction of the

provision at Sections 22 and/or 23 of the OLR Act but there is also clear

recording that all the undertakings/commitments of the Petitioner therein,

the legal heirs of the original Vendor, they have no objection in the

operation of the Sale Deed. On a query to the contesting O.P., he has

specifically submitted undisputedly the validation of the Registered Sale

Deed not been assailed otherwise involving any other proceeding. In the

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circumstance, this Court finds, even though there lies an attempt against

the orders of the Competent Authority under Section 58 of the OLR Act,

however, for the clear recording of the reason by the Original Authority

on merit aspect and further recording of the concession by the Counsel

for the Petitioners therein, the contesting O.Ps. herein they are estopped

from bringing an Appeal and the Appeal in the present form, vide OLR

Appeal No.15 of 2022 will be an unnecessary one.

7. Further in the aforesaid circumstance, for there is no

possibility of bringing such Appeal in undertaking such exercise, keeping

such Appeal on toe, there will be not only wastage of time by the

Appellate Authority but there will be also abuse of process of law in

entertainment of such Appeal, For there is clear recording of undertaking

of the Appellant by the Original Authority on their concessions to have

no objection in the operation of the Registered Sale Deed, the private

O.Ps. also completely debarred in bringing such Appeal.

8. This Court here perused the citations cited at the Bar and

finds, when the citations cited by the Petitioner herein as recorded in the

final part of the order in OLR Misc. Case No.3 of 2014, while supporting

the case of the Petitioner herein, each of the decisions filed by the

contesting O.P. does not support the stand of the contesting O.P. in taking

out the validity of the Registered Sale Deed and/or giving any scope in

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interfering with the order of the original Authority involved in the Appeal

involved herein.

9. In the aforesaid circumstance, this Court finds, the Appeal

proceeding remains unsustainable in the eye of law. While declaring the

Appeal bad in law, this Court allows the Writ Petition. There is no order

as to costs.

(Biswanath Rath) Judge

Orissa High Court, Cuttack.

The 20th March, 2023/M.K.Rout, A.R.-cum-Sr.Secy.