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Somnath Sipka Vs. State of Orissa and ors. - Court Judgment

LegalCrystal Citation
SubjectCommercial
CourtOrissa High Court
Decided On
Case NumberOriginal Jurisdiction Case No. 1676 of 1980
Judge
Reported inAIR1985Ori100
ActsOrissa Land Reforms Act, 1960 - Sections 22(3); Orissa Public Demands Recovery Act, 1963 - Sections 6
AppellantSomnath Sipka
RespondentState of Orissa and ors.
Appellant AdvocateC.V. Murty and ;C.A. Rao, Advs.
Respondent AdvocateAddl. Govt. Adv. and ;P.K. Misra, Adv.
DispositionPetition allowed
Excerpt:
.....shape of court-fees and from the return filed by opposite parties 1 to 5, it is further apparent that all the certificate dues against the petitioner have been adjusted out of the bid amount the certificate officer passed an order on 20-5-1978 to the effect that the certificate of sale would be issued to the highest bidder after obtaining necessary formal permission from the revenue officer & s. the legality of this order was challenged unsuccessfully by way of an appeal and the appellate authority confirmed the order of the certificate officer as per annexure-6 and a revision against the same was also dismissed. 5 prior to issuance of certificate of sale and prior to getting permission from the competent authority as contemplated under section 22 of the, orissa land reforms act, as..........of sale would be issued to the highest bidder after obtaining necessary formal permission from the revenue officer & s. d. o., tetilagarh. he, however, directed that in the meantime delivery of possession be given to the highest bidder. the legality of this order was challenged unsuccessfully by way of an appeal and the appellate authority confirmed the order of the certificate officer as per annexure-6 and a revision against the same was also dismissed. opposite party no. 5 filed an affidavit in this court stating that possession of the lands has been delivered to him, obviously in pursuance of the order of the certificate officer, referred to earlier. 3. mr. murty, the learned counsel for the petitioner, contends that the auction purchaser (opposite party no. 5) not being a person.....
Judgment:

G.B. Patnaik, J.

1. Petitioner, a person belonging to the Scheduled Caste, has impugned in this writ petition the orders of the Certificate Officer, the Additional District Magistrate exercising the appellate power and the Revenue Divisional Commissioner, Northern Division, exercising revisional power, annexed as Annexures 1, 6 and 10 respectively to the writ petition in respect of a certificate proceeding started against the petitioner.

2. To appreciate the contentions raised by the petitioner, it is necessary to briefly state the facts. Petitioner had taken some money as agricultural loan and the amount of loan was recoverable as land revenue in accordance with the procedure laid down in the Orissa Public Demands Recovery Act. Certificate proceedings were instituted for realisation of the amount due on the petitioner and as required under the provisions of Section 6 of the said Act, due notice was issued and served on the petitioner. But notwithstanding due service of notice, petitioner did not take any steps nor file any petition denying his liability. Thereafter the properties of the petitioner were attached and sale proclamation was issued for sale of the petitioner's holding No. 112 by public auction. But on the date fixed auction could not be held and, therefore, as fresh proclamation was issued. Even on the next date, the sale could not be held. On 7-11-1977, petitioner himself filed a petition requesting the Certificate Officer to put all his lands in holding No. 112 of village Sahajpani to sell by public auction and the amount received be utilised for adjusting all the certificate dues against him. In accordance with the said request, a fresh proclamation of sale by public auction was issued on 27-12-1977 fixing 10-2-1978 as the date of auction in the office of the Revenue Inspector, Bongamunda. This proclamation was published in village Sahajpani and a copy of the same was also served on the petitioner. The property in question was put to auction on 10-2-1978 as scheduled and even the petitioner himself was present at the time ot auction. This fact has been asserted by the Tahsildar who has filed the counter affidavit in this case on behalf of opposite parties 1 to 4. Opposite party No. 5 became the highest bidder, the bid amount being Rs. 10,000/-. Thereafter, petitioner filed a petition that the properties to put to re-auction, but the said petition was rejected. The highest bidder (opposite party No. 5) deposited the entire amount as well as the poundage fee in shape of Court-fees and from the return filed by opposite parties 1 to 5, it is further apparent that all the certificate dues against the petitioner have been adjusted out of the bid amount The certificate officer passed an order on 20-5-1978 to the effect that the certificate of sale would be issued to the highest bidder after obtaining necessary formal permission from the Revenue Officer & S. D. O., Tetilagarh. He, however, directed that in the meantime delivery of possession be given to the highest bidder. The legality of this order was challenged unsuccessfully by way of an appeal and the appellate authority confirmed the order of the Certificate Officer as per Annexure-6 and a revision against the same was also dismissed. Opposite party No. 5 filed an affidavit in this Court stating that possession of the lands has been delivered to him, obviously in pursuance of the order of the Certificate Officer, referred to earlier.

3. Mr. Murty, the learned counsel for the petitioner, contends that the auction purchaser (opposite party No. 5) not being a person belonging to the Scheduled Castes or Scheduled Tribes and the petitioner being a person belonging to the Scheduled Castes, the sale of his property without the written permission of the Revenue Officer is void under Sub-section (3) of Section 22 of the Orissa Land Reforms Act and, therefore, opposite party No. 5 does not derive any title on the basis of the said sale and the order of the Certificate Officer in Annexure-1 must be struck down on that ground. Mr. Misra, the learned counsel for opposite party No. 5, however, contends that Sub-section (3) of Section 22 of the Orissa Land Reforms Act has no application since the property in question has not been sold in execution of a decree but in a certificate proceedings. It is difficult to accept the contention of Mr. Misra, the learned counsel for opposite party No. 5, since a certificate is in the nature of decree and under law has the effect of a decree and a proceeding before the Certificate Officer is in the nature of an execution proceeding. That apart, Sub-section (3) of Section 22 of the Act is there on the statute with the obvious object of protecting the property of the weaker sections of the society (i.e. Scheduled Castes and Scheduled Tribes) from exploitation by the higher class and there is no justification as to why in construing that provision, a sale of property in a certificate proceeding will not be included therein. Section 22(1) makes a sale void excepting in cases provided for in Clauses (a) and (b) thereof. Sub-section (3) of Section 22 is an injunction against the authorities not to sell without prior permission even in execution of a decree unless the person who is purchasing is also a Scheduled Caste or Scheduled Tribe man. As it appears from Annexure-1, the Certificate Officer himself was quite aware of this position and, therefore, ordered that the certificate of sale would be issued only after obtaining necessary formal permission from the Revenue Officer S. D. O. Thus, the subsequent part of the order of the Certificate Officer directing delivery of possession to the highest bidder even prior to the receipt of the requisite permission must be held to be contrary to law. While, therefore, we do not find any legal infirmity in the certificate proceedings, inasmuch as all the requirements of law have been duly complied with, we hold that the direction of the Certificate Officer asking the Revenue Inspector, Bongamunda, to give, delivery of possession to the highest bidder (opposite party No. 5) is illegal and inoperative and that part of the order in Annexure-1 is, therefore, struck down. The order of the appellate authority (annexure-6) conforming that part of the order of the Certificate Officer must also be held to be invalid and is also struck down.

4. In the result, therefore, we direct that the order directing delivery of possession to opposite party No. 5 prior to issuance of certificate of sale and prior to getting permission from the competent authority as contemplated under Section 22 of the, Orissa Land Reforms Act, as well as the possession of opposite party No. 5 is not in accordance with law and the certificate proceeding to that extent has become vitiated. While, therefore, holding that the certificate proceeding was in accordance with law, we direct that the proceeding be relegated to the position as it was on 20-5-1978 and we further direct that the Certificate Officer would take all subsequent actions after complying with Section 22(3) of the Orissa Land Reforms Act and till then the petitioner must be put in possession of the property. The writ application is accordingly allowed to the extent as directed above, but in the circumstances, there will be ho order for costs.

P.C. Misra, J.

5. I agree.


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