Skip to content


Himarika Ramudu and anr. Vs. Kondagorri Buchhanna and anr. - Court Judgment

LegalCrystal Citation
SubjectProperty
CourtOrissa High Court
Decided On
Case NumberO.J.C. No. 723 of 1968
Judge
Reported inAIR1970Ori138
ActsOrissa Scheduled Areas Transfer of Immovable Property (by Scheduled Tribes) Regulations, 1956 - Sections 3(1)
AppellantHimarika Ramudu and anr.
RespondentKondagorri Buchhanna and anr.
Appellant AdvocateN.V. Ramdas, Adv.
Respondent AdvocateStanding Counsel, for Opposite Party No. 2
DispositionApplication dismissed
Cases ReferredState of Punjab v. Bhai Ardaman Singh. These
Excerpt:
.....of the expression 'transfer of immovable property. legislature was well aware that the non-scheduled tribes were exploiting the members of the scheduled tribes and if the matter is left to be determined by the civil court only when a suit is filed, then in most of the cases justice cannot be meted out. law is well settled that under section 9, c. but by express provision in section 3(2) of the regulation the civil court's jurisdiction must necessarily be ousted and this is for obviously good reasons. the latter case deals with matters that a court of limited jurisdiction cannot seize jurisdiction unless the conditions precedent are satisfied. it is the duty of the competent authority to examine the real character of the transaction and even if the real transferee disclaims any..........under section 3(2) of the orissa scheduled areas transfer of immovable property (by scheduled tribes) regulation, 1956 (orissa regulation no. 2 of 1956) (hereinafter referred to as the regulation) and came to the conclusion that though apparently the mortgage deed was executed in favour of petitioner no. 1, it was a camouflage and the real transferee was petitioner no. 2. he accordingly ordered that the disputed land be formally restored to opposite party no. 1. petitioner no. 2 was further directed to pay a penalty of rs. 470/- at, the rate of rs. 80/- per acre by 3-8-68, failing which the sum was to be realised from him by certificate procedure. out of the penalty realised, 40 per cent was to be paid to opposite party no. 1 to compensate him on account of the loss sustained for.....
Judgment:

G.K. Misra, C.J.

1. Petitioner No. 1 and opposite party No. 1 are members of Scheduled Tribe and petitioner No. 2 is a member of a non-Scheduled Tribe. On 5-3-64 opposite party No. 1 executed a registered usufructuary mortgage of the disputed land, 1.48 acres in area, for Rs. 400/- in favour of petitioner No. 1. On 20-11-66 opposite party No. 1 filed an application before the Sub-Collector of Rayagada, opposite party No. 2, complaining that petitioner No. 2 had taken the disputed land on mortgage for a paltry sum of paddy advanced by way of loan and prayed that the disputed land be released from mortgage after adjustment of the dues. No notice was issued on petitioner No. 1 who was not a party to the proceeding. Opposite party No. 2 held an enquiry under Section 3(2) of the Orissa Scheduled Areas Transfer of Immovable Property (By Scheduled Tribes) Regulation, 1956 (Orissa Regulation No. 2 of 1956) (hereinafter referred to as the Regulation) and came to the conclusion that though apparently the mortgage deed was executed in favour of petitioner No. 1, it was a camouflage and the real transferee was petitioner No. 2. He accordingly ordered that the disputed land be formally restored to opposite party No. 1. Petitioner No. 2 was further directed to pay a penalty of Rs. 470/- at, the rate of Rs. 80/- per acre by 3-8-68, failing which the sum was to be realised from him by certificate procedure. Out of the penalty realised, 40 per cent was to be paid to opposite party No. 1 to compensate him on account of the loss sustained for the land during long possession of petitioner No. 2, The writ application has been filed under Articles 226 and 227 of the Constitution challenging the validity of the impugned order as being without jurisdiction.

2. Mr. Ramdas contends that opposite party No. 2 had no jurisdiction to make an enquiry of the aforesaid nature and it is only the Civil Court which has got jurisdiction to declare such a transaction void even assuming that it was a transfer in favour of petitioner No. 2 though apparently it was in favour of petitioner No. 1. This contention requires a careful examination of the relevant sections of the Regulation.

3. The preamble of the Regulation shows that the object in passing such a Regulation was to control and check transfers of immovable property by the Scheduled Tribes in the Scheduled Areas of the State of Orissa. It is not challenged that the disputed lands are situate in a Scheduled area of the State of Orissa. 'Competent Authority' has been defined in Section 2(a) to mean 'the Collector and includes any other officer or officers appointed by the State Government by notification to perform all or any of the functions of a competent authority under this Regulation'. That the S.D.O., Rayagada has been appointed as a competent authority has not been disputed, 'Transfer of immovable property' under Section 2(f) of the Regulation means 'mortgage with or without possession, lease, sale, gift, exchange or any other dealings with such property not being a testamentary disposition and includes a charge or contract relating to such property'. The impugned mortgage was with possession and comes clearly within the definition of the expression 'Transfer of immovable property.'

4. Section 3, so far as relevant, runs thus:--

'3 (1) Notwithstanding anything contained in any law for the time being in force any transfer of immovable property situated within a Scheduled Area, by a member of a Scheduled Tribe shall be absolutely null and void and of no force or effect whatsoever unless made in favour of another member of a Scheduled Tribe or with the previous consent in writing of the competent authority.

(2) Where a transfer of immovable property is made in contravention of Sub-section (1) the competent authority may, either on application by any one interested therein 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 to 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.'

Section 3(1) declares the law. It says that if the transfer is made by a Scheduled Tribe to a non-Scheduled Tribe, then it shall be absolutely null and void. This sub-section is declaratory of the law. But mere declaration would not be sufficient to check illegal transfers made under a camouflage. Legislature was well aware that the non-Scheduled Tribes were exploiting the members of the Scheduled Tribes and if the matter is left to be determined by the Civil Court only when a suit is filed, then in most of the cases justice cannot be meted out. Accordingly provision was made in Section 3(2) vesting power and jurisdiction in the competent authority to make an enquiry as to the real nature of the transaction. Where apparently a transfer is by a member of a Scheduled Tribe in favour of another member of the same Tribe belonging to the Scheduled Area, the transaction is valid and cannot be assailed. More important cases are where the apparent transaction conceals the real nature of the transaction and it is only in such cases that the competent authority would lift the veil and unveil the true character, of the transaction. The power and jurisdiction have been conferred on the competent authority only in such cases. The exercise of this power is not dependent on the filing of an application by a party. The authority can make sup motu an enquiry on his own information. But as this involves determination of civil rights, the enquiry is to be made after giving full opportunities to the parties to be heard.

Law is well settled that under Section 9, C.P.C. the Civil Court has got jurisdiction to decide all matters of civil disputes unless the same is barred either expressly or impliedly. Section 3(2) of the Regulation is an express provision vesting jurisdiction in the competent authority to determine questions of the aforesaid nature, namely, whether the apparent transfer is a real one. Ordinarily such questions are determinable by, a Civil Court. But by express provision in Section 3(2) of the Regulation the Civil Court's jurisdiction must necessarily be ousted and this is for obviously good reasons. The Statute was passed as a beneficial measure to prevent exploitation of a class of people belonging to the Scheduled Tribe. Mr. Ramdas places reliance on AIR 1962 SC 547, Magiti Sasamat v. Punjab Bissoi and 1969 SCC 650 = (AIR 1969 SC 13), State of Punjab v. Bhai Ardaman Singh. These cases have no application to the facts of this case. Those cases decided the elementary proposition that unless the jurisdiction of the Civil Court is expressly barred, it must continue. The latter case deals with matters that a Court of Limited jurisdiction cannot seize jurisdiction unless the conditions precedent are satisfied. These authorities have no application to this case, for jurisdiction has been expressly vested in the competent authority to go into the matter. We, therefore reject the contention of Mr. Ramdas that the issue before the competent authority was triable by the Civil Court and not by the former.

5. There is a great lacuna in this case inasmuch as the ostensible transferee (petitioner No. 1) was not made a party to the proceeding. In his absence his interest could not be jeopardised. The matter was however rectified by petitioner No. 2 examining petitioner No. 1 as a witness in the case. Though he was a witness and knew of the proceeding, he made no application to be made a party. In the circumstances, no prejudice has been caused to him. That rather indirectly establishes that he was not the real owner, but came forward at the behest of petitioner No. 2. Mr. Ramdas rightly did not challenge the maintainability of the application before the competent authority on the ground that petitioner No. 1 was not a party.

6. Section 3(2) also prescribes that it is open to the competent authority to cause restoration of possession to the transferor or his heirs. This is exactly what he has done in this case. Over and above he has imposed a penalty on petitioner No. 2. Section 7(1) of the Regulation is the provision for imposition of penalty. It says,

'7(1) If after the commencement of this Regulation, any person who is not a member of a Scheduled Tribe is found to be in possession of any immovable property in contravention of the provisions of this Regulation, such person shall, without prejudice to his liability to ejectment under Sub-sections (2) of Section 3, be also liable to a penalty for an amount not exceeding one hundred rupees per acre of such immovable property for each year or any part thereof during which his unlawful possession continues. Such penalty may be imposed by the competent authority ordering ejectment under Sub-sections (2) of Section 3 and shall be recoverable as an arrear of land revenue.'

This provision of law has been literally (followed by the competent authority and no exception can be taken thereto.

7. Section 7(2) of the Regulation says,

'If in any proceedings under this Regulation the validity of the transfer or relinquishment of immovable property is called in question, the burden of proving that such transfer or relinquishment was valid shall, notwithstanding anything In any other law for the time being in force, lie on the transferee,'

Mr. Ramdas contended that petitioner No. 2 disowned the transaction and disclaimed any right, title and interest under the mortgage deed, and in that view of the matter he cannot be treated as the real transferee. This contention is wholly untenable. Under the scheme of the Regulation a transfer by a member of the Scheduled Tribe in favour of a member of a non-Scheduled Tribe is wholly null and void. In no case a real transferee would admit that he claims any interest under an ostensible transfer. It is the duty of the competent authority to examine the real character of the transaction and even if the real transferee disclaims any title, it is open to the competent authority on evidence in the enquiry to come to the conclusion that he was the real transferee,

8. On the aforesaid analysis, we are clearly of opinion that the writ application has no merit and is accordingly dismissed, but in the circumstances, without costs.

R.N. Misra, J.

9. I agree.


Save Judgments// Add Notes // Store Search Result sets // Organizer Client Files //