1. Challenge in this application under Article 226 of the Constitution is against the order of the Sub-Divisional Officer (opposite party No. 2) made under Section 23 of the Orissa Land Reforms Act, Petitioner has applied to quash the said order as affirmed in appeal by the Additional District Magistrate and in revision by the Revenue Divisional Commissioner (opposite parties 3 and 4 respectively) by issue of a writ of certiorari.
2. Petitioner is a money-lender. In a proceeding under Section 17 of the Orissa Money-Lenders Act petitioner admitted that he was a transferee of certain lands belonging to opposite party No. 3 under two deeds, one of 1968 and the other of 1973. In view of the fact that the petitioner was not a member of the Scheduled Tribes while the opposite party No. 1 was a member of the Scheduled Tribes and no permission had been taken as provided under the Orissa Land Reforms Act for such alienation, a proceeding under Section 23 of the Act was initiated against the petitioner. The S. D. O. by his order dated 25-10-1976 directed restoration of possession of the property and imposed penalty of Rs. 200/- per acre per each year for the period during which petitioner was in possession of the property. In appeal and revision, petitioner failed to obtain any relief.
3. Two reliefs were claimed in the writ application, (i) the direction for restoration of possession should be quashed and (ii) the imposition of penalty should be set aside. On 17-7-1981, thefollowing order was recorded by a Bench of this Court:--
'Mr. Patnaik for the petitioner makes a statement that the relief in the writ application shall be confined to the question of eligibility of penalty and its quantum. Counsel for the O. Ps. have no objection, in the circumstances, to recall order No. 9. The order is recalled. Substitution as prayed for is allowed.........'
In view of the aforesaid order, at the hearing of the application the question relating to restoration of possession is not agitated. The only question that survives for consideration is about imposition of penalty.
4. As indicated, the documents which have been set aside are of 1968 and 1973 and admittedly petitioner got into possession under these documents. Section 23, as it stood before its amendment by President's Act 17 of 1973, provided:--
'After holding such enquiry, as the Revenue Officer deems fit and after hearing the persons interested, he may declare such transfer to be invalid and impose on the transferor or the transferee or both penalty of an amount not exceeding a sum of rupees two hundred.'
After amendment by President's Act 17 of 1973, Sub-section (2) provided:--
'After holding such inquiry as the Revenue Officer deems fit and after hearing the persons interested, he may declare such transfer to be invalid and impose on the transferee a penalty of an amount not exceeding two hundred rupees per acre of the land so transferred for each year or any part thereof during which the possession is continued in pursuance of the transfer which has been declared to be invalid.'
Admittedly, the provision is penal and, therefore, should not be given retrospective effect and would, therefore, have prospective effect particularly in the absence of anything to the contrary to the provision. At the time when the transfer took place, the unamended provision was in force and the maximum penalty eligible for the transaction was Rs. 200/-. We would accordingly allow the writ application to the extent of vacating the order of imposition of penalty and in lieu thereof direct that petitioner shall be subjected to a total penalty of Rs. 200/- as had been provided under Section 23 (2) of the Orissa Land Reforms Act at the time the transactions took place.
5. The writ application is allowed in part. The parties are directed to bear their own costs throughout.
J.K. Mohanty, J.