S.K. Ray, J.
1. This is an application under Arts. 226 and 227 of the Constitution of India for quashing the order dated 11-6-74 of the S. D. p. Dharamgarh passed in a proceeding under Section 23 of the Orissa Land Reforms Act (hereinafter called the Act) imposing a penalty of Rs. 2,400/- on the petitioner (Annexure-1), the appellate order dated 2-11-74 of the A. D. M. Kalahandi passed in appeal from the order of the S. D. O. in Revenue Appeal No. 11 of 1974 (Annexure 2) reducing the fine to Rs. 200/-, and the order dated 31-1-76 passed in revision by the Board of Revenue in Revision Case No. 85 of 1974 (An-nexure-3) confirming Annexure-2.
2. It is not in dispute that opposite party No. 4 is a member of scheduled tribes and the petitioner is a person not belonging to scheduled tribes. Opposite party No. 4 transferred, under a registered mortgage deed dated 30-4-1969, A.3.13 dec. of land to the petitioner for a consideration of Rs. 800/-. As disclosed by an enquiry caused to be made through the Revenue Inspector, the petitioner, pursuant to the aforesaid mortgage, remained in possession of the said lands for four years, viz., from 1969-70 till 1972-73 and that opposite party No. 4 got back possession in 1973-74 and is in continuous possession since then.
3. On the basis of an application made by opposite party No. 4 under Section 23 of the Act before opposite party No. 1, Misc. Case No. 11 of 1974 was registered. After notice to the petitioner and after holding an enquiry into the allegations made in the petition opposite party No. 1 declared the aforesaid transfer invalid and imposed a penalty of Rs. 200/- per year per acre for four years aggregating to a sum of Rs. 2,400/- holding that though opposite party No, 4 had recovered possession since 1973-74, nevertheless, the petitioner was in illegal possession for four years from 1969-70 till the end of 1972. This order of the opposite party No. 1 was varied in appeal only to the extent of reducing the fine to Rs. 200/-and this appellate order was confirmed in revision.
4. Learned counsel for the petitioner contends that opposite party No. 1 erred in exercise of his jurisdiction by imposing penalty on the petitioner for his possession prior to the order declaring the transfer to be invalid. In other words, he contends that the application under Section 23 having been filed after 29-9-73, when the President's Act 17 of 1973 came into force, penalty should not have been imposed for past possession of the petitioner, as such possession cannot be said to be possession which continued after the transfer was declared to be invalid. Lastly, it is contended that rules of natural justice were violated inasmuch as opposite party No. 1 acted upon a report of the Revenue Inspector which was never put in evidence in presence of the petitioner and inasmuch as no opportunity was given to him to rebut the same.
5. Section 22 of the Act provides for restriction on alienation of lands by scheduled tribes. Sub-section (1) thereof runs as follows:--
'Any transfer of a holding or part thereof by a raiyat, belonging to a Scheduled Tribe shall be void except where it is in favour of-
(a) a person belonging to a Scheduled Tribe, or
(b) a person not belonging to a Scheduled Tribe when such transfer is made with the previous permission in writing of the Revenue Officer:'
Proviso to Sub-section (4) excludes transfer by a member of the Scheduled Tribes within a Scheduled Area from the purview of Sub-section (1).
6. By President's Act 17 of 1973 Sub-sections (3) and (4) of Section 22 of the Act were substituted by Sub-sections (3), (4) and (5) and the original proviso to Sub-section (4) was re-enacted in Sub-section (6).
7. Such provisions of Section 23 of the Act, both before and after amendment, which are relevant for the present purpose are extracted hereinbelow.
Section 23- (1) of the Act runs as follows:--
'In the case of any transfer in contravention of the provisions of Sub-section (1) of Section 22 the Revenue Officer on his own information, or on the application of any person interested in the land may issue notice in the prescribed manner calling upon the transferor and transferee to show cause why the transfer should not be declared invalid.'
Section 23 (2) (before its amendment by President's Act 17 of 1973) read as follows:--
'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.'
This Sub-section (2) was substituted by President's Act 17 of 1973 as follows:--
'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.'
Section 23-A (1) which was introduced by President's Act 17 of 1973 reads as follows:--
'If any proceedings under Section 23, the validity of the transfer of any holding or any part thereof is called in question or if such proceedings are for the recovery of possession of such holding or part thereof, the burden of proving that the transfer was valid shall, notwithstanding any thing contained in any other law for the time being in force, lie on the transferee.'
8. In the instant case, proceedings under Section 23 of the Act were commenced after 29-9-1973 when the President's Act 17 of 1973 came into force. By that time the petitioner had ceased to be in possession of the lands of opposite party No. 4 and the latter had recovered possession privately. The transfer, however, had been effected in contravention of Section 22 (1) of the Act. Sub-section (2) of Section 23, as it originally stood, provided for imposing penalty on both transferor and transferee of an amount not exceeding a fixed sum of Rs. 200/-. Under this provision of law both the transferor and the transferee were liable to be penalised and whether the one or the other or both were to be penalised was left to the discretion of the Revenue Officer, depending upon circumstances of each case, and this indicates that the Legislature's intention was to impose penalty for wilful violation of the absolute prohibition contained in Section 22 (1). The quantum of penalty had no relation to the transferee's length of possession of the transferred lands. By the President's Act the pre-existing law was altered and the transferee alone was made liable to penalty and in place of a fixed maximum amount of penalty, a rate of penalty was provided having relation to the extent of land transferred and number of years during which the transferee was in possession. In other words, penalty contemplated was an amount not exceeding Rs. 200/- per acre per year or part of a year during which the transferee's 'possession is continued'. The learned counsel for the petitioner argued that the penalty is to be imposed with reference to the possession which is continued after the declaration of invalidity of transfer is made and no penalty is contemplated in respect of possession prior to such declaration. Thus, imposition of penalty for past four years, viz., for the years 1969-70 till the end of 1972-73, is illegal and without jurisdiction. We do not agree with this contention. The original intention of the legislature was to impose penalty on persons who were parties to a transfer in breach of the mandatory provision of Section 22 (1) of the Act absolutely prohibiting transfer by a scheduled tribesman to a non-scheduled tribesman. Section 23-A (1) indicates that such transfers are to be presumed to be void, the burden being on the transferee to prove that it is valid. These stringent provisions of law have been enacted to protect scheduled tribes man from exploitation of unscrupulous persons not belonging to scheduled tribe and to deter the latter from entering into transactions of transfer of land with the former. In that context, if substituted Sub-section (2) of Section 23 is construed, it would mean that possession which the transferee acquired would be illegal from the date of transfer and he was to be penalised therefor. The transaction is void ab initio and the Revenue Officer is merely to declare it invalid after being satisfied upon enquiry, after notice to the concerned parties and after hearing them, that such transfer has been made without prior permission in writing of the Revenue Officer and that the transferee is a person not belonging to any scheduled tribe. The jurisdiction and power to impose penalty arises only after declaration of invalidity is made. By such declaration the invalidity does not arise only from the date of declaration, but it affects the transaction from its very inception, making the transferee liable to penalty for his illegal possession. The quantum of penalty is to be computed with reference to the area of the transferred land and the length of transferee's illegal possession, that is to say, the duration during which such possession continued in pursuance of the illegal transfer. If this construction is not given, the very purpose of this legislation would be defeated by the transferee surrendering possession the very day on which the invalidity, of the transfer is declared. Therefore, we hold that the transferee was liable to be penalised for all the years during which he was found to be in possession under the illegal transfer whose illegality was only subsequently declared. In other words, the transferee would become liable to be penalised for past possession even though the transfer is declared subsequently to be invalid. Therefore, the first contention of the learned counsel for the petitioner must be negatived.
9. By the time substituted Subsection (2) of Section 23 came into force, the petitioner had relinquished his possession. Therefore, original Sub-section (2) of Section 23 must necessarily be applied as has been done rightly by the A. D. M. In our view, he has rightly reduced the amount of penalty of Rs. 2,400/- imposed by the S. D. O. to a fixed amount of Rs. 200/-.
10. The last contention of the learned counsel for petitioner would have some force if the petitioner had not been given a chance to rebut the same. The appellate court has found that the petitioner was given opportunity to present his case on different dates to which the original proceeding before the S. D. O. was being posted from time to time. The S. D. O., as enjoined by law, held an inquiry through the Tahasildar who, in his turn, directed the Revenue Inspector to enquire and submit a report. The petitioner who appeared in a case of that nature would be presumed to be cognizant of the various orders passed from time to time whether before or after his appearance. It appears from the order-sheet of the S. D. O. that the petitioner appeared through an Advocate after he had passed his order dated 11-6-74, wherein he had indicated the findings of the Revenue Inspector and that he was relying on the same. His Advocate never wanted on opportunity to rebut the report of the Revenue Inspector of which he must be presumed to be cognizant. He wanted to examine the first party but not the Revenue Inspector on the point of his report. This conduct on his behalf shows that he accepted the Revenue Inspector's report without challenge. He did not tender any evidence from his side. In these circumstances, when adequate opportunity had been afforded to the petitioner to adduce independent evidence on his behalf or even to summon the Revenue Inspector to cross-examine him touching any point in his report, it cannot be said that principles of natural justice and fair play have been violated. The last point, therefore, must fail.
In the result, all the contentions of the learned counsel for the petitioner having been negatived, this writ application is dismissed. In the peculiar circumstances of this case, there will be no order for costs.
11. I concur.