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Pati Digal Vs. Bandu Malik and ors. - Court Judgment

LegalCrystal Citation
SubjectProperty;Civil
CourtOrissa High Court
Decided On
Case NumberOriginal Jurisdiction Case No. 378 of 1978
Judge
Reported in58(1984)CLT107; 1984(II)OLR633
ActsOrissa Scheduled Areas Transfer of Immovable Property (by Scheduled Tribes) Regulation, 1956 - Sections 3(1) and 7C; Constitution of India - Article 226
AppellantPati Digal
RespondentBandu Malik and ors.
Appellant AdvocateB.B. Ratho and S.K. Das
Respondent AdvocateB. Rath, ; P.K. Parida (O. P. No. 1) and ; Addl. Standing Counsel (O. P. Nos. 2 and 3)
DispositionApplication allowed
Excerpt:
.....rules. - 3305 of 1976 was produced on behalf of the transferee which was verified by the special officer and he was satisfied that the notice is relating to the suit land. transferee failed to produe the order of the assistant settlement officer as directed on 19. 1. 1977. the order discloses that transferee did not also produce any evidence in support of his claim. he further urged that the parcha (annexure-3) having clearly indicated that the illegal possession is continuing since 1951 on mortgage, the provisions of regulation 2 of 1955 are not applicable since the same has no retrospective operation......from the order dated 7. 1. 1977, it is found that the competent authority called upon the first party (transferor) to adduce evidence. on 19.1.1977 when the transferee produced the notice in objection case no. 3305 of 1976 he was called upon to produce certified copy of the order of a. s. o. on 31. 3. 1977, the material date, the transferor who had been called upon to adduce evidence stated that he would rely upon the parcha and will not produce further evidence. at no time the transferee was called upon to discharge the burden cast on him.13. when the competent authority has specifically called upon the parties to produce essential documents and has called upon one of the parties to adduce evidence, there is every scope for the other party to feel that he would also be called upon to.....
Judgment:

S.C. Mohapatra, J.

1. Budrukia is a village in Balliguda Police-Station. Both petitioner (hereinafter referred to as the transferee) and opposite party No. 1 (hereinafter referred to as the transferor) belong to that village. Opposite party No. 1 is a members of the Scheduled Tribes being Khonda. Petitioner alleges to be a member of the Scheduled Castes which is not disputed in the counter-affidavit filed on behalf of opposite party No. 1.

2. The Tribal and Rural Welfare Amin submitted a report to the Subdivisional Officer, Balliguda through the Tahasildar, Balliguda, wherein he intimated that on enquiry he could come to know that Hal Plot No. 698 measuring 196 decimals of village Budrukia belonging to Bandu Mallik (transferor) is in possession of Pati Digal (transferee) being transferred to him illegally by. way of mortgage for a consideration of Rs. 400/- since 1957. In the report, the Amin submitted that the alleged transfer being one to which provision of Regulation 2 of 1956 is attracted, action should be taken. A certified copy of the report of the Amin has been filed in the writ application as Annexure-1.

3. Special Officer, Balliguda is the competent authority under Regulation 2 of 1955. On receipt of the report he initiated a proceeding which was registered as R. M. C. No. 991 of 1976, on 8.12.1976. The competent authority directed issue of notice to both the transferee and the transferor to appear on 24.12.1976 at Balliguda with there essential documents, if any. The case was adjourned to 7.1.1977 on which day, the transferor filed a settlement parcha whose certified copy has been filed in the writ application as Annexure-2. On 7.1.1977, the following order was passed:--

'7.1.1977 :--The First patty and S/o. O. P. present. First party files parcha. In the parcha, the notice of illegal possession by O. P. First party says that he mortgaged the suit land for Rs. 400/- and not yet approached for redemption.

First party adduce evidence. Put up on 19.1.1977.'

On 19. 1. 1977, the transferor and son of the transferee were present. A notice No. 2547 dated 27. 3. 1976 of objection No. 3305 of 1976 was produced on behalf of the transferee which was verified by the Special Officer and he was satisfied that the notice is relating to the suit land. On that date, the Special Officer directed the transferee to produce certified copy of the orders of the Assistant Settlement Officer and fixed the case to 10. 2. 1977. The case was adjourned from time to time and was ultimately posted to 31. 3. 1977. On that date, both parties were present. Transferor declined to adduce any evidence in view of the parcha filed by him. Transferee failed to produe the order of the Assistant Settlement Officer as directed on 19. 1. 1977. The order discloses that transferee did not also produce any evidence in support of his claim. Taking into consideration the parcha (Annexure-2). the competent authority directed eviction of the transferee and restoration of the property to the transferor. Competent authority also imposed a penalty of Rs 50/- on the transferee on account of his illegal possession of the disputed land. It was directed that in case, the transferee fails to vacate even, after formal delivery to the transferor be would be further penalised at Rs. 50/- for each year and part thereof. It was ordered that the penalty would be recovered as arrear of land revenue in case of default.

4. Section 3(3) of Regulation 2 of 1956 give? a right of appeal. Transferee preferred an appeal against the order dated 31. 3.1977 of the Competent Authority. The said Appeal was heard by the Additional District Magistrate, Phulbani. He dismissed the appeal and confirmed the order dated 31. 3. 1977 of the Competent Authority.

5. In absence of any further statutory remedy available under Regulation 2 of 1956, transferee has approached this Honourable Court to quash the orders of the competent authority and the appellate authority (Annexures-1 and 4) by issue of Writ of Certiorari.

6. Mr. B.B. Ratho, the learned counsel for the transferce (petitioner) has urged amongst other points that the transferee has not been given an opportunity to adduce evidence in support of his claim and the appellate authority has not taken into consideration this aspect. He further urged that the parcha (Annexure-3) having clearly indicated that the illegal possession is continuing since 1951 on mortgage, the provisions of Regulation 2 of 1955 are not applicable since the same has no retrospective operation.

7. Mr. P.K. Parida, appearing on behalf of the transferor (opposite party No. 1) submits that the finding of illegal transfer by two statutory forums is a question of facts and is not be interfered within writ jurisdiction. He further submits that the transferee on whom the burden lies to prove the legality of his possession has not adduced any evidence in support of the same.

8. The contentions of both the parties requires careful consideration.

9. The material findings of the competent authority is as follows :

' In view of the entries in parcha, under Section 3(2) of 1956, I order that plot No. 698 of Khata No. 43 of Budrukia village, restored to 1st party and O. P. evicted......'

The appellate authority has passed the order confirming the order of the competent authority in Annexure-4, material portion of which is quoted below :--

'......While going through the record and order of L. L. C dated 31. 3. 1077, it is noticed that the court below held the parcha received by the Appellant as sufficient proof for taking action under the provisions of Regulation 2 of 1956. It was for the respondent to counter this solid claim by adducing evidence, if any. But the respondent has not adduced any evidence as mentioned in the order of the court below. In these circumstances, there is no room for coming to any other conclusion, except that was held by the court below......'

10. There cannot be any doubt that in a proceeding under Regulation 2 of 1956, the burden lies on the transferee to prove that his possession of the immovable property is in accordance with law. Section 7C of Regulation 2 of 1956 is clear on the point. It reads as follows :--

'7C. Burden of proof and power of Court to ignore admission :--

Notwithstanding anything contained in any other law for the time being in force--

(a) if in any proceedings under this Regulation, the validity of the transfer or relinquishment of any immovable property is called in question or if such proceedings are for the recovery of possession of immovable property, the burden of proving that the transfer or relinquishment was valid shall lie on the transferee,

(b) the Court shall, in any suit or proceeding relating to the transfer of immovable property of a member of the Scheduled Tribes, have power to require any fact expressly or impliedly admitted by such member to be proved otherwise than by mere admission.'

11. Short question is whether the transferee (petitioner in this case) has been given adequate opportunity to discharge the burden. Transferee is a member of the Scheduled Caste. As a State Policy, Members of the Scheduled Castes and Scheduled Tribes are given protection being of' back ward classes. It is true that without permission a transfer of immovable property by a member of the Scheduled Tribe to a member of the Scheduled Caste is absolutely null and void and of no force of effect whatsoever in view of Section 3(1) of Regulation 2 of 1956. Regulation 2 of 1956 does not make any exception in respect of transferee belonging to a Scheduled Caste. Where opportunity for adducing evidence is given and the same is not availed of, the finding of illegality of the transfer is a finding of fact and will not be interfered within writ jurisdiction.

12. From the order sheet (Annexure-1) it is found that on 8. 12. 1976 the parties were called upon to produce their essential documents, if any. From the order dated 7. 1. 1977, it is found that the competent authority called upon the first party (transferor) to adduce evidence. On 19.1.1977 when the transferee produced the notice in objection case No. 3305 of 1976 he was called upon to produce certified copy of the order of A. S. O. on 31. 3. 1977, the material date, the transferor who had been called upon to adduce evidence stated that he would rely upon the parcha and will not produce further evidence. At no time the transferee was called upon to discharge the burden cast on him.

13. When the competent authority has specifically called upon the parties to produce essential documents and has called upon one of the parties to adduce evidence, there is every scope for the other party to feel that he would also be called upon to adduce any other evidence. A person in possession of land has some interest in the land. Howsoever illegal the possession may be, for taking away possession from such person, the provisions of law and the principles of natural justice are to be strictly followed. We are of the view that the same has not been followed in this case. Accordingly, Annexure-1, the order dated 31. 3. 1977 is liable to be quashed. The appellate authority has also not taken into consideration, this material fact. The appellate order in Annexure-4 is also liable to be vacated on that ground. The finding of fact of both the authorities having been arrived at in contravention of the principles of natural justice cannot stand on the way of exercising the writ Jurisdiction.

14. As the burden is on the transferee the competent authority shall give opportunity to the petitioner to adduce evidence to prove that he does not come within the mischief of Refutation 2 of 1956. The transferor shall also be given opportunity to adduce rebutal evidence, if any.

15. Imposition of penalty depends upon the ultimate finding. As the order of eviction is vacated, the order in regard to imposition of penalty is also vacated.

16. As a result of what has been indicated above, the matter is to go back to the Competent Authority to proceed from a stage prior to 31. 3. 1977. The matter is now about 9 years old. Further delay would cause prejudice to both the parties in that view, we direct both the transferor and the transferee to appear before the Special Officer, Balliguda on 23. 7. 1984, Monday at 10. 30. A. M. on which date the competent authority shall fix a date for adducing evidence by the transferee. Since the land is in the village of the parties and both the parties belong to Scheduled Caste and Scheduled Tribe, the Special Officer shall hear the matter at village Budrukia. If for any reason, the Special Officer cannot take up the matter on 23. 7. 84 for fixing a date he shall give notice to the parties of the next date of appearance before him and shall proceed with the proceeding in the manner indicated above.

17. In the result, the writ application is allowed. A Writ of Certiorari be issued quashing the order dated 31. 3. 1977 (Annexure-1) of the Competent Authority opposite party No. 2, and order dated 30. 11. 1977 (Annexure-4) of opposite party No. 3 and a Writ of Mandamus be issued directing opposite party No. 2 to dispose of the proceeding in the light of the observations made in this judgment. In view of the fact that petitioner is a member of the Scheduled Caste and opposite party No. 1 is a member of the Scheduled Tribe, parties are to bear their own costs throughout till this stage.

P.C. Mishra, J.

18. I agree


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