Pathak, C.J.@mdashThis writ application under Articles 226 and 227 of the Constitution of India arises cut of a proceeding u/s 23 of Orissa Land Reforms Act, 1960 (hereinafter referred to as the ''Act'')
2. A thumb nail narration of the facts leading to the present writ application if that on 29-12-65 the father of the petitioners sold Ac. 6.4 decimals of land in plot Nos. 1023. 1022, 1021. 976 ,977, 970/2 and 975 in Khata No. 72 of village Tipiguda to opposite parties 1 and 2 for a consideration of Rs.2,500/-. The petitioners are members of the scheduled tribe. A petition u/s 23 of the Act was filled by the father of the petitioners before the Sub-divisional Officer, Dharmgarh for setting aside the sale effected on 29-12-65 without obtaining the permission required u/s 22 of the Act with a further prayer restoration of possession of the land in question. The learned Revenue Officer, opposite party No. 3, by order dated 25-2-75 ( Annexure-3) in Revenue Misc. Case No. 53 of 1974, rejected the prayer of the petitioners'' father holding inter alia that though on the date of execution of the sale deed the permission required u/s 22 of the Act was not there, the same was obtained on 25-1-66 on an application filed by the vendor (petitioners'' father) on 29-12-65 and that some time in January 1966 possession was delivered to the opposite parties. Being aggrived by that order, the petitioner'' father preferred an appeal u/s 53 of the Act before the Additional District Magistrate, Kalahandi, registered as Revenue Appeal Case No. 5 of 1975. The learned Additional District Magistrate, opposite party No. 5 by a short order dated 20-9-75 set aside the order passed by the Revenue Officer in Annexure-3. Against that order of the appellate authority, the opposite parties preferred O. L. R. Revision Case No. 16 at 1975 before the Board of Revenue. The learned Member, Board of Revenue, opposite party No. 4, by order dated 3-9-76 (Annexure-5) upheld the order of the Revenue Officer and set aside the order passed by the appellate authority.
3. It is contended at the bar that after the order dated 3-9-76 (Annexure-5) was passed by the Member, Board of Revenue, the petitioners'' father filed a review petition and after some clarification being made to the order dated 3-9-76 it was sustained.
4. Before considering the rival contentions of the parties, we may quote Sections 22 and 23 of the Act.
22. Restriction on alienation of land by Scheduled Tribes :
(1) Any transfer of a holdidg 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 :
(b) a person not belonging to a Scheduled Tribe when such transfer is made with previous permission in writing of the Revenue Officer.
Provided that in case of a transfer by sale, the Revenue Officer shall not grant such permission unless he is satisfied that a purchaser belonging to a Scheduled Tribe willing to pay the market price for the land is not available and in case of a gift unless he is satisfied about the bona fides thereof.
(2) The State Government may having regard to the law and custom applicable to any area prior to the date of commencement of this Act by notification direct that the restriction provided in Sub- Section (1) shall not apply to lands situated in such area or belonging to any particular tribe throughout the State or in any part of it.
(3) Except with the written permission of the Revenue Officer, no such holding shall be sold in execution of a decree to any person not belonging to a Scheduled Tribe.
(4) Notwithstanding anything contained in any other Saw foe the time being in force, where any document required to be registered under the provisions of Clause (a) to Clause (e) of Sub-Section (1) of Section 17 of the Registration Act, 1908, purports to effect transfer of a holding or part thereof by a raiyat belonging to a Scheduled Tribe, in favour of a person belonging to a Scheduled Tribe, no Registering Officer appointed under that Act shall register any such documents, unless such document is accompanied by the written permission of the Revenue Officer for such transfer.
(5) The provisions contained in Sub-Sections (1) to (4) shall apply. mutatis mutandis to the transfer of a holding or part there of to a raiyat belonging to the Scheduled Caste.
(6) Nothing in this section shall apply-
(a) to any sale in execution of a money decree passed, or to any transfer by way of mortgage executed in favour of any Scheduled. Bank or in favour of any Bank which the Orissa Co-operative Societies Act, 1962 applies ; and
(b) to any transfer by a member of a Scheduled Tribe within a Scheduled Area."
"23, Effect of transfer in contravention of Section 22 :
(1) In the case of any transfer in any contravention of the provision of Sub- Section(1) of Sec 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.
(2) 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 to 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 and may also order such portion of the penalty as he deems fit, to be paid to the transfer or his heir.
(3) On a declaration being made under Sub- Section (2), the. Revenue Officer suo motu or on the application of any person interested cause restoration of the property to the transferor or his heirs and for the purpose may take such steps, as may be necessary, for compliance with the said older or preventing any breach of peace :
Provided that if the Revenue Officer is of the opinion that the restoration of the property is not reasonably practicable, he shall record his reasons therefore and shall subject to the control of the Government settle the said property with another member of a Scheduled Tribe or in the absence of any such member, with any other person in accordance with the provisions contained in the Government Land Settlement Act, 1962.
EXPLANATION-Restoration of the property means actual delivery of possession of the property to the transferor or his heir.
(4) Where any transfer is declared under this section to be invalid and the transferee or any other person in possession of the property has been evicted therefrom, the transferee shall not be entitled to the refund of any amount paid by him to the transferor by way of consideration for the transfer."
On a bare reading of these two sections, we find that this is a piece of social legislation providing a protective umbrella fro the weeker sections of the society, namely, scheduled castes and scheduled tribes. By enacting these two sections the legislature in it''s wisdom has demonstrated the intent and purpose of safeguarding the interest of the weaker sections of the Society and improving their conditions by providing that any transfer except in terms of the provisions of Section 22 would be null and void.
By paraphrasing Section 22, we find that while granting the permission, the Subdivisional Officer (Revenue Officer) must satisfy himself that a purchaser belonging to a scheduled tribe or scheduled caste willing to pay the market price for the land is not available. This is the prerequisite for grant of permission for effecting a sale to non-scheduled caste and non-scheduled tribe person.
Sub-Section (4) of Section 22 categorically provides that no Registering Officer appointed under the Registration Act, 1908 shall register any document of sale unless such document is accompanied by the written permission of the Revenue Officer or such transfer.
5. The facts adverted above are indicative of the position that on the date of registration of the sale deed on 29-12-1965 there is no permission as required u/s 22 of the Act. In view of that factual situation, the sale deed itself is void as per the provision of Sub- Section (1) of Section 22. Accordingly, the sale deed executed by the father of the petitioners is declared void and non est.
6. With regard to the question of possession, the learned Revenue Officer as well as the learned Member, Board of Revenue took into consideration the recital in the sale deed and held that possession was taken some time in January, 1966. The Revenue Officer and the Board of Revenue deed not place any reliance on the recitals made in the sale deed in view of the clear case of the opposite parties in the written statement that possession was taken only after obtaining permission 25-1-1966. The Revenue Officer and and the learned Member, Board of Revenue have concurrently found that possession was taken after the sale deed was executed on 25-12-1965.
Opposite patties 1 and 2 have not only stated in their written statement before the Revenue Officer but they have also reiterated :, the counter affidavit filed by them in this Court that they took possession of the land some time in January, 1966. In Paragraph 6 of the counter affidavit, it has been stated :
Therefore, there can be no cause of action for any action u/s 23 of the Act when according to the concurrent findings of fact by the learned Courts below the opposite parties came to possess the land after permission to transfer was accorded u/s 22 of the Act."
Further, in Paragraph 8 of the counter affidavit, the opposite parties have averred :
The petitioners'' father did not sell the land in the month of Baisakh and did not deliver possession of the property at once."
In view of the stand taken by the opposite parties before the Revenue authorities as well as in this Court, the possession of the land in. question should be held to have been taken some time in January,1966.
7. The consequence of declaring a sale deed to be void u/s 22 of the Act on an application u/s 23 would follow if possession was taken after the execution of the sale deed. Sub-Section (3) of Section 23 of the Act provides that on a declaration being made under Sub-Section (2) of Section 23, the Revenue Officer sun motu or on the application of any person interested cause restoration of the property to the transferor or his heirs and for the purpose may take such steps, as may be necessary, for compliance with the said order or preventing any breach of peace. In view of the provision contained in Sub-Section (3) of Section 23, the petitioners shall get back possession of the land in question.
8. In the result, we allow the writ application and quash Annexures 3 and 5 but in the facts and circumstances of the case, we make no order for costs.
S.C. Mohapatra, J.
9. I agree.
