Writ petition challenging land sale invalidity under the Orissa Land Revenue Act, 1960. Court found petitioner's ancestor belonged to 'Gonda' caste, requiring prior permission which was absent. Distinguished earlier case due to difference in evidence. Writ dismissed.
Writ petition stands dismissed for having no merit with no cost awarded.
This page shows the compact analysis of this judgement. The full analysis — procedural history, issue-by-issue holdings with ratio and obiter, advocates, and paragraph-level evidence for every claim — is being added to the record in batches and will appear here when this judgement has been through it.
ORISSA HIGH COURT : C U T T A C K
O.J.C. NO.2983 OF 1999
In the matter of an application under Articles 226 & 227 of the Constitution of India.
Choudhury Padhan, since dead his legal heirs : Petitioners
-Versus-
| State of Orissa & others | : Opp. Parties |
|---|---|
| For petitioners |
: M/s.M.Mishra, Sr.Advocate, P.K.Das & B.Mishra |
| For O.P.1 to 4 |
: Sri K.K.Mishra, |
| Additional Government Advocate | |
| For O.P.5 |
: M/s.S.S.Rao, Sr.Advocate, |
| B.K.Mohanty, D.K.Sahoo & S.Patra |
PRESENT:-
THE HONOURABLE MR. JUSTICE BISWANATH RATH
Date of Hearing : 28.6.2019 & & Date of Judgment : 15.7.2019
Biswanath Rath, J. Filing this writ application, the petitioners being
the legal heirs of Late Choudhury Padhan assail the orders at Annexures-1, 2 & 3 passed by the competent authorities under the provision of the O.L.R. Act, 1960.
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2. Short background involving the case is that a case under Section 23 of the O.L.R. Act, 1960 (herein after called as “the Act, 1960”) was initiated at the instance of one Trayambakeswar Singh Rai seeking declaration of the sale transaction pertaining (Plot Nos.1348 and 1373 of Khata No.16/2 of the Bhogra Conversion Proceeding) Hal Plot Nos.1952 and 1981 of Hal Khata No.439 for Ac.7.56 decimals in Village-Loisingha as invalid. Case of Trayambakeswar Singh Rai was that the land described was recorded in the name of Chitrabhanu Singh Ray and the petitioner got the said land as the legal heir of Jayakrishna Singh Ray. After coming to know that the said land was purchased by Baishnab Charan Padhan and another, he filed Section 23 application on the premises that the sale becomes invalid as the same has been effected without prior approval of the Revenue Officer. Pursuant to issuance of show cause notice, Baishnab Charan Padhan and another appeared. They jointly filed written objection objecting the maintainability of the case on the ground that the Section 23 proceeding is not maintainable as Trayambakeswar Singh Rai, the petitioner therein was not a member of Scheduled Tribes. They further asserted in their written objection that the petitioner and O.P.9 herein were tenants under Late Chitrabhanu Singh Rai and they were possessing the disputed land initially as tenants and purchased the same by executing
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registered sale deed with consideration amount. The original petitioner and O.P.9 also claimed their right over the property by virtue of acquiring title by adverse possession, further insisted the questions of maintainability to be decided ahead of merit involving the case. Preliminary objection raised by the present petitioner and O.P.9 was considered and it was decided that the question of maintainability shall be dealt with while disposing the main case.
3. The original petitioner and O.P.9 examined two witnesses besides have also filed documents. From the side of the petitioner, Jaya Krishna Singh Rai, two witnesses have been examined. Similarly some documents have also been exhibited from their side. The original authority framed the following issues :-
“a) Whether the Court’s jurisdiction has been barred to enquire into the caste of the parties in view of the decision reported in (68/1989 CLT Page 169).
b) The second point is for determination is whether the disputed sale is valid and whether prior permission was necessary under the Act before transfer of the disputed land.
c) Thirdly, whether the O.Ps. have acquired title of adverse possession before the relevant date.
d) Whether the father of the petitioner is competent to file the petition on behalf of his son and whether for non-examination of the petitioner in this case adverse interference should be done.”
Considering the rival contentions of the parties
and taking into account the materials available therein, the original authority taking into account the settlement report ad Patna State
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1937 found the Khasada prepared in the name of Chakradhar Singh Rai, father of Late Chitrabhanu Singh Rai in the year 1916 settlement indicating the caste of said Chakradhar Singh Rai as “Gonda”. This helped the petitioner therein to claim that since “Gonda” a caste as per the Presidential Notification, the petitioner therein belonged to Scheduled Tribe. It is in the circumstance and as the sale transaction involved therein was conducted without due permission of the competent authority under the Act, 1960, the Sub-Collector, Balangir came to hold that the sale transaction became faulty being violative of Sections 22 & 23 of the Act, 1960.
4. The Appeal being preferred by the original petitioner, vide OLR Appeal No.12 of 1990, confirming the view of the original authority, the appellate authority disallowed the Appeal. In the Revision, vide OLR Revision No.12 of 1992, the revisional authority also confirmed the orders of both the authorities below in disallowing the Revision, vide Annexure-3.
5. Assailing the impugned orders, Sri M.Mishra, learned senior counsel appearing for the petitioners submitted that for the indication in the sale deed the applicant involving Section 23 application, “Raja Gonda”, a Caste having not found place in the notified Presidential order, all the courts have failed in visualising this aspect and thereby arrived at the wrong and illegal impugned orders. Sri Mishra for the petitioners referring to some other
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documents submitted that there being no record recognizing “Raja Gonda” and “Gonda” are same, the authorities involved treating “Raja Gonda” and “Gonda” as one Caste remained contrary to the provision of law and also contrary to materials available on record. Taking aid of a decision of the Hon’ble apex Court in State of Maharashtra vrs. Milind & others reported in (2001) 1 SCC 4 and a decision of this Court claiming to be on the same facts in the case of Belmati Pradhan & others vrs. Jaya Krushna Singh Rai
& others involving the parties involved herein decided on 29.3.2019 in O.J.C.No.5170/2002, Sri Mishra, learned senior counsel for the petitioners submitted that above two decisions support to the case of the petitioners and thus prayed for interference of this Court in the impugned orders at Annexures-1 to 3.
6. Sri S.S.Rao, learned senior counsel for O.P.5 on the other hand taking this Court to the document relied on in the original proceeding and more particularly from the copy of the settlement report of Patna State of 1937 in paragraph-6 of the Jamindari of Loisingha and the certified copy of Khasada prepared
in the name of Chakradhar Singh Rai, the father of late Chitrabhanu Singh Rai in 1916 Settlement submitted that there is clear material establishing that the petitioner involving Section 23 application belongs to Caste “Gonda”. For the inclusion of Caste,
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“Gonda” in the Presidential Notification Order, Sri Rao, learned Senior Counsel for O.P.5 submitted that all the forums below have rightly appreciated the issue involved therein, and therefore, claimed that there is no infirmity in the impugned orders. Sri Rao further submitted that there is no situation requiring interference in the impugned orders by this Court. Sri Rao, learned senior counsel for O.P.5 also taking this Court to the claim of benefit of the decision of the Hon’ble apex Court in State of Maharashtra (supra) submitted that the said decision rather supports the case of O.P.5. Similarly, taking this Court to the claim of benefit by the petitioners on the decision involving the disposed of writ petition bearing O.J.C. No.5170 of 2002, Sri Rao further contended that there is a glaring difference in the material available in both the cases more particularly there is no consideration on the settlement report of Patna State and the Khasada prepared in the year 1916 Settlement involving the disposed of writ petition. Sri Rao thus claimed that the decision in the disposed of writ petition can be distinguished.
7. Sri K.K.Mishra, learned Additional Government Advocate appearing for O.Ps.1 to 4 on the other hand supported the stand taken by Sri Rao, learned senior counsel for O.P.5 and attempted to justify the impugned orders.
8. Hearing the rival contentions of the parties, this Court finds from Issue No.b in the petitioner’s case as appears
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before the original authority discloses that the Record of Rights involving the private O.P.5 showing his caste to be “Raja Gonda”. There was no dispute that the father of the petitioner belonged to “Raja Gonda”. So there was no necessity for permission in the transaction held by the father of the contesting opposite party. On the other hand, the private opposite party’s case in the court below not only based on the settlement report of Patna State of 1937, a certified copy of Khasada being produced disclosed that the caste of the father of the private opposite party is “Gonda”. Apart from producing a copy of settlement report of Patna State of 1937 , O.P.5 also produced oral evidence involved therein to satisfy such case. For the existence of old record through the settlement repot of 1937 showing the hereditary of the private opposite party belonging to “Gonda” caste coupled with the fact that subsequently the King in the locality has conferred a title on the petitioner’s family namely “Raja”, this Court finds, mentioning of the caste belonging to the private opposite party no.5 in the subsequent preparation of Record of Right, “Raja Gonda” is an outcome of the title conferred by the King as well as the caste to which the private opposite party belongs.
9. Be that as it may, mere mentioning of the caste of private opposite party no.5 in the subsequent Record of Rights, “Raja Gonda” cannot take away the observations involving the
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settlement report of Patna State of 1937 prepared during the life time of the father of the private opposite party coupled with the settlement Khasada of the year 1916. It is on the basis of the above and after going through the discussions in paragraph-8 of Annexure-1 particularly taking into consideration the points summerised by the original authority in Issue No.b, this Court finds, there is no infirmity in the ultimate decision of the original authority thereby. Further this being the basis of determination of the appellate authority and the revisional authority, this Court finds, there is also no infirmity in the orders of the appellate authority as well as the revisional authority.
10. At this stage, taking into consideration the decision cited by the learned counsel for the petitioners in the case of Belmati Pradhan (supra) and taking into consideration the statement made by the learned counsel for the petitioners that the case involving the decision cited being similar to the case at hand and the decision taken in O.J.C. No.5170 of 2002 by this Court by judgment dated 29.3.2019 has a direct application to the case, this Court going through the discussions and findings involving the judgment involved herein finds, the Hon’ble single Bench had no occasion to consider the Patna State Record or the Khasada indicated herein above for the existence of such records, there is a glaring difference between the case decided in O.J.C. No.5170 of
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2002 and the case at hand and the decision, vide O.J.C. No.5170 of
2002 are clearly distinguishable. For this glaring difference, this Court finds, the decision cited at Bar involving O.J.C. No.5170 of 2002 has no application to the case at hand.
11. In the circumstance and for the observations made herein above, this Court finds, there is no infirmity in either of the impugned orders, further for the confirming view by all the three authorities involved in the orders at Annexures-1 to 3 respectively, this Court also finds no scope for interfering with such orders in exercise of power under Article 227 of the Constitution of India.
12. In the circumstance, this writ petition stands
dismissed for having no merit. No cost.
………………………… Biswanath Rath, J.
Orissa High Court, Cuttack. The 15th day of July, 2019/ mkr, secy.
3 issues framed by the court
Whether the sale transaction is invalid as it was conducted without prior approval of the Revenue Officer under the O.L.R. Act, 1960.
Whether the petitioner's tribe status as 'Gonda' or 'Raja Gonda' exempts the transaction from prior permission requirements.
Whether the impugned orders of the original, appellate, and revisional authorities are suffer from any legal infirmity warranting interference.
Colour shows how this judgement treated each authority
(68/1989 CLT Page 169)Referred¶17
State of Maharashtra vrs. Milind & others reported in (2001) 1 SCC 4Referred¶26
Belmati Pradhan & others vrs. Jaya Krushna Singh Rai & othersDistinguished¶28
Belmati Pradhan & others vrs. Jaya Krushna Singh Rai & others decided on 29.3.2019 in O.J.C.No.5170/2002
2 provisions across 2 enactments
Choudhury Padhan since dead his legal heirs
State of Orissa
Baishnab Charan Padhan and another
Biswanath Rath
As recorded by the court registry
Judgements on the same questions, provisions and authorities, from every court
