The High Court
Case Details
IN THE HIGH COURT OF ORISSA AT CUTTACK WP(C) No.6923 of 2024 (Under Article 226 and 227 of the Constitution of India) Sujeet Kumar Pradhan …. Petitioner -versus- State of Odisha, represented through its Commissioner-cum-Secretary, Revenue and Disaster Management Department and Others Advocate(s) appeared in this case:- …. Opposite Parties For Petitioner
Legal Reasoning
: Mr. Amitav Das, Advocate For Opposite Parties : Mr. S. Ghose, A.G.A Mr. T. Sahu, counsel for O.P. No.4 CORAM: JUSTICE B.P. ROUTRAY B.P. Routray, J. JUDGMENT 7th August, 2024 1. Heard Mr. A. Das, learned counsel for the Petitioner, Mr. T. Sahu, learned counsel for Opposite Party No.4 (Bank) and Mr. S. Ghose, learned AGA for State – Opposite Parties. 2. The order of the Tahasildar under Annexure-4, confirmed in appeal by the Sub-Collector under Annexure-5, rejecting the prayer of the Petitioner for mutation is challenged in the present writ petition. WP(C) No.6923 of 2024 Page 1 of 5 3. The admitted facts remain that the Petitioner is the auction purchaser of the case land, i.e. Plot No.644 measuring Ac.0.24 dec. under Khata No.243/193 of Mouza Palasa, in terms of the provisions of the SARFAESI Act. The Sale Certificate is at Annexure-3. After the deed of certificate executed between the bank (O.P. No.4) and the Petitioner under Annexure-1, the Petitioner applied for mutation of the case land in his favour and the Tahasildar by the impugned order held that since the land was belonging to a scheduled caste person, execution of the sale deed is hit by the provisions contained in Section 22(1) of the OLR Act without and in absence of written permission from the competent authority. The matter was then carried in appeal to the court of Sub- Collector who also confirmed the order of the Tahasildar taking the same view. Both the orders of the Tahasildar and Sub-Collector are subject matter of challenge here. 4. Section 22 of the OLR Act reads as under:- “22. Restriction on alienation of land by Scheduled Tribes. (1) Any transfer of 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 WP(C) No.6923 of 2024 Page 2 of 5 a person not belonging to a Scheduled Tribe when (b) such transfer is made with the 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 restrictions 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 law for 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, (16 of 1908) purports to effect transfer of a holding or part thereof by a raiyat belonging to a Scheduled Tribe, in favour of a person not belonging to a Scheduled Tribe, no Registering Officer appointed under that Act shall register any such documents, unless such documents is accompanied by the written permission of the Revenue Officer for such transfer. (5) The provisions contained in Sub-section (1) to (4) shall apply mutatis mutandis, to the transfer of a holding or part thereof 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 WP(C) No.6923 of 2024 Page 3 of 5 any Scheduled Bank or in favour of any Bank to which the Orissa Co-operative Society Act, 1962 (2 of 1963) applies; and to any transfer by a member of a Scheduled Tribe (b) within a scheduled area.]” 5. A bare reading of Clause (a) of Sub-section (6) of Section 22 reveals that any transfer made by way of mortgage executed in favour of any Scheduled Bank, the bar under Sub-section (1) shall not apply. Such provision under Sub-section (6) is without any ambiguity and the same is clear as it is. Both the authorities, i.e. Tahasildar and the Appellate court have failed to appreciate said provision under Sub-section (6) of Section 22 on the admitted facts that the case land was mortgaged in a scheduled bank (O.P. No.4) and the Petitioner is the auction purchaser of the case land as per the provisions of the SARFAESI Act. It is further seen that the recorded tenant of the case land was though noticed by the Tahasildar (as per his order dated 31st May, 2023), but he did not turn up. The transaction being the resulted transfer of the property in favour of the Petitioner through auction in terms of the provisions contained in SARFAESI Act, it is held that the embargo under Sub-Section (1) of Section 22 of the OLR Act will not be attracted for such transaction. As such, the impugned order under Annexure-4 and 5 are set aside and the Tahasildar, Tangi-Choudwar (O.P. No.3) is directed to correct the RoR WP(C) No.6923 of 2024 Page 4 of 5 in favour of the Petitioner within a period of two months from the date of receipt of certified copy of this order. 6.
Decision
The writ petition is disposed of. M.K. Panda, P.A. (B.P. Routray) Judge Signature Not Verified Digitally Signed Signed by: MANAS KUMAR PANDA Designation: Personal Assistant Reason: Authentication Location: OHC, Cuttack Date: 08-Aug-2024 17:05:19 WP(C) No.6923 of 2024 Page 5 of 5