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Case Details
Signature Not Verified Digitally Signed Signed by: SASANKA SEKHAR SATAPATHY Designation: A.R.-CUM-SR. SECRETARY Reason: Authentication Location: HIGH COURT OF ORISSA CUTTACK Date: 15-Apr-2024 11:07:33 IN THE HIGH COURT OF ORISSA AT CUTTACK W.P.(C) No.36686 of 2023 (An application under Article 226 of the Constitution of India) * ** * Ullas Bhoi -versus- Sub-Registrar, Jagatsinghpur and another .... Petitioner …. Opp. Parties Advocate for the parties : For Petitioner : Mr. Sushree Sunilkanta Nayak, Advocate For Opposite Parties : Mr. Swayambhu Mishra, Additional Standing Counsel (For Opposite Party No.1) CORAM:
Decision
JUSTICE K.R. MOHAPATRA -------------------------------------------------------------------------------------------- Heard and disposed of on 08.04.2024 ------------------------------------------------------------------------------ J U D G M E N T 1. This matter is taken up through hybrid mode. 2. Petitioner in this writ petition seeks to assail the endorsement dated 8th September, 2023 of the Sub-Registrar, Jagatsinghpur- Opposite Party No.1 made on the sale deed dated 31st August, 2023 (Annexure-2) refusing registration of the same. 3. Mr. Nayak, learned counsel for the Petitioner submits that the Petitioner belongs to Scheduled Caste (SC) community. For his legal necessity, he expressed his intention before Opposite Party No.2, namely, Maheswar Pradhan, who belongs to Scheduled Tribe (ST) community to sell Hal Plot No. 4209/4607 under Khata No. 921 to an extent of Ac. 0.1700 W.P.(C) No.36686 of 2023 Page 1 of 8 Signature Not Verified Digitally Signed Signed by: SASANKA SEKHAR SATAPATHY Designation: A.R.-CUM-SR. SECRETARY Reason: Authentication Location: HIGH COURT OF ORISSA CUTTACK Date: 15-Apr-2024 11:07:33 // 2 // decimal situated at mouza- Chatara under Jagatsinghpur tahasil in the district of Jagatsinghpur (for brevity ‘the case land’) recorded in the name of the Petitioner under Sthitiban status. The Opposite Party No. 2 also expressed his willingness to purchase the case land. Accordingly a sale deed was executed and presented before Opposite Party No. 1 for registration. Sub- Registrar, Jagatsinghpur refused to register the sale deed in question endorsing as under:- “Registration is refused under Section 22(A) 1(C) of the Registration (Odisha Amendment) Act, 2013 read with Section 22 (sub section 5) of the OLR Act, 1960. Reason for refusal is maintained in Book-2 register. The original document along with it’s true copy are returned herewith to the presentant.” It is his submission that the sale deed was refused to be registered on the ground that no prior permission under Section 22 of the Odisha Land Reforms Act, 1960 (for short the ‘OLR Act’) was obtained by the Petitioner before presentation of the sale deed for registration. 3.1 He further submits that the Opposite Party No.2 being a ST person belongs to a weaker section of the society in comparison to person belonging to SC community. Thus, the permission under Section 22 of the OLR Act is not required for alienation of the property in favour of Opposite Party No.2. There is no doubt that the Petitioner has an alienable right over the case land, as it stands recorded in the name of the Petitioner in the Record of Right under Anexure-1. Thus, there was no difficulty W.P.(C) No.36686 of 2023 Page 2 of 8 Signature Not Verified Digitally Signed Signed by: SASANKA SEKHAR SATAPATHY Designation: A.R.-CUM-SR. SECRETARY Reason: Authentication Location: HIGH COURT OF ORISSA CUTTACK Date: 15-Apr-2024 11:07:33 // 3 // on the part of the Sub-Registrar-Opposite Party No.1 to register the sale deed. 3.2 He drew attention of this Court to Section 22 of the OLR Act, which reads as under:- “22. Restriction on alienation of land by Scheduled Tribes- (1) 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 : 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 subsection (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) Not withstanding 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 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 document, 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 W.P.(C) No.36686 of 2023 Page 3 of 8 Signature Not Verified Digitally Signed Signed by: SASANKA SEKHAR SATAPATHY Designation: A.R.-CUM-SR. SECRETARY Reason: Authentication Location: HIGH COURT OF ORISSA CUTTACK Date: 15-Apr-2024 11:07:33 // 4 // or part thereof of 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 to 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.” It is, thus submitted that in view of Sub-section (5) of Section 22 of the OLR Act, the provisions under Sub-section (1) and (4) mutatis mutandis apply to SC persons. Although the Petitioner belongs to SC community, but the Opposite Party No.2 being a person from lower economic strata of the society, no prior permission for alienation is necessary. In this regard, he placed reliance on ratio in the case of Ramnaresh Singh Vs. Padmalochan Jaypuria (dead) and after him Gulapi Devi and others, reported in 76 (1993) CLT 367, wherein, this Court has held as under:- “10. ………. It is to be remembered that sections 22, 23, 23-A and 23-B of the Act are incorporated to the statute book to protect comparatively economically back- word community from exploitation by persons who have a higher economic and social status. Any deprivation of free enjoyment of land by member of the scheduled tribe or scheduled caste by a person not belonging to the category of person who is deprived is exploitive invasion to his right which is protected by the aforesaid provisions. As has been observed in 61 (1986) C.L.T. 30 (Karunakar Goud v. Pitabas Sahu) it is a piece of social legislation providing a protective umbrella to the weaker sections of the society. By enacting section 22, legislature in its 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. Being a W.P.(C) No.36686 of 2023 Page 4 of 8 Signature Not Verified Digitally Signed Signed by: SASANKA SEKHAR SATAPATHY Designation: A.R.-CUM-SR. SECRETARY Reason: Authentication Location: HIGH COURT OF ORISSA CUTTACK Date: 15-Apr-2024 11:07:33 // 5 // benevolent protective legislation, interpretation would be liberal so that the object of legislation is fully satisfied to use the protective umbrella. This liberal interpretation would thus be that transfer of possession, which is an interest of the land-holder is void under section 22 (1) of the Act. No Civil Court shall direct specific performance of contract of sale without prior permission of the revenue officer since on the decree being executed, there would be transfer of land which would be void. Civil Court would not pass an ineffective decree. Hence, even if the suit for specific performance of contract for sale would not become bad-on account of section 40(2) of the Act as has been held by the Division Bench, it would not be decreed in view of section 22 (1) of the Act.” 3.3 He, therefore, submits that the Sub-Registrar has erred in law in refusing registration of the sale deed in question. 4. Mr. Mishra, learned ASC vehemently objects to the above submission. It is his submission that in view of the clear language of the provision under Section 22 of the OLR Act, it is manifest that an alienation of immovable property by a raiyat (land holder) belonging to ST community to a non-ST person is void if no prior permission is taken from the competent authority. Sub-section (5) of Section 22 clarifies that the provision of Sub-sections (1) to (4) of Section 22 mutatis mutandis applies to raiyats belonging to SC community. Thus, prior permission of the Revenue Officer is necessary for alienation of an immovable property by a person belonging to SC community to a non-SC person. Admittedly, no permission in the instant case has been taken by the Petitioner for alienation of the case land. Hence, the registering Officer has committed no error in refusing to register the sale deed in question. W.P.(C) No.36686 of 2023 Page 5 of 8 Signature Not Verified Digitally Signed Signed by: SASANKA SEKHAR SATAPATHY Designation: A.R.-CUM-SR. SECRETARY Reason: Authentication Location: HIGH COURT OF ORISSA CUTTACK Date: 15-Apr-2024 11:07:33 // 6 // 5. Heard learned counsel for the parties; perused the materials on record so also the case law cited. Section 22 of the OLR Act makes it amply clear that alienation of an immovable property by a raiyat belonging to ST community to a non-ST person would be void. However, alienation of immovable property without prior permission of the competent authority under the OLR Act between the persons belonging to ST community will not be void. Sub-section (5) of Section 22 of the OLR Act further clarifies that provision under Sub-sections (1) to (4) of said Section 22 will mutatis mutandis applies to raiyats belonging to SC community. In the instant case, the Petitioner being a raiyat belongs to SC community and Opposite Party No.2 belongs to ST community. Thus, the question arises as to whether any alienation of immovable property by a raiyat belonging to SC community to a person of ST community would attract Section 22 of the OLR Act. 6. Mr. Nayak, learned counsel for the Petitioner strenuously argued that persons of ST community generally belong to weaker section of the society than that of SC community both in economic and social status. The statute provides protective umbrella to the persons of weaker section of the society. Mr. Nayak, learned counsel made an endeavour to bring a distinction between economic standard of SC and ST community and states that the Petitioner who belongs to SC community would not be requiring any prior permission for transfer of the immovable property to a person of ST community. A close W.P.(C) No.36686 of 2023 Page 6 of 8 Signature Not Verified Digitally Signed Signed by: SASANKA SEKHAR SATAPATHY Designation: A.R.-CUM-SR. SECRETARY Reason: Authentication Location: HIGH COURT OF ORISSA CUTTACK Date: 15-Apr-2024 11:07:33 // 7 // reading of Section 22 of the OLR Act in its entirety does not make out any such difference, as argued by Mr. Nayak, learned counsel for the Petitioner. On the other hand, law mandates that if a raiyat (land holder) who belongs to ST community intends to alienate his immovable property to a non-ST person he has to take prior permission of the concerned Revenue Officer. Sub- section (5) of Section 22 of the OLR Act makes it further clear that the provisions under Sub-section (1) to (4) of Section 22 mutatis mutandis applies to raiyats belonging to SC community. 7. Mr. Mishra, learned ASC strenuously rightly argued that the Court should not add or subtract words to a legislation. The duty of the Court is only to interpret the statute as provided. If the submission of Mr. Nayak, learned counsel for the Petitioner is accepted, it will amount to add to the provision of Section 22 of the OLR Act, which is not within the competence of judiciary. It is only the duty of the Legislature to add, delete, amend or substitute to the existing provision of a statute. 8. Close reading of Section 22 of the OLR Act, makes it clear that transfer of an immovable property by a raiyat either belonging to SC or ST, if made within the same caste or tribe would not attract Section 22 of the OLR Act. But if the alienation is made either by a SC to a ST person or by a ST to SC person then Section 22 will be attracted. 8.1 It is further submitted by Mr. Nayak, learned counsel for the Petitioner that a person who belongs to ST community does not come within the purview of ‘non-SC’ person. Thus, Section W.P.(C) No.36686 of 2023 Page 7 of 8 Signature Not Verified Digitally Signed Signed by: SASANKA SEKHAR SATAPATHY Designation: A.R.-CUM-SR. SECRETARY Reason: Authentication Location: HIGH COURT OF ORISSA CUTTACK Date: 15-Apr-2024 11:07:33 // 8 // 22 will not be attracted to the present case. If interpretation of Mr. Nayak, learned counsel is accepted it will go against the scope and purpose for which the provision under Section 22 has been introduced to OLR Act as well as the case law cited by him in Ramnaresh Singh (supra). Section 22 of the OLR Act envisages that if a person belonging to SC community intends to transfer immovable property to a non-SC person, he has to take prior permission of the concerned Revenue Officer. Non-SC person includes a ST person. Prior permission of the competent authority for alienation of the immovable property is thus necessary. In the instant case, non-SC person means person other than persons belonging SC community. Thus, it cannot be given a narrow interpretation, as submitted by Mr. Nayak, learned counsel for the Petitioner. 9. In view of the discussion made above, this Court is not inclined to accept the submission of Mr. Nayak, learned counsel for the Petitioner. Accordingly, this Court is of the opinion that the Sub-Registrar, Jagatsinghpur has not acted illegally by refusing to register the sale dee presented by the Petitioner for alienation of the aforesaid property to the Opposite Party No.2 for want of any permission as provided under Section 22(4) of the OLR Act. 10. Hence, the writ petition stands dismissed being devoid of any merit. No Cost. s.s.satapathy (K.R. Mohapatra) Judge W.P.(C) No.36686 of 2023 Page 8 of 8