The High Court
Case Details
IN THE HIGH COURT OF ORISSA AT CUTTACK WP(C) No.41474 of 2023 Smt. Krishna Kumari Pradhan …. Petitioner The Sub-Collector-cum-O.S.D., Balliguda, Kandhamal and Others -versus- Mr. A. Dash, Advocate …. Opposite Parties Mr. U.K. Sahoo, Additional Standing Counsel Md. Riaz, counsel for O.P.3
Legal Reasoning
CORAM: SHRI JUSTICE B. P. ROUTRAY
Decision
ORDER 22.7.2024 Order No. 07. 1. The matter is taken up through hybrid mode. 2. Heard Mr. A. Dash, learned counsel for the Petitioner, Md. Riaz, learned counsel for Opposite Party No.3 and Mr. U.K. Sahoo, learned ASC for State – Opposite Parties. The Petitioner challenges orders dated 15th November, 2022 and 3. 8th December, 2021 passed by the appellate court as well as the original court under Section 3-A of Regulation 2 of 1956. Opposite Party No.3 is the daughter of vendor of the Petitioner namely Samashila Pradhan. The Petitioner purchased a piece of land vide RSD No.466 dated 30th December, 1991 from Samashila Pradhan. Opposite Party No.3 filed RMC Case No.12 of 2020 before the OSD (LR), Baliguda praying to handover possession of the case land sold by virtue of the sale deed dated 30th December, 1991 by declaring said sale deed as null and void. Her case is that the Petitioner is not a member of the Scheduled Tribe and the land was sold to her without getting prior permission from competent authority. The OSD (LR), Baliguda having allowed the prayer of Opposite Party No.3 by order dated 8th December, 2021, the Petitioner preferred appeal in RMA No.3 of 2022 before the Additional District Magistrate, Kandhamal. The ADM also confirmed the order of the OSD rejecting the prayer of the Petitioner. 4. The dispute between the parties rests on the point, whether the sale transaction dated 30th December, 1991 was effected in violation of Section 3(1) of Regulation 2 of 1956. 5. Section 3(1) of the Odisha Scheduled Areas Transfer of Immovable Property, Regulation 2 of 1956 reads as follows:- “3. Transfer of immovable property by a member of the Scheduled Tribe – (1) Notwithstanding anything contained in any law for the time being in force any transfer of immovable property by a member of a Scheduled Tribe, except by way of mortgage executed in favour of any public financial institution for securing a loan granted by such institution for any Agricultural purpose, shall be absolutely null and void and of no force or effect whatsoever, unless such transfer is made in favour of another member of a Scheduled Tribe: Provided that:- (i) nothing in this sub-section shall be construed as to permit any member of a Scheduled Tribe or his successors- in-interest to transfer any immovable property which was settled with such member of Scheduled Tribe by or under Page 2 of 5 any authority of the State or the Central Government or under nay law for the time bring in force; (ii) in execution of any decree for realisation of the mortgage money, no property mortgaged as aforesaid shall be sold in favour of any person not being a member of a Scheduled Tribe; and (iii) a member of a Scheduled Tribe shall not transfer any land if the total extent of his land remaining after the transfer will be reduced to less than two acres in case of irrigated land or five acres in case of un-irrigated land. Explanation-I:- For the purposes of this sub-section, a transfer of immovable property:- (a) in favour of a female member of a Scheduled Tribe, who is married to a person not belonging to any Scheduled Tribe, shall be deemed to be a transfer made in favour of a person not belonging to a Scheduled Tribe; and (b) shall include a transfer of immovable property to a person belonging to a Scheduled Tribe for consideration paid or provided by another person not belonging to any such Tribe. Explanation II:- For the purposes of Clause (iii) of the proviso, the expression “irrigated land” shall mean such land which is irrigated atleast for one crop in a year and the expression “un-irrigated land” shall be construed accordingly. (2) xxxxxx xxxxxx xxxxxx Page 3 of 5 (3) xxxxxx xxxxxx xxxxxx (4) xxxxxx xxxxxx xxxxxx” 6. The facts of present case is that Petitioner is admittedly a person belonging to Scheduled Tribe so also Opposite Party No.3. The sale transaction vide RSD No.466 dated 30th December, 1991 was effected between the petitioner and mother of Opposite Party No.3. The Petitioner married to a Non-ST person. Both the original court and appellate court held that despite the Petitioner belonging to Scheduled Tribe, since her marriage has been effected in respect of a Non-ST person, by operation of Clause (a) of Explanation I of sub-Section (1) of Section 3 of Regulation 2 of 1956, a written prior permission from the competent authority is mandatory and in absence of the same the entire sale transaction in favour of the Petitioner is null and void. 7. As stated above, Explanation-I(a) stipulates that if a female member of a Scheduled Tribe marries to a person not belonging to Scheduled Tribe then the transfer of immovable property in her favour by another member of Scheduled Tribe shall be hit by the provisions under Section 3(1) of the regulations. But here in the present case it is the specific contention of the Petitioner that she belongs to the Scheduled Tribe and married to a member of non Scheduled Tribe after the sale transaction was effected. This specific averment of the Petitioner, as taken in her WS filed before the OSD (LR) that the sale transaction was before her marriage, is not disputed by Opposite Party No.3 specifically. The specific contention of the Petitioner as stated in paragraph 4 of the written statement is reproduced below:- Page 4 of 5 “4. That the opposite party fell in love with one Raju Nayak S/O late Bisi Nayak, caste – Pano (S.C.), during the year 1993 much after her purchase of the case land and has been leading life with him since then, without performance of their marriage. The aforesaid sale transaction can never be invalidated by any provision of the law of the land.” 8. It is true that caste is determined by birth and not by marriage. Even if the Petitioner has married to a non ST person her caste is not changed. However, by operation of Explanation-I (a) of Section 3(1) a written permission is required had the sale transaction been effected after the marriage of the Petitioner. In conformity of the same, perusal of copy of the RSD under Annexure-1 reveals that the description of the Petitioner is mentioned as Krishna Kumari Pradhan, daughter of Rajendra Pradhan. Both the courts below have failed to notice this fact on record that the Petitioner was unmarried on the date of sale transaction and thus they committed error on record. In view of such error committed by both the courts below, the impugned orders under Annexure-9 and Annexure-6 are set aside. 9. The writ petition is allowed. 10. The copy of WS as produced by Mr. A. Dash in course of hearing is kept on record. M.K. Panda Signature Not Verified Digitally Signed Signed by: MANAS KUMAR PANDA Designation: Personal Assistant Reason: Authentication Location: OHC, Cuttack Date: 29-Jul-2024 16:23:32 (B.P. Routray) Judge Page 5 of 5