BUTU NAIK Vs. AINLA NAIKANI AND ANR.

JUDGEMENT

(1.) THE orders passed by the statutory authorities in the proceeding under Section 23 -A of the Orissa land Reforms Act, 1960 (hereinafter referred to as the 'Act') are in challenge in this writ application. The Petitioner has prayed to issue a writ of certiorari quashing the orders as per Annexures -1, 2 and 3 to the writ application.

(2.) THE proceeding under Section 23 -A of the Act was initiated on the application filed by the opposite party No. 1 Ainla Naikani on 20 -11 -1976 before the Sub -divisional Officer, Dharamgarh to restore the disputed land Ac. 5.74 dec. in Khata No. 63 of village Moter which she had sold to the Petitioner Butu Naik by registered sale deed dated 16 -4 -1963 on the ground that the transfer was invalid being hit by Section 7(b)(i) of the Orissa Merged States (laws) Act, 1950. The specific grounds of challenge to the sale was that the transferor is a member of a Scheduled Tribe being 'Banjara' by caste while the transferee is Mali by caste and not a member of Scheduled Tribe and the transfer was effected without prior permission of the Sub -divisional Magistrate concerned. Initially, the Sub -divisional Officer, dropped the proceeding holding that it was not maintainable since the transfer was made prior to the enforcement of the Act. On appeal by the opposite party No. 1, the Addl. District Magistrate, Kalahandi set aside the order and remitted the case to the Sub -divisional Officer for fresh consideration and disposal with the direction to consider particularly the question whether the transferor was Banjara by caste and therefore a member of the Scheduled Tribe while the transferee was not a member of such tribe. On fresh enquiry the Sub -divisional Officer by the order dated 18 -7 -1989 as per Annexure 1 held that the sale was invalid and directed the Petitioner to restore the case land to the opposite party No. 1. On appeal by the Petitioner, the Addl. District Magistrate, Kalahandi by order dated 8 -2 -1982 as per Annexure -2 agreed with the finding of the Sub -Divisional Officer that the impugned sale was contrary to the provisions of the Orissa Merged States' (Laws) Act, 1950 and came within the purview of Section 23 -A of the Act, confirmed the order and disposed of the appeal.

(3.) WE propose to take up first the latter two points as formulated above, If they are answered in favour of the Petitioner, it win not be necessary to consider: he first point. On behalf of the Petitioner it is contended that the proceeding under Section 23 -A of the Act is not maintainable since the Sub -Divisional Officer has no jurisdiction to direct restoration of the case land to the opposite party No. 1. In support of this contention it is urged that before filing of the application under Section 23 -A, in 1976 the Petitioner -transferee had been in possession of the land for twelve years and therefore had perfected his title to the property by adverse possession. It is further urged that the amended provision substituting twelve years by thirty years' period of limitation has no application to the proceeding under Section 23 -A.