HIMARIKA RAMUDU Vs. KONDAGORRI BUCHHANNA

JUDGEMENT

(1.) PETITIONER No. 1 and opposite party No. 1 are members of Scheduled Tribe and petitioner No. 2 is a member of a non-Scheduled Tribe. On 5-3-64 opposite party no. 1 executed a registered usufructuary mortgage of the disputed land, 1. 48 acres in area, for Rs. 400/- in favour of petitioner No. 1. On 20-11-66 opposite party No. 1 filed an application before the Sub-Collector of Rayagada, opposite party No. 2, complaining that petitioner No. 2 had taken the disputed land on mortgage for a paltry sum of paddy advanced by way of loan and prayed that the disputed land be released from mortgage after adjustment of the dues. No notice was issued on petitioner No. 1 who was not a party to the proceeding. Opposite party No. 2 held an enquiry under Section 3 (2) of the Orissa Scheduled Areas transfer of Immovable Property (By Scheduled Tribes) Regulation, 1956 (Orissa Regulation No. 2 of 1956) (hereinafter referred to as the Regulation) and came to the conclusion that though apparently the mortgage deed was executed in favour of petitioner No. 1, it was a camouflage and the real transferee was petitioner No.

(2.) HE accordingly ordered that the disputed land be formally restored to opposite party No. 1. Petitioner No. 2 was further directed to pay a penalty of Rs. 470/- at, the rate of Rs. 80/- per acre by 3-8-68, failing which the sum was to be realised from him by certificate procedure. Out of the penalty realised, 40 per cent was to be paid to opposite party No. 1 to compensate him on account of the loss sustained for the land during long possession of petitioner No. 2, The writ application has been filed under Articles 226 and 227 of the Constitution challenging the validity of the impugned order as being without jurisdiction. 2. Mr. Ramdas contends that opposite party No. 2 had no jurisdiction to make an enquiry of the aforesaid nature and it is only the Civil Court which has got jurisdiction to declare such a transaction void even assuming that it was a transfer in favour of petitioner No. 2 though apparently it was in favour of petitioner No. 1. This contention requires a careful examination of the relevant sections of the regulation.

(3.) THE preamble of the Regulation shows that the object in passing such a regulation was to control and check transfers of immovable property by the scheduled Tribes in the Scheduled Areas of the State of Orissa. It is not challenged that the disputed lands are situate in a Scheduled area of the State of orissa. "competent Authority" has been defined in Section 2 (a) to mean "the collector and includes any other officer or officers appointed by the State government by notification to perform all or any of the functions of a competent authority under this Regulation". That the S. D. O. , Rayagada has been appointed as a competent authority has not been disputed, "transfer of immovable property" under Section 2 (f) of the Regulation means "mortgage with or without possession, lease, sale, gift, exchange or any other dealings with such property not being a testamentary disposition and includes a charge or contract relating to such property". The impugned mortgage was with possession and comes clearly within the definition of the expression "transfer of immovable property. "