CHANDRAMANI PATEL Vs. COLLECTOR AND ORS.

JUDGEMENT

(1.) THE revisional order of the Collector, Bolangir, in O.L.R. Revision Case No. 3 of 1979 which has been annexed as Annexure -3 is being assailed in this writ application.

(2.) THE Petitioner purchased 814 acres of land from one Sadasiv Bhoi by a registered sale deed dated 17 -4 -1962 for a consideration of Rs. 5,200/ - and according to the Petitioner he is in possession of the land ever since the sale in his favour. Opposite party No. 4 who is the daughter of the Petitioner 's vendor filed an application before the Revenue Officer invoking his jurisdiction under Section 23 -A of the Orissa Land Reforms Act alleging therein that the transfer in question being one from a Scheduled Tribe person in favour of a non -Scheduled Tribe person and there being no permission of the competent authority for such transfer as required under Section 22 of the said Act, the transfer is void and possession of the Petitioner is unauthorized and, therefore, a prayer was made that the possession of the land be delivered to her. The Sub -Divisional Officer by his order dated 1 -6 -1978 came to the conclusion that the transfer in question without permission of the competent authority was void and accordingly directed the Petitioner to deliver possession to opposite party No. 4. The order of the Sub -Divisional Officer has been annexed as Annexure -1. He also levied a penalty of Rs. 256/ -. The Petitioner being aggrieved by the said order carried the matter in appeal which was heard by the Additional District Magistrate in O.L.R. Appeal No. 101 of 1978. The Additional District Magistrate come to the conclusion that the land in question having been purchased in April, 1962, and there being no prohibition or restriction for such transfer till that date, the transfer could not be said to be void. After recording the conclusion that the transfer was not illegal, the further came to hold that the possession of the Petitioner could not be held to be unauthorized and, therefore, he set aside the order of the Sub -Divisional Officer. Opposite party No. 4 assailed the aforesaid order of the Additional District Magistrate in revision before the Collector in O.L.R. Revision Case No. 3 of 1979. The Collector by his order dated 3 -11 -1981, annexed as Annexure -3, came to the conclusion that under the provisions of the Patna State Tenancy Act, a restriction regarding transfer by an aboriginal in favour of a non -aboriginal was there and the said provision continued to remain in force by virtue of the provisions contained in Section 7 of the Orissa Merged States (laws) Act, 1950, and in view of such prohibition under the Patna Tenancy Appeal transfer, in question must be held to be void and, therefore, the possession must be held to be unauthorized. With the aforesaid conclusion he set aside the order of the Additional District Magistrate. It is this order of the Collector which is being assailed in the present writ application.

(3.) ADMITTEDLY , the transfer in question in favour of the Petitioner is dated 17 -4 -1962 and on that date the Orissa and Reforms Act had not been promulgated. Consequently, any restrictions in Section 22 of the Act will not apply to a transfer made earlier in point of time. So far as the prohibition under the Patna Tenancy Act is concerned, true it is, there was such a prohibition for a transfer from an aboriginal, to a non -aboriginal but that transfer made the transaction that was made on 17 -4 -1962 illegal and the possession of the Petitioner pursuant to the said illegal transaction from 17 -4 -12 became adverse. By the time Section 23 -A was introduced into the statute book, namely, by Act 44 of 1976, Petitioner 's hostile possession had become more than twelve years aid and, therefore, by that time the Petitioner held perfected his title by adverse possession. On the date of application of opposite party No. 4 which is in the year 1978, the Petitioner is there for more than sixteen years, In either view, the right that has accrued in favour of the Petitioner being is possession adversely for more than twelve years cannot be taken away by introduction of Section 23 -A of the Orissa land Reforms Act. Therefore, the authorities committed an error in invoking jurisdiction under Section 23 -A of the Act to declare the possession unauthorized and directing the Petitioner to deliver possession of the property to opposite party No. 4. In our opinion, therefore, the Collector while exercising his revisional jurisdiction under the Act clearly transgressed his jurisdiction and committed gross error ill holding that the transfer under the Patna Tenancy Act being void, the Petitioner 's possession must be held to be unauthorized and, therefore, he was evict able under Section 23 -A of the Orissa land Reforms Act. While coming; to the aforesaid conclusion he has thoroughly overlooked the date when Section 23 -A came into the statute book as well as the fact that the period intervened between the date of possession of the Petitioner and the date of enforcement of the Act Consequently, the order of the Collector dated 3 -11 -1981 cannot be sustained. A writ of certiorari be issued quashing the order of the Collector under Annexure -3. The order of the Additional District Magistrate under Annexure -2 is affirmed.