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IN THE HIGH COURT OF ORISSA AT CUTTACK

W.P.(C). No. 22751 of 2021 and 2903 of 2022

(An Application under Articles 226 & 227 of the Constitution of

India)

W.P.(C). No. 22751 of 2021

Akshya Kumar Naik …. Petitioner

-Versus-

Pawan Kumar Agrawal & Others .... Opposite Parties

_____________________________________________

For Petitioner : Mr. S. Sourav, Advocate,

For Opp. Party : Mr. S.N.Pattnaik, AGA

Mr. S. Swain, Advocate (O.P. No.5)

_______________________________________________________

W.P.(C). No. 2903 of 2022

Akshaya Kumar Naik ...… Petitioner

-Versus-

ADM-cum-Appellate Authority,

Sundergarh & Ors. ....... Opposite Parties

_____________________________________________

For Petitioner : Mr. B.K. Mishra, Advocate,

For Opp. Party : Mr. S.N.Pattnaik, AGA

Mr. S.K. Dash, Advocate (O.P No.5)

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_______________________________________________________

CORAM:

JUSTICE SASHIKANTA MISHRA

JUDGMENT

31

st July, 2026

SASHIKANTA MISHRA, J.

Both these writ applications involving common facts and

point of law were heard together and are being disposed of by

this common judgment.

2. In W.P.(C). No. 22751 of 2021, the petitioner seeks to

challenge the order dated 18.06.2021 passed by the ADM,

Sundargarh in R.A. Case No. 29 of 2018. In W.P.(C). No. 2903

of 2022, the petitioner seeks to challenge the order dated

10.04.2013 passed by the ADM, Sundargarh in R.A. No. 1 of

2018.

Facts:

3. The case land pertains to Hal Plot No. 157 under Khata

No. 301 measuring Ac. 0.88 decimal. Late Sansaru Gond and

late Amar Gond were the recorded tenants of the land. The

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private Opposite Party No.5 namely, Pawan Kumar Agrawal

claims that his ancestor purchased the land from the recorded

tenants in the year 1946. In major settlement held in the year

1977, the ROR was prepared in the name of the original

recorded owners. In 1987-88, the private opposite party filed

Mutation Case No. 256 of 1987 for correction of the ROR in

their favour basing on the purported sale deed executed in the

year 1946. The same was allowed and the ROR was corrected.

The above fact was not within the knowledge of the petitioner’s

predecessors till 2006 when construction was made over the

land. The petitioner’s father late Chintamani Nayak filed a

Regulation Misc. Case being RMC No. 40 of 2006 before the

OSD (L.R), Sundargarh with prayer to evict the private Opposite

Parties as per Section 3-A of Regulation-2 of 1956. After

verifying all records and examining the witnesses, the OSD

(L.R.) by order dated 03.03.2009 found that there was no sale

deed of the year 1946 as claimed and no permission was

obtained from the competent authorities. Accordingly, the land

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was directed to be restored to the father of the petitioner. Said

order was challenged by the private Opposite Party in appeal

before the ADM vide R.A. No. 22 of 2007. By order dated

15.07.2009, the appellate Court, observing that no inquiry was

conducted and proper opportunity had not been given to the

appellant, remanded the matter for fresh disposal. Ultimately

by order dated 24.12.2018, the OSD (L.R.) reiterated his earlier

findings but instead of directing restoration of the case land,

directed the Opposite Parties to pay compensation to the

petitioner at the present market price basing on the judgment

of the Supreme Court in the case of Amarendra Pratap Singh

vrs. Tej Bahadur Prajapati

1

. Said order was again challenged

by the private Opposite Party in appeal being R.A. No. 23 of

2018. By order dated 18.06.2021, the appellate authority

allowed the appeal and set aside the order of the OSD (L.R.) for

payment of compensation. Another fact to be mentioned is that

after purportedly purchasing the land from the recorded

1

AIR 2004 SUPREME COURT 3782

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owners, the father of the private Opposite Party namely, Srilal

Agarwal donated some portion for construction of a school.

Accordingly, a school named Rastriya Vidyalaya was

established over the case land in the year 1951. Said school

was subsequently taken over by the State Government. By

order passed in Mutation Case No. 1030 of 1989, the property

was mutated in the name of Shree Memorial Trust. Presently,

the property stands recorded in the name of Education

Department of the State Government as per major settlement

records.

4. Stand of the State Government is that Rastriya

Vidyalaya, Rajgangpur was established on 11.02.1951 and was

taken over by the Government on 01.04.1969. Said school was

established on the land donated by some social workers and

freedom fighters. In the settlement camp of the year 1958 no

objection was raised by the predecessors of the petitioner.

Accordingly, the ROR was published in favour of the Education

Department on 13.10.1997 as the land was under possession of

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the school since 1951. It is the further case of the State

Government that one Sansaru Gond had sold the land to Srilal

Agarwal and the co-owner Amar Gond never protested at the

time of construction of the second building in the year 1952.

The petitioner has not proved that he is the legal heir of the

original recorded owners. The petitioner has come to the Court

with unclean hands as other legal heirs of Sansaru Gond are

available. Under such circumstances, the impugned order does

not warrant any interference.

5. The stand of the private Opposite Party is that his

grandfather Srilal Agarwal purchased land measuring Ac. 1.44

decimals from the recorded tenant for Rs. 100 through a stamp

paper sale deed as at that time no registration was required for

transfer. While in peaceful possession of the land, on public

demand Srilal Agarwal donated land measuring Ac. 0.56 of the

same to Rastriya Vidyalaya for development of educational

institution. A school building was constructed over the said

plot. The property was recorded in the name of the Education

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Department in the Hal settlement of the year 1977 in respect of

Ac. 0.56 decimals. The remaining portion of the land was

mutated in the names of the successors of Srilal Agarwal.

Subsequently said portion was transferred in favour of Shree

Memorial Trust. The father of the petitioner had another

brother namely, Nilamani Naik but surprisingly only

Chintamani filed the case before the OSD (L.R.) claiming

himself to be sole legal heir of Sansaru Gond. He has no

exclusive right, title over the property. On such facts, it is

stated that the impugned order does not warrant interference.

6. Heard Mr. B.K.Mishra, learned counsel for the

petitioner, Mr. S.N.Pattnaik, learned AGA for the State and Mr.

S.K.Dash, learned Senior counsel with Mr. K. Acharya for the

private Opposite Party.

7. Mr. Mishra forcefully argues that the claim of the

private Opposite Party that grand-father Sri Lal Agarwal had

purchased the land through stamp paper deed for Rs. 100/-

from the recorded owner is false and baseless as the said deed

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has not been produced before any of the authorities. Even

otherwise, the sale consideration being Rs.100/-, the document

was required to be compulsorily registered, which not having

been done renders it void. Therefore, it cannot be said that any

title passed to the so-called purchaser. Mr. Mishra further

submits that once the sale transaction is held to be void all

subsequent transactions are automatically rendered void.

Therefore, the so-called gift of Ac. 0.56 decimals in favour of

Rastriya Vidyalaya has no sanction of law. Mr. Mishra further

argues that even assuming that the recorded owner had

transferred the land in favour of the grandfather of the private

Opposite Party, the same would be hit by the prohibition

against transfer of property by a tribal to non-tribal without

permission of the competent authority. According to Mr.

Mishra, therefore, the OSD(L.R.) had rightly directed

compensation to be paid to the petitioner.

8. Mr. S.N.Pattnaik, learned AGA on the other hand would

argue that the petitioner has no locus standi to challenge the

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recording of the land in favour of the State Government

(Education Department) as he has not been able to prove that

he is the sole legal heir of the original recorded owners. In fact,

there are materials to show that other legal heirs that are

available have not come forward to object to the donation of the

land by Srilal Agarwal as far back as in the year 1951. The

settlement authorities have rightly recorded the land in favour

of the State Government.

9. Mr. S.K.Dash, learned Senior counsel would argue

that the land in question was purchased by Srilal Agarwal prior

to commencement of Odisha Regulation-II of 1956. In any case,

the Regulation is confined to agricultural land of the tribals as

defined under Section 2-A of the Regulation. The purchased

land on the other hand is a Gharabari Kisam. In the mutation

proceeding, the legal heirs of Sansaru Gond namely, his wife

Basumati, daughter Basanti and grand-son Chintamani have

given their consent. In any case, as per Section(2)(h) of Hindu

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Succession Act, a tribal woman has no right of property of her

father after marriage.

10. From the facts narrated above and the contentions

raised by the parties, this Court finds that the moot questions

to be decided in the present writ applications are as follows:

I. Whether the sale of the case land by its recorded owner

late Sansaru Gond and Amar Gond in favour of the Srilal

Agarwal on 15.11.1946 is legal and valid?

II. Whether the gift of land measuring Ac. 0.56 decimals of

the aforementioned purchased land in favour of Rastriya

Vidyalaya purportedly in the year 1951 is legal and valid?

Answer to question No.I:

11. The alleged deed, on the basis of which the private

Opposite Party claims to have derived title, has not been

produced either before this Court or before any of the

authorities below. It simply claimed that the same was effected

through a stamp paper deed for the consideration of Rs. 100/-.

The document is stated to have been executed on 15.11.1946.

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However, it has never seen the light of the day before any

forum. In the absence of the document itself, neither the nature

of the transaction nor the terms and conditions thereof can be

ascertained. Consequently, the very foundation of the claim of

title set up by the predecessor of the private opposite party

remains shrouded in doubts.

12. It is argued that the alleged deed was not registered

even though it sought to convey title. This argument, according

to this Court, cannot hold because the land in question was

situated in the erstwhile State of Gangpur at the time of the

transaction. Section 3 of the Merged States (Laws) Act, 1950

provided for extension of the laws specified in the Schedule to

the said Act to the merged States. On a perusal of the Schedule,

it is seen that the Indian Registration Act, 1908 was not in force

in the State of Gangpur on the date of the transfer in the year

1946 and became applicable much after, that is, from 26

th

February, 1950. Therefore, the validity of the transaction

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cannot be tested only on the basis of the provisions of the

Indian Registration Act, 1908.

13. At the relevant time, the erstwhile State of Gangpur had

its own laws governing transfer of land between tribals and

non-tribals requiring prior permission of the authority. It is not

the case of either party that such permission was not obtained

before the alleged transfer in favour of Srilal Agarwal. Even

assuming that such permission has been granted, no document

proving the same has been produced before this Court.

14. In the present Case, apart from the claim regarding

execution of a stamp paper deed, the primary document

evidencing such transfer has not been brought on record. The

alleged sale, on the basis of which the entire claim of the

private Opposite Party rests, thus remains doubtful and

therefore, not proved.

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Answer to question No.II:

15. Answer to the second question lies in the answer to

the first. Since the original transaction itself has not been

proved, the natural corollary is to hold that the transferee had

never acquired title over the property as claimed so as to

alienate the same by way of sale, gift or otherwise. Most

surprisingly, the State claims that the land in question was

donated by Social Workers and Freedom Fighters but no deed

evidencing such donation is forthcoming. It is simply presumed

that the land was gifted in the name of the school. The

Headmaster of the school gave out before the settlement

authorities that the deed was stolen. Now, this is a patently

unbelievable and/or unacceptable statement not worthy of

consideration in the absence of anything to show as to what

action was taken by the authorities concerned. Be that as it

may, this Court has already held that the original source of title

as claimed is not proved. It is settled law that once the

foundation goes, the superstructure collapses. Even otherwise,

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referring to the notification dated 05.02.1966 of the erstwhile

Revenue and Excise Department of the Government of Orissa, it

was attempted to be argued that in the ex-State of Sundargarh

there was no restriction on transfer of land by an occupancy

tenant whether or not he belongs to a schedule tribe. The

relevant portion of the notification is reproduced below:

(a) Govt. Of Orissa vide No. 6723 AG.- 7/66-R ,on

dated 05.02.1966 notified in respect of restriction on

transfer of lands by the Adibasi to the non-Adibasi, in

which it has been specifically mentioned regarding ex-

State areas :-

(i) Prior to Merger i.e

1.1.1948 in all ex-

State except

Mayurbhanj

(i) Ex-State laws of

restrictions were

applicable.

(ii) [text omitted] (ii) [text omitted]

(iii) In ex-State of

Sundargarh and

Mayurbhanja from

merger to till

3.10.1956 (both

days inclusive)

(iii)There was no

restriction on

transfer of land by

an occupancy

tenant whether or

not he belong to a

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Scheduled Tribe.

(iv) In the ex-State

of Sundargarh and

Mayurbhanj from

04.10.1956

(iv) Regulation 2 of

1956 is applicable.

16. The relevant part of the notification applies only from

the date of merger till 03.10.1956. It is common ground that

the State of Gangpur merged in the State of Odisha with effect

from 01.04.1948. Though the gift is said to have been effected

somewhere in the year 1951, this Court fails to see as to how

this improves the case of the private Opposite Party or for that

matter, the State in any manner. This is being said for the

reason that the original source of title claimed by the private

Opposite Party has not been proved. Therefore, the subsequent

gift by the predecessor of the private Opposite Party, if at all,

would be a case of a person alienating land over which he has

no title. This is directly hit by the provision under Section 41 of

the T.P. Act.

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17. It has been argued that the legal heirs of the recorded

owner had stated that they had no objection to the land being

recorded in the name of school during settlement operation in

the year 1977 basing on which the land was so recorded. This

also does not improve the case of the State or the private

Opposite Party for the reason that mere entry in settlement

records cannot create title when there is none in favour of the

person concerned.

18. It has been further argued that the petitioner is not the

only legal heir of the recorded owner for which no relief can be

granted to him. Once this Court holds that the original sale and

the subsequent gift could not be satisfactorily proved, the

natural corollary would be to direct restoration of the land in

favour of all the legal heirs of the recorded owner irrespective of

the fact that only one of them had approached the competent

Court. Obviously, the so-called sale and gift cannot become

valid only for the non-joining of other legal heirs in the

challenge posed to it.

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19. From what has been discussed hereinbefore, this Court

is of the view that the impugned orders not having considered

the aforesaid vital legal aspects involved, cannot be sustained.

On the contrary, the order passed by the OSD(L.R.) invalidating

the sale and the subsequent gift is found to be legally correct.

This Court fully concurs with the findings of the OSD (L.R.).

20. Having held so, the question that arises is, but relief

can be granted. This Court takes note that much water has

flowed under the bridge. Nearly 80 years have passed by since

the date of so-called sale by the original recorded owners and

nearly 75 years since the date of gift. A Government school is

presently functioning over the land in question. Therefore,

interests of justice would be best served by directing

compensation to be paid to the legal heirs of the recorded

owners in lieu of restoration of the land. In fact, the petitioner

appears to have submitted an affidavit before the OSD(L.R.) to

receive adequate compensation instead of restoration of land.

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21. This Court therefore, concurs with the direction of the

OSD(L.R.) to the Education Department to pay compensation as

fixed on the date of the order but modifies such direction to the

effect that the same shall be paid in equal proportions to all the

surviving legal heirs of the recorded owners. Such payment

shall be made within two months from today after ascertaining

the particulars and whereabouts of all the legal heirs.

22. The Writ Applications are therefore allowed. The

impugned orders are set aside.

……..…………………..

Sashikanta Mishra,

Judge

Deepak