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PETITIONER: OM PRAKASH AGARWAL & ORS.

       Vs.

RESPONDENT: BATARA BEHERA & ORS.

DATE OF JUDGMENT:       10/03/1999

BENCH: G.B.Pattanaik, M.B.Shah

JUDGMENT:

PATTANAIK,J.

     This  appeal  is directed against the  judgment  dated 4.7.85  of  the Orissa High Court whereunder the High  Court has  come to the conclusion that the agricultural lands even within the municipal area will come under the purview of the Orissa  Land Reforms Act.  The disputed land measuring 2.133 acres  is situated on periphery of Cuttack Town and the said land  was sold by a Registered Sale Deed dated 24.6.1966, in favour  of non-scheduled caste persons by persons alleged to be  belonging to Scheduled Caste.  Respondent no.1 who is  a co-sharer  of the vendors of the aforesaid Sale Deed filed a Petition  invoking  the jurisdiction of the Revenue  Officer under Section 23 of the Orissa Land Reforms Act (hereinafter referred to as ’The Act’) alleging therein that the transfer in  question  being in contravention of Sub-Section  (1)  of Section  22 is void and, therefore, the vendor should be put back  in  possession.   The said Revenue  Officer  held  the necessary enquiry under Sub-Section (2) of Section 23 and by order  dated 28.2.83 declared the sale to be invalid.  While coming  to  the  aforesaid conclusion  the  Revenue  Officer rejected  the contention that the vendors are not  Scheduled Caste  persons and also recorded the finding that the  lands in  question  could be governed by Orissa Land  Reforms  Act notwithstanding  the  fact that the land is situated  within the  municipal  limits of the Cuttack Town.   The  aforesaid order  of the Revenue Officer was assailed in appeal  before the  Additional District Magistrate, Cuttack, but the appeal was  dismissed  by order dated 7.6.83.  The matter was  then carried  in  revision  to   Special  Officer  Land  Reforms, Cuttack,  and the said Special Officer allowed the  Revision by  order dated 31.12.1983 on a conclusion that Land Reforms Act does not apply to urban land.  Respondent No.  1 filed a Writ  Petition assailing the aforesaid order of the  Special Officer  Land Reforms, Cuttack and by the impugned  judgment dated  4.7.85  the  High  Court  after  analysing  different provisions  of the Act, more particularly, the definition of ’Land’  in Section 2 (14) of the Act came to the  conclusion that  the situation of the land within the urban area is not a relevant consideration to determine whether the particular land  comes  within the purview of the Land Reforms  Act  or not.   But since no evidence had been lead by the parties to indicate   whether  the  disputed   land  comes  within  the definition  of  ’Land’ under Section 2 (14) of the  Act  the High Court remitted the matter to the Sub-Divisional Officer

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for  fresh  disposal  after  giving  opportunities  to  both parties  to  lead evidence, if they are so advised.   It  is this  order  of  the  Orissa   High  Court  which  is  being challenged in this appeal.

     Mr.    G.L.   Sanghi,  the   learned  senior   counsel appearing for the appellants contended that the very purpose of  the  Orissa  Land  Reforms   Act  being  a   progressive legislation  relating to agrarian and land tenures, the said Act  cannot have any application to the land which is a part of  the master plan of a City and, therefore, the High Court committed  error  in  applying the provisions  of  the  Land Reforms  Act  to  the  case in hand.   Mr.   Sanghi  further contended  that in the absence of any materials to  indicate that  the vendors of the sale deeds belong to the  Scheduled Castes  the  embargo contained under Section 22 of  the  Act will not apply and, therefore, the application under Section 23  of the Act was not tenable.  Mr.  Sanghi also  submitted that in view of Section 73(c) of the Land Reforms Act and in view  of  the fact that the area comes within a master  plan thereby necessarily reserved as an urban area the Act cannot have  any  application.  The learned senior counsel for  the respondents on the other hand contended, that the definition of  ’Land’  in Section 2(14) is wide enough to  include  the lands  within  the municipal area provided the same is  used for  agricultural  purposes or is capable of being used  for agricultural  purposes  and in that view of the  matter  the High Court rightly remitted the matter to the Sub-Divisional Officer for re-consideration.

     In  view of the rival submissions at the Bar the first question  that arises for consideration is whether the  land as  defined in Section 2(14) of the Act and which is  either being  used  or  capable  of  being  used  for  agricultural purposes within the municipal area do come under the purview of  Orissa Land Reforms Act.  The Act, no doubt is a measure relating  to agrarian reforms and land tenures and abolition of  intermediary  interest but there is no provision in  the Act  which  excludes such agricultural lands merely  because they  are  situated  in an Urban  Agglomerations.   The  Act applies to all land which is either used or capable of being used for agricultural purposes irrespective of whether it is situated  within a municipal area or in villages.  The  very object  of  the  legislation being an agrarian  reform,  the object  will be frustrated if agricultural lands within  the municipal area are excluded from the purview of the Act.  In this view of the matter we have no hesitation to come to the conclusion  that the Act applies to all lands which is  used or   capable  of  being   used  for  agricultural   purposes irrespective  of the fact wherever the said land is situated and  the  conclusion  of  the High Court on  this  score  is unassailable.   The  first  submission of  Mr.   Sanghi  is, therefore, devoid of any force.  So far as the question that the vendors do not belong to the Scheduled Castes it appears that  the  Sub-Divisional Officer on the basis of  materials produced  before him came to a positive conclusion that  the vendors  of the sale deeds belong to Scheduled Castes  which is confirmed by the record of right.  This conclusion of the Sub-Divisional  Officer  had  not been assailed  before  the Appellate  Authority, as is apparent from paragraph 2 of the Appellate   judgment.   Since  the   finding  of  the   Sub- Divisional  Officer  on the question whether the vendors  of the sale deeds belong to Schedule Castes or not had not been assailed  before  the Appellate Authority, the said  finding has  become final and cannot be permitted to be  re-agitated

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again.   Rightly, therefore, the High Court did not consider the  said  question  and  in our  considered  opinion,  that question  cannot  be  re-opened now.  So far  as  the  third submission  of  Mr.  Sanghi is concerned, we do not have  an iota  of  material on record to establish that the  area  in question   has   been  reserved   for  urbanisation   by   a notification   issued  in  the   Official  Gazette  of   the Government  within the ambit of Section 73(c) of the Act  so that the Act cannot have any application.  In the absence of such  material  it is difficult for us to sustain  the  said submission  of Mr.  Sanghi, learned senior counsel appearing for the appellants.

     In  the  premises, as aforesaid, all  the  submissions having  been failed the appeal fails and is dismissed.   But in the circumstances, there will be no order as to costs.