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TMI Blog1990 (1) TMI 11X X X X Extracts X X X X X X X X Extracts X X X X ..... of the opposite party No. 2, the real transferee was opposite party No. 1 who belongs to a non-Scheduled Tribe. On these allegations, a petition was filed under section 23 of the Orissa Land Reforms Act praying for restoration of possession. The opposite parties Nos. 1 and 2 appeared and, according to them, opposite party No. 2 was the real purchaser and the transfer being from one Scheduled Tribe member to another Scheduled Tribe member, no permission was required before such transfer. On enquiry, the learned Revenue Officer held that the real transferee was opposite party No. 1 and, to play fraud on the prohibition under section 22 of the Orissa Land Reforms Act, the sale deed had been executed in favour of opposite party No. 2 and th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Transactions (Prohibition) Act, 1988, is retrospective in operation (see Mithilesh Kumari v. Prem Behari Khare [1989] 177 ITR 97 (SC)). Hence, the provisions of the Act have to be considered to find out whether the court has jurisdiction to enquire into the benami nature of the transactions. Section 4 of the Act reads as follows : "4. Prohibition of the right to recover property held benami.(1) No suit, claim or action to enforce any right in respect of any property held benami against the person in whose name the property is held or against any other person shall lie by or on behalf of a person claiming to be the real owner of such property. (2) No defence based on any right in respect of any property held benami, whether against the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e real owner is deprived of a right and remedy, in view of the positive provision contained in section 1 of the Ordinance. He cannot bring any suit, claim or action raising the benami plea." This view has again been reiterated in C. Narayanan v. Gangadharan (No.2) [1989] 180 ITR 503 (Ker), where his Lordship K. P. Radhakrishna Menon J. has observed (at p. 506) : "The right to recover property held benami, after the coming into force of section 2, cannot be enforced through court, because no suit, claim or action to enforce any right in respect of any property held benami against the benamidar shall lie by or on behalf of the real owner of such property." Section 2 of the Ordinance is now section 4 of the Act. In our opinion, under sec ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... eree to show cause why the transfer should not be declared invalid." Such prohibition is also there in Regulation 2 of 1956. Section 3(1) of Regulation 2 of 1956 reads as follows : "(1) Notwithstanding anything contained in any law for the time being in force any transfer of immovable property situated within scheduled area, by a member of a Scheduled Tribe shall be absolutely null and void and of no force or effect whatsoever unless made in favour of another member of a Scheduled Tribe or with the previous consent in writing of the competent authority : ... (2) Where a transfer of immovable property is made in contravention of sub-section (1) the competent authority may, either on application by any one interested therein or on his o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... les laid down in this case shall also be applicable to a case under sections 22 and 23 of the Orissa Land Reforms Act. In our view, the Orissa land reforms authorities have the jurisdiction to examine the real character of a transaction even if the real transferee disclaims to be the real owner. The revisional authority has given no finding with regard to the nature of the transaction, but has only allowed the revision, holding that the Orissa land reforms, authorities have no jurisdiction to decide the real nature of the sale deed. In that view of the matter, the judgment of tile revisional authority cannot be sustained and is liable to be quashed. Since the revisional authority as the final court of fact has given no finding on the ..... X X X X Extracts X X X X X X X X Extracts X X X X
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