1990 (1) TMI 11

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....e deed stands in the name 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 opp....

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....ra that the Benami 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, whe....

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....ction (1). The 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,....

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....d transferee 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 ....