CUTTACK: In a bid to ensure protection of property rights of marginalised communities, the Orissa High Court has issued comprehensive legal guidelines to regulate the sale or transfer of undivided property by members of Scheduled Castes (SC) and Scheduled Tribes (ST) communities.
Justice SK Panigrahi, in a recent order, emphasised that no individual member of the SC/ST community can unilaterally alienate any specific portion of a joint family property unless there has been a formal and legal partition. This must be effected either through a registered agreement or a decree by a competent civil court.
In the absence of such a partition, any proposed sale or transfer by a coparcener (equal shareholder) must be preceded by the informed and written consent of all other SC/ST coparceners, the order issued on July 18 and uploaded on Wednesday outlines, placing the onus on the transferer to prove that all interested parties have consented to the transaction.
If the intended transferee does not belong to an SC or ST community, the sale will only be valid with prior approval from the competent revenue authority. This authority must ensure the transaction meets several strict conditions like verification of the transferer’s partitioned and demarcated share, consent of all other coparceners in case of undivided holdings, assurance that the sale does not jeopardise the livelihood or residence of other SC/ST coparceners and confirmation that the deal does not bypass protective provisions, such as section 22 of the Orissa Land Reforms Act.
Further, the revenue authorities are barred from approving mutations or changes in ownership records unless the transferer presents a valid partition deed or court decree, along with evidence of consent from other coparceners.
The court made it clear that any transaction violating these principles will be considered invalid legally from the outset and not merely voidable. The burden of proof will lie squarely on the transferee to demonstrate compliance with the law and protection of the interests of all affected SC/ST family members. In cases of unlawful sales, authorities have been empowered to initiate suo motu cancellation proceedings under the Orissa Land Reforms Act or other relevant statutes.
Justice Panigrahi issued the guidelines while hearing a case involving an undivided joint property of four acre and 40 decimals of land at Baniapat Khuntapada in Keonjhar district with three brothers and three sisters from a Scheduled Caste family as legal heirs. The three sisters had moved the court after they were excluded from sale transactions executed by the brothers. Portions of the land sold was transferred to a person from outside the SC/ST community, who later received compensation when the land was acquired for national highway expansion.
