David Ledison alias Adison Lima and Others vs Additional District Magistrate and Others

A.S. Naidu, J.—The order of eviction passed by the competent authorities under the Orissa Scheduled Areas Transfer of Immovable Property (by Scheduled Tribes) Regulation, 1956 (Regulation 2 of 1956) is assailed in this Writ Petition.

All the petitioners are non-scheduled tribe persons. They are alleged to be in possession of parcels of land belonging to Opp. Party No. 4 who is admittedly a tribal person. On the basis of an application filed by the said opposite party, the Sub-Collector, Gunupur, the Officer-on-Special Duty under the Regulation, instituted a proceeding u/s 3(A) of Regulation 2 of 1956. The plea of the petitioners in the said case was that they were in occupation of the disputed lands for a number of years and had acquired right, title and interest over the same. They had also raised certain constructions over the same.

The Sub-Collector, Gunupur after hearing the parties by order dated 7th November, 2002 held the possession to be unauthorized and illegal. He therefore directed eviction of the petitioners from the said lands. Being aggrieved by the said order, the petitioners preferred appeal before the Addl. District Magistrate, Rayagada which was registered as OSATIP Appeal Case No. 1 of 2003. In the said appeal the petitioners reiterated their stand that they had acquired title over the disputed lands by viture of their possession from the time of their ancestors and that the Officer-on-Special Duty without giving them adequate opportunity had disposed of the case. The appellant authority after hearing the parties arrived at the conclusion that the petitioners were in unauthorized occupation of land belonging to a member of Scheduled Tribe community and such occupation attracted the provision of Section 3(A) of Regulation 2 of 1956. On the basis of such conclusion the appellate Court directed eviction of the petitioners from the disputed lands. The said order, as stated above, is assailed in this Writ Petition.

Mr. Chhinchani, Learned Counsel for the petitioners, forcefully submitted that the petitioners are in occupation of the disputed lands from the time of their ancestors and they have acquired valid right, title and interest over the same by adverse possession. He further submitted that the petitioners have constructed portions of their houses over the disputed lands and as such the authorities below acted illegally and with material irregularity in passing the order of eviction of the petitioners from the disputed lands.

Heard Learned Counsel for the petitioners and Learned Counsel for the State.

The Supreme Court in the case of Amrendra Pratap Singh Vs. Tej Bahadur Prajapati and Others, which was a case under Regulation 2 of 1956 has held :

"The object sought to be achieved by the 1950 Act and the 1950 Regulations is to see that a member of an aboriginal tribe indefeatably continues to own the property which he acquires and every process known to law by which title in immovable property is extinguished in one person to vest in another person, should remain so confined in its operation in relation to tribals that the immovable property of one tribal may come to vest in another tribal but the title in immovable property vesting in any tribal must not come to vest in a non-tribal. This is to see and ensure that non-tribals do not succeed in making inroads amongst the tribals by acquiring property and developing roots in the habitat of tribals. Tribal areas have their own problem. Tribals are historically weaker sections of the society. They need the protection of the laws as they are gullible and fall prey to the tactics of unscrupulous people, and are succeptible to exploitation on account of their innocence, poverty and backwardness extending over centuries. The Constitution of India and the laws made thereunder treat tribals and tribal areas separately wherever needed. The tribals need to be settled, need to be taken care of by the protective arm of the laws, and be saved from falling prey to unscrupulous device so that they may prosper and by an evolutionary process join the mainstream of the society. Therefore the expression ''transfer of immovable property'' as defined in Clause (f) of Para 2 of the 1956 Regulations has to be assigned a very wide meaning. Any transaction or dealing with immovable property which would have the effect of extinguishing title, possession or right to possess such property in a tribal and vesting the same in a non-tribal, would be included within the meaning of ''transfer of immovable property".

In the said decision it has been further held :

"The law does not intend to confer any premium on the wrong doing of a person in wrongful possession; it pronounces the penalty of extinction of title on the person who though entitled to assert his right and remove the wrong doer and re-enter into possession, has defaulted and remained inactive for a period of 12 years, which the law considers reasonable for attracting the said penalty. Inaction for a period of 12 years is treated by the Doctrine of Adverse Possession as evidence of the loss of desire on the part of the rightful owner to assert his ownership and reclaim possession.

The nature of the property, the nature of title vesting, in the rightful owner, the kind of possession which the adverse possessor is exercising, are all relevant factors which enter into consideration for attracting applicability of the doctrine of Adverse Possession. The right in the property ought to be one which is alienable and is capable of being acquired by the competitor. Adverse possession operates on an alienable right. The right stands alienated by operation of law, for it was capable of being alienated voluntarily and is sought to be recognised by doctrine of adverse possession as having been alienated involuntarily, by default and inaction on the part of the rightful claimant, who knows actually or constructively of the wrongful acts of the competitor and yet sits idle. Such inaction or default in taking care of one''s own rights over property is also capable of being called a manner of ''dealing'' with one''s property which results in extinguishing one''s title in property and vesting the same in the wrong doer in possession of property and thus amounts to transfer of immovable property in the wider sense assignable in the context of social welfare legislation enacted with the object of protecting a weaker section".

In the present case, as would be evident from the impugned order, the petitioners are in unauthorized possession of the lands belonging to Opp. Party No. 4. In view of the clear pronouncement of the Supreme Court in the aforesaid decision, the unauthorized occupants cannot claim adverse possession. I, therefore find no reason to interfere with the orders of eviction passed by the authorities below. But then it appears that the petitioners are in possession of lands for quite some time and they have raised certain constructions. There are also materials to show that Opp. Party No. 4 had given an offer to accept compensation from the petitioners.

Taking into consideration all these facts in the light of the ratio of the decision of the Supreme Court in the case of Amrendra Pratap Singh (supra) while confirming the order of eviction of the petitioners passed by the authorities below, I remand the matter to the Officer-on-Special Duty with following directions :

(1) The Officer-On-Special Duty shall determine the extent of lands over which constructions were raised prior to the date of initiation of the proceeding. Such determination shall be made by engaging a survey-knowing commissioner who shall visit the spot and make measurement. The Officer-On-Special Duty shall examine such witnesses as may be necessary for determining the age of the constructions made on the disputed lands.

(2) The Officer-On-Special Duty, after hearing Learned Counsel for the parties and if necessary by recording additional evidence, shall decide whether a direction for demolition of the constructions allegedly made by the petitioners and specific restoration of possession to Opp. Party No. 4 is called for. In the alternative the Officer-On-Special Duty shall determine if in respect of the encroachment having been proved, an order for award of suitable compensation in lieu of demolition of construction and restoration of possession would be a more appropriate relief; and

(3) In the event the Officer-on-Special Duty forms an opinion in favour of award of compensation, the same shall be assessed and shall be a condition precedent for condoning the encroachment and unauthorized constructions. The Officer-On-Special Duty shall, however, implement the order of eviction so far as the portions of the disputed lands over which no construction exists and the lands over which the constructions were raised after initiation of the proceeding under Regulation 2 of 1956.

I further direct the Officer-On-Special Duty to complete this exercise expeditiously, and in any case within a period of six months of communication of this judgment. Requisites for communication of the judgment shall be filed by the petitioners within a week.

The Writ Petition is accordingly disposed of.