Jogendra Panda vs Collector

I. Mahanty, J.—In this writ application, the Petitioner-Jogendra Panda has sought to challenge the Order Dated 09.07.1990 passed by the Revenue Officer, Dharamgarh in R.M.C. No. 490 u/s 23A of the Orissa Land Reforms Act, 1960 (In short ''the O.L.R. Act'') directing issue of restoration warrant of the schedule land in favour of the legal heirs of the recorded tenant i.e. the present private Opp. Party Nos. 3 to 5, who are admittedly belong to ''Sahara'' community & have been listed as Scheduled Tribes. The present Petitioner, who is a ''Brahmin'' by caste sought to challenge the said order before the A.D.M.(L.R.), Kalahandi, Bhawanipatna in O.L.R. Appeal No. 23 of 1990 & the said appeal came to be allowed by Order Dated 28.11.1990, whereby, the A.D.M., Kalahandi set aside the order passed by the Revenue Officer. The predecessors in interest of the private Opp. Party Nos. 3 to 5 challenged the order passed in appeal in the Court of the Collector, Kalahandi in O.L.R. Revision Case Nos. 1/91 & 2/91 & the said revisions came to be allowed by the Learned Collector, Kalahandi by Order Dated 26.03.1993 setting aside the order passed in appeal & reaffirming the order passed by the Revenue Officer by declaring the transaction vide R.S.D. No. 1538 dated 07.05.1964 between Padman Sabar & Jaginder Panda as void & with the further finding that the present Writ Petitioner (Opp. Party therein) had not perfected his title by way of adverse possession & consequently, directed the land to be restored in favour of the successors in interest of the suit land i.e. the present private Opp. Party Nos. 3 to 5. Therefore, being aggrieved, the present Writ Petitioner-Jogendra Panda has sought to challenge the order passed by the Revenue. Officer under Annexure-1 & the order passed by the Revisional Authority under Annexure-4 by way of filing the present Writ Petition. The Learned Counsel appearing for the Petitioner submitted that the Writ Petitioner is admittedly a Non-Scheduled Caste or Tribe person & belongs to Brahmin caste & had purchased Ac.2.40 decimals of land in village Jharkundamal, in Khata No. 40, Plot No. 380 on payment of consideration amount accompanied by delivery of possession from Opp. Party Nos. 3 & 4, who belong to Scheduled Tribe, by way of a Registered Sale Deed No. 1538 dated 07.05.1964. It is further submitted that Opp. Party No. 3 & 4 filed R.M.C. No. 11 of 1990 before Opp. Party No. 2 (Revenue Officer, Dharamagarh) for recovery of possession of the case land u/s 23A of the O.L.R. Act, inter alia, on the allegation that the Petitioner was in unauthorized possession since the date of purchase. It is submitted that the Revenue Officer relying on an erroneous decision of the Board of Revenue reported in 56 (1983) C.L.T. 17, allowed the claim of the Opp. Party Nos. 3 & 4 by his Order Dated 09.07.1990 under Annexure-1 which is impugned herein.

The Learned Counsel for the Petitioner further submitted that challenge to the aforesaid order had been made by the Writ Petitioner in O.L.R. Appeal No. 23 of 1990 before the Additional District Magistrate, Kalahandi. In the said proceeding, the Appellate Court came to a finding that the decision of the Board of Revenue relied upon by the Revenue Officer was no longer good law in view of the decision of this Court in the case of Anadi Mohanta (dead) and after him Kointa Mohanta and Others Vs. State of Orissa and Others, & consequently, the appeal filed by the Writ Petitioner had come to be allowed. The Opp. Party Nos. 3 & 4 as well as Opp. Party No. 5 filed separate revision before Opp. Party No. 1-Collector, Kalahandi & it is alleged by the Petitioner that the revision came to be allowed on the basis of a mis-interpretation of the aforesaid decision rendered by this Court in the case of Anadi Mohanta (Supra) & consequently, the revision cases were allowed with a finding that the period of limitation would be 30 years to the transfers effected without necessary permission under the Orissa Merged States (Laws) Act, 1950.

Learned Counsel for the Petitioner asserted that whereas the period of limitation u/s 23 of the O.L.R. Act, 1960 was originally 12 years with relation to unauthorized occupation for a proceeding under 23-A, it is only on 01.05.1991 an amendment was carried out to the aforesaid provision & period of limitation stood extended to 30 years by Orissa Act 8 of 1991. Therefore, it is contended on behalf of the Petitioner that since the Petitioner''s possession was on the basis of the sale deed executed in his favour in the year 1964, was contrary to Section 7(b) of The Orissa Merged States (Laws) Act, 1950. The Petitioner acquired title by way of adverse possession on 07.05.1976 i.e. on completion of 12 years from 07.05.1964. Therefore, the Petitioner having perfected his title to the property by way of adverse possession, the initiation of a proceeding for recovery of the land by the private Opp. Parties in the year 1990 was barred by limitation.

Learned Counsel for the Opp. Parties, on the other hand, admitted that Opp. Party Nos. 3 & 4 had executed a sale deed in favour of the Writ Petitioner on 07.05.1964, but the said sale was in contravention of Section 7(b) of the Orissa Merged States (Laws) Act, 1950. It is further submitted that the O.L.R. Act, 1960 came to be notified on 25.09.1965 (excepting Chapters-III & IV) & came into force with effect from 01.10.1965. Chapters III & IV came into force with effect from 09.12.1965 & 07.01.1972 respectively. Sections 22 & 23 being part of Chapter-II of the O.L.R. Act came into force since 01.10.1965. The said provision prohibits transfer of land by a Scheduled Tribe member to a Non-Scheduled Tribe member without permission in non-scheduled areas. In other words, while Section 22 restricted the alienation of land belonging to Scheduled Tribes & declared that any transfer of holding belonging to a Scheduled Tribe shall be void unless under Sub-section (3) there of written permission of the Revenue Officer was duly obtained & u/s 23, in the case of any transfer in contravention of Section 22(1), the Revenue Officer was authorized either on his own motion or on the application of any interested person to conduct an enquiry & make a necessary declaration either suo motu or on an application of interested parties to cause restoration of the property to the transferer or his heirs & for such purpose to take such necessary steps for compliance of the said order. Apart from the above, Section 23A came to be inserted in the O.L.R. Act, 1960 by Orissa Act No. 44 of 1976 whereby the Revenue Officer was authorised to direct eviction of all persons in unauthorized occupation of property either on his own motion or at behest of an interested party after giving notice to the parties likely to be affected thereof. Admittedly Section 23A was incorporated by amendment on 25.10.1976.

Learned Counsel for the Opp. Parties contend that the order of the Revenue Officer under Annexure-1 as affirmed by the Collector, Kalahandi in the revisional order under Annexure-4 clearly indicates that the present Petitioner though claim to have purchased the property by way of a registered sale deed on 07.05.1964, clearly admitted that the said sale deed was void on account of violation of Section 7(b) of the Orissa Merged States (Laws) Act, 1950 & consequently, the only basis on which the Writ Petitioner seeks to establish his right over the land in dispute is essentially his claim of "Adverse Possession".

Admittedly, the sale transaction was conducted on 07.05.1964 i.e. prior to the coming into force of the provisions of the O.L.R. Act. It is the further finding of the Revenue Officer that Section 7(b) to the Orissa Merged States (Laws) Act, 1950 puts a bar on transfer of land by persons belonging to aboriginal tribe without the necessary permission of the competent, authority & the private Opp. Party belong to the Sabar caste which was declared as an aboriginal tribe under notification dated 22.05.1962. Therefore, the Revenue Officer held that any sale transaction of land belonging to an aboriginal tribe without the permission of the competent authority would be hit by the provisions of the Orissa Merged States (Laws) Act, 1950 &, accordingly, he decided that as per provisions of Section 23 of the O.L.R. Act, the sale transaction having been effected without the necessary permission of the competent authority, the said transaction is void & the land was directed to be recorded in the name of the Petitioner therein (Opp. Parties & their legal heirs herein).

Insofar as the claim of limitation of 12 years adverse possession is concerned, the Revenue Officer came to a finding that the said period has not matured by 02.10.1973, the limitation for adverse possession of land belonging to Scheduled Tribe category persons was extended to 30 years from the said date &, therefore, by the date the Petitioner claims to have perfected his title by way of adverse possession, the period of limitation was no longer 12 years but had stood extended to 30 years & consequently initiation of the proceeding u/s 23A of the O.L.R. Act, 1960 in the year 1990 was not beyond the period of limitation prescribed by the necessary statutes. Though the Writ Petitioner succeeded in appeal, the revisional authority i.e. the Collector, Kalahandi under Annexure-4 set aside the said Appellate order affirming the order of the Revenue Officer. Insofar as the plea of limitation is concerned, the revisional authority came to hold that the period of limitation came to be amended by Orissa Act 9 of 1974 which came into force from 02.10.1973 amending the period of limitation from 12 years to 30 years &, therefore, since admittedly the void sale transaction took place on 07.05.1964 and the original period of 12 years would have only lapsed in 07.05.1976 & there having been amendment of law prior thereto i.e. on 02.10.1973 extending the period of limitation from 12 years to 30 years, no claim of the Petitioner for having perfected his title by way of adverse possession on completion of 12 years post amendment could be accepted.

In the light of the submissions as recorded hereinabove, the only issue, that arises for consideration in the present case is that until 7.05.1964, the land was owned by the private Opp. Parties, who were admittedly members of the aboriginal tribe & belong to Scheduled Tribe. On 07.05.1964 the land came to be transferred to the Writ Petitioner (who is a Brahmin, "a person not belonging any aboriginal tribe"). Admittedly, in the present case, the private Opp. Parties initiated a proceeding u/s 23A of the O.L.R. Act in the year 1990 before the Revenue Officer. Therefore, the question that arises as to whether by the time of filing of the Revenue Misc. Case before the Revenue Officer, period of limitation had expired or not. A further question that needs to be determined in the present case is what is the present period of limitation that would be applicable in the fact & circumstance of the present case. In the case at hand, the date of sale deed is admitted to be 07.05.1964. The period of limitation originally prescribed for initiation of proceeding was 12 years & amendment was carried out to the O.L.R. Act by Act 9 of 1974 which came into force from 02.10.1973 enhancing the limitation period to 30 years. Admittedly, by the date of the said amendment since the period of 12 years had not lapsed by then, no question of Writ Petitioner perfecting his title by way of adverse possession can or does arise. Consequently, with the amendment from 02.10.1973, the period of limitation was enhanced to 30 years & the proceeding u/s 23A of the O.L.R. Act has been commenced by, the Opp. Parties in the year 1990. The initiation of such proceeding was definitely within, the period prescribed for limitation & consequently was duly maintainable. Therefore, the supplementary issue as noted herein above is answered in favour of the private Opp. Parties & against the Writ Petitioner.

Insofar as the applicability of the Limitation Act is concerned, the issues are no longer res integra in view of the Judgment of the Hon''ble Supreme Court in the case of Amrendra Pratap Singh Vs. Tej Bahadur Prajapati and Others, The relevant portions of the said Judgment are quoted hereunder.

"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 & remove the wrong doer & re-enter into possession, has defaulted & 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 & 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 & 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 & is sought to be recognized by doctrine of adverse possession as having been alienated involuntarily, by default & inaction on the part of the rightful claimant, who knows actually or constructively of the wrongful acts of the competitor & 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 property which results in extinguishing one''s title in property & vesting the same in the wrong doer in possession of property & 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. (Paras. 22, 23)

In instant case until 7-4-1964 the land was owned by three members of an aboriginal tribe & a Scheduled Tribe. On 7-4-1964 the land came to be transferred to Defendant a person not belonging to any aboriginal tribe. Proceeding on the premise that in the year 1970, on the date of the filing of the suit the Defendant No. 1 had been in possession of the property for a period of more than 12 years. Can it be said that he had perfected his title by adverse possession or that the suit filed by the Plaintiff had become barred by time on account of having been filed 12 years after the date when the possession of the Defendant became adverse to the Plaintiff or his predecessors in title?

Held, acquisition of title in favour of a non-tribal by invoking the Doctrine of Adverse Possession over the immovable property belonging to a tribal, is prohibited by law & cannot be countenanced by the Court. On other words a default or inaction on the part of a tribal which results in deprivation or deterioration of his rights over immovable property would amount to dealing by him with such property, & hence a transfer of immovable property. It is so because a tribal is considered by the legislature not to be capable of protecting his own immovable property. A provision has been made by para. 3A of the 1956 Regulations for evicting any unauthorized occupant, by way of trespass or otherwise, of any immovable property of the member of the Scheduled Tribe, the steps in regard to which may be taken by the tribal or by any person interested therein or even suo motu by the competent authority. The concept of locus standi loses its significance. The State is the custodian & trustee of the immovable property of tribals & is enjoined to see that the tribal remains in possession of such property. No period of limitation is prescribed by Para. 3A. The prescription of the period of 12 years in Art. 65 of the Limitation Act becomes irrelevant so far as the immobile property of a tribal is concerned. The tribal need not file a civil suit which will be governed by law of limitation, it is enough if he or anyone of his behalf moves the State or the State itself moves into action to protect him & restores his property to him. To such an action neither Art. 65 of Limitation Act nor S. 27 thereof would be attracted. The period upto 6.4.1964 during which the land belonged to the tribals, has to be excluded from calculating the period of limitation. Undoubtedly, on 07.04.1964 the land having been sold by a tribal to a non-tribal Defendant with the previous permission of the Sub-Divisional Officer, the possession of Defendant over the land on & from that date shall be treated as hostile. In the suit filed by the Plaintiff-Appellant tribal in the year 1970 the period of limitation shall have to be calculated by reference to Art. 65 of the Limitation Act. By that time only a period of 6 years i.e. between 1964 & 1970 had elapsed. The suit was not barred by limitation."

The aforesaid Judgment has been reaffirmed once again by the Hon''ble Supreme Court in the case of Lincai Gamango and Others Vs. Dayanidhi Jena and Others, It would be most relevant to take note of paras-7 & 9 of the said Judgment which are quoted hereunder.

"7. We find both these reasons given by the High Court are not sustainable. Coming first to the second point, we find that there is a decision of this Court direct on the point. It is reported in 2003 (9) JT (SC) 201, Amrendra Pratap Singh v. Tej Bahadur Prajapati & others. The matter related to transfer of land falling in tribal area belonging to the Scheduled Tribes. The matter was governed by Regulations 2, 3 & 7-D of the Orissa Scheduled Areas Transfer of Immovable property (by Scheduled Tribes) Regulations, 1956 viz. the same Regulations, which govern this case also. The question involved was also regarding acquisition of right by adverse possession. Considering the matter in detail, in the light of the provisions of the aforesaid Regulation, this Court found that one of the questions which falls for consideration was "whether right by adverse possession can be acquired by a non-aboriginal on the property belonging to a member of aboriginal tribe"? (para. 14 of the Judgment). In context with the above question posed, this Court observed in para. 23 of the Judgment as follows:

"The right in the property ought to be one which is alienable & 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 & is sought to be recognized by doctrine of adverse possession as having been alienated involuntarily by default & inaction on the part of the rightful claimant..."

This Court then noticed two decisions one that of the Privy Council reported in AIR 1923 205 (Privy Council) AIR 1949 265 (Nagpur) Karimullakhan S/o. Mohd. Ishaqkhan & Anr. v. Bhanupratap Singh, holding that title by adverse possession on inam lands, watan lands & debutter was incapable of acquisition since alienation of such land was prohibited in the interest of the State. We further find that the decision in the case of Madhiya Nayak (supra) relied upon by the High Court was referred to before this Court & it is observed that the question as to whether a non-tribal could at all commence prescribing acquisition of title by adverse possession over the land belonging to a tribal which is situated in a tribal area, was neither raised nor that point had arisen in the case of Madhiya Nayak. It is further observed that the provisions of S. 7D of the Regulations are to be read in the light of the fact that the acquisition of right & title by adverse possession is claimed by a tribal over the immovable property of another tribal but not where the question is in regard to an non-tribal claiming title by adverse possession over the land belonging to a tribal situate in a tribal area. It is, therefore, clear in view of the decision in the case of Amrendra Pratap Singh (supra) that a non-tribal would not acquire right & title on the basis of adverse possession. Therefore, the second ground for setting aside the order passed by the Appellate Court falls through. Therefore, the other factual aspect about the possession of the Respondents over the, disputed land & entries in their favour may also not be of much consequence, in any case, this aspect of the matter has to be seen & considered afresh in the light of other facts & circumstances of the case.

In our view, the order passed by the High Court is not sustainable. The question of acquisition of right & title by adverse possession by non-tribal over the land in the scheduled area belonging to a member of the Scheduled Tribe does not arise. Since the finding of the High Court on this point is not sustainable; in our view, the whole matter needs a fresh look considering the facts as indicated in details in different orders passed at different stages namely, the first order passed by the Project Administrator which matter was later on remanded in appeal by Order Dated 8.4.1982 and thereafter the facts as mentioned in the subsequent orders including one passed in appeal which has been set aside by the High Court by means of the impugned order. If necessary, other relevant evidence on the record as sought to be pointed out by the Learned Counsel may also have to be seen in the light of the provisions of the Regulation No. 2 of 1956 before holding that there is no evidence or material supporting ownership, title or possession of the applicants viz. the tribals. The implications of the claim of the Respondent for allegedly having perfected their rights by adverse possession may also have to be examined."

In the light of the Judgments rendered by the Hon''ble Supreme Court referred hereinabove both in the case of Amrendra Pratap Singh (Supra) as well as Lincai Gamango & Ors. (Supra), what is most important to note herein is that, the question of acquisition of right & title by way of adverse possession by a non-tribal over the land belonging to a member of the Scheduled Tribe does not arise since it is now been well settled that law does not intent to confer any premium on the wrong doing of a person in wrongful possession. It has been categorically held by the Hon''ble Supreme Court that acquisition of title in favour of a non-tribal by invoking the Doctrine of Adverse Possession over the immovable property belonging to a tribal is prohibited by law & cannot be countenanced by the Court. This is so since a tribal has been considered by the legislature not to be capable of protecting his own rights over immovable property & consequently where law has been enacted by legislature protecting such rights & in violation of such laws a transaction of sale is effected. The object of such legislation itself would be lost if any other interpretation is given to a person claiming adverse possession as held in the aforesaid decision.

Insofar as the law of limitation is concerned, it pronounces the penalty of extinction of title on a person who though entitled to assert his right & remove the wrong doer & re-enter into possession, has defaulted & remained inactive for the period of limitation prescribed which the law prescribes reasonable for attracting the penalty. Therefore for a person to lose his title to someone else on the ground of the doctrine of adverse possession, the nature of the right in the property has to be one which is alienable & is capable of being acquired by the competitor where legislature itself has put a bar and/or a precondition to such alienation, no question of alternate plea of adverse possession by a person who claims to have purchased the said land & come into possession of the said land on the basis of a void purchase which had been admittedly made in violation of Section 7(b) of the Orissa Merged States (Laws) Act since it would effectively amount to conferring premium on the wrong doer for his wrongful possession which has been specifically laid down by the Hon''ble Supreme Court. For better appreciation Section 7(b(i) of the Orissa Merged States (Laws) Act is quoted hereunder.

"7. Modification of Tenancy Laws in force in the merged States-(b) an occupancy tenant shall be entitled-

(i) to freely transfer his holding subject to the restriction that no transfer of a holding from a member of an aboriginal tribe to a member of a non-aboriginal tribe shall be valid unless such transfer is made with the previous permission of the Sub-divisional Officer concerned;"

Although various Judgments of this Court referred to by various parties, in view of the Judgments of the Hon''ble Supreme Court which are cited above, no reference need be made thereto since the same have become redundant in view of the authoritative pronouncement of the Hon''ble Apex Court on the subject. In view of the aforesaid reasons & the Judgments referred to hereinabove, after analyzing the facts & pleadings of the parties, I find no justification in entertaining the writ application or any challenge to the orders passed by the Revenue Officer, Dharamgarh under Annexure-1 & by the Collector, Kalahandi under Annexure-4. Consequently, while directing dismissal of this Writ Petition, further direct the Revenue Officer concerned to take effective immediate measures to comply with the direction of the revisional authority forthwith. The interim Order Dated 15.03.1994 passed in Misc. Case No. 2848 of 1993 stands vacate.