Nilamani Sahu vs Lingaraj Majhi and Others

P.K. Mohanty, J.—The petitioner assails the impugned orders passed by the authorities under the Orissa Land Reforms Act (hereinafter referred to as "the O.L.R. Act") u/s 23-A of the O.L.R. Act in Annexures 2 to 4.

The short fact of the petitioner''s ease is that opposite parties 1 to 5 arid one Sadasib Majhi (since dead), predecessor-in-interest of opposite parties 6 to 9, filed O.L.R. Case: No. 7 of 1980 before the Revenue Officer u/s 23-A of the O.L.R. Act, inter alia, on the ground that the present petitioner has obtained four Regd. sale deeds dated 18-4-1963, 3-9-1963, 15-3-1965 and 23-3-1965 in respect of Schedule-A properties from opposite party No. 1 and late Nitya Majhi, the predeccssor-in-interest of opposite parties 3 to 9 without prior permission of the Revenue Authorities as required u/s 7(b)(i) of the Orissa Merged States (Laws) Act, 1950 and continuing is illegal and unauthorised possession of the disputed land and as such should be evicted and possession restored to. It was also alleged that in order to avoid eviction, the petitioner has contained fraudulent sale deeds in 1979, which was false document and declared as such. The petitioner filed his objection refuting the claim and allegations made therein and contended, inter alia, that the proceedings were not maintainable in law and the sale deeds were valid and, therefore, the proceedings should be dropped.

The Revenue Officer, on enquiry held that the sale deeds obtained without prior permission of the competent authorities u/s 7(b)(1) of the Orissa Merged States (Laws) Act are void documents conferring to valid title to the vendees and, therefore, the possession of the petitioner was unauthorised. Me directed restoration of the possession in respect of Schedule A lands. Being aggrieved, the petitioner filed O.L.R. Appeal No. 10 of 1991 before the learned Addl. District Magistrate (E.R.), Kalahandi, which was dismissed by order dated 28-5-1983, a copy whereof is Annexure-3. The petitioner carried a revision to the Collector, Kalahandi, registered as O.L.R. Revision Case No. 2 of 1983, which was rejected by the impugned order under Annexure-4 to the writ application. Despite notice, opposite parties 1 to 9 have not entered appearance to contest the case.

Heard Sri S. Misra, learned counsel for the petitioner and the learned Standing Counsel.

The main contention of the learned counsel for the petitioner is that neither Section 23-A of the O.L.R, Act nor Section 7(b)(i) of Orissa Merged States (Laws) Act are applicable to the instant ease and, therefore, the O.L.R. Authorities ought to have rejected the petitioner''s case on that ground alone. It is the contention that Section 23-A of the O.L. R. Act was introduced by Act 44 of 1976, which came into force on 25-10-1976 and the provisions are prospective in nature and, therefore, if an unauthorised occupant has perfected title by continuing in possession for more than 12 years, even if the sale deeds are held invalid, then the Revenue Officer will have no jurisdiction to direct him to vacate possession u/s 23-A of the O.L.R. Act. It is submitted that the petitioner acquired prescriptive title over the properties conveyed in favour of the petitioner by the Registered sale deeds dated 18-4-1963 and 3-9-1963, which could not be called in question, since on the date Section 23-A of the O.L.R. Act came into force i.e. on 25-10-1976, he was in uninterrupted possession for more than the prescribed period of 12 years. The alternative argument of the petitioner is that even assuming that Section 23-A of the Act was applicable, then the proceeding is not also maintainable in view of the fact that section is prospective and the period of 12 years having a elapsed by the date, Section 23-B(2) was introduced and came into force prescribing and enhancing the period of limitation. The learned counsel has referred to the decision in Siani Nag Vs. Gobardhan Ganda and Others, Dilip @ Mantri @ Dileswar Pradhan and Another Vs. Padman Sabar and Others, and Bidya Mahananda (dead), after him his legal representatives Bahadur Mahananda v. Gajendra Bhoi 1996 (2) OLR 466 in support of his contention, which shall be dealt with at the appropriate stage.

Section 23-A of the Orissa Land Reforms Act contemplates eviction of persons in unauthorised occupation of property belonging to a number of Scheduled Tribe or Scheduled Caste by way of trespass or otherwise and restoration thereof. Section 23-A of the Act may be quoted hereunder for better appreciation :

"23-A. Eviction of person in unauthorised occupation of property -- Where any person is found to be in unauthorised occupation of the whole or part of a holding of a raiyat belonging to a Scheduled Caste or of a raiyat belonging to a Scheduled Tribe within any part of the State other than a Scheduled Area, by way of trespass or otherwise, the Revenue Officer may, either on application by the owner of any person integrated therein, or on his own motion, and after giving the parties concerned an opportunity of being heard, order eviction of the person so found to be in unauthorised occupation and shall cause restoration of the property to the said raiyat or to his heir in accordance with the provisions of Sub-section (3) of Section 23."

The aforesaid provision of Section 23-A has been brought to the statute by way of insertion by Act 44 of 1976 which came into force from 25-10-1976. It is now well settled that the provision is prospective in nature and the unauthorised occupants who have perfected title by adverse possession before 25-10-1976, the Revenue Officer has no jurisdiction to restore possession to a raiyat or to his heir, it has also been held that the extended period of limitation contained in Section 23-B(2) of the Act has no application in case of an unauthorised occupant coming within the ambit of Section 23-A of the Act and, therefore, on the date Section 23-A came into force in the statute, even if an unauthorised occupant by adversely continuing in possession for more than 12 years, by the date i.e. 25-10-1976, when the provision came Into force, then the Revenue Officer has no jurisdiction to divest him of the said right in exercise of the power u/s 23-A of the Act. A reference may be made to the case in Siani Nag Vs. Gobardhan Ganda and Others, and Dilip @ Mantri @ Dileswar Pradhan and Another Vs. Padman Sabar and Others, In the case of Dilip (supra), this Court has held that since O.L.R. Act, 1960 came into force from 1-10-1965, the alienation effected In the year 1963 cannot be said to be in contravention of Section 22 of the Act. In Anadi Mohanta (dead) and after him Kointa Mohanta and Others Vs. State of Orissa and Others, a Bench of this Court has taken the view that transfer in contravention of any other law would normally not come within the purview of the O.L.R. Act, but however, u/s 23-A, transfer by a person belonging to a Scheduled Caste or Scheduled Tribe to a person of non-Scheduled Caste or non-Scheduled Tribe prescribed by any other law comes within the ambit and scope of the said Act. Undisputedly, the land covered under the four Registered sale deed dated 8-4-1963, 3-9-1963, 29-6-1965 and 14-3-1965 covering Scheduie-A land have been transferred to the petitioner without obtaining prior permission from the competent authority in terms of S. 7(b) (i) of the Orissa Merged States (Laws) Act, 1950. u/s 7(b)(1) of the said Act permission of the Revenue Authority was required to be taken by the vendor for transfer of the land and that having not been taken, the deed and consequently, the transfer have become invalid and consequently the possession and or occupation has become unauthorised and, therefore, Section 23-A of the O.L.R. Act taken care of such unauthorised occupation. Section 23-A of the O.L.R. Act which has been quoted herein before was inserted to the O.L.R, Act by Act 44 of 1976 and it came into force with effect from 25-10-1976. The provision is prospective in nature and, therefore, if as in the present case, the sate deeds and the transfers therein have become invalid in absence of the permission as contemplated u/s 7(b)(i) of the Orissa Merged States (Laws) Act, 1950, then the Revenue Officer will have no jurisdiction to direct eviction or restore possession of the property in favour of the vendor u/s 23-A of the O.L.R. Act.

In the case at hand, the Regd. sale deeds dated 8-4-1963 and 3-9-1963 are admittedly executed without taking permission from the competent authorities under the Orissa Merged States (Laws) Act, 1950, but the question remains that by the date Section 23-A of the O.L.R. Act came into force i.e. on 25-10-1976, the petitioner had already acquired prescriptive title by way of adverse possession and, therefore, the Revenue Officer could not have held that the possession of the petitioner was unauthorised and, therefore, he is liable to be evicted under the provisions of Section 23-A of the O.L.R. Act. It is nobody''s case that either the petitioner was not in possession or his possession was interrupted during the said period between the date of possession and 26-10-1976, when Section 23-A of the O.L.R. Act came into force.

The next question that falls for consideration is as to whether the petitioner has acquired any right, title or interest in respect of the properties covered under sale deed dated 23-6-1965 and 15-3-1965. The aforesaid two sale deeds admittedly have been executed by a Scheduled Tribe person in favour of the petitioner, who is a non-Scheduled Tribe, without obtaining permission and in contravention of Section 7(b)(i) of the Orissa Merged States (Laws) Act, 1950 and, therefore, the sale deeds are invalid. The proceeding u/s 23-A of the O.L.R. Act has been initiated in July, 1988 alleging that the sale deeds being in contravention of the statutes are invalid and consequently, the possessions are unauthorised for which the petitioner therein were entitled to restoration of possession. Section 23-B(2) of the O.L.R. Act enhanced and extended the period of limitation to 30 years in respect of a proceeding u/s 23 of the O.L.R. Act. It has an application to the proceeding u/s 23 of the O.L.R. Act and, therefore, the period of 12 years would be the statutory period to perfect the right by adverse possession. The proceeding u/s 23-A of the O.L.R. Act undisputedly was initiated in July, 1980 and by that date, the petitioner being in possession in respect of the properties covered under the sale deeds dated 23-6-1965 and 15-3-1965 had acquired prescriptive title by adverse possession being in peaceful continuous and uninterrupted possession of the property under the said deeds by 1980 and, therefore, the Revenue Officer could not have directed for eviction and restoration of the possession as has been done. The Revenue Officer as well as the appellate and revisional authorities appear to have proceeded on the footing that Section 23-B(2) of the O.L.R. Act enhancing the period of limitation was applicable to the facts and circumstances of the case, which, as has been observed earlier, is erroneous in view of the fact that Section 23-B(2) is applicable to a case u/s 23 of the O.L.R. Act and not Section 23-A.

In the result, the writ application is allowed and the impugned order dated 8-6-1981 passed by Revenue Officer, Bhawanipatna (Annexure-2), Order dated 20-5-1983 passed by Addl. District Magistrate (Land Reforms), Kalahandi (Annexure-3) and the order dated 16-9-1986 passed by Collector, Kalahandi (Annexure-8) are quashed. But in the facts and circumstances of the case, there shall be no order as to costs.

P.K. Misra, J.

I agree.