Orissa High Court
Abhimanyu Mallik vs Collector on 3 January, 2023
ORISSA HIGH COURT : C U T T A C K
W.P.(C) NO.35313 OF 2022
An application under Articles 226 & 227 of
the Constitution of India.
Abhimanyu Mallik : Petitioner
-Versus-
Collector, Ganjam & Ors. : Opposite Parties
For Petitioner : Mr.B.N.Mohapatra, Adv.
For O.Ps. : Mr.U.K.Sahoo,ASC
JUDGMENT
CORAM :
JUSTICE BISWANATH RATH
Date of Hearing & Judgment : 03.01.2023
1. This is a Writ Petition seeking mandamus against the
public authority for failing to complete discharge of the
direction passed by the competent authority under the provision
of Odisha Regulation 2 of 1956.
2. This Court here records the submission of Mr.Sahoo,
learned State Counsel and looking to the provision at Section 3
of the Regulation 2 of 1956, once there is order under Section
3 for restoration of possession, the competent authority loses
his jurisdiction and such order should be construed to be in
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restoration of possession of the land in favour of the tribe
member. It is contended for there is no other provision under
the statute to interfere in any situation thereafter, no mandamus
can be issued. It is thus contended Petitioner if has any other
option may avail the same.
3. This Court finds the provision of Section 3 of the
Regulation 2 of 1956 reads as follows:-
3. Transfer of immovable property by a member of
the Schedule Tribe- (1) Notwithstanding anything
contained in any law for the time being in force any
transfer of immovable property by a member of a
Scheduled Tribe, except by way of mortgage executed
in favour of any public financial institution for securing
a loan granted by such institution for any agricultural
purpose, shall be absolutely null and void and of no
force or effect whatsoever, unless such transfer is
made in favour of another member of a Scheduled
Tribe:
Provided that-
(i) nothing in this sub-section shall be construed as to
permit any member of a Scheduled Tribe or his
successor-in-interest to transfer any immovable
property which was settled with such member of
Scheduled Tribe by or under any authority of the State
or the Central Government or under any law for the
time being in force;
(ii) in execution of any decree for realization of the
mortgage money, no property mortgaged as aforesaid
shall be sold in favour of any person not being a
member of a Scheduled Tribe; and
(iii) a member of a Scheduled Tribe shall not transfer
any land if the total extent of his land remaining after
the transfer will be reduced to less than two acres in
case of irrigated land or five acres in case of
unirrigated land."
4. Looking to the provision this Court finds, there is only
authorization to the competent authority to determine the
dispute involving restoration of the land and manner prescribed
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therein. Looking to the order taken support by the Petitioner
also claims to have been confirmed in W.P.(C) No.17399 of
2011 and Writ Appeal No.661 of 2019, this Court finds the
order contains clear direction as follows:-
"This case is taken up today. Bhima Mallik
is present on behalf of the 1st party. Learned
Advocate for the respondent appeared and
moved a petition praying for an adjournment.
Perused the case record. It is revealed that so
many adjournments have been allowed in this
case. But the respondent has not filed any
documentary evidence and show cause as yet.
The case land has been purchased by one
Kandha Suara S/O- Dandapani Suara, Caste
Brahmin vide R.S.D. No.1329 Dated
30.08.1957 after the appointed date i.e.
4.10.1956 in contravention of U/s. 3(1) of the
Orissa Regulation 2 of 1956. Prior to sale
transaction is made, no permission has been
obtained from the competent authority. The
purchaser or the present occupant of the case
land have also not filed statement of return
filed the stipulated period i.e. from 08.09.03 to
07.09.05. As such it amounts to unauthorized
occupation of tribal land by non-tribal. As so
many adjournments have been given and
required statement of return has also not been
filed within the stipulated time frame, I am not
inclined to give further adjournments in this
case. The adjournment petition filed by the
learned Advocate for the respondent is
rejected as it is not convincing one."
Reading the aforesaid order and reading together with
the provision of law indicated hereinabove, this Court finds,
there is no dispute that there is already direction for restoration
of the land in favour of the Petitioner.
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5. Party in loss still in enjoyment of the property and
obstructing the lawful owner of the property by virtue of such
order is a trespasser. This Court here finds there is clear
provision at Section 3-A of Regulation 2 of 1956 making
provision for eviction of person in unauthorized occupation of
property. This provision reads as follows:-
"3-A. Eviction of persons in unauthorized
occupation of property- (1)Where a person is
found to be in unauthorized occupation of any
immovable property of a member of the
Scheduled Tribes by way of trespass or
otherwise the competent authority may, either on
application by the owner or any person interest
therein, or on information received from the
Gram Panchayat or on his own motion, and after
giving the parties concerned an opportunity to
being heard, order rejectment of the person so
found to be in unauthorized occupation and shall
cause restoration of possession of such property
to the said member of the scheduled Tribes or
his heirs.
(2) The provisions contained in Sub-secs. (2), (3)
and (4) of Section 3 shall mutatis mutandis,
apply to the proceedings instituted or initiated
under Sub-sec. (1).
(3) In every case after finalization of the
proceedings under Sub-sec. (1), the competent
authority shall make a report to the concerned
Grama Panchayat about the order of ejection
passed in respect of any person in unauthorized
occupation of any immovable property of a
member of a Scheduled Tribe and the restoration
of possession of the property to such member on
his heirs and in case of failure of such restoration
the reasons for such failure."
Further Section 7 of Regulation 2 of 1956 also provides
mechanism of punishment. This provision reads as follows:-
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7. Punishment of offences- (1) If any person is
found to be in possession of any immovable
property in contravention of the provisions of
this Regulation, then, without prejudice to his
liability to ejectment under this Regulation, or
where any person, having been evicted under
any provision of this Regulation from any
immovable property belonging to a member of a
Scheduled Tribe, continues to be in possession
of the same, he shall be punishable with rigorous
imprisonment for a term which may extent to
two years, or with find which may extend to five
thousand rupees, or with both.
(2) Where any person, having been evicted
under any provision of this Regulation from any
immovable property belonging to a member of a
Scheduled Tribe, reoccupies the same shall be
punishable with rigorous imprisonment for a
term which may extent to three years, or with
fine which may extend to ten thousand rupees, or
with both,
(3) When a Court imposes sentence of fine
or a sentence of which fine forms a part, the
Court may, when passing judgment, order the
whole or any part of the fine to be paid to the
member of Scheduled Tribe to who the
immovable property belongs, or to his heirs."
6. In the circumstance this Court finds, the Regulation 2 of
1956 provides ample mechanism for ejection of an
unauthorized occupiers involving the Scheduled Tribe member
and no writ of mandamus in invitable. This Court accordingly
declining to entertain the Writ Petition however observes, if the
Petitioner is so advised may avail his remedy through above
provisions of law.
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7. With the above observation, the Writ Petition stands
dismissed. No costs.
(Biswanath Rath)
Judge
Orissa High Court, Cuttack.
The 3rd January, 2023 /Swarna, Junior Stenographer
