Orissa High Court
Bhuban Dombo @ Bhuban Harijan vs District ... on 1 March, 2023
IN THE HIGH COURT OF ORISSA AT CUTTACK
AFR W.P.(C) No.13068 of 2012
In the matter of an application under Article 226 & 227 of the
Constitution of India.
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Bhuban Dombo @ Bhuban Harijan ... Petitioner(s)
-Versus-
District Magistrate-cum-Collector,
Nabarangpur & Ors. .... Opposite Parties
For Petitioner ... M/s. S.K.Nayak-2, U.K.Barik &
S.S.K.Nayak.
For Opposite Parties ... Mr.S.Ghose, Addl. Govt. Advocate
(For O.P.Nos.1 to 3)
Mr.T.K.Mishra D.Dash.
(For O.P.No.4)
JUDGMENT
PRESENT:
THE HONOURABLE JUSTICE BISWANATH RATH
Date of Hearing and Judgment: 01.03.2023
Biswanath Rath, J This writ petition involves a challenge to the orders at
Annexures- 2, 3 and 4 respectively passed by the competent
authorities under the provision of the Orissa Land Reforms Act.
2. Undisputedly the writ petition faces a challenge to
confirming order by all the three forums but enumerated on a
petition involving Section 23-A of the Orissa Land Reforms Act.
In course of hearing, question arose looking to the sale transaction
taking place on 19.06.1969 vide Registered Sale Deed No. 1268 of
1969 if a proceeding under Section 23-A of the Orissa Land
// 2 //
Reforms Act could have been initiated in the year 2004 vide
O.L.R. Case No.1 of 2004. After hearing the submissions of
respective counsel, this Court finds the provision at Section 23-A
of the Orissa Land Reforms Act restricts a transaction of scheduled
property inserted by Orissa Act No.44 of 1976 and a submission is
made that for the prospective nature of the provision, the
proceeding initiated under Section 23-A of the Orissa Land
Reforms Act was not maintainable. Learned counsel appearing for
the petitioner also takes help of a judgment of this Court in the
case of Dama Meher V. Champeswar Bentkar & Ors., 64 (1987)
CLT 516. Drawing the attention to paragraph-7 of the said
judgment, Mr.Nayak, learned counsel appearing for the petitioner
taking support of the judgment to his plea hereinabove submitted
that undisputedly the provision at Section 23-A of the Orissa Land
Reforms Act was introduced by Act 44 of 1976 and supports the
judgment referred to hereinabove.
3. Learned State Counsel however did not have any objection
in view of prospective nature of legislation, action involved
preintroduction of legal provision further in view of the legal
pronouncement by this Court. This Court finds in paragraph-7 of
the above judgment, the Single bench came to observe as follows:-
"7. Coming the other submission regarding applicability of section 23-A of
the Orissa Land Reforms Act, it depends upon an interpretation of the said
provision. Section 23-A is quoted hereinbelow in extenso:--
"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 interested 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."
// 3 //
Mr. Acharya contends that since the sale is declared to be invalid, the
possession of defendant No. 1 must be held to be unauthorised in the eye of
law and, therefore, such a person can be evicted by the Revenue Officer
under section 23-A of the Orissa Land Reforms Act. Section 67 of the Orissa
Land Reforms Act provides:--
"67. Bar. of jurisdiction of Civil Courts:--
Save as otherwise expressly provided in this Act, no Civil
Court shall have jurisdiction to try and decide any suit or
proceeding so far as it relates to any matter which any Officer or
other competent Authority is empowered by or under this Act to
decide."
Therefore, if section 23-A would be applicable and if the relief asked for
can be given by a Revenue Officer under the Orissa Land Reforms Act, then
section 67 takes away the jurisdiction of the Civil Court.
Section 23-A was inserted into the statute by amendment by Act 44
of 1976 and it became operative with effect from 25-10-1976. If an
unauthorised occupant has prescribed his title by adverse possession by the
time section 23-A came into the statute book, then the Revenue Officer will
have no jurisdiction to restore possession of the property to the raiyat or to
his heirs. It has been so decided in the case of Siani Nag v. Gobardhan Ganda
[62 (1986) C.L.T. 281.] , by a Bench of this Court after considering all the
relevant provisions of the Orissa Land Reforms Act. In the present case, the
sale being invalid, possession of defendant No. 1 pursuant to the sale deed
dated 30-3-1964 would be adverse by the time section 23-A came into force
and defendant No. 1 would be held to have prescribed title by being in
possession for more than twelve years. Section 23-A was obviously not there
in the statute book when the suit was filed. Section 23-A has been held to be
prospective. Therefore, the Revenue Officer will not be in a position to
restore possession to the plaintiffs in the present case under section 23-A. If
the plaintiffs cannot get the relief of recovery of possession from the Revenue
Officer under section 23-A, in view of the discussions made earlier, then
obviously the suit will not be barred under section 67 of the Orissa Land
Reforms Act. I would, therefore, unhesitatingly reject the second submission
of Mr. Acharya for the appellant.
For the prospective nature of provision at Section 23-A of
the Orissa Lands Reforms Act keeping in view the date of
transaction involved herein in the year 1969, this Court finds there
is also support of the judgment taken note hereinabove to the case
at hand. In the process, this Court while declaring initiation of
proceeding under section 23-A of the Orissa Land Reforms At is
bad, declares all the impugned orders at Annexures-2, 3 and 4 are
all bad in law.
4. In the result, the writ petition succeeds. No costs.
............................
Biswanath Rath, J.
Orissa High Court, Cuttack.
Dated 1sth day of March, 2023/SKS
