Orissa High Court

Rabindranath Dash & Ors vs Harihar Naik on 28 March, 2023

              IN THE HIGH COURT OF ORISSA AT CUTTACK

                               WP(C) NO.18 OF 2011

         Rabindranath Dash & ors.                 ....            Petitioners

                                                       Mr.U.C.Mishra, Adv.

                                      -versus-

         Harihar Naik                             ....      Opposite Parties
                                                       Mr.D.Mund, Adv.

                   CORAM:
                   JUSTICE BISWANATH RATH

                                    ORDER

Order                               28.3.2023
No.
  01.    1.      The Writ Petition involves the following prayer :-

"In the above stated circumstances, the petitioners pray that your Lordships shall be pleased to admit the Writ Petition and on passing the necessary orders for issuance of notice to the Opp.Party for his appearances and filing of counters to show cause as to why the impugned order passed by the Ld. Collector, Kalahandi as per Annexure-8 shall not be declared illegal and declare that the petitioners are in de-jure possession of the schedule land.

And If the Opp.Party shall not file the counter or shall file the counters with the insufficient reasons, your Lordships shall be pleased to reject the same, allowing the writ petition and shall issue a Writ of Certiorari to quash the order of the Collector (as Annexure-8) and may afford any other relief which ever be deemed fit and proper..."

2. Advancing his submission, Mr.U.C.Mishra, learned counsel

for the Petitioners in the challenge to the impugned order at Annexure-

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8 though attempted to take this Court to the factual aspect involved

therein, however did not press the claim of the Petitioners having

right, title and interest over the disputed property on the basis of

adverse possession for there is settled position of law in this regard.

Reducing his prayer in the Writ Petition, Mr.Mishra while submitting

that the Petitioners undisputedly are not only in long possession over

the disputed property but are occupying the same and residing in a

building constructed by themselves. It is in this view of the matter,

Mr.Mishra attempted to draw the attention of this Court the decision

of the Hon'ble apex Court in Amrendra Pratap Singh vrs. Tej

Bahadur Prajapati & ors : (2004) 10 SCC 65 and reading through the

same attempted to draw the benefit therein also to the case of the

Petitioners.

3. Learned counsel appearing for the contesting O.P. on the

other hand, even though did not have any quarrel on the benefit

flowing to such persons in illegal occupation of the property of the

Tribe Member, however taking this Court to the factual narrations and

the discussions of all these three Courts right from the original

proceeding at Annexure-3 till the final order at Annexure-8 submitted,

there is clear attraction of the provision of Section 23(A) of the OLR

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Act to the case at hand and contended, the Petitioners are since illegal

occupiers of the land belonging to the Tribe Person should not be

shown any sympathy keeping in view the protection granted to such

Community through the OLR Act.

4. Considering the rival contentions of the Parties, this Court

finds, law has been fairly well settled declining the claim of right, title

and interest in favour of a General through adverse possession over

the scheduled property. However, while also considering the aforesaid

aspect, it appears, the Hon'ble apex Court in Amrendra Pratap Singh

(supra) in Paragraphs-29 to 33 came to observe as follows :-

"29. Having held that the wrongful possession of the defendant- Respondent 1 over the land purchased by the plaintiff-appellant has not ripened into acquisition of title by adverse possession, the next question which arises for decision is in relation to the appropriate relief which should be allowed to the plaintiff-appellant. There was a controversy before the trial court as to the exact extent of land and of encroachment on the property belonging to the plaintiff-appellant by the defendant- respondent, as the two properties are adjoining. The plaintiff-appellant relied on the report of Amin while the trial court had also got a survey conducted by a local Commissioner who had filed his report. The High Court has not recorded any specific finding thereon because of the view taken by it on the plea of adverse possession, resulting in dismissal of the suit.

30. The other question which arises is as to the construction made by defendant-Respondent 1 over the property of the plaintiff-appellant encroached upon by defendant-Respondent 1. During the course of hearing, it was submitted by the learned counsel for defendant-Respondent 1 that huge construction has come up over the property in suit, while according to the plaintiff-appellant some construction, rather a major portion thereof, has taken place during the pendency of the appeal in this Court as no interim relief was granted by the Court though it was prayed for by the plaintiff-appellant.

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31. On these two aspects the case needs to be remanded to the trial court for the ends of justice and determination of appropriate relief. We propose to make suitable directions in this regard in the operative part of the judgment.

32. The appeal is allowed. The judgment of the High Court is set aside. The case is remanded to the trial court for decision in accordance with the following directions:

(1) The trial court shall find if an undisputed or proved map of the land belonging to the plaintiff-appellant demarcating the area encroached upon by defendant-Respondent 1 is available on record, and if so, the same shall be accepted and made a part of the decree; if not, the trial court shall appoint an Advocate Commissioner assisted by a person proficient in survey to draw up a map of the plaintiff-appellant's land and demarcate specifically therein the area encroached upon by the defendant-Respondent

1. (2) The trial court shall determine, after hearing the learned counsel for the parties and if necessary, by recording additional evidence, whether a decree for demolition of the construction, made by the defendant- Respondent 1, and specific restoration of possession to the plaintiff- appellant, is called for. In the alternative, the trial court shall determine if, in spite of the encroachment having been proved, a decree for the award of suitable compensation in lieu of demolition and restoration of possession would be a more appropriate relief.

(3) In the event of the trial court forming an opinion in favour of awarding compensation, the same shall be assessed by reference to the date of this judgment. The payment of compensation, as quantified by the trial court, shall be a condition precedent for condoning the encroachment and unauthorised construction of the defendant-Respondent 1.

33. The trial court shall dispose of the suit, consistently with the terms of this judgment, expeditiously and in any case within a period of six months from the date of the communication of this judgment.

It is in view of the legal position stated herein above, this

Court finds, the Petitioners cannot be discriminated by depriving the

benefit to such category of occupants already granted in disposal of

the aforesaid case.

5. This Court thus allowing the Writ Petition in part but in terms

of direction, vide Amrendra Pratap Singh (supra) to the extent of

granting substituted relief in lieu of eviction, while remitting the

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matter to the Original Authority in order to facilitate determination of

appropriate relief directs the Original Authority to find if an

undisputed map of the land belonging to the Tribe Member

demarcating the area encroached upon by the Petitioners herein