PADMANAV PRADHAN Vs. STATE OF ORISSA

JUDGEMENT

(1.) THE case of the petitioners may be stated in short. They are members of one family and they are residents of the ex-State of Pallahara which merged with the state of Orissa on 1-1-1948. Their ancestors had excavated the disputed tank in village Dimiria with an area of 2. 80 acres pertaining to khata No, 58, on plot Nos. 502. 921 and 922, about 80 years back. After excavation of the tank their ancestors had planted several fruit bearing trees on its embankment. The ancestors and after their death their heirs, and at present the petitioners are in actual physical possession of the tank. They enjoy the fruits of the trees and the fish from the tank. In the finally published record-of-rights in 1916 the possession of their ancestors was noted in the remarks column. Thus the petitioners are in possession of the disputed tank with its embankment openly, peaceably and in their own right and have acquired right, title and interest in the disputed tank. In or about the year 1963, one Fakir Mohan Pradhan the then Sarpanch of Dimiria grama Panchayat, who bore a personal grudge against petitioner No. 1, created disturbance over the possession of the tank. In a proceeding under Section 145, criminal P. C. the possession of the petitioners was declared on 17-2-1964 by an order Annexure A. The Sarpanch asserted his claim on the basis of an order of transfer of the tank in favour of the Grama Panchayat by the Government. Being unsuccessful in the 145 proceeding he got a proceeding started by the Tahasildar under Sections 3 and 5 of the Orissa Prevention of Land Encroachment Act. 1953 (Act 15 of 1954) (hereinafter to be referred to as the Act ). The Tahsildar passed the order (Annexure-B) on 10-3-1966 to the following effect:--

(2.) THERE is no dispute before us that there has been no proper enquiry by taking evidence to determine the question whether the possession of the petitioners was an unauthorised encroachment. The issue raised before the revenue authorities was whether the disputed tank belonged to the petitioners or to the State. The civil right of the petitioners is in issue. If in fact they are owners in possession, they cannot be divested of their right, title and interest in the property without an appropriate finding in a proper enquiry. The learned Advocate General conceded that the impugned order (Annexure-F) is liable to be quashed and the case is to be remanded for a proper enquiry. The Revenue Divisional Commissioner also committed an error of record in saying that the eviction order passed by the Sub-Divisional Officer is correct. The Sub-Divisional Officer passed no order of eviction. In fact, the Tahasildar submitted the record to the S. D. O. , Pallahara, for eviction under Section 6 of the Act on which no action had been taken by the S. D. O. yet.

(3.) THOUGH a number of contentions had been raised in the writ application. Mr. Rath for the petitioners ultimately advanced the following arguments,