LAXMAN KANDA Vs. STATE OF ORISSA

JUDGEMENT

(1.) An order having been passed by the opp. party No. 3, the Revenue Divisional Commissioner, Southern Division, on a reference made by the Collector in an encroachment case directing the land in question to continue under the Government Khata and for the petitioner to be evicted and such decision having been refused to be interfered with by the Board of Revenue (opp parly No. 4) in a further revision, the petitioner has approached this Court invoking its extraordinary jurisdiction.

(2.) THE facts which are not disputed, in a nutshell are that the land is situate in the district of Kalahandi and the petitioner in the record -of - rights published in 1945 was shown in the remarks column thereof as possessing the land. An encroachment proceeding was started against him in respect of the land in the year 1971 but it was dropped A fresh proceeding was started on 14 10 -1976 under the Orissa Prevention of Land Encroachment Act, 1972 (Act 6 of 1972) (hereinafter referred to as 'the Act') In which order on 27 -11 -1976 was passed by the Tahasildar evicting the petitioner and imposing penalty of Rs. 3,992/ - upon him. An appeal was carried by the petitioner before the Sub -Divisional Officer which was allowed on 28 -6 -1977 remanding the matter to the Tahasildar for fresh enquiry and disposal. On remand, the Tabasildar held on 18 -1 -1978 the petitioner to been encroacher since 1945 and as being in continuous possession of the land since thirty years for which he had perfected his title by way of adverse possession. He hence -held the provisions of the Act to be not applicable and therefore directed dropping of the proceeding with the further direction to send intimation to the mutation section for starting a mutation case against the petitioner. A little before expiry of five years from the order passed on 18 -1 -1978 Reference was made by the Collector on 10 -12 -1982 to the Revenue Divisional Commissioner questioning the order passed by the Tahasildar. The Commissioner after hearing the petitioner passed orders on 22 -4 -1983 setting aside both the appellate order passed by the Sub -Divisional Officer on 28 -6 -1977 as also the order passed by the Tahasildar, on remand, on 18 -1 -1978 and passed the order impugned in Annexure -4.

(3.) AS regards the factual aspect, the order of the Commissioner, which was not interfered with by the Board of Revenue in revision, shows him to have proceeded on the footing of the petitioner having made a petition on 2/ -11 -1976 of being not in. cultivating possession of the encroached land since 1965. From such fact he came to the conclusion that the petitioner could not plead to have remained in possession of the land for thirty years. The approach was erroneous as the admission of the petitioner was relied upon in a truncated manner. As a matter of fact, as the very order of the Commissioner discloses, the petitioner's case was that since 1965 not he but his sons were in possession of the land. It is not the Department's case that after 1.65 the petitioner had surrendered or abandoned the possession and that the State was in possession of the land. Had it been so, there would have been no necessity for initiation of encroachment proceeding. The very fact that an encroachment proceeding was initiated against the petitioner would show that the Government was not in possession of the land but that the land was in possession of the encroachers, be it the petitioner or his sons. If the authorities wanted to rely upon the statement of the petitioner that not he but his sons were in possession of the land, obviously an order of eviction could not be passed against the petitioner for the simple reason that he was not in possession, a fact which was purported to be acknowledged by the authorities. If, on the other hand, they did not want to rely upon the admission of the petitioner that the land was in possession of his sons, and wanted to stick to their original case that the petitioner was encroacher in respect of the land, they had to proceed on the footing that he was continuing in possession since 1945. It is also not the case of the Department that after I965 the State was at any time in possession of the land and thereafter the petitioner had re - encroached. In that view of the matter it must beheld that the initiation of the encroachment proceeding against the petitioner was misconceived and was hit by Section 13 of the Act and that the conclusion in that regard reached by the Tahasildar on 18 -1 -1978 was unexceptionable. The order of the Commissioner in that respect is vitiated.