GOUTAM KUMAR MOHAPATRA Vs. KARA PATRA

JUDGEMENT

(1.) The order of the Revenue Officer directing restoration of property in favour of opp. party No. 1 in a proceeding Under Section 23 -A of the Orissa Land Reforms Act having been upheld by the appellate and revisional authorities, the petitioner has moved this Court under Art. 226 of the Constitution to quash those orders.

(2.) THE petitioner's case in a nutshell is that the dispute relates to 2.b8 acres of land appertaining to Hal Settlement Plot Nos. 987 and 983 in Khata No. 27 of mauza Jangira in the district of Keonjhar, which correspond to Sabik plot Nos. 848 and 849, Long before the merger of Keonjhar State in the State of Orissa, petitioner's father possessed the aforesaid two plots of land by amalgamating the same with his own land which lies adjacent to th3 disputed land. In course of Settlement proceedings in the year 1964 -66, the name of petitioner's father has been, recorded to be in forcible possession though the land has been recorded in the name of the State of Orissa. Opposite party No. 1 was the Choukidar of village Jangira. The choukidari system having obolished with effect from 1 -7 -1965 under the Orissa Offices of Village Police (Abolition) Act. 1964 (hereinafter referred to as the 'Choukidari Abolition Act'), the said opp. party No, 1 applied for settlement of the land and got it settled with him on 4 -5 -1967. It is alleged by the petitioner that opp. party No. 1 was not the choukidar but his father -in -law was the choukidar. The said opp. party No. 1 on the basis of Patta issued in his favour by the authorities under the Choukidari Abolition Act approached the Settlement authorities and the Assistant Sattlement Officer allowed the prayer of opp. party No. 1, but directed nothing of forcible possession of the petitioner. Keonjhar was declared as a Schdeuled Area with effect from 12 -6 -1979. Opp. party No. 1 filed an application before the Revenue Officer invoking his jurisdiction Under Section 23 of the Orissa Land Reforms Act alleging unauthorised possession of the petitioner and praying for restoration of possession in respect of Sabik plot No. 848, The petitioner filed objection claiming to be in possession since 1940. The Revenue Officer dismissed the said application filed by opp. party No. 1 by order dated 4 -4 -1977 on the conclusion that the transfer having been made prior to the coming into force of the Orissa Land Reforms Act, no action can be taken Under Section 23. The said order has been annexed as Annexure -4. It was indicated in the aforesaid order that the party may seek redress in the appropriate Court of law to establish his claim. Opposite party No. 1 then filed an application invoking the jurisdiction Under Section 23 -A of the Act before the Revenue Officer. The said Section 23 -A was inserted into the statute book by Act 44 of 1976 conferring power on the Revenue Officer to take action either suo motu or on being moved for eviction of a person found to be in unauthorised occupation where such unauthorised occupation is by way of trespass or otherwise. The application filed Under Section 23 -A was in relation to Hal Plot Nos. 987 and 988. On being noticed, the petitioner filed objection as per Annexure -7 taking the stand that the land is under his occupation since many years and the present application is not maintainable. The Revenue Officer, however, disposed of that proceeding by his order dated 28 -7 -1986' and relying upon the Record -of -Rights finally published on 28 -6 -1982 declaring opp. party No. 1 to be a raiyat with note of forcible posession of the petitioner came to the conclusion -that the petitioner's possession is unauthorised and he is liable to be evicted Under Section 23 -A of the Act. The said order of the Revenue Officer has been annexed as Annexure -8. The petitioner challenged the same in appear, but the appellate authority dismissed the same, The petitioner then carried the matter in revision and the Collector, Keonjhar, having dismissed the revision by his order dated 21st of April, 1990, annexed as Annexure -10, the petitioner has moved this Court.

(3.) SO far as the first contention of Mr. Mohanty is concerned, though prima facie it appears to be attractive, but cannot be sustained on a closer scrutiny of Section 23 -A of the Orissa Land Reforms Act. Section 23 -A is quoted hereinbelow in extenso : '23 -A. Eviction of person in unauthorised occupation of property :Where any parson 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 or 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.' A close reading of the aforesaid provision would indicate that it is only when a person is found to be in unauthorised occupation of the holding of a raiyat belonging to a Scheduled Tribe within any part of the State other than a Scheduled Area, the provision of Section 23 -A will have no application. But so far as the holding of a raiyat belonging to a Scheduled Caste is concerned, the fact that the land is in a Scheduled Area will not make the provision of Section 23 -A inapplicable, the reason being that so far as transfer of immovable property situated within a Scheduled Area by a member of a Scheduled Tribe is concerned, the same is fully protected under the provisions of the Orissa Scheduled Area Transfer of Immovable Property (By Scheduled Tribes) Regulation, 1956 {Regulation 2 of 1956) and, therefore, it is not necessary to provide any such protection to the category of raiyats under the Orissa Land Reforms Act. It is also apparent from a careful reading of Section 23 -A of the Orissa Land Reforms Act. Opp. party No. 1 being a Scheduled Caste, if any person is found to be in unauthorised occupation of his holding, the provision of Section 23 -A will be fully applicable. The first contention of Mr. Mohanty, therefore, is rejected.