ANUGRAHA NARAYAN TIWARI Vs. TAHASILDAR NAWAPARA

JUDGEMENT

(1.) The petitioner against whom two encroachment proceedings, E.C. Nos. 10 and 14 of 1968 were initiated, has come before the Court for declaration of the confirmation of his rights to the lands under orders passed on 12-11-1970 and quashing of the orders passed on 30-6-1978 as also the eviction proceedings initiated and the ultimate eviction pursuant to the orders dated 14-8-1985, compensation in.terms of law and quashing of the certificate proceedings initiated against him and the requisitions in Certificate Case No. 176 of 1980 and Nos. 47 and 48 of 1986 and the notices, Annexures 1, 2 and 3 issued in those cases. Though the petitioner in the petition has mixed up the facts relating to the two encroachment cases, yet with reference to the ordersheet of Encroachment Case No. 10 of 1968 filed an Annexure 4, the averments in the petition and the records of the lower Court made available by the learned Additional Government Advocate, the facts emerge as follows. Both the encroachment cases were initiated under the Orissa Prevention of Land Encroachment Act, 1954 (hereinafter referred to as '1954 Act'), the first one for 8.61 acres and the second for 50.57 acres. The cases were initiated on 12-10-1968 by the Tahasildar as he found, on verification of the record-of-rights, the petitioner respectively is encroaching 8.61 acres and 50.71 acres of Abadajogya Anabadi land. The Tahsildar directed issue of notices to him under S. 7 of the 1954 Act to show cause as to why proceedings against him under Ss. 3, 5 and 6 should not be proceeded with. On 27-4-1970 the petitioner was represented through his brother Gopal Narayan Tiwari and filed a show cause admitting the encroachment and praying to settle the lands on payment of back rent and salami. On 12-11-1970 order was passed in Encroachment Case No. 10 of 1968, when the petitioner was present, that he admitted the unauthorised occupation of 8.61 acres, as detailed in the order, since 1944 and that from enquiry it was ascertained from the villagers that the land was not used for communal purpose nor was it required for any Government work. The Additional Tahasildar as such reached the satisfaction that the encroachment was unobjectionable that it was prior to 13-9-1961 and that the land could be settled with him on payment of back rent and salami but no penalty was needed to be imposed in accordance with the principles laid down in Government in Revenue and Excise Department G.O. No. 14960(6) dated 4-3-1964. He was assessed to back rent of Rs. 276.75 as per the calculation sheet attached and direction was made to intimate the Revenue Inspector of the demand in Form-J and enter in the Register No. 2. Similarly in Encroachment Case No. 14 of 1968 order was passed in presence of the parties that the encroachers (the present petitioners, Kailas Narayan Tiwari, Gopal Narayan Tiwari and Prema Narayan Tiwari) had admitted the unauthorised occupation of 50.71 acres of Abadajogya Anabadi land since the year 1938. Similar satisfaction of the Additional Tahasildar was recorded of the land being not used for communal purpose nor was it required for any Government work and that the encroachment was unobjectionable and was also prior to 13-9-1961. The back rent was assessed at Rs. 1991.22. The Revenue Inspector was directed to be intimated in Form-J. On 1-12-1971 the Additional Tahasildar recorded the orders as follows: Encroachment Case No. 10/68

(2.) In assailing the orders of eviction and the certificate proceedings, Mr. Rath, the learned counsel for the petitioner has contended that since orders had been passed to settle the lands with the petitioner and the cases had been converted to lease cases, it was not within the competence of the successor Tahasildar to convert the cases to encroachment cases later on. His second submission is that the petitioner had become a tenant by acceptance of rent by the State and hence there could not be thereafter encroachment cases against him in support of which proposition reliance has been placed on ILR (1961) Cut 595 (Basiruddin v. State of Orissa). The third submission is that the proceedings to settle the lands with the petitioner could only have been made under the Orissa Government Land Settlement Act, 1962 (hereinafter referred to as 'the O. G. L. S. Act') and those being statutory proceedings, the proceedings under the 1972 Act for eviction of the petitioner from the very same lands were misconceived. The next question urged is that since the petitioner's possession in respect of the lands was for more than 30 years even by the time the encroachment cases were initiated first, his title had been perfected in respect of the lands and he could not be evicted therefrom in the proceedings under the 1972 Act. In the alternative his argument is that since it was the Government policy to settle all encroachments made prior to 13-9-1961 with the encroachers and such policy was reiterated in the notification of the Government on 24-9-1970 and since the orders to grant lease to the petitioner of the land were passed on 12-11-1970, those were valid orders settling the lands which were not liable to be reopened.

(3.) Refuting the submissions urged, the arguments advanced by the learned Additional Government Advocate are that the petition is liable to be dismissed on account of gross delay and laches as the orders evicting the petitioner were passed on 14-8-1985 in pursuance of which the possession has also been taken over and the writ petition has been filed in July, 1990 without there being explanation for the delay. On merits it is contended that the petitioner had never become tenant under the State and had never perfected title by adverse possession.