ABDUL GANI ANSARI Vs. ADDL DISTRICT MAGISTRATE

JUDGEMENT

(1.) A proceeding was initiated under Regulation 2 of 1956 (The Orissa Scheduled Areas Transfer of Immovable Property (By Scheduled Tribes) Regulations 1956) against the petitioners on the ground that they being non -scheduled caste persons are in forcible occupation of lands belonging to scheduled tribe persons. The Officer -on -special duty (LR), Sundargarh after giving notice to the parties by a reasoned order dated 30.11.2002 passed in Misc. Case No. 3 of 1998 arrived at a conclusion that the petitioners being non -scheduled caste persons are in illegal and forcible possession over the disputed lands and directed their eviction. Being aggrieved by the said order, the petitioners preferred an appeal before the Additional District Magistrate. Sundargarh. The said appeal was registered as R.A. No. 49 of 2002. The appellate authority after considering all the facts and circumstances held that the appeal has no merit and dismissed the said appeal. The aforesaid orders are assailed in these writ petitions.

(2.) MR . Rath, learned Counsel appearing for the petitioners forcefully submitted that the petitioners have purchased the lands in the year 1955 by means of an oral sale deed. They again purchased the same lands by registered sale deed subsequently. Though Mr. Rath failed to disclose the date of the sale deed, the materials available reveal that the registered sale deed was executed on 17.5.1961. Admittedly, permission as mandatorily required under Regulation 2 of 1956 was not obtained from the competent authority before execution of the sale deed. According to Mr. Rath, as they are in possession since 1955 by means of the oral sale deed, Regulation 2 of 1956 is not maintainable. The second contention of Mr. Rath is that there was a suit for partition inter se between the land owners and in the said suit the disputed property was not included which reveals that they have no right to the said property. According to Mr. Rath the authority acted illegally and declined to take into consideration the oral sale deed executed in the year 1955. In support of such submission, Mr. Rath relied upon the decision of the Supreme Court in the case of State of Maharashtra v. Babu Govind Gavate reported in : AIR1996SC904 . It is further submitted that during lis pendens one of the party having died the proceeding had abated.

(3.) THE contention with regard to non -inclusion of the disputed properties in the schedule of partition suit is concerned, only because a property was not included in the suit schedule it cannot be presumed that the legal occupiers have lost their title. Even otherwise law is well settled that in consonance with Section 3 -A of the Regulation 2 of 1956, where a person is found to be in unauthorized occupation of any immovable property of a member of the scheduled tribes by way of trespass or otherwise, the competent authority may, either on application by the owner or any person having interest therein, or on his own motion, after giving the parties concerned an opportunity of being heard, order ejectment of the person so found to be in unauthorized occupation and shall cause restoration of possession of such property to the said member of the scheduled tribes or to his heirs. The word 'by way of trespass or otherwise' appearing in Section 3 -A means and connotes that a person might have trespassed into the disputed land and/or would have in possession of the land by virtue of any other deed or action which is not sanctioned by law. Similarly as would be evident from Section 3 -A no application need be filed before the authority and the authorized officer can also initiate a proceeding suo motu if he is otherwise satisfied that a person belonging to general category is in possession of the lands belonging to scheduled tribe.