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2011 Supreme(Ori) 526
IN THE HIGH COURT OF ORISSA
Sanju Panda, J.
BRAHMANANDA MALLIK AND ANOTHER - APPELLANT
Versus
ADDITIONAL DISTRICT MAGISTRATE AND OTHERS - RESPONDENT
Writ Petition (C) No. 669 of 2003
Decided On : 06-05-2011
The main legal point established is that the Appellate Court is the final authority on facts and law, and lack of evidence for adverse possession can lead to the rejection of such claims.
Headnote:
Orissa Land Reforms Act - Disputed Land - Section 23, 23-A - Summary: The court discussed the ownership of disputed land under the Orissa Land Reforms Act, focusing on the possession, mutation proceedings, and adverse possession. The court emphasized the rights of the owners and the lack of evidence for adverse possession, ultimately upholding the eviction order.
Fact of the Case:
The Writ Petition challenges an order confirming the eviction of encroachers from disputed land under the Orissa Land Reforms Act. The encroachers claimed adverse possession, but the OLR authorities upheld the eviction order.
Finding of the Court:
The court found that the encroachers failed to provide evidence for adverse possession and upheld the eviction order, emphasizing the rights of the owners and the lack of illegality in the impugned orders.
Issues: The main issues revolved around the possession of the disputed land, mutation proceedings, adverse possession claims, and the legality of the eviction order.
Ratio Decidendi: The court held that the Appellate Court is the final authority on facts and law, and the encroachers forfeited their rights to adduce further evidence by not taking steps before the Appellate authority. Lack of evidence for adverse possession led to the rejection of the plea.
Final Decision: The Writ Petition was dismissed, upholding the eviction order against the encroachers.
JUDGMENT :
Sanju Panda, J. - Challenge has been made in this Writ Petition to the Order Dated 17.12.2002 passed by the Addl. District Magistrate, Dhenkanal in OLR Appeal No. 3 of 2000 confirming the Order Dated 24.5.2000 passed by the Sub-Collector, Kamakhyanagar in OLR Case No. 7 of 1999 in a proceeding u/s 23 of the Orissa Land Reforms Act (in short, "the Act").
2. The facts leading to the present Writ Petition are as follows:
Opp. Parties 3 and 4 are the owners of the disputed land measuring an area of Acs.0.020, 0.130 and 0 040 decimals in Plot Nos. 54, 53/2137, 54/2116 under Holding Nos. 284/127, 284/ 127 and 284/126 respectively of village Jiramalia. On the letter No. 130 dated 15.11.1999 of the R.I., Kamakhyanagar, a proceeding u/s 23-A of the Act was initiated on the ground that the present Petitioners along with six other persons were in unauthorized occupation of the land by installing wooden cabins. Accordingly, the Sub-Collector, Kamakhyanagar issued show cause notice to the encroachers. In pursuance thereof, they showed cause notice pleading that the disputed land was originally recorded in the names of Balaram Sahu and Sankar Sahu sons of Mahadev and Ananta Sahu son of Nabina of village Jiridamali and Jiramalia in Sabik Settlement. The land was acquired by the Government for construction of a road. The ROR was corrected on 28.1.1970 and recorded in the name of the Government. Therefore, the Applicants had no right over the said land. They continued in possession of the land since 1960 openly, peacefully and with the knowledge of everybody. As such, they are not entitled to be evicted. The Applicants in support of their contention filed a copy of the Hal ROR in which they were recorded as owners of the plot after Mutation Case Nos. 2125 of 1994 and 2068 of 1997 were allowed by the Tahasildar, Kamakhyanagar. They purchased the said land through registered sale deed. In the application, they specifically stated that for the last seven years, the encroachers forcefully installed wooden cabins and they were paying rent to the Government. They had also filed the rent receipts. On the basis of the documentary evidence, the Sub-Collector recorded the finding that the land had been recorded in the name of the first party members and they were giving usual rents to the Government. Therefore, the possession of the Opp. Parties had been declared as unauthorized and they were liable to be evicted as per Section 23-A of the Act. Being aggrieved by the said order, only seven persons filed OLR Appeal No. 3 of 2000 before the Addl. District Magistrate, Dhenkanal. In the said appeal, they filed a memo on 19.4.2000 for permitting them to adduce evidence. Without any order being passed on that memo and without consideration of the fact that the disputed land was not identifiable, the Government acquired the land for construction of Kamakhyanagar-Bhuban road. The name of the Government had been mutated in Mutation Case No. 26 of 1970-1971. Therefore, the Applicants had no right over the disputed land. As such, they were not liable to be evicted. The Appellate authority after giving an opportunity of hearing to the parties allowed them to file their written note of submissions. Taking into consideration the stand taken by the parties, he came to the conclusion that on the basis of the decision reported in D.N. Venkatarayappa and another Vs. State of Karnataka and others, that the Government granted lease to S.C. or S.T. persons can be resumed after transfer of the land to non-S.C. or non-S.T. persons and the question of adverse possession does not arise. Therefore, whether the encroacher was in possession of the land for 30 years or 12 yeas will not be of any relevance of the case. In view of the decision of the Apex Court, there is no force in the said contention. On such finding, the Appellate authority confirmed the order passed by the Sub-Collector which is impugned in this Writ Petition. Though the order passed by the Appellate auth
