JUDGMENT : Order No. 16 dated 19-1-1990: 1. Being unsuccessful before the statutory forums the Petitioner has approached this Court for redress of his grievance regarding his eviction from Ac 0.01 cent of land in survey plot No. 513 of village Badagada. The prayer in the writ application is to quash the order dated 11-8-1987 passed by the opposite party No. 1, Tahasildar, Surada (Annexure-4) directing his eviction from the land in question and the orders passed by the opposite party No. 2 Sub-divisional Officer, Bhanjanagar (Annexure-5), the opposite party No. 3, Addl. District Magistrate, Ganjam (Annexure-6) and the Revenue Divisional Commissioner, Southern Division, Berhampur, (Annexure-8) confirming the said order of eviction. 2. Shorn of unnecessary details, the facts relevant for the present purpose may be stated thus. The Petitioner purchased the case land which was recorded as Gramakanthl Parambok land in the Record-of-Rights from saiba Behera aliasSubash Chandra Behera and Rangadhar Behera by a registered sale deed dated 18-1-1984; the forefathers of the vendors of the Petitioner had got this land from the Raja Saheb of Badagada, the Petitioner's residential house stands on the case land. It is the Petitioner's case that the Tahasildar initiated some encroachment proceedings against some other persons occupying portions of survey plot No. 513 which were dropped in 1979 on the finding that as the land is recorded as Gramakantha parambok, construction of a house even if the second one does not constitute an encroachment vide Annexurers-2 and 2/1 After long lapse of time the Tahasildar started the encroachment case against the Petitioner (Encroachment Case No. 217 of 1986) in respect of the house standing on Ac. 01 cent of land. It is the further case of the Petitioner that several other persons have encroached on portions of survey plot No. 513 and have constructed their residential houses thereon. In the case initiated against the Petitioner the Tahasildar passed the order of eviction and also imposed fine at the rate of Rs. 10/- per day by order dated 11-8-1987 (Annexure-4). It is the further case of the Petitioner that several other persons have encroached on portions of survey plot No. 513 and have constructed their residential houses thereon. In the case initiated against the Petitioner the Tahasildar passed the order of eviction and also imposed fine at the rate of Rs. 10/- per day by order dated 11-8-1987 (Annexure-4). The Petitioner challenged the said order of eviction and imposition of fine before the appellate authority and revisional authority on several grounds like Gramakantha Parambok was not Government land, construction of a house on Gramakantha Parambok and was not objectionable encroachment; the Petitioner and his vendors have been in possession of the case land long prior to the Orissa Prevention of land Encroachment Act, 1972 the proceeding is not maintainable and imposition of fine against the Petitioner without service of any prior notice on him is invalid. None of the objections having been accepted by the authorities the Petitioner faces eviction from his house. 3. In the return filed by the Tahlsildar much stress is laid on the fact that the Petitioner's house on the case land is situated on the embankment of a tank which is being used by the village community and therefore allowing the encroacher to continue will affect user of the tank by the public. Another fact which is manifest from the impugned orders as well as the return filed on behalf of the opposite parties is that the Petitioner never challenged the order dated 21-6-1985 by which the Tahasildar directed his eviction. In deed he challenged only the subsequent order passed on 20-6-1986 imposing fine against him and therefore there was no scope to interfere with the order of eviction passed aglinst the Petitioner. 4. The main thrust of the argument of Shri U.C. Panda, learned Counsel for the Petitioner is that considering the small area of the encroached land (Ac 0.01 cent) and the fact that the Petitioner, a landless person has constructed his house thereon, the authorities ought to have settled the land with the Petitioner u/s 7(2) of the Act instead of directing his eviction from the house. Shri Panda does not, and in our view rightly, press the point that Gramakantha Paramboka land is not Government property' for the purpose of the Act. 5. Section 7 of the Act makes provision regarding summary eviction, forfeiture and fine. Shri Panda does not, and in our view rightly, press the point that Gramakantha Paramboka land is not Government property' for the purpose of the Act. 5. Section 7 of the Act makes provision regarding summary eviction, forfeiture and fine. Under Sub-section (1) of the said section it is provided that any person unauthorisedly occupying land for which he is liable to any assessment u/s 4 shall be summarily evicted by the Tahasildar and any crop or other product raised on the land, any encroachments such as a building, other construction or anything deposited thereon shall be liable to forfeiture. Sub-section (2) of Section 7 provides, inter alia, that notwithstanding anything contained in Sub-section (1) where any land is in the unauthorised occupation of a landless person, the Tahasildar may, instead of evicting such person from the land in his unauthorised occupation settle the same with him. The exercise of the power vested in the Tahasildar is however subject to certain conditions and certain exceptions enumerated in the sub-section. Sub-section (2) has undergone amendment in 1988 (vide Act 10 of 1988) and a new provision, Sub-section (2-a) has been added in the statute. Sub-section (3) of Section 7 vests power in the Tahasildar to impose fine in addition to the order of forfeiture. The provisions in the other sub-sections of Section 7 are not relevant for the present purpose. It is pertinent to note here that the term, landless person is defined in Section 3 (a-1) which has been substituted by Orissa Act 10 of 1988 and a new provision, Clause (a-2) defining homestead less person' has been introduced in the statute by the said Act. From a reading of the provisions of Section 7, it is clear that the statute casts a duty on the Tahisildar while considering to Summarily evict a person unauthorisedly occupying Govt. property, under Sub-Section (1) to consider whether the encroached land can be settled with the said person instead of evicting him. For determination of this question some of the matters which the Tahasildar should consider are whether the encroacher is eligible to the benefit provided under Sub-section (2), Whether the encroached land comes within any of the prohibited Categories. The power of summary eviction vested under the Act is a drastic measure and it is likely to cause serious hardship to the person against whom such an order of eviction is passed. The power of summary eviction vested under the Act is a drastic measure and it is likely to cause serious hardship to the person against whom such an order of eviction is passed. Therefore the Legislature with a view to tone down the rigour of the consequence of eviction in the case of landless persons and home stead less persons made provisions for settlement of the encroached land with them. Judged in this light the question of settlement of the encroached lands as provided u/s 7(2) of the Act assumes particular importance. 6. As noticed earlier, it is the contention of the Petitioner that he is a landless person. Indeed in the order dated 21-6-1986 the Tahasildar himself observed 'no penalty is imposed on the encroacher as he is a poor landless person.... Unfortunately the Tahasildar though aware of the fact did not apply his mind to the question whether the Petitioner is entitled to the benefit of settlement of the encroached land under Sub-section (2). The appellate and the revisional authorities; as the orders passed by them reveal, also did not consider this aspect of the case. In our considered view, non-application of mind to this important aspect of the case vitiated the order of eviction passed by the Tahasildar and the orders of the appellate and revisional authorities confirming the said order. We would therefore remit the case to the Tahasildar to consider specifically the question of settlement of the encroached and with the Petitioner as provided u/s 7(2) of the Act. 7. Accordingly, the writ application is allowed, the impugned orders as per Annexure-4, 5, 6 and 8 are quashed and the case is remitted to the opposite party No. 1, Tahasildar, Surada to consider the question of settlement of the encroached land with the Petitioner as provided u/s 7(2) of the Act and dispose of the proceeding in accordance with law after giving reasonable opportunity to the Petitioner to substantiate his case for settlement of the encroached land. There will be no order for costs of this proceeding. Writ application allowed. Final Result : Allowed