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2011 DIGILAW 237 (ORI)

Gulam Sarwar v. State of Orissa

2011-04-19

B.P.DAS, S.PANDA

body2011
JUDGMENT B.P. DAS, J. — The aforesaid writ applications arise out of the common order dated 13.9.1996 passed by the Collector, Sundargarh, O.P.2, in Revenue Revision Case Nos. 2, 3, 4 and 5 of 1996. As the facts and the process of law involved in all the cases are identical, they were heard together and are being disposed of by this judgment. 2.O.J.C. No.10582/1996 has been filed challenging the order passed in R.R. No.5/1996 arising out of Encroachment Case No.377/89 in respect of the disputed property situates in Unit No.35, Mahulpali under khata No.628, Plot No.954 having an area of Ac.0.220 decs. and Plot No.955 having an area of Ac.0.030 decs. with a total area of Ac.0.250 decs. O.J.C. No.10583/96 has been filed challenging the order passed in R.R. No.4/96 arising out of Encroachment Case No.211/89 in respect of the disputed property situated in Unit No.35, Mahulpali under Khata No.628, Plot No.997 having an area of Ac.0.220 decs. O.J.C. No.10584/96 has been filed challenging the order passed in R.R. No.3/96 arising out of Encroachment Case No.210/89 in respect of the disputed property situated in Unit No.35, Mahulpali under Khata No.628, Plot No.996 having an area of Ac.0.080 decs. O.J.C. No.10585/96 has been filed challenging the order passed in R.R. No.2/96 arising out of Encroachment Case No.209/89 in respect of the disputed property situated in Unit No.35, Mahulpali under Khata No.628, Plot No.995 having an area of Ac.0.030 decs. and Plot No.998 having an area of Ac.0.215 decs. with a total area of Ac.0.245 decs. 3.The brief facts as delineated in the writ petition are detailed herein below : On the basis of the report submitted by the Revenue Inspector, Raghunathpalli, the Tahasildar, Panposh, O.P.4, initiated proceeding under Sections 4, 6 & 7 of the O.P.L.E. Act (in short, “the Act”) separately against each of the petitioners for their eviction from the land belonging to the Government as the allegation that they were in unauthorized occupation of such lands. Accordingly, the Tahasildar issued notice under Section 9 of the Act requiring the petitioners to show cause, in response to which the petitioners filed their respective replies denying the allegations made therein along with written notes of submission. Accordingly, the Tahasildar issued notice under Section 9 of the Act requiring the petitioners to show cause, in response to which the petitioners filed their respective replies denying the allegations made therein along with written notes of submission. In their replies, the petitioners had taken the stand that the case lands were purchased and possession thereof was taken by the late Abdul Quayum, the predecessor-in-interest of the petitioners in the year 1952 from the recorded tenants/owners on payment of consideration of Rs.95/-. After taking possession of the case lands, the predecessor-in-interest had constructed residential house over the same and further developed the case lands by spending a huge amount. In the Hal Settlement, the property has been recorded in the names of the petitioners. After settlement recording, the N.A.C., Rourkela issued holding numbers in the year 1984 and collected holding tax. The petitioners also obtained permission from the Municipality for effecting repair to the existing house and thereafter taking permission from the N.A.C., constructed a double-storied building. Power connection was also duly provided to the house of the petitioners by the Orissa State Electricity Board. In the show cause replies the petitioners had taken a stand that they were in actual, continuous and undisputed occupation of the disputed property for more than 30 years and as such, they were entitled to settlement of the disputed property under Section 8-A of the Act. The Tahasildar, Panposh, vide orders dated 25.9.1991 (Annexure-1) disposed of the encroachment proceedings holding that the petitioners have perfected their title over the case lands as they have proved their possession over the land in continuity since 1952, i.e., for more than thirty years, and therefore, the encroachment proceeding was not maintainable. The Tahasildar submitted the case records to the Sub-Collector, Panposh for further action at his end. The relevant part of the order dated 25.9.1991 passed by the Tahasildar in one of such proceedings is quoted hereunder :- “..... I am satisfied that the O.P. has proved his possession over the land adequately in continuity and exclusively against the knowledge of the local authorities since 1952. The relevant part of the order dated 25.9.1991 passed by the Tahasildar in one of such proceedings is quoted hereunder :- “..... I am satisfied that the O.P. has proved his possession over the land adequately in continuity and exclusively against the knowledge of the local authorities since 1952. Further record goes to show that the O.P. is not in permissive possession of the land in question from any authorities of the State Government.....” The Sub-Collector, Panposh, on receipt of the records from the Tahasildar, made further inquiry and on perusing the materials available on record passed the order dated 3.2.1994 holding that the petitioners have been in actual, continuous and undisputed occupation of the lands in question for more than thirty years by the date of institution of the encroachment proceedings. The relevant portions of the order dated 3.2.1994 passed by the Sub-Collector in one of such cases is quoted hereunder :- “..... The lands in question belong to Revenue Deptt. being recorded in the Rakhit Anabadi Khata. No notice to the Revenue Deptt. is issued for filing of any show cause before proceeding for further enquiry (As per the provisions of Section 8-A(ii) of O.P.L.E. Act). Further enquiry into the matter is made and documents are scrutinized. The documents available on record which have also been scrutinized by the Tahasildar clearly substantiate the findings of the learned Tahasildar. In such circumstances, there is no scope, but to hold that the encroacher has been in actual continuous and undisputed occupation over the lands in question for more than 30 years by the date of institution of the encroachment proceeding. The encroacher has duly discharged his onus of responsibility to prove that he is in occupation over Plot No.954, 955 measuring an area of Ac.0.220 decs. and 0.030 decs. respectively in Khata No.628 of Rourkela Town Unit No.35 since 1952 and as such, he is entitled to be settled with the encroached land. The settlement is made in the interest of revenue purpose, so as to put an end of irregular encroachment of the case land by duly settling the same with the encroacher. Hence, in the result, the lands in question described in the schedule below are settled with Gulam Sarwar, S/o. Late Abdul Kayum of Anand Bhawan Lane, Rourkela, on royati basis. Hence, in the result, the lands in question described in the schedule below are settled with Gulam Sarwar, S/o. Late Abdul Kayum of Anand Bhawan Lane, Rourkela, on royati basis. Xxxxxxxxxxxx The O.P. is required to pay the arrear rent from 1952 i.e. from the date of possession of the land till date. Keeping in view the provisions of Section 3 of the Orissa Limitation (Recovery of Revenue) Act, 1964, the O.P. is liable to pay the arrear rent from 1981. The O.P. is also required to pay all other dues as per the existing rules in vague and penalty of Rs.2,000/- (rupees two thousand) per acre per year i.e. from 1981 and after realization of all the dues as per rules, the Addl. Tahasildar, Rourkela, will initiate necessary action in connection with issuing Record of Right on Royati basis in favour of the O.P. Return the case record to the Addl. Tahasildar, Rourkela.” 4.According to the petitioner, the Revenue Department was a party to the aforesaid proceedings and the orders passed therein as it is evident from the order of the Sub-Collector dated 3.2.1994 that the State had contested the claims of the encroachers through the Additional Government Pleader, who appeared and filed written argument. 5.After a lapse of two years, the District Revenue Officer filed four separate revisions being Revenue Revision Case No.2/96, 3/96, 4/96 and 5/96 before the Collector, Sundargarh, under Section 12(2) of the Act against the order dated 3.2.1994 passed by the Sub-Collector and the same were disposed of by a common order dated 13.9.1996 (Annexure-5), in which the order of settlement passed in favour of the petitioners under Section 8-A of the Act by the Sub-Collector was set aside. The said order dated 13.9.1996 (Annexure-5) is impugned in these writ petitions. 6.Mr. R.K. Mohanty, learned counsel appearing for the petitioners, submitted that as O.P.5-District Revenue Officer, Sundargarh, who belonged to the Revenue Department, was not a person aggrieved, the aforesaid Revision Cases filed at his instance were are not maintainable. In this regard, learned counsel argued that as there is no provision for giving opportunity to the Revenue Department to show cause in a proceeding under Section 8-A of the Act, as would appear from the provision of Sub-section (2) of Section 8-A of the Act, the finding of the Collector that the order was passed without noticing the Revenue Department is not correct. When it was proved by the encroachers that they have been in actual, continuous and undisputed occupation of the lands for more than 30 years by the date of institution of the proceeding then the land in question could be settled by the Sub-Collector under Section (3) of Section 8-A of the Act. The Tahasildar in his order dated 25.9.1991 while submitting the records to the Sub-Collector held that the petitioners are in actual, continuous and undisputed occupation of the case lands since 1952, which is more than 30 years by the date of institution of the eviction proceedings in the year 1989. Thereafter, the Sub-Collector conducted an enquiry on receipt of the records and after evaluation of the materials available on record held that the petitioners have been in actual, continuous and undisputed occupation of the case lands for more than 30 years by the date of institution of the encroachment proceedings. The Sub-Collector further held that the petitioners have duly proved that they are in occupation of the lands since 1952. With all those materials on record, the Sub-Collector proceeded for settlement of the case lands in favour of the petitioners. The Collector in the impugned order has erroneously proceeded on the assumption that the petitioners have not perfected their title by adverse possession, inasmuch as, according to the Collector, there was a break in possession of the petitioners even if it was assumed that the petitioners were in uninterrupted possession since 1952. According to the petitioners, this assumption is incorrect and the approach of the Collector is erroneous and is not in accordance with law as envisaged in Section 8-A(1) of the Act. 7.Though these writ petitions are of the year 1996, the O.Ps. filed counter affidavit long after in the year 2009 through the Tahasildar, Rourkela. In the counter affidavit, the O.Ps. have stated that the R.I., Raghunathpali, who booked encroachment cases against the encroachers, in his report indicated that as the lands under encroachment come within the jurisdiction of Rourkela Municipal area, the same objectionable for which suggestion was made for initiating eviction proceeding. It is also indicated that the suit land was acquired for construction of the Hindustan Steel Ltd. in the year 1954 and the same land was subsequently reverted back to the State Government in the year 1977. It is also indicated that the suit land was acquired for construction of the Hindustan Steel Ltd. in the year 1954 and the same land was subsequently reverted back to the State Government in the year 1977. So any claim towards encroachment can be possible from 1977 onwards, for which the claim of the petitioners that they have acquired the land in the year 1952 is false. It is further stated that the petitioners at that time were minors and it was not possible on their part to encroach upon the aforesaid piece of land. So far as the question of maintainability of the Revision Cases, as raised by the petitioner is concerned, there is no answer to the same in the counter affidavits, save and except, repeating the stand taken by the Revisional Authority. In the aforesaid background and the facts and circumstances of the case, and as argued by the learned counsel for the petitioners that the petitioners have claimed their title over the property by virtue of the purchase made by their predecessor-in-interest, Abdul Quayum, who purchased the same from the recorded tenants/owners, the contention of the opposite parties that the petitioners were minors is absolutely not tenable and is the outcome of non-application of mind. The consistent case of the petitioners is that their predecessors-in-interest had acquired the property in question. Hence, the objection of the State in this regard is rejected. 8.Two questions emerge for consideration before this Court, i.e., (1) whether the Revisions cases are at all maintainable at the behest of the District Revenue Officer, Sundargarh and (2) whether the finding of the Collector that no hostile animus was proved by the petitioners against the original owner of the land even if it is assumed that they are in possession of the land since 1952, the possession was not adverse against the owner till 1983, is correct ? 9.In order to answer the first question, let us see the provision of Sub-section (2) of Section 8-A of the O.P.L.E. Act, which provides that on receipt of a reference under Sub-Section (1), the Sub-divisional Officer shall give the Department of the State Government (other than the Revenue Department) to which the land belongs, an opportunity to show cause against the settlement of the land and may make such further enquiry as he deems necessary. In the present case, admittedly the lands belong to the Revenue Department, for which the Revenue Department was not required to be given any opportunity to show cause. Further, from the record, it is clear that before the Sub-Collector, the State Government was adequately represented by the A.G.P. and after hearing both the parties and evaluating the materials on record, the Sub-Collector passed the order directing settlement of the case land in favour of the petitioners. From the aforesaid provision, it is crystal clear that the Revenue Department cannot be said to be an aggrieved party and, therefore, cannot maintain a revision application through another Revenue Officer against its own order passed by the Sub-Divisional Officer. The Sub-Divisional Officer in the present case is the Sub-Collector, who is also a Revenue Officer. The Sub-Collector in this case having exercised his power as appellate authority under Section 8-A of the Act passed order directing settlement of the land in favour of the petitioners. Section 8-A(2) of the Act clearly lays down that on receipt of a reference under Sub-section (2), the Sub-Collector shall give the Department of the Government (other than Revenue Department) to which the land belongs, an opportunity to show cause against the settlement of the land and may make such further enquiry as he deems necessary. In the case at hand, the Sub-Divisional Officer in his order dated 3.2.1994 has clearly held that the lands in question belong to the Revenue Department being recorded in Rakhit Anabadi Khata, and therefore, no notice to the Revenue Department was necessary for filing any show cause before proceeding for further enquiry as per the provision of Section 8-A(2) of the Act. So in our considered opinion, for that matter, the District Revenue Officer cannot be said to be a person aggrieved against the order passed by the Sub-Collector. 10.Section 12(2) of the Act gives jurisdiction to the Collector to revise the decision/order passed by the Sub-Collector under Section 7 or 8-A of the Act. But the provision does not contemplate anything to show that the revision is maintainable at the best of the authority of Revenue Department. This is only an order passed by the Sub-Collector and the same can be revised by the Collector. But the provision does not contemplate anything to show that the revision is maintainable at the best of the authority of Revenue Department. This is only an order passed by the Sub-Collector and the same can be revised by the Collector. That apart, the provision of Sub-section (3) of Section 12 of the Act vests power with the R.D.C. for initiation of suo motu revision of any order passed under the Act. Hence, initiation of the proceeding at the behest of Revenue Officer, as we have said, is without jurisdiction. So by no stretch of imagination the Revenue Department cannot be said to be an aggrieved party to file a revision against the order passed by another Revenue Officer, i.e., Sub-Collector. So in our considered opinion, filing of an application in the instant case under Section 12(2) of the Act before the Collector by the Revenue Officer is dehors the statutory provision and without any authority of law and, therefore, the same is not maintainable. 11.We would have ended this matter here without further delving into other aspect dealt with by the Collector. But the Collector, Sundargarh, has given a finding that the petitioners have not perfected their title by adverse possession. First of all, we make it very clear that law of adverse possession is totally alien to Section 8-A(1) of the Act. In a proceeding under the O.P.L.E. Act, the summary remedy for eviction which is provided for by Section 6 of the Act can be resorted to by the Government only against persons who are in unauthorised occupation of any land which is the property of the Government. In course of eviction proceeding against any person unauthorisedly occupying any land, it was proved by such person that he has been in actual, continuous and undisputed occupation of the land for more than 30 years by the date of institution of the proceeding, then the land in question could be settled by the Sub-Collector under Sub-Section (3) of Section 8-A of the O.P.L.E. Act. So the question of adverse possession applying to all the revision cases is absolutely unwarranted. So the question of adverse possession applying to all the revision cases is absolutely unwarranted. But from the order of the Collector, it appears he has relied upon the affidavit purportedly sworn to by one Dulari Christian that her husband and others who were the recorded tenants then verbally sold the case land to the encroachers for a consideration of Rs.95/- in the year 1952. 12.Taking a cue from the said affidavit, the Collector in paragraph-10 of the order dated 13th September, 1996 held that adverse possession is essentially acquisition of fact. The encroachers have adduced affidavits from said Dulari Christian, which were sworn on 10.1.1990 to the effect that her husband and others, who were recorded tenants, verbally sold the case land to the encroachers for a sum of Rs.95/- in the year 1952. These affidavits cannot be relied upon in the absence of any evidence pointing to the fact that the encroachers disputed the right of the original owner in contesting the claim of landholder’s compensation. If at all the encroachers purchased the case land in 1952, they should have asserted their sole and exclusive title by denying the compensation to the recorded tenants. This observation of the Collector was made because the land was acquired from the original owner for Hindustan Steel and when the land was not utilized by the Hindustan Steel, it was reverted back to the State Government. So basing upon this, the Collector has held that as the petitioners were not the contestants for the claim of compensation, at the starting point there was no expression of hostile animus. The State has filed a written note of submission on 18.4.2011 citing therein the decisions of this Court in the cases of Smt. Rabeha Khatun v. State of Orissa, (2003) II OLR 637 and Chaitanya Mohapatra v. Member, Board of Revenue, Vol-43 (1997) CLT 664 speaking about the jurisdiction and power of the Revisional Authority to check the illegality and impropriety. There is no dispute regarding the statutory power vested with the Revisional Authority, but the present case is totally different and in this case, as we have already discussed, the Collector has proceeded on a wrong premises and was confused between the law relating to possession of land under the OPLE Act and the law relating to adverse possession. There is no dispute regarding the statutory power vested with the Revisional Authority, but the present case is totally different and in this case, as we have already discussed, the Collector has proceeded on a wrong premises and was confused between the law relating to possession of land under the OPLE Act and the law relating to adverse possession. At the cost of repetition, we may say that the position of law in the cases of adverse possession and the possession under the O.P.L.E. Act is distinctly different. In the case at hand, the proceeding under the O.P.L.E. Act has been pressed into service, in which the summary remedy prescribed by Section 6 is not the kind of legal process which is suited to an adjudication of complicated questions of title. (See- AIR 1982 SC 1081 , Govt. of Andhra Pradesh v. Bandi Venkatarama and others) 13.More over, from the finding of the Tahasildar, it appears that Juhan Christian and others were the recorded tenants from whom the predecessors-in-interest of the petitioners purchased the case land for a sum of Rs.95/- each in the year 1952. The lands were acquired for Hindustan Steel Ltd. in the year 1954. The case land was reverted back to the State Government in the year 1977 from Hindustan Steel Ltd. According to the Collector, as there were breaks in the nature of possession of the petitioners initially in the year 1954 and again in the year 1977, the petitioners cannot claim to have perfected their title by way of adverse possession. The aforesaid view of the Collector is not correct as the Collector has proceeded on a wrong premises to come to a conclusion that there was break in possession of the petitioners predecessors-in-interest and after him, the petitioners, inasmuch as the ownership of the lands was changed to different persons. Such a concept is misconceived. When the ownership of the property changes, the same does not break the continuity of possession of a person in unauthorized occupation of the same against the original owner. There is also nothing on record or finding to show that the petitioners were ever dispossessed in the year 1954 and again in the year 1977. Such a concept is misconceived. When the ownership of the property changes, the same does not break the continuity of possession of a person in unauthorized occupation of the same against the original owner. There is also nothing on record or finding to show that the petitioners were ever dispossessed in the year 1954 and again in the year 1977. Hence, the finding of the Tahasildar as well as the Sub-Collector that the petitioners were in actual, continuous and undisputed occupation of the land for more than 30 years notwithstanding the change in ownership of the lands is, in our view, correct and we make it very clear that the ingredient of adverse possession is not the requirement of Section 8-A (1) of the Act. So for the aforesaid reasons, we have no hesitation to set aside the order dated 13.9.1996 passed by the Collector, Sundargarh, O.P.2, in Revenue Revision Case Nos.2, 3, 4 and 5 of 1996 and confirm the order passed by the Sub-Collector and accordingly, we do so. The writ petitions are accordingly allowed. No cost. S. PANDA, J.I agree. Petitions allowed.