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2016 DIGILAW 1111 (ORI)

Poddu Amanatya v. Dhansai Harijan

2016-11-17

BISWANATH RATH

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JUDGMENT : Biswanath Rath, J. This writ application has been filed assailing the impugned order at Annexure-2 passed by the Appellate Authority under Section 3(A) of the Orissa Scheduled Areas Transfer of Immovable Properties (by S.T.) Regulation, 1956. 2. Short background involved in this case is that the present petitioner instituted OSATIPR No.2/1996 against O.P.1 under Section 3(A) of the Orissa Scheduled Areas Transfer of Immovable Properties (by S.T.) Regulation, 1956, otherwise called as “Regulation II of 1956”. The petitioner herein claimed that O.P.1 has been forcibly in possession of the disputed land, which since contravenes the provision of Section 3(A) of Regulation, 1956, he is required to be evicted. The O.P.1 on his appearance admitted that his father, Benu Amanatya is the original owner of the case land but pleaded that the case land has been sold by one Dasu Sunari since long. It has been further pleaded that there is already a decision involving a Regulation-II proceeding, and therefore, the subsequent proceeding was also not maintainable. Regulation-II proceeding was decided in favour of the present petitioner by the original authority. But the appeal was decided in favour of O.P.1 reversing the judgment passed by the original authority. 3. Assailing the impugned order at Annexure-2, Sri M.K.Mohanty, learned counsel for the petitioner, taking resort to a decision of the Hon’ble apex Court in the case of Amrendra Pratap Singh vrs. Tej Bahadur Prajapati & Others, reported in AIR 2004 SC 3782 , strenuously urged that in view of the ratio decided in the aforesaid decision, the claim of the non-tribe on the basis of adverse possession is no more available to be considered. Consequently, Sri Mohanty claimed that he has a case to be allowed by interfering with the impugned order. 4. Sri S.B.Jena, learned counsel appearing for O.P.1, while opposing the submission of the learned counsel for the petitioner, contended that the original case was instituted prior to the judgment referred to by the learned counsel for the petitioner, for which the ratio decided in the aforesaid decision has no application to the present case. 5. Considering the rival contentions of the parties and looking to the ratio decided in Amrendra Pratap Singh (supra), on a query being made as to the present status of the land, learned counsel for both the parties are not in a position to answer to the query. 5. Considering the rival contentions of the parties and looking to the ratio decided in Amrendra Pratap Singh (supra), on a query being made as to the present status of the land, learned counsel for both the parties are not in a position to answer to the query. Considering the rival contentions of the parties and the ratio in the decision in Amrendra Pratap Singh (supra), this Court finds, the submission made by the learned counsel for the petitioner has force and his case is well covered by the decision referred to herein above. There is no scope for considering the case of a non-tribal taking resort to right by way of adverse possession. While deciding the matter in favour of the petitioner, this Court cannot lose sight of the direction part of the Hon’ble apex Court in the decision of Amrendra Pratap Singh (supra), particularly in paragraph-32 and consequently, though this Court declares the impugned order under Anenxure-2 as bad but following the direction of the Hon’ble apex Court in paragraph-32 of the said decision, this Court directs the original authority to make an enquiry through its agency to find out the nature of use of the disputed land and in the event, the original authority is satisfied that the land is being used for agriculture purpose, then necessary steps be taken for giving restoration of the disputed land in favour of the petitioner. In the event, the original authority finds that O.P.1 is occupying the disputed land by construction of house, in such event the original authority shall do well in making an assessment of the value of the property held by O.P.1 under developments taken thereon and looking to the Bench Mark valuation in the locality, necessary compensation will be computed and the O.P.1 will be directed to pay compensation to the petitioner within a stipulated period in lieu of eviction. The writ application stands disposed of with the direction made herein above.