Dismissed

Balaram v. Bhagaban

Orissa HC7 Dec 2016OJC/11705/1997

Case brief

AI extract

What is this about?

The High Court of Odisha, Cuttack, dismissed a writ petition challenging an order upholding the restoration of tribal land to Scheduled Tribes. The court held that non-tribals cannot acquire title over tribal property via adverse possession under special state legislations.

What did the court decide?

The petition was dismissed as the petitioners could not acquire title by adverse possession over tribal property.

Balaram Vs Bhagaban — Land Acquisition | Orissa HC (2016)

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HIGH COURT OF ORISSA: CUTTACK

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O.J.C. No.11705 of 1997

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In the matter of an application under Articles 226 and 227 of the Constitution of India.

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---------Balaram Damba and another …………… Petitioners ---versus— Bhagaban Naik and others …………… Opp. Parties For Petitioners : Mr. P.K. Das, Advocate For Opp. Parties : Mr. H.S. Mishra, Advocate (For O.P. No.1) Miss S. Mishra, Addl. Standing Counsel (For O.P. Nos.4 to 6) -------------

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P R E S E N T:

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THE HON’BLE DR. JUSTICE A.K. RATH

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----------------------------------------------------------------------------------- Date of Hearing: 07.12.2016 │ Date of Judgment: 07.12.2016 -----------------------------------------------------------------------------------

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Dr. A.K. Rath, J. The petitioners call in question the legality and propriety of the order dated 19.4.1997 passed by the Additional District Magistrate (Gen.), Koraput, opposite party no.6, in OSATIPA No.22/95. By the said order, opposite party no.6 dismissed the appeal and confirmed the order dated 27.3.95 passed by the Tahasildar, Jeypore, opposite party no.5, in OSATIP No.21/93, whereby and whereunder opposite party no.5 allowed the application filed by the opposite party nos.1 to 3 under para 3-A of the Orissa Scheduled Areas Transfer of Immovable Property (By Scheduled Tribes) Regulations, 1956 (hereinafter referred to as “Orissa

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Regulation 2 of 1956”) and restored possession of the land to the opposite party nos.1 to 3.

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2. Opposite party no.1 along with predecessor of opposite party nos.2 and 3 filed an application under para 3-A of Orissa Regulation 2 of 1956 before the Sub-Collector, Jeypore, opposite party no.4, for restoration of land, which was registered as OSATIP Case No.21 of 1993. It is stated that the opposite parties are the absolute owner of the schedule property. But then the petitioners are in forcible possession of the land since five years. Pursuant to issuance of notice, the petitioners entered appearance and filed counter stating therein that they are in possession of the land for more than 45 years peacefully continuously and hostile animuns of the petitioners and as such they have perfected title by way of adverse possession. Parties have adduced oral and documentary evidence. The opposite party no.5 negatived the plea of adverse possession and directed for restoration of the land to the opposite parties. The petitioners unsuccessfully challenged the said order before the Additional District Magistrate (Gen.), Koraput, which was eventually dismissed.

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3. Heard Mr. P.K. Das, learned counsel for the petitioners, Mr. H.S. Mishra, learned counsel for the opposite party no.1 and Ms. S. Mishra, learned Additional Standing Counsel for the opposite party nos.4 to 6.

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4. The seminal point that hinges for consideration as to whether the petitioners can acquire title by way of adverse possession over the properties belonging to the opposite party nos.1 to 3, who are tribals ?

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5. The subject matter of dispute is no more res integra. In Amrendra Pratap Singh v. Tej Bahadur Prajapati and others, AIR 2004 SC 3782, the apex Court held that the State is the custodian and trustee of the immovable property of tribals and is enjoined to see that the tribal remains in possession of such property. No period of limitation is prescribed by para 3A. The prescription of the period of 12 years in Article 65 of the Limitation Act becomes irrelevant so far as the immovable property of a tribal is concerned. Acquisition of title in favour of a nontribal by invoking the Doctrine of Adverse Possession over the immovable property belonging to a tribal, is prohibited by law and cannot be countenanced by the court. It was further held that a tribal may acquire title by adverse possession over the immovable property of another tribal by reference to para 7-D of the Regulations read with Article 65 and Sec.27 of the Limitation Act, 1963, but a non-tribal can neither prescribe nor acquire title by adverse possession over the property belonging to a tribal as the same is specifically prohibited by a special law promulgated by the State Legislature or the Governor in exercise of the power conferred in that regard by the Constitution of India. A general law cannot defeat the provisions of a special law to the extent to which they are in conflict; else an effort has to be made at reconciling the two provisions by homogenous reading.

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6. In view of the authoritative pronouncement of the apex Court in the case of Amrendra Pratap Singh (supra), the irresistible conclusion is that the petitioners can neither prescribe nor acquire title by way of adverse possession over the property belonging to the opposite party nos.1 to 3-tribals.

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7. There being no perversity or illegality in the order passed by the forum below, this Court is not inclined to interfere with the same. Accordingly, the petition is dismissed.

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………………………………. Dr. A.K. Rath,J.

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Orissa High Court, Cuttack

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The 7^th December,2016/Basanta

Balaram v. Bhagaban

Case brief

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Balaram v. Bhagaban

Case brief

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