Orissa High Court
Mahesh Prasad Bhagat Alias Maheswar ... vs State Of Orissa And Ors. on 3 February, 1993
Equivalent citations: 1993(I)OLR339
Author: B.L. Hansaria
Bench: B.L. Hansaria
JUDGMENT B.L. Hansaria, C.J.
1. A matter of some importance relating to the implemention of the Urban Land (Ceilig and Regulation) Act, 1976 (hereinafter, "the Act") has coma up for consideration in this petition, The question is whether the land-holder can claim that the vacant land within the ceiling limit which has been specified by him Under Section 6 of the Act must be allowed to be retained by him. Section 6 of the Act requires the land-holder to specify the vacant land which he desires to retain and Section 8(2)(iii), which deals preparation of draft statement, also requires particulars of the vacant land which such person desires to retain within the ceiling limit to find place in the statement. The question is whether this specification visualised by these two sections confers a right on the land-holder to claim that he must be allowed to retain the land so specified or mentioned.
2. This question has come up for consideration because it has been found in the present case that a part of the land so described by land-holder is under an encroacher. The case of the State, therefore, is that if this type of land has to form a part of the ceiling, the very object of the Act would be frustrated because that land would not be available for a very long time even if under the Act the land vests in the State and free from all encumbrances, for the purpose of its distribution or for using it for any other public purpose. The land-holder, on the other hand, states that if it would be held that that type of land would form a part of his retainable land, then it may be that he would be virtually left with no land for his own use, in which case the areas of the retaining land mentioned by the statute would serve no purpose so far as he is concerned In some cases, it may even be that the area of retainable land is reduced virtually to nil and the Act becomes ex-proprietary in nature.
3. Shri Misra appearing for the land-holder submits that such an interpretation to the Act may not be given, inter alia, because of a Full 8ench decision of this Court in Sahadeb Nayak v. State of Orissa, 1990 (II) OLR 199, in which while dealing with a cognate provision, namely, the Orissa Land Reforms Act and that too which examining the question as to whether the right to choose the land to be retained by a person can be claimed in an advance stage of the proceeding, this Court observed in paragraph 7 that though the statute to the present nature though may not be described as penal as is the word understood in legal parlance, the same is ex-proprietary in nature, and so, it should be interpreted in the same way as a penal statute is required to be, according to which the provision should be so construed which avoid harm to the concerned person. Shri Misra also draws our attention to a Full Bench decision of Allahabad High Court in Raja Yuveraj Datt Sing v. Prescribed Authority. AIR 1968 Allahabad 305, in which while dealing with a similar provision finding place in the U.P. imposition of Ceiling on Land Holdings Act, 1960, it was stated in paragraph 19 that the right of the tenure-holder to choose his plot as disclosed in the objection filed by him can only be rejected by the prescribed authority for reasons which have behind them the support of law.
4. Shri Das, learned Government Advocate, contends that the support of law in a case of the present nature would be the object of the Act itself which would be frustrated if a land under the trespasser has to be counted as a part of the land which vests in the State. Learned counsel urges that to get possession of such a land, the State shall have either to use the provisions of Orissa Prevention of Land Encroachment Act or Orissa Public Premises (Eviction of Unauthorised Occupants) Act which would be a long drawn affair and the result would be that the possession of the land, even if obtained, would take years and the salutary object of the Act would be frustrated. He also submits in this connection that an encroacher cannot be evicted by force of the provisions contained in Section 10 of the Act inasmuch as the persons who can be evicted even by use of force as mentioned in Sub-section (6) are those who are holding the land under a lease or a mortgage or a hire purchase agreement or an irrevocable power of attorney, of which mention has been made in Section 9 of the Act.
5. Shri Misra replies that the field of operation of Section 10 is wider and need not be confined to these four classes of persons. According to the learned counsel, these four types of persons have been mentioned in Section 9 because of the definition of the expression "to hold" as given in Section 2(1) of the Act. This definition has relevance because Section 6 deals with every person who holds vacant land. Section 10 on the other hand, takes within its fold claims of all persons interested in such vacant land and it is because of this wider expression, read along with the provision finding place in Section 10 requiring publication of the statement for information of the general public, that Shri Misra. contends that even a trespasser would be a person interested within the meaning of Clause(ii)of Sub-section(1) of Section 10 because of which what has been stated in the other parts of Section 10 would come into place with the result that if a claim of such a person is not accepted, the possession of land could be taken by the State with the use of force.
6. According to us, a statute like the one at hand, which has a greater public purpose to serve, has to be interpreted in a way that the purpose is not frustrated, otherwise the statute becomes a dead letter. But then, the interest of the person concerned has also to be taken care of. If the statute permits him to retain certain portion of the land, that also cannot be made meaningless. Having kept in view these two objects to be achieved by the statute and the force of submission of Shri Das and the reasonable interpretation put on the words "persons interested" by Shri Misra, we would hold that a trespasser or an encroacher would also be a person interested within the meaning of Section 10(1) (it) of the Act, with the. result that if such a person be in possession of a land falling under excess land, it would be open to the State to take recourse to the machinery or the provisions provided in Section 10, which culminates in the use of force to take possession of the land, if the claim of the person is not established to the satisfaction of the competent authority mentioned in Section 10.
7. In the result, we hold that the land-holder would have the right to claim that the land to be retained by him must be his choice, even if there be. a trespasser or an encroacher on the excess land. As in the present case, the choice of land has been denied to the petitioner because there was an encroacher on the excess land, we direct the opposite parties to allow the petitioner to have his choice and to calculate that part of the land which is under the encroacher to be a portion of the excess land and thereafter to take action against the encroacher as visualised by Section 10 of the Act, which, stated by us, permits action to be taken against an encroacher also.
8. The petition is allowed accordingly.
S.K. Mohanty, J.
9. I agree.