The Orissa High Court has clarified that an unlawful possession of a property, which does not bestow any right, cannot be defended only on the ground that the legislation, which authorises eviction, is prospective in nature.
A Division Bench of Chief Justice Dr. S. Muralidhar and Justice Radha Krishna Pattanaik held,
"A lawful right is always protected and cannot be taken away by an amendment brought into force at a later point of time. However, it does not mean that an unlawful possession which does not convey any right can still be defended on the ground that the Act to be prospective in nature. Unless, a possession is shown to be lawful, it has to be treated as unlawful as on the date when the amended Act came into force. Furthermore, it has to be treated as continuous wrong so long as the possession is unauthorized."
At the instance of Opposite Party No. 1, a proceeding under Section 25 of the Odisha Hindu Religious Endowments Act, 1951 (OHRE Act) in respect of the schedule land was initiated. In the said proceeding, the petitioner challenged the action on the ground that the possession was unauthorized and in so far as the land settled with OP No. 1 is concerned, it was sheer illegality.
However, the OP No. 2, before whom evidences were laid, finally reached at the conclusion that OP No. 1 is a perpetual minor (a deity) and therefore, the deity's rights cannot be taken away. With the above finding, OP No. 2 allowed eviction of the petitioner exercising jurisdiction under Section 25 of the OHRE Act. The settlement was never challenged by the petitioner.
Contentions of the Petitioner:
The petitioner contended that the OP No. 2 without considering the scope of the expression 'unauthorized occupation' as appearing in Section 25 of the OHRE Act, which was introduced in 1981 with effect from 2nd March 1981, held his possession as unlawful and directed eviction by exercising jurisdiction under the said provision, despite the fact that his vendor's vendor had obtained sanction as per Section 19 thereof.
Mr. A.K. Mishra, the counsel for the petitioner, contended that the eviction under Section 25 of the OHRE Act could not have been initiated since the possession is much prior to 2nd March, 1981, the date on which the amended Act came into force. In support of such a contention, he relied on a decision of the High Court in Duryodhan Samal v. Uma Dei & Ors., 60 (1985) CLT 360. According to him, the amended Act is prospective in nature as it came into force in 1981 and thus, cannot be applied retrospectively considering the fact that the possession of the petitioner was prior to it.
It was further pointed out that the original tenant had the occupancy right and thereafter, the possession was continued till it reached in the hands of the petitioner by way of a purchase. For the fact that the occupation had been continuous and that too, with the sanction of OP No. 2, the eviction could not have been directed. In the alternative, the petitioner claimed, assuming the possession to be unauthorized, such continuous and peaceful occupation vis-à-vis the schedule land has led to the acquisition of adverse title in respect thereof.
Contentions of the Respondents:
On the contrary, OP Nos.1 and 2 justified the decision of OP No. 2 with regard to eviction of the petitioner from the schedule land which was under his unauthorized possession. It was contended that the possession was still unauthorized by the time the Act 2 of 1981 came into force and therefore, OP No. 2 committed no illegality by directing eviction. It was also submitted that the sanction which was claimed by the petitioner (under Section 19) to be in favour of the vendor's vendor was not in accordance with law then prevailing. Moreover, that was never worked out inter se parties since no lease deed was executed as a result thereof.
The Court held that the possession of the petitioner has to be lawful so as to lay claim over the schedule land with a plea that such occupation as on the date, when the proceeding was initiated, was not unlawful for opposing eviction under Section 25 of the OHRE Act.
The petitioner contended that sanction under Section 19 of the OHRE Act was obtained but the Court noted that it is an admitted fact that no lease deed was executed between the parties inter se and therefore, it was never worked out.
The Court observed that the lease was required to be followed by a deed pursuant to the sanction under Section 19 of the OHRE Act which has admittedly not been executed between the parties. In absence of any such document later to the sanction under Section 19 of the OHRE Act, it held that the lease in question was never acted upon.
Therefore, notwithstanding the possession of the petitioner from an anterior date prior to the commencement of the Act 2 of 1981, it could not have prevented OP No. 1 seeking his eviction from over the schedule land, the Court added.
Accordingly, the Court concluded that the proceeding under Section 25 of the OHRE Act before OP No. 2 was perfectly maintainable and the same could not have been set at naught on the ground that the amended law to be applied only prospectively, without having a retrospective effect.
Consequently, the writ petition was dismissed.
Case Title: Sashibhusan Das v. Lord Lingaraj Mahaprabhu & Anr.
Case No.: W.P.(C) No. 6120 of 2009
Judgment Dated: 20th May 2022
Coram: Chief Justice Dr. S. Muralidhar & Justice Radha Krishna Pattanaik
Judgment Authored By: Justice Radha Krishna Pattanaik
Counsel for the Petitioner: Mr. A.K. Mishra, Advocate
Counsel for the Respondents: Mr. A. Mohanta, Advocate; Mr. A.K. Nath, Advocate
Citation: 2022 LiveLaw (Ori) 86