Misc. Case No. 28 of 2009 · High Court
Case Details
W.P.(C)NO.22018 OF 2012 10. 24.7.2013 The writ petitioner seeks for quashing the entire proceeding pending before the learned O.S.D. (L.R.), Panposh (O.P.No.1) in Revenue Misc. Case No.28 of 2009 on the sole ground that the said proceeding was initiated against two dead persons who had expired much prior to the institution of the proceeding. The aforestated proceeding was initiated on the application of one Ram Oram (O.P.No.2) under the provisions of The Orissa Scheduled Areas Transfer of Immovable Property (by Scheduled Tribes) Regulations, 1956 (for short, The Regulation, 1956) seeking for eviction of one Philip Alberis and one Admond Alberis who were original O.Ps. in the said proceeding. Subsequently, when it came to light that those two persons had already expired by the time the proceeding was initiated, the present writ petitioner was substituted in their place. The writ petitioner, on being served with notice, filed his show cause stating inter alia that the proceeding having been initiated against dead persons be dropped. Though a separate petition was filed by the present petitioner to drop the proceeding on the aforestated ground, the learned O.S.D. (L.R.) vide order dated 5.11.2012
Legal Reasoning
(Annexure-5) rejected the petition. Learned counsel for the O.P.No.2, so also the learned counsel for the State argued in support of the order passed by the O.P.No.1 vide Annexure-5 contending that the proceeding under the Regulation,1956, even if initiated against a dead person, can be continued against any person who is found to be in possession of the land in respect of which the eviction 2 proceeding has been initiated. Learned counsel for the petitioner has cited the decision in Nrusingha Charan Biswal and others v. Member, Board of Revenue, Orissa and others, reported in 93 (2002) CLT 217 wherein the settled position of law has been reiterated to the effect that a proceeding initiated against a dead person is a nullity in the eye of law and the principle of substitution cannot be made applicable. On the other hand, reliance has been placed by the learned counsel for the opposite parties in a decision of the Hon’ble Supreme Court in Karuppaswamy and others v. C. Ramamurthy, reported in AIR 1993 SC 2324. In that case the plaintiff filed a suit against a person not knowing that he had died 6 weeks prior to filing of the suit. The plaintiff became aware of the defendant’s death only from remarks on the returned summons. Immediately thereafter, he filed an application under O.22, R.4 for impleading legal representatives of the dead defendant. The learned trial court allowed the substitution observing that no neglect or contumacy could be attributed to the conduct of the plaintiff. When that order was challenged before the Madras High Court, the learned Single Judge also held that there was nothing to show that the plaintiff was aware of the death of the defendant and yet knowing well about it he would persist in filing the suit against a dead person. When the matter went to the Hon’ble Supreme 3 Court, that view was endorsed and it was held that since the plaintiff had taken prompt action and had acted in good faith, the proviso to S.21(1) could be invoked in his favour and LRs of the deceased defendant could be impleaded. Here it is appropriate and relevant to recite the observations made in Amrendra Pratap Singh v. Tej Bahadur Prajapati and others, reported in (2004) 10 Supreme Court Cases 65: “Tribal areas have their own problems. Tribals are historically weaker sections of the society. They need the protection of the laws as they are gullible and fall prey to the tactics of unscrupulous people, and are susceptible to exploitation on account of their innocence, poverty and backwardness extending over centuries. The Constitution of India and the laws made thereunder treat tribals and tribal areas separately wherever needed. The tribals need to be settled, need to be taken care of by the protective arm of the law, and be saved from falling prey to unscrupulous device so that they may prosper and by an evolutionary process join the mainstream of the society. The process would be slow, yet it has to be initiated and kept moving. The object sought to be achieved by the 1950 Act and the 1956 Regulations is to see that a member of an aboriginal tribe indefeatably continues to own the property which he acquires and every process known to law by which title in immovable property is extinguished in one person to vest in another person, should remain so confined in its operation in relation to tribals that the immovable property of one tribal may come to vest in another tribal but the title in immovable property vesting in any tribal must not come to vest in a non- tribal. This is to see and ensure that non-tribals do not succeed in making inroads amongst the 4 tribals by acquiring property and developing roots in the habitat of tribals.” Xxx xxx xxx “A provision has been made by para 3-A of the 1956 Regulations for evicting any unauthorized occupant, by way of trespass or otherwise, of any immovable property of a member of a Scheduled Tribe, the steps in regard to which may be taken by the tribal or by any person interested therein or even suo motu by the competent authority. The concept of locus standi loses its significance. 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 3-A. The prescription of the period of twelve years in Article 65 of the Limitation Act becomes irrelevant so far as the immovable property of a tribal is concerned. The tribal need not file a civil suit which will be governed by the law of limitation; it is enough if he or anyone on his behalf moves the State or the State itself moves into action to protect him and restores his property to him. To such an action neither Article 65 of the Limitation Act nor Section 27 thereof would be attracted.” Thus, it is found from the observation of the Hon’ble Supreme Court that the State is the custodian and trustee of the immovable property of tribals and is enjoined to see that the tribals remain in possession of such property. Considering the objects of the Regulation, 1956, it is not the interest of a tribal whose land is said to be in unauthorized occupation of a non-tribal to call upon him, or, for that matter the competent authority, to initiate a fresh proceeding in case the proceeding has already been 5 initiated for restoring possession of the property to the tribal even if it is made against a dead person. In the case at hand, the proceeding in Revenue Misc. Case No.28 of 2009 pending before the learned O.S.D. (L.R.), Panposh is not liable to be quashed.
Decision
In the result, the writ petition stands dismissed. …………………… R. Dash,J.