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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: ODISHA HIGH COURT

This particular decision is upheld by the High Court of Odisha through the division bench of Justice Chief Justice Dr. S. Muralidhar and Justice Radha Krishna Pattanaik in the case of Sashibhusan Das V. Lord Lingaraj Mahaprabhu & Anr (W.P.(C) No. 6120 of 2009)

Facts:

The Petitioner has filed the instant writ petition on the grounds inter alia that the impugned decision by the Commissioner of Endowments, Orissa, Bhubaneswar (OP No.2), is bad in law for having treated his possession as unauthorized by applying the law which is prospective in nature. 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.

Contention by the Petitioner and the Respondent:

The Petitioner contends that OP No.2 without considering the scope of the expression ‘unauthorized occupation’ as appearing in Section 25 of the OHRE Act which was introduced by the Act 2 of 1981 with effect from 2nd March, 1981 having prospective in operation held the possession as unlawful and directed eviction by exercising jurisdiction under Section 25 of the OHRE Act despite the fact that his vendor’s vendor had obtained sanction in as per Section 19 thereof.

On the contrary, OP Nos.1 and 2 justified the decision and action of OP No.2 with regard to eviction of the Petitioner from the schedule land which was under his unauthorized possession. It is 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 directing eviction. It is also contended that the sanction which is claimed by the Petitioner to be in favour of the vendor’s vendor was not in accordance with law then prevailing and otherwise also, it was not worked out inter se parties since no lease deed was executed as a result thereof.

Judgement:

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 court stated 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 can well be said that the lease in question was never acted upon

According to the Court, 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 not to be unlawful for opposing eviction under Section 25 of the OHRE Act.

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.

JUDGEMENT REVIEWED BY NAISARGIKA MISHRA

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