Unlawful Possession Can’t Be Defended On The Ground That Eviction Clause In Statute Is Prospective In Nature: Orissa High Court

In Sashibhusan Das v. Lord Lingaraj Mahaprabhu & Anr., (W.P.(C) No. 6120 of 2009), the Orissa High Court clarified that unlawful possession of a property, which does not confer any right, cannot be defended only on the ground that the legislation authorising eviction is prospective in nature.

Brief Facts Of The Case: OP No. 2, who heard evidence, concluded that OP No. 1 is a perpetual minor (a divinity), hence its rights cannot be taken away. OP No. 2 authorised petitioner’s eviction under Section 25 of the OHRE Act. Petitioner never challenged settlement. The petitioner argued that OP No. 2, without examining the extent of the word ‘unauthorised occupancy’ in Section 25 of the OHRE Act, which was established in 1981 with effect from 2nd March 1981, considered his possession as unlawful and directed eviction by exercising jurisdiction under the said provision, notwithstanding the fact that his vendor’s vendor had secured sanction under Section 19.

Mr. A.K. Mishra, the petitioner’s lawyer, argued that the eviction under Section 25 of the OHRE Act could not have been launched because the possession was before 2 March 1981, when the modified Act took effect. He referenced Duryodhan Samal v. Uma Dei & Ors., 60 (1985) CLT 360. According to him, the new Act is prospective because it went into effect in 1981, hence it cannot be applied retroactively to the petitioner’s possession. Instead, OP Nos. 1 and 2 validated OP No. 2’s determination to remove the petitioner from the scheduled property he illegally had. The occupancy remained unlawful when Act 2 of 1981 took effect, hence OP No. 2 committed no wrongdoing by ordering removal. Also, the petitioner’s Section 19 sanction in favour of the vendor’s seller was not in compliance with then-current law. As a result, no lease deed was executed.

Judgement: The court ruled that the petitioner’s ownership must be valid to lay claim to the scheduled land and to oppose eviction under Section 25 of the OHRE Act. The petitioner claimed Section 19 of the OHRE Act approval, but the court observed that no lease agreement was made between the parties, therefore it was never worked out. According to Section 19 of the OHRE Act, the lease must be followed by a deed, which the parties have not completed. In the lack of a document after Section 19 of the OHRE Act sanction, the court decided that the lease was never acted on. Therefore, notwithstanding the petitioner’s possession before Act 2 of 1981, OP No. 1 might have sought his removal from the designated property, the Court added. The court decided that the case under Section 25 of the OHRE Act against OP No. 2 was entirely maintainable and could not have been dismissed on the grounds that the modified law would be implemented prospectively and not retroactively. The writ was dismissed.

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Judgement Reviewed By Prakirti Jena

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