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04.01.1972.
ORISSA ACT 6 OF 1972 (Assented to by the President on the 12th February, 1972) An Act to provide for prevention of unauthorised occupation of lands which are the property of Government Be it enacted by the Legislature of the State of Orissa in the Twenty-second Year of the Republic of India as follows :
1[STATEMENT OF OBJECTS AND REASONS] :– The Vires of Orissa Prevention of Land Encroachment Act, 1954 as amended by the Orissa Prevention of Land Encroachment (Amendment) Act, 1970 was recently challenged in a writ petition in the Orissa High Court in O.J.C.
No. 1584 of 1968. The Court held that Sec. 3 of the Act is void as it contravenes Article 14 of the Constitution. In a series of cases the Court has also earlier observed that Secs. 5 and 6 of the Act were void.
As Secs. 3, 5 and 6 forming the very core were void. The Court held the entire Act including the amending Act of 1970 to be Void. It was held that the amending Act 1970 not being a re-enactment of the entire Act cannot resuscitate the Act into life. It, therefore, ruled that the Act and the amending Act separately and together are void. This decision created serious difficulties for the Government as there was no law to deal with encroachment on Government land or Communal land. An Ordinance had, therefore, to be promulgated to meet the situation simultaneously complying with the provisions of the Constitution and judicial pronouncements. It is now necessary to effect the re-enactment of the law permanently to replace the Ordinance.
The Bill seeks to achieve this objective.
Scope of the Act :– The Provisions of this Act are applicable preventing the persons from occupying the Government lands and also in certain cases subject to the Provisions of Section-7 the Government land may be settled in favour of such persons who have been unauthorizedly occupying the Government lands. Thus the Provisions The Odisha Gazette EXTRAORDINARY PUBLISHED BY AUTHORITY No. 296-D Dated. 16 February, 1972 2 of this Act being summary in nature and any person unauthorizedly occupying any land which is the property of the Government as defined under Section-2 of the Act can be summarily evicted by the competent authority from the said land. However before proceeding summarily eviction a reasonable opportunity of hearing is extended to the person occupying the land. Under the scheme of the Act proceedings can be initiated if it is seen that there has been encroachment of Government lands either by construction of house or otherwise. In a given case the Government had constructed the houses on the Government land.
Thereafter the land was transferred to the Municipality and several persons were inducted lawfully by the said Municipality on monthly rent basis in respect of the shop rooms and as such it cannot be said that they were unauthorized occupants. Therefore, any proceedings initiated against them was thoroughly wrong and misconceived. However, the said tenants remained silent in the matter and did not challenge such eviction proceeding. That apart they approached the Government for allotting the shop rooms on lease basis bye passing the concerned Municipality. In such view of the matter it can be said that the conduct of the tenants was not bonafide and their plea that they quieted the shop rooms against their will and approached the State Government under compulsion. Infact, the concerned Municipality is the real owner of the shop rooms and the tenants were estopped from denying its title:
(S.A. No. 86/90 of 1974 decided on 10.12.1980) Keonjhargarh Municipality vs. Judhistir Sendha and others.
1. Short title, extent and commencement :– (1) This Act may be called the Orissa Prevention of Land Encroachment Act, 1972.
(2) It shall extend the whole of the State of Orissa.
(3) It shall be deemed to have come into force with effect from the 29th day of October, 1954.
NOTES In view of Section-3 (Sub Section-30 of the General Clauses Act) any legislation may be published in the Official Gazette on a day, but the same Act may not come into enforcement from that day. In such view of the matter Sub Section-3 of Section-1 has provided that this Act shall be deemed to have come into force with effect from 29th day of October, 1954 which clearly reveals that the Act has been enforced retrospectively.
By way of enactment of this legislation the lacunae’s of the previous Act have been validated and rectified: 1972 (1), CWR 438.
Scope of the Act: Explained: AIR 1965 SC 1296: AIR 1986 ORISSA 114.
3 Applicability of the Act: Its Scope and Intention: Explained : 49
(1980) CLT 252 Meaning of the term Encroachment: Explained: AIR 1962 MAD
601.
The Enactment is expropriately in nature and character is to be strictly construed: 27 (1961) CLT (SN.119) 75. The Act is not retrospective but retroactive: 41 (1975) CLT (SN. 145) 99.