JUDGMENT
G.B. Pattnaik, J.
1. The order of the Revenue Officer directing restoration of property in favour of opp. party No. 1 in a proceeding Under Section 23-A of the Orissa Land Reforms Act having been upheld by the appellate and revisional authorities, the petitioner has moved this Court under Art. 226 of the Constitution to quash those orders.
2. The petitioner’s case in a nutshell is that the dispute relates to 2.b8 acres of land appertaining to Hal Settlement Plot Nos. 987 and 983 in Khata No. 27 of mauza Jangira in the district of Keonjhar, which correspond to Sabik plot Nos. 848 and 849, Long before the merger of Keonjhar State in the State of Orissa, petitioner’s father possessed the aforesaid two plots of land by amalgamating the same with his own land which lies adjacent to th3 disputed land. In course of Settlement proceedings in the year 1964-66, the name of petitioner’s father has been, recorded to be in forcible possession though the land has been recorded in the name of the State of Orissa. Opposite party No. 1 was the Choukidar of village Jangira. The choukidari system having obolished with effect from 1-7-1965 under the Orissa Offices of Village Police (Abolition) Act. 1964 (hereinafter referred to as the ‘Choukidari Abolition Act’), the said opp. party No, 1 applied for settlement of the land and got it settled with him on 4-5-1967. It is alleged by the petitioner that opp. party No. 1 was not the choukidar but his father-in-law was the choukidar. The said opp. party No. 1 on the basis of Patta issued in his favour by the authorities under the Choukidari Abolition Act approached the Settlement authorities and the Assistant Sattlement Officer allowed the prayer of opp. party No. 1, but directed nothing of forcible possession of the petitioner.
Keonjhar was declared as a Schdeuled Area with effect from 12-6-1979. Opp. party No. 1 filed an application before the Revenue Officer invoking his jurisdiction Under Section 23 of the Orissa Land Reforms Act alleging unauthorised possession of the petitioner and praying for restoration of possession in respect of Sabik plot No. 848, The petitioner filed objection claiming to be in possession since 1940. The Revenue Officer dismissed the said application filed by opp. party No. 1 by order dated 4-4-1977 on the conclusion that the transfer having been made prior to the coming into force of the Orissa Land Reforms Act, no action can be taken Under Section 23. The said order has been annexed as Annexure-4. It was indicated in the aforesaid order that the party may seek redress in the appropriate Court of law to establish his claim.
Opposite party No. 1 then filed an application invoking the jurisdiction Under Section 23-A of the Act before the Revenue Officer. The said Section 23-A was inserted into the statute book by Act 44 of 1976 conferring power on the Revenue Officer to take action either suo motu or on being moved for eviction of a person found to be in unauthorised occupation where such unauthorised occupation is by way of trespass or otherwise. The application filed Under Section 23-A was in relation to Hal Plot Nos. 987 and 988. On being noticed, the petitioner filed objection as per Annexure-7 taking the stand that the land is under his occupation since many years and the present application is not maintainable. The Revenue Officer, however, disposed of that proceeding by his order dated 28-7-1986′ and relying upon the Record-of-Rights finally published on 28-6-1982 declaring opp. party No. 1 to be a raiyat with note of forcible posession of the petitioner came to the conclusion-that the petitioner’s possession is unauthorised and he is liable to be evicted Under Section 23-A of the Act. The said order of the Revenue Officer has been annexed as Annexure-8.
The petitioner challenged the same in appear, but the appellate authority dismissed the same, The petitioner then carried the matter in revision and the Collector, Keonjhar, having dismissed the revision by his order dated 21st of April, 1990, annexed as Annexure-10, the petitioner has moved this Court.
3. Mr. B. H. Mohanty, the Teamed counsel for the petitioner, raises the following contentions in assailing the legality of the orders passed by the authorities in the proceeding initiated on the application filed Under Section 23-A of the Orissa Land Reforms Act.
(i) The land in question having been notified to be included within the scheduled area since 1979, the provision of Section 23-A of the Act will have no application.
(ii) The petitioner being in possession since 1940 by the time Section 23-A was brought into the statute book, he has acquired title by way of adverse possession and, therefore, the impugned proceeding and the orders passed thereon are vitiated.
(iii) In view of the earlier order dated 4-4-1977 dismissing the application of opp. party No. 1 Under Section 23 of the Orissa Land Reforms Act, the subsequent proceeding Under Section 23-Aof the said Act is barred by the principles of res judicata and, therefore, the orders passed by the Revenue Officer and affirmed by the appellate and revisional authorities are without jurisdiction.
We shall examine the correctness of each of these contentions in seriatim.
4. So far as the first contention of Mr. Mohanty is concerned, though prima facie it appears to be attractive, but cannot be sustained on a closer scrutiny of Section 23-A of the Orissa Land Reforms Act. Section 23-A is quoted hereinbelow in extenso :
“23-A. Eviction of person in unauthorised occupation of property :
Where any parson is found to be in unauthorised occupation of the whole or part of a holding of a raiyat belonging to a Scheduled Caste or of a raiyat belonging to a Scheduled Tribe within any part of the State other than a Scheduled Area, by way of trespass or otherwise, the Revenue Officer may either on application by the owner or any person interested therein, or on his own motion and after giving the parties concerned an opportunity of being heard, order eviction of the person so found to be in unauthorised occupation and shall cause restoration of the property to the said raiyat or to his heir in accordance with the provisions of Sub-section (3) of Section 23.”
A close reading of the aforesaid provision would indicate that it is only when a person is found to be in unauthorised occupation of the holding of a raiyat belonging to a Scheduled Tribe within any part of the State other than a Scheduled Area, the provision of Section 23-A will have no application. But so far as the holding of a raiyat belonging to a Scheduled Caste is concerned, the fact that the land is in a Scheduled Area will not make the provision of Section 23-A inapplicable, the reason being that so far as transfer of immovable property situated within a Scheduled Area by a member of a Scheduled Tribe is concerned, the same is fully protected under the provisions of the Orissa Scheduled Area Transfer of Immovable Property (By Scheduled Tribes) Regulation, 1956 {Regulation 2 of 1956) and, therefore, it is not necessary to provide any such protection to the category of raiyats under the Orissa Land Reforms Act. It is also apparent from a careful reading of Section 23-A of the Orissa Land Reforms Act. Opp. party No. 1 being a Scheduled Caste, if any person is found to be in unauthorised occupation of his holding, the provision of Section 23-A will be fully applicable. The first contention of Mr. Mohanty, therefore, is rejected.
5. So far as the second contention of Mr. Mohanty is concerned, there is no finding of the forums below that the petitioner has been in unauthorised occupation from any specified period so as to come to a conclusion that by the time Section 23-A of the Act came into the statute book he had perfected his title by way of adverse possession. Then again, the land in question being a choukidari jagir land,on the date of vesting of the jagir under the Orissa Offices of Village Police (Abolition) Act, the same stands resumed and vested absolutely in the State Government free from all encumbrances as provided Under Section 3 (1)(c) of the said Act. The date of vesting of the jagir is 1-7-1965 and, therefore, it stood vested free from all encumbrances in the year 1965 and even if the petitioner is found to be in unauthorised occupation subsequent to 1965, but that would not ripen to perfection of title by way of adverse possession by 1973 when Section 23-A was given effect to. In that view of the matter, the second contention of Mr. Mohanty is also without any force.
6. So far as the third contention of Mr. Mohanty is concerned, however, there is some force in the same since an earlier application filed Under Section 23 was rejected on a finding that the father of the petitioner was cultivating the land since 1940. But the problem that arises is the co-relationship between the land for which the earlier application Under Section 23 was made and the present application Under Section 23-A. As it transpires from the earlier application which has been annexed as Annexure-2, it was in relation to plot No. 561/848. But the present application that has been filed Under Section 23-A as per Annexure 6 is in relation to plot Nos, 987 and 988. Mr. B. H Mohanty in course of his arguments strenuously urges that these two Hal Plots 987 and 988 relate to Sabik Plot No.848. But it is not possible for this Court to come to that conclusion. There is no basis on which this Court can come to a conclusion as to whether Hal Plot Nos. 987 and 188′ relate to Sabik Plot No. 561/848 for which the earlier application was made. In that view of the matter, we think it appropriated the interests of justice to remit the matter to the revisional authority for reconsideration on the question whether the two plots for which the present application Under Section 23-A has been made relate to Sabik Plot No. 561/848 for which the earlier application Under Section 23 had been made. If the conclusion is in the affirmative, then obviously the finding of the revenue authority that the petitioner’s father Goutam was cultivating the same since 1940 would operate as res judicata, The question has not been examined from the aforesaid stand-point. We accordingly quash the revisional order and remit the matter to the revisional authority for redisposal of the matter in the light of the observations made by us in this judgment.
This writ application is accordingly disposed of. The parties are directed to appear before the revisional authority. There will be no order as to coats.
S.K. Mohanty, J.
7. I agree.