Orissa Prevention of Land Encroachment Act, 1972
Preamble
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:
Statement of Objects and Reasons
The Vires of Orissa Prevention of land Encroachment Act, 1954 89 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 Section 3 of the Act is void as it contravenes Article 14 of the Constitution. In a series of cases the Court had also earlier observed that Sections 5 and 6 of the Act were void. As Sections 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 resusctate 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.
Section 1 - Short title, extent and commencement
(1) This Act may be called the Orissa Prevention of Land Encroachment Act, 1972.
(2) It shall extend to the whole of the State of Orissa.
(3) It shall be deemed to have come into force with effect from 29th day of October, 1954.
Section 2 - Property of Government
Subject to the provision of any law for the time being in force, the following classes of lands are hereby declared to be the property of Government for the purposes of this Act, namely:
(a) all public roads, streets, lanes and paths, the bridges, ditches, dikes and fences, on or beside the same, the bed of the sea and of harbours and creeks below high water mark and of rivers,streams, nalas, lakes and tanks and all canals and water courses and all standing and flowing water and all lands including temple sites, house sites or backyards wherever situated, save in so far as the same are the property-
(i) of any Ruler of an Indian State merged with the State of Orissa, Zamindar, Proprietor, Sub-Proprietor, Landlord, Jagirdar, Inamdar, Khoropshdar or any other tenure or any person claiming through or holding under any of them; or
(ii) of any person paying shist, kattubadi, jodi, porupu or quit rent to any of the aforesaid persons; or
(iii) of any person holding under raiyatwari tenure or in any way subject to the payment of cess or any other dues direct to Government; or
(iv) of any other registered holder of land having proprietary right; or
(v) of any other person holding land under grant from Government otherwise than by way of licence;
(b) land belonging to or vesting in any local authority which is used or intended to be used for any public purpose such as a road, canal, embankment, tank or ghat or for the repair or maintenance of such road, canal, embankment, tank or ghat;
(c) land acquired under the provisions of the Land Acquisition Act, 1894 (1 of 1894) or under similar Acts for the purposes of any local authority, company owned or controlled by the State Government, Statutory Body or Corporation while such land remains as the property of the local authority, company owned or controlled by the State Government, Statutory Body or Corporation;
(d) immovable property claimed by the Rulers of the merged territories but conceded in their favour; and
(e) lands belonging to an establishment or undertaking owned, controlled or managed by-
(i) any State Government or a Department of such Government;
(ii) any company in which not less than fifty-one per cent of the share capital is held by one or more State Government; or
(iii) a corporation established by law which is owned, controlled or managed by any State Government.
Section 3 - Definitions
In this Act, unless the context otherwise requires-
(a) "Collector" means the Chief Officer In charge of the Revenue administration of a district and shall include an Additional Magistrate;
(a-1) "landless person" means a person, the total extent of whose land excluding homestead together with lands of all the members of his family who are living with him in common mess, is less than one standard acre and whose total annual income of all the members of his family who are living with him in common mess, does not exceed rupees six thousand and four hundred of an amount which the State Government may, by notification from time to time, specify in that behalf.
(a-2) "homesteadless person" means a person who, together with all the members of his family who are living with him in common mess, does not have any homestead land anywhere in the State and owns less than one standard acre of land other than homestead and whose total annual income, together with the annual income of all the members of his family living with him in common mess, does not exceed rupees four thousand and two hundred or an amount which the State Government may, by notification from time to time, specify in that behalf.
(b) "prescribed" means prescribed by rules made by the State Government under this Act; and
(b-1) "standard acre" means a standard acre as defined in the Orissa Land Reforms Act, 1960;
(c) "Tahasildar" means the Chief Officer in charge of the Revenue administration of a Tahasil and shall include an Additional Tahasildar.
Section 4 - Levy of assessment on land unauthorisedly occupied
Any person unauthorisedly occupying any land which is the property of Government shall be liable to pay by way of assessment-
(i) if the land so occupied was at any time assessed to rent, the full assessment for the whole period of occupation or a part thereof proportionate to the area occupied, as the case may be, provided that for special reasons the Tahasildar may impose the full assessment of rent or any lesser sum irrespective of the area occupied; or
(ii) if the land so occupied was not at any time assessed to rent, an assessment on the area occupied calculated for the same period at the rate imposed on lands of a similar description and with similar advantages in the vicinity or when no such prevailing rate exists, in such manner as may be prescribed:
Provided that where the person unauthorisedlv occupying such land is a landless person, the amount payable by him by way of assessment shall in no case exceed an amount equal to five times the annual assessment:
Provided further that notwithstanding anything in the Tenancy Law for the time being in force, payment of assessment under this section shall not confer any right to occupancy.
Explanation-For the purpose of this section occupation for an incomplete portion of an agricultural year may be deemed to be occupation for the whole of such year.
Section 5 - Decision as to the amount of assessment shall not be challenged in any Civil Court
The decision as to the rate or amount of rent assessed under Section 4 shall be recorded in writing and shall not be called in question in any Civil Court.
Section 6 - Liability of person unauthorisedly occupying lands to penalty
Subject to the provisions of Section 9, any person liable to pay assessment under Section 4 shall, at the discretion of the Tahasildar, be liable to pay in addition to the assessment by way of penalty a sum calculated at a rate not exceeding one hundred rupees per acre of land for each year of unauthorised occupation:
Provided that where the person liable to pay assessment is a landless person, he shall not be liable to pay penalty under this section.
Section 6A - Reduction and remission of assessment and penalty
Subject to such conditions as may be prescribed, the Collector may, in suitable cases, either reduce or remit the amount payable by way of assessment under section 4 or the penalty, if any, imposed under Section 6.
Section 7 - Summary eviction, forfeitures and fines
(1) Any person unauthorisedly occupying land for which he is liable to pay assessment under Section 4 shall be summarily evicted by the Tahasildar and any crop or other product raised on the land, any encroachments such as a building, other construction or anything deposited thereon shall be liable to forfeiture:
Provided that in the case of said encroachments, the Tahasildar shall give reasonable notice to remove the same.
(2) Notwithstanding anything contained in Sub-section (1)-
(a) where any land is in the unauthorised occupation of a landless person, the Tahasildar may, instead of evicting such person from the land in his unauthorised occupation, settle the same with him, so, however, that the land so settled with him together with the land excluding homestead, if any, owned by him and the lands owned by all the members of his...
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