The High Court
Case Details
IN THE HIGH COURT OF ORISSA AT CUTTACK OJC No. 4318 of 1999 Dhanu Sahu (since dead) By LRs & …. Petitioners Another Mr. L.N. Rayatsingh, Advocate -Versus- Tahasildar, Kandhamal, Phulbani & others Mr. J.P. Patra, ASC Opposite Parties …. CORAM: JUSTICE R.K. PATTANAIK DATE OF JUDGMENT:12.03.2024 1. Instant writ petition is filed by the petitioners challenging the impugned orders under Annexures-8, 9 & 10 on the grounds inter alia that the authorities below failed to consider the matter in its proper perspective and the same are contrary to the pleadings of the parties and materials on record, hence, therefore, liable to be interfered with and set aside with consequential directions issued. 2. The case of the petitioners is that the schedule land originally belonged to one Madan Parida, who possessed it by virtue of a lease granted in his favour by the Government vide RMC No.14 of 1948 and he with an application (Annexure-1) filed and after having obtained permission dated 23rd September, 1958 from opposite party No.2 in RLT Case No. 81 of 1958 sold it to one Kalu Sahu, namely, vendor of the petitioners and partners with a sale deed (Annexure-2) executed. It is further claimed that said Kalu Sahu entered into an agreement for sale in respect of the case land with the petitioners on 7th January, 1966 for a consideration amount of Rs. 7,500/- with payment of Rs. 2,500/- made as an OJC No. 4318 of 1999 Page 1 of 7 advance and delivered possession of the same to them on the said date itself and ever since then, they were to be in possession of it but to their utter surprise, a notice was served on them received from opposite No.1 in connection with an encroachment proceeding initiated upon receipt of an Amin’s’ report and thereafter, on 1st December, 1980, penalty was assessed and were directed to pay the same and finally on 10th February, 1986, the proceeding in E.C. No. 81 of 1980 was disposed of with the issuance of eviction notice under Section 7(1) of the OPLE Act. The
Legal Reasoning
said order under Annexure-3 was challenged in RMA No. 20 of 1986(OPLE) which stood disposed of vide Annexure-4 confirming the order of opposite party No.1 and later to the decision by opposite party No.2, revision was filed and ultimately, the said proceeding in R.C. No. 32 of 1988 (Enc) was disposed of vide Annexure-5, whereby, opposite party No. 3 declined to interfere with the order in appeal and also decision of opposite party No.1 in E.C. No. 81 of 1980. In fact, against the order under Annexure-5 followed by Annexure-6 in R.C. No. 1 of 1989, the petitioners approached this Court in O.J.C No. 1815 of 1991 which was
Decision
disposed of by an order dated 4th December, 1991 with a direction to the authority concerned to provide them an opportunity of hearing and set aside orders under Annexures-3,4, 5 & 6 and later to an order in O.J.C. No. 12151 of 1996 and upon rehearing in connection with Urban Encroachment Case No.81 of 1980, order under Annexure-8 followed by Annexure-9 in RMA No. 4 of 1997 dated 12th August 1998 and thereafter, Annexure-10 in R.C. No. 12 of 1998 dated 23rd February, 1999 have been passed which are currently under challenge on the grounds inter alia that the evidence on record was not properly taken cognizance of and appreciated by the authorities concerned while dropping the encroachment proceeding. OJC No. 4318 of 1999 Page 2 of 7 3. Heard Mr. Rayatsingh, learned counsel for the petitioners and Mr. Patra, learned ASC appearing for the State opposite parties and also learned counsel for opposite party Nos. 5 & 6. 4. Mr. Rayatsingh, learned counsel for the petitioners submits that the petitioners were in possession of the schedule land on the strength of an agreement with the original owner, namely, Kalu Sahu and that in Objection Case No. 3467 of 1975, the schedule land was settled with the petitioners, the challenge to which, was not entertained and admitted while disposing of Appeal Case No. 430 of 1977 by order dated 22nd August, 1977 vide Annexure-13. Notwithstanding the possession of the petitioners over and respect of the case land when the action was initiated and having regard to the fact that the lease hold plot on an enquiry found to coincide with Hal plot Nos. 390 and 391 of Anabadi Khata No. 224 of the concerned Mouza and the plot sold to Kalu Sahu and others confirmed to Hal plot No.317 which were in occupation of the petitioners, with a conclusion that they are not in possession rather one Rabindra Nath Panda, late husband of opposite party No.5 since 1990 held that the proceeding is not maintainable against them and hence, dropped the same vide Annexure-8 which is not correct and justified. The further contention is that the authorities below in appeal and revision did commit similar wrong by not considering the possession of the case land by the petitioners since the time of the agreement. 5. Referring to the counter affidavit filed by opposite party No.1, Mr. Patra, learned counsel for the State would submit that possession of the petitioners since 1990 was not established, hence, the encroachment proceeding was dropped and therefore, no wrong was committed, nevertheless, the petitioners were found not to be eligible and entitled for settlement of the schedule land by the authorities below more so when it was not permissible. It is OJC No. 4318 of 1999 Page 3 of 7 submitted that proper enquiry was held and considering the claim of the petitioners, the impugned orders have been passed and that apart, E.C. No.19 of 1990 was initiated against said Rabindra Nath Panda, so therefore, no error was committed to drop the proceeding. Besides the above, Mr. Patra, learned ASC further submits that the petitioners apparently claimed to have acquired the schedule land from Kalu Sahu not by means of a registered sale deed but on the basis of earlier possession, which is not to be since 1990, allege that the encroachment proceeding could not have been dropped, the real intention behind is to grab it, thus, therefore, the impugned orders under Annexures-8, 9 & 10 are not liable to be disturbed. 6. With an order dated on 5th November, 1975 in Objection Case No. 3467 of 1975, the petitioners have raised the claim over the schedule land, which was never agitated before the authorities below after initiation of encroachment proceedings, which is shown to have been challenged in appeal but was not admitted by order dated 2nd August, 1977 of the Settlement Officer filed at the instance of opposite party No.1. It is not brought to the notice of the Court as to if the order in Appeal Case No. 430 of 1977 under Annexure-13 was challenged by opposite party No.1. It is also not revealed from record as to under what circumstances, such objection was entertained with an order under Annexure-12. But in so far as the encroachment proceeding is concerned, it has been held as not maintainable simply for the reason that the petitioners were found not to be in possession of the schedule land. In so far as the enquiry held while disposing of Urban Encroachment Case No.81 of 1980, the same revealed that the boundaries of leasehold plot do not confirm to that of the land sold by Kalu Sahu though it approximately coincides with Hal plot Nos. 390 & 391 under Khata No.224 of the Mouza, rather, it confirmed to Hal plot OJC No. 4318 of 1999 Page 4 of 7 No.317. Furthermore, on a reading of the impugned order under Annexure-9, it is made to suggest that late husband of opposite party No.5 was found to be in possession of plot No.390 and such possession has been through an unregistered sale deed. But at the same time, it is claimed to be by virtue of an agreement which never fructified into a transaction of sale. If the petitioners acquired any such interest from Kalu Sahu, what prevailed upon them not to bring it to the notice of the authorities below, instead, penalty was assessed and said to have been realized. It is again alleged that such transfer of possession in favour of the petitioners derived from a source of lease had no sanction of law and hence, without authority. It is not substantiated on record as to how a lawful right over the schedule land is acquired by the petitioners. If the petitioners had any such interest over the subject, why then it was not agitated before the authorities below which would have changed the course of action. If the petitioners were dispossessed in 1990, the year in which, the encroachment proceeding was initiated against the husband of opposite party No.5, what prevented them from not taking action to get it restored. It is quite unusual for someone to remain silent even after being dispossessed when some right is claimed over a property. It is not clear as to how the late husband of opposite party No.5 came to possess the schedule land, whether, it was independently or through the petitioners. Irrespective of any such situations, the petitioners ought to have resisted the eviction taking a defence through Annexures-12 & 13, if it was really a case of having interest over the schedule land or should have immediately taken steps to ensure possession on being dispossessed. In any case, restoration of the proceeding under the OPLE Act vis-à-vis the petitioners, in the aforesaid backdrop, is unlikely to settle the matter as on the one hand, right over the interest is claimed and on the other hand, possession cannot be deemed to be with them when admittedly, OJC No. 4318 of 1999 Page 5 of 7 they were dispossessed or not to be in possession from 1990 and onwards. Furthermore, it was rightly commented upon that the possession could have been restored by approaching the civil court which the petitioners did not do. The petitioners, that apart, never exercised any such right over the schedule land claiming it to have been acquired lawfully. If any such claim is based on referring to Annexure-12 & 13, it was best suited for the petitioners to knock the doors of the court of competent jurisdiction instead of wasting time defending the encroachment proceedings. Under the above circumstances, it may be assumed that the petitioners have had no lawful right to claim interest over the schedule land. 7. In any case, leaving the petitioners to exercise such right if any ever existed, when the encroachment proceeding initiated against them rather revealed that they were not in occupation of the plot albeit a claim to be in possession of the schedule land on the basis of an agreement without evidence on record regarding any sale effected by the vendor, the action under the OPLE Act is not required to be reinstated. Besides the above, the further conclusion of the authorities below is that the petitioners have landed properties situated at other locations which is not adjacent to the plot in question and the same was rather found to be possessed by the husband of opposite party No.5, a finding based on enquiry, as against the said additional facts, the considered view of the Court is that the proceeding in E.C. No. 81 of 1980 has, therefore, been rightly dropped, then confirmed in appeal and revision and finally upheld by opposite party No.4 vide Annexure-10. As a necessary corollary, the Court does not find any reason to interfere with impugned orders under Annexures-8, 9 & 10. 8. Accordingly, it is ordered. OJC No. 4318 of 1999 Page 6 of 7 9. In the result, the writ petition stands dismissed, however, in the circumstances, without any order as to costs. (R.K. Pattanaik) Judge kabita OJC No. 4318 of 1999 Page 7 of 7