The High Court
Case Details
IN THE HIGH COURT OF ORISSA AT CUTTACK CRLMP No. 17 of 2024 Gobinda Nayak Petitioner Mr. B. Rout, Advocate …. -versus- State of Odisha & others …. Opp. Parties Mr. D. Biswal, ASC CORAM: JUSTICE CHITTARANJAN DASH Order No. 01.
Decision
ORDER 12.01.2024 1. Heard learned counsel for the Parties. 2. By means of this application, the Petitioner seeks the indulgence of this Court praying to issue writ by directing the Opposite Parties to secure the safety of life and residence of the Petitioner and his family members over their own property, personal liberty by way of proper protection and to take action against the culprits/hooligans of village Kokabali Endorpali under Balianta P.S. in the district of Khurda. 3. The background facts of the case are that some villagers of the village belong to the Petitioner, illegally want to grab the Stitiban land of the Petitioner for the purpose of construction of “Thakur Ghar” and by using man and muscle power over the land of poor Petitioner repeatedly putting him in to trouble. The said hooligans forcibly destroyed his fence, tress, cultivation and pisciculture cultivation over his land. As the Petitioner is only male member and earning person of his family and six numbers of members depending upon him, he approached the Opposite Party No.4 to protect his life and liberty besides the property under threat but due // 2 // to inaction of Opposite Party No.4, the said villagers threatened to kill the Petitioner and the Petitioner out of fear of his life left his house since August, 2023 and is unable to return to his house. 4. According to the learned counsel, the Petitioner is the permanent resident of the aforesaid village and has constructed his residential house over the land bearing Khatian No. 453/262 in Mouza- Endorapali, P.S-Balianta, Dist. Khurda. He purchased the land i.e the adjacent property of his residential house has been in possess since 2011, wherein he started pisciculture and also have cows and goats over his property to maintain his livelihood, but the villagers of Kokibali are bent upon to encroach the land of the Petitioner in order to construct a “Puja Ghar” and thereby creating disturbance to evict him from his own land. Due to the illegal action of the villagers and inaction of the Opposite Parties, the Petitioner and his family members are losing their personal liberty and safety. At the behest of the Petitioner, a proceeding U/s. 144(2) Cr.P.C was initiated by the A.D.C.P-Cum-Executive Magistrate vide Crl. M.C. No. 1295 of 2023. The learned Executive Magistrate called for the report from Balianata P.S. and issued notice to the Opposite Parties but the Opposite Parties neither appeared nor filed show cause. However, the learned Executive Magistrate disposed of the said proceeding observing that the dispute is purely civil in nature directing the parties not to have breach of peace over the suit land. 5. The learned counsel Mr. Rout referred to the decisions reported in 2020 (1) OLR(SC)-366 and the decisions reported in 2008( II) OLR-690 and submitted that this Court as well as the Hon’ble Supreme Court have earlier passed order protecting the life and liberty of the Petitioner in similar cases. Page 2 of 4 // 3 // 6. The learned counsel for the State on the other hand vehemently opposed the applications contending that the decisions cited by the learned counsel are the facts which are completely distinguishable from the one in the present and further submitted that the matter in controversy is absolutely within the domain of the civil court and the present application have no merits to stand and be dismissed. 7. The learned counsel primarily rests his contentions on the decisions in the matter of Vidya Devi Vrs. State of Himachal Pradesh & others, which is admittedly passed in a Civil Appeal arising out of a Civil Writ Petition. In the aforesaid case, it is the State who was taking over the forcible possession of the Petitioner without following due process of law. The factual position of the suit land in the aforesaid decisions is with regard to the possession of the Appellant of a piece of land originally held by the Government and the Appellant remained in adverse possession thereof. In that view of the matter, any action of the State by way dispossession of the Appellant without due process of law has rightly been shunned which is not the case in the present in as much as the State being the protector of the welfare of the People can’t take the law into the hand to dispossess the person even if in adverse possession. The said decisions, therefore, cannot be applied to the facts of the present case. As far as the decisions in the matter of M/s. Shakti Bricks Vrs. The Collector, Bhadrak & other is concerned, the very fundamental right of the Petitioner, who has right to run his business has been the subject matter in issue. It emerges from the decisions that some persons obstructed the way in carrying the raw material to the business establishment of the Petitioner and started demanding “Dadabati” from each truck that carries the raw material to the Petitioners’ establishment. Therefore, Page 3 of 4 // 4 // rightly in absence of an action being performed by the State Authorities, direction has been issued to give protection. 8. As far as the present case is concerned, it is the consistent case of the Petitioner that his possession is under threat by the person having no right over the same. The learned Magistrate proceeded U/s. 144(2) Cr.P.C also opined that the matter being within the ambit of a civil court, the party is directed to take recourse to under the competent court by filing a civil suit. Needless to mention that the forcible dispossession of the rightful owner that derives a civil right against the mischief mongers can be protected by action in the civil forum by grant of injunction. In the event the order of injunction is violated there is provision for violation of injunction that includes the police protection. In view of the above there being a clear case before us that the dispute relates to the right of possession over the suit land, the learned Magistrate while disposing the proceeding U/s. 144(2) Cr.P.C has rightly concluded directing the parties to resort the civil suit. There is also nothing before this Court, whereupon the life and liberty of the person is at stake which cannot be protected by any other alternative remedy but a direction through this application. There being an alternative efficacious remedy available under law, the Petitioner has every right to move on the said forum. With the above observation, the application being devoid of merit stands dismissed. Judge (Chittaranjan Dash) Bijay Signature Not Verified Digitally Signed Signed by: BIJAY KETAN SAHOO Reason: Authentication Location: HIGH COURT OF ORISSA Date: 16-Jan-2024 17:27:08 Page 4 of 4