The High Court
Case Details
IN THE HIGH COURT OF ORISSA AT CUTTACK W.P.(C) No.13246 of 2016 P.Gouri Shankar Petitioner M/s. B.P. Das, Advocate & Associates …. -Versus- Collector, Rayagada & others …. Opposite Parties Mr. P.K. Rout, AGA CORAM: MR. JUSTICE R.K. PATTANAIK Order No. ORDER 13.12.2023 13. 1.
Legal Reasoning
Heard Mr. Das, learned counsel for the petitioner and Mr. Rout, learned AGA for the State opposite parties. 2. Instant writ petition is filed by the petitioner challenging the eviction notice under Annexure-3, order dated 25th March, 2015 of opposite party No.3 in E.C. No.709 of 2015 (Annexure-5), order in Encroachment Appeal No.01 of 2016 i.e. Annexure-6 and the order under Annexure-8 in Revision Case No.03 of 2016 on the grounds inter alia that the same are not tenable in law being against the principles of natural justice, hence, liable to be interfered with and set aside. 3. Mr. Das, learned counsel for the petitioner submits that the encroachment proceeding was initiated in the year 2015 and penalty was duly assessed and realized from the petitioner as it is made to reveal from Annexure-2. It is claimed by Mr. Das that the petitioner having been in possession of the land in question since more than thirty years and despite such long possession, no notice in Form ‘Ka’ Page 1 of 5 was issued which was followed vide Annexure-3. Furthermore, it is submitted that the petitioner approached opposite party No.2 in Encroachment Appeal No.01 of 2016, which was however disposed of vide Annexure-6 without merit and by not considering the plea of settlement as per the provisions of the OPLE Act. As against the said order, Mr. Das submits that the revision was filed before
Decision
opposite party No.1 which was disposed of dismissing such plea for settlement thereby confirming the order under Annexure-6. It is contended that there has been no proper inquiry held by opposite party No.3 nor the appeal was disposed of on merit, which has been confirmed by the Revisional Authority vide Annexure-8, hence, therefore, the writ petition. In support of such contention, Mr. Das relies upon the following decisions, such as, Mrutyunjaya Nayak & others Vrs. State of Orissa & another 2016(I) OLR 795, Murali Padhi alias Muralidhar Padhi Vrs. Tahasildar, Surada & others 1990 (I) OLR 374, Antaryami Barik and another Vrs. State of Orissa 2016(I)OLR 681 and Eric Alvares Vrs. Collector, Sundargarh and others 1996 (I) OLR 25 and it is lastly submitted that in absence of a proper inquiry and reasonable opportunity of hearing being provided to the petitioner, the impugned decision by the authorities below cannot be sustained in law. 4. On the contrary, Mr. Rout, learned AGA for the State referring to the counter affidavit submits that the petitioner is an employee of J.K. Paper Mills and he is not a landless person and hence, not entitled to settlement of the schedule land under the provisions of the OPLE Act, which has been pleaded. It is contended that there has been proper inquiry held at the level of opposite party No.3 and despite an order to appear before the Appellate Authority on the date fixed, he did not turn up and on account of such default, it has led to the passing of the order vide Annexure-6 and hence, there is no illegality committed and that apart, the impugned order under Annexure-8 is in accordance with law as a Page 2 of 5 subjective satisfaction was reached at by opposite party No.1 with regard to the annual income of the petitioner, he having not been held as a landless person. In any case, according to Mr. Rout, learned AGA for the State, the land cannot be settled with the petitioner since it stands recorded as ‘Patra Jungle’ in view of the provisions of Orissa Forest Conservation Act. 5. In reply to the above, referring to the rejoinder filed, Mr. Das, learned counsel for the petitioner denies the claim that the petitioner to be an employee of J.K. Paper Mills and that he is a landless person and claims that the same would be revealed if in case, a proper inquiry is held. It is further brought to the notice of the Court by Mr. Das that challenging the impugned action of opposite party No.3, the petitioner had earlier approached this Court vide Annexure-9 which was disposed of on 15th February, 2016 with a direction for him to appear before opposite party No.2 for a fresh decision in appeal. It is reiterated by Mr. Rout, learned AGA for the State that the petitioner did not appear on the date fixed, hence, the appeal was disposed of later with an order. It is claimed by Mr. Das, learned counsel that the petitioner had in fact appeared and applied for time since he was otherwise not available on account of his mother’s illness. 6. 7. Gone through the order under Annexure-6. In fact, pursuant to the Court’s direction vide Annexure-9 to the rejoinder affidavit, the petitioner seems to have appeared for opposite party No.2 and for the reason stated and on account of default, the appeal was disposed of by order dated 26th April, 2016, which is admittedly not on merit. In other words, the case of the petitioner regarding settlement of the schedule land which was pleaded by him could not be considered by the Appellate Authority since the appeal was disposed of due to his absence. In any case, the revision was filed leading to passing of the impugned order under Page 3 of 5 Annexure-8 and the Court finds that an inquiry was apparently held, which stated to have revealed that the petitioner not to be entitled for settlement of the land in question. 8. Irrespective of whether there was any notice in Form ‘Ka’ which is, however, revealed from Annexure-5 that it had been resorted to, since there has been no decision on merit in appeal, such a ground could not therefore be examined and that apart, the record is silent with regard to nature of inquiry held as against the claim that it was not properly conducted. Without entering into the said aspect of inquiry held properly or otherwise, the Court is of the considered view that the petitioner, who failed to defend his case before the Appellate Authority, which resulted in disposal of the appeal vide Annexure-6, in the interest of justice, should be provided an opportunity thereby restoring Encroachment Appeal No.01 of 2016 to file for a decision. In other words, the Court is inclined to allow the petitioner an opportunity to participate before opposite party No.2 for disposal of the appeal on merit with a proper inquiry held or in case, it was not conducted, the same to be carried out. If any such inquiry said to have been held, as according to Mr. Rout, learned AGA for the State referring to Annexure-5, the same should be confronted to the petitioner so as to enable him to defend ensuring disposal of Encroachment Appeal No.01 of 2016 in accordance with law. 9. The Court is alive to the settled position of law that action should not be taken in haste, especially, in encroachment proceeding which has been so held by this Court in Mrutyunjaya Nayak (supra). Furthermore, in Murali Padhi alias Muralidhar Padhi (ibid), it is held that in an eviction proceeding, the Tahasildar is to consider whether the encroached land can be settled with the person instead of evicting him when a plea being a landless and homesteadless is advanced. The other decision in Eric Alvares (supra) Page 4 of 5 is in relation to an inquiry which was found to be not properly held thereby, in the interest of natural justice, reasonable opportunity to be provided to the person affected. The decision in Antaryami Barik (supra) which is relied upon is related to a criminal proceeding wherein conclusion was arrived at in absence of reasons indicated. 10. Having regard to the above decisions cited by Mr. Das and since the Court has reached at a conclusion that the appeal was not disposed of on merit, in the best interest of justice and especially, in view of the plea for settlement of the schedule land in favour of the petitioner being a landless person, the proceeding in Encroachment Appeal No. 01 of 2016 needs restoration to file in order to provide reasonable opportunity of hearing with necessary inquiry followed for a decision on merit. 11. Hence, it is ordered. 12. In the result, the writ petition stands allowed. As a necessary corollary, the impugned order under Annexure-8 is hereby set aside with restoration of Encroachment Appeal No. 01 of 2016 to the file of opposite party No.2, who shall after providing an opportunity of hearing to the petitioner and taking note of any inquiry held with the reports submitted, to proceed and to dispose it of as per and in accordance with law at the earliest preferably within a period of eight weeks from the date of receipt of a copy of this order keeping in view settled position of law and till such time, a final decision is rendered within the above stipulated period, there shall be status quo maintained in respect of the schedule land. Balaram Judge Signature Not Verified Digitally Signed Signed by: BALARAM BEHERA Designation: Personal Assistant Reason: Authentication Location: HIGH COURT OF ORISSA, CUTTACK Date: 14-Dec-2023 12:48:23 (R.K. Pattanaik) Page 5 of 5