The High Court
Case Details
IN THE HIGH COURT OF ORISSA AT CUTTACK W.P.(C) No.5642 of 2016 Saroj Kumar Sahoo …. Petitioner Mr. A.K. Tripathy, Advocate -Versus- The Collector , Jajpur & Another ….
Legal Reasoning
Opposite Parties Mr. YSP Babu, AGA CORAM: MR. JUSTICE R.K. PATTANAIK Order No. 09. 1. Heard Mr. Tripathy, learned counsel for the petitioner and Mr. Babu, learned AGA for the State-opposite parties.
Decision
ORDER 07.07.2023 2. Instant writ petition is filed by the petitioner challenging the impugned notice under Annexure- 5 issued to him in connection with E.C. Case No. 304 of 2015 without affording due opportunity of hearing and considering the objection (Annexure-7) and also complying the requirements of law. 3. Mr. Tripathy, learned counsel for the petitioner submits that the schedule land was originally with the estate of Jagannath Road Fund and the grandfather of the petitioner was inducted as a tenant and as a token of said tenancy, a registered deed of permanent lease was executed on 17th September, 1948 and while claiming so, he refers to a copy of the deed as at Annexure-1. It is further submitted that after such lease was granted under the provisions of the Orissa Page 1 of 4 Tenancy Act, the petitioner’s family acquired the right of occupancy which is also heritable in nature and during such possession, substantially developed it and at no point in time, the landlord ever disputed the right conferred vide Annexure-1. It is also contended that the possession of the petitioner’s father was recorded in the Land Register but in the final RoR, it was illegally recorded with the State Government as evident from Annexure-2, whereafter, the matter was challenged in Revision Case No. 224 of 1999 which is still subjudice and stands renumbered as Revision Case No. 64 of 2007. It is also submitted that in connection with the dispute since the possession of the petitioner was challenged, a suit in C.S. No. 153 of 2013 was instituted which is also pending disposal. Against the aforesaid backdrop, according to Mr. Tripathy, opposite party No.2 initiated action in view of encroachment proceeding in respect of the land in question notwithstanding the decision awaited in Revision Case No. 64 of 2007 and also the pendency of civil suit in C.S. No. 153 of 2013, hence, therefore, the action is arbitrary and illegal and thus, liable to be interfered with in the interest of justice. 4. Mr. Babu, learned AGA for the opposite parties referring to the counter affidavit submits that the schedule land stands recorded with the State Government and in so far as the action initiated in encroachment proceeding is concerned, in the meantime, notice in form ‘Kha’ (Annexure-D/2) has been issued and so therefore, the petitioner should instead approach the appellate forum challenging such an action. In reply, Mr. Tripathy submits that the issuance of notice under the OPLE Act is void an initio and that apart, the Government cannot claim itself as the owner in respect of the land in question in view of the fact that it was leased out in favour of the petitioner’s grandfather by the landlord. While advancing such an Page 2 of 4 argument, Mr. Tripathy submits that eviction cannot be initiated in respect of any such land which belongs to Jagannath Road Fund Trust as against the fact that the land was leased out under Anneuxre-1 and in that connection, cited a decision of this Court in case of Raj Kishore Prasad & Others Vrs. State of Orissa & Others reported in 2012(II) CLR-694. 5. From Annexure-1, it is made to understand that lease was granted in favour of the grandfather of the petitioner in the year 1948 and thereafter, the possession was continued but later it was settled with the Government which was challenged thereafter in Revision No. 64 of 2007. From Annexure-4, it is also made to appear that the petitioner has knocked the doors of the civil court in C.S. No. 153 of 2013 and the same is pending disposal. That apart, from Annexure-6, it is shown that an objection/show cause was filed by the petitioner pursuant to the impugned notice under Anenxure-5. It is claimed that there has been no final order by opposite party No.2 later to the filing the show cause under Anenxure-6. However, in response to the above claim, Mr. Babu, learned AGA for opposite parties refers to Annexure-D/2 by contending that later to the filing of the show cause/objection by the petitioner, opposite party No.2 has issued a notice in form ‘Kha’. In such view of the matter, when a show cause was filed and thereafter, opposite party No.2 issued notice in form ‘Kha’, the Court is of the view that the petitioner is required to approach the Appellate Authority challenging such an action under the provisions of the OPLE Act. The Court is also of the view that the very initiation of the encroachment proceeding and all such grounds which have been raised at present may be examined by the Appellate Authority, in the event any such appeal is preferred by the petitioner pursuant to Annexure-D/2 to the counter affidavit which in the Page 3 of 4 considered view of the Court would serve the purpose and advance the cause of justice. In other words, without expressing anything on the merits of the claim of the petitioner, the Court is inclined to grant the liberty to him to approach the appellate forum in view of issuance of notice in form ‘Kha’ under Annexure-D/2. 6. 7. Accordingly, it is ordered. In the result, the writ petition stands disposed of with the liberty allowed in favour of the petitioner to approach the Appellate Authority, namely, Sub-Collector, Jajpur and in the event, an appeal is filed by him within a fortnight from today, the same shall be entertained by condoning delay, if any and thereafter, to proceed and to dispose it of as per and in accordance with law providing reasonable opportunity of hearing to the parties involved preferably within a period of next six weeks. It is further directed that the petitioner shall be permitted to raise all such grounds available to him under law for a decision in appeal and till such time, the appeal is presented, there shall be status quo maintained vis-à-vis the land in question. 8. A certified copy of this order be issued as per rules. Judge (R.K.Pattanaik) Kabita Signature Not Verified Digitally Signed Signed by: KABITARANI MAJHI Designation: Secretary Reason: Authentication Location: oHC,Cuttack Date: 10-Jul-2023 11:23:53 Page 4 of 4