The High Court
Case Details
IN THE HIGH COURT OF ORISSA AT CUTTACK W.P.(C) No.7123 of 2025 Sri Harish Chandra Sundaray ..... -versus- Petitioner Mr. Ajaya Kumar Moharana, Advocate State of Odisha & Ors. Opposite Parties Mrs. J. Sahoo, ASC CORAM: THE HON'BLE DR. JUSTICE S. K. PANIGRAHI ORDER 19.03.2025 Order No. 01. 1. This matter is taken up through hybrid arrangement. 2. The Petitioner, by filing this Writ Petition, has made a prayer to quash the order dated 31.03.2011 passed by the Tahasildar, Bhubaneswar in Revenue Case No.11
Facts
of 2011, arising out of Encroachment Case No.472 of 1990 and final order dated 12.05.2023 passed by the Sub- Collector, Bhubaneswar in OPLE Appeal No.27 of 2012. 3. He also sought for a direction to the Opposite Parties not to demolish the residential house of the Petitioner in Khata No.516, Plot No.459 and 460, total area Ac0.395 decimal out of Ac2.6300 decimal situated at Page 1 of 8. Mouza-Dumduma under Bhubaneswar Tahasil in the District of Khurdha. 4.
Legal Reasoning
once again approached this Court in W.P(C) No.13456 of 2013 and this Court vide order dated 27.06.2013 directed for expeditious disposal of the appeal and till then status quo in respect of land in question shall be maintained. 9. He further submits that the Petitioner has approached the Opposite Parties ventilating his grievance on several times. In the year 2020, since there is threat of eviction by the enforcement team, the Petitioner has also Page 5 of 8. submitted a petition stating the factual position and requesting them to settle the land in his favour vide letter dated 18/11/2020 addressed to the Director of Estate, and copy to Enforcement team of Bhubaneswar Development Authority and Bhubaneswar Municipal Corporation.. Thereafter, he also submitted a representation to the Vice Chairman, BDA requesting not to take demolition enumerating the fact of the case on 09.11.2022. 10. Since the enforcement team announced for eviction drive, the Petitioner has moved the appellate authority to resolve the issue and again applied for certified copy of the order sheet of OPLE Appeal case No.27/2012 on 22.08.2024. It appears from such order sheet, the appeal was taken up for admission on 11.01.2013 and the appellate court after hearing on the point of admission from the counsel of the appellant, called for LCR from the Tahasildar, Bhubaneswar for admission of appeal. Thereafter, the appellate authority remained silent for about one decade and suddenly
Arguments
Learned counsel for the Petitioner submits that the father of the Petitioner had constructed his residential house over plot No.459 and Plot No.460 measuring an Ac.0.395 decimal from Khata No.516 situated at Mouza- Dumduma under Bhubaneswar Tahsil in the District of Khurda to accommodate the family members in the year 1955. During those period, the area was not coming under the jurisdiction of Bhubaneswar Municipal Corporation (BMC) or Bhubaneswar Development Authority (BDA). Since it is rural area, the local villagers requested the father of the Petitioner to reside over the said plot to take care and to offer worship (Puja Seva) to the village deity (Grama Thakurani) Sri Pachimeswar Deba Bije. Accordingly, the father of the Petitioner and after his death the Petitioner along with his family members are residing there and continuing peaceful possession without any interruption from any corner. 5. While the father of the Petitioner was residing over the said plot by constructing his residential house, the Tahasildar, Bhubaneswar had initiated Encroachment Case No.472 of 1990 against him in respect of the land in question and served a notice directing him to appear and Page 2 of 8. file show cause reply on 13.11.1990. In pursuance to such notice, the father of the Petitioner appeared before the Opposite Party No.3 and filed his show cause reply stating therein that he was in occupation over the land for more than 35 years and he was a poor and landless person. Hence, as per beneficial provision of the Orissa Prevention of Land Encroachment Act, 1972, the scheduled land may be settled in his favour. The competent Revenue Authority though assured to settle the land in question, which is under his possession of the Petitioner considering the facts and circumstances, but no such order was passed. The father of the Petitioner approached the Revenue Authority several times requesting to settle the land where his residential house exists in his favour and issue Record of Right in his favour. Subsequently, after a prolonged treatment the father of the Petitioner died in the month of March, 1998 leaving behind the Petitioner as his only son and legal heir. Since then, the Petitioner is in continuous possession over the land in question using as residential house without any interruption till date. 6. However, the Petitioner has approached the Tahasildar, Bhubaneswar/ Opposite Party No.4 on several occasions by filing his representation on Page 3 of 8. 17.11.1998, 05.06.2004 and 09.01.2011 for disposal of the said Encroachment Proceeding in settling the land in his favour, but no action has yet been taken by the authority. On the other hand, the authorities have threatened verbally to the Petitioner to be evicted at any point of time without any further notice. Due to threat of eviction from the land in question, the Petitioner had filed his last application on 04.02.2011 with a prayer for settlement of the encroachment land in his favour by accepting rent revenue from him. The Petitioner has been running to the office of the Tahasildar, Bhubaneswar/Opposite Party No.4 for settlement of the above land in his favour on the basis of his continuous uninterrupted khas possession for more than 55 years with the knowledge of State Government. His case for settlement of the scheduled land is also entitled to be considered as per the provision of the OPLE Act and Rules in OPLE Case No.472 of 1990. 7. Therefore, finding no other alternative, the Petitioner approached this Court for appropriate relief in W.P.(C) No.2903 of 2011. This Court vide order dated 25.02.2011 while disposing of the said Writ Petition directed the Tahasildar, Bhubaneswar to dispose of OPLE Case No.472 of 1990 within a stipulated period. Pursuant to the said direction of this Court, the Petitioner has duly Page 4 of 8. submitted the copy of the order before the concerned authority on 17.03.2011. However, the Tahasildar, Bhubaneswar without any fact finding inquiry and giving proper opportunity of hearing, only on the basis of the so called report submitted by the concerned RI without supplying the said copy to the Petitioner mechanically vide order dated 31.03.2011 rejected the claim of the Petitioner. 8. Being aggrieved by the order dated 31/03/2011 passed in Revenue Misc. Case No.11/2011 arising out of Encroachment Case No.472/1990, the Petitioner had preferred OPLE Appeal No.27/2012 before the Sub- Collector, Bhubaneswar on several valid grounds. Since the Appellate Authority has not passed any interim order in protecting the possession of the Petitioner while entertaining the appeal, the Petitioner has bonafidely
Decision
disposed of the appeal, without giving an opportunity of hearing. 11. It is also contended that in view of the beneficial provision under the OPLE Act and Rules, the claim of the Petitioner for settlement of the land in question should Page 6 of 8. have been considered. The authority should have settled the land and issued R.O.R. in his favour considering the poverty, landlessness and the actual, continuous and undisputed occupation of the schedule land for more than 55 years. The Petitioner has been residing over the schedule land by constructing his residential house. In the process he had spent his life savings, planted many valuable trees and continued his peaceful possession till date. As such, the Petitioner is eligible to be settled with the scheduled land by the competent authority. The Petitioner has availed the Government sponsored benefits to such premises. The Petitioner has also taken the electricity connection to his house. The Petitioner is continuously exercising all acts of ownership as settled possession over the land in question. The petitioner being a poor and landless person has approached the Tahasildar, as well as the higher authorities on several occasions seeking settlement of the land in his favour and to issue Record of Right in his name. However, the same has not yielded any result. In the present case, the Opposite Parties in violation of the provisions of law of land has threatened to demolish the house and evict him from the land. Page 7 of 8. 12. Considering the submissions made by the learned counsel for the Petitioner and on going through the averments made in this Writ Petition, this Court is of the view that while passing the impugned order, the Sub- Collector, Bhubaneswar has not given opportunity of hearing to the Petitioner. Hence, the order dated 12.05.2023 passed by the Sub-Collector, Bhubaneswar in OLPE Appeal No.27 of 2012 is quashed. The matter is remitted back to the Sub-Collector, Bhubaneswar for passing an order afresh. The Sub-Collector, Bhubaneswar is directed to dispose of the said appeal and pass order by giving opportunity of hearing to the parties within a period of two months from the date of presentation of the order. 13. It is further directed that till the aforesaid appeal is disposed of by the Sub-Collector, Bhubaneswar, no coercive action shall be taken against the Petitioner. 14. Accordingly, the Writ Petition stands disposed of. Judge Gitanjali (Dr. S. K. Panigrahi) Signature Not Verified Digitally Signed Signed by: GITANJALI NAYAK Reason: Authentication Location: OHC Date: 21-Mar-2025 15:47:04 Page 8 of 8.