The High Court
Case Details
IN THE HIGH COURT OF ORISSA AT CUTTACK W.P.(C) No.3466 OF 2015 (An application under Articles 226 and 227 of the Constitution of India) Muralidhar Dash and others … Petitioners -versus- The Collector, Balasore and others … Opposite Parties Advocates appeared in the case through hybrid mode: For Petitioners : Mr.Biplab Mohanty, Advocate Mr. T.K.Patnaik, Advocate -versus- For Opposite Parties : Mr.S.N.Das, Addl. Standing Counsel --------------------------------------------------------------------------- CORAM: JUSTICE SASHIKANTA MISHRA JUDGMENT 13.9.2023. Page 1 of 7 Sashikanta Mishra,J. The Petitioner Nos.1 to 4 are residents of villages namely, Khaira and Gopalpur in the district of Balasore, and Petitioner No.5 is the resident of VSS Nagar, Bhubaneswar in the district of Khurda, claiming to be the rightful owners of land measuring Ac.0.03 decs. corresponding to Plot Nos.29, 32 and 33 under M.S. Khata No.183 of Mouza Talakia. They are the legal heirs and representatives of late Shyam Sundar Dash, who died in the year 1985 leaving behind them as his successors. As such, they have inherited all the properties of their deceased father including the property in question. 2. Their father had filed a Civil Suit in the Court of learned Civil Judge (Jr. Division), Nilgiri being T.S. No.29/2002-I seeking declaration of right, title and interest over the suit land besides perpetual injunction
Legal Reasoning
against the State-defendants. By judgment passed by the learned Civil Judge (Jr. Division), Nilgiri on 24th April, 2006 followed by decree, the suit was decreed declaring the right, title and interest of the Petitioners W.P.(C) No. 3465 of 2015 Page 2 of 7 over the suit land and by permanently injuncting the State-Defendants from interfering with their possession. 3. In the meantime, a PIL was filed before this Court by some persons being W.P.C(PIL) No.2621/2014. By order dated 17th November, 2014 a Division Bench of this Court directed that all encroachments over the land in village Oupada should be removed latest by January, 2015 without fail. It is alleged that pursuant to such order, the Petitioners despite having a decree in their favour from the competent Civil Court, were forcibly evicted from the suit land and their houses were demolished. As such, they have approached this Court seeking the following relief; “Under the circumstances stated above this Hon’ble Court may be graciously pleased to admit this writ application, issue notice of Rule Nisi as to why the action of the Opp. Parties in evicting the Petitioners and demolishing their house shall not be declared illegal, issue notice of Rule Nisi as to why the possession of the said property shall not be restored to the Petitioners with immediate effect and why the appropriate W.P.(C) No. 3465 of 2015 Page 3 of 7 action shall not be taken against them in accordance with law.”
Legal Reasoning
4. Heard Mr. T.K.Pattnaik, learned counsel for the Petitioners and Mr. S.N.Das, learned Addl. Standing Counsel for the State. 5. In course of hearing, Mr. Pattnaik has argued that the competent Civil Court having declared the right, title and interest of the Petitioners over the suit property and the same being confirmed by the appellate Court, the concerned authorities had no authority or power to act otherwise in relation to the suit property more so as they have not further challenged the decree. Mr. Pattnaik has also drawn attention of this Court to the counter affidavit filed by the Opposite Parties wherein the contentions raised by the Petitioners have been admitted inasmuch as, it has been stated that the fact of passing of decree by the trial Court and its confirmation by the appellate Court was never brought to the notice of the Tahasildar at the relevant time, for which the facts being not within W.P.(C) No. 3465 of 2015 Page 4 of 7 the knowledge of the Tahasildar, the eviction was carried out. This, according to Mr. Pattnaik, proves the case of the Petitioners in its entirety. 6. Mr. S.N.Das, learned Addl. Standing counsel for the State, also fairly submits that had the fact of passing of the decree in favour of the Petitioners in respect of the suit land been brought to the knowledge of the concerned authority, they would not have been evicted. The Petitioners must also be blamed for not bringing such fact to the knowledge of the Tahasildar at the relevant time. 7. This Court finds that in the counter affidavit filed by the Tahasildar, Oupada, it is stated under paragraph-6 as follows; “6. That at the cost of repetition the deponent most humbly states that the decree was passed in favour of the petitioners on 21.8.2002, after dismissal of the Munsif Appeal, by the learned Adhoc Additional District Judge(FTC), Balasore, by which the jurisdiction of Nilgiri Tahasil. land was within time, the is submitted It that Nilgiri Tabasil was bifurcated in the year 2008 and a new Tahasil i.e Oupada Tahasil came into existence in the same year. The eviction drive was initiated in the year 2014-15, pursuant to the kind order of this W.P.(C) No. 3465 of 2015 Page 5 of 7 Hon’ble Court on a writ petition vide WPC No. 2621/2014 and as such the eviction of encroachment was completed accordingly. During the periods and notwithstanding issuance of notice in encroachment case, the petitioners had never approached before the opp. party no.3 by filing the certified copy of the decree nor even filed any application for execution of the decree. Since at the time of eviction, the above facts were not within the knowledge of the opp.party no.3, on the basis of ROR showing the status of the land, the petitioners were evicted, which cannot be treated as illegal and arbitrary in the eye of law. Therefore, in view of the above, the writ petition being devoid of any merit to be dismissed.” liable is 8. In view of the clear admission of the Tahasildar, Oupada, as referred above, nothing really survives to be decided in the present Writ Petition save and except holding that the Petitioners should not have been evicted from the suit land. 9. In view of what has been narrated hereinbefore, it is more than evident that the Petitioners are entitled to be restored possession of the suit land in terms of the decree passed by the Trial Court as confirmed by the Appellate Court. 10. Resultantly, the Writ Petition is allowed. The Opposite Parties are directed to pass necessary orders W.P.(C) No. 3465 of 2015 Page 6 of 7 to restore possession of the suit land in favour of the Petitioners without any further delay and in any case, not later than two months from the date of production of certified copy of this order by the Petitioners. 11. The Opposite Party-authorities shall act upon a certified copy of this order to be produced by the Petitioners. ………..…….……………. Sashikanta Mishra, Judge Ashok Kumar Behera W.P.(C) No. 3465 of 2015 Page 7 of 7