The High Court
Case Details
IN THE HIGH COURT OF ORISSA AT CUTTACK W.P.(C) No.10806 of 2025 Sasmita Swain ..... State of Odisha & Ors. -versus- ..... Petitioner Mr. Niranjan Lenka, Advocate Opposite Parties Mr. Debasish Nayak, AGA CORAM: THE HON'BLE DR. JUSTICE S. K. PANIGRAHI Order No. ORDER 23.04.2025 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 public notice dated 15.04.2025 under Annexure-5. He further seeks a direction from this Court to the Commissioner, Bhubaneswar Municipal Corporation/Opposite Party No.3 not to demolish or evict over the schedule property standing over the Revenue Plot No. 1474(P) (Area 1800 Sq.ft.) out of Ac 11.150 dec Khata No 1427 Mouza- Bhubaneswar Sahar, Unit No.16, Jayadev Bihar, Tahasil-Bhubaneswar, Dist-Khurda. 3.
Legal Reasoning
Learned counsel for the Petitioner submits that the Petitioner along with his family members residing over the schedule property has been occupied by other Page 1 of 6. persons, but the BMC authority deliberately in a selective manner without issuing individual notice in terms of the statute, issued a general notice by affixing the same in the wall of the Petitioner's house to which the Petitioner came to know on 17.04.2024. Initially, by way of mike announcement in general manner declaration was made for eviction of the Encroachers including the petitioners, without issuing individual notice as provided under law. Therefore, the petitioner, on 31.08.2019, submitted a representation before the Commissioner, BMC, Bhubaneswar with a request not to demolish her house along with a handmade sketch map. From the said sketch map, it reveals that the land over which the petitioner's family resides is no way obstructs or create impediment in any manner. He further submits that initially, the present petitioner had approached this Court in WP(C) No. 16480 of 2019 with a prayer for a direction not to demolish or evict the dwelling house of the petitioner standing over the plot No. 1493 (P) in Khata No. 1427 of Mouza: Bhubaneswar Sahar, Unit-16, Jayadev Vihar, with a further prayer to consider her representation regarding settlement of land in her favour. In the said case, this Court vide order dated 18.09.2019 disposed of the case with a direction to consider the representation of the petitioner within the stipulated period as observed in the Page 2 of 6. said order. Pursuant to disposal of the said Writ Petition, though the petitioner has produced the copy along with relevant documents in person before the authority of BMC and the same was accepted, but no proof of acknowledgement was provided to the petitioner nor any communication has been given to the petitioner about status of the said representation in terms of the order dated 18.09.2019. Since the order was produced before the BMC authority way back of September 2019, but till date instead of taking any decision issuance of present notice dated 15.04.2025 by the Bhubaneswar Municipal Corporation is not sustainable. Hence, interference of this Court in this matter is highly imperative. Though the said general notice was issued but the same was not served to the petitioner. However the notice was affixed clandestinely in the wall of the petitioner. Therefore, the petitioner would able to know that such a drastic action is going to be taken for eviction her house only baring the- other persons are residing over the said plot and other plots under the Khata No. 1427, Jaydev Vihar. 4. He further contends that on going through the said notice and in comparison with the law relating to OPLE Act, which provides that individual notice as well as show cause are required to be issued in terms of the Page 3 of 6. provision enumerated under the OPLE Act. In the instant case, instead of issuing any individual notice showing cause, issuance of general notice without proper description of land over which the petitioner and other encroachers are residing is not only impermissible but also legally incorrect because law is very well laid down and will settled that things has to be done in the manner in which the law had laid down but not in otherwise. 5. In the instant case, if the attempt of the Opposite Parties particularly the BMC authority will be considered on its proper prospective, then it is conspicuous that the BMC authority has not follow the law as provided under the statute. 6. He further submits that from time to time circulars are being issued for settlement of land in favor of the persons those who are living under below poverty line and downtrodden landless persons. But without initiating any proceeding to cause an inquiry about the eligibility and entitlement of the occupant, issuance of general notice instead of individual notice is not permissible under law. If the authority would have followed the law provided under the statute in its proper prospective, then the petitioner would have able to establish his claim in support of the representation. But, Page 4 of 6. in the instant case, the same has not been done. So, in this premises, the present decision as per general notice dated 15.04.2025 under Annexure-5 is not sustainable and liable to be set aside. 7. It is also the law under OPLE Act that individual notices are mandatory before any action is taken against a person for unauthorized occupation of the Government land. So, Section 9 of the OPLE Act provides issuance of notice to the unauthorized occupants prior to initiation of proceeding under Sections- 4, 6, or 7 of the said Act. Therefore, the present general notice without any proper land description is not sustainable and liable to be quashed. 8. It is also apt to mention here that before initiating any action under Section 9 of the Act, it is mandatory to initiate action against the unauthorized occupant in terms of Sections- 4, 5 and 6 of the OPLE Act. But, in the instant case, the Opposite Parties have given a go bye to the said Act. Rather, in a selective manner having malafide intention trying to demolish the house of the petitioner without following due procedure of law. Therefore, the action of the Opposite Parties is de-horse in law, because law is well settled that even a rank trespasser cannot be Page 5 of 6. removed without following due procedure of law. Hence, this Writ Petition. 9. Considering the submissions made by the learned counsel for the Petitioner and on going through the documents annexed to this Writ Petition, since the Petitioner has received the notice in late, another 15 days time may be granted to the Petitioner to vacate the encroached space. In the meantime, if the Petitioner so desires, he can approach the appropriate authority for settlement of the land in question under the OPLE Act. 10.
Decision
This Writ Petition is, accordingly, disposed of. Judge (Dr. S. K. Panigrahi) Gitanjali Signature Not Verified Digitally Signed Signed by: GITANJALI NAYAK Reason: Authentication Location: OHC Date: 29-Apr-2025 18:40:45 Page 6 of 6.