The High Court
Case Details
IN THE HIGH COURT OF ORISSA AT CUTTACK W.P.(C) No.17377 of 2023 Kamalkanta Jena & Others Petitioners Mr. S.K. Mishra, Sr. Advocate …. -Versus- State of Odishaand Others …. Opposite parties. Mr. P.K. Rout, AGA Mr. D.P. Jena, Advocate for O.P. No.5 CORAM: MR. JUSTICE R.K. PATTANAIK ORDER 01.11.2023 Order No. 08.
Legal Reasoning
1. Heard Mr. Mishra, learned Senior Advocate appearing for the petitioners assisted by Ms. Susrita Sahu, Advocate, Mr. Rout, learned AGA for the State-opposite party Nos.1 to 4, and Mr. Jena, learned counsel for opposite party No.5. 2. Instant writ petition is filed by the petitionersfor a direction to the opposite parties not to evict them from the schedule land appertaining to Plot Nos. 199,929 and 634, Khata No.330; Plot No.1,Khata No.331; and Plot No.1015, Khata No.312 situate in the concerned Mouza without providing any opportunity of hearing and considering their claim for settlement of the same. 3. Mr. Mishra, learned Senior Advocate appearing for the petitioners submits that the impugned action under Annexure-1 and eviction notices vide Annexure-4 series and issuance thereof to be bad in law since petitioner Nos. 1 to 4 have challenged the decision presently pending in Revision Case Nos.17, 18, 20 and 21 of 2019, wherein, interim orders against any coercive measure Page 1 of 6 have been passed and while claiming so, he refers to Annexure-2 series. Furthermore, Mr. Mishra, learned Senior Advocate refers to Annexure-3 series claiming that an application for exchange of private land owned by petitioner No.5 is also pending decision and hence, issuance of notices under Annexure-4 series to be untenable in law. That apart, according to Mr. Mishra, in so far as petitioner Nos. 6 to 8 are concerned, none of them have been provided an opportunity of hearing before the action followed vide Annexur-4 series preceded by Annexure-1. It is contended that petitioner Nos.6 to 8 are landless persons which stands admitted by the State in the counter affidavit. So, therefore, it is further contended that the said petitioners since claim possession for more than thirty years being eligible and entitled for settlement of the schedule land under OPLE Act, no any opportunity was provided to them to agitate the same by the authority concerned, namely, opposite party No.4 before issuance of eviction notices vide Anenxure-4 series. In such view of the matter, it is lastly submitted that the action under challenge pursuant to Annexure-1 and followed by Annexure-4 series istherefore liable to be interfered with and quashed. 4. Mr. Rout, learned AGA for the State-opposite party Nos.1 to 4 referring to the counter affidavit submits that such action was pursuant to the Court’s order in W.P.(C) No. 1460 of 2023. It is contended that the said writ petition filed at the instance of opposite party No.5 was disposed of at the stage of admission and hence, there was no scope or any occasion on the part of the State to bring the facts such as pendency of proceedings in Revision Case Nos. 17, 18, 20 and 21 of 2019 and also with regard to the exchange of land so applied for by petitioner No.5. Page 2 of 6 It is claimed that the proceeding in respect of exchange which is claimed to have been applied by petitioner No.5 and the record in respect thereof is not traceableand if any such exchange to be availed, in that case, a fresh application under the OGLS Act should be filed by the petitioner concerned. As to petitioner Nos. 6 to 8, according to Mr. Rout, learned AGA for the State, even though they are stated to be landless persons but the land in occupation since found to be recorded as ‘Gochar’, it cannot be settled with them. In response to the above, Mr. Mishra, Senior Advocate appearing for the petitioners submits that since there has been pendency of proceedings in Revision Case Nos. 17, 18, 20 and 21 of 2019 and the matter with respect to exchange of land, the fact which is admitted in view of the information supplied vide Anenxure-5 series to the rejoinder affidavit and admission of the State that petitioner Nos. 6 to 8 to be landless persons, in such view of the matter, the action under Annexure-1 and issuance of eviction notices vide Annexure-4 series cannot be sustained and justified. 5. Gone through the copies of the orders under Annexure-2 series. It is claimed referring to Annexure-2 series that petitioner Nos.1 to 4 have approached opposite party No.2 and L.E. Revision Case Nos.17, 18, 20 and 21 of 2019 have been filed by them, wherein,the authority hasobserved that it shall not be proper on part of the lower courts to take any coercive measure till further orders. It is submitted by Mr. Mishra, learned Senior Advocate for the petitioners that the said revision proceedings are still pending. When such proceedings in revision are stated to be pending which is not in dispute, the Court is of the considered view that the eviction notices as against petitioner Nos.1 to 4 shall Page 3 of 6 have to be set aside paving the way for disposal of the same with a decision in connection with L.E Case Nos. 397,404,394 and 402 of 2016-17. 6. In so far as petitioner No.5 is concerned, it is prima facie revealed from Annexure-5 series to the rejoinder affidavit and also Annexure-3 series to the writ petition that an exchange has been applied for by him and it has been processed. Considering the fact that the record is not traceable which is also made to appear from Annnexure-5 series with the information supplied that decision on exchange shall be informed once the record is traced out, the Court is also of the considered view that the impugned action vide Annexure-4 series should not have been resorted to. In fact petitioner No.5 has approached the authority concerned for exchange of his privately owned plot with the Government land in occupation and in view of the application so moved and stated to be pending even though the record is not traceable which can be reconstructed, the Court is of the humble view that a decision thereon should also be taken at the earliest.Having said that, the action against petitioner No.5 on the basis of eviction notices vide Annexure-4 series as well is to be held as not according to law. 7. With respect to the action vis-à-vis petitioner Nos. 6 to 8, considering the counter affidavit, wherein, it has been admitted them to be landless persons, without providing an opportunity to respond as the claim is that such possession is more than thirty years old and hence, eligible and entitled for its settlement in terms of Sections 7 and 8-A OPLE Act, the Court is of the further view that such opportunity should be provided and hence, the Page 4 of 6 impugned noticesunder Annexure-4 series are liable to be set aside. 8. The objection of learned counsel for opposite party No.5 is noted down which is to the effect that petitioner Nos. 6 to 8 are no landless persons. The said aspect is to be examined and can be adjudicated upon provided notices served upon the said petitioners by opposite party No.4 and thus, may be duly taken care of in accordance with law. 9. In fact, this Court in W.P.(C) No. 1460 of 2023 directed consideration of the representation submitted by opposite party No.5 but as it appears, without taking cognizance of the above facts regarding pendency of revision proceedings etc., action was taken straightaway as if the direction was to evict the petitioners. Even in respect of petitioner Nos. 6 to 8, opposite party No.4 was required to follow due process of law. Hence, for above reasons, the Court is inclined to intervene and interfere with the impugned action under Annexure-4 as the same is not as per and in accordance with law. With the above conclusion, the Court is of the view that the impugned action under Annexure-1 followed by Annexure-2 series for the reason stated above cannot be sustained in law and thus,liable to be set aside with consequential directions. 10. Hence, it is ordered. 11. In the result, the writ petition stands allowed. As a necessary corollary, the impugned decision under Annexure-1 and Annexure-4 series is hereby set aside with a direction to opposite party No.2 to ensure early disposal of the proceedings in L.E. Page 5 of 6 Revision Case No. 17, 18, 20 and 21 of 2019 preferably within a period of six weeks from the date of receipt of a copy of this order. It is further directed that the proceeding with regard to exchange of the land having being applied by petitioner No.5, the same shall also be duly considered by opposite party No.4 earnestly. As regards petitioner Nos. 6 to 8, it is directed that in case of any eviction and demolition declared, notices shall be served on them by opposite party No.4 and thereafter to consider the settlement which is claimed in terms of the provisions of OPLE Act and then to proceed and dispose of the matter according to law within the above stipulated period which shall be examined with the participation and objection of opposite party No.5. 12. A copy of the order be handed over to Mr. Rout, learned AGA for the State for its onward intimation to the authorities below for early compliance. (R.K.Pattanaik) Judge Rojina Signature Not Verified Digitally Signed Signed by: ROJINA SAHOO Designation: Junior Stenographer Reason: Authentication Location: OHC, CTC Date: 02-Nov-2023 12:02:43 Page 6 of 6