The High Court
Case Details
IN THE HIGH COURT OF ORISSA AT CUTTACK W.P.(C) No.21106 of 2023 & W.P.(C) No.33429 of 2020 Krushna Chandra Mohapatra & others …. Petitioners Ms. Deepali Mahapatra, Advocate -Versus- State of Odisha & others …. Opposite Parties Mr. P.K. Rout, AGA Mr. Dayananda Mohapatra, Advocate for O.P. No.2 Mr. Gouri Mohan Rath, Advocate for O.P. No.5 Mr. N.P. Parija, Advocate for intervenor CORAM: JUSTICE R.K. PATTANAIK DATE OF JUDGMENT:06.05.2024 1. Both the writ petitions since relate to a common subject matter and dispute concerning the parties are hereby disposed of by the following order. 2. (i) In W.P.(C) No.21106 of 2023, the petitioners have moved this Court for a direction to the opposite parties to act upon the joint measurement held on 17th April, 2018 ignoring the subsequent report dated 28th April, 2023 and to ensure implementation of order dated 22nd August, 2016 under Annexure-2 on the grounds stated therein; and (ii) in W.P.(C) No.33429 of 2020 demands for an order for opposite party Nos.1 to 3 to carry out demolition of illegal structure put up by Page 1 of 11 opposite party Nos.4 to 8 over Hal plot No.602, Khata No.595 and Hal plot No.606, Khata No.250 of the concerned Mouza within a stipulated period. 3. So to say, the petitioners alleged encroachment in respect of the plots in question while claiming opposite party No.5 in W.P.(C) No.21106 of 2023 to have raised structures, such as, building and A.C.C. shed over plot No.606 which is being used as a road and also to remove similar structure from over Hal plot No.602 evicting therefrom opposite party Nos.4 to 8 in W.P.(C) No.33429 of 2020 of the concerned Mouza. The contention of the petitioners in the second matter is that the order of demolition dated 22nd August, 2016 was passed in U.C. Case
Legal Reasoning
No.174 of 2015 and the same has been confirmed in Appeal No.27 of 2017 and hence, therefore, the encroachment from Plot Nos.602 and 606 are to be removed and cleared. In the first matter, a demarcation was held on 28th April, 2023, the fact which has been disputed by the petitioners. The further contention is that in the said case, eviction and demolition is required to be carried out as per the measurement dated 17th April, 2018, later to which, the order of demolition in U.C. Case No.172 of 2015 in a proceeding under Section 91(1) of the Odisha Development Authorities Act was confirmed in appeal. It is alleged by the petitioners that the Cuttack Development Authority (CDA) was not directed to hold any such measurement pursuant to the order in W.P.(C) No.30805 of 2022 which was disposed of to consider the representation received from the petitioners. The grievance of the petitioners is that further measurement was not necessary and was never the direction of this Court in the said matter but with an intention to support opposite party No.5 in W.P.(C) No.21106 of 2023, it was held. Page 2 of 11 The petitioners allege encroachment of a road/passage and hence, demand for removal of the same implementing the order in U.C. Case No.174 of 2015, the same having been confirmed in Appeal No.27 of 2016 ignoring any such joint measurement report dated 20th April, 2023 and likewise with respect to the other matter arising out of U.C. Case No.172 of 2015.
Legal Reasoning
4. Heard Ms. Mahapatra, learned counsel for the petitioners, Mr. Rout, learned AGA for the State, Mr. Mohapatra, learned counsel for opposite party No.2-CDA, Mr. Rath, learned counsel for opposite party No.5 and Mr. Parija, learned counsel for the intervenor. 5. Ms. Mahapatra, learned counsel for the petitioners submits that on a complaint received from the petitioners, the proceeding in U.C. Case No.172 of 2016 was initiated with a direction to the CDA Amin to conduct an enquiry and submit a report which was accordingly held, a report was received disclosing illegal construction to have been made encroaching the road land without obtaining approval of the CDA. It is further submitted that opposite party No.5 in W.P.(C) No.21106 of 2023, after receiving notice on the complaint, filed show cause reply on 24th June, 2016 and after hearing both the sides by order dated 22nd August, 2016 (Annexure-2), direction was issued to the demolish the entire structure within a month by him failing which the CDA to take action. Ms. Mahapatra further submits that opposite party No.5 preferred an appeal to the Government in Appeal No.26 of 2016. It is brought to the notice of the Court that in so far as the action initiated against the other encroachers, namely, opposite party Nos.4 to 8 in W.P.(C) No.33429 of 2020 is concerned, the same is in respect of U.C. Case No.174 of 2015 and confirmed in Page 3 of 11 Appeal No.27 of 2016. It is further submitted that the said proceeding in Appeal Case No.26 of 2016 was disposed of by order under Annexure-3, wherein, direction was issued for a joint measurement, which was held on 17th April, 2018 with a report (Annexure-3/1) received. As against the said order in appeal, opposite party No.5 moved this Court in W.P.(C) No.22293 of 2017 but the same was dismissed for non-prosecution by an order under Annexure-4. In the meantime, according to Ms. Mahapatra, W.P.(C) No.28747 of 2019 was filed and disposed of on 8th January, 2020 with a direction to the CDA to carry out the order in U.C. Case No.172 of 2015 as against which W.A. No.703 of 2020 was filed and followed by an order dated 25th November, 2020 (Annexure-5) and subsequent thereto after an order in Review Petition No.19 of 2021, the writ appeal was heard afresh
Decision
and disposed of by order under Annexure-8 due to the pendency of Appeal Case No.18 of 2020 filed under the Amnesty scheme. Furthermore, it is submitted that the said appeal was disposed of and dismissed by order under Annexure-9, later to which, the petitioners approached the CDA to demolish the illegal construction. It is pleaded that the petitioners approached the CDA with a representation i.e. Annexure-10 to implement the order under Annexure-2 and since the encroachment was not removed, W.P.(C) No.30805 of 2022 was filed which led to the order with a direction to opposite party No.4 to dispose of the representation dated 12th October, 2020 and thereafter, again A measurement was held, which was unwarranted. With respect to W.P.(C) No.33429 of 2020, as earlier stated and according to Ms. Mahapatra, similarly action under Section 91(1) of the Odisha Development Authorities Act was initiated vide U.C. Case No.174 of 2015 and in the said proceeding, inquiry was held, which again Page 4 of 11 revealed the alleged encroachment and the same was followed by an order in appeal confirming the encroachment and also demolition of the illegal construction. So, therefore, Ms. Mahapatra would therefore submit that in both the cases, the alleged encroachment since has not been removed, the CDA authorities are to ensure it. 6. Mr. Mohapatra, learned counsel for CDA referring to the counter affidavit in W.P.(C) No.21106 of 2023 submits that latter to the joint demarcation held on 17th April, 2018, necessary action was taken with a demolition drive dated 24th November, 2020. In fact, such submission by Mr. Mohapatra is with reference to Annexure-B/4 to the counter affidavit filed therein. It is further submitted by Mr. Mohapatra that complete demolition could not materialize in view of pendency of R.P. Case No.3647 of 1994 as any such decision in the revision may change its field position concerning the plots. Mr. Mohapatra submits that the decision of the Revisional Authority is needed to ascertain the actual situation of the plots and only thereafter it would enable the CDA to take up demolition. 7. Mr. Rath, learned counsel for opposite party No.5 in W.P.(C) No.21106 of 2023 referring to the counter affidavit filed submits that the petitioners have not disclosed the true state of affairs and while claiming so, it is pleaded that plot Nos.602 and 606 stood recorded as private plots in the last settlement and in so far as, opposite party No.5 is concerned, he purchased Ac.0.080 decimals from Plot No.603 in the year 1981 and constructed house over the same and also using it to run a SSI Unit. It is further pleaded that Plot Nos.601, 602, 603 and 606 correspond to Sabik Plot Nos.459 and 460 recorded in the name of one Page 5 of 11 Druba Charan Pasayat and others. It is also pleaded on record that the vendors through the original recoded tenant have occupied respective purchased lands much prior to the coming into force of the Odisha Development Authorities Act and in course of time, the concerned Mouza was amalgamated with the Municipality and since the other land owners whose lands fall to the north of the disputed plots were alienated in favour of the purchasers by illegally showing the road left by the vendor of opposite party No.5, the petitioners without verifying the settlement record and taking advantage of such a situation, demand a right of easement over and in respect of private land. With other facts pleaded, Mr. Rath, learned counsel for opposite party No.5 finally submits that demolition of any such structure over the alleged plots, under the circumstances narrated above, could not have been resorted to by the CDA, 8. Mr. Parija, learned counsel for the intervenor submits that the petitioners do not have any locus standi after action has been initiated according to the provisions of the Odisha Development Authorities Act and furthermore, the recorded owners in respect of Plot Nos.602 and 606 have not been made parties, as any such decision on the subject matter is likely to affect them. In other words, according to Mr. Parija, in absence of the recorded owners, no orders can be passed behind their back. Referring to the order of this Court in W.P.(C) No.22558 of 2017 dated 28th January, 2019, Mr. Parija would further submit that a direction was issued to measure the land with the assistance of Revenue Authorities in presence of both the sides and such measurement shall be by considering existing and non-existing map and any such other documents relevant for the purpose but despite such an order (Annexure-A), no such measurement was ever held. Page 6 of 11 9. It is claimed that the subject matter in dispute is sub-judice in R.P. Case No.3647 of 1994, in respect of which, a direction was issued in W.P.(C) No.37866 of 2021 to the Additional Commissioner, Settlement and Consolidation Odisha, Cuttack for its expeditious hearing and early disposal and unless a decision is arrived at by the said authority, the CDA would be unable to undertake demolition. 10. To reaffirm the facts, in W.P.(C) No.21106 of 2023, the petitioners in demand implementation of the order (Annexure-2) in U.C. Case No.172 of 2015. The unauthorized encroachment is alleged against opposite party No.5 therein. It is admitted that order in U.C. Case No.172 of 2015 was confirmed for the alleged unauthorized construction by opposite party No.5 and hence, demolition was directed. As earlier stated, the said order was challenged by opposite party No.5 in U.C. Appeal No.26 of 2016 but was of no avail. In the meanwhile, opposite party No.5 filed in W.P.(C) No.22293 of 2017 which was disposed of vide Annexure-4 for non-prosecution. The petitioners then filed W.P.(C) No.28747 of 2019 for execution of Annexure-2 and it was disposed of by order dated 22nd August, 2016 as against which W.A. No.703 of 2020 was filed and the order passed therein was recalled in Review Petition No.19 of 2020 vide Annexure-6. By order in CMP No.481 of 2019, the matter in W.P.(C) No.22293 of 2017 was restored to file and after an analogous hearing with W.P.(C) No.28747 of 2019, a common order was passed on 5th January, 2022 with a direction to maintain status quo till the appeal by opposite party No.5 to regularize the deviation is considered and disposed of. Page 7 of 11 11. In fact, in course of hearing, it is brought to the notice of the Court by Ms. Mahapatra, learned counsel for the petitioners that the request for regularization of unauthorized construction in Appeal No.18 of 2020 was disposed of and rejected by order dated 19th September, 2022 (Annexure-9). As is revealed, the petitioners obtained order dated 12th January, 2023 (Annexure-11) in W.P.(C) No.30805 of 2022 for consideration of representation submitted by them, whereafter, the CDA Authority ignoring the earlier measurement proceeded to have a fresh one inspite of absence of any such direction by this Court. In respect of the encroached road, as earlier discussed, opposite party Nos.4 to 8 in W.P.(C) No.33429 of 2020 as the encroachers, a proceeding in U.C. Case No.174 of 2015 was initiated with an order of demolition was passed therein. In the meanwhile, the said opposite parties filed Misc. Case No.7 of 2020 in R.P. Case No.3647 of 1994 disposed earlier for reduction of the area of the road from Ac.0.03 decimal to Ac.0.02 decimal, however, thereafter, the order was recalled at the instance of the petitioners, who filed Misc. Case No.21 of 2020 thereby restoring the order in Mutation Case No.1914 of 1994 arising out of R.P. Case No.3647 of 1994. It is also brought to the notice of the Court by Ms. Mahapatra, learned counsel for the petitioners that R.P. Case No.166 of 2020 was disposed of on 21st March, 2023 by an order of the learned Additional Commissioner, Settlement and Consolidation, Board of Revenue, Odisha with a direction to the Tahasildar, Cuttack Sadar to conduct a field enquiry and ascertaining physical possession and verifying the Hal and Sabik settlement records, to act accordingly and as per law. As a matter of fact, the petitioners approached the Authority in revision under Section 15(b) of the Odisha Survey and Settlement Act for Page 8 of 11 correction of Hal RoR and recording Plot No.606 area of Ac.0.04 decimal under Hal Khata No.250 either in favour of them or the State Government with kisam ‘road’ on the basis of the field position, measurement, character of land, which is used as a passage by the public. Apart from opposite party No.5, opposite party No.4 in W.P.(C) No.33429 of 2020 filed IA No.12937 of 2023 to implead himself as one of the opposite parties as per Order I Rule 10 CPC by claiming that the petitioners are in no way concerned with Plot Nos.602 and 606 and with respect to Plot No.602, the same is a private passage enjoyed by him and others co-sharers. Mr. Parija, learned counsel for intervenor would submit that the Court’s order in W.P.(C) No.22558 of 2017 and directions issued therein have not been complied with, inasmuch as, no measurement was held on 15th March, 2019 in the presence of the intervenor. According to the measurement held on the said date with a report that in 1973-74, there was no road and the same alleged to have been made without Sabik and Hal map and in the report, Plot No.602 was inserted later on and the same is clearly visible. 12. Though, in W.P.(C) No.33429 of 2020, this Court observed that the decision on removal of encroachment depends on the result in R.P. Case No.3647 of 1994, however, in course of hearing, it is revealed that the order in Misc. Case No.7 of 2020 passed therein on 28th July, 2020 was challenged by the petitioners in Misc. Case No.21 of 2021 disposed of on 1st August, 2023, whereby, the original order in revision and corresponding Mutation Case No.1914 of 1994 was restored with reference to Hal Plot No.602. In fact, R.P. No.3647 of 1994 was disposed of and long thereafter, Misc. Case No.7 of 2020 was filed followed by necessary correction as to the area of Hal Plot No.602 reduced Page 9 of 11 by Ac.0.01 decimal but subsequently, corrected restoring it to Ac.0.03 decimal as originally directed in Mutation Case No.1914 of 1994. With the aforesaid development having taken place and in the meantime, the petitioners having obtained an order in R.P. No.166 of 2020, when on the one hand, encroachment and unauthorized construction is alleged against opposite party No.5 and on the other hand, the same is denied and as there has been inconsistent reports on measurement held twice, in order to resolve the dispute and considering the claim of the intervenor, namely, opposite party No.4 in W.P.(C) No.33429 of 2020 that the measurement pursuant to the order in W.P.(C) No.22558 of 2017 was not held in his presence on 15th March, 2019 and since the interest of other land owners is alleged to be involved, the Court is of the humble view that a fresh and final demarcation is necessary taking cognizance of the orders passed by the Revisional Authority with respect to Plot Nos.602 and 606. Though, a measurement was held on 17th April, 2018 later to the Court’s order in W.P.(C) No.30805 of 2022 but the same since found to be not consistent with the measurement held in 2023, there is a need for a fresh measurement in respect of the alleged plots, an exercise which is to be undertaken by the CDA Authority. Since on a similar cause of action, the proceeding in U.C. Case No.174 of 2015 was initiated and likewise, confirmed in U.C. Appeal No.27 of 2016 against opposite party Nos.4 to 8 in W.P.(C) No.33429 of 2020 and dispute revolves around the plots in question and particularly, with regard to the land alleged to be used as a public road or has become a road used by the local land owners, in regard to which, an order in R.P. No.166 of 2020 dated 21st March, 2023 is on record, such fresh demarcation is really necessary in order to facilitate the CDA Authority to act Page 10 of 11 upon any such encroachment and unauthorized construction though there has been on order of this Court in CMP No.198 of 2021. In course of such fresh measurement, if in case, it is brought to the notice of the CDA with regard to claim by any of the parties regarding any such proceeding(s) initiated or pending before the Settlement Authority for correction of RoR and corresponding map, it shall be duly taken judicial notice of. However, in absence of any such challenge to the revenue record, the CDA Authority shall do well to ensure the fresh measurement with notice to all the parties who are to be affected thereby and to accomplish it within the time stipulated. 13. Hence, it is ordered. 14. In the result, the writ petition in W.P.(C) No.21106 of 2023 stands disposed of with a direction to opposite party Nos.2 to 4 for a fresh measurement in respect of the alleged plots. Likewise, the other writ petition in W.P.(C) No.33429 of 2020 is disposed of with a similar direction concerning the plots involved. It is directed that the CDA Authority shall, unless there is any legal impediment, undertake such measurement with the assistance of the local revenue authorities in presence of both the sides including the intervenor and such other land owners and to conclude the same at the earliest preferably within a period of ten weeks from the date of receipt of a copy of the above order. 15. In the circumstances, however, there is no order as to costs (R.K. Pattanaik) Judge Signature Not Verified TUDU Digitally Signed Signed by: THAKURDAS TUDU Designation: Sr. Stenographer Reason: Authentication Location: OHC,CTC Date: 14-May-2024 18:28:38 Page 11 of 11