The High Court
Case Details
IN THE HIGH COURT OF ORISSA AT CUTTACK W.P.(C) No.35296 of 2023 Goutam Prasad Petitioner Ms. Deepali Mahapatra, Advocate …. -Versus- State of Odisha and others …. Opposite Parties Mr. P.K. Rout, AGA W.P.(C) No.26015 of 2023 Pradip Chandra Das Petitioner Mr. Biswambar Mohanty, Advocate …. -Versus- State of Odisha and others …. Opposite Parties Mr. P.K. Rout, AGA W.P.(C) No.17835 of 2023 Suresh Chandra Panda and others …. Petitioners Ms. Deepali Mahapatra, Advocate -Versus- State of Odisha and others ….
Legal Reasoning
Opposite Parties Mr. P.K. Rout, AGA W.P.(C) No.26599 of 2023 Suvendu Das Petitioner Mr. Biswambar Mohanty, Advocate …. -Versus- State of Odisha and others …. Opposite Parties Mr. P.K. Rout, AGA Page 1 of 9 W.P.(C) No.27374 of 2023 Anup Kumar Gupta and another Petitioners Ms. Deepali Mahapatra, Advocate …. -Versus- State of Odisha and others …. Opposite Parties Mr. P.K. Rout, AGA W.P.(C) No.31327 of 2023 Saraswati Beriha Petitioner Ms. Deepali Mahapatra, Advocate …. -Versus- State of Odisha and others …. Opposite Parties Mr. P.K. Rout, AGA CORAM: JUSTICE R.K. PATTANAIK DATE OF JUDGMENT:01.02.2024 1. Since the issue involved is common, all the writ petitions, wherein, eviction of the petitioners and demolition of structures standing over the schedule land at the behest of Sambalpur Municipal Corporation is under question, stand disposed of by the following order. 2. The writ petitions have been filed by the petitioners challenging the demolition drive so declared by the Sambalpur Municipal Corporation. The plea of the petitioner in W.P.(C) No.35296 of 2023 is that the schedule land is in possession of his family for more than 60 years. It has been pleaded therein that in and around Burla town, since there were large numbers of encroachments of the Government land, the then Collector, Sambalpur intimated the Government vide Annexure-1 for Page 2 of 9 framing of a set of rules, whereafter, the Revenue Department through Annexure-2 instructed the local authority to prepare a list of encroachers so that the lands may be settled with them subject to eligibility and in that regard, notification was issued vide Annexure-3. It is claimed by the petitioner therein that his ancestors settled down in Burla town to earn livelihood and occupied the schedule land, constructed residential house over the same and till date, he is in possession of the same and in support of possession, documents as at Annexure-5 series are cited. It is also pleaded that the local Tahasildar in the year 2009, considering the grievance of one of the occupants, referred the matter to the Deputy Collector, Sambalpur later to which notification vide Annexure-4 was issued for survey and settlement of the land situate in Burla town which is yet to commence, inasmuch as, the settlement operation is still to begin even after 23 years. Against the aforesaid said backdrop, the contention of the said petitioner is that ignoring the long possession of the schedule land, Sambalpur Municipal Corporation announced his eviction and demolition of the structure standing over the land by loud speaker which is unjust and illegal. In other cases, as it is made to suggest, the action is challenged primarily on the ground that there has been no proper notice which is absolutely necessary. In W.P.(C) No. 26015 of 2023, by way of a rejoinder, it is pleaded by the petitioner that since action initiated under the OPLE Act, wherein, settlement of the land in question in his favour as per Section 8-A of the said Act is claimed on the strength of possession being more than 30 years, eviction could not have initiated by the Sambalpur Municipal Corporation and that too, without following due process of law and hence, the impugned notice therein at Annexure-7 is illegal. 3. Heard learned counsel for the petitioners and Mr. Rout, learned AGA for the State. Page 3 of 9 4. Ms. Mohapatra, learned counsel for the petitioners in W.P.(C) Nos. 35296,17835,27374 and 31327 of 2023 would submit that the action at the instance of the Sambalpur Municipal Corporation is highly objectionable as eviction and demolition is decided without a proper notice issued. It is alleged that the Sambalpur Municipal Corporation in colorable exercise of power and with high handedness declared eviction through mike announcement which is likely to result in demolition of residential buildings standing over the schedule lands, which manifests an action dehors due process of law and in clear violation of Article 300-A of Constitution of India. It is contended that as the law is well settled, even an encroacher has a right and he cannot be evicted without an opportunity of hearing and following due procedure established under law. However, in the cases at hand, as according to Ms. Mohapatra, the opposite parties and in particular, Sambalpur Municipal Corporation without prior intimation or proper notice and an opportunity of hearing, declared the demolition. The learned counsels for other petitioners advanced argument by claiming that the action of the Sambalpur Municipal Corporation is in flagrant violation of the principles of natural justice. 5. Mr. Rout, learned AGA for the State, however, submits that the action at the instance of the Sambalpur Municipal Corporation was by a public announcement for eviction and demolition, which is in accordance with law. Mr. Guru, learned counsel for the Sambalpur Municipal Corporation referring to the counter affidavit contends that the petitioners are the encroachers in respect of the lands and much prior to demolition declared, announcement was made through public address system. It is claimed that since the encroachment is over a large extent of Government land, it was impossible to issue individual notice and therefore, alternative arrangement through mike announcement Page 4 of 9 was made. It is also contended that in the meantime, office of the Superintending Engineer, Sambalpur (R&B) Division No. II has issued work order for improvement of road under the State Plan to be completed within a period of six months with an agreement executed vide Annexure-A/3. It has been pleaded by the Sambalpur Municipal Corporation that the aforesaid work is a part of four lane link road from PC bridge (from the side of VISSUT) running up to Railway Over Bridge at the NH side which is with regard to expansion of road with 22 metres wide as against 17 metres width at present available without any amenities like drain, foot path, parking space etc. and in so far as the schedule lands are concerned, it is to fall within the development project to be undertaken, therefore, the petitioners being the encroachers are liable to be evicted, hence, the mike announcement was made. While opposing the contention of Mr. Guru, it is further submitted by Ms. Mohapatra that such long possession of the schedule lands cannot be ignored and proper notice in writing is necessary. It has been brought to the notice of the Court by Ms. Mohapatra that one of the petitioners in W.P.(C) No. 17835 of 2023 has approached the local civil court with a suit filed in C.S No.14 of 2023 pending before learned Civil Judge (Junior Division), Sambalpur. In essence, considering the pleadings on record, the contention revolves around and with a plea of the petitioners as to absence of proper notice. In fact, while opposing demolition, reference has been made to the provisions of the OPLE Act and Sections 7 thereof. It is also claimed that the Odisha Public Premises (Eviction of Unauthorized Occupants) Act would apply since the impugned action is in relation to alleged unauthorized occupation vis-à-vis public premises admittedly situate within the jurisdiction of the Sambalpur Municipal Corporation. Page 5 of 9 6. So far as Section 7 of the OPLE Act is concerned, in case of proceeding initiated by the Tahasildar, any person unauthorizedly occupying shall be liable to assessment under Section 4 and summarily evicted, which shall be preceded by a reasonable notice to remove the encroachment, however, notwithstanding any such eviction, the land may be settled with him provided he is considered to be a landless/homesteadless with the rider applicable or being in possession for more than 30 years, in view of Section 8-A thereof. Furthermore, it is stipulated therein that any such land in unauthorized occupation situate within a Municipality or a Notified Area Council, settlement of the land with such person shall be made with a reference to the Sub- Divisional Officer. 7. A common ground has been raised by Ms. Mohapatra and other learned counsels appearing for the petitioners that proper notice is necessary and eviction and demolition declared through loud speaker is not a statutory compliance and hence, the action is without following due process of law. The petitioners in W.P.(C) No.17835 of 2023 have knocked the doors of the local civil court with Sambalpur Municipal Corporation as one of the defendants, wherein, title has been claimed and for a declaration in respect of the land with permanent injuction against all the defendants. Whether any such right, title and interest over the land in question may be declared in favour of the said petitioners is a matter to be examined by the learned civil court and hence, it needs no comment. The grievance (with additional grounds by some) of all the petitioners is primarily challenging the mike announcement for eviction to be not proper and sufficient compliance. In fact, eviction and demolition was announced by the Sambalpur Municipal Corporation which appears to be on the requisition of the local Administration in order to accomplish a project involving improvement of road. The issuance of work Page 6 of 9 order with the execution of agreement is revealed from the letter dated 28th October, 2022 of the Executive Engineer, Sambalpur (R&B) Division No-II as at Annexure-A/3 of the counter affidavit with the dates of commencement and completion to be 29th October, 2022 and 28th April, 2023 respectively. In so far as, Annexures-1, 2 and 3 filed in W.P.(C) No.35296 of 2023 are concerned, there is no material on record from the side of the State to show as to if any progress was achieved since suggestion was made by the Collector long back in 2002 for framing of special set of rules to settle the lands in favour of the encroachers, who are in huge number on the premise that the existing provisions of OPLE Act or OGLS Act would not be sufficient to address the problem in Burla town. The Court is not aware of the rights of the petitioner in W.P.(C) No.35296 of 2023 since his possession over the schedule land is claimed from the time of construction of Hirakud Dam. The fact of the matter is, the schedule lands belong to the State Government. There has been no material on record to show and satisfy the Court that any of the petitioners to be entitled to settlement in respect of the lands for respective possessions in absence of rights having been declared with any such processes or exercise ever undertaken even after passage of considerable period of time. In view of the recent decision with the execution of agreement with the issuance of work in respect of a development project, without expressing anything on merits vis-a-vis individual rights, the Court is of the conclusion that before any such action is initiated with notice served, reasonable time should be allowed to react and respond. According to the Court, it would be fair and equitable to provide a breathing space for the petitioners to respond before any such eviction and demolition with notice issued as per law. Of course, the aforesaid exercise would be without prejudice to the rights of the petitioners to avail such other remedy under law. In other Page 7 of 9 words, the Court holds that the Sambalpur Municipal Corporation shall have to proceed providing a reasonable time leaving the petitioners to peruse such other remedy including an opportunity to submit before the authority issuing the notice, a presentable and satisfactory explanation to avoid demolition. As to the contention that the action ought to be as the OPP Act or rights decided under the OPLE Act and not under the Odisha Municipal Act, the Court is of the conclusion that the respective laws operate independently and mutually exclusive in nature and the authority for the Sambalpur Municipal Corporation to proceed and remove encroachment is in no way denuded or trampled but shall have to be exercised in all fairness and in accordance with law. 8. With the above conclusion, the Court, being aware of the settled legal position that Article 21 of the Constitution of India commands that no one shall be deprived of life and personal liberty except according to the procedure established by law and the dictum of the Apex Court in Maneka Gandhi Vrs. Union of India AIR 1978 SC 597 which expanded the scope of procedure established by law by a ruling that such procedure has to be fair, just and reasonable and not fanciful, oppressive or arbitrary thereby introducing the principle of procedural due process and keeping in view the significance of it and the fact that impugned action against the petitioners is certainly to affect their right to livelihood which is an integral part of right to life as highlighted upon in Olga Tellis and others Vrs. Bombay Municipal Corporation and others 1985 SCC(3) 545 and the moral code of conduct which emanates from the Universal Declaration of Human Rights and since some of the aspects are to be taken care of before the demolition drive, considers it apposite to impart the following directions, such as: (i) irrespective of the earlier notice, the Sambalpur Municipal Corporation shall issue notice in the Page 8 of 9 manner prescribed under law leaving the petitioners a clear 15 (fifteen) days time to respond; (ii) within the above stipulated period, the petitioners shall avail all such remedy as available to them under law in order to safeguard their individual interest and may even approach the authority having issued the notice with presentable and satisfactory explanations against demolition;(iii) the Sambalpur Municipal Corporation taking cognizance of any such explanations, on expiry of the notice period, shall proceed in accordance with law; and (iv) above all, the entire exercise shall be undertaken keeping in view the spirit of the law. 9. Hence, it is ordered. 10. In the result, the writ petitions stand disposed with the directions as aforesaid. (R.K. Pattanaik) Judge Rojina Signature Not Verified Digitally Signed Signed by: ROJINA SAHOO Designation: Junior Stenographer Reason: Authentication Location: OHC, CTC Date: 07-Feb-2024 13:45:56 Page 9 of 9