Orissa High Court
Sawarmal Pasari & 4 Others vs State Of Odisha & 7 Ors. on 6 September, 2014
Author: Amitava Roy
Bench: Amitava Roy
IN THE HIGH COURT OF ORISSA : CUTTACK
W.P.(C) No. 20431 of 2012
In the matter of an application under Articles 226 and 227
of the Constitution of India.
----------------
Sawarmal Pasari & 4 others ..... Petitioners
-Versus-
State of Odisha & 7 ors. .... Opp.Parties.
For the petitioner ... Mr. N.K.Sahu
For the opp.parties ... Mr. J.P.Patnaik
(Addl.Govt. Advocate)
PRESENT:
THE HONOURABLE CHIEF JUSTICE MR. AMITAVA ROY
AND
THE HON'BLE DR. JUSTICE A.K.RATH
----------------------------------------------------------------------------------------
Date of Judgment : 06.09.2014
-------------------------------------------------------------------------------
AMITAVA ROY, C.J. The instant proceeding witnesses a second bout on the
issue of alleged unauthorised construction of a building undertaken
by the opposite party no. 7 and 8 herein by encroaching public road
situated in the middle of Bargarh town. According to the petitioners,
plot no. 4685 with area of Ac. 0.010 dec. and plot no. 4687 with area
of Ac. 0.030 dec. in M.S.Khata No. 7 are recorded in the kissam
-2-
"Sadaka" in the name of the Works Department of the State in the
R.O.R. Similarly, plot no. 4686 of area Ac. 0.020 dec. in M.S. Khata
No. 2535 is recorded in the kissam "Meladhia" with the status
Sarbasadharan in the R.O.R. The aforementioned land was included
for laying of the National Highway No. 6 in the year 1948 and
eventually a portion thereof was allotted to the Bargarh Municipality
as in the year 1975, the alignment of the National Highway was
altered. Thus, since then, the Bargarh Municipalaity has been
custodian of the said land.
2. The petitioners have asserted that the public road from
Talipada to Bhainipada of Bargarh town joins the National Highway in
Ward No.4 of Bargarh town and the junction point of these three roads
is located over Major Settlement plot no. 4685, 4687 and 4686. They
have alleged that in the year 2004, one Deepak Kumar Agarwala
(opposite party no.7) and Kamal Kumar Agarwalla started raising
permanent construction by encroaching upon the three plots
whereupon the general public being represented by one Naba Krushna
Mohapatra approached the territorial Tahasildar and the said
authority started Encroachment Case No. 1436 of 2005 and deputed a
local R.I. to conduct a field enquiry and submit a report. On the said
report being submitted, the Tahasildar passed an order on 8.11.2005
issuing notice to the encroachers to show cause as to why a case
under Section 6, 7 and 8 of the Orissa Prevention of Land
Encroachment Act, 1972 would not be initiated against them.
-3-
Prohibitory order was also passed by the Tahasildar, Bargarh directing
them to stop construction on the land. Thereafter, the authorities
concerned became lukewarm in the matter so much so that while the
encroachment proceeding was pending, opposite party no. 7 and 8
applied to the Special Town Planning Authority as well as Municipal
Authority seeking permission for construction of
Residential /Commercial building over the land on the basis of some
prepared documents. The petitioners have admitted that the Town
Planning Authority thereafter granted license vide order dated
20.8.2005 and the Executive Officer, Bargarh Municipality also
granted permission to them for construction over the disputed plots by
office order no. 77/05-1968 dated 20.9.2005. A representation was
submitted by the local public ventilating their grievance on this issue
whereupon the Tahasildar conducted an enquiry and being satisfied
that the opposite party no. 7 and 8 had furnished incorrect
information with regard to ownership of the land vide order dated
3.1.2006 cancelled the license earlier granted to them. Vide order
dated 20.4.2006, the Executive Officer, Bargarh Municipality also
cancelled the permission granted to the opposite party for raising
construction. However, notwithstanding these, the unauthorized
constructions were not removed and no steps to that effect were also
taken by the public authorities. According to the petitioners, being
aggrieved, the local public on 3.6.2006 submitted a representation
before the Executive Officer, Bargarh Municipality whereupon
-4-
according to them, it (Bargarh Municipality) issued notice under
Section 273(a) of the Orissa Municipality Act, 1950 being notice no.
1502 dated 30.6.2006 directing the opposite party no. 7 and 8 to
demolish unauthorized construction over plot no. 4685, 4686 and
4687 of mouza Bargarh. This fact was also communicated to the
Collector, Bargarh vide its letter no. 1664 dated 7.7.2006. As in spite
of this initiative, demolition of the unauthorized construction was not
effected, Naba Krushna Mohapatra, a local resident approached this
Court in WPC No. 13652 of 2006 seeking appropriate writ/direction to
the District Collector, Tahasildar, Bargarh and Executive Officer,
Bargarh Municipalaity to cause demolition of such unauthorized
constructions.
3. In the said proceeding, the Tahasildar, Bargarh in his
counter averred that the plot no. 4685 and 4687 had been recorded in
the name of Public Works Department and he pleaded that no
construction was going on over the plots and that the unauthorized
buildings thereon were of one Ram Avtar Agarwal for which
Encroachment Case under Orissa Prevention of Land Encroachment
Act, 1972 had been initiated against the encroachers which was
pending in the court of Sub-Collector, Bargarh. The answering
opposite party admitted as well that the permission given by the Town
Planning Authority and the Municipal Authority for the constructions
had been cancelled. He further averred that due to the protest of the
local people, Municipal Authority had taken action for demolishing the
-5-
building and that notice to that effect had been given. The opposite
party further admitted that the constructions have not been razed. No
counter was however filed on behalf of the Bargarh Municipality.
4. A co-ordinate Bench of this court on the basis of the
pleadings available passed the order dated 10.5.2010 in the following
terms.
"Heard Learned counsel for the petitioner, learned
counsel for the State and learned counsel appearing for the
private opposite parties.
The prayer in the writ petition is for a direction to
the opposite parties 1 and 3 to execute the order of
demolition passed by them against opposite parties 4 to 6
within a stipulated time. An additional affidavit has been
filed by the petitioner and in paragraphs 3 and 4 of the
said additional affidavit, it is stated that on the
representation of the petitioner on 27.10.2007, the
Collector, Bargarh had forwarded the matter to the
Executive Officer, Bargarh Municipality for necessary
action and thereafter the Executive Officer has issued
notice on 30.6.2006 for demolition of the unauthorized
construction over plot nos. 4685, 4686 and 4687 of Mouza
Bargarh with due intimation to the unauthorized
occupants.
In view of such affidavit, if any order of
eviction/demolition has already been passed by the
Executive Officer, the same be carried out, provided there
is no order from any court of law prohibiting such
demolition/eviction, within a period of two months from the
date of communication of this order.
-6-
Requisites for communication of this order to
opposite party no.3 be filed by 12.5.2010.
The writ petition is disposed of accordingly."
5. Interim application being Misc.Case No. 8385 of 2010
was filed by the opposite party no. 4 to 6 in the said writ petition (
alleged to be encroachers) for recalling the order dated 10.5.2010
contending inter alia that the disputed plots though had been
recorded in the name of the Government, possession thereof is shown
be of Gopinarayan Agarwala since 1940 and that they have purchased
the same from him ( Gopinarayan Agarwala) vide a sale deed dated
29.3.2004 and that since thereafter, they had been in occupation of
the plots and buildings standing thereon as absolute owners.
6. A co-ordinate Bench of this court passed the following
order on the said Misc. Case on 4.11.2010.
" Heard learned counsel for the parties. This
application has been filed for recalling the order dated
10.5.2010. Having perused the order dated 10.5.2010, we
find that the writ petition was disposed of on an affidavit
filed by the petitioner that an order of eviction has been
passed by the Executive Officer. This Court therefore
directed that only if any order of eviction/demolition has
been passed by the Executive Officer, the same shall be
carried out provided there is no order from any court of law
prohibiting such demolition/eviction. If no order of eviction
has been passed by the Executive Officer, the question of
carrying out the same does not arise.
In view of the above, there is no need to recall the
order. .."
-7-
7. In the meantime, Encroachment Case No. 1436 of
2005 was dropped by the Tahasildar, Bargarh vide order dated
27.3.2006 by referring to Civil Suit No. 95 of 2010 of the Civil Judge
(Jr.Division), Bargarh between the parties by directing them to
maintain status quo of the said land.
8. Being aggrieved, Naba Krushna Mohapatra, preferred
Encroachment Appeal No. 2 of 2006 in the court of the Sub-Collector,
Bargarh. This appeal came to be dismissed by order dated 4.4.2012
recording inter alia that no eviction order had been passed by the
Executive Officer, Bargarh Municipality. The report submitted by the
Executive Officer, Bargarh Municipality was referred to clarify that
only show-cause notice had been served on the respondent Deepak
Kumar Agrawal vide notice no. 1502 dated 30.6.2006 whereby he was
called upon to explain as to why the constructions in violation of
Municipal Rules would not be demolished. The report further
disclosed that from the show-cause submitted by Deepak Kumar
Agrawal on 29.7.2006, the Municipal Authorities were satisfied that
the pucca houses standing on the disputed land were very ancient and
had been assigned with Municipal Holding number 991 in the name of
Gopiram Agrawal and that the same had been subsequently re-
numbered as Holding no. 153. The Sub-Collector, Bargarh held that in
view of the cogent materials in favour of the respondent Ram Avtar
Agrawal and Deepak Kumar Agrawal, there was no reason to further
proceed with the proceeding as there was no new construction
-8-
allegedly raised on the plots. It was mentioned that as no
eviction/demolition order had been passed by the Municipal
Authority, the question of eviction/demolition did not arise in terms of
the order dated 4.11.2010 passed by this Court in Misc. case No. 8385
of 2010 arising out of W.P.(C) No. 13652 of 2006.
9. It is in this background that the petitioners have
instituted the instant proceeding seeking demolition of the structures
standing on the aforementioned plots.
10. Mr. N. Sahu, learned counsel for the petitioners has
emphatically argued that as the notice under Section 273(a) of the
Orissa Municipal Act, 1950 had been issued to Deepak Kumar
Agrawal (Opposite party no. 7) to demolish the unauthorized
construction on the plots involved, the Sub-Collector, Bargarh
committed an error in dropping the encroachment appeal by distorting
the purport of the order dated 4.11.2010 of this Court passed in Misc.
Case No. 8385 of 2010. In terms of the order of this Court, in the face
of the notice for demolition of unauthorized construction on the plots
involved, the Sub-Collector, Bargarh ought to have ensured that the
same were demolished at the earliest, he urged.
11. It is more than apparent that a co-ordinate Bench of
this Court vide orders dated 10.5.2010 and 4.11.2010 had in
categorical terms observed that eviction/demolition would be carried
out if any order to that effect had already been made by the Executive
Officer, Bargarh Municipality. It was clarified further in the order
-9-
dated 4.11.2010 that if no order of eviction had been passed by the
Executive Officer, Bargarh Municipalaity, the question of carrying out
the same would not arise. It is thus patent that eviction/demolition of
the private respondent and demolition of the structures on the plots
could be undertaken only if, prior to the orders dated 10.5.2010 and
4.11.2010 of this Court, there was an order to that effect by the
Bargarh Municipality. Though the petitioners have with reference to
the communication dated 7.7.2006 (Annexure-8 to the writ petition)
alluded to the notice no. 1502 dated 30.6.2006 asserting that it was
addressed to Deepak Kumar Agrawal (O.P.No.7) ordering him to
demolish the unauthorized constructions, neither the said document
has been produced by them nor by the Bargarh Municipality. To the
contrary, as would be evident from the order dated 4.4.2012 of the
Sub-Collector, Bargarh in Encroachment Appeal No. 2 of 2006, it had
been the specific stand of the Executive Officer, Bargarh Municipality
that notice no. 1502 dated 30.6.2006 was one addressed to opposite
party no.7 asking him to show cause as to why the constructions
would not be demolished and that on receipt of the said show cause,
the Municipal Authorities were satisfied that the pucca house stood
since long and had been assigned with Municipal Holding No. 991 in
the name of Gopiram Agrawal and subsequently re-numbered as
Holding No. 153. On a consideration of the materials on record, the
Bargarh Municipality was satisfied that there was no reason to
proceed further pursuant to the notice no. 1502 dated 30.6.2006.
- 10 -
12. In view of the above recorded facts and the orders
dated 10.5.2010 and 4.11.2010 of this Court, which in the absence of
any challenge thereto have become final and binding, we see no
persuasive reason to entertain the grievance of the petitioners as
registered in the instant proceeding. The order passed by the Sub-
Collector, Bargarh in Encroachment Appeal No. 2 of 2006 is not only
based on materials on record, but also is in conformity with the letter
and spirit of the order dated 10.5.2010 and 4.11.2010 passed by this
Court.
13. In this view of the matter, we find no merit in the
instant petition which is accordingly rejected.
..........................
CHIEF JUSTICE
DR.A.K.RATH, J.I agree.
........................... JUDGE Orissa High Court, Cuttack The 6th day of September, 2014/DMoharana