Orissa High Court
Pabani Barik vs Bhubaneswar Development Authority ... on 4 July, 2001
Equivalent citations: 2001(II)OLR221
JUDGMENT R.K. Patra, J.
1. In this writ petition, the petitioner has prayed for a direction to the opposite parties restraining them from evicting him from the disputed land and raising any construction thereon.
2. Case of the petitioner is that the disputed land measuring an area of Ac. 7.500 decimals appertaining to plot No. 258 (Sabik Plot No. 216) under Khata No. 619 (Sabik Khata No. 303) in mouza Chandrasekharpur originally belonged to the estate of Kanika. On 15.6.1941, the Raja of Kanika settled it in favour of the father of the petitioner by creating occupancy right. This fact was recorded in Jamabandi Khatian of Kanika Raja. After abolition of estate, the intermediary instead of the Raja vested in the State Government. The Raja submitted tenants' ledger (Ekpadia) in the office of the Tahsildar, Cuttack wherein the name of the father of the petitioner came to be mentioned at SI. No. 343. After the death of his father, the petitioner inherited occupancy right over the disputed land and became the rightful owner thereof. In the year 1972, mouza Chandrasekharpur in which the disputed land is located was transferred to Bhubaneswar Tahsil. The settlement authorities erroneously recorded the disputed land as 'rakshit' despite the fact that the petitioner and his deceased father have been in possession of the same. Being aggrieved by such wrong entry, the petitioner filed Mutation Case No. 175 of 1989 before the Tahsildar, Bhubaneswar. The Additional Tahsildar by his order dated 25.1.1993 directed to mutate the petitioner's name. The Tahsildar, Bhubaneswar filed Mutation Appeal No. 12 of 1995 before the Sub-Collector. Bhubaneswar challenging the validity of the order dated 25.1.1993 of the Additional Tahsildar. The Sub-Collector disposed of the appeal on 31.7.1999 observing that since a Civil Suit (T.S.No. 324 of 1996) is pending between the parties, it is open for them to establish their claims. Subsequently, the Collector, Khurda intimated a suo motu revision (Suo Motu Revision No. 1 of 1999) in respect of the order of the Additional Tahsildar passed in Mutation Case No. 175 of 1989. The petitioner thereafter filed writ petition bearing O.J.C. No. 4741 of 2000 challenging the initiation of the suo motu revision case. This Court by order dated 12.7.2000 disposed of the writ petition observing that since the dispute between the parties is pending before the Civil Court, there is no need to continue the suo motu revision case. While the matter stood thus, the opposite parties on 13.1 1.1999 came to the disputed land and started measuring it. On 21.5.2001. they demolished a portion of the compound wall. In these circumstances, finding no other alternative, the petitioner has filed the present writ petition.
3. The opposite parties in this case are the Bhubaneswar Development Authority (hereinafter referred to as the 'B.D.A.') through its Secretary and its Vice-Chairman. Their case is that the State Government in the General Administration Department is the owner of the disputed land. With a view to develop Social Housing Projects, the General Administration Department by order No. 12962 dated 22.9.1999 (Annexure-A/ 1) accorded advance possession of government land measuring an area of Ac. 66.645 in different mouzas as detailed therein in favour of the B.D.A. by way of lease. One of the areas is land measuring Ac. 9.360 corresponding to revenue plot Nos. 258. 267 and 293 under khata No. 619 in mouza Chakdrasekharpur. Accordingly lease deed was executed and on 28.9.1999 advance possession of entire area was given to the B.D.A. On receipt of the advance possession, authorities of B.D.A. decided to carve out an area of Ac. 2.512 out of Ac. 3.512 of plot No. 258 for the purpose of construction of housing project in the first phase. Accordingly, barbed wire fencing was constructed over Ac. 2.512 on 16.12.1999. This would indicate that from the date of handing over of possession by the General Administration Department to the B.D.A., the latter has been in peaceful enjoyment of the disputed plot without any hindrance.
The Social Housing Project involves a sum of Rs. 7,43,56,164/- and the scheme relates to construction of 108 M1G and 156 L1G residential apartment over the entire land covered by the Government order.
4. Shri Rath, learned counsel for the petitioner, contended that the petitioner is in possession of the disputed land is evident from the order of the Additional Tahsildar dated 25.1.1993 by which he has directed mutation of the land in his favour and the two suits, namely, T.S. No. 324 of 1996 and T.S. No. 688 of 1999 filed by the petitioner in the Court of the Civil Judge (Senior Division). Bhubaneswar are pending and in these circumstances, the opposite parties should be asked not to dispossess him from the disputed land till he moves the Civil Court for necessary interim relief.
Shri Mohapatra, learned counsel appearing for the opposite parties, on the other hand contended that the petitioner has no semblance of right inasmuch as the owner of the disputed land is the State Government which has leased out the same to the B.D.A. for public purpose, i.e., for construction of housing apartments which is a part and parcel of the Social Housing Project. He submitted that in public interest, the interim order granted by this Court should be vacated.
5. In order to ascertain the actual position, I called for records of the civil suits from the Court of the Civil Judge (Senior Division), Bhubaneswar. On perusal of the records, it appears that the petitioner has filed T.S. No. 324 of 1996 (I) in the Court of the Civil Judge (Senior Division), Bhubaneswar for declaration of his right of occupancy and for permanent injunction over the disputed land. In that suit, the defendants are the State of Orissa through the Secretary to the Government in the General Administration Department, Collector, Khurda and Tahsildar. Bhubaneswar. The petitioner has filed an application under Order 1, Rule 10. CPC to implead the B.D.A. as a defendant but no order seems to have been passed on it. In respect of the very disputed land, the petitioner has filed T.S. No. 688 of 1999 in the same Court praying for permanent injunction against the B.D.A. which is the sole defendant in the suit. Both the suits are pending disposal.
6. The short question that arises for consideration is whether the petitioner is entitled to the relief which he claims in this writ petition.
Law is settled that existence of legal right is the foundation of a petition under Article 226 of the Constitution of India. On the facts and circumstances, can it be said that the petitioner has proved any legal right in respect of the disputed land from which he apprehends that he would be dispossessed by the opposite parties ? It may be noted that except the order of the Additional Tahsildar directing mutation of the land in his favour, there is no other document in support of the petitioner's title. Prima facie the order of the Additional Tahsildar directing mutation in favour of the petitioner is also without jurisdiction inasmuch as admittedly the record-of-right in respect of the disputed land stands in the name of the Government and the Additional Tahsildar could not have passed any order inconsistent with the entry made in the record-of-right. The very fact that the petitioner has filed two civil suits indicates that he is not sure of his own title and that is the reason why he has approached the Civil Court. In view of the judgments of the Supreme Court in State of Orissa v. Madan Gopal Rungta (AIR 1952 SC 12), State of Orissa v. Ram Chandra Dev (AIR 1964 SC 685) and State of Orissa v. Rajasaheb Chandanmull Indrakumar (P) Ltd. (AIR 1972 SC 2112), it is not possible to grant any relief to the petitioner in this writ petition.
7. In the result, the writ petition has no merit and is accordingly dismissed. With the dismissal of the writ petition, interim order dated 25.5.2001 stands vacated.