Orissa High Court
Sanatan Sahu vs Collector on 10 May, 2023
Author: R.K. Pattanaik
Bench: R.K. Pattanaik
IN THE HIGH COURT OF ORISSA AT CUTTACK
WP(C) No.9144 of 2016
Sanatan Sahu .... Petitioner
Mr. J. Dash, Advocate
-Versus-
Collector, Jagatsinghpur and Others .... Opposite Parties
Mr. YSP Babu, AGA
Mr. G. Rout, Advocate for O.P. Nos.4 to 10
CORAM:
MR. JUSTICE R.K. PATTANAIK
ORDER
10.05.2023 Order No.
08. 1. Heard learned counsel for the petitioner and Mr. Babu, learned AGA for the State-opposite party Nos.1 to 3 besides learned counsel for opposite party Nos.4 to 10.
2. Instant writ petition is filed by the petitioner challenging the correctness, legality and judicial propriety of the impugned orders dated 12th May, 2016 in OPLE Revision Case Nos.01 of 2014 and 01 of 2015 and dated 31st July, 2012 and 29th November, 2014 passed in Encroachment Appeal No.05 of 2009 and 17 of 2014 under Annexures-7,3 and 5 respectively on the grounds stated therein.
3. Learned counsel for the petitioner submits that the schedule land situate over Plot No.1670 under Khata No.625 measuring Ac.1.07 decimal in the concerned mouza and it has been in possession of the petitioner since last 40 years, considering which, the Tahasildar, Ersama-opposite party No.3 settled it in his favour Page 1 of 5 by the order dated 26th September, 1989 while disposing of a proceeding in Encroachment Case No.1580 of 1987. It is further submitted that against such settlement of the schedule land in favour of the petitioner, two of the villagers approached the Sub-Collector, Jagatsinghpur-opposite party No.2 and filed Encroachment Appeal Nos.5 of 2009 and 17 of 2014 which were entertained nearly after 21 years and without considering such inordinate delay, the impugned orders dated 31st July, 2012 and 29th November, 2014 were passed setting aside the settlement of the schedule land in favour of the petitioner with a direction to record it in the name of the Govt. It is further submitted that the impugned orders in appeals were challenged by the petitioner in OPLE Revision Case Nos.01 of 2014 and 01 of 2015, however, to his utter dismay, without appreciating the fact that there has been considerably long delay of 21 years, opposite party No.1 confirmed the orders in appeals which is unjust, illegal and not tenable in law and hence, liable to be quashed in the interest of justice.
4. Mr. Babu, learned AGA for the State-opposite party Nos.1 to 3 submits that although the schedule land is settled with the petitioner by the order of opposite party No.3 under Annexure-1, however, since he was found not eligible and entitled for any such settlement as per the provisions of the OPLE Act for the reason that he was neither a landless nor homesteadless person, the fact which was brought to the notice of the appellate forum by the villagers, it led to the passing the impugned orders in Encroachment Appeal Nos.05 of 2009 and 17 of 2014 which is therefore absolutely justified and in accordance with law and hence, it was confirmed in OPLE Revision Case Nos.01 of 2014 and 01 of 2015. In other words, according to Mr. Babu, learned AGA notwithstanding delay of 21 Page 2 of 5 years, the petitioner since was not eligible for the alleged settlement, the Appellant Authority as well as opposite party No.1 did not commit any error or wrong in recalling it under Annexures-3, 5 & 7 and thus, it calls for no interference. Learned counsel for the opposite party Nos.4 to 10 supported the contention of the State and justifies the impugned orders under Annexures-3, 5 and 7 on the ground that the petitioner was found not eligible for settlement allowed vide Annexure-1 and rightly it was interfered with by the authorities below.
5. Gone through the impugned orders as at Annexures-3, 5 &
7. Learned counsel for the petitioner refers to the order settlement dated 26th September, 1989 to contend that considering the eligibility report received by opposite party No.3 and thereafter being satisfied that he is a homesteadless person, the settlement of the schedule land was allowed in his favour. In fact, Annexure-1 revealed that such a report was called for before settlement of the schedule land with the petitioner. However, at the instance of the villagers, appeals were entertained by the Sub-Collector, Jagatsinghpur and thereafter, as earlier mentioned, the impugned orders were passed which was challenged in revision. In so far as, the impugned orders under Annexures-3, 5 and 7 are concerned, the Court finds that the delay and its condonation was not duly examined as the Appellate Authority was required to satisfy itself for having sufficient cause for the appellants not preferring the appeal in time and within the period prescribed in Section 13 of the OPLE Act. In fact, the Court finds that neither opposite party No.2 nor opposite party No.1 while entertaining the appeals and revisions, considered the said aspect as to delay. As per Section 13 of the OPLE Act, an appeal is to be filed before expiry of 30 days from the date Page 3 of 5 of any decision or order, however, with a rider that such an appeal may be admitted after the period specified with the appellant satisfying the Appellate Authority that he had sufficient cause not to do so within that period. Considering the above provisions and on a reading of the impugned orders by opposite party No.2 as well as opposite party No.1, the aspect of delay and as to if there was sufficient cause being shown by the appellants in challenging the order of settlement under Annexure-1 was not addressed. Furthermore, entitlement or otherwise of the petitioner was not gone into in juxtaposition to the eligibility report received by opposite party No.3. Under the above circumstances and for the fact that there was substantial delay of 21 years which has not been reasonably explained by the appellants before opposite party No.2, the Court is of the view that the impugned order under Annexures-7 cannot be justified which merely confirmed the orders in appeal under Annexure-3 and 5. Having fact that, the Court is of the irresistible conclusion that the matter should be remitted back to the appellate forum for a reconsideration on the point of limitation as well as eligibility of the petitioner for any such settlement vis-à-vis the schedule land and for a fresh decision thereon which would serve the purpose and meet the ends of justice.
6. Accordingly, it is ordered.
7. In the result, the writ petition stands disposed of. As a necessary corollary, the impugned orders under Annexures-3,5 and 7 passed by the opposite party Nos.2 and 1 in connection with Encroachment Appeal Nos.5 of 2009 and 17 of 2014 and OPLE Revision Case Nos.01 of 2014 and 01 of 2015 respectively are hereby quashed with a direction to opposite party No.2 to Page 4 of 5 reconsider the aspect of limitation and merits of the claim of the petitioner with respect to settlement of the schedule land and dispose of both the appeals preferably within a period of six weeks from the date of receipt of a copy of this order after providing due opportunity of hearing to all the parties involved including opposite party nos.4 to 10.
8. A certified copy of this order be granted as per rules.
(R.K. Pattanaik) Judge Tudu THAKURDAS Digitally signed by THAKURDAS TUDU TUDU Date: 2023.05.11 19:46:44 +05'30' Page 5 of 5