Orissa High Court
Madhusudan Naik vs The Collector on 17 May, 2023
Author: R.K. Pattanaik
Bench: R.K. Pattanaik
IN THE HIGH COURT OF ORISSA AT CUTTACK
W.P.(C) No.15874 of 2014
Madhusudan Naik .... Petitioner
Mr. N.K. Sahu, Advocate
-Versus-
The Collector, Mayurbhanj & Others .... Opposite Parties
Mr. P.K. Rout, AGA
CORAM:
MR. JUSTICE R.K. PATTANAIK
ORDER
17.05.2023 Order No.
12. 1. Heard Mr. Sahu, learned counsel for the petitioner and Mr. Rout, learned AGA for the State opposite party Nos.1 to 4.
2. None appears for opposite party No.5.
3. Instant writ petition is filed by the petitioner assailing the impugned order dated 24th July, 2014 passed in Encroachment Revision Case No.1 of 2014 under Annexure-9 confirming the order in Encroachment Appeal Case No.2 of 2013 on the grounds stated therein with a consequential direction to the opposite parties to record the schedule land situate over Plot No.384, Khata No.192 of the concerned Mouza in terms of Section 8-A(3) of the OPLE Act accepting fair and equitable rent.
4. Mr. Sahu, learned counsel for the petitioner submits that the schedule land is in possession of the petitioner and his predecessors-in-interest more than 100 years and for such possession, rent has been realized from them ever since 1951. While claiming so, Mr. Sahu refers to Annexure-3 series to suggest that the possession has been more than 30 years old and hence, the petitioner is eligible and entitled for settlement under Section 8-A of the OPLE Act. It is further submitted by Mr. Sahu that the kisam of the schedule land Page 1 of 4 even though recorded as 'Nayanjori' but in the remarks column of Hal RoR, mentioned as 'Sarada-III' and 'Gharabari' in respect of Plot Nos.384 and 385 as evident from Annexure-1 which is also supported by Annexure-2 series, a report dated 1st June, 1974. It is contended that the revisional authority while confirming the orders in Encroachment Appeal Case No.2 of 2013 and Encroachment Case No.78 of 2012 failed to take cognizance of the fact that the kisam of the schedule land was originally recorded as 'Sarada-III' but during Major settlement operation at the stage of Yadast, it was wrongly recorded in the name of P.W.D. with kisam of 'Nayanjori, However, despite such recording in Annexure-1 as to its remarks column, the kisam appears to be 'Sarada-III' and 'Gharabari' in respect of both the plots and hence not duly examined and appreciated by the Collector, Mayurbhanj-opposite party No.1 while disposing of Revision Case No.1 of 2014. While advancing such an argument, Mr. Sahu in support of such claim refers to the contents of the revision petition filed before opposite party No.1 to satisfy the Court that such a ground as to be kisam of the schedule land was raised before the revisional authority. In essence, the submission of Mr. Sahu is that the petitioner since time of his predecessors is in possession of the schedule land with kisam of 'Sarada-III' which was subsequently recorded as 'Nayanjori' but with remarks column as 'Sarada-III' and 'Gharabari' as revealed from the Annexure-1, by considering the same, the authorities below would have settled it with them under Section 8-A of the OPLE Act and therefore, the impugned decision is cannot be sustained in law.
5. Mr. Rout, learned AGA for the State opposite parties, on the other hand, justifies the impugned order under Annexure-9 by stating that since the kisam of land in question stands recorded as 'Nayanjori' in the name PWD and objectionable for settlement, rightly, therefore, opposite party No.1 declined it as pleaded in Page 2 of 4 terms of Section 8-A of the OPLE Act. In reply Mr. Sahu, learned counsel for the petitioner submits that as the petitioner has been in possession and even by his predecessors more than 30 years such settlement could have been considered under Section 8-A of the OPLE Act. It is submitted that there was no in cause of action for the petitioner to seek any legal remedy under Sections 15 & 25 of the Orissa Survey and Settlement Act, 1958 so also to approach the civil court and that apart, when there is a statutory demand available under Section 8-A of the OPLE Act for consideration of settlement in view of a long possession for more than 30 years.
6. Gone through the order of opposite party Nos.3 as at Annexure-7. As it appears that settlement of the schedule land in favour of the petitioner was denied on the premise that he has an annual income of Rs.36,000/- and more and not a landless person and therefore, directed assessment and realization of penalty under Section 4 of the OPLE Act. In fact, very genesis of the action by opposite party No.3 is on the wrong premises that the petitioner is not a landless person. Mr. Sahu, learned counsel for the petitioner, at this juncture, refers to Section 8-A of the OPLE Act to contend that a person who is in possession for more than 30 years, while seeking settlement in terms thereof, not required or necessarily to be a landless. In other words, it is contended that any such criteria for settlement under Section 8-A of the OPLE Act does not demand the person to be landless and/or homesteadless as referable to Section 7 of the said Act.
7. In so far as the kisam of the schedule land is concerned, since originally it is claimed to have been recorded as 'Sarada-III' and subsequently, converted to 'Nayanjori' but having regard to Annexure-1 which received support from Annexure-3 series as to the report, the Court finds that notwithstanding such recording as Page 3 of 4 'Nayanjori' but when remarks column indicates it to be 'Sarada-III' and 'Gharabari' in respect of Plot Nos.384 and 385 respectively and regard being had to Annexure-1&2 series and submission of Mr. Sahu, learned counsel for the petitioner and with reference to Section 8-A of the OPLE Act and the pleading that such possession has been for more than 30 years old as evident as made to appear from Annexure-3 series, it is of the considered view that all such aspects should be considered by opposite party No.1 afresh. In other words, the Court is of the view that the grounds which have been raised by the petitioner before opposite party No.1, as revealed from a copy of the revision petition so produced today, having not been really addressed, needs a remand for fresh adjudication.
8. Accordingly, it is ordered.
9. In the result, the writ petition stands allowed. Consequently, impugned order dated 24th July, 2014 passed in Encroachment Revision Case No.1 of 2014 under Annexure-9 is hereby set aside and the matter is remitted back to opposite party No.1 for a fresh decision considering the grounds raised by the petitioner and keeping in view the observations of this Court made herein above and to dispose it of as per and in accordance with law at the earliest preferably within a period of six weeks from the date of receipt of a copy of the order and till the time the final order is passed, there shall be status quo vis-a-vis the subject matter.
10. A certified copy of this order be granted as per rules.
(R.K. Pattanaik) Judge Tudu Signature Not Verified Digitally Signed Signed by: THAKURDAS TUDU Page 4 of 4 Reason: Authentication Location: OHC,CTC Date: 20-May-2023 14:22:47