Orissa High Court
Mrutunjaya Nayak & Others vs State Of Orissa & Another on 22 July, 2015
Author: A.K.Rath
Bench: A.K.Rath
HIGH COURT OF ORISSA: CUTTACK
WP(C) No.10808 of 2015
In the matter of an application under Article 226 of the Constitution of
India.
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Mrutunjaya Nayak & others .... Petitioners
Versus
State of Orissa & another .... Opp. Parties
For Petitioners ... Mr. Alok Ku. Das, Advocate
For Opposite Parties ... Mr. B.P Pradhan, AGA
PRESENT:
THE HONOURABLE DR. JUSTICE A.K.RATH
Date of hearing : 14.07.2015 : Date of judgment : 22.07.2015
Dr. A.K.Rath, J Assailing the order of eviction dated 8.6.2015 passed by the
Tahasildar, Mohana, opposite party no.2, in L.E. Case No.171 of 2015, vide
Annexure-8, the petitioners have filed the present writ petition.
2. The case of the petitioners is that petitioner no.2 is a landless
person. He encroached upon the land of an area of Ac.2.00 dec.
appertaining to Sabik Khata No.38, Sabik Plot No.302 of Mouza-Rekamera
since 1975. The kissam of the land is Parbat. Petitioner nos.1 and 3 are
the son and daughter of petitioner no.2. They were separated from their
father. The encroached area was divided among them. The petitioners
possessed their respective encroached land peacefully by cultivating the
same. They have also planted trees over the land. In the year 2006,
Tahasildar, Mohana, opposite party no.2, initiated L.E. Case Nos.1134 of
2006 and 1405 of 2006 against the petitioners and issued notice to them
to file show cause. In the said proceeding, the petitioners took a plea that
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they are in actual and continuous possession of the land for more than 30
years. Thereafter opposite party no.2 initiated three cases being Case
Nos.480/2011, 481/2011 and 482/2011 respectively against the
petitioners and issued notices to the general public inviting objections for
settlement of the land in their favour. Since the opposite party no.2 did not
settle the land in their favour, they filed the writ petition being WP(C)
No.3495 of 2015 before this Court. By order dated 3.4.2015, a Bench of
this Court disposed of the writ petition with a direction to the opposite
party no.2 to dispose of the application filed by the petitioners under
Section 8-A of the Orissa Prevention of Land Encroachment Act (hereafter
referred to as "the OPLE Act") after affording opportunity of hearing to
them. While the matter stood thus, they received notice issued by the
opposite party no.2 on 5.6.2015, vide Annexure-7, directing them to
appear on 8.6.2015. Pursuant to the same, they appeared on 8.6.2015 and
on the same day, the order of eviction was passed.
3. Pursuant to issuance of notice, a counter affidavit has been
filed by the Tahasildar, Mohana, opposite party no.2. It is stated that the
order passed by a Bench of this Court on 3.4.2015 in WP(C) No.3495 of
2015 was received by the office of the opposite party no.2 on 19.4.2015.
On verification of the record in Encroachment Case Nos.480, 481 and 482
of 2011, it was found that no application under Section 8-A of the OPLE
Act was filed by the petitioner on 29.9.2011 for settlement of the
encroached land, save and except the representation (without date)
accompanied by a photostat copy of the order. Thereafter, the application
was referred to the Revenue Supervisor, Mohana, opposite party no.2, vide
letter no.876 dated 20.4.2015, vide Annexure-A/2, to cause an enquiry
into the matter and submit a report. After enquiry, the Revenue Supervisor
submitted a report on 4.5.2015, vide Annexure-B/2. Thereafter, the R.I,
Mohana submitted Form-G on 3.6.2015, vide Annexure-C/2, against the
petitioners regarding encroachment of the Government plot Nos.299 and
302, Khata No.38 of Mouza- Rekmera. On the basis of such Form-G,
Encroachment Case No.171 of 2015 was initiated against the petitioners.
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Accordingly, Form-A was issued to them calling upon the petitioners to
show cause on 8.6.2015. All the petitioners appeared before the opposite
party no.2 on 8.6.2015 and admitted about encroachment of the
Government land but could not produce any evidence either oral or
documentary for settlement of the land under the provisions of Section 8-A
of the OPLE Act. After hearing the matter, the order of eviction was passed
on 8.6.2015.
4. Notice was issued by the Tahasildar, Mohana, opposite party
no.2, on 5.6.2015, vide Annexure-7, directing the petitioners to appear on
8.6.2015. On the same date the order of eviction was passed.
5. Anything done in undue haste can also be termed as arbitrary. In view of the same, the order dated 8.6.2015 passed by the Tahasildar, Mohana, opposite party no.2, in Encroachment Case No.171 of 2015, vide Annexure-8, is hereby quashed. Opposite party no.2 is directed to make de novo enquiry and conclude the proceeding within two months from today after affording reasonable opportunity of hearing to the petitioners.
The writ petition is allowed.
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DR. A.K.RATH, J Orissa High Court, Cuttack.
The 22nd July, 2015/Pradeep