Orissa High Court
Sarat Kalas vs State Of Odisha And Others .... Opposite ... on 29 October, 2024
Author: S.K. Panigrahi
Bench: S.K. Panigrahi
Signature Not Verified
Digitally Signed
Signed by: BHABAGRAHI JHANKAR
Reason: Authentication
Location: ORISSA HIGH COURT, CUTTACK
Date: 05-Nov-2024 18:48:14
IN THE HIGH COURT OF ORISSA AT CUTTACK
W.P.(C) No.3687 of 2017
(In the matter of an application under Articles 226 and 227 of the
Constitution of India, 1950).
Sarat Kalas .... Petitioner(s)
-versus-
State of Odisha and Others .... Opposite Party (s)
Advocates appeared in the case through Hybrid Mode:
For Petitioner(s) : Ms. S. Devi, Adv.
For Opposite Party (s) : Mr.Subrat Satpathy, Adv.
CORAM:
DR. JUSTICE S.K. PANIGRAHI
DATE OF HEARING:-18.09.2024
DATE OF JUDGMENT:-29.10.2024
Dr. S.K. Panigrahi, J.
1. In this Writ Petition, the petitioner contends that the eviction order adversely impacts his pending application with the Temple authorities. Additionally, he argues that the eviction infringes upon his constitutional right under Article 300-A of the Constitution, which safeguards individuals from being deprived of their property without lawful authority.
Page 1 of 8 Signature Not Verified Digitally Signed Signed by: BHABAGRAHI JHANKAR Reason: Authentication
Location: ORISSA HIGH COURT, CUTTACK Date: 05-Nov-2024 18:48:14 I. FACTUAL MATRIX OF THE CASE:
2. The brief facts of the case are as follows:
(i) The petitioner has been in possession of Plot No. 58 (Ac. 0.200 dec.) under Khata No. 782/4 of Mouza Kanapur/ classified as 'Bagayat/' for over 50 years. The land serves as a passage to the petitioner's stitiban gharabari land.
(ii) On 26.03.2016, the Shree Jagannath Temple Administration requested the Tahasildar, Khurda, to initiate action against the alleged encroachment on the temple's land.
(iii) The Tahasildar obtained a report from the R.I., Jankia, on 30.03.2016 and subsequently registered Encroachment Case No. 3 of 2016. A notice was issued to the petitioner, directing him to appear before the Tahasildar on 15.04.2016.
(iv) On 15.04.2016, the petitioner sought an adjournment, and the matter was postponed to 20.04.2016. However, the petitioner failed to appear on the adjourned date, leading to the issuance of an eviction notice under Form "Kha", requiring the petitioner to vacate the land within 30 days.
(v) The petitioner challenged the notice by filing Encroachment Appeal No. 19 of 2016 before the Sub-Collector, Khurda, but the appeal was dismissed on 30.08.2016.
(vi) Aggrieved by the dismissal, the petitioner filed Encroachment Revision Case No. 6 of 2016 before the Collector and District Magistrate, Khurda, arguing that the land belonged to the Temple and that the Tahasildar Page 2 of 8 Signature Not Verified Digitally Signed Signed by: BHABAGRAHI JHANKAR Reason: Authentication Location: ORISSA HIGH COURT, CUTTACK Date: 05-Nov-2024 18:48:14 lacked jurisdiction to initiate proceedings under the OPLE Act. This revision was also dismissed on 16.12.2016.
(vii) The authorities suggested that the petitioner could use the land as a passage, provided that he refrains from constructing any obstructions or hindrances to public access.
(viii) Dissatisfied with the eviction order and the dismissal of the appeal and revision, the petitioner filed the present writ petition, asserting that the eviction order prejudices his pending application before the Temple authorities. The petitioner further claims that the eviction violates his constitutional right under Article 300-A of the Constitution, which protects him from deprivation of property except by lawful authority.
II. SUBMISSIONS ON BEHALF OF THE PETITIONER:
3. Learned counsel for the Petitioner earnestly made the following submissions in support of his contentions:
(i) The petitioner submitted that the OPLE Act does not apply since the matter concerns land governed by the Shree Jagannath Temple Act, 1955, which provides a specific mechanism for addressing encroachments.
(ii) He further submitted that the Tahasildar lacked competence, as no authorization was granted by the Temple Committee, as required by the Shree Jagannath Temple Act.
(iii) The petitioner contended that his application to purchase the land, submitted on 15.05.2010, is still pending with the Temple authorities, Page 3 of 8 Signature Not Verified Digitally Signed Signed by: BHABAGRAHI JHANKAR Reason: Authentication Location: ORISSA HIGH COURT, CUTTACK Date: 05-Nov-2024 18:48:14 and the lower forums failed to take this fact into account when passing their orders.
(iv) He further contended that the revisional authority (Addl. District Magistrate, Khurda) acted with material irregularity by not calling for a report from the Temple authorities regarding the status of his purchase application.
(v) The petitioner argued that the eviction order infringes upon his rights under Article 300-A of the Constitution, which protects against the deprivation of property without due process.
III. SUBMISSIONS ON BEHALF OF THE OPPOSITE PARTIES:
4. The Learned Counsel for the Opposite Parties earnestly made the following submissions in support of his contentions:
(i) It is submitted that the proceedings were initiated at the request of the Shree Jagannath Temple Administration under Section 16-A of the Shree Jagannath Temple Act, 1955, which authorizes the application of the OPLE Act for unauthorized occupation of temple land.
(ii) He further submitted that the authorities obtained a report from the R.I., Jankia, served notice to the petitioner, and followed the prescribed procedure under the OPLE Act. The Appellate and Revisional Authorities reviewed the petitioner's contentions but upheld the eviction order after due consideration.
(iii) It is contended that the petitioner's construction of a boundary wall caused disruptions to the public and raised concerns about maintaining Page 4 of 8 Signature Not Verified Digitally Signed Signed by: BHABAGRAHI JHANKAR Reason: Authentication Location: ORISSA HIGH COURT, CUTTACK Date: 05-Nov-2024 18:48:14 public peace. The eviction order was necessary to avoid potential conflict in the locality.
(iv) He further contended that under Section 5 of the Shree Jagannath Temple Act, 1954, all temple property vests with the Temple Managing Committee. The petitioner's occupation violates the rights of the temple over its property, and the eviction is consistent with the law.
Accordingly, the writ petition is liable to be dismissed.
IV. COURT'S REASONING AND ANALYSIS:
5. Heard learned counsel for the parties and meticulously examined the records submitted for this Court's consideration. The petitioner's primary contention rests on the assertion that, being temple property, the land in question is not amenable to proceedings under the Orissa Prevention of Land Encroachment (OPLE) Act, 1972. However, a closer scrutiny of Section 16-A of the Shree Jagannath Temple Act, 1955 unequivocally elucidates the legislative intent, affirming that the OPLE Act extends to temple lands/ thereby nullifying the petitioner's objection. The relevant excerpts of the said Act are produced herein:
"16-A. Removal of encroachment of Temple Land :-
(1) The provisions contained in the Orissa Prevention of Land Encroachment 2 [Act, 1972] 2 [Orissa Act 6 of 1972] shall be applicable, as far as may be, in respect of unauthorized occupation of any land belonging to the Temple as if it were property of Government within the meaning of that Act. (2) 1 [Chief Administrator] may with the prior approval of the Committee, make an application for taking up appropriate proceedings under the said Act to the authority -competent there under and thereupon it shall be lawful for such authority Page 5 of 8 Signature Not Verified Digitally Signed Signed by: BHABAGRAHI JHANKAR Reason: Authentication Location: ORISSA HIGH COURT, CUTTACK Date: 05-Nov-2024 18:48:14 to take action in accordance with the provisions contained in that Act."
6. A careful examination of the aforementioned provision leaves no room for doubt that the petitioner's contention is legally untenable. The authorities, acting within the framework of the OPLE Act, followed due process by issuing the eviction notice in strict compliance with statutory mandates. The revisional authority, upon an exhaustive appraisal of the record and relevant legal principles, correctly upheld the eviction order, thereby dismissing the petitioner's appeal.
7. It is indeed disconcerting that the petitioner, whose occupation is manifestly unlawful, seeks to invoke this Court's certiorari jurisdiction. It is a well-settled principle that access to such extraordinary relief presupposes the existence of a legal right. A trespasser devoid of any lawful claim or title cannot assert locus standi to demand rehabilitation, nor can equity be invoked to shield acts of encroachment.
8. In fact, to this effect, the Supreme Court has upheld this stance in the case of Milk Producers Association v. State of Orissa1and held that there is no legal principle granting an encroacher the right to be rehabilitated. The relevant portion is produced hereinbelow:
"There does not exist any legal concept which confers a legal right upon an encroacher to be rehabilitated. The matter may be different where the State comes out with a policy decision which meets the constitutional scheme as envisaged under Article 162 of the Constitution of India."
1
AIR 2006 SUPREME COURT 3508.
Page 6 of 8 Signature Not Verified Digitally Signed Signed by: BHABAGRAHI JHANKAR Reason: Authentication
Location: ORISSA HIGH COURT, CUTTACK Date: 05-Nov-2024 18:48:14
9. In emphasizing that the existence of a legal right is fundamental to the court's exercise of writ jurisdiction, the Supreme Court, in Chiranjit Lal Chowdhuri v. Union of India,2 articulated that:
"The application before us under article 32 of the Constitution is on behalf of an individual shareholder of the company. Article 32, as its provisions show. is not directly concerned with the determination of constitutional validity of particular legislative enactments. What it aims at is the enforcing of fundamental rights guaranteed by the Constitution, no matter whether the necessity for such enforcement arises out of an action of the executive or of the legislature. To make out a case under this article, it is incumbent upon the petitioner to establish not merely that the law complained of is beyond the competence of the particular legislature as not being covered by any of the items in the legislative lists, but that it affects or invades his fundamental rights guaranteed by the Constitution, of which he could seek enforcement by an appropriate writ or order. The rights that could be enforced under article 32 must ordinarily be the rights of the petitioner himself who complains I of infraction of such rights and approaches the court for relief."
10. The abovementioned judicial precedents make it abundantly clear that no individual, irrespective of the duration or nature of unauthorized occupation, can derive a legal right from an act of encroachment upon government land. In the present case, the land in question, belonging to Lord Jagannath Temple, is classified as public property, vested with the Temple Administration under the Shree Jagannath Temple Act, 1955. Temple land, being endowed for religious purposes, is accorded special protection and cannot be subjected to private encroachment. 2 1950 SCR 869 Page 7 of 8 Signature Not Verified Digitally Signed Signed by: BHABAGRAHI JHANKAR Reason: Authentication Location: ORISSA HIGH COURT, CUTTACK Date: 05-Nov-2024 18:48:14
11. An encroacher, who occupies such land without lawful authority, stands in violation of statutory mandates. As held by the revisional and appellate authorities, the petitioner's unauthorized possession does not confer any vested or legal right upon him. It is trite law that public property, particularly that belonging to a deity or religious institution, must be preserved for its intended purpose, and no equitable relief can be extended to a trespasser. The Court, therefore, finds that the petitioner lacks the necessary locus standi to claim any protection or relief under Article 300-A of the Constitution. A trespasser, especially one encroaching on temple land, is not entitled to rehabilitation or indulgence from the Court.
12. In light of the foregoing, this Writ Petition lacks merit and is hereby dismissed. The petitioner is hereby admonished against submitting frivolous petitions in future, as such actions not only burden the judicial system but also undermine the seriousness of legitimate legal grievances.
13. Interim order, if any, passed earlier stands vacated.
(Dr.S.K. Panigrahi) Judge Orissa High Court, Cuttack, Dated the 29th October, 2024/ Page 8 of 8