Orissa High Court
Afr Netrananda Mishra vs State Of Orissa And Others ............ ... on 24 July, 2018
Author: Vineet Saran
Bench: Vineet Saran
HIGH COURT OF ORISSA : CUTTACK
OJC No. 6209 of 1999
In the matter of an application under Articles 226 and 227 of the
Constitution of India.
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AFR Netrananda Mishra. ........... Petitioner Versus State of Orissa and others ............ Opp. Parties For petitioner : M/s. P.K.Mohapatra, S.K.Jena and (Mrs.) M. Rout, Advocates For opp. parties : Mr. B.P. Pradhan, Addl. Government Advocate [O.Ps. No.1 to 4] Mr. S.P.Mishra, Senior Advocate along with M/s S. K. Mishra, S. Mishra and S.Dash, Advocates. [O.P. No. 5]
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PRESENT:
THE HONOURABLE THE CHIEF JUSTICE MR. VINEET SARAN AND THE HONOURABLE DR. JUSTICE B.R. SARANGI
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DECIDED ON : : 24.07.2018
--------------------------------------------------------------------------------- DR. B.R. SARANGI, J. The petitioner, a retired Government servant, has filed this application challenging the inaction 2 of the authority in not delivering the possession of homestead leasehold land in his favour, though lease had been granted vide Lease Case No.88 of 1964 by the then Revenue Divisional Commissioner, Northern Division, Sambalpur under Urban Land Settlement Act.
2. The factual matrix of the case, in hand, is that the petitioner is a land less person inasmuch as his entire landed property, including house and homestead, had been acquired for construction of NALCO project. Consequentially, after retirement, he was staying in a rented house at Angul. A piece of land measuring Ac.0.12 decimals out of plots no.309/2 and 310/2 (2 decimals from plot no.309/2 and 10 decimals from plot no.310/2) in Angul town was sanctioned on lease basis for homestead purpose in favour of the petitioner by the then Revenue Divisional Commissioner, Northern Division, Sambalpur vide Angul Town Lease Case No.88 of 1964. After getting notice from the competent authority on the sanction of the lease, the petitioner deposited the premium amount and thereafter the lease deed was executed and registered. The 3 said lease deed is nomenclatureed as "Standard Form of lease deed for lease of government land in favour of Middle Class People in town areas in the State of Orissa". The lease deed was executed on 18.07.1974 and after execution of lease deed, the petitioner applied and requested the Tahasildar, Angul to demarcate the plot and give physical delivery of possession of the said plot to him. At that point of time, the petitioner was informed that the said land is under encroachment and after evicting the encroachers, delivery of possession would be made in favour of the petitioner. The petitioner waited till 1983 for taking over possession of the plot from the revenue authorities, but no action was taken by the authority to give delivery of possession of the land in question in favour of the petitioner.
3. In the year 1983, the Land Acquisition Collector, Dhenkanal acquired the entire landed properties of the petitioner both agricultural, homestead and house etc. for NALCO project at Angul. Thereafter, the petitioner on 24.05.1984, submitted a representation before the 4 Collector, Dhenkanal stating inter alia that if his lease hold land is in encroachment, another suitable plot measuring Ac.0.12 decimals within Angul NAC be allotted to him for construction of a house, but no action was taken by him on the same. The revenue authorities also did not take any action till 1985 for eviction of the encroachers from the plot in question, even though an eviction order was passed against the encroachers in the year 1974 vide Encroachment Case No.127 of 1970-71. In spite of said order being subsisting, a fresh encroachment case against the said encroachers was initiated vide Encroachment Case No.1 of 1985 under Orissa Prevention of Land Encroachment, Act (for short "OPLE, Act"). But the revenue authorities did not take any steps for removal of the encroachers from the said leasehold land. On enquiry, the petitioner came to know that one Sri Dasarathi Pattnaik was the encroacher of his leasehold land. Further, Sri Dasarathi Pattnaik was granted lease in respect of Ac.0.12 decimals of land out of plot no.309 in the year 1970-71. After receiving the said land from the government on lease, 5 Sri Dasarathi Pattnaik constructed his dwelling house there and subsequently encroached the adjacent plots out of plots no.309 and 310 granted on lease in favour of the petitioner. After coming to know the fact that Encroachment Case No.1 of 1985 has been initiated against the encroacher, the petitioner intervened in the same and filed objection stating inter alia that the encroached land has been sanctioned in his favour, vide Angul Town Lease Case No.88 of 1964.
4. During pendency of the said encroachment case, the encroacher Sri Dasarathi Pattnaik and his daughter in law, Smt. Nalini Pattnaik, filed two writ petitions bearing OJC No.1549 of 1987 and OJC No.1376 of 1987 respectively before this Court. The grievance of Sri Dasarathi Pattnaik in the said writ petition was that although the notice was issued to him in the encroachment proceeding, it was served on a date subsequent to the date fixed for his appearance, and on that account he failed to appear and ex parte order of eviction was passed. The daughter-in-law of Sri Dasarathi Pattnaik, namely, Smt. 6 Nalini Pattnaik made grievance in her writ petition that she was in possession of the case plot and she had no relation with the encroacher Sri Dasarathi Pattnaik and, as such, she claimed for settlement of the said land in her favour by dropping the encroachment case initiated against Sri Dasarathi Pattnaik.
5. After hearing both the writ petitions, this Court, while permitting Sri Dasarathi Pattnaik to file his show cause afresh in the encroachment proceeding, directed the authorities to dispose of the same in accordance with law, and on the other hand, this Court was not inclined to admit the writ application filed by Smt. Nalini Pattnaik. Therefore, the said application was withdrawn on being prayer made by Smt. Smt. Nalini Pattnaik.
6. After being unsuccessful in the writ application, Smt. Nalini Pattnaik intervened in the encroachment proceeding no. 1 of 1985 initiated against Sri Dasarathi Pattnaik and after hearing the parties, the Tahasildar, Angul, vide order dated 19.06.1987, rejected the plea of 7 Smt. Nalini Pattnaik and directed for eviction of Sri Dasarathi Pattnaik from the encroached plot in question.
7. By virtue of the eviction order passed by the Tahasildar, Angul, the petitioner represented the authority concerned to give him demarcation and delivery of possession of the lease plot, which was sanctioned in his favour by the government. But in spite of repeated request, no steps were taken for eviction so as to handover the possession of the plot in favour of the petitioner. Consequentially, the petitioner submitted a representation on 06.04.1988 before the Collector, Dhenkanal requesting to provide an alternative plot so that he can construct his dwelling house. In spite of such representation, no action was taken and on the other hand Sri Dasarathi Pattnaik and Smt. Nalini Pattnaik, being aggrieved by the order passed by the Tahasildar, Angul, preferred two appeals bearing no.9 of 1987 and no.8 of 1987 respectively before the Court of Sub-Divisional Officer, Angul, without impleading the present petitioner as a party. The learned Sub-Divisional Officer, Angul, upon hearing dismissed both 8 the appeals, vide order dated 30.05.1989, and directed for eviction of encroachers.
8. Smt. Nalini Pattnaik filed civil suit bearing T.S. No.25 of 1989 before the Subordinate Judge, Angul thereafter, praying for declaration of her right, title and interest over the said land and for confirmation of possession. She further prayed that the State Government be permanently restrained from interfering with the possession and eviction from the suit land. The said suit, in which the petitioner was also not impleaded as party, was dismissed on 07.08.1990 for non-prosecution.
9. The petitioner again made fresh representation on 28.05.1994 before the Collector, Angul for consideration of his case and for direction to give him delivery of possession of his lease plot forthwith. He further prayed that if that plot was in encroachment, then another alternative plot of same area be given to him, as he is a landless person and residing in a rented house. But no action was taken on such representation. Again the 9 petitioner filed reminder on 06.05.1998 by making fresh representation, but on receipt of the same the Collector remained silent for near about three months and all on a sudden the Addl. District Magistrate, Angul informed the petitioner, vide letter dated 14.08.1998, to be present before the office on 16.05.1998 at 8.30 AM for enquiring about the matter regarding delivery of possession of the lease plot, with a further request to bring all relevant paper with him on the date fixed. During such inquiry, the Addl. District Magistrate, Angul brought to the notice of the petitioner about the order passed by the then revisional authority, namely, Addl. District Magistrate, Angul in Revision Case No.7 of 1989 and 8 of 1989 preferred by Sri Dasarathi Pattnaik and Smt. Nalini Pattnaik challenging the order passed by the appellate authority and informed that in such view of the matter possession of the lease land was not delivered to him. Needless to say that the petitioner was also not made party before the appellate authority where the appeals were preferred by Sri Dasarathi Pattnaik and Smt. Nalini Pattnaik. Therefore, the petitioner could 10 not be able to know that against the order passed by the appellate authority, the encroacher Sri Dasarathi Pattnaik and Smt. Nalini Pattnaik have already preferred revision before the revisional authority. Even though the petitioner is a necessary party in the revisional proceeding, deliberately and willfully the encroachers had not impleaded him as party in the Revision Case nos.7 and 8 of 1989 filed by Sri Dasarathi Pattnaik and Smt. Nalini Pattnaik. The Addl. District Magistrate, Angul also disposed of the said two revision cases on 16.06.1994, without hearing the petitioner, by setting aside the orders dated 19.06.1987 and 30.05.1989 of the Tahasildar, Angul and Sub-Divisional Officer, Angul in Encroachment Case No.1 of 1985 and Encroachment Appeal No.8 of 1987 respectively. The Revisional authority dismissed the revision preferred by Sri Dasarathi Pattnaik on the ground of res judicata and in the revision filed by Smt. Nalini Pattnaik, while setting aside the order passed by the Courts below, directed the Tahasildar, Angul to consider the case of Smt. Nalini Pattnaik in settling the case land in her favour by 11 instituting a fresh encroachment case against her. The Addl. District Magistrate, Angul allowed the prayer made by Smt. Nalini Pattnaik on the ground that herself and her husband were having separate holding numbers and they were paying holding tax of the case land to the NAC, Angul since 1982-83 and they had no connection with Sri Dasarathi Pattnaik. Therefore, there was no justification for institution of encroachment case against Sri Dasarathi Pattnaik. The findings arrived at by the Revisional Court is without any basis, as late Ambika Pattnaik, husband of Smt. Nalini Pattnaik is the second son of Sri Dasarathi Pattnaik, which was already confirmed by this Court in OJC No.1376 of 1987. In the said writ petition, such plea of Smt. Nalini Pattnaik was turned down and, as such, the said fact has also been fortified from the voter list of the year 1984 under 116 Assembly Constituency of Amlapada, Angul pertaining to holding no.220. Challenging the order dated 16.06.1994 passed by the Addl. District Magistrate, Angul in Encroachment Revision Case No.8 of 1989, hence this application.
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10. Mr. P.K. Mohapatra, learned counsel for the petitioner contended that at the behest of the encroachers the authorities are not evicting them from the case land and, as such, the petitioner is a land oustee and he has been rendered homestead less because of commencement of new project at NALCO by the government. Even if the land has been allotted in favour of the petitioner, pursuant to Angul Town Lease Case No.88 of 1964, and consequence there of the lease deed has also been executed on 18.07.1974, till date delivery of possession has not been given to the petitioner and, as such, the petitioner could not construct house over the said land for survival. It is further contended that the encroachers, namely, Sri Dasarathi Pattnaik and Smt. Nalini Pattnaik, though approached the appellate authority in Encroachment Appeal Case No.9 of 1987 and 8 of 1987 respectively, without impelading the present petitioner as a party to the proceeding, the said appeals have been dismissed and subsequently Smt. Nalini Pattnaik filed civil suit bearing T.S. No. 25 of 1989 before the Subordinate Judge, Angul 13 for declaration of right, title and interest over the property in question, which was also dismissed for default, where the petitioner also had not been impleaded as a party. Thereafter, two separate revisions bearing Revision Case Nos.7 and 8 were filed by Sri Dasarathi Pattnaik and Smt. Nalini Pattnaik respectively before the Addl. District Magistrate, where deliberately and willfully the petitioner was not impleaded as a party. Consequentially, the revisional authority passed the order behind the back of the petitioner on 16.06.1994 by rejecting the revision filed by encroacher Sri Dasarathi Pattnaik and allowing the revision filed by daughter-in-law of Sri Dasarathi Pattnaik, i.e., Smt. Nalini Pattnaik and directed the Tahasildar, Angul to settle the land in favour of Smt. Nalini Pattnaik by instituting a fresh encroachment proceeding. It is contended that the encroachers have not approached the Court with clean hand and adopted fraudulent method and, as such, they want to grab the land in question which has been allotted in favour of the petitioner in Angul Town Lease Case No. 88 of 1964 and consequence thereof lease 14 deed has also been executed in his favour. Accordingly, he prays for quashing of the order dated 16.06.1994 passed by the Addl. District Magistrate and for eviction of the encroachers with a further direction to the authorities to give delivery of possession of land in question so as to enable the petitioner to construct a house for his survival.
11. Mr. B.P. Pradhan, learned Addl. Government Advocate though tried to justify the order passed by the authority concerned, at the same time admitted that the petitioner was not impleaded as a party before the revisional authority and that the order in question has been passed behind his back.
12. Mr. L.K. Moharana appearing on behalf of Mr. S.P. Mishra, learned Senior Counsel for opposite party no.5 argued with vehemence justifying the order passed by the revisional authority and contended that the Sub-Divisional Officer has ignored certain documentary evidence produced by opposite party no.5 in support of her claim of possession over the case land and on the contrary, he 15 relied upon certain facts, which were not on record, and, by introducing the same behind the back of opposite party no.5, arrived at a conclusion that Sri Dasarathi Pattnaik was not in possession over the case land. It is thus contended that without considering the documents produced by Smt. Nalini Pattnaik into consideration, the Sub-Divisional Officer, Angul has passed the order, therefore in exercise of powers under Section 12 (2) of the OPLE, Act 1972, the revisional authority set right the wrong done by the subordinate Court, vide order dated 16.06.1994. Consequentially, no illegality or irregularity has been committed by the authority so as to warrant interference by this Court in the present proceeding.
13. We have heard Mr. P.K. Mohapara, learned counsel for the petitioner; Mr. B.P. Pradhan, learned Addl. Government Advocate and Mr. L.K. Moharana on behalf of Mr. S.P. Mishra, learned Senior Counsel for opposite party no.5 and perused the record.
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14. Notice was issued on 07.09.2000 to the opposite parties and on the very same date this Court passed interim order staying operation of the order dated 16.06.1994 in the Encroachment Revision case passed by the Addl. District Magistrate, until further orders. The said notice on the question of admission and final disposal issued to opposite parties no.1 to 5 was received by them on 18.12.2001. Pursuant to such notice, Mr. S.P. Mishra, learned Senior Counsel and associates have filed vakalatnama on behalf of opposite party no.5 on 23.10.2000. Thereafter, when the matter was listed on 09.09.2004, on the request of learned counsel for opposite party no.5, the matter was adjourned. Then the matter was on the board on 09.02.2016, 17.02.2016, 30.11.2016, 02.01.2017 and 11.01.2017. Thereafter on 16.01.2017, on the request of learned counsel for opposite party no.5, the matter was adjourned for two weeks and thereafter when the matter was listed on 20.06.2018, learned counsel for opposite party no.5 was not present and, therefore, the matter was directed to be listed after two 17 weeks. On 12.07.2018, this Court directed that the matter would be listed on 24.07.2018, by which date if no counter affidavit is filed by opposite party no.5, the writ petition itself would be disposed of. When the matter was listed today, i.e, 24.07.2018, none appeared for opposite party no.5 at the time of call, nor has any counter affidavit been filed. However, the matter was passed over and thereafter on revised call when the matter was taken up for hearing, pursuant to order dated 12.07.2018, learned counsel for opposite party no.5 sought time to file counter affidavit, which this Court was not inclined to grant, as this case is of the year 1999 and more particularly it is a certiorari proceeding. Therefore, on the basis of materials available on record, this Court decided to proceed with hearing of the matter and accordingly by consent of learned counsel for the parties, this matter is taken up for hearing and disposed of at the stage of admission.
15. The factual matrix of the case, as delineated above, is undisputed. Admittedly, the petitioner is a land oustee and his agricultural and homestead land had been 18 acquired for the purpose of construction of NALCO project. The petitioner was allotted a piece of land, pursuant to Angul Town Lease Case No.88 of 1964, and the lease deed was executed on 18.07.1974. In spite of several efforts made by the petitioner, physical delivery of possession of the land in question has not been given to the petitioner till date. In the meantime, more than 43 years have been elapsed and this is a clear case of inaction of the authority and more particularly the petitioner has been put to harassment by initiating a proceeding at the instance of the encroachers, without impleading the petitioner as a party to the proceeding, and consequentially delivery of possession of encroached land has not been made in favour of the petitioner. The sequence of facts clearly indicates that efforts have been made by the encroachers to grab the property by playing fraud on Court and succeeded in getting the order without impleading the petitioner as party. The fraudulent act of the encroacher, who was approaching the court without clean hand, should 19 be curbed in a strong hand so that justice can be delivered to the real person.
16. In Smith v. East Elloe Rural District Council, (1956) AC 736, Lord Denning said that "No judgment of a court, no order of a Minister, can be allowed to stand if it has been obtained by fraud. Fraud unravels everything".
17. In Smith v. East Ellows Rural District Council, (1956) 1 All ER 855, it has been held that "Fraud vitiated any act or order passed by any quasi judicial authority even if no power of review is conferred upon it. The effect of fraud would normally be to vitiate all acts and orders".
18. In R v. West Sussex Quarter Sessions, ex p Albert and Maud Johnson Trust Limited, (1974) QB 24, it has been held by Lord Denning that "there is ample authority for holding that, where there is evidence that the decision of an inferior court has been obtained by the fraud of a party or by collusion, the court of Queen's Bench will order it to be brought up and will quash it.
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19. In Smt. Shrisht Dhawan v. Shaw Brothers, AIR 1992 SC 1555, it has been held that "Fraud and collusion vitiate even the utmost solemn proceedings in any civilized system of jurisprudence. It is a concept descriptive of human conduct."
20. In S.P. Chengalvaraya Naidu v. Jagannath, (1994) 1 SCC 1: AIR 1994 SC 853, the apex Court in no uncertain terms observed "The principle of finality of litigation cannot be passed to the extent of such an absurdity that it becomes an engine of fraud in the hands of dishonest litigants. The courts of law are meant for imparting justice between the parties. One who comes to the Court, must comes with clean hands. We are constrained to say that more often than not process of the court is being abused. Property-grabbers, tax-evaders, bank-loan dodgers and other unscrupulous persons from all walks of life find the Court process a convenient lever to retain the illegal gains indefinitely. We have no hesitation to say that a person whose case is based on falsehood, has no right to approach the Court. He can be summarily 21 thrown out at any stage of the litigation............ A fraud is an act of deliberate deception with the design of securing something by taking unfair advantage of another. It is a deception in order to gain by another's loss. It is a cheating intended to get an advantage......A litigant, who approaches the Court, is bound to produce all the documents executed by him, which are relevant to the litigation. If we withhold a vital document in order to gain advantage on the other side then he would be guilty of playing fraud on the Court as well as on the opposite party."
21. In Indian Bank v. Satyam Fibres (India) Pvt. Ltd., (1996) 5 SCC 550 : AIR 1996 SC 2592, the apex Court observed that "since fraud affects the solemnity, regularity and orderliness of the proceedings of the court it also amounts to an abuse of the process of the Court that the courts have inherent power to set aside an order obtained by practicing fraud upon the court and that where court is misled by a party or the Court itself commits a mistake which prejudice a party, the court has the inherent power to recall its order.
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22. In R. v. Kensington, Income Tax Commissioner, (1917) 1 KB 486 at page 506, it was held that "the prerogative writ is not a matter of course; the applicant must come in the manner prescribed and must be perfectly frank and open with the Court."
23. In State of Haryana v. Karnal Distillery, AIR 1977 SC 781, the apex Court refused to grant relief on the ground that the applicant has misled the Court.
24. In Chancellor v. Bijayananda Kar, AIR 1994 SC 579, the apex Court held that a writ petition is liable to be dismissed on the ground that the petitioner did not approach the Court with clean hands.
25. As a matter of fact, the encroachers have deliberately and willfully not impleaded the petitioner as party before the appellate authority as well as before the revisional authority and by suppressing the fact before the court below in a fraudulent manner, opposite partyno.5 has tried to get an order in her favour to the detrimental interest of the petitioner, who has acquired a right by 23 virtue of the lease executed in his favour on 18.07.1974, particularly when the petitioner is a land oustee and his agricultural and homestead land had been acquired for the purpose of greater interest of the country for construction of NALCO project and, as such, a small piece of land, i.e., Ac.0.12 decimals was allotted in his favour for survival in Angul Town area, pursuant to Angul Town Lease Case No.88 of 1964. The encroacher, being adjacent to the land of the petitioner, tried to grab the property of the petitioner, even though she lost before the appellate authority, revisional authority, as well as in T.S. No 25 of 1989 filed by her before the Subordinate Judge, Angul.
26. In view of the law discussed above, since opposite party no.5 tried to play fraud on the court itself, she is not entitled to get any relief and her application should be dismissed in limine. Apart from the same, the encroachers had not approached the authorities concerned who are exercising quasi judicial powers, with a clean hand. For suppression of facts and having not approached this Court with a clean hand, the encroacher is not entitled 24 to get any relief, particularly when the valuable right accrued in favour of the petitioner is being jeopardized for last 43 years for no fault of him, on which this Court takes a serious view. In such view of the matter, the order dated 16.06.1994 passed by the revisional authority in Encroachment Revision Case No.8 of 1989 in Annexure-10 deserves to be quashed and is accordingly quashed. The opposite parties, more particularly opposite parties no.3 and 3 are directed to take necessary steps to evict the encroacher-opposite party no.5 from land allotted in favour of the petitioner forthwith, preferably within a period of two months, and deliver possession thereof to the petitioner.
27. The writ petition is allowed to the extent indicated above. However, there shall be no order as to costs.
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(VINEET SARAN) CHIEF JUSTICE Sd/-
(DR. B.R. SARANGI) Orissa High Court, Cuttack JUDGE The 24th July, 2018, Ashok/GDS True Copy P.A.