JUDGMENT : B.K. Patra, J. - This is an application filed by the Petitioner under Articles 226 and 227 of the Constitution praying for the issue of a writ in the nature of mandamus directing the opposite parties not to interfere with the possession and enjoyment by the Petitioner of the house standing on Holding No. 757 in Ward No. 21 of the Cuttack Municipality. The Petitioner?s case is that he has been n possession of that house situated on the Dock Road near the Cuttack Medical Compound (Sriram Chandra Bhanja Medical College Hospital), and has been using it for his business purpose. In the year 1960, he was given notice by the Municipality (Annexure-A) u/s 273-A, of the Orissa Municipal Act, 1950 (hereinafter referred to as the Act), stating that he had constructed the house on municipal land without permission and directing him to dismantle the building within seven days. On representation made by The Petitioner, the notice was withdrawn and The house was assessed to holding tax and house tax in the year 1961 (Annexure-B). Since then the Petitioner has been continuously paying holding tax and house tax and has been obtaining receipts Therefor. In the year 1966, the Municipality started a criminal case against The Petitioner u/s 255(2) read with Section 383(1) of the Act on the allegation that he has put up a wooden cabin on that land without taking a licence therefor. The Petitioner was acquitted (Vide Annexure C) on the ground that there was no wooden cabin there and that The Petitioner is carrying on business in a house which has been assessed to tax. In spite of it, the Executive Officer, Cuttack Municipality thereafter sent a requisition to the Tahasildar, Cuttack for taking Action against the Petitioner under the Orissa Prevention of Land Encroachment Act, 1954 (hereinafter referred to as the Encroachment Act), on the allegation that the Petitioner is maintaining a wooden cabin on the disputed land. On 28.11-1967, the Tahasildar passed an order assessing penalty on the Petitioner and imposing a fine on him under Sections 3 and 5 of the Encroachment Act (Vie Annexure D). Against the said order, the Petitioner preferred an appeal before the Sub-divisional Officer which is still pending. On 28.11-1967, the Tahasildar passed an order assessing penalty on the Petitioner and imposing a fine on him under Sections 3 and 5 of the Encroachment Act (Vie Annexure D). Against the said order, the Petitioner preferred an appeal before the Sub-divisional Officer which is still pending. Meanwhile, the Subdivisional Officer, Cuttack issued a notice to The Petitioner u/s 6(1) of the Encroachment Act alleging that he has unauthorisedly encroached upon Municipal land and asked him to show cause why he should not be evicted. The Petitioner showed cause and the proceeding is still pending. When the matter stood thus, the opposite parties on 21.5.1967 went to the disputed holding with armed police force and a number of labourers and began demolishing the house of the Petitioner standing on the disputed land. The Petitioner protested and approached the Revenue Officer who issued a communication to the Executive Officer of the ?Municipality that the Petitioner had filed an appeal before the Sub. Divisional Officer and the matter was sub judice. It is only then that the opposite parties stopped further demolition of the house. The Petitioner apprehends that at any moment the Petitioner?s house would be demolished further by the opposite parties and therefore prays for the issuance of a writ of the nature already referred to. In the counter affidavit filed by the opposite parties, it is alleged that the Petitioner placed a wooden cabin on the Dock Road near the Medical College Hospital sometime in 1964 without the permission of the Municipality and opened a confectionery business there. It, however, admitted by the opposite parties that the disputed holding was assessed in the name of the Petitioner on 12.8.1961. Despite it, it is maintained that the Petitioner has encroached upon the road side land without the permission of ?The authorities concerned and for I The removal of the encroachment notice Annexure A, was given. As encroachment was not removed within Seven days as required in the notice, the municipal authorities had no other alternative but to remove The wooden cabin, and finally the wooden cabin was dismantled on 30.6.1968. It is asserted that the Petitioner had never lodged any protest at the time of removing the cabin. It is admitted by the opposite parties that a communication was, received by them from the Revenue Officer, Cuttack on 21.5.1968 by which date the cabin had been partially demolished. It is asserted that the Petitioner had never lodged any protest at the time of removing the cabin. It is admitted by the opposite parties that a communication was, received by them from the Revenue Officer, Cuttack on 21.5.1968 by which date the cabin had been partially demolished. But as the encroachment proceeding, which according to the Revenue Officer?s letter was pending adjudication, has nothing to do with the removal of the cabin, the opposite parties finally demolished the wooden cabin on 30.6.1968. t is finally alleged that after demolition of the cabin, the Petitioner has started construction of a new shed on the disputed holding for which information has been duly lodged against him at the Police Station. 2. On a perusal of the writ petition ad the counter affidavit and on hearing the learned Counsel for the parties, we find that it is admitted by the opposite parties that the petition has been assessed to holding taxes in respect of the structure that is standing on the disputed land. This, conduct of the Municipality does not fit in with the allegation that the structure stands on municipal land which has been encroached upon by the Petitioner it is stated on behalf of the Municipality that assessment of holding tax on the land was a mistake on the part of the municipality an that the land does not cease to be encroached land merely by the fact that the structure standing thereon is assessed to holding tax. Whether the land in question is actually a road side land belonging to the Municipality as alleged by the opposite parties or whether it is a land belonging to the Petitioner on which he has put up the structure be it so building or a wooden cabin is a disputed question of fact which cannot be decided in a writ proceeding. But the fact remain that the notice Annexure A was issued to the Petitioner u/s 273 A of the Act, a provision which occurs in Chapter X VII of the Act relating to building regulations. But the fact remain that the notice Annexure A was issued to the Petitioner u/s 273 A of the Act, a provision which occurs in Chapter X VII of the Act relating to building regulations. That section says that where the construction or reconstruction of any building has been commenced without obtaining the permission of the municipality or is being carried on, or has been completed otherwise than in accordance with the plan, or is being carried on or has been completed in breach of any of the provisions of the Act or the Rules made thereunder, the Executive Officer of the Municipality may make an order requiring the owner or the builder to demolish the work done or so much of it as has been unlawfully Executed. Issue of such a notice pre-supposes that the land on which the building is constructed belongs to the person concerned and that the building is constructed either without any permission or that the construction is not in accordance with the plan approved. Such a notice is not meant to be given where the building is constructed on a land belonging to the Municipality. Where the building itself is constructed on a land belonging to the municipality, the question of assessing it to house tax would not arise. It is admitted by the opposite parties that the structure on the disputed land had been assessed to holding these circumstances prima facie negative the stand of the opposite parties that the land on which the structure stands is itself an encroachment on municipal land so as to attract the provisions of the Encroachment Act. If it is the case of the Municipality that the disputed land is municipal land, the Municipality has to establish their right in proper Court of Law. Till then the opposite parties have no right to interfere with the Petitioner?s possession of the land. 3. In the circumstances, we would allow this application. A writ of mandamus be issued directing the opposite parties not to interfere with the possession of the disputed land and the structure standing thereon, until they establish their title in a proper Court of law. In the circumstances, there would be no order as to costs. R.N. Misra, J. 4. I agree. Final Result : Allowed