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2010 DIGILAW 690 (ORI)

SIBARAM SAHU v. STATE OF ORISSA

2010-10-04

I.MAHANTY, V.GOPALA GOWDA

body2010
JUDGMENT : I. Mahanty, J. - The petitioner in W.P.C. No. 20258 of 2009 has filed that writ application with a prayer to direct Opp. Parties 1 to 9 to effect eviction of Opp. Party No. 10-the Members of the Taxi owners and drivers Association who are allegedly parking vehicles at the Berhampur old Bus stand and obstructing smooth flow of traffic to give effect to the order of eviction passed by the Tahasildar, Berhampur in L.E.C. No. 115 of 1996, which was affirmed in appeal by the Sub-Collector, Berhampur by his order dated 21.9.1996 in L.E.A. No. 60 of 1996 and which was also affirmed by the revisional order dated 28.4.1997 passed by the Addl. District Magistrate, Ganjam, Chhatrapur in O.P.L.E. No. 12 of 1996. 2. In course of hearing of the aforesaid writ petition, Mr. S.P. Mishra, learned Senior Advocate appearing for the Taxi owners and drivers-Opp. Party No. 10 submitted that, a connected writ petition i.e. W.P.C. No. 238 of 2005 is pending pertaining to the self-same subject matter and accordingly by order dated 30.09.2010 direction was issued for listing of W.P.C. No. 20258 of 2009 along with W.P.C. No. 238 of 2005 for analogous hearing. 3. In W.P.C. No. 238 of 2005, the petitioners therein, namely, Alok Kumar Patnaik and Others, filed that writ petition with a prayer for issuance of a direction to the Berhampur Development-Authority not to interfere with the possession of the petitioners in respect of the disputed land and with a further prayer to direct the State to settle the disputed land in-favour of the petitioners, considering their continuous and uninterrupted possession for about forty years and to restrain the Opp. Parties from interfering with the right of occupation of the petitioners in respect of the said land. In this writ petition an interim order was passed on 7.1.2005 in Misc. Case No. 182 of 2005 (inadvertently typed as Misc. Case No. 182 of 2004) directing maintenance of status quo in respect of the disputed property. 4. On perusal of the pleadings of the parties, it is clear that essentially both the writ applications pertain to the self-same land i.e. Survey No. 499 under Khata No. 372 in mouza Alakapur in Berhampur Town. Case No. 182 of 2004) directing maintenance of status quo in respect of the disputed property. 4. On perusal of the pleadings of the parties, it is clear that essentially both the writ applications pertain to the self-same land i.e. Survey No. 499 under Khata No. 372 in mouza Alakapur in Berhampur Town. It is also the admitted case of the parties that WPC No. 238 of 2005 was filed by the Members of Taxi owners and drivers Association who have been impleaded as Opp. Party No. 10 in WPC No. 20258 of 2009. 5. Dr. Tripathy, learned counsel appearing for the petitioners in WPC No. 20258 of 2009 submitted that, although an order of eviction has been passed since the year 1996 and the appeal and revision thereon were rejected by the Sub-Collector and the Addl. District Magistrate in the year 1997 and the order of eviction was effected twice, till date in violation of that order, the Members of Opp. Party No. 10 continued to use the self-same land for the purpose of parking. He further asserted that parking of vehicles is causing undue hindrances to the users of the road and in spite of repeated direction of the Berhampur Municipal Corporation as well as the Berhampur Development Authority for their eviction, no action in that regard is being taken by the district administration. 6. Mr. Choudhury, learned counsel appearing on behalf of Berhampur Municipal Corporation and Mr. Mohanty, learned counsel appearing on behalf of Berhampur Development Authority categorically supports the prayer of the petitioner in WPC No. 20258 of 2009 and submit that the Superintendent of Police has objected to the parking of such vehicles in spite of the order passed by the competent Court. Mr. Mohanty, appearing on behalf of the Berhampur Development Authority submitted that an alternative bite has already been demarcated by the Berhampur Development Authority for parking of vehicles, but the Members of Opp. Party No. 10-Association continue to occupy that land forcibly in spite of the eviction order passed by the competent Court. 7. Mr. S.P. Mishra, learned Senior counsel appearing on behalf of Opp. Party No. 10-Association submitted that, the Association has filed a Civil suit before the competent Court at Berhampur and the same is pending disposal, but he fairly admitted that no order of injunction has been passed therein. Apart from the above, Mr. 7. Mr. S.P. Mishra, learned Senior counsel appearing on behalf of Opp. Party No. 10-Association submitted that, the Association has filed a Civil suit before the competent Court at Berhampur and the same is pending disposal, but he fairly admitted that no order of injunction has been passed therein. Apart from the above, Mr. Mishra submitted that the Members of the Association celebrate 'Dasahara Puja' on the land in question by constructing temporary Pandal thereon and that necessary permission from the Police authorities has been obtained by them for celebrating 'Dasahara Puja' on the said site. But no documentary evidence of such permission, if any, could be produced by him in course of argument. He further vehemently submitted that the petitioner-Sibaram Sahu himself is an encroacher of the Government land and he has no locus standi to file the present P.I.L. 8. Mr. B. Routray, learned Senior counsel appearing on behalf of the petitioners in WPC No. 238 of 2005 has placed reliance on the averments made by the petitioners in paragraph-7 and 8 of the writ petition which runs as follows : 7. That it is pertinent to mention here that the lands adjoining to the disputed land are also Government lands, which have been forcibly occupied by different persons for years together and they have already constructed their dwelling houses over the said piece of land. As has already been indicated above that the lands appertaining to Khata No. 276, plot No. 497/189 and Khata No. 327 Plot No. 97, which belonged to the Government and those lands were forcibly occupied by Jogendra Nayak and others, they have managed to record their names in respect of the said lands. The other adjoining plots, which belonged to the Government is being forcibly occupied by a hotel owner and he has constructed a hotel in the said Govt. land in the name and style of "Jyoti Residence". Similarly in the adjoining plot of land another person has unauthorisedly occupied the said plot and has opened a bar, namely, 'Rigency Bar'. The other adjoining plots, which belonged to the Government is being forcibly occupied by a hotel owner and he has constructed a hotel in the said Govt. land in the name and style of "Jyoti Residence". Similarly in the adjoining plot of land another person has unauthorisedly occupied the said plot and has opened a bar, namely, 'Rigency Bar'. It is also further understood that the owner of the hotel 'Nandan' which is situated adjoining to the disputed land, has gained over some officers of opposite party to some how dispossess the petitioners from the disputed land so that he can amalgamate the disputed land with the land where the hotel stands and that is why the opposite party No. 1 has taken such drastic action in a very irrational manner without following any procedure of law. 8. That it is also pertinent to mention here that the disputed lands originally belonged to Defence Department of the Government of India, opposite party No. 3, but the same is lying vacant from the very inception. It is understood that in the year 1996 a proceeding was initiated under the Orissa Prevention of Land Encroachment Act against one Sashi Patra, who had claimed to be, the President of Dusshera Puja Mandap and in the said proceeding the petitioners were neither made parties nor any notice was given to them even though the petitioners are the real occupants in respect of the said plot of land. As has already been submitted above, though the Collector/Tahasildar had no jurisdiction under the OPLE Act to initiate any proceeding in respect of the land belonging to the Government of India, but it is not understood how the proceeding was initiated against Sri Sashi Patra under the provisions of the OPLE Act. Copy of such notice issued as against Sashi Patra in LAC No. 115 of 1996 is filed herewith as ANNEXURE-3. Though the proceeding was initiated, but no step has been taken thereafter as against Sri Sashi Patra. It is understood that the proceeding remained in pen and paper in the office of the Tahasildar, Berhampur. Notwithstanding continuous possession of the present petitioner in respect of the disputed land, at no point of time, any action has been taken to evict them from the said land nor they were given any notice whatsoever to vacate the said land. It is understood that the proceeding remained in pen and paper in the office of the Tahasildar, Berhampur. Notwithstanding continuous possession of the present petitioner in respect of the disputed land, at no point of time, any action has been taken to evict them from the said land nor they were given any notice whatsoever to vacate the said land. On the other hand, these petitioners have been in continuous and uninterrupted possession for more than the statutory period and they have been exercising their right of ownership with the knowledge of everybody including the State Government. 9. In response to the aforesaid contentions of the learned counsel for the petitioners, Dr. Tripathy, learned counsel appearing for the petitioner in WPC No. 20258 of 2009 denied the allegations made against the petitioner that he is the owner of a hotel in the area and his client is an encroacher of Government land. Insofar as the assertions of Mr. Routray is concerned and in particular, the averments made in paragraphs-7 and 8, Dr. Tripathy denied those averments and placed reliance on the order dated 28.4.1997, passed by the Addl. District Magistrate rejecting the revision filed by one Sashi Patra in OPLER No. 12 of 1996 wherein it has been observed as follows : xx xx Although the Advocate for the petitioner argued that the suit land belongs to Defence organization, but no any evidence is produced by him. Dr. Tripathy submitted that all the allegations of Opp. Party No. 10-Association and the petitioners in WPC No. 238 of 2005 being false and erroneous are denied since the order of eviction remained in operation against Opp. Party No. 10, the illegal occupants of Government land. 10. Learned Government Advocate contended that the Collector and the Superintendent of Police, Berhampur have been making repeated attempts to ensure free-flow of traffic in the area concerned since the continuous parking of vehicles of Opp. Party No. 10 in the said locality causes great public hindrance to traffic in the area. 11. We have carefully considered the submissions made by the learned counsel for the respective parties. On going through the pleadings and on perusing the documents annexed, it is clear that the order of eviction passed by the Tahasildar, Berhampur has been affirmed by the Sub-collector in appeal and also by the Addl. District. Magistrate in revision. 11. We have carefully considered the submissions made by the learned counsel for the respective parties. On going through the pleadings and on perusing the documents annexed, it is clear that the order of eviction passed by the Tahasildar, Berhampur has been affirmed by the Sub-collector in appeal and also by the Addl. District. Magistrate in revision. The Berhampur Municipal Corporation as well as the Berhampur Development Authority also support the case of the petitioner in WPC No. 20258 of 2009. The learned Government Advocate on instruction received from the Collector as well as the Superintendent of Police, Berhampur submitted that continuous parking on the site in respect of which direction for eviction has been issued, is not in public interest. The Berhampur Development Authority has also identified a nearby site for parking of vehicles of Opp. Party No. 10-Association. 12.1 Therefore, we are of the considered view that a writ of mandamus ought to be issued to the Collector, the Superintendent of Police, Berhampur Municipal Corporation as well as the Berhampur Development Authority to take all necessary steps for executing the order of the Addl. District Magistrate, Berhampur dated 28.04.1997 passed in OPLER No. 12 of 1996. 12.2 If the appropriate authority has granted permission to Opp. Party No. 10 to set up a temporary Pandal to celebrate 'Dasahara Puja', as asserted by the learned counsel appearing for them, them, Opp. Party No. 10 must undertake to remove the said pandal after celebration of the ensuing Dasahara Puja and make the land free from any encroachment. It is made clear that if no such permission, as claimed has been granted, it shall be open for the authority concerned to consider the application that may be filed by Opp. Party No. 10-Association by limiting such permission only for the purpose of celebration of Dasahara Puja and not for any other purpose. 12.3 Since it is claimed by the learned counsel for Opp. Party No. 10 that a Civil suit is pending adjudication, if maintainable, nothing stated in this order would be considered to have decided any issue raised therein. Party No. 10-Association by limiting such permission only for the purpose of celebration of Dasahara Puja and not for any other purpose. 12.3 Since it is claimed by the learned counsel for Opp. Party No. 10 that a Civil suit is pending adjudication, if maintainable, nothing stated in this order would be considered to have decided any issue raised therein. 12.4 The Collector, Berhampur is also directed to carry out an enquiry into the allegations made by the petitioners in WPC No. 238 of 2005 as noted in paragraphs-7 and 8 thereof, which have been quoted herein above and if any substance is found upon such enquiry, the Collector shall direct initiation of appropriate proceeding under the O.P.L.E. Act and proceed in the matter in accordance with law. 12.5 WPC No. 20258 of 2009 is allowed in terms of the directions given above and WPC No. 238 of 2005 is dismissed and all interim orders passed therein stand vacated. However, liberty is granted to the petitioners in WPC No. 238 of 2005 to seek appropriate remedy before the Court having competent jurisdiction, if of advised and if maintainable. Final Result : Dismissed