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2014 DIGILAW 577 (ORI)

Bhabani Shankar Pati v. State of Odisha

2014-09-08

BISWANATH RATH

body2014
JUDGMENT Biswanath Rath, J.: This writ petition is filed assailing the orders of the quasi-judicial authorities vide Annexures-3, 5 and 6 and also setting aside the notice under Annexure-2. 2. In assailing the impugned order, the learned senior counsel appearing for the petitioner submits that the authorities who have passed the impugned orders, have not considered the matter from the point of view of provisions contained in Section 7 of the O.P.L.E. Act(for short ‘the Act’). Similarly, the provisions of Section 8-A of the said Act have also not been considered. In assailing the impugned orders, the learned counsel for the petitioner submits that since the impugned order vide Annexure-3 was passed on the date of appearance fixed vide Annexure-3, the petitioner had no occasion to putforth his case and the impugned order vide Annexure-3 has been passed without affording reasonable opportunity of hearing to the petitioner. 3. He further assails the orders under Annexures-5 and 6 on the grounds that neither the authorities who passed orders under Annexures-5 and 6 have considered allegations of the petitioner in the Appeal nor there is any consideration of the provisions contained either under Section 7 or under Section 8-A of the O.P.L.E. Act. Mr. Mishra, learned senior counsel further contends that concerning the very same disputed land, a Objection Case No.1583/78 / 2/334 was initiated against the petitioner and was concluded by the order of competent authority, upon consideration of the case of the petitioner, final orders were passed recording the land in favour of the petitioner. As a consequence of which Record of Right vide page-23 were prepared in favour of the petitioner. 4. Per contra, learned Additional Government Advocate appearing for the opposite parties submitted that the notice was issued vide Annexure-2 providing natural justice to the petitioner in the matter. He, even though appeared on the date fixed, he did not file any show-cause. On the other hand, he participated in the hearing. Therefore, learned State counsel claims that not only they have provided opportunity of hearing to the petitioner and but there is also no illegalities in the impugned order vide Annexure-3. Consequently the Appellate authority or Revisional authority have also not committed any illegality in passing the impugned order vide Annexures-5 and 6. 5. Therefore, learned State counsel claims that not only they have provided opportunity of hearing to the petitioner and but there is also no illegalities in the impugned order vide Annexure-3. Consequently the Appellate authority or Revisional authority have also not committed any illegality in passing the impugned order vide Annexures-5 and 6. 5. On bare perusal of the documents annexed to the writ petition shows that the fact of encroachment by the petitioner over the disputed land was taken into consideration in a proceeding under Orissa Survey and Settlement Act, 1958 vide objection case No.1538/78 / 2/334 as appearing at Annexure-1 series and the said proceeding was concluded taking into consideration of the Amin’s report dated 18.06.1979 as appearing at pages-17 and 18 of the brief. The objection case was closed with a direction for making necessary correction in the Government record, recording the disputed land in favour of the petitioner. I also find from the record as appearing at pages-23 and 24 of the brief, the Government record in relation to the disputed plot, has also been corrected incorporating the name of the petitioner as the owner of the land. 6. Perusal of Annexure-2, shows that it is a notice under Section 7 of the O.P.L.E. Act vide E.C. No.512 of 2005 asking the petitioner to appear on 29.10.2005 and to show-cause as to why action as deemed fit under Sections 4, 6 and 7 of the O.P.L.E. Act shall not be taken against him. 7. The impugned order at Annexure-3 discloses disposal of E.C. No.512 of 2005 on the date of appearance, i.e., on 29.10.2005 itself when the notice vide Annexure-5 was issued for appearance of the petitioner the alleged encroacher on 29.10.2005 to show-cause as to why action as deemed fit and proper was not be taken against him. Disposing the matter finally on the very same day is improper. The impugned order vide Annexure-3 indicates that the matter is solely decided on the basis of the report of the R.I./Amin obtained for the purpose and no where discloses consideration of the case of the petitioner. I, therefore, hold the impugned order vide Annexure-3 as bad in law. On perusal of impugned order vide Annexure-5, it appears that both the Appellate authority as well as Revisional authority, have not considered the case of the petitioner. I, therefore, hold the impugned order vide Annexure-3 as bad in law. On perusal of impugned order vide Annexure-5, it appears that both the Appellate authority as well as Revisional authority, have not considered the case of the petitioner. There is even no consideration of the provisions contained in Sections 7 and 8-A vis-à-vis the case of the petitioner by either the Appellate authority or the Revisional authority. Both the Appellate order as well as Revisional order, appears to be passed solely on the basis of para-wise comment of the authorities and the Amin report as available on record. On being asked for production of copy of the appeal memo, a copy of the appeal memo is produced in Court. On perusal of appeal memo, it clearly discloses that the petitioner has taken all such grounds available to him including the allegation of violation of natural justice in the disposal of the proceedings vide impugned orders. Since the matter involved right of a party relating to his possession over the land, being an important right, needs to be considered with utmost care. The quasi-judicial authorities have failed to exercise their right vested on it under the statute they need to adjudicate the matter and not to dispose the matters merely based on report and statements by authorities under them. Under the above circumstances, I, therefore, also held the orders vide Annexures-5 and 6 bad in eyes of law. 8. Since the impugned orders are passed without considering the case of the petitioner at all, while setting aside the impugned orders vide Annexures-3, 5 and 6, I remit the matter back to the Revenue Authority to the stage of notice vide Annexure-2. Permitting the petitioner to file a detailed reply in support of his case and direct the Revenue Authority to decide the matter involved in E.C. Case No.512/05 afresh affording reasonable opportunity and considering the submission and arguments of the petitioner. The writ petition thus succeeds. However, there shall be no order as to costs.