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2015 DIGILAW 264 (ORI)

Jagabandhu Rout v. Collector, Kendrapara

2015-04-20

A.K.RATH

body2015
JUDGMENT Dr. A.K.RATH, J. - Challenge is made to the order dated 25.02.2014 passed by the Collector, Kendrapara, opposite party no. 1, in Encroachment Revision Case No. 04 of 2014 dismissing the same and thereby confirming the order passed by the Sub-Collector, Kendrapara, opposite party no.2, in Encroachment Appeal No.2 of 2014. By order dated 12.08.2014, the Sub-Collector, opposite party no.2 confirmed the order of eviction dated 03.04.2014 passed by the Tahasildar, Kendrapara-opposite party no.3 in Encroachment Case No.1950 of 2013. 2. Bereft of unnecessary details, the short facts of the case of the petitioner are that plot no.2015 appertaining to khata no.751, area Ac. 0.34 dec. of Baro G.P. is a Government land. Though the nature of the said plot is recorded as Smasan, but the same was not used as a Smasan. Some villagers encroached upon a portion of the said plot in the year 1955. The petitioner has constructed a house over an area of Ac.0.06 dec. and running his Rice Huller thereon. He is in continuous possession of the land since 1955. In the year 1981, the petitioner as proprietor of “Tara Tarini Rice Mill” at Baro applied to allot the said land on long term lease basis for his Rice-Huller business through the General Manager, D.I.C., Cuttack. The Revenue Officer, Cuttack instructed the Tahasildar to process the proposal for de-reservation of the land. Accordingly, the Tahasildar, Kendrapara, opposite party no.3 initiated a dereservation proceeding being Baro De-reservation Case No.52 of 1986 and de-reserved Ac.0.06 dee. from plot no.2015 for homestead purpose. The opposite party no.3 had also recommended to grant lease in favour of the petitioner after taking market value. In consolidation operation, plot and khata number has been changed to 2529 and 1228 respectively. The kissam of land is homestead. Thereafter, the matter was referred to the Sub-Collector, Kendrapara, opposite party no.2 for approval. Instead of granting lease, Encroachment Case No.1099 of 1989 was initiated against the petitioner. Thereafter, another Encroachment Case No.51 of 1996 was initiated against son of the petitioner. It is further stated that the petitioner and his son have filed a Title Suit No.74 of 1998 in the Court of the learned Civil Judge (Senior Division), Kendrapara along with an application for injunction which was subsequently transferred to the learned Civil Judge (Junior Division), Kendrapara and renumbered as T.S.No.191 of 2001. The said suit is pending adjudication. It is further stated that the petitioner and his son have filed a Title Suit No.74 of 1998 in the Court of the learned Civil Judge (Senior Division), Kendrapara along with an application for injunction which was subsequently transferred to the learned Civil Judge (Junior Division), Kendrapara and renumbered as T.S.No.191 of 2001. The said suit is pending adjudication. While the matter stood thus, the Sub-Collector, opposite party no.2 issued an encroachment notice bearing Encroachment Case No.678 of 2011 to demolish the house standing on the land. It is further stated that the opposite party no.4 flied a writ petition, being W.P.(C) No.1157 of 2013, before this Court for a direction to the opposite parties 1 and 2 to remove unauthorized encroachment from the land in question. By order dated 24.6.2013, the same was disposed of with a direction to the writ petitioner to file a representation before the Collector-opposite party no.1 within a period of two weeks. It was further observed that the Collector will cause an enquiry into the allegation made by the petitioner by a competent officer and if it is found that the allegations are true, necessary action will be taken in accordance with law after issuance notice to the parties concerned. Thereafter, the Collector, opposite party no. 1 had issued notice to the petitioner for compliance of the order dated 24.06.2013 passed by this Court, vide Annexure-2. It is further stated that the petitioner flied an application for recalling the order dated 24.06.2013 passed in W.P.(C) No.1157 of 2013. This Court directed the petitioner to raise his grievance before the Collector, opposite party no. 1. He flied objection before the Collector, opposite party no. 1, but then the Collector, opposite party no.1 directed the Tahasildar, opposite party no.3 for eviction of the petitioner from encroached land. Thereafter, the Tahasildar, opposite party no.3 issued notice to the petitioner for appearance on 03.04.2014. Another notice was also issued directing the petitioner to remove the encroachment within thirty days. Thereafter, the petitioner filed writ petition, being W.P.(C) No.6970 of 2014, before this Court, inter alia, challenging the order of Collector, opposite party no.l and notice of eviction issued by the Tahasildar, opposite party no.3 in Eviction Case No.1950 of 2013. Another notice was also issued directing the petitioner to remove the encroachment within thirty days. Thereafter, the petitioner filed writ petition, being W.P.(C) No.6970 of 2014, before this Court, inter alia, challenging the order of Collector, opposite party no.l and notice of eviction issued by the Tahasildar, opposite party no.3 in Eviction Case No.1950 of 2013. The said writ petition was disposed of on 09.04.2014 granting liberty to the petitioner to file an appeal against the eviction order passed by the Tahasildar, opposite party no.3, vide Annexure-3. Thereafter, the petitioner filed an appeal before the Sub-Collector, Kendrapara-opposite party no.2, which was registered as Encroachment Appeal No.2 of 2014. By order dated 12.08.2014, the appeal was dismissed. Challenging the said order, the petitioner filed Encroachment Revision before the Collector, Kendrapara, opposite party no.l, on 27.08.2014 along with an application for stay of eviction order. Since no number was assigned, he again approached this Court in W.P.(C) No.17489 of 2014. By order dated 12.9.2014, vide Annexure-6, this Court directed the Collector-opposite party no. 1 to register the revision immediately and dispose of the same within a period of six months after affording opportunity of hearing to the parties. After disposal of the writ petition, the Collector, opposite party no.1 registered the case, which was numbered as Encroachment Revision Case No.4 of 2014. By order dated 25.02.2015, vide Annexure-7, opposite party no.1 dismissed the said revision. 3.Heard Mr.S.K.Nayak-2, learned counsel for the petitioner and Mr.P.K. Muduli, learned Additional Standing Counsel for the State-opposite party. 4. Mr. Nayak, learned counsel for the petitioner, strenuously contends that the Collector-opposite party no.1 committed manifest error in holding inter alia that the kissam of land is Samsan , though in the consolidation R.O.R. the same is described as Gharabari. He further submits that since the petitioner is in actual, continuous and undisputed occupation of the land for more than thirty years by the date of institution of the proceeding, the Tahasildar, opposite party no.3 ought to have referred the case to the Sub-divisional Officer under Section 8-A of the Orissa Prevention of Land Encroachment Act, 1972 (for short “O.P.L.E. Act”). The Tahasildar-opposite party no.3 has committed illegality and impropriety in not referring the matter to the Sub-Collector opposite party no.2, for settlement of the land. 5.Per contra, Mr. Muduli, learned Additional Standing Counsel for the State supports the orders passed by the opposite parties 1 to 3. The Tahasildar-opposite party no.3 has committed illegality and impropriety in not referring the matter to the Sub-Collector opposite party no.2, for settlement of the land. 5.Per contra, Mr. Muduli, learned Additional Standing Counsel for the State supports the orders passed by the opposite parties 1 to 3. 6.The scope and jurisdiction of the High Court in a writ of certiorari is no more res integra. The Constitution Bench of the apex Court in the case of Syed Yakoob Vrs. K.S. Radhakrishna and others, AIR 1964 SC 477 , in paragraphs 7 and 8 of the report held as follows:- “(7) The question about the limits of the jurisdiction of High Courts in issuing a writ of certiorari under Art. 226 has been frequently considered by this Court and the true legal position in that behalf is no longer in doubt. A writ of certiorari can be issued for correcting errors of jurisdiction committed by inferior Courts or tribunals; these are cases where orders are passed by inferior Courts or tribunals without jurisdiction, or in excess of it, or as a result of failure to exercise jurisdictions. A writ can similarly be issued where in exercise of jurisdiction conferred on it, the Court or Tribunal acts illegally or improperly, as for instance, it decides a question without giving an opportunity to be heard to the party affected by the order, or where the procedure adopted in dealing with the dispute is opposed to principles of natural justice. There is, however, no doubt that the jurisdiction to issue a writ of certiorari is a supervisory jurisdiction and the Court exercising it is not entitled to act as an appellate Court. This limitation necessarily means that findings of fact reached by the inferior Court or Tribunal as a result of the appreciation of evidence cannot be reopened or questioned in writ proceedings. An error of law which is apparent on the face of the record can be corrected by a writ. but not an error of fact, however grave it may appear to be. In regard to a finding of fact recorded by the Tribunal, a writ of certiorari can be issued if it is shown that in recording the said finding, the Tribunal had erroneously refused to admit admissible and material evidence, or had erroneously admitted inadmissible evidence which has influenced the impugned finding. In regard to a finding of fact recorded by the Tribunal, a writ of certiorari can be issued if it is shown that in recording the said finding, the Tribunal had erroneously refused to admit admissible and material evidence, or had erroneously admitted inadmissible evidence which has influenced the impugned finding. Similarly, if a finding of fact is based on no evidence, that would be regarded as an error of law which can be corrected by a writ of certiorari. In dealing with this category of cases, however, we must always bear in mind that a finding of fact recorded by the Tribunal cannot be challenged in proceedings for a writ of certiorari on the ground that the relevant and material evidence adduced before the Tribunal was’ insufficient or inadequate to sustain the impugned finding. The adequacy or sufficiency of evidence led on a point and the inference of fact to be drawn from the said finding are within the exclusive jurisdiction of the Tribunal, and the said points cannot be agitated before a writ Court. It is within these limits that the jurisdiction conferred on the High Courts under Art. 226 to issue a writ of certiorari can be legitimately exercised (vide Hari Vishnu Kamath Vrs. Ahmed Ishaque, 1955-1 SCR 1104: [(5)1955 SC 233), Nagendra Nath v .Commr. of Hills Division, 1958 SCR 1240 : ( AIR 1958 SC 398 ) and Kaushalya Devi v. Bachittar Singh, AIR 1960 SC 1168 . It is, of course, not easy to define or adequately describe what an error of law apparent on the face of (1) (1955) 1 S.C.R. 1104 . (2) [1958] S.C.R. 1240. (3) A.1.R. 1960 S.C. 1168. (8) It is, of course, not easy to define or adequately describe what an error of law apparent on the face of the record means. What can be corrected by a writ has to be an error of law; but it must be such an error of law as can be regarded as one which is apparent on the face of the record. What can be corrected by a writ has to be an error of law; but it must be such an error of law as can be regarded as one which is apparent on the face of the record. Where it is manifest or clear that the conclusion of law recorded by an inferior Court or Tribunal is based on an obvious mis- interpretation of the relevant statutory provision, or sometimes in ignorance of it, or may be, even in disregard of it, or is expressly founded on reasons which are wrong in law, the said conclusion can be corrected by a writ of certiorari. In all these cases, the impugned conclusion should be so plainly inconsistent with the relevant statutory provision that no difficulty is experienced by the High Court in holding that the said error of law is apparent on the face of the record. xxx xxx xxx” 7. Bearing in mind the enunciation of law laid down by the apex Court in the decision cited supra, this Court has gone through the impugned orders. The submission of Mr. Nayak, that the petitioner is in continuous possession of the land for more than thirty years, is difficult to fathom. Except pleadings, there is no evidence to that effect. Pleading is not proof. So the contention of Mr. Nayak that the Tahasildar, opposite party no.3 ought to have referred the matter to the Sub-Collector, opposite party no.2 under Section 8-A of the O.P.L.E. Act has no legs to stand. Though the petitioner has taken the plea of adverse possession, but failed to substantiate the same. Adverse possession is a mixed question of fact and law. The same cannot be adjudicated in a writ petition without any foundational facts and evidence on record. Further, it is admitted by the petitioner that he is in possession of the Government land. 8. It is trite that if the ultimate conclusion is correct, the Court will not interfere with the reasons assigned by the quasi judicial authorities. To put it other words, the reasons assigned by the quasi judicial authorities may not be correct, but if the ultimate conclusion is correct, the Court may not interfere with the order. 9. There being no error apparent on the face of the record, this Court is not inclined to interfere with the orders passed by the Court below. Accordingly, the writ petition is dismissed. Petition dismissed.