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2015 DIGILAW 425 (ORI)

Mrutunjaya Nayak v. State of Orissa

2015-07-22

AKSHAYA KUMAR RATH

body2015
JUDGMENT : Akshaya Kumar Rath, J. 1. Assailing the order of eviction dated 8.6.2015 passed by the Tahasildar, Mohana, opposite party No. 2, in L.E. Case No. 171 of 2015, vide Annexure-8, the petitioners have filed the present writ petition. 2. The case of the petitioners is that petitioner No. 2 is a landless person. He encroached upon the land of an area of Ac.2.00 dec. appertaining to Sabik Khata No. 38, Sabik Plot No. 302 of Mouza-Rekamera since 1975. The kissam of the land is Parbat. Petitioner Nos. 1 and 3 are the son and daughter of petitioner No. 2. They were separated from their father. The encroached area was divided among them. The petitioners possessed their respective encroached land peacefully by cultivating the same. They have also planted trees over the land. In the year 2006, Tahasildar, Mohana, opposite party No. 2, initiated L.E. Case Nos. 1134 of 2006 and 1405 of 2006 against the petitioners and issued notice to them to file show cause. In the said proceeding, the petitioners took a plea that they are in actual and continuous possession of the land for more than 30 years. Thereafter opposite party No. 2 initiated three cases being Case Nos. 480/2011, 481/2011 and 482/2011 respectively against the petitioners and issued notices to the general public inviting objections for settlement of the land in their favour. Since the opposite party No. 2 did not settle the land in their favour, they filed the writ petition being WP (C) No. 3495 of 2015 before this Court. By order dated 3.4.2015, a Bench of this Court disposed of the writ petition with a direction to the opposite party No. 2 to dispose of the application filed by the petitioners under Section 8-A of the Orissa Prevention of Land Encroachment Act (hereafter referred to as "the OPLE Act") after affording opportunity of hearing to them. While the matter stood thus, they received notice issued by the opposite party No. 2 on 5.6.2015, vide Annexure-7, directing them to appear on 8.6.2015. Pursuant to the same, they appeared on 8.6.2015 and on the same day, the order of eviction was passed. 3. Pursuant to issuance of notice, a counter affidavit has been filed by the Tahasildar, Mohana, opposite party No. 2. Pursuant to the same, they appeared on 8.6.2015 and on the same day, the order of eviction was passed. 3. Pursuant to issuance of notice, a counter affidavit has been filed by the Tahasildar, Mohana, opposite party No. 2. It is stated that the order passed by a Bench of this Court on 3.4.2015 in WP (C) No. 3495 of 2015 was received by the office of the opposite party No. 2 on 19.4.2015. On verification of the record in Encroachment Case Nos. 480, 481 and 482 of 2011, it was found that no application under Section 8-A of the OPLE Act was filed by the petitioner on 29.9.2011 for settlement of the encroached land, save and except the representation (without date) accompanied by a photostat copy of the order. Thereafter, the application was referred to the Revenue Supervisor, Mohana, opposite party No. 2, vide letter No. 876 dated 20.4.2015, vide Annexure-A/2, to cause an enquiry into the matter and submit a report. After enquiry, the Revenue Supervisor submitted a report on 4.5.2015, vide Annexure-B/2. Thereafter, the R.I, Mohana submitted Form-G on 3.6.2015, vide Annexure-C/2, against the petitioners regarding encroachment of the Government plot Nos. 299 and 302, Khata No. 38 of Mouza- Rekmera. On the basis of such Form-G, Encroachment Case No. 171 of 2015 was initiated against the petitioners. Accordingly, Form-A was issued to them calling upon the petitioners to show cause on 8.6.2015. All the petitioners appeared before the opposite party No. 2 on 8.6.2015 and admitted about encroachment of the Government land but could not produce any evidence either oral or documentary for settlement of the land under the provisions of Section 8-A of the OPLE Act. After hearing the matter, the order of eviction was passed on 8.6.2015. 4. Notice was issued by the Tahasildar, Mohana, opposite party No. 2, on 5.6.2015, vide Annexure-7, directing the petitioners to appear on 8.6.2015. On the same date the order of eviction was passed. 5. Anything done in undue haste can also be termed as arbitrary. In view of the same, the order dated 8.6.2015 passed by the Tahasildar, Mohana, opposite party No. 2, in Encroachment Case No. 171 of 2015, vide Annexure-8, is hereby quashed. Opposite party No. 2 is directed to make de novo enquiry and conclude the proceeding within two months from today after affording reasonable opportunity of hearing to the petitioners. In view of the same, the order dated 8.6.2015 passed by the Tahasildar, Mohana, opposite party No. 2, in Encroachment Case No. 171 of 2015, vide Annexure-8, is hereby quashed. Opposite party No. 2 is directed to make de novo enquiry and conclude the proceeding within two months from today after affording reasonable opportunity of hearing to the petitioners. The writ petition is allowed. Petition Allowed.