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2015 DIGILAW 478 (ORI)

Prafulla Kumar Meher v. Addl. District Magistrate

2015-08-17

B.K.NAYAK

body2015
JUDGMENT : B.K.NAYAK, J. 1. The petitioners in this writ petition challenge the order dated 10.05.2004 (Annexure-10) passed by the Tahasildar, Titilagarh –opposite party no.3 in Encroachment Case No.909 of 2003 imposing penalty and the confirming orders of the Sub-Collector, Titilagarh and Additional District Magistrate, Bolangir (Annexures-13 and 15) passed respectively in Encroachment Appeal No.1 of 2004 and Encroachment Revision No.4 of 2004. 2. Encroachment Case No.909 of 2003 was initiated by opposite party no.3 against the petitioners in respect of Ac.6.05 in plot no.400 and Ac.0.50 in plot no.383 under holding no.60 in mouza-Muthanpala. The Tahasildar passed order of forfeiture of the crops (Safed Musali) standing on the encroached land after issuance of notice to the petitioners and directed R.I., Bijepur to seize the said standing crops. Challenging the order of forfeiture, the petitioners filed Encroachment Appeal No.1 of 2004 before the Sub-Collector, Titilagarh, who stayed the order of forfeiture pending disposal of the appeal. It is alleged that taking advantage of the stay order, the petitioners removed the crop from the encroached land. The R.I. having reported this fact to the Tahasildar, the latter passed the impugned order under Annexure-10 dated 10.05.2004 imposing penalty of Rs.1,31,000/-on the petitioners. The petitioners paid Rs.50,000/-, but at the same time being aggrieved by the order of penalty filed petition in the appeal itself praying for reduction of the penalty amount. The Sub-Collector dismissed the appeal by order dated 29.05.2004 (Annexure-13) and upheld the penalty order of the Tahasildar holding that he has no power to reduce the penalty amount imposed by the Tahasildar. The petitioners challenged the appellate order under Annexure-13 before the Additional District Magistrate in Encroachment Revision No.4 of 2004 and the Additional District Magistrate dismissed the revision and upheld the original as well as the appellate orders imposing penalty, by his order under Annexure-15. 3. In assailing the impugned orders, the learned counsel for the petitioners submits that the imposition of penalty of Rs.1,31,000/-by the Tahasildar as confirmed by the appellate and the revisional authorities is pulpably illegal, since the Tahasildar has failed to take note of the provisions of Sections 6 and 7 (3) of the Orissa Prevention of Land Encroachment Act,1972 (in short ‘the Act’) and has assessed the penalty with reference to the commercial nature of the crop, which is contrary to the said provisions. It is also submitted by him that in the meantime, the petitioners have already vacated the encroached land and are no more in possession of the same. The learned Additional Government Advocate, on the other hand, submits that there is no infirmity in the impugned orders as the petitioners, taking advantage of the stay order passed by the Sub-Collector in appeal, illegally removed the crop, which had been forfeited by the Tahasildar. 4. It is not known whether any eviction order in terms of Section 7(1) of the Act was passed by the Tahasildar against the petitioners or not in the encroachment case. However, it appears from the show cause notice (Annexure-4) issued to the petitioners in terms of Section 9 of the Act that they were asked to show cause as to why action shall not be taken under Section 4(6) and (7) of the Act but pending submission of show cause, order for forfeiture of the crop standing on the encroached land was passed under Section 7 of the Act. 5. Section 4 of the Act makes provision with regard to liability of the encroacher for assessment of rent. Section 6 of the Act provides for liability of the encroacher to penalty of a sum calculated at the rate not exceeding hundred rupees per acre of land for each year of unauthorized occupation; provided that where the encroacher is a landless person, he shall not be liable to pay any penalty under the Section. Section 7 contemplates passing of three types of orders against the encroacher, namely, eviction of the encroacher from the encroached land and forfeiture of the crop or other product raised on the land, or any building or construction raised thereon as per sub-section (1) thereof, and, in case of failure to remove the encroachment within the specified time for imposition of fine which may extend to fifty rupees and a daily fine of rupees ten until the encroachment has been removed. Sub-section (3) of Section 7 makes provision for imposition of fine on the encroacher who has failed to remove the encroachment within the time specified in the notice, which runs as under: “(3) If such a person fails to remove the encroachment within the time specified in the notice, [the Tahasildar] may in his discretion, in addition to the order of forfeiture, impose a fine which may extend to fifty rupees and a daily fine of rupees ten until the encroachment has been removed: [Provided that the aggregate of the fines payable under this sub-section shall in no event exceed an amount equal to twice the market value of the encroached land; Provided further that subject to such conditions as may be prescribed, the Collector may, in suitable cases, either reduce or remit the amount payable by the way of fine under this sub-section].” 6. It is apparent from the provision of sub-section (3) of Section 7 that a fine can be imposed in case of failure to comply with the eviction order within the time stipulated in the notice. Therefore, the imposition of penalty in the instant case cannot be termed as a fine within the meaning of sub-section (3) of Section 7. It can, however, be said to be an order of penalty in terms of Section 6 of the Act, according to which the quantum of penalty shall not exceed Rs.100/-per acre of land for each year of unauthorized occupation. Therefore, no penalty can be imposed on the basis of value of the crop raised on the encroached land as has been done by the Tahasildar in the instant case. 7. In the aforesaid view of the matter the order of the penalty passed by the Tahasildar as well as the appellate and revisional orders confirming the same are unsustainable and I quash the same. The matter is remitted back to the Tahasildar, Titilagarh to calculate the penalty strictly within the parameter of Section 6 of the Act. In case the penalty amount on re-calculation comes to less than Rs.50,000/-, after adjustment of the same against the amount already deposited by the petitioners towards part payment of the penalty, the balance amount shall be refunded to them. In case, the penalty comes to more than Rs.50,000/-, the amount in excess of Rs.50,000/-be recovered from the petitioners. The writ petition is accordingly disposed of.