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2015 DIGILAW 535 (ORI)

Santanu Kumar Jena v. Collector, Kendrapara

2015-09-10

BISWANATH RATH, D.H.WAGHELA

body2015
JUDGMENT : Biswanath Rath, J. 1. In filing the afore-stated Public Interest Litigation, the villagers of Beltala in the district of Kendrapara have sought for direction to the Tahasildar, Pattamundai-opposite party No. 2 from this Court to work out the direction of the Collector, Kendrapara-opposite party No. 1, appearing at Annexure-2 in disposal of a representation at the instance of the petitioners based on the direction of this Court in a previous Public Interest Petition bearing W.P. (C). (PIL) No. 11341 of 2014. The short fact involved in the case is that the petitioners, a group of villagers, in the first instance moved this Court vide W.P. (C). (PIL) No. 11341 of 2014 in the matter of eviction of unauthorized encroachers over reserved land belonging to Government. Considering the limited request of the petitioners and as a representation in the said regard was pending with the Collector, the above litigation was closed with a direction to the Collector, Kendrapara to dispose of the representation dated. 16.12.2013 filed by the petitioners by passing reasoned order but in accordance with law. Petitioners in filing the present Public Interest Litigation contends that pursuant to the above direction of this Court, the Collector, Kendrapara took up the representation for consideration and in disposing the representation by his order dated 31.12.2014, in the concluding part of the said disposal, directed the Tahasildar, Pattamundai to evict the encroachers from objectionable Government land and further in the event of any encroachers found to be landless and otherwise eligible to get homestead land, their cases may be disposed of following the procedures under the Orissa Prevention of Land Encroachment Act taking into consideration the availability of suitable Government land, the petitioners alleged that in spite of the above direction of the Collector, Kendrapara, the Tahasildar, Pattamundai remains unmoved compelling the present petitioners to seek intervention of this Court by issuing appropriate direction. 2. Heard learned counsel for the petitioners as well as Sri M.S. Sahoo, learned Additional Government Advocate for the State-opposite parties. From the earlier disposal of the Public Interest Litigation, we find the said petition at the instance of the petitioners was disposed of with mere direction to the Collector to consider their representation and take a decision in accordance with law. From the earlier disposal of the Public Interest Litigation, we find the said petition at the instance of the petitioners was disposed of with mere direction to the Collector to consider their representation and take a decision in accordance with law. But from perusal of the order of the Collector, as appearing at Aannexure-2, it transpires that the Collector while considering the representations of the petitioners has transgressed the jurisdiction of the Tahasildar available under Section 7 of the Orissa Prevention of Land Encroachment Act, 1972 and, in the process, straightway gave a direction to the Tahasildar to evict the encroachers and so far as landless encroachers are concerned, their cases to be dealt with in a particular manner. The claim of the petitioners appears to be under the Orissa Prevention of Land Encroachment Act and in case anybody is found to be in unauthorized possession of Government land then procedure, as available, under Section 7 of the Orissa Prevention of Land Encroachment Act needs to be followed and such issues are required to be not only taken up by the concerned Tahasildar but also are required to be disposed of giving opportunity of hearing to the parties likely to be aggrieved. Further in case anybody is in occupation of any such land for more than thirty years is desirous of settling of the Government land in his favour, remedies are available under Section 8-A of the Orissa Prevention of Land Encroachment Act, 1972 is required to be followed. From perusal of the directions given by the Collector under Annexure-2, it appears that the Collector exceeded his jurisdiction in matter the particular passed order in gross violation of the provisions as contained in the Orissa Prevention of Land Encroachment Act. A further perusal of the order under Annexure-2, it also reveals that while the Collector gave' its consideration to the representation at the instance of the petitioners, there appears, there is no opportunity to the parties, likely to be affected by virtue of such action. 3. Law is fairly well settled as laid down in the case of Nezir Ahmad v. King Emperor reported in AIR 1936 PC 253 (2), in between Municipal Corporation of Delhi v. Jagadish Lal and another as reported in 1970 AIR (S.C.) 7, in between Ramchandra Keshav Adke & Ors. v. Govind Joti Chavare & Ors. 3. Law is fairly well settled as laid down in the case of Nezir Ahmad v. King Emperor reported in AIR 1936 PC 253 (2), in between Municipal Corporation of Delhi v. Jagadish Lal and another as reported in 1970 AIR (S.C.) 7, in between Ramchandra Keshav Adke & Ors. v. Govind Joti Chavare & Ors. as reported in 1975 AIR (SC) 915, where a power is given to do a certain thing, if a matter needs to be decided in a particular manner in a certain way the thing must be done in that way or not at all. In this particular case, there is a prescribed law under the Orissa Prevention of Land Encroachment Act giving particular power to particular person and the case of the petitioners was required to be dealt with following the procedure laid therein only. 4. Considering the direction passed by this Court in the previous round of litigation, the Collector ought to have at best considered the representation and in the event any encroachment was found/observed, it was incumbent upon the Collector to give necessary direction to the Tahasildar, the competent Authority under the Act, for initiation of the proceedings against the unauthorised encroachers and Tahasildar would have dealt with the matter in accordance with law after affording opportunity of show cause and hearing the parties, likely to be affected. Thus, it clearly appears that the exercise of power and the direction of the Collector are all misreading of the direction of this Court and under misconception of law and thus such orders/directions cannot be enforced in the eye of law. 5. Under the circumstances, while disapproving the action of the Collector and the direction with regard to eviction of the unauthorized encroachers, but however since the Collector has come to notice encroachment over Government land, in modification of his direction, we direct the Collector, Kendrapara to immediately refer the matter to the Tahasildar to look into the matter immediately and initiating encroachment proceedings against the unauthorised encroachers, as required under Section-7 of the Orissa Prevention of Land Encroachment Act and dispose of the proceedings, so initiated, as expeditiously as possible, preferably within a period of four months from the date of this order and after affording reasonable opportunity of hearing to, the parties likely to be affected. The Tahasildar is also further directed that the proceedings to be initiated, shall be decided on its own merit and without being influenced by the observations made by the Collector under Annexure-2. 6. Since the matter has been decided at the stage of admission, a free copy of this order be handed over to the learned Additional Government Advocate for his onward communication to the Collector as well as the Tahasildar concerned for their action and necessary decision in the matter. The writ petition is disposed of with above direction. However, there is no order as to cost. I agree.