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2015 DIGILAW 68 (ORI)

Mitu Behera v. Collector, Mayurbhanj

2015-02-05

BISWANATH RATH

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JUDGMENT : Biswanath Rath, J. By filing this writ petition, the petitioner has assailed the order passed by the Appellate Authority as available under Annexure 5 (Series). It is brought to my notice that the issue-involved in the Encroachment proceeding has already visited this Court in two of the writ petitions. In the first round of litigation at the instance of the interveners this Court while disposing the writ petition No.23524 of 2012 passed the following order: “This writ petition has been filed challenging the inaction on the part of the opposite parties in not evicting the encroachers from the gochar land pertaining to plot No.724 and 725 under khata No.261 in Mouza-Raghunathpur. 2. It is submitted by the learned counsel for the petitioners that in this regard, the petitioners have already filed a representation before the Collector, Mayirbhanj with a copy to the Sub -Collector, Baripada and Tahasildar, Baripada. Since the Tahasildar, Baripada is the competent person to dispose of the representation of the petitioners, he is directed to make spot inspection and if he found that encroachment is made upon the Government land, he should take necessary action for evicting the encroachers from the Government land. The writ petition is accordingly disposed of.” (2) In the second round of litigation in disposing the writ petition No.17075 of 2014 at the instance of very same intervener this Court again passed the following order : “Heard Mr. Prafulla Ku. Rath, learned counsel for the petitioner and Mr. J.P. Patnaik, learned Addl. Government Advocate for opposite party. This is the second round of litigation. Earlier, some of the petitioners had approached this Court in W.P.(C) No. 23124 of 2012 with the grievance that opposite parties were not evicting the encroachers from the gochar land pertaining to Plot no. 724 and 725 under Khata No. 261 in mouza Raghunathpur. By order dated 21.12.2012, the aforesaid writ petition was disposed of by requiring the Collector, Mayurbhanj to dispose of the representation of the petitioners already pending on the issue before him and to make a spot inspection with the direction that if he found that encroachment had been made upon the Government land, he would take necessary steps for evicting the encroachers therefrom. The petitioners have returned to this Court contending that no further action has been taken on the representation as per the direction in the earlier proceeding. The petitioners have returned to this Court contending that no further action has been taken on the representation as per the direction in the earlier proceeding. Meanwhile, they have submitted a fresh representation to the Collector, Mayurbhanj with a copy to the Sub-Collector and Tahasildar, Baripada, but no decision is forthcoming. In the above view of the matter, this petition stands closed with a direction to the Tahasildar, Baripada to comply with the order dated 21.12.2012 passed in W.P.(C) no. 23124 of 2012 and take necessary action in law without fail within a period of four weeks from the date of receipt of certified copy of this order. The petitioner would submit a certified copy of this order within a week before Tahasildar, Baripada so as to enable him to do the needful. Any failure to comply with this order would be viewed seriously.” (3) The petitioner assailed the order of the Appellate Authority on the premises of the dismissal of the Appeal on the ground that the Appellate Court has become functus officio to adjudicate the proceeding. I have perused both the writ petitions. In the first writ petition this Court while disposing the matter directed the Tahasildar competent to dispose the representation of the petitioner therein and directed the Tahasildar to have a spot inspection and if it finds the encroachment is made upon the Government land he should take necessary action for evicting the encroachers from the Government land. The second writ petition was filed assailing the inaction of the Tahasildar for evicting the encroachers even after an order is passed in the encroachment case. This Court while disposing of the second writ petition found that the petitioner has filed a fresh representation to the Collector, Mayurbhanj and Tahasildar, Baripada and no decision on the same is taken thereon and further directed the Tahasildar to comply with the order dtd.21.12.2012 passed in W.P. (C) No.23124 of 2012 and take necessary action in accordance with law without fail within a period of four weeks from the date of order. (4) I find that the order passed in the Encroachment Proceeding has been challenged by the petitioner in an Encroachment Appeal No.2 of 2013. He has a right to file an Appeal against the final order passed in OPLE proceeding following the Section 12 of the OPLE Act. (4) I find that the order passed in the Encroachment Proceeding has been challenged by the petitioner in an Encroachment Appeal No.2 of 2013. He has a right to file an Appeal against the final order passed in OPLE proceeding following the Section 12 of the OPLE Act. Intervener petitioner’s objection to the effect that the petitioner is precluded from filing an appeal in view of directions of this Court in two writ petitions has no legal foundation. Since the Appeal is filed at the instance of the petitioner, the Appellate Authority is duty bound to take a final decision in terms of the provision contained in Section 12 of the OPLE Act. (5) Mr. Rath, learned Counsel appearing for the intervener-opposite party submits that the Appellate Authority has gone into the details of the matter and rightly passed the order. I have gone through the order passed by the Appellate Authority and I find that the Appellate Authority has not decided the matter on merit and he has failed to exercise his power vested in him U/s.12 of the OPLE Act. Since the Appeal was filed alongwith materials, the Appellate Authority was duty bound to pass an order on merit rather than dismissing the matter on technicalities. On the sole premises that in view of the orders have already passed by this Court in the above two writ petitions, he has become functus officio. (6) The next submission of Mr. Rath, that the petitioner has a remedy by way of Revision under the OPLE Act, therefore this Appeal is not maintainable. (7) I find, the Appellate Authority even though has taken into account the materials available in the Appeal and has proceeded to decide the question on merit but has not given his finding on the merit of the case. On the other hand the Appellate Authority dismissed the Appeal on the technicality on mere premises of becoming functus officio. I find reason rejecting the Appeal as illegal and under the circumstances it is not necessary to ask the petitioner to approach the Revisional Authority. Law is well settled that alternate remedy is not always a bar to approach a writ Court. In the peculiar disposal of the Appeal I hold the writ petition is maintainable. For the reasons assigned hereinabove. Law is well settled that alternate remedy is not always a bar to approach a writ Court. In the peculiar disposal of the Appeal I hold the writ petition is maintainable. For the reasons assigned hereinabove. I set-aside the order at Annexure-5 (series) vide Appeal No.2 of 2013 and remit the matter back to the Sub-Collector, Baripada for a fresh decision in the matter giving opportunity of hearing to the respective parties. The Sub-Collector, Baripada is further directed to conclude the Appeal within a period of six weeks from the date of communication of this order. (8) Since I have remitted the matter back for a fresh disposal I direct status-quo in respect of the disputed property be maintained by the parties till disposal of the Appeal. (9) On the request of learned counsel appearing for both the parties for fixing the date of appearance of both the parties before the Lower Court, this Court fixes on 10th February, 2015 as the date of appearance of the parties with a copy of the order of this Court before the Appellate Authority. (10) The writ petition succeeds to the extent directed hereinabove. However, there shall be no order as to cost.