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2016 DIGILAW 1099 (ORI)

Hemanti Mishra v. Collector, Sambalpur

2016-11-16

A.K.RATH

body2016
JUDGMENT : A.K. RATH, J. By this writ application, the petitioner has challenged, inter alia, the order dated 17.02.2016 passed by the Collector, Sambalpur, opposite party no.1 in OPLE Revision Case No. 01 of 2014 vide Annexure 7. By the said order, the Collector, Sambalpur dismissed the revision and confirmed the eviction order dated 23.04.2014 passed by the Sub-Collector, Kuchinda in OPLE Appeal No. 01 of 2013 and the order dated 17.01.2013 passed by the Tahasildar, Bamra in Encroachment Case No.09 of 2012. 2. The dispute pertains to the land measuring an area of Ac.0.02 out of plot no.1205/2002 under Khata No. 347 of Mouza-Bad-Dumermunda recorded in Government ‘Rakhit’ khata. The same has been encroached upon by the petitioner. The Tahasildar, Bamra initiated Encroachment Case No.09 of 2012 against the petitioner. After affording opportunity of hearing to the petitioner, the Tahasildar, Bamra passed the order of eviction and demolition of structure on 17.01.2013 on the ground that the land was recorded in Government Khata. Thereafter, the petitioner approached this Court in W.P.(C) No. 2050 of 2013. The writ application was disposed of granting leave to the petitioner to file an appeal before the Sub-Collector. Thereafter, the petitioner filed Encroachment Appeal bearing No. 01 of 2013 before the Sub-Collector, Kuchinda. The same was dismissed. The petitioner has unsuccessfully challenged the same in OPLE Revision Case No. 01 of 2014, which was eventually dismissed. 3. Heard Mr. Sukumar Ghosh, learned counsel for the petitioner and Ms. S.Mishra, learned Additional Standing Counsel for the State. 4. Mr. Ghosh, learned counsel for the petitioner, submits that the land was recorded in the name of one Jagadish Prasad Ojha. The land was leased out in his favour in Assessment Case No.11 of 1977. Jagadish Prasad Ojha was issueless. After his death, his brother Biswanath Ojha could not take step to record the land in his name in the time of major settlement, for which the case land was recorded in the Government Rakhit Khata No. 347. The petitioner, who is the grand-daughter of Biswanath Ojha, is in possession of the land for more than thirty years peacefully, continuously and to the hostile animus of the true owner and as such perfected title by way of adverse possession. In view of the same, the land should be settled in her name. 5. Per contra, Ms. Mishra, learned Additional Standing Counsel supports the impugned orders. In view of the same, the land should be settled in her name. 5. Per contra, Ms. Mishra, learned Additional Standing Counsel supports the impugned orders. She submits that the land has been recorded in the name of the Government of Orissa under Rakhit Khata. The petitioner is in unauthorised occupation of the Government. Encroachment cases have been initiated against the petitioner. The petitioner has lost all fora. 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. 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. 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 v. Ahmed Ishaque, 1955-I SCR 1104: ((S)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.I.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 misinterpretation 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. On the anvil of the decision cited supra, the instant case may be examined. The revisional court came to hold that the case land bearing plot no. 1205 of 2002, Ac.0.14 dec. corresponds to Sabik Plot No. 579 (P) was recorded as Gochar in the major settlement Record of Right. The name of Biswanath Ojha was mentioned in the remarks column as unauthorised occupant. The Tahasildar, Bamra reported that no such documents with regard to settlement of land are available in the Tahasil office. The case land is objectionable. The same is recorded in Government Rakhit Khata under Gochar kisam. Provisio–(a) of the Section 7(2) (3) of the OPLE Act stipulates that no such Settlement be made if the land is recorded as Gochar, Rakhit or Sarbasadharan in any record-of-rights prepared under any law. Further the construction of the road has been stopped due to encroachment of the land by the petitioner. 8. The next question arises as to whether the petitioner has perfected title by way of adverse possession. In the celebrated judgment, the Privy Council in the Secretary of State v. Debendra Lal Khan, AIR 1934 Privy Council 23 held that the classical requirement of adverse possession is that the possession should be nec vi nec clam nec precario. Their Lordships quoted with approval the decision in the case of Radhamoni Devi v. The Collector of Khulna and others, Indian Appeals 1900 Vol. Their Lordships quoted with approval the decision in the case of Radhamoni Devi v. The Collector of Khulna and others, Indian Appeals 1900 Vol. XXVII at page 140 that the possession required must be adequate in continuity, in publicity, and in extent to shew that it is possession adverse to the competitor. 9. Long and continuous possession by itself would not constitute adverse possession as held by the apex Court in the case Md. Mohammad Ali (Dead) By Lrs v. Jagadish Kalita and others, (2004) 1 SCC 271. 10. The concept of adverse possession contemplates a hostile possession i.e. a possession which is expressly or impliedly in denial of the title of the true owner. Possession to be adverse must be possession by a person who does not acknowledge the other’s rights but denies them. The principle of law is firmly established that a person who bases his title on adverse possession must show by clear and unequivocal evidence that his possession was hostile to the real owner and amounted to denial of his title to the property claimed. For deciding whether the alleged acts of a person constituted adverse possession, the animus of the person doing those acts is the most crucial factor. Adverse possession is commenced in wrong and is aimed against right. A person is said to hold the property adversely to the real owner when that person in denial of the owner’s right excluded him from the enjoyment of his property as held by the apex Court in the case of T. Anjanappa and others v. Somalingappa and another, (2006) 7 SCC 570 . 11. The forums below have negatived the plea of adverse possession. There is no material on record that the petitioner has perfected her title by way of adverse possession. As a sequel to the above discussion, the petition is dismissed.