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2016 DIGILAW 649 (ORI)

Dandasi Behera v. A. D. M. , Ganjam

2016-08-18

BISWANATH RATH

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JUDGMENT : Biswanath Rath, J. This writ petition has been filed assailing the orders under Annexures-1, 4 and 6 passed by the authorities under Orissa Prevention of Land Encroachment Act. 2. Bereft of unnecessary details, the necessary facts, as reveals and required for decision of this case, are that the petitioner purchased the land in question consisting Ac.0.040 decimals by Registered Sale Deed dated 12.5.1978. While remaining in possession of the land, the petitioner faced an encroachment proceeding vide E.C. No.584 of 1985 on the file of Tahasildar, Purusottampur-opposite party no.3, which matter was disposed of by order dated 18.7.1985 holding the petitioner as an encroacher and thereby directing for eviction of the petitioner. There is an observation by the Tahasildar from the record in the note possession indicating the disputed land recorded as P.W.D. Road. 3. It is submitted by Sri Panigrhi, the learned counsel for the practitioner that petitioner has already approached the appellate authority as well as the revisional authority and has lost in both the forums. The petitioner approached this Court in O.J.C. No.795 of 1988. The said writ petition was decided on contest and by order dated 17.3.1988, as appearing at Annexure-2, recording the following observation and direction: “ O.J.C.No.795 of 1988 And Misc. Case No.1045 of 1988 Heard Mrs.A.K.Padhi, the learned counsel for the petitioner and Mr.R.K.Patra, the learned Addl. Government Advocate. With the consent of the learned counsel for both parties, we are disposing of both the applications at the stage of admission. 2. The writ application arises out of a proceeding under the Orissa Prevention of Land Encroachment Act. One of the grievances of the petitioner on which we are persuaded is that proper opportunity was not given to him to adduce evidence in support of his long possession. We accordingly quash the order of the revisional authority dated 25.1.88 contained in Annexure-15 and that of the appellate authority dated 30.5.1986, contained in Annexure-13 and remit the matter back to the appellate authority, i.e. the Sub divisional Officer, Chatrapur, (O.P.No.2) to hear the petitioner’s O.P.L.E. appeal No.21 of 1985 afresh. The petitioner must appear before the appellate authority with a copy of this order on the 11th of April, 1988 who shall fix the date of hearing of the appeal according to his convenience. The petitioner must appear before the appellate authority with a copy of this order on the 11th of April, 1988 who shall fix the date of hearing of the appeal according to his convenience. On the next date to be fixed by the appellate authority, the petitioner shall lead evidence, both oral and documentary as may be advised, in support of his case before the appellate authority himself. The writ application as well as the misc. Case are accordingly disposed of. Sd/-H.L.Agrawal, Chief Justice Sd/-S.C. Mohapatra, Judge.” 4. Basing on the aforesaid direction of this Court remanding the matter to the appellate authority with liberty of leading evidence both oral and documentary in favour of the petitioner, O.P.L.E. Appeal No.21 of 1985 was revived on the file of Sub-divisional Officer, Chhatrapur. This matter was again finally concluded vide Annexure-4, dismissing the claim of the petitioner rejecting the application at his instance. As against the order of the appellate authority, the petitioner preferred revision which was registered as O.P.L.E. Revision No.69 of 1988 and the said revision was also dismissed confirming the findings of the lower appellate authority holding the land as public land and all the previous vendors had no right to sale the public land. Assailing the orders under Annexures-1, 4 and 6, Sri Panigrahi, learned counsel appearing for the petitioner raises the following grounds : (i) Since in disposal of the writ petition in O.J.C.No.795 of 1988, this Court permitted the petitioner to have oral and documentary evidence before the appellate authority, it was incumbent upon the appellate authority to provide such opportunity and then to decide the matter. For this lapse, the order of the appellate authority must go. (ii) Further, in view of the indications in the written note of argument filed by the petitioner before the appellate authority involving various documents, it was also incumbent on the part of the appellate authority as well as revisional authority to call for the records at least for satisfaction of the court and the impugned orders would have been passed thereafter. Thus, the impugned orders are otherwise also bad in law. Thus, the impugned orders are otherwise also bad in law. It is in these premises, Sri Panigrahi, learned counsel for the petitioner contends that the orders of the appellate authority as well as revisional authority are illegal for violation of the principle of natural justice and being contrary to the direction of this Court in O.J.C.N.795 of 1988. 5. On the other hand, learned State Counsel submits that in view of the categoric observation and the permission of this Court in disposal of O.J.C.No.795 of 1988, petitioner was duty bound to take possible steps to arrange the documents and lead evidence to substantiate his case. Further, in view of the categoric observation of the Tahasildar and the positive statement of the counsel appearing on behalf of the State authority in all the forums taking the stand that the disputed property is a public road, petitioner was duty bound to dislodge such claim of the Public Authority and further looking to the entire scenario and the stand taken by the parties, the appellate authority or the revisional authority have done no wrong leaving any scope in interfering in the impugned orders. 6. Perused the impugned order vide Annexure-1. It appears that at the initial stage of initiation of the encroachment proceeding, there is a clear allegation against the petitioner that the petitioner was an encroacher upon a public road belonging to P.W.D. and the discussions therein discloses petitioner was not able to dislodge this claim except claiming that he has purchased the land by virtue of Registered Sale Deed, therefore, he along with his vendor had valid title over the disputed property. This Court finds the petitioner failed in establishing his case in the matter of right over the disputed property before the revisional authority. Be that as it may, since this Court while allowing O.J.C.No.795 of 1988 permitted the petitioner to lead evidence both oral and documentary, it is now to be seen whether the petitioner was able to satisfy his case by leading oral or documentary evidence before the appellate authority. 7. From the pleadings and the submissions made herein, nothing is coming clear to establish that the petitioner had approached the appellate authority for either producing any documentary evidence or calling any records from any competent authority. 7. From the pleadings and the submissions made herein, nothing is coming clear to establish that the petitioner had approached the appellate authority for either producing any documentary evidence or calling any records from any competent authority. This Court however, finds a written notes of argument, as appearing at Annexure-3 at the instance of the petitioner and from the written notes of argument petitioner indicated several number of documents based on which the petitioner was asserting his claim. There is no doubt that the memo of written notes of argument was filed as a matter of submission of argument in the appeal proceeding but in the absence of producing any document or witness and further in absence of filing any application for calling for the documents supporting the petitioner’s case, the petitioner cannot throw the burden on the Court for calling for documents supporting his case suo motu. This Court finds that the petitioner did not avail the liberty granted by this Court in the disposal of O.J.C.No.759 of 1988 and he is bound to suffer for the same. 8. Perused the order passed by the appellate authority. From the observations made in the impugned order passed by the appellate authority, it comes clear that the stand of the opposite party that the land has been recorded as Government land P.W.D. road and it is supported by the note of possession in favour of the Government recorded by the Tahasildar in the encroachment proceeding and as appearing vide Annexure-1. It is in this view of the matter, this Court finds no error in the appeal order. Consequently, this Court has also gone through the impugned order passed by the revisional authority confirming the order passed by the appellate authority. There is no wrong in recording by revisional authority holding that the disputed land belonging to P.W.D. The petitioner has failed in establishing his case by any stretch of imagination. 9. Under the circumstances, this Court finds no error in the impugned orders leaving any scope for interference in exercise of power under Article 227 of the Constitution of India. Consequently, the interim order dated 13.5.1992 passed by this Court in Misc. Case No.2150 of 1992 stands vacated. The writ petition stands dismissed. Parties are to bear their own costs.