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2016 DIGILAW 715 (ORI)

Gopal Sahu v. State of Orissa

2016-08-31

BISWANATH RATH

body2016
JUDGMENT : Biswanath Rath, J. By filing the present writ application, the petitioner raises an apprehension of demolition of the house of the petitioner standing on plot no.571 under khata no.549 measuring A.0.01 decimal in Mouza-Kaduapada in the district of Jagatsinghpur. 2. In the present writ application, the petitioner had submitted that in an earlier attempt he had moved this Court in O.J.C.1021/1969 challenging the order passed in an encroachment proceeding and the same was set aside, vide order dated 20.11.1969 holding that initiation of the proceeding itself was defective. The petitioner in the meantime preferred a suit before the learned Munsif, Jagatsinghpur for declaration of his right, title and interest over the disputed land, vide T.S. No.72/1991, which was also decreed in favour of the petitioner. While the matter stood thus and the decree standing in favour of the petitioner, surrounding the disputed land the O.P.-State Authorities made an attempt for demolition of the house of the petitioner from the disputed land resulting the petitioner preferring the present writ application. 3. Mr. Mohanty, learned counsel for the petitioner, challenging the impugned action of the opposite parties, contended that in presence of the Civil Court decree and in absence of initiation of any proceeding under the O.P.L.E. Act, the authorities have no right to proceed for demolition of the house of the petitioner. 4. Learned Additional Standing Counsel for the opposite parties, on the other hand, supporting the action of the State Authorities and referring to the counter affidavit filed by the opposite parties on 29.8.1997, particularly, the averments made in paragraph-4 thereof, contended that in the second round of litigation, there is already an encroachment proceeding against the petitioner, vide Encroachment Case No.1073/1996 and the proceeding has been concluded deciding against the petitioner. The present writ application is not maintainable and the petitioner has the only remedy of appeal. 5. Even though the number of the encroachment case has been furnished in paragraph-4 of the counter affidavit, this Court finds, no such copy of the proceeding has been enclosed therein. Be that as it may, considering that there is already initiation of an encroachment proceeding against the petitioner, vide Encroachment Case No.1073/1996, since the petitioner remained unaware of any such proceeding, in the event any order is passed therein, the petitioner has a statutory remedy of appeal. Be that as it may, considering that there is already initiation of an encroachment proceeding against the petitioner, vide Encroachment Case No.1073/1996, since the petitioner remained unaware of any such proceeding, in the event any order is passed therein, the petitioner has a statutory remedy of appeal. From the submissions of the respective counsel, this Court also finds no material establishing either communication of the order passed in Encroachment Case No.1073/1996 or communication of any form as available under the O.P.L.E. Act in the matter of eviction to the petitioner. 6. Under the aforesaid circumstances, this Court while disposing of the writ application direct the Tahasildar, Jagatsinghpur, O.P.3, to hand over a certified copy of the order involving Encroachment Case No.1073/1996 within a period of ten days from the date of petitioner’s making an application. In the event the order will be appealable, it will also be open to the petitioner to file an appeal against the final order involving Encroachment Case No.1073/1996 within a period of two weeks thereafter and in the event the appeal is filed, the same shall be decided by the appellate authority after giving opportunity of hearing to all concerned within a period of three months from the date of filing of such appeal. The order of status quo dated 24.6.1997 passed by this Court will be continuing till final adjudication of the appeal in the event the appeal, as directed, is filed within the time framed by this Court. This order is made however keeping in view the fact that the petitioner has not made any appeal in the meantime as against the final order in the Encroachment Case No. 1073/ 1996. 7. The writ application stands allowed.