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2016 DIGILAW 716 (ORI)

Kartik Sahoo v. State of Orissa

2016-08-31

BISWANATH RATH

body2016
JUDGMENT : Biswanath Rath, J. This writ application has been filed in apprehension of demolition of the structure belonging to the petitioner standing on plot no.570 under khata no.549 measuring A.0.01 decimal in Mouza-Kaduapada in the district of Jagatsinghpur. 2. By filing the present writ application, the petitioner submitted that earlier he had moved this Court in filing 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 such initiation of the proceeding was itself defective. 3. Mr. Mohanty, learned counsel for the petitioner, submitted that in the meantime the petitioner preferred a suit before the learned Munsif, Jagatsinghpur for declaration of his right, title and interest over the disputed land, vide T.S. No.71/1991, which was also decreed in favour of the petitioner and while the matter stood thus and the decree standing in favour of the petitioner covering 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. Mr. Mohanty, learned counsel for the petitioner, challenging the impugned action of the opposite parties, contended that in existence of the Civil Court decree and in absence of the following procedures available 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, in a fresh encroachment proceeding against the petitioner, vide Encroachment Case No.1072/1996, the decision has gone against the petitioner resulting the action for demolition of property standing over the disputed land. 5. Even though the number of the encroachment case has been furnished in paragraph-4 of the counter affidavit, this Court finds, neither the order passed therein nor any copy of the proceeding has been enclosed therein. Be that as it may, conceding that there is already initiation of an encroachment proceeding against the petitioner, vide Encroachment Case No.1072/1996, in the event any order is passed therein, the petitioner has a statutory remedy of appeal. Be that as it may, conceding that there is already initiation of an encroachment proceeding against the petitioner, vide Encroachment Case No.1072/1996, in the event any order is passed therein, the petitioner has a statutory remedy of appeal. From the submissions, this Court also finds no material establishing either communication of the order passed in Encroachment Case No.1072/1996 or communication of any form as provided in the O.P.L.E. Act in the matter of eviction of the petitioner. In absence of the above, this Court finds the impugned action of the State Authorities is illegal and thus, this Court while disposing of the writ application directs the Tahasildar, Jagatsinghpur, O.P.3, to hand over a certified copy of the order involving Encroachment Case No. 1072/1996 within a period of ten days from the date of making an application by the petitioner within fifteen days from today. Since the order in an encroachment case is appealable, it will also be open to the petitioner to file an appeal against the final order in Encroachment Case No.1072/1996 along with the application for condonation of delay within a period of two weeks thereafter and in the event the appeal is filed, the delay shall be condoned and the appeal 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 continued till final adjudication of the appeal, if any appeal is preferred within the time framed by this Court. This order is made however keeping in view the submissions of the learned counsel for the petitioner that the petitioner has not made any approach in the meantime as against the final order in Encroachment Case No.1072/1996 6. The writ application stands allowed.