Research › Search › Judgment

Orissa High Court · body

2016 DIGILAW 808 (ORI)

Bidulata Behera v. State of Odisha

2016-09-15

BISWANATH RATH

body2016
JUDGMENT : Biswanath Rath, J. Since all the above fourteen Writ petitions filed by different individual challenging initiation of Encroachment Appeal by an incompetent person, consequential issuance of show cause notice as against the petitioners involving in all the above writ petitions and as the petitioners have a common set of pleadings and submissions further Opposite parties are also common in all the cases, all the fourteen matters are taken up together and are being decided in this common judgment. 2. Heard Mr. R.C. Behera, learned counsel for the petitioner and Mr. K.K. Mishra, learned Additional Government Advocate for the State-Opposite parties. 3. In assailing the initiation of Encroachment Appeal pending before the Sub-Collector, Kamakshyanagar, Mr. Behera, learned counsel for the petitioners in all the above writ petitions referring to the memorandum of appeal at Annexure-4 in the writ petitions and showing the cause title of the appeal, contended that the appeals though have been filed by the State of Orissa but being represented through the Head Clerk of the Office of Tahasildar, Kamakshyanagar. In establishing his allegation that the appeals with such representations are not maintainable, Mr. Behera contended that the Head Clerk of the Tahasil Office is incompetent to represent an appeal on behalf of the State under the provisions of O.P.L.E. Act. Mr. Behera, learned counsel also brought to the notice of this Court a Notification issued by the Government of Odisha, Revenue and Excise Department in the matter of direction to concerned authorities empowering the appropriate authority to file appeal. Apart from the above, Mr. Behera, learned counsel appearing for the petitioners in all the cases also raises the question of delay in filing the appeal and submitted that Appeals were also otherwise not maintainable in absence of application for condonation of delay. 4. Be that as it may, since the matter relates to the locus-standi of the person filing the appeal, this Court now proceeds to decide the question of maintainability of the appeal. 5. Mr. K.K. Mishra, learned Additional Government Advocate for the State-Opposite parties admitting the contentions of the Mr. 4. Be that as it may, since the matter relates to the locus-standi of the person filing the appeal, this Court now proceeds to decide the question of maintainability of the appeal. 5. Mr. K.K. Mishra, learned Additional Government Advocate for the State-Opposite parties admitting the contentions of the Mr. Behera, learned counsel for the petitioner that the appeal has been filed by the Head Clerk of the Office of Tahasildar, Kamakshyanagar referring to the documents as well as the pleadings from counter affidavit filed at the instance of the Opposite party No.3, submitted that the defect is curable and the State Government in the mean time has already filed an application for amendment of the cause title and this being the position, the present writ petitions have no merit. 6. On perusal of the memorandum of appeal as at Annexure-4 in all the writ petitions, this Court finds there is no dispute that the appeal as against the order of the original authority challenging the order passed by the Tahasildar, Kamakshyanagar dated 15.4.2011 though filed by the State Government but are all represented by the Head Clerk of the Tahasil Office. Now looking to the submission made by Mr. Mishra, learned Additional Government Advocate, this Court finds that even though an application is filed for rectification of the defect crept in the memorandum of appeal but again the application has also been filed at the instance of the Head Clerk of Tahasil Office. 7. Government by issuing instructions from time to time is being prescribing its representatives to pursue such Appeals. There is no denial to this aspect by the learned State Counsel. This being the position, this Court finds that there is no proper application of mind by the State Authority either in filing the Appeal or in filing the application for amendment. Since the memorandum of appeal is not in terms of the requirement of the provisions contained in O.P.L.E. Act, the memorandum of appeal is perse illegal and not entertainable in the eye of law. While declaring the memorandum of appeal as bad in law and not entertainable, this Court can not lost sight of the grievance of the State Authority, because of involvement of State property. 8. Consequently while allowing all the Writ petitions, this Court observes that allowing of writ petitions shall not preclude the State Authority to file Appeal afresh. While declaring the memorandum of appeal as bad in law and not entertainable, this Court can not lost sight of the grievance of the State Authority, because of involvement of State property. 8. Consequently while allowing all the Writ petitions, this Court observes that allowing of writ petitions shall not preclude the State Authority to file Appeal afresh. In the event fresh Appeals are filed, the same shall be considered and disposed of on its own merit and in accordance with law taking into consideration the question of delay and without being influenced by any observation made hereinabove. 9. All these fourteen Writ petitions stand allowed with the observation made herein above. No order as to cost.