Unknown vs And
2021 Latest Caselaw 1118 Ori

                             W.P.(C) No. 3697 OF 2021




                                     W.P.(C) No. 3697 OF 2021
                                                And
                                       I.A. No.1789 of 2021

02.   01.02.2021          This matter is taken up through video conferencing.
                          Heard Ms. Pami Rath, learned counsel for the
                   petitioner and Mr. A. Pradhan, learned Addl. Standing
                   Counsel appearing for the State.
                          The petitioner has filed this writ petition seeking
                   direction to opposite parties not to dispossess and not to
                   demolish the existing house situated at Mouza-Rajabagicha,
                   Unit-36, Cuttack Town, Khata No. 118, Plot No. 282, Area
                   Ac. 0.99 dec., Plot No. 283, Area Ac.0.113 dec., Plot No. 283
                   (P), Area Ac. 0.040 dec. Plot No. 286, Area Ac.0.64 dec.,
                   total four plots Area Ac.0.316 dec. without due process of
                   law.
                          Ms. Pami Rath, learned counsel for the petitioner
                   argued with vehemence that on 30.08.1963, Cuttack
                   Municipality allotted holding No.433/B in Ward No.23 to
                   Naba Kumar Acharya, the vendor of the petitioner and
                   Municipality Tax was paid from 19.11.1963. Thereafter on
                   17.11.1964, Cuttack Municipality approved the plan for
                   construction of building of Naba Kumar Acharya over Plot
                   No.1135/3776 an area Ac. 0.606 decimal and Municipality
                   holding Tax was collected from him in the year 1963. He
                   sold an area of Ac.0.140 decimal out of Ac. 0.606 decimal to
                   Premalata Acharya in the year 1968 and she was allotted
                   holding No.423/B/1. On 24.04.1974, Naba Kumar Acharya
                   sold Ac.0.060 decimal out of balance Ac.0.466 decimal to
                                2




Radha    Rani   Panda,       who   was     also    allotted   holding
No.423/B/2      by       Cuttack   Municipality.      Subsequently,
permission was also granted on 16.07.1980 to Naba Kumar
Acharya for electrification. On 24.03.1982, permission was
also granted for running of body building unit on Plot
No.1135/3776 to Lingaraj Acharya, son of Naba Kumar
Acharya under license No.574 dated 04.03.1982. Then plan
for water connection to the said premises was approved on
17.09.1985

in favour of Naba Kumar Acharya.

The petitioner was allotted holding No.423/B/3 on 30.09.1989 after purchase the land from Naba Kumar Acharya and he is paying holding tax since 1989-90. Subsequently on 19.01.1990, Cuttack Development Authority approved the plan of the petitioner over the land for construction of building. The holding tax of the petitioner was revalued on 10.07.1990 by the Cuttack Municipality and updated tax was paid thereafter. On 28.07.1990, Cuttack Municipality issued encroachment notice bearing no.144-E/1990-91 to the petitioner, but the said proceeding was dropped on 19.01.1990 as he produced relevant documents. Again on 10.02.1994, notice was issued to the petitioner to stop construction of house and upon production of documents on 21.02.1994 by the petitioner, the said proceeding was dropped. On 25.04.1994, when the petitioner applied for extension of building plan before CDA, the same was opposed by the Cuttack Municipality, which was challenged before the Director, Municipal Administration, Government of Orissa,

Bhubaneswar for unusual conduct of the Cuttack Municipality. On 17.06.1995, the Director, Municipal Administration decided the case and communicated the order to the Cuttack Municipality, Secretary, CDA, Cuttack and Collector, Cuttack wherein specific direction was given to the Cuttack Municipality not to harass the petitioner. Thereafter, the mutation case bearing No.1749 and 1750 of 1995 was allowed in favour of the petitioner and another case 1751/95 in the name of Baisali Mohanty was also allowed even though the Cuttack Municipality opposed both the mutation cases. Then Mutation Appeal Nos.87, 88 and 89 of 1996 against which Cuttack Municipality preferred appeal and the same were turned down by the Sub- Collector vide order dated 28.08.1998. But, the Cuttack Municipality knowing fully well that the petitioner had constructed his building, the Cuttack Municipality cancelled the holding no.423/B/3 in order to harass him and did not communicate the order of cancellation, but subsequently issued letter to the petitioner on his application. Against such cancellation, the petitioner preferred appeal on 05.10.1996 before the Additional District Magistrate, Cuttack and the said appeal was allowed on 27.10.1999. On 08.07.1998, the Cuttack Municipality filed a Misc. Case No.4 of 1998 before the Collector, Cuttack against the order dated 07.01.1978 passed by the O.E.A. Collector after 20 years, which was challenged before this Court. It is further contended that the petitioner to establish his source of title submitted that in view of order passed in OEA Settlement Case vide order

dated 07.01.1978, Naba Kumar Acharya was confirmed to be the owner having right, title, interest over the suit land and said Naba Kumar Acharya vide registered sale deed No.1439 sold Ac.0.136 decimal out of Ac.0.606 decimal from Khata No.917, Plot No.1135/3776 for his legal necessity. He also further sold another portion of the land to the petitioner relating to area Ac.0.081 decimal from Khata No.917, Plot No.1135/3776 through registered sale deed no.1444 dated 20.04.1987 and he sold Ac.0.040 decimal out of Ac0.606 decimal to Baisali Mohanty from Khata No.917, Plot No.1135/3776 by executing R.S.D. No.1456 dated 21.04.1987. Baisali Mohanty after purchasing the land took possession and occupied the same and again for her legal necessity, she sold her land Ac0.040 decimal to the petitioner by executing R.S.D. No.274 dated 03.08.2005. One Premalata Acharya claimed that she has purchased a portion of the land measuring Ac0.140 decimal from Naba Kumar Acharya from Khata No.917, Plot No.1135/3776. She filed a Title Suit No.345 of 1987 claiming her right against Naba Kumar Acharya and the petitioner. In the said suit, Premalata Acharya pleaded that her purchased land included in the Sale Deed No.1444 dated 20.04.1987. Therefore, she had total Ac0.140 decimal including Ac0.81 decimal covered in the Sale Deed No.1444 dated 20.04.1987 and rest Ac0.59 decimal as per her purchase. The aforesaid Title Suit was decreed on compromise between the parties. Premalata Acharya admitted the title of the petitioner and relinquished her right, title, interest from her purchased land measuring Ac0.140 decimal which includes petitioner's

purchased land Ac0.81 decimal and remaining her land Ac0.59 decimal. Hence, the petitioner acquired right, title, interest and possession over the suit land measuring area Ac0.136 dec. + Ac0.81 dec. + Ac0.40 dec. + Ac.0.59 dec.= Ac.0.316 dec. out of Ac.0.606 dec. from Sabak Khata No.917, Plot No.1135/3776.

The Court of Tahasildar Sadar, Cuttack passed an order in Case No. 3699/76 on 07.01.78 stating that Sri Gajendra Kumar Acharya, father of the applicant, namely Naba Kumar Acharya, was present in the Court and filed the amendment petitioner. The case was related to an application filed in accordance with G.O. No. 14399 dated 02.03.1964 for settlement of the land measuring Ac. 0.946 covered by plot No.1135/3776 and 1135/3775 under Khata No. 917 of Bahar Bisinabar village. In the concluding paragraph, it is stated as follows:

"Hence the following schedule of land is hereby settled in favour of Sri Naba Kumar Acharya S/o- Gajednra Kumar Acharya of Badambadi, Cuttack Town with right of a raiyat on payment of rent and cess from the year 1953-54 and also salami as settled below. Petitioners claim for plot No. 1135/3775 is rejected since he is not in Khas possession of the said plot as is evident from the report of the Revenue Inspector."

It is contended that the Cuttack Municipal Corporation (CMC) had filed a writ petition bearing W.P.(C) No. 12031 of 2006, which was disposed of vide order dated 28.06.2010. The operative portion of the order reads as follows:

"In view of the aforesaid clear position while not interfering with the impugned order, which neither

creates nor extinguishes title, this Court disposes of both the Writ Petitions with an observation that the orders passed by the Joint Commissioner, Settlement and Consolidation, Orissa, Cuttack (Annexure-12 and

15) would be subject to any decision made in the question of title of the land. In other words, if the title is decided in favour of the petitioner by a competent Court, the R.O.R. shall be accordingly corrected.

Referring to this order, it is contended that the title of the CMC has not yet been finalized and more so, she has relied upon paragraphs- 8 and 11 of the judgment of this Court dated 23.09.2019 passed in W.P.(C) No. 20358 of 2009 filed by the petitioner. Paragraphs- 8 and 11 is quoted below:

"8. It is submitted by learned counsel for the parties that assailing the said order 28.06.2010 passed by Hon'ble Single Judge, two writ appeals bearing W.A. Nos. 467 and 468 of 2010 have been filed, which are pending adjudication. Again assailing the order of settlement in favour of Naba Kumar Acharya, OEA Revision Case No. 29 of 2009 has been filed before the Member, Board of Revenue, Odisha, Cuttack which is pending consideration."

Xx xx xx

11. Taking into consideration the fact that since final R.O.R. was published in the year 1987, the Tahasildar, Cuttack could not have entertained the mutation case in the year, 1995. the notification relied upon by the petitioners cannot override the statutory provisions of O.S.S. Act. Thus, the mutation case entertained by the Tahasildar, Cuttack being without jurisdiction, any order passed either confirming and reversing the same subsequent to that are ineffective. However, since it is submitted at the Bar that writ appeals are pending before this Court against the order passed by the Hon'ble Single Judge, parties will be governed by the decision of this Court in the said writ appeals as well as the order to be passed in OEA Revision Case No. 29 of 2009 stated to be pending before Member, Board of Revenue, Odisha, Cuttack.

It is contended that title of the CMC has not yet been determined nor been finalized, thereby, they have no right to claim the property belongs to them unless the same is declared by the competent authority. When the title the land in question is in dispute and no order has been passed in favour of the CMC, without giving prior notice to the petitioner, the CMC and CDA authorities should not have entered into the premises of the petitioner and make a demarcation saying that the building will be demolished for the public benefit. Before entering into the house of the petitioner, they have to give a notice and opportunity should be given so that necessary steps can be taken by the petitioner. In any case if the action has been taken by the opposite parties forcefully to evict the petitioner and also going to demolish the house without following due procedure and granting compensation to the petitioner, which has been objected in the present case.

It has also been brought to notice of this Court that similar question had come up for consideration before the apex Court in SLP(C) No. 5743 of 2020, vide order dated 25.01.2021 the apex Court in paragraph-2 held as follows:

"The High Court has clarified that the direction for mutation will be subject to the pursuit of any other remedy available under the Karnataka Municipal Corporation Act 1956 and it is open to the Bruhath Bengaluru Mahanagara Palike to establish its title by following due process of law. With the clarification which has been issued by the Division Bench of the High Court in the present petition, it is not necessary to entertain the Special Leave Petition under Article 136 of the Constitution. It is well settled that mutation entries do not by themselves confer title which has to be established independently in a declaratory suit."

Therefore, unless the CMC established its right independently in a declaratory suit, merely on the basis of the mutation entries do not by itself confer the title on that basis it can proceed for demarcation and consequentially eviction from the suit land. Reliance has also been placed on the photocopies of different dates, which has been filed today before this Court for consideration, from which it reveals that the authorities are measuring the house of the petitioner without following due process of law, more particularly without giving any notice and title over the property in accordance law, that itself indicates that the authorities are exercising arbitrary, unreasonable power, thereby, when this Court called upon opposite parties to address the Court, it is stated that the matter has been listed for the first time and the learned Addl. Standing Counsel seeks time to obtain instruction in the matter.

Considering the above facts and circumstances of the case, this Court is prima facie view that the petitioner has made out a prima facie case and balance of convenience lies in his favour. In the event any demolition will be made, without giving opportunity of hearing, it will cause grave prejudice to him, which cannot be compensated in any manner.

This matter requires consideration.

Issue notice.

Seven extra copies of the writ petition be served on learned Addl. Standing Counsel for the State, who appears for opposite parties no. 1, 2, 3, 7, 8, 9 and 11.

Issue notice to opposite parties no. 4, 5, 6 and 10 by registered post with A.D. fixing a short returnable date. Requisites for which shall be filed within three days.

As an interim measure, it is directed that no coercive action shall be taken by evicting and demolishing the house of the petitioner situated over the land at Mouza- Rajabagicha, Unit-36, Cuttack Town, Khata No. 118, Plot No. 282, Area Ac. 0.99 dec., Plot No. 283, Area Ac.0.113 dec., Plot No. 283 (P), Area Ac. 0.040 dec. Plot No. 286, Area Ac.0.64 dec., total four plots Area Ac.0.316 dec. without following due procedure of law from the demarcated portions till 18th February, 2021.

Put up this matter on 18th February, 2021.

..................................

(Dr. B.R. Sarangi, J)

Ajaya/Alok