Unknown vs Mohapatra
2021 Latest Caselaw 863 Ori

W.P.(C) No. 30105 of 2020

06. 27.01.2021 1. This matter is taken up by video conferencing mode.

2. Heard Mr. V. Mohapatra, learned counsel for the Petitioner and Mr. A.K. Parija, learned Advocate General for the State- Opposite Parties 1 to 4 and Mr. P.K. Parhi, and learned Assistant Solicitor General for Opposite Party No.5 (Archaeological Survey of India).

3. The present writ petition was filed alleging that the structure raised by the Petitioner's father on a piece of land under Mouza Bhubaneswar Sahar, Unit No.27, Khata No. 1641, Plot No. 218 over an area of Ac.0.022 dec. under Town Bhubaneswar, District Khurda ('the disputed land') was illegally demolished. According to the Petitioner, first his father and later he himself he had remained in possession of the disputed land for more than 70 years; had 'perfected his right, title and possession' of the disputed land and that without issuing notice to him, the Revenue and Disaster Management Department (RDMD), State of Odisha (Opposite Party No.1) had taken the precipitate action.

4. At the same time, the Petitioner also admitted that the disputed land stood recorded in the name of Shri Lingaraja Mahaprabhu Bije Niji Gaon, which was transferred in favour of the Archaeological Survey of India (ASI). However, he claims that the ASI permitted the Petitioner's father to remain in

possession of the disputed land and placed reliance on a hand receipt dated 18th September, 1977, which allegedly permitted the Petitioner for construction of a temporary house.

5. The Petitioner also refers to a meeting help on 12th December, 2019 under the Chairmanship of the Chairman 'Ekamra Kshetra Amenities and Monuments Revival Action Plan' (EKAMRAP) during which the Collector, Khurda submitted a note which was duly approved by the Opposite Party No.1 and communicated to the Bhubaneswar Municipal Corporation (BMC) for extension of rehabilitation package to the affected persons under the aforesaid project and to commence the process of acquisition of lands through direct purchase method.

6. The prayer of the Petitioner is for a direction to the Opposite Parties to inform him the amount payable in respect of the land under the direct purchase scheme of EKAMRAP and also for a direction to pay the cost of the land and structure, incentive @ 10%, House Rent for 12 months @ Rs.15,000/- and not to evict there from.

7. When the petition was first listed before this Court on 9th November 2020, after noting the submission of the Petitioner that one day before i.e. on 8th November, 2020, the District Administration had forcibly demolished the house of the Petitioner without due process of law and without any

settlement for rehabilitation, the Court restrained the State Government from carrying out any further demolition under EKAMRAP without the leave of the Court.

8. In the reply filed by the BMC, it is stated at paragraph 6 as under:

"6. That as regards the averments made in para-1 to 4 of the writ petition, it is humbly submitted that BMC has never threatened to demolish the temporary structure of the petitioner. In fact, the petitioner was in unauthorized occupation of ASI land which is not permissible in law. The petitioner in the writ petition has relied upon one hand receipt dt. 18.09.1977 (Annexure-1) which is allegedly a permission granted by ASI authority to him to possess the disputed land and construct the structure over it. BMC humbly submits that this hand receipt (annexure-1) is not at all an authentic document on the fact of it. It does not indicate as to who has granted such receipt in what capacity and there is no official seal affixed on it. Add to it, there is no letter No. or date mentioned in the said hand receipt which creates serious doubt in the genuineness of the same. So, the so called hand receipt (Annexure-1) is prima facie unacceptable in fact and law.)"

9. Further, in paragraph 9.1, the BMC states that as far as payment of compensation is concerned, the Petitioner "may be eligible to get it as per the R&R policy subject to approval of ASI, who is the owner of the disputed land." It is further stated

that in this regard the BMC has already moved the Government of Odisha in the Department of Works seeking permission to pay the structure value to the Petitioner with the approval of the ASI. Thus, the matter relating to payment of compensation to the Petitioner against the value of the structure "is under consideration and would be paid to him with the approval of ASI and necessary permission of the Government of Odisha."

10. A rejoinder has been filed by the Petitioner to the above counter affidavit and in paragraph 6 it is stated as under:

"6. That, the facts stated in paragraph-6 of the counter affidavit are false and incorrect and hence denied. The Bhubaneswar Municipal Corporation, its officers and the police officers of the State Government are not competent to decide about the genuineness of the document under annexure-1. Be that as it may, the opposite parties have admitted that the Archeological Survey of India is the recorded owner of the disputed land and hence the Central Government is only competent to remove the encroachment there from under Section 19(2) of the AMSAR Act, 1958 and AMSAR Rule, 1959 as has been pointed out by the Administrative Officer, Archeological Survey of India under annexure-C/3. Hence the action of the opposite parties is arbitrary and illegal. Copy of the AMSAR Act, 1958 and AMSAR Rule, 1959 are annexed herewith and marked as Annexure-5 and 6."

11. In other words, the Petitioner himself does not dispute that the land in fact belongs to the ASI. Consequently, the Court

sees no merit in the contention of the learned counsel for the Petitioner that he should be compensated for the land on which structure stood.

12. In view of the averments made by the BMC in paragraph 9.1 of the counter affidavit that they are already in the process of paying the Petitioner compensation for the value of the structure, the only direction that is required to be issued in the present writ petition is for the Opposite Parties to complete the process of determining the compensation payable to the Petitioner for the demolished structure and pay such compensation to him not later than 5th April, 2021. No further relief can be granted as far as the present petition is concerned.

13. The writ petition is disposed of in the above terms. The interim order passed on 9th November, 2020 is vacated.

14. As the restrictions due to the COVID-19 situation are continuing, learned counsel for the parties may utilize a soft copy of this order/judgment available in the High Court's website or print out thereof at par with certified copy in the manner prescribed, vide Court's Notice No.4587 dated 25th March, 2020.

( Dr. S. Muralidhar ) A.Dash/PS Chief Justice

(Biswajit Mohanty) Judge