Orissa High Court
Kailash Nayak vs Collector on 18 April, 2023
IN THE HIGH COURT OF ORISSA AT CUTTACK
W.P.(C) No. 1791 of 2015
And
Misc. Case. No. 7984 of 2015
Kailash Nayak ..... Petitioner
Mr. B.P. Das, Adv.
Vs.
Collector, Khurda and others ..... Opposite Parties
Mr. J.P. Pattnaik, G.A.
CORAM:
DR. JUSTICE B.R. SARANGI
MR. JUSTICE M.S.RAMAN
ORDER
18.04.2023
Order No. This matter is taken up through hybrid mode.
07.
2. Heard Mr. B.P. Das, learned counsel appearing for the petitioner
and Mr. J.P. Pattnaik, learned Government Advocate appearing for the
State-opposite parties.
3. The petitioner has filed this writ petition seeking to quash the
order dated 27.08.1987 passed in R.C. No. 364 of 1987 arising out of
W.L. Lease Case No. 1067 of 1976 under Annexure-2, as the same is
illegal, arbitrary and not in conformity with the provisions of Section 7-
A(3) of the O.G.L.S. Act, and to issue direction to opposite party no.2
to reconsider the entire matter afresh by giving reasonable opportunity
of hearing to him, as per the provisions contained under Section 7-A(3)
of the Act for settlement of the aforesaid land.
4. Mr. B.P. Das, learned counsel appearing for the petitioner
contended that the order so passed by the revisional authority cannot be
sustained in the eye of law.
5. Mr. J.P. Pattnaik, learned Government Advocate appearing for
the State-opposite parties raised preliminary objection with regard to
maintainability of the writ petition and contended that the writ petition
suffers from delay and laches and, therefore, the same is not
maintainable. Consequentially, dismissal of the writ petition is sought
for.
6. Having heard learned counsel for the parties and after going
through the records, this Court finds that by order dated 09.02.2015 it
was recorded that on the next date learned counsel for the petitioner
undertakes to satisfy the Court about the delay of 27 years in filing the
writ petition. Thereafter, time and again, the matter stood adjourned on
19.02.2015, 23.03.2015, 07.04.2015, 22.04.2015 at the instance of the
petitioner. Today, when the matter is called, this Court raised the
question of maintainability, as the petitioner has filed this writ petition,
along with an application for condonation of delay after gross delay of
27 years. To satisfy the Court with regard to delay as well as in support
of the relief sought, Mr. B.P. Das, learned counsel appearing for the
petitioner relying upon the judgment of the apex Court in the case of
Tukaram Kana Joshi and others v. Maharashtra Industrial
Development Corporation and others, (2013) 1 SCC 353, contended
that in view of the provisions contained under Article 300-A of the
Constitution of India, the right of property has to be dealt with in
accordance with law and deprivation of property by authority of law has
been explained there and, as such, to substantiate his contention, he has
relied upon paragraphs-13 and 14 of the said judgment. There is no
dispute with regard to the law laid down by the apex Court in
paragraphs-13 and 14 of the aforesaid judgment, but fact remains the
present case comes under a different category and, as such, reasons for
condonation of delay in Tukaram Kana Joshi (supra) has been
mentioned in paragraph-16 of the said judgment, which reads as under:-
"16. The High Court committed an error in holding the
appellants non-suited on the ground of delay and non-
availability of records, as the Court failed to appreciate
that the appellants had been pursuing their case
persistently. Accepting their claim, the statutory
authorities had even initiated the acquisition proceedings
in 1981, which subsequently lapsed for want of further
action on the part of those authorities. The claimants are
illiterate and inarticulate persons, who have been
deprived of their fundamental rights by the State, without
it resorting to any procedure prescribed by law, without
the Court realizing that the enrichment of a welfare State,
or of its instrumentalities, at the cost of poor farmers is
not permissible, particularly when done at the behest of
the State itself. The appellants belonged to a class which
did not have any other vocation or any business/calling to
fall back upon, for the purpose of earning their
livelihood."
7. If the aforesaid facts and law are taken into consideration,
certainly the petitioner has not made out a case in his favour. But on
perusal of the misc. case filed by the petitioner, the pleading available
in paragraph-2 of the application reads as follows:-
"2. That it is humbly submitted by the petitioner that the
present writ petition could not be preferred within
reasonable period from the date of order as the petitioner
had no knowledge regarding the order dated 27.08.1987
passed by the Revisional Authority, ADM, Bhubaneswar.
He came to know about passing of such order in the
month of September, 2011 and thereafter obtained the
certified copy of all documents and could able to file the
present writ petition in due course. Hence, there is
inordinate delay caused in filing the present writ
application."
8. From the above it is evident that the only ground taken by the
petitioner in his application is that he had no knowledge regarding order
dated 27.08.1987 passed by the Revisional Authority, ADM,
Bhubaneswar and he came to know about passing of such order in the
month of September, 2011 and, thereafter, he obtained the certified
copy of all documents and could be able to file the present writ petition
in the year 2015. As such, for the period of delay from 1987 to 2011, it
has been stated that he had no knowledge about the order passed by the
Revisional Authority. As regards the period from September, 2011 till
filing of the writ petition before this Court on 02.02.2015, it has been
stated that he had applied for certified copy and after collecting the
same the writ petition has been filed. As such, each day's delay has not
been explained by the petitioner in the application. Thereby, the ratio
decided by the apex Court in the case of Tukaram Kana Joshi (supra)
has no application to the present case.
9. In the above view of the matter, this Court is of the considered
view that the writ petition suffers from delay and laches, as each day's
delay has not been explained properly in the application for
condonation of delay. Therefore, this Court is not inclined to entertain
this writ petition.
10. Accordingly, the writ petition as well as the application for
condonation of delay stands dismissed.
(DR. B.R. SARANGI)
JUDGE
(M.S. RAMAN)
Ashok
JUDGE
