Bhagirathi Rout vs State Of Odisha And Others
2023 Latest Caselaw 3807 Ori

      IN THE HIGH COURT OF ORISSA AT CUTTACK

                          W.P.(C) No. 28877 of 2022
                           (Through hybrid mode)


Bhagirathi Rout                                    ....                 Petitioner

                                     -versus-

State of Odisha and others                         ....        Opposite Parties

Advocates appeared in the case:

       For petitioner:        Mr. Kishore Chandra Rajguru, Advocate

       For Opp. Parties: Mr. A.K. Sharma, AGA



              CORAM:
                           JUSTICE ARINDAM SINHA
                           JUSTICE SANJAY KUMAR MISHRA
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                    Date of hearing and judgment: 19.04.2023
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ARINDAM SINHA, J.

1. The writ petition was moved on 1st March, 2023. On behalf of

petitioner it was submitted, lease in respect of plot allotted to his father

was cancelled by impugned order dated 22nd February, 2001. Ground

for cancellation was that the plot had not been used for purpose of the

lease, being residential. Further submission was that petitioner had

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made thatched house, it was destroyed by the super cyclone October,

1999.

2. We in our order dated 1st March, 2023 had made observations.

Submission on behalf of State in respect thereof was recorded and a

direction made. We reproduce paragraphs 3 and 4 from said order.

"3. It appears from impugned order the Tahasildar concluded petitioner's contention of his house having been destroyed, was fabricated. Mr. Samantray submits, the conclusion was based on field inquiry report.

4. State will produce the field inquiry report on adjourned date."

3. Mr. Rajguru, learned advocate appears on behalf of petitioner

and submits, his client had made representation dated 22nd February,

2001 to the Tahsildar, requesting for three months time to construct

house, after destruction of thatched house in the October, 1999 super

cyclone. Subsequently, house was constructed and electricity

connection obtained. Disclosures have been made in the writ petition.

4. Mr. Sharma, learned advocate, Additional Government

Advocate appears on behalf of State and produces the record. On

query from Court he submits, the field inquiry report is not traceable.

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5. He submits, impugned order is dated 22nd February, 2001. By

said order there was direction of cancellation of the lease and reverting

the land to Government khata. Petitioner presented the writ petition

against said order on 31st October, 2022. Apart, he submits, statutory

remedy by way of appeal is available to petitioner. There should not

be interference.

6. On query from Court Mr. Sharma submits, he does not have

instruction regarding whether eviction proceeding was initiated against

petitioner, pursuant to impugned order.

7. We have perused the record handed up on behalf of State. Field

inquiry report relied upon in impugned order is not available in it.

However, it appears that pursuant to our order dated 1st March, 2023

there was direction made by the Tahsildar on 15th March, 2023, to

make inquiry. The revenue inspector, on 20th March, 2023 submitted a

report, available in the record. The report clearly says petitioner is still

in possession and living in a house with asbestos roof. As such we are

convinced that petitioner has continuing cause of action and delay in

presenting the writ petition needs to be condoned following

declaration of law made by the Supreme Court in Tukaram Kana

Joshi v. M.I.D.C. reported in AIR 2013 SC 565, paragraphs 9 and 10.

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8. Considering basis of impugned order is not available in the

record, we have no hesitation to hold that it is perverse as based on no

evidence. Furthermore, it would be great injustice on petitioner to

direct him to approach the civil Court because the appeal, being

continuation of suit, cannot be adjudicated on absence of the evidence

of the field inquiry report.

9. Impugned order is set aside and quashed. We have made a

photocopy of inquiry report dated 20th March, 2023 and have kept it in

Court's record. The record is returned to Mr. Sharma. Consequential

correction be made in the RoR within four weeks of communication.

10. The writ petition is disposed of.

(Arindam Sinha) Judge

(S.K. Mishra) Judge Sks