Orissa High Court
Rajendra Kumar Mohapatra vs State Of Odisha And Others on 10 May, 2023
IN THE HIGH COURT OF ORISSA AT CUTTACK
WP(C) No.12531 of 2023
Rajendra Kumar Mohapatra .... Petitioners
and others
Mr. Manoj Kumar Pati, Advocate
-Versus-
State of Odisha and others .... Opposite Parties
Mr. A.K. Nanda, Additional Government Advocate
CORAM:
JUSTICE ARINDAM SINHA
JUSTICE SASHIKANTA MISHRA
ORDER
10.05.2023
Order No.
02. 1. Mr. Pati, learned advocate appears on behalf of
petitioners and submits, there has been illegal settlement of
land under Bebandobasta Case no.102 of 2017 by the
Tahsildar on order dated 29th August, 2022. It was done
without proper enquiry. Further illegality was, case record
appertaining to Bebandobasta Khata no.164 was also sent for
correction. His clients have prayed for interference so that
rightful recorded tenants can have settlement in respect of the
land under Bebandobasta holding no.164 in Kirasasan Mouza.
2. On query from Court Mr. Pati submits, by order dated
9th September, 2022 of the Tahasildar, made after
confirmation of earlier order of settlement, several persons,
who are not entitled, have been directed to be noticed for their
depositing the salami and back rents.
3. Prima facie, it appears that there is dispute between
parties claiming settlement. As such they should be relegated
to the civil Court. Persons, who have been noticed for
settlement have not been made parties to the writ petition.
4. On query from Court Mr. Pati submits, his clients are in
possession but those who have wrongfully obtained settlement
will now evict them. That is why interference and interim
order is necessary to protect his clients.
5. Mr. Nanda, learned advocate, Additional Government
Advocate appears on behalf of State. He submits, in event
there is relegation to the civil Court, petitioners cannot have
any protection in meantime. For the proposition he relies on
judgment of the Supreme Court in, inter alia, State of Orissa
v. Madan Gopal Rungta, reported in 1951 SCC 1024,
wherein the Constitution Bench declared the law to be, when
Court declines to decide on the rights of the parties and
expressly holds that they should be investigated more properly
in a civil suit, it could not, for the purpose of facilitating
institution of such suit, issue directions in the nature of
temporary injunctions under article 227 of the Constitution.
He submits further, petitioners have disclosed the circular
themselves, which provides for adequate alternative
efficacious remedy of appeal.
6. Mr. Pati replies, there is efficacious alternative remedy
of appeal provided under section 9 in Orissa Estates Abolition
Act, 1951. He submits, provision of appeal in the circular is
eclipsed by the substantial provision in the Act. On query
from Court he submits, his clients will avail statutory remedy
of appeal. He seeks appropriate protection and observation
made for exclusion of the time.
7. There cannot be interim protection to facilitate filing of
appeal as law declared by Madan Gopal Rungta (supra).
However, it is also trite that a person in possession cannot be
dispossessed without due process of law. In event petitioners
are in possession, resort to due process will enable them to
resist immediate eviction and thereby give them opportunity
to file appeal and seek interim protection therein, if they are
entitled to the same.
8. The writ petition was filed on 19th April, 2023. It is
being disposed of today. We are not entertaining it because
petitioners have available to them statutory remedy of appeal.
In the circumstances, petitioners have urged their cause in this
Court, which has not entertained the same. These
circumstances may be pleaded before the appellate authority,
for exclusion of time and condonation of delay.
9. With above observations, the writ petition is disposed
of.
(Arindam Sinha)
Judge
(Sashikanta Mishra)
Judge
RKS
RANJAN Digitally
by RANJAN
signed
KUMAR KUMAR SETHI
Date: 2023.05.10
SETHI 17:52:30 +05'30'
