Orissa High Court
Anil Kumar Rout & Others vs The Collector on 17 May, 2023
IN THE HIGH COURT OF ORISSA AT CUTTACK
W.P.(C) No.29261 of 2013
Anil Kumar Rout & Others .... Petitioners
Mr. B. Mohanty, Advocate
-Versus-
The Collector, Jajpur & Others .... Opposite Parties
Ms. S. Mishra, ASC
CORAM:
MR. JUSTICE R.K. PATTANAIK
ORDER
17.05.2023
Order No.
09. 1. Heard learned counsel for the petitioners and Ms. Mishra,
learned ASC for the State opposite parties.
2. Instant writ petition is filed by the petitioners assailing the
impugned order dated 26the April, 2004 under Annexure-3 passed in
Encroachment Revision Case No.19 of 2012 confirming the order in
Encroachment Appeal No.20 of 2012 vide Annexure-2 dated 31st
January, 2013 corresponding to Encroachment Case No.614 of 2004
of the file of learned Tahasildar, Bari on the grounds stated therein.
3. Learned counsel for the petitioners submits that in first
place, opposite party No.2 did not have the jurisdiction to entertain
the appeal under the OPLE Act as it should have been before the
Collector or Additional District Magistrate in view of the definition
of 'Collector' contained in Section 3 of the said Act and secondly,
such appeal could not have been filed by opposite party No.3 as the
law does not permit the same. In such view of the matter, according
to learned counsel for the petitioners, the impugned order under
Annexure-3 is not sustainable in law and hence, liable to be
quashed.
4. In response to the above, Ms. Mishra, learned ASC for the
State opposite parties fairly admits that the appeal would have
been before the Collector or Additional District Magistrate and
could not have been entertained by opposite party No.3. However,
it is also submitted that the petitioners' plea has been rejected by the
revisional authority vide Annexure-3.
5. As to the ground raised by the petitioners regarding
opposite party No.3 filing the appeal before the opposite party
No.2 for having no jurisdiction, Ms. Mishra, learned ASC refers to a
judgment of this Court in Pabani Barik Vrs. Tahasildar, Bhubaneswar
and Others 1998 SCC Online Ori 208 to contend that such an
appeal can be filed by the Tahasildar in view of the Govt. letter
dated 21st November, 1992 of the Revenue and Excise Department
who is authorized in appropriate cases after obtaining approval of
the Collector. It is submitted that since the appeal was entertained,
it may be supposed that opposite party No.3 did have the approval
for filing of the appeal on behalf of the State as against the order
dated 26th April, 2004 passed in Encroachment Case No.614 of
2004.
6. Since the judgment in Pabani Barik (supra) is referred to,
the contention that opposite party No.3 did not have the
competence to file an appeal, as urged by learned counsel for the
petitioners, is not accepted. However, the facts remains, the appeal
was entertained by opposite party No.2 as it should have been
before the Collector or the ADM as the definition of Collector in
Section 3 of the OPLE Act does not include an Additional Sub-
Collector. Without expressing anything on merits of the claim of the
petitioners, the Court is of the view that the impugned order under
Annexure-3 should be set aside with a direction to opposite party
No.1 to remit the appeal to opposite party No.2 for adjudication
and disposal. Considering the order dated 23rd August, 2012 in
Encroachment Appeal Case No.20 of 2012 as at Annexure-2 the
Court finds that the grounds which have been raised in appeal at the
instance of the petitioners were not examined in detail.
7. In the result, the writ petition stands allowed.
Consequently, the matter is remitted back to opposite party No.2
for fresh decision of all grounds and thereafter to dispose it of
according to law at the earliest preferably within four weeks from
the date of receipt of a copy of this order.
8. A certified copy of this order be granted as per rules.
(R.K. Pattanaik)
Judge
Tudu
Signature Not Verified
Digitally Signed
Reason: Authentication
Location: OHC,CTC
Date: 20-May-2023 14:22:47
