Tahamir Khan And Another vs Collector
2023 Latest Caselaw 11211 Ori

                   IN THE HIGH COURT OF ORISSA AT CUTTACK
                               CMP NO.581 OF 2023
                 Tahamir Khan and another         ....                   Petitioners
                                                     Mr. Haripad Mohanty, Advocate
                                              -versus-
                 Collector, Puri and others                   ....      Opp. Parties

                                                            Mr. Swayambhu Mishra,
                                                         Additional Standing Counsel

                           CORAM:
                           JUSTICE K.R. MOHAPATRA
                                   ORDER

Order No.                         13.09.2023

  2.        1.       This matter is taken up through hybrid mode.

2. Judgment dated 24th April, 2023 (Annexure-6) passed by learned Additional District Judge, Nimapara in FAO No.07 of 2022 is under challenge in this CMP, whereby dismissing the appeal, learned appellate Court, confirmed order dated 11th April, 2022 (Annexure-5) passed by learned Civil Judge (Junior Division), Nimapara in I.A. No.40 of 2021 (arising out of C.S. No.56 of 2021), rejecting an application under Order XXXIX Rules 1 and 2 CPC.

3. Mr. Mohanty, learned counsel for the Petitioner submits that the suit has been filed for permanent injunction. It is submitted that the land was acquired by the State Government for construction of the canal. It stands recorded in the name of the Irrigation Department. But the possession is still with the Petitioner. When the Opposite Parties proceeded to construct the office of the Gram Panchayat over the suit land, the Petitioner filed the aforesaid suit. Since the Petitioner is likely to be evicted from the suit property, he also filed an application under I.A. No.40 of 2021 under Order XXXIX Rules 1 and 2 CPC. Although, learned trial

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Court held that there is prima facie case in favour of the Petitioner and balance of convenience leans in his favour but refused to grant an ad interim order to injunction restraining the Opposite Parties from entering upon the suit land. Being aggrieved, the Petitioner filed FAO No.7 of 2022 which was also dismissed. While adjudicating the appeal, learned appellate Court erroneously held that the land stood recorded in the name of the Collector, Puri which is not correct.

4. Further, in view of Section 101 of Right to Fair Compensation and Transparency in Land Acquisition, Rehabilitation and Resettlement Act, 2013 (for short 'the Act'), the Petitioner is entitled to repossess the property when it is not used for the purpose it was acquired. Thus, the Petitioner has a right to possess the suit property. This aspect was lost sight of by both learned trial Court and learned appellate Court while adjudicating the matter. Hence, he prays for setting aside the impugned orders and to restrain the Opposite Parties from entering upon the suit property.

5. Mr. Mishra, learned Additional Standing Counsel appearing for the Opposite Party submits that the land was acquired and declaration under Section 19(1) of the Act is made in the Act 2013 Hence, it is presumed that the State Government is in possession over the suit property. Further, the Record of Right in respect of the suit property stands in the name of Irrigation Department. Thus, for all purposes, the Opposite Parties are in possession over the suit property. The Petitioner though claimed to be in possession over the suit property, could not produce any material either before learned trial Court or before learned appellate Court in support of the case. He further submits that much before the suit is filed, the land was demarcated by the Tahasildar,

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Kakatpur for construction of the Gram Panchayat Office. Had the Petitioner been in possession over the suit land, he would have objected to the same. He further submits that once the land is acquired and the Petitioner has received the compensation, he has no semblance of right over the suit property. Of course, he may workout his remedy under the Act, 2013, if so advised. But for the same, the impugned orders need not be interfered with.

6. Considering the rival contentions of the parties, this Court finds that the land was acquired for construction of the canal and it stands recorded in the name of the Irrigation Department. At present, the land is proposed to be used for construction of Gram Panchyat Office. After notification for acquisition of the land and a declaration under Act is made, it is presumed to be free from all encumbrances.

7. In addition to the above, the record of right in respect of the suit property stands in the name of the Irrigation Department. There is no material on record to show that the Petitioner is in fact in possession over the suit property as alleged. In absence of any material, the Petitioner has no right to claim for an order of injunction when the land neither stands recorded in his name nor he is in possession over the same. Thus, the impugned order under Annexure-5 and Annexure-6 warrant no interference.

8. Accordingly, the CMP, being devoid of any merit stands dismissed.

Urgent certified copy of this order be granted on proper application.

Signature Not Verified
Digitally Signed
Signed by: ROJALIN NAYAK                                         (K.R. Mohapatra)
Reason: Authentication
Location: HIGH COURT OF ORISSA, CUTTACK                                Judge
Date: 14-Sep-2023 10:40:43

Rojalin