Partha Sarathi Sethi Mr.S.K.Dash vs State Of Odisha And Others ..... Opp. ...
2025 Latest Caselaw 7606 Ori

Orissa High Court

Partha Sarathi Sethi Mr.S.K.Dash vs State Of Odisha And Others ..... Opp. ... on 29 April, 2025

Author: S.K.Panigrahi

Bench: S.K.Panigrahi

          IN THE HIGH COURT OF ORISSA AT CUTTACK
                    W.P. (C) No.7112 of 2024

                                   .....                         Petitioner
Partha Sarathi Sethi                                 Mr.S.K.Dash, Advocate

                                   Vs.
State of Odisha and others         .....                      Opp. Parties
                                                          Ms.J.Sahoo, ASC
                       CORAM:
                       DR. JUSTICE S.K.PANIGRAHI

                                      ORDER

29.04.2025

Order No. 1. This matter is taken up through hybrid arrangement.

06.

2. In this Writ Petition, the Petitioner has challenged the

order dated 28.02.2024 passed in OPLE (Revision) No.68 of

2022, wherein the Collector, Cuttack, confirmed the order

dated 27.09.2022 passed by the Sub-Collector (S), Cuttack in

Encroachment Appeal No.06 of 2022 and order passed by the

Addl. Tahasildar, Sadar, Cuttack, in Encroachment Case

No.115/2 of 2021-22 instituted at the behest of the Opp.party

Nos. 5 to 9 (Intervenors before the Revisional Court).

3. Learned counsel for the Petitioner submits that the issue

presented in the Writ Petition is squarely covered by the

judgment dated 21.11.2023 passed by this Court in W.A.

No.506 of 2016 (Jasobant Parida vrs. State of Odisha and

Ors.) wherein this Court has held that the order passed by the Revenue Authority is without jurisdiction since the area falls

under the urban area and OPP Act shall be applicable to the

present Petitioner. The relevant portion of the said judgment

is extracted hereunder:

"23. If very initiation of proceeding under the OPLE Act is without jurisdiction and nullity in the eye of law, in view of the insertion of "Municipality" to the definition of "Public Premises" under Section 2 (f) of the OPP Act. As such, the Estate Officer notified by the State Government under Section 3 of the OPP Act, 1972 has got only jurisdiction to issue such notice and not the Tahasildar under the OPLE Act.

24. In Urban Improvement Trust, Jodhpur v. Gokul Nardin, (1996) 4 SCC 178: AIR 1996 SC 1819, the apex Court held that a decree passed by the Court without jurisdiction is a nullity.

25. Therefore, if a proceeding initiated under the OPLE Act, 1972 by issuing notice of eviction by the Tahasildar having no jurisdiction, any order passed by him is nullity in the eye of law and any consequential steps taken under the said Act by the respective authorities also cannot be sustained as they have no jurisdiction, thereby such orders are nullity in the eye of law.

26. Under the OPP Act, the Estate Officer gets jurisdiction under Section 4(1) only where the premises are Public Premises. Section 2(f) of the OPP Act has defined Public Premises. In order that a premises would be Public Premises, if it is situated within the jurisdiction of Municipal Council or Notified Area Council. By way of amendment to the definition of "Public Premises" under Section 2 (f) "Municipality" has been incorporated by way of gazette notification issued on 03.01.2011 that the municipal area comes under the definition of "Public Premises". Therefore, Kamakhyanagar Notified Area Council, having come under the definition of Public Premises under Section 2 (f) of the OPP Act, the action for eviction can only be taken by the competent authority under Section 4 (1) of the OPP Act, i.e., by the Estate Officer and not by the Tahasildar.

27. In view of the above, the learned Single Judge has committed gross error apparent on the face of the record by misinterpreting the provisions of law, dismissing the writ petition preferred by the appellant by conforming the order of eviction passed by the Tahasildar and affirmed by appellate authority and re-affirmed by the revisional authority under Sections 12 and 12 (2) of the OPLE Act respectively. As a consequence thereof, the judgment dated 21.10.2016 passed by the learned Single Judge in W.P.(C) No. 24422 of 2013 cannot be sustained in the eye of law and is liable to be quashed and is hereby quashed."

4. Learned counsel for the State submits that the Petitioner

is not a homestead-less person and failed to prove any

documentary evidence to prove his possession over the suit

land in question. Further, the land in question is recorded in

favour of Irrigation and Power Department and any

encroachment thereupon is objectionable in nature. It is also

an admitted fact that the petitioner has encroached the

Government land in question for residential purpose.

5. Learned counsel for the State further contends that the

kissam of the land occupied by the Petitioner is prima facie

objectionable in nature and he is liable to pay the assessment

fee and penalty under Section 4 & 6 of the OPLE Act, 1972 for

unauthorized occupation of the case land in question.

6. Considering the submissions made by the learned

counsel for the Parties and taking into account the judgment

passed in the case of Jasobant Parida (supra), this Court

disposes of this Writ Petition setting aside the impugned

order dated 28.02.2024 passed by the Collector, Cuttack in OPLE (Revision) No.68 of 2022. The matter is remanded back

to the Collector, Cuttack to pass order afresh in the matter.

7. Accordingly, this Writ Petition is disposed of.

(Dr.S.K.Panigrahi) Judge

Bichi

Signed by: BICHITRANANDA SAHOO