MANMATH KUMAR MOHAPATRA Vs. REGISTRAR

JUDGEMENT

(1.) IN this writ petition, the petitioner has challenged the order dated 23.8.2000 passed by the learned District Judge, Cuttack in Misc. Case No.15 of 1982 under Section 151 of the Civil Procedure Code (in short, "the Code") arising out of Misc. Appeal No.42 of 1982, an appeal under the Orissa Pubic Premises (Eviction of Unauthorized Occupants) Act, 1972 (in short, "the OPP Act").

(2.) THE facts, as narrated in the writ petition, are as follows: Opposite party no.1 as respondent no.2 in Misc. Appeal No.42 of 1981 filed an application under Section 151 of the Code for setting aside the ex parte judgment dated 10.9.1981 passed in the said appeal and prayed for hearing of the appeal as he would be highly prejudiced. From the record, it appears that the disputed land was acquired by the State Government under Section 17(1) of the Land Acquisition Act for the purpose of construction of quarters for the staff and officers of the High Court of Orissa. After due notification under Sections 6 and 9(3) of the said Act, possession of the said land was delivered to opposite party no.1 on 6.1.1976. It appears that the present petitioner encroached upon a portion of the aforesaid land claiming to have purchased the same through a sale deed dated 24.5.1976. To evict the encroacher, the present opposite party no.1 initiated a proceeding under the OPP Act before the Estate Officer & Addl. District Magistrate, Cuttack in Eviction Proceeding No.11 of 1979. On 1.5.1981, the Estate Officer, after hearing the parties, directed the eviction of the present petitioner from the encroached land. THE petitioner challenging the said order of the Estate Officer filed Misc. Appeal No.42 of 1981 before the learned District Judge, Cuttack making Estate Officer & Addl. District Magistrate, Cuttack, Registrar, Orissa High Court and the State of Orissa represented through Collector, Cuttack, as opposite parties. THE said appeal was admitted on 2.7.1981. However, no notice was served on the Registrar, Orissa High Court who was respondent no.2 in the said appeal. THE record reveals that the appeal was heard on 8.9.1981 and 9.9.1981. THE appellate court on 10th September, 1981 set aside the order of the Estate Officer. Opposite party no.1 filed an application on 19.2.1982 under Section 151 of the Code to set aside the judgment dated 10.9.1981 passed by the learned District Judge in Misc. Appeal No.42 of 1981 on the ground that no notice was issued to him in appeal and he was not heard in the matter and when the judgment dated10.9.1981 came to his knowledge, he took steps to set aside the said ex partejudgment passed against him as he was interested party and if the ex parte judgmentwas not set aside he would be highly prejudiced. THE present petitioner filed hisobjection to the said application raising the question that the applicant had sufficientknowledge of pendency of the appeal and subsequently its disposal on 10.9.1981.THErefore, the petition was grossly barred by time and was liable to be dismissed. Healso raised the question that opposite party no.1 was not a necessary party and theland was never validly acquired by the Government nor physical possession of thesame was handed over. THE learned District Judge heard the said misc. case and bythe impugned order dated 23.8.2000 allowed it on contest without costs, set asidethe judgment dated 10.9.1981 and restored the appeal to file. During pendency of the misc. case, Section 9 of the OPP Act was amended.As per the amended provision, the appellate jurisdiction was conferred on theRevenue Divisional Commissioner to decide the appeal arising out of Section 9 ofthe OPP Act by deleting the District Judge as appellate authority. THErefore, Misc.Appeal No.42 of 2000 along with LCR of Misc. Case No.11 of 1979 was transferredby the learned District Judge, Cuttack to the Revenue Divisional Commissioner(Central), Cuttack for disposal in accordance with law fixing the date of appearanceof the parties to 25.9.2000. THE said order is impugned in the present writ petition.