SAWARMAL PASARI Vs. STATE OF ORISSA

JUDGEMENT

(1.) THE instant proceeding witnesses a second bout on the issue of alleged unauthorised construction of a building undertaken by the opposite party no. 7 and 8 herein by encroaching public road situated in the middle of Bargarh town. According to the petitioners, plot no. 4685 with area of Ac. 0.010 dec. and plot no. 4687 with area of Ac. 0.030 dec. in M.S. Khata No. 7 are recorded in the kissam "Sadaka" in the name of the Works Department of the State in the R.O.R. Similarly, plot no. 4686 of area Ac. 0.020 dec. in M.S. Khata No. 2535 is recorded in the kissam "Meladhia" with the status Sarbasadharan in the R.O.R. The aforementioned land was included for laying of the National Highway No. 6 in the year 1948 and eventually a portion thereof was allotted to the Bargarh Municipality as in the year 1975, the alignment of the National Highway was altered. Thus, since then, the Bargarh Municipality has been custodian of the said land.

(2.) THE petitioners have asserted that the public road from Talipada to Bhainipada of Bargarh town joins the National Highway in Ward No. 4 of Bargarh town and the junction point of these three roads is located over Major Settlement plot no. 4685, 4687 and 4686. They have alleged that in the year 2004, one Deepak Kumar Agarwala (opposite party no. 7) and Kamal Kumar Agarwalla started raising permanent construction by encroaching upon the three plots whereupon the general public being represented by one Naba Krushna Mohapatra approached the territorial Tahasildar and the said authority started Encroachment Case No. 1436 of 2005 and deputed a local R.I. to conduct a field enquiry and submit a report. On the said report being submitted, the Tahasildar passed an order on 8.11.2005 issuing notice to the encroachers to show cause as to why a case under Section 6, 7 and 8 of the Orissa Prevention of Land Encroachment Act, 1972 would not be initiated against them. Prohibitory order was also passed by the Tahasildar, Bargarh directing them to stop construction on the land. Thereafter, the authorities concerned became lukewarm in the matter so much so that while the encroachment proceeding was pending, opposite party no. 7 and 8 applied to the Special Town Planning Authority as well as Municipal Authority seeking permission for construction of Residential/Commercial building over the land on the basis of some prepared documents. The petitioners have admitted that the Town Planning Authority thereafter granted license vide order dated 20.8.2005 and the Executive Officer, Bargarh Municipality also granted permission to them for construction over the disputed plots by office order no. 77/05 -1968 dated 20.9.2005. A representation was submitted by the local public ventilating their grievance on this issue whereupon the Tahasildar conducted an enquiry and being satisfied that the opposite party no. 7 and 8 had furnished incorrect information with regard to ownership of the land vide order dated 3.1.2006 cancelled the license earlier granted to them. Vide order dated 20.4.2006, the Executive Officer, Bargarh Municipality also cancelled the permission granted to the opposite party for raising construction. However, notwithstanding these, the unauthorized constructions were not removed and no steps to that effect were also taken by the public authorities. According to the petitioners, being aggrieved, the local public on 3.6.2006 submitted a representation before the Executive Officer, Bargarh Municipality whereupon according to them, it (Bargarh Municipality) issued notice under Section 273(a) of the Orissa Municipality Act, 1950 being notice no. 1502 dated 30.6.2006 directing the opposite party no. 7 and 8 to demolish unauthorized construction over plot no. 4685, 4686 and 4687 of mouza Bargarh. This fact was also communicated to the Collector, Bargarh vide its letter no. 1664 dated 7.7.2006. As in spite of this initiative, demolition of the unauthorized construction was not effected, Naba Krushna Mohapatra, a local resident approached this Court in WPC No. 13652 of 2006 seeking appropriate writ/direction to the District Collector, Tahasildar, Bargarh and Executive Officer, Bargarh Municipality to cause demolition of such unauthorized constructions.

(3.) A co -ordinate Bench of this court on the basis of the pleadings available passed the order dated 10.5.2010 in the following terms.