RATNAKAR Vs. STATE

JUDGEMENT

(1.) The primary question urged in this petition under Articles 226 and 227 of the Constitution of India is whether issue of notice under S.254 of the Orissa Municipal Act (Annexure-2) for removal of encroachment on road side lands is authorised, since according to the petitioners, road side land is not Road with which S.254 of the Orissa Municipal Act concerns itself. Besides, the petitioners have also impugned the action of the Municipality on the grounds of lack of reasonable notice to them to show cause against such demolition and that the action of the Municipality is not bona fide as the road to which the encroachment relates is stated to be 200 feet wide. According to the petitioners, there is no road of such width at Jharsuguda and hardly also exists at any other place in the State.

(2.) The petitioners, who claim themselves to be petty artisans, state that they are landless persons and since were without houses of their own, constructed along with others Some 25 years ago, small thatched residential houses on the jungle lands in village Atali. The lands were under Atali Gram Panchayat and in the year 1975 were included in the Jharsuguda Municipality. Encroachment cases were initiated against the petitioners in 1985 by the Tahasildar, Jharsuguda, the opposite party No. 5 with issue of show cause notices to them for taking action under Ss.3, 5 and 6 of the Orissa Prevention of Land Encroachment Act, 1954. The petitioners appeared in pursuance of the notices before the Tahasildar and showed cause of having continued in possession for nearly 25 years and that the lands should be settled with them. While such was the state of affairs, the Executive Officer, Jharsuguda Municipality, opposite party No. 4 served notice under S.254 of the Orissa Municipal Act (for brevity, the Act) on the petitioners for removal of the structures within twenty four hours from the receipt of the notices stating that the structures were on the road side land at Bhaskar Textile Mills and were hazards to public safety and convenience. The petitioner No. 1 submitted an application soon thereafter to the opposite party No. 4 pointing out that he had no jurisdiction to direct removal of the structures. However, immediately after service of notice and without affording any opportunity to show cause, the Executive Officer along with the Sub-Divisional Officer, Jharsuguda and armed forces came to the spot and started demolishing the houses with the help of bulldozers without paying any heed to the protest of the petitioners. Many houses were completely demolished and some were left over due to want of time. The petitioners have moved this Court for quashing of the notice issued under S.254 of the Orissa Municipal Act and issue of directions to the authorities not to demolish their houses.

(3.) A counter affidavit has been filed by Chairman and the Executive Officer, Jharsuguda Municipal Council negativing most of the contentions of the petitioners. The case of the Municipality so far as is relevant for decision of the case, is that the petitioners, who admittedly are encroachers, are not landless persons and have lands within the limits of Jharsuguda Municipality and that they are also not artisans as claimed by them. They being admitted encroachers, notice in Annexure-2 was served on them on 28-3-1986. The petitioner No. 1 submitted a representation on 29-3-1986 by which time decision had been made final to demolish the encroachment after expiry of the period of notice. Hence the representation was rejected. The actual demolition was made on 30-3-1986 (wrongly stated to be 30-4-86 in paragraph 11 of the counter affidavit) after 2.00 p.m. There was no objection to the removal of encroachments except that of the petitioner No. 1.