GOUTAM CHANDRA PATRA Vs. STATE OF ORISSA

JUDGEMENT

(1.) ON the basis of a letter received from the petitioner this writ petition has been registered as O.J.C. No. 2337 of 993 as a public interest litigation.

(2.) THE petitioner's case as revealed from the petition and as submitted by Sri B. R. Sarangi, appearing for the petitioner amicus qitriae is that he is the son of Gunanidhi Patra who was a poor freedom fighter of village Majurai and whose property has been forfeited during the British Rule. It is claimed that the petitioner has no source of income from landed property and from other sources. Plot No. 623/ 986 comprising of an area of Ac. 0.38 decimals in 'Kisam -Nayanjori' under Khata No. 238 of village Mankha, P.S.Govindpur, Dist. Cuttack belongs to Irrigation Department and this land is being leased out to different persons and that out of the said Ac. 0.28 decimals, the petitioner who is a landless and homestead person, had constructed a thatched house over an area of Ac. 0.01 decimals of the above land by taking a loan from the Bank to use the house for living purpose and to run a small business. It is alleged that without prior notice/intimation the Tahasildar, Niali suddenly sent a notice under the Orissa Prevention of Land Encroachment Act (hereinafter referred to as the 'Encroachment Act') to vacate the land without giving him an opportunity of being heard. The petitioner filed Encroachment Appeal before the Sub -Collector, Cuttack Sadar bearing O.P.L.E. Appeal No. 25 of 1992 which was dismissed by order dated 9.9.1992 as against which he preferred O.P.L.E. Revision No. 9 of 1992 before the Addl. District Magistrate (Revenue), Cuttack. It is asserted that by order dated 11.12.1992 the Addl. District Magistrate (Revenue), Cuttack remanded the matter to the Tahasildar, Niali with a direction to settle the land annually in favour of the landless persons in terms of the Government Order. It is submitted on behalf of the petitioner that he filed a lease application before the Tahasildar on 28.1.1993 for settlement of the land in his favour since he fulfils all the conditions indicated in the Addl. District Magistrate's order, but the Tahasildar without giving an opportunity of personal hearing, dismissed the Encroachment Case No. 41 of 1992 by order dated 15.3.1993 behind his back. In spite of production of medical ticket of Adaspur P.H.C. and City Hospital, Cuttack, but however, the lease application is still pending and no steps has been taken by the Tahasildar. However, the petitioner filed Appeal No. 19 of 1993 on 24.2.1993 before the Sub -Collector, Cuttack and the Sub -Collector has called for the L.C.R. from the Tahasildar while granting stay operation of the notice. But however, when the petitioner met the Tahasildar subsequently regarding finalisation of his lease application, no action is being taken. In the above background, the petitioner has prayed as follows :

(3.) THE Executive Engineer, Prachi Irrigation Division in his affidavit claims that Plot No. 623/900 under Khata No. 235 of village -Mankha belongs to Irrigation Department, which is a side cutting land by the side of the road of Kakatpur branch canal between R.D. 20.39 K.M. to 20.577 K.M. and it is leased out on annual basis, when borrowing of earth is not necessary. In paragraph -3 of the affidavit, it has been stated that the disputed plot was leased out to one Braja Kishore Panda of village Mankha for one year during 1992 -93 on payment of Rs. 100/ -vide S.D.O.,PratapNagari's Receipt No. 9728/493381 dated 11.5.1992. But however, during the subsistence of the lease period, the petitioner Gautam Patra with the help of others of village Majurai had forcibly constructed a thatched house over this plot on 19.6.1992 and the lessee Sri Braja Kishore Panda having brought this fact to the notice of the Sub -Division Officer, Pratapnagari on 20.6.1992, the Section Officer, Jharpada has reported the fact to the Executive Engineer, Prachi Irrigation Division who in turn informed the Officer - in -charge, Govindpur P.S. for taking necessary action by letter No. 153 dated 24.6.1992. The matter was also intimated to the Tahasildar and the Tahasildar removed the temporary thatch on 31.3.1993 constructed unauthorisedly by the petitioner after starting an encroachment proceeding.