Institute of Rural Development and Others vs State of Orissa and Others

Dr. Akshaya Kumar Rath, J.

Assailing the order of eviction dated 2.12.1998 passed by the Tahsildar Bari, vide Annexure-2 series, the petitioners have filed the present writ application.

Shorn of unnecessary details, the short facts of the case of the petitioners are that the petitioner No. 1 is a social organization of Bari Block consisting of some ex-Army Personnel, Freedom Fighters and Social Workers as well as Educationist of the locality. The same has been formed with the sole intention of undertaking various developmental works in different spheres of life. Petitioner Nos. 2 to 10 are the members of the said organization. During pre-Independence era, an area of Ac.0.82 decimals appertaining to sabak khata No. 667, sabak plot No. 1185 under Bari Tahasil was donated free of cost to the State Government by the ancestors of petitioners 5 to 10. Thereafter, a mound was built up for providing shelter to the flood affected persons of Rampa and Bari as well as the surrounding areas. Since then, the place is known as Bari Mound. In the year 1928, the State Administration handed over the plot to the Collector, Cuttack. Pursuant to the order No. 3710 dated 14.4.1977 of the A.D.M., Cuttack, the S.D.O., Jajpur on 27.5.1977 transferred the land to Rampa G.P.O., vide Annexure-1, with certain terms and conditions. A Junior Basic School is functioning over the said plot. A portion of the same is also earmarked for bus stand. A weekly market is functioning twice in a week in the said area. There are 40 to 50 daily shops around the market. The further case of the petitioners is that in the year 1981, Rampa G.P. proposed to auction the hat. Since there was a public agitation, the hat could not be put to auction. While the matter stood thus, the Tahasildar, Bari-opposite party No. 3 issued notice of eviction to the petitioner Nos. 11 to 21 and others, vide Annexure-2 series. With the aforesaid factual scenario, the present writ application has been filed.

Pursuant to issuance of notice, opposite parties 2 and 3 entered appearance and filed counter affidavit. The case of the opposite parties 2 and 3 is that petitioner No. 1 is a non-existing institution. There is no such institution in the name and style of Institute of Rural Development, Bari. Thus, the writ application at the behest of a non-existing entity is not maintainable. It is further stated that the encroached plot No. 1185 having khata No. 667 in village Rampa has been recorded in the R.O.R. of 1928; kissam "Rakhit Khata". The people of Bari area take shelter on the place during flood and other natural calamities. In the year 1977, pursuant to the application made by Rampa G.P. of Bari, an area of Ac.082 decimal near Baruan-Kalamatia P.W.D. main road appertaining to plot No. 1185 under holding No. 667 of village Rampa, recorded as Mound in the revenue record, was transferred to Rampa G.P. of Bari, vide Annexure-1 with certain conditions. One of such conditions was that the people of village Rampa and nearby villagers shall have a right to take shelter on Rampa Mound at the time of natural calamities like flood and the G.P. shall not have the right to interfere or should not erect permanent or temporary structure in the market areas. It is further stated that the Bari Mound Hat sits twice in a week i.e., on Monday and Thursday, but due to unauthorized encroachment of the hat place by 34 encroachers, who have put cabins and constructed permanent structures over the encroached land, the common people do not find place to sit over that plot to sell their agricultural products, as a result of which, small vendors sit on the road side creating road blocking and traffic problems. It is further stated that the land of Bari Mound belongs to the State Government and Ac.0.82 decimal of land was transferred to Rampa G.P. only to maintain the hat. Thus, the opposite party No. 3 has jurisdiction to issue eviction notices to the unauthorized encroachers over the Government land. The G.P. was entrusted with the responsibility only to maintain the hat over the suit land, which belongs to the Government.

Heard Mr. Palit, learned counsel for the petitioners and Mr. Muduli, learned Additional Standing Counsel for the State-opposite party.

Learned counsel for the petitioners submits that opposite party No. 3 has no jurisdiction to initiate proceedings under the O.P.L.E. Act, 1972 and, as such, the notices issued, under Annexure-2 series, are bad in law. The small traders, who eke out their livelihood by putting cabins, will be deprived of their livelihood, if they are evicted form the hat area. He further submits that the opposite party No. 3 being hands in gloves with one Kunja Behari Samal, the President of Paghida Service Cooperative Society, had issued notice of eviction. According to the learned counsel for the petitioners, Rampa G.P. failed to maintain the hat in question. Thus, the question of construction of shop rooms by G.P. does not arise.

Admittedly, the land belongs to the Government. No person has right to encroach upon the Government land. The land in question was transferred to Rampa G.P.O. by the A.D.M., Cuttack pursuant to the order of the Collector, Cuttack. A weekly hat is also functioning over the land in question twice in a week to cater the needs of the locality. Against the unauthorized encroachment made by the encroachers, the opposite party No. 3 has rightly initiated the proceedings under the O.P.L.E. Act and issued notice of eviction. As would be evident from paragraph-9 of the counter affidavit, due to unauthorized encroachment of 34 encroachers, who have put their cabins and constructed permanent structures, the common people do not find place to sit over the plot to sell their agricultural produces, as a result of which, small vendors sit on the road side for which road is blocked and creates traffic problem. The submission of the learned counsel for the petitioners that the terms and conditions of the deed of transfer have been violated, is of no avail. The same is between the concerned G.P. and the State Government. In the event the terms and conditions of the deed of transfer is violated, the Government may take appropriate action against the G.P.. So far as the contention of the learned counsel for the petitioners that the small traders will face a lot of difficulty if they are evicted from the land in question, this Court is of the view that the encroachers have no right to put cabin or make permanent structure over the Government land. Because of the action of the small group of persons, a large section of the society suffers.

Judging the case from any angle, this Court is of the considered opinion that the writ application, sans any merit, deserves dismissal. No costs.