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Judgment
K.R.Mohapatra, J
This matter is taken up through hybrid mode.
The Petitioner in this writ petition assails the issuance of notice in Form "Kha" in Encroachment Case No.4-106 of 2020 issued by the Tahasildar, Jaleswar-Opposite Party No.2.
It is submitted by Mr. Bose, learned counsel for the Petitioner that Encroachment Case No.4-106 of 2020 was initiated against the Petitioner and the date of his appearance was fixed to 10th March, 2021 at 11.00 A.M. before the Tahasildar, Jaleswar-Opposite Party No.2. But, most surprisingly, on the day of issuance of notice, i.e. on 10th March, 2021, Form "Kha" was also issued simultaneously serving the same on the Petitioner. As such, the Petitioner being aggrieved has filed this writ petition.
It is further submitted by Mr. Bose, learned counsel for the Petitioner that the Tahasildar, Jaleswar-Opposite Party No.2 has proceeded in a most perfunctory manner without affording any reasonable opportunity to the Petitioner. Thus, the notice of eviction in Form "Kha" is not sustainable and the same is liable to be set aside. The matter may be remitted back to the Tahasildar, Jaleswar-Opposite Party No.2 to provide an opportunity to the Petitioner to file objection and contest the case.
Mr. Praharaj, learned Standing Counsel for the State submits that since eviction order has already been passed and notice in Form "Kha" has already been issued, the Petitioner has remedy under Section 12(1) of the Orissa Prevention of Land Encroachment Act, 1972 (for short, 'the Act') to file appeal and raise all such grounds before the appellate authority. In view of availability of statutory remedy under Section 12(1) of the Act, the writ petition is not maintainable.
Heard learned counsel for the Petitioner and perused the materials on record. It appears that notice in Form "Ka" and Form "Kha" in Encroachment Case No.4-106 of 2020 were issued on the very same day, i.e., 10th March, 2021 and both the notices were served on the Petitioner. Further, notice in Form "Ka" under Annexur-1 reveals that the date of appearance of the Petitioner was fixed to 10th March, 2021 at 11.00 A.M..
In that view of the matter, it appears that the Tahasildar, Jaleswar-Opposite Party No.2 without providing any opportunity to the Petitioner has proceeded to pass an order of eviction, which is not sustainable in the eyes of law. As such, the notice in Form "Kha" issued in Encroachment Case No.4-106 of 2020 is vitiated and not sustainable. Accordingly, the same is set aside. The matter is remitted back to the Tahasildar, Jaleswar-Opposite Party No.2 to provide a reasonable opportunity to the Petitioner to file objection and contest the case.
Mr. Bose, learned counsel for the Petitioner submits that the Petitioner will appear before the Tahasildar, Jaleswar-Opposite Party No.2 on 20th September, 2021 along with a certified copy of this order to receive further instruction in the matter.
The writ petition is accordingly disposed of.
Urgent certified copy of this order be granted in course of the day on proper application.
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