IN THE HIGH COURT OF ORISSA AT CUTTACK
W.P.(C) PIL No.8527 of 2016
Ranka Sahoo and others .... Petitioners
Mr. Soubhagya S. Das, Advocate
-versus-
State of Odisha and Others .... Opp. Parties
Mr. D.K. Mohanty, AGA for State - Opposite Parties
CORAM:
THE CHIEF JUSTICE
JUSTICE B. P. ROUTRAY
ORDER
Order No. 13.08.2021
I.A. No.10038 of 2021
1. This is an application seeking recall of the order dated 19th July, 2021 by which the writ petition has been disposed of.
2. For the reasons stated in the I.A. the same is allowed. W.P.(C) No.8527 of 2016 is restored to its original file.
W.P.(C) No.8527 of 2016
3. The detailed argument of Mr. Soubhagya S. Das, learned counsel for the Petitioners and Mr. D.K. Mohanty, learned Additional Government Advocate for Opposite Parties have been heard. The Court has also been taken through the counter affidavit and rejoinder affidavit filed in the petition.
4. The grievance in the petition is the alleged encroachment of Plot Nos.88 and 89 in Khata No.131 in Mouza-Jhansipatna by Opposite Party Nos.4 to 48. The claim is that these two plots were meant for common burial and cremation and these have been encroached upon illegally by the said Opposite Parties.
5. In the counter affidavit it is inter alia stated as under:
"xxxxx xxxxxxxxxx xxxxxxxx It is submitted that in Mouza Jhansipatna, there are 40 nos. of Refugee families living by encroaching Plot Nos.88 and 89 under Khata No.131 of Mouza Jhansipatna since 60 years kisam of which is "Smasan". But the Smasan (cremation ground) was created on p;ortion of Plot No.138 measuring Ac.1.163 dec., Khata No.132, Rakhita Anabadi in Mouza Jhansipatna Kisam of which is Gochar. The dispute is arising out of these Smasan Plots bearing Nos.88 and 89. In compliance of the order dated 20.08.2014 passed in W.P.(C) No.15001/2014, demarcation of plot Nos.88 and 89 was made by the then Tahasildar, Tangi. After physical demarcation of both the Plots aforementioned, it was found that there are encroachments over the above plots. Accordingly, on 11.11.2014, an attempt was made to evict the encroachers from those lands so as to make the said two plots encroachment free but due to stiff resistance from the encroachers and their family members, physical eviction could not be carried out.
It is relevant to mention here that the inhabitants of Jhansipatna Mouza were using a portion of Plot No.138 measuring Ac.1.163 dec. of Khata No.132 with Kisam 'Gochar' as Smasan for last 60 years whereas the refugee Bengalies are staying over Plot Nos.88 and 89 for more than 60 years. It is ascertained from the Block Office, Tangi that some developmental works like cement concrete road, electrification, ten nos. of Government tubewells, I.A.Y. houses have been made / constructed by the Block Administration over Plot No.88 and 89.
It is further relevant to mention here that in the mean time steps have been initiated under the provisions of OGLS Act and Rules to declare another patch of land measuring Ac.0.500 dec. out of total area of Ac.1.163 dec. of Plot No.138 and an area of Ac.0.022 dec. out of total Ac.0.813 dec. of Plot No.141 of Khata No.132 in Mouza Jhansipatna, Kissam "Gochar" as 'Smasan' by changing the Kissam of land as the said plots were earlier being used as "Smasan" by the people of Jhansipatna Mouza.
xxxxxx xxxxxxxx xxxxxxxx."
6. Mr. Das, learned counsel for the Petitioners vehemently contests the above averments and states that the authorities are not interested in evicting the so-called illegal encroachers who according to him have not been residing there for the last 60 years.
7. The submissions of Mr. Das in the rejoinder affidavit filed clearly demonstrate that the petition raises highly disputed question of fact. What apperars to be essentially a civil dispute, has been converted into a writ petition. The issue involves the rights of several private parties, Opposite Parties 4 to 48, who may have different types of claim for which evidence will have to be led, examined and a determination arrived at. This kind of an elaborate exercise is not possible in a writ petition.
8. Mr. Das then refers to the observations of Supreme Court in Jagpal Singh v. State of Punjab (2011) 11 SCC 396 where certain observations have been on the need to remove encroachers from the common lands of villages. While the requirement to follow the rule of law and to preserve the common lands in villages can hardly be doubted, whether in the facts of the case there has been in fact been an encroachment and who should be removed after being declared as encroacher is a matter of determination after examining the evidence that is presented. Such an exercise is not possible to be undertaken in the present writ petition, given the disputed questions of fact. The Petitioners will have to work out their remedies in appropriate civil proceedings for this purpose in accordance with law.
9. The writ petition is disposed of with the above observations.
10. An urgent certified copy of this order be issued as per rules.
(Dr. S. Muralidhar) ( B.P. Routray)
Chief Justice Judge
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