Dismissed

M/S.Jagannath Oil v. C.G.Mi.Di.D.C.O

Orissa HC5 Oct 2016WP(C)/15547/2012

Case brief

AI extract

What is this about?

This writ petition challenged an order of eviction from an industrial shed and sought a declaration that subsequent proceedings were illegal. The court dismissed the petition, holding that the petitioner had voluntarily abandoned earlier proceedings and failed to file a statutory appeal when directed to do so, rendering the eviction order final.

What did the court decide?

The writ petition is dismissed; there is no order as to cost.

M/S.Jagannath Oil Vs C.G.Mi.Di.D.C.O — Landlord and Tenant | Orissa HC (2016)

¶1

ORISSA HIGH COURT: CUTTACK

¶2

W.P.(C) No.15547 of 2012

¶3

In the matter of an application under Articles 226 and 227 of the Constitution of India.

¶4

---------M/s. Jagannath Oil Mill, represented by its Proprietor Sri Kabi Chandra Padhi, Industrial Estate, Berhampur … … … Petitioner -versus-

¶5

C.G.M. (ID), I.D.C.O. Janapath IDCO Towner, Bhubaneswar & others … … … Opp. Parties

¶6

For Petitioner	: M/s. R.K. Mohanty, Senior Advocate D.Mohanty, S.Mohanty & S.Mohanty.
For Opp.Parties	: M/s.S.P.Mishra, Senior Advocate, B.Mohanty, S.Das & S.Mishr (O.P.Nos. 1 and 2) M/s.H.Mohanty, H.K. Behera &
	A.K.Nath. (O.P.No.5)
	Date of Hearing: 28.09.2016
	Date of Judgment: 05.10.2016

¶7

P R E S E N T:

¶8

THE HONOURABLE MR. JUSTICE BISWANATH RATH

¶9

Biswanath Rath,J. This writ petition has been filed seeking a declaration as to why the entire proceeding against the petitioner involving Shed No.II/3, Industrial Estate, Berhampur shall not be quashed, as to why the writ of certiorari shall not be issued quashing the entire proceeding in EUO Case No.893 of 1996 vide Annexure-16 and a consequential direction directing the opposite parties to allow the petitioner to hold the disputed property by granting the petitioner time to deposit the entire outstanding within a stipulated period of time.

¶10

Short fact involved in the case is that vide Annexure-1 by order dated 20.12.1978, the General Manager, D.I.C., Ganjam allotted Shed

¶11

¶12

No.II/3 with the existing structure to one Jagannath Padhi, the present petitioner’s father, the sole Proprietor of Jagannath Oil Mill for establishment of Small Scale Industry over the allotted shed and the plot. On 20.3.1983, the Managing Director, I.D.C.O. issued letter to the establishment for extending higher purchase offer from 1.4.1983. While the position stood as such, on 25.1.1984, the D.I.C. declared the petitioner’s Unit as a sick Industry on the ground of low production, non-payment of overdue loans so also for closure of the production. Following some development, for revival of the Mill after an inspection, the D.I.C. decided for transfer of the ownership in favour of the petitioner. Permanent Registration Certificate was also issued in favour of the petitionerestablishment. Father of the petitioner also claimed to have cleared all arrear dues to I.D.C.O. till 1986. In the meantime, the original allottee, the father of the present petitioner died on 15.11.1991. Under Annexure-8 series demands were raised against the petitioner’s Unit for clearing the statutory dues for the year 1995-96, 1996-97 and on petitioner’s failure to meet the demand on default, a proceeding vide EUO Case No.693 of 1996 was initiated against the petitioner unit. On 24.8.1998, vide Annexure-11, the General Manager, I.D.C.O. issued a letter to Jagannath Oil Mill, the petitioner, asking the petitioner-establishment to produce the Legal Heir Certificate of Late Jagannath Padhi, in view of death of the Proprietor, Jagannath Padhi in the meantime. The letter indicated production of Legal Heir Certificate within a period of fifteen days from the date of issue of the said letter. This development had taken place consequent upon filing of a substitution petition by the son of Jagannath Padhi in the pending E.U.O. Case No.693 of 1996. In absence of production of any Legal Heir Certificate, order of eviction was passed by the Estate Officer involving E.U.O. Case No.693 of 1996. Sri Kabi Chandra Padhi, Son of Jagannath Padhi claiming to be the Proprietor of the Petitioner establishment preferred O.J.C.No.11830 of 1999 challenging the order of eviction in E.U.O. Case No. 693 of 1996, which matter was disposed of with a direction to the petitioner to approach the appellate authority against the dismissal of the E.U.O. Case No.693 of 1996 following a statutory remedy

¶13

¶14

of appeal available to Kabi Chandra Padhi. Admittedly, no appeal was preferred following the direction contained in O.J.C. No.11830 of 1999. In the meantime, Kabi Chandra Padhi applied for a Legal Heir Certificate on 3.7.2009. Subsequently, thereafter Sri Kabi Chandra Padhi made a representation to the Divisional Head of the I.D.C.O. disclosing the dismissal of the claim of the petitioner in the matter of Legal Heir Certificate and therein requested him to allow him some time for obtaining the Legal Heir Certificate. While the matter stood thus, on 13.8.2012, it is claimed that the opposite parties forcibly took over possession of the petitioners Unit resulting filing of the present writ petition. When the writ petition was entertained, as an interim measure, order of status quo claimed to be continuing till 9.2.2016, on which date the writ petition was dismissed for default. But by allowing a restoration application vide CMAPL No.92 of 2016, the writ petition was restored to its original position on 26.2.2016. The petitioner alleged that taking advantage of the dismissal of the writ petition for default and in absence of status quo order, in the meanwhile, the I.D.C.O. authorities executed another lease deed in respect of the disputed property in favour of M/s. Gayatri Industries, the present opposite party no.5. Petitioner alleged that since the order of status quo at the instance of this Court was continuing, the opposite party nos.1 and 2 wrongly entered into the another lease agreement in favour of the opposite party no.5 and thus orally claimed relief in declaring further execution of the lease agreement as bad. Admittedly, there is no amendment of the writ petition to this effect.

¶15

Sri R.K.Mohanty, learned Senior Counsel appearing for the petitioner based on the facts narrated hereinabove contended that since the E.U.O. Case No.693 of 1996 was rejected on technical ground and the petitioner’s effort to get a Legal Heir Certificate is still on and further since an order of status quo passed by this Court was continuing, the action of the opposite party nos. 1 and 2 all through become illegal and the petitioner is entitled to the relief asked for in the writ petition. Relying on certain documents filed by the petitioner subsequently, particularly the rejection order of the Tahasildar in the proceeding concerning grant of Legal Heir

¶16

¶17

Certificate, available at Annexure-19 to the writ petition, which document is yet to be a part of writ petition, Sri Mohanty, learned Senior Counsel contended that basing on the recording in the said certificate though application of the petitioner is rejected, contents therein clearly established that Kabi Chandra Padhi along with others, named therein, are the legal heirs of the deceased Jagannath Padhi and therefore, the petitioner has a right to claim re-opening of the proceeding and contesting the matter. 4. Sri S.P.Mishra, learned Senior Counsel appearing for the opposite party nos.1 and 2 contended that first of all the E.U.O. Case No.693 of 1996 was closed with an order of eviction of Jagannath Padhi for noncooperation of the Kabi Chandra Padhi, who in spite of being asked for production of the original death certificate, failed to produce the original death certificate even till conclusion of the proceeding. By referring to a document vide Annexure-D/1, in his counter submitted that in the proceeding dated 16.8.1997 in the E.U.O. Case No.693 of 1996, while deferring the matter to 12.9.1997, Sri Kabi Chandra Padhi was directed to produce the original death certificate of his father on the next date of hearing. The matter lingered thereafter for many days and the petitioner failed in attaining to the direction of the Estate Officer. Failure of the petitioner to attend to the requirement, the matter was decided against the petitioner. The E.U.O. Case No.693 of 1996 was closed holding the petitioner establishment is in unauthorized occupation of the said disputed land and following the conditions in the terms of agreement, the order of eviction involving the petitioner was passed. Sri Mishra, learned Senior Counsel next contended that challenging the final order passed in the E.U.O. Case No.693 of 1996, the petitioner preferred a writ petition before this Court vide O.J.C.No.11830 of 1999 which writ petition after considering the rival contentions of the parties since found availability of a statutory appeal remedy, was closed with an opportunity to the petitioner to approach the appellate authority against the order passed in E.U.O. Case No.693 of 1996. Admittedly, Sri Kabi Chandra Padhi represents the petitioner neither challenged this order nor even the petitioner file any appeal for this, the order passed in E.U.O. Case No.693 of 1996 remained

¶18

¶19

final. It is in these premises and also for the subsequent development of transfer of the Unit in favour of the opposite party no.5 in the meanwhile, Sri Mishra, learned Counsel appearing for the I.D.C.O. contended that the petitioner cannot be entitled to any relief at present.

¶20

Sri Mohanty, learned counsel appearing for the opposite party no.5 contended that his client has already been settled against the disputed premises by virtue of a lease agreement in favour of his applicant on 4.3.2016 and by virtue of which the opposite party no.5 has already started his business activities over the disputed property. Sri Mohanty concluded his submissions in the line of the argument, made by Sri S.P. Mishra, learned Senior Counsel and requested for dismissal of the writ petition.

¶21

Perusal of the records, this Court finds Kabi Chandra Padhi’s application for substituting him in place of deceased Jagannath Padhi has already been allowed by the Estate Officer as clearly appearing from the notices in respect of the E.U.O. Case No.693 of 1996. Since Jagannath Padhi was already treated as Proprietor of the petitioner-Mill and to consider his case, the Estate Officer rightly asked for production of the certified copy of the death certificate. It was the responsibility of the petitioner to attend to the above demand raised by the Estate Officer, in absence of which the Estate Officer had no alternate than to conclude the proceeding against the petitioner.

¶22

Now considering the submission of Sri Mishra, learned Senior Counsel that since in the year 2008-2009 vide Annexure-15 series the opposite party nos.1 and 2 called for Legal Heir Certificate from the petitioner in spite of rejection of the E.U.O. Case No.693 of 1996, it is observed that the case of Sri Kabi Chandra Padhi was even kept open till 2008-2009 but it is Kabi Chandra Padhi only failed to avail the chance. It is at this stage, considering that even though the notice was issued asking Legal Heir Certificate and the petitioner’s case was kept open in the year 2008-2009 for consideration but since this Court finds the petitioner could not be able to get the Legal Heir Certificate as on date, the opposite parties

¶23

¶24

could not have waited for an indefinite period and to sustain the loss of huge revenue by keeping property idle.

¶25

This Court further finds that in the first round of litigation at the instance of the very petitioner, this Court in disposal of O.J.C.No.11830 of 1999 by order dated 21.9.1999 passed the following order:

¶26

“……Since the alternative forum is available, we are not inclined to entertain this writ petition. The petitioner, if advised may approach the appellate forum and specifically raise the question as is being raised here. We may note that if there has been delay in preferring the appeal, the appellate authority will condone the same on application being made in that regard”.

¶27

Reading of the aforesaid order gives a clear indication that while disposing the writ petition, the petitioner was permitted to file an appeal against the order passed in the P.P. Case (EUO Case No.693 of 1996) and the authority was directed to hear the appeal condoning the delay even. There is no dispute that the petitioner did not file any appeal. As it appears, the order passed in EUO Case No.693 of 1996 remains final. Further, on perusal of the counter affidavit and considering the arguments advanced by Sri S.P. Mishra, learned Senior Counsel, this Court also finds that after accepting the application for substitution at the instance of the petitioner involving death of his father, the petitioner was directed to appear before the Estate Officer on 12.7.1999. However, petitioner did not attend the proceeding and choose to abandon the EUO proceeding in the meantime. For not availing the remedy of appeal, the order of the authority in EUO Case No.693 of 1996 remains confirmed. Further, as appears from the pleadings, the petitioner’s claim was based on legal-heirship with the original lease holder. Admittedly, the petitioner failed in his first attempt to get the legal heir certificate and as appearing from the documents at page 91 of the brief, petitioner also failed in his second attempt to get the Legal Heir Certificate. Even though the petitioner claimed that the document at Annexure-19 available at page 91 of the brief can be treated as a legal heir certificate but for the observations made therein and from the conclusion, it can by no stretch of imagination be treated as a Legal Heir Certificate, as ultimately the authority declined to grant a Legal Heir Certificate.

¶28

¶29

For the reasons that the petitioner did not chose to file an appeal following the direction in O.J.C.11830 of 1999 and when the petitioner volunteered to abandon to the P.P. Case vide EUO Case No.693 of 1996, as he did not appear and contest in the matter in spite of opportunity and allowed the final order therein becomes final and also for the reason of transfer of the Unit in favour of the opposite party no.5 in the meanwhile, there is no scope for consideration of the case of the petitioner at this stage. Consequently, the writ petition bears no merit and stands dismissed. However, there is no order as to cost.

¶30

Biswanath Rath,J..

¶31

Orissa High Court ,Cuttack The 5^th day of October.2016/sks

M/S.Jagannath Oil v. C.G.Mi.Di.D.C.O

Case brief

What is this about?

What did the court decide?

M/S.Jagannath Oil v. C.G.Mi.Di.D.C.O

Case brief

What is this about?

What did the court decide?

What the court decided

A compact analysis

Issues for consideration

Statutes considered

Parties & counsel

Coram

Case details

Similar cases

Padmalava Barik Vs State of Odisha

Sk.Afsar Vs Shiba Mallick

Bharat Kesari Mohanty Vs State of Orissa

J.Visweswar Rao Vs State of Odisha

Harihar Subudhi Vs State of Orissa

Rabinarayan Binod Vs Land Reforms Commnr.