Dismissed

Damodar Prasad Mohanty v. Tahasildar,Tirtol

Orissa HC21 Aug 2018WA/490/2016

Case brief

AI extract

What is this about?

This writ appeal challenged the Single Judge's refusal to interfere with the construction of an Anganwadi Center on government land. The bench, finding the appellant failed to show encroachment on their title and stating it is not the court's role to decide the location of such centers, dismissed the appeal by affirming the lower court's order protecting against encroachment.

What the court decided

AI extract

Damodar Prasad Mohanty Vs Tahasildar,Tirtol — Land Acquisition | Orissa HC (2018)

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W.A. No. 490 of 2016

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21.08.2018 By way of this writ appeal, the appellant has challenged the judgment and order dated 30.08.2016 passed by the learned Single Judge in W.P.(C) No.13424 of 2015, whereby the learned Single Judge has declined to interfere with the relief which has been claimed by the appellant-petitioner.

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Learned counsel for the petitioner submits that the Orissa Consolidation of Holdings and Prevention of Fragmentation of Land Act, 1972, which is a special act, provides for Consolidation of Holdings and Prevention of Fragmentation of Land for Development of Agriculture land in the State of Orissa. Keeping in mind the provisions of the aforesaid Act, 1972, the appellant has sought for a direction against the State-respondent Nos.1 and 2 i.e. Tahasildar, Tirtol and B.D.O., Tritol that they may not be allowed to construct the Anganwadi Center or Club House over Plot No.265 in the village Kanakpur, P.S. Tirtol.

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Learned counsel for the appellant contended that the learned Single Judge has seriously committed error in dismissing the writ petition inasmuch as the land which is in 1930 Settlement Record of Rights was shown in the name of the Government which cannot be converted into the nonagricultural land. He has further contended that in view of the Division Bench decision of the Hon'ble Supreme Court in the case of Ajay Singh vs. State of Chhatisgarh, reported in AIR 2017 SC 310, wherein the Hon’ble Supreme Court in paragraph-25 has held as under:

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“ 25. In the case at hand, the High Court on the administrative side had transferred the case to the

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learned Sessions Judge by which it has conferred jurisdiction on the trial court which has the jurisdiction to try the sessions case under CrPC. Thus, it has done so as it has, as a matter of fact, found that there was no judgment on record. There is no illegality. Be it noted, the Division Bench in the appeal preferred at the instance of the present appellants thought it appropriate to quash the order as there is no judgment on record but a mere ordersheet. In a piquant situation like the present one, we are disposed to think that the High Court was under legal obligation to set aside the order as it had no effect in law. The High Court has correctly done so as it has the duty to see that sanctity of justice is not undermined. The High Court has done so as it has felt that an order which is a mere declaration of result without the judgment should be nullified and become extinct.”

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He has further contended that the learned Single Judge has committed error in passing the impugned order dated 30.08.2016 while deciding the writ petition i.e. W.P.(C) No.13424 of 2015 with the following observations:

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“ The petitioner submits that the record of right published in the year 1930 reveals that Plot No.265 of mouza-Kanakpur Sasan in a pond. The pond is locally known as “Bata Gadia”. The villagers use that pond for bathing purpose. They use the water of the said pond for raising crops. Primary school had been established in the village in the year 1914. Thus the question of reserving the land for primary school does not arise. Opposite party Nos.1 and 2 succumbed to the pressure of some persons and opposite party Nos.1 and 2 succumbed to the pressure of some persons and opposite party No.3, took a decision to construct Anganwadi Center over Plot No.265. Adjacent to Plot No.265, there exists Plot No.262, which belongs to the petitioner. Without any proper demarcation, opposite party Nos.1 and 2 have started construction of Anganwadi Center by encroaching a portion of his land. He further submits that the kissam of Plot No.265 is Ghadia that means

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a pond. The Government have no right to change the kissam of the land.

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Per contra Mr. Panda, learned Additional Government Advocate for the State-opposite party Nos.1 and 2 submits that a decision had been taken by the opposite parties for construction of an Anganwadi Center over Plot No.265. In the consolidation of record of right the kissam of the said plot is Gharabari. The same is under Rakshita Khata. The land was demarcated before construction of Anganwadi Center. The assertion of the petitioner that the Government have taken a decision to construct a Club House is not correct.

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The submission of the petitioner is that the kisam of Plot No.265 is Ghadia and the same is one Rakshita Khata. But then the consolidation operation in the year wherein the land falls, started. Under the provisions of the Orissa Consolidation of Holdings and Prevention of Fragmentation of Land Act, 1972, the consolidation authorities have vested the jurisdiction to decide right, title and interest of the parties and jurisdiction of the civil court has ousted. The consolidation authorities after adjudicating right, title and interest issued R.O.R. The consolidation record of right vide Annexure-A/1 reveals that the kissam of land is Gharabari and the same is under Rakshita Khata and reserved for lower primary school. The same has attained finality. Thus, no reliance can be placed on the settlement of record of right of the year 1930.

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Construction of an Anganwadi Center in a particular area is essentially an executive function. No mandamus can be issued to the opposite parties to construct an Anganwadi Center over a particular place. More so, the assertion of the opposite parties is that there is no other land fit for construction of Anganwadi Center in the area. A bald assertion has been made that the opposite party Nos.1 and 2 have been pressurized by some people to construct an Anganwadi Center over Plot No.265. The same is without any basis. But then before constructing the Anganwadi Center over Plot No.265 of mouzaKanakpur Sasan, opposite party Nos.1 and 2 shall

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ensure that the same will not encroach upon the Plot No.262, which belongs to the petitioner. Accordingly, the petition is disposed of.”

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He also engaged our attention to paragraph-2 of the said impugned order dated 30.08.2016 passed by the learned Single Judge in W.P.(C) No.13424 of 2015, which reads as under:

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“ The case of the petitioner is that the opposite party No.1 is going to construct Anganwadi Kendra and Club House over a pond appertaining to Plot No.265 of mouza-Kanakpur Sasan, P.S. Tirtol. Adjacent to the East side of the Plot No.265, there exists Plot No.262 belonging to the petitioner. The pond is locally known as “Bata Gadia”. The same used by the villagers for bathing. The villagers use the water for horticulture purpose. The petitioner has raised vegetables and planted banana trees over the said plot. Some people of the village are interested for construction of Anganwadi Kendra and Club House under the leadership of opposite party No.3. Opposite party No.1 succumbed to the political pressure. They are planning to cut and removed the hedge of the boundary between the petitioner’s Plot No.262 and Plot No.265. The petitioner had filed a petition before the opposite party No.1 on 13.7.2015 with a prayer not to construct the Anganwadi Kendra and Club House by filling the pond. No action has been taken by the opposite party No.1. Rather the opposite party No.1 asked the Revenue Inspector, Kanakpur to proceed with the construction work. It is further stated that the Government have no right to change the kissam of land. With this factual scenario, the writ petition has been filed.”

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Lastly, in support of his contention, learned counsel for the appellant has also taken us to the Preamble to the Orissa Consolidation of Holdings and Prevention of Fragmentation of Land Act, 1972, which reads as under:

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“Preamble is expected to express the scope, object and purpose of the Act. In this context the Special statute in question was enacted to consolidate holdings and prevention of Fragmentation land. It was not intended to conduct survey and settlement of nonagriculture land like homestead.”

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He has also relied on the decision of this Court in R.S.A. No.234 of 2012 ( Jayasingh Mallick vs. State of Odisha and another, disposed of on 05.10.2016) , wherein in paragraph-14 the learned Single Judge has observed as under:

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“14. The lease patta, vide Ext.1, shows that the same was unauthorizedly occupied by the plaintiff. The land was objectionable. Patta was granted without taking prior approval of the higher authority and without taking salami. The plaintiff was a Government servant. He was not a landless person. The land was recorded under Rakhit Khata (reserved land) for future development. In view of proviso to sub-section (2) of Section 7 of the Orissa Prevention of Land Encroachment Act, no such settlement can be made, if the land recorded as Gocher, Rakhit or Sarbasadharan in any record of rights prepared under any law. The lease patta, vide Ext. 1, is not valid. Adverse possession is a mixed question of fact and law. The plea of adverse possession has been negative by the learned courts below. The substantial question of law enumerated in ground No.(ii) is answered in affirmative against the plaintiff.”

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Learned counsel for the appellant has further contended that the action of the respondents-State Government is contrary to the statutory provision.

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However, the learned Single Judge while considering the matter has taken into consideration the relevant fact and on that basis the impugned order has been passed.

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Considering the facts and circumstance of the case and going through the materials placed before us, we are in complete agreement with the view taken by the learned Single Judge in the impugned judgment and order. It is not for this Court to decide where the Anganwadi Center is to be constructed.

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The interest of the petitioner-appellant is protected to the extent that no encroachment shall be made upon the plot of the appellant as reflected in the impugned order.

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In that view of the matter, the appeal is without any substance and deserves to be dismissed.

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Accordingly, the writ appeal stands dismissed.

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.��..........�� ( K.S. Jhaveri ) Chief Justice

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��.��.. ( Dr. B.R. Sarangi ) Judge

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SKJ

Damodar Prasad Mohanty v. Tahasildar,Tirtol

Case brief

What is this about?

What the court decided

Damodar Prasad Mohanty v. Tahasildar,Tirtol

Case brief

What is this about?

What the court decided

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