The Orissa High Court has ordered the Tahalisdar, Kakatpur to plant 'at least 50 trees' as a penalty for passing a 'bizarre' order in a land encroachment case. While observing that the Taahsildar did not grant sufficient opportunity to the petitioner before passing order against her, a Single Judge Bench of Justice Biswanath Rath observed,
"Looking to the nature of the case and for involvement of eviction of a person from his residence the Tahasildar has a responsibility to find whether the encroacher is an educated and law knowing person or not. Further, the Tahasildar has to see the encroacher if belongs to weaker section or person downtrodden in the society having not even sufficient income to take aid of counsel."
There was a serious allegation that in issuing notice in an encroachment case, the Tahasildar Kakatpur fixed the case to 15.9.2021. It was alleged that even though the encroacher had appeared on the same date but in absence of any show-cause being filed and without even giving an opportunity of hearing to the encroacher, the Tahasildar on the same day not only disposed of the proceeding but has also come to assess the levy as well as penalty imposing therein a sum of Rs. 4.00/- towards levy assessment and Rs.1,000/- towards penalty and issued 'J' slip under the Odisha Prevention of Land Encroachment Act, 1972 ('OPLE Act').
The petitioner being aggrieved by the said order, had challenged the same before the High Court through a writ petition.
Contentions of the Petitioner:
Ms. P.S. Mohanty, counsel appearing for the petitioner, submitted that the encroacher since an illiterate woman and not well aware of law involved and as there was already appearance of encroacher, in the interest of justice, the Tahasildar should have at least provided one more opportunity to the petitioner to file show-cause. She also claimed that in the event the Tahasildar taking up the matter for final hearing, ought to have recorded the submission of the encroacher and also recorded his own finding before coming to observe the petitioner as an encroacher.
Contentions of the Respondents:
Mr. U.K. Sahoo, Additional Standing Counsel, attempted to satisfy that pursuant to the notice dated 28.7.2021, the record clearly establishes that the petitioner was present on the date fixed. He also submitted that the petitioner presented her case and it is only after considering the case of the petitioner, the Tahasildar appeared to have held the petitioner as an encroacher and assessed on account of levy as well as penalty. In the process, he attempted to justify the action of the Tahasildar.
This Court first observed that when a proceeding is initiated under a statute, it has a definite purpose for consideration and more particularly, when the matter involves encroachment, the Tahasildar should not have rushed to decide the matters on that date itself.
It noted, it appeared under the bona fide impression of a direction from Tahasildar, encroacher volunteered to appear and, in many occasions, even agreed to the imposition of fine and penalty. Thus, the Court held, once an encroacher volunteers to appear, the Tahasildar if finds there is no written response from him, at least should provide one more opportunity to file her response to find the reason.
Further the Court made it clear, after filing of show cause, orders should not be passed in encroachment proceedings mechanically. Since there is allegation of encroachment, Tahasildar should record the case of the party, the State and then only proceed to have his own finding and record ultimate decision.
After perusing the order passed by the Tahasildar, the Court found on the first date, notice appeared to have been issued fixing the date of appearance and show cause involving the party likely to be affected. Even the first date order, nowhere discloses the date was fixed for hearing. It stressed that since there was notice to appear and show-cause, even in absence of filing of show cause, the Tahasildar should have fixed a date of hearing even providing one more opportunity of show cause. It again held,
"Further, looking to the final order, the Tahasildar in holding the petitioner as an encroacher, the order dated 15.9.2021 has no disclosure on particulars of land, no assigning of reason and conclusion before holding the person as an encroacher. The position meant for suit land even kept unfilled. Further looking to the final order involving proceeding under Section 7 of the O.P.L.E. Act passed by the Tahasildar, this Court also observes the Tahasildar even not provided the reason and discussed the case of the party stated before him. There is even no consideration of case of the party involved. Further, to the surprise of the Court, there is even no finding of the Tahasildar in coming to hold a person as an encroacher to provide at least opportunity to the person affected to have its statutory appeal remedy. It is on the above background, this Court finds there has been mechanical disposal of the proceeding under Section 7 of the O.P.L.E. Act."
Finding 'bizarre' disposal of proceeding under Section 7 of the OPLE Act by the Tahasildar, the Court directed copy of the order to be communicated to the Principal Secretary, Revenue & Disaster Management Department and Principal Secretary to Law Department for making an endeavour, through the Tahasildars being the original authority under the Act, not to repeat such mistakes thereby restricting unnecessary loading of cases in the High Court involving such unnecessary litigation.
Before parting with the order, the Court imposed a penalty on the Tahasildar. It directed,
"For the matter is heard involvement of the Tahasildar and Tahasildar claiming bonafide action involved herein, to see no repetition of this nature of order by such Authority in the State of Odisha, this Court directs the Tahasildar to at least plant 50 numbers of tree needed to be planted in road side in any sector in the C.D.A. area in the involvement of Cuttack Development Authority."
Case Title: Mita Das v. State of Odisha & Ors.
Case No.: W.P.(C) No. 12118 of 2022
Order Dated: 18th May 2022
Coram: Justice Biswanath Rath
Counsel for the Petitioner: Ms. P.S. Mohanty, Advocate
Counsel for the Respondents: Mr. U.K. Sahoo, Additional Standing Counsel
Citation: 2022 LiveLaw (Ori) 76