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Judgment
G. Satapathy, J.
The petitioner, by way of this Writ Petition, invokes the extraordinary jurisdiction of this Court under Articles 226 & 227 of the Constitution of India praying to quash the notices of eviction in Form Nos. ‘Ka’ & ‘Kha’ issued U/S.9 of the Orissa Prevention of Land Encroachment Act, 1972 (in short, “the OPLE Act”) together with the entire proceedings initiated against the petitioner in this matter.
Heard, Mr. Sourav Suman Bhuyan, learned counsel for petitioner and Mr. Siba Narayan Biswal, learned ASC in the matter and perused the judgment cited by the learned counsel for the petitioner in Jasobant Parida Vrs. State of Odisha and others; disposed of on 21.11.2023 in WA No.506 of 2016.
Admittedly, a Division Bench of this Court in Jasobant Parida (supra) has formulated the following question: -
“9.Whether the provisions of OPLE Act, 1972 are applicable to the cases of unauthorized eviction and whether the statutory authorities under the said Act have jurisdiction to adjudicate the issue of eviction involved in respect of the land covered under Municipalities or NACs coming under urban area in view of the fact that the legislature have subsequently legislated the provisions of OPP Act, 1972 to deal with such cases in respect of the land under Municipality or NAC area?”
[OPP Act here means the Orissa Public Premises (Eviction of Unauthorized Occupants) Act, 1972]
In answering the above question, the Division Bench, after making a detail and extensive survey of the provisions of the OPLE Act and the OPP Act together with the law laid down by the Apex Court in decisions as referred therein, has observed in paragraphs-21, 23 & 25 the followings: -
“21.In view of the aforementioned provision, it is the Estate Officer, as notified by the Government of Odisha by way of notification, can initiate proceeding for eviction from the “Public Premises” within the meaning of OPP Act, 1972 by following due procedure by the Estate Officer for the purpose of the Act. Even Section 5 of the Act prescribes the eviction of unauthorized occupants and mechanisms has also been prescribed under the said Act, i.e., under Section 8 with regard to power of Estate Officer, under Section-9 with regard to appeals, under Section 13 regarding imposition of penalty and under Section 14 bars of suit and proceeding has been provided for. Thus, there is no iota of doubt that by insertion of “Municipality” to the definition of Public Premises, as envisaged under Section 2(f) with effect from 03.1.2011, the OPP Act is applicable to the municipal areas.
23.If very initiation of proceeding under the OPLE Act is without jurisdiction and nullity in the eye of law, in view of the insertion of “Municipality” to the definition of “Public Premises” under Section 2(f) of the OPP Act. As such, the Estate Officer notified by the State Government under Section 3 of the OPP Act, 1972 has got only jurisdiction to issue such notice and not the Tahasildar under the OPLE Act.
25.Therefore, if a proceeding initiated under the OPLE Act, 1972 by issuing notice of eviction by the Tahasildar having no jurisdiction, any order passed by him is nullity in the eye of law and any consequential steps taken under the said Act by the respective authorities also cannot be sustained as they have no jurisdiction, thereby such orders are nullity in the eye of law.”
There appears no dispute about Daspalla to have already been declared as a NAC, but there is inbuilt procedures provided for eviction from “Public Premises” and matters incidental thereto under OPP Act. It is no more res integra that Section 2(f) of OPP Act defines “Public Premises” as under: -
“2(f). “Public Premises” means any premises situated within the jurisdiction of a Municipality or within an area declared by the State Government to be an industrial estate and-
(i)belong to or taken on lease by the State Government or the Board or by any Company, Corporation, [Municipality], Improvement Trust, Special Planning Authority; or University; or
(ii)requisitioned by the State Government.”
At this stage, one question automatically comes to the mind of the Court that since all the Tahasildars and Additional Tahasildars of the State of Odisha by virtue of Notification No. S.R.O No.47 of 2020 dated 27th January, 2020 of the Revenue and Disaster Management Department have been declared as Estate Officers in terms of the provision of Section 3 of OPP Act to exercise powers thereunder, whether the proceeding initiated by the Tahasildar under OPLE Act for land under NAC is null and void? The answer to this question is definitely in negative and the proceeding initiated by such Tahasildar in respect of land of NAC under OPLE Act is null and void, since the procedure prescribed under OPLE Act is different from the procedure prescribed under OPP Act and when a thing has to be done in a particular way, the same must be done in that way, otherwise the proceeding initiated under another statue would render it to a nullity.
In view of the admitted facts and circumstance and taking guidance from the law laid down by the Division Bench of this Court in Jasobant Parida (supra), the proceeding initiated in this case under OPLE Act by the Tahasildar for eviction of the petitioner from the land under Daspalla NAC is unsustainable and liable to be quashed.
In the result, the Writ Petition stands allowed and the notices of eviction in Form Nos. ‘Ka’ & ‘Kha’ issued U/S.9 of the OPLE Act together with the entire proceedings initiated against the petitioner in this case is, hereby, quashed. Needless to say, the Tahasildar may proceed against the petitioner under OPP Act afresh, if the petitioner is liable for eviction qua the land under Daspalla NAC.