Orissa High Court
Sukanta Banka And Others vs State Of Odisha And Others .... Opposite ... on 13 October, 2022
Author: Chittaranjan Dash
Bench: Chittaranjan Dash
IN THE HIGH COURT OF ORISSA AT CUTTACK
W.P.(C)-PIL No.1236 of 2022
Sukanta Banka and others .... Petitioners
Mr. Samir Kumar Mishra, Advocate
-versus-
State of Odisha and others .... Opposite Parties
Mr. Debakanta Mohanty, A.G.A. for the State
Mr. Venugopal Mohapatra, Advocate for O.P. No.9
Mr. Pronoy Mohanty, Advocate for O.P. No.8
CORAM:
THE CHIEF JUSTICE
JUSTICE CHITTARANJAN DASH
ORDER
13.10.2022 Order No. Dr. S. Muralidhar, CJ.
12. 1. Four villagers of village Golasahi, PO- Kharipada, PS- Puri Sadar, District-Puri have come together to file this present writ petition questioning the transfer of Anabadi land having kisam 'Gochar' pertaining to plots 1362, 1364 under Khata No.1161 in Mouza Samanga corresponding to consolidation plot No.1973 measuring Ac 30.65 decimal having kisam 'Jhaun' under Khata No.3206 for construction of a Private School.
2. According to the Petitioners, without following the procedures for de-reservation outlined under the Orissa Government Land Page 1 of 10 Settlement Act, 1962 (OGLS Act) read with the OGLS Rules, 1983 the land in question in plot No.1973 which was shown as having kisam 'Gochar' in the Government records had been alienated first in favour of IDCO (Opposite Party No.8) which in turn has handed over the land to Opposite Party No.9, i.e., the DAV Institutions which have proposed to construct a School on the plot of the land.
3. Initially, this Court had issued notice in the case on 19th January, 2022. Subsequently, when it was noticed by the Petitioners that steps had already been initiated by Opposite Party No.9 to commence construction, they filed I.A. No.4905 of 2022, in which on 20th April, 2022 this Court inter alia passed the following order:
"3. Till the next date i.e. 10th May 2022, no further construction shall be raised over land appertaining to Plot 1362, 1364 under Khata No.1161 in Mouza Samanga, which corresponds to consolidation plot no.1971 measuring Ac.15.77 dec. having kisam 'Gochar', Plot No.1973 measuring Ac.30.65 dec. having kisam 'jhaun' under Khata No.3206."
4. At a subsequent hearing, when a counter affidavit had already been filed to which a rejoinder had been filed by the Petitioners, this Court on 14th July, 2022 passed the following order:
"1. A rejoinder affidavit has been filed by the Petitioners in reply to the counter affidavit filed by the Tahasildar, Puri enclosing an extract of the Revenue record Plots No.1362 and 1364 under Khata No.1161 in Mouza Samanga which corresponds to consolidation Plot No.1971 measuring Ac 15.77 dec. having the kisam Gochar as well as Plot No.1973 measuring Ac 30.65 dec. were originally having the kisam Gochar in 1927.Page 2 of 10
2. Mr. Samir Mishra, learned counsel appearing for the Petitioners states that in the counter affidavit filed the Tahasildar although it has been clarified that there has no alienation of Plot No.1971 is contemplated, it appears that land to an extent of five acres from out of Plot No.1973 was alienated in favour of IDCO, Bhubaneswar. He submits that the circumstances under such alienation took place and the further alienation in favour of the DAV School (Opposite Party No.9) took place have not been mentioned in the reply affidavit of the Tahasildar. He also questions if the procedure required for converting the kisam from Gochar to Bagayat as indicated in Annexure-1 to the petition (which is a copy of RoR in respect of plot No.1973) has been followed.
3. Mr. D.K. Mohanty, learned Addl. Government Advocate submits that all the relevant records are available with the Government. He undertakes to file a supplementary affidavit of the Tahasildar enclosing all the relevant records, which would indicate what the kisam of plot No.1973 originally was and whether it has been changed subsequently to bagayat in accordance with law.
4. Counsel appearing for the IDCO also states that he will file an affidavit, enclosing all the relevant documents, explaining the circumstances under which the extent of five acres out of Plot No.1973 was further given to Opposite Party No.9.
5. The above affidavits be filed within two weeks with advance copy to counsel for the Petitioner. It is clarified that the interim order passed by this Court on 20th April, 2022 is confined to an extent of five acres of land in Plot No.1973 which is currently with the Opposite Party No.9.Page 3 of 10
6. List on 16th August, 2022."
5. Pursuant to the above order of this Court, an additional affidavit has been filed by the Tahasildar, Puri where after setting out the directions issued by this Court in its order dated 14th July, 2022 it is stated as under:
"4. That as directed by this Hon'ble Court, it is respectfully submitted that during the year 1977, the land in question was under Sabik Plot No.1364, measuring an area Ac.30.65 decimals having "Gochar"
Kisam in Rakhita Anabadi Khata No.1161 of village Samanga.
9. That it was only thereafter, the IDCO, Bhubaneswar vide its letter no.19272/dated 7.11.2019 requested the Tahasildar, Puri, to process lease of government land measuring Ac.5.00 decimals in village Samanga from plot no.1973 under khata no.3206 with kisam Bagayat- III for creation of Land Bank for establishment of Industries and allied purposes. A copy of the letter dated 7.11.2019 along with the lease application is filed as Annexure-B/6."
6. It is claimed that thereafter a spot visit was conducted by the Tahasildar along with the Revenue Inspector (RI), Sasandamodarpur and then records were put up before the Collector, Puri who sanctioned the lease of an area of Ac 5.00 dec. out of an area of Ac 30.65 dec. from plot No.1973, Khata No.3206. Following this, an agreement was executed between the Collector, Puri and IDCO under the Odisha Industrial Infrastructure Development Corporation Act, 1980 which was registered on 30th December, 2020. It is, thereafter, that the Record of Rights (RoR) for the above land was mutated in favour of the IDCO. It is Page 4 of 10 maintained that at the time of alienation of the land in favour of the IDCO, the kisam of the land was already 'Bagayat-III' and not 'Gochar' and, therefore, the provisions of the OGLS Act, vis-à-vis Gochar land are not attracted at all. It is, therefore, maintained that no Gochar land has been allotted in favour of the DAV Management whatsoever.
7. Mr. Samir Kumar Mishra, learned counsel appearing for the Petitioners has drawn attention of the Court to the fact that both in para 6 as well ground No.2 of the writ petition, a specific averment was made that the Opposite Parties had not followed the provisions of the OGLS Act while de-reserving the kisam of the land in question from 'Gochar' to 'Bagayat-III'. He has drawn attention to Section 3(A) of the OGLS Act and the procedure outlined under Rule 4 of the OGLS Rules which required a public notice and invitation of objections before de-reserving the Gochar land. He points out that in the replies filed thus far, there is no denial of this averment of the Petitioners. However, what has sought to be conveyed by the Opposite Party-State is that sometime in 1991, the Assistant Consolidation Officer (ACO), a noting was made in the relevant record that the kisam of the land in question should be recorded as Bagayat.
8. Mr. Debakanta Mohanty, learned Additional Government Advocate (AGA) also refers to the same additional affidavit of the Tahasildar and states that indeed, the ACO had made a noting way Page 5 of 10 back in 1991 that the kisam of the land should be recorded as Bagayat and on that basis, the RoR also reflected the change consistently thereafter. He drew attention to the fact that as of 2014- 15 itself the kisam of the land was continued to be reflected as 'Bagayat'. He submits that since these documents were in the public domain, all the authorities acted on that basis and matters have progress much ahead with the lease being granted first in favour of IDCO and alienation of the land when taking place in favour of Opposite Party No.9 with IDCO having deposited money with the Government and in turn the DAV Institutions having deposited money with IDCO. He accordingly prays that, at this stage, the Court ought not to interfere as it would cause great inconvenience to all the parties.
9. The submissions of Mr. Mohanty, learned AGA have been supported both by learned counsel appearing for IDCO as well as learned counsel appearing for Opposite Party No.9.
10. The undeniable fact is that till 1991 when the above noting in the relevant record was made by the ACO, the kisam of the land in question was continued to be shown as 'Gochar'. In fact, in the same record in which the above noting was made by the ACO, on the left hand portion of the relevant page, the Amin had recommended that the Sabak record should be adhered to. The fact remains that till then the kisam of the land had not been changed from gochar to bagayat.
Page 6 of 1011. The further undeniable fact is that the only procedure for de- reserving a Gochar land is that which has set out in Section 3(A) of the OGLS Act read with Rule 4 of the OGLS Rules. It does appear that this procedure was not followed in the present case as it is not even the case of the State that any public notice as required thereunder was issued inviting objections.
12. However, Mr. Mohanty, learned AGA drew attention to Section 8(4) of the Orissa Consolidation of Holdings and Prevention of Fragmentation of Lands Act, 1972 (OCHPFL Act) which states that nothing contained in the OGLS Act shall apply "to lands required to be earmarked for public purposes as aforesaid". He sought to contend that since the running of a School was a 'public purpose', the provisions of the OGLS Act would not apply to the land in question.
13. The Court is unable to agree with the above submission. Section 8(4) of the OCHPFL Act would apply in a situation when the land in question is a Gochar land or any such land which has already been earmarked for a public purpose. It is such land which would not be governed by the OCHPFL Act. In the present case, however, once the de-reservation has taken place, although illegally, this argument would not apply. What is relevant to note, however, is that the de-reservation has happened without following the due procedure under the OGLS Act.
Page 7 of 1014. The fall back argument of Mr. Mohanty was regarding laches and delay. He sought to contend that with the change having taken place in 1991 itself and the RoR of the land in question consistently reflecting the change even as late as 2014-15 and with the RoR being in the public domain, the Petitioners have approached the Court very late for asserting their rights. He also submitted that if the Petitioners were aggrieved by the order passed by the ACO as well as the consequential RoR, then they could avail of the statutory remedy of an appeal under Section 37 of the OCHPFL Act.
15. The Court is not impressed with the above submissions. It is only when steps were started to be taken by Opposite Party No.9 to remove the Jhaun plants on the land in question that the villagers got alerted to the fact that some alienation had taken place of the land in question. They immediately filed a representation with the authorities and followed it up by making an application under the RTI Act without wasting much time. The copy of the information received by them under the RTI Act some time in December, 2021 has been enclosed as Annexure-6. Soon thereafter the present petition was filed on 11th January, 2022 without wasting any time. Consequently, it cannot be said that the present petition is not barred by delay and laches.
16. The sum total of the above discussion is that the de-reservation of the land in question which was Gochar land to 'Bagayat-III' has happened without following the procedure outlined under Section 3 Page 8 of 10 (A) of the OGLS Act read with Rule 4 of the OGLS Rules. This illegality is not a curable one as far as the validity of the subsequent actions of alienation of the land in question in favour of IDCO and the subsequent handing over of the land in favour of Opposite Party No.9 are concerned. That would be the inevitable legal result of the finding of this Court that the procedure for de-reservation of the land in question was not followed.
17. The question then arises as to what should happen hereafter. The authorities would now take steps in terms of Section 3(A) of the OGLS Act read with Rule 4 of the OGLS Rules by treating the noting made by the ACO in the relevant record that the kisam of the land in question should be recorded as Bagayat-III as invalid and non est. As a result, the status quo ante that noting of the ACO in the revenue record will come into being in which case the land in question will be treated as of now as Gochar land. Steps will now be taken, therefore, under Section 3(A) of the OGLS Act read with Rule 4 of the OGLS Rules for de-reserving the Gochar land in accordance with law. If there is any other legal requirement to be complied with in connection with the land in question prior to its alienation in favour of IDCO then that procedure will also be complied with by the State authorities. The Court expects that the steps to comply with the procedures for de-reservation in accordance with law will be completed in a time-bound manner. It is made clear that till the procedure is complete, the status quo as of today will be maintained.
Page 9 of 1018. If at the end of all of that procedure the land is in fact de- reserved and is no longer Gochar land then further steps would be taken by the State authorities and the Opposite Party Nos.8 and 9 in accordance with law. If, however, the land continues to remain as Gochar at the end of the entire exercise, then obviously the steps taken thus far would have to be reversed.
19. The writ petition is disposed of in the above terms.
(Dr. S. Muralidhar) Chief Justice (Chittaranjan Dash) Judge S. Behera Page 10 of 10