Orissa High Court
Arata Dehury vs State Of Odisha And Others .... Opp. ... on 5 August, 2021
Author: K.R. Mohapatra
Bench: K.R. Mohapatra
IN THE HIGH COURT OF ORISSA AT CUTTACK
W.P.(C) No.11638 OF 2018
Arata Dehury .... Petitioner
Miss Deepali Mohapatra, Advocate
-versus-
State of Odisha and others .... Opp. Parties
Mr. Arun Kumar Mishra,
Additional Government Advocate
CORAM:
JUSTICE K.R. MOHAPATRA
ORDER
Order No. 05.08.2021
06. 1. This matter is taken up through hybrid mode.
2. Heard Miss Mohapatra, learned counsel for the Petitioner and Mr. Mishra, learned Additional Government Advocate for the State-Opposite Parties.
3. The Petitioner in this writ petition seeks to assail the order dated 3rd August, 2013 (Annexure-4) passed by the Assistant Settlement Officer, Rental Colony, Bhubaneswar in Objection Case No. 5997/1248 of 2012 as well as the R.O.R. (Annexure-5) published in pursuance thereof.
4. Miss Mohapatra, learned counsel for the Petitioner submits that the Petitioner being a landless person applied for and was settled with Plot No.41 to an extent of Ac.1.000 decimals under Khata No.201 in mouza Gothapatana under Bhubaneswar Tahasil in the district of Khurda (for short 'the case land') in W.L.L. Case No. 1198 of 1975 by the Tahasildar, Bhubaneswar vide order dated 24th December, 1975 under the provisions of Page 1 of 6 // 2 // Orissa Government Land Settlement Act, 1962 (for short 'OGLS Act') and is in peaceful possession over the same exercising his right, title and interest thereon. Subsequently, a suo motu revision case was initiated under Section 7-A (3) of OGLS Act by the Additional District Magistrate, Bhubaneswar and vide order dated 13th August, 1987, the lease granted in favour of the Petitioner was cancelled. Assailing the same, the Petitioner preferred T.S. No. 98 of 1991, which came to be decreed in favour of the Petitioner vide judgment dated 3rd November, 1995 declaring the order dated 13th August, 1987 cancelling the lease granted in favour of the Petitioner as illegal, inoperative and without jurisdiction and not binding on the Plaintiff-Petitioner and also declaring that the Petitioner has right, title and interest over the suit land. The said judgment has never been challenged and attained its finality. Thereafter, the Petitioner preferred W.P.(C) No. 25734 of 2011 before this Court for issuance of a direction to the Tahasildar, Bhubaneswar for preparation of the R.O.R. in his name pursuant to the judgment passed in T.S. No. 98 of 1991. This Court vide order dated 26th April, 2012 disposed of the said writ petition granting liberty to the Petitioner to file an application before the Tahasildar, Bhubaneswar for correction of the R.O.R. in his name. Before the Petitioner could take steps for recording the case land in his name, Settlement operation started in the said locality. Hence, the Petitioner filed an application in Misc. Case No. 1424 of 2014 for modification of the order dated 26th April, 2012 passed in W.P.(C) No. 25734 of 2011. This Court vide order dated 28th January, 2014 disposed of the said misc. case granting liberty to the Petitioner to approach the Settlement Page 2 of 6 // 3 // Officer, Cuttack for correction of the R.O.R. instead of Tahasildar, Bhubaneswar. Accordingly, the Petitioner filed Objection Case No. 5997/1248 of 2012. The Assistant Settlement Officer, Rental Colony, Bhubaneswar without giving opportunity of hearing to the Petitioner to defend his case passed the impugned order under Annexure-4 observing that the Petitioner could not produce any sufficient documents to record the land in his name and directed to record the suit land in Government Khata. As such, ROR in respect of the case land was published in Government Khata under 'Abada Jogya Anabadi' status.
5. Miss Mohapatra, learned counsel further submits that law is no more res integra on this point. The Assistant Settlement Officer could not have questioned the settlement made under the provisions of the OGLS Act. In support of her contention, she relied upon the case law in W.P.(C) No.8774 of 2019 and a batch of cases, disposed of on 18th June, 2021, wherein this Court at paragraphs-30 and 33 held as follows:-
30. Nevertheless, the writ Court under Article 226 of the Constitution can interfere with an order passed by the statutory authority when it acts in a manner not recognized under law. In all these writ petitions, the properties in question were settled under the provisions of the O.G.L.S. Act. The settlement authority also accepted the same and proceeded in the settlement operation up to the stage of Section 11 of the Act, 1958. But, surprisingly the authority under the Act has acted in a different manner and passed the impugned orders without recognizing the settlement of the land under the provisions of the O.G.L.S. Act. Law is well settled that the authorities under the Act cannot sit over the settlement made under the O.G.L.S. Act. There is ample provision under the O.G.L.S. Act to cancel the lease granted in favour of beneficiary and in fact, the said settlements had undergone the test of its validity. It appears from the impugned orders that the Assistant Settlement Officer/Addl.
Sub-Collector conveniently avoided the settlement made Page 3 of 6 // 4 // under the O.G.L.S. Act by ignoring the same, which is not permissible under law. The impugned orders have, in effect, resulted in cancelling the lease granted in favour of beneficiary, which is not within the domain of the settlement authorities. My view gets support from the case of Lily Nanda -vs- State of Odisha reported in 2018 (I) OLR 559. As such, the impugned orders are without jurisdiction and the same are void. The action taken or publication made pursuant to the said void orders are also equally ineffective and no nest in the eyes of law. Thus, final publication of the R.O.Rs. under Section 12-B of the Act, 1958 pursuant to the void orders is not sustainable in the eyes of law.
33. In view of the discussions made above, this Court is of the considered opinion that the settlement authorities have acted without jurisdiction in passing the impugned orders and as such, the final publication of the R.O.Rs. under Section 12-B of the Act, 1958 is also not sustainable in the eyes of law. Accordingly, the impugned orders assailed in the respective writ petitions as well as R.O.Rs. published in pursuance thereof are set aside. The matters are remitted back to the authorities for fresh adjudication of the same in accordance with law giving opportunity of hearing to the parties concerned. Since the parties are litigating to assert their right for a considerable time, the settlement authorities are directed to conclude the proceedings as expeditiously as possible preferably within a period of six months from the date of production of an authenticated copy of this order, which shall be produced by the Petitioners before the settlement authorities within a period of four weeks hence to receive further instruction in the matter."
Accordingly, she prays for setting aside the impugned order under Annexure-4 and the consequential R.O.R. published under Annexure-5 and to remit the matter back to the Assistant Settlement Officer, Bhubaneswar for fresh adjudication in accordance with law.
6. Mr. Mishra, learned Additional Government Advocate for the State reiterating the averments made in the counter affidavit filed by the State submitted that during settlement operation it was found that Sabik Plot No.41 to an extent of Ac.34.210 decimals under Sabik Khata No. 201 in mouza Gothapatana Page 4 of 6 // 5 // under Bhubaneswar Tahasil was under classification 'Chhota Jungle' and was recorded in Government Khata under Anabadi kissam. As such, the same could not have been leased out in favour of the Petitioner. During settlement operation, Yaddast of Plot No. 132 and Bata Plot No. 41/743 to an extent of Ac.1.000 decimals corresponding to Hal Plot No. 132 was recorded in the name of the present Petitioner. In the meantime, final R.O.R. in respect of the suit land has been published under Section 12-B of the Orissa Survey and Settlement Act, 1958 (for short 'the Act') in the name of the Government. As such, the Petitioner has a remedy of revision under Section 15(b) of the Act to assail the correctness of the R.O.R. published under Annexure-5. Hence, this writ petition is not maintainable.
7. Mr. Mishra further submits that although this Court has directed the Petitioner to approach the Settlement Officer instead of Tahasildar, Bhubaneswar by modifying the order passed in the earlier writ petition, but, by the date, the order was modified, the Assistant Settlement Officer had already passed the impugned order.
8. Taking into consideration the submissions made by learned counsel for the parties and the legal issues decided in W.P.(C) No.8774 of 2019 along with a batch of writ petitions, this Court is of the considered view that the Assistant Settlement Officer could not have delved into the correctness of the settlement made under OGLS Act. It has to respect such settlement. In the case at hand, the Assistant Settlement Officer without making any endeavour to examine the lease case record, most mechanically passed the impugned order holding that the case Page 5 of 6 // 6 // land is not identifiable. The said observation is erroneous, firstly, because the case land was settled in the name of the Petitioner in the lease case after due enquiry and secondly, no such plea was ever raised by the State Government at any point of time either in the lease case or in the suit. The Petitioner was also not given opportunity to place material in support of his case. Thus, the Assistant Settlement Officer has acted erroneously and without jurisdiction in issuing direction to record the case land in the name of the Government Khata.
9. Accordingly, the impugned order under Annexure-4 and consequential R.O.R. published under Annexure-5 being not sustainable in the eyes of law are hereby set aside. The matter is remitted back to the Assistant Settlement Officer, Bhubaneswar (now functioning at Major Settlement Office, Jobra, Cuttack) for adjudication of the matter afresh in accordance with law giving opportunity of hearing to the Petitioner.
10. Learned counsel for the Petitioner undertakes to produce the certified copy of this order before the Assistant Settlement Officer, Bhubaneswar (now functioning at Major Settlement Office, Jobra, Cuttack) within a period of two weeks hence to receive further instruction in the matter for early adjudication of the Objection Case in accordance with law.
11. Urgent certified copy of this order be granted on proper application.
(K.R.Mohapatra) Judge bks Page 6 of 6