Orissa High Court
Geetanjali Kanhar And Others vs State Of Odisha And Others --- Opposite ... on 3 February, 2020
Equivalent citations: AIRONLINE 2020 ORI 54
Author: D.Dash
Bench: D.Dash
HIGH COURT OF ORISSA : CUTTACK
W.P.(C) No.21195 of 2016
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In the matter of an application under Articles 226 and 227 of
the Constitution of India.
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Geetanjali Kanhar and others --- Petitioners
Versus
State of Odisha and others --- Opposite Parties
For Petitioners : M/s.A.K.Sahoo, S.Pradhan and
N.Mallick
For Opp. Parties : Mr.S.Palit, AGA
(For O.Ps.1 to 4)
M/s.J.Bhuyan, A.Routray,
D.Behera and P.K.Jena
(For intervenors)
M/s.S.Jena, G.B.Jena and
J.Mohanty
(For intervenors)
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P R E S E N T:
THE HONOURABLE SHRI JUSTICE D.DASH
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Date of hearing: 29.01.2020 Date of judgment :03.02.2020
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D.Dash,J. The petitioners, by filing this writ application, have
prayed for a declaration that the action of the Collector, Kandhamal,
(Opposite Party no.2), Sub-Collector, Kandhamal, (Opposite Party
no.3) as also the Tahasildar, Khajuripada, (Opposite Party no.3) in
converting the Kisam of the land measuring Ac.5.932 decimals
covered under 10 plots of Khata No.218 from "GOCHAR" to "PATITA"
being assigned with Khata No.220 under said 10 plots as illegal. They
have further prayed to direct the Opposite Party no.2 to consider
their grievance as also those of other co-villagers in this regard.
2. Facts necessary for the purpose are as under:
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The villages, namely, Kaladi and Tilakpada under
Khajuripada Tahasil in the sub-division of Kandhamal of the district of
Kandhamal is a Scheduled Area as per the Presidential Order, i.e, the
Scheduled Areas (States of Bihar, Gujurat, Madhyapradesh and
Odisha) Order, 1977 made in exercise of powers conferred by sub-
paragraph 6 of the 5th Schedule of the Constitution of India.
It is stated that the opposite party no.4 suddenly affixed
a proclamation/notification in mouza Kaladi and Tilakpada regarding
establishment of Durgapati 8th Specialized India Reserved Battalion
(hereinafter called as „the Battalion‟) and for the purpose, ten plots of
land of Gochar kisam in mouza Kaladi under Khata No.218 measuring
Ac.5.932 decimals have been converted to kisam Patita under Khata
no.220. It is said that said establishment of Battalion had been
objected to by the people of the locality by conversion of said land
from Gochar to Patita. It is further stated that although the
petitioners and others had raised serious objection to such conversion
of kisam of land after having come to know about the move by notice
dated 21.12.2018 as under Annexure-1 series, those have not been
duly considered. In this way, the conversion of kisam of the aforesaid
land having been made, opposite party no.4 made a proclamation on
11.07.2016 for establishment of the Battalion over that land under
Khata no.220 as it stood after conversion of kisam. This was again
objected to by the petitioners and others and so also the subsequent
communication made by the opposite party no.4 in that connection. A
meeting in the village being convened, said action of opposite parties
for establishment of the Battalion over the land by conversion of its
kisam from Gochar to Patita was deprecated and it was decided to
raise objection in proper quarters.
It is the case of the petitioners that the villagers of the
said locality are depending on said land kept for being used for
grazing of cattles. It is next stated that the land in question in the
area being within the declared Scheduled Area, the provisions of
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Panchayats (Extension to the Scheduled Areas) Act, 1996 (in short,
„the PESA‟) is fully applicable. So, it is said that such action of the
opposite parties as to conversion of the kisam of the land from
Gochar to Patita is in contravention of the provisions of clause (i) and
(n) of section 4 of PESA. Their case is that the provision of the
aforesaid Act having been thrown to the winds by the State
authorities-opposite parties in the matter, said order of conversion of
kisam of land is illegal and thus liable to be quashed.
It may be stated here that on 21.12.2015, notification as
to establishment of the Battalion at Mouza-Kaladi had been published
after conversion of the kisam of the land from Gochar to Patita. On
11.2.2016 and 26.2.2016, communications were made for the
awareness of the general public as regards such move inviting their
objections/suggestions, if any. On 11.7.2016, proclamation was
issued for establishment of the Battalion. On 10.8.2016, the
petitioners and others raised their objection in the above connection
as regards the establishment of the Battalion on the following
grounds:
"(i) contravention of clause (i) and (n) of section 4 of
PESA; and
(ii) existence of burial ground over the land."
3. The opposite parties 2 and 4, in their counter, have
averred that for such conversion of kisam of land, all the procedures
as prescribed in Odisha Government Land Settlement Act and rules
made thereunder have been scrupulously followed and so also in the
matter of alienation of the land after said conversion of kisam of land.
It is stated that the villagers have been given the opportunity to raise
their objection at every stage and they having been heard with
reference to the objections, the decisions have been taken.
While not disputing that the provisions of PESA have their
applicability in so far as the place where the land in question situates;
it is stated that since the provisions of PESA does not at all get
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attracted for the subject matter, viewed with the purpose, the
decision so taken is not in contravention of clause (i) and (n) of
section 4 of PESA. It is stated that such process of alienation does not
also affect any individual right.
It has been further averred that the objections raised are
with ulterior motive with a bid to somehow put to block the process
and move of the State for prevention of nuxlite activities in the area,
which has already witnessed a communal riot as also in relation to
serious law and order problems.
4. It is pertinent at this stage, to mention that on
27.1.2020, the original petitioner nos.2, 3 and 5 have filed three
affidavits separately. They have stated that although they were
raising objections for the Battalion being established at the place,
presently they do not have any objection since the Government has
decided for establishment of a Medical College and Hospital over that
land by putting up required constructions having taken a decision as
to shift of the Battalion to a nearby place at Belaguntha in the district
of Ganjam where the constructions for the establishment of the
Battalion have already started. Filing such affidavits, they stated to
be no more interested to remain within the arena of the proceeding
as petitioners. In view of that, their names have been deleted in the
cause title and they are no more in the arena of this proceeding.
The intervener-petitioners vide I.A. No.4184 of 2018 at
this belated stage have come to be added as opposite parties 6 to 12
and their petition has been allowed vide order dated 29.1.2020
passed by this Court. They have stated that in view of the prevailing
Maoist activity in the district of Kandhamal and other adjacent district
with the growing and continuous demand from the side of the local
inhabitants to combat the same by deployment of Battalion in the
locality for progress of developmental process; there should be
establishment of Battalion over the land and that being earmarked for
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the purpose be not used for any other purpose, whatsoever including
the setting up of Medical College and Hospital.
The opposite parties 13 to 18 have come to be added as
as such as their belated intervention application vide I.A. No.9418 of
2019 has been allowed by this Court on 29.1.2020. Their case is that
the district being a riot prone area and since had witnessed a serious
communal riot in December, 2007, the decision for establishment of
the Battalion need be carried out. In so far as the land in question is
concerned, it is submitted that the conversion of the kisam of the
land from Gochar to Patita is not in contravention of the provision of
PESA. They submit that the writ application has been filed with
ulterior motive to see that the decision of the Government for
establishment of the Battalion is somehow foiled.
5. Reiterating the averments made in the writ application,
learned counsel for the petitioners submitted that in the matter of
conversion of kisam of the land in question, there has been
contravention of provision in clause (i) and (n) of section 4 of PESA.
According to him, in the matter as mandatorily required under clause
(i) of section 4 of PESA, the Grama Sabha or the Panchayat at the
appropriate level has not been consulted before such conversion and
said power rest with the Panchayat under clause (n) of section 4 of
PESA has been usurped by the State, which is not permissible and as
such all the actions taken in that regard are illegal. The objection as
to the existence of burial ground which had been mentioned in the
original objection filed before the authority on 10.08.2016 is not
pressed into service and given a gobye. In view of the above, it was
submitted that such conversion of kisam of the land is nonest in the
eye of law being without jurisdiction. According to him, in the matter
of conversion of kisam of land in contravention of the provisions of
PESA as applicable and by following the provision of the Odisha
Government Land Settlement Act which has no application especially
in such matter of conversion of kisam of the land is nonest in the eye
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of law. He submitted that the decision of conversion of kisam of land
being nonest, at present, the kisam of the land is to be taken as
Gochar which is objectionable and, therefore, neither the State nor
anyone else can put up any such construction over the said land
which cannot be used for any purpose whatsoever other than as it
stood recorded.
Learned counsel for the opposite parties-intervenors have
reiterated the stand as taken in their counter as aforementioned.
6. Learned Additional Government Advocate submitted that
now the Government has taken a decision for establishment of a
Medical College and Hospital in the area using this Government land
as also other nearby land. It was submitted that in view of the move
of the petitioner before this Court by filing the writ application and for
the interim order passed by this Court on 11.01.2017 in Misc. Case
No.19481 of 2016, the establishment of the Battalion, which was the
urgent need, Government was compelled to take a decision for
shifting it to a nearby place in the adjoining district where the
construction work has already commenced so far which at present the
question of establishment of a Battalion over the land in question is a
foregone conclusion. He, however, submitted that it makes no
difference in the matter of establishment of the Battalion at
Belaguntha in the district of Ganjam, which is at a short distance
from the present place as that is also an ideal location best suited for
the purpose. It was submitted that the decision for establishment of
the Battalion was for the benefit of the general public and so also the
present decision for establishment of Medical College and Hospital in
catering the need of the inhabitants of the Scheduled Area in getting
proper and advanced health care at door step, which is the need of
the hour. It was submitted that the submission of the intervenor
opposite parties that establishment of the Battalion is not objected to
and it be established in the place is clearly a mischievous one when it
is quite certain that the same is no more possible. According to him,
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these intervenor-petitioners have come when it has become as clear
as the noon day that the move of the original petitioners as laid
would not succeed in questioning the conversion of kisam of land.
Placing the provisions in clause (i) and (n) of section 4 of
PESA, he contended that those provisions have absolutely no
application to the matter in hand and thus the question of holding the
action as to conversion of kisam of the land to have been taken in
contravention of the provisions of PESA does not arise.
7. On the rival submissions, the first question that stands for
answer is as to whether the decision of conversion of the Kisam of the
land in question from that of „Gochar‟ to „Patita‟ is in contravention of
the provisions of the PESA and the action as is said to have been
taken as to conversion of the Kisam of land by following the
provisions of Odisha Government Land Settlement Act and the rules
made thereunder if has the legal sanction.
8. Section 3 of PESA provides the extension of Part IX of the
Constitution relating to Panchayats to the Scheduled Areas with the
exceptions and modifications as are provided in section 4 of the said Act.
Section 4 of PESA begins with non-obstante clause that
notwithstanding anything contained under Part IX of the Constitution,
the Legislature of a State shall not make any law under that Part
which is inconsistent with the features as have been stated under
clause (a) to (o). Here, the petitioners have alleged contravention of
the provision in clause (i) of section 4 of PESA. It says that the Gram
Sabha or the Panchayats at the appropriate level shall be consulted
before making the acquisition of land in the Scheduled Areas for
development projects and before resettling or rehabilitating persons
affected by such projects in the Scheduled Areas, further regarding
coordination at the State level as to the actual planning and
implementation of the projects in the Scheduled Areas. (Emphasis is
provided on the word „acquisition‟)
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9. In the present case, the State is the owner of the land. It
is true that the Kisam of the land stood as Gochar. But, as in this
case, the State has not gone for acquisition of land and the State
having taken a decision that its land is ideal for use for the purpose
other than the purpose as per the recorded Kisam has followed the
procedure prescribed under the law made by the Legislature, i.e,
Odisha Government Land Settlement Act and the rules made
thereunder for such conversion of the kisam, there arises no case for
contravention of the provision of PESA. The PESA has empowered the
Grama Sabha/Panchayat at appropriate level with the right to
mandatory consultation in land acquisition, resettlement and
rehabilitation of displaced person. But here there being no
acquisition of these land belonging to anyone for the purpose, the
provisions of clause (i) of section 4 has no applicability at all that in
such matter of conversion of the Kisam of the land. For the purpose,
thus said consultation was not the legal need. It is not denied that in
taking the decision as to conversion of the kisam, objections have
been invited, there being hearing; other process, as provided in the
Act and rules, have been followed.
10. In view of the above, the objection that the decision of
conversion of the kisam of the land from „Gochar‟ to „Patita‟ being
without jurisdiction is nonest does not hold water. The kisam of the
land having been changed to Patita, the State being its owner, when
decided that over that land and other lands nearby, a Medical College
and Hospital would be established to cater the need of the people of
the area as to getting the proper attention in the matter of immediate
Health Care with advanced treatment as also the development of the
area in serving public good in so many ways, the very moves of the
petitioners as also the intervenors clearly appear to be vexatious and
must fail.
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11. As regards the decision for establishment of the Battalion
over the land and nearby land in the Scheduled Area, it is clearly
seen to be in the direction of discharge of the State‟s function and
duty in doing the needful for the peaceful living of its citizen in an
atmosphere being duly maintained with the law and order in further
providing the people to live in a free and fearless manner/way and
environment being in a position to exercise all such rights guaranteed
and as available to them for their decent living with human dignity as
a part of the constitutional right, i.e. right to life as guaranteed
under Article 21 of the Constitution.
In so far as the decision for establishment of the Medical
College and Hospital over there, it is again in the direction of
providing proper and advanced health care facilities to the inhabitants
of the locality as well as all others, at the door step which right they
enjoy under the Constitution as a part of their right to life as citizens
when it rests with the State as its duty to so provide proper health
care and medical aid to protect their health as is now available in the
present days without being faced with any such hurdles in view of
inequality in any such front which is their fundamental right. This
decision under challenge being wholly in the direction of securing
such right to the citizens as guaranteed under the Constitution,
present move of these petitioners on such frivolous grounds is clearly
seen to be vexatious running against the public interest and standing
on the way of discharge of the State‟s solemn function and duty as
ordained under the Constitution in securing its citizens and their
enjoyment of the rights as guaranteed to them under the
Constitution.
The path of litigation has been chosen for achieving such
mischievous objective at the cost of the interest of the public at large
and in that, they having obtained an interim order, have succeeded in
depriving the citizens of their right for over a period of more than two
(2) years. The intervenor-petitioners have also come to join the
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petitioners at a later stage in raising their objections, although in a
different way; nonetheless the aim stands the same so as to block
the implementation of the decision of the State. The time has come
for the courts to appropriately react and respond in such matters and
in my considered view, it is a fit case to so rise.
In view of all the aforesaid discussion and reasons, the
writ application stands dismissed. Consequently, the interim order of
status quo passed by this Court on 11.1.2017 in Misc. Case No.19481
of 2016 stands vacated.
Each of the petitioners are imposed with cost of
Rs.30,000/- (rupees thirty thousand) and each of the intervenors are
also imposed with cost of Rs.10,000/- (rupees ten thousand) to be
deposited with the Registry of this Court within a period of two
months. On deposit of the amount as above, the Registry would do
well to transfer the same to the account of the Odisha State Legal
Services Authority for its proper utilization in providing free legal aid
and services to those in need.
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D.Dash,J.
Orissa High Court: Cuttack Dated the 3rd Feb, 2020/B.Nayak