Orissa High Court
Afr Nirmal Chandra Panigrahi & Others vs State Of Odisha And Others ..... Opp. ... on 17 May, 2021
Author: B.R. Sarangi
Bench: B.R.Sarangi
ORISSA HIGH COURT: CUTTACK
W.P.(C) NO. 15300 OF 2019
In the matter of an application under Articles 226 and
227 of the Constitution of India.
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AFR Nirmal Chandra Panigrahi & others ..... Petitioners
-Versus-
State of Odisha and others ..... Opp. Parties For petitioners : Mr. Nirmal Chandra Panigrahi- in person Mr. Budhadev Routray, Sr. Advocate along with M/s. N.K. Tripathy, D. Dhal, J. Biswal and S.D. Routray, Advocates For opp.parties : Mr. Ashok Kumar Parija, Advocate General, Odisha P R E S E N T:
THE HONOURABLE DR. JUSTICE B.R.SARANGI AND THE HONOURBALE SHRI JUSTICE K.R. MOHAPATRA DECIDED ON :: 17.05.2021 DR. B.R. SARANGI, J. The petitioners, by means of this writ petition, seek to quash the letter dated 02.08.2018 // 2 // issued by the Assistant Collector, Office of the Sub-
Collector, Sadar, Cuttack in Annexure-8, whereby Khasmahal Lease Case No. 1211/2002 has been returned to the Tahasildar, Sadar, Cuttack, and to issue direction to the Collector, Cuttack-opposite party no.2 to grant approval to the recommendation made by the Tahasildar, Sadar, Cuttack-opposite party no.3 in KLC No. 1210/2002, KLC No. 1211/2002 and KLC No. 1212/2002, and further direction to the opposite parties to permanently settle the leasehold lands in favour of the petitioners within a period to be fixed by this Court.
2. The factual matrix of the case, in a nutshell, is that one Late Bira Kishore Kar, son of Late Krushna Chandra Kar was the original lessee of the land appertaining to J. No. 66/1, Khata No. 414, Plot No. 389 (P), Area Ac. 0.172 dec. of Mouza- Ramagarh, Bholamia Bazar, Tahasil- Cuttack Sadar. The said lease was granted in his favour for a period of 30 years w.e.f. 01.04.1973 valid up to 01.04.2003. Late Bira Kishore Kar sold the aforesaid land to the present petitioners // 3 // vide registered sale deeds executed on 04.11.1985 with due consideration, and since then all the petitioners are residing on the homestead land having constructed residential houses thereon and are in peaceful possession over the same. The petitioners are also paying holding tax as well as rent in respect of the suit land.
2.1 The petitioner no.1 purchased an area of Ac.0.068 dec. of plot no. 866/3657, holding no. 623, petitioner no.2 purchased an area of Ac.0.062 dec. of plot no. 866 of holding no. 623/A/1 and petitioner no.3 purchased an area of Ac.0.045 dec. of plot no. 866/3658 of village Ramgarh, Bholamia Bazar. Late Bira Kishore Kar, the vendor of the petitioners, had also his residential house over the said land, before it was purchased by the petitioners. After purchase of the land, the same was separately mutated in the name of the petitioners and Records of Rights were also published separately in favour of each of the petitioners.
// 4 // 2.2 Before expiry of the period of Khasmahal lease, the petitioners no.1, 2 and 3 applied for renewal of the lease permanently in KLC No. 1210/2002, KLC No. 1211/2002 and KLC No. 1212/2002 respectively in accordance with the rules to the Tahasildar, Sadar, Cuttack. After registering such Khas Mahal cases filed by the respective petitioners, due enquiry was conducted by the Amin, who submitted a report on 20.02.2008 to the Tahasildar stating that the petitioners are in peaceful possession over their respective land having constructed residential houses thereon. On receipt of such report from the Amin, the Tahasildar, Sadar, Cuttack, vide its order dated 08.06.2009, recommended the case of the petitioner no.1 for permanent settlement and submitted the case records to the Collector, Cuttack for favour of approval as required under Rule 3(a) of Orissa Government Land Settlement Rules, 1983 (for short "OGLS Rules, 1983"). Same and similar recommendations were also made by the Tahasildar, Sadar, Cuttack separately in favour of the petitioners no.
// 5 // 2 and 3 vide order dated 26.06.2009 and their cases were forwarded to the Collector, Cuttack for approval. 2.3 As per the provisions contained under Orissa Government Land Settlement Act, 1962 (for short "OGLS Act, 1962") and the Rules framed thereunder, the Collector was to accord approval for settlement of the leasehold property permanently, but on flimsy grounds and without application of mind all the three cases were several times returned to the office of the Tahasildar, Sadar, Cuttack and finally, vide letter dated 08.08.2016, the Tahasildar, Sadar, Cuttack clarified all the points raised in the objections from the office of the Collector and further gave a recommendation in favour of the petitioners. Though the case of the petitioners no.1 and 2 had come back from the office of the Collector for clarification, so far as petitioner no.3 is concerned, her case was kept pending on the file of the Collector without any approval for settlement. After submission of the above clarification, no approval was accorded by the // 6 // Collector, Cuttack and the matter was kept pending for years together.
2.4 Further, the petitioners being in possession of the leasehold land with residential houses with demarcation boundary for more than five years by the appointed date, the Tahasildar, Sadar, Cuttack, having recommended the case of the petitioners for permanent settlement, in view of the provision of law that the leasehold estate of Khasmahal land is heritable and transferable with the right of renewal, the Collector therefore should have approved the leasehold land for permanent settlement in accordance with law. Though such recommendation had been made by the Tahasildar, Sadar, Cuttack way back in the year 2009, the matter is still pending in the office of the Collector for approval, even though the unnecessary queries made from the office of the Collector in the year 2015 were clarified by the Tahasildar, Sadar, Cuttack, vide letter no. 11644 dated 22.01.2016. Due to such inaction on the part of the Collector in the matter of according approval for // 7 // permanent settlement of the above noted leasehold lands in favour of the petitioners, the present writ petition has been filed.
3. Mr. B. Routray, learned Senior Counsel, along with his associates, was appearing for the petitioners, but unfortunately due to suffering from COVID-19 he could not participate in the proceeding today. Therefore, petitioner no.1-Mr.N.C. Panigrahi, who is none else but a Senior Counsel of this Court and has been duly authorized by petitioners no.2 and 3, argued the matter in person with vehemence contending that the petitioners are in possession of the leasehold land, by constructing their residential houses over the same, for more than five years as on the appointed date and the Tahasildar, Sadar, Cuttack having recommended the case of the petitioners for permanent settlement, in view of position of law that the leasehold estate of the Khasmahal land is heritable and transferable with a right of renewal, the Collector, Cuttack should have approved the leasehold land for permanent settlement in // 8 // accordance with the provisions contained in Section 3(4)(c) of the OGLS Act, 1962 read with Rule-5-B of the OGSL Rules, 1983 read with Rule 3(a) of the Schedule-V of OGLS Rules, 1983. It is further contended that even though statutory provisions have been complied with, for the reasons best known to the Collector, Cuttack, who is to make approval, is sitting tight over the matter without any rhyme and reason, though the petitioners have moved from pillar to post due to pendency of such approval. More so, the Tahasildar, Sadar, Cuttack is not accepting the rent of the leasehold land of the petitioners from the year 2005, though the petitioners are paying holding tax to the Municipality. It is therefore contended that the direction may be issued to the Collector, Cuttack for approval of the recommendation made by the Tahasildar, Sadar, Cuttack for permanent settlement of the leasehold property within a stipulated time.
To substantiate his contentions, he has relied upon Republic of India v. Prafulla Samal, ILR 1976 CUT-1392; Sourindra Narayan Bhanja Deo v.
// 9 // Member, Board of Revenue, Orissa, 98(2004) CLT 397 : 2004 (II) OLR 332; Satyapriya Mohapatra v. Ashok Pandit, 59(1985) CLT 407; Bidulata Das v. Braja Behari Palit, 1993 (I) OLR 183; Vishnu Deo Roy v. Rajesh Kumar Tiwari, 2018(I) OLR 31 and Rajat Kumar Rath v. Collector, Cuttack (W.P.(C) No.3674 of 2005 disposed of on 18.04.2005).
4. Mr. Ashok Kumar Parija, learned Advocate General appearing for the State opposite parties contended that the issue involved in this case no more remains res integra to be considered by this Court, as it is well settled in Rajat Kumar Rath (supra). Therefore, the matter can be disposed of directing the Collector, Cuttack to make approval in accordance with the provisions contained in the OGLS Act, 1962 and Rules framed thereunder within a stipulated time. He also declined to file counter affidavit in the matter, though several adjournments were granted to the State in that regard.
// 10 //
5. This Court heard Mr. N.C. Panigrahi, petitioner no.1 in person for himself as well as on behalf of petitioners no.2 & 3; and Mr. A.K. Parija, learned Advocate General for the State opposite parties by virtual mode; perused the records and with the consent of the parties, the matter is being disposed of finally at the stage of admission.
6. In view of the facts delineated above, which are not in dispute, is it the bounden duty of the statutory authority, viz., the Collector, Cuttack to discharge his responsibility in conformity with the provisions of law in the matter of granting approval on the recommendation of the Tahasildar, Sadar, Cuttack. This is the short question that arises for consideration in this writ petition.
7. For settlement of government land in the State of Orissa an Act was enacted by the Legislature of the State called "The Orissa Government Land Settlement Act, 1962". By Act 1 of 1991, the OGLS Act, // 11 // 1962 was amended and the proviso (c) to sub-section (4) of Section-3 of the said Act was incorporated, which reads as follows:
3. Reservation and settlement of Government land-
xx xx xx
(c) any Khasmahal land, Nazul land,
Gramakantha Parambok land or Abadi land, which is used and in occupation by any person as homestead in any urban area for not less than five years as on the appointed date, shall, subject to the payment of compensation in the case of Khasmahal and Nazul land as mentioned in the proviso to Clause (a), be settled
(i) in the case of Khasmahal or Nazul land, with the person lawfully holding such land on and from the date the compensation is paid; and
(ii) in the case of Gramakantha Parambok and Abadi land with the person in occupation of such land on and from the appointed date, on permanent basis with heritable and transferable rights.
xx xx xx"
8. Section 8-A of the OGLS Act, 1962 deals with "Power to make Rules". The Government by notification in the Official Gazette and after previous publication made Rules for carrying out the provisions of the Act, called "The Orissa Government Land Settlement // 12 // Rules, 1983". Rule-5-B framed in the said Rules reads as follows:
"Rule-5-B. Notwithstanding anything contained in Rule 3, 5, 5-A, 8, 11, 12, 13 settlement of Khasmahal and Nazul land, "Gramakantha Parambok and Abadi landleased out prior to the 9 th day of January, 1001 shall be made in the manner prescribed in Schedule-V."
9. On perusal of the above Rule-5-B it is evident that the settlement of Khasmahal and Nazul land leased out prior to 9th day of January, 1991 shall be settled in the manner prescribed in Schedule-V. Rule - 3(a) of Schedule-V of OGLS (Amendment) Rules, 1993 reads as follows:
"Rule-3(a).The Tahasildar on being satisfied after enquiry that any nazul/Khas Mahal land is used and in occupation by any person as homestead for a period of not less than 5 years as on the appointed day shall settle the said land in favour of the person holding such land, on execution of lease deed in Form-IV. In case of sub-sease and subsequent sub-lease such settlement shall take effect on production of the stamped receipt in Form-1 from the date of payment of such compensation to the person immediately under whom they held the land. Provided that on each such settlement, approval of the Collector shall be obtained.
(b) The amount of compensation shall be equal to
10 times of the annual rent as provided in the lease deed."
// 13 // From the above mentioned provisions, it is made clear that the Tahasildar, on being satisfied after causing enquiry that a Nazul/Khasmahal land has been used and occupied by any person as homestead for a period of not less than 5 years as on the appointed date, shall settle the said land in favour of the person holding such land, provided that for such settlement approval of the Collector shall be obtained.
10. There is no dispute that the petitioners are in possession of a Khasmahal land by constructing houses over the same and using the same as homestead land for a period not less than five years as on the appointed date and, more so, their vendor was in possession of the said land w.e.f. 01.04.1973, pursuant to a Khasmahal lease granted for a period of 30 years, which was valid up to 01.04.2003. The vendor was also staying thereon and using the same as homestead land by constructing a house over the same. The petitioners purchased the said land on 04.11.1985 by way of // 14 // registered sale deeds. Therefore, there is no iota of doubt that the petitioners are in possession of the Khasmahal land and utilizing the same for homestead purpose and such possession is prior to five years of the appointed date. Therefore, the Tahasildar on enquiry having satisfied that the petitioners are residing on the said leasehold property and utilizing the same as homestead land, recommended the case of the petitioners for approval to the Collector in the year 2009, but due to some plea or other the matter has been delayed putting the petitioners to run from pillar to post. As a matter of fact, the Collector had to discharge his duty and responsibility assigned to him statutorily and more than ten years had passed by the time the writ petition was filed and, as such, there was no reason on the part of the Collector not to accord approval for settlement of the Khasmahal land in favour of the petitioners in accordance with law. Such inaction on the part of the Collector is in gross violation of the statutory rules governing the field. The contention raised by the // 15 // petitioners are also backed by the judgment of this Court in Prafulla Samal (supra), wherein it has been held as follows:
"It is well established that a lease hold estate in the Khasmahal land is heritable and transferable with a right of renewal."
11. In Satyapriya Mohapatra mentioned supra, referring to Prafulla Kumar Samal (supra), a Division Bench of this Court held as follows:-
"4. ................... It has been held therein that a leasehold estate in the Khasmahal land is heritable and transferable with a right of renewal. It has also been held that the right of lease in respect of such land is in no way different from that which one has in his own private land. The lessee's right in the Khasmahal land being heritable and transferable, the lessee can create a permanent right of tenancy in his holding. ................."
12. In Shankarlal Verma mentioned supra, a Division Bench of this Court in para-4 of the said judgment held as under:-
"4. Law is well settled that interest of a lessee in a Khasmahal land is both hereditary and transferable. His rights are similar to those of owner of a private land. His interest is regulated by the terms of lease between him and the Khasmahal authorities and the parties to the lease are governed by the provisions of the // 16 // Transfer of Property Act. It has been so stated in Janab Begum Sahib v. State of Orissa, 28 (1962) Cuttack Law Times 209 and in Republic of India v. Prafulla Kumar Samal, ILR 1976 Cuttack series 1392."
13. In Sourindra Narayan Bhanja Deo mentioned supra, learned Single Judge of this Court in para-9 of the said judgment held as under:-
"9. So far as the law regarding the Khasmahal land is concerned, such land shall be treated as the private land of the lessee, which is both heritable and transferable. In this context, reference may be made to a decision of this Court in the case of Republic of India v. Prafulla Kumar Samal and another, ILR 1976 Cuttack 1392, in paragraph-4 whereof it has observed thus:
"xxx Rights of a lessee in Khasmahal lands are in no way different from those which one has in his own private land. The lessee's right in the Khasmahal land being heritable and transferable the lessee can create a permanent right of tenancy in his holding. Thus in all respects the rights of a lessee are just similar to those of an owner of a private land (See 1935 CLT 43, Munshi Abdul Kadir Khan v. Munshi Abdul Latif Khan and 1937 CLT 67 Madhusudan Swain v. Durga Prasad Bhagat)".
In para-10 of the said judgment, the learned Single Judge further held as follows:-
// 17 // ".................... From the decisions as cited in cases of Sankarlal Verma and others v. Smt. Uma Sahu and others, 1993 (I) OLR 187 and Satyapriya Mohapatra v. Ashok Pandi and others, 59 (1985) CLT 407, it is crystal clear that the Khasmahal land is heritable and transferable with a right of renewal and right of lessee in respect of such land is in no way different from that which one has in his own private land. .............."
Similar view has also been taken in Vishnu Deo Roy and Rajat Kumar Rath (supra).
14. On perusal of the statutory provisions, it is made clear that as provided in Schedule-V of the OGLS (Amendment) Rules, 1993 the Tahasildar, on being satisfied after enquiry that any Khasmahal land in occupation by any person as homestead for a period of not less than 5 years as on the "appointed date", shall settle the said land in favour of the person holding such land on execution of the lease deed in form-IV subject to approval of the Collector. Basing upon such provisions of law and applying the same to the present context, by calculating the period of five years, for which a person is required to be in occupation over Khasmahal land as homestead in urban area as required under the OGLS // 18 // Act, 1962 the period for which the predecessor-in- interest of the applicants was in possession should also be clubbed with the period of possession of the applicants. Therefore, even though the petitioners had purchased the land on 04.11.1985 by way of registered sale deeds, their vendor was in occupation of the same w.e.f. 01.04.1973 on being granted lease for a period of 30 years, which expired on 01.04.2003. Meaning thereby, after purchase of the land, the petitioners are in possession of the same and using it as homestead land w.e.f. 01.04.1973, as because possession of the petitioners' for the purpose of grant of permanent lease under the above provisions shall include the possession of their vendor. Taking into consideration the same and also the intention of the Legislature for amending the above section of the OGLS Act, 1962 and Rules thereunder to eliminate temporary lease requiring renewal from time to time and to simplify the process of collection of rent/premium, this Court is of the considered view that when the Tahasildar was satisfied // 19 // that the petitioners are in possession of the land in question for more than 5 years and utilizing the same for homestead purpose by constructing houses thereon, the Collector should have acted upon the recommendation made by the Tahasildar, Sadar, Cuttack without causing any hindrance thereon.
15. In Westminster Corpn. V. L. & N. Ry., (1905) A.C. 426 it was held that it is a condition of any statutory power that it must be exercised reasonably, and without negligence.
16. In Cf. Karnapura Development Co. v. Kamakshya Narain, (1956) S.C.R. 325, the apex Court held that it is a condition of any statutory power that it must be exercised bona fide.
17. In Commissioner of Police, Bombay v. Gordhandas Bhanji, AIR 1952 SC 16, the apex Court observed as follows:
"Public authorities cannot play fast and loose with the powers vested in them, and persons to whose detriment orders are made // 20 // are entitled to know with exactness and precision what they are expected to do or forbear from doing and exactly what authority is making the order......An enabling power of this kind conferred for public reasons and for the public benefit is, in our opinion, coupled with a duty to exercise it when the circumstances so demand. It is a duty which cannot be shirked or shelved nor it be evaded, performance of it can be compelled."
18. In Sirsi Municipaity v. Cecelia Kom Francis Tellis, AIR 1973 SC 855, the apex Court observed that "the ratio is that the rules or the regulations are binding on the authorities".
19. The issue of writ of mandamus is a most extensive remedial nature, and is, in form, a command issuing from the High Court of Justice, directing to any person, corporation, requiring him or them to do some particular thing specified in it which appertains to his or their office and is in the nature of a public duty.
20. In Controller and Auditor-General of India v. K.S. Jagannathan, (1986) 2 SCC 679 : AIR 1987 SC 537, the apex Court observed:
"The High Courts exercising their jurisdiction under Article 226 have power to // 21 // issue a writ of mandamus or in the nature of mandamus where the Government or a public authority has failed to exercise or has wrongly exercised discretion conferred upon it by a statute or a rule or a policy decision of the Government or has exercised such discretion malafide or on irrelevant consideration. In all such cases, the High Court can issue writ of mandamus and give directions to compel performance in a proper and lawful manner of the discretion conferred upon the Government or a public authority. In appropriate cases, in order to prevent injustice resulting to the concerned parties, the Court may itself pass an order or give directions which the Government or the public authority should have passed, had it properly and lawfully exercised its direction. Supreme Court went to the length of even giving direction to promote the respondents as they had been wrongfully denied the same."
21. In view of the proposition of law, as discussed above, it is made clear that the Collector, Cuttack, who is a public authority, has failed to exercise its power vested under the statute. Thereby, in exercise of power under Article 226 of the Constitution of India, this Court can issue a writ of mandamus giving direction to compel performance in an appropriate and lawful manner conferred on such authority, namely, the Collector in order to prevent injustice to the petitioners.
// 22 //
22. In view of such position, letter dated 02.08.2018 issued by the Assistant Collector, Office of the Sub-Collector, Sadar, Cuttack in Annexure-8, whereby Khas Mahal Lease Case No. 1211 of 2002 has been returned to the Tahasildar, Sadar, Cuttack, is to be quashed and hereby quashed. The Collector, Cuttack is directed to grant approval to the recommendation made by the Tahasildar, Sadar, Cuttack, as required for permanent settlement of the leasehold land in favour of the petitioners under Rule-3(a) of OGLS Rules, in respect of KLC No.1210 of 2002, KLC No.1211 of 2002 and KLC No.1212 of 2002, vide orders dated 08.06.2009, 26.06.2009 and 26.06.2009 respectively pursuant to Annexure-5 series, within a period of four weeks from the date of receipt of an authenticated copy of this judgment. On such approval being made by the Collector, Cuttack, the Tahasildar, Sadar, Cuttack-opposite party no.3 is directed to execute the lease deeds in favour of the petitioners for permanent settlement on making deposit of the amount as per law, to be calculated by the // 23 // Tahasildar, within a period of two weeks from the date of making of such payment/fulfilling the legal requirements by the petitioners.
23. In the result, the writ petition is allowed. However, there shall be no order as to cost.
As the restrictions due to resurgence of COVID-19 situation are continuing, learned counsel for the parties may utilize a printout of the order available in the High Court's website, at par with certified copy, subject to attestation by the concerned advocate, in the manner prescribed vide Court's Notice No.4587 dated 25th March, 2020 as modified by Court's Notice No.4798 dated 15th April, 2021.
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DR. B.R. SARANGI,J
VACATION JUDGE
K.R. MOHAPATRA,J. I agree.
.................................. K.R. MOHAPATRA,J VACATION JUDGE Orissa High Court, Cuttack The 17th May, 2021, Ajaya/Ashok/Alok/GDS