Orissa High Court
Batakrushna Das vs State Of Orissa And Others on 10 March, 2017
Equivalent citations: AIR 2017 (NOC) 929 (ORI.)
Author: Vineet Saran
Bench: Vineet Saran
HIGH COURT OF ORISSA : CUTTACK
W.P.(C) NO. 8485 OF 2005
In the matter of an application under Articles 226 and 227 of
the Constitution of India.
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AFR
Batakrushna Das ........ Petitioner
-Versus-
State of Orissa and others ......... Opp. Parties
For petitioner : M/s. Dr. A.K. Mohapatra, Sr.Counsel
along with R.K. Mohanty, N.C.Rout,
S.K. Padhi, N.R. Rath,
S. Lal, D. Mohapatra, S.K.Mohapatra
and B. Mohapatra, Advocates.
For opp. parties : Mr. R. K. Mohapatra,
Govt. Advocate.
(opposite parties no.1 to 5; and 7 & 8)
M/s. B.K. Sharma,
S.R. Mohanty and B. Mohanty,
Advocates.
(opposite party no.6)
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PRESENT:
THE HON'BLE THE CHIEF JUSTICE MR. VINEET SARAN
AND
THE HON'BLE DR. JUSTICE B.R. SARANGI
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Date of argument: 03.03.2017 : Date of Judgment: 10.03.2017
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DR. B.R. SARANGI, J. The legality and propriety of sanction of
lease and conversion of nature of the lands appertaining to plot
no.27 measuring Ac.1.40 decimals recorded as Jalasaya-II,
Pokhari; and plot no.51 measuring Ac.1.50 decimals recorded
as Jalasaya-II, Gadia, corresponding to Khata No.1206 of
village-Chatra in the district of Jagatsinghpur originally stood
recorded in the name of Irrigation and Power Department of
Government of Odisha as per the Record of Rights published on
01.02.1985, is the subject-matter of consideration in the present application.
2. The factual matrix of the case, as borne out from the records, is that the lands in question had been recorded as 'Jalasaya' under the Record of Rights (ROR)-Annexure-1 prepared by the competent authority. The same was corrected, as per Revenue Lease Case No.33 of 1993, and prepared in the name of Secretary, Regulated Market Committee (RMC), Jagatsinghpur with 'stitiban' status, being plot no.27/4764 measuring Ac.1.00 decimals and plot no.51/4765 measuring Ac.1.00 decimals both recorded as Gharabari corresponding to khata no.1043/220 of village-Chatra. The Executive Engineer, 3 Irrigation Department wrote a letter on 16.09.1993 to the Tahasildar, Jagatsinghpur to deposit the market value. Further, on 29.10.1993, the Executive Engineer also wrote a letter to the Sub-Collector, Jagatsinghpur for realization of market value from R.M.C., Jagatsinghpur.
3. As originally the lands in question belonged to Irrigation and Power Department, the Government in Irrigation Department relinquished the lands in question measuring Ac.2.00 decimals in favour of Revenue Department vide letter dated 14.01.1993. Accordingly, the Revenue Department in its letter dated 22.02.1993 intimated the Collector, Cuttack to transfer possession of land and correct the ROR. In Revenue Misc. Case No.26 of 1993, the ROR was corrected and the Secretary, RMC, Jagatsinghpur was intimated to file an application for lease as per the corrected ROR. The Secretary filed the application and accordingly the ROR was corrected, and the Secretary was authorized by the committee to sue or to be sued in case of future litigation. Public objection was invited on 27.10.1993 and no objection was received from anybody within the time limit.
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4. The lands in question, having remained free from all encumbrances, the market value was determined at Rs.1,20,000/- per acre. As per the calculation sheet, the lands in question, being Ac.2.00 decimals, a sum of Rs.2,40,000/- was determined as premium, which the RMC, Jagatsinghpur was to pay for value of the lands. Besides, rent was also fixed at Rs.2400/- at the rate of 1% of the market value. Accordingly, the case was recommended to the Collector, Jagatsinghpur for sanction of the lease of the said lands subject to payment of full market value and ground rent. Although initially advance possession was sanctioned pending sanction of the lease, ultimately sanction of lease in favour of RMC, Jagatsinghpur was made for construction of market complex, subject to payment of advance premium. Against such settlement of land, this application has been filed.
5. Dr. A.K. Mohapatra, learned Senior Counsel appearing for the petitioner strenuously contended that conversion of land from "Jalasaya" to "Stitiban" and consequential direction for payment of premium, having not been complied, any construction undertaken over the lands in question cannot be allowed to continue/sustain and, as such, 5 direction be given to the Revenue Divisional Commissioner, Cuttack to cause an inquiry and furnish a report in the interest of justice, equity and fair play. To substantiate his contention, he has relied upon the judgment of this Court in the case of Tapan Kumar Das v. Commissioner, Cuttack Municipal Corporation and others, 2012 (II) OLR 1040.
6. Mr. R.K. Mohapatra, learned Government Advocate for the State-opposite parties contended that the contention raised by learned counsel for the petitioner cannot sustain in the eye of law, in view of the fact that the petitioner has no locus standi to raise such objection. It is stated that, when public objections were invited, the petitioner did not raise any objection for conversion of lands in question and, still then, if the petitioner was in any way aggrieved, he could have preferred an appeal in accordance with law challenging the order passed by the competent authority dated 30.11.1993. More so, the cause of action having arisen in the year 1993, the petitioner has approached this Court in the year 2005, after long lapse of 12 years. Therefore, the writ petition suffers from delay and laches and, accordingly, he states that the same should be dismissed.
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7. Mr. B.K. Sharma, learned counsel for opposite party no.6 specifically stated that in view of the order passed by the Tahasildar for payment of premium amount, the land stood recorded in favour of RMC, Jagatsinghpur, and in compliance of the same an amount of Rs.2,62,479/- having been paid towards the market value of the land in three installments, i.e., 15.03.1994, 31.03.1994 and 26.08.1994 (wrongly mentioned in the counter affidavit as 26.08.2004, which is typographical error), opposite party no.6 has received the advance possession of the lands and acted upon the same. Therefore, at a belated stage, the contention raised by learned counsel for the petitioner cannot sustain in the eye of law.
8. We have heard Dr. A.K. Mohapatra, learned Senior Counsel for the petitioner; Sri R.K. Mohapatra, learned Government Advocate for opposite parties no.1 to 5, as well as 7 and 8, and Mr. B.K. Sharma, learned counsel for opposite party no.6 and perused the records. Pleadings between the parties have been exchanged and, as such, with the consent of the learned counsel for the parties this writ petition is being disposed of finally at the stage of admission. 7
9. There is no dispute to the facts, as enumerated above. Only contention raised that conversion of nature of the land from "Jalasaya to "Stitiban", as well as grant of lease and permission to the RMC, Jagatsinghpur-opposite party no.6 to go for construction cannot sustain in the eye of law in view of the judgment of this Court in Tapan Kumar Das (supra). We have perused the judgment of this Court in Tapan Kumar Das (supra), wherein this Court had held that the water bodies are required to be retained and such requirement is envisaged not only in view of the fact that the right to water as also quality life are envisaged under Article 21 of the Constitution of India, but also in view of the fact that the same has been recognized in Articles 47 and 48-A thereof. Article 51-A of the Constitution furthermore makes a fundamental duty of every citizen to protect and improve the natural environment including forests, lakes, rivers and wildlife. There is no dispute on the question of proposition set forth by this Court in the aforementioned judgment, but at the same time this Court had already held in the very same judgment that if the lands which have lost their character as "Jalasaya", and those, which are actually not "Jalasayas" or Swampy lands but have been recorded as 8 "Jalasaya", change of classification of such lands may be allowed.
10. A counter affidavit has been filed on behalf of opposite parties no.3, 4 and 5 on 28.02.2006, paragraph-10 of which states as follows:
"10. That this deponent further submits that the land in question belongs to water resources department as per Annexure-1 of the writ petition. The aforesaid land was water logged low lying land. Due to digging of earth for canal bank road, though the Kisam of land was recorded as Jalasaya, but actually the same was never used as Jalasaya. Due to excavation of borrow fit for earth work of canal bank, the land has become low lying land water used to be filled up in the rainy season and it dried in summer. It was mosquito breeding centre and the same is never used by the villagers or any general public either for irrigation or for any other purpose."
11. To the aforesaid contention of opposite parties no.3, 4 and 5, no rebuttal assertion has been made by learned Senior Counsel for the petitioner by way of filing rejoinder affidavit. As such, it can be safely inferred that the lands in question, though have been recorded as "Jalasaya", are not being used as such, and the same have become low lying lands in which water used to be filled up in the rainy season and dried in the summer and the same are never used by the villagers or any other general public either for irrigation or for any other 9 purposes and the lands remain 'swampy'. Therefore, the lands in question were converted in the year 1993 by following due procedure of law and by giving opportunity to the general public by issuing notice and on that basis the lease was sanctioned, subject to receipt of premium of Rs.2,62,479/-. The petitioner had not objected to the same nor participated in the proceeding, and on conclusion of the conversion proceeding the lands in question were transferred in favour of the Secretary, RMC, Jagatsinghpur.
12. Opposite party no.6 has also filed counter affidavit. Paragraph-7 of which states as follows:-
"7. That this deponent has paid a sum of Rs.2,62,479/- as the premium towards the market value of the land in three instalments dt.15.3.94, 31.3.94 and 26.8.2004. So the market value of the land has been realized from this deponent."
13. Mr. B.K. Sharma, learned counsel for opposite party no.6 in course of argument stated that the date "26.08.2004", mentioned in the counter affidavit of opposite party no.6, is a typographical error and it should be read as "26.08.1994". It is stated that the premium amount having been paid in the year 1994, advance possession was given to opposite party no.6 and they are in possession and, as such, the 10 premium amount was paid in view of the sanction of lease by the RDC, Central Division.
14. In paragraph-13 of their counter affidavit opposite parties no.3, 4 and 5 have stated as follows:-
"13. That it apt to submit here that the Secretary, R.M.C., Jagatsinghpur deposited the market value before the Tahasildar i.e. Rs.2,62,479/- as premium and the Tahasildar initiated Misc. Case No.26/93 and 33/93 for conversion of Kisam to 'Urnat Anabadi Jogya' and the matter was moved before the Sub-
Collector who recommended the Collector, Jagatsinghpur for considering the sanction of lease of Ac.2.00 of land and delivery of advance possession in favour of R.M.C. and the Collector recommended R.D.C., Central Division, Cuttack for sanction of lease.
That the R.D.C., Central Division sanction the lease of the said land with certain conditions and the said letter was communicated to Tahasildar, Jagatsinghpur vide letter No.1373 dtd.31.3.1994."
In paragraph-14 of the counter affidavit filed by opposite parties no.3, 4 and 5, it has been stated that the lease deed was executed by the Collector, Jagatsinghpur in favour of Secretary, RMC, Jagatsinghpur on 01.09.1994 and before execution of the lease deed possession of the lands was taken and the RMC already constructed the market yard since 1994 and the market is functioning over the said land.
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15. In view of the aforesaid facts and circumstances, even if objections were invited by the competent authority by issuing public notice, the petitioner did not participate in the proceeding by filing objection, nor subsequently challenged the same before the appropriate forum. When by following due procedure of law, the land was settled in favour of opposite party no.6 and on receipt of premium amount the lease deed was executed in the year 1994 and on that basis the market complex has already been constructed, challenge to such conversion proceeding at a belated stage, i.e., after long lapse of 12 years cannot sustain in the eye of law. More so, the petitioner, having not participated in the conversion proceeding, is estopped from challenging the same.
16. On perusal of the pleadings available on record, it clearly demonstrates that no satisfactory explanation has been given by the petitioner to approach this Court at a belated stage. Even though no period of limitation has been provided for filing of the writ petition under Article 226 of the Constitution of India, yet ordinarily, a writ petition should be filed within a reasonable time.
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17. In Sadashiv Prasad Singh v. Harendar Singh, AIR 2014 SC 1078, the apex Court held that the petition should have been dismissed on the ground of delay and laches, especially because third party rights had emerged in the meantime.
18. In State of Uttar Pradesh v. Raj Bahadur Singh, (1998) 8 SCC 685, the apex Court held that "there is no time limit for filing the writ petition. All that the Court has to see is whether the laches on the part of the petitioner are such as to disentitle him to the relief claimed by him".
19. Considering the facts and law discussed above, we are of the considered view that even though no limitation has been prescribed in filing the writ petition under Article 226 of the Constitution of India, but the petitioner has approached this Court at a belated stage and, as such, in the meantime the third party rights have emerged. Apart from the above, on merits also by following due procedure of law, the lands in question have been converted and transferred in favour of opposite party no.6-Secretary, RMC, Jagatsinghpur on accepting premium amount and a market is functioning over the said lands, we are 13 not inclined to unsettle the settled position after expiry of such long period. Consequentially, the writ petition is liable to be dismissed on merits, as well as for delay and laches and, thus the same is hereby dismissed. No order to costs.
Sd/-
( VINEET SARAN ) CHIEF JUSTICE Sd/-
(DR. B.R. SARANGI ) JUDGE The High Court of Orissa, Cuttack Dated the 10th March, 2017/Ashok/GDS True copy Secretary