Orissa High Court
WP(C)/12169/2009 on 18 February, 2021
W.P.(C) No.12169 of 2009 1
09. 18.02.2021 1. Mr. Samir Kumar Mishra, learned counsel for the Petitioner and Mr. D. Mohanty, learned Additional Government Advocate.
2. This writ petition was filed on 18th August, 2009 assailing an order dated 11th July, 2008 passed by the Revenue Divisional Commissioner, Central Division, Cuttack dismissing O.G.S.L. Appeal No.2 of 2008 thereby confirming an order dtd.15th December, 2007 passed by the Collector, Nayagarh in Revenue Misc. Case No.9 of 2004 directing resumption of the land leased in favour of the Petitioner in purported exercise of power under Section 3-B of the Orissa Government Land Settlement Act, 1962 ('OGLS Act').
3. The Petitioner claims to be the proprietor of an S.S.I. Unit in the name and style of 'Luman Match Co.' having its explosive licence No.1/1973 issued by the Additional District Magistrate, Puri. According to the Petitioner by Notification No.1428 dated 15th March, 1983 the Government of Orissa granted permanent lease of land appertining to Sabik Khata No.500 appertaining to Plot No.1102 corresponding Hal Plot No.2000/3505 under Khata No.1219/232 of village Nayagarh measuring Ac.0.50 dec. in favour of the Petitioner for establishment of a match industry in Nayagarh Town. A lease deed was executed on 23rd February, 1984.
24. Clause 4(ii) of the lease deed stipulates that in the event the Petitioner utilises the leasehold land for any purpose other than for which it was granted, the lease shall be redeemed and Government shall take over possession of the demised land along with the structures thereon.
5. According to the Petitioner, possession of the land in question was given to him only in 1993, after a lapse of ten years. The Petitioner claims that immediately thereafter he applied for approval of a plan for construction of the building and that the said approval was granted on 10th February, 1995, i.e., after two years of delivery of possession. The Petitioner claims to have started construction immediately thereafter.
6. According to the Petitioner while the construction was in progress, without assigning any reason, the N.A.C., Nayagarh cancelled the approval of building plan by a letter dated 3rd May, 1995 and forcibly constructed a road over the leasehold land. On 17th August, 2004, the Commissioner-cum-Secretary, G.A. Department, through the Tahasildar, Nayagarh issued a show cause notice to the Petitioner under Section 3-B of the OGLS Act for resumption of the lease and for approval of resumption, Revenue Misc. Case No.9 of 2004 was registered before the Collector, Nayagarh.
37. After considering the reply of the Petitioner, the Collector, Nayagarh passed an order on 20th April, 2005 directing resumption of the lease hold land under Section 3-B of OGLS Act. The findings of the Collector in the impugned order were as under:
"a) Inquiry report of Tahasildar, Nayagarh reveals that the Match Factory has not been constructed, even though the lease was granted in the year 1983.
b) The appellant has not taken any steps to start the factory.
c) The land being situated in the heart of the city, construction of match factory will be hazardous for human habitation."
8. Aggrieved by the above order, Petitioner preferred OGLS Appeal No.1 of 2005 before the Revenue Divisional Commissioner (R.D.C.) Central Division, Cuttack. While admitting the appeal, the R.D.C. by order dated 5th August, 2005 directed the Tahasildar, Nayagarh to maintain status quo over the suit plot. Thereafter, by order dated 3rd February, 2006 the R.D.C. remanded the matter to the Collector to rehear the Petitioner afresh.
9. For the second time, on 5th December, 2007 the Collector passed an order reaffirming the resumption of the lease hold land. The Petitioner then filed OGLS Appeal No.2 of 2008 before the R.D.C., Cuttack. The appeal was dismissed by the R.D.C. by the impugned order dated 24th October, 2008.
410. From the reply affidavit filed by the Opposite Party Nos.2 and 3 it is seen that till 2004 the Petitioner failed to set up any industry on the plot in question and thereby he did not utilize the land for the purpose for which it was settled. Accordingly the initiation of proceeding under Section 3-B of the OGLS Act is sought to be justified.
11. In para 8 of the counter affidavit it is inter alia pointed out that "No where the record shows that the Match Factory of the Petitioner was running rather, on spot verification by the Revenue Authorities it was found that the Petitioner was residing over the land by constructing a thatched shed."
12. It is pointed out in the order of R.D.C. that the Member Secretary, State Pollution Control Board by a letter dated 2nd September, 2006 reported that the Match factory is likely to handle hazardous flammable chemicals which may cause fire hazard.
13. It appears to the Court after hearing the submissions of learned counsel for parties that there are several disputed questions of facts in the present petition. First of course is the issue whether the delay in possession of the land being handed over to the Petitioner in 1993, after a lapse of ten years, is attributable to the Petitioner or the Opposite Parties. The 5 Petitioner is unable to give any satisfactory explanation regarding delay in taking possession of the plot in question.
14. The second issue, which again disputed by the Petitioner, is whether the Petitioner did utilize the land for the purpose for which it was settled. The concurrent findings in regard to the second issue by both the Collector as well as the R.D.C. are against the Petitioner.
15. The third factor which requires to be noticed here is that, there is a road running over the plot now. In the rejoinder affidavit filed by the Executive Officer, N.A.C., Nayagarh on 9th August 2006 a reference is made to the purported resolution of the villagers regarding construction of a road over the suit land. It is alleged that the Petitioner has received a sum of Rs.5000/- on 12th December, 1997 from the inhabitants of Jadumani Nagar and Rajabagicha allowing them to construct a road over the suit land. This again is disputed by the Petitioner.
16. To the Court it appears that the above disputed questions of fact cannot possibly be examined in the present writ petition. In the circumstances, the Cpourt is not perdssaded to interfere with the impugned order of resumption of the lease under Section 3-B of OGLS Act.
617. The writ petition is dismissed. The interim order, if any, stands vacated.
(Dr. S. Muralidhar) Chief Justice (B. P. Routray) Judge M.K.Panda