Orissa High Court
Padma Charan Swain vs Collector on 23 March, 2021
Author: B. P. Routray
Bench: B. P. Routray
IN THE HIGH COURT OF ORISSA AT CUTTACK
W.P.(C) No.7688 of 2008
Padma Charan Swain .... Petitioner
Mr. T.P.Tripathy, Advocate
-versus-
Collector, Puri and others .... Opp. Parties
Mr. S. Palit, A.G.A.
for O.Ps.
CORAM:
THE CHIEF JUSTICE
JUSTICE B. P. ROUTRAY
ORDER
Order No. 23.03.2021 03. 1. In this petition the Petitioner has prayed for issuance of a
writ of certiorari to quash order dated 17th December, 2007 of the Additional District Magistrate, Puri (Opposite Party No.2) under Annexure-4.
2. The Petitioner claims to be a landless person. He applied for grant of lease of land measuring Ac.2.00 in Plot No.569 of Sabik Khata No.346 corresponding to Hal Plot No.2341, Khata No.537 of Mouza Jagadal under Brahmagiri Tahasil in the district of Puri. The Tahasildar, Puri registered W.L. Lease Case No.5474 of 1974 and by order dated 23rd February, 1976 granted lease of the land in favour of the Petitioner.
3. Then after lapse of 23 years, Lease Revision Case No.116 of 1999 was initiated by Opposite Party No.2 in respect of the aforestated land on 6th August, 1999 in exercise of suo motu power under Section 7-A(3) of the Orissa Government Land Settlement Act, 1962 (OGLS Act). Consequently, a show cause notice was issued to the Petitioner directing him to // 2 // appear on 2nd November, 1999. Opposite Party No.2, upon hearing the parties, by order dated 17th December, 2007 directed to set aside the lease granted in favour of the Petitioner in W.L.L. Case No.5474 of 1974 and further to correct the records of right (ROR) accordingly. Said order of cancellation of lease is the subject matter of challenge in the present writ petition.
4. The Petitioner avers that the order granting lease in his favour in 1976 by the Tahasildar , Puri was granted following due process of law and in the meantime the ROR has been corrected in his favour with Kissam as Sarad-3. Further he being a landless person and in occupation of the case land from the time of his forefathers, recorded as Abada Jogya Anabadi, has been granted with the lease in due process of law and in the meantime the same has also been recorded in his favour. But Opposite Party No.2 exceeding his jurisdiction, cancelled the lease after a long period without considering his status as a landless person.
5. Learned counsel for the Petitioner submits that despite clear prohibition under the law to initiate suo motu revision beyond a period of 14 years, Opposite Party No.2 cancelled the lease on frivolous grounds.
6. Mr. S. Palit, learned Additional Government Advocate supports the impugned order on the grounds stated therein.
7. Perusal of the impugned order reveals that, the suo motu revisional power was exercised under Section 7-A(3) of the OGLS Act to initiate the cancellation proceeding on 6th August, 1999.
Page 2 of 6// 3 // Section 7-A(3) of the OGLS Act has been amended in the year 2013. Prior to amendment it was as follows:
"7-A. Revision -
xxxxxx xxxxxx xxxxxx (3) The Collector may, of his own motion or otherwise, call for and examine the records of any proceeding in which any authority, subordinate to it has passed an order under this Act for the purpose of satisfying himself that any such order was not passed under a mistake of fact or owing to a fraud or misrepresentation or on account of any material irregularity of procedure and may pass such order thereon as he thinks fit.
Provided that no order shall be passed under this sub- section unless the person affected by the proposed order has been given a reasonable opportunity of being heard in the matter:
Provided further that no proceeding under this sub- section shall be initiated after the expiry of fourteen years from the date of the order."
It was amended w.e.f, 13th November 2013 and the amended provision reads as under:
"(3) Notwithstanding anything contained in this Act or any other law, the Collector may, on his own motion or otherwise, call for and examine the records of any proceeding, in which any authority subordinate to him has passed an order under this Act, for the purpose of satisfying himself that any such order was not passed under a mistake of facts or owing to a fraud or misrepresentation or on account of any material irregularity of procedure and may pass such order thereon as he thinks fit:
Provided that no order shall be passed under this sub- section unless the person affected by the proposed order has been given a reasonable opportunity of being heard in the matter."Page 3 of 6
// 4 // As it appears, the stipulation of limitation of 14 years has been removed in the amended provision.
8. Admittedly in the present case, the suo motu revision was initiated in 1999 after 23 years from the date of grant of lease which is dated 23rd February, 1976. Opposite Party No.2 in this regard has observed in the impugned order that since the ROR was not corrected till 3rd December, 1985 in pursuance to the direction of the Tahasildar in the W.L. Lease Case No.5474 of 1974, the lease proceeding is supposed to be continuing till 1985 and therefore the initiation of cancellation proceeding cannot be said beyond the period of limitation of 14 years.
In the case of Nirmal Kumar Pattnaik v. State of Orissa 2012 (Supp.-II) OLR 450 and Smt. Elley Pattnaik v. State of Orissa 2012 (Supp.-II) OLR 506 where the suo motu revision under Section 7-A(3) of the Act were initiated beyond 14 years, this Court by applying the second proviso to sub- Section 3 of Section 7-A have observed that no such proceeding can be initiated after 14 years and any such proceeding initiated beyond 14 years is unsustainable being without jurisdiction.
9. In the instant case, as stated earlier, the suo motu proceeding has been initiated after 23 years. What is explained by the ADM (Opposite Party No.2) that the proceeding in lease case No.5474 of 1974 was continued till the correction of ROR on 3rd December 1985 does not appear logical. It is for the reason that correction of ROR is a subsequent proceeding dependent on the order of grant of lease. In case of refusal of Page 4 of 6 // 5 // lease, no such proceeding is required to be undertaken. Therefore, lease proceeding is the substantial proceeding and it attains finality on the date of order, either granting lease or refusing it. When it is admitted that the order was passed granting the lease on 23rd February, 1976, the limitation starts counting from the said date and not by an extended date when the ROR was corrected. Therefore, the reasons assigned by the Opposite Party No.2 in extending the period of limitation up to 3rd December, 1985 does not hold good. The limitation starts counting from 23rd February, 1976, when the order was passed in the lease case. It is thus clear that, suo motu revision proceeding initiated by the Opposite Party No.2 in 1999 is barred by law of limitation and any such order, de hors the law of limitation, is not sustainable.
10. The other reason assigned in the impugned order that the Petitioner was not a genuine beneficiary as his eligibility has not been assessed, is also not found sustainable. It is for the reason that not a single finding has been made by Opposite Party No.2 in the impugned order to show any ineligibility of the Petitioner. The learned Revisional Authority has not whispered a single word with regard to annual family income of the Petitioner to debar him from the eligibility criteria in his opinion. The doubts raised by Opposite Party No.2 in the impugned order are not seen substantiated with materials. So on such baseless assertions, the right enjoyed by the Petitioner for a considerable period of 23 years cannot be taken away in the guise of suo motu power.
Page 5 of 6// 6 //
11. In view of the discussions made above, the impugned order dated 17th December, 2007 under Annexure-4 is quashed and the writ petition is allowed. No order as to costs.
12. An urgent certified copy of this order be issued as per rules.
(Dr. S. Muralidhar) Chief Justice ( B.P. Routray) Judge M.K. Panda/K. Majhi Page 6 of 6