Orissa High Court
Smt. Shantilata Dei vs Additional District Magistrate And 2 ... on 14 May, 1996
Equivalent citations: 1996(II)OLR182
Author: P. Ray
Bench: P. Ray
ORDER D.M. Patnaik, J.
1. In this writ petition the petitioner assails the notice dated 10-10-1981 for cancellation of the lease and the order dated 16-2-1982 of the revisional authority cancelling the lease under Section 7-A (3) of the Orissa Government Land Settlement Act, 1962 (for short, 'the Act.')
2. Petitioner's case is she was granted lease of an area measuring Ac. ,2.00 decimals in mouza Andharua in the district of Khurda under Khata No. 805, plot No. 2708 of the previous settlement in W. L, Lease Case No. 1160/78 by the Tahasildar on 20-10-1978. This was settled for agricultural purpose under the approved lease principles after due enquiry. Consequently the R. O. R. was corrected. The petitioner since then has been in possession of the land. It is her case that the Additional District Magistrate committed illegality in cancelling the said lease by invoking the powers under Section 7-A (3) of the Act. She has therefore approached this Court to quash Annexures-3 and 7 being illegal, arbitrary and violative of the principles of natural justice.
3. No counter has been filed from the side of the State. Heard Mr R. K. Samantaay, learned counsel for the petitioner and learned counsel for the State.
4. Mr. Samantaray advanced extensive argument in support of his contention that when the Tahasildar had granted lease under the approved lease principles of the year 1961 and this was done after due notice and enquiry, the A. D. M committed gross illegality in cancelling the lease for no valid reason.
It was further contended that under the Orissa Government Land Settlement Act, 1962 there is no provision to cancel such lease and Section 7-A (3) should not have been invoked by the A. D. M. since the lease in question was not granted under the provisions of the Act. To support his contention Mr. Samantaray has taken this Court to thes approved Lease Principles of the Government of the year 1961, as well as the provisions of the Land Settlement Act. He has also referred to the various decisions rendered by this Court including the case of Basiruddin and another v. State: ILR 1961 Cutt. 595, Alekh Ku. Rath and Ors. v. State : OJC No. 762/73 disposed of on 9-7-1975, Madhaba Seth v. A. D. M., Bolangir and Ors. : 32 (1990) OJD 334 (Civil), Judhisthir Behera v. A.D. M., Bhubaneswar and Ors. : OJC No. 5439 of 1931 disposed of on 9-12-1991. Hatekishore Naik v. State of Orissa, OJC No. 1689 of 1987 disposed of on 7-5-1991, Rajkishore Das v. State of Orissa : OJC No. 2327 of 1990 disposed of on 23-12-1992 and Prahallad Martha/. Tahasildar, Bhubaneswar : OJC No. 7661 of 1394 disposed of on 17-4-1995.
5. Having heard Mr. Samantaray, we deem it proper to record a sense of appreciation for the assistance rendered by him to sustain the points raised. We would have dealt with the various points raised by Mr. Samantarsy but for the reasons that the matter has been decided without any notice to the petitioner for which reason alone this order has to be set aside. Therefore, it will be idle and sheer wastage of time to de3l with those points so persuasively advanced by Mr. Samantaray.
6. Annexure-3 is the order of the A. D. M. in the above case Initiating the proceeding in question. The order reads as follows :
"An examination of the W..L. Case record No. 1160/78 of Bhubaneswar Tahasil shows that Government land has been settled by the Tahasildar under a mistake of fact owing to fraud/mis-representation/on account of material irregularity of procedure.
Issue notice to person affected to show cause by 5-11-1981 as to why the settlement shall not be revised/cancelled/ removed under Section 7-A (3) of the Orissa Govt. Land Settlement Act, 1962, (Act 33 of 1962)."
A bare reading of the notice does not indicate that the revisional authority has at all applied its mind before issuing the notice. The tenor of the notice SPeaks for itself. In a similar situation, because of the vagueness of the notice issued for cancellation as well as for the non-speaking order, this Court in the case of Suchitra Champati v. State of Orissa : in OJC No. 1209 of 1982 disposed of on 12-5-1989 quashed the order of the ADM passed under Section 7-A (3) of the Act. Therefore, it would be proper to quash Annexure-3.
7. Annexure-7 is the impugnad order of the ADM cancelling the lease of the petitioner. This is also found to be illegal since before passing of the order, the ADM should have taken care to see that the notice on the petitioner was duly served.
Annexure-5 is the notice from the Court of the A. D. M. in the above case. The report of the Process Server dated 31-10-1981 shows that the petitioner was not staying in the quarters to which address the notice was issued for service. The report indicates that the notice was returned by the Process Server without service. So much so. the certified copy of the order dated 5-11-1981 of the revisional authority shows that he himself recorded that the notice had returned without service and he directed to serve the notice by registered post. After three to four dates the impugned order was passed on 16-2-1982 in the absence of the petitioner. The entire proceeding has been vitiated because of absence of the notice.
8. We, therefore, quash Annexures-3 and 7 and set aside the order of the revisiona! authority cancelling the lease. We make it clear that the authorities, if they so like, may proceed in the above case as per law after issuing a fresh notice to the petitioner and dispose of the case on merit in acccordance with law. The writ petition is allowed, but no costs.
P. Ray, J.
I have gone through the order of my learned brother D. M. Patnaik, J. I agree with the reasoning and the conclusion arrived thereof. However, \ would like to add the few lines of my own.
9. In the present case Mr. Sarnantaray raised several contentions in support of his challenge to the impugned proceedings and the orders passed therein. One of his contentions is that initiation of the cancellation proceeding is mechanical, without any basis, vague and incompetent, inasmuch as neither the order of initiation nor the notice discloses application of mind and required satisfaction about the existence of circumstances requiring invocation of the suo motu power. It has also been submitted that the final order was passed without service of any notice upon the petition and thereby violating the basic principle of natural justice. Mr. Samantaray in his extensive argument, raised several other contentions, but I do not propose to de3i with other contentionses I find that the impugned proceeding and the orders passed therein are liable to be set aside and quashed on the grounds of absence of valid foundation and non-compliance with the principles of natural justice..
10. It is well-settled that before exercising a power or jurisdiction vested in an authority, he is to satisfy himself about the existence of circumstance necessitating exercise of said jurisdiction and to record prima face reasons for the same. Mechanical reproduction of the language of the statute in the order or notice is no substitute for recording reasons upon application of mind to the facts of the case. No fishing or roving enquiry without arriving at the required satisfaction is permissible.
11. In the present case the notice and also the order of initiation clearly indicate that the revisiona! authority merely received the language of the section without any application of mind or without disclosing any definite basis for exercise of the suo motu power. In the circumstance, the initiation of the impugned proceeding is illegal, arbitrary and incompetent.
12. It also appears from the records that the revisiona! authority proceeded to dispose of the suo motu proceeding without satisfying himself that the notice of the proceeding was duly served on the petitioner. The revisional authority has, therefore violated the principle of natural justice and the impugned order of cancellation is as such also void and nullity.
In view of the aforesaid reason, it is not at all necessary to go into other contentions raised by Mr. Samantaray.