Orissa High Court
Sarat Kumar Raj And Others vs State Of Orissa And Others .... Opposite ... on 21 August, 2013
Author: A.K.Rath
Bench: M.M. Das, A.K.Rath
HIGH COURT OF ORISSA : CUTTACK
W.P. (C) NO. 25280 OF 2011
In the matter of an application under Articles 226 and 227 of the
Constitution of India.
-----------
Sarat Kumar Raj and others .... Petitioners
Versus
State of Orissa and others .... Opposite parties
For Petitioners : Mr.Ashok Parija, Sr. Advocate
S.P.Sarangi, P.P.Mohanty,
D.K.Das, P.K.Dash,
A.Pathak and B.P.Das
For Opp. Parties : Advocate General,
Mr.R.K.Mohapatra,
Govt. Advocate
Sri S.K.Padhi, Sr.Advocate.
M/s.S.Mohanty and
R.R.Swain
(For Intervenors)
--------------
PRESENT:
THE HONOURABLE SHRI JUSTICE M.M. DAS
AND
THE HONOURABLE DR.JUSTICE A.K.RATH
Date of hearing.01.08.2013 : Date of judgment 21.08.2013
DR. A.K.RATH, J.The short question that arises for consideration in this case is about fixation of headquarter of Bahanaga Tahasil Office in the district of Balasore. Though the question raised is very short, but the history of the case shows that it is a long drawn litigation from this Court to Hon'ble Supreme Court. This is the third journey of the petitioners to this Court. 2
2. Way back in 1995, the Government of Orissa in its Revenue and Disaster Management Department took a policy decision to open new Tahasils in all Block headquarter having no Tahasil Offices. It was decided that the Tahasil Office should be opened in Block headquarter with the support of OAS-II Officers available at the disposal of the Revenue and Disaster Management Department by way of equitable deployment of officers between the existing Tahasils and Tahasils to be newly created. It was further decided that Panchayat Samiti should provide necessary infrastructure support which includes a record room, a room for the officer and a sizeable big hall for the employees of the Tahasils. It was further decided that the Government is to open new Tahasils where Panchayat Samiti is willing to provide infrastructure support and the same should be in shape of Panchayat Samiti resolution. The new Tahasils so opened will be co-terminus with the Block area. Be it noted that the Government of Orissa in the Revenue Department is empowered under the provisions of Orissa Revenue Administration (Units) Act, 1963 (hereinafter referred to as 'Act' for the sake of brevity) to constitute Tahasils for the purpose of better revenue administration. In terms of Section 4 of the said Act, the Government is required to specify the area over which the jurisdiction of the new Tahasil will extend.
3. The case of the petitioners is that in the district of Balasore, there are eight Tahasils. One of the Tahasils is located at Soro, which is twelve kilometers away from Bahanaga. The residents of twenty one Gram Panchayats under the Bahanaga Panchayat Samiti faced a lot of 3 problem to go to Soro to deal with the revenue records in respect of their landed properties. Since the residents of Bahanaga Panchayat Samiti wanted a Tahasil to be constituted at Bahanaga, the Panchayat Samiti of Bahanaga unanimously resolved on 30.11.2002 for opening of a Tahasil Office at Bahanaga. It is further stated that pursuant to the policy decision of the State Government, the Additional District Magistrate, Balasore wrote a letter on 20.11.2003 to the Tahasildar, Soro requesting therein to report, if Government building is available at Bahanaga. Pursuant to the said letter, on 24.12.2003, the B.D.O. wrote a letter to the Additional District Magistrate, Balasore stating therein that accommodation for the Office of Addl. Tahasildar is available within the Block premises. While the matter stood thus, the State Government on 6.8.2008 issued a notification constituting eighty five new Tahasils along with new Tahasil of Bahanaga having its headquarter at Gopalpur. Being aggrieved by the aforesaid notification, the residents of Bahanaga Panchayat Samiti represented to the Chief Minister of Orissa stating therein their inconvenience with regard to opening of the new Tahasil at Gopalpur. It is further stated that the Joint Secretary to Government in the Department of Revenue and Disaster Management in his letter dated 21.8.2008 referred the aforesaid representation to the Collector-cum- District Magistrate, Balasore to submit his views with regard to the shifting of the headquarter of Bahanaga Tahasil from Gopalpur to Bahanaga. Pursuant to the said letter, the Deputy Collector, Revenue, Balasore called for a meeting of the President, Zilla Parishad, Balasore, 4 Chairman, Bahanaga Panchayat Samiti and others with regard to creation of new Tahasil. A meeting of the elected representatives of the area was also held on 10.9.2008. The total number of public representatives was forty four, out of them, twenty six representatives offered their views in favour of Bahanaga to be the Tahasil headquarter, whereas fourteen representatives opined that Gopalpur would be the convenient place for opening of the Tahasil headquarter. Both, the Member of Parliament and Member of Legislative Assembly offered their views that the headquarter of new Tahasil should be at Bahanaga. On 21.10.2008 the Collector-cum-District Magistrate, Balasore sent a report vide Annexure-9 to the State Government stating therein that he has examined the matter and found that Bahanaga is the Block headquarter and people coming to the Block will find it convenient to do their work at Tahasil. Further, most of the roads are connecting the Block headquarter and Bahanaga is itself located on the side of the National Highway. The opinion tilted in favour of Bahanaga where Block headquarter is located. On the basis of the report of the Collector-cum-District Magistrate, Balasore, the State Government on 16.1.2009 issued a notification modifying the earlier notification dated 6.8.2008 fixing the headquarter of Bahanaga Tahasil at Bahanaga instead of Gopalpur. The further case of the petitioners is that during General Election of the State Assembly, the Tahasil Office could not be opened at Bahanaga. At that point of time the then Collector-cum-District Magistrate, Balasore sent a report on 06.7.2009 to the opposite party no.1 recommending therein to open the 5 Tahasil Office at Gopalpur since the same is centrally located. On 29.9.2009, the Under Secretary to Revenue Divisional Commissioner wrote a letter to the Collector-cum-District Magistrate, Balasore requesting him to comply the orders of the Government vide letter dated 21.8.2008 and submit the report along with his views. The Collector-cum- District Magistrate, Balasore submitted his report to the Revenue Divisional Commissioner, Central Zone, Cuttack, whereafter the latter submitted a report to the Government with regard to creation of the new Tahasil. It is further stated that number of persons approached this Court in W.P.(C) No.1093 of 2009 for quashing the notification dated 16.1.2009 issued by the Government of Orissa, Revenue and Disaster Management Department, vide Annexure-10, declaring the headquarter of Bahanaga Tahasil Office at Bahanaga instead of Gopalpur. The petitioners along with others also filed writ application, being W.P.(C) No.5832 of 2010, seeking a direction to the opposite parties to open the Bahanaga Tahasil Office at Bahanaga pursuant to the notification dated 16.1.2009. Both the writ applications were heard together and disposed of by a common order on 18.8.2010 . The letter dated 29.9.2010 issued by the Revenue Divisional Commissioner, Central Division, Cuttack was quashed. Further, a writ of mandamus was issued to the State Government to give effect to the notification dated 16.1.2009. However, this Court rejected the prayer made in W.P.(C) No.1093 of 2009. Being aggrieved by the said judgment, one Girish Chandra Das and others filed a petition for Special Leave to Appeal in the Hon'ble Supreme Court of India, which was 6 registered as Petition for Special Leave to Appeal (Civil) No.25175 of 2010. By order dated 17.09.2010, the S.L.P. was dismissed. However, the Hon'ble Supreme Court granted leave to the petitioners therein to give representation to the State Government with regard to their grievances. Pursuant to the said order passed by the Hon'ble Supreme Court, Girish Chandra Das and some others made representation to the State Government. At this juncture, since the Tahasil Office at Bahanaga was not opened pursuant to the order dated 18.8.2010 passed by this Court, the petitioners filed CONTC No.2212 of 2010. On 5.7.2011 this Court passed an order directing the State Government to comply with the order dated 18.8.2010 within four weeks. Against the aforesaid order, again Girish Chandra Das and others moved the Hon'ble Supreme Court by way of a petition for Special Leave to Appeal, which was registered as Appeal (Civil) CC No.12341 of 2011. After granting leave to appeal, the order dated 5.7.2011 passed by this Court in the contempt petition was set aside. The Hon'ble Supreme Court permitted the State Government to take an informed decision within twelve weeks from the date of the order. The further case of the petitioners is that pursuant to the order passed by the Hon'ble Supreme Court, out of twenty one Panchayats, fourteen Panchayats of Bahanaga Panchayat Samiti passed respective resolution in their Gram Sabha requesting the State Government to open the Tahasil Office of Bahanaga Tahasil at Bahanaga vide Annexure-14. Out of three Zilla Parishad members of Bahanaga Panchayat Samiti Zone, two members have also represented to the State Government to open the 7 Tahasil Office at Bahanaga. Similarly some of the Panchayat Samiti Members made representation for opening of Tahasil Office at Bahanaga. While the matter stood thus, on 25.8.2011, the State Government in the Department of Revenue and Disaster Management issued a notification fixing the headquarter of Bahanag Tahasil at Gopalpur.
4. The legality and propriety of the said notification is the subject matter of dispute in the present writ application.
5. Pursuant to issuance of notice, opposite party no.1 entered appearance and filed counter affidavit contending, inter alia, that the State Government vide notification dated 6.8.2008 created new Tahasils and fixed their headquarter wherein Gopalpur was shown as the headquarter of the newly created Bahanaga Tahasil. The State Government on the basis of the report of the Collector, Balasore subsequently issued notification on 16.1.2009 modifying the earlier notification dated 6.8.2008 and fixed the headquarter of Bahanaga Tahasil at Bahanaga instead of Gopalpur. The further case of the opposite party no.1 is that, being aggrieved by the aforesaid decision of the State Government, one Girish Chandra Das along with others filed W.P.(C) No.1093 of 2009 before this Court challenging the fixation of headquarter of Bahanaga Tahasil at Bahanaga instead of Gopalpur. Similarly W.P.(C) No.5832 of 2010 was also filed by present petitioners challenging the delay in functioning of the Tahasil Office at the notified place. This Court vide its judgment dated 18.8.2010 dismissed W.P.(C) No.1093 of 2009 8 and directed the State Government to act in terms of the notification issued on 16.1.2009. Thereafter, Special Leave to Appeal being SLP (Civil) No.25175 of 2010 was filed before the Hon'ble Supreme Court. The Hon'ble Supreme Court vide his order dated 17.9.2010 though dismissed the said SLP, however, observed that the petitioner may submit a representation to the State Government ventilating their grievances relating to fixation of headquarter of Bahanaga Tahasil. The further case of opposite party no.1 is that while the matter stood thus, the present petitioners filed Contempt Petition, being CONTC No.2212 of 2010, before this Court. This Court vide order dated 5.7.2011 directed the State Government to comply with the order dated 18.8.2010 within four weeks. The said order dated 5.7.2011 was challenged by the intervention petitioner and others in Special Leave to Appeal. The Hon'ble Supreme Court vide order dated 2.8.2011 in Civil Appeal No.6307 of 2011 observed that fixing the headquarter of a Tahasil is purely an executive function and it is for the Government to take a decision with reference to all facts and circumstances and while so observing set aside the order dated 05.07.2011 passed by this Court. It is further stated that pursuant to the order dated 2.8.2011 passed by the Hon'ble Supreme Court, the State Government after much deliberation and taking into consideration the report of the Board of Revenue and the Revenue Divisional Commissioner, (Central Division), that from the point of view of suitability, geographical location, communication and availability of infrastructure, the headquarter of Bahanaga Tahasil may be located at Gopalpur as the said 9 location will be nearer to fourteen Gram Panchayats whereas Bahanaga will be closer to seven Gram Panchayats and that Gopalpur will be a more suitable place as villages under the proposed Tahasil have better communication and connectivity to Gopalpur than Bahanaga, issued the notification on 25.8.2011 notifying the headquarter of Bahanaga Tahasil Office at Gopalpur.
6. The intervenor-opposite party no.4 also filed counter affidavit, which is in tune of the counter filed by the State Government.
7. It is apt to state here that in W.P.(C) No.1093 of 2009, the petitioners claiming to be the residents of some villages coming under Bahanaga Tahasil as well as Panchayat members of the said Panchayat Samiti sought for quashing the notification dated 16.1.2009 issued by the Government of Odisha, Revenue and Disaster Management Department declaring the headquarter of Bahanaga Tahasil at Bahanaga instead of Gopalpur. In W.P.(C) No.5832 of 2010, the present petitioners along with others prayed inter alia for a direction to the opposite parties to open Bahanaga Tahasisl Office with headquarter at Bahanaga pursuant to the notification dated 16.1.2009. Both the writ petitions were heard together and disposed of by a common order dated 18.8.2010. The relevant portions of the said order are quoted hereunder.
"4.Placing strong reliance upon the report of the Collector, Balasore dated 21.10.2008 under Annexure-5 to the writ petition in W.P.(C) No.5832 of 2010 with regard to shifting of headquarters of Bahanaga Tahasil from Gopalpur to Bahanaga on the basis of several petitions received by the 10 State Government, instruction was given to the Collector to conduct an enquiry, consult public representatives and submit a factual report for its consideration. On the basis of such direction issued on 21.8.2008 the District Collector conducted an enquiry and examined 44 public representatives excluding MP and MLA. Out of them 26 gave their views in favour of having the headquarters of Bahanaga Tahasil at Bahanaga whereas 14 opined that the Gopalpur will be the convenient place for all and four representatives abstained. Thereafter both the M.P. and M.L.A. gave their views that the headquarters of Bahanaga Tahasil should be at Bahanaga. The said report was accepted by the Government and in exercise of powers under Section 4 of the Orissa Revenue Administration (Units) Act, 1963 notification was issued by locating the headquarters of Bahanaga Tahasil at Bahanaga. Issuance of such notification is seriously questioned by the petitioners in the first writ petition, i.e. W.P.(C) No.1093 of 2009.
5.We have carefully examined the correctness of issuance of such notification by the State Government on the basis of the report of the District Collector by conducting the enquiry and examining the views of the public representatives. Majority of the representatives including the M.P. and M.L.A. gave their views in favour of the representation made by the villagers of Bahanaga to locate the headquarters of Bahanaga Tahasil at Bahanaga instead of Gopalpur. The same cannot be termed as non- application of mind on the part of the State Government about feasibility of locating the headquarters of Bahanaga Tahasil at Bahanaga. Once the notification is issued by the State Government on the basis of the report of the Collector, the same has to be given effect to by the State Government.
6.The earlier notification dated 6th August, 2008 under Annexure-2 to the writ petition in W.P.(C) No.5832 of 2010 was modified by the State Government by the impugned notification dated 16.1.2009 the headquarters of Bahanaga Tahasil was fixed at Bahanaga instead of Gopalpur. After the notification dated 6.8.2008 was issued mentioning the headquarters of all the newly established Tahasils, representation was given by the residents of Bahanga Panchayat Samiti requesting the State Government to change the headquarters of Bahanaga Tahasil from Gopalpur to Bahanaga and therefore the State Government rightly referred the matter 11 to the Collector, Balasore to conduct an enquiry and report. Consequently, the Collector submitted report recommending establishment of Tahasil headquarters at Bahanaga instead of Gopalpur. The petitioners of W.P.(C) No.5832 of 2010 have filed a rejoinder affidavit enclosing therewith the status report for creation of new Tahasils by the State Government under Annexure-11. We have examined the said report. Fifth paragraph of the said report which is relevant for this case is quoted herein below:-
"In view of the fact that it is a long standing demand of the people of the State and Government stands committed way back in 1995 it is now decided that Tahasil Offices should be opened in Block headquarters with the support of OAS-II Officers available at the disposal of the Revenue & Disaster Management Department by way equitable deployment of officers between the existing Tahasils and Tahasils to be newly created. Besides, Panchayat Samiti should provide necessary infrastructure support which includes a record room, a room for the officer and a sizeable big hall for the employees of the Tahasil."
7.Apart from the status report, we have examined Annexure-10 to the rejoinder which is the Map of Bahanaga Block. It appears that Bahanaga is located on the side of N.H.5. Further more infrastructural facilities such as road communication, telecommunication and railway line etc. are available at Bahanaga whereas those infrastructural facilities are not available at Gopalpur.
8.In this view of the matter, the decision taken by the Government on the basis of the views of the representatives of the local people submitted by the Collector in his report, in issuing notification under Annexure-6 to the writ petition in W.P.(C) No.5832 of 2010 is perfectly legal and valid. Further the communication of the Revenue Divisional Commissioner, Central Division, Cuttack vide his letter dated 29.9.2009 (Annexure-8) that the Government in its letter dated 10.9.2009 had kept in abeyance its decision fixing the headquarters of Bahanaga Tahasil at Bahanaga is not legal and valid. The State Government notification dated 16.1.2009 has to be given effect to. Therefore, the petitioners in W.P.(C) No.5832 of 2010 are legally justified 12 in seeking a direction for implementation of the said notification by the Government re-establishing the headquarters of Bahanaga Tahasil at Bahanaga. For the aforesaid reasons we are not inclined to accept the case of the petitioners in W.P.(C) No.1093 of 2009.
9.The learned counsel appearing for the petitioner in W.P. (C) No.1093 of 2009 tried to justify his contention that the headquarters at Gopalpur was originally fixed by the Government taking various relevant facts into consideration. We have carefully perused the averments made in the first writ petition, i.e. W.P.(C) No.1093 of 2009 with regard to the justification made by petitioners for not to shift the headquarters of Tahasil office from Gopalpur to Bahanaga. After careful perusal of the pleadings and legal contentions urged by the learned counsel for the petitioners in both the writ petitions as well as the learned Advocate General, we are of the view that the averments made in W.P.(C) No.5832 of 2010 are wholly entertainable in law and the same are supported by legal contentions urged by the learned Advocate General and the contentions of learned counsel for the petitioners in W.P.(C) No.1093 of 2009 cannot be accepted for the reason that the State Government having accepted the report of the Collector on the basis of the relevant materials for establishing the headquarters of new Tahasil, same cannot either be kept in abeyance or changed in exercise of power under Section 4 of the Orissa Revenue Administration (Units) Act, 1963. Once a new Tahasil is established, normal procedure as indicated in Annexure-2 to the writ petition (W.P.(C) No.5832 of 2010) should be followed and the same has been rightly done by the villagers of Bahanaga and other villagers which has been properly considered by the Collector who submitted the report to the Government, which has accepted the same. In the above ground, acceptance of the report regarding change of the headquarters of Tahasil office from Gopalpur to Bahanaga cannot by any stretch of imagination be said to be illegal and erroneous and therefore it does not call for any interference with the notification dated 16.1.2009 under Annexure-6 on the basis of which writ of mandamus sought to the State Government for giving effect to the said notification has to be issued.
10.Accordingly, the letter dated 29.9.2009 issued by the Revenue Divisional Commissioner, Central Division, Cuttack under Annexure-8 to the connected writ petition 13 i.e. W.P.(C) No.5832 of 2010 is quashed and the said petition is allowed. Rule is issued and further a writ of mandamus is issued to the State Government to see that the notification dated 16.1.2009 shall be given effect forthwith without further delay in the matter.
11.The representation given by the villagers to the State Government in the first writ petition (W.P.(C) No.1093 of 2009) for reconsideration of its decision after passing Annexure-6, the notification dated 16.1.2009 under Annexure-7, is wholly unnecessary. Having regard to the undisputed fact that the Collector of the district after ascertaining the views of the representatives of the local people submitted the report in support of shifting of Tahasil headquarters to Bahanaga in place of Gopalpur, the prayer made in this regard in the connection writ petition i.e., W.P.(C) No.1093 of 2009 is rejected as it does not amount to illegality in the change of administrative unit.
8. Thereafter, a contempt petition was filed by the petitioners, which was registered as CONTC No.2212 of 2010. A direction was issued by this Court on 5.7.2011 in the said contempt petition to comply with the order dated 18.8.2010. Against the said order, one Girish Chandra Das and others filed Special Leave to Appeal before the Hon'ble Supreme Court in Civil Appeal No.6307 of 2011. The Hon'ble Supreme Court set aside the order dated 5.7.2011 passed by this Court in CONTC No.2212 of 2010 on 2.8.2011. The relevant portion of the said order is quoted hereunder.
"7. We are of the view that the Government should have sufficient time to consider the representation, the divergent reports and the relevant factors to pass appropriate orders. Fixing the headquarters of a Tehsil is purely an executive function and it is for the Government to take a decision with reference to all facts and circumstances. Even if it had passed any order, it has the power to reconsider and alter the same at any point of time, if the circumstances so warrant particularly if the 14 earlier order has not been given effect. In the circumstances, it was not proper for the High Court to foreclose the entire matter by directing the Government to implement the order dated 16.1.2009 and thereby render useless the representation given by the appellants in pursuance of the liberty reserved by this court.
8. In the circumstances, without expressing any opinion on the merits of the matter, we allow this appeal, set aside the order dated 5.7.2011 of the High Court in the contempt proceedings and permit the State Government to take an informed decision within twelve weeks from today. If such a decision is not taken or if the appellants' representation is rejected, the earlier Government Order dated 16.1.2009 shall be implemented."
9. Mr. Ashok Parija, learned Senior Counsel appearing on behalf of the petitioners vehemently argued that re-fixing the headquarter of Bahanaga Tahasil at Gopalpur in suppression of earlier notification dated 16.1.2009 vide Annexure-10 wherein the headquarter of the Tahasil was fixed at Bahanaga is contrary to the policy decision of the State Government regarding creation of new Tahasil and fixation of their headquarter. The stand taken by the State Government in paragraph-9 of the counter affidavit that Gopalpur was chosen in view of suitability, geographical location, communication and availability of infrastructure is contrary to the finding of the facts rendered by this Court on 18.8.2010 in W.P.(C) Nos.1093 of 2009 and 5832 of 2010. Furthermore, the stand of the State Government is that fourteen Gram Panchayats are closer to Gopalpur and seven Gram Panchayats are closer to Bahanaga is factually incorrect. The report of the Board of Revenue and Revenue Divisional Commissioner suffers from the vice of non-application of mind. Above all, 15 the general public of the locality are in favour of Bahanaga as Tahasil headquarter.
10. Elaborating his submission, Mr. Parija submitted that the Government of Odisha formulated a policy for opening of new Tahasils styled as "status paper for the creation of New Tahasils in the State". The said document has been annexed as Annexure-1. The said documents would indicate that the Tahasil Offices should be opened in the Block headquarter with the support of OAS (II) Officers available at the disposal of the Revenue and Disaster Management Department by way of equitable deployment of officers between the existing Tahasils and Tahasils to be newly created. The Panchayat Samities should provide necessary infrastructure support which includes a record room, a room for the officer and a sizeable big hall for the employees of the Tahasil. The decision of the Government to open a new Tahasil where Panchayat Samiti is willing to provide infrastructure support should be in shape of Panchayat Samiti resolution. It has been further decided that the new Tahasil so opened will be co-terminus of the block area. In furtherance to the said policy, the Additional District Magistrate, Balasore vide Annexure-4 wrote a letter to the Tahasildar, Balasore/ Soro/ Nilagiri/ Jaleswar to report if Government buildings are available at Remuna, Bahanaga, Khaira, Oupada and Bhograi Block headquarter or private buildings are available to function Additional Tahasil Office for accommodation of Additional Tahasildar and Staffs. The name of Gopalpur is absent, in the said letter since it is not a Block headquarter 16 and, therefore, does not qualify for being a Tahasil headquarter as per the policy of the State Government.
11. Mr. Parija further submitted that in response to the letter of Additional District Magistrate, Balasore vide Annexure-4, the Block Development Officer, Bahanaga vide Annexure-5 wrote a letter to the Additional District Magistrate, Balasore confirming that accommodation for the office of the Tahasildar is available within the block premises. Thus, while Bahanaga fulfils the twin requirements of the policy, being a Block headquarter and the Panchayat Samiti has passed a resolution to provide the infrastructure support, Gopalpur is neither a Block headquarter nor has requisite infrastructure support. He further submitted that the Government of Odisha on 6.8.2008 vide Annexure-6 opened 85 new Tahasils and all the Tahasil headquarter were fixed at the respective block headquarter co-terminus with the block area, except Bahanaga, which was fixed at Gopalpur, contrary to the policy of the State Government. No ostensible reason or exceptional circumstance was stated which occasioned the deviations from the Policy.
12. Mr. Parija further submitted that on 21.10.2008, pursuant to the direction issued by the State Government in Revenue and Disaster Management Department, the Collector, Balasore submitted its report with the State Government in connection with shifting of the headquarter of Bahanaga Tahasil from Gopalpur to Bahanaga. The said letter was inter alia communicated. Enquiry was conducted by the Collector-cum- 17 District Magistrate, Balasore. The Chairman, Bahanaga Panchayat Samiti, Member of Zilla Parishad, Panchayat Samiti Members of Bahanga and Sarpanches were consulted. The total number of public representatives excluding MP and MLA are 44. Out of them, 26 gave their views in favour of Bahanaga Block headquarter to be the Tahasil headquarter, whereas 14 opined that Gopalpur will be convenient for them and four representatives abstained. Both MP and MLA gave their views that the headquarter of Bahanaga Tahasil should be at Bahanaga Block headquarter. The report further reveals that the Collector had examined the matter and found that Bahanaga is the Block headquarter and people coming to the Block headquarter will find it convenient to do their work at Tahasil. Furthermore, most of the roads are connecting Block headquarter and Bahanaga is itself located on the side of National Highway. The opinion tilted in favour of Bahanaga where Block headquarter is located. Based on the said letter on 16.1.2009, the State Government relocated the headquarter of Bahanaga New Tahasil at Bahanaga in place of Gopalpur.
13. Mr. Parija relying on the decision of the State Government dated 16.1.2009 submitted that the findings of fact arrived at by this Court have attained finality between the contesting parties and therefore the same is binding and hence opposite parties are estopped from taking a different view. He further submitted that the report of the Board of Revenue and Revenue Divisional Commissioner suffer from the vice of non-application of mind inasmuch as the finding of the Revenue 18 Divisional Commissioner that Gopalpur will be more nearer to 14 GPs whereas Bahanaga would be closer to 7 Gram Panchayats. He placed reliance upon the judgments of Hon'ble Supreme Court in the case of ITC Limited V. State of Uttar Pradesh and others reported in (2011) 7 SCC 493 and in the case of Raunaq International Ltd. Vs. I.V.R. Construction Ltd. and others, reported in (1999) 1 SCC 492 and in the case of Madhya Pradesh State Cooperative Dairy Federation Limited and another Vs. Rajnesh Kumar Jamindar and others, reported in (2009) 15 SCC 221.
14. Learned Advocate General appearing for opposite party no.1 submitted that pursuant to the order dated 2.8.2011 passed by the Hon'ble Supreme Court, the State Government after much deliberation and taking into consideration the report of the Board of Revenue and the Revenue Divisional Commissioner (Central Division) decided that from the point of view of suitability, geographical location, communication and availability of infrastructure, Gopalpur is more suitable to be the headquarter of Bahanaga Tahasil as the said location will be nearer to fourteen Gram Panchayats, whereas Bahanaga will be closer to seven Gram Panchayats. He further submitted that Gopalpur will be a more suitable place as villages under the proposed Tahasil have better communication and connectivity to Gopalpur than Bahanaga.
15. Mr. S.K. Padhi, learned Senior Advocate appearing on behalf of opposite party no.4, intervenor, placing strong reliance on the order 19 dated 2.8.2011 passed by the Hon'ble Supreme Court in Civil Appeal No.6307 of 2011 submitted that pursuant to the observation of the Hon'ble Supreme Court in its order dated 17.9.2010 in SLP (Civil Appeal No.25175 of 2010), the opposite parties made a representation to the State Government ventilating their grievances with regard to fixation of headquarter of Bahanaga Tahasil. Furthermore, the order dated 5.7.2011 passed by this Court in CONTC No.2212/2010 to implement the judgment dated 18.8.2010 within four weeks was set aside by the Hon'ble Supreme Court in Civil Appeal No.6307 of 2011. Placing strong reliance on the order dated 2.8.2011 in Civil Appeal No.6307 of 2011, more particularly paragraph-7 thereof, Mr. Padhi submitted that Court can exercise the power of judicial review if there is a manifest error in the exercise of power or the exercise is manifestly arbitrary or if the power is exercised on the basis of facts which do not exist and which are patently erroneous. Such exercise of power would stand vitiated. The court may be justified in exercising the power of judicial review if the impugned order suffers from malafide, dishonest or corrupt practices, for the reason, that the order had been passed by the authority beyond the limits conferred upon the authority by the legislature. Thus, the court has to be satisfied that the order has been passed by the authority illegally, irrationally or suffers from procedural impropriety before it interferes. The court does not have the expertise to correct an administrative decision. Therefore, the court itself may be fallible and interfering with the order of the authority may impose heavy administrative burden on the State or may 20 lead to unbudgeted expenditure. He further submitted that judicial review is not akin to adjudication on merit by re-appreciating the evidence as an appellate authority. Thus, the court is devoid of the power to re- appreciate the evidence and come to its own conclusion on the proof of a particular charge, as the scope of judicial review is limited to the process of making the decision and not against the decision itself and in such a situation the court cannot arrive on its own independent finding. It is neither within the domain of the courts nor the scope of judicial review to embark upon an enquiry as to whether a particular public policy is wise or whether better public policy can be evolved. Nor are the courts inclined to strike down a policy at the behest of a petitioner merely because it has been urged that a different policy would have been fairer or wiser or more scientific or more logical. Wisdom and advisability of policy are ordinarily not amenable to judicial review.
To buttress his submission, Mr. Padhi cited the decisions of Hon'ble Supreme Court in the case of Tata Cellular Vs. Union of India, reported in AIR 1996 SC 11 and People's Union for Civil Liberties V. Union of India, reported in AIR 2004 SC 456.
16. On an anatomy of the pleadings of the parties and submissions made by respective counsel for the parties, really three points arise for our consideration, such as:-
(i) What is the scope of judicial review in the policy matter such as fixation of headquarter of Tahasil ?21
(ii) Whether the order dated 18.8.2010 passed by this Court in W.P.(C) Nos.1093 of 2009 and 5832 of 2010 respectively have attained its finality.
(iii) Whether the decision of the Government in re-fixing the headquarter of Bahanaga Tahasil at Gopalpur is vitiated by arbitrariness.
17. Point No.(i) Before embarking upon the rival contention of the parties, we would like to deal with the ambit and scope of judicial review with regard to tenability of policy decisions.
The Hon'ble Supreme Court in Premium Granites and another v. State of T.N. and others, (1994) 2 SCC 691 while considering the Court's powers in interfering with the policy decision observed at page-715 as under: (SCC para-54) "54. It is not the domain of the Court to embark upon unchartered ocean of public policy in an exercise to consider as to whether a particular public policy is wise or a better public policy can be evolved. Such exercise must be left to the discretion of the executive and legislative authorities as the case may be."
18. The Hon'ble Supreme Court in Balco Employees' Union (Regd.) Vs. Union of India and others, (2002) 2 SCC 333 held that it is neither within the domain of the courts nor the scope of the judicial review to embark upon an enquiry as to whether a particular public policy is wise or whether better public policy can be evolved. Nor are our 22 courts inclined to strike down a policy at the behest of a petitioner merely because it has been urged that a different policy would have been fairer or wiser or more scientific or more logical. The Court can interfere only if the policy decision is patently arbitrary, discriminatory or mala fide.
19. The same view is echoed in the case of Shimnit Utsch India Private Limited and another Vrs. West Bengal Transport Infrastructure Development Corporation Limited and others, (2010) 6 Supreme Court Cases 303. In paragraph-52 of the report, their Lordships' held as follows:-
"The courts have repeatedly held that the government policy can be changed with changing circumstances and only on the ground of change, such policy will not be vitiated. The Government has a discretion to adopt a different policy or alter or change its policy calculated to serve public interest and make it more effective. Choice in the balancing of the pros and cons relevant to the change in the policy lies with the authority. But like any discretion exercisable by the Government or public authority, change in policy must be in conformity with Wednesbury reasonableness and free from arbitrariness, irrationality, bias and malice.
20. In the case of Tata Cellular Vrs. Union of India, AIR 1996 SC 11, the Hon'ble Supreme Court has succinctly stated about the Wednesbury unreasonableness. In paragraph-96 of the report, their Lordships' held as follows:-
"What is this charming principle of Wednesbury unreasonablenss? Is it a magical formula? In Re: v. Askew [1768] 4 2168, Lord Mansfield considered the question whether mandamus should be granted against the College of Physicians. He expressed the relevant principles in two eloquent sentences. They gained greater value two centuries later: It is true, that the judgment and discretion of determining upon this skill, ability, learning and sufficiency to exercise and practice this profession is 23 trusted to the College of Physician: and this Court will not take it from them, nor interrupt them in the due and proper exercise of it. But their conduct in the exercise of this trust thus committed to them ought to be fair, candid and unprejudiced; not arbitrary, capricious, or biased; much less, warped by resentment, or personal dislike.
21. In the case of State of N.C.T. of Delhi and Another Vrs.Sajeev @ Bitto, AIR 2005 SC 2080, the Hon'ble Supreme Court had again considered the principle of Wednesbury and held that :-
"Therefore, to arrive at a decision on 'reasonableness" the Court has to find out if the administrator has left out relevant factors or taken into account irrelevant factors. The decision of the administrator must have been within the four corners of the law, and not one which no sensible person could have reasonably arrived at, having regard to the above principles, and must have been a bona fide one. The decision could be one of many choices open to the authority but it was for the authority to decide upon the choice and not for the Court to substitute its view".
Thus, the Court cannot strike down a policy decision taken by the State Government merely because it feels that another policy decision would have been fairer or wiser or more scientific or logical. The Court can interfere only if the policy decision is patently arbitrary, discriminatory or mala fide.
22. Point No.(ii) Mr. Praija, learned Senior Counsel appearing for the petitioners argued with vehemence that the judgment dated 18.8.2010 passed by this Court in W.P.(C) Nos.1093 and 5832 of 2010 has attained finality in as much as the SLP against the aforesaid judgment was 24 dismissed by the Hon'ble Supreme Court. Per contra, Mr. Padhi, learned Senior Counsel placing reliance on the order dated 2.8.2011 passed by the Hon'ble Supreme Court in Civil Appeal No.6307 of 2011 arising out of CONTC No.12341 of 2011, more particularly at paragraph-7 of the said order, submitted that Hon'ble Supreme Court have held that fixing the headquarter of a Tahasil is purely an executive function and it is for the Government to take a decision with reference to all facts and circumstances. In the said judgment, the Hon'ble Supreme Court further held that even if the Government had passed any order, it has the power to reconsider and alter the same at any point of time, if the circumstances so warrant particularly if the earlier order has not been given effect to. Mr .Padhi, learned Senior Counsel further submitted that the Hon'ble Supreme Court set aside the order dated 5.7.2011 passed by this Court in the contempt proceeding and permitted the State Government to take an informed decision within twelve weeks from the date of the order.
23. The Hon'ble Supreme Court in the case of Kunhayammed and others Vrs. State of Kerala and another, (2000) 6 Supreme Court Cases 359, had the occasion to consider as to whether the judgment of the High Court gets merged when SLP is dismissed in limini. In paragraph-7 of the said report, their Lordships' held as follows:-
"The doctrine of merger is neither a doctrine of constitutional law nor a doctrine statutorily recognised. It is a common law doctrine founded on principles of propriety in the hierarchy of justice delivery system. On more occasions than one this Court had an opportunity of dealing with the doctrine of merger. It would be advisable 25 to trace and set out the judicial opinion of this Court as it has progressed through the times."
24. Further, in paragraph-44 (iv) of the report, their Lordships' held that "an order refusing Special Leave to Appeal may be a non speaking order or a speaking one, In either case it does not attract the doctrine of merger. An order refusing Special Leave to Appeal does not stand substituted in place of the order under challenge. All that it means is that the Court was not inclined to exercise its discretion so as to allow the appeal being filed".
25. One distinguishing feature of this case is that after the SLP was dismissed, liberty was granted to the appellants therein by the Hon'ble Supreme Court to file representation before the Government. Further more, in Civil Appeal No.6307 of 2011 arising out of CONTC No.12341 of 2011, the Hon'ble Supreme Court permitted the State Government to take an informed decision within twelve weeks from the date of the order. In view of the same, no fault can be found with the Government in again taking a decision. Thus the decisions cited by Mr.Parija, learned Senior Counsel in the case of Darshjit Singh and I.T.C. Ltd. (supra) that where an authority makes regulation and issues policies and procedures they are intended to be followed and complied with are of no avail since the Government has issued fresh notification fixing headquarter of Bahanaga Tahasil at Gopalpur. But then decision of the Government in re-fixing the headquarter of the Tahasil is to be decided on the anvil of the decisions cited supra.
26
26. Point No.(iii) After the notification dated 6.8.2008 issued by the Government declaring the headquarter of Bahanaga Tahasil at Gopalpur, there was public resentment. Thereafter, the Government in the Revenue and Disaster Management Department directed the then Collector-cum- District Magistrate, Balasore to conduct an inquiry. He submitted a report on 21.10.2008 vide Annexure-9. From the said report, it is evident that an inquiry was conducted by him. He had also consulted the M.P., Balasore, M.L.A., Soro and Chairman, Bahanaga Panchayat Samiti, Members of Zilla Parishad, Panchayat Samiti Members of Bahanaga and Sarpanches. Out of forty four public representatives, 26 gave their views in favour of Bahanaga Block headquarter to be the Tahasil headquarter, whereas fourteen opined that Gopalpur will be convenient for them and four representatives were abstained. The report further reveals that both M.P. and M.L.A. gave their views in favour of Bahanaga Tahasil at Bahanaga. He found that Bahanaga which the Block headquarter and people coming to Block headquarter will find it convenient to do their work at Tahasil. Further, most of the roads are connecting Block headquarter and Bahanaga which itself located on the side of the National Highway. He expressed that opinion tilted in favour of Bahanaga where Block headquarter is located. However, when another Collector-cum- District Magistrate, joined at Balasore, he submitted a report on 6.7.2009 to the Government taking a contrary view vide Annexure-11. Further more, the Revenue Divisional Commissioner, Central Division, Cuttack 27 submitted a report on 16.2.2010 vide Annexure-D/4 series stating therein that Gopalpur is a more suitable place as it is located at a distance of about 20 K.M. from Soro Map. The villages of the proposed Tahasil have better communication and connective to Gopalpur than Bhanagaa. Besides, Gopalpur being centrally located has a thriving market and its surrounding areas are thickly populated and it will have required infrastructure to start the Tahasil Office with the help of Gram Panchayat. Basing on the said report, the Commissioner-cum-Secretary, Board of Revenue submitted a report on 23.10.2010 vide Annexure-D/4 series to the Commissioner-cum-Secretary to Government, Revenue and Disaster Management Department stating therein that from the point of view of suitability, geographical location, communication and availability of infrastructure, the headquarter of Bahanaga Tahasil may be located at Gopalpur. The said report further reveals that Gopalpur will be more nearer to fourteen Gram Panchayats whereas Bahanaga would be closure to seven Gram Panchayats of the same Block as reported by the Revenue Divisional Commissioner.
27. Be it noted, no where in the report dated 16.2.2010 vide Annexure-D/4 series it is stated that Gopalpur will be more nearer to fourteen Gram Panchayats whereas Bahanaga would be closure to seven Gram Panchayats of the same Block. In our considered opinion, report of the Commissioner-cum-Secretary, Board of Revenue, Orissa, Cuttack vide Annexure-D/4 series is a result of total non application of mind and not based on facts. Different reports were placed before the Government at 28 different points of time. At one point of time, there is a report of Collector- cum-District Magistrate, Balasore to create Tahasil headquarter at Bahanaga and at a latter point of time, when another Collector-cum- District Magistrate joined, he gave a contrary report. Both the reports of the Collector-cum-District Magistrate, Balasore are diametrically opposite and inconsistent. From the earlier report of the Collector-cum-District Magistrate, Balasore, it is evident that he consulted the public representatives including M.P. and M.L.A and expressed his view to locate the headquarter of the Tahasil at Bahanaga, whereas in the latter, we found that the Collector-cum-District Magistrate, Balasore conducted a suo motu inquiry and submitted the report. Furthermore, the report of the Commissioner-cum-Secretary, Board of Revenue, Orissa, Cuttack holding, inter alia, that R.D.C. had submitted a report stating therein that Gopalpur will be more nearer to fourteen Gram Panchayats whereas Bahanaga would be closure to seven Gram Panchayat of the same Block, is not borne out of the record. At the cost of repeation, we reiterate that the R.D.C. in his report dated 16.2.2010 has never stated so.
28. In view of the conflicting reports of the different authorities at different points of time, we are of the opinion that a High Power Committee consisting of Commissioner-cum-Secretary to the Government of Odisha, Revenue and Disaster Management Department, Revenue Divisional Commissioner, Central Division, Cuttack and Collector-cum- District Magistrate, Balasore should take a decision pertaining to fixation 29 of headquarter of Bahanaga Tahasil. It is open to the said committee to consult the public representatives and take a decision on their own in the facts and circumstances of the case. The Chief Secretary to the State of Odisha is directed to constitute a committee of the aforesaid persons within a period of one month, whereafter the committee shall submit its report to the Government within two months. Needless to mention here that the Government after careful consideration of the report of the committee may take an informed decision as stated by the Hon'ble Supreme Court.
29. Accordingly, the notification dated 25.8.2011 under Annexure-16 is quashed. The writ application is allowed to the extent indicated above. There shall be no order as to costs.
...................................
DR. A.K.RATH, J.
M.M.DAS, J. I agree.
...............................
M.M.DAS, J.
Orissa High Court, Cuttack.
The 21st August, 2013/CRB/BKB.
30
"
31
++++
32