Orissa High Court
Chetram Agarwalla vs State Of Odisha And Others .... Opp. ... on 3 August, 2021
Author: K.R. Mohapatra
Bench: K.R. Mohapatra
IN THE HIGH COURT OF ORISSA AT CUTTACK
W.P.(C) No. 14541 OF 2016
Chetram Agarwalla .... Petitioner
Mr. Goutam Mukherji, Senior Advocate
along with Mr. Anam Charan Panda, Advocate
-versus-
State of Odisha and others .... Opp. Parties
Mr. Swayambhu Mishra,
Additional Standing Counsel.
CORAM:
JUSTICE K.R. MOHAPATRA
ORDER
Order No. 03.08.2021 04. 1. This matter is taken up through hybrid mode.
2. The Petitioner in this writ petition seeks to assail the order dated 5th January, 2013 (Annexire-1) passed by the Assistant Settlement Officer, Khordha, Bhubaneswar, Camp at Rental Colony-Opposite Party No.4 in Objection Case No.3905/1343 of 2012.
3. Mr. Mukherji, learned Senior Advocate submits that the land in question, i.e., Plot No.259/1303 under Khata No.424/9 to an extent of Ac.1.000 decimals in Mouza- Shankarpur under Bhubaneswar Tahasil in the district of Khordha was settled by the Additional Tahasildar, Bhubaneswar in favour of one Aninthi Nayak in W.L. Case No.372 of 1969. After the death of the lessee, his sons, namely, Dama Nayak-Opposite Party No.6 and Lambodar Nayak-Opposite Party No.7 due to their legal necessity sold the said land to different persons after obtaining permission under Section 22 of the Orissa Land Reforms Act, Page 1 of 6 // 2 // 1960 (for short, 'the OLR Act') in Revenue Misc. Case No. 466 of 1982 and delivered possession. On purchase, the respective purchasers got their respective portions of the land mutated in their names. One of the purchasers, namely, Dayanidhi Moharana sold the area purchased by him to an extent of Ac.0.100 decimal to one Smt. Anita Mitra by virtue of registered sale deed and delivered possession. When the matter stood thus, a proceeding under Section 3-B of the Orissa Government Land Settlement Act, 1962 (for short, the OGLS Act') was initiated against the lessee and the leasehold property was resumed vide order dated 16.07.2002 passed by Additional Tahasildar, Bhubaneswar in W.L.Case No.372 of 1969. Assailing the said order of resumption, the transferee, namely, Smt. Anita Mitra filed W.P. (C) No. 8561 of 2006 and this Court vide order dated 03.07.2006 allowed the writ petition with the following observation and direction:-
"We are constrained to hold that power under section 3-B of het Act could not have been exercised in the facts of the present case. We, therefore, finding that there is clear violation of the principles of natural justice by not issuing notice of resumption proceeding to the petitioner and further finding that the Additional Tahasildar, Bhubaneswar could not have invoked power under section 3-B of the Act, have no hesitation to quash the impugned order dated 16.07.2002 passed in W.L. Case No. 372/69 under Annexure-7 to the writ petition and we accordingly do so.
The writ application is, accordingly, allowed."
4. Likewise other purchasers, namely, Sri Santosh Kumar Mohanty, Sri Biranchi Narayana Mohanty, Sri Pradip Kumar Bahinipati and Sri Dayanidhi Moharana had also filed W.P.(C) Page 2 of 6 // 3 // Nos.8557, 8558, 8559 and 8561 of 2006 before this Court, which were disposed of on 03.07.2006 with similar orders. Accordingly, the purchasers became absolute owner in respect of the leasehold property. Thereafter, the abovenamed purchasers sold the land to the Petitioner by different sale deeds under Annexure-10 series. After purchase, the Petitioner filed Conversion Case Nos.9820, 9819, 9821 and 9827 of 2009 under Section 8-A of the OLR Act for conversion of the land in question to be used for residential purpose.
5. When the settlement operation started in the village, the Petitioner filed Objection Case No.3905/1343 of 2012 to record the land in question in his name pursuant to the transactions as aforesaid. The Assistant Settlement Officer holding that the Petitioner could not produce any record with regard to grant of lease in favour of Aninthi Nayak, rejected the objection case vide order dated 05.01.2013 (Annexure-1). Assailing the same, the Petitioner filed an appeal in Appeal No.793 of 2013. But, to the misfortunate of the Petitioner, neither he was intimated about the progress of the said appeal nor he was granted certified copy of the proceedings in the said appeal. Accordingly, the Petitioner finding no other alternative filed this writ petition.
6. It is submitted by Mr. Mukherji, learned Senior Advocate for the Petitioner that the land in question was originally settled in favour of one Aninthi Nayak under lease principles following the provisions under OGLS Act. Thus, the Assistant Settlement Officer could not have ignored such settlement and dismissed the objection case filed by the Petitioner. He further submits that the matter involving similar Page 3 of 6 // 4 // questions of law in W.P.(C) No.8774 of 2019 and a batch of cases, disposed of on 18th June, 2021, this Court at paragraphs-30 and 33 held as follows:-
30. Nevertheless, the writ Court under Article 226 of the Constitution can interfere with an order passed by the statutory authority when it acts in a manner not recognized under law. In all these writ petitions, the properties in question were settled under the provisions of the O.G.L.S. Act. The settlement authority also accepted the same and proceeded in the settlement operation up to the stage of Section 11 of the Act, 1958. But, surprisingly the authority under the Act has acted in a different manner and passed the impugned orders without recognizing the settlement of the land under the provisions of the O.G.L.S. Act. Law is well settled that the authorities under the Act cannot sit over the settlement made under the O.G.L.S. Act. There is ample provision under the O.G.L.S. Act to cancel the lease granted in favour of beneficiary and in fact, the said settlements had undergone the test of its validity. It appears from the impugned orders that the Assistant Settlement Officer/Addl. Sub-Collector conveniently avoided the settlement made under the O.G.L.S. Act by ignoring the same, which is not permissible under law. The impugned orders have, in effect, resulted in cancelling the lease granted in favour of beneficiary, which is not within the domain of the settlement authorities. My view gets support from the case of Lily Nanda -vs- State of Odisha reported in 2018 (I) OLR 559.
As such, the impugned orders are without jurisdiction and the same are void. The action taken or publication made pursuant to the said void orders are also equally ineffective and no nest in the eyes of law. Thus, final publication of the R.O.Rs. under Section 12-B of the Act, 1958 pursuant to the void orders is not sustainable in the eyes of law.
33. In view of the discussions made above, this Court is of the considered opinion that the settlement authorities have acted without jurisdiction in passing the impugned orders and as such, the final publication of the R.O.Rs. under Section 12-B of the Act, 1958 is also not sustainable in the eyes of law. Accordingly, the impugned orders assailed in the respective writ petitions as well as R.O.Rs. published in pursuance thereof are set aside. The matters are remitted back to the authorities for fresh adjudication of the same in accordance with law giving opportunity of hearing to the parties concerned. Since the parties are litigating to assert their right for a considerable time, the settlement authorities are directed to conclude the proceedings as expeditiously as possible preferably within a period of six months from the date of production of an authenticated copy of this order, which shall be produced by the Petitioners before the settlement authorities within a period of four weeks hence to receive further instruction in the matter."
6.1 Hence, he prays for setting aside the impugned order passed by Assistant Settlement Officer under Annexure-1 and Page 4 of 6 // 5 // remit the matter back for fresh adjudication in accordance with law.
7. Mr. Mishra, learned Additional Standing Counsel for the State, on the other hand, vehemently objected to the submission made by learned counsel for the Petitioner and argued that due to failure on the part of the Petitioner to produce relevant records with regard to lease of the case land in favour of Aninthi Nayak and subsequent transactions, the claim of the Petitioner was rightly rejected and objection case was dropped. He further submitted that although there is no dispute to the ratio decided in W.P.(C) No.8774 of 2019 and a batch of writ petitions, but the applicability of the same has to be considered in the context of the facts and circumstances of each case. It is further submitted that since the Petitioner has filed an appeal against the objection case and the fate of the same is not known, this writ petition is not maintainable.
8. Taking into consideration the submissions made by learned counsel for the parties and the legal issues decided in W.P.(C) No.8774 of 2019 along with a batch of writ petitions, this Court is of the considered view that when the land in question was settled under lease principles under OGLS Act, the Assistant Settlement Officer could not have delved into merit of such settlement. If he had any doubt with regard to the lease granted in favour of Ainthi Nayak, he could have called for the lease case records and examined the same. In the instant case, the Assistant Settlement Officer called for the lease case record, but without waiting for the same dismissed the Objection Case. Thus, the Assistant Settlement Officer has acted illegally and Page 5 of 6 // 6 // without jurisdiction in issuing direction to record the case land in Government Khata.
9. Accordingly, the impugned order under Annexure-1 being not sustainable in the eyes of law is hereby set aside. The matter is remitted back to the Assistant Settlement Officer, Bhubaneswar or authority functioning as such for fresh consideration of the case in accordance with law giving opportunity of hearing to the parties concerned.
10. Learned counsel for the Petitioner undertakes to produce certified copy of this order before the Assistant Settlement Officer, Bhubaneswar or authority functioning as such within a period of two weeks hence to receive further instruction in the matter for early adjudication of the Objection Case in accordance with law.
11. It is further observed that the Assistant Settlement Officer shall do well to give an opportunity of hearing to the Petitioner to produce all relevant records and adjudicate the same by passing a reasoned order giving opportunity of hearing to the parties concerned and in any event, the Assistant Settlement Officer shall do well to disposes of the objection case, as expeditiously as possible preferably within a period of four months thereafter.
Urgent certified copy of this order be granted on proper application.
(K.R.Mohapatra) Judge jm Page 6 of 6