Orissa High Court
Hrudananda Pradhan vs State Of Odisha And Others .... Opp. ... on 22 July, 2021
Author: K.R. Mohapatra
Bench: K.R. Mohapatra
IN THE HIGH COURT OF ORISSA AT CUTTACK
W.P.(C) No.28098 OF 2019
Hrudananda Pradhan .... Petitioner
Mr. Bhagaban Behera, Advocate
-versus-
State of Odisha and others .... Opp. Parties
Mr. Sarojananda Mishra,
Additional Government Advocate
For Opposite Party Nos.1 to 6
CORAM:
JUSTICE K.R. MOHAPATRA
ORDER
Order No. 22.07.2021
03. 1. This matter is taken up through video conferencing mode.
2. The Petitioner in this writ petition seeks to assail the order dated 5th September, 2013 (Annexure-1 series) passed by the Additional Sub-Collector, Bhubaneswar in Settlement Appeal No.1115 of 2013, whereby the order dated 15th July, 2013 (Annexure-1 series) passed by the Assistant Settlement Officer, Rental Colony, Bhubaneswar in Suo Motu Rent Objection Case No. 7269 of 2013 has been confirmed.
3. Mr. Behera, learned counsel for the Petitioner submits that the land in question was leased out in favour of one Kunja Bihari Tripathy in W.L. Case No.858 of 1968-69, who was ex-army personnel. Subsequently, resumption proceeding was initiated under Section 3-b of the Odisha Government Land Settlement Act, 1962 (for short 'the O.G.L.S. Act'), which was dropped pursuant to the order passed in Lease Revision Case No.323 of 2000. Said lessee Kunja Bihari Tripathy in order to meet his Page 1 of 5 // 2 // legal necessity, applied for permission in Revenue Misc. Case No.10 of 1989 to alienate the leasehold property and the Additional Tahasildar, Bhubaneswar vide his order dated 28th April, 1989 holding that 10 years have been elapsed from the date of lease of the leasehold property, no permission under Section 6-A of the Odisha Land Reforms Act, 1960 (for short 'the O.L.R. Act') for transfer of the said property was necessary. After disposal of Revenue Misc. Case No.10 of 1989, said lessee Kunja Bihari Tripathy sold the case land to different persons and the petitioner is one amongst them. He further submits that during settlement operation, draft R.O.R. under Section 12 of the Orissa Survey & Settlement Act, 1958 (for short 'the Settlement Act') was published in the name of the Petitioner under Annexure-4 series. However, the Assistant Settlement Officer, Rental Colony, Bhubaneswar for the reason best known to him, initiated a suo motu proceeding in Suo Motu Rent Objection Case No. 7269 of 2013 and vide his order dated 15th July, 2013 directed to record the land in Government Khata under 'Abadajogya Anabadi' status. The Petitioner being aggrieved, filed Settlement Appeal No.1115 of 2013, which was dismissed vide order dated 5th September, 2013. Thus, the Petitioner has filed this writ petition assailing the said order under Annexure-1 series.
4. It is submitted by Mr. Behera, learned counsel for the Petitioner that the Assistant Settlement Officer has no jurisdiction to initiate a suo motu rent objection case after the land has been published under Section 12 of the Settlement Act. Further, in view of the ratio decided in the case of Lily Nanda -
Page 2 of 5// 3 // v- State of Odisha, reported in 2018(I) OLR-559, the Tahasildar lacks jurisdiction to sit over the settlement made under the O.G.L.S. Act. But, without considering the same, both Assistant Settlement Officer, Rental Colony, Bhubaneswar as well as Additional Sub-Collector, Bhubaneswar passed the impugned orders under Annexures-1 series, which is not sustainable in the eyes of law. Mr. Behera further submits that this Court in a writ petition involving similar question of fact and law in W.P.(C) No.26211 of 2019, which was disposed of vide order dated 29th January, 2021, directed the Assistant Settlement Officer, Rental Colony, Bhubaneswar now functioning as Settlement Officer in the office of Major Settlement Office, Jobra, Cuttack to decide the matter afresh in accordance with law giving opportunity of hearing to the parties concerned. He, accordingly, prays for the aforesaid relief.
5. Mr. Mishra, learned Additional Government Advocate for the State while not disputing the case law cited by Mr. Behera, learned counsel for the Petitioner and the order passed by this Court in W.P.(C) No.26211 of 2019 submits that the Petitioner has a remedy of revision to assail the order. As such, the writ petition is not maintainable. The writ petition also suffers from delay and latches. He, therefore, prays for dismissal of the writ petition being not maintainable.
6. Having heard learned counsel for the parties and on perusal of the record, it is apparent that the land was settled in favour of one Kunja Bihari Tripathy, who was an ex-army personnel under the lease principles in W.L. Case No.858 of 1968-69. Although resumption proceeding was initiated under Section 3-b Page 3 of 5 // 4 // of the O.G.L.S. Act, the same was subsequently dropped pursuant to the Lease Revision Case No.323 of 2000. In that view of the matter, lease granted in favour of Kunja Bihari Tripathy was held to be valid. Due to his legal necessity, said Kunja Bihari Tripathy sought for permission under Section 6-A of the O.L.R. Act for alienation of the leasehold property. The Additional Tahasildar, Bhubaneswar in Revenue Misc. Case No.10 of 1989 holding that after lapse of 10 years from the date of grant of the lease, no permission is required, dropped the said proceeding. Subsequently, said Kunja Bihari Tripathy sold the land to the Petitioner and some other persons. In that view of the matter, the sale in favour of the Petitioner prima facie appears to be valid and genuine. The draft R.O.R. under Section 12 of the Settlement Act was also published in the name of the Petitioner. It is, however, submitted by Mr. Mishra, learned Additional Government Advocate that final R.O.R. in respect of Shampur mouza has not been published.
7. All these factors were not taken into consideration either by the Assistant Settlement Officer, Rental Colony, Bhubaneswar or by the Additional Sub-Collector, Bhubaneswar while adjudicating the proceedings under the Settlement Act.
8. This Court in the case of Lily Nanda (supra) and in several other decisions has already held that the Settlement Authorities have no jurisdiction to sit over the settlement made under the lease principles. They have to respect the settlement made under the lease principles. The settlement operation is made only for a fiscal measure and they have no jurisdiction to give any opinion on the correctness of the settlement made in favour of the lessee.
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9. In that view of the matter, the impugned orders being not in accordance with law, are not sustainable. Accordingly, the impugned order dated 5th September, 2013 (Annexure-1 series) passed by the Additional Sub-Collector, Bhubaneswar in Settlement Appeal No.1115 of 2013 and order dated 15th July, 2013 (Annexure-1 series) passed by the Assistant Settlement Officer, Rental Colony, Bhubaneswar in Suo Motu Rent Objection Case No. 7269 of 2013 are set aside. The matter is remitted back to the Assistant Settlement Office, Rental Colony, Bhubaneswar now functioning as Settlement Officer in the office of Major Settlement Office, Jobra, Cuttack-Opposite Party No.3 to adjudicate the matter afresh in accordance with law giving opportunity of hearing to the parties concerned. The Assistant Settlement Officer shall act upon production of an authenticated copy of this order, which is undertaken to be produced before him by the Petitioner within a period of two weeks hence.
10. As the restrictions due to resurgence of COVID-19 situation are continuing, learned counsel for the parties may utilize a printout of the order available in the High Court's website, at par with certified copy, subject to attestation by the concerned advocate, in the manner prescribed vide Court's Notice No.4587 dated 25th March,2020 as modified by Court's Notice No.4798 dated 15th April, 2021.
jm (K.R.Mohapatra)
Judge
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