Orissa High Court
Hullash Behera vs State Of Odisha And Others .... Opposite ... on 18 January, 2023
Author: M.S. Raman
Bench: M.S. Raman
IN THE HIGH COURT OF ORISSA AT CUTTACK
W.P.(C) No. 22709 of 2010
Hullash Behera .... Petitioner
Mr. G.M. Rath, Advocate
-versus-
State of Odisha and others .... Opposite Parties
Mr. Debakanta Mohanty
Additional Government Advocate
CORAM:
THE CHIEF JUSTICE
JUSTICE M.S. RAMAN
ORDER
18.01.2023 Order No. Dr. S. Muralidhar, CJ.
23. 1. The challenge in this writ petition is to an order dated 2nd September, 1987 passed by the Additional District Magistrate (ADM), Bhubaneswar in Revision Case No.439 of 1986 cancelling the lease granted in favour of the Petitioner in W.L. Case No.7 of 1974 in respect of plot measuring Ac 0.200 dec. under Khata No.255 in Mouza-Suango by the Tahasildar, Bhubaneswar. Also the challenge in the said petition was a consequential order dated 16th July, 1990 passed by the Tahasildar, Bhubaneswar issuing a direction to the Record Keeper to correct the Record of Rights (RoR) and to the Revenue Inspector (RI) to take over possession of the land and report compliance.
2. While directing notice to issue in the present petition on 20th February, 2013 this Court had directed status quo to be maintained as regards possession. That interim order has continued till date.
Page 1 of 103. The case of the Petitioner is that he is a resident of village- Chhotarapur, in district Khurdha and belongs to the Scheduled Caste (SC). He states that in 1974, he submitted an application in the prescribed form before the Tahasildar, Bhubaneswar for settlement of a Government land in his favour and on that basis, in W.L. Case No.7 of 1974, the Tahasildar passed an order granting him the lease in respect of the land in question. The Petitioner states that the leasehold land was mutated in his favour and his name has been appearing in the RoR since 1974. He claims to have developed the land to make it fit for homestead and has constructed a residential premises.
4. The ADM registered R.C. No.439 of 1986 under Section 7(A)(3) of the Orissa Government Land Settlement Act, 1962 (OGLS Act) and called for a report from the SDO, Bhubaneswar which showed that the lease had been granted inter alia without a proper enquiry under Rule-3(3) of the OGLS Rules, 1974; without issuing a proclamation inviting objections as required by Rule-3(5) of the OGLS Rules, 1974; without observing the provisions of Section 3(2) of the OGLS Act, 1974 in terms of which 70% of the Government land had to be settled in favour of the SC & ST people in the village; that the order of priority of settlement under Section 3(3) of the OGLS Act, 1974 was violated and lastly, it had not been ascertained on enquiry if the Petitioner was a landless person and if he has no other profitable means of livelihood in order to be eligible for settlement of land under the OGLS Act and the Rules in force.
5. After notice to the Petitioner and after hearing him, the aforementioned order dated 2nd September, 1987 was passed by the Page 2 of 10 ADM cancelling the lease which had earlier been granted in favour of the Petitioner by the Tahasildar, Bhubaneswar by an order dated 30th September, 1975.
6. The second impugned order dated 16th July, 1990 of the Tahasildar requiring the change in RoR and directing the RI to take over possession was only consequential upon the aforementioned order of the ADM.
7. A counter affidavit has been filed on 10th August, 2016 by the Tahasildar, Bhubaneswar referring to the above facts and stating that the area of Ac 92.415 dec. including the land in question has been alienated in favour of AIIMS, Bhubaneswar for development of medical facilities. A copy of the alienation order in favour of AIIMS, Bhubaneswar has been enclosed with the reply. Further it is mentioned that upon verification of the records at the Tahasil Office, two plots, viz., Plot No.307 measuring of an area of Ac 0.660 under Khata No.162/109 and Plot No.40/394 of an area of Ac 0.048 dec. under Khata No.162/110 in Mouza Chhotaraypur stands recorded in the name of the Petitioner and that he is not a homestead-less person.
8. A rejoinder has been filed by the Petitioner on 10th February, 2017 admitting that he had purchased the Plot No.307 under Registered Sale Deed (RSD) dated 15th May, 1981 and Plot No.40/394 under RSD dated 8th November, 1989. Thereby it is sought to be contended that when the Tahasildar passed the order dated 30th September, 1975 granting the lease in favour of the Petitioner in respect of the land in question the Petitioner did not Page 3 of 10 have any other land in his possession. As regards the material irregularities in the grant of lease in his favour, it is submitted that general proclamation under Rule 5(5) of the OGLS Rules, 1974 was in fact issued. It is denied that the requirement that 70% of the Government land should be alienated in favour of SC & ST or the order of priority under Section 3(3) of the OGLS Act has not been complied with.
9. During the hearing of the present petition on 5th July, 2022 the following order was passed by this Court:
"1. On 20th February 2013, an interim order was passed by this Court directing "status quo as on date regarding possession of the land in question" to be maintained till the next date. The said status quo order has continued since.
2. It is asserted by Mr. G.M. Rath, learned counsel appearing for the Petitioner that till date the Petitioner continues to remain in possession and he is continuing to cultivate the land in question.
3. Mr. D.K. Mohanty, learned Additional Government Advocate, on the other hand, states that the record of rights was mutated in favour of AIIMS, Bhubaneswar upon cancellation of the lease in favour of the Petitioner. He is unable to state, however, whether the Petitioner continues to remain in possession and is cultivating the land.
4. The Tahasildar, Bhubaneswar is directed himself to visit the site in question and ascertain whether in fact the Petitioner continues to cultivate the land in question and what the current status is. A report in this regard be filed by the next date.
5. List on 29th August, 2022.Page 4 of 10
6. The interim order passed earlier shall continue till the next date."
10. Pursuant to the above order, an affidavit dated 10th January, 2023 has been filed enclosing copy of the field visit report dated 20th August, 2022 by the Tahasildar, Bhubaneswar which inter alia states that the suit land "is coming well within the AIIMS Campus and no access to this plot is available from the nearby public roads". It was found that there was one small house of brick wall with asbestos roof and another mud wall with thatched roof "which appears to have been recently constructed in order to prove his possession. No electrification and water supply is available in this house". While the Petitioner, who was present during the enquiry, claimed that he had been staying alone there and his family members were residing in the native village, "The AIIMS Authority and the local people are of the view that most of the time the house remains locked and the Petitioner occasionally comes to this house during day time".
11. On the aspect of cultivation, the Tahasildar noted "some vegetable seedlings" having been planted "recently in small patch within this plot". It was noted that "no source of water facility is available to grow vegetable crops and thus the land is not amenable for cultivation". The local enquiry of the Tahasildar revealed that "no cultivation is ever seen in this land in the past years". The Tahasildar, therefore, categorically concluded that the Petitioner "is not in continuous possession by way of cultivation as claimed before the Hon'ble Court". The details of the other properties owned by the Petitioner have been set out and it is stated in the report that the Petitioner is not a homestead-less/landless person Page 5 of 10 and does not deserve benefit of the concession under the OGLS Act.
12. Lastly, it is stated that the entire village in Mouza Suango is under the freezing zone notified by the Government by a Gazette Notification dated 5th August, 2011 whereby it had been decided that "no Government land in the said villages shall be leased/alienated for the purpose of agriculture under the OPLE Act, 1972, OGLS Act and the Government Grants Act, 1895.
13. This Court has heard the submissions of Mr. G.M. Rath, learned counsel appearing for the Petitioner and Mr. Debakanta Mohanty, learned Additional Government Advocate (AGA) for the State. Mr. Rath pointed out that inasmuch as the Petitioner belonged to the Scheduled Caste, it could not be said that there has been violation of Section 3(2) of the OGLS Act or for that matter Section 3(3) thereof.
14. Referring to Rule 5(5) of the OGLS Rules, Mr. Rath submitted that the Petitioner had enclosed with the rejoinder copies of the proclamation issued inviting objections. He further submitted that the Petitioner had acquired the two parcels of land only subsequent to the grant of lease in his favour and, therefore, that could not be a disqualification. Lastly, it was submitted that the invocation of the power under Section 7(A)(3) of the OGLS Act after a period of nearly twelve years was bad in law. Reliance was placed on the decision in Shantilata Dei v. Additional District Magistrate MANU/OR/0230/1996 and the decision dated 20th April, 2021 of Page 6 of 10 this Court passed in O.J.C. No.17538 of 1998 (Ghanashyam Behera v. Additional District Magistrate, Khurda).
15. Mr. Debakant Mohanty, learned AGA submitted that the plot of land is well within the AIIMS Campus and, therefore, there is no question of it being used or capable of being used for cultivation. He pointed out that the report of the Tahasildar showed that the Petitioner was not in cultivating possession as claimed by him. The purpose of which the lease was only granted cannot be fulfilled any longer. He referred to the freezing order dated 5th August, 2011 and submitted that at this stage, no direction could be issued for revival of the lease in favour of the Petitioner.
16. The above submissions have been considered. Section 7(A)(3) of the OGLS Act reads as under:
"Notwithstanding anything contained in this Act or any other law, the Collector may, on his own motion or otherwise, call for an 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 or 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."
17. In the present case, the original lease was granted by the order dated 30th September, 1975 of the Tahasildar, Bhubaneswar. Before cancelling the lease by the impugned order dated 2nd September, Page 7 of 10 1987 which was within twelve years from the said order, the ADM called for an enquiry report from the SDO, Bhubaneswar. Among the illegalities pointed out by the SDO, Bhubaneswar was that no proper enquiry was conducted by the Tahasildar under Rule-3(3) of the OGLS Rules, 1974. Rule-3(3) of the OGLS Rules reads as under:
"3(3). On receipt of applications, they shall be entered in a register in pro forma in Form II forthwith chronologically maintained. The officer receiving applications shall thereafter cause an enquiry to be made in respect of each application. The enquiry shall be completed within a period not exceeding fifteen days. If after enquiry the Tahasildar or the authorized officer is of the opinion that settlement of land may not be granted he shall reject the application after recording reasons for rejection."
18. The purpose of the above enquiry was to ascertain if the Petitioner was a homestead-less or landless person and more importantly, whether he had an annual income to show that he had no other profitable means of livelihood. Apart from mere assertion that the Petitioner has no other profitable means of livelihood, there is no material placed on record by the Petitioner to substantiate such assertion. The mere compliance of the requirement under Rule 5(5) regarding proclamation having to be issued would not make up for the failure to comply with the essential requirement of the Petitioner having to be a landless/homestead-less person and without means to sustain himself.
19. Unlike the decision in Shantilata Dei v. Additional District Magistrate (supra) where notice was not properly served by the ADM on the lessee and unlike the decision in Ghanashyam Behera Page 8 of 10 v. Additional District Magistrate (supra) where there was absolutely no tangible material in the form of documentary evidence to show fraud or material irregularity in the grant of lease, in the present case, the ADM called for a report from the SDO, Bhubaneswar and it was only on the basis of the facts found in the said report that he cancelled the lease in favour of the Petitioner.
20. The lease was granted essentially for the purposes of agriculture and the field report of the Tahasildar dated 20th August, 2022 reveals that the plot in question was never used for agriculture at any point in time. It appears that only for the purpose of this case, after the Court passed the order dated 5th July, 2022 that some vegetable seedlings were planted in a small patch within the land. Clearly, therefore, the land has never been used for agriculture/cultivation purpose which was the essential reason why the lease was granted in the first place.
21. With the Petitioner himself admittedly owning two plots of land, which may have been purchased subsequent to the lease in his favour, the fact remains that he is no longer a homestead-less/ landless person, even on his own showing. On top of this, is the freezing order dated 5th August, 2011 in terms of which there cannot be an alienation of land for agriculture purpose in the said area. The land in question is well within the Campus of AIIMS, Bhubaneswar in whose favour the land stands alienated.
22. For all of the aforementioned reasons, the Court not persuaded to interfere with the impugned order of the ADM or the consequential order of the Tahasildar.
Page 9 of 1023. Accordingly, the writ petition is dismissed. The interim order passed earlier stands vacated.
24. An urgent certified copy of this order be issued as per rules.
(Dr. S. Muralidhar) Chief Justice (M.S. Raman) Judge S. Behera Page 10 of 10