Orissa High Court
Nirmal Kumar Pattnaik vs State Of Orissa And Others ........... ... on 10 April, 2012
Author: L.Mohapatra
Bench: L.Mohapatra
HIGH COURT OF ORISSA: CUTTACK
W.P.(C) No.20503 of 2011
In the matter of application under Articles 226 & 227 of the
Constitution of India.
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Nirmal Kumar Pattnaik ............ Petitioner
-Versus-
State of Orissa and others ........... Opp. Parties
For Petitioner : M/s.Sarada Pr.Sarangi,
P.P.Mohanty,P.K.Dash,
B.P.Das, A.Pattnaik &
G.Senapati.
For Opp. party : Addl.Government Advocate
P R E S E N T:
THE HON'BLE MR. JUSTICE L.MOHAPATRA
AND
THE HON'BLE MR. JUSTICE B.K.MISRA
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Date of Judgment: 10.04.2012
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B.K.MISRA, J This is the second round journey of the present
petitioner in challenging the order of the Additional District
Magistrate, Bhubaneswar in Lease Revision Case No.421 of
1998 dated 30.5.2011 (Annexure-8) wherein the Addl. District
Magistrate, Bhubaneswar set aside the settlement of the case
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land in favour of one Ghana Naik in W.L.Lease Case No.2035
of 1973.
2. The case of the petitioner is that one Ghana Naik
of village Giringaput applied to the Tahasildar, Bhubaneswar
for settlement of Government Waste Land in respect of
Ac.0.500 decimal appertaining to Hal Plot No.266/1044/1127
appertaining to Hal Khata No.239/30 corresponding to Sabik
Plot No.1044 under Sabik Khata No.281 in Mouza-Giringaput.
Accordingly, the Waste Land Lease Case No.2035 of 1973 was
initiated and the aforesaid land was settled and accordingly
lease deed was executed in between the said Ghana Naik and
the State Government in the year 1974. In 1984 i.e. to be
specific on 4.4.1984 the original lessee Ghana Naik
transferred that lease hold land by a registered sale deed in
favour of Trilochan Behera. The said Trilochan Behera after
obtaining permission from the Revenue Officer, Bhubaneswar
sold the land to one Rama Krushna Parida on 18.10.1985. It
is alleged that the present petitioner purchased those
Ac.0.500 decimals of land from Rama Krushna Parida. Almost
after 13 years i.e. on 29.4.1998 the Additional District
Magistrate, Khurda, namely, the present Opposite Party No.1
initiated a Sou Motu Revision Case under Section 7-A(3) of the
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Orissa Government Land Settlement Act, 1962 and after
examining, the lower court record set aside the settlement of
the case land by his order dated 29.4.1998 and directed the
Tahasildar, Bhubaneswar to cancel the lease granted by the
State Government in favour of Ghana Naik and to correct the
records and take over possession of the land in question. This
order of the Additional District Magistrate, Bhubaneswar was
challenged by the present petitioner before this Court in
W.P(C)No.13761 of 2008 and this Court while setting aside the
order of settlement of the Revisional Authority directed the
Additional District Magistrate, Bhubaneswar to dispose of the
case afresh after giving opportunity of hearing to the petitioner
and also to consider the question of limitation. It is the further
case of the petitioner that he appeared before the Additional
District Magistrate, Bhubaneswar and after hearing the
Additional District Magistrate, Bhubaneswar passed the
impugned order at Annexure-8.
3. Learned counsel appearing for the petitioner
contended that the Revenue Authority cancelled the lease
granted in favour of Ghana Naik without issuing any show
cause notice indicating the grounds for cancellation of the
lease granted to him and the petitioner had also no knowledge
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of such cancellation of lease and though he is entitled to a
show cause notice, no notice was issued to him and therefore,
the impugned order smacks transparency and there has been
gross violation of the principles of natural justice. It was also
equally argued that Suo Motu Revision Proceeding initiated by
the Additional District Magistrate, Bhuabaneswar i.e. after
long lapse of 25 years is without any jurisdiction and the
reasoning assigned are totally fallacious and cannot be
sustained in the eyes of law. Thus, it is contended by the
learned counsel for the petitioner that the impugned order
should be quashed.
4. The opposite party No.1 files his counter affidavit
denying all the allegations of the petitioner and while praying
for dismissal of the writ petition it has been specifically
averred that Ghana Naik the original lessee is neither a
member of the Scheduled caste or Scheduled Tribe community
but he availed the benefit under Section 3(2) of the O.G.L.S.
Act, 1962 by impersonating him as a member belonging to the
Scheduled Tribe community with an ulterior motive to grab
the said land accordingly when such a fact came to the notice
of the Revisional Authority, a Sou Motu Revision was initiated
which was in accordance with law and no fault can be found
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with the Revisional Authority in passing the impugned order
at Annexure-8.
5. Learned Additional Government Advocate
appearing on behalf of the State contended that the impugned
order at Annexure-8 is a speaking order and when by
misrepresentation of facts and playing fraud the land was
leased out to Ghana Naik on the notion that he belongs to the
Scheduled Tribe community, the competent authority on
considering such fraud and misrepresentation initiated Sou
Motu Revision and in doing that there has been no violation of
any statutory provision and limitation of 14 years is not
applicable to the facts and circumstances of this case.
6. We have heard the matter at length. Section 7-A(3)
of the Orissa Government Land Settlement Act reads as
follows:-
"The Collector may, of his own motion or
otherwise, call for and examine the
records of any proceeding in which any
authority, subordinate to it has passed
an order under this Act for the purpose
of satisfying himself that any such order
was not passed under a mistake of fact
or owing to a fraud or misrepresentation
or on account of any material irregularity
of procedure and may pass such order
thereon as he thinks fit.
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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.
Provided further than no proceeding
under this sub-section shall be initiated
after the expiry of fourteen years from
the date of the order".
7. In the instant case, the impugned order (Annexure-
8) nowhere reveals that the Additional District Magistrate,
Bhubaneswar if at all made any attempt to comply with the
mandate of the first provision of Section 7-A (3) of the Act by
calling for information from the office of the Sub. Registrar as
to whether the lease hold property or any portion thereof has
been alienated by the original lessee to any other party. Had
such report been called for, the Revisional Authority could
have ascertained that the petitioner had purchased the lease
hold land from the original lessee and should have issued
notice to the petitioner as well as to Ghana Naik the original
lessee who are the affected parties. But no such step appears
to have been taken by the Additional District Magistrate before
passing the impugned order.
8. In a similar case, this Court in the case of Rama
Chandra Pandav -v- State of Orissa and others in W.P.(C)
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No.14364 of 2006 held that since the petitioner had
purchased the lease hold land from the original lessee the
order of the Addl. District Magistrate is not sustainable as no
notice has been issued to the purchaser before cancellation of
lease.
9. Further we find that the original lease was granted
long back in the year 1973 whereas the Revisional Authority
initiated the Suo Motu Revision in 1998 i.e. after a long lapse
of 25 years. Under 2nd Proviso to Section 7-A(3) of the Orissa
Government Land Settlement Act no proceeding can be
initiated after expiry of fourteen years from the date of order
granting lease. While prescribing the period of limitation the
legislature while drafting the Orissa Government Land
Settlement Act in their wisdom prescribed the period of
limitation for initiation of a proceeding in examining the
correctness of the order passed under the act and also to find
out if any fraud or misrepresentation etc. was practised in
obtaining an order. Being cognizant of such contingencies the
period of limitation of 14 years has been prescribed. The
reasons assigned by the Additional District Magistrate,
Bhubaneswar about the fraudulent declaration made by
Ghana Naik that he belongs to the Scheduled Tribe
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community and fraud was practised to get the land settled in
his favour can be decided by the Revisional Authority as per
terms of the provision but within the period of limitation.
10. In view of the aforesaid provision of law when the
Suo Motu Lease Revision Case No.421 of 1998 which has been
initiated after a long lapse of 25 years and in view of the 2nd
proviso to Section 7-A(3) of the Orissa Government Land
Settlement Act,1962 such Suo Motu Lease Revision case is
without jurisdiction and resultantly, the impugned order at
Annexure-8 cannot be sustained and is set aside accordingly.
Accordingly, the writ petition stands disposed of.
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B.K.Misra, J.
L.Mohapatra, J.I agree.
........................... L.Mohapatra, J.
Orissa High Court, Cuttack The 10th April, 2012/RNS