Orissa High Court
Smt. Purnima Mohanty vs State Of Odisha & Ors. : Opposite Parties on 20 April, 2023
Author: Biswanath Rath
Bench: Biswanath Rath
ORISSA HIGH COURT : C U T T A C K
W.P.(C) No.22872 of 2022
An application under Article 226 & 227 of
the Constitution of India
Smt. Purnima Mohanty : Petitioner
-Versus-
State of Odisha & Ors. : Opposite Parties
For Petitioner : M/s. M.K. Mishra, Sr. Adv.
K.Ch. Kar,
G.M. Rath, S.S. Padhy
K.C. Kar,
A.S. Mohanty, S. Jena
S. Kar
For Opposite Parties : Mr. S. Mishra,
Addl. Standing Counsel
JUDGMENT
CORAM :
JUSTICE BISWANATH RATH Date of hearing & Judgment:: 20.04.2023 Per Biswanath Rath, J.
1. Factual background involved in this case is; the deceased husband of the Petitioner Major Shyam Sundar Mohanty served in the frontier region during the Indo-China War, 1962. For his commendable service he was eligible to be granted with a land in concession by the Home Department and as per the Home Department Resolution No.1123/Poll Page 1 of 11 // 2 // dated 14.05.1963 and in terms of the criteria fixed therein 05 Acres of land under Sabik Plot No.785 was leased out in favour of the husband of the Petitioner in mouza Sampur vide Waste Land Lease Case No.1168 of 1973. Factual aspect further reveals that after grant of such land the record of right was prepared in favour of the husband of the Petitioner and the record of rights is available at Annexure-1. It is claimed that during survival of her husband remaining in occupation of the land a suo motu revision case U/s.7-A(3) of the OGLS Act was initiated by the ADM, Bhubaneswar vide Lease Revision Case No.162 of 1983, which revision ultimately came to be dropped by the order of the ADM dated 24.06.1983 vide Annexure-3. Pleading further goes to show that the husband of the Petitioner was remaining in peaceful possession of the land and for his legal necessity a portion of the said land was sold to various persons by way of registered sale deed involving delivery of possession in respect of those parcel of land to the respective vendees. In the above scenario husband of Petitioner continued to remain in possession of the balance unsold area and in the meantime the husband of the Petitioner passed away on 9.11.2004. It is while the matter stood thus the Asst. Settlement Officer erroneously initiated a suo motu objection case U/s.21(2) and directed the land to be recorded in the name of the G.A. Department, Government of Odisha. Petitioner challenged such Page 2 of 11 // 3 // order before the Addl. Sub-Collector, Bhubaneswar and in the meantime the Asst. Settlement Officer also passed similar order in respect of other vendees.
2. Taking this Court to the disposal orders of this Court in number of Writ Petitions vide Annexure-5 (series), though at the instance of the vendees clearly involving sale of portion of land from out of five acres and remain in favour of husband of the Petitioner, Mr. Mishra, learned Senior Advocate taking this Court to the direction part of the judgment therein attempted to satisfy the Court that all those cases having been allowed in favour of the vendees, there has been appropriate correction of the record of rights in favour of the vendees. Coming back to the case at hand involving the balance land in favour of the husband of the Petitioner, Mr. Mishra, learned Senior Advocate submitted that for the death of the husband of the Petitioner in the meantime and in spite of production of all such orders there has been again erroneous observation by the Settlement Authority. Finally in appeal vide Annexure-9 on 21.04.2022 the Additional Sub-Collector, Bhubaneswar in charge of settlement rejected the appeal of the Petitioner on the ground that the Petitioner has failed to produce the certified copies of order relating to WLL Case No.1168 of 1973. This appeal order was again challenged before this Court in W.P.(C) No.35816 of 2021 vide Annexure-8. This Page 3 of 11 // 4 // Writ Petition succeeded, but however, with an order of remand. It appears, pursuant to the order of remand, the appellate authority through the impugned order came to reject the claim of the Petitioner.
3. Taking this Court to the number of judgments through Annexure-5 (series) in similar situation and also the judgment of this Court in W.P.(C) No.35816 of 2021 Mr. Mishra, learned Senior Advocate taking reference to the observation and direction part therein attempted to submit that this Court in disposal of the proceeding vide Annexure-8 almost gave its findings in favour of the Petitioner. It is taking this Court to the remand direction Mr. Mishra, learned Senior Advocate contended that even though there is remand order, however, the only course left with the appellate authority to go through the observation of this Court in paragraph no.6 and the first part of the paragraph no.7 and thereafter should have directed for appropriate correction in the record of rights instead of again entering into the merit of the case. It is, in this view of the matter and for the support of all the above writ petitions to the case of the Petitioner, Mr. Mishra, learned Senior Advocate claims for interference in the impugned order at Annexure-9 and passing appropriate order. For there is clear pleading along with filing of all the previous Writ Court judgment Mr. Mishra, learned Senior Advocate has no hesitation in advancing his submission on the merits of the case and further on Page 4 of 11 // 5 // reiteration submitted that the husband of the Petitioner was a Major in the Indian Army and that for his commendable service towards the Nation the husband of the Petitioner was already in entitlement to the 05 acres of land under Sabik Plot No.785, Mouza-Sampur vide WLL Case No.1168 of 1973 and the public Officer in such scenario ought to have been moved carefully. Mr. Mishra, learned Senior Advocate thus alleged that the Petitioner being a war widow, is unnecessarily harassed and forced to avail Writ Petition after Writ Petition. Mr. Mishra, learned Senior Advocate taking this Court to the judgment/orders vide Annexure-5 (series) submitted that the authority has no scope of objection at all and for the direction part therein there is no occasion for the learned State Counsel to challenge the direction therein being implemented in the meantime and the same remains unchallenged.
4. There appears, there is no scope of objection by the learned State Counsel for the admitted situation through at least six writ petitions and dismissal of one proceeding under the provisions of the OGLS Act.
5. Even in spite of above, in his opposition Mr. Mishra, learned State Counsel taking this Court to the development through the Writ Petition at the instance of the Petitioner herein vide W.P.(C) No.35816 of 2021 and reading through the direction part of the order at Annexure-8 attempted to contend that for there is remand order directing the competent authority to Page 5 of 11 // 6 // give lawful disposal to the proceeding, the Addl. Sub-Collector being the appellate authority had scope to decide the matter on merits.
It is, in view of such direction by the Single Bench Mr. Mishra, learned State Counsel attempted to justify the impugned order at Annexure-9 and prayed for dismissal of the Writ Petition.
6. Considering the rival contentions of the parties, this Court finds, the undisputed fact remains here is; the husband of the Petitioner by way of concession by the Home Department, Government of Odisha got an area of 05 acres in Sabik Plot No.785 vide WLL Case No.1168 of 1973. Further there is also strong material to support the claim of the Petitioner for the preparation of the record of rights in favour of her husband involving the aforesaid land vide Annexure-2. There also appears, in the meantime the proceeding U/s.7-A(3) of the OGLS Act undertaken by the ADM, Bhubaneswar has also come to be finally dropped. Keeping in view the factual background of the matter and for the involvement of sale of some portion of land by the husband of the Petitioner in favour of five vendees, this Court through the order/judgments at Annexure-5(series) finds, for there is appearance of difficulties in the preparation of the record of rights involving the parcel of land sold in favour of the vendees by the husband of the Petitioner i.e. the real allottee, all the writ petitions Page 6 of 11 // 7 // involving the contest of State authorities came to be disposed of with the following observation:
<It appears that the State Government itself has not initiated any objection case, but the Assistant Settlement Officer initiated Suo Motu Objection case and that nothing was produced on behalf of the State Government to show that the lease records in which lease was granted in favour of Major Shyam Sundar Mohanty was verified and it was found that the lease was granted illegally and irregularly. Therefore, there was no reason not to make draft R.O.R. final in the name of the petitioner. Accordingly, I set aside the impugned order and direct that unless there is any other impediment, the disputed property be recorded in the name of the petitioner.=
7. There is no pleading coming forth; as to whether this order has been challenged any further or not? however, for the subsequent preparation of record of rights involving the land involving five cases at Annexure-5 (series), this Court finds, the direction in writ petitions disposed of vide Annexure-5 (series) have been subsequently worked out.
8. Coming to the case at hand this Court finds, the case presently involves balance portion of the land arising out of whole allotment of five acres of land vide WLL Case No.1168 of 1973 and looking to the record of rights prepared vide Annexure-2 as discussed hereinabove, it appears, there has been sale of some portion of land in five installments in favour of five vendees by the original lessee, which sale have already been approved and the action of the State in the same regard have been interfered with positive direction therein in all these five cases to the ASO to correct the record of rights in favour of the Petitioners involved therein. Page 7 of 11
// 8 // For the involvement of the balance portion of the land there cannot be a different view than the decision already in Annexure-5(series). This apart, for the Petitioner already undertaking an exercise through the Annexure-8 vide W.P.(C) No.35816 of 2021 involving competent authority giving a discriminatory treatment, this Court again finds, a Co-ordinate Bench of this Court in reference to the WLL Case No.1168 of 1973 in paragraph no.6 and first part of the paragraph no.7 passed the following order:-
<6. Taking into consideration the submissions of learned counsel for the parties, this Court is of the considered view that when the Petitioner has produced the R.O.R. published in the name of late husband of the Petitioner as well as the order of the revisional court in which the lease granted in favour of the husband of the Petitioner was held to be valid and genuine, there might be no necessity to verify the order sheet of W.L.L. Case No.1168 of 1973. It is the trite law that the Settlement Authority cannot sit over the lease granted either under the OGLS Act or the Grants Act by the competent authority. In the instance case, the lease has already been held to be valid and genuine by the Additional District Magistrate, Bhubaneswar in Lease Case No.162 of 1983 initiated under Section 7-A(3) of the OGLS Act. It is further appears that out of the land in question, some portions have been sold in favour of the different persons and they have moved this Court in different writ petitions. Directions have already been issued to record the land in their favour, if there is no legal impediment. It is submitted by Mr. Rath, learned counsel for the Petitioner that pursuant to the direction of this Court, land purchased by different purchasers, have already been recorded in their name.
7. In view of the discussions made above, this Court feels that there is no impediment on the part of the Settlement Authority to record the rest of the land, if any, in favour of the legal heirs of the recorded tenant, namely late Major Shyamsundar Mohanty.=
9. It appears, through the above order, the Co-ordinate Bench has come to clearly observe that there is no impediment on the part of the Settlement Authority to record the rest part of the land in favour of the Page 8 of 11 // 9 // legal heirs of the recorded tenant namely late Major Shyamsundar Mohanty. In the process, this Court observes, the balance direction therein should have been construed to be a direction only in verification of the records placed by the Petitioner and there was absolutely no scope for going into the merits of the case again. In no case the Public Authority could have ignored the development in almost similar situation involving the portion of land already sold by the husband of the Petitioner involving very same WLL Case No.1168 of 1973. It is, at this stage of the matter, keeping in view the rival contentions of the parties involving the impugned order at Annexure-9, this Court finds, the appellate authority not only ignored the observation and direction of the Single Bench, but there is also clear ignorance of the judgment involving five writ petitions indicated herein arising out of same WLL case. It is, at this stage of the matter, this Court observes, since the OGLS case and five Writ Petitions have already dealt with WLL Case No.1168 of 1973 and the authority has come to observe in declaring the right title and interest in favour of the lease holder Major Shyam Sundar Mohanty, there was no occasion on the part of the appellate authority to ask for production of WLL Case No.1168 of 1973. There was no occasion to again getting into records involving WLL Case No.1168 of 1973. Further since the land involved here was granted to an Ex-Major for his gantry service to the Nation, Page 9 of 11 // 10 // there should have been exercise of extra care and caution by the public authority in such matters. It is, on the whole background of the matter, this Court finds, there is excess exercise of power by the authority below involving the direction of a Co-ordinate Bench of this Court in W.P.(C) No.35816 of 2021. There is also decision contrary to the direction given in disposal of Writ Petitions vide W.P.(C) No.2584 of 2015, W.P.(C) No.2585 of 2015, W.P.(C) No.2586 of 2015, W.P.(C) No.2207 of 2015, W.P.(C) No.2205 of 2015 & W.P.(C) No.2209 of 2015.
10. In the circumstance, this Court finds, the impugned order at Annexure-9 remains unsustainable in the eye of law. For there is sufficient material to satisfy the claim of the Petitioner, this Court while allowing the Appeal Case No.60 of 2015 also directs the Asst. Settlement Officer, Bhubaneswar-Opposite Party No.3 to bring corrections in the record of rights in respect of the balance land as disclosed in the proceeding pending before it also by treating it to be in the ownership of the Petitioner being the wife of the deceased Major Shyam Sundar Mohanty. Considering that there is already unnecessary harassment to the Petitioner-an widow of a brave son of the soil in receipt of land in token of his bravery, the Opposite Party No.1 is directed to oversee the working out of the direction contained herein. New record of rights be brought within a period of one month from the date of communication of a copy Page 10 of 11 // 11 // of this judgment with handing over of a copy of the corrected record of right to the Petitioner at her home within seven days thereafter.
11. Writ Petition succeeds. However, there is no order as to the costs.
12. A free copy of this order be also handed over to the learned State Counsel for appropriate instruction.
(Biswanath Rath) Judge Orissa High Court, Cuttack.
The 20th day of April, 2023// Ayaskanta Jena, Senior Stenographer Page 11 of 11