Orissa High Court
Bhajamana Behera vs State Of Odisha on 4 August, 2023
Author: B.R. Sarangi
Bench: B.R. Sarangi
ORISSA HIGH COURT : CUTTACK
W.P.(C) No. 20875 OF 2022
In the matter of an application under Articles 226 and 227
of the Constitution of India, 1950.
---------------
Bhajamana Behera son of late Bhagirathi Behera residing at Plot No.205, Bapuji Nagar Bhubaneswar, Khordha District ... Petitioner
-VERSUS-
1. State of Odisha represented by Principal Secretary to Government Department of Revenue and Disaster Management Odisha Secretariat Bhubaneswar, Khordha
2. Additional District Magistrate, Bhubaneswar
3. Tahasildar, Bhubaneswar
4. Additional Tahasildar, Bhubaneswar
5. Gurei Muduli Daughter of Late Bauri Muduli resident of Village: Nuagaon, Malipada P.O. Chandaka P.S., Bhubaneswar Khordha District
6. Jitei Muduli Daughter of Late Bauri Muduli Wife of Late Ramachandra Muduli W.P.(C) No.20875 of 2022 Page 1 of 34 resident of Village: Nuagaon, Malipada P.O. Chandaka P.S., Bhubaneswar Khordha District
7. Golapi Behera Wife of Bhajamana Behera residing at Plot No.205, Bapuji Nagar Bhubaneswar Khordha District ... Opposite Parties Counsel appeared for the parties:
For the Petitioner : M/s. Bijaya Kumar Behera and Daucharan Jagat, Advocates For the Opposite Parties : Mr. Lalatendu Samantaray, Additional Government Advocate for the opposite party Nos.1 to 4 P R E S E N T:
THE HONOURABLE DR. JUSTICE B.R. SARANGI AND THE HONOURABLE MR. JUSTICE MURAHARI SRI RAMAN Date of Hearing: 04.08.2023 :: Date of Judgment: 04.08.2023 MURAHARI SRI RAMAN, J.--
THE CHALLENGE:
The petitioner, transferee of leasehold property of Late Bauri Muduli @ Bauribandhu Muduli, assails Order dated 30.11.1987, copy of which is at Annexure-4, passed by the Additional District Magistrate, Bhubaneswar in Revision Case No.417 of 1983 (arising out of Waste Land Lease Case No.1466 of 1973) in exercise of powers conferred under Section 7A(3) of the Odisha Government Land Settlement Act, 1962, (for W.P.(C) No.20875 of 2022 Page 2 of 34 brevity referred to as "OGLS Act") cancelling the lease granted by the Tahasildar, Bhubaneswar as also consequential Order dated 30.06.1990 (Annexure-5) passed by said Tahasildar with a direction to the Record Keeper to correct Record-of-Rights, with the following prayer(s):
"Under the aforesaid circumstances, more fully narrated hereinabove the petitioner most humbly prays that this Hon'ble Court may graciously be pleased to admit this writ application, issue rule NISI calling upon the opposite parties to show cause:
A. As to why a writ of certiorari or any other appropriate writ/writs shall not be issued in quashing the impugned order of cancellation of lease under Section 7A(3) of the OGLS Act, 1962 dated 30.11.1987 under Annexure-4 and the Order dated 30.06.1990 passed by the opposite party No.3 under Annexure-5, with a direction to the opposite party No.3 to mutate the purchased land in favour of the petitioner in accepting rent revenue as per Registered Sale Deed/allotment Order vide Annexure-3; and B. If the opposite parties fail to show cause or show insufficient cause, to make the said rule absolute;
C. And pass such other order/orders and to issue such other writ/writs which would afford complete relief to the petitioner ***"
CASE OF THE PETITIONER AS OUTLINED IN THE WRIT PETITION:
2. Facts as adumbrated in the writ petition reveal that Bauri @ Bauribandhu Muduli, the father of the opposite W.P.(C) No.20875 of 2022 Page 3 of 34 party Nos. 5 and 6, a landless person, having applied before the Tahasildar, Bhubaneswar for a lease of Government land, Plot No.18 in Khata No. 326 measuring an area Ac. 0.200 decimals in Mouza Nuagaon under Chandaka P.S., Bhubaneswar was granted by said authority vide Order dated 20.02.1974 passed in Waste Land Lease Case No. 1466 of 1973.
2.1. The original lessee-Bauribandhu Muduli has mutated the land in the year 1974 and Record-of-Right was issued with status of land "Sthitiban" and rent schedule has also been made by the Tahasildar, Bhubaneswar vide Registrar No. 1 under Khata No. 276/64 with Plot No. 18/970 having an Area of Ac.0.200 decimals.
2.2. The land in question was issued no objection certificate by the Bhubaneswar Development Authority for transfer of the land by way of sale in respect of Khata No. 276/64 and Plot No. 18/970 having an Area of Ac.0.200 decimals in favour of the original lessee-Bauribandhu Muduli. Then the lessee-Bauribandhu Muduli executed a General Power of Attorney in favour of Golapi Behera, opposite party No. 7 bearing GPA Document No. 5380 of 2009 dated 30.06.2009. The original lessee after obtaining necessary permission under Section 22 of the Odisha Land Reforms Act, 1960, transferred the entire leasehold land through his General Power of Attorney Holder-opposite party No. 7, who happens to be wife of the instant petitioner, and delivered possession thereof W.P.(C) No.20875 of 2022 Page 4 of 34 to the petitioner in the year 2010, after completion of 12 years of possession vide R.S.D. No. 13175/2010 dated 03.02.2010.
2.3. After purchasing the land, while trying for mutation of the land, the petitioner could come to know about cancellation of aforesaid lease granted in favour of Bauribandhu Muduli. Upon enquiry it could come to fore that the learned Additional District Magistrate initiated proceeding for revision suo motu invoking powers under Section 7A(3) of the OGLS Act and passed Order dated 30.11.1987 by setting aside the Order dated 20.02.1974 passed by the Tahasildar, Bhubaneswar.
2.4. The petitioner, therefore, asserts that though period of 14 years limitation has been lapsed from the date of Order dated 20.02.1974 of Tahasildar, Bhubaneswar, the Additional District Magistrate had had no jurisdiction to pass Order dated 30.11.1987 under Section 7A(3) of OGLS Act, 1962. Nonetheless, the Tahasildar vide Order dated 30.06.1990 carried out the directions contained in said Order dated 30.11.1987 passed by the Additional District Magistrate and directed the Record Keeper to correct the Record-of-Right. The Revenue Inspector was also directed to take over possession of the land by beat of drums.
2.5. As the proper person/affected party was not put to notice, entire process of cancellation of land by the W.P.(C) No.20875 of 2022 Page 5 of 34 Additional District Magistrate and resumption thereof by the Tahasildar is vitiated for want of adherence to the principles of natural justice. Hence, this writ petition.
RIVAL CONTENTIONS BY WAY OF COUNTER-AFFIDAVIT, REJOINDER- AFFIDAIVT, ADDITIONAL AFFIDAVIT AND FURTHER AFFIDAVIT:
3. In opposition, the opposite party No.3-Tahasildar, Bhubaneswar contended that the writ petition being filed more than 30 years after the date of Order dated 30.11.1987 passed by the Additional District Magistrate, no interference is warranted.
3.1. Being convinced, the Additional District Magistrate took suo motu cognizance of the fact that there were "legal infirmity" and "procedural irregularity" in granting lease of land vide Waste Land Lease Case No.1466 of 1973, which led to institution of Revision Case No.417 of 1983 by virtue of powers conferred under Section 7A(3) of the OGLS Act.
3.2. Due procedure being followed, the Additional District Magistrate directed for cancellation of lease granted by the Tahasildar and accordingly, the latter authority took steps to effect correction in the Record-of-Right by recording the subject-land in the Government Khata on 07.09.1991. It is affirmed by Pradeep Kumar Sahoo, Tahasildar, Bhubaneswar, the opposite party No.3, by filing Counter-affidavit sworn to on 25.11.2022 that "after that there is no further settlement in that village W.P.(C) No.20875 of 2022 Page 6 of 34 till yet. When this lease was not subsisting, the petitioner has purchased this land in 2010, per se it is not lawful and void". It is also stated that since the vendor-Bauribandhu Muduli had no title over the land, the sale claimed to have been effected in 2010 in favour of the present petitioner through the Power of Attorney, the opposite party No.7, does not bear any fruit on the principle "the purchaser cannot claim better right over the property than his vendor". Therefore, the opposite party No.3 insists for dismissal of the writ application.
3.3. Objection-affidavit of Bhajamana Behera-petitioner has come to be filed on 03.12.2022 stating therein that in the revision proceeding, the sole opposite party-
Bauribandhu Muduli, was denied opportunity of being heard in the matter of cancellation of lease. Neither the Additional District Magistrate in the revision nor the Tahasildar while carrying out the correction of Record- of-Right heard the original lessee. Further asserting the fact that Bauribandhu Muduli left for heavenly abode on 26.06.2016 leaving behind two daughters, namely Gurei and Jitei, the opposite party Nos. 5 and 6 respectively, and that he had no son, the notice to show cause (Annexure-A/3 to the Counter-affidavit filed by the opposite party No.3) issued in connection with revision case by the Additional District Magistrate, vide Order dated 05.11.1987, stated to have been served on one "Prafulla Kumar Muduli", a stranger, could not be W.P.(C) No.20875 of 2022 Page 7 of 34 treated as sufficient and valid service. It is reiterated and reaffirmed by the petitioner that by virtue of a registered sale deed vide No.1317, dated 03.02.2010 (Annexure-3 to the writ petition), delivery of possession of land in question was taken over by him and he is in peaceful possession of said property continuously and pays "rent from time to time without any interruption either by the State Government or by any outsiders". Therefore, it is submitted by the petitioner that opportunity of hearing to the original lessee has not been afforded, which vitiates the suo motu revisional proceeding initiated by the Additional District Magistrate.
3.4. Pursuant to direction of this Court in the present proceeding vide Order dated 23.08.2022, the petitioner filed Additional-Affidavit dated 12.09.2022, paragraph 3 whereof reads thus:
"That this Hon'ble Court vide Order dated 23.08.2022 pleased to direct the petitioner to file an affidavit regarding the date of death of Bauri Muduli. As per the instruction received from the petitioner that the original lessee, i.e., Bauri Muduli was died on dated 26.06.2016, leaving behind his two daughters namely Gurei Muduli and Jitei Muduli, the opposite party Nos.5 and 6 in this writ application. Hence this affidavit."
3.5. Pursuant to further direction vide Order dated 27.09.2022, the petitioner filed "Further Additional Affidavit" dated 19.10.2022, paragraph 4 whereof reads as follows:
W.P.(C) No.20875 of 2022 Page 8 of 34"That this Hon'ble Court vide Order dated 27.09.2022 further been pleased to direct the petitioner to file an affidavit about the son of the late Bauri Muduli. There was no any son of the original lessee, i.e., Bauri Muduli, he was died on dated 26.06.2016, leaving behind his two daughters namely Gurei Muduli and Jitei Muduli, the opposite party Nos.5 and 6 in this writ application. Therefore, there is no question of receiving of the notice in suo motu revision case under Section 7A(3) of the OGLS Act, 1962 against the late father of the opposite party Nos.5 and 6 the original lease Bauribandhu Muduli as well as to know about the order passed by the learned ADM under Annexure-5. Hence this Affidavit."
3.6. To the aforestated facts as placed by the petitioner by way of affidavit pursuant to direction of this Court, no objection is forthcoming from the side of the opposite party Nos.1 to 3. Hence, it is urged by the petitioner that the Order dated 30.11.1987 of the Additional District Magistrate, Bhubaneswar being vitiated for want of service of notice on proper person, the consequential Order dated 30.06.1990 passed by the Tahasildar, Bhubaneswar cannot survive. As such the writ petition is liable to be allowed with a mandamus to correct the Record-of-Right in favour of the petitioner.
ARGUMENTS AND ARGUMENTS IN OPPOSITION:
4. Sri Bijaya Kumar Behera, learned Advocate appearing for the petitioner placing reliance on the decisions of this Court rendered in the cases of Sandhya Rout Vrs. State of Odisha, 2005 (II) OLR 77 = 101 (2006) CLT 45, Krishna W.P.(C) No.20875 of 2022 Page 9 of 34 Chandra Panda Vrs. State of Odisha, 101 (2006) CLT 173 and Pradip Kumar Swain Vrs. State of Odisha, W.P.(C) No.13258 of 2006, vide Judgment dated 14.11.2006 submitted that the affected parties ought to be heard in the proceedings undertaken by the authorities vested with the power under the OGLS Act before cancellation of lease and resumption of land; as such, in the present case, the Tahasildar has illegally resumed the land pursuant to direction contained in the Order dated 30.11.1987 of the Additional District Magistrate in Revision Case No.417 of 1983 pertaining to Waste Land Lease Case No.1466 of 1973.
4.1. Sri Lalatendu Samantaray, learned Additional Government Advocate appearing for the opposite party Nos.1 to 3, drawing attention of this Court to the Counter-affidavit filed by the opposite party No.3- Tahasildar, Bhubaneswar submitted that at Annexure- A/3 entire order-sheet of the Revision Case No.417 of 1983 has been enclosed to show that notice was directed to be issued in the name of Bauribandhu Muduli by the Additional District Magistrate fixing date to 27.11.1987 vide Order dated 05.11.1987 and on the date so fixed, as none appeared for the opposite party (Bauribandhu Muduli) in the revision case, final Order has been passed on 30.11.1987. Referring to the copy of Notice bearing No.5989, dated 12.11.1987 and copy of acknowledgment dated 18.11.1987 thereof, he vehemently opposed to W.P.(C) No.20875 of 2022 Page 10 of 34 accept the contention of Sri Bijaya Kumar Behera, the learned Advocate for the petitioner that there was "no notice" to the original lessee. At this distance of time, especially when the Tahasildar, Bhubaneswar has given effect to the Order and Direction of the Additional District Magistrate in Revision Case No.417 of 1983, the action of the authorities cannot be held to be perverse. No infirmity in service of such notice could be pointed out by the counsel for the petitioner under the aforesaid premise.
4.2. At this stage, Sri Bijaya Kumar Behera, learned Advocate for the petitioner has taken this Court to the averment made in paragraph 10 of the Counter-affidavit filed by the opposite party No.3-Tahasildar. In the said paragraph it has been stated that "the Revenue-Village Nuagaon comes under Bhubaneswar Development Authority". Government lands situated in the area of Bhubaneswar Development Authority have been declared as "freezing zone" notified by the Government of Odisha in Revenue and Disaster Management Notification No.1879, dated 05.08.2021. In the said notification, it has been specified that "no Government land in this Village shall be leased out/alienated for agricultural purpose". Be that be, the learned counsel for the petitioner went on to argue that copy of "Jamabandi Register or Continuous Khatian" vide Annexure-B/3 as enclosed to the Counter-affidavit W.P.(C) No.20875 of 2022 Page 11 of 34 clearly reveals that the land in dispute has been recorded with the status "Sthitiban" and the petitioner, subsequent purchaser from the original lessee, is in possession of said land. Therefore, without recording plausible reason for initiating proceeding for revision, the learned Additional District Magistrate fell in grave error in passing Order dated 30.11.1987.
4.3. It is next contended by Sri Bijaya Kumar Behera that the exercise of power for revision by the Additional District Magistrate was incompetent inasmuch as the same is hit by second proviso to Section 7A(3) of the OGLS Act. Sri Lalatendu Samantaray, Additional Government Advocate submitted that Order dated 05.11.1987 passed in the Revision Case No.417 of 1983 shows the date of initiation of proceeding, whereas the petitioner has candidly admitted in the Objection-affidavit filed on 03.12.2022 that the lease was granted by Order dated 20.02.1974 of the Tahasildar, Bhubaneswar. Thus, the contention of "barred by limitation" does not warrant consideration by this Court.
STATUTORY PROVISIONS:
5. Section 7A(3) as it stood at the relevant point of time is reproduced herein below:
"1[7. Appeal.--
1 Substituted for Section 7 of the principal Act, by virtue of the Odisha Government Land Settlement (Amendment and Validation) Act, 1974 (Odisha Act 5 of 1974); source: XLI (1975) CLT 17.W.P.(C) No.20875 of 2022 Page 12 of 34
*** 7A. Revision.--
(1) *** (2) *** (3) 2[The Collector may of his own motion or otherwise call for and examine the records of any proceedings 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 fraud or misrepresentation or on account of any material irregularity of procedure and may pass such order thereon as it 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:
3[Provided further that no proceeding under this sub-
section shall be initiated after expiry of fourteen years from the date of the order.]"
6. It is noticed that sub-section (3) of Section 7A has been substituted as follows by virtue of the Odisha 2 Substituted for sub-section (3) excluding provisos thereto by virtue of the Odisha Government Land Settlement (Amendment) Act, 1981 (Odisha Act 18 of 1981); vide Odisha Gazette Extraordinary dated 08.05.1981. Prior to substitution said provision stood thus:
[The Board of Revenue may of its own motion or otherwise call for and examine the records of any proceedings in which any authority subordinate to it has passed an order under this Act for the purpose of satisfying itself that any such order was not passed under a mistake of fact or owing to fraud or misrepresentation a[or on account of any material irregularity in procedure], and may pass such order thereon as it thinks fit:] a. Inserted and deemed always to have been inserted by virtue of the Odisha Government Land Settlement (Amendment) Act, 1976 (Odisha Act 38 of 1976); source: XLII (1976) CLT 143. 3 Substituted and deemed always to have been substituted for "Provided further that no order shall be revised under this sub-section after expiry of one year from the date of order." by virtue of the Odisha Government Land Settlement (Amendment) Act, 1976 (Odisha Act 38 of 1976); source: XLII (1976) CLT 143.W.P.(C) No.20875 of 2022 Page 13 of 34
Government Land Settlement (Amendment) Act, 2013 (Odisha Act 26 of 2013):
"(3) Notwithstanding anything contained in this Act or any other law, the Collector may, on his own motion or otherwise, call for and examine the records of any proceedings, 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 fact or owing to fraud or misrepresentation or on account of any material irregularity of 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."
ANALYSIS AND DISCUSSIONS:
7. Perusal of material placed on record indicates that the Tahasildar has granted lease in favour of Bauribandhu Muduli on 20.02.1974 and vide Order dated 05.11.1987, the Additional District Magistrate, Bhubaneswar initiated proceeding under Section 7A(3) by stating thus:
"05.11.1987 An examination of the W.L. Lease Case record No.1466 of 1973 of Bhubaneswar Tahasil shows that Government land has been settled by the Tahasildar under a mistake of fact/owing to a fraud or misrepresentation/on account of material irregularity in procedure.W.P.(C) No.20875 of 2022 Page 14 of 34
Issue notice to person affected to show cause by 27.11.1987 as to why the settlement shall not be revised under Section 7A(3) of the Odisha Government Land Settlement Act, 1962 (Act 33 of 1962)."
7.1. Bare reading of second proviso to sub-section (3) of Section 7A makes it clear that the proceeding for suo motu revision could be initiated within 14 years from the date of Order passed by the Tahasildar. In the instant case, as the Additional District Magistrate initiated proceeding for suo motu revision on 05.11.1987, i.e., within 14 years from the Order dated 20.02.1974 of the Tahasildar, there is no infirmity in law to invoke provisions of Section 7A(3) of the OGLS Act.
8. Coming to the next point, i.e., opportunity of hearing, it is observed, on scrutiny of acknowledgement receipt showing notice bearing No.5989, dated 17.11.1987 fixing date of appearance and production of documents on 27.11.1987 before the Additional District Magistrate, Bhubaneswar in connection with Revision Case No.417 of 1983, that one "Prafulla Kumar Muduli" was served with the copy of such notice by Pawan Kumar Pradhan on 18.11.1987. In "Further Additional Affidavit" dated 19.10.2022 filed by the petitioner pursuant to direction of this Court vide Order dated 27.09.2022 it is indicated that original lessee-Bauribandhu Muduli died on 26.06.2016 and he had no male issue. Such fact remained undisputed by the opposite party Nos.1 to 3. The record does not reveal any explanation as to why the W.P.(C) No.20875 of 2022 Page 15 of 34 notice was not served on Bauribandhu Muduli, but it was served on a stranger to the family.
8.1. It may be worthwhile to refer to Order V, Rule 15 of the Code of Civil Procedure, 1908:
"15. Where service may be on an adult member of defendant's family.--
Where in a suit the defendant is absent from his residence at the time when the service of summons is sought to be effected on his at his residence and there is no likelihood of his being found at the residence within a reasonable time and he has no agent empowered to accept service of the summons on his behalf, service may be made on any adult member of the family, whether male or female, who is residing with him.
Explanation.--
A servant is not a member of the family within the meaning of this rule."
8.2. It is not the case of the opposite party Nos.1 to 3 that "Prafulla Kumar Muduli" was adult member of the family who resided with Bauribandhu Muduli. No evidence is placed on record with regard to the fact that Bauribandhu Muduli was absent and there was no likelihood of being found at the residence within a reasonable time. None of the ingredient of Order V, Rule 15 of Code of Civil Procedure is satisfied in the present case.
W.P.(C) No.20875 of 2022 Page 16 of 348.3. Apt here to refer to Rule 14 of OGLS Rules, 1983 whereunder it has been stipulated as follows:
"Disposal of appeals and revisions under the Act shall be regulated by the following procedure, namely--
***
(e) a notice of the appeal or revision petition and date of its hearing shall be served on the respondent, if any;
***"
8.4. First proviso to sub-section (3) of Section 7A of the OGLS Act mandates 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". Said proviso has been negatively worded.
8.5. While examining the scope of expression "shall not register transfer of shares" employed in Section 108 of the Companies Act, 1956, the Hon'ble Supreme Court of India in the case of Mannalal Khetan Vrs. Kedar Nath Khetan, (1977) 2 SCC 424, made the following observation:
"In Raza Buland Sugar Co. Ltd. Vrs. Municipal Board Rampur, (1965) 1 SCR 970 this Court referred to various tests for finding out whether a provision is mandatory or directory. The purpose for which the provision has been made, its nature, the intention of the legislature in making the provision, the general inconvenience or injustice which may result to the person from reading the provision one way or the other, the relation of the particular provision to W.P.(C) No.20875 of 2022 Page 17 of 34 other provisions dealing with the same subject and the language of the provision are all to be considered. Prohibition and negative words can rarely be directory. It has been aptly stated that there is one way to obey the command and that is completely to refrain from doing the forbidden act. Therefore, negative, prohibitory and exclusive words are indicative of the legislative intent when the statute is mandatory. (See Maxwell on Interpretation of Statutes 11th Ed. p. 362 seq.; Crawford Statutory Construction, Interpretation of Laws p. 523 and Seth Bikhmj Jaipuria Vrs. Union of lndia, (1962) 2 SCR
880."
8.6. This Court while delivering Judgment on 31.07.2023 in the case of State of Odisha Vrs. Khirodini Rout, W.P.(C) No. 22976 of 2017, recorded the purport of "shall" by referring to various decisions to the following effect:
"In State of U.P. Vrs. Manbodhan Lal Srivastava, AIR 1957 SC 912, the apex Court held that the use of word "shall" is a presumption that the particular provision is imperative. As such, instances have been taken on Rule 57(2) of the Schedule-II to the Income Tax Act, 1961, which provides that the full amount of purchase of money payable "shall" be paid by the purchaser to the Tax Recovery Officer on or before the fifteenth day from the date of sale of property. Thereby, by using the word "shall", the apex Court held that it is mandatory on the part of the purchaser to pay the full amount to the Tax Recovery Officer. As such, following this principles, the apex Court time and again held similar view in various subsequent judgments and ultimately got approval in the case of Pesara Pushpamala Reddy Vrs. G. Veera Swamy, (2011) 4 SCC 306.W.P.(C) No.20875 of 2022 Page 18 of 34
In C.N. Paramsivam and Anr. Vrs. Sunrise Plaza and others, (2013) 9 SCC 460, the apex Court relying upon the word "shall" as well as the earlier decision of the Court on pari materia provision in Order XXI of the CPC, held that making of the deposit by the intending purchaser is mandatory.
In Sainik Motors Vrs. State of Rajasthan, AIR 1961 SC 1480, Hon'ble Justice Hidayatullah observed that the word "shall" is ordinarily mandatory but it is sometimes not so interpreted if the context or the intention otherwise demands and points out.
In State of U.P. Vrs. Babu Ram, AIR 1961 SC 751, Hon'ble Justice Subarao, observed that when a statute uses the word "shall", prima facie it is mandatory, but the court may ascertain the real intention of the Legislature by carefully attending to the whole scope of the statute.
In Vijay Dhanuka Vrs. Najima Mamtaj, (2014) 14 SCC 638, the apex Court, while interpreting Section 202 of the Cr.P.C, which provides that the Magistrate "shall" in a case where the accused is residing at a place beyond the area in which he exercises his jurisdiction, postpone the issue of process against the accused, and either inquire into the case himself or direct an investigation to be made by a police officer or by such other person as he thinks fit, for the purpose of deciding whether or not there is sufficient ground for proceeding, held that the word "shall" is ordinarily mandatory but sometimes, taking into account the context or the intention, it can be held to be directory."
8.7. In State Tax Officer Vrs. Rainbow Paper Limited, (2022) 13 SCR 808, it has been held as follows:
W.P.(C) No.20875 of 2022 Page 19 of 34"50. Ordinarily, the use of the word "shall" connotes a mandate/binding direction, while use of the expression "may" connotes discretion. If statute says, a person may do a thing, he may also not do that thing. Even if Section 31(2) is construed to confer discretionary power on the Adjudicating Authority to reject a Resolution Plan, it has to be kept in mind that discretionary power cannot be exercised arbitrarily, whimsically or without proper application of mind to the facts and circumstances which require discretion to be exercised one way or the other.
51. If the established facts and circumstances require discretion to be exercised in a particular way, discretion has to be exercised in that way. If a Resolution Plan is ex facie not in conformity with law and/or the provisions of IBC and/or the Rules and Regulations framed thereunder, the Resolution would have to be rejected. It is also a well settled principle of interpretation that the expression "may", if circumstances so demand can be construed as "Shall"."
8.8. It is thus made clear from the above that if a statute provides for a thing to be done in a particular manner, then it has to be done in that manner and in no other manner and following other course is not permissible-- when the statute requires doing certain thing in certain way, the thing must be done in that way or not at all. Other methods or modes of performance are impliedly and necessarily forbidden. Reference may be had to Balaji Tobacco Store Vrs. Sales Tax Officer, 2015 (I) ILR- CUT 1079.
W.P.(C) No.20875 of 2022 Page 20 of 348.9. In consideration of the documents enclosed to the writ petition as also affidavits, it can safely be said that when aforesaid provisions of the OGLS Act and rules framed thereunder read with provisions of Order V of the Code of Civil Procedure mandatorily required the authority (Additional District Magistrate) to effect service on the affected party, service of notice bearing No.5989, dated 12.11.1987 issued under Section 7A(3) of the OGLS Act stated to have been effected on "Prafulla Kumar Muduli"
cannot be held to be served on the affected party, namely Bauribandhu Muduli-original lessee. Thus, this Court holds that notice for appearance and production of documents is held to be invalid service.
8.10. It may also be taken note of the decision of this Court in the case of Bidyut Mishra Vrs. State of Odisha, 1996 (I) OLR 532, wherein it has been observed as follows:
"5. First proviso to Section 7-A (3) of the Government Land Act expressly postulates that no order shall be passed under the said provision unless the person affected by the proposed order his been given a reasonable opportunity of being heard in the matter. There cannot be any doubt that at the time of initiation of the proceeding it was the petitioner who was a person to be affected by the proposed or contemplated cancellation of the lease and as such she was/is entitled to reasonable opportunity of being heard in the matter.
6. It has been sought to be submitted on behalf of the opposite parties 1 and 2 that as the name of the W.P.(C) No.20875 of 2022 Page 21 of 34 petitioner was not entered in the Record-of-Rights at the time of initiation of the proceeding, opposite party No. 2 had no knowledge about the transfer and accordingly there was no obligation to send any notice to the petitioner. In view of the clear language of Section 7A(3) of the Government Land Act such submission cannot be accepted. The Legislature in its wisdom has made it obligatory to give all the persons to be affected by the proposed order a reasonable opportunity of being heard. It does not restrict or confine the entitlement only to persons whose name appears in the record-of-rights. Moreover, the settled position of law is that registration itself is a notice of transfer to the State Government. The transfers by the original allottee to the opposite party No. 4 and the subsequent transfer by opposite party No. 4 in favour of the present petitioner having been effected by registered sale deeds, it is not open to opposite party Nos. 1 and 2 to deny opportunity of hearing to the holder of the title at the relevant point of time."
8.11. In Krushna Ch. Panda Vrs. State of Odisha, 2005 SCC OnLine Ori 219 = 101 (2006) CLT 173, it has been laid down thus:
"7. Though Section 3-B of the Act does not specifically provide for issuance of notice to the affected parties as provided under the proviso to Section 7-A(3) of the Act, but never the less since by resumption of the land under Section 3-B of the Act the right of the lessee or the subsequent transferee who was enjoying the lease-hold land would come to an end, in our view, before passing an order of resumption under the said section, compliance to the principles W.P.(C) No.20875 of 2022 Page 22 of 34 of natural justice would be a bare requirement and the order passed in violation thereof cannot be sustained. We further find that the area in which the land in question is situated, has been marked as residential zone in the Master Plan framed under the Orissa Development Authorities Act and the petitioners who are the subsequent purchasers, have constructed their houses after due approval of the building plans by the competent authority of the Bhubaneswar Development Authority."
8.12. This Court notices the enunciation of principles of service of notice and consequences of non-service thereof in the case of Commissioner of Sales Tax Vrs. Subhash & Co., (2003) 3 SCC 454:
"15. The term "notice" originated from the Latin word "notifia" which means "a being known" or a knowing and is wide enough in legal circle to include a plaint filed in a suit. "Notice" has been defined in various judicial dictionaries and dictionaries as follows:
The Judicial Dictionary, Words and Phrases Judicially Interpreted, 2nd Edn., by F. Stroud (p. 1299) 'Notice is a direct and definite statement of a thing, as distinguished from supplying materials from which the existence of such thing may be inferred.' Webster's Universal College Dictionary, 1997 Edn., (p. 543) 'Information, warning or announcement of something impending; notification; to give notice of one's intentions; a written or printed statement conveying W.P.(C) No.20875 of 2022 Page 23 of 34 such information or warning; as for renting or employment, that the agreement will terminate on a specified date -- 'She gave her employer two weeks' notice.' Oxford Concise Dictionary 'an intimation; intelligence, warning' and has the meaning in the expression like 'give notice', 'have notice' or 'formal intimation of something or instruction to do something' and has the expression like 'notice to quit', 'till further notice'.
Chamber's 20th Century Dictionary, 1993 (p. 1154) 'intimation; announcement; information; warning; a writing, placard etc. conveying an intimation or warning; time allowed for preparation, etc.' Chamber's Dictionary vide Allied Chambers (India) Ltd., Reprint 1994, 1995 (p. 1154) 'intimation; announcement; a formal announcement made by one of the parties to a contract of his or her intention to terminate that contract; information, especially about a future event; warning; a writing; placard, board etc. conveying an intimation or warning; time allowed for preparation; cognizance; observation; heed; mention; a dramatic or artistic review; civility or respectful treatment; a notion etc.' Law Lexicon Dictionary-- A Legal Dictionary of Legal Terms and Phrases Judicially Defined, 4th Edn., Vol. II, 1989 (p. 226) 'A person is said to have notice of a fact, when he actually knows that fact, or when, but for wilful abstention from an enquiry or search which he ought W.P.(C) No.20875 of 2022 Page 24 of 34 to have made, or gross negligence, he would have known it.' The Law Lexicon Dictionary, 2nd Edn., 1997 (p. 1322) (1) Intimation; a writing; placard, board etc. conveying an intimation or warning [Section 154 IPC and Article 61(2)(a), Constitution of India];
(2) Knowledge or cognizance (Section 56, Indian Evidence Act).
16. "Notice", in its legal sense, may be defined as information concerning a fact actually communicated to a party by an authorised person, or actually derived by him from a proper source, or else presumed by law to have been acquired by him, which information is regarded as equivalent to knowledge in its legal consequences. Dictionary further states : Co Lit 309 Tomlin's Law Dictionary.
17. Notice is making something known, of what a man was or might be ignorant of before. And it produces diverse effects, for, by it, the party who gives the same shall have the same benefit, which otherwise he should not have had; the party to whom the notice is given is made subject to some action or charge, that otherwise he had not been liable to; and his estate in danger of prejudice.
18. "Notice is a direct and definite statement of a thing as distinguished from supplying materials from which the existence of such thing may be inferred." (Per Parke, B. Burgh Vrs. Legge [(1839) 5 M&W 418 :
8 LJ Ex 258 : 151 ER 177]) W.P.(C) No.20875 of 2022 Page 25 of 34
19. The dictionary gives some other definitions of "notice" as:
-- The legal instrumentality by which knowledge is conveyed, or by which one is charged with knowledge.
-- The term "notice" in its full legal sense embraces a knowledge of circumstances that ought to induce suspicion or belief, as well as direct information of that fact.
-- In its popular sense "notice" is equivalent to information intelligence, or knowledge.
***
21. Whenever an order is struck down as invalid being violative of principles of natural justice, there is no final decision of the case and, therefore, proceedings are left open. All that is done is that the order assailed by virtue of its inherent defect is vacated but the proceedings are not terminated.
[See Guduthur Bros. Vrs. ITO, (1960) 40 ITR 298 = AIR 1960 SC 1326; Supdt. (Tech. I), Central Excise Vrs. Pratap Rai, (1978) 3 SCC 113 = (1978) 114 ITR 231]. In CST Vrs. R.P. Dixit Saghidar, (2001) 9 SCC 324 it was held as follows: (SCC p. 325, para
5) '5. We are unable to subscribe to the view of the High Court. The aforementioned passage quoted from the Tribunal's order shows that the Tribunal was of the view that once the order is quashed by the Assistant Commissioner, he could not in law remand the case for a decision afresh. As has been noted, before the Assistant Commissioner the counsel W.P.(C) No.20875 of 2022 Page 26 of 34 for the respondent had contended that the ex parte order should have been set aside because no notice had been received. When principles of natural justice are stated to have been violated it is open to the Appellate Authority, in appropriate cases, to set aside the order and require the assessing officer to decide the cases de novo. This is precisely what was directed by the Assistant Commissioner and the Tribunal, in our opinion, was clearly in error in taking a contrary view.' This view is clearly applicable to the facts of the present case.
22. The emerging principles are:
(i) Non-issue of notice or mistake in the issue of notice or defective service of notice does not affect the jurisdiction of the assessing officer, if otherwise reasonable opportunity of being heard has been given.
(ii) Issue of notice as prescribed in the Rules constitutes a part of reasonable opportunity of being heard.
(iii) If prejudice has been caused by non-issue or invalid service of notice the proceeding would be vitiated. But irregular service of notice would not render the proceedings invalid; more so, if the assessee by his conduct has rendered service impracticable or impossible.
(iv) In a given case when the principles of natural justice are stated to have been violated it is open to the Appellate Authority in appropriate W.P.(C) No.20875 of 2022 Page 27 of 34 cases to set aside the order and require the assessing officer to decide the case de novo."
8.13. The Supreme Court in Estate of Late Rangalal Jajodia Vrs. CIT, (1971) 79 ITR 505 (SC) observed as follows:
"The lack of a notice does not amount to revenue authority having had no jurisdiction to assess, but that the assessment was defective by reason of notice not having been given to her. An assessment proceeding does not cease to be a proceeding under the Act merely by reason of want of notice. It will be a proceeding liable to be challenged and corrected."
8.14. The Supreme Court of India in CIT Vrs. Jai Prakash Singh, (1996) 219 ITR 737 (SC) held as under:
"The principle that emerges from the above decision is that an omission to serve or any defect in the service of notices provided by procedural provisions does not efface or erase the liability to pay tax where such liability is created by distinct substantive provisions [charging sections]. Any such omission of defect may render the order made irregular-depending upon the nature of the provision not complied with but certain not void or illegal."
8.15. In The Inspector of Panchayats and District Collector, Salem Vrs. S. Aricharan, (2022) 4 SCR 864 the Hon'ble Supreme Court in a case where the punishment imposed in the Disciplinary Proceeding was set aside for want of adherence to the principles of natural justice, observed thus:
"6. At the outset, it is required to be noted that the learned Single Judge has set aside the order of W.P.(C) No.20875 of 2022 Page 28 of 34 dismissal passed by the Disciplinary Authority on the ground that the same was in breach of principles of Natural Justice, in as much as, the copy of the Inquiry Officer's Report was not furnished to the delinquent and his comments were not called for on the Inquiry Officer's Report. It is to be noted that the respondent- delinquent was facing the departmental inquiry with respect to a very serious charge of misappropriation. Therefore, the High Court ought to have remitted the matter back to the Disciplinary Authority to conduct the inquiry from the point that it stood vitiated.
6.1 At this stage, a recent decision of this Court in the case of State of Uttar Pradesh and Ors. Vrs. Rajit Singh, 2022 SCC Online SC 341, in which this Court had considered its earlier decision in the case of Chairman, Life Insurance Corporation of India and Ors. Vrs. A. Masilamani, (2013) 6 SCC 530 is required to be referred to. In paragraph 15, it is observed and held as under:-
'15. It appears from the order passed by the Tribunal that the Tribunal also observed that the enquiry proceedings were against the principles of natural justice in as much as the documents mentioned in the charge sheet were not at all supplied to the delinquent officer. As per the settled proposition of law, in a case where it is found that the enquiry is not conducted properly and/or the same is in violation of the principles of natural justice, in that case, the Court cannot reinstate the employee as such and the matter is to be remanded to the Enquiry Officer/Disciplinary Authority to proceed further with the enquiry from the stage of violation of principles of W.P.(C) No.20875 of 2022 Page 29 of 34 natural justice is noticed and the enquiry has to be proceeded further after furnishing the necessary documents mentioned in the charge sheet, which are alleged to have not been given to the delinquent officer in the instant case. In the case of Chairman, Life Insurance Corporation of India Vrs. A. Masilamani, (2013) 6 SCC 530, which was also pressed into service on behalf of the appellants before the High Court, it is observed in paragraph 16 as under:--
'16. It is a settled legal proposition, that once the court sets aside an order of punishment, on the ground that the enquiry was not properly conducted, the court cannot reinstate the employee. It must remit the case concerned to the disciplinary authority for it to conduct the enquiry from the point that it stood vitiated, and conclude the same. (Vide ECIL Vrs. B. Karunakar, (1993) 4 SCC 727, Hiran Mayee Bhattacharyya Vrs.
S.M. School for Girls, (2002) 10 SCC 293, U.P. State Spg. Co. Ltd. Vrs. R.S. Pandey, (2005) 8 SCC 264 and Union of India Vrs.
Y.S. Sadhu, (2008) 12 SCC 30]).' ***"
8.16. In State of U.P. Vrs. Sudhir Kumar Singh, (2020) 13 SCR 571, the Hon'ble Supreme Court of India has been pleased to cull out the following as a matter principle in connection of natural justice:
"39. An analysis of the aforesaid judgments thus reveals:
(1) Natural justice is a flexible tool in the hands of the judiciary to reach out in fit cases to remedy W.P.(C) No.20875 of 2022 Page 30 of 34 injustice. The breach of the audi alteram partem rule cannot by itself, without more, lead to the conclusion that prejudice is thereby caused.
(2) Where procedural and/or substantive provisions of law embody the principles of natural justice, their infraction per se does not lead to invalidity of the orders passed. Here again, prejudice must be caused to the litigant, except in the case of a mandatory provision of law which is conceived not only in individual interest, but also in public interest.
(3) No prejudice is caused to the person complaining of the breach of natural justice where such person does not dispute the case against him or it. This can happen by reason of estoppel, acquiescence, waiver and by way of non-challenge or non-denial or admission of facts, in cases in which the Court finds on facts that no real prejudice can therefore be said to have been caused to the person complaining of the breach of natural justice.
(4) In cases where facts can be stated to be admitted or indisputable, and only one conclusion is possible, the Court does not pass futile orders of setting aside or remand when there is, in fact, no prejudice caused. This conclusion must be drawn by the Court on an appraisal of the facts of a case, and not by the authority who denies natural justice to a person.
(5) The "prejudice" exception must be more than a mere apprehension or even a reasonable suspicion of a litigant. It should exist as a W.P.(C) No.20875 of 2022 Page 31 of 34 matter of fact, or be based upon a definite inference of likelihood of prejudice flowing from the non-observance of natural justice."
8.17. Natural consequence in the instant matter would flow that though initiation of proceeding for suo motu revision invoking power under Section 7A(3) of the OGLS Act was within the period stipulated under second proviso thereto, inasmuch as the service of notice for appearance and production of documents was not effected on proper person/affected party, the Order dated 30.11.1987 of the Additional District Magistrate cannot be countenanced and deserves to be set aside. Prejudice caused to the petitioner is patent on the record for there is violation of principles of natural justice. Therefore, the impugned order is liable to be interfered with.
DECISION AND CONCLUSION:
9. Given the legal perspective on the subject of issue and service of notice for affording audi alteram partem, this Court is satisfied that the original lessee, Bauribandhu Muduli, was not served with Notice bearing No.5989, dated 12.11.1987 issued in exercise of power conferred on the Additional District Magistrate, Bhubaneswar under Section 7A(3) of the OGLS Act in connection with Revision Case No.417 of 1983 (arising out of Waste Land Lease Case No.1466 of 1973 in the files of Tahasildar, Bhubaneswar). As a consequence thereof, the Order W.P.(C) No.20875 of 2022 Page 32 of 34 dated 30.11.1987 passed by the revisional authority (Annexure-4) cannot be sustained and is liable to be set aside. This Court, therefore, does so.
9.1. Since this Court sets aside the Order dated 30.11.1987 of the Additional District Magistrate, Bhubaneswar the Order dated 30.06.1990 passed by the Tahasildar, Bhubaneswar in Waste Land Lease Case No.1466 of 1973 (Annexure-5) giving effect to said order in revision is also set aside.
10. Needless to say that in view of discussion made supra it is but clear that since the action under Section 7A(3) of the OGLS Act does not suffer vice of second proviso thereto, the matter is now remitted to the Additional District Magistrate, Bhubaneswar to proceed in accordance with law.
10.1. As the original lessee-Bauribandhu Muduli has since expired, the subsequent purchaser of the property in question, namely Bhajamana Behera, the petitioner herein, being affected party, is required to be afforded opportunity of hearing. As the matter has been lingering for years, to save time, issue of notice by the Additional District Magistrate, Bhubaneswar is dispensed with and this Court directs the petitioner to appear before the said authority in connection with Revision Case No.417 of 1983 on or before 04.09.2023 for the purpose of taking instructions. On his appearance, said Additional District W.P.(C) No.20875 of 2022 Page 33 of 34 Magistrate shall fix date of hearing and production of documents and proceed with the case for adjudication on merit.
11. It is clarified that this Court has not expressed any view on the merit of the matter, save and except challenge as to limitation stipulated and service of notice/opportunity of hearing under Section 7A(3) of the OGLS Act. It is also clarified that the narration of fact in the foregoing paragraphs is for the said purpose only. The Additional District Magistrate is at liberty to take appropriate decision in the matter without being biased by any of the observations made touching the merit of the matter herein above.
12. For the discussions made and the reasons stated supra, the present writ petition stands allowed subject to the observations and directions made above. However, there shall be no order as to costs.
(MURAHARI SRI RAMAN)
JUDGE
DR. B.R. SARANGI, J. I agree.
(DR. B.R. SARANGI)
Signature Not Verified JUDGE
Digitally Signed
Signed by: ASWINI KUMAR SETHY
Designation: PA(SECRETARY-IN-CHARGE) Reason: Authentication Location: ORISSA HIGH COURT, CUTTACK Date: 07-Aug-2023 17:39:27 Orissa High Court, Cuttack The 04th August, 2023, Aswini W.P.(C) No.20875 of 2022 Page 34 of 34