Orissa High Court
Kumudini Pattnaik vs State Of Odisha And Others .... Opposite ... on 12 May, 2023
Author: Arindam Sinha
Bench: Arindam Sinha
IN THE HIGH COURT OF ORISSA AT CUTTACK
WP(C) No.11305 of 2023
Kumudini Pattnaik .... Petitioner
-Versus-
State of Odisha and others .... Opposite Parties
Advocates appeared in this case :
For Petitioner : Mr. Sanjay Kumar Samantaray, Advocate
For Opposite Parties : Mr. A. K. Sharma, Advocate (AGA)
CORAM:
JUSTICE ARINDAM SINHA
JUSTICE SANJAY KUMAR MISHRA
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Date of hearing and Judgment: 12th May, 2023
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ARINDAM SINHA, J.
1. Mr. Samantaray, learned advocate appears on behalf of petitioner and submits, impugned are orders dated 11th July, 2013 and subsequent undated order, both passed by the Assistant Settlement Officer (ASO), purporting to cancel the lease, firstly suo motu and thereupon reiteration of the same, when his client had moved the authority in revision. He submits, leases come within domain of Orissa Government Land Settlement Act, 1962. The ASO acted wholly without jurisdiction. He relies on judgment dated 2nd January, 2023 Page 1 of 7 of the first Division Bench in this Court made in, inter alia, WP(C) no.1608 of 2014 (Narottam Rath v. State of Odisha and another). He relies on paragraphs 16 and 17. The paragraphs are reproduced below.
"16. Be that as it may, it is plain that in all these cases, the ASOs exercised 'suo motu powers' to override the orders of the ADM under the OGLS Act in favour of the predecessors-in-interest of the Petitioners or refused to record their names in the ROR despite there being no objections to the draft publication of the ROR.
17. Clearly the ASOs were acting without jurisdiction and beyond the scope of their powers under the OSS Act. It is obvious that powers which could have been exercised only under the OGLS Act were sought to be exercised by the ASO which was impermissible in law for them to do. The above extracted portions of the orders of this Court conclusively settle the legal position in this regard and do not bear repetition."
Also he relies on our order dated 14th March, 2023 in WP(C) no.25429 of 2022 (Subhashree Mishra v. State of Odisha and others). We reproduce paragraph 2 from said order.
"2. Mr. Nanda, learned advocate, Additional Government Advocate appears on behalf of State and relies on paragraph-20 in said judgment, reproduced below.
"20. The above directions will be carried out within a period of four months from today. It is made clear that this order will not prevent the Government from exercising powers under Section 3-B of the OGLS Act, in accordance with law."WP(C) no.11305 of 2023 Page 2 of 7
2. Mr. Sharma, learned advocate, Additional Government Advocate appears on behalf of State and submits, this Bench does not have assignment. Impugned orders have been passed by the ASO under Odisha Survey and Settlement Act, 1958. Without prejudice he submits, impugned order dated 11th July, 2013 was made by the ASO under sub-section (2) of section 21 in Odisha Survey and Settlement Act, 1958. It was duly made. There should not be interference. He submits, Narottam Rath (supra) is not applicable to petitioner's case. In Narottam Rath (supra), the leases were confirmed by orders passed by the Additional District Magistrates (ADM). In this case petitioner had managed to get recorded her name claiming settlement by lease. Hence, this case is distinguishable on facts. Furthermore, it is valuable Government land and there be direction for filing of counter. He submits further, the writ petition suffers from inordinate delay disentitling petitioner to get any relief.
3. Mr. Samantray submits, there is explanation in paragraph 7. We reproduce below a passage from said paragraph.
"Soon after knowing about the said ex- parte order dated 11.07.2013, passed in Suo Motu Rent Objection Case No.5961/5190 of 2013, the petitioner applied for certified copy of the order in both Suo Motu Rent Objection Case No.5961/5190 of 2013 and Rent Objection Case No.664/795 of 2012 and after obtaining the same, she was astonished as her rent objection case was also rejected on the self same ground without reflecting any date WP(C) no.11305 of 2023 Page 3 of 7 and also without hearing the petitioner as was assured to her. Hence the petitioner filed this writ petition on the ground that since both the ex-parte orders have been passed behind the petitioner in violating the statutory provisions under the Act & Rules as well as the settled principle of law held by this Hon'ble High Court in several similar cases, the same cannot be sustainable in the eye of law and is liable to be set-aside."
(emphasis supplied)
4. Text of impugned order dated 11th July, 2013 is reproduced below.
"Case record is put up today. On verification of records it is observed that the suit land was recorded in favour of Govt. as per the ROR published during the last Settlement Operation. During the Khanapuri stage of ongoing Settlement operation the O.P. of the suit Case managed to record the suit Hal Plot in his/her favour as per lease granted to him or his vendor. But the trace Map attached to the Lease Case record was not examined to know whether the land possessed by the O.P. has actually been leased out.
It has been come to notice that a lot of irregularities have been made in the Tahasil level in different lease Cases. Recently a lease Case was come to the notice of Govt. Which was sanctioned in the year 1966 but the form used for this purpose was printed out in Govt. Press in the Year 1969. The Honourable High Court of Odisha in their Order dated 29.01.1996 in O.J.C. Case No.9449 of 1993 also observed that the irregularities have been done in respect of WP(C) no.11305 of 2023 Page 4 of 7 leases Cases in the Bhubaneswar Tahasil level and directed the State Govt. to enquire into the lease Cases by an Officer in the rank of Secretary. In the present Case no party has filed any documents to prove that the lease Case in respect of suit Plot has been scrutinized. Hence the court thought it proper not to record the Govt. Land in favour of Private individual. The affected parties have scope to appeal before the Appellate authority to prove the genuineness of their claims. Hence the Suo- moto Case is allowed."
(emphasis supplied) It will appear from the extract that the ASO was dealing with the lease case. Mr. Samantray submits, said order was passed suo motu. It is a cyclostyled order. We have ascertained from Mr. Sharma that it was indeed passed on a suo motu case.
5. Sub-section (2) in section 21, including the proviso is reproduced below.
"(2) The Assistant Settlement Officer may, of his own motion or on the application of any party aggrieved, at any time before a Settlement Rent Roll is submitted to the Settlement Officer under Section 22, revise the rent entered therein:
Provided that no such revision shall be made until reasonable opportunity has been given to the parties concerned to appear and be heard in the matter."
(emphasis supplied) WP(C) no.11305 of 2023 Page 5 of 7 By impugned order dated 11th July, 2013 there was no revision regarding fixation of rent. The ASO, in effect, annulled the lease case by initiating suo motu what could only be a revision of rent case under the Act of 1958. He had acted wholly without jurisdiction. It is of no matter to require ascertaining whether the lease stood confirmed by the ADM. Issue on lease falls within domain of Orissa Government Land Settlement Act, 1962. The Act of 1958 is regarding entries in the record and revision of rent. They operate in different fields.
6. There has been no finding, in either impugned order dated 11th July, 2013 or the order made thereafter on petitioner having moved the ASO, regarding whether or not the leases stood confirmed by the ADM. In the circumstances, assuming State can contend on the factual distinction of no confirmation, it would be a contention based on presumption in the negative. Even if a lease has not been confirmed by the ADM, that would not empower an ASO to cancel a lease in exercise of power under the Survey and Settlement Act, on a suo motu enquiry, pursuant to order dated 29th January, 1996 in OJC no.9449 of 1993. We accept the explanation of petitioner, relying the judgment of the Supreme Court in Tukaram Kana Joshi v. M.I.D.C., reported in AIR 2013 SC 565.
7. Lastly, coming to the first contention in defence, as aforesaid we find that the ASO acted without jurisdiction or authority in cancelling the lease, only possible under Odisha Government Land Settlement Act, 1962. Entry no.7 in our WP(C) no.11305 of 2023 Page 6 of 7 assignment list, is of writ petitions related to lease and OGLS Act. It is apparent from text of impugned order dated 11th July, 2013 that the lease stood cancelled thereby. We have no doubt in our mind petitioner duly moved the writ petition before this Bench. It is true that entry no.9 in assignment list of the Hon'ble Mr. Justice Biswanath Rath is for writ petitions under the Survey and Settlement Act but, in the facts and circumstances, the Stamp Reporter has correctly endorsed subject being OGLS Act.
8. Impugned orders are set aside and quashed on being covered by Narottam Rath (supra). As we have dealt with them on the question of jurisdiction and authority, we found no requirement to direct filing of counter. Directions made in paragraph 19 of the judgment be complied with, within four weeks of communication.
9. The writ petition is disposed of.
(Arindam Sinha) Judge (S. K. Mishra) Judge R.K.Sethi Digitally signed RANJAN by RANJAN KUMAR SETHI KUMAR Date:
2023.05.12 SETHI 18:09:51 +05'30' WP(C) no.11305 of 2023 Page 7 of 7