Orissa High Court
Smt. Jyostna Mohapatra vs State Of Odisha And Others ..... ... on 22 January, 2024
Bench: B.R. Sarangi, Murahari Sri Raman
IN THE HIGH COURT OF ORISSA AT CUTTACK
W.P.(C) No. 1731 & 1728 of 2013
W.P.(C) No. 1731 of 2013
Smt. Jyostna Mohapatra ..... Petitioner
Mr. P.K. Rath, Sr. Advocate along with
Mr. A. Behera, Advocate
Vs.
State of Odisha and others ..... Opposite Parties
Mr. D.K. Mohanty, AGA
W.P.(C) No. 1728 of 2013
Smt. Jyostna Mohapatra ..... Petitioner
Mr. P.K. Rath, Sr. Advocate along with
Mr. A. Behera, Advocate
Vs.
State of Odisha and others ..... Opposite Parties
Mr. D.K. Mohanty, AGA
CORAM:
ACTING CHIEF JUSTICE DR. B.R. SARANGI
MR. JUSTICE MURAHARI SRI RAMAN
ORDER
22.01.2024 Order No. These matters are taken up through hybrid mode.
11.
2. Heard Mr. P.K. Rath, learned Senior Advocate appearing along with Mr. A. Behera, learned counsel for the petitioner in both the writ petitions and Mr. D.K. Mohanty, learned Additional Government Advocate appearing for the State Opposite parties.
3. The self same petitioner has filed the above two writ petitions seeking to quash the common order dated 30.11.2012 passed by the Revenue Divisional Commissioner, Central Division, Odisha, Cuttack in O.G.L.S. Appeal Case No. 1 of 2009 and OGLS Appeal Page 1 of 5 No. 1 of 2010, by which the order dated 07.03.2007 and 09.04.2007 of the Collector, Puri passed in Balu Resumption Case No. 1 of 2007 was held to be just and proper. The petitioner has also prayed to quash the orders dated 07.03.2007 and 09.04.2007 passed by the Collector, Puri in Balu Resumption Case No. 1 of 2007 in both the writ petitions. Hence both the writ petitions were heard together and disposed of by this common order.
4. Mr. P.K. Rath, learned Senior Advocate appearing along with Mr. A. Behera, learned counsel for the petitioner contended that in exercises of the provisions of Section 3-B of the Odisha Government Land Settlement Act, 1962 as well as Clause-5 of the lease deed executed between the Government and Raibahadur Hazarimal Trust during 1996, the Government has been pleased to determine the lease and ordered for immediate resumption of the land described in the land schedule, i.e. Khata Nos. 83, 84, Plot No. 70 and 71 (P) measuring an area of Ac. 0.370 decimal and Ac. 0.175 dec (out of Ac. 0.300 dec) under Hal Mouza-Gandhighat, Unit No. 25, Puri Town. The Government has further instructed that in addition to the above land the balance area of Ac. 0.125 dec of land of Khata No. 84, Plot No. 71 (P) along with the structures standing thereon has to be taken over into possession after due enquiry. Steps be taken to cancel the mutation proceedings/ subsequent recording of the land as in the above land schedule made in favour of the petitioner as per rule. As per the report of Tahasildar, Puri vide letter dated 25.03.2006 along with Xerox copy of letter dated 06.03.2006 of R.I. Balukhand, 108-Puri and B.P.L. Case Record No. 1/94, 3/94 mutation case Nos. 2324/01 and 2325/01 of Puri Tahasil it is revealed that originally two plots of land were leased out in favour of Page 2 of 5 the lessee for a period of 30 years clause. The Plot appertaining to Khata No. 107, Plot No. 442, measuring an area of Ac. 0.335 in Mouza (Sabik)-Balukhanda, 108-Puri, was leased out jointly in the name of Rai Bahadur Hazarimal Doodwala and Sohanlal Doodwala of 5-A, Muktarambabu Street, Calcutta. The plot appertaining to Khata No. 108, Plot No. 443 measuring an area of Ac.0.322 in Mouza (Sabik)-Balukhanda, 108- Puri was leased out in favour of Hazarimal Doodwala of 5-A, Muktarambabu Street, Calcutta. The recorded tenant Sohanlala Doodwala has transferred the entire lease hold property to a Trust named "Rai Bahadur Hazarimal Trust Fund"
vide registered deed No. 2631 dated 02.06.1977, registered before the Notary of Calcutta, which is constituted for religious and charitable purpose. The Collector Puri has approved the B.P.L. Case No. 1/94 and B.P.L. Case No. 3/94 after settlement made by the Tahasildar, Puri in favour of the petitioner.
5. Learned Senior Advocate appearing for the petitioner contended that for the purpose of handing over the said plots of the petitioner in favour of Income Tax Department, Government of India, the Collector has passed the order on 07.03.2007 directing the petitioner to file show cause in writing as to why the said lease hold land should not be resumed by the Government. According to Mr. Rath, learned Senior Advocate, the order so passed by the Collector dated 07.03.2007 and 09.04.2007 cannot be sustained as because he has no jurisdiction to pass such order. According to him, resumption has to be done by the Tahasildar and not by the Collector. Apart from the same, it is further contended that having decided to dispossess the petitioner, now giving notice of seven days is absolutely post decisional order to be implemented by the authority, Page 3 of 5 which also cannot be sustained in the eye of law in view of the order so passed by the Collector dated 07.03.2007 and 09.04.2007. Therefore, the consequential order passed by the Revenue Divisional Commissioner, Orissa under Annexure-1 confirming the order dated 07.03.2007 and 09.04.2007 passed by Collector Puri since has been passed without application of mind, the same is also liable to be quashed.
6. Mr. D.K. Mohanty, learned Additional Government Advocate Contended that as per OGLS Act, it is the Tahasildar, who has granted lease, has been envisaged with the power to resume the land, but not the Collector. He further contended that even if the Collector had approved the action taken by the Tahasildar, but that cannot be considered to be the order passed by the Tahasildar. So the resumption order ought to have been passed by the competent authority as per the provisions of law. If the Tahasidlar is the competent authority, then, he has to pass the order and not any other authority.
7. Having heard learned counsel for the parties, however without expressing any opinion on the merits of the case, since the orders under Annexure-2, i.e. order dated 07.03.2007 and consequential order dated 09.04.2007 passed in Balu Resumption Case No. 1/07 having been passed by an incompetent person for resumption of the land under Section 3-B of the OGLS Act, 1962, such orders cannot be sustained in the eye of law. Therefore, the consequential order dated 30.11.2012 passed by the Revenue Divisional Commissioner, Central Division, Odisha Cuttack dated 30.11.2012 in OGLS Appeal No. 1/2009 and OGLS Appeal No. 1/2010 cannot also be sustained in the eye of law and the same is also liable to be quashed and is Page 4 of 5 hereby quashed. As a consequence thereof, the matter is remanded to the Tahasildar, Puri for resumption of the said lands under Section 3- B of the OGLS Act after following due procedure of law.
8. With the above observation and direction, both the writ petitions stand disposed.
(DR. B.R. SARANGI)
ACTING CHIEF JUSTICE
Arun (M.S. RAMAN)
JUDGE
Signature Not Verified
Digitally Signed
Signed by: ARUN KUMAR MISHRA
Designation: ADR-cum-Addl. Principal Secretary Reason: Authentication Location: High Court of Orissa Date: 22-Jan-2024 16:35:26 Page 5 of 5