Orissa High Court
Pair Nayak @ Panu vs State Of Orissa & Another ... Opp. ... on 29 July, 2010
Author: B.P.Das
Bench: B.P.Das
HIGH COURT OF ORISSA: CUTTACK
W.P.(C). No. 4476 of 2010
In the matter of an application under Articles 226 and 227 of the
Constitution of India.
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Pair Nayak @ Panu ... Petitioner.
-Versus-
State of Orissa & another ... Opp. Parties.
For Petitioner : M/s. Ashok Tripathy.
For Opp. Parties : Mr. J.P. Pattnaik
Addl. Government Advocate
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P R E S E N T:
THE HONOURABLE SHRI JUSTICE B.P.DAS
AND
THE HONOURABLE SHRI JUSTICE B.N.MAHAPATRA
Date of hearing: 20.07.2010 : Date of judgment: 29.07.2010
B.N.MAHAPATRA, J The petitioner calls in question the legality and validity of the
order dated 06.07.1989 of the Additional District Magistrate, Bhubaneswar
(here-in-after called "the Revisional Authority") passed under Section 7-A
(3) of the Orissa Government Land Settlement Act, 1962 (for short "the
OGLS Act") in Revision Case No.39 of 1989 by which the Revisional
Authority set aside the order dated 23.06.1975 of opposite party No.2-
Tahasildar, Bhubaneswar, who settled an area of Ac 1.000 of land in Plot
No.743 under Khata No.745 in Mouza: Chandaka (here-in-after referred to
2
as "the suit land") in W.L. Case No.909 of 1975 in favour of the petitioner
and further directed to correct the record accordingly and take over
possession of the suit land.
2. Bereft of unnecessary details, the facts and circumstances
giving rise to the present writ petition are that on 05.06.1975 the petitioner
applied to the Tahasildar-opposite party No.1 for grant of lease of the suit
land in his favour, which was registered as W.L. Case No.909 of 1975. The
Tahasildar vide his order dated 23.06.1975 granted settlement of the suit
land in favour of the petitioner under the provisions of the OGLS Act.
According to the petitioner, he was issued R.O.R. in respect of the aforesaid
suit land and he is in continuous possession of the suit land from the date
the lease was granted. The petitioner constructed a residential house on a
portion of the suit land and out of its usufructs he maintained his family.
The petitioner also paid rent to the Government which was accepted till the
lease was cancelled by the Revisional Authority. In the revision proceeding
initiated under Section 7-A(3) of the O.G.L.S. Act, the petitioner in
pursuance of the show cause notice appeared before the Revisional
Authority and filed his written statement. The Revisional Authority vide his
order dated 06.07.1989 cancelled the lease of the suit land on the ground
that there were material irregularities as well as legal infirmities in settling
the suit land in favour of the petitioner. Hence, this writ petition.
3. Mr. Ashok Tripathy, learned counsel appearing on behalf of the
petitioner submitted that the impugned order under Annexure-2 has been
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passed by the Revisional Authority arbitrarily without application of judicial
mind and contrary to the provisions of Section 7-A of the O.G.L.S. Act.
After the lease was granted, the petitioner is in continuous possession over
the suit land and has paid rent upto 1989. A suo motu revision was
initiated after a lapse of more than 14 years. In view of the specific bar
provided under Section 7-A(3) of the O.G.L.S. Act, the Revisional Authority
was not empowered to do so and, therefore, the impugned order is without
jurisdiction. The petitioner was also not given sufficient opportunity of
hearing before the impugned order was passed. Placing reliance on the
judgment of this Court in Chandan Ku. Sethi & Ors. V. State &
Ors.,2010 (1) CJD (HC) 194 and Madhuchhanda Das v. State of Orissa
and Ors., 1998 (II) OLR 36, it was argued that under Section 7-A(3) lease
cannot be cancelled for non-compliance of non-existent Rules
4. Mr. J.P. Pattnaik, learned Additional Government Advocate
appearing on behalf of the State, raised preliminary objection that the writ
petition is liable to be dismissed on the ground of delay and latches. No
satisfactory explanation has been given by the petitioner explaining the
delay in approaching this Court in the year 2010 under Articles 226 and
227 of the Constitution challenging the order passed in the year 1989. He
further submitted that the petitioner is also otherwise not entitled to get
any relief on the grounds taken in the writ petition. Settlement of the
Government land in favour of the petitioner have suffered from material
irregularities and procedure as well as legal infirmities. The Revisional
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Authority is fully justified in setting aside the order dated 23.06.1975
passed by the Tahasildar, Bhubaneswar-opposite party No.2 by which
Government land was settled ignoring the statutory provisions. There is no
illegality or infirmity in the order passed by the Revisional Authority.
5. On the above rival contentions, the questions that fall for
determination by this Court are as follows:
(i) Whether in the facts and circumstances of the case the
writ petition is liable to be dismissed on the ground of
delay and laches ?
(ii) Whether the order passed by the Revisional Authority is
barred by limitation ?
(iii) Whether reasonable opportunity was granted to the
petitioner before the impugned order was passed ?
(iv) Whether the rules or regulations are binding on the State
and its instrumentalities and any order passed without
complying the same is illegal/invalid ?
6. Preliminary objection raised by Mr. Pattnaik, learned
Additional Government Advocate for the opposite parties on the ground of
delay and laches which relates to question No.(i) should be gone into at the
outset. In the instance case, the Revisional order was passed on 6 th day of
July, 1989 and the writ petition challenging the said order was filed on
08.03.2010. Thus, there is delay of more than 20 years in approaching this
Court under Articles 226 & 227 of the Constitution.
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7. The question of delay in filing the writ petition has been
considered by the apex Court in Smt. Sudama Devi Vs. Commissioner
and others, (1983)2 SCC 1, wherein it has been observed as under:-
"There is no period of limitation prescribed by any law for
filing a writ petition under Article 226 of the
Constitution. It is in fact doubtful whether any such
period of limitation can be prescribed by law. In any
event one thing is clear and beyond doubt that no such
period of limitation can be laid down either under rules
made by the High Court or by practice. In every case it
would have to be decided on the facts and
circumstances whether the petitioner is guilty of laches
and that would have to be done without taking into
account any specific period as a period of limitation.
There may be cases where even short delay may be
fatal while there may be cases where even a long delay
may not be evidence of laches on the part of the
petitioner."
In State of Madhya Pradesh & Ors. Vs. Nandlal Jaiswal,
AIR 1987 SC 251, the Hon'ble Supreme Court held as follows:
".........High Court in the exercise of its discretion
does not ordinarily assist the tardy and the indolent
or the acquiescent and the lethargic. If there is
inordinate delay on the part of the petitioner in filing
a writ petition and such delay is not satisfactorily
explained, the High Court may decline to intervene
and grant relief in the exercise of its writ jurisdiction.
The evolution of this rule of laches or delay is
premised upon a number of factors. The High Court
does not ordinarily permit a belated resort to the
extraordinary remedy under the writ jurisdiction
because it is likely to cause confusion and public
inconvenience and bring in its train new injustices.
The rights of third parties may intervene and if the
writ jurisdiction is exercised on a writ petition filed
after unreasonable delay it may have the effect of
inflicting not only hardship and inconvenience but
also injustice on third parties. When the writ
jurisdiction of High Court is invoked, unexplained
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delay coupled with the creation of third party rights
in the meanwhile is an important factor which always
weighs with the High Court in deciding whether or
not to exercise such jurisdiction."
In Kuldip Chand v. Union of India & Ors., AIR 1996 SC 706,
the Hon'ble Supreme Court held that inordinate delay or laches is by itself a
ground to refuse relief to the petitioner, irrespective of the merit of his claim. If
a person entitled to a relief chooses to remain silent for long, he thereby gives
rise to a reasonable belief in the mind of like others that he is not interested in
claiming that relief. Others are then justified in acting on that belief.
Similarly, in State of U.P. Vs. Raj Bahadur Singh, (1998) 8
SCC 685; the Hon'ble Apex Court held that there is no time limit for filing
writ petition. All that the Court has to see is whether the laches on the part
of the petitioner are such as to disentitle him to the relief claimed by him.
This Court in Management of Regional Plant Resources
Centre, Nayapali, Bhubaneswar-v-Workmen of Regional Plant
resources Centre, represented by the Regional Plant Resources Centre
Workers Union & Anr., 2007 (II) OLR-127, held that remedy of the writ
Court is only available to a litigant who approaches the Court with
sufficient promptitude. Stale claims are not to be entertained by a writ
Court.
This Court in Akshaya Baral & Others vs. State of Orissa
& Others, 107 (2009) CLT 227, dismissed five writ petitions on the
ground of delay of eight and half years in presenting the writ petition.
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8. Needless to say that inordinate delay or laches is by itself a
ground to refuse relief to the petitioner irrespective of merit of his claim.
Delay or laches is one of the factors, which should be borne in mind while
exercising discretionary powers under Article 226 of the Constitution of
India.
9. Keeping in view of the aforesaid legal proposition of law, we
have to examine the case of the petitioner. Admittedly, in the present case,
the impugned order has been passed on 06.07.1989 and the petitioner filed
the writ petition challenging the said order on 08.03.2010. Thus, there is a
delay of more than 20 years. In paragraph-9 of the writ petition, the
petitioner has explained the delay as follows:
"That, the petitioner was ignorant about the order
dt. 06.07.1989, in revision Case No.39/1989, but
when the Opp.Party No.2 (Tahasildar), gave out in
the locality to evict him from the same case land
in the last part of 2008, the petitioner applied for
certified copy of the said order, dtd. 30.03.2009
and obtained the same on 02.06.2009 and
thereafter, consulting with his advocate, for filing
of case and finally, the matter was decided to
move before this Hon'ble Court, challenging the
order, passed by the A.D.M., the writ petition has
been filed on 08.03.2010. The Tahasildar has not
proceeded to carry out the order, dt. 06.07.1989
to take over the possession of the case land from
this petitioner. So the delay in filing this writ
application in this Hon'ble Court is not willful nor
intentional, but due to the reasons, stated above."
10. As per the above explanation, the petitioner for the first time
came to know about the impugned order in the last part of 2008, when the
Tahasildar took steps to evict the petitioner from the suit land pursuant to
8
the impugned revisional order. This explanation of the petitioner appears to
be false in view of his own averment made in paragraph-6 of the writ
petition, wherein the petitioner averred that he paid rent to the Government
for the suit land and the rent was accepted till the lease was cancelled by
the Revisional Authority. From this averment, it clearly reveals that the rent
from the petitioner was not accepted after the lease was cancelled by the
Revisional Authority in the year 1989. Thus, after cancellation of the lease
when the rent was not accepted from the petitioner, he must have been
aware of the fact of cancellation of lease. Apart from that, impugned order
reveals that the petitioner was asked to show cause as to why the lease
granted in his favour should not be cancelled, in response to which, he
submitted his written statement stating therein that the lease in his favour
should not be cancelled as he was a poor landless person and maintaining
his family by growing crops over the suit land. The order sheet dated
20.06.1989 reveals that the petitioner was present before the Revisional
Authority and filed his written statement. He was heard and the case was
adjourned to 06.07.1989 for orders. The petitioner put his signature
against the said order sheet entry dated 20.06.1989. On 06.07.1989, the
Revisional Authority pronounced the order in open court canceling the
lease granted in favour of the petitioner. In view of the above, it cannot be
said that the petitioner had no knowledge regarding passing of the
impugned order on 06.07.1989. The laches on the part of the petitioner in
not taking timely steps against the impugned order is further proved from
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the later part of his explanations. According to him, he came to know
about cancellation of the impugned order dated 06.07.1989 in the last part
of 2008 and applied for certified copy of the said order on 30.03.2009,
which he obtained on 02.06.2009. The petitioner has not explained the
delay in applying for certified copy of the impugned order in between last
part of 2008 till the application was made for certified copy on 30.03.2009.
The petitioner has also not explained the delay for the period from
02.06.2009 to 08.03.2010 i.e. the period between the date the certified copy
was obtained and writ petition filed. Thus, no satisfactory explanation has
been offered by the petitioner about the inordinate delay of more than 20
years in presenting the writ application, which amounts to sheer laches on
the part of the petitioner.
11. In view of the above, we are of the considered view that the
instant writ application is liable to be dismissed on the ground of delay and
laches alone.
12. The writ petition also does not succeed on the grounds taken
by the petitioner in the petition. Basically, the petitioner challenges the
impugned order on two grounds i.e. on the grounds of limitation and
violation of principle of natural justice.
13. So far as point of limitation is concerned, the same relates to
question No. (ii).
Sub-section (3) of Section 7-A of the O.G.L.S. Act says as
follows:
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"7-A(3) 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.
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 that no proceeding under this
sub-section shall be initiated after expiry of
fourteen years from the date of the order"
(underlined for emphasis)
14. In the instant case, the lease of the suit land was granted by
the Tahasildar in favour of the petitioner on 23.06.1975 and the Revisional
Authority by exercising powers under Section 7-A of the O.G.L.S. Act
initiated proceeding on 10.05.1989 as reveals from order sheet entries
dated 10.05.1989. Thus, the proceedings under Section 7-A(3) of the
O.G.L.S. Act were initiated within the period of limitation.
15. In view of the above, the order passed by the Revisional
Authority is not barred by limitation.
16. So far as the second ground of challenge i.e. violation of the
principle of natural justice is concerned, it relates to question No. (iii). The
grievance of the petitioner is that no reasonable opportunity of hearing was
afforded to him before passing the impugned revisional order. But the
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revisional order itself shows that before passing the said order, notice was
issued to the petitioner to show cause as to why the lease granted in his
favour shall not be cancelled and, in reply to the said notice, the petitioner
submitted his written statement. Moreover, order sheet entry dated
20.06.1989 shows that the petitioner was present before the Revisional
Authority and filed the written statement and he was heard on that day.
The petitioner also put his signature against the said order sheet entry
dated 20.06.1989 whereby the case was adjourned to 06.07.1989 for
orders. The petitioner had not asked for any further opportunity of hearing
on 20.06.1989.
17. Therefore, it cannot be said that reasonable opportunity of
hearing was not afforded to the petitioner before the impugned order was
passed.
18. The question No.(iv) is whether the Revisional Authority is
justified in setting aside the lease of the suit land granted by the Tahasildar
in favour of the petitioner on the ground of non-compliance of statutory
provisions. In the impugned order the Revisional Authority after examining
the LCR and considering the submission of the petitioner set aside the
order of the Tahasildar dated 23.06.1975 granting lease of the suit land in
favour of the petitioner on the following grounds:
"1. According to the provisions of rule 3(3) of
the Orissa Government Land Settlement Rules,
1974 enquiry on the application is required to be
caused within a period not exceeding 15 days.
This has not been done in this case as the
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application has been received on 05.06.1975 and
the enquiry report has been furnished on
22.06.1975.
2. As per provisions of rule 3(4) of the
Rules, the publication of proclamation is to
succeed the enquiry. But in this case this
provision has been violated since the
proclamation has been published on 07.06.1975
whereas the enquiry report has been furnished on
22.06.1975.
3. The lease case record does not show that
the proclamation has been published by beat of
drums or a copy thereof has been supplied to the
Gram Panchayat in which the land is situated as
laid down in rule 3(5) of the Rules.
4. The settlement of land is made without
observing the provisions of Section 3(2) of the
Orissa Government Land Settlement Act, 1962
which provides that at least 70% of the
Government land in a village shall be settled in
favour of the Schedule Tribe and Schedule Caste
persons of the village.
5. The order of priority in settlement of the
land as envisaged in Section 3(3) of the Act has
not been followed."
19. In the writ petition, the petitioner has not challenged the above
grounds.
20. A plain reading of sub-rule (4) of Rule 3 of Orissa Government
Land Settlement Rules, 1974 (in short "Rule 1974") makes it amply clear
that only after necessary enquiry as provided in Sub-rule (3) if the
Tahasildar or the authorized officer is of the opinion that settlement of land
could be granted, he shall publish a proclamation containing particulars of
lease applied for and invite objections, fixing a date for hearing of
objections, if any. This is the mandatory requirement under sub-rule (4) of
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Rule 3 of the Rules 1974. This statutory requirement undisputedly has
been grossly violated as the enquiry report was received on 22.06.1975 and
before receiving enquiry report and forming the opinion as required under
sub-rule (4), the Tahasildar on 06.06.1975 passed order to issue 'Istahar'
inviting public objection and the same was published on 07.06.1975.
Sub-rule (5) of Rule-3 further requires that the proclamation
shall be published by beat of drum and by affixing a copy of the same at a
conspicuous place in the village at which the land is situated in the
presence of not less than two persons of the locality. A copy of the
proclamation shall also be sent to the Grama Panchayat in which the land
is situated. Undisputedly, this statutory requirement has been violated.
21. Procedures prescribed in the Rules are to be followed before
settling Government land in favour of any person as those are not empty
formalities.
It is the settled law that when the action of the State or its
instrumentalities is not on par with the rules or regulations and not
supported by the statute, Court must exercise its jurisdiction to declare
such an act to be illegal and invalid.
In Sirsi Municipality by its President, Sirsi -v- Cecelia Kom
Francis Tellis, AIR 1973 SC 855, the Supreme Court observed that the
ratio is that the rules or regulations are binding on the authorities.
Whenever any action of the authority is in violation of the
provisions of the statute or the action is constitutionally illegal, it cannot
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claim any sanctity in law; and there is no obligation on the part of the
Court to sanctify such an illegal act. Wherever the statutory provision is
ignored, Court cannot become a silent spectator to such an illegality and it
becomes the solemn duty of the Court to deal with the persons violating the
law with heavy hands. (See R.N. Nanjundappa v. T. Thimmaiah & Anr.,
AIR 1972 SC 1767, Sultan Sadik v. Sanjay Raj Subba & Ors., AIR
2004 SC 1377).
Thus, the legal position remains, every statutory provision
requires strict adherence for the reason the statute creates rights in favour
of the citizens, and if, any order is passed de hors the same, it cannot be
held to be a valid order and cannot be enforced. [See Swastik Agency & 2
Ors. v- State Bank of India, Main Branch, Bhubaneswar & 3 Ors., 107
(2009) CLT 250].
The apex Court in Badrinath v. State of Tamil Nadu & Ors.,
AIR 2000 SC 3243, observed that once the basis of a proceeding is gone,
all consequential acts, actions, orders would fall to the ground
automatically.
Non-compliance of mandatory requirements vitiates the
proceedings.
Law is also well settled that when the statute provides for a
particular procedure, the authority has to follow the same and is not
permitted to act in contravention of the prescribed provisions. Other
methods or modes of performance are impliedly and necessarily forbidden.
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The aforesaid settled legal proposition is based on a legal maxim "Expressio
unius est exclusion alteris", meaning thereby 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. (See Taylor v. Taylor, (1876) 1 Ch.D. 426, Nazir Ahmed v.
King Emperor, AIR 1936 PC 253, Ram Phal Kundu v. Kamal Sharma;
and Indian Banks Association v. Devkala Consultancy Service, AIR
2004 SC 2615)
22. Needless to say that rules and regulations are binding on the
State and its instrumentalities and any order passed without complying the
same is invalid.
23. The judgment of this Court in Chandan Ku. Sethi (supra) and
Madhuchhanda Das (supra) are of no help to the petitioner. In Chandan
Kumar Sethi's case lease was granted on 18.9.1974, but subsequently the
same was cancelled for non-compliance of provisions of sub-rules (3) and
(5) of Rule 3 of the OGLS Rules, 1974. In that circumstances, this Court
held that since the OGLS Rules, 1974 were brought into force with effect
from 11.12.1974 the lease granted on 18.9.1974 could not have been
cancelled for non-compliance of provisions to sub-rules (3) and (5) of Rule 3
of the said Rules. Similarly, in Madhuchhanda's case (supra) this Court
held that lease could not have been declared invalid for non-compliance of
non-existent Rules. Whereas, in the present case, lease was granted on
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23.6.1975 and the same was cancelled for non-compliance of provisions of
the Rules under the OGLS Rules, 1974, which were very much in existence.
24. In view of the above, we don't find any illegality and infirmity in
the order passed by the Revisional Authority under Annexure-2 warranting
any interference by this Court.
25. In the result the writ petition is dismissed.
No order as to cost.
...........................
B.N.Mahapatra, J.
B.P.Das, J.I agree.
........................ B.P.Das, J.
Orissa High Court, Cuttack Dated 29th July,2010/sss/skj/ pcp