Orissa High Court
M/S. Acrux Realcon Pvt vs State Of Odisha on 11 December, 2019
Equivalent citations: AIRONLINE 2019 ORI 233
Author: S.K. Sahoo
Bench: S.K. Sahoo
IN THE HIGH COURT OF ORISSA, CUTTACK
W.P.(C) No. 20269 Of 2017
An application under Articles 226 and 227 of the Constitution of
India.
M/s. Acrux Realcon Pvt.
Ltd. ....... Petitioner
-Versus-
State of Odisha
and others ....... Opposite parties
W.P.(C) No. 5634 of 2019
Pabitra Mohan Samal ....... Petitioner
-Versus-
State of Orissa
and others ....... Opposite Parties
For Petitioner: - Mr. Budhadev Routray
(in W.P.(C) No. (Senior Advocate)
20269 of 2017)
For Petitioner: - Mr. Sourya Sundar Das
(in W.P.(C) No. (Senior Advocate)
5634 of 2019)
For Opp. Parties: - Mr. Kishore Kumar Misra
Addl. Govt. Advocate
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P R E S E N T:
THE HONOURABLE KUMARI JUSTICE SANJU PANDA
AND
THE HONOURABLE MR. JUSTICE S.K. SAHOO
---------------------------------------------------------------------------------------------------
Date of Hearing: 27.11.2019 Date of Judgment: 11.12.2019
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S.K. Sahoo, J. M/s. Acrux Realcon Pvt. Ltd. (hereafter 'the
petitioner-company') in W.P.(C) No.20269 of 2017 has
challenged the legality, validity and propriety of the impugned
order dated 07.07.2017 (Annexure-1) passed by the Additional
District Magistrate, Bhubaneswar (opposite party no.3) in Lease
Revision Case No.01 of 2015 in cancelling the lease in respect of
the case land situate in Mouza Gothapatna in exercise of power
conferred under section 7-A(3) of the Orissa Government Land
Settlement Act, 1962 (hereafter 'O.G.L.S. Act') on the ground of
material irregularities, legal deformity and procedural lapses.
The petitioner Pabitra Mohan Samal in W.P.(C)
No.5634 of 2019 has also challenged the self-same order which
the petitioner-company in W.P.(C) No.20269 of 2017 has
challenged, inter alia, the orders dated 08.11.2017 passed in
Lease Revision Case Nos.02 of 2015 to 13 of 2015 by the
Additional District Magistrate, Bhubaneswar in cancelling the
lease in respect of the different plots of land situate in Mouza
3
Gothapatna in exercise of power conferred under section 7-A(3)
of the O.G.L.S. Act.
Since the orders in different lease revision cases
have been passed by the same authority exercising the same
power on similar grounds and both the matters are connected to
each other, with the consent of learned counsel for the parties,
those were heard analogously and disposed of by this common
judgment.
2. The case of the petitioner-company in W.P.(C)
No.20269 of 2017 is that it is a private limited company under
the provisions of the Companies Act, 1956 having its registered
office at Patia, Bhubaneswar which is engaged in the business of
construction and real estate development activities. In the daily
newspaper 'Sambad' dated 12.06.2015, a public notice was
published inviting public objection by 25.07.2015 against the
decision to transfer the lands mentioned in the said notification
to the Government Khata which was issued by the Additional
District Magistrate, Bhubaneswar (opposite party no.3). Pursuant
to such notice, the petitioner-company made inspection as one
of the items of landed properties mentioned in the aforesaid
public notice belonged to it. After inspection, the petitioner-
company procured certified copies of the documents from which
4
it came to light that the Additional District Magistrate,
Bhubaneswar had initiated a proceeding under section 7-A(3) of
the O.G.L.S. Act asking for show cause as to why the lease in
respect different plots of land in Mouza Gothapatna should not be
cancelled for alleged violation of conditions and to be more
specific for allegedly transferring the leasehold property to
others. It is the specific case of the petitioner-company that one
Netrananda Dehury applied for lease of Government land
measuring an area Ac.1.00 decimal on 05.06.1973 and
accordingly, a lease case vide W.L. Case No.124 of 1973 was
instituted and the concerned R.I. was directed to submit the
enquiry report along with the sketch map. Pursuant to the
direction of the Tahasildar, the R.I. caused an enquiry and
submitted the report stating therein that the applicant was a
landless Adibasi and that he might be granted lease for an acre
of land specifically mentioning the Khata, Plot, Kissam etc.
Thereafter, the Tahasildar issued a public notice inviting
objection from the local public. On 25.07.1973, lease was
lawfully sanctioned vide W.L. Case No.124 of 1973 by following
the due process of law, whereafter the said Netrananda Dehury
became the lawful and absolute owner in possession of such
lease property without any hindrance from any quarters. On
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26.05.1988, permission of Revenue Officer in Rev. Misc. Case
No.32 of 1998 in D.R. No.610 was granted to the aforesaid
Netrananda Dehury under section 22(1)(b) and (4) of the Odisha
Land Reforms Act, 1960 (hereafter 'O.L.R. Act') for transfer of
the leasehold land. On 06.06.1988, Netrananda Dehury after
obtaining valid permission from the Revenue authorities, in order
to meet his urgent requirements sold away Ac.0.765 decimals of
the leasehold land by way of registered sale deed no.5317 dated
06.06.1988 in favour of one Sri Aruna Mohanty who then
possessed the property lawfully as the absolute owner. On
29.01.1996, this Court in O.J.C. No.9449 of 1993 passed an
omnibus direction to the State Government regarding enquiry
into the matter relating to lease of lands in Bhubaneswar. On
15.10.1998, this Court gave further direction in the said case to
the Government to examine whether the cases are covered
under section 3-B of the O.G.L.S. Act and to proceed in
accordance with the said provision by following due procedure.
On 17.12.1999, the Additional District Magistrate, Bhubaneswar
after examining the entire case records of W.L. Case No.124 of
1973 directed the Additional Tahasildar, Bhubaneswar (opposite
party no.4) vide his letter No.9905 for disposal on assessment
on its own merit and in accordance with section 3-B of the
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O.G.L.S. Act in compliance of the order of this Court. On
19.09.2001, the aforesaid Aruna Mohanty sold away different
portions of the purchased land in favour of different persons like
Manjulata Jena vide registered sale deed no.4969 for an area of
Ac.0.195 decimals, Sanjukta Padhiary vide registered sale deed
no.4970 for an area of Ac.0.195 decimals, Gangadhar Swain vide
registered sale deed no.4971 for an area of Ac.0.130 decimals,
Samarendra Nayak vide registered sale deed no.4972 for an area
of Ac.0.065 decimals and also in favour of Ranu Biswal vide
registered sale deed no.4973 for an area of Ac.0.065 decimals.
On 22.06.2002, the Additional Tahasildar, Bhubaneswar initiated
a case for resumption of the aforesaid lands which were leased
out in favour of Netrananda Dehury in W.L. Case No.124 of 1973
in exercise of powers under section 3-B of the O.G.L.S. Act in
terms of the direction of the Additional District Magistrate,
Bhubaneswar as per order dated 17.12.1999. On 25.06.2002,
notices were issued inviting objections, if any, along with paper
publications by the Additional Tahasildar, Bhubaneswar in the
said resumption case. On 06.09.2002, the Additional Tahasildar,
Bhubaneswar also published Ishtahara in the said case. On
06.10.2002, lease resumption proceeding was dropped after
following due process of law by the Additional Tahasildar,
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Bhubaneswar. On 21.04.2011, i.e. after about a decade of the
aforesaid statutory exercise in re-examining the lease in favour
of Netrananda Dehury in pursuance to the direction of this Court
in O.J.C. No.9449 of 1993 and after statutorily adjudicating the
same to be lawful and non-resumable as contemplated under
section 3-B of the O.G.L.S. Act, transfers were effected in
respect of the leasehold property by the aforesaid purchasers of
Aruna Mohanty in favour of the petitioner-company. All the
aforesaid transfers before the dropping of the proceeding under
section 3-B of the O.G.L.S. Act and the subsequent transfers by
the earlier transferees became valid under the law in terms of
section 43 of the Transfer of Property Act. The petitioner-
company then applied for conversion of the purchased lands
from agricultural to homestead under section 8-A of the O.L.R.
Act. The Tahasildar after accepting the requisite fees directed for
conversion and intimated the same to the Settlement Authority
as settlement operation had already begun. Thereafter the
petitioner-company applied for mutation before the concerned
Asst. Settlement Officer (opposite party no.5) as the Tahasildar,
Bhubaneswar had no power of mutation during settlement
operation. The Asst. Settlement Officer on receipt of the
aforesaid motion for mutation initiated Objection Case Nos.3173
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of 2012, 3176 of 2012, 3178 of 2012, 3174 of 2012 and 3177 of
2012 in respect of respective purchases of the petitioner-
company and dropped the proceeding solely on the ground that
the property has already been recorded in the Government
Khata. Accordingly, the petitioner filed W.P.(C) No.22095 of
2014, W.P.(C) No.22096 of 2014, W.P.(C) No.22097 of 2014,
W.P.(C) No.22098 of 2014 and W.P.(C) No.22099 of 2014
challenging the aforesaid undated order passed by the Asst.
Settlement Officer in each case. This Court by its order dated
05.05.2016 taking cognizance of the glaring illegality quashed
the aforesaid order of the Asst. Settlement Officer. On
11.08.2014, this Court in the case of Hadu Paltasingh -Vrs.-
State of Orissa in W.P.(C) No.12641 of 2012 observed that
several other cases of fraud were committed in the grant of
leases which came to light for which the Collector, Khurdha was
directed to conduct a review in respect of any fraud in the grant
of leases and the Additional District Magistrate, Bhubaneswar
initiated the impugned proceeding under section 7-A(3) of the
O.G.L.S. Act. The initiating authority initiated the impugned
proceeding during subsistence of the order for maintenance of
status quo passed by this Court in the aforesaid writ petitions.
The petitioner-company filed W.P.(C) No.6905 of 2016
9
challenging the very initiation of the impugned proceeding and
this Court remitted the matter back to the Additional District
Magistrate, Bhubaneswar to adjudicate the matter afresh.
Thereafter, the Additional District Magistrate, Bhubaneswar
noticed the petitioner-company and after appearance, the
petitioner-company urged that the records which were not
produced before this Court should be made available for proper
adjudication. The Additional District Magistrate, Bhubaneswar
asked the Tahasildar, Bhubaneswar to produce the records who
replied that the records were not traceable. Accordingly, the
Additional District Magistrate, Bhubaneswar disposed of Lease
Revision Case No.01 of 2015 vide impugned order dated
07.07.2017 under Annexure-1 in allowing the revision case and
rejecting the objection of the petitioner-company relating to the
maintainability of the proceeding and also cancelling the lease of
the case land in favour of the lessee.
3. The case of the petitioner Pabitra Mohan Samal in
W.P.(C) No.5634 of 2019 is that in pursuance to an
advertisement issued by the petitioner-company, the petitioner
not only verified the title of the land in question but also other
certificates granted by different statutory authorities for
construction of a residential project called Acropolies which is a
10
multi-storied apartment located in village Gothapatana under
Bhubaneswar Tahasil in the district of Khurda and having been
fully satisfied about validity of the title and technical feasibility of
the said apartment, applied for allotment of a 3 BHK flat and
paid necessary security money and also paid the entire money
phase wise and after payment of the dues, the petitioner-
company executed the sale deed on 30th November 2012 in
favour of the petitioner and accordingly possession of Flat No.H-
112 of area 1414 sq. ft. in the 1st floor was handed over to the
petitioner way back on 22.03.2014 and the petitioner came to
possess the said building and residing there since 2014. The
petitioner came to know that the Additional District Magistrate,
Bhubaneswar in exercise of the power conferred under section 7-
A(3) of the O.G.L.S. Act has settled the land over which the
building was constructed in favour of the Government in Lease
Revision Case Nos.1 to 13 of 2015 without hearing the petitioner
who was a necessary party to such cases. By the order of the
Additional District Magistrate, the right of the petitioner over the
said land was taken away behind his back by cancelling the lease
and returning it to the Government khata. It is the further case
of the petitioner that the petitioner was a bonafide allottee and
without impleading him as a party, the Additional District
11
Magistrate has passed the impugned orders and due to passing
of such orders, the petitioner would be deprived of getting the
title over the flat in question, irrespective of execution of sale
deed in his favour even after making payment of entire money to
the builders. It is the case of the petitioner that being an
affected person pursuant to the orders passed by the Additional
District Magistrate in different lease revision cases, he was a
necessary party to all the revision cases but without impleading
him as party, the impugned orders have been passed and
thereby the right of the petitioner has been taken away in his
absence which amounts to violation of principle of natural justice
for which the impugned orders are liable to be set aside. It is the
further case of the petitioner that the lease was granted in
favour of the original lessee strictly on the basis of the O.G.L.S.
Act and Rules framed thereunder and there is no infirmity in the
order of the O.E.A. Collector in granting lease in favour of the
original lessee and there is inordinate delay in initiating the
proceeding under section 7-A(3) of the O.G.L.S. Act by the
Additional District Magistrate and in view of the statutory bar
coupled with 3rd party right, the impugned orders are also
unwarranted in the eye of law.
12
4. The Additional District Magistrate, Bhubaneswar in
the impugned order dated 07.07.2017 under Annexure-1 in
W.P.(C) No.20269 of 2017 has been pleased to formulate two
points i.e. (i) whether Lease Revision Case No.01 of 2015 is
maintainable? (ii) if so, then, is there any mistake of fact, fraud,
violation of procedure in the process of the lease?
Taking into account the orders of this Court passed in
Hadu Paltasingh (supra) and in O.J.C. No.9449 of 1993, it was
held by the Additional District Magistrate that there is no
illegality or impropriety in the initiation of the revision
proceeding in respect of the case land. It was further held that
the case record reveals that the eligibility aspects of the lessee
for availing of Government land on lease was examined and
verified by the Tahasildar, Bhubaneswar before settlement of one
acre of land in the vicinity of Bhubaneswar Municipal Corporation
area and no enquiry was conducted either by R.I. or anything
has been mentioned by the Tahasildar in the case record in that
regard and therefore, the settlement of lease without
examination of the above aspects was not proper and also not in
conformity with the provision of law. It was further held that
nothing has been mentioned in the case record as regards the
extent of land possessed by the lessee or whether the lessee was
13
a landless or not and therefore, the eligibility of the lessee to
avail the land on lease still remains as a question. It was further
held that the procedure on proclamation of notice as laid down
under O.G.L.S. Rules was not properly adhered to while deciding
the lease of the case land in favour of the lessee and that the
lease of the case land involves certain material irregularities,
legal deformity and procedural lapses and accordingly, the
revision case was allowed and the lease of the case land settled
in favour of the lessee was cancelled.
Similar points for adjudication were formulated and
similar reasons were assigned in the Lease Revision Case Nos.
02 to 13 of 2015 in cancelling lease of the case lands which are
challenged in W.P.(C) No.5634 of 2019.
5. Mr. Budhadev Routray, learned Senior Advocate
appearing for the petitioner-company in W.P.(C) No.20269 of
2017 contended that the resumption proceeding under section
3-B of the 1962 Act was initiated in respect of the land leased in
favour of Netrananda Dehury and as per order dated
06.10.2002, the said resumption proceeding was dropped. It is
further contended that the lease was granted way back in 1973
in W.L. Case No.124/73 but the proceeding under 7-A(3) of the
O.G.L.S. Act was initiated on 10.04.2015 which was after forty
14
two years, which is not permissible in law particularly when third
party right had accrued and several orders were passed by
different statutory authorities in different proceedings. He argued
that the original lessee who was a Scheduled Tribe person, after
obtaining permission under section 22(4) of the O.L.R. Act
transferred the land by way of sale deed on 06.06.1998.
Subsequently by virtue of the sale deed, the transferees made
an application under section 8-A read with Rule 12-A of the
Odisha Land Reforms (General) Rules, 1965 for conversion of the
land in OLR case no.10779 of 2011 and accordingly, the land was
recorded as Stitiban status by the competent authority and the
Record of Rights (R.O.R.) were corrected. According to Mr.
Routray, the impugned order was passed by the A.D.M. relying
upon the direction made in the case of Hadu Palta Singh
(supra) which was a case of fraud whereas in the case in hand,
there is no whisper of fraud. He emphasized that before initiation
of proceeding under section 7-A(3), the authority must satisfy
itself about the existence of circumstances necessary for
exercising such jurisdiction but a bare perusal of order dated
10.04.2015 in Lease Revision Case No.01 of 2015 under
Annexure-9 indicates that through the proposal was for initiation
of resumption proceeding under section 3-B of the O.G.L.S. Act
15
but in the operative portion of the said order, notice was issued
requiring the lessee to explain why lease would not be cancelled
for violation of the conditions. Under section 7-A(3) of the
O.G.L.S. Act which was amended by Orissa Act No. 38 of 1976,
no proceeding under that sub-section can be initiated after the
expiry of fourteen years from the date of the order which period
was lifted vide Odisha Act No.26 of 2013 which came into force
on 13.11.2013. He argued that in the instant case, such a power
under section 7-A(3) of the O.G.L.S. Act was not available to the
Additional District Magistrate since lease was granted in 1973 on
the basis of pre-amended Act. While concluding his argument,
Mr. Routray contended that when the records in W.L. Case
No.565 of 1972 which was the basis of the order passed in W.L.
Case No.124 of 1973 was not available, the conclusion arrived at
by the Additional District Magistrate in the impugned order under
Annexure-1 that the lease of the case land involves certain
material irregularities, legal deformity and procedural lapses is
totally misconceived. Reliance was placed in the cases of Bata
Krushna Nayak -Vrs.- State of Orissa reported in 2010 (I)
Orissa Law Reviews 723, Ram Karan -Vrs.- State of
Rajasthan reported in A.I.R. 2014 S.C. 3070, Sulochana
Chandrakant Galande -Vrs.- Pune Municipal Transport
16
reported in (2010) 8 Supreme Court Cases 467, Laxman
Kanda -Vrs.- State of Orissa reported in 1991 (II) Orissa
Law Reviews 50 and Smt. Shantilata Dei -Vrs.- A.D.M.
reported in 1996 (II) Orissa Law Reviews 182..
Mr. Sourya Sundar Das, learned Senior Advocate
appearing for the petitioner Pabitra Mohan Samal in W.P.(C)
No.5634 of 2019 emphatically contended that the petitioner is
residing in the apartment since 2014 and he was a bonafide
allottee and therefore, without impleading him as a party in the
proceeding and without giving him an opportunity of hearing, the
Additional District Magistrate, Bhubaneswar should not have
passed the impugned orders in the lease revision cases which
amounts to violation of principle of natural justice.
Mr. Kishore Kumar Misra, learned Addl. Govt.
Advocate on the other hand supported the impugned orders and
submitted that the Tahasildar had taken recourse to settlement
of a big patch of valuable land which situates in the periphery of
Bhubaneswar Municipal area in favour of a private individual
without examining his eligibility criteria and without even
thinking a little on reservation of land for the purpose of
expansion of city and future development. It is further argued
that since by virtue of Odisha Act 26 of 2013, the period of
17
limitation in exercising the suo moto revisional power under
section 7-A(3) of the O.G.L.S. Act has been taken away, no fault
can be found in the initiation of the proceeding in the year 2015
particularly in view of the orders of this Court passed in Hadu
Paltasingh (supra). He placed reliance in the case of State of
Orissa -Vrs.- Brundaban Sharma reported in 1995
Supp.(3) Supreme Court Cases 249 and submitted that
length of time cannot be a factor to refrain from exercising the
revisional power and since there is no illegality or infirmity in the
impugned orders, this Court in a writ of certiorari should not
interfere with the same.
6. Adverting to the contentions raised by the learned
counsel for the respective parties and after carefully going
through the impugned orders and case records, it appears that in
W.L. Case No.124 of 1973, the land in question was leased out in
favour of one Netrananda Dehury, son of Sukadeb Dehury of
village Gothapatana under Chandaka police station in the district
of Puri on 25.07.1973 under the provisions of O.G.L.S. Act, 1962
and O.G.L.S. Rules, 1963. Before grant of lease, proclamation
was issued, report was called for from the Revenue Inspector
who submitted his enquiry report along with the case map
indicating therein that the applicant is a member of Scheduled
18
Tribe and a landless person and also recommended the case of
the applicant for grant of lease. The relevant documents in that
respect have been annexed as Annexure-3 and Annexure-4 to
W.P.(C) No.20269 of 2017. The learned counsel for the State
also produced the records of W.L. Case No.124 of 1973 during
hearing of the case. The learned counsel for the petitioner placed
different provisions of O.G.L.S. Act, 1962 as well as O.G.L.S.
Rules, 1963 which indicate that at the relevant point of time no
specific procedure was there relating to grant of lease or the
manner of settlement of Government land. It is mentioned in the
impugned orders that the lease of case land involves certain
material irregularities, legal deformity and procedural lapses.
When a pertinent question was put to the learned State Counsel
as to which procedure laid down in the aforesaid Act and Rules or
any standing orders issued by the Government were violated at
the time of grant of lease, no satisfactory reply was given. As it
seems, even though there was no specific procedure laid down
for grant of lease of Government land then in O.G.L.S. Act, 1962
as well as O.G.L.S. Rules, 1963 but all the same the authorities
issued proclamation, called for report from the Revenue
Inspector and after submission of enquiry report along with the
case map, lease was granted in favour of Netrananda Dehury.
19
The Orissa Government Land Settlement Rules, 1974
(hereafter 'O.G.L.S. Rules, 1974') came into force on 11.12.1974
which is obviously after grant of lease in the case in hand and in
the said Rules, for the first time some procedure were laid down
for grant of lease in Rule 3. By virtue of Rule 8 of the said Rules,
O.G.L.S. Rules, 1963 was repealed but in view of sub-rule (2) of
Rule 8, in spite of such repeal, anything done or any action taken
under O.G.L.S. Rules, 1963 was saved. Then the Orissa
Government Land Settlement Rules, 1983 (hereafter 'O.G.L.S.
Rules, 1983') came into force on 06.03.1984 repealing O.G.L.S.
Rules, 1974 and in Rule 5 of O.G.L.S. Rules, 1983, a detailed
procedure was laid down relating to manner of settlement of
Government land. Since in the instant case, the lease was
granted prior to the coming into force of O.G.L.S. Rules of 1974
and 1983, no fault can be found with the Tahasildar in granting
lease in favour of Sri Netrananda Dehury following certain
procedures. The Additional District Magistrate, Bhubaneswar
appears to have overlooked the provisions of O.G.L.S. Act, 1962
and O.G.L.S. Rules, 1963 and referring to Rule 5 of O.G.L.S.
Rules, 1983 held that the procedure laid down therein have not
been followed. When O.G.L.S. Rules, 1983 was not there at the
relevant point of time, where is the question of following any
20
procedure laid down therein? It reflects total non-application of
mind on the part of the Additional District Magistrate while
cancelling the lease.
In the impugned orders, it is mentioned that the case
record reveals that the eligibility aspect of the lessee for availing
of Government land on lease was not examined and verified by
the Tahasildar, Bhubaneswar, however it is mentioned that by
virtue of a joint order recorded in W.L. Case No.565 of 1972,
lease was sanctioned. The learned Addl. Govt. Advocate
submitted that the record of W.L. Case No.565 of 1972 is not
available. When the records of W.L. Case No.124 of 1973
produced before us do not indicate any irregularity or illegality in
the grant of lease and the other W.L. Case record is not available
and the learned Additional Government Advocate has not
produced anything to show what was the eligibility criteria
prevailing then at the time of grant of lease and how it was
flouted, we are not able to accept the view taken by the
Additional District Magistrate that the eligibility aspect of the
lessee has not been examined.
The Additional District Magistrate further held that no
enquiry was conducted by the R.I. which is contrary to the
records inasmuch as the enquiry report of the R.I. is very much
21
available in the records of W.L. Case No.124 of 1973. Similarly it
is mentioned in the impugned orders that nothing is mentioned
in the case record as regards the extent of land possessed by the
lessee or whether the lessee was a landless person or not. Such
an observation is clearly an error of record inasmuch as it is
mentioned therein that the applicant was a landless person apart
from the fact that he was a member of Scheduled Tribe.
It is not in dispute that the lease was granted way
back in 1973 but the proceeding under 7-A(3) of the O.G.L.S.
Act was initiated in the year 2015 i.e. after forty two years. The
suo moto power of revision was conferred under section 7-A(3)
with the Board of Revenue for the first time in the O.G.L.S. Act,
1962 by way of amendment in the form of the Orissa
Government Land Settlement (Amendment and Validation) Act,
1974 which prescribed period of one year for exercise of such
power in calling for and examining the records of any proceeding
in which any authority subordinate to him has passed an order
under the Act for the purpose of satisfying himself as to whether
such order was not passed under a mistake of fact or owing to
fraud or misrepresentation. The period was enhanced to fourteen
years in the year 1976 by virtue of Orissa Act, 38 of 1976 and in
the year 1981, by virtue of Act 18 of 1981, in place of Board of
22
Revenue, the Collector was conferred with suo moto revision
power. No such power was exercised in the case in hand by the
prescribed authorities within the time stipulated. In the
meantime, third party rights were accrued by virtue of several
orders passed by different statutory authorities in different
proceedings.
In the case of Bata Krushna Nayak (supra), it is
held as follows:-
"......Further, we find that the original lease was
granted long back in 1974 whereas the order of
the revisional authority was passed in 1998, i.e.,
about 24 years after the grant of lease. Under
the second proviso to Section 7A (3) referred to
above, no proceeding can be initiated after
expiry of fourteen years from the date of order
granting lease. Since in the instant case, the
proceeding under Section 7-A(3) of the OGLS
Act was initiated by the revisional authority after
24 years of grant of lease, i.e., beyond the
statutory period of limitation prescribed, on that
ground also the present writ petition succeeds."
In the case of Ram Karan (supra), it is held as
follows:
"36. In the present case, no action was taken
either by the Vendor or by the State for more
23
than 31 years. The sale deed was executed on
12.01.1962 and the land was mutated in the
name of the Appellants' predecessor in interest
on 10.09.1963. It was after about 31 years, on
06.07.1993 the suit was filed by the Tehsildar,
Viratnagar being Case No. 1681 of 1993. In the
said suit for the first time an application was
filed for appointment of receiver. The said
application was rejected by the Assistant
Collector, Shahpura vide order dated 1.1.1994
holding that the vendee has been in possession
and cultivating the suit land for 32 years.
37. In view of the position of law, as noticed
above, it is not necessary to see whether the
petition for cancellation of mutation was filed on
time or not. The decision of this Court in Nathu
Ram -Vrs.- State of Rajasthan:(2004) 13
Supreme Court Cases 585 relates to Section
42 of the Act and the transaction made in
contravention with the provisions of the said Act.
In the said case, similar plea were taken by the
parties, having noticed Sub-Section 4(A) of
Section 175 and Section 214 of the Act, this
Court held that as the transaction was made
much beyond the period of 12 years, the
proceeding was beyond the period of limitation
and, therefore, barred by limitation.
38. In State of Punjab and Ors. -Vrs.-
Bhatinda District Cooperative Milk Union
24
Ltd.: (2007) 11 Supreme Court Cases 363,
this Court held that if no period of limitation has
been prescribed, statutory authority must
exercise its jurisdiction within a reasonable
period. However, what shall be the reasonable
period would depend upon the nature of the
statute, rights and liabilities thereunder and
other relevant factors. In the present case,
neither any objection was raised nor was any
application filed by vendors for restoration of
land in their favour. The suit was filed by the
Tehsildar, Viratnagar after more than 31 years.
No ground is shown to file such petition after
long delay nor it was mentioned as to whether
the vendors i.e. original landholders made any
application for restoration of land in their favour.
39. In view of the matter, we hold that the suit
being filed beyond the reasonable period was fit
to be dismissed. The Additional Collector rightly
dismissed the suit being barred by limitation."
In the case of Sulochana Chandrakant Galande
(supra), the Hon'ble Supreme Court considering section 34 of the
Urban Land (Ceiling and Regulation) Act, 1976 which deals with
revisional power of the State Government, held as follows:-
"28. The legislature in its wisdom did not fix a
time-limit for exercising the revisional power nor
inserted the words "at any time" in Section 34 of
1976 Act. It does not mean that the legislature
25
intended to leave the orders passed under the
Act open to variation for an indefinite period
inasmuch as it would have the effect of
rendering title of the holders/allottee(s)
permanently precarious and in a state of
perpetual uncertainty. In case, it is assumed
that the legislature has conferred an everlasting
and interminable power in point of time, the title
over the declared surplus land, in the hands of
the State/allottee, would forever remain virtually
insecure. The Court has to construe the
statutory provision in a way which makes the
provisions workable, advancing the purpose and
object of enactment of the statute.
29. In view of the above, we reach the
inescapable conclusion that the Revisional
powers cannot be used arbitrarily at belated
stage for the reason that the order passed in
Revision under Section 34 of the 1976 Act, is a
judicial order. What should be reasonable time,
would depend upon the facts and circumstances
of each case."
In the case of Laxman Kanda (supra), this Court
considering section 12 of the Odisha Prevention of Land
Encroachment Act, 1972 which deals, inter alia, suo motu
revisional power of the Revenue Divisional Commissioner, held
as follows:-
26
"5.....In view of such overwhelming authorities,
we cannot but repel the submission of the
learned Additional Government Advocate that
because of the wording of Section 12 the power
was available to be exercised by the
Commissioner at any time. But the question is
as to what is reasonable time within which the
power should be exercised. Though there is no
intrinsic evidence in the Act itself as to what
would be the reasonable time for exercise of suo
motu power of revision, yet without going into
that question it can be held on the authorities of
the decisions (supra) that such reasonableness
is dependent upon facts and circumstances of
each case, including analysis of relevant
provisions of the statute concerned. Section 38-
A of the Orissa Estates Abolition Act is a pari
materia statute as regards the vesting of the
estates in the State and the settlement thereof,
with the intermediaries or recognising the
continuance of the tenants under the State. The
provision empowers the respective authorities to
review any order in a suo motu proceeding
within one year from the date of the decision or
the order. Even though we do not propose to
hold a general view that the power of suo motu
revision is to be exercised by the Commissioner
under the Act within a year of the date of the
order, yet so far as the present case is
concerned, we feel that the order of the
27
Tahasildar on 18-1-1978 was not available to be
varied after lapse of nearly five year and as a
matter of fact no move for a reference should
have been made by the Collector after expiry of
such period. Here is a case where the petitioner,
a tribal was in possession of the land since 1945
and even if it is his admission that since 1965
his sons are in possession of the land, it does
not alter the position that it is either the
petitioner or his sons who are in possession.
Ordinarily a person who has continued in
possession for such length of time is not to 'be
disturbed even if he is not a tribal and that more
weightage is to be as attached when the person
concerned is one such. We would thus hold that
the initiation of the proceeding against the
petitioner was erroneous in law and hence
cannot be sustained."
It is no doubt true that in the case of Brundaban
Sharma (supra), the Hon'ble Supreme Court held as follows:-
"16. It is, therefore, settled law that when the
revisional power was conferred to effectuate a
purpose, it is to be exercised in a reasonable
manner which inheres the concept of its exercise
within a reasonable time. Absence of limitation is
an assurance to exercise the power with caution
or circumspection to effectuate the purpose of
the Act, or to prevent miscarriage of justice or
violation of the provisions of the Act or misuse
28
or abuse of the power by the lower authorities or
fraud or suppression. Length of time depends on
the factual scenario in a given case. Take a case
that patta was obtained fraudulently in collusion
with the officers and it comes to the notice of
the authorities after a long lapse of time. Does it
lie in the mouth of the party to the fraud to
plead limitation to get away with the order?
Does lapse of time an excuse to refrain from
exercising the revisional power to unravel fraud
and to set it right? The answers would be no."
However, Brundaban Sharma (supra) case relates
to commission of fraud in acquiring the Government land by a
person in collusion with the officers.
It is not in dispute that by virtue of amendment to
the O.G.L.S. Act by Odisha Act No.26 of 2013 which came into
force on 13.11.2013, the period of limitation of fourteen years
prescribed in the Orissa Act No.38 of 1976 for exercising suo
motu revisional power by the authority under section 7-A(3) has
been lifted. Therefore, as the law stands now, in case of proof of
fraud in the grant of lease, length of time cannot be a factor not
to exercise the suo motu revision power. Similarly, if the
authority is satisfied that there is mistake of fact or
misrepresentation or any kind of material irregularity of
procedure in the grant of lease, then also length of time would
29
not be a bar in exercising such suo motu revisional power. A
'mistake of fact' occurs when some fact which really exists is
unknown or some fact is supposed to exist which really does not
exist. 'Misrepresentation' is an act of making a false or
misleading statement about something with the intent to deceive
or it is an assertion that does not accord with the facts. 'Material
irregularity' is omission to mention a certain thing required by
the statute. (Advanced Law Lexicon, 3rd Edition by P. Ramanatha
Aiyar). However, in the case in hand, there is absolutely no
material relating to commission of fraud in the grant of lease.
Even though the impugned order indicates regarding material
irregularities, legal deformity and procedural lapses, we have
already discussed that such vague observation of the Additional
District Magistrate is based on no material and it also suffers
from non-application of mind by applying a procedural law to
cancel the grant of lease which was not in force at the relevant
point of time when the original lessee Netrananda Dehury was
granted lease. This Court in the case of Hadu Paltasingh
specifically took note of the fraud committed in several cases in
the grant of lease and accordingly directed Collector, Khurda to
conduct a review to find out those cases where lease has been
granted fraudulently and to initiate appropriate action against
30
such person. Most peculiarly, the Additional District Magistrate
without any finding of commission of fraud in the case in hand,
cancelled the lease on some other grounds for which there is no
clinching material in the lease case records.
The initiation of the proceeding under section 7-A(3)
of the O.G.L.S. Act has also no definite basis. A bare perusal of
the order indicates that though the proposal was for initiation of
resumption proceeding under section 3-B of the O.G.L.S. Act but
in the operative portion of the order, notice was issued requiring
the lessee to explain why lease would not be cancelled for
violation of the conditions. Therefore, we are of the view that the
proceeding has been initiated arbitrarily and illegally. In the case
of Smt. Shantilata Dei (supra), it is held as follows:-
"10. It is well-settled that before exercising a
power or jurisdiction vested in an authority, he
is to satisfy himself about the existence of
circumstance necessitating exercise of said
jurisdiction and to record prima face reasons for
the same. Mechanical reproduction of the
language of the statute in the order or notice is
no substitute for recording reasons upon
application of mind to the facts of the case. No
fishing or roving enquiry without arriving at the
required satisfaction is permissible.
31
11. In the present case, the notice and also the
order of initiation clearly indicate that the
revisional authority merely reproduced the
language of the section without any application
of mind or without disclosing any definite basis
for exercise of the suo motu power. In the
circumstance, the initiation of the impugned
proceeding is illegal, arbitrary and incompetent."
7. So far as the petitioner Pabitra Mohan Samal in
W.P.(C) No.5634 of 2019 is concerned, he was a bonafide
allottee, but the Additional District Magistrate, Bhubaneswar
without impleading him as a party and without giving him an
opportunity of hearing passed the impugned orders in the lease
revision cases affecting his valuable rights over the properties.
The proviso to sub-section (3) of section 7-A of the O.G.L.S. Act
clearly indicates that no order in the suo motu revision shall be
passed unless the person affected by the proposed order has
been given a reasonable opportunity of being heard in the
matter. The learned Additional Government Advocate fairly
submitted that no notices were issued by the A.D.M. to the
petitioner. In the case of Bata Krushna Nayak (supra), it is
held as follows:-
"On perusal of the impugned order, it reveals
that the Additional District Magistrate,
Bhubaneswar has not made any attempt to
32
comply with the requirement of first proviso to
Section 7-A(3) of the Act quoted above, by
calling for information from the office of the
Sub-Registrar as to whether in the meantime
the leasehold property or any portion thereof
has been alienated by the original lessee to any
other party. Had such report been called for, the
revisional authority could have ascertained at
the petitioner has purchased in the interregnum
a portion of the leasehold land from the original
lessee and thereupon the Additional District
Magistrate, Bhubaneswar should have issued
notice to the petitioner, who is the real affected
party, in order to comply with the first proviso to
Section 7-A(3) of the Act. No such step has been
taken by the Additional' District Magistrate
before passing the impugned order.
The legal position which has arisen in this
proceeding came up for consideration by this
Court in the case of Rama Chandra Pandav v.
State of Orissa and Ors. (W.P.(C) No. 14364 of
2006 decided on 9.11.2006) and in the said case
this Court held that since the petitioner had
purchased a portion of the leasehold land from
the original lessee, the order of the Additional
District Magistrate was not sustainable as the
same was contrary to the provisions of the
Orissa Government Land Settlement Act and
accordingly, quashed the same.
33
Therefore, we are of the view that the impugned
orders have been passed without complying the statutory
provisions and it is also against principle of natural justice.
8. In the case in hand, the resumption proceeding
under section 3-B of the O.G.L.S. Act was initiated on
22.06.2002 in respect of the lands which were leased out in
favour of Netrananda Dehury in W.L. Case No.124 of 1973 on
the ground that leasehold land was used for any purpose other
than that for which it was settled but after enquiry, the
Additional Tahasildar, Bhubaneswar found that the lessee
Netrananda Dehury had already transferred the land and Smt.
Sanjukta Padhihary, Smt. Manjulata Jena, Smt. Ranu Biswal, Sri
Samarendra Nayak and Sri Gangadhar Swain are the land
holders in possession of the suit land who were using it for
agricultural purposes and some cashew plants and other fruit
bearing trees were found on the land and accordingly as per
order dated 06.10.2002, the said resumption proceeding was
dropped. Though appeal is provided against any order made
under section 3-B of the O.G.L.S. Act, no appeal was preferred
and therefore, the order passed in the resumption proceeding
attended its finality. The authority initiated suo motu revisional
power forty two years after the grant of lease and thirteen years
34
after dropping of resumption proceeding and cancelled the lease
without any material relating to commission of any fraud. The
findings of the Additional District Magistrate that there are
material irregularities, legal deformity and procedural lapses are
neither factually nor legally correct. There is an error of law
apparent on the face of record in utilizing the procedure laid
down in O.G.L.S. Rules, 1983 in cancelling the lease which were
non-existent at the time of grant of lease in the year 1973 and
even principle of natural justice has not been followed in case of
the petitioner Pabitra Mohan Samal. When a statute confers any
power on any statutory authority, howsoever wide the discretion
may be, it cannot be used arbitrarily, mechanically but after due
and proper application of mind so that it must stand the test of
judicial scrutiny. Thus in view of gross error committed by the
Additional District Magistrate, as per the law laid down by the
Hon'ble Supreme Court in the case of Syed Yakoob -Vrs.- K.S.
Radhakrishnan reported in A.I.R. 1964 S.C. 477, we are of
the humble view that it is a fit case to exercise our certiorari
jurisdiction to correct the error in the interest of justice.
9. In view of the foregoing discussions, the impugned
orders passed by the Additional District Magistrate, Bhubaneswar
in Lease Revision Case Nos.1 to 13 of 2015 in cancelling the
35
lease are not sustainable in the eye of law and accordingly, the
same is hereby set aside.
In the result, both the writ applications are allowed,
however, the parties shall bear their own costs.
.....................
S.K. Sahoo, J.
S. Panda, J. I agree.
......................... S. Panda, J.
Orissa High Court, Cuttack The 11th December 2019/Pravakar/Sisir/RKM/Sukanta