Orissa High Court
Smt. Elley Pattnaik vs State Of Orissa And Others ........... ... on 10 April, 2012
Author: L.Mohapatra
Bench: L.Mohapatra
HIGH COURT OF ORISSA: CUTTACK
W.P.(C) No.20500 of 2011
In the matter of application under Articles 226 & 227 of the
Constitution of India.
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Smt. Elley Pattnaik ............ Petitioner
-Versus-
State of Orissa and others ........... Opp. Parties
For Petitioner : M/s.Sarada Pr.Sarangi,
P.P.Mohanty,P.K.Dash,
B.P.Das, A.Pattnaik &
G.Senapati.
For Opp. party : Addl.Government Advocate
P R E S E N T:
THE HON'BLE MR. JUSTICE L.MOHAPATRA
AND
THE HON'BLE MR. JUSTICE B.K.MISRA
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Date of Judgment: 10.04.2012
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B.K.MISRA, J This is the second round journey of the present
petitioner in challenging the order of the Additional District
Magistrate, Bhubaneswar in Lease Revision Case No. 428 of
1998 dated 30.5.2011 (Annexure-8) wherein the Addl. District
Magistrate, Bhubaneswar set aside the settlement of the case
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land in favour of one Hrushikesh Majhi in W.L. Lease Case No.
2043 of 1973.
2. The case of the petitioner is that one Hrushikesh
Majhi was granted lease of Ac. 0.500 decimals of land
appertaining to Hal Plot No. 266/1044/1131 under Hal Khata
No. 239/34 corresponding to Sabik Plot No. 1044 under Sabik
Khata No. 281 in Mouza-Giringaput by the Government after
considering all the statutory formalities. A lease deed was
executed in the year 1974. The original lessee, namely,
Hrushikesh Majhi transferred the said Ac.0.500 decimals of
land to one Trilochan Behera after obtaining permission from
the Revenue Officer, Bhubaneswar transferred the case land
measuring Ac.0.500 decimals to one Rama Krushna Parida on
18.10.1985. It is the further case of the petitioner that
thereafter the said Rama Krushna Parida transferred the case
land which he purchased from Trilochan Behera in favour of
the present petitioner. The petitioner alleges that on
29.4.1998 i.e. almost after 13 years of his purchasing the case
land the Addl. District Magistrate, Bhubaneswar namely, the
present opposite party No.1 initiated a Sou Motu Revision
Case under Section 7-A(3) of the Orissa Government Land
Settlement Act, 1962 and after examining, the lower court
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record set aside the settlement of the case land by his order
dated 29.4.1998 and directed the Tahasildar, Bhubaneswar to
cancel the lease granted by the State Government in favour of
Hrusikesh Majhi and to correct the records and take over
possession of the land in question. This order of the Additional
District Magistrate, Bhubaneswar was challenged by the
present petitioner before this Court in W.P(C)No.13764 of
2008 and this Court while setting aside the order of
settlement of the Revisional Authority directed the Additional
District Magistrate, Bhubaneswar to dispose of the case afresh
after giving opportunity of hearing to the petitioner and also to
consider the question of limitation. It is the further case of the
petitioner that she appeared before the Additional District
Magistrate, Bhubaneswar and after hearing the Additional
District Magistrate, Bhubaneswar passed the impugned order
at Annexure-8.
3. Learned counsel appearing for the petitioner
contended that the Revenue Authority cancelled the lease
granted in favour of Hrushikesh Majhi without issuing any
show cause notice indicating the grounds for cancellation of
the lease granted to him and the petitioner had also no
knowledge of such cancellation of lease and though he is
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entitled to a show cause notice, no notice was issued to him
and therefore, the impugned order smacks transparency and
there has been gross violation of the principles of natural
justice. It was also equally argued that Suo Motu Revision
Proceeding initiated by the Additional District Magistrate,
Bhuabaneswar i.e. after long lapse of 25 years is without any
jurisdiction and the reasoning assigned are totally fallacious
and cannot be sustained in the eyes of law. Thus, it is
contended by the learned counsel for the petitioner that the
impugned order should be quashed.
4. The opposite party No.1 files his counter affidavit
denying all the allegations of the petitioner and while praying
for dismissal of the writ petition it has been specifically
averred that Hrushikesh Majhi the original lessee is neither a
member of the Scheduled caste or Scheduled Tribe community
but he availed the benefit under Section 3(2) of the O.G.L.S.
Act, 1962 by impersonating him as a member belonging to the
Scheduled Tribe community with an ulterior motive to grab
the said land accordingly when such a fact came to the notice
of the Revisional Authority, a Sou Motu Revision was initiated
which was in accordance with law and no fault can be found
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with the Revisional Authority in passing the impugned order
at Annexure-8.
5. Learned Additional Government Advocate
appearing on behalf of the State contended that the impugned
order at Annexure-8 is a speaking order and when by
misrepresentation of facts and playing fraud the land was
leased out to Hrushikesh Majhi on the notion that he belongs
to the Scheduled Tribe community, the competent authority
on considering such fraud and misrepresentation initiated
Sou Motu Revision and in doing that there has been no
violation of any statutory provision and limitation of 14 years
is not applicable to the facts and circumstances of this case.
6. We have heard the matter at length. Section 7-A(3)
of the Orissa Government Land Settlement Act reads as
follows:-
"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.
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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 than no proceeding
under this sub-section shall be initiated
after the expiry of fourteen years from
the date of the order".
7. In the instant case, the impugned order (Annexure-
8) nowhere reveals that the Additional District Magistrate,
Bhubaneswar if at all made any attempt to comply with the
mandate of the first provision of Section 7-A (3) of the Act by
calling for information from the office of the Sub. Registrar as
to whether the lease hold 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 that the petitioner had purchased the lease
hold land from the original lessee and should have issued
notice to the petitioner as well as to Hrushikesh Majhi the
original lessee who are the affected parties. But no such step
appears to have been taken by the Additional District
Magistrate before passing the impugned order.
8. In a similar case, this Court in the case of Rama
Chandra Pandav -v- State of Orissa and others in W.P.(C)
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No.14364 of 2006 held that since the petitioner had
purchased the lease hold land from the original lessee the
order of the Addl. District Magistrate is not sustainable as no
notice has been issued to the purchaser before cancellation of
lease.
9. Further we find that the original lease was granted
long back in the year 1974 whereas the Revisional Authority
initiated the Suo Motu Revision in 1998 i.e. after a long lapse
of 25 years. Under 2nd Proviso to Section 7-A(3) of the Orissa
Government Land Settlement Act no proceeding can be
initiated after expiry of fourteen years from the date of order
granting lease. While prescribing the period of limitation the
legislature while drafting the Orissa Government Land
Settlement Act in their wisdom prescribed the period of
limitation for initiation of a proceeding in examining the
correctness of the order passed under the act and also to find
out if any fraud or misrepresentation etc. was practised in
obtaining an order. Being cognizant of such contingencies the
period of limitation of 14 years has been prescribed. The
reasons assigned by the Additional District Magistrate,
Bhubaneswar about the fraudulent declaration made by
Hrushikesh Majhi that he belongs to the Scheduled Tribe
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community and fraud was practised to get the land settled in
his favour can be decided by the Revisional Authority as per
terms of the provision but within the period of limitation.
10. In view of the aforesaid provision of law when the
Suo Motu Lease Revision Case No. 428 of 1998 which has
been initiated after a long lapse of 25 years and in view of the
2nd proviso to Section 7-A(3) of the Orissa Government Land
Settlement Act,1962 such Suo Motu Lease Revision case is
without jurisdiction and resultantly, the impugned order at
Annexure-8 cannot be sustained and is set aside accordingly.
Accordingly, the writ petition stands disposed of.
........................
B.K.Misra, J.
L.Mohapatra, J.I agree.
........................... L.Mohapatra, J.
Orissa High Court, Cuttack The 10th April, 2012/RNS