Orissa High Court
Ghanashyam Behera vs Additional District Magistrate on 20 April, 2021
Author: B. P. Routray
Bench: B. P. Routray
IN THE HIGH COURT OF ORISSA AT CUTTACK
O.J.C. No.17538 of 1998
Ghanashyam Behera .... Petitioner
Mr. G.M. Rath, Advocate
-versus-
Additional District Magistrate, .... Opposite Parties
Khurda and another
Mr. Subir Palit
Additional Government Advocate
CORAM:
THE CHIEF JUSTICE
JUSTICE B. P. ROUTRAY
ORDER
20.04.2021 Order No.
31. 1. This matter is taken up by video conferencing mode.
2. The challenge in the present writ petition is to an order dated 29th July 1998 passed by the Additional District Magistrate (ADM), Khurda in Lease Revision Case No.2 of 1996 under Section 7 (A) (3) of the Orissa Government Land Settlement Act, 1962 (OGLS Act).
3. The background facts are that the original Petitioner-Raghunath Behera filed an application on 11th January 1979 for settlement of an area of Ac 0.200 decimals out of Plot No.356 under Khata No.327 in Mouza-Tangiapada. On receipt of the application, Waste Land Lease Case No.1129 of 1978-79 was instituted on 16th July 1979. The Revenue Inspector (R.I.), Haladia was asked to enquire and make a report. The Additional Tahasildar, Khurda on 10th June 1984 passed Page 1 of 6 an order of settlement of land in favour of the Petitioner for the aforementioned purpose.
4. It was stated that while the case was in the process of correction of Record of Rights (RoR) and delivery of possession, an order was passed on 23rd September 1985 by the Additional Tahasildar, Khurda which reveals that there was a mistake in trace map. The R.I., Paikatigiria and R.S. were finally directed by orders dated 23rd September 1985, and 30th December 1985 to enquire on the spot with trace map available in presence of both the parties and submit a clear report.
5. What appears to have weighed with the ADM, Khurda in taking up the suo motu revision was the report dated 19th May 1986 of the R.I. which shows that one Jhula Chhotaraya was also granted a piece of land out of the same plot on lease and therefore, the delivery of possession of the parties were not clear. The second reason was that by order dated 29th October 1994, it was noted that the kissam of the settled land was 'chhota jungle'. This was confirmed by the Sub- Collector, Khurda by letter dated 7th September 1995 stating that it would attract the provisions of the Forest (Conservation) Act, 1980 (FC Act).
6. Thereafter, a notice was issued to the lessee, who appeared through his counsel and filed a response.
7. The ADM noted in the impugned order that as per the report dated 10th October 1983 of the R.I. the lessee had already constructed a house of four rooms; the land had been encroached and had to be dealt under the Orissa Prevention of Land Encroachment Act, 1972 Page 2 of 6 (OPLE Act) and the FC Act also stood attracted. Further, it was observed that the lessee did not belong to the village in which the land was situated. Thus there was a violation of Section 3 (3) (a) to
(d) of the OGLS Act as well. For all of the above reasons, the ADM by the impugned order cancelled the lease in favour of the Petitioner granted in W.L. Lease Case No.1119 of 78-79 and directed the Tahasildar, Khurda to take over possession of the land and correct the records.
8. On 3rd August 1999, while issuing notice in the present petition, this Court directed status quo to be maintained. That order is continuing till date.
9. This Court has heard the submissions of Mr. G.M. Rath, learned counsel for the Petitioner and Mr. Subir Palit, learned Additional Government Advocate for the State-Opposite Parties.
10. At the outset, it is noticed that in the record of the proceedings of 16th July 1979, the Tahasildar, Khurda recorded as under:
"Sri Raghunath Behera son of Maheswar of village Paikatigiria has applied for taking lease of land of Ac 0.200 out of plot 356 under Khata No.327 of Mouza-Tangiapada for homestead purpose.
Verified the reservation proceeding of village Tangiapada. The plot applied for is reserved for homestead purpose.
Ask R.I. Haladia to enquire and submit a detailed report along with sketch maps in duplicate and issue public notice inviting objection if any.
Put up after receipt of R.I. report and expiry of objection period."Page 3 of 6
11. Therefore, there can be no manner of doubt that the land in question was reserved for homestead purpose. The expression 'homestead' has been defined under Section 2 (12) of the Odisha Land Reforms Act, 1960 as under:
"(12) "homestead" means any land, whether or not recorded as such, ordinarily used as house-site, ancillary or incidental to agriculture."
12. Mr. G.M. Rath, learned counsel for the Petitioner points out that at the relevant point of time when the Petitioner submitted the application, he was admittedly a homesteadless person. Such expression has been defined under Section 3(a-2) of the OPLE Act thus:
"3(a-2) "homesteadless person" means a person who, together with all the members of his family who are living with him in common mess, does not have any homestead land anywhere in the State and owns less than one standard acre of land other than homestead and whose total annual income, together with the annual income of all the members of his family living with him in common mess, does not exceed rupees four thousand and two hundred or an amount which the State Government may, by notification from time to time, specify in that behalf."
13. Mr. Sahoo, learned AGA for the Opposite Parties has not been able to rebut the submission of Mr. Rath, learned counsel appearing for the Petitioner, that even today that the Petitioner's successors-in- interest continue to remain in possession of the land, which apart from the building has an orchard. In other words, the principal contention of the Petitioner that the construction of four rooms on the plot was consistent with the purpose for which the lease was granted to the Petitioner viz., for homestead purpose has not been rebutted.
Page 4 of 614. The Court notices that the record of proceeding dated 10th January, 1984 of the ADM noticed that as per reservation proceedings in the mouza Tangiapada the plot has been reserved for the homestead purpose. Therefore, this is not an instance where a lease is granted for agricultural purpose and later found to be used for some other purpose.
15. More than ten years thereafter on 29th October, 1994 the Additional Tahasildar, Khurda referring to the report of the Revenue Supervisor noted that the land has been recorded in Khata No.327 as 'chhota jungle'. The invocation of the FC Act to justify the classification of the land as 'chhota jungle' does not appear to this Court to be justified particularly since the lease had been settled in favour of the Petitioner on 16th July 1979, earlier to the enactment of the FC Act. The mere fact that subsequent thereto the FC Act may have been enacted could not affect the settlement of the ease in favour of the Petitioner for homestead purpose. In other words, when on 16th July, 1979 the record showed that the plot was "reserved for homestead purpose", that purpose could not have been changed retrospectively by applying the FC Act to declare it as a 'chhota jungle'.
16. The ADM appears to have invoked Section 7-A(3) of the OGLS Act on 29th July, 1998 i.e. 19 years after the application made by the Petitioner, and nearly 14 years after the lease had been settled in favour of the Petitioner. When the suo motu proceedings were sought to be initiated, they had to be based on some tangible material in the form of documentary evidence which would even prima facie show that there was fraud or material irregularity in the Page 5 of 6 grant of the lease. However, the present case was not one of mistaken fact as noted by the ADM. Since the construction of the rooms by the Petitioner on the plot was not in violation of the purpose for which the lease was granted to the Petitioner, it appears to the Court to be unreasonable to seek to cancel the lease 14 years after it was granted on the ground that the Petitioner did not belong to the same village where the land exists. There does not appear to be any convincing or valid ground to justify the cancellation of the lease fourteen years after it was granted.
17. For the aforementioned reasons, this Court finds the impugned order to be unsustainable in law and it is accordingly set aside.
18. The petition is allowed in the above terms, but in the circumstances, with no order as to costs.
19. As the restrictions due to resurgence of COVID-19 situation are continuing, learned counsel for the parties may utilize a printout of the order available in the High Court's website, at par with certified copy, subject to attestation by the concerned advocate, in the manner prescribed vide Court's Notice No.4587, dated 25th March, 2020 as modified by Court's Notice No.4798, dated 15th April, 2021.
(Dr. S. Muralidhar) Chief Justice (B.P. Routray) Judge S.K. Jena/P.A. Page 6 of 6