Subala Tarai vs Collector on 6 February, 2019

[Cites 10, Cited by 0]

Orissa High Court

Subala Tarai vs Collector on 6 February, 2019

Bench: S. K. Sahoo

IN THE HIGH COURT OF ORISSA: CUTTACK

O.J.C. No. 16823 of 2001

An application under Articles 226 and 227 of Constitution of
India.
----------------------------
Subala Tarai ....... Petitioner

-Versus-

Collector, Puri
and others ....... Opp. Parties

O.J.C. No. 16824 of 2001

Diriba Swain ....... Petitioner

-Versus-

Collector, Puri
and others ....... Opp. Parties

For Petitioner: - Mr. Kali Prasanna Misra
(in both the cases) J.K. Khandayatray
S. Dash

For Opp. Parties: - Mr. Kishore Kumar Misra
Addl. Govt. Advocate
-----------------------------

P R E S E N T:

THE HONOURABLE KUMARI JUSTICE SANJU PANDA
AND
THE HONOURABLE MR. JUSTICE S.K. SAHOO
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Date of Hearing: 24.01.2019 Date of Judgment: 06.02.2019
---------------------------------------------------------------------------------------------------
2

S. K. SAHOO, J. The petitioner Subala Tarai in O.J.C. No. 16823 of

2001 and the petitioner Diriba Swain in O.J.C. No. 16824 of 2001

have prayed to quash the impugned common order dated

01.10.2001 of the Addl. District Magistrate, Puri passed in

O.G.L.S. Revision No.92 of 1999 and O.G.L.S. Revision No.113 of

1989 respectively invoking power under section 7-A(3) of the

Orissa Government Land Settlement Act, 1962 (hereafter

'O.G.L.S. Act') in cancelling the leases sanctioned in favour of the

petitioners by the Tahasildar, Puri.

2. It is the case of the petitioners that they were

landless persons and belonged to scheduled caste community.

The forefathers of the petitioners were in possession of

Government land for last sixty to seventy years. The Tahasildar,

Puri (opposite party no.3) with the aid of his staff verified the

eligibility of the petitioners for grant of lease of the land in the

year 1974 in Lease Case No.5465 of 1974 and Lease Case

No.5462 of 1974. It was duly proclaimed by beat of drum and

the local Gram Panchayat was also consulted. Public objection

was invited by the Tahasildar but there was no objection from

any quarter whatsoever. Consequently in the year 1975-76, Ac.

02.00 dec. of land in Mouza-Jagadal, P.S.-Brahmagiri, Tahasil-

Puri Sadar, Dist.-Puri was settled in favour of each of the

petitioners by the Tahasildar which were subsequently recorded
3

in the names of the petitioners through mutation by the

Tahasildar.

It is the further case of the petitioners that at the

behest of some of the staff of the office of the Tahasildar

(opposite party no.3), the Addl. District Magistrate (opposite

party no.2) issued show cause notices to the petitioners by

initiating lease revision cases bearing O.G.L.S. Revision No.92 of

1999 and O.G.L.S. Revision No.113 of 1989 under section 7-A(3)

of the O.G.L.S. Act. No specific reason was assigned in the show

cause notices regarding the initiation of the revision cases. The

petitioners submitted their written notes of objection in the said

lease revision cases and pleaded that invoking of provision under

sub-section (3) of section 7-A of the O.G.L.S. Act after expiry of

fourteen years from the date of grant of lease is hopelessly

barred by law of limitation. The notices were in cyclostyled

format, vague and it did not disclose the reasons/grounds which

necessitated to the authority to initiate such proceeding. The

opp. party no.2 without proper application of mind and in a

preconceived and predetermined manner, cancelled the leases

already granted in favour of the petitioners.

3. Mr. Kali Prasanna Misra, learned counsel appearing

for the petitioners contended that the grounds taken by the Addl.

District Magistrate, Puri in cancelling the leases are based on no
4

materials and no reasonable opportunity of hearing as provided

under the proviso to sub-section (3) of section 7-A of 1962 Act

was granted and on surmise and suspicion, the opposite party

no.2 has passed the impugned order. The notices were defective

and the petitioners were kept in darkness about the nature of

the proceedings and they were not supplied with the relevant

documents which have resulted in causing serious prejudice to

the petitioners. According to Mr. Misra, it is stipulated in the

second proviso to sub-section (3) of section 7-A of the O.G.L.S.

Act that no proceeding under this sub-section shall be initiated

after the expiry of fourteen years from the date of the order

passed by the subordinate authority and therefore, the initiation

of the revision proceeding in the year 1999 is illegal. It is

contended that since the impugned order violates the

fundamental rights guaranteed under Articles 14 and 21 so also

Article 300-A of the Constitution of India, it should be quashed.

Mr. Kishore Kumar Misra, learned Addl. Govt.

Advocate refuting the submissions of the learned counsel for the

petitioners on the other hand supported the impugned order and

contended that after receipt of the notices, the petitioners

engaged their counsel who submitted written note of argument

and therefore, the non-compliance of opportunity of hearing as

contended by the learned counsel for the petitioners is not
5

acceptable. He further submitted that gross irregularities were

committed while granting lease of lands to the petitioners. The

eligibility of the lessees for grant of lease was not enquired into,

no public objection was invited by beat of drum, the signature of

Tahasildar was found to be fictitious, the proclamation copy was

not available in the case records and the lease orders were

passed in cyclostyled formats. In the order sheet, it was found

that neither the marginal date has been given nor the Presiding

Officer has given the date while signing the order sheet. It is

contended that when fraud has been committed in obtaining the

lease, limitation aspect cannot be taken into consideration and

therefore, the writ petitions should be dismissed.

4. Adverting to the submissions made by the learned

counsel for the parties and on perusal of the records, the

following issues need to be addressed:-

(a) Whether power of revision was exercised by the

Additional District Magistrate, Puri beyond the

prescribed period of limitation?

(b) Whether reasonable opportunity of hearing was

provided to the petitioners in the revision

proceedings?

sustainable?
6

Whether power of revision was exercised beyond the

prescribed period of limitation:

5. There is no dispute that the revision cases under

section 7-A (3) of O.G.L.S. Act were initiated on the basis of the

report submitted by Tahasildar, Puri in the year 1999 and the

common impugned order was passed on 01.10.2001. At the

relevant point of time, sub-section (3) of section 7-A read as

follows:

"S.7-A(3). The Collector may, on 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 the expiry
of fourteen years from the date of the order."
7

By virtue of the Odisha Government Land Settlement

(Amendment) Act, 2013, for sub-section (3), the following sub-

section was substituted.

"S.7-A(3). Notwithstanding anything contained
in this Act or any other law, the Collector may,
on his own motion or otherwise, call for and
examine the records of any proceeding, in which
any authority subordinate to him has passed an
order under this Act, for the purpose of
satisfying himself that any such order was not
passed under a mistake of facts 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."

Therefore, the period of limitation of fourteen years

which was there for initiating the revision proceeding by the

Collector against an order passed by its subordinate authority

was taken away by the Amendment Act of 2013. Since at the

relevant point of time, the limitation of fourteen years was

applicable, it is to be seen whether in fact there was any

limitation at all. It is the case of the petitioners that lease was
8

granted in the year 1975-76. The particular date on which such

lease was granted has not been indicated. Since the revision

cases were initiated in the year 1999, it cannot be said with

certainty that the power revision was exercised beyond the

prescribed period of fourteen years. Moreover, since it is the

case of the opposite parties that fraud was committed at the

time of obtaining lease, in such a situation, it is to be seen

whether any limitation period for exercise of revision is

applicable or not.

Section 17 of the Limitation Act, 1963 prescribes that

the limitation will start running only when the plaintiff or

applicant got knowledge of the fraud or discovered fraud

committed by the defendant or respondent or his agent. It is a

continuing wrong and therefore, the period of limitation would

begin to run at every moment of time during which such wrong

continues. In such a situation, the principles enshrined in section

22 of the Limitation Act will apply and an action initiated on

discovery of fraud cannot be held to be barred by limitation.

When a fraud is practised on a Court or on an authority to get an

order, the same is rendered a nullity. In a case of nullity, even

the principles of natural justice are not required to be complied

with. By reason of commission of a fraud, an order or a decree is

rendered to be void rendering all subsequent proceedings taken
9

pursuant thereto also nullity. However, delayed exercise of

revisional jurisdiction is frowned upon because if actions or

transactions were to remain forever open to challenge, it will

mean endless uncertainty in human affairs, which is not the

policy of law. Even in cases where the orders sought to be

revised are fraudulent, the exercise of power must be within a

reasonable period of the discovery of fraud. Simply describing an

act or transaction to be fraudulent will not extend the time for its

correction to infinity; for otherwise the exercise of revisional

power would itself be tantamount to a fraud upon the statute

that vests such power in an authority.

In case of Joint Collector Ranga Reddy -Vrs.- D.

Narsing Rao reported in (2015) 3 Supreme Court Cases

695, it is held as follows:-

"25. The legal position is fairly well settled by a
long line of decisions of this Court which have
laid down that even when there is no period of
limitation prescribed for the exercise of any
power, revisional or otherwise, such power must
be exercised within a reasonable period. This is
so even in cases where allegations of fraud have
necessitated the exercise of any corrective
power."
10

In case of S.B. Gurbaksh Singh -Vrs.- Union of

India reported in (1976) 2 Supreme Court Cases 181,

Hon'ble Supreme Court held that exercise of suo motu power of

revision must also be within a reasonable time and that any

unreasonable delay in the exercise may affect the validity. But

what would constitute reasonable time would depend upon the

facts of each case.

In case of Ibrahimpatnam Taluk -Vrs.- K. Suresh

Reddy reported in (2003) 7 Supreme Court Cases 667, it is

held as follows:-

"9..... In cases of fraud, this power could be
exercised within a reasonable time from the date
of detection or discovery of fraud. While
exercising such power, several factors need to
be kept in mind such as effect on the rights of
the third parties over the immovable property
due to passage of considerable time, change of
hands by subsequent bona fide transfers, the
orders attaining finality under the provisions of
other Acts (such as the Land Ceiling Act)."

It appears that after receipt of the report of

Tahasildar, Puri relating to grant of leases in contravention of the

provisions of O.G.L.S. Act and without following the mandatory

provisions of law, the revisional power was exercised within a

reasonable period.
11

In view of the foregoing discussions, since fraud is

stated to have been committed at the time of obtaining lease, we

are of the view that the contention of the learned counsel for the

petitioners that the revision proceedings which were initiated

under section 7-A(3) of the O.G.L.S. Act in the year 1999 were

beyond the prescribed period of limitation and therefore, it is

illegal, cannot be accepted.

Whether reasonable opportunity of hearing was provided

to the petitioners in the revision proceedings:

6. It is not disputed that the first proviso to sub-section

(3) of section 7-A of the O.G.L.S. Act prescribes for giving

reasonable opportunity of hearing to the affected person before

passing any order. It is contended that the notice which was

issued to the petitioners was in a format and it merely indicates

the date and time of hearing. There is nothing in the notice as to

on what point, the petitioners were to be heard. Such type of

notice, according to Mr. Mishra, was a surprise to the petitioners

and they could not know the nature of proceeding before the

authority and thereby they were precluded from defending the

cases properly. It is argued that issuance of such type of notice

smacks of arbitrariness and the relevant documents sought for
12

by the petitioners were not supplied to them which have caused

serious prejudice to the petitioners.

The purport of the notice was to give a reasonable

opportunity of hearing to the petitioners. The date, time and

place of appearance and the name of the authority before whom

to appear were indicated. It is not blurred or made unintelligible

and therefore, the notice cannot be termed as bad. On a plain

reading of the impugned order, it appears that after receipt of

the notice, the petitioners engaged their counsel who submitted

written note of objection and participated in the hearing of

revision proceeding. The written note of objection annexed to the

writ petitions as Annexure-4 clearly indicates that the petitioners

were very much aware about the nature of proceeding initiated

against them and they have raised objections on different points.

The Addl. District Magistrate has also taken note of the

contentions raised by the counsel for the petitioners. There is no

averment in the writ petitions as to what sort of documents were

sought for by the petitioners and on what date. Such petition

copy has also not been annexed to the writ petitions. The written

note of objection filed by the petitioners before the Addl. District

Magistrate is also silent in that respect. Therefore, we are of the

view that the contention of the learned counsel for the

petitioners that the documents sought for by the petitioners were
13

not supplied to them appears to be an afterthought story and

further contention that no reasonable opportunity of hearing was

provided to the petitioners in the revision proceedings cannot be

accepted.

Legality of the impugned order:

7. The impugned order indicates that the Addl. District

Magistrate, Puri perused the written notes of argument filed by

the learned counsel for the petitioners as well as learned Addl.

Government Pleader appearing on behalf of the State. He also

verified the lower court record. He found that the served copy of

proclamation was not available in the case records. The orders

were passed in a cyclostyle carbon copy. No date has been given

in the order sheet and no date is mentioned below the signature

of the Presiding Officer. The signature of the officer appeared to

be fictitious. It was further found that the leases were granted in

violation of the mandatory provisions of law which vitiated the

proceeding.

There is no dispute that procedure has been laid

down for grant of lease of Government land in O.G.L.S. Act and

the Orissa Government Land Settlement Rules, 1974 which was

in force at the relevant time. When the authority exercising

revisional jurisdiction found that there were gross irregularities in

settling the land with the lessees petitioners, he was justified in
14

cancelling the leases and directing the Tahasildar to make

necessary corrections in the relevant register and in the record

of rights. Lease of government land obtained fraudulently and

surreptitiously and without following due procedure of law, rob

such grant of all its legal effect and cannot found a claim to valid

possessory rights.

There is no apparent error on the face of the

impugned order. It cannot be said that the findings arrived at by

the Addl. District Magistrate, Puri are either perverse or

unreasonable or based on no materials and therefore, we are not

inclined to interfere with the same in a writ of certiorari.

Accordingly, both the writ applications being devoid

of merits, stand dismissed.

.......................
S. K. Sahoo, J.

S. Panda, J. I agree.

...................... S. Panda, J.

Orissa High Court, Cuttack The 06th February 2019/sukanta/pravakar

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