Orissa High Court
Surendranath Ghosh vs State Of Orissa on 2 July, 2010
Author: B.P.Das
Bench: B.P.Das
HIGH COURT OF ORISSA: CUTTACK
W.P.(C). No. 2990 of 2008
In the matter of an application under Articles 226 and 227 of the
Constitution of India.
--------
Surendranath Ghosh, Trust Estate, Kolkata ... Petitioner.
-Versus-
State of Orissa
& others ... Opp.Parties.
For Petitioners : M/s. Ramakanta Mohanty,
D.Mohanty, A.P.Bose, S.N.Biswal,
P.Jena, D.P.Patnaik & D.Varadwaja
For Opp. Parties : Mr.M.S.Sahoo,
Addl. Standing Counsel
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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: 10.05.2010 : Date of judgment : 02.07.2010
B.N.MAHAPATRA, J The petitioner, which is a Trust called "Surendranath Ghosh,
Trust Estate, Calcutta", being represented through its trustees has filed
this writ petition with a prayer for quashing the condition Nos. 2, 3, 4, 7, 8,
9 and 10 imposed under order dated 25.09.2007 (Annexure-2) passed by
opp. party No.2-Collector, Puri while approving the lease of permanent
Pattadar status as settled by O.P. No.3-Tahasildar in favour of the
petitioner.
2. Bereft of unnecessary details, the facts and circumstances
giving rise to the present writ petition are that, according to the petitioner,
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the land measuring an area Ac 0.193 decimals under Khata No.79, Sabik
Plot No.87 in Sabik Mouza: Balukhand Khasmahal corresponding to Hal
Khata No.67, Hal Plot No.126 measuring an area Ac.0.193 decimals under
Puri Municipality, Ward No.12, Holding No.754 in Hal Mouza Nolia Sahi,
Unit No.12, Puri Town, P.S. Sea Beach, Puri was originally leased out on
07.11.1924 in favour of one Surendranath Ghosh, son of Late Bhola Nath
Ghosh of Sheorapalli, P.S. Srirampur, Dist: Hoogly for sixteen years. On
08.11.1940, the said lease was renewed in favour of said Surendranath
Ghosh for thirty years extending the lease period up to 07.11.1970. Opp.
Party No.2-Collector, Puri on the basis of recommendation of O.P. No.3-
Tahasildar, vide his order dated 10.09.2004 passed in Balu Lease Renewal
Case No.4/2004, renewed the lease granted on 08.11.1940 to
Surendranath Ghosh in favour of Surendranath Ghosh Trust Estate,
Calcutta for two consecutive terms of 30 years each with retrospective effect
from 08.11.1970. Pursuant to said order dated 10.09.2004 of O.P. No.2, the
Renewal Lease Agreement (Annexure-1) was executed on 3rd October, 2005
and the same was registered on 25.10.2005. After the Renewal Lease
Agreement was registered on 25.10.2005, the petitioner made an
application to O.P. No.3-Tahasildar, Puri for grant of permanent lease of the
said land which was registered as BPL Case No.20/2005. The Tahasildar
settled the land in question in favour of the petitioner-Trust on permanent
Pattadar status and sent the BPL case record to O.P. No.2-Collector, Puri
for approval. The O.P. No.2 while approving the lease of permanent
Pattadar status under the Orissa Government Land Settlement Act, 1962
(for short 'the OGLS Act') imposed certain terms and conditions
3
as per Annexure-2 and directed the Tahasildar to incorporate the said
terms and conditions in the lease deed. Being dissatisfied with the said
terms and conditions, the petitioner has filed the present writ petition for
quashing those conditions. This Court vide ex parte order dated 25.06.2009
dismissed the writ petition on merit with the following observation.
"In view of the above mentioned facts and
circumstances as well as the facts that the period of lease
has already expired on 08.11.1970 and the lessee is not
utilizing the lease hold land for homestead purpose for not
less than five years on the appointed dated i.e. 9.1.1991
and no rent having been collected from the lessee since
1975 and also that the land had been recorded as Sarakari
Khata since 1988, no case in favour of the petitioners is
made out."
Misc. Case No.8396 of 2009 was filed by the petitioner with a
prayer to recall the above order dated 25.06.2009 and to restore the case to
original file and to rehear the matter on merit. Vide order dated
02.12.2009, this Court recalled its earlier order dated 25.06.2009.
Thereafter, the matter was heard at length on 06.05.2010 and 10.05.2010.
3. Mr. R. Mohanty, learned counsel appearing for the petitioner,
submitted that originally the land in question was leased out in favour of
late Surendranath Ghosh on 07.11.1924 for sixteen years. On 08.11.1940,
it was renewed for another thirty years. Surendranath Ghosh died on
19.01.1973. Before his death, an unregistered private Trust was created by
said Surendranath Ghosh consisting of his family members on 30.06.1971.
On 26.11.1971 this Trust applied for renewal of the lease before the
Collector, Puri. Accordingly, Khasmahal lease was renewed in favour of the
petitioner-Trust in Balu Lease Renewal Case No. 4 of 2004 for two
consecutive terms of 30 years each with retrospective effect from
08.11.1970 and the lease deed was executed on 03.10.2005. The OGLS Act
4
prescribes the modalities for settlement of the Government land. Under
Section 2(b), Explanation (i) of the OGLS Act Khasmahal land has been
included as Government land. Section 3 of the OGLS Act prescribes the
modalities for settlement of such Government land. Sub-section 4(a) of
Section 3 of the OGLS Act prescribes that renewal of such Khasmahal land
shall be deemed to have been leased out under the OGLS Act. Section 3(4)
(c) of the OGLS Act mandates such settlement on permanent basis with
heritable and transferable rights. In view of the aforesaid position of law,
the petitioner-Trust applied for permanent settlement of the land in
question leased out to it under Annexure-1. The same was registered as
Balu Permanent Lease Case No.20/2005 under the provisions of the OGLS
Act and Rule 5 B of the Orissa Government Land Settlement Rules, 1983
(for short 'the OGLS Rules'). The manner of settlement of such Khasmahal
land has been prescribed under Schedule-V appended to the Rules in
Paragraph 3 thereof. In fact, considering all this, O.P.No.2-Collector, Puri
by the impugned order dated 25.09.2007 (Annexure-2) approved the
settlement of leasehold property in favour of the petitioner on permanent
basis. While so ordering, the Collector has imposed certain conditions
particularly condition Nos. 2, 3, 4, 7, 8, 9 and 10, which are contrary to law
and without any authority. Nowhere under the provisions of the OGLS Act
and OGLS Rules and Schedule-V appended thereto, the authority is
empowered to impose such conditions while recognizing the permanent
right of a lessee. The O.P.No.2 has basically failed to understand the
provisions prescribed for grant of permanent lease where the right accrues
in favour of the lessee is heritable and transferable. In support of his
5
contention, Mr. Mohanty placed reliance upon the decisions of this Court in
Republic of India Vs. Prafulla Ku. Samal & Ors., ILR 1976 CUTTACK
1392, Sunil Kumar Dass(dead) by L.Rs. & Ors. Vs. The Revenue
Divisional Commissioner, Central Division, Cuttack & Ors., 2008 (I)
OLR 530, Sourindra Narayan Bhanja Deo Vs. Member, Board of
Revenue, Orissa & Ors., 2004 (II) OLR 332 and OJC No.3417/96
disposed of on 11th December, 2007.
Relying on the decision of this Court in Sourindra Narayan
Bhanja Deo's case (supra), Mr. Mohanty vehemently argued that in the
matter of renewal of Khasmahal lease option is left to the lessee and the
Khashmahal authorities cannot refuse renewal of lease if the lessee opts for
the same. The opposite parties for the first time are taking the stand that the
impugned conditions have been imposed keeping in view the provisions
contained in the Trust Deed. Such a stand is wholly misconceived and has
no legal sanction. So far as the petitioner-Trust is concerned, it has no
bearing on the rights conferred on the petitioner-Trust under law. The Trust
is a Juristic person and is entitled to be conferred with all the permanent
right that law has prescribed in respect of the leasehold property. If there is
any violation of the terms of the Trust, the provisions of the Indian Trust Act
will take care of the situation. But in no event, after conferring valid
permanent title on the petitioner, the State Government has further power to
limit such a permanent right. The right accrues in respect of Khasmahal
land is in no way different from that which one reserves in his own private
land. Therefore, O.P. No.2 has no right to impose any terms and conditions
6
while approving the lease of permanent Pattadar status as settled by
O.P.No.3-Tahasildar in favour of the petitioner-Trust.
4. On being noticed, the opposite party Nos. 2 and 3 have filed
counter affidavit. Mr. M. Sahoo, learned Addl. Standing Counsel for the
State repudiating the stand taken by the petitioner contended that the land
in question is Khasmahal property of the Government and the Collector,
Puri is the administrator of the property under the provisions of the Estate
Manual, 1990. The petitioner has no locus standi to challenge the order
passed by the Khasmahal authority. Since the petitioner has filed this writ
petition by suppressing the material facts, the same is not maintainable.
Due to non-renewal of lease after expiry of the lease period on 07.11.1970,
the leasehold land had been recorded in the Sarakari Khata No.67 in Hal
ROR finally published in the year 1988. The petitioner-Trust through its
Trustees applied for lease of the land in question in Balu Lease Renewal
Case No.4 of 2004. Considering the charitable activities of the Trust,
Collector, Puri was pleased to renew the lease for two consecutive terms of
thirty years each with retrospective effect from 08.11.1970 with certain
conditions. Otherwise, it would have been resumed due to gross violation of
lease conditions and non-use of the leasehold land for which the same had
been sanctioned. In pursuance of the orders of the Commissioner of
Consolidation, Orissa, Bhubaneswar passed in RP No.69 of 2005, the
record was corrected in the name of Sri Surendranath Ghosh Trust Estate,
represented through its Trustee, namely, Nimai Kumar Ghosh vide new
Khata No.61/18. When the lease was in force till 2030, the Trust applied
for permanent lease by filing BPL Case No.20/2005. After expiry of the term
7
of lease on 07.11.1970, no family member of the lessee was using the land
in question for residential purpose. There was no scope for permanent lease
under the provisions of the OGLS (Amendment) Rules, 1993 due to the fact
that such lease was renewed up to 07.11.2030. The Trust Estate with an
intention to transfer the leasehold land applied for permanent lease in BPL
Case No.20/2005. So, the Collector has rightly imposed the conditions to
prevent the Trust Estate from utilizing the property for personal benefits.
The provisions of the OGLS (Amendment) Act, 1993 are not applicable to
the case of the petitioner as the term of the lease had already expired since
08.11.1970. The lessee was not using the leasehold land for homestead
purpose for a period of not less than five years as on the appointed date,
i.e., 09.01.1991. The land in question was under the Government Khata
and no rent was being collected from anybody since 1975, as such lease
was not in force on the appointed date, i.e., 09.01.1991 as prescribed in the
OGLS (Amendment) Rules. Referring to Clauses-5(Kha) and 5(Cha) of the
Trust deed it is contended that the lease sanctioning authority has every
right to impose any conditions to safeguard the leasehold property from any
alienation or misuse. The Government of Orissa in Revenue & Disaster
Management Department have cancelled the lease sanctioned in favour of
Raibahadur Hazarimal Trust Fund and resumed the land due to transfer of
the same for personal benefit by the trust members. Therefore, the writ
petition is not at all maintainable and is liable to be dismissed.
5. The rival contentions raised at the Bar drive us to go to the
genesis of the case to appreciate the respective contentions and for effectual
adjudication of the relevant issues involved.
8
6. It would be appropriate to decide first the issue relating to the
relief sought for by the petitioner-Trust in the present writ petition. The
petitioner's grievance is that opposite party no.2-Collector is not justified in
imposing the terms and conditions while approving the lease-hold land in
question in favour of the petitioner-Trust on permanent Pattadar status in
his order dated 25.9.2007 (Annexure-2) passed in BPL Case No.20/2005.
In order to deal with the said issue, it is necessary to decide whether the
petitioner-Trust was entitled to be settled with the land in question on
permanent Pattadar status under the OGLS Act and Rules. In other words,
as to whether O.P. No.3-Tahasildar and O.P.No.2-Collector are respectively
justified in settling and approving the land in question on permanent
Pattadar status in favour of the petitioner-Trust in BPL Case No.20/2005.
The order of the Collector dated 25.09.2007 (Annexure-2) reveals that the
Tahasildar, Puri has settled the land in question in favour of Sunrendranath
Ghosh Trust Estate, Calcutta and Marfatdars Gautam Kumar Ghosh, Nimain
Kumar Ghosh, Partha Ghosh of 19/1 Rahasbehari Ghosh, Calcutta on
permanent Pattadar status as per sub-Rule 3(a) of Rule 5-B of the OGLS
(Amendment) Rules, 1993. Relying on the said Rules the Collector, Puri
approved the Settlement of the land in question in favour of the petitioner-
Trust on permanent Pattadar status as made by the Tahasildar. The letter
No.294 dated 28.09.2007 of the Deputy Collector, Puri reveals that the land
in question as settled by the Tahasildar, Puri has been approved by the
Collector, Puri in favour of the petitioner-Trust as per Sub-Rule 3(a) of Rule
5-B of the OGLS (Amendment) Rules, 1993. The petitioner also relied upon
the provisions of Rule 5-B of the OGLS Rules and schedule-V appended to
9
Rule 5-B in terms of paragraph-3 thereof in support of its claim. The
petitioner-Trust through its power of Attorney Holder also made an
application to Tahasildar, Puri on 03.11.2005 in Form No.1 for permanent
settlement of the leasehold land relying on the OGLS (Amendment) Rules,
1993. Now, it is necessary to examine what is contemplated in Rule 5-B and
Sub-Rule 3(a) of the said Rule of the OGLS (Amendment) Rules, 1993 on
which both the parties have placed reliance. The relevant provisions of Rule
5-B and Sub-Rule 3(a) of Rule 5-B are reproduced below.
"5-B. Notwithstanding anything contained in rules 3, 5, 5-A,
8,11,12, 13, Settlement of Khasmahal and Nazul land,
Gramakantha Parmbok and Abadi land leased out prior to the
9th day of January 1991 shall be made in the manner
prescribed in in Schedule-V."
xx xx xx xx xx
3(a) Tahasildar on being satisfied after enquiry that any
Nazul/Khasmahal land is used and in occupation by any
person as homestead for a period of not less than five years as
on the appointed day shall settle the said land in favour of the
person holding such land, on execution of lease deed in Form
IV. In case of a sub-lessee and subsequent sub-lessee such
settlement shall take effect on production of the stamped
receipt in Form I from the date of payment of such
compensation to the person (s) immediately under whom they
held the land;
Provided that on each such settlement, approval of
the Collector shall be obtained."
(underlined for emphasis)
Perusal of the above provisions makes it amply clear that
settlement of Khasmahal and Nazul land leased out prior to 9th day of
January, 1991 shall be made in the manner prescribed in Schedule-V. Rule
3(a) of Schedule-V provides that the Tahasildar on being satisfied after
enquiry that any Khasmahal land is used and in occupation of any person as
homestead for a period of not less than five years as on the appointed
day i.e. 09.01.1991 shall settle the said land in favour of the person holding
such land on execution of lease deed in Form No.IV. Thus Rule 5-B is
10
applicable only in respect of those Khasmahal lands leased out prior to the
9th day of January, 1991. In the present case, Khasmahal land in question
was not leased out to the petitioner-Trust prior to the 9th day of January,
1991. It is only for the first time the land in question was leased out in Balu
Lease Renewal Case No.04/2004 vide order dated 10.09.2004 passed by O.P.
No.2-Collector, Puri in favour of the petitioner-Trust. That apart, as per sub-
rule 3(a), the land in question must be in use and in occupation by any
person as homestead. The term 'person' has not been defined in the OGLS
Rules. But the term 'person' has been defined in the OGLS Act. Sub-rule (2)
of Rule 2 to the OGLS Rules provides that "words and expressions used but
not defined in these rules shall have the same meaning as are respectively
assigned to them in the Act". The term 'Person' as has been defined in
Section 2 (b-2) in the OGLS Act runs as follows:
"(b-2) 'Person' means any person, the total extent of whole
land excluding homestead, together with lands held by all
the members of his family who are living with him in
common mess is less than one standard acre and whose
total annual income together with the total annual income of
all the members of his family living with him in common
mess, does not exceed rupees three thousand and six
hundred or an amount which the State Government may, by
notification from time to time, specify in that behalf;"
(underlined for emphasis)
The petitioner is a Trust and not a person as defined in Section
2(b-2) of the OGLS Act, 1962. This position is clear from the fact that the
relevant expressions are 'homestead' and 'held by all the members of the
family', 'living in common mess' 'annual income of all the members of the
family'. Therefore, no Khasmahal land can be settled in favour of the
present petitioner-Trust in terms of sub-rule 3 (a) of Rule 5-B read with
Rule-5B of the OGLS (Amendment) Rules, 1993. Moreover, sub-Rule 3(a) of
11
Rule-5B further requires that the Khasmahal land should be used by a
person as homestead for a period of not less than five years on the
appointed date. But the order of the Collector dated 10.09.2004 reveals
that a building constructed on the Khasmahal land is used for commercial
purpose without permission of Khasmahal authority and no resumption
proceeding has been initiated. Thus, in the present case, the competent
authorities failed to exercise their mind to the above pre-conditions
stipulated in the statute before settling/approving lease of Khasmahal land
on permanent Pattadar status in favour of the petitioner-Trust. As it
appears, O.P.No.3-Tahasildar, Puri vide his order dated 30.03.2007 passed
in BPL Case No.20/2005 has settled the land in question in favour of the
petitioner-Trust on permanent Pattadar status with heritable and
transferable right closing his eyes towards the statutory requirement of the
OGLS Act and the Rules. The Collector, Puri also without examining the
validity/legality of the Tahasildar's recommendation accepted the settlement
made by the Tahasildar ignoring the relevant provisions of the statute
though of course has imposed certain terms and conditions.
7. It is the settled law that when any action of the State or its
instrumentalities is not in accordance with the rules or regulations and
supported by the statute, the Court must exercise its jurisdiction to declare
such an act as illegal and invalid.
In Sirsi Municipality by its President, Sirsi Vs. Cecelia
Kom Francis Tellis, AIR 1973 S.C. 855, the Supreme Court observed that
the rules or the regulations are binding on the authorities.
12
Whenever any action of the authority is in violation of the
provisions of the statute or the action is constitutionally illegal, it cannot
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, the Court cannot become a silent spectator to such an illegality
and it becomes the solemn duty of the Court to deal with the person(s)
violating the law with heavy hands. (See R.N. Nanjundappa Vs. T.
Thimmaiah & Anr., AIR 1972 SC 1767, Sultan Sadik Vs. Sanjay Raj
Subba & Ors., AIR 2004 S.C. 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]
Non-compliance of mandatory requirements vitiates the
proceedings.
The Collector and the Tahasildar are responsible Government
officers working in the Revenue Department. They are supposed to know
the law relating to leasing out of Government properties. Ignorance of the
same cannot be considered as bliss.
Apart from the above, in paragraph 9 of the counter affidavit, it
is stated that the OGLS (Amendment) Act is not applicable to the case of the
petitioner due to the fact that the term of lease had expired since 8.11.1970.
The lessee was not using the leasehold land for homestead purposes for a
13
period of not less than five years as on the appointed date i.e. 9.1.1991. The
Khasmahal land in question was recorded in Sarakari Khata since 1988.
These averments have not been denied by the petitioner in his rejoinder.
However, the petitioner in paragraph 11 of the writ petition has averred that
as per Section 3(4)(c)(i) of the OGLS Act, right accrued under the provisions of
the permanent lease is heritable and transferable.
For the reasons stated above, since the petitioner is not a person
as defined in Section 2 (b-2) of the OGLS Act, Section 3(4)(a) and Section 3(4)
(c)(i), relied upon by the petitioner which speak of a person have no
application to the case of the petitioner. Besides, the petitioner also does not
fulfill the other conditions provided under those sections.
8. The apex Court in New India Assurance Co., Shimla Vs.
Kamla & Ors., AIR 2001 SC 1419 held as follows :-
"As a point of law we have no manner of doubt that a
fake licence cannot get its forgery outfit stripped off merely
on account of some officer renewing the same with or
without knowing it to be forged. Section 15 of the Act only
empowers any licensing authority to "renew a driving
licence issued under the provisions of this Act with effect
from the date of its expiry." No licensing authority has the
power to renew a fake licence and, therefore, a renewal if at
all made cannot transform a fake licence as genuine. Any
counterfeit document showing that it contains a purported
order of statutory authority would ever remain counterfeit
albeit the fact that other persons including some statutory
authorities would have acted on the document unwittingly
on the assumption that it is genuine."
Thus, merely because some Revenue Officers have settled and approved the
lease in favour of petitioner-Trust on permanent Pattadar status that cannot
confer any right on the petitioner-Trust over the land in question as the
same has been granted illegally without adhering to the statutory
provisions. Therefore, settlement of the land in question in favour of the
14
petitioner-Trust on permanent Pattadar status as made by the Tahasildar
and approved by the Collector in BPL Case No.20/2005 being not in
consonance with law is ab initio void and unsustainable.
9. In view of our findings that grant of lease of permanent Pattadar
status in BPL Case No.20/2005 in favour of the petitioner-Trust is void ab
initio because of the illegalities, irregularities committed by the Revenue
authorities, the relief sought for by the petitioner-Trust in the present writ
petition does not merit consideration.
Consequently, even though there is no quarrel over the legal
propositions settled by this Court in the cases relied upon by the petitioner,
they are of no help to the petitioner.
The apex Court in Badrinath -v- Government of Tamil Nadu
& Ors., AIR 2000 S.C. 3243, observed that once the basis of a proceeding is
gone, all consequential acts, actions, orders would fall to the ground
automatically.
10. Law is well settled that the writ jurisdiction is discretionary in
nature and must be exercised in furtherance of justice. The Court has to
keep in mind that its order should not defeat the interest of justice nor it
should permit an order to secure dishonest advantage or perpetuate an
unjust gain or approve an order which has been passed in contravention of
the statutory provisions. (See Champalal Binani Vs. CIT, West Bengal, AIR
1970 SC 645; K.D.Sharma Vs. Steel Authority of India Ltd. & Ors., 2008
AIR SCW 6654).
In view of the above settled legal position, it is felt necessary to
examine the other relevant issues involved in the present context.
15
One of such relevant issues that needs determination by this
Court is whether any lease could have been granted in favour of the
petitioner-Trust at the first instance vide order dated 10.09.2004 in Balu
Lease Renewal Case No.4/2004 pursuant to which the renewal lease
agreement (Annexure-1) was executed on 3rd October, 2005.
Admittedly in the present case, the land in question had been
leased out for the first time in favour of the petitioner-Trust by O.P. No.2-
Collector, Puri vide order dated 10.09.2004 in Balu Lease Renewal Case
No.4/2004. The said order of the Collector dated 10.09.2004 reveals that the
Collector had renewed the leasehold land in favour of the petitioner-Trust for
30 years from 08.11.1970 to 07.11.2000 and another spell of 30 years from
08.11.2000 to 07.11.2030 on the basis of the recommendation of the
Tahasildar, Puri made as per report No.6556 dated 31.07.2004 and letter
No.7757 dated 09.09.2004. The said order further reveals that the
Tahasildar, Puri reported that as per Hal R.O.R. published on 27.08.1988 the
land in question was recorded under Sarakari Khata with a note of illegal
possession of Surendranath Ghosh, son of Bholanath. The report No.6556
dated 31.07.2004 of the Tahasildar is not available on record. The letter of
the Tahasildar dated 09.09.2004 reveals that the land in question was
recorded in Sarakari Khata as the lease had expired in the year 1970 during
pendency of settlement operation. In spite of the above factual observations,
the O.P. No.3-Tahasildar, Puri, without any rhyme or reason and without
referring to any provision of law prevalent during the relevant period
recommended for renewal of lease in favour of the petitioner-Trust. The
opposite party No.2-Collector has also mechanically accepted the
16
recommendation of the Tahasildar and accorded approval just on the next
day, vide order dated 10.09.2004 by giving colour of legitimacy to the
apparently illegal act of the Tahasildar.
It is not understood how in absence of any lease in favour of the
petitioner-Trust in respect of the land in question the Tahasildar could
recommend for renewal of a non-existent lease in favour of the petitioner-
Trust and the same got approval of the Collector on 10.9.2004. Admittedly,
in the instant case, S.N.Ghosh died on 19.01.1973 and no lease was
granted in favour of the Petitioner-Trust prior to 10.09.2004.
Neither the letter of the Tahasildar dated 09.09.2004 nor the
order of the Collector dated 10.09.2004 reveals any provisions of law under
which the Tahasildar and the Collector assumed powers to
recommend/approve such renewal of lease in respect of the land in question
for sixty years with retrospective effect from 08.11.1970.
Admittedly the lessee Surendranath Ghosh had never applied
for renewal of lease in respect of the land in question after expiry of the
lease period on 7.11.1970 during his life time. The lease granted to him in
respect of the land in question expired on 7.11.1970 in terms of the lease
deed as well as by operation of Section 111 of the T.P. Act, 1981 by efflux of
time limited by the lease. Therefore, the question of renewal of lease does
not arise. On the other hand, any application of the petitioner Trust can
only be an application for consideration of fresh lease.
As it appears the Tahasildar vide his letter No.7757 dated
09.09.2004 and the Collector vide his order dated 10.9.2004 respectively
have recommended and granted renewal of lease of Khasmahal land in
17
Mouza - Balukhanda Khasmahal-108 in favour of the petitioner-Trust. Thus
the only enabling provision that was governing the field for grant of
Khasmahal land in urban area during the relevant period, i.e. in the year
2004 is Rule 5-B and Sub-rule 3(a) to Rule 5-B of the OGLS (Amendment)
Rules, 1993. In the foregoing paragraphs we have already dealt in detail
how the petitioner-Trust is not entitled to be settled with the Khasmahal
land under the OGLS Act and Rules.
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. It has been
hither to uncontroverted legal position that where a statute requires to do a
certain thing in a certain way, the thing must be done in that way or not at
all. Other methods or mode of performance are impliedly and necessarily
forbidden. 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 1036 PC 253; Ram Phal Kundu v. Kamal Sharma;
and Indian Bank's Association v. Devkala Consultancy Service, AIR
2004 SC 2615).
In view of the above, renewal of the lease in favour of the
petitioner-Trust in BPL case No.4 of 2004 is abinitio void.
11. The other glaring illegality that comes to our notice is renewal of
the lease in the year 2004 with retrospective effect from 08.11.1970 for sixty
18
years in the name of the petitioner-Trust without any basis and sanction of
law. To justify retrospective renewal of lease, the petitioner-Trust claimed in
course of hearing and in the written note of submission dated 11.05.2010
that it had applied for renewal of the lease before the Collector, Puri on
26.11.1971 and the same was renewed for 60 years with retrospective effect
commencing from 08.11.1970. The submission of the petitioner that it had
made an application on 26.11.1971 for renewal of lease before the Collector,
Puri is not borne by record. There is no pleading in the writ petition to the
effect that on 26.11.1971 an application was made to the Collector for
renewal of lease granted in the name of Surendranath Ghosh in favour of
the petitioner-Trust much less any evidence was either enclosed to the writ
petition or rejoinder supporting such contention. In course of hearing, no
evidence has also been adduced before us in support of such contention.
Law is well settled that a party has to plead its case and
produce/adduce sufficient evidence to substantiate its stand taken in the
petition and, in case the pleadings are not complete, the Court is under no
obligation to entertain such plea. (See Bharat Singh & Ors.Vs.State of
Haryana & Ors, AIR 1988 S.C. 2181).
Neither the order of the Collector dated 10.9.2004 passed in BPL
Case No.4 of 2004 nor the renewal deed executed on 3rd Day of October, 2005
shows that any such application had been filed on 26.11.1971 by the
petitioner-Trustee either before the Collector or before the Tahasildar for
renewal of lease. Surprisingly, even though in the renewal lease deed
agreement dated 03.10.2005 it is recited that the lessee had applied for
renewal of lease granted on 18.6.1941, it remained silent as to when any
19
such renewal application was filed. In the case record of Renewal Lease Case
No.4 of 2004, application dated 26.11.1971 claimed to have been filed does
not find place.
Therefore, the petitioner's claim that it had applied for renewal
of lease on 26.11.1971 is nothing but a misleading approach, which is not
sustainable in the eye of law. It is a clear case of misrepresentation.
In view of the above, grant of lease in the name of Surendranath
Ghosh Trust Estate in Balu Lease Renewal Case No.4 of 2004 for sixty years
with retrospective effect from 8.11.1970 is not only unsustainable but also
goes to show how undue favouritism has been shown by the Revenue
authorities to the petitioner-Trust.
12. The petitioner Trust is otherwise also not entitled to be granted
lease under the OGLS Act and the Rules as it is an unregistered Trust. In
paragraph 8 of the writ petition it is averred that one unregistered private
Trust was created on 30.06.1971 by Surendranath Ghosh keeping his family
members as trustees. The photocopy of the Deed of Trust, which has been
filed before us, shows that late Surendranath Ghosh formed Surendranath
Ghosh Trust Estate on 30.6.1971 in respect of immovable properties situated
in different parts of West Bengal and the property in question situated in
Puri. Section 5 of the Indian Trust Act, 1982 says - "no trust in relation to
immovable property is valid unless declared by non-testamentary instrument
in writing signed by the author of the trust or the trustees and registered or
by the will of the author of the trust or the trustees".(underlined for emphasis)
In the instant case the trust being an unregistered trust, it is not valid.
20
Moreover, Clause 5(kha) of the Trust deed categorically
authorizes the trustees to utilize the income and usufructs of the immovable
properties described in the schedule for charitable purpose after meeting
various expenses relating to the said immovable properties, salary of the
employees etc. Since the author of the Trust purports to create, declare,
assign right and interest on several immovable properties worth more than
Rs.100/- in favour of the Trust, the same is also required to be registered as
per Section 17(b) of the Indian Registration Act, 1908. Unless the Trust is
registered the said Trust deed does not become operative. (See Gostha
Behari Ghose Vs. University of Calcutta, AIR 1972 Calcutta 61). The
petitioner-Trust being an unregistered Trust, the claim that the petitioner-
Trust is a juristic person does not merit consideration.
The Trust in question being not a legal entity it can neither make
any application for grant of lease in respect of any land in its favour nor any
lease can be granted in favour of an unregistered Trust.
13. We are shocked to note that the Revenue authorities have
renewed Khasmahal lease in favour of the petitioner-Trust in Balu Lease
Renewal Case No.4 of 2004 for 60 years with retrospective effect from
08.11.1970, executed Renewal Lease Agreement (Annexure-1) and granted
permanent Pattadar status in BPL Case No. 20 of 2005 without any authority
of law. We have no hesitation to hold that it is a clear case of collusion and
fraud.
14. The other irregularities/illegalities that cast suspicion in the
minds of the Court are that by virtue of Power of Attorney dated 26.02.2005
the Trust has given power to one Mr. Madhusudhan Khuntia, the Power of
21
Attorney holder, to sell away the land in question in favour of one Govinda
Chandra Khuntia and his brothers and one Smt. Sandhyarani Mohanty to
whom the Trustees had agreed to sell the said land and received the
consideration money of Rupees Thirteen Lakhs although, as per the trust
deed, the trustees are not competent to transfer the Trust properties by
effecting gift, sale and mortgage etc. Clause-5(Kha) of the Trust deed
categorically provides that the Trust has been formed for charitable
purpose and Clause-5(Cha) clearly debars the trustees from selling away
the Trust properties, but the activities of the Trustees to sell away the
property unveils their hidden mala fide intention and connivance with the
proposed buyers. The relevant portion of Clause-5(Cha) is reproduced
below.
"(cha) The trustees shall not be competent to raise
claim to the effect that the scheduled properties are
their personal properties at any point of time and the
property described in the schedule shall not be sold
or put to auction for the personal debts of the
trustees. The trustees shall not be competent to
transfer or charge the properties described in the
schedule by effecting gift, sale, mortgage etc.
whatsoever and if that is so done the same shall be
void and inadmissible everywhere and in all courts of
law."
(underlined for emphasis)
The Trustees being the creatures of the Trust cannot act
contrary to the purpose for which the Trust has been created.
In the instant case the power of attorney had been executed on
26.02.2005 in favour of Mr. Khuntia inter alia authorizing him to sell the
property at Puri for which the trustees received consideration money and
thereafter the renewal lease deed agreement has been executed by the said
Power of Attorney holder Mr. Khuntia on 3rd day of October, 2005. Thus, all
22
these documents appear to have been created in the year 2005 only with an
intention to grab the government land.
Moreover, in the Trust deed dated 30.06.1971, the author of
the Trust late Surendranath Ghosh declared that he had decided to execute
a deed of trust for performing the works as stated in the Trust deed
properly from out of the income of the properties received by him by way of
inheritance from paternal side and being purchased by him having his right
and possession over the properties. The property at Puri does not come
within the purview of these two categories. The author of the Trust who
included the land in question at Puri in the schedule to the trust deed
dated 30.6.1971 was by that time no more a lease holder of the said land,
as the term of lease had expired on 7.11.1970. As stated above, after expiry
of the lease on 7.11.1970, renewal of lease was never asked for by the said
Surendranath Ghosh during his life time till he expired on 19.1.1973. In
any event, on the date of execution of the Trust Deed the author of the
Trust was not the leaseholder/owner of the land in question at Puri.
The Commissioner of Consolidation, Orissa, Bhubaneswar in
his order dated July 14, 2006 passed in R.P. No.69/2005 while dealing
with the matter regarding mutation of the land in question in favour of the
petitioner-Trust remanded the matter to the Tahasildar, Puri for disposal
according to law with the following observation :-
"A perusal of material evidence on record shows that
1988 Settlement Plot No.126 Ac.0.218 under Gharbari EK
Classification stands recorded in Govt. Khata No.67 with a
note of illegal possession of Surendranath Ghose S/o-
Bholanath. The petitioner prays for mutation of case land
on the strength of the Renewal lease deed agreement
bearing Regd No.5327 dt .25.10.2005 executed by the
Hon'ble Governor of Orissa in favour of Surendranath
Ghosh Trust Estate, Kolkata. In this deed, lease has been
23
granted for two consecutive terms of 60 years from
8.11.1970 to 7.11.2030. In the meantime the record of right
for the case land has been finally published on 27.8.1988.
The Renewal lease deed has been executed in 2005.
As such, the R.P. is remanded to the Tahasildar,
Puri for disposal according to law."
(Underlined for emphasis)
In spite of the above observation of the Commissioner of
Consolidation, the Tahasildar, Puri recorded the land in question in the
name of the petitioner-Trust without assigning any cogent reason and with
utter disregard to the statutory provisions.
The Executive Officer, Puri Municipality vide his letter dated
5277 dated 23.11.2005 filed its objection in Municipal Lease Case No.BPL
20/05 before the Tahasildar, Puri to the effect that the land in question
belonged to Puri Municipality and as such the Tahasildar, Puri was not
competent to grant lease patta in favour of anybody as writ petition bearing
O.J.C. No.17404/97 was pending in the High Court and the matter was
sub-judice. This objection of the Executive Officer, Puri Municipality has not
been considered by opp. parties in its proper perspective.
The Lease Case Record No. 20 of 2005 further shows that an
application was made to the Collector & District Magistrate, Puri by one
Jagannath Bastia on 07.04.2007 with a prayer not to approve Balu Khanda
Permanent lease settled by Tahasildar, Puri in Lease Case No.20 of 2005 in
favour of the petitioner-Trust and to take necessary immediate steps to stop
illegal transfer of the said Government land and for resumption as it
involves larger interest of the State. Request was also made to enquire into
the matter and to give opportunity to the applicant at the time of enquiry to
substantiate his allegations. As it appears, this objection has not been
considered by the Collector, Puri while approving the settlement made by
24
opposite party No.3, the Tahasildar on permanent Pattadar Status in favour
of the petitioner-Trust vide his order dated 25.09.2007 (Annexure-2).
In the writ petition and written note of submission though it is
stated that originally the land in question was leased out in favour of late
Surendranath Ghosh on 07.11.1924 for a period of sixteen years, the order
of the Collector dated 10.09.2004 reveals that the land in question was
leased out in favour of one Binod Behari Dey of West Bengal under lease
Agreement Deed No. 1094 of 1928 for a period of sixteen years from
07.11.1924 as per letter No.122 dated 24.07.2004 of R.I., Puri.
15. The fact situation shows that the renewal of lease with
retrospective effect from 08.11.1970 for sixty years in favour of the
petitioner-Trust in Balu Lease Renewal Case No.4/2004, execution of
Renewal Lease deed dated 03.10.2005 and settlement of lease land on
permanent Pattadar status in BPL Case No. 20 of 2005 are nothing but the
outcome of a massive collusion and fraud.
The apex Court in Shrisht Dhawan (Smt) vs. Shaw Bros.,
(1992) 1 SCC 534), held as under:-
"Fraud and collusion vitiate even the most solemn
proceedings in any civilized system of jurisprudence. It is a
concept descriptive of human conduct. Michael Levi likens
a fraudster to Milton's sorcerer, Comus, who exulted in his
ability to, 'wing me into the easy-hearted man and trap him
into snares'. It has been defined as an act of trickery of
deceit. In Webster's Third New International Dictionary
fraud in equity has been defined as an act or omission to
act or concealment by which one person obtains an
advantage against conscience over another or which equity
or pubic policy forbids as being prejudicial to another. In
Black's Legal Dictionary, 'fraud' is defined as an intentional
perversion of truth for the purpose of inducing another in
reliance upon it to part with some valuable thing belonging
to him or surrender a legal right; a false representation of a
matter of fact whether by words or by conduct, by false or
misleading allegations, or by concealment of that which
should have been disclosed, which deceives and is intended
25
to deceive another so that he shall act upon it to his legal
injury. In Concise Oxford Dictionary, it has been defined as
criminal deception, use of false representation to gain
unjust advantage; dishonest artifice or trick. According to
Halsbury's Laws of England, a representation is deemed to
have been false, and therefore a misrepresentation, if it was
at the material date false in substance and in fact. Section
17 of the Contract Act defines 'fraud' as an act committed
by a party to a contract with intent to deceive another.
From dictionary meaning or even otherwise fraud arises out
of deliberate active role of representator about a fact which
he knows to be untrue yet he succeeds in misleading the
representee by making him believe it to be true. The
representation to become fraudulent must be of fact with
knowledge that it was false."
In a recent decision, the apex Court in State of Orissa and
Others vs. Harapriya Bisoi, (2009) 12 SSC 378 scathingly pulled up
government officials for their involvement in dealing with government
properties in illegal and collusive manner.
The Court cannot be a party to a case founded on massive
frauds, illegalities and irregularities. The Court has a solemn duty to lift the
veil to arrive at the truth.
16. Law is well settled that every action of the State and its
instrumentality should be fair, legitimate and above board and without any
affection or aversion. (See Haji T.M. Hassan Rawther Vs. Kerala Finance
Corporation, AIR 1988 SC 157; E.P. Royappa Vs. State of Tamil Nadu,
AIR 1974 SC 555 and State of Andhra Pradesh & Anr., -vs- Nalla Raja
Reddy, AIR 1967 SC 1458).
The land in question appears to be a valuable land because of its
locational advantage and commercial use. In case the Government so likes to
lease out/sell such valuable land, the authorities exercising powers for leasing
out/selling away the land must not only be alert and vigilant in such matters
but also show awareness of the ways of the present day world as also the
26
ugly realities at their face value or make a less than the closest-and-best-
attention approach to guard against all pitfalls. [See Chenchu Rami Reddy
& Anr. Vs. Government of Andhra Pradesh & Ors., (1986) 3 SCC 391]
17. Considering all the aforesaid facts and circumstances of the
case, we are of the view that the present case is a clear case of fraud,
manipulation and collusion. We, therefore, direct the opposite parties to
take immediate steps to take possession of the land in question. It would be
appropriate for the State to cause necessary inquiry and fix responsibility
on the erring officers at whose instance such valuable property of the
Government has been leased out in illegal and fraudulent manner, in the
light of the direction of the apex Court in Harapriya Bisoi's case (supra).
18. With the above observation, the writ petition is dismissed
No order as to costs.
...........................
B.N.Mahapatra, J.
B.P.Das, J.I agree.
........................ B.P.Das, J.
Orissa High Court, Cuttack Dated 02nd July, 2010/sss/skj/ pcp