PRASANNA NARAYAN SARANGI v. STATE OF ORISSA — 1996 DIGILAW 116 (ORI)

D. M. PATNAIK, J. ( 1 ) THE petitioner assails the order of the Government of Orissa in the General Administration Department vide Annexure 6 directing him to give up the unauthorised possession of the land beyond his leasehold area. ( 2 ) THE petitioner's case is, he was allotted a Government plot bearing No. BJ-12 measuring an area of 78' (m) x 80' (m) in the Kalpasa area, Bhubaneswar on lease basis. The plot being a corner plot having roads on three sides of it, he paid on extra 10% of the premium at the rate of Rs. 80,000/- per acre. Pursuant to the agreement dated 27-3-84 (Annexure 2), he took delivery of possession of the plot on 9-5-84-Annexure. In course of time, he constructed the ground floor after requisite permission from the Bhubaneswar Development Authority. For construction of the first floor he approached the Development Authority for permission. The said Authority on verification found the petitioner to have possessed certain land beyond the lease-hold area. The Bhubaneswar Development Authority (for short, the 'b. D. A. ') informed the Government of such unauthorised possession vide Annexure 4 dated 23-5-91. It requested the Government either to settle the excess land or to take steps for eviction. The petitioner on being informed of this, by his letter dated 24-5-91 under Annexure 5 informed the Government that he had not gone beyond the area shown in the map, Annexure 1 and even if it was found, he had so done, he should be settled in respect of that excess land. Government by their letter dated 21-3-92 under Annexure 6 informed the petitioner to vacate the land. The petitioner assails the said order of the Government as arbitrary and violative of the principle of natural justice. ( 3 ) THE Government in their counter-affidavit claim that the total area under possession of the petitioner is found to be Ac. 0. 267 decimals out of which the excess area works out as Ac. 0. 113 decimals which the petitioner has to vacate since this amounts to unauthorised possession. ( 4 ) HEARD Mr. G. Rath, learned Senior Counsel for the petitioner and Mr. A. K. Mohapatra, learned Additional Government Advocate in the matter. The contentions of Mr. Rath is two fold in support of the petitioner's case. Firstly, relying on the case of The Palestine Kupat Am Bank Co-operative Society Ltd. v. Govt. ( 4 ) HEARD Mr. G. Rath, learned Senior Counsel for the petitioner and Mr. A. K. Mohapatra, learned Additional Government Advocate in the matter. The contentions of Mr. Rath is two fold in support of the petitioner's case. Firstly, relying on the case of The Palestine Kupat Am Bank Co-operative Society Ltd. v. Govt. of Palestine, reported in AIR 1948 PC 207, it is contended that once the delivery of possession of the land is given with reference to the fixed boundary line of the plot in question as per the sketch map attached to the lease deed (Annexure 1), any area in excess if at all is found within the said plot, the petitioner should be settled in respect of the said excess land by paying premium at the rate prevalent in the year 1984 and it would not be proper to evict him from the land; secondly, it is argued that the direction of the Government being for eviction from the land under Annexure 6, such a direction should not have been given without giving the petitioner an opportunity to place his case and therefore, there has been violation of the principles of natural justice. ( 5 ) WITH regard to the first contention of Mr. Rath, so far as the decision referred to above is concerned, I find the game to be distinguishable on facts. In the aforesaid case, their Lordships, no doubt, held that the extent of the grant was fixed by the boundaries and not by the area and that the difference in the area thus bounded and the area stated was substantial. The reason for their Lordships to hold that way was, because of the 'rough' and 'uncultivated' nature of the most of the 'ground' which lay between them. It was further reasoned that errors of this description appeared to have been 'notorious' in the Turkish Empire before the days of precise surveying and Article 47 of the Ottoman Land Code made provision that in the cases to which it applied the area stated should be ignored where boundaries had been fixed and pointed out. It was further reasoned that errors of this description appeared to have been 'notorious' in the Turkish Empire before the days of precise surveying and Article 47 of the Ottoman Land Code made provision that in the cases to which it applied the area stated should be ignored where boundaries had been fixed and pointed out. In the case at hand, we are not faced with any difficulty with regard to the identity of the various lands within Kalpana area including the land in question since long time passed, the entire area has been subjected to survey and therefore, the question of identity of the area would not arise. The other contention of Mr. Rath that the petitioner was given possession of the excess land and that the land was within the triangular corner plot in question and that the petitioner had never gone beyond the boundary line of the sketch map raises a substantial question for decision. As a logical sequence to this argument, a disputed question of fact is thus raised as to whether this Ac. 0. 113 decimals of land now stated to be under the possession of the petitioner was available as on 9-5-84, the day when the petitioner took possession and whether the petitioner possessed that excess land from that date or this became subsequently available in between the leasehold land of the petitioner and the road because of the alignment or construction of the road as is the case of the Government. ( 6 ) ON going through the Government counter and the sketch maps under Annexures A and B and the admission of the petitioner under Annexure 5, the letter to the Government, I have no hesitation to hold that the petitioner is in fact in possession of the excess area of Ac. 0. 113 decs. though this may vary either way on fresh measurement, if necessity so arises. Government have not come forward with a positive case if this excess land of Ac. 0. 113 decs, leaving aside the leasehold area of 5600 sq. feet belonging to the petitioner, was available as on 9-5-84 within the boundary shown in the corner plot of the petitioner as per Annexure 1. Government have not come forward with a positive case if this excess land of Ac. 0. 113 decs, leaving aside the leasehold area of 5600 sq. feet belonging to the petitioner, was available as on 9-5-84 within the boundary shown in the corner plot of the petitioner as per Annexure 1. The area of the triangular plot has also not been given which creates a confusion and we are unable to find out even on calculation and measurement whether the triangular plot shown in the map in fact measure 5,600 sq. feet or more. Further lack of information is also with regard to the alignment of the road or the year of its actual construction, if any, though it is pleaded by the Government in their counter that the excess land became available after such alignment and/or construction. This Court has not also been furnished with the master plan of the area in question with regard to the dimension of the road as shown in the sketch map (Annexure 1 ). In the absence of all these particulars, it is not possible for this Court to settle the present dispute between the parties. Therefore, Government have to find out after fresh enquiry and after giving the petitioner an opportunity of being heard whether the petitioner is liable to be evicted from the excess land in question. In case Government decide to settle the land in question in favour of the petitioner, the rate of premium should be calculated at the rate prevalent in the year when the petitioner possessed the excess land in question. This may be either as on 9-5-84 as pleaded by the petitioner or any subsequent year when the excess land became available as per the case of the Government. ( 7 ) WITH regard to the second point i. e. violation of the principles of natural justice, it is found from Annexure 4, the letter addressed by the B. D. A. to the Director of Estates, Orissa, informing the Government that the petitioner was in possession of excess land "possibly because of the alignment of the road and their actual construction" and a copy of this letter was also sent to the petitioner as is indicated in that letter. This letter is dated 23-5-91. This letter is dated 23-5-91. On the next day i. e. 24-5-91 the petitioner sent a letter (Annexure5) to the Government pleading his case and at the same time giving an offer for settlement of the excess land under his possession. The Government about ten months thereafter under Annexure-6 directed him to give up possession failing which he should be evicted through due process of law. From this it is apparent that the letter (Annexure-5) claim of the petitioner was considered in his absence. The letter (Annexure 6) does not indicate that the petitioner was heard in person or through any of his agents. Therefore, it is appropriate that considering the claim of the petitioner and further considering the stringent measure proposed to be taken against the petitioner, he should be given an opportunity of personal hearing in the matter. ( 8 ) FOR the reasons stated above, the writ petition is allowed, Annexure-6 is quashed and the directions to vacate the excess land in question is set aside. The petitioner's claim for settlement may be reconsidered by the Government after giving him opportunity of being heard. The matter shall be disposed of within a period of three months from the date of receipt of this order. Till the matter is disposed of by the Government, the petitioner shall not be evicted from the said excess land in question. No costs. ( 9 ) WHILE agreeing with learned brother D. M. Patnaik, J. I like to record my own reasons in support of the present decision. ( 10 ) GOVERNMENT of Orissa granted a lease of Plot No. BJ-12 measuring 70' (M) X80' (M) in the Kalpana area, Bhubaneswar as per drawing No. 805 attached to the deed of lease (Annexure 2 ). The boundary of the aforesaid Plot was described in the following manner. North-Road South-Road East-Road West Plots Nos. BJ-13 and BJ-25 from the enclosed map it appears that the said plot is a traingular corner plot and the northern boundary of plot No. BJ-12 and BJ-25 was in a straight line. ( 11 ) UNDISPUTEDLY areawise the petitioner has included in his occupation more land than the land for which premium was paid. Moreover, in the deed the length of the western boundary of the plot No. BJ-12 has also been indicated. ( 11 ) UNDISPUTEDLY areawise the petitioner has included in his occupation more land than the land for which premium was paid. Moreover, in the deed the length of the western boundary of the plot No. BJ-12 has also been indicated. ( 12 ) IT has been submitted on behalf of the petitioner that the plot in question having been described by the boundary, in case of any conflict between the area and the boundary, the letter is to prevail. ( 13 ) ON the basis of such legal proposition Mr. Rath learned counsel for the petitioner wants this Court to hold that the entire area in occupation of the petitioner has been allotted to him and to direct the authorities to regularise such occupation by accepting extra premium at the rate prevailing at the time of grant of lease for the said excess area. ( 14 ) IN the facts and circumstances of the present case and on the basis of the materials on record it is not possible for this Court to hold at this stage that the entire area in occupation of the petitioner was intended to be leased out or was in fact leased out to him. The northern boundary of the plot was stated to be bounded by road. Road ordinarily includes the road-side public land. Location of northern boundary of plot No. BJ-12 is dependant upon width of the road and the adjacent road-side public land. The sketch map annexed to the document of lease deed did not indicate width of the road on the north-eastern side. From the sketch map given as Annexure A to the counter-affidavit of the opposite parties, it appears that the northern boundary as claimed by the petitioner has gone beyond the north-eastern line of BM-25 and it is no longer on a straight line. Where there is no definiteness about the northern or north-eastern boundary of the plot in question, the legal proposition as advanced by Mr. Rath learned counsel cannot be of any help unless location of the northern boundary is determined with reference to the situation prevailing at the time of grant of lease and width of the land kept reserved for road and road-side public land. In the present case the difference in area is quite substantial and a glance at the sketch map annexed to the counter of the opp. In the present case the difference in area is quite substantial and a glance at the sketch map annexed to the counter of the opp. parties shows that if the petitioner's contention is accepted the width of the road and the road side land at the junction will be less than the width of such land just behind the petitioner's plot. ( 15 ) MR. Rath has cited two decisions in support of his contention. The case reported in AIR 1963 SC 1879 (Sheodhyan Singh v. Mst. Sanichara Kuer) is clearly distinguishable. In that case the dispute related to the identity of the plot sold. It was found in that case that the area, Khata number and the boundaries all referred to plot No. 1060, but in the schedule the plot number was mentioned as 160'. Considering all aspects it was held that the boundaries given in the document clearly indicated that plot No. 1060 and not plot No. 160 was actually sold. In that case the boundaries were one of the several circumstances taken into consideration for the purpose of determining the actual plot which was sold. The facts of the present case are totally different and the decision of the said Supreme Court is of no help in the present case. ( 16 ) THE case reported in AIR 1948 PC 207 (The Palestine Kupat Am Bank Co-operative Society Ltd. v. Government of Palestine) was decided in view of the provisions of Ottoman Land Code to the effect that the area stated to be ignored where boundary had been fixed and pointed out. There is no such express provision of law in the present case. Moreover, in the said reported case the boundaries were fixed and precise. As already pointed out in the present case, there is no certainty about the exact location of the northern boundary of the plot in question at the time of grant of lease. Accordingly, the principle enunciated in the said decision of the Privy Council cannot also be made applicable to the present case. ( 17 ) AS pointed out by Hon'ble D. M. Patnaik, J. , it is not possible to accept the contentions of the petitioner without a factual determination regarding the extent of land kept reserved for road and road-side land at the time of grant of lease. ( 17 ) AS pointed out by Hon'ble D. M. Patnaik, J. , it is not possible to accept the contentions of the petitioner without a factual determination regarding the extent of land kept reserved for road and road-side land at the time of grant of lease. It appears that the authorities have not considered the claim of the petitioner that the entire area at present in occupation of the petitioner was leased out to him and have not given the petitioner any opportunity of hearing before asking him to vacate from the express area of land. Principles of natural justice and fair-play require that a proper determination should be made after consideration of the petitioner's case and giving him an opportunity of hearing. The impugned order is thus liable to be set aside and quashed, and the opposite parties should consider the case of the petitioner before asking him to vacate. Order accordingly. .