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2005 DIGILAW 329 (ORI)

Bankim Behari Parida v. State of Orissa

2005-05-17

M.M.DAS

body2005
JUDGMENT M. M. DAS, J. — The petitioner in this writ application has prayed for an order quashing Annexure-11 i.e. letter of the Tahasildar, Angul demanding enhanced market value and interest for execution of the lease agreement and has also prayed for a direction to the opp. party No. 3, i.e. Tahasildar, Angul to refund the amount deposited by the petitioner under Annexure-9 to the writ application. 2. The petitioner’s case is that he is an ex-serviceman who took part in 1962 Indo-China War. The State Government formulated a scheme for leasing out land in favour of ex-serviceman who took part in the said Indo-China War. Accordingly, Town Lease Case No. 66-61/62 was initiated by the opp. party No. 3-Tahasildar for allotting a piece of land measuring Ac. 0.20 decimals in favour of the petitioner. Pursuant to the orders passed in the said lease case, the petitioner deposited the amount of premium as directed, in full. The last of such payment was made on 2.5.1989 as per Annexure-1. In the letter dated 2.6.1990 under Annexure-2 to the writ application, the opp. party No. 3 admitted such full payment of premium by the petitioner. The further case of the petitioner is that since his retirement from the Army on 30.6.1990, he moved various authorities of the State Government in the Revenue Department for getting the lease deed registered. The letter dated 9.4.1992 of the Revenue Divi¬sional Commissioner, Northern Division, Sambalpur under Annexure-3 to the writ application shows that the said Revenue Divisional Commissioner asked the Sub-Collector, Angul to complete the registration of the lease deed in favour of the petitioner by 30.4.1992. The petitioner has stated that in spite of his visit to the office of the Sub-Collector, Angul in innumerable occa¬sions, no action was taken, for which the petitioner approached this Court in O.J.C. No. 15625 of 1997 in which, in spite of notice being issued, no counter affidavit was filed by the opp. parties and ultimately, the matter was disposed of by order dated 20.11.2000. This Court in the said order directed execution of the lease deed in favour of the petitioner within a period of one month from the date of communication of the said order. It was further observed that if any premium is to be paid, the same should be paid within three months from the date of the said order. This Court in the said order directed execution of the lease deed in favour of the petitioner within a period of one month from the date of communication of the said order. It was further observed that if any premium is to be paid, the same should be paid within three months from the date of the said order. It transpires from the writ application that the said order was communicated to the opp. parties, but since no action was taken, the petitioner filed an application for initiating a contempt proceeding which was disposed of by order dated 20.6.2001 directing compliance of the order within eight weeks as a last chance. The opp. party No. 3 thereafter by his letter dated 25.7.2001 intimated the petitioner that since by the date he deposited the premium in full, there being increase in stamp duty, he should submit fresh lease agreement on stamp papers at the revised rate for execution and registration of the lease deed. The petitioner replied to the said letter of the opp. party No. 3 stating that on 3.8.2001 though he went to the office of the Sub-Collector and deposited stamp paper worth Rs. 410/- and he was requested to wait till lease deed is typed on the stamp paper but the same was returned to him without the lease deed being typed on it. The petitioner was subsequently directed by letter dated 3.4.2004 to deposit a further sum of Rs. 76,235/- towards differential market value for late payment made on 29.9.1978 and 30.5.1989. 3. It appears that the petitioner deposited the above amount under Annexure-10 without prejudice to his claim. It is stated by the petitioner that the opp. party No. 3 without any rhyme or reason by his letter dated 25.10.2004 under Annexure-11 has claimed escalated cost for the land and interest totalling to Rs. 1,38,928.20 and asked the petitioner to make payment of the said sum for revalidation of lease sanction order and execution of the lease agreement. Being aggrieved by the said action of the opp. party No. 3, the petitioner has approached this Court under Article 226 of the Constitution for appropriate relief. 4. Counter affidavit has been filed by the opp. parties, inter alia, stating that the petitioner instead of making payment of the market value of Rs. Being aggrieved by the said action of the opp. party No. 3, the petitioner has approached this Court under Article 226 of the Constitution for appropriate relief. 4. Counter affidavit has been filed by the opp. parties, inter alia, stating that the petitioner instead of making payment of the market value of Rs. 3040/- on usual terms and conditions as communicated to him vide letter dated 16.5.1967 of the Revenue Divisional Commissioner (N.D.), dragged the matter to different quarters and ultimately paid the full premium on 30.5.1989. It has been further stated in the counter affidavit that after disposal of the contempt application, the petitioner went to the office of the Sub-Collector, Angul on 3.8.2001 at late hours and handed over stamp papers for execution of the lease deed. Though efforts were made for typing out the original and duplicate copy of the deeds, as it was not possible to complete the same, the petitioner was advised to come later. 5. Mr. Dash, learned counsel for the petitioner brought to the notice of the Court that the Government of Orissa made provi¬sions for allotment of Government land on lease to Jawans and in that respect issued various circulars from time to time. He produced the copy of resolution No. 11323-3S-29-Poll dated 14.5.1963 of the Home Department of the Government of Orissa, in which it was stated that in view of the present crisis due to external aggression, the Government looked forward to the Jawans of the State to proceed to forward areas to defend our country against the enemy’s attack and to protect the life and property of peace loving people of the country. In response to the call of the Nation it was encouraging that a large number of people from all walks of life not only have been volunteering for service but also have been contributing considerably in cash and kind for the purpose. In consideration of the risk and sacrifice of officers and men who have proceeded or will be proceeding to forward areas for active service, the State Government have been pleased to decide that certain categories of officers and men will be enti¬tled to facilities detailed in the said resolution. In Clause 3 (d) of the said resolution it was resolved that each person on return will get 5 acres of land free and made ready for cultiva¬tion at Government cost. In Clause 3 (d) of the said resolution it was resolved that each person on return will get 5 acres of land free and made ready for cultiva¬tion at Government cost. In Clause 3 (e) thereof it was further stipulated that such land would be given on rent-free basis. 6. Mr. Dash further brought to the notice of the Court some of the subsequent circulars, the relevant portions of which are quoted herein below : Grant of facilities to the Jawans of Orissa Proceeding forward areas in G.L.No. 47069-GE (GL-11)-88/66-R date 20.7.1966. In partial modification of the G.O. issued in Home Department letter No. 34098 (13)-Poll., dated the 23rd December, 1965 to all Collectors on the subject noted above. I am directed to say that the Jawans may be granted homestead lands free of premium up to a maximum extent of 20 cents only in rural areas in lieu of the equivalent extent of agricultural lands out of the 5 acres to be allotted according to the para 3 (d) of Home Department Resolution No. 11323-Poll. Dated the 14th May, 1963, read with Resolution No. 9736-Poll, Dated the 11th April, 1964. 2 & 3 xxx xxx xxx Facilities and concessions to be provided to Jawans of Orissa who have served in forward areas-Procedure for reclamation of land allotted as Communicated in G.L.No. 76275-GE (GL) - 206/77-R date 15.10.1977. I am directed to invite a reference to your office letter No. 2903-XIX-175/70-Rev. dated the 14th August, 1970 outlining the detailed procedure to be followed in the matter of allotment of land to the Jawans of Orissa. It has now come to the notice of Government that the application of the Jawans for allotment of land are in most cases not being disposed of properly and expeditiously with the result that the Jawans who are to serve in the frontiers are put to unnecessary harassment by running to Tahsil Offices for getting allotment of land. The Jawans for obvious reasons, should not be treated on the same footing as private individuals since they cannot afford to leave the frontiers off and on so as to approach the concerned Tahsil¬dars to expedite allotment of land in their favour. The Jawans for obvious reasons, should not be treated on the same footing as private individuals since they cannot afford to leave the frontiers off and on so as to approach the concerned Tahsil¬dars to expedite allotment of land in their favour. Government have, therefore, been pleased to decide that within a period of 3 months of filing the application, land should be allotted to the Jawans failing which it should be incumbent upon the Tahsildar concerned to explain the circumstances under which the land could not be allotted. 2. xxx xxx xxx Exemption of Court fees, process fees, measurement fees to Jawans as Communicated in G.L.No. 3042-R date 16.1.1968. I am directed to reference to paragraph 3 of your letter No. 1167-Rev. Dated the 22nd March, 1965 on the subject noted above and to say that the sub-paragraph (d) of paragraph 3 of Resolution No. 11323-Poll., dated the 14th May, 1963 of Home Department states that each person on return will get 5 acres of land free and made ready for cultivation at Government cost. A doubt has arisen if the aforesaid word “free” means free of premium only or free of all the dues like Court fees, process fees and measurement fees which an applicant for lease is liable to pay. 2. After careful consideration of the matter Government are pleased to clarify that each Jawan or Officer on return will get 5 acres of land free of premium only and not of anything else. In other words the Jawan or the Officer will be liable to pay all other normal charges like Court fees, process fees, measurement fees according to the approved lease principles for lease of lands. 3 & 4. xxx xxx xxx” 7. Mr. Kar, learned Addl. Standing Counsel in his usual fairness did not dispute the applicability of the above resolu¬tions and circulars of the State Government to the facts of the present case. 8. A cumulative reading of the above resolutions and clarifications made thereto as quoted above, would go to show that the land to be allotted/leased out to any officer/Jawan pursuant to the Government resolutions would not only be rent free but also the same will be free from payment of premium. 8. A cumulative reading of the above resolutions and clarifications made thereto as quoted above, would go to show that the land to be allotted/leased out to any officer/Jawan pursuant to the Government resolutions would not only be rent free but also the same will be free from payment of premium. However, such Jawan/officer will have to pay Court-fees which, in the context, will also mean stamp papers for execution of the lease deed, process fees and measurement fees for demarcation. 9. Considering the facts of the case and various corre¬spondences made between the parties and the receipts produced by the petitioner showing payment of premium on different occasions, we have no hesitation to hold that this is a clear case where in spite of specific orders having been passed by this Court in the previous writ application and the contempt petition the opp. party No. 3 has somehow avoided to execute the lease deed in favour of the petitioner without any fault of the petitioner. Such action on the part of the opp. party No. 3 clearly amounts to over-reaching Court’s order as well as contravening the decisions taken by the Government in various circulars and resolutions. In view of the letter No. 2503 dated 2.6.1990 under Annexure-2 to the writ application addressed to the Sub-Collector, Angul by the Tahasildar-opp. party No. 3, there is no iota of doubt that the authority was satisfied that the petition¬er has paid the full amount of premium as per the instalment fixed by the Government. It also appears from the said letter that the opp. party No. 3 has categorically stated that realisa¬tion of further amount is not necessary as the petitioner by that date, paid the entire premium as asked for and filed the deed of agreement typed on stamp paper prior to the said payment as per instruction of the opp. party No. 3. 10. In view of the various circulars, resolutions and clarification made thereto by the concerned department of the Government of Orissa, we are of view that the petitioner was not liable to pay any amount as premium for the lease proposed to be granted to him. party No. 3. 10. In view of the various circulars, resolutions and clarification made thereto by the concerned department of the Government of Orissa, we are of view that the petitioner was not liable to pay any amount as premium for the lease proposed to be granted to him. This Court in order dated 20.11.2000 passed in O.J.C.No. 15625 of 1997 though observed that if any premium is to be paid, the same should be paid within three months from the date of the said order, the said observation cannot be construed to have permitted or directed the opp. party No. 3 to demand payment of a further premium of Rs. 76,235/- contrary to the various circulars, resolutions and clarifications issued by the concerned department of the Government of Orissa. Since in re¬sponse to such illegal demand, the petitioner has ungrudgingly paid the same, the said payment is to be construed without prejudice to the claim of the petitioner to get refund of the same. 11. We are constrained to observe that this is a clear case where not only the action of the opp. parties is contrary to the circulars and resolutions passed by the State Government but also action of the concerned authorities of the State in dealing with the case of the petitioner with regard to implementation of the Scheme is absolutely slothful and it is also clear that the petitioner has been repeatedly harassed and compelled to knock the doors of the judiciary for a small patch of land extending to an area of only Ac. 0.20 decimals which was decided to be leased out to him. 12. We, therefore, have no hesitation to allow this writ application directing the opp. party No. 3-Tahsildar, Angul to execute and register the lease deed with respect to the land in question within a period of sixty days from the date of receipt of the certified copy of this order in favour of the petitioner. 13. With regard to the prayer of the petitioner for refund of the amount deposited by him under Annexure-9 to the writ petition as we have already held that as per the circulars/reso¬lutions of the Government, the petitioner was not required to pay any premium, the letter under Annexure-9 directing the petitioner to pay the differential market value of Rs. 76,235/- was uncalled for and contrary to the Scheme and subsequent circulars. 76,235/- was uncalled for and contrary to the Scheme and subsequent circulars. We, therefore, quash the said letter under Annexure-9 and direct that the petitioner shall be refunded with the above amount of Rs. 76,235/- but in the circumstances, without interest, within a period of eight weeks from the date of production of the certi¬fied copy of this order by the petitioner before the Tahasildar-opp. party No. 3. We further direct that since the petitioner has been compelled to approach this Court and the authorities, without any fault of his and also approached various authorities on innumerable occasions, he shall be entitled to cost of Rs. 5,000/- (Rupees five thousand) which shall be paid by the opp. parties to the learned counsel for the petitioner by 21.6.2005 and the said amount shall be recovered from the salary of the concerned Tahsildar-opp. party No. 3 who issued the letter dated 25.10.2004 under Annexure-11 to the writ petition or from the concerned officer on whose direction the same was issued to the petitioner. The writ application is accordingly allowed. S. B. ROY, C.J. I agree. Application allowed.