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2011 DIGILAW 372 (ORI)

Swarnalata Dash v. Tahasildar, Niali

2011-07-20

SANJU PANDA

body2011
JUDGMENT SANJU PANDA, J.-In this writ application, the Petitioner has challenged the Order Dated 2.6.2005 passed by the Commissioner, Land Reforms, Cuttack in OLR Revision Case No.9 of 2003 confirming the Order Dated 5.12.2011 passed by the Tahasildar, Niali in OLR No.887 of 2002. 2. The facts leading to the present case are as follows: The Petitioner purchased a land from the rightful owner-Bhaskar Mishra by a registered Sale Deed No.1246 dated 30.6.1990 & also purchased another adjacent plot from the said owner by registered Sale Deed No.586 dated 19.2.1991. She possessed the total area of Ac.0.05 decimals of land from the date of purchase, as the vendor delivered possession of the land to her. The type of the land before purchase was "Bari". After purchase, the Petitioner applied for mutation of the said land before the Tahasildar, Nialai vide Mutation Case No.699 of 1990 which was allowed on 27.3.1991. The kissam of the land was corrected as "Gharabari" & the rate was also fixed. Since then, the Petitioner after constructing a pucca building is residing over the said land. She also obtained the electric connection since September, 1992. 3. While the matter stood thus, a suo motu proceeding was started under Section 8-A of the OLR Act vide OLR Case No.887 of 2002. After receiving notice, the Petitioner filed her objection in the said proceeding which was disposed of on 5.12.2002 & a premium of Rs.5,000 with interest was calculated & the Petitioner was directed to pay the said amount. Subsequently, a demand notice was issued & an amount of Rs.5631 (premium + interest) was demanded from the Petitioner. After getting the said notice, the Petitioner applied for a certified copy of the order & challenged the said order in OLR Revision No.9 of 2003 before the Commissioner, Land Reforms, Orissa, Cuttack. The Commissioner without applying his mind to the facts of the case, confirmed the order passed by the Tahasildar, Niali. 4. Learned Counsel for the Petitioner submits that the land in question was converted from agricultural to non-agricultural land since 1991. The Petitioner constructed her house over the said land & is residing with her family after mutating the said land which was allowed by the Tahasildar-Opp. Party No.1. The status of the land was homestead. 4. Learned Counsel for the Petitioner submits that the land in question was converted from agricultural to non-agricultural land since 1991. The Petitioner constructed her house over the said land & is residing with her family after mutating the said land which was allowed by the Tahasildar-Opp. Party No.1. The status of the land was homestead. From the order passed by the Tahasildar, Niali, it appears that he has calculated the premium taking into consideration that the land situates within 1/4 km of the State Highway No.60. He further submits that the road was declared as State Highway No.60 on 24.11.2002. By that time the Petitioner was already residing there by converting the kissam of the land to homestead since 1991. Therefore, the authority should have calculated the premium as per Section 8(3) of the OLR Act. Section 8-A came into force after amendment in the year 1993. The proceeding initiated under the said Section against the Petitioner in the year 2002. Since suo motu proceeding was initiated in the year 2002 & subsequent to the said proceeding, the road was declared as State Highway, the authorities have no jurisdiction to calculate the premium taking into consideration that the land situates 1/4 km away from the National Highway which was so declared at a later stage. 5. Learned Standing Counsel for the State fairly admitted that the road was declared as State Highway in the year 2004. He produced a photocopy of the Notification issued on 24.11.2004 by the Works Department, Government of Orissa which was kept on record. Taking into consideration the fact that the land situates nearby the State Highway at a later stage, i.e., in the year 2004, the authority should not have calculated the premium as per Section 8 A(3)(ii) of the OLR Act. 6. Law is well settled that when a statutory provision creates new liability & new offence, it would naturally have prospective operation & it shall cover only those prospective events which take place after the provision came into operation. Therefore, in the present case, since the authorities have initiated suo motu proceeding in the year 2002, they have to calculate the premium taking into consideration the situation of the land in the year 2002 & they should not have taken into consideration the fact which is subsequent to the initiation of the said proceeding that the land situates within 1/4 kms. of the State Highway. Due to their laches, the proceeding was finally disposed of at a later stage & they should not have calculated the premium on the date of disposal. Rather, they should have calculated the premium on the date of initiation of the proceeding. 7. Accordingly, this Court allows the writ application, sets aside the impugned order passed by the Commissioner, Land Reforms, Cuttack & remands the matter to the Tahasildar for fresh adjudication & fixation of the premium taking into consideration the situation of the land in the year 2002. There shall be no order as to cost. Appeal allowed.