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2012 DIGILAW 192 (ORI)

Elley Pattnaik v. State of Orissa

2012-04-10

B.K.MISRA, L.MOHAPATRA

body2012
JUDGMENT B.K.MISRA This is the second round journey of the present petitioner in challenging the order of the Additional District Magistrate, Bhubaneswar in Lease Revision Case No. 422 of 1998 dated 30.5.2011 (Annexure-8) wherein the Addl. District Magistrate, Bhubaneswar set aside the settlement of the case land in favour of one Digambar Behera in W.L. Lease Case No. 2036 of 1973. 2. The case of the petitioner is that one Digambar Behera was granted lease of Ac. 0.500 decimals of land appertaining to Hal Plot No. 266/1044/1132 under Hal Khata No. 239/35 corresponding to Sabik Plot No. 1044 under Sabik Khata No. 281 in Mouza-Giringaput by the Government after considering all the statutory formalities. A lease deed was executed in the year 1974. The original lessee, namely, Digambar Behera transferred the said Ac.0.500 decimals of land to one Trilochan Behera after obtaining permission from the Revenue Officer, Bhubaneswar transferred the case land measuring Ac.0.500 decimals to one Rama Krushna Parida on 18.10.1985. It is the further case of the petitioner that thereafter the said Rama Krushna Parida transferred the case land which he purchased from Trilochan Behera in favour of the present petitioner. The petitioner alleges that on 29.4.1998 i.e. almost after 13 years of his purchasing the case land the Addl. District Magistrate, Bhubaneswar namely, the present opposite party No.1 initiated a Sou Motu Revision Case under Section 7-A(3) of the Orissa Government Land Settlement Act, 1962 and after examining, the lower court record set aside the settlement of the case land by his order dated 29.4.1998 and directed the Tahasildar, Bhubaneswar to cancel the lease granted by the State Government in favour of Digarmbar Behera and to correct the records and take over possession of the land in question. This order of the Additional District Magistrate, Bhubaneswar was challenged by the present petitioner before this Court in W.P(C)No.13765 of 2008 and this Court while setting aside the order of settlement of the Revisional Authority directed the Additional District Magistrate, Bhubaneswar to dispose of the case afresh after giving opportunity of hearing to the petitioner and also to consider the question of limitation. It is the further case of the petitioner that she appeared before the Additional District Magistrate, Bhubaneswar and after hearing the Additional District Magistrate, Bhubaneswar passed the impugned order at Annexure-8. 3. It is the further case of the petitioner that she appeared before the Additional District Magistrate, Bhubaneswar and after hearing the Additional District Magistrate, Bhubaneswar passed the impugned order at Annexure-8. 3. Learned counsel appearing for the petitioner contended that the Revenue Authority cancelled the lease granted in favour of Digambar Behera without issuing any show cause notice indicating the grounds for cancellation of the lease granted to him and the petitioner had also no knowledge of such cancellation of lease and though he is entitled to a show cause notice, no notice was issued to him and therefore, the impugned order smacks transparency and there has been gross violation of the principles of natural justice. It was also equally argued that Suo Motu Revision Proceeding initiated by the Additional District Magistrate, Bhuabaneswar i.e. after long lapse of 25 years is without any jurisdiction and the reasoning assigned are totally fallacious and cannot be sustained in the eyes of law. Thus, it is contended by the learned counsel for the petitioner that the impugned order should be quashed. 4. The opposite party No.1 files his counter affidavit denying all the allegations of the petitioner and while praying for dismissal of the writ petition it has been specifically averred that Digambar Behera the original lessee is neither a member of the Scheduled caste or Scheduled Tribe community but he availed the benefit under Section 3(2) of the O.G.L.S. Act, 1962 by impersonating him as a member belonging to the Scheduled Tribe community with an ulterior motive to grab the said land accordingly when such a fact came to the notice of the Revisional Authority, a Sou Motu Revision was initiated which was in accordance with law and no fault can be found with the Revisional Authority in passing the impugned order at Annexure-8. 5. Learned Additional Government Advocate appearing on behalf of the State contended that the impugned order at Annexure-8 is a speaking order and when by misrepresentation of facts and playing fraud the land was leased out to Digambar Behera on the notion that he belongs to the Scheduled Tribe community, the competent authority on considering such fraud and misrepresentation initiated Sou Motu Revision and in doing that there has been no violation of any statutory provision and limitation of 14 years is not applicable to the facts and circumstances of this case. 6. 6. We have heard the matter at length. Section 7-A(3) of the Orissa Government Land Settlement Act reads as follows:-“The Collector may, of 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 than no proceeding under this sub-section shall be initiated after the expiry of fourteen years from the date of the order”. 7. In the instant case, the impugned order (Annexure8) nowhere reveals that the Additional District Magistrate, Bhubaneswar if at all made any attempt to comply with the mandate of the first provision of Section 7-A (3) of the Act by calling for information from the office of the Sub. Registrar as to whether the lease hold property or any portion thereof has been alienated by the original lessee to any other party. Had such report been called for, the Revisional Authority could have ascertained that the petitioner had purchased the lease hold land from the original lessee and should have issued notice to the petitioner as well as to Digambar Behera the original lessee who are the affected parties. But no such step appears to have been taken by the Additional District Magistrate before passing the impugned order. 8. In a similar case, this Court in the case of Rama Chandra Pandav –v-State of Orissa and others in W.P.(C) No.14364 of 2006 held that since the petitioner had purchased the lease hold land from the original lessee the order of the Addl. District Magistrate is not sustainable as no notice has been issued to the purchaser before cancellation of lease. 9. Further we find that the original lease was granted long back in the year 1974 whereas the Revisional Authority initiated the Suo Motu Revision in 1998 i.e. after a long lapse of 25 years. District Magistrate is not sustainable as no notice has been issued to the purchaser before cancellation of lease. 9. Further we find that the original lease was granted long back in the year 1974 whereas the Revisional Authority initiated the Suo Motu Revision in 1998 i.e. after a long lapse of 25 years. Under 2nd Proviso to Section 7-A(3) of the Orissa Government Land Settlement Act no proceeding can be initiated after expiry of fourteen years from the date of order granting lease. While prescribing the period of limitation the legislature while drafting the Orissa Government Land Settlement Act in their wisdom prescribed the period of limitation for initiation of a proceeding in examining the correctness of the order passed under the act and also to find out if any fraud or misrepresentation etc. was practised in obtaining an order. Being cognizant of such contingencies the period of limitation of 14 years has been prescribed. The reasons assigned by the Additional District Magistrate, Bhubaneswar about the fraudulent declaration made by Digambar Behera that he belongs to the Scheduled Tribe community and fraud was practised to get the land settled in his favour can be decided by the Revisional Authority as per terms of the provision but within the period of limitation. 10. In view of the aforesaid provision of law when the Suo Motu Lease Revision Case No. 422 of 1998 which has been initiated after a long lapse of 25 years and in view of the nd proviso to Section 7-A(3) of the Orissa Government Land Settlement Act,1962 such Suo Motu Lease Revision case is without jurisdiction and resultantly, the impugned order at Annexure-8 cannot be sustained and is set aside accordingly. Accordingly, the writ petition stands disposed of.