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2012 DIGILAW 429 (ORI)

Tulasa Gauda v. Collector, Ganjam

2012-09-25

S.K.MISHRA, V.GOPALA GOWDA

body2012
JUDGMENT S.K. MISHRA, J. : The petitioner, in this writ petition, prays for appropriate direction to the opposite parties to pay compensation to her for the land used by the Indian Rare Earth Limited, opposite party No.3, for mining purpose. The petitioner claims that she is the owner of Plot No.805/1200, Khata No.267/66 measuring an area of Ac.02.00 in Badaputi Mouza under Chhatrapur Tahasil. She claims that she has planted more than 100 number of cashew fruit trees over the said land and value of the said tree is nearly about Rs.60,000/-. She is a owner in occupation of the land since 1982-83 and has been paying rent to the Revenue Officer regularly. Opposite party No.3 has taken lease from the Mining Department to raise black sand from the said land. Opposite party No.3 is excavating the black sand from the petitioner’s land by the process of surface operation since 2001. On 24.2.2001 the petitioner approached before opposite party No.3 by way of representation on the ground that opposite party No.3 has cut down the trees and excavating the black sand from her land and accordingly steps as per the prescribed rule be taken for payment of compensation. However, opposite party No.3 did not take any step to that effect. The petitioner again filed another representation to opposite party No.3 claiming compensation on 24.3.2003. The petitioner further submits that as per the Government Notification dated 9.4.2003, Annexure-5, the Tahasildar, Chhatrapur, opposite party No.2, has been appointed as the compensation authority. It is further pleaded that as per Rules, the Tahasildar is to determine the compensation etc. The compensation determined by the compensation authority shall be given to the land owners to sufstain loss in the process of surface operation by opposite party No.3 over the rayati lands. Opposite party No.3 has been operating the petitioner’s rayati land by excavating the black sand, the petitioner makes several representations to opposite party No.2 for compensation, but the said opposite party without considering the grievance of the petitioner playing hide and seek with her. Thereafter, again on 20.7.2004, the petitioner filed a representation before opposite party Nos.2 and 3 for granting compensation. The petitioner then learnt that on the representation filed by her, opposite party No.2 directed the concerned R.I. for enquiry. Thereafter, again on 20.7.2004, the petitioner filed a representation before opposite party Nos.2 and 3 for granting compensation. The petitioner then learnt that on the representation filed by her, opposite party No.2 directed the concerned R.I. for enquiry. The R.I. after enquiring over the said land, submitted his report to opp.party No.2 on 26.7.2004 indicating that opposite party No.3 is operating the mine over the petitioner’s land and constructed a road over the said land by cutting the fruit bearing trees. 2.It is further submitted that after receiving such report, opposite party No.2 should have given compensation to the petitioner as per Rules 72 and 73 of the Mineral Concession Rules and as per the direction of the Government, but opposite party No.2 is neither paying compensation to the petitioner nor informing opposite party No.3 to give compensation to her. The petitioner further submits that opposite party No.3 has operated the petitioner’s land by cutting 100 number of cashew nut trees, casurina plantation and after operating the area, opposite party No.3 has constructed a road over the petitioner’s land long since. But till today opposite party Nos.2 and 3 deliberately and intentionally are not paying the compensation as per Rule and playing hide and seek with the petitioner. On such pleadings, the petitioner has prayed that necessary direction be given to the opposite parties 2 and 3 to pay compensation to her. 3.Opposite party No.2 has filed a counter affidavit admitting the fact that opposite party No.3 has filed a proposal for acquisition of land to the extent of Ac.321.329 in village Basanaputi and Badaputi for mining of the rare earth. When it was found that the acquisition of the land was not feasible under the provisions of the Rules as the same was not meant for the public purpose, opposite party No.3 was instructed to obtain consent of the raiyats for mining operation over the private land as envisaged in the Rules. As per Rule 72(1) of the Mineral Concession Rules, 1960, the holder of a mining lease shall be liable to pay to the occupier of the surface of the land over which he holds the mining lease/prospecting license, such annual compensation as may be determined by an Officer appointed by the State Government by notifications provided in Sub-rules (2) to (4) of Rule 72 of the Rules. 4.Opposite party No.3, in pursuant to the communications made by opposite party No.1, the Collector, Ganjam, Chhatrapur, and opposite party No.2, expressed its willingness to pay compensation as prescribed under Rules 72 and 73 of the Mineral Concession Rules. It is also submitted that opposite party No.2 is authorized by opposite party No.1 to determine the compensation on such surface operations. It is further pleaded that opposite party No.3 is the appropriate authority to decide the matter and opposite party No.2 has accordingly worked within their jurisdiction. 5.Opposite party No.3 has filed a detailed counter affidavit. It is undisputed that the Government land has been used for mining purpose. It is also indicated at paragraph-5 of the said counter affidavit that during the year 1990, opposite party No.3 as usual filed a requisition before opposite party No.1 under Land Acquisition Act for acquisition of Ac.510.448 of lands in village Badaputi including Plot No.805. The Land Acquisition Officer of Ganjam Collectorate required opposite party No.3 to deposit a sum of Rs.10 lakhs towards establishment and legal expenses. Such deposit has been made on 24.7.1990. During course of scrutiny of the requisition in the Ganjam Collectorate, it transpired that an area of Ac.475.436 of Government lands have been included. Opposite party No.3 was advised by the Land Acquisition Officer, Ganjam Collectorate vide L. No.1834 dt.20.8.1990 to file alienation proposal before opposite party No.2. Opposite party No.3 filed alienation proposal before opposite party No.2 on 30.8.1990. On direction of opposite party No.2, the said land was demarcated by the concerned Revenue Inspector. Opposite party No.2 fixed the premium at Rs.1,18,85,900.00 @ Rs.50,000/- per acre and directed opposite party No.3 vide Letter No.125 dated 21.1.1993 to deposit the said amount. Opposite party No.3 deposited the said amount in three instalments and finally Govt. lands measuring Ac.475.436 including Plot No.805 measuring an area of Ac.13.275 was handed over to opposite party No.3 on 20.12.1993. Opposite party No.2 vide L. No.1328 dated 10.3.1998 informed opposite party No.3 that they are liable to pay annually Rs.2,37,500/- towards lands revenue and Rs.1,78,125.00 towards cess for the alienated lands measuring Ac.475.436. Opposite party No.3 paid the land revenue and cess at that rate. Opposite party No.2 vide L. No.1328 dated 10.3.1998 informed opposite party No.3 that they are liable to pay annually Rs.2,37,500/- towards lands revenue and Rs.1,78,125.00 towards cess for the alienated lands measuring Ac.475.436. Opposite party No.3 paid the land revenue and cess at that rate. Opposite party No.3 very emphatically submitted that at the time of submission of the proposal for alienation and at the time of demarcation and handing over possession, the entire land including the area covered by Plot No.805 was found to be free from any occupation or encroachment and the classification of the land in Plot No.805 was Abada Ajogya Anabadi Patita lands. Opposite party No.3 further submits that some private lands of village Basanaputi were taken under OMC Rules. No private land in village Badaputi much less the lands of the petitioner was taken for mining. It is further submitted that the whole of land covered by Plot No.805 of Badaputi stood recorded as ‘Patita’ lands in the R.O.R. and that being so the alienation proposal was initiated in 1990. Opposite party No.3 submits its ignorance regarding circumstances under which opposite party No.2 initiated Mutation Case No.2804/98, settled rent on 07.1.1999 and directed correction of entries in the R.O.R. Opposite party No.3 further pleads that a mutation proceeding which is a fiscal arrangement is directed with regard to private rayati lands but not against Government lands and that a Mutation Officer is competent to take cognizance of post settlement transaction with regard to rayati lands but not pre-settlement transaction if left unnoticed. Opposite party No.3, therefore, pleads that the petitioner is not entitled to any compensation. 6.Thus, from the aforesaid pleadings, the following questions arise for determination in this case :- (i)Whether prima facie the petitioner is the land holder or has title over the land bearing Plot No.805/1200, which is recorded in her name pursuant to a Mutation Case ? (ii)Whether the petitioner is entitled to receive compensation from opposite party No.3 ? 7.It is borne out from the records that alienation proposal was initiated in the year 1990. At that time the lands were recorded in the name of the Government. It was not recorded in the name of any private person much less than the petitioner. The petitioner has been granted the R.O.Rs. in Khata No.267/66 in 7.1.1999 as it appears from Annexure-1. At that time the lands were recorded in the name of the Government. It was not recorded in the name of any private person much less than the petitioner. The petitioner has been granted the R.O.Rs. in Khata No.267/66 in 7.1.1999 as it appears from Annexure-1. It further appears from Annexure-2 that on 7.1.1999 in Misc. Case No.2804/1998 rent settlement has been made with prospective effect from 1982-83. The petitioner has not produced copies of the record by virtue of which opposite party No.2 has recorded the lands in her name. It goes without saying that a mutation entry neither create nor extinguish title and mere entry in the revenue records mutating the name of the petitioner with respect to Khata No.267/66 will not create any title in her favour. Only in a case of settlement of land in respect of the provisions of the Orissa Government Land Settlement Act, 1962 and/or the Orissa Prevention of Land Encroachment Act, 1972 the Tahasildar is competent to settle the Government land in favour of any person after following the due procedure. No material is forthcoming in this regard. Therefore, it is found that opposite party No.2 has acted illegally in recording the lands of the Government in favour of the petitioner after initiation of alienation proceeding and handing over possession in favour of opposite party No.3. As such the petitioner has no title over the land in question. Hence, the first question is answered accordingly. 8.Once it is held that settlement of the land in favour of the petitioner is not in accordance with the rules and in fact no settlement has been made in her favour, the petitioner is not entitled to receive any compensation from opposite party No.3. As such the second question formulated is answered against the petitioner. In that view of the matter, the writ petition is devoid of any merit and the same is dismissed. V. GOPALA GOWDA, C.J.I agree. Petition dismissed.