Research › Search › Judgment

Orissa High Court · body

2014 DIGILAW 262 (ORI)

Bimala Sharma v. State of Orissa

2014-04-21

I.MAHANTY, S.PUJAHARI

body2014
JUDGMENT S. PUJAHARI, J. : The petitioners, the legal heirs of one Manasaram Sharma, in this writ of certiorari challenge the order dated 05.1.2000 passed by the Additional District Magistrate, Bargarh in Encroachment Revision No.7 of 1993 setting aside the order of settlement of a piece of Government land belonging to the Public Works Department in favour of Manasaram Sharma made by the Sub-divisional Officer, Bargarh in exercise of power under Section 8-A of the Orissa Prevention of Land Encroachment Act, 1972. 2.Facts for disposal of this writ petition are as follows : The petitioners are the legal heirs of one Manasaram Sharma. The Tahasildar, Bargarh initiated Encroachment Case No.169 of 1982 against Manasaram Sharma for unauthorized occupation of Ac.0.04 decimals of land in Bargarh town which was recorded in the name of Public Works Department, Government of Odisha (for short “P.W..D.”). During course of enquiry of the said case, the Tahasildar, Bargarh recording a finding that Manasaram Sharma is in actual, continuous and undisputed possession of the said land for more than thirty years before the date of initiation of the proceeding, referred the matter to the Sub-divisional Officer, Bargarh for settlement of the said land in the name of Manasaram Sharma under Section 8-A of the Orissa Prevention of Land Encroachment Act, 1972 (hereinafter referred to as “the O.P.L.E. Act”). The Sub-divisional Officer, Bargarh on a further enquiry held that since Manasaram Sharma is in possession of the same by virtue of a document, i.e., ‘Patta’ granted by ‘Ex-Gaantia’ of Bargarh, the land deserves to be mutated in his name in view of the circular of the Revenue Department issued vide Letter No.8- 116/90(T) 236RCH&SLR dated 3rd January, 1991 and directed the Tahasildar, Bargarh for mutation of the land in favour of Manasaram Sharma. A revision was initiated against the said order by the State before the Additional District Magistrate, Bargarh vide Revision Case No.7 of 1993. While the Additional District Magistrate, Bargarh was in seisin over the matter in the revision, Manasaram Sharma filed a writ petition vide O.J.C. No.2485 of 1996 before this Court questioning the authority of the P.W.D. for raising a boundary wall around the disputed land. The revisional authority vide the impugned order set-aside the order passed by the Sub-divisional Officer, Bargarh in Encroachment case in question and held the said Manasaram Sharma was liable for eviction. The revisional authority vide the impugned order set-aside the order passed by the Sub-divisional Officer, Bargarh in Encroachment case in question and held the said Manasaram Sharma was liable for eviction. The writ petition filed, however, thereafter was withdrawn on 12.02.2007 with liberty to approach the appropriate forum. After withdrawal of the writ petition, a Civil suit was filed bearing Civil Suit No.102 of 2007 before the Civil Judge (Senior Division), Bargarh, but the plaint was returned by the Civil Judge (Senior Division), Bargarh for non-compliance of Section 80 of the Code of Civil Procedure (for short ‘C.P.C.’). The present petitioners, who are the legal heirs of Manasaram Sharma, on his death filed this writ petition challenging the order as stated earlier. It has been pleaded by the petitioners in this writ petition that the impugned order of the Additional District Magistrate, Bargarh is illegal, arbitrary and an outcome of non-application of mind, so also violative of the principle of natural justice and statutory provision. It is the specific case of the petitioners that since they were found to be in continuous and lawful possession of the land in question for more than thirty years, by the time of initiation of the encroachment case by the Tahasildar, Bargarh in the OPLE proceeding, they are entitled to settlement of the land under Section 8-A of the O.P.L.E. Act and regard being had to the aforesaid, when the Sub-divisional Officer, Bargarh directed for mutation of the land in their favour taking note of an Executive instruction, the Additional District Magistrate in exercise of the revisional power should not have set-aside the said order and also directed eviction of the petitioners. 3.In response, the opposite parties have denied the fact that the impugned order suffers from the vice of non-observation of the principle of natural justice, inasmuch as there was no violation of the principle of audi alteram partem in this case. Furhermore, it has also been averred that the case of the petitioners that they are entitled to settlement of the land in view of the possession for thirty years through document executed by an ex-intermediary, being found to be false and fabricated and the settlement of the land being not made in accordance with the provisions of the O.P.L.E. Act, the challenge to the impugned order setting aside such settlement of land in this writ petition, is devoid of merit. 4.During the course of hearing, the learned counsel appearing for the petitioners taking this Court through the provisions of the O.P.L.E. Act, particularly Section 8-A of the O.P.L.E. Act and to the finding of fact by the Tahasildar that the petitioners’ predecessor-in-interest was found continuous and undisputed possession of the Government land for more than thirty years by virtue of a document supported by oral evidence, basing on which direction to mutate of the land was made in favour of Manasaram Sharma by Sub-divisional Officer in the proceeding under Section 8-A of the O.P.L.E. Act has submitted that the exercise of the revisional power by the Additional District Magistrate to set-aside the said order importing restriction on settlement of land under Section 7(2) of the Act and without considering the relevant materials was unjust and improper and suffers from the vice of non-observance of law in exercise of jurisdiction. Notice of this Court has also been drawn to the fat that the Government being not a person aggrieved, such exercise of power by the Additional District Magistrate at their instance to set-aside the impugned order of mutation of land was without jurisdiction inasmuch as at the instance of the Government, a revision is not maintainable before the Additional District Magistrate under Section 12(2) of the O.P.L.E. Act. Learned counsel for the petitioners in this regard placed reliance on a decision of this Court in the case of Gulam Sarwar v. State of Orissa and others, reported in 2011 (II) OLR 903 , wherein it has been held that when a land belonging to the Revenue Department is settled by the Sub-divisional Officer under Sections 7 or 8-A of the O.P.L.E. Act, a revision at the behest of the Revenue Department is without jurisdiction. 5.In response, it has been contended by the learned counsel for the opposite parties that since in this case, the land has been recorded in the settlement in the name of the P.W.D in the recent settlement, the same has a presumptive value on possession of the Department under the Survey and Settlement Act. When the land belongs to the P.W.D., the same is an objectionable land and Section 7(2) prohibits the settlement of such land. Otherwise also, the land being in a Municipal area, the settlement of the said land by the Sub-divisional Officer can only be final on confirmation of the same by Collector. When the land belongs to the P.W.D., the same is an objectionable land and Section 7(2) prohibits the settlement of such land. Otherwise also, the land being in a Municipal area, the settlement of the said land by the Sub-divisional Officer can only be final on confirmation of the same by Collector. Since the aforesaid statutory provisions has not been followed with, the order of the Sub-divisional Officer directing the mutation of the land in favour of the petitioners, resulted in illegal exercise of jurisdiction or exercise of jurisdiction with material irregularity. Therefore, the same has been rightly set-aside vide the impugned order by the revisional authority. It has also been submitted that there being no exercise of revisional jurisdiction with material irregularity or jurisdictional error, this writ petition challenging the impugned order on merit appears to be without substance. Furthermore, the ratio laid down in the case of Gulam Sarwar (supra) has no application to this case, as there the land belongs to the Revenue Department and here in this case, the land belongs to P.W.D. which is a necessary party in a settlement proceeding under Section 8-A of the O.P.L.E. Act and, as such, revision at their instance under Section 12(2) of the O.P.L.E. Act against the order of settlement is maintainable. 6.It appears that though averment was made with regard to exercise of jurisdiction by the Additional District Magistrate in oblivion to the principle of natural justice, but the same was not pressed by the counsel for the petitioners at the time of hearing as there was no such infraction, inasmuch as to Manasaram Sharma due opportunity of hearing had been given in the revision, but he did not avail of the same. 7.For proper appreciation of the contention by the parties, it would be apposite to have to look on the provisions of O.P.L.E. Act with regard to the settlement of the land in favour of the encroachers in a proceeding under the O.P.L.E. Act. Section 4 of the O.P.L.E. Act provides for payment by way of assessment of Government land unauthorisedly occupied and realization of the same. Section 6 of the O.P.L.E. Act provides for liability of person unauthorizedly occupying land subject to assessment under Section 4 of the O.P.L.E. Act, to pay penalty. Section 4 of the O.P.L.E. Act provides for payment by way of assessment of Government land unauthorisedly occupied and realization of the same. Section 6 of the O.P.L.E. Act provides for liability of person unauthorizedly occupying land subject to assessment under Section 4 of the O.P.L.E. Act, to pay penalty. Section 7 of the said Act provides for summary eviction, forfeiture and fine of any person in unauthorized occupation of the Government land observing the principle of natural justice, i.e., prior notice. But, sub-section 2 of the said Section, which is a non obstante clause, overrides the above power of eviction in such proceeding if it is found that the person in unauthorized occupation of the said land, is landless or homestead-less person as defined under the O.P.L.E. Act and mandates the Tahasildar to settle the land or homestead land in their favour, as the case may be, to the extent provided. The said power of the settlement, however, is subject to the limitation provided in the proviso to the said Sub-section with regard to prohibition of certain lands as contained in Clause-(a), (b) and (c) to the said proviso. Again if the land encroached are located within the Municipality or Notified area constituted under the Municipal Act, 23 of 1950, the second proviso provides the Tahasildar has no power of settlement under Section 7(2) of the O.P.L.E. Act, even if he is a landless or homestead-less person. The said power in such case is exercisable on a reference made by the Tahasildar by the Sub-divisional Officer within the limitation provided in Clause (a) and (b) and such settlement made by the Sub-divisional Officer is also subject to the confirmation made by the Collector and the payment of market value of the land assessed by the Sub-divisional Officer in the manner prescribed by the Rules made under the O.P.L.E. Act. Sub-section (2-a) of Section 7 of the O.P.L.E. Act, which is again a non obstante clause, mandates the Tahasildar to settle 1/10 acre of land encroached by homestead-less person which in his encroachment on or before 10th March, 1985 and occupied by him constructing a house even if the same is an objectionable under the first proviso to Section 7(2) of the O.P.L.E. Act, except the land which are Gochar, Rakhshit or Sarbasadharan and used as burial ground, Government premises, tanks, roads and public places of worship. The other provisions of Section 7, which relates to procedure to be resorted while dealing with eviction, encroachment and also the powers are not relevant for the purpose. Section 8 of the O.P.L.E. Act deals with the power of the Tahasildar to stay of construction taken up unauthorizedly on encroach land. Besides Section 7(2) of the O.P.L.E. Act, Section 8-A of the said Act also provides for settlement of the government land, but the said power is exercisable by the Sub-divisional Officer on a reference made by the Tahasildar if it is found that any person has been in actual, continuous and undisputed occupation of any Government land for more than thirty years by the date of institution of the proceeding under Sections 4, 6, 7 and 8 of the O.P.L.E. Act, But, the same speaks that before making any settlement under Section 8-A of the O.P.L.E. Act, if the land belongs to a Department of the Government other than the Revenue Department, an opportunity to show-cause against such settlement is required to be given and further enquiry is required to be made by the Sub-divisional Officer. Only after being satisfied of the factum of continuous and uninterrupted possession of thirty years, the land may be settled on the encroacher which is subject to assessment and payment of rent including the arrear rent. Section 12 of the O.P.L.E. Act deals with the appellate and revisional power of the authority. Against an order passed by the Tahasildar making settlement under Section 7(2) of the O.P.L.E. Act, it appears that the appeal lies to the Sub-divisional Officer, so also the Collector has a jurisdiction to revise any decision or order made by the Sub-divisional Officer in an appeal under Section 7(1) or settlement under Sections 7 and 8-A of the O.P.L.E. Act. Sub-section 3 of Section 12 of the said act speaks of the suo-motu jurisdiction of the Revenue Divisional Commissioner in any case where no appeal or revision lies if it appears to the Revenue Divisional Commission that such Officer appears to have exercised a jurisdiction not vested on him by law or to have failed to exercise jurisdiction so vested or while acting in the exercise of his jurisdiction to have contravened some express provision of law affecting the decision on the merits, where such contravention has resulted in serious miscarriage of justice, it may after giving the parties concerned a reasonable opportunity of being heard interfere with the order. Sub-section 4 of Section 12 of the said Act is with regard to the power of the authority to pass interim order of stay, which is subject matter of the appeal and revision, pending disposal of the appeal or revision, as the case may be. 8.In this case, it appears that the decision of the revisional authority has been challenged on the ground of jurisdictional error, inasmuch as a revision at the instance of the State, as contended to be not maintainable in view of the law laid down in the case of Gulam Sarwar (supra), but such contention has been resisted by the counsel for the opposite parties on the ground that there was no jurisdictional error in this case, inasmuch as the Additional District Magistrate has power of revision under the O.P.L.E. Act, which is exercisable by the Collector under Section 12(2) of the O.P.L.E. Act against an order passed under Section 8-A of the O.P.L.E. Act at the instance of the Department of the Government as the land here in this case belongs to the P.W.D. and not Revenue Department. In the case of Gulam Sarwar (supra), the land being belonging to the Revenue Department, when the same was settled exercising the jurisdiction by the Department itself, revision was filed by the Revenue Officer challenging the settlement and the settlement was set-aside, it was held to be without jurisdiction as against the said order at the instance of the Revenue Department, a revision under Section 12(2) of the O.P.L.E. Act was not permissible. Needless to say that in a proceeding under Section 8-A of the O.P.L.E. Act if the land is belonging to a Department other than the Revenue Department, as seen from the provisions of the O.P.L.E. Act, taken note supra, the said department is required to be heard and against the order of settlement made, as such, a revision under Section 12(2) of the O.P.L.E. Act at the instance of the Department aggrieved is maintainable. The same is apparent from a reading of Section 12(2) of the O.P.L.E. Act. Therefore, the challenge to the impugned order on the ground of jurisdictional error appears to be without substance. 9.Besides the aforesaid, it appears that the petitioners have also challenged the order on the ground that same has been passed on a misinterpretation of the law relating to settlement of land under Section 8-A of the O.P.L.E. Act and also on non-consideration of the relevant matters. It is contended that the restriction provided in settlement of land under Section 7(2) of the O.P.L.E. Act being not applicable to a settlement proceeding under Section 8-A of the said Act, the finding that since the land is objectionable in view of the first proviso to Section 7(2) and also being in Municipal area, the settlement made by the Sub-divisional Officer having not been confirmed by the Collector as provided in the second proviso, appears to be fallacious. The counsel for the opposite parties, however, supports such finding of the Additional District Magistrate to be in accordance with law. The power of settlement of land under Sections 7(2) and 8-A of the O.P.L.E. Act are distinct and operates in different situations. As such, the restriction as contained in Section 7(2) of the O.P.L.E. Act appears to have no application to a settlement made under Section 8-A of the said Act. Therefore, the revisional authority appears to have misinterpreted the law while interfering with the order of the Sub-divisional Officer in a proceeding under Section 8-A of the O.P.L.E. Act on the ground that the objectionable land has been settled and also the settlement has not been made in accordance with the procedure prescribed in the second proviso to Section 7(2) of the O.P.L.E. Act. We would have interfered with the order of the revisional authority if the order of the Sub-divisional Officer passed in exercise of the power under Section 8-A of the O.P.L.E. Act, had been set-aside on the aforesaid ground only by the revisional authority. But, besides the same, the revisional authority also appears to have considered the evidence of possession which was taken into consideration by the Sub-divisional Officer for directing the mutation of the land in the name of the predecessor-in-interest of the petitioners. The revisional authority found that the very document said to have been executed by the intermediary in favour of Mansaram Sharma, the predecessor-in-interest of the petitioners, basing on which he claimed his possession for more than thirty years and settlement of the land and placing reliance on which the Sub-divisional Officer has directed the mutation of the land, to be spurious. To hold the document to be spurious, reasoning has been assigned that the same was executed on a date preceding to the date of purchase of the said paper. Such reasoning was never shown to be irrelevant or without any substance. But, it has been contended that the oral evidence on possession besides the documentary evidence was also taken into consideration by the authority while directing settlement under Section 8-A of the O.P.L.E. Act and the revisional authority did not consider the same. The same appears to us to be without substance, inasmuch as the oral evidence was in support of the document on possession which was found to be spurious. Therefore, the impugned order of the revisional authority under the O.P.L.E. Act also does not suffer from the vice of non-consideration of relevant matters and, as such, cannot said to be no decision in the eye of law. Since the order of the revisional authority is not an outcome of the non-observance of law in course of the exercise of jurisdiction, more particularly for non-consideration of relevant matters, in our considered opinion, the same needs no interference in exercise of the writ jurisdiction conferred on this Court under Article 226 of the Constitution. 10.Thus, this writ petition stands dismissed. But, in the circumstances, there shall be no order as to costs. I. MAHANTY, J.I agree. Petition dismissed.