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2015 DIGILAW 337 (ORI)

Chanchala Tripathy v. Tahasildar, Bhubaneswar

2015-05-13

BISWAJIT MOHANTY, PRADIP MOHANTY

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JUDGMENT BISWAJIT MOHANTY, J. - The petitioner has filed this writ application with the following prayers: Xxxxxxxxx (i) Issue a writ in the nature of certiorari quashing the orders at Annedure-2 passed by the opposite party no.2 in Revision Case No.256/82; (ii)issue a writ in the nature of Mandamus restraining the opposite parties for taking further proceeding in pursuance to Revisional order of the opposite party No.2 as per Annexure-2. (iii)Issue any such other writ (s) or pass such other order (s) as deemed fit and proper in the interest of justice and equity; Xxxxxxxxx 2.According to Mr. Rout, learned counsel for the petitioner, the petitioner applied before the Tahasildar, Bhubaneswar (opposite party no.1) for taking lease of Ac.0.200 decimals of land for homestead purpose. Opposite party no.2 after maintaining proper procedure and complying the provisions laid down in Orissa Government Land Settlement Rules, 1974 passed the order granting lease of an area measuring Ac.0.200 decimals of land appertaining to Khata No.606. Plot No.55 in Mouza- Patrapada in favour of the petitioner. Accordingly, under Annexure-1 the Record of Right was issued in favour of the petitioner on payment of salami. Mr. Rout also submitted that the land in question was leased out/settled in accordance with G.O. No.6672/GC (GL) 358-72-R dated 20.10.1972. According to him, the aim and object of the said instruction/order was distribution of land available at the disposal of Government and settlement of unobjectionable encroachments and also to simplify the procedure for expeditious disposal of lease and encroachment cases. While such was the position, opposite party No.2, who happens to be the Additional District Magistrate, Bhubaneswar initiated Revision case No.256/1982 under Section 7-A of the Orissa Government Land Settlement Act, 1962 for short “the Act” against the petitioner and on 6.6.1983 cancelled the lease granted by opposite party no.1 in favour of the petitioner vide Annexure-2, From the said order of opposite party no. 2 under Annexure-2, the petitioner came to know that the lease granted in her favour has been cancelled on account of non-compliance of Rule 3 (3) and rule 3 (4) of the Orissa Government Land Settlement Rules, 1974.Challenging the order under Annexure-2, the petitioner filed the present writ application on 6.8.2001. According to Mr. 2 under Annexure-2, the petitioner came to know that the lease granted in her favour has been cancelled on account of non-compliance of Rule 3 (3) and rule 3 (4) of the Orissa Government Land Settlement Rules, 1974.Challenging the order under Annexure-2, the petitioner filed the present writ application on 6.8.2001. According to Mr. Rout, since the lease was granted by opposite party no.1 in accordance with lease principles delineated under G.O. No.6672/GC (OL) 358-72-R dated 20.10.1972, the said order could not be set aside by opposite party no.2 while exercising his power under Section 7-A (3) of the Act. Thus, the impugned action was without any jurisdiction. According to the learned counsel for the petitioner, under Section 7-A (3) of the Act, the Collector may on his own motion or otherwise can call for and examine the records of any proceeding in which any authority subordinate to him has passed an order under the Act. Since in the instant case the lease was granted by opposite party no.1 under the lease principles, therefore, opposite party no.2 had no authority to revise the same under the Act. 3.Mr. J.P. Patnaik, learned Additional Government Advocate for the State raised a preliminary objection with regard to maintainability of the writ application. According to him in the present case, the impugned order was passed on 6.6.1983 and the writ application was filed on 6.8.2001, i.e. more than eighteen years after the impugned order was passed. No explanation whatsoever was there in the writ application explaining such inordinate delay. Accordingly, Mr. Patnaik prayed that the present writ application ought to be dismissed. 4.Countering the submission of Mr. Patnaik, Mr. Rout , learned counsel for the petitioner submitted that the impugned order under Annexure-2 was passed without any notice to the petitioner. After the petitioner came to know about the said impugned order, certified copy of the same was applied on 27.12.2000. On 6.1.2001, certified copy was delivered and on 6.8.2001, she filed the present writ application. 5.Heard learned counsel for the parties and perused the records. 6.A bare perusal of the impugned order under Annexure-2, would show that the present petitioner has filed her written statement before opposite party no.2 and opposite party no.2 in the impugned order has indicated that he has gone through the records along with written statement submitted by the petitioner. 5.Heard learned counsel for the parties and perused the records. 6.A bare perusal of the impugned order under Annexure-2, would show that the present petitioner has filed her written statement before opposite party no.2 and opposite party no.2 in the impugned order has indicated that he has gone through the records along with written statement submitted by the petitioner. Thereafter, opposite party no.2 has pointed out a number of defects committed by the Tahasildar, Bhubaneswar in granting lease. Accordingly, he came to the conclusion that in the case at hand lease was granted on account of fraud, mis-representation and material irregularity in the procedure. On such background, opposite party no.2 has set aside the order dated 4.2.1981 passed by the Tahasildar, Bhubaneswar. From the above discussion, it is clear that the submission of learned counsel for the petitioner that Revision Case No.256 of 1982 was disposed of without any notice to the petitioner is not correct. The impugned order makes it clear that the petitioner contested the matter before the Additional District Magistrate by filing her written statement though she remained absent on 6.6.1983, when the revision case was allowed. Secondly, a perusal of the writ application would show that the petitioner was offered no explanation whatsoever for inordinate delay of more than 18 years in preferring the present writ application before this Court. On the question of delay, Mr. Rout relied on a decision of the Hon’ble Supreme Court in the case of Dhiraj Singh (D) TR. LRS. ETC. ETC. v. Haryana State & ORS ETC. ETC. reported in 2014 (9) SCALE 441 wherein it has been laid down that substantive rights of land owners should not be allowed to be defeated on technical grounds of limitation by taking hypertechnical view. Accordingly, Mr. Rout prayed for ignoring the long delay in filing the present writ application. We are unable to accede to such request of Mr. Rout for following reasons .that is a case relating to payment of enhanced compensation arising out of compulsory acquisition of land. In such matters for payment of compensation to peasants, it is well settled that a liberal approach has to be made for condoning delay as peasants are mostly illiterate, poverty stricken, ignorant & are not conversant with intricacies of law. The facts of present case are different and do not relate to payment of compensation/enhanced compensation to peasants. In such matters for payment of compensation to peasants, it is well settled that a liberal approach has to be made for condoning delay as peasants are mostly illiterate, poverty stricken, ignorant & are not conversant with intricacies of law. The facts of present case are different and do not relate to payment of compensation/enhanced compensation to peasants. Thus, the Dhiraj Singh’s case O(supra) is factually distinguishable. The principles delineated therein cannot be imported here. Secondly, in Dhiraj Singh’s case (supra), at least a plea was taken by the agriculturists/peasants- appellants that they could not file LPAs on account of their weak financial condition. Here as indicated earlier no explanation whatsoever exists in the writ application for the long delay in filing the same. Rather an attempt was made to explain the delay by making a submission that the impugned order was passed without any notice to the petitioner, which has been found to be false. 7.Mr. Rout, learned counsel for the petitioner also cited two decisions of this Court for condoning delay as the opp.no.2 has acted without jurisdiction. The first decision is in the case of Mrs.Sneha Mohanty v. State of Odisha and others passed in W.P.(C) No.18936 of 2013 disposed of on 20.8.2013 and the other decision is in the case of Rama Devi (dead) after her, her legal heirs Ch. Dhananjay Mohapatra and others v. Government of Orissa and others reported in 2014 (I) OLR 871 . In W.P.(C) No. 18936 of 2013, the petitioner challenged the order dated 15.7.2013. Thus there was no delay in filing the writ application unlike the present writ application. Similarly, in Ramadevi’s case (supra), the writ application was filed in the year 2012 challenging the order dated 17.9.2012 passed by the Member, Board of Revenue. In that case also unlike the present case, there was no inordinate delay in approaching this Court. In this context, it is apt to refer to the decision of the Hon’ble Supreme Court in the case of Northern Indian Glass Industries v Jaswant Singh & others reported in AIR 2003 SC 234 . There the writ application was filed challenging the land acquisition notification 17 years after finalisation of acquisition proceeding. In that case also there was no explanation for inordinate delay in approaching the High Court. However, the High Court allowed the said writ application. There the writ application was filed challenging the land acquisition notification 17 years after finalisation of acquisition proceeding. In that case also there was no explanation for inordinate delay in approaching the High Court. However, the High Court allowed the said writ application. Allowing the appeal, the Hon’ble Supreme Court opined that the High Court ought to have dismissed the writ application on the ground of inordinate delay in approaching the High Court. Further, in the case of Chennai Metropolitan Water Supply and Sewerage Board and others v. T.T. Murali Babu reported in AIR 2014 SC 1141 , an order of dismissal from the service was challenged after a delay of four years. While, allowing the appeal, the Hon’ble Supreme Court has stated that the High Court was wholly unjustified in entertaining a writ application after lapse of four years. At Paragraph – 16 of the judgment, the Hon’ble Supreme Court opined as follows: “16. Thus, the doctrine of delay and laches should not be lightly brushed aside. A writ Court is required to weigh the explanation offered and the acceptability of the same. The Court should bear in mind that it is exercising an extraordinary and equitable jurisdiction. As a constitutional Court it has a duty to protect the rights of the citizens but simultaneously it is to keep itself alive to the primary principle that when an aggrieved person, without adequate reason, approaches the Court at his own leisure or pleasure, the Court would be under legal obligation to scrutinize whether the lis at a belated stage should be entertained or not. Be it noted , delay comes in the way of equity. In certain circumstances delay and laches may not be fatal but in most circumstances inordinate delay would only invite disaster for the litigant who knocks at the doors of the Court. Delay reflects inactivity and inaction on the part of a litigant – a litigant who has forgotten the basic norms, namely, “procrastination is the greatest thief of time” and second, law does not permit one to sleep and rise like a phoenix. Delay does bring in hazard and causes injury to the lis. In the case at hand, though there has been four years’ delay in approaching the Court, yet the writ Court chose not to address the same. Delay does bring in hazard and causes injury to the lis. In the case at hand, though there has been four years’ delay in approaching the Court, yet the writ Court chose not to address the same. It is the duty of the Court to scrutinize whether such enormous delay is to be ignored without any justification. That apart, in the present case, such belated approach gains more significance as the respondent-employee being absolutely careless to the responsibility had remained unauthorisedly absent on the pretext of some kind of ill health. We repeat at the cost of repetition that remaining innocuously oblivious to such delay does not foster the case of justice. On the contrary, it brings in injustice, for it is likely to affect other. Such delay may have impact on others’ ripened rights and may unnecessarily drag others into litigation which in acceptable realm of probability, may have been treated to have attained finality. A Court is not expected to give indulgence to such, indolent persons- who compete with ‘ kumbhakarna’ or for that matter ‘rip van Winkle’ . In our considered opinion, such delay does not deserve any indulgence and on the said ground alone the writ Court should have thrown the petition overboard at the very threshold.” We are in respectful agreement with the principles propounded by the Hon’ble Supreme Court in the said cases. In the present case, there exists no reason whatsoever for approaching this Court after a long delay of more than 18 years. For all these reasons, we are not inclined to interfere with the writ application. 8.Accordingly, the writ application is dismissed. No Costs. PRADIP MOHANTY, ACJ.I agree. Application dismissed.