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2015 DIGILAW 377 (ORI)

Sailendri Nayak v. State of Orissa

2015-06-23

A.K.RATH

body2015
JUDGMENT : Dr. A.K. RATH, J. 1. The petitioners call in question the legality and propriety of the order of settlement of land dated 9.10.1996 in favour of opposite party no.3 under the Orissa Prevention of Land Encroachment Act, 1972 (hereinafter referred to as "the O.P.L.E. Act") by the Tahasildar, Anandpur, opposite party no.2. 2. Bereft of unnecessary details, the short facts of the case of the petitioners is that opposite party no.3 styling himself as a landless person approached the opposite party no.2 for settlement of Ac.1.00 decimal of land appertaining to khata no.158, plot no.12/688 of mouza Kumunia in his favour. Accordingly, an Encroachment Case No.1/98/95-96 was initiated against him by the Tahasildar, Anandpur, opposite party no.2. After receipt of report from the Revenue Inspector, the opposite party no.2 settled the land in favour of opposite party no.3 permanently on raiyati status on 9.10.1996. Challenging, inter alia, the order of settlement dated 9.10.1996 passed by the opposite party no.2, the petitioners, who are villagers, filed appeal before the Sub-Collector, Anandapur, which was registered as Encroachment Appeal No.12/97. By order dated 30.4.1998, the Sub-Collector, Anandpur allowed the appeal, set aside the order of settlement of land in favour of opposite party no.3 and remitted the matter back to the opposite party no.2 for de novo enquiry. Thereafter, the opposite party no.3 filed revision, being Encroachment Revision No.5/1998, before the Additional District Magistrate, Keonjhar, opposite party no.1 assailing the order passed by the Sub-Collector, Anandpur. By order dated 7.6.1999, opposite party no.1 allowed the revision. With the aforesaid factual scenario, the petitioners have prayed to quash the order of settlement of land dated 9.10.1996 passed by the Tahasildar, Anandpur, opposite party no.2. 3. Pursuant to issuance of notice, the opposite parties 1 and 2 have filed counter affidavit. The case of the opposite parties 1 and 2 is that an encroachment case was initiated suo motu against the opposite party no.3 under the provision of the O.P.L.E. Act, 1972. It was found that opposite party no.3 was a landless person and had encroached upon the Government land. Accordingly, the land was settled in his favour in accordance with the procedure. It is further stated that opposite party no.3 is the head of the family. Since he was an encroacher and landless person, the land was settled in the name of his spouse. 4. Heard Mr. Accordingly, the land was settled in his favour in accordance with the procedure. It is further stated that opposite party no.3 is the head of the family. Since he was an encroacher and landless person, the land was settled in the name of his spouse. 4. Heard Mr. M. Chand, learned counsel for the petitioners, Mr. P.K. Muduli, learned Additional Standing Counsel for the opposite parties 1 and 2 and Mr. T. Mohanty, learned counsel for the opposite party no. 3. 5. As would be evident from the order dated 30.4.1998 passed by the Sub-Collector, Anandpur, vide Annexure-1, though three encroachment cases were initiated against the opposite party no.3, but the land was settled in favour of him and his wife. Before the opposite party no.2, the opposite party no.3 filed an affidavit on 31.2.1996 stating therein that he was a landless person. But then the R.I. Ghasipura has furnished a report on 13.4.1995 stating that opposite party no.3 had Ac. 0.80 decimal of agricultural land and Ac. 0.10 decimal of homestead land. Further, the Revenue Supervisor in his report dated 26.6.1996 has stated that opposite party no.3 was the owner of Ac.0.50 decimal of homestead land and Ac.0.89 decimal of agricultural land. The Sub-Collector observed that the aforesaid fact was not taken into consideration by the opposite party no.2. He further observed that there were material irregularities in service of notice. Accordingly, the Sub-Collector set aside the order of settlement of land passed by the Tahasildar, Anandpur. Though the aforesaid aspects were brought to the notice of the revisional authority, but then the revisional authority brushed aside the same and by a laconic order, set aside the order of the Tahasildar, Anandpur, opposite party no.2. 6. Landless person is defined in Section 3(a-1) of the O.P.L.E. Act, 1972. The same is quoted hereunder:- "[(a-1)"Landless person" means a person, the total extent of whose land excluding homestead together with lands of all the members of his family who are living with him in common mess, is less than one standard acre and whose total annual income of all the members of his family who are living with him in common mess, does not exceed rupees six thousand and four hundred or an amount which the State Government may, by notification from time to time, specify in that behalf;]" 7. The standard acre is defined in Section 2 of the Orissa Land Reforms Act, 1960, which reads as follows:- "2-Defination - xxx xxx xxx (30) "standard acre" means the unit of measurement of land equivalent to one acre of Class I land, one and one-half acres of Class II land, three acres of Class III land or four and one-half acres of Class IV land." Explanation - For the purposes of conversion, one acre shall be equal to 0.4047 hectare ; 8. On a conspectus of the Sec.3 (a-1) of the O.P.L.E. Act, it is evident that if the total extent of land of a person excluding homestead together with lands of all the members of his family who are living with him in common mess, is less than one standard acre and whose total annual income of all the members of his family who are living with him in common mess, does not exceed rupees six thousand and four hundred or an amount which the State Government may, by notification from time to time, specify in that behalf, is a landless person. 9. Before settlement, embarking upon an enquiry for settlement of land in favour of a person a duty is cast upon the Tahsildar to find out as to whether the total extent of land of a person excluding homestead together with lands of all the members of his family who are living with him in common mess, is less than one standard acre and the total annual income of all the members of his family who are living with him in common mess, does not exceed rupees six thousand and four hundred or an amount which the State Government may, by notification from time to time, specify therein. Further the Tahasildar has to follow the procedure as envisaged under the O.P.L.E. Act and Rules framed thereunder. All these aspects have been brushed aside by the opposite party no. 2. The opposite party no.1 in a mechanical manner affirmed the order of the Tahasildar-opposite party no.2. 10. In view of the same, the order of settlement of land dated 9.10.1996 passed by the opposite party no.2 in O.P.L.E. Act and affirmed by the opposite party no.1 in Encroachment Revision No.5 of 1998 are hereby quashed. The matter is remitted back to the Tahasildar, Anandpur, opposite party no.2 for de novo enquiry. 10. In view of the same, the order of settlement of land dated 9.10.1996 passed by the opposite party no.2 in O.P.L.E. Act and affirmed by the opposite party no.1 in Encroachment Revision No.5 of 1998 are hereby quashed. The matter is remitted back to the Tahasildar, Anandpur, opposite party no.2 for de novo enquiry. The opposite party no.2 is directed to conclude the proceedings within six months. The writ application is allowed. Application allowed.