Research › Search › Judgment

Orissa High Court · body

2016 DIGILAW 341 (ORI)

Khirod Kumar Swain v. State of Orissa

2016-04-29

B.R.SARANGI, VINEET SARAN

body2016
JUDGMENT : B.R. Sarangi, J. 1. The petitioners claiming to be villagers of Adatira in the district of Cuttack have filed this application to quash the order dated 27.11.2002 passed by the Commissioner, Land Records and Settlement, Odisha, Cuttack in R.P. No. 9439/2001 directing the Tahasildar, Niali to make an enquiry for ascertaining the names of the successors of deceased Pari Mallick and record the suit Hal plot No.2466 area Ac.1.00 decimals in their favour in a separate khata in sthitiban status under Orissa Survey and Settlement Act, 1958. 2. The epitome of the facts of the case in hand is that the Tahasildar, Niali leased out area Ac.1.00 decimals out of area Ac.3.87 decimals from Sabik Khata No.262, Plot No.2156 of mouza Padatira in favour of one late Pari Mallick without inviting any public objection, without publishing any public notice and without observing mandatory provisions of leasing process as provided under law. The land in question being an objectionable land meaning thereby, it is a “Gochar” land, that cannot be leased out in anybody’s favour. On the basis of the objection raised, learned Additional District Magistrate, Cuttack cancelled the said lease and declared the same as “Rakhita” Khata, which is being used as public land by the villagers. More so, on the basis of lease granted, the Tahasildar, Niali had mutated the land in favour of Pari Mallick and subsequently, Sub-Collector, Sadar, Cuttack by order dated 30.11.1996 in Mutation Appeal No.101/1995 remitted the matter back to the Tahasildar, Niali with direction to record the suit land in favour of Government in “Rakhita” Khata and submit a compliance within one month after informing the party concerned. Fakira Mallick, son of late Pari Mallick, the original lessee filed Revision Petition No.9439/2001 under Section 15(b) of the Orissa Survey & Settlement Act, 1958 before the Commissioner, Land Records & Settlement, Orissa, Cuttack, who without considering the material facts mentioned above, by order dated 27.11.2002 directed that the suit Hal Plot No.2466 area Ac.1.00 decimals be taken out from Hal Khata No.759 and be recorded in favour of all the successors of late Pari Mallick and for this purpose the Tahasildar, Niali will make an enquiry to ascertain the names of the successors of deceased Pari Mallick and record the suit Hal Plot in their favour in a separate khata in sthitiban status. Hence this application. 3. Mr. Hence this application. 3. Mr. K.K. Swain, learned counsel for the petitioner strenuously urged that while passing the impugned order dated 27.11.2002, the Commissioner, Land Records and Settlement, Orissa, Cuttack has not taken into consideration the fact that the lease granted in favour of late Pari Mallick by the Tahasildar has been cancelled by the Additional District Magistrate, Cuttack. Subsequently, the mutation allowed by the Tahasildar, has also been set aside by the Sub-Collector in Mutation Appeal No.101/1995. Without considering the material aspects, the Commissioner, Land Records & Settlement, Orissa, Cuttack by order dated 27.11.2002 in R.P. No.9439/2001 filed by one Fakira Mallick who is one of the legal heirs of the deceased Pari Mallick under Section 15(b) of the Orissa Survey and Settlement Act vide Annexure-4 directed that the suit Hal Plot No.2466 area Ac.1.00 decimals be taken out from Hal Khata No.759 and be recorded in favour of all the successors of late Pari Mallick and further directed the Tahasildar, Niali to make an enquiry for ascertaining the names of the successors of deceased Pari Mallick and record the suit land in their favour in a separate khata under Sthitiban status. Such action of the Commissioner is in gross violation of the provisions of law. Therefore, he seeks for quashing of Annexure-4. 4. Per contra, Mr. B.P. Pradhan, learned Additional Government Advocate raised preliminary objection with regard to locus of the petitioners and urged that the petitioners are not the persons aggrieved to maintain the writ application. 5. Having heard learned counsel for the parties and after going through the records, this writ application is disposed of without calling for counter affidavit from the opposite parties at the stage of admission. 6. While considering the question of “locus” in Ghulam Qadir v. Special Tribunal, (2002) 1 SCC 33 : 2001 AIR SCW 4022, the Supreme Court observed as under:- “There is no dispute regarding the legal proposition that the rights under article 226 of the Constitution of India can be enforced only by an aggrieved person except in the case where the writ prayed for is for habeas corpus or quo warranto. Another exception to the general rule is the filing of a writ petition in public interest. Another exception to the general rule is the filing of a writ petition in public interest. The existence of the legal right of the petitioner which is alleged to have been violated is the foundation for invoking the jurisdiction of the High Court under the aforesaid article. The orthodox rule of interpretation regarding the locus standi of a person to reach the Court has undergone a sea change with the development of constitutional law …….” 7. In view of law laid down by the Apex Court, the petitioners being the general public as such there is allegation of mismanagement of the public property, this Court considered it expedient that public interest is involved, therefore, there is an exception to the general rule of filing of writ application. Since there is a wrongful deprivation of public property in public interest, the petitioners can approach this Court by filing this petition. 8. So far as the case in hand is concerned, though the writ petition was filed in 2003, nothing has been brought to the notice of this Court whether the order so passed by the Commissioner has been implemented or not or challenged before the higher forum. Apart from the same, whether the order dated 30.11.1996 passed by the Sub-Collector, Sadar, Cuttack in Mutation Appeal No. 101/1995 has been challenged before any appropriate forum or not, learned counsel for the petitioners was not able to explain the same, save and except, in paragraph-7 of the writ application it is stated that no revision has been filed by opposite parties 5 to 8 to set aside the same. But, no material has been produced before this Court to take into consideration the contentions raised by the learned counsel for the petitioners. 9. As it appears from the order dated 27.11.2002 passed by the Commissioner, Land Records & Settlement, Orissa, Cuttack, he has only taken into consideration the original lease order passed by the Tahasildar, Jagatsinghpur and steps taken in settlement operation. On the basis of the materials available on record, it appears that the land in question has been recorded in “Rakhita” Khata under kisam “Gochar” and the same could not have been directed to be recorded in the names of the legal heirs of late Pari Mallick i.e. opposite party nos.5 to 8 in exercise of power conferred under Section 15(b) of Orissa Survey and Settlement Act, 1958. The Commissioner, Land Records and Settlement, Orissa, Cuttack has passed the order on 27.11.2002 in R.P. No.9439/2001 under Annexure-4 directing the Tahasildar, Niali to implement the order within four months. 10. The revisional authority has not taken into consideration the subsequent development taken place in the matter, meaning thereby, the lease granted in favour of late Pari Mallick by Tahasildar was cancelled by the Additional District Magistrate, Cuttack and subsequently, the order of Tahasildar, Niali passed in Mutation Case No. 537/1992 was set aside by the Sub-Collector, Cuttack in Mutation Appeal No. 101/1995. These material facts were not brought to the notice of the revisional authority while passing the impugned order. 11. In that view of the matter, this Court is of the considered view that had the subsequent development been brought to the notice of the revisional authority while adjudicating the matter in R.P. Case No.9439/2001, then the impugned order would not have been passed. The subsequent developments in the matter having not been considered by the revisional authority, this Court is of the considered view that the order dated 27.11.2002 passed by the Commissioner, Land Records & Settlement, Orissa, Cuttack in R.P. Case No. 9439/2001 in Annexure-4, cannot sustain in the eye of law. Accordingly, the same is hereby quashed and the matter is remitted back to the said authority for reconsideration by affording opportunity of hearing to the parties including the petitioners herein in accordance with law as expeditiously as possible. 12. With the above observation and direction, the writ petition is disposed of.