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2016 DIGILAW 703 (ORI)

Kailash Chandra Agarwal v. Tahasildar, Bolangri

2016-08-30

BISWANATH RATH

body2016
JUDGMENT : Biswanath Rath, J. This writ petition has been filed by the petitioner assailing the orders passed in OLR Case No.16/96 vide Annexure-5 and consequential demand notice vide Annexure-6. 2. In assailing the impugned order vide Annexure-5, learned counsel for the petitioner contended that there is no dispute with regard to the fact that the petitioner was initially holding a patch of land extending Acre 5.83 decimals. The petitioner taking approval of the District Industry Centre installed an industrial establishment for having manufacturing activity dealing with coal brickets, edible oil and Chuda over one forth acre of the entire land. When the petitioner was in possession over the entire land, by Annexure-2 a document appearing at page No.14, acre 2.05 decimals of land out of the petitioner’s above land was acquired by the State Government following the procedures under the Land Acquisition Act for the purpose of Industrial Development Centre in the locality. Therefore, Sri Panda, learned counsel for the petitioner thus contended that after acquisition of Acre 2.05 decimals of land, the petitioner remained in possession of Acre 3.78 decimals of land but the fact remains the petitioner had the industrial establishment with approval of the Government over only 3/4th acre of the land since 1985. When the matter stood thus, a proceeding under Section 8 of the OLR Act was initiated against the petitioner on the alleged illegal conversion of land. Petitioner appearing in the proceeding filed his objection inter alia contending therein that since the schedule lands are kept reserve for industrial development by Government of Orissa, hence, the scheduled land lost its original character and has become automatically a non-agricultural land. Further since the petitioner has already set up an industrial unit over a portion of the disputed land after obtaining necessary permission from the District Industry Centre and the change in the nature and character of that portion of land having taken place prior to coming into force of Section 8 of the OLR Act, the proceeding was not maintainable. In opposing the impugned order, the petitioner in drawing the attention of this Court to various documents and pleadings taken in the writ petition further contended that the land beyond the industrial establishment installed by the petitioner are all agricultural land and have never been converted. In opposing the impugned order, the petitioner in drawing the attention of this Court to various documents and pleadings taken in the writ petition further contended that the land beyond the industrial establishment installed by the petitioner are all agricultural land and have never been converted. Under the circumstances, learned counsel for the petitioner contended that neither the reports submitted by the Revenue Inspector at page 33 nor the order passed in the Section 8 proceeding vide Annexure-5 are sustainable. 3. In his opposition, learned State Counsel in drawing the attention of this Court to the objection filed by the petitioner in the proceeding under Section 8 of the OLR Act contended that the petitioner did not raise all the above objections before the authority taking up the proceeding under Section 8 of the OLR Act. Therefore, many of the grounds taken herein were not available for being considered by the authority while passing the impugned order. Further, in referring to the report submitted by the R.I., learned State Counsel also contended that in view of the clear report against the petitioner submitted by the R.I., there is no illegality or infirmity in the impugned order leaving any scope to interfere in the same. 4. Considering the submissions made by the respective parties, this Court finds there is no dispute regarding petitioner’s originally possessing the land extending Acre 5.83 decimals of land. On perusal of the counter affidavit filed by the State Counsel, this Court also does not find any dispute with regard to the acquisition of land extending acre 2.05 by the State Authorities for industrial purpose as appearing at page 14 of the brief. Looking to the notice initiated a proceeding under Section 8 of the OLR Act against the petitioner, this Court finds the notice has a clear indication of initiation of a proceeding under Section 8 of the Act, 1960 involving the entire patch of land of 5 acre 86 decimals as originally held by the petitioner. When the fact remains the petitioner was not possessing the whole patch of land acre 5.86 decimal, on the date of initiation of the proceeding, there was no occasion on the part of the Authority to initiate a proceeding beyond the area in actual possession of the petitioner. When the fact remains the petitioner was not possessing the whole patch of land acre 5.86 decimal, on the date of initiation of the proceeding, there was no occasion on the part of the Authority to initiate a proceeding beyond the area in actual possession of the petitioner. Further looking to the reports submitted by the R.I. and as appearing at page 33 of the brief, this Court also finds a mechanical submission of the report by the R.I. Even though he has indicated that he has submitted the report on his spot visit to the land but for the details and the admitted position indicated hereinabove, it appears that the report is not looking to the actual state of affair at the spot and taking into consideration that the State has already acquired a patch of land extending acre 2.05 decimals, there was no scope for the R.I. for making an inquiry in respect of acre 5.83 decimals of land. This apart, this report is also not indicating as to if any, land is still having agriculture category or not. 5. Looking to the impugned order, this Court finds the proceeding is not maintainable for being initiated as against the entire patch of land 5.86 decimals of land. Further, this Court also finds there is no consideration of the objections raised by the petitioner by the Tahasildar in deciding the proceeding under Section 8 of the Act. Further, this Court finds certain new materials come to the light only at the stage of filing of the writ petition which also needs to be taken into account at the time of consideration of a proceeding under Section 8 of the OLR Act. 6. In view of the observations made hereinabove, this Court finds no proper assessment in the proceeding under Section 8 of the OLR Act vide Annexure-5. Further, there is also no consideration of the objections raised by the petitioner and the impugned order is passed solely on the basis of the report submitted by the R.I., which this Court has already observed to be not proper. Further, there is also no consideration of the objections raised by the petitioner and the impugned order is passed solely on the basis of the report submitted by the R.I., which this Court has already observed to be not proper. Under the circumstances, while setting aside the impugned order under Annexure-5, this Court also sets aside the consequential order vide Annexure-6 and since the matter requires a fresh investigation by the Tahasildar, this Court remits the matter back to the Tahasildar, Bolangir to reopen the proceeding under Section 8 of the Act and pass a fresh order giving opportunity of hearing as well as objection to all the parties concerned. 7. Petitioner is directed to appear before the Tahasildar, Bolangir on 14 of September, 2016 with a certified copy of this order. The entire exercise as directed hereinabove, be completed within a period of three months from the date of communication of this order. 8. The writ petition stands allowed but with an order of remand. Parties to bear their own cost.