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2016 DIGILAW 876 (ORI)

Secretary, Panposh Sub-Divisional Housing Building Co-operative Society Limited, Rourkela, Sri Himanshu Sekhar Mishra v. State of Orissa

2016-09-26

K.R.MOHAPATRA, VINOD PRASAD

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JUDGMENT : K.R. Mohapatra, J. In these two writ petitions, the petitioners assail the decision of the Land Allotment Committee, Rourkela, in the district of Sundargarh in fixing a premium of Rs. 10.00 lac per acre for lease of Ac. 15.00 of land allotted in favour of Panposh Sub-Divisional Co-operative Society Ltd. (for short ‘the Society’) (the petitioner in OJC No. 6944 of 2001 and opposite party no. 5 in W.P.(C) No. 23377 of 2014). 2. After establishment of Rourkela Steel Plant by the Steel Authority of India Ltd. (for short ‘SAIL’), some area allotted to it at Rourkela remained unutilized. Hence, SAIL decided to surrender Ac. 299.74 decimals of unutilized land to the Government which were allotted to SAIL for establishment of steel plant. Government of Orissa on principle decided to utilize the aforesaid land surrendered by SAIL for housing purposes, as there was a dire need of residential plots for the inhabitants of Rourkela. Thus, the State Government after careful consideration decided to provisionally allot the case land in favour of Orissa State Housing Board, Rourkela, Regional Improvement Trust and Panposh Sub-Divisional House Building Co-operative Society Ltd. Out of the case land, the Orissa State Housing Board was allotted Ac.142.00, Rourkela Regional Improvement Trust was allotted Ac. 142.71 decimals (for short ‘the case land’) and the Society was allotted Ac.15.00 of land to be utilized for the purpose of carrying out housing schemes and for other ancillary purposes. Accordingly, the Government of Orissa in the Department of Revenue and Excise (now Department of Revenue and Disaster Management) vide its letter dated 29.6.1988 intimated the Collector, Sundargarh to instruct the Tahasildar, Panposh to initiate a proceeding for settlement of the land in favour of provisional allottees including the Society. In consequence thereof, Tahasildar, Panposh, Sundargarh (opposite party no. 4 in both the writ petitions) initiated Lease Case No. 3 of 1989 to lease out Ac. 15.00 acres of land in favour of the Society and proceeded accordingly. In consequence thereof, Tahasildar, Panposh, Sundargarh (opposite party no. 4 in both the writ petitions) initiated Lease Case No. 3 of 1989 to lease out Ac. 15.00 acres of land in favour of the Society and proceeded accordingly. When the matter stood thus and Lease Case No. 3 of 1989 initiated for lease of the case land in favour of the Society had proceeded substantially, the State Government in the Department of Revenue and Excise framed a set of rules for allotment of Government lands in the Civil Township of Rourkela Notified Area, namely, “Rules for allotment of Government Lands in the Civil Township of Rourkela Notified Area” (for short ‘the Rules at Schedule-IV) and for that purpose, the Orissa Government Land Settlement Rules, 1983 was amended and Rule 5-A was inserted which came into force from 18.11.1987, when it was published in the Orissa official Gazette. The said set of Rules was inserted in the Schedule-IV of the Orissa Government Land Settlement Rules, 1983 (for short ‘O.G.L.S. Rules, 1983’). Thus, on and from the date of insertion and publication of the Rules at Schedule-IV, all lease, grant and settlement of Government land in the Civil Township of Rourkela Notified Area was being governed under the Rules at Schedule-IV. Government of Orissa in the Department of Revenue and Excise, therefore, returned the case record of Lease Case No. 3 of 1989 to the Tahasildar, Panposh and asked the Society to approach the Land Allotment Committee for settlement of the case land in its name. Rule 3 of the Rules for allotment of Government land in the Civil Township of Rourkela Notified Area (in short ‘the Rules at Schedule-IV’) provides the principles for settlement of land in favour of different organizations, agencies and persons in conformity with the procedure therein. It reads as follows: 3. Principles to be followed -In the matter of allotment of land on application the following principles shall be observed, namely:- (a) There shall be a Land Allotment Committee to consider and dispose of all applications for allotment of land received from private individuals, companies, institutions, societies and local bodies. It reads as follows: 3. Principles to be followed -In the matter of allotment of land on application the following principles shall be observed, namely:- (a) There shall be a Land Allotment Committee to consider and dispose of all applications for allotment of land received from private individuals, companies, institutions, societies and local bodies. (b) 'The Committee shall have five members, namely:- (i) Commissioner, (ii) Collector, Sundargarh, (iii) Director, Town Planning, Orissa (iv) Director of Industries, (v) Additional District Magistrate (c) The Commissioner shall act as the Chairman and Additional District Magistrate shall act as the Secretary and Convener of the Committee. (d) Decision of the Committee shall, subject to the order of the Government in appeal, be final. (e) Applications for allotment of land shall be taken up by the Committee which shall meet at least once in every quarter of a year. (f) All applications duly received in response to the notice issued under sub-clause (1) of clause 4 shall be considered in one batch at a time and application received after the date fixed in the said notice shall be considered in the next quarter along with other applications duly received during that quarter. (g) In the matter of allotment the applicants shall receive priorities in the following order. (i) Applicants who are displaced due to acquisition of land in connection with the establishment of the Steel Plant and Township at Rourkela and have no lands in the (Rourkela Civil Township or Rourkela Steel Township) for the purpose, applied for; (ii) Industrialists who have set up small or medium industries in the (Rourkela Civil Township or Rourkela Steel Township) and do not posses any land or building I n the said township for the purpose applied to: (iii) Persons belonging to the poor class or middle class of Sundergarh District who have no lands in the (Rourkela Civil Township or Rourkela Steel Township) for the purpose applied for; (iv) Registered societies, etc. and .permanent residents of the State who belong to the poor class or middle class and have no lands in (Rourkela Civil Township or Rourkela Steel Township) for the purpose applied for ; (v) Other applicants who belong to the poor class or middle class who have no lands in (Rourkela Civil Township or Rourkela Steel Township) for the purpose applied for; (h) Allotment for residential purpose shall not exceed one-tenth of an acre in extent in any individual case. For other purpose not more than one plot as delimited in the approved Master plan shall be ordinarily allotted. (i) Anyone allotted land on application shall be required to pay a premium as fixed from time to time by the Collector, with the approval of the Commissioner. In addition, he shall be required to pay annual rent at the rate of one per cent of the premium. (ii) All allotments of land to be made on application shall be by way of lease and the lessee shall be required to execute lease deeds in Form No. I and get them registered at his own cost. Provided that the Government may exempt or reduce the premium payable in any case or class of cases for settlement of land.” Reading of the aforesaid Rule/Rules, it evinces that it provides that there shall be a Land Allotment Committee (in short ‘the Committee’) to consider and dispose of all applications for allotment of land received from private individuals, companies, institutions, societies and local bodies for settlement of the land in their favour. Rule 3(b) provides constitution of a Committee. Thus, the Committee in exercise of power conferred on it under Rule 3 of the Rules at Schedule-IV of the O.G.L.S. Rules, 1983, fixed the premium at Rs.10.00 lac per acre for allotment of the case land in favour of the petitioner’s Society. The petitioners in both the writ petitions essentially challenge the legality and propriety of the said decision taken by the Committee, which was communicated vide letter dated 22.3.2001 to the petitioner’s Society to deposit the entire revenue, as detailed therein, by 30.6.2001. The petitioner’s Society in OJC No. 6944 of 2001 and the petitioner-Co-operative Housing Colony Welfare Association in W.P.(C) No. 23374 of 2014 have challenged before this Court the said decision of the Committee. 3. Heard Mr. The petitioner’s Society in OJC No. 6944 of 2001 and the petitioner-Co-operative Housing Colony Welfare Association in W.P.(C) No. 23374 of 2014 have challenged before this Court the said decision of the Committee. 3. Heard Mr. Mihir Kumar Mallik, learned Senior Advocate for the petitioner in OJC No. 6944 of 2001 and Mr. Biswa Mohan Pattnaik, learned Senior Advocate for the petitioner in W.P.(C) No. 23374 of 2014. We have also heard Mr. L. Samantray, learned Standing Counsel for the opposite parties 1 to 5 in OJC No. 6944 of 2001 and opposite parties 1 to 4 in W.P.(C) No. 23374 of 2014. 4. Since both the writ petitions involve identical question of fact and law to be decided by this Court, we heard both the writ petitions analogously and the same are being disposed of by this common judgment. 5. Mr. Mallik and Mr. Pattnaik, learned Senior Advocates strenuously argued that the Tahasildar is the authority to receive the application for settlement of Government land, to make necessary enquiry and verification following due procedure of law contained in Rule 5 of the O.G.L.S. Rules, 1983 and is competent to fix the premium under Sub-Rule (7) of Rule 5 and settle Government land in conformity with the provisions made in Sub-Section (1) of Section 3 of the O.G.L.S. Act, 1962. Thus, Rule 5-A of the O.G.L.S. Rules, 1983 has no application to the case at hand. Moreover, Rule 8 of the O.G.L.S. Rules, 1983 provides the procedure for settlement of house-sites in urban areas. Sub-Rule (2) of Rule 8 provides that the application should be considered by the Collector. Nowhere, in the frame work of O.G.L.S. Act and Rules, the Committee has been authorized for settlement of land. Hence, they contended that the Committee had no jurisdiction or authority either for settlement of Government land or for fixation of premium, when the land had already been allotted in favour of the petitioner’s Society and premium has already been fixed by the Tahasildar, Panposh (opposite party no. 4) following due procedure of law. The fixation of premium at a higher rate of Rs.10.00 lac per acre by the Committee amounts to review of the order passed by the Tahasildar, Panposh which is not permissible under the frame work of the O.G.L.S. Act and Rules. 4) following due procedure of law. The fixation of premium at a higher rate of Rs.10.00 lac per acre by the Committee amounts to review of the order passed by the Tahasildar, Panposh which is not permissible under the frame work of the O.G.L.S. Act and Rules. Moreover, the benefit extended to two other allottees, namely, the Orissa State Housing Board and Rourkela Regional Improvement Trust (subsequently taken over by the Rourkela Development Authority) was not extended to the petitioner’s Society, which is also similarly placed. It amounts to discrimination and de hors the mandate of Constitution of India. Hence, they prayed for setting aside the order of the Land Allotment Committee communicated to the petitioner’s Society on 22.3.2001 and also prayed for all other consequential benefits. 6. Mr. Samantray, learned Standing Counsel for the State supported the action of the Committee and submitted that the decision taken by the Committee is strictly in accordance with the procedure of law and no fault can be found with the same. He further submitted that any person, which includes an organization, agency, company and society etc., if aggrieved by a decision taken by the Committee can move to the State Government under Rule 7 of the Rules at Schedule-IV. It is his contention that the writ petitions are premature and the same should not be entertained at all. 7. Perusal of the record in OJC No. 6944 of 2001 indicates that, this Court, while issuing notice to the opposite parties on the question of admission vide order dated 3.7.2001, directed that no coercive action shall be taken against the petitioner’s Society in pursuance of Annexure18 until further orders subject to the petitioner depositing a sum of Rs. 5.00 lac by 15th July, 2001 and further directed that if the same is not deposited within the time stipulated, action as contemplated in Annexure18 shall be taken against the petitioner’s Society. However, vide order dated 2.8.2001, the period for depositing the aforesaid amount was extended for a week from the date of the said order. 8. Section 3 of the O.G.L.S. Act, 1962 provides for reservation and settlement of Government land. The O.G.L.S. Rules, 1983 was promulgated to give effect to the substantive provisions made in the O.G.L.S. Act, 1962. Rule 5 of the O.G.L.S. Rules, 1983 provides the manner of settlement of Government land. 8. Section 3 of the O.G.L.S. Act, 1962 provides for reservation and settlement of Government land. The O.G.L.S. Rules, 1983 was promulgated to give effect to the substantive provisions made in the O.G.L.S. Act, 1962. Rule 5 of the O.G.L.S. Rules, 1983 provides the manner of settlement of Government land. It provides that all applications for settlement of Government land irrespective of the purpose of lease or the extent of area involved either in rural or in urban area, shall be filed before the Tahasildar having jurisdiction over the area in which the land is situated. Rule 5-A was brought into O.G.L.S. Rules, 1983 by virtue of amendment, which came into force from the date of publication in the official gazette i.e. 18.11.1987 (the provision was inserted vide Orissa Gazette Ext. No. 1578/18.11.1987-SRO No. 786/20.10.1987). Rule 5-A of the O.G.L.S. Rules, 1983 reads as follows: “5-A. Notwithstanding anything contained in Rules 3, 5, 8, 11, 12 and 13 lease settlement of Government land in the civil township of Rourkela Notified Area shall be made in the manner prescribed in Schedule IV.” The aforesaid Rules begins with a non-obstante clause which necessarily means that the provisions contained in Rules 3, 5, 8, 11, 12 and 13 for settlement of Government land on lease basis, shall not be applicable to the Government land situated in the civil township of Rourkela Notified Area. Settlement of Government land on lease shall be made in the manner prescribed in the Rules at Schedule-IV as per the rules/guidelines mentioned therein for settlement of Government land in the civil township of Rourkela Notified Area (now Corporation). Rule 3 of the Rules at Schedule-IV provides the principles to be followed in matter of allotment and settlement of land in the civil township of Rourkela (quoted above). Sub-rule (a) of Rule 3 provides that there shall be a Land Allotment Committee to consider and dispose of all applications for allotment of land received from private individuals, companies, institutions, societies and local bodies. 9. On a compendious reading of the aforesaid provisions, which have the effect of statutory Rules, it clearly emanates that the Committee is the competent authority for receiving, processing and disposing of the applications for settlement of the land in the civil township of Rourkela. 9. On a compendious reading of the aforesaid provisions, which have the effect of statutory Rules, it clearly emanates that the Committee is the competent authority for receiving, processing and disposing of the applications for settlement of the land in the civil township of Rourkela. However, proviso to Sub-Rule (h) of Rule 3 of the Rules at Schedule-IV clearly provides that the Government has the power to exempt or reduce the premium payable in any case or class of cases for settlement of land. Thus, the Government is only competent under the provisions of the Rules at Schedule-IV to exempt or reduce the premium fixed by the Committee. However, Rule 9 (1) of the Rules at Schedule-IV provides for an appeal against the order of the Land Allotment Committee before the Government in the Revenue and Disaster Management Department. Admittedly, petitioners in both the writ petitions have neither filed any appeal under Rule-9 (supra) nor made any prayer to the Government for reduction or exemption of the premium. 10. It appears that the order under Annexure-18, impugned in OJC No. 6944 of 2001, and the order under Annexure-11 impugned in W.P.(C) No. 23374 of 2014 have been passed by the Addl. District Magistrate fixing the premium at Rs.10.00 lac per acre. The Addl. District Magistrate has the power under Rule 8 of the Rules at Schedule-IV to sanction the lease and call upon the applicant (petitioner’s Society herein) in whose favour allotment has been finally made to deposit the amount of premium payable. On payment of premium, the lease deed shall be executed in the prescribed form. 11. In the case at hand, the petitioners in the aforesaid writ petitions do not challenge the validity of any of the provisions of the Rules at Schedule-IV. Hence, the petitioner’s Society cannot challenge the applicability of the provisions of Rules at Schedule-IV. 12. In view of the discussions made above, we have no hesitation to hold that the Committee is competent to take a decision with regard to the matter of allotment of land which includes the premium payable on such allotment. We, therefore, find no infirmity in the decision taken by the Land Allotment Committee in assessment of the premium payable for allotment of Government land. We, therefore, find no infirmity in the decision taken by the Land Allotment Committee in assessment of the premium payable for allotment of Government land. However, this order does not preclude the petitioner’s Society to ventilate its grievances before the appropriate authority with regard to quantum or exemption of premium under the provisions of the Rules at Schedule-IV of O.G.L.S. Rules, 1983. 13. With the aforesaid observations, both the writ petitions are dismissed. No order as to costs. Vinod Prasad, J. I agree.