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2017 DIGILAW 360 (ORI)

Malli Khillar v. State of Orissa

2017-04-05

B.R.SARANGI

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JUDGMENT : B.R. SARANGI, J. The petitioners, being the legal heirs, have stepped into the shoes of deceased Dhobei Khillar, who had, claiming to be in continuous possession of the land in question for more than 30 years, filed this writ application to quash order dated 04.10.2002 passed by the Revenue Divisional Commissioner (Central Division), Cuttack-opposite party no.2 in OPLE Revision Case No.9 of 2001 directing the Tahasildar, Narasinghpur to take steps to cancel the settlement of the encroached land in question in Paikapatana village of Narasinghpur and evict the encroacher as per law. 2. The factual matrix of the case, as is borne out from the records, is that late Dhobei Khillar was in possession of a piece of land appertaining to Sabik Khata No.213, Sabik Plot No.1218 measuring Ac.2.12 dec under Mouza Paikapada in the district of Cuttack, corresponding to Hal Khata No.580, Hal Plot No.1850 measuring Ac.0.76 dec., Plot No.1851 measuring Ac.0.35 dec., Plot No.1852 measuring Ac.0.29 dec., Plot No.1853 measuring Ac.0.22 dec., and Plot No.1855 measuring Ac.0.18 dec. in total Ac.1.92 dec. In Hal Record of Rights, nature of the said land has been recorded as “Abad Jogya Anabadi” and Kisam of the land has been recorded as “Taila”. Out of these Hal plots, which correspond to one Sabik plot, one plot, i.e., plot no.1840/2750, which is not subject-matter of the case, has been recorded as ‘jungle’. 3. Since 1955 father of late Dhobei Khillar was in possession of the land in question. After his death, Dhobei Khillar had been possessing the land peacefully and continuously for more than 30 years to the knowledge of everybody. The Tahasildar, Narasinghpur-opposite party no.4 initiated Encroachment Case No.39 of 1987 and issued notice to late Dhobei Khillar. On receipt of the notice, he entered appearance and claimed for settlement of the land as per the provisions contained in the Orissa Prevention of Land Encroachment Act, 1972 (for short “OPLE Act”). The Tahasildar, having jurisdiction, on consideration of the said application, following the norms as prescribed under the OPLE Act and Rules framed thereunder, by order dated 24.04.1987 forwarded the same to the Sub-Divisional Officer (S.D.O.) concerned for consideration of the case for settlement in favour of late Dhobei Khillar. The Tahasildar, having jurisdiction, on consideration of the said application, following the norms as prescribed under the OPLE Act and Rules framed thereunder, by order dated 24.04.1987 forwarded the same to the Sub-Divisional Officer (S.D.O.) concerned for consideration of the case for settlement in favour of late Dhobei Khillar. The S.D.O. concerned considered the report, as well as the order of the Tahasildar dated 24.04.1987, and passed order on 27.10.1987 for settlement of the land in favour of late Dhobei Khillar. Consequentially, order was passed to realize the back rent, as well as cess from late Dhobei Khillar and for correction of Record of Rights. Thereafter, intimation slip was issued to the Revenue Inspector (R.I.), as a result of which, Record of Rights (ROR) was corrected showing the name of late Dhobei Khillar in the ROR. On the basis of such settlement, late Dhobei Khillar remained in possession of the land and had been paying rent. 4. As the matter stood thus, some of the villagers of late Dhobei Khillar raised objection by filing public petitions before the Additional District Magistrate, Cuttack, who initiated OPLE Revision Case No. 16 of 1988 and, ultimately, by order dated 21.07.1989 annulled the settlement of land made in favour of late Dhobei Khillar. Challenging the said order, late Dhobei Khillar approached this Court by filing OJC No. 3618 of 1989, which came to be disposed of by order dated 25.10.1989 remanding the matter to the SDO for fresh disposal according to law. The relevant portion of the direction is quoted below: “2. In a proceeding under the Orissa Prevention of Land Encroachment Act, a plea was taken by the encroacher that he was in possession for more than 30 years and examined witnesses in support of his contention. The Tahasildar then proceeded under section-8A of the Orissa Prevention of Land Encroachment Act, 1972 and referred the matter to the S.D.O. The Tahasildar found that the encroacher was in possession of the land for more than 30 years and so settled the land with him. A revision was carried by one Dinabandhu Sahu (O.P.No.5) who set aside the settlement holding that due enquiry had not been made nor the S.D.O. complied with the requirements of Sub-Section-(2) of Section-8A. It is submitted by the counsel for the petitioner that if the Addl. A revision was carried by one Dinabandhu Sahu (O.P.No.5) who set aside the settlement holding that due enquiry had not been made nor the S.D.O. complied with the requirements of Sub-Section-(2) of Section-8A. It is submitted by the counsel for the petitioner that if the Addl. District Magistrate was satisfied that there was no proper enquiry or notice as required by Sub-Section (2) had not been issued, he could set aside the settlement but could not conclude the matter. He was obligated to remit the matter to the original authority for fresh action according to law. The contention appears to have substance. For non-compliance with the provisions the settlement was to be quashed and on annulment of the settlement, the Original proceeding survived for a division. While, therefore, upholding the order of the A.D.M., cancelling the patta, we direct that the matter shall be remitted to the S.D.O. (O.P.No.3) for disposal of in accordance with law. The writ application is accordingly disposed of. No costs.” 5. Consequent upon the order passed by this Court, the Sub-Collector again enquired into the matter in terms of the provisions of law. The R.I. submitted report of the enquiry, which was conducted in presence of the general public of the area in the year 1998, that late Dhobei Khillar was in possession of the land for more than 30 years. The Tahasildar also submitted his enquiry report dated 03.04.1998 to the Sub-Collector that late Dhobei Khillar was in possession of the land. On consideration of the enquiry reports submitted by the Tahasildar, as well as the Revenue Inspector, the Sub-Collector on 09.09.1998, in exercise of the power conferred under Section 8A of the OPLE Act, passed a fresh order of settlement in favour of late Dhobei Khillar. 6. As the things stood thus, the villagers again filed a petition before the Revenue Divisional Commissioner, Cuttack, who called for a report by letter dated 07.05.2001. Consequently, the Additional District Magistrate filed an application praying for cancellation of the settlement made in favour of late Dhobei Khillar. 6. As the things stood thus, the villagers again filed a petition before the Revenue Divisional Commissioner, Cuttack, who called for a report by letter dated 07.05.2001. Consequently, the Additional District Magistrate filed an application praying for cancellation of the settlement made in favour of late Dhobei Khillar. On the basis of the letter issued by the Additional District Magistrate, Cuttack dated 24.02.2001, the Revenue Divisional Commissioner suo motu initiated a proceeding in OPLE Revision No.9 of 2001 and passed the order dated 04.10.2002 directing the Tahasildar to take steps for cancelling the settlement of the encroached land and evict the encroachers as per law, impugning which this writ application has been filed. 7. Mr. Animesh Mohanty, learned counsel appearing on behalf of Mr. R.K. Mohanty, learned Counsel for the petitioners contended that the order impugned has been passed without considering the materials available on record. As on the basis of enquiry reports submitted by the Revenue Inspector, as well as the Tahasildar, there was a categorical finding that the petitioner was in possession of the land for more than 30 years, there was no reason or basis to annul the order of settlement made in favour of late Dhobei Khillar. As such, when the ‘Kisam’ of the land in question has been recorded as “Taila”, the Revenue Divisional Commissioner has committed gross error directing for cancellation of settlement on the ground that the land is a “Chota Jungle” and need regularization from forest conservation authority. 8. Mr. B. Senapati, learned Addl. Government Advocate argues with vehemence justifying the order passed by the revisional authority in exercise of suo motu power and states that on the basis of the letter issued by the Government dated 07.05.2001 the records of Encroachment Case No. 391 of 1997 had been placed before the Revenue Divisional Commissioner and basing on the letter of the Addl. District Magistrate to the Revenue Divisional Commissioner dated 24.02.2001, the proceeding had been initiated. Thereby, the authority has not committed any illegality or irregularity in passing the order impugned. 9. Mr. N. Mishra, learned counsel appearing for the intervenor-opposite parties (villagers) also supported the contention raised by learned Addl. District Magistrate to the Revenue Divisional Commissioner dated 24.02.2001, the proceeding had been initiated. Thereby, the authority has not committed any illegality or irregularity in passing the order impugned. 9. Mr. N. Mishra, learned counsel appearing for the intervenor-opposite parties (villagers) also supported the contention raised by learned Addl. Government Advocate and contended that the direction given by the Revenue Divisional Commissioner for cancellation of the settlement of land in favour of late Dhobei Khillar is wholly and fully justified and that does call for any interference by this Court under writ jurisdiction. 10. This Court heard learned counsel for the parties and perused the records. Since pleadings have been exchanged between the petitioners and opposite party no.4, as other opposite parties did not feel inclined to file any further reply, this matter is taken up for final disposal with the consent of the learned counsel for the parties. 11. The factual matrix, as discussed above, is not in dispute. The only question which falls for consideration is that after the order was passed by this Court on 25.10.1989 in OJC No. 3618 of 1989 remanding the matter to the SDO for fresh disposal after quashing the earlier settlement, the Sub-Collector passed an order on 09.09.1998 considering the enquiry reports submitted by the Revenue Inspector and the Tahasildar. When the fact finding court, having caused an enquiry, has come to a definite conclusion that the land in question was under occupation of late Dhobei Khillar for a period of more than 30 years and he had been paying necessary rent and cess regularly, merely because some of the villagers raised objection before the Addl. District Magistrate, by suo motu exercise of power the Revenue Divisional Commissioner could not have set aside the settlement made in favour of late Dhobei Khillar. 12. The specific finding of the Revenue Divisional Commissioner is that the order of this Court dated 25.10.1989 had not been followed scrupulously by the Sub-Collector, Athagarh, wherein he was asked to dispose of the same as per law. If the Revenue Divisional Commissioner was of the view that the Sub-Collector had not acted in consonance with the direction given by this Court, then in that case he should have remitted the matter back to the Sub-Collector for reconsideration in consonance with the order passed by this Court. If the Revenue Divisional Commissioner was of the view that the Sub-Collector had not acted in consonance with the direction given by this Court, then in that case he should have remitted the matter back to the Sub-Collector for reconsideration in consonance with the order passed by this Court. In any case, the order passed by the Sub-Collector dated 09.09.1998 in settling the land in favour of late Dhobei Khillar has not been dealt with by the Revenue Divisional Commissioner in its order 04.10.2002 and not a single word has been whispered with regard to the order passed by the Sub-Collector dated 09.09.1998. But, on the other hand, the Revenue Divisional Commissioner states that in view of the defects, irregularities and doubts, the proceeding for settlement of encroached land in question is illegal. A perusal of the order impugned would show that the Revenue Divisional Commissioner has not discussed the materials, which were available before him, to come to such a conclusion. In absence of any specific material, mere use of words that due to defects, irregularities and doubts the proceeding for settlement of encroached land was illegal, the impugned order cannot sustain in the eye of law. 13. In view of the facts and circumstances, as discussed above, this Court is of the considered view that the order dated 04.10.2002 at Annexure-1 passed by the Revenue Divisional Commissioner cancelling the settlement of the encroached land made in favour of late Dhobei Khillar in Piakapatana village of Narasinghpur and consequential order for eviction from the encroached land as per law cannot sustain. Accordingly, the same is hereby quashed and the matter is remitted back to the Revenue Divisional Commissioner for fresh adjudication by affording opportunity of hearing to all the parties in accordance with law as expeditiously as possible. 14. With the above observation and direction, the writ petition stands disposed of.