JUDGMENT : Dr. D.P.Choudhury, J. Challenge has been made to the action of the opposite parties more particularly, the Tahasildar, Bhubaneswar, opposite party no.4 in initiating Resumption Case No.1 of 2006 against the original lessee and issuing notice dated 20.03.2006 to show-cause as to why the land shall not be resumed under Section-3(B) of the Odisha Government Land Settlement Act, 1962 (hereinafter called as the “Act, 1962”) vide Annexure-16. 2. FACTS The factual matrix leading to filing of the writ petition is that the original petitioner, after having worked in Indian Navy, made an application to the Tahasildar, Bhubaneswar, opposite party no.4 for allotment of land of five acres on Jawan Lease as applicable to Jawans engaged during war with China in 1962. After verification, the opposite party no.4 settled the land appertaining to Sabik Plot No.1288 under Khata No.420 measuring an area of Ac.4.800 decimals in Mouza-Pathargadia in favour of late Ganesh Prasad Panda and accordingly ROR vide Annexure-1 has been issued in his favour. Thereafter, he paid the rent for the allotted land and planted some tree, made barbed wire and concrete boundary wall over the case land and continued to possess the same from 1981 onwards. The Additional District Magistrate, Bhubaneswar issued notice on 22.10.1982 to the original lessee in Revision Case No.59 of 1982 to show cause as to why the settlement of the case land shall not be cancelled under Section 7-A(3) of the Act, 1962 and vide order dated 13.01.1983, after perusing the records along with the written statement filed by the original lessee, the Additional District Magistrate, Bhubaneswar dropped the proceeding by observing that no fraud has been committed while the case land was leased out. However, the original lessee requested the opposite party no.4 to demarcate the land whereupon, Demarcation Case No.577 of 1988 was registered and accordingly the Amin demarcated the land on 28.12.1989. But on 17.07.2006 at about 10.30 am, the opposite party no.4 asked the petitioners to produce all the papers in support of his allotment of the case land. At the same time, opposite party no.4 asked the petitioners to stop the work although the construction work of boundary wall was in progress. The petitioners also found that the opposite party no.4 demolished part of the boundary wall. At the same time, opposite party no.4 asked the petitioners to stop the work although the construction work of boundary wall was in progress. The petitioners also found that the opposite party no.4 demolished part of the boundary wall. It was informed by the opposite party no.4 to the petitioners that the case land has been wrongly allotted to him although it had been allotted to IDCO, opposite party no.5. 3. Be it stated that the petitioners came to know under Right to Information Act, 2005 that opposite party no.5 filed an application before opposite party no.4 which has been registered as W.L. Case No.29 of 2001 (Alienation) for allotment of entire Ac.52.47 decimals of land in its favour in Mouza-Pathargadia which also includes the land leased out in favour of the petitioner. Since IDCO has been allotted lands to set up SEZ, the case land allotted to the petitioner would remain inside. Thereafter, the petitioners gave a detailed reply to the opposite party no.4 stating therein that the land has already been allotted to him and it was not possible for allotment of the same to the IDCO. Since the opposite party no.4 did not hear the matter he contacted the senior officers and by that time, the opposite party no.4 has already issued the impugned notice under Section-3(B) of the Act, 1962 vide Resumption Case No.1 of 2006. Challenging issuance of such notice, the petitioner approached the opposite parties and when they did not pay heed to his grievances, the petitioners filed this writ petition to quash the resumption proceeding vide Resumption Case No.1 of 2006 and restore the physical possession of the portion of the land demolished by opposite party no.5 and it has been further prayed to direct the opposite parties not to interfere with the petitioners’ possession. 4. SUBMISSIONS The legal heirs of the original lessee have already been substituted by order of this Court. The son of the lessee, who is petitioner no.1(b) in this case, is appearing in person and submits that his father was working in Indian Navy and engaged in 1962 China War. After retirement, his father has applied for land under Government Grants Act, 1865 and accordingly after following due process of law, the case land was allotted in his favour. The allotted Plot No.1288 is big plot of Ac.52.47 decimals of land. After retirement, his father has applied for land under Government Grants Act, 1865 and accordingly after following due process of law, the case land was allotted in his favour. The allotted Plot No.1288 is big plot of Ac.52.47 decimals of land. Since 1981, his father was possessing the same and after his death, they have been possessing the same by digging bore-well, making boundary wall on the case land and has also planted some green trees thereon. 5. Mr.Panda, petitioner no.1(b) further submitted that in 1982, the Additional District Magistrate, Bhubaneswar suspecting fraud in the process of settlement, made enquiry and found that the settlement of lease has been made correctly and legally for which he dropped the proceeding in Revision Case No.59 of 1982. 6. Refuting the contentions made by the opposite parties, he stated that the land has been demarcated by the Tahasildar, Bhubaneswar and his father was in possession of the case land throughout and after him, they are in possession of the same and the allegations of the opposite parties that the case land is lying vacant being not used for any other purpose, is not correct. 7. Petitioner No.1(b) further submitted that since the case land has been settled with his father through lease and the allotment being a part of the entire area under Plot No.1288/1808, further allotment of Ac.42.87 decimals from the same plot in favour of opposite party no.5-IDCO does not affect their right, title and interest. For the sake of argument, even if assuming that the allegation of the opposite parties is correct to the effect that the land allotted to the petitioner has been again allotted to IDCO in 2002, such allotment in favour of IDCO is non est in the eye of law since the State Government had no right to transfer the same because the earlier allotment made in favour of the lessee is still subsisting. The question of possessing incorrect plot is not correct because the petitioner has been possessing the same throughout right form 1981 till 2006 when the concerned Tahasildar called his father to produce the document in support of the land. Apart from this, allotment of twenty acres of land by IDCO in favour of opposite party no.6 also do not affect the petitioners in any way, rather the resumption case has been filed to harass the petitioners. Apart from this, allotment of twenty acres of land by IDCO in favour of opposite party no.6 also do not affect the petitioners in any way, rather the resumption case has been filed to harass the petitioners. He also submitted that any resumption notice under the Act, 1962 is illegal because the resumption is only applicable where the land has been allotted under the Act, 1962. But in the instant case, land has been allotted under the procedure of Government Grants Act, 1865. Even if the said Act, 1962 is applicable, the allotment cannot be rescinded because the Additional District Magistrate, Bhubaneswar has already verified the procedure for granting lease and found the same was correctly leased out. 8. Petitioner no.1(b) further cited plot index and the map to justify the claim. Moreover, since the case land has already been allotted much prior to the allotment made in favour of IDCO, the right accrued to the petitioners should not be affected and the subsequent allotment of the same in favour of IDCO and opposite party no.6 is non est in the eye of law. Therefore, for any alienation of the entire plot No.1288 to IDCO or from IDCO to opposite party no.6 without resumption of land or cancellation of petitioners’ case is void, ab initio and illegal. So, he submitted to allow the writ petition. 9. Mr.Mishra, learned counsel for the IDCO-opposite party no.5 submitted that in order to promote the industrial activity in the State, IDCO applied for allotment of land from Plot No.1288 in 2001 vide W.L. Case No.29 of 2001 (Alienation) and was allotted the plot with an area of Ac.42.87 decimals from said plot to the immediate south of the case land already demarcated for the petitioners vide Sabik Plot No.1288/1808. Since the allotment has been made by the State Government and the boundary of the case land of the petitioners is different from boundary of the allotted plot of opposite party no.5, the petitioners have no cause of action to file this case against IDCO. 10. Mr.Bhuyan, learned Additional Government Advocate, per contra, submitted that the lease granted in W.L. Case No.1686 of 1979 to the original lessee was under the Act, 1962 and the plot has been wrongly possessed by the lessee. 10. Mr.Bhuyan, learned Additional Government Advocate, per contra, submitted that the lease granted in W.L. Case No.1686 of 1979 to the original lessee was under the Act, 1962 and the plot has been wrongly possessed by the lessee. So, the show cause notice in the resumption case under the Act, 1962 has been issued as the land has been lying vacant and the same is not being utilized for the purpose it was leased out. In the meantime, the State Government has allotted the entire plot including the present case land in favour of IDCO by following the procedure vide W.L. Case No.29 of 2001 (Alienation) and the IDCO has taken possession of the same and while taking possession, nobody was in possession of any portion of the case land from Plot No.1288. 11. Mr.Bhuyan, learned Additional Government Advocate submitted that identification of the case land of the petitioners being disputed, the same is a question of fact, the same should not be decided by a Writ Court but may be decided by a Civil Court. In support of his submission, he relied on the decision of the Hon’ble Supreme Court in the case of Sanjay Sitaram Khemka –V-State of Maharashtra and others; (2006) 5 SCC 255 wherein Their Lordships have observed that the matter involving disputed questions of fact cannot be dealt with by High Court in exercise of its power of judicial review. He also relied on the decision of the Hon’ble Supreme Court in the case of Commissioner of Income Tax and others –V-Chhabil Dass Agarwal; (2014) 1 SCC 603 where Their Lordships have observed that when a statutory forum is created by law for redressal of grievances, the writ petition should not be entertained ignoring the said statutory dispensation. 12. It has been further submitted by Mr.Bhuyan, learned Additional Government Advocate that the case land allotted to the petitioners is by mistake because said land was reserved for industrial purpose and the entire Plot No.1288 is a big plot corresponding to different Hal plots. According to him, land allotted in favour of the petitioners has been lying in the north portion and the plot index produced by the petitioners is not correct. According to him, land allotted in favour of the petitioners has been lying in the north portion and the plot index produced by the petitioners is not correct. Since the resumption proceeding has already started under the Act, 1962 and it is found that the case land was leased out in favour of the lessee under the said Act where also there are powers to resume the land, which has been allotted by fraud or any mistake of facts. 13. Mr. Bagchi, learned counsel for the opposite party no.6 submitted that for industrial purpose, opposite party no.6 applied to opposite party no.5 and opposite party no.5 has allotted twenty acres of land out of Plot No.1288 barring two plots, i.e., Plot No.1288/1808 of the petitioners and Plot No.1288/1807 allotted to one Sri R.N.Pattanaik. According to him, the plot of the petitioners is to the north of the big Plot, i.e. Plot No.1288. 14. POINTS FOR DETERMINATION The main points for consideration are as under: (I) Whether the area of Ac.4.800 decimals of land which was leased out to the original petitioner Sri G.C.Panda has been properly identified and is in possession of the petitioners? (II) Whether initiation of Resumption Case No.1 of 2006 by the Tahasildar, Bhubaneswar is illegal? 15. DISCUSSIONS POINT No.(I) It is not in dispute that Plot No.1288 in Mouza-Patharagadia had a total area of Ac.52.47 decimals of land. It is also admitted in the additional affidavit filed on behalf of the opposite parties 3 and 4 on 9.10.2017 that the petitioner was leased out an area of Ac.4.800 decimals of land from Plot No.1288/1808 in Khata No.325/178 vide W.L. Case No.1686 of 1979 for agricultural purpose. It is also not in dispute that the Additional District Magistrate has initiated Revision Case No.59 of 1982 under Section 7-A(3) of the Act, 1962 but it was dropped vide order dated 13.1.1983 on the finding that the lease was validly and legally granted to the petitioner. 16. In order to find out the crux of the matter, we have called for the original lease record in W.L. Case No.1686 of 1979 and on perusal of the said record, it appears that the original lessee applied for five acres of land and he was declared eligible for lease by the Government of Orissa in Home Department. 16. In order to find out the crux of the matter, we have called for the original lease record in W.L. Case No.1686 of 1979 and on perusal of the said record, it appears that the original lessee applied for five acres of land and he was declared eligible for lease by the Government of Orissa in Home Department. The order-sheets of the said case record show that after receiving a letter of the Home Department about the eligibility of the lessee to get the concession, Tahasildar, Bhubaneswar, opposite party no.4 allotted Ac.4.800 decimals out of Plot No.1288 under Khata No.420 in Mouza-Pathargadia making a by-plot, i.e., Plot No.1288/1808. The original lease record also shows that the Additional District Magistrate had started Revision Case No.59 of 1982 and passed the following order on 13.01.1983” ”13.01.1983 Opposite party is absent. I have carefully gone through the records along with the written statement of the opposite party. He is a defence personnel and has produced the eligibility certificate. He has also furnished the necessary undertaking. The Tahasildar having granted this lease as a measure of concession to a person in defence service has not committed any fraud. The revision proceeding is accordingly dropped. Sd/-ADM, Bhbaneswar 13.1.1983.” 17. Annexure-6, the sketch map attached to Demarcation Case No.577 of 1988 shows that fraction Plot No.1808 out of Sabik Plot No.1288 has been demarcated below Plot No.1807. Plot No.1391 situates to the immediate west of Plot No.1808. The report of the Amin dated 18.12.1989 has also been produced before us. Annexure-11, copy of the map shows that Plot No.1391 actually situates to the west of Plot No.1288/1808, the fraction Plot No.1288 and the map in respect thereof which is discussed here, has been made available from the Office of IDCO under RTI Act. Annexure-15 which is received from the Office of the Settlement Officer, Cuttack under RTI Act shows that Sabik Plot No.1288/1808 has got eleven corresponding Hal plots, i.e, Hal Plot Nos.6204 to 6214. Although it is draft plot index awaiting the final publication, which was stayed by this Court in this writ petition, the same clearly shows that these Hal plots are actually situated to the southern part of Sabik Plot No.1288, which was prepared in 2013 settlement. 18. The aforesaid documents although admitted by the State, it is submitted that the same is incorrect. 18. The aforesaid documents although admitted by the State, it is submitted that the same is incorrect. The plot index is prepared by the State Authorities and, therefore, burden lies on the State to prove its stand. In support of such plea, no material whatsoever is produced before us except the submission that the same is not correct. In Annexure-D/4, it has been clearly maintained that Plot No.1288/1808 allotted to the present petitioner has been shown below Sabik Plot No.1290. But actually the report of Amin of Tahasil Office and other documents, as discussed above, clearly shows that Plot No.1288/1808 lies to the east of Sabik Plot No.1391. Thus Sabik Plot No.1391 actually lies to the south-west of Plot No.1288. When Plot No.1288/1808 has got boundary plots and same tally to the demarcation map prepared by the Amin in 1988, the same cannot be faulted with. It is true that a map annexed to the original order granting lease by the Tahasildar in 1981 has got demarcation by red ink showing “B” in accordance with the counter filed by the State. Of course, it has been shown at the adjacent plot of Plot No.1302 and 1290, which is not correct in view of the aforesaid discussion. Apart from this, the Amin, who has prepared the sketch map at that time has signed in green ink and prepared the sketch map in a black ink but surprisingly the demarcation of the plot of the petitioner has been made in red ink which creates doubt in the mind about its genuineness. Apparently, it is a subsequent fabrication made to suit the plea in State’s counter affidavit. 19. Mr.Bhuyan, learned Additional Government Advocate submitted that said plot index is not correct and the hal and sabik map are yet to be finalized. But till finalization, the documents as produced had to be taken into consideration. Moreover, the State has filed sabik and hal ROR prepared by the settlement, but never filed corresponding plots of 1288 except the documents produced by the petitioners, as discussed in the above paragraphs. Therefore, the contention of the learned counsel for the State that the plot demarcated by the petitioners is not correct cannot be accepted. On the other hand, the contention of the petitioners that he has got the case land and the same has already been demarcated and their possession over the same is well proved. Therefore, the contention of the learned counsel for the State that the plot demarcated by the petitioners is not correct cannot be accepted. On the other hand, the contention of the petitioners that he has got the case land and the same has already been demarcated and their possession over the same is well proved. 20. Thus, we are of the opinion that the case land has been properly identified and lying to the southern part of Sabik Plot No.1288 and it has been in possession of the original lessee. Point No.(I) is answered accordingly. 21. POINT No.(II) It is the contention of the petitioners that the allotment of the case land has been made under Government Grants Act and the resumption proceeding under the Act, 1962 is not permissible. On the other hand, learned Additional Government Advocate submitted that since the lease has been granted by the Tahasildar, Bhubaneswar, opposite party no.4 by not following the statutory procedure, the resumption proceeding under the Act, 1962 is applicable. 22. On going through the original lease records, as discussed above, nothing is found that the lease in question is granted under the Act, 1962. It is only available from the papers that the original lessee Ganesh Prasad Panda has applied for lease of five acres of land as he has worked during China War of 1962. The Resolution dated 14.05.1963 of the Government of Orissa in the Department of Home shows that the State Government made facilities for Jawans of Orissa proceeding to forward areas. This resolution said that amongst other benefits, a person on return would get five acres of land free and made ready for cultivation at Government cost. In such case, widow and dependents will also receive the benefit. There is nothing mentioned in that resolution that this benefit will be granted under the Act, 1962. It is also made clear in that resolution that this facility is available over and above what the Central Government may grant. Government Grants Act has got similar provisions. Further after proper scrutiny, the petitioner was found eligible by the Home Department whereafter the case land has been allotted in favour of the lessee. So, the case land has not been allotted under the Act, 1962. Since it is not granted under the Act, 1962, resumption proceeding under the said Act is not permissible. Further after proper scrutiny, the petitioner was found eligible by the Home Department whereafter the case land has been allotted in favour of the lessee. So, the case land has not been allotted under the Act, 1962. Since it is not granted under the Act, 1962, resumption proceeding under the said Act is not permissible. For better appreciation, Sections 3(1)(e) and 3-B of the Act, 1962 is placed in the following manner: “3. Reservation and settlement of Government lands. (1) Notwithstanding anything to the contrary in any law or any custom, practice or usage having the force of law Government shall not be deemed to be debarred from exercising all or any of the following powers in respect of Government lands, namely:" Xxxx xx xx (e) to authorise any officer of Government not below the rank of a Tahsildar to dispose of applications for settlement of lands and to settle the same in such manner as may be prescribed and subject to the provisions of sub-sections(2) and (3) 3-B. Resumption of land and imposition of penalty. Any officer authorised under clause (e) of section 3 may resume any land settled by him, if he has reasons to believe that:- (a) the person with whom the land was settled, has used it for any purpose other than that for which it was settled; or (b)the persons, other than homesteadless person or landless agricultural labourer, has not used the land for a period exceeding three years from the date of such settlement, and may impose a penalty of an amount not exceeding one thousand rupees on such person: Provided that no order under this section shall be passed without giving such person, a reasonable opportunity of being heard in the matter. Xxxx xx xx” It appears from the aforesaid provisions, that the Tahasildar, Bhubaneswar, opposite party no.4, who has settled the land under the Act, 1962, has got right to resume the land and impose penalty under the provisions of the said Act. Since the land has not been leased out under the Act, 1962, resumption of the same cannot be permitted under the Act. 23. Since the land has not been leased out under the Act, 1962, resumption of the same cannot be permitted under the Act. 23. If for the sake of argument, it is held that the lease is granted under the Act, 1962, the Additional District Magistrate, Bhubaneswar having already found in revision under Section 7-A(3) of the Act, 1962, that no fraud or irregularity was committed while granting lease to the original lessee, the Tahasilar, Bhubaneswar, opposite party no.4 being subordinate to the Additional District Magistrate, cannot again pass order under Section-3(B) of the Act, 1962 to resume the case land. 24. In terms of the above discussion, at any rate, issuance of the show cause notice by the Tahasildar, Bhubaneswar, opposite party no.4 in Resumption Case No.1 of 2006 is illegal and improper. Point No.(II) is answered accordingly. 25. CONCLUSION We have already held in the above paragraphs that the case land in question being allotted in favour of the original lessee-G.P.Panda and being inherited by the present LRs is legal and proper. The contention of the learned Additional Government Advocate that the identification of the case land, being a question of fact, should be dealt with the appropriate Court has no merit because in the facts and circumstances of the case after going through the pleadings and the documents it is clear that the case land allotted to the lessee has been in possession of the lessee and his LRs. It is also trite in law that if upon the writ petition, counter affidavit, rejoinder and other affidavits are sufficient to find out the fact, the Court would not be hesitant to exercise the power under Article 226 of the Constitution. Now, in the instant case, it is already observed in the aforesaid paragraphs that the lease has been validly granted to the petitioners’ father (lessee) by following the procedure. 26. It has been already observed that initiation of resumption proceeding is illegal and improper. Hence, we are constrained to hold that such proceeding is liable to be quashed and the Court do so. It is made clear that the case land could not be allotted to the IDCO-opposite party no.5 by the State Government and cannot form part of allotment made by IDCO in favour of the opposite party no.6. The writ petition is disposed of accordingly. No costs. It is made clear that the case land could not be allotted to the IDCO-opposite party no.5 by the State Government and cannot form part of allotment made by IDCO in favour of the opposite party no.6. The writ petition is disposed of accordingly. No costs. The original lease records be returned to Mr.Bhuyan, learned Additional Government Advocate.