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2018 DIGILAW 317 (ORI)

Purna Chandra Chalana v. State Of Orissa

2018-03-27

BISWANATH RATH

body2018
JUDGMENT Biswanath Rath, J. - Heard Shri N.C. Panigrahi, learned senior counsel appearing for the petitioner and Shri A.K. Mishra, learned Addl. Government Advocate appearing for the opposite parties-State. 2. Factual aspects involved in this case are that a ceiling surplus proceeding was initiated involving the petitioner's father vide suo-motu ceiling case No. 823 of 1978 which matter has got finally dropped on 16.03.1982 finding that; (i) the landholder owned land less than one ceiling unit; and (ii) his two sons being major, married and separated prior to 26.09.1970 are also entitled to hold separate ceiling areas. With these two backgrounds and when the matter involving the ceiling proceeding was set at rest, the petitioner was surprised to face another ceiling proceeding. The challenge of the petitioner before the original authority as well as the appeal and revision remaining unsuccessful, the petitioner took up the issue in a writ petition before this Court vide O.J.C. No. 1227 of 1992 and the said writ petition appears to have been allowed in favour of the petitioner in setting aside of all the orders involving Ceiling proceeding vide Annexures-2, 3 and 4 involved therein and the subsequent order by the Board of Revenue, Orissa, Cuttack vide Annexure-5 involved therein was also quashed by disposal of the aforesaid writ petition on 24.03.1992. Based on these developments, the petitioner made a claim for recovery of the land taken possession by the State in the meantime following the developments in the ceiling proceeding. Finding State returning only Ac.5.48 decimals of land remaining at that point of time with the possession of the State and not returning the vast balance land, the petitioner filed this writ petition seeking for a direction from this Court for issuing mandamus to the opposite parties-State to deliver the balance portion of the land. 3. Shri N.C. Panigrahi, learned senior counsel appearing for the petitioner taking the developments taken place in the meantime, submitted that for the setting aside of all the orders at Annexures 2, 3, 4 as well as Annexure-5 involving O.J.C No. 1227 of 1992 petitioner has a right to get back the balance land involved herein and the State is also having a duty to return it. It is under the circumstances, Shri Panigrahi, learned senior counsel appearing for the petitioner prayed for interference of this Court and for issuing appropriate direction. 4. It is under the circumstances, Shri Panigrahi, learned senior counsel appearing for the petitioner prayed for interference of this Court and for issuing appropriate direction. 4. In his opposition, Shri A.K. Mishra, learned Addl. Government Advocate appearing for the opposite parties-State taking this Court to the provisions contained in Section 65 of the Orissa Land Reforms Act, 1960 as well as Rule -47 of the Orissa Land Reforms (General) Rules, 1965, contended that for the petitioner having a statutory procedure for recovery of the land and delivery of possession in his favour, no writ petition straightway to the High Court is entertainable. Taking help of a decision of this Court in the case of Batni Chittamma v. Revenue Officer-cum-Tahasildar, Berhampur and others, reported in 1989 (II) OLR 526 , Shri Mishra, learned Addl. Government Advocate appearing for the State taking this Court to paragraph-5 therein, submitted that the decision has clear application to the case of the State and, therefore, this writ petition deserves to be dismissed. 5. It is to this submission of the learned Addl. Government Advocate appearing for the State, Shri Panigrahi, learned senior counsel appearing for the petitioner taking this Court to the pleadings in the rejoinder, contended that in spite of the petitioner making request to the competent authority, there is no development in the matter of recovery of land compelling the petitioner to file the present writ petition. 6. Considering the rival contentions of the parties and taking into account the provisions contained in Section 65 of the Orissa Land Reforms Act, 1960 as well as Rule-47 of the Orissa Land Reforms (General) Rules, 1965 referred to hereinabove, this Court for the relevancy of the provisions here takes note of both the provisions from the Act as well as the Rules which are indicated hereunder:- "Section-65. Execution of orders:- (1) The authority passing an order under any of the provisions of this Act may on his motion or an application in the prescribed manner direct that possession of any land forming the subject of such an order be delivered to the person entitled to such possession and take such steps as may be necessary to give effect to his orders. (2) Penalties and other dues, if any, payable to Government under the provisions of this Act shall be realizable as arrears of land revenue." Rule-47. (2) Penalties and other dues, if any, payable to Government under the provisions of this Act shall be realizable as arrears of land revenue." Rule-47. Application for delivery of possession under sub-section (1) of Section 65- (1) An application under Section 65 for delivery of possession shall be accompanied by a certified copy of the order in pursuance of which delivery of possession is applied for. (2) No direction for delivering possession of land shall be issued by the Revenue Officer without giving the parties interested a reasonable opportunity of being heard. 7. Looking to the provisions contained in Section 65 of the Orissa Land Reforms Act, 1960, for the parties involved herein, this Court finds, Section 65 of the Orissa Land Reforms Act, 1960 enables a party to go for execution of orders of the authority passing an order under any of the provisions of the Act, 1960 may on his motion or on an application in the prescribed manner direct that possession of any land forming the subject of such an order be delivered to the person entitled to such possession and take such steps as may be necessary to give effect to his orders. Similarly, looking to the provisions contained in Rule-47 of the Orissa Land Reforms (General) Rules, 1965, this Court finds, Rule-47 prescribes an application under Section 65 of the Orissa Land Reforms Act, 1960 for delivery of possession shall be accompanied by a certified copy of the order in pursuance of which delivery of possession is applied for. It further envisages, no direction for delivering possession of land shall be issued by the Revenue Officer without giving the parties interested a reasonable opportunity of being heard. This becomes relevant for the purpose of recovery of rest of the lands involving the writ petition since already distributed in favour of the landless person by the State. 8. After going through the order involving disposal of the writ petition vide O.J.C. No. 1227 of 1992, this Court finds, this High Court for the disposal of O.J.C. No. 1227 of 1992 taking into account the decision of the authority involving the disputed land involving the father of the petitioner earlier was pleased to setaside the orders at Annexures-2, 3, 4 and 5 involved therein. It is, therefore, clear that this Court has confirmed the order of the authority dropping the proceeding vide Suo-motu Ceiling Case No. 823 of 1978 illegally resulting the distribution of land amongst landless people. It is, therefore, this Court finding that the distribution of the land in favour of the landless person involved herein and the direction for recovery of the land being involved herein involving an outcome in a ceiling proceeding, the intention of the petitioner to workout the recovery of the land is on the basis of the order involving Suo-motu Ceiling Case No. 823 of 1978. It is at this stage, taking into account the provisions referred to hereinabove as well as the decision of this Court in the case of Batni Chittamma (supra), this Court finds force in the submission of the learned Addl. Government Advocate appearing for the State that petitioner has the statutory remedy to recover the balance land and, therefore, while declining to entertain the writ petition issuing the directions made therein, permits the petitioner to take resort to the provisions at Section 65 of the Act, 1960 and Rule-47 of the Rules, 1965 referred to hereinabove to remedy out the request involved herein. 9. The writ petition stands dismissed for the availability of statutory remedy to the petitioner, but however, with the liberty in favour of the petitioner to move the appropriate authority for recovery of balance surplus land applying the provisions indicated hereinabove, but however, after noticing the persons in the meantime owning the balance land. Delay in undertaking such proceeding be condoned taking into consideration that the petitioner was bonafidely pursing the writ remedy and this Court unable to dispose of the writ petition in appropriate time. In the circumstances, there is no order as to costs. 10. A free copy of this Judgment be handed over to Shri A.K. Mishra, learned A.G.A. appearing for the State.