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2018 DIGILAW 580 (ORI)

Bipin Bihari Bishi v. State Of Orissa

2018-05-18

D.P.CHOUDHURY, S.K.MISHRA

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JUDGMENT Dr. D.P. Choudhury, J. - Challenge has been made to the order of resumption of the case land by the Sub-Collector, Sadar, Sambalpur on 23.6.2006. Facts: 2. The unshorn details of the facts of the case leading to the writ petition is that the petitioner is a resident of Gopalmal, Sambalpur town but originally he belongs to village Janhapada. In the year 1974, petitioner joined in Indian Army as a Jawan. -Due to some dissention in the family, petitioner shifted to Sambalpur Town permanently in 1985 and then resided there till 2005. Petitioner retired from Indian Army as Hawlidar in the year 1998. Since he has worked in Indian Army, in the year 1997, the petitioner has approached the Zilla Sainik Board, Sambalpur for a piece of land. After due investigation, Zilla Sainik Board directed him to apply to the Tahasildar Sadar, Sambalpur for grant of lease of land. 3. Be it stated that although the petitioner was born at village Janhapada under Attabira Tahasil, in the Bargarh district but he has no landed property in the paternal village. Accordingly he got a Landless Certificate vide Misc. Case No. 278 of 1999 under the jurisdiction of Attabira Tahasil. As per the application of the petitioner, Jawan Lease Case No. 2 of 1997 was initiated and after due verification, the Tahasildar, Sadar, Sambalpur-opposite party No. 3 recommended for sanction of lease of Ac.3.84 decimal of Abad Jogya Anabadi land in mouza A. Katapali and accordingly the Sub-Collector, Sambalpur confirmed the settlement of such lease on 20.5.2000 in favour of the petitioner vide Jawan Lease Case No. 2/97. Thereafter the case land was mutated in favour of the petitioner in the Consolidation by the Consolidation authority under the Orissa Consolidation of Holdings and Prevention of Fragmentation of Land Act, 1972 (hereinafter called "the Act, 1972)". 4. It is stated that a Misc. Appeal (Jawan Lease) Case No. 2 of 2006 was initiated by the Sub-Collector, Sambalpur to cancel the lease on various grounds. He got a notice and accordingly participated in the proceeding. After hearing the petitioner and the Tahasildar, the Sub-Collector passed order for resumption of the case land on the ground that the petitioner is not a permanent resident of Sambalpur, he is not a landless person and the wife of the petitioner has got landed property purchased in her favour. He got a notice and accordingly participated in the proceeding. After hearing the petitioner and the Tahasildar, the Sub-Collector passed order for resumption of the case land on the ground that the petitioner is not a permanent resident of Sambalpur, he is not a landless person and the wife of the petitioner has got landed property purchased in her favour. So, the writ petition is filed challenging such impugned order. Submissions: 5. Learned counsel for the petitioner submitted that the lease has been granted under Jawan Lease Case No. 2 of 2006. Although the petitioner has got birth at Janhapada under Bargarh district but since 1985 the petitioner has been living at Sambalpur Town. There is no mistake on the part of the Tahasildar, Attabira in issuing Landless Certificate in favour of the petitioner vide Misc. Case No. 278 of 1999 because petitioner has no landed property in his paternal village. Learned counsel for the petitioner further submitted that the grant of lease not only was recommended by the Tahasildar Sadar, Sambalpur but also it was confirmed by the Sub-Collector, Sambalpur after verifying all formalities for which it cannot be said that grant of lease under the lease principles is illegal or improper. 6. Learned counsel for the petitioner submitted that the Sub-Collector has erred in law by observing in the impugned order that the petitioner is not a landless person qualifying to get the Jawan Lease under the Government Grants Act, 1895 or lease principles. Learned Sub-Collector has failed to understand that the petitioner's share in his paternal property for less than one acre would be counted as landless person, if at all the Sub-Collector, Sambalpur construed the case under the Orissa Government Land Settlement Act, 1962 (hereinafter called "the Act, 1962"). 7. Learned counsel for the petitioner submitted that the impugned order of resumption is based on surmises and conjectures and the Sub-Collector has no jurisdiction to resume the case land as he has not been given sufficient opportunity of being heard while passing the order to resume the case land. On the other hand, the impugned order suffers from violation of the principles of natural justice of the petitioner. 8. Learned counsel for the petitioner further submitted that the case land has been already settled with rayati status of the petitioner and same has been recognized by the Consolidation authority. On the other hand, the impugned order suffers from violation of the principles of natural justice of the petitioner. 8. Learned counsel for the petitioner further submitted that the case land has been already settled with rayati status of the petitioner and same has been recognized by the Consolidation authority. When' the Consolidation authority has allowed to record the land in question in favour of the petitioner, the Sub-Collector, Sambalpur has no authority to cancel the same as cancellation of lease amount to encroachment upon the Consolidation authority. It is well settled in law that the Consolidation authority has got power of the Civil Court. 9. Learned counsel for the petitioner submitted that since the lease has been granted by observing all formalities, the impugned order of cancellation of lease is illegal, improper and beyond jurisdiction for which the same is liable to be set aside. 10. Mr. Bibekananda Bhuyan, learned Additional Government Advocate appearing for the opposite parties submitted that the petitioner is not entitled to get the lease vide Jawan Lease Case No. 2 of 1997 because he has suppressed about his permanent residence at Janhapada, district Bargarh. He has only submitted application showing him as permanent resident of Sambalpur. Moreover, the petitioner has also suppressed the material fact that he has got paternal property at Bargarh. 11. Learned counsel for the State further submitted that the learned Tahasildar has shown the petitioner as landless person without verifying the fact. Only the landless person can be leased out the property under Jawan Lease. Now the Sub-Collector confirmed the lease without following the due procedure of law. Apart from this, the land allotted for agricultural purpose has not been used for such purpose. After due notice to show cause issued, the resumption proceeding was started and rightly the Sub-Collector has passed the impugned order to cancel the lease granted to the petitioner. 12. Mr. B.N. Prasad, learned counsel for the intervenor submitted that the case land has already been allotted in favour of the intervenor-petitioner who has already taken physical possession of the same since 2004. So, in his presence the matter should be disposed of. According to him, the intervenor-petitioner is also an ex-serviceman and has been allotted the case land under the Jawan Lease. 13. So, in his presence the matter should be disposed of. According to him, the intervenor-petitioner is also an ex-serviceman and has been allotted the case land under the Jawan Lease. 13. The main point for consideration : (i) Whether the order for resumption passed under Annexure-5 is liable to be quashed and restore the lease already granted in favour of the petitioner? Discussion : 14. It is not in dispute that the petitioner was ex-service person and has retired as Hawalidar in the year 1998. It is admitted fact that the petitioner has applied for lease of land under Jawan Lease category. It is also admitted fact that he has obtained Certificate showing him landless person. It is not in dispute that after the settlement of land with the petitioner it was recorded in his favour but subsequently notice was issued to cancel the lease. 15. During pendency of this case, the intervenor intervened the case as in his presence the case is to be disposed of. It is his claim that land has been already allotted to him under Jawan Lease and he is in possession of the same. We have passed the order that petition of the intervenor would be disposed of along with this writ petition. Accordingly we have also taken into consideration the submission of the learned counsel for the intervenor. 16. In course of hearing, we have called for the case record in Lease Case No. 02 of 1997. From the record, it appears that the present petitioner has applied to Zilla Sainik Board, Sambalpur for allotment of case land pertaining to Plot No. 1617 measuring an area 1.72 decimals and Plot No. 2488 measuring an area 2.12 decimals, both under Khata No. 441 at village A. Katapali in Jawan Lease Misc. Case No. 2 of 1997 at Sambalpur. It further reveals that after due proclamation and R.1. report submitted with regard to his stay at Sambalpur, 85 decimals of land which is less than standard one acre has been leased out. It appears that on 10.5.1999, the Tahasildar after detailed verification of the particulars with regard to his residentship, the land being reserved for the Jawan lease and no objection received on proclamation, lease was granted in favour of the petitioner. It was sent to Sub-Collector for confirmation. On 20.5.2000 the Sub-Collector confirmed the Jawan Lease in favour of the petitioner for agricultural purpose. It was sent to Sub-Collector for confirmation. On 20.5.2000 the Sub-Collector confirmed the Jawan Lease in favour of the petitioner for agricultural purpose. So, all formalities in Jawan Lease case has been gone through. 17. From the record, it appears on 25.1.2006 the Tahasildar raised the issue for cancellation of the lease on the ground that the petitioner belongs to district Bargarh and not permanent resident of district Sambalpur and he was not landless person for which settlement of land under the OGLS Act and Rules does not qualify him to settle lease of the land in question in his favour. 18. When the lease has been granted under the Jawan Lease without disclosing anything about settlement of land under the OGLS Act, it is not understood how in 2006 the same Tahasildar, Sambalpur made appeal for cancellation of lease under the OGLS Act because the lease purportedly granted under the lease principle meant for Jawan or ex-service person cannot be resorted to OGLS proceeding to cancel the same as submitted by the learned counsel for the petitioner. 19. It is reported in 1994 (II) OLR 149 ; Rajkishore Das v. State of Orissa and others , where Their Lordships observed at para-7 in the following manner : "7. Learned counsel for the petitioner has relied upon Government of Orissa, Home Department Resolution No. 11323-3S-29/63-Poli dated 14-5-1963 which declares the facilities to be given to the Jawans of Orissa who proceeded to forward areas. This was decided in consideration of the risk and sacrifice of the officers and men who are proceeding to forward areas in active service. The categories of the persons and men who would be entitled to such facilities have been enumerated therein. It is not disputed that the petitioner is one of the eligible persons to the facilities declared under the aforesaid Resolution. One of the concessions available to the eligible person under the said Resolution is that such person on return from service will get five acres of land free and make ready for cultivation at Government cost. In case a person is killed, the widow or the dependants will receive the land. Such facilities were subsequently extended to army personnel who have completed five years of service with which we are not concerned at the moment. In case a person is killed, the widow or the dependants will receive the land. Such facilities were subsequently extended to army personnel who have completed five years of service with which we are not concerned at the moment. Learned counsel appearing for the petitioner has referred to the lease principles approved by the Government which authorised the Tahasildar of the area or where there is no Tahasildar, the Sub-divisional Officer, who is the competent authority to decide the settlement of land in accordance with the principles to be decided by the Government. The Government Order No 4898-R dated 28-1-1966 has been relied upon by the learned counsel for the petitioner, paragraph 4 of which provides for special reservation. It says that Twenty per cent of the area from the arable Government lands shall be reserved for allotment to persons belonging to Orissa, who have Joined the regular Armed Forces and for members of the Orissa Military Police and Territorial Army belonging to Orissa who have been posted in the forward areas and personnel of the Auxiliary Air Force belonging to Orissa, who have been called, up. The essence of his submission is that the aforesaid Government order read with the Government resolution No. 11323-3S-29/63 Poll dated 14-5-1963 would make it clear that Jawans of the categories mentioned in different Government orders should not be treated on the same footing as private individuals and settlement of land in their favour cannot be conceived under the Act inasmuch as a Jawan is entitled to settlement of five acres of land which obviously is beyond the prescribed limit under the said Act and also for the reason that the settlement in favour of a Jawan does not require time taking detailed procedures to be followed as prescribed under the Act. The learned Additional Government Advocate could not reconcile as to how the Government orders and principles declaring settlement of five acres of land in favour of Jawans could be made under the Scheme of the Act. In the aforesaid premises the conclusion is irresistible that the settlement of five acres of land in favour of petitioner was not made in accordance with the provisions of the Act, but it was under the lease principles read with Government notifications which made special provision for special categories of persons who could not be treated on the same footing as private individuals. It, therefore, follows that a suo motu proceeding under Section 7-A(3) of the Act could not be resorted to for examining the correctness or otherwise of the settlement made in favour of the petitioner. The suo motu proceeding initiated against the petitioner is, therefore, held incompetent and the order of the Additional District Magistrate in Annexure-5 is bound to be quashed on this count alone. It is, therefore, unnecessary to answer the other questions raised by the learned counsel for the petitioner as the proceeding itself was without jurisdiction and the order passed thereunder cannot be maintained." 20. With due regard to the said decision, it appears that if Jawan Lease has been granted under the Home Department Notification dated 14.5.1963, OGLS Act will not be applicable to resume such case land. 21. Now adverting to the case in hand, it appears that Jawan Lease case has been started as the petitioner was an ex-Army personnel. Moreover, the notification dated 14.5.1963 of the Government of Orissa, Home Department is as follows : "In view of the present crisis due to external aggression, the Government look forward to the Jawans of the State to proceed to forward areas to defend our country against the enemy's attack and to protect the life and property of the peace loving people of the country. It is very encouraging that a large number of people from all walks of life not only have been volunteering for service but also have been contributing considerably in cash and kind for the purpose. 2. In consideration of the rink and sacrifice of officers and men who have proceeded or will be proceeding to forward areas for active service, the State Government have been pleased to decide that the following categories of officers and men will be entitled to the facilities detailed below. Provided that they are unable to manage without some form of assistance from Government and/or their family members desire to avail themselves of the concession mentioned against item 1-3 below: Personnel to be entitled to the facilities: (1) Personnel of Territorial Army belonging to Orissa posted in the forward areas and personnel of the Auxiliary Air Force who have been called up.- (2) Personnel of the Orissa Military. Police posted in the forward areas. (3) Personnel of the Indian Army, Navy and Air Force belonging to Orissa. Police posted in the forward areas. (3) Personnel of the Indian Army, Navy and Air Force belonging to Orissa. (4) Other categories of officers or men who are spedally declared eligible for these concessions by the State Government. Concessions XXX XXX XXX (d) Each person on return will get 5 acres of land free and made ready for cultivation at Government cost In case a person is killed the widow and the dependants will receive the land." Such lease principle is extended to Jawan for the simple reason that the facility to Jawans will encourage the other people to join the defence organization to protect the life and property of the peace loving people of the country. This is an honour to the ex-service person who has really been engaged for keeping independent territory of the country. Be that as it may, it is very clear from the aforesaid decision and provision that once the lease has been granted under the lease principle to a Jawan, same cannot be taken away by the Government machinery in the garb of OGLS Act or Rule made thereunder. 22. There is nothing round from the resolution dated 14.5.1963 that a Jawan can only apply for land in his native village or nearby. But it is clear from the notification dated 16.4.1998 issued by the Slate Government in Revenue & Excise Department that they will get one standard acre of Government land near their use. The impugned order shows that the petitioner even if belongs to Bargarh, has asked for allotment of land at Sambalpur. But the allotment order shows that the petitioner has been living at Sambalpur from 1985 and same report has been confirmed by the Collector. In absence of any provision that the petitioner is only entitled to the concession up to one standard acre at his own native village but not at his place of stay, the ground for resumption as available in the impugned order is indefensible. 23. The impugned ode shows that the petitioner is not landless person as ha a d his wife has land at village Janhapada but it is not clear from the order that such land is agricultural property. All the considerations being made for resumption are only based on the criteria available under the OGLS Act which is not applicable to the lease granted to petitioner as it is Javan Lease. All the considerations being made for resumption are only based on the criteria available under the OGLS Act which is not applicable to the lease granted to petitioner as it is Javan Lease. Not only this but also the intervenor has alleged that same land has been allotted as a Jawan lease to him in 2004. If at all the notice is issued in 2006 to cancel he lease, it is not understood as to how another Jawan was leased out the same land in 2004. Thus, the order of resumption of the case land purports that cancellation of lease granted to the petitioner was preplanned as the opposite parties have to lease out the same to the intervenor. 24. The impugned order does not show that the petitioner was given personal hearing c cancel the lease except allowing to file show cause. Also there is no enquiry held by the learned Sub-Collector who cancelling, the lease. In terms of the above discussion, we are of the view that the lease granted in favour of the petitioner is not liable to be cancelled and the impugned order rather is liable to be quashed. The point is answered accordingly Conclusion : 25. In the writ petition, it has been prayed to quash the order passed under Annexure-5. As discussed above, we have already observed that the cancellation of the lease granted in favour of the petitioner is liable to be quashed and the Court do so. Accordingly, the lease granted in favour of the petitioner is restored. In view of the fact that lease is restored with petitioner, the petitioner-intervenor lacks brevity in his intervention and accordingly the intervention petition is rejected. The writ petition is disposed of accordingly. S.K. Mishra, J. - I agree.