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2018 DIGILAW 743 (ORI)

Laxmidhar Tarai v. Collector, Puri

2018-08-20

B.R.SARANGI, KALPESH SATYENDRA JHAVERI

body2018
ORDER Heard Mr.S.K.Dash, learned counsel for the petitioners and Mr.B.P.Pradhan, learned Addl. Government Advocate. 2. By way of these writ petitions, the petitioners have approached this Court against the action of the opposite parties, whereby the State Government has initiated proceedings pursuant to an audit objection, where it has been pointed out in the writ petition that a fraud has been committed. The audit objection was raised in the year 1990, pursuant to which notice was issued in the year 1999 and the lease which was granted in favour of the petitioners, was cancelled by the Collector, Puri by order dated 5th August, 2000. 3. Learned counsel for the petitioner has basically raised following contentions. He has contended that the order in Annexure-2 was passed in exercise of power under Section 7-A (3) of the Orissa Government Land Settlement Act, 1962. All the 51 persons were given common notice and by a common order the lease has been cancelled. The Revenue Inspector conducted an inquiry and reported that the land sought to be leased out has been recorded as ‘Anabadi’ yet the same comes under ‘Sarada-II’ class and is fit for cultivation. Learned counsel for the petitioner further contended that the land in question was not reserved for any specific purpose nor were there any standing trees. Thus, an area ranging from Ac.1.00 to Ac.2.00 was allotted in favour of the individual 51 applicants. The details of the 51 persons, referred to above, are reproduced below: Sl. No. O.J.C. Nos. Revision No. & Year OGLS Case No. & Year W.L.Lease Name of the Settlees & Village Area (Ac.) 01. 8916/2000 31/99 1575/72 Dukhi Shyam Biswal, Village: Hubasahi, P.S.:Brahmagiri 1.00 02. 8845/2000 32/99 1579/72 Bisikumari Nayak, Vill.: Kuapada, P.S.: Brahmagiri 2.00 03. 9611/2000 33/99 1582/72 Taapai Dei, Vill.: Kuapada, P.S. : Brahmagiri. 2.00 04. 8915/2000 34/99 1583/72 Dija Naik, Vill.: Kuapada, P.S.: Brahmagiri 2.00 05. 9632/2000 35/99 1585/72 Surendra Sahu, Vill.: Kuapada, P.S.: Brahmagiri. 1.00 06. 8979/2000 36/99 1586/72 Laxmidhar Tarei, Vill.: Kuapada, P.S.: Brahmagiri. 2.00 07. 9013/2000 3799 1587/72 Yudhistir Sahu, Vill : Kuapada, P.S.: Brahmagiri. 2.00 08. 9628/2000 38/99 1589/72 Dhaneswar Parida, Vill.: Kuapada, P.S.: Brahmagiri. 2.00 09. 9198/2000 39/99 1590/72 Manguli Tada, Vill.: Kuapada, P.S.: Brahmagiri. 1.00 10. 9200/2000 40/99 1591/72 Kelu Sahu, Vill.: Kuapada, P.S.: Brahmagiri 1.00 11. 9199/2000 41/99 1592/72 Fakir Sahu, Vill.:Kuapada, P.S.: Brahmagiri 2.00 12. 2.00 07. 9013/2000 3799 1587/72 Yudhistir Sahu, Vill : Kuapada, P.S.: Brahmagiri. 2.00 08. 9628/2000 38/99 1589/72 Dhaneswar Parida, Vill.: Kuapada, P.S.: Brahmagiri. 2.00 09. 9198/2000 39/99 1590/72 Manguli Tada, Vill.: Kuapada, P.S.: Brahmagiri. 1.00 10. 9200/2000 40/99 1591/72 Kelu Sahu, Vill.: Kuapada, P.S.: Brahmagiri 1.00 11. 9199/2000 41/99 1592/72 Fakir Sahu, Vill.:Kuapada, P.S.: Brahmagiri 2.00 12. 9613/2000 42/99 1593/72 Aparti Nayak, Vill.: Kuapada, P.S.: Brahmagiri 2.00 13. 8981/2000 43/99 1594/72 Banambar Parida, Vill.: Kuapada, P.S.: Brahmagiri 2.00 14. 8847/2000 44/99 1595/72 Kumar Sahu, Vill.: Kuapada, P.S.: Brahmagiri 2.00 15. 8980/2000 45/99 1596/72 Nanda Sahu, Vill.: Kuapada, P.S.: Brahmagiri 2.00 16. 8978/2000 46/99 1597/72 Khetrabasi Nayak, Vill.: Kuapada, P.S.: Brahmagiri 2.00 17. 9626/2000 47/99 1598/72 Baraju Sahu, Vill.: Kuapada, P.S.: Brahmagiri 2.00 18. 9635/2000 48/99 1599/72 Panchu Naik, Vill.: Kuapada, P.S.: Brahmagiri 2.00 19. 9610/2000 49/99 1600/72 Padan Barik, Vill.: Kuapada, P.S.: Brahmagiri 2.00 20. 9012/2000 50/99 1602/72 Basudeb Tada, Vill.: Kuapada, P.S.: Brahmagiri 1.00 21. 9622/2000 51/99 1603/72 Ramachandra Naik, Vill.: Kuapada, P.S.: Brahmagiri 2.00 22. 9015/2000 52/99 1604/72 Prasana Kumar Nayak, Vill.: Kuapada, P.S.: Brahmagiri 1.00 23. 9014/2000 53/99 1606/72 Narayan Parida, Vill.: Kuapada, P.S.: Brahmagiri 2.00 24. 9785/2000 54/99 1608/72 Bira Naik, Vill.: Kuapada, P.S.: Brahmagiri 1.50 25. 9232/2000 55/99 1609/72 Mina Parida, S/o Ratan Parida, Vill.: Kuapada, P.S.: Brahmagiri. 2.00 26. 9011/2000 56/99 1622/72 Nidhi Sahu, S/o Jagannath Sahu, Vill.: Kuapada, P.S.: Brahmagiri 2.00 27. 9232/2000 57/99 1624/72 Netra Naik, S/o Madhu Naik, Vill.: Kuapada, P.S.: Brahmagiri. 2.00 28. 9633/2000 58/99 1625/72 Jambeswar Sahu, S/o Sagar Sahu, Vill.: Kuapada, P.S.: Brahmagiri 2.00 29. 9320/2000 59/99 1626/72 Madhaba Tarai, S/o Nada Tarai, Vill.: Kuapada, P.S.: Brahmagiri 2.00 30. 9090/2000 60/99 1627/72 Mana Tarai, S/o Ranjan Tarai, Vill.: Kuapada, P.S.: Brahmagiri. 2.00 31. 9088/2000 61/99 1628/72 Kamala Devi, Vill.: Kuapada, P.S.: Brahmagiri. 2.00 32. 9631/2000 62/99 1629/72 Parikhita Sahu, Vill.: Kuapada, P.S.: Brahmagiri. 2.00 33. 9087/2000 63/99 1630/72 Banambar Sahu, Vill.: Kuapada, P.S.: Brahmagiri. 2.00 34. 9483/2000 64/99 1631/72 Sadhu Sahu, S/o Jagannath Sahu, Vill.: Kuapada, P.S.: Brahmagiri 2.00 35. 9085/2000 65/99 1632/72 Tai Dei, W/o Karunakar, Vill.: Kuapada, P.S.: Brahmagiri 2.00 36. 9634/2000 66/99 1633/72 Sitamani Dei, W/o Binod Sahu, Vill.: Kuapada, P.S.: Brahmagiri. 2.00 37. 9089/2000 67/99 1634/72 Biswambar Naik, S/o Prahallad Naik, Vill.: Kuapada, P.S.: Brahmagiri. 2.00 38. 9091/2000 68/99 1637/72 Gadadhar Tarei, S/o Aparti Tarei, Vill.: Kuapada, P.S.: Brahmagiri. 1.00 39. 9085/2000 65/99 1632/72 Tai Dei, W/o Karunakar, Vill.: Kuapada, P.S.: Brahmagiri 2.00 36. 9634/2000 66/99 1633/72 Sitamani Dei, W/o Binod Sahu, Vill.: Kuapada, P.S.: Brahmagiri. 2.00 37. 9089/2000 67/99 1634/72 Biswambar Naik, S/o Prahallad Naik, Vill.: Kuapada, P.S.: Brahmagiri. 2.00 38. 9091/2000 68/99 1637/72 Gadadhar Tarei, S/o Aparti Tarei, Vill.: Kuapada, P.S.: Brahmagiri. 1.00 39. 9615/2000 69/99 1746/72 Aintha Naik, S/o Dama Naik, Vill.: Kuapada, P.S.: Brahmagiri 1.00 40. 9624/2000 70/99 1747/72 Iswar Tarai, S/o Natabara Tarai, Vill.: Kuapada, P.S.: Brahmagiri 2.00 41. 9629/2000 71/99 1749/72 Banambar Tarai, S/o Khetra Tarai, Vill.: Kuapada, P.S.: Brahmagiri 2.00 42. 9630/2000 72/99 1759/72 Kumar Sahu, S/o Netra Sahu, Vill.: Kuapada, P.S.: Brahmagiri 2.00 43. 9779/2000 73/99 1760/72 Dinabandhu Sahu, S/o Sadhu Sahu, Vill.: Kuapada, P.S.: Brahmagiri 1.00 44. 9086/2000 75/99 1763/72 Hadu Nail, S/o Nila Naik,Vill.: Kuapada, P.S.: Brahmagiri 1.00 45. 9704/2000 76/99 1843/72 Dukhishyama Sahoo, S/o Jagannath Sahoo, Vill.: Kuapada, P.S.: Brahmagiri 1.00 46. 9625/2000 77/99 1872/72 Panchei Dei, W/o Chandramani Tada, Vill.: Kuapada, P.S.: Brahmagiri 2.00 47. 9636/2000 78/99 1874/72 Akshaya Kumar Nayak, S/o Madhu Sudan Nayak, Vill.: Kuapada, P.S.: Brahmagiri 1.00 48. 9782/2000 79/99 1875/72 Manu Sahani, S/o Nath Sahani, Vill.: Kuapada, P.S.: Brahmagiri 2.00 49. 9618/2000 80/99 1876/72 Tikina Dei, W/o Maheswar Tarei, Vill.: Kuapada, P.S.: Brahmagiri 2.00 50. 9778/2000 81/99 1877/72 Ashamani Dei, W/o Benu, Vill.: Kuapada, P.S.: Brahmagiri 2.00 51. 9637/2000 82/99 1878/72 Dhai Tarai, W/o Nata, Vill.: Kuapada, P.S.: Brahmagiri 2.00 Total 89.50 Learned counsel for the petitioners contended that the alleged fraud was found out in the year 1990, but the notice was issued in the year 1999 and that too contrary to decision of this Court rendered on the basis of the judgments of the Supreme Court in Union of India Vs. Special Land Acquisition Officer (ZA), AIR 1996 SC 853 and of this Court in the case of S.P. Chengalvaraya Naidu v. Jagannath (dead) by L.Rs., 1994 OLR (1) 201 and the same is also covered by the decision of this Court in Smt. Elley Pattnaik v. State of Orissa, 2012 (Supp.-II) OLR 506, where paragraph-9 reads as under: “9. Further, we find that the original lease was granted long back in the year 1974 whereas the revisional authority initiated the Suo Motu Revision in 1998 i.e. after a long lapse of 25 years. Further, we find that the original lease was granted long back in the year 1974 whereas the revisional authority initiated the Suo Motu Revision in 1998 i.e. after a long lapse of 25 years. Under 2nd Proviso to Section 7-A (3) of the Orissa Government Land Settlement Act no proceeding can be initiated after expiry of fourteen years from the date of order granting lease. While prescribing the period of limitation the legislature while drafting the Orissa Government Land Settlement Act in their wisdom prescribed the period of limitation for initiation of a proceeding in examining the correctness of the order passed under the act and also to find out if any fraud or misrepresentation etc. was practised in obtaining an order. Being cognizant of such contingencies the period of limitation of 14 years has been prescribed. The reasons assigned by the Additional District Magistrate, Bhubaneswar about the fraudulent declaration made by Digambar Behera that he belongs to the Scheduled Tribe community and fraud was practised to get the land settled in his favour can be decided by the Revisional Authority as per terms of the provision but within the period of limitation.” It is also contended that the issue is covered by the decision of this Court in Bata Krushna Nayak Vs. State of Orissa, 2010 (I) OLR 723 and further contended that in view of decision of this Court in Chandra Kala Padhi v. State of Odisha, reported in 1997 (I) OLR 52, where Paragraph-8 reads as under: “8. This being the position, there is no difficulty to conclude that the grant of lease on the basis of lease principles is quite different than the lease of land granted under the provisions of the Act. There is no prohibition under the Act for granting lease under the lease principles. It is nowhere being mentioned in the Act that the lease principles have been superseded. Once it is held that they are in force and do not have any conflict with the provisions of the Act, there is no bar on the part of the Revenue Officer to grant lease on the approved lease principles. Whether a grant is correct or not, is in accordance with the said provisions or not, or whether there has been any error or lacuna is such a grant is quite different than the competency to grant. Whether a grant is correct or not, is in accordance with the said provisions or not, or whether there has been any error or lacuna is such a grant is quite different than the competency to grant. If a particular land has been leased out or settled in favour of an applicant, either under the approved lease principles or otherwise but not under the provisions of the Act. the said settlement or lease is not available for being set aside in exercise of jurisdiction conferred under Section 7-A (3) of the Act. Our view is fortified by a decision rendered in the case of Raj Kishore Das v, State of Orissa and Ors., reported in 1994 (II) OLR 149, wherein their Lord-ships have held thus : “.........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 notification 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...................” the notice after almost 27 years is required to be quashed and set aside. However, learned counsel for the opposite parties has strongly relied upon the observations made by the Collector in paragraph-9 of the impugned order , which is reproduced below: “Examined and perused all the cases in detail. As it marked all the cases have been disposed of and settled in one date , i.e.11.4.74. Proclamation has neither been issued from Tahasil Office nor handed over to the process Server through the process register meant for the purpose. First of all the Tahasildar , Puri has not received the applications with his dated signatures and without court fee. In W.L.L.case No. 1583/72,1596/72 and 1597/72 although cases have been started on 26.12.73, the Tahasildar has passed order on 11.4.73. It is purely fraud as evident. First of all the Tahasildar , Puri has not received the applications with his dated signatures and without court fee. In W.L.L.case No. 1583/72,1596/72 and 1597/72 although cases have been started on 26.12.73, the Tahasildar has passed order on 11.4.73. It is purely fraud as evident. In W.L.L. Case No. 1585 /72 land has been settled in the name of Surendra Sahu but possession has been given to Dhoi Tarai. It is purely fraud as remarked. In W.L.L. Case No. 1589/72 signature of Dhaneswar Parida is quite different in application form and possession report. Other cases are similar nature. W.L.L. Case No. 1591/72, 1594/72, 1595/72, 1596/72, 1602/72, 1603/72, 1606/72, 1626/72, 1627/72 to 1629/72, 1631/72, 1634/72, 1637/72 & 1746/72 are the instances which are clear evident as fraud. The report of R.I., Khetandi is defective and perfunctory and not according to rules. Income of each persons from landed property or other sources have been totally ignored. I do not understand how the Tahasildar, Puri has settled the lands without having proper enquiry report. R.I. report and possession report has been done in office in one day with connivance of the office staff. I am astonished to say that how Govt. lands have been grabbed by mischief mongers which has been done with malafide intentions. The R.I. has failed to report the correct annual income of all the members of family who are living with in common mess from all the sources. In view of the above analysis and facts on record, fraud has been acted upon hence all the above W.L.L. cases are cancelled.” and contended that in view of this, the observation made by the Supreme Court in State of Orissa v. Brundaban Sharma and another, 1995 Supp.(3) SCC 249 in paragraph-16, which reads as under: “16. It is, therefore, settled law that when the revisional power was conferred to effectuate a purpose, it is to be exercised in a reasonable manner which inheres the concept of its exercise within a reasonable time. Absence of limitation is an assurance to exercise the power with caution or circumspection to effectuate the purpose of the Act, or to prevent miscarriage of justice or violation of the provisions of the Act or misuse or abuse of the power by the lower authorities or fraud or suppression. Length of time depends on the factual scenario in a given case. Length of time depends on the factual scenario in a given case. Take a case that patta was obtained fraudulently in collusion with the officers and it comes to the notice of the authorities after a long lapse of time. Does it lie in the mouth of the party to the fraud to plead limitation to get away with the order? Does lapse of time an excuse to refrain from exercising the revisional power to unravel fraud and to set it right? The answers would be no.” the length of time is not a sine quo non. In a case of fraud it can be done at any time. We have gone through the decisions and facts on record. The poor farmers are enjoying the property right from 1972. The Collector, while issuing notice, has slept over for a period of 9 years, even after the audit objections. Apart from that, the notices were alleged to have been served against dead persons. Therefore, it is a clear violation of principles of natural justice and it clearly shows non-application of mind on behalf of the Collector. Taking into consideration that no action has been taken against the officer, who was a party to allotment of these lands, it would not be proper for this Court to make suffer the poor people, who have been granted lease in the year 1972. Unless the Government takes action against the fraudulent officer, who has committed the fraud, it will not be proper to make suffer the poor people. In that view of the matter , we are of opinion that in view of the decision of the apex Court, the impugned order canceling the lease is required to be quashed and set aside. Counsel for the State Government has also relied upon a decision of the Supreme Court in S.P.Chengalvaraya Naidu (supra) and State of Orissa and others v. Harapriya Bisoi (2009) 12 SCC 378 . In our considered opinion, when the issue is clear on the local acts by three Division Bench of this Court, it will not be proper to allow the poor people to suffer at the ends of mighty Government. In view of the discussions made above, the impugned order in Annexure-2 canceling the lease is quashed and set aside. All the writ applications stand disposed of. Applications disposed of.