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2019 DIGILAW 451 (ORI)

Dhruba Charan Swain v. State of Odisha

2019-07-11

KRUSHNA RAM MOHAPATRA

body2019
ORDER : Krushna Ram Mohapatra, J. 1. Heard Mr. Narendra Kumar Dash, learned counsel on behalf of Mr. Susanta Kumar Dash, learned counsel for the petitioners and Mr. Prabhat Kumar Muduli, learned Additional Government Advocate appearing for the State-opposite parties. 2. Petitioners in this writ petition assail the order dated 19.12.2002 (Annexure-2) passed by the Commissioner, Land Records and Settlement, Odisha, Cuttack, whereby a separate revenue village has been created by separating hamlet 'Darudhipa' from the revenue village 'Baladia Nuagaon' under Fategarh PS in the district of Nayagarh. 3. Mr. Dash, learned counsel for the petitioners submitted that the initiation of proceeding for bifurcation of revenue village is without jurisdiction, as it has been initiated by the Assistant Settlement Officer, who had no jurisdiction under Rule-61(1) of Odisha Survey and Settlement Rules, 1962 (for short, 'the Rules'). Further, there is violation of Rule 62(2) of the Rules, 1962 as the proceeding for bifurcation of revenue village was initiated after publication of final ROR. It is further submitted that by virtue of bifurcation/creation of a new revenue village, the villagers of Baladia Nuagaon are seriously affected. It is also his submission that no opportunity of hearing was given by learned Commissioner before passing the order under Annexure-2. As such, the impugned order under Annexure-2 is liable to be quashed and set aside. 4. Mr. Muduli, learned Additional Government Advocate prays for some time to file counter affidavit in this case. But, on perusal of order sheet, it appears that on 31.10.2017, a Division Bench of this Court passed the following order:- "As a last opportunity, learned Addl. Government Advocate appearing for the State-opposite parties prays for and is granted two weeks further time to file counter affidavit and petitioner shall have a week thereafter to file rejoinder affidavit..' List this matter after three weeks before the assigned Bench." In spite of specific direction of this Court by order dated 31.10.2017, no counter affidavit is filed. Hence, prayer for grant of time to file counter affidavit cannot be accepted and this matter is heard in absence of counter affidavit on behalf of the State-opposite parties. 5. Mr. Muduli, learned Additional Government Advocate, submits that sub-rule (3) of Rule 61 of the Rules empowers the Assistant Settlement Officer to issue notices at the initiation of the proceeding, if he is so authorized. 5. Mr. Muduli, learned Additional Government Advocate, submits that sub-rule (3) of Rule 61 of the Rules empowers the Assistant Settlement Officer to issue notices at the initiation of the proceeding, if he is so authorized. Further, in absence of any instruction he is not in a position to make any submission as to whether the proceeding was initiated after publication of the final ROR or beforehand. He, however, submits that in absence of any material to the contrary, it cannot be held that the proceeding for bifurcation of village was bad in law. 6. Heard learned counsel for the parties and perused the record. For convenience, Rule 61 of the Rules, which is relevant for the purpose of discussion, is reproduced hereunder. 61. Procedure for declaration of villages.- (1) Where proceedings in pursuance of an order made under Sections 11, 18 or 36 are in progress, the Settlement Officer may, if he deems fit, start proceedings for effecting changes in the boundaries of an existing village or for constitution of a new village: Provided that when a portion of the village has been declared or will be declared to be a reserved forest under the provisions of Section 20 of the Indian Forest Act 16 of 1927 of Section 16 of the Madras Forest Act, 1882 (Madras Act 5 of 1882) or when a portion of the village has been deemed to be a reserved forest under Section 20A of the Indian Forest Act 16 of 1927. The changes in the boundaries of the village shall be effected according to such declaration or the deeming provisions, as the case may be, and it shall not be necessary to start proceedings under this rule for affecting such changes. (2) Such proceedings shall be started before attestation of the draft record-of-rights or fixation of fair and equitable rent, as the case may be. (3) At the commencement of the proceedings, the Settlement Officer or any other officer authorised by him in this behalf, shall issue a general notice in Form No. II inviting objections to the proposed. changes in the boundaries of an existing village, or to the constitution of a new village, as the case may be, such notice shall be published in the manner provided in Rule 6 and a copy of the notice shall be transmitted to the Collector. changes in the boundaries of an existing village, or to the constitution of a new village, as the case may be, such notice shall be published in the manner provided in Rule 6 and a copy of the notice shall be transmitted to the Collector. (4) Objections, if any, received within the period specified in the notice, which shall not be less than thirty days from the date of service of the notice, shall be considered by the Settlement Officer along with opinion of the Collector, if any, received during the said period. He shall then forward his proposals with a summary of the objections and opinion of the Collector, if any, to the Board of Revenue for orders: Provided that when the proceedings are conducted by an officer other than the Settlement Officer under Sub-rule (3), the objections and opinions of the Collector, if any, shall be considered by him and he shall thereafter submit his proposals to the Settlement Officer who shall formulate and forward his proposals with a summary of objections and opinions of the Collector to the Board of Revenue for orders. (5) On receipt of the proposals from the Settlement Officer, ' the Board of Revenue may sanction it with or without amendment of may return the same for revision by the Settlement Officer or for further enquiry: Provided that before passing final orders on the proposal of the Settlement Officer, the Board of Revenue may, if it considers necessary give a hearing to any person or persons who have filed objections in response to the notice under Sub-rule (3). (6) The attestation of the draft record-of-rights and fixation of fair and equitable rent, as the case may be, shall be taken up only after giving effect to the orders of the Board of Revenue in the map and the draft record-of-rights or the record-of-rights, as the case may be. (7) The aforesaid powers of the Settlement Officer shall be exercised by the Collector when proceedings in pursuance of an order made under Section 11, 18 or 36 are not in progress : Provided that no notice required to be issued to the Collector in Sub-rule (3) shall be necessary in such a case. (7) The aforesaid powers of the Settlement Officer shall be exercised by the Collector when proceedings in pursuance of an order made under Section 11, 18 or 36 are not in progress : Provided that no notice required to be issued to the Collector in Sub-rule (3) shall be necessary in such a case. Provided further that on receipt of orders of the Board of Revenue the Collector shall transmit a copy thereof to the Tahasildar for effecting necessary corrections in the map and record under Chapter IV of these rules." 7. So far as the first submission of Mr. Dash is concerned, notice under Annexure-1 has been issued by the Assistant Settlement Officer, but that by itself does not make the initiation of the proceeding without jurisdiction in absence of any material to the effect that he was not so authorized. However, his submission to the effect that sub-rule (2) of Rule 61 of the Rule's has not been complied with, which is mandatory in nature, has some force. Prima facie, it appears that final ROR in respect of Village Baladia Nuagaron was published on 28th June, 1991 (Annexure-5) and notice for bifurcation of the village was issued on 28.01.2000. If that be so, then initiation of proceeding for bifurcation of village Baladia Nuagaon appears to have been undertaken much after the publication of the final ROR in respect of the said village. Further, Sub-rule (6) provides that final ROR-in respect of the Village can only be published after giving effect to the order of Board of Revenue. The impugned order under Annexure-2 does not reveal that as to when the proceeding was initiated and what necessitated initiation of such proceeding for bifurcation of the village for creation of a new revenue village, namely, 'Darudhipa'. In absence of, any such material, this Court also is not in a position to come to a. conclusion that bifurcation of the village was in fact necessary and it was done in accordance with law. Further, there is no material on record to show that any opportunity of hearing was given to the petitioners, who had filed objections pursuant to the notice issued dated 28.01.2000 (Annexure-1). This Court in the case of Suryamani Mohanty and others Vs. Secretary to Government of Orissa, Panchayatiraj Department and others, reported in 2000 (II) OLR 177 held as follows: "3. This Court in the case of Suryamani Mohanty and others Vs. Secretary to Government of Orissa, Panchayatiraj Department and others, reported in 2000 (II) OLR 177 held as follows: "3. In the above background of the" procedural requirements, the present case is to be judged. There is no dispute that objections were filed on behalf of the present petitioner. However, the Collector had not furnished any opinion. It further appears that the Commissioner has not given any opportunity of hearing to the petitioners who had filed objection. Even though the proviso contemplates that the Board of Revenue may, if it considers necessary, give a hearing, principles of natural justice require that such opportunity should be given to the objectors unless, for weighty reasons, it is decided by the Board of Revenue not to afford such opportunity of hearing. Since in the present case, such opportunity has not been given and opinion of the Collector has not been elicited, I deem it just and proper to remand the matter to the Commissioner. Land Records and Settlement (opposite party No. 2) for fresh disposal. The Commissioner shall obtain necessary opinion from the Collector and give opportunity of hearing to the petitioners who have filed objection and thereafter dispose of the matter in accordance with law without being influenced by any observations in the earlier order. In order to facilitate early disposal of the matter, the present petitioners are directed to appear before the Commissioner through lawyer or in person on 1st August, 2000." Thus, it is apparent that although proviso to sub-rule (5) to Rule-61 of the Rules provides that Board of Revenue, if considers necessary, may give an opportunity of hearing to the persons, who have filed objection, but doctrine of audi alteram partem is a sine qua non before passing any final order by the Board of Revenue. 8. The Rules make clear that the proceeding for bifurcation of the village can be initiated by the Settlement Officer keeping in mind the requirement prescribed in Rule 61. Further, sub-rule (2) provides that such proceeding has to be initiated prior to attestation of the draft ROR, but the certified copy of the ROR of the village Baladia Nuagaon annexed to the writ petition as Annexure-5, prima facie discloses that notice for bifurcation of the village was issued much after the publication of the final ROR. Further, sub-rule (2) provides that such proceeding has to be initiated prior to attestation of the draft ROR, but the certified copy of the ROR of the village Baladia Nuagaon annexed to the writ petition as Annexure-5, prima facie discloses that notice for bifurcation of the village was issued much after the publication of the final ROR. Further, it is not clear from the impugned order that the Assistant Settlement Officer was duly authorized to. issue notice under Annexure-1 and the objectors (petitioners) were given any opportunity of being heard. The impugned order under Annexure-2 is conspicuously silent about adherence of the procedure prescribed. From the entire episode, it appears that the functionaries of the Government have acted very casually in a matter which has a serious repercussion. 9. In that view of the matter, impugned order under Annexure-2 is not sustainable and the same is set aside. The matter is remitted back to the Commissioner, Land Records and Settlement, Odisha, Cuttack to hear the matter afresh giving opportunity of hearing to the parties following due procedure of law. The parties, if so advised, may also file their objections/written statements along with documents in support of their case. 10. Accordingly, the writ petition is allowed to the extent indicated above. Issue urgent certified copy of the judgment on proper application.