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2019 DIGILAW 520 (ORI)

Binod Behera v. Tahasildar, Oupada

2019-08-13

A.K.RATH

body2019
JUDGMENT : A.K. Rath, J. This petition challenges the order dated 16.7.2014 passed by the Tahasildar, Oupada, opposite party under Sec.8(1)(c) of the Orissa Land Reforms Act ("OLR Act"), whereby the opposite party has evicted the petitioner from the land in question and held that he has lost the rayati status. 2. Shorn of unnecessary details, the short facts of the case are that the petitioner is the owner of Ac.0.55 dec. of land appertaining to Khata No.543/191, Plot No.3662/3760 of Mouza Badapokhari in the district of Balasore. He has prepared bricks over the land. In TMC No.15 of 2013-2014, opposite party levied the royalty and water tax of Rs.3238/-, surface rent Rs.4/-, dead rent Rs.41/-, penalty Rs.2000/- (Total Rs.5283/-). He paid the same on 7.2.2014, vide Annexure-3. While the matter stood thus, the opposite party initiated Case No.7 of 2014 on the basis of the report of the R.I that the petitioner has used the land for non-agricultural purpose in contravention of Sec.8(1)(c) of the OLR Act. Notice to show cause was issued to him. He did not file any reply. By order dated 16.7.2014, opposite party evicted him from the land and held that he has lost his rayati status. 3. Opposite party has filed a counter affidavit stating that the petitioner has unauthorisedly constructed brick kiln over Ac.0.55 dec. appertaining to Khata No.643/191, Plot No.3662/3760, Mouza Badapokhari in the district of Balasore in contravention of Sections 3 and 5 of the Orissa Minor and Minerals Concession Rules,2004. Penalty of Rs.5283/- was imposed on him. The same was realized on 7.2.2014. Again the petitioner constructed brick kiln after a gap of five months in contravention of Sec.8(1)(c) of the OLR Act. Notice to show cause was issued to him, but he failed to submit any reply. Since June, 2015, he has constructed the brick kiln for commercial purpose besides using the bricks for construction of his own house. The merger of the suit land in Government Khata will ensure proper utilisation of fertile agricultural land for agricultural purpose and dissuade others who use agricultural land for non-agricultural purpose. 4. Assailing the order, Mr. J.K. Mishra-2, learned counsel for the petitioner submits that the petitioner has prepared the bricks over his land for construction of his house. He is a poor man. In TMC No.15 of 2013-14, penalty of Rs.5283/- was imposed on him. He paid the same. 4. Assailing the order, Mr. J.K. Mishra-2, learned counsel for the petitioner submits that the petitioner has prepared the bricks over his land for construction of his house. He is a poor man. In TMC No.15 of 2013-14, penalty of Rs.5283/- was imposed on him. He paid the same. Again Case No.7 of 2014 was initiated against him. He has not prepared the bricks after imposition of penalty. 5. Per contra, Ms. S. Mishra, learned ASC submits that the petitioner has prepared bricks over the land. Penalty of Rs.5283/- was imposed on him. Again he had prepared bricks over the land for commercial purpose. She further submits that the Revenue Inspector visited the spot on 8.6.2015 and submitted the report to the Tahasildar stating that 25000 bricks were stacked in the land. The petitioner has converted agricultural land to non-agricultural purpose without prior permission of the competent authority. In view of the same, opposite party has evicted him from the land and held that he has lost the rayati status. There is no infirmity in the impugned order. 6. Clause (c) of sub-section (1) of Sec.8 of the OLR Act stipulates : "8. Eviction of raiyats - (1) Subject to other provisions of this Act and notwithstanding any contract, custom or usage or decree or order of any Court, a raiyat shall be liable to eviction only if he - XXX XXX XXX (c) has used of the land for any purpose other than agriculture. 7. On a bare reading of clause (c) of sub-section (1) of Sec.8 of the OLR Act, it is evident that a raiyat shall be evicted, if has used the land for any purpose other than agriculture. 8. Reverting to the facts of the case, this Court finds that the R.I had submitted the report to the Tahasildar, Oupada, opposite party on 8.6.2015, vide Annexure-C, stating that the brick kiln was constructed by the petitioner unauthorisedly in the year 2012-13 for which penalty was imposed on him. The same was realized from him. The report further reveals that the petitioner is an agriculture labourer. But then, there is no material on record that the petitioner has prepared bricks over the land after 2012-13. The report does not reveal that 25000 bricks has been prepared in the year 2013-14. The same was realized from him. The report further reveals that the petitioner is an agriculture labourer. But then, there is no material on record that the petitioner has prepared bricks over the land after 2012-13. The report does not reveal that 25000 bricks has been prepared in the year 2013-14. Thus in the absence of any material on record that the petitioner has prepared the bricks over the land after the penalty was imposed, the stand of the opposite party that the petitioner had prepared the bricks since 2015 for construction of bricks for commercial use, has no legs to stand. 9. In Commissioner of Police, Bombay v. Gordhandas Bhanji, AIR 1952 SC 16 , Justice Vivian Bose in his inimitable style held that the public orders, publicly made, in exercise of a statutory authority cannot be construed in the light of explanations subsequently given by the officer making the order of what he meant, or of what was in his mind, or what he intended to do. Public orders made by public authorities are meant to have public effect and are intended to affect the acting and conduct of those to whom they are addressed and must be construed objectively with reference to the language used in the order itself. 10. A belated attempt has been made to justify the order passed by the opposite party by filing a counter affidavit in the absence of any material on record. The same cannot be. 11. In view of the foregoing discussions, the impugned order is quashed. The petition is allowed.