Allowed

M/S Acrux Realcon Pvt.Ltd. v. State of Orissa

Orissa HC11 Dec 2019WP(C)/20269/2017

Case brief

AI extract

What is this about?

The High Court allowed two writ petitions against an order cancelling government land leases. The court held that the revisional authority lacked jurisdiction due to inordinate delay and absence of fraud, voided the order for applying repealed procedural rules, and set it aside for violating natural justice by not hearing the affected allottee.

What did the court decide?

Impugned orders in Lease Revision Case Nos. 1 to 13 of 2015 cancelling leases were set aside.

M/S Acrux Realcon Pvt.Ltd. Vs State of Orissa — Writ and Judicial Review | Orissa HC (2019)

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IN THE HIGH COURT OF ORISSA, CUTTACK

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W.P.(C) No. 20269 Of 2017

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An application under Articles 226 and 227 of the Constitution of India.

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M/s. Acrux Realcon Pvt. Ltd. ....... Petitioner -VersusState of Odisha and others ....... Opposite parties

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W.P.(C) No. 5634 of 2019

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Pabitra Mohan Samal ....... Petitioner -VersusState of Orissa and others ....... Opposite Parties For Petitioner: - Mr. Budhadev Routray (in W.P.(C) No. (Senior Advocate) 20269 of 2017) For Petitioner: - Mr. Sourya Sundar Das (in W.P.(C) No. (Senior Advocate) 5634 of 2019) For Opp. Parties: - Mr. Kishore Kumar Misra Addl. Govt. Advocate -----------------------

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P R E S E N T :

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THE HONOURABLE KUMARI JUSTICE SANJU PANDA

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AND

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THE HONOURABLE MR. JUSTICE S.K. SAHOO

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Date of Hearing: 27.11.2019 Date of Judgment: 11.12.2019

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S.K. Sahoo, J. M/s. Acrux Realcon Pvt. Ltd. (hereafter ‘the petitioner-company’) in W.P.(C) No.20269 of 2017 has challenged the legality, validity and propriety of the impugned order dated 07.07.2017 (Annexure-1) passed by the Additional District Magistrate, Bhubaneswar (opposite party no.3) in Lease Revision Case No.01 of 2015 in cancelling the lease in respect of the case land situate in Mouza Gothapatna in exercise of power conferred under section 7-A(3) of the Orissa Government Land Settlement Act, 1962 (hereafter ‘O.G.L.S. Act’) on the ground of material irregularities, legal deformity and procedural lapses.

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The petitioner Pabitra Mohan Samal in W.P.(C) No.5634 of 2019 has also challenged the self-same order which the petitioner-company in W.P.(C) No.20269 of 2017 has challenged, inter alia, the orders dated 08.11.2017 passed in Lease Revision Case Nos.02 of 2015 to 13 of 2015 by the Additional District Magistrate, Bhubaneswar in cancelling the lease in respect of the different plots of land situate in Mouza

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Gothapatna in exercise of power conferred under section 7-A(3) of the O.G.L.S. Act.

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Since the orders in different lease revision cases have been passed by the same authority exercising the same power on similar grounds and both the matters are connected to each other, with the consent of learned counsel for the parties, those were heard analogously and disposed of by this common judgment.

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The case of the petitioner-company in W.P.(C) No.20269 of 2017 is that it is a private limited company under the provisions of the Companies Act, 1956 having its registered office at Patia, Bhubaneswar which is engaged in the business of construction and real estate development activities. In the daily newspaper ‘Sambad’ dated 12.06.2015, a public notice was published inviting public objection by 25.07.2015 against the decision to transfer the lands mentioned in the said notification to the Government Khata which was issued by the Additional District Magistrate, Bhubaneswar (opposite party no.3). Pursuant to such notice, the petitioner-company made inspection as one of the items of landed properties mentioned in the aforesaid public notice belonged to it. After inspection, the petitionercompany procured certified copies of the documents from which

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it came to light that the Additional District Magistrate, Bhubaneswar had initiated a proceeding under section 7-A(3) of the O.G.L.S. Act asking for show cause as to why the lease in respect different plots of land in Mouza Gothapatna should not be cancelled for alleged violation of conditions and to be more specific for allegedly transferring the leasehold property to others. It is the specific case of the petitioner-company that one Netrananda Dehury applied for lease of Government land measuring an area Ac.1.00 decimal on 05.06.1973 and accordingly, a lease case vide W.L. Case No.124 of 1973 was instituted and the concerned R.I. was directed to submit the enquiry report along with the sketch map. Pursuant to the direction of the Tahasildar, the R.I. caused an enquiry and submitted the report stating therein that the applicant was a landless Adibasi and that he might be granted lease for an acre of land specifically mentioning the Khata, Plot, Kissam etc. Thereafter, the Tahasildar issued a public notice inviting objection from the local public. On 25.07.1973, lease was lawfully sanctioned vide W.L. Case No.124 of 1973 by following the due process of law, whereafter the said Netrananda Dehury became the lawful and absolute owner in possession of such lease property without any hindrance from any quarters. On

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26.05.1988, permission of Revenue Officer in Rev. Misc. Case No.32 of 1998 in D.R. No.610 was granted to the aforesaid Netrananda Dehury under section 22(1)(b) and (4) of the Odisha Land Reforms Act, 1960 (hereafter ‘O.L.R. Act’) for transfer of the leasehold land. On 06.06.1988, Netrananda Dehury after obtaining valid permission from the Revenue authorities, in order to meet his urgent requirements sold away Ac.0.765 decimals of the leasehold land by way of registered sale deed no.5317 dated 06.06.1988 in favour of one Sri Aruna Mohanty who then possessed the property lawfully as the absolute owner. On 29.01.1996, this Court in O.J.C. No.9449 of 1993 passed an omnibus direction to the State Government regarding enquiry into the matter relating to lease of lands in Bhubaneswar. On 15.10.1998, this Court gave further direction in the said case to the Government to examine whether the cases are covered under section 3-B of the O.G.L.S. Act and to proceed in accordance with the said provision by following due procedure. On 17.12.1999, the Additional District Magistrate, Bhubaneswar after examining the entire case records of W.L. Case No.124 of 1973 directed the Additional Tahasildar, Bhubaneswar (opposite party no.4) vide his letter No.9905 for disposal on assessment on its own merit and in accordance with section 3-B of the

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O.G.L.S. Act in compliance of the order of this Court. On 19.09.2001, the aforesaid Aruna Mohanty sold away different portions of the purchased land in favour of different persons like Manjulata Jena vide registered sale deed no.4969 for an area of Ac.0.195 decimals, Sanjukta Padhiary vide registered sale deed no.4970 for an area of Ac.0.195 decimals, Gangadhar Swain vide registered sale deed no.4971 for an area of Ac.0.130 decimals, Samarendra Nayak vide registered sale deed no.4972 for an area of Ac.0.065 decimals and also in favour of Ranu Biswal vide registered sale deed no.4973 for an area of Ac.0.065 decimals. On 22.06.2002, the Additional Tahasildar, Bhubaneswar initiated a case for resumption of the aforesaid lands which were leased out in favour of Netrananda Dehury in W.L. Case No.124 of 1973 in exercise of powers under section 3-B of the O.G.L.S. Act in terms of the direction of the Additional District Magistrate, Bhubaneswar as per order dated 17.12.1999. On 25.06.2002, notices were issued inviting objections, if any, along with paper publications by the Additional Tahasildar, Bhubaneswar in the said resumption case. On 06.09.2002, the Additional Tahasildar, Bhubaneswar also published Ishtahara in the said case. On 06.10.2002, lease resumption proceeding was dropped after following due process of law by the Additional Tahasildar,

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Bhubaneswar. On 21.04.2011, i.e. after about a decade of the aforesaid statutory exercise in re-examining the lease in favour of Netrananda Dehury in pursuance to the direction of this Court in O.J.C. No.9449 of 1993 and after statutorily adjudicating the same to be lawful and non-resumable as contemplated under section 3-B of the O.G.L.S. Act, transfers were effected in respect of the leasehold property by the aforesaid purchasers of Aruna Mohanty in favour of the petitioner-company. All the aforesaid transfers before the dropping of the proceeding under section 3-B of the O.G.L.S. Act and the subsequent transfers by the earlier transferees became valid under the law in terms of section 43 of the Transfer of Property Act. The petitionercompany then applied for conversion of the purchased lands from agricultural to homestead under section 8-A of the O.L.R. Act. The Tahasildar after accepting the requisite fees directed for conversion and intimated the same to the Settlement Authority as settlement operation had already begun. Thereafter the petitioner-company applied for mutation before the concerned Asst. Settlement Officer (opposite party no.5) as the Tahasildar, Bhubaneswar had no power of mutation during settlement operation. The Asst. Settlement Officer on receipt of the aforesaid motion for mutation initiated Objection Case Nos.3173

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of 2012, 3176 of 2012, 3178 of 2012, 3174 of 2012 and 3177 of 2012 in respect of respective purchases of the petitionercompany and dropped the proceeding solely on the ground that the property has already been recorded in the Government Khata. Accordingly, the petitioner filed W.P.(C) No.22095 of 2014, W.P.(C) No.22096 of 2014, W.P.(C) No.22097 of 2014, W.P.(C) No.22098 of 2014 and W.P.(C) No.22099 of 2014 challenging the aforesaid undated order passed by the Asst. Settlement Officer in each case. This Court by its order dated 05.05.2016 taking cognizance of the glaring illegality quashed the aforesaid order of the Asst. Settlement Officer. On 11.08.2014, this Court in the case of Hadu Paltasingh -Vrs.State of Orissa in W.P.(C) No.12641 of 2012 observed that several other cases of fraud were committed in the grant of leases which came to light for which the Collector, Khurdha was directed to conduct a review in respect of any fraud in the grant of leases and the Additional District Magistrate, Bhubaneswar initiated the impugned proceeding under section 7-A(3) of the O.G.L.S. Act. The initiating authority initiated the impugned proceeding during subsistence of the order for maintenance of status quo passed by this Court in the aforesaid writ petitions. The petitioner-company filed W.P.(C) No.6905 of 2016

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challenging the very initiation of the impugned proceeding and this Court remitted the matter back to the Additional District Magistrate, Bhubaneswar to adjudicate the matter afresh. Thereafter, the Additional District Magistrate, Bhubaneswar noticed the petitioner-company and after appearance, the petitioner-company urged that the records which were not produced before this Court should be made available for proper adjudication. The Additional District Magistrate, Bhubaneswar asked the Tahasildar, Bhubaneswar to produce the records who replied that the records were not traceable. Accordingly, the Additional District Magistrate, Bhubaneswar disposed of Lease Revision Case No.01 of 2015 vide impugned order dated 07.07.2017 under Annexure-1 in allowing the revision case and rejecting the objection of the petitioner-company relating to the maintainability of the proceeding and also cancelling the lease of the case land in favour of the lessee.

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The case of the petitioner Pabitra Mohan Samal in W.P.(C) No.5634 of 2019 is that in pursuance to an advertisement issued by the petitioner-company, the petitioner not only verified the title of the land in question but also other certificates granted by different statutory authorities for construction of a residential project called Acropolies which is a

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multi-storied apartment located in village Gothapatana under Bhubaneswar Tahasil in the district of Khurda and having been fully satisfied about validity of the title and technical feasibility of the said apartment, applied for allotment of a 3 BHK flat and paid necessary security money and also paid the entire money phase wise and after payment of the dues, the petitionercompany executed the sale deed on 30^th November 2012 in favour of the petitioner and accordingly possession of Flat No.H112 of area 1414 sq. ft. in the 1^st floor was handed over to the petitioner way back on 22.03.2014 and the petitioner came to possess the said building and residing there since 2014. The petitioner came to know that the Additional District Magistrate, Bhubaneswar in exercise of the power conferred under section 7- A(3) of the O.G.L.S. Act has settled the land over which the building was constructed in favour of the Government in Lease Revision Case Nos.1 to 13 of 2015 without hearing the petitioner who was a necessary party to such cases. By the order of the Additional District Magistrate, the right of the petitioner over the said land was taken away behind his back by cancelling the lease and returning it to the Government khata. It is the further case of the petitioner that the petitioner was a bonafide allottee and without impleading him as a party, the Additional District

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Magistrate has passed the impugned orders and due to passing of such orders, the petitioner would be deprived of getting the title over the flat in question, irrespective of execution of sale deed in his favour even after making payment of entire money to the builders. It is the case of the petitioner that being an affected person pursuant to the orders passed by the Additional District Magistrate in different lease revision cases, he was a necessary party to all the revision cases but without impleading him as party, the impugned orders have been passed and thereby the right of the petitioner has been taken away in his absence which amounts to violation of principle of natural justice for which the impugned orders are liable to be set aside. It is the further case of the petitioner that the lease was granted in favour of the original lessee strictly on the basis of the O.G.L.S. Act and Rules framed thereunder and there is no infirmity in the order of the O.E.A. Collector in granting lease in favour of the original lessee and there is inordinate delay in initiating the proceeding under section 7-A(3) of the O.G.L.S. Act by the Additional District Magistrate and in view of the statutory bar coupled with 3^rd party right, the impugned orders are also unwarranted in the eye of law.

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The Additional District Magistrate, Bhubaneswar in the impugned order dated 07.07.2017 under Annexure-1 in W.P.(C) No.20269 of 2017 has been pleased to formulate two points i.e. (i) whether Lease Revision Case No.01 of 2015 is maintainable? (ii) if so, then, is there any mistake of fact, fraud, violation of procedure in the process of the lease?

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Taking into account the orders of this Court passed in Hadu Paltasingh (supra) and in O.J.C. No.9449 of 1993, it was held by the Additional District Magistrate that there is no illegality or impropriety in the initiation of the revision proceeding in respect of the case land. It was further held that the case record reveals that the eligibility aspects of the lessee for availing of Government land on lease was examined and verified by the Tahasildar, Bhubaneswar before settlement of one acre of land in the vicinity of Bhubaneswar Municipal Corporation area and no enquiry was conducted either by R.I. or anything has been mentioned by the Tahasildar in the case record in that regard and therefore, the settlement of lease without examination of the above aspects was not proper and also not in conformity with the provision of law. It was further held that nothing has been mentioned in the case record as regards the extent of land possessed by the lessee or whether the lessee was

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a landless or not and therefore, the eligibility of the lessee to avail the land on lease still remains as a question. It was further held that the procedure on proclamation of notice as laid down under O.G.L.S. Rules was not properly adhered to while deciding the lease of the case land in favour of the lessee and that the lease of the case land involves certain material irregularities, legal deformity and procedural lapses and accordingly, the revision case was allowed and the lease of the case land settled in favour of the lessee was cancelled.

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Similar points for adjudication were formulated and similar reasons were assigned in the Lease Revision Case Nos. 02 to 13 of 2015 in cancelling lease of the case lands which are challenged in W.P.(C) No.5634 of 2019.

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Mr. Budhadev Routray, learned Senior Advocate appearing for the petitioner-company in W.P.(C) No.20269 of 2017 contended that the resumption proceeding under section 3-B of the 1962 Act was initiated in respect of the land leased in favour of Netrananda Dehury and as per order dated 06.10.2002, the said resumption proceeding was dropped. It is further contended that the lease was granted way back in 1973 in W.L. Case No.124/73 but the proceeding under 7-A(3) of the O.G.L.S. Act was initiated on 10.04.2015 which was after forty

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two years, which is not permissible in law particularly when third party right had accrued and several orders were passed by different statutory authorities in different proceedings. He argued that the original lessee who was a Scheduled Tribe person, after obtaining permission under section 22(4) of the O.L.R. Act transferred the land by way of sale deed on 06.06.1998. Subsequently by virtue of the sale deed, the transferees made an application under section 8-A read with Rule 12-A of the Odisha Land Reforms (General) Rules, 1965 for conversion of the land in OLR case no.10779 of 2011 and accordingly, the land was recorded as Stitiban status by the competent authority and the Record of Rights (R.O.R.) were corrected. According to Mr. Routray, the impugned order was passed by the A.D.M. relying upon the direction made in the case of Hadu Palta Singh (supra) which was a case of fraud whereas in the case in hand, there is no whisper of fraud. He emphasized that before initiation of proceeding under section 7-A(3), the authority must satisfy itself about the existence of circumstances necessary for exercising such jurisdiction but a bare perusal of order dated 10.04.2015 in Lease Revision Case No.01 of 2015 under Annexure-9 indicates that through the proposal was for initiation of resumption proceeding under section 3-B of the O.G.L.S. Act

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but in the operative portion of the said order, notice was issued requiring the lessee to explain why lease would not be cancelled for violation of the conditions. Under section 7-A(3) of the O.G.L.S. Act which was amended by Orissa Act No. 38 of 1976, no proceeding under that sub-section can be initiated after the expiry of fourteen years from the date of the order which period was lifted vide Odisha Act No.26 of 2013 which came into force on 13.11.2013. He argued that in the instant case, such a power under section 7-A(3) of the O.G.L.S. Act was not available to the Additional District Magistrate since lease was granted in 1973 on the basis of pre-amended Act. While concluding his argument, Mr. Routray contended that when the records in W.L. Case No.565 of 1972 which was the basis of the order passed in W.L. Case No.124 of 1973 was not available, the conclusion arrived at by the Additional District Magistrate in the impugned order under Annexure-1 that the lease of the case land involves certain material irregularities, legal deformity and procedural lapses is totally misconceived. Reliance was placed in the cases of Bata Krushna Nayak -Vrs.- State of Orissa reported in 2010 (I) Orissa Law Reviews 723 , Ram Karan -Vrs.- State of Rajasthan reported in A.I.R. 2014 S.C. 3070 , Sulochana Chandrakant Galande -Vrs.- Pune Municipal Transport

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reported in (2010) 8 Supreme Court Cases 467 , Laxman Kanda -Vrs.- State of Orissa reported in 1991 (II) Orissa Law Reviews 50 and Smt. Shantilata Dei -Vrs.- A.D.M. reported in 1996 (II) Orissa Law Reviews 182 ..

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Mr. Sourya Sundar Das, learned Senior Advocate appearing for the petitioner Pabitra Mohan Samal in W.P.(C) No.5634 of 2019 emphatically contended that the petitioner is residing in the apartment since 2014 and he was a bonafide allottee and therefore, without impleading him as a party in the proceeding and without giving him an opportunity of hearing, the Additional District Magistrate, Bhubaneswar should not have passed the impugned orders in the lease revision cases which amounts to violation of principle of natural justice.

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Mr. Kishore Kumar Misra, learned Addl. Govt. Advocate on the other hand supported the impugned orders and submitted that the Tahasildar had taken recourse to settlement of a big patch of valuable land which situates in the periphery of Bhubaneswar Municipal area in favour of a private individual without examining his eligibility criteria and without even thinking a little on reservation of land for the purpose of expansion of city and future development. It is further argued that since by virtue of Odisha Act 26 of 2013, the period of

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limitation in exercising the suo moto revisional power under section 7-A(3) of the O.G.L.S. Act has been taken away, no fault can be found in the initiation of the proceeding in the year 2015 particularly in view of the orders of this Court passed in Hadu Paltasingh (supra). He placed reliance in the case of State of Orissa -Vrs.Brundaban Sharma reported in 1995 Supp.(3) Supreme Court Cases 249 and submitted that length of time cannot be a factor to refrain from exercising the revisional power and since there is no illegality or infirmity in the impugned orders, this Court in a writ of certiorari should not interfere with the same.

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Adverting to the contentions raised by the learned counsel for the respective parties and after carefully going through the impugned orders and case records, it appears that in W.L. Case No.124 of 1973, the land in question was leased out in favour of one Netrananda Dehury, son of Sukadeb Dehury of village Gothapatana under Chandaka police station in the district of Puri on 25.07.1973 under the provisions of O.G.L.S. Act, 1962 and O.G.L.S. Rules, 1963. Before grant of lease, proclamation was issued, report was called for from the Revenue Inspector who submitted his enquiry report along with the case map indicating therein that the applicant is a member of Scheduled

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Tribe and a landless person and also recommended the case of the applicant for grant of lease. The relevant documents in that respect have been annexed as Annexure-3 and Annexure-4 to W.P.(C) No.20269 of 2017. The learned counsel for the State also produced the records of W.L. Case No.124 of 1973 during hearing of the case. The learned counsel for the petitioner placed different provisions of O.G.L.S. Act, 1962 as well as O.G.L.S. Rules, 1963 which indicate that at the relevant point of time no specific procedure was there relating to grant of lease or the manner of settlement of Government land. It is mentioned in the impugned orders that the lease of case land involves certain material irregularities, legal deformity and procedural lapses. When a pertinent question was put to the learned State Counsel as to which procedure laid down in the aforesaid Act and Rules or any standing orders issued by the Government were violated at the time of grant of lease, no satisfactory reply was given. As it seems, even though there was no specific procedure laid down for grant of lease of Government land then in O.G.L.S. Act, 1962 as well as O.G.L.S. Rules, 1963 but all the same the authorities issued proclamation, called for report from the Revenue Inspector and after submission of enquiry report along with the case map, lease was granted in favour of Netrananda Dehury.

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The Orissa Government Land Settlement Rules, 1974 (hereafter ‘O.G.L.S. Rules, 1974’) came into force on 11.12.1974 which is obviously after grant of lease in the case in hand and in the said Rules, for the first time some procedure were laid down for grant of lease in Rule 3. By virtue of Rule 8 of the said Rules, O.G.L.S. Rules, 1963 was repealed but in view of sub-rule (2) of Rule 8, in spite of such repeal, anything done or any action taken under O.G.L.S. Rules, 1963 was saved. Then the Orissa Government Land Settlement Rules, 1983 (hereafter ‘O.G.L.S. Rules, 1983’) came into force on 06.03.1984 repealing O.G.L.S. Rules, 1974 and in Rule 5 of O.G.L.S. Rules, 1983, a detailed procedure was laid down relating to manner of settlement of Government land. Since in the instant case, the lease was granted prior to the coming into force of O.G.L.S. Rules of 1974 and 1983, no fault can be found with the Tahasildar in granting lease in favour of Sri Netrananda Dehury following certain procedures. The Additional District Magistrate, Bhubaneswar appears to have overlooked the provisions of O.G.L.S. Act, 1962 and O.G.L.S. Rules, 1963 and referring to Rule 5 of O.G.L.S. Rules, 1983 held that the procedure laid down therein have not been followed. When O.G.L.S. Rules, 1983 was not there at the relevant point of time, where is the question of following any

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procedure laid down therein? It reflects total non-application of mind on the part of the Additional District Magistrate while cancelling the lease.

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In the impugned orders, it is mentioned that the case record reveals that the eligibility aspect of the lessee for availing of Government land on lease was not examined and verified by the Tahasildar, Bhubaneswar, however it is mentioned that by virtue of a joint order recorded in W.L. Case No.565 of 1972, lease was sanctioned. The learned Addl. Govt. Advocate submitted that the record of W.L. Case No.565 of 1972 is not available. When the records of W.L. Case No.124 of 1973 produced before us do not indicate any irregularity or illegality in the grant of lease and the other W.L. Case record is not available and the learned Additional Government Advocate has not produced anything to show what was the eligibility criteria prevailing then at the time of grant of lease and how it was flouted, we are not able to accept the view taken by the Additional District Magistrate that the eligibility aspect of the lessee has not been examined.

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The Additional District Magistrate further held that no enquiry was conducted by the R.I. which is contrary to the records inasmuch as the enquiry report of the R.I. is very much

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available in the records of W.L. Case No.124 of 1973. Similarly it is mentioned in the impugned orders that nothing is mentioned in the case record as regards the extent of land possessed by the lessee or whether the lessee was a landless person or not. Such an observation is clearly an error of record inasmuch as it is mentioned therein that the applicant was a landless person apart from the fact that he was a member of Scheduled Tribe.

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It is not in dispute that the lease was granted way

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back in 1973 but the proceeding under 7-A(3) of the O.G.L.S. Act was initiated in the year 2015 i.e. after forty two years. The suo moto power of revision was conferred under section 7-A(3) with the Board of Revenue for the first time in the O.G.L.S. Act, 1962 by way of amendment in the form of the Orissa Government Land Settlement (Amendment and Validation) Act, 1974 which prescribed period of one year for exercise of such power in calling for and examining the records of any proceeding in which any authority subordinate to him has passed an order under the Act for the purpose of satisfying himself as to whether such order was not passed under a mistake of fact or owing to fraud or misrepresentation. The period was enhanced to fourteen years in the year 1976 by virtue of Orissa Act, 38 of 1976 and in the year 1981, by virtue of Act 18 of 1981, in place of Board of

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Revenue, the Collector was conferred with suo moto revision power. No such power was exercised in the case in hand by the prescribed authorities within the time stipulated. In the meantime, third party rights were accrued by virtue of several orders passed by different statutory authorities in different proceedings.

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In the case of Bata Krushna Nayak (supra), it is

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held as follows:-

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“......Further, we find that the original lease was granted long back in 1974 whereas the order of the revisional authority was passed in 1998, i.e., about 24 years after the grant of lease. Under the second proviso to Section 7A (3) referred to above, no proceeding can be initiated after expiry of fourteen years from the date of order granting lease. Since in the instant case, the proceeding under Section 7-A(3) of the OGLS Act was initiated by the revisional authority after 24 years of grant of lease, i.e., beyond the statutory period of limitation prescribed, on that ground also the present writ petition succeeds.”

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In the case of Ram Karan (supra), it is held as

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follows:

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“36. In the present case, no action was taken either by the Vendor or by the State for more

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than 31 years. The sale deed was executed on 12.01.1962 and the land was mutated in the name of the Appellants' predecessor in interest on 10.09.1963. It was after about 31 years, on 06.07.1993 the suit was filed by the Tehsildar, Viratnagar being Case No. 1681 of 1993. In the said suit for the first time an application was filed for appointment of receiver. The said application was rejected by the Assistant Collector, Shahpura vide order dated 1.1.1994 holding that the vendee has been in possession and cultivating the suit land for 32 years.

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In view of the position of law, as noticed above, it is not necessary to see whether the petition for cancellation of mutation was filed on time or not. The decision of this Court in Nathu Ram -Vrs.- State of Rajasthan:(2004) 13 Supreme Court Cases 585 relates to Section 42 of the Act and the transaction made in contravention with the provisions of the said Act. In the said case, similar plea were taken by the parties, having noticed Sub-Section 4(A) of Section 175 and Section 214 of the Act, this Court held that as the transaction was made much beyond the period of 12 years, the proceeding was beyond the period of limitation and, therefore, barred by limitation.

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In State of Punjab and Ors. -Vrs.Bhatinda District Cooperative Milk Union

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Ltd.: (2007) 11 Supreme Court Cases 363 , this Court held that if no period of limitation has been prescribed, statutory authority must exercise its jurisdiction within a reasonable period. However, what shall be the reasonable period would depend upon the nature of the statute, rights and liabilities thereunder and other relevant factors. In the present case, neither any objection was raised nor was any application filed by vendors for restoration of land in their favour. The suit was filed by the Tehsildar, Viratnagar after more than 31 years. No ground is shown to file such petition after long delay nor it was mentioned as to whether the vendors i.e. original landholders made any application for restoration of land in their favour. 39. In view of the matter, we hold that the suit being filed beyond the reasonable period was fit to be dismissed. The Additional Collector rightly dismissed the suit being barred by limitation.”

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In the case of Sulochana Chandrakant Galande

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(supra), the Hon’ble Supreme Court considering section 34 of the Urban Land (Ceiling and Regulation) Act, 1976 which deals with revisional power of the State Government, held as follows:-

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“28. The legislature in its wisdom did not fix a time-limit for exercising the revisional power nor inserted the words "at any time" in Section 34 of 1976 Act. It does not mean that the legislature

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intended to leave the orders passed under the Act open to variation for an indefinite period inasmuch as it would have the effect of rendering title of the holders/allottee(s) permanently precarious and in a state of perpetual uncertainty. In case, it is assumed that the legislature has conferred an everlasting and interminable power in point of time, the title over the declared surplus land, in the hands of the State/allottee, would forever remain virtually insecure. The Court has to construe the statutory provision in a way which makes the provisions workable, advancing the purpose and object of enactment of the statute.

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In view of the above, we reach the inescapable conclusion that the Revisional powers cannot be used arbitrarily at belated stage for the reason that the order passed in Revision under Section 34 of the 1976 Act, is a judicial order. What should be reasonable time, would depend upon the facts and circumstances of each case.”

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In the case of Laxman Kanda (supra), this Court considering section 12 of the Odisha Prevention of Land Encroachment Act, 1972 which deals, inter alia, suo motu revisional power of the Revenue Divisional Commissioner, held as follows:-

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“5.....In view of such overwhelming authorities, we cannot but repel the submission of the learned Additional Government Advocate that because of the wording of Section 12 the power was available to be exercised by the Commissioner at any time. But the question is as to what is reasonable time within which the power should be exercised. Though there is no intrinsic evidence in the Act itself as to what would be the reasonable time for exercise of suo motu power of revision, yet without going into that question it can be held on the authorities of the decisions (supra) that such reasonableness is dependent upon facts and circumstances of each case, including analysis of relevant provisions of the statute concerned. Section 38A of the Orissa Estates Abolition Act is a pari materia statute as regards the vesting of the estates in the State and the settlement thereof, with the intermediaries or recognising the continuance of the tenants under the State. The provision empowers the respective authorities to review any order in a suo motu proceeding within one year from the date of the decision or the order. Even though we do not propose to hold a general view that the power of suo motu revision is to be exercised by the Commissioner under the Act within a year of the date of the order, yet so far as the present case is concerned, we feel that the order of the

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Tahasildar on 18-1-1978 was not available to be varied after lapse of nearly five year and as a matter of fact no move for a reference should have been made by the Collector after expiry of such period. Here is a case where the petitioner, a tribal was in possession of the land since 1945 and even if it is his admission that since 1965 his sons are in possession of the land, it does not alter the position that it is either the petitioner or his sons who are in possession. Ordinarily a person who has continued in possession for such length of time is not to 'be disturbed even if he is not a tribal and that more weightage is to be as attached when the person concerned is one such. We would thus hold that the initiation of the proceeding against the petitioner was erroneous in law and hence cannot be sustained.”

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It is no doubt true that in the case of Brundaban

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Sharma (supra), the Hon’ble Supreme Court held as follows:-

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"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

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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. 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."

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However, Brundaban Sharma (supra) case relates

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to commission of fraud in acquiring the Government land by a person in collusion with the officers.

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It is not in dispute that by virtue of amendment to the O.G.L.S. Act by Odisha Act No.26 of 2013 which came into force on 13.11.2013, the period of limitation of fourteen years prescribed in the Orissa Act No.38 of 1976 for exercising suo motu revisional power by the authority under section 7-A(3) has been lifted. Therefore, as the law stands now, in case of proof of fraud in the grant of lease, length of time cannot be a factor not to exercise the suo motu revision power. Similarly, if the authority is satisfied that there is mistake of fact or misrepresentation or any kind of material irregularity of procedure in the grant of lease, then also length of time would

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not be a bar in exercising such suo motu revisional power. A ‘mistake of fact’ occurs when some fact which really exists is unknown or some fact is supposed to exist which really does not exist. ‘Misrepresentation’ is an act of making a false or misleading statement about something with the intent to deceive or it is an assertion that does not accord with the facts. ‘Material irregularity’ is omission to mention a certain thing required by the statute. (Advanced Law Lexicon, 3^rd Edition by P. Ramanatha Aiyar). However, in the case in hand, there is absolutely no material relating to commission of fraud in the grant of lease. Even though the impugned order indicates regarding material irregularities, legal deformity and procedural lapses, we have already discussed that such vague observation of the Additional District Magistrate is based on no material and it also suffers from non-application of mind by applying a procedural law to cancel the grant of lease which was not in force at the relevant point of time when the original lessee Netrananda Dehury was granted lease. This Court in the case of Hadu Paltasingh specifically took note of the fraud committed in several cases in the grant of lease and accordingly directed Collector, Khurda to conduct a review to find out those cases where lease has been granted fraudulently and to initiate appropriate action against

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such person. Most peculiarly, the Additional District Magistrate without any finding of commission of fraud in the case in hand, cancelled the lease on some other grounds for which there is no clinching material in the lease case records.

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The initiation of the proceeding under section 7-A(3) of the O.G.L.S. Act has also no definite basis. A bare perusal of the order indicates that though the proposal was for initiation of resumption proceeding under section 3-B of the O.G.L.S. Act but in the operative portion of the order, notice was issued requiring the lessee to explain why lease would not be cancelled for violation of the conditions. Therefore, we are of the view that the proceeding has been initiated arbitrarily and illegally. In the case of Smt. Shantilata Dei (supra), it is held as follows:-

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“10. It is well-settled that before exercising a power or jurisdiction vested in an authority, he is to satisfy himself about the existence of circumstance necessitating exercise of said jurisdiction and to record prima face reasons for the same. Mechanical reproduction of the language of the statute in the order or notice is no substitute for recording reasons upon application of mind to the facts of the case. No fishing or roving enquiry without arriving at the required satisfaction is permissible.

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In the present case, the notice and also the order of initiation clearly indicate that the revisional authority merely reproduced the language of the section without any application of mind or without disclosing any definite basis for exercise of the suo motu power. In the circumstance, the initiation of the impugned proceeding is illegal, arbitrary and incompetent.”

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So far as the petitioner Pabitra Mohan Samal in

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W.P.(C) No.5634 of 2019 is concerned, he was a bonafide allottee, but the Additional District Magistrate, Bhubaneswar without impleading him as a party and without giving him an opportunity of hearing passed the impugned orders in the lease revision cases affecting his valuable rights over the properties. The proviso to sub-section (3) of section 7-A of the O.G.L.S. Act clearly indicates that no order in the suo motu revision shall be passed unless the person affected by the proposed order has been given a reasonable opportunity of being heard in the matter. The learned Additional Government Advocate fairly submitted that no notices were issued by the A.D.M. to the petitioner. In the case of Bata Krushna Nayak (supra), it is held as follows:-

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“On perusal of the impugned order, it reveals that the Additional District Magistrate, Bhubaneswar has not made any attempt to

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comply with the requirement of first proviso to Section 7-A(3) of the Act quoted above, by calling for information from the office of the Sub-Registrar as to whether in the meantime the leasehold property or any portion thereof has been alienated by the original lessee to any other party. Had such report been called for, the revisional authority could have ascertained at the petitioner has purchased in the interregnum a portion of the leasehold land from the original lessee and thereupon the Additional District Magistrate, Bhubaneswar should have issued notice to the petitioner, who is the real affected party, in order to comply with the first proviso to Section 7-A(3) of the Act. No such step has been taken by the Additional' District Magistrate before passing the impugned order.

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The legal position which has arisen in this proceeding came up for consideration by this Court in the case of Rama Chandra Pandav v. State of Orissa and Ors. (W.P.(C) No. 14364 of 2006 decided on 9.11.2006) and in the said case this Court held that since the petitioner had purchased a portion of the leasehold land from the original lessee, the order of the Additional District Magistrate was not sustainable as the same was contrary to the provisions of the Orissa Government Land Settlement Act and accordingly, quashed the same.

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Therefore, we are of the view that the impugned orders have been passed without complying the statutory provisions and it is also against principle of natural justice.

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In the case in hand, the resumption proceeding under section 3-B of the O.G.L.S. Act was initiated on 22.06.2002 in respect of the lands which were leased out in favour of Netrananda Dehury in W.L. Case No.124 of 1973 on the ground that leasehold land was used for any purpose other than that for which it was settled but after enquiry, the Additional Tahasildar, Bhubaneswar found that the lessee Netrananda Dehury had already transferred the land and Smt. Sanjukta Padhihary, Smt. Manjulata Jena, Smt. Ranu Biswal, Sri Samarendra Nayak and Sri Gangadhar Swain are the land holders in possession of the suit land who were using it for agricultural purposes and some cashew plants and other fruit bearing trees were found on the land and accordingly as per order dated 06.10.2002, the said resumption proceeding was dropped. Though appeal is provided against any order made under section 3-B of the O.G.L.S. Act, no appeal was preferred and therefore, the order passed in the resumption proceeding attended its finality. The authority initiated suo motu revisional power forty two years after the grant of lease and thirteen years

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after dropping of resumption proceeding and cancelled the lease without any material relating to commission of any fraud. The findings of the Additional District Magistrate that there are material irregularities, legal deformity and procedural lapses are neither factually nor legally correct. There is an error of law apparent on the face of record in utilizing the procedure laid down in O.G.L.S. Rules, 1983 in cancelling the lease which were non-existent at the time of grant of lease in the year 1973 and even principle of natural justice has not been followed in case of the petitioner Pabitra Mohan Samal. When a statute confers any power on any statutory authority, howsoever wide the discretion may be, it cannot be used arbitrarily, mechanically but after due and proper application of mind so that it must stand the test of judicial scrutiny. Thus in view of gross error committed by the Additional District Magistrate, as per the law laid down by the Hon’ble Supreme Court in the case of Syed Yakoob -Vrs.- K.S. Radhakrishnan reported in A.I.R. 1964 S.C. 477 , we are of the humble view that it is a fit case to exercise our certiorari jurisdiction to correct the error in the interest of justice.

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In view of the foregoing discussions, the impugned orders passed by the Additional District Magistrate, Bhubaneswar in Lease Revision Case Nos.1 to 13 of 2015 in cancelling the

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lease are not sustainable in the eye of law and accordingly, the same is hereby set aside.

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In the result, both the writ applications are allowed, however, the parties shall bear their own costs.

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S.K. Sahoo, J.

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S. Panda, J. I agree.

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……………………. S. Panda, J.

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