Dismissed

Bauribandhu Mohapatr v. Collector,Puri

Orissa HC25 Jul 2019WP(C)/6996/2006

Case brief

AI extract

What is this about?

The Orissa High Court dismissed a writ petition seeking to quash orders rejecting landless petitioners' claims for government land settlement. The court held that the authorities correctly found the land objectionable due to prior use and that lawbreakers or ineligible persons cannot claim equitable relief.

What did the court decide?

Petitioners dismissed; impugned orders of Tahasildar, Sub-Collector, and Addl. District Magistrate remain.

Bauribandhu Mohapatr Vs Collector,Puri — Land Acquisition | Orissa HC (2019)

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ORISSA HIGH COURT: CUTTACK

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W.P.(C) NO. 6996 OF 2006

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(An application under Articles 226 & 227 of the Constitution of India)

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Bauri Bandhu Mohapatra and Others ……… Petitioners

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-Vs-

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The Collector, Puri and Others ……… Opp. Parties

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For Petitioners : M/s. Alekh Chandra Mohanty, G.N.Rout, B.Pradhan, and S.Bhagat. For Opp. Parties : Mr. B.P.Pradhan. Addl. Government Advocate,

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P R E S E N T:

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THE HONOURABLE MR. JUSTICE S.K.MISHRA AND THE HONOURABLE DR. JUSTICE A.K.MISHRA

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Date of Hearing: 17.07.2019 : Date of Judgment: 25.07.2019

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Dr. A.K.Mishra, J. Prayer is made to quash Annexures- 1 to 3, i.e., order of the Tahasildar, Puri, dated 31.12.2001 in Urban Lease Case No. 21 of 2001, appeal judgment of the Sub-Collector, Puri, dated 18.09.2002 in O.G.L.S. Appeal No. 1 of 2002 and Revisional judgment dated 31.03.2006 of the Addl. District Magistrate, Puri, in O.G.L.S. Revision No. 4 of 2002. All the above three authorities under Orissa

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Government Land Settlement Act, 1962( hereinafter referred to as the

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O.G.L.S.Act) refused to settle any land recorded as “Anabadi” appertaining to Plot No. 207 under Khata No. 89 of Puri Town in favour of the petitioners.

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With the consent of the parties, the writ petition is takenup for final disposal at the stage of admission.

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The petitioners claim to be the landless persons. They earn their livelihood in selling “Bhoga” in “Badadanda”. Petitioner No.11 Smt. Dali Pradhan D/o. Bauri Bewa is a Green card holder. Father of petitioner No.16, namely, Braja Sundar Mallick died during pendency of revision. They applied for settlement of land in their favour. It was refused. They preferred writ petition in OJC Nos. 3254 of 1999, 7728 of 2000 to 7739 of 2000, 7741 of 2002 and 7752 of 2002. All the writ petitions were disposed of vide judgment dated 13.04.2001 and it was ordered therein:-

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“xxx xxx. Therefore, I think interest of justice would be served by giving a further opportunity to the petitioners to file fresh application regarding settlement of the dispute land. If it is found that the encroachment is unobjectionable and the applicant is otherwise eligible, the question of settlement of land may be considered in accordance with law by the prescribed authority. Such application should be filed on or before 7^th May, 2001 and the same should be considered and disposed of within four months in accordance with law after giving opportunity of hearing and until the matter is disposed of by the appropriate authority, the concerned applicant may not be evicted from the disputed land .”

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The petitioners then filed their applications for grant of lease and it was registered as Urban Lease Case No. 21 of 2001, The Tahasildar, Puri invited objections issuing proclamation. No objection was filed. The Tahasildar found that the site was earmarked as per the Selection Committee Meeting held during the year 1972 for the purpose of revenue staff quarters. The Collector, Puri had registered Alienation Case No. 3 of 1999 and land measuring Ac.0.296 decimals of land has been transferred in favour of the Telecom Department on deposit of Rs.12,50,000/- towards premium and Ac.0.180 decimals of land out of Sabik Plot No. 566(P) under Sabik Khata No. 306 at Balukhand Khasmal-108 was leased out in favour of Smt. Uma Mishra for a period of 90 years w.e.f. 18.12.1984.The Tahasildar also found that the petitioners affidavit filed as per Rule-8(4) of the Orissa Government Land Settlement Rules, 1983 (hereinafter referred to as the O.G.L.S. Rules) was discrepant to their applications as required under G.O. No. 56/66 R.G.E.(GL) 29/72 dated 30.9.1972. Resultantly he rejected their claim of settlement vide order dated 31.12.2001(Annexure-1)

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The petitioners preferred appeal before the Sub-Collector, Puri. The appellate authority added to the ground of Tahasildar that settlement would violate the principle of town planning and hygienic requirements of the city and the land claimed was objectionable. The appeal was dismissed on 18.9.2002 vide Annexure-2.

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The petitioners preferred revision before the Additional District Magistrate, Puri, who found that the petitioners were not eligible

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for sanction of lease for having more than prescribed annual income and land was objectionable in nature. The revision was dismissed vide Annexure-3, dated 31.03.2006.

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This writ petition was filed on 15.05.2006 with above averments, but on the following grounds:-

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(i) As the petitioners were landless and in possession of land in question for last 40 years, the rejection for settlement by the Tahasildar on finding discrepancy between the petitioners statement and the affidavit was an error apparent on record.

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(ii) Appellate authority had not applied judicial mind because the petitioners were discriminated against granting of lease in respect of part of the suit land to a private individual.

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(iii) The Revisional authority was confused by overlooking the provisions enumerated under Section 3 of the O.G.L.S. Act.

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(iv) Petitioner No.4-Laxmidhar Mohapatra and petitioner No.8Brundabann Pradhan have filed civil suits in the court of learned Civil Judge (Jr. Division), Puri, bearing T.S. No. 164 of 2002 & 166 of 2002 and injunction in the form of status-quo has been granted in respect of the suit land.

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6. No rejoinder is filed.

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It is submitted by Mr. Mohanty, learned counsel for the petitioners that all the authorities empowered to settle the land under O.G.L.S. Act having failed to exercise their jurisdiction in compliance

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with this Court’s order and the sanctity of the civil court in granting status-quo order being not considered, this Court should set aside the impugned order under Annexures-1 to 3 and direct for settlement of the land in favour of the landless petitioners.

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Mr. Pradhan, Learned Addl. Government Advocate countered the above submission stating that all the three authorities having exercised their jurisdiction in conformity with law, no more interference is warranted to set aside the impugned orders. Further it is submitted that the petitioners having encroached upon Government land, this Writ Court should be loathful to hear from them on the principle based on equity. For this contention he relied upon a decision of this Court in the case of Chandrakala Garbadu Vs. State of Orissa and Others , reported in 78 (1994) CLT 643.

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Undisputed facts not averred but found in the impugned orders are summed up being relevant for consideration of this case. The petitioners along with others were encroachers and encroachment cases were initiated in which they were removed on 5.3.1999. Thereafter, the suit land was handed over to the Telecom Department. All the three authorities found that the claimed land was objectionable for settlement as the same had been either reserved for construction of revenue staff quarters or has been leased out to Telecom Department. All the authorities also found that the land in question situated in central location. As reflected by the Revisional authority, seven petitioners

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were public servants working in the Government office and their annual income was more than the prescribed limit. The names of those seven petitioners have been mentioned in the revision order. The Revisional authority also found that plotting for providing house sites in Puri, Urban area had not been done as required under Clause(a) of subsec.(1) of Section 3 of the O.G.L.S. Act.

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Having heard learned counsel for the petitioners and having carefully perused the impugned orders, we feel it apposite to reiterate the principle governing jurisdiction invoked under Article 227 of the Constitution of India. In the decision reported in 2015 (Supp.-II) OLR 78, Debesh Das Vrs. State of Orissa & others , it has been held that the power of Superintendence of High Court is limited to see that the subordinate Courts or tribunals function within the limits of their authorities but it cannot correct some errors of fact by examining the evidence and re-appreciating it. The Division Bench has relied upon a earlier decision of this Court in the case of Satyapriya Mohapatra v. Ashok Pandit and others , 59 (1985) C.L.T. 407.

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In the decision reported in 78 (1994) C.L.T. 643, Smt. Chandrakala Garabadu Vs. State of Orissa , their Lordships have reiterated the following words in para-7, which is quoted hereinbelow:-

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“7. xxx xxx. It is specific case of the petitioner

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that she has encroached upon Government land in the municipal area of Bhubaneswar for which eviction case has been initiated and she now wants 8 decimals of Government land in the encroached area so that the

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illegal act committed by her can be legalized. It said that no one shall profit from his own wrong. As the petitioner is admittedly a law-breaker a writ court should be loathful to hear from her on the principle based on equity.”

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In case at hand, some of the petitioners were encroachers and in the encroachment cases they were removed. Seven petitioners were Government servants. All the three authorities have found that the land was objectionable in nature.

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In order to make any settlement under Orissa Government Land Settlement Act, 1962, the Government shall not be deemed to be debarred from exercising amongst others “ to reserve such proportion of the lands as they deem proper for the purpose of being used as house sites or for any communal or industrial purpose or any other purpose whatsoever ” under Sec. 3(1)(a) of the O.G.L.S. Act. A person is defined under Sec.2(b-2) for the purpose of eligibility whose total income of all the members of his family living with him in common mess, does not exceed rupees three thousand and six hundred. Rule-5 of the O.G.L.S. Rules, 1983 provides the manner of settlement of Government land. Form of application has been prescribed. Sub-rule 3 of Rule-5 provides that Tahasildar on receipt of the application shall cause verification to ascertain if the land applied for is free from encroachment of encumbrance or not, and whether the lease can be granted. The Tahasildar can reject the application if in his opinion the

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settlement land cannot be granted because of non-availability of land in question or non-eligibility of the person applying for the land or the like. Under Rule-3 plotting of urban lands reserved for house-sites is required to be done in consultation and subject to approval of the Revenue Divisional Commission. Those plots in urban area are to be divided in to five categories. Rule-3(3)(ii) of the O.G.L.S. Rules, 1983 stipulates one such category for middle class people and those plots are to be settled by the Collector under Rule-8 Sub-rule (4) of the O.G.L.S. Rules,1983. The settlement is to be done in the order prescribed in priority basis and application is to be accompanied by an affidavit.

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In the light of above provisions of the O.G.L.S. Act and Rules, if the impugned orders of the Tahasildar, appellate authority and revisional authority are given a glance, it is found that factual finding that land was not available for settlement has been clearly stated. Such factual finding cannot be interfered with in the writ. No contravention of procedural requirement is shown. The supervisory authority of this Court cannot be invoked to find errors in the finding as to whether lease can be granted in respect of the land applied for. The petitioners were removed from their encroachment and seven of them are Government servants. As observed in Chandrakala Garabadu decision (supra), law breakers are not entitled to equitable relief.

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