Allowed

Josamani Sahoo v. a.D.M.,Bhubaneswar

Orissa HC20 Apr 2021OJC/14897/2001

Case brief

AI extract

What is this about?

Petitioners sought to set aside an order cancelling a homestead lease granted to their grandfather. The High Court allowed the petition, holding that the cancellation was based on the Authority's procedural failures—such as delayed enquiry and lack of proclamation—rather than the applicant's fraud or misuse of land.

What did the court decide?

The impugned order cancelling the lease was set aside and the writ petition allowed with no order as to costs.

Josamani Sahoo Vs a.D.M.,Bhubaneswar — Property and Title | Orissa HC (2021)

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IN THE HIGH COURT OF ORISSA AT CUTTACK

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O.J.C. No.14897 of 2001

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Josamani Sahoo and others

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Petitioners

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M/s. Susanta Kumar Dash and Associates

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-versus-

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Additional District Magistrate, …. Opposite Parties Bhubaneswar and another

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Mr. P.K. Muduli

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Additional Government Advocate

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CORAM:

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THE CHIEF JUSTICE JUSTICE B.P. ROUTRAY

ORDER

Order No.

20.04.2021

This matter is taken up by video conferencing mode.

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This petition is directed against an order dated 14^th August, 1991 passed by the Additional District Magistrate (ADM), Bhubaneswar in Revision Case No.47 of 1990 whereby an earlier order dated 23^rd December, 1979 by the Tahasildar, Bhubaneswar in Waste Land Lease Case No.1408 of 1979 settling the Government land in favour of father of the Petitioner Nos.2 to 7 was cancelled.

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The present petition was listed on 21^st November, 2001. While issuing notice, this Court directed status quo to be maintained with

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regard to possession of the Petitioners over the property. That status quo order has continued till date.

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The background facts are that the land measuring Ac 150 decimals of Plot No.15 under Khata No.414 in Mouza Dumduma was settled by the Tahasildar, Bhubaneswar in favour of Pandaba Charan Sahoo, husband of Petitioner No.1 and father of Petitioner Nos.2 to 7 for homestead purpose in W.L. Case No.1408 of 1979. It was made on the basis of self-declaration by Sri Sahoo that he was a landless person and that neither he nor any of his family members possesses any agricultural or residential site at Bhubaneswar. It is stated that prior to the allotment of the land, it was ensured that there was no violation of the law and that the applicant was in fact a ‘homesteadless’ person.

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Pursuant to the order dated 22^nd December, 1979 settling the land in favour of husband of Petitioner No.1, he deposited the salami on 7^th March, 1980 and an entry was made in the Record of Rights (RoR) in his favour in respect of the Plot under Khata No.213/42, Plot No.15/1253 with Kisam ‘Gharabari’ and it is stitiban status with the condition that it could not be transferred within ten years from the date of issuance of the patta/lease. It is stated that since then they have continued paying the land revenue at the rate reflected in Jamabandi Register.

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All of a sudden, on 18^th July, 1990 late Shri Sahoo received a notice asking him to explain on what ground the lease had been

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granted in his favour and that it was vitiated by fraud/material irregularity of procedure. It is stated that Shri Sahoo submitted a reply.

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The Petitioners state that they were not aware of the impugned order passed on 14^th August, 1991. Sri Sahoo expired on 26^th February, 1999 and it was only thereafter upon making an enquiry the Petitioners came to know of the impugned order.

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A perusal of the impugned order reveals that the reasons adduced by the ADM, Bhubaneswar for cancelling the lease in favour of the late husband of the Petitioner No.1 were as under:

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“(i) According to Rule 3(3) of O.G.L.S. Rules, 1974 enquiry in respect of the application is to be caused within a period not exceeding 15 days from the date of receipt of the application. But in the case this provision has been violated since the application has been received on 24.10.79 whereas enquiry has been caused on 23.12.79 by the Amin Sri Govindachandra Biswal.

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(ii) Rule 3(4) of the said Rules contemplate that proclamation shall be issued if after enquiry the Tahasildar or any other authorized office is of the opinion that the lease may be granted. But in the instant case proclamation has been published on 7.11.79 i.e. before receipt of the enquiry report dt. 23.12.79 from the Amin.

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(iii) The proclamation has not been published by beat of drum or a copy thereof sent to the concerned G.P. as required under Rule 3(5) of the said rules.

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(iv) The enquiry report of Amin dtd. 23.12.79 does not throw any light on the financial status of the O.P. though the O.P. has stated in his written statement that he is a govt. servant.

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(v) It has not been ascertained an enquiry of the O.P. is landless and if he has no other profitable means of livelihood at his native place in order tobe eligible for settlement of land under the act and rules in force. The O.P. has filed an affidavit on 22.10.79 stating therein that neither he nor any of his family members possesses any agricultural or residential site at Bhubaneswar and he is also landless.

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(vi) The settlement is made without observance of the provisions of Section 3(2) of the Act wherein it is provided that 7% of the Govt. land should be settled in favour of the S.T. and S.C. people of the village.

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(vii) The order of priority in settlement of govt. land as envisaged in section 3(3) of the Act has been violated.

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(viii) Fees as required under rule-4 of the said rules have not been realised.”

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In the considered view of the Court, none of the above reasons appear to be germane or rational. For instance, the failure to initiate an inquiry within fifteen days from the date of receipt of the application is not on account of applicants but on account of the authority in question. Also the act of publishing the proclamation was not under the control of the applicant.

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The principal reason for cancelling the lease appears to be that no inquiry was conducted to ascertain that the applicant was

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landless. This again appears to be a negative reason for which the applicant cannot be held responsible. From his point of view, he had made a declaration that he was a homesteadless person and had no property in Bhubaneswar. It would be unfair to cancel the lease only because the authority failed to make enquiries. This cannot be said to be a case of ‘fraud’ or ‘material irregularity’ on account of any act of omission or commission on the part of the applicant.

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Considering that the case was sought to be reopened after a long period of over ten years, it was imperative for it to be based on some tangible material in the form of documentary evidence. This is not one of those cases where the land was put to use for a purpose different from that for which it was granted. In other words, it is nobody’s case that the land which was given on lease for homestead purpose in the instant case was used for a purpose other than as a homestead. There does not appear to be any convincing reason or any material on the basis of which the impugned order of cancellation of lease could be justified.

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For the aforementioned reasons, the Court finds the impugned order to be unsustainable in law and it is accordingly set aside. The writ petition is allowed in the above terms, but in the circumstances, with no order as to costs.

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As the restrictions due to resurgence of COVID-19 situation are continuing, learned counsel for the parties may utilize a

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printout of the order available in the High Court’s website, at par with certified copy, subject to attestation by the concerned advocate, in the manner prescribed vide Court’s Notice No.4587, dated 25^th March, 2020 as modified by Court’s Notice No.4798, dated 15^th April, 2021.

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S.K. Jena/P.A.

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(Dr. S. Muralidhar)
Chief Justice
(B.P. Routray)
Judge

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Josamani Sahoo v. a.D.M.,Bhubaneswar

Case brief

What is this about?

What did the court decide?

Josamani Sahoo v. a.D.M.,Bhubaneswar

Case brief

What is this about?

What did the court decide?

What the court decided

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