Remanded

Sunil Ku.Sahoo v. State of Orissa

Orissa HC23 Jul 2021WP(C)/2524/2015

Case brief

AI extract

What is this about?

The petitioner challenged an order dismissing his objection to record land in his name under the Odisha Survey and Settlement Act. The court held the order void as the authority lacked jurisdiction to override a prior settlement made under lease principles. The matter was remitted for fresh adjudication.

What did the court decide?

The impugned order dismissing the objection case is set aside, and the matter is remitted to the Additional Sub-Collector for fresh consideration in accordance with law.

Sunil Ku.Sahoo Vs State of Orissa — Land Acquisition | Orissa HC (2021)

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IN THE HIGH COURT OF ORISSA AT CUTTACK

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W.P.(C) No.2524 OF 2015

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Sunil Kumar Sahoo

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Petitioner

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Mr. Goutam Mukherji, Senior Advocate along with Mr. A. C. Panda, Advocate

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-versus-

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State of Odisha and others

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…. Opp. Party Mr. S.N. Mishra, Additional Government Advocate

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CORAM: JUSTICE K.R. MOHAPATRA

ORDER

Order No.

23.07.2021

This matter is taken up through video conferencing mode.

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The Petitioner in this writ petition seeks to assail the order dated 15.07.2013 (Annexure-1) passed by the Assistant Settlement Officer, Khordha , Camp at Bhubaneswar, Rental Colony-Opposite Party No.4 in Settlement Rent Objection Case No.7133/6362 of 2013, wherein the objection of the Petitioner was turned down on the ground that the land in question, i.e., Hal Plot No.7833 to an extent of Ac.0.0405 decimals under Hal Khata No.3454 of Shampur Mouza in the district of Khordha (for short ‘the case land’) has been recorded in the Government Khata.

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It is submitted by Mr. Mukherji, learned Senior Advocate appearing for the Petitioner that one Hemanta Kumar Mohapatra was settled with Ac.2.500 decimal of land in village Shampur under lease principles in W.L.L. Case No.200 of 1969 and R.O.R. was accordingly prepared in his name in Khata No.233/38 (Annexure-3). Subsequently, in order to meet his legal necessity, the lessee sold Ac.0.100 decimals to the Petitioner vide Registered Sale Deed No.4828 dated 22.09.2004

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(Annexure-2). Since then, the Petitioner is in possession over the same. During current settlement, the Yadast was prepared in the name of the Petitioner. However, the draft ROR under Section 12 of the Odisha Survey and Settlement Act, 1958 in respect of Hal Khata No.3454, Plot No.7833 Kissam Patita was prepared in the name of the Vendor of the Petitioner for which the Petitioner filed an objection case to record the land in his name, which was registered as Settlement Rent Objection Case No. 7133/6362 of 2013. The Assistant Settlement Officer, without verifying relevant records and observing that there are several irregularities in the lease proceeding, dismissed the Objection Case vide order dated 15.07.2013 (Annexure-1) directing to record the land in the name of General Administration Department, Government of Odisha.

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3.1 It is his submission that the Settlement Authorities have no jurisdiction to sit over the settlement made under the lease principles. Although the Petitioner was present at the time when the matter was taken up, but the Assistant Settlement Officer without considering his case and without giving weightage to the documents submitted by him, dropped the objection case directing to record the land in Government Khata. He further submits that matter involving similar questions of law in W.P.(C) No.8774 of 2019 and batch of cases, disposed of on 18^th June, 2021, this Court at paragraphs-30 and 33 held as follows:-

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30 . Nevertheless, the writ Court under Article 226 of the Constitution can interfere with an order passed by the statutory authority when it acts in a manner not recognized under law. In all these writ petitions, the properties in question were settled under the provisions of the O.G.L.S. Act. The settlement authority also accepted the same and proceeded in the settlement operation up to the stage of Section 11 of the Act, 1958. But, surprisingly the authority under the Act has acted in a different manner and passed the impugned orders without recognizing the

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settlement of the land under the provisions of the O.G.L.S. Act. Law is well settled that the authorities under the Act cannot sit over the settlement made under the O.G.L.S. Act. There is ample provision under the O.G.L.S. Act to cancel the lease granted in favour of beneficiary and in fact, the said settlements had undergone the test of its validity. It appears from the impugned orders that the Assistant Settlement Officer/Addl. Sub-Collector conveniently avoided the settlement made under the O.G.L.S. Act by ignoring the same, which is not permissible under law. The impugned orders have, in effect, resulted in cancelling the lease granted in favour of beneficiary, which is not within the domain of the settlement authorities. My view gets support from the case of Lily Nanda –vs- State of Odisha reported in 2018 (I) OLR 559. As such, the impugned orders are without jurisdiction and the same are void. The action taken or publication made pursuant to the said void orders are also equally ineffective and no nest in the eyes of law. Thus, final publication of the R.O.Rs. under Section 12-B of the Act, 1958 pursuant to the void orders is not sustainable in the eyes of law.

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33. In view of the discussions made above, this Court is of the considered opinion that the settlement authorities have acted without jurisdiction in passing the impugned orders and as such, the final publication of the R.O.Rs. under Section 12-B of the Act, 1958 is also not sustainable in the eyes of law. Accordingly, the impugned orders assailed in the respective writ petitions as well as R.O.Rs. published in pursuance thereof are set aside. The matters are remitted back to the authorities for fresh adjudication of the same in accordance with law giving opportunity of hearing to the parties concerned. Since the parties are litigating to assert their right for a considerable time, the settlement authorities are directed to conclude the proceedings as expeditiously as possible preferably within a period of six months from the date of production of an authenticated copy of this order, which shall be produced by the Petitioners before the settlement authorities within a period of four weeks hence to receive further instruction in the matter.”

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Accordingly, he prays for setting aside the impugned order under Annexure-1 and to remit the matter back to the Assistant Settlement Officer, Bhubaneswar for fresh consideration in accordance with law.

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Mr. Mishra, learned AGA for the State, on the other hand, submits that the final R.O.R. under Section 12-B of the Orissa Survey & Settlement Act, 1958 (for short ‘the Act’) in respect of Sampur mouza has not yet been published. Thus, the Petitioner has a remedy of appeal to assail the impugned order

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under Rule 42 of the Orissa Survey & Settlement Rules, 1962 (for short ‘the Rules’). As such, the writ petition is premature and is not maintainable.

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Taking into consideration the submissions made by learned counsel for the parties and the legal issues decided in W.P.(C) No.8774 of 2019 along with a batch of writ petitions, this Court is of the considered view that the Assistant Settlement Officer has acted without jurisdiction in issuing direction to record the case land in the name of the Government Khata.

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Accordingly, the impugned order under Annexure-1 being not sustainable in the eyes of law is hereby set aside. The matter is remitted back to the Additional Sub-Collector, Bhubaneswar, who is stated to be in charge of Assistant Settlement Officer for fresh consideration of the case in accordance with law giving opportunity of hearing to the Petitioner.

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6.1 Learned counsel for the Petitioner undertakes to produce an authenticated copy of this order before the Additional SubCollector, Bhubaneswar within a period of two weeks hence to receive further instruction in the matter for early adjudication of the Objection Case in accordance with law.

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As the restrictions due to resurgence of COVID-19 situation are continuing, learned counsel for the parties may utilize a 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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(K.R. Mohapatra) Judge

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s.s.satapathy

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Sunil Ku.Sahoo v. State of Orissa

Case brief

What is this about?

What did the court decide?

Sunil Ku.Sahoo v. State of Orissa

Case brief

What is this about?

What did the court decide?

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