Allowed

Binodini Devi v. State of Odisha

Orissa HC15 Feb 2021WP(C)/4234/2021

Case brief

AI extract

What is this about?

In a writ petition challenging an order refusing to keep land in the petitioner's name, the High Court held that the Settlement Officer lacked jurisdiction to record the land as Government property after a prior High Court order confirmed the lease and purchase rights. Consequently, the impugned order and the final Record of Rights were quashed, and the matter was remitted for afresh consideration

What did the court decide?

The impugned order dated 20.07.2013 and the consequential R.O.R. published under Section 12-B of the Act were quashed, and the matter was remitted to the Additional Sub-Collector to consider the appea

Binodini Devi Vs State of Odisha — Land Acquisition | Orissa HC (2021)

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W.P.(C) No.4234 of 2021

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15.02.2021 Due to outbreak of COVID-19, this matter is taken up through video conferencing.

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Heard Miss Deepali Mahapatra, learned counsel for the petitioner and Mr. Dillip Kumar Mishra, learned Additional Government Advocate for the State-Opposite Party Nos.1 to 5.

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The petitioner in this writ petition seeks to assail the order dated 20.07.2013 (Annexure-9) passed by the Additional Sub-Collector, Bhubaneswar in Appeal Case No.3972 of 2013.

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The case of the petitioner as revealed from the writ petition is that Khata No.421, Plot No.259 to an extent of Ac.1.000 decimals in Mouza-Shankarpur under Bhubaneswar Tahasil in the district of Khurda stood record in the name of the Government. Out of the same, an area of Ac.0.395 decimals of land was settled in favour of the vendor of the petitioner, namely, Surendranath Bhoi in Sabik Khata No.424/57, Plot Nos.461/1366, 146 and 263 of Mouza-Shankarpur under Bhubaneswar Tahasil (for short ‘the case land’) under the provisions of Orissa Government Land Settlement Act, 1962 in W.L. Case No.917 of 1972. Subsequently, said Surendranath Bhoi sought permission for alienation of the case land in Revenue Misc. Case No.431 of 1983, which

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was allowed on 30.12.1983 (Annexure-2). Accordingly, said Surendranath Bhoi sold the case land to the petitioner vide Registered Sale Deed dated 13.03.1984 and delivered possession of the same to the petitioner. While the matter stood thus, the Tahasildar, Bhubaneswar vide his order dated 16.07.2002, resumed the lease without issuing any notice to the petitioner. Accordingly, the petitioner filed W.P.(C) No.9195 of 2006, which was allowed on 13.07.2006 with the following direction:

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“We are constrained to hold that power under section 3-B of the Act could not have been exercised in the facts of the present case. We, therefore, finding that there is clear violation of the principles of natural justice by not issuing notice of resumption proceeding to the petitioner and further finding that the Additional Tahasildar, Bhubaneswar could not have invoked power under section 3-B of the Act, have no hesitation to quash the impugned order dated 16.07.2002 passed in W.L. Case No. 917/72 under Annexure-5 to the writ petition and we accordingly do so.

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The writ application is, accordingly, allowed.”

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Pursuant to the aforesaid direction, the petitioner filed an application for mutation of the case land in her name and also for conversion of the land to be used for non-agricultural purpose. In O.L.R. Case No.4437 of 2010, the case land was converted to homestead vide order dated 31.03.2012 (Annexure-6). During settlement operation, the case land was recorded in the name of the petitioner in Khanapuri stage but at the yadast stage, the land

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was directed to be settled in the name of the Government for which the petitioner filed Appeal Case No.3972 of 2013, which was disposed of on 20.07.2013 with the following direction:

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“In view of the above, the Tahasildar as the authorized officer has already complied the order of the Hon’ble High Court in W.P.(C) No.9194 of 2006 and 9195 of 2006 deal with and decide the lease matter. Our ASOs/SO do not have such authority to grant lease cancel it and restore back the Govt. land to original Govt. Khata-1 need not further complicate the matter. Hence, the Appeal is dropped.”

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Assailing the same, the petitioner has filed this writ petition.

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Miss Mahapatra, learned counsel for the petitioner submits that when the Additional SubCollector-cum-Additional Settlement Officer, Bhubaneswar has categorically held that the ASO/SO do not have any authority to grant lease and cancel it, the case land could not have been directed to be recorded in Government Khata. It is her submission that since the land was leased out in favour of the vendor of the petitioner and the petitioner is a rightful purchaser and the lease granted in favour of the vendor of the petitioner has been confirmed by this Court in W.P.(C) No.9195 of 2006, the Settlement Authority do not have any jurisdiction to record the land in the name of the Government. She also relied upon the several

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decisions of this Court in W.P.(C) No.21325 of 2014 disposed of on 02.05.2016, W.P.(C) No.22375 of 2016 disposed of on 22.12.2016 , W.P.(C) No.21930 of 2016 disposed of on 15.12.2016. W.P.(C) Nos.20888, 20899 and 20908 of 2016 disposed of on 05.12.2016 including a recent decision of this Court in W.A. No.17 of 2021, which was disposed of on 22.01.2021 with the following direction:

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“Considering the above, it appears that in the present case, the lease was scrutinized earlier and the revisional authority in Land Revision Case No.679 of 1987 has confirmed that there is no irregularity and illegality. Therefore, the appellate authority should have directed to prepare the Record of Right in favour of the appellant as he has no jurisdiction to interfere with the order of the revisional authority. Since there is an error on the face of the record, this Court in exercise of extra-ordinary jurisdiction while quashing the impugned order dated 24.04.2014 passed by the Respondent No.4-Settlement Officer, Major Settlement, Cuttack in Appeal Case No.77 of 2014 under Annexure-8, order dated 04.04.2018 passed in W.P.(C) No.373 of 2015 vide Annexure-9 and common order passed in W.P.(C) No.3456 of 2014, directs the Settlement Officer, Major Settlement Cuttack-opposite party No.4 to prepare the Record of Rights in favour of the appellant, as expeditiously as possible, on production of copy of the order.

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The Writ Appeal is accordingly disposed of.”

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She, therefore, prays for setting aside the impugned order under Annexure-9 and also to quash the consequential R.O.R. published in the Government Khata under Section 12-B of the Orissa

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Survey & Settlement Act, 1958 (for short ‘the Act’) under Annexure-10.

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Mr. Mishra, learned Additional Government Advocate for the State though not disputed the factual position of the case, submitted that since final R.O.R. in respect of Shankarpur Mouza under Section 12-B of the Act has already been published, the petitioner has a remedy under Section 15(b) of the Act to ventilate her grievances. The Settlement Officer/Assistant Settlement Officer has no jurisdiction to sit over the R.O.R. finally published under Section 12-B of the Act. As such, he submits that the writ petition is not maintainable and is liable to be dismissed.

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Heard learned counsel for the parties and perused the materials available on record.

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It is not disputed that the case land was settled in favour of the vendor of the petitioner, namely, Surendranath Bhoi, who after obtaining due permission from the competent authority alienated the same in favour of the petitioner vide Registered Sale Deed dated 13.03.1984. Subsequently, the petitioner got the land mutated in her name as well as converted the case land to homestead in O.L.R. Case No.4437 of 2010. As the case land was resumed by the Tahasildar, Bhubaneswar, she had filed

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W.P.(C) No.9195 of 2006, which was disposed of on 13.07.2006 quashing the order of resumption. Thus, petitioner’s right, title and interest over the case land cannot be questioned. In the aforesaid backdrop, the Settlement Officer has no jurisdiction to sit over the same and direct for recording the land in the name of the Government ignoring the earlier direction of this Court. The decisions relied upon by the learned counsel for the petitioner are squarely applicable to the case at hand.

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In that view of the matter, the impugned order under Annexure-9 and the R.O.R. published under Annexure-10 are not sustainable in law. Accordingly, the impugned order under Annexure-9 as well as the R.O.R. published under Annexure-10 are quashed. The matter is remitted back to the Additional SubCollector-cum-Additional Settlement Officer, Bhubaneswar-opposite party no.4 to consider Appeal Case No.3972 of 2013 afresh giving opportunity of hearing to the parties concerned keeping in mind the observations made above.

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The Appellate Authority will act upon production of an authenticated copy of this order downloaded from the website of the Orissa High Court.

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To avoid further delay in the matter, the petitioner is directed to appear before the Additional Sub-Collector-cum-Additional Settlement Officer, Bhubaneswar-opposite party no.4 on 15.03.2021 along with an authenticated copy of this order to receive further instruction in the matter.

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Accordingly, this writ petition is disposed of.

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Authenticated copy of this order downloaded from the website of this Court shall be treated at par with certified copy in the manner prescribed in this Court’s Notice No.4587 dated 25.03.2020.

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………………………..

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K.R. Mohapatra, J.

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Binodini Devi v. State of Odisha

Case brief

What is this about?

What did the court decide?

Binodini Devi v. State of Odisha

Case brief

What is this about?

What did the court decide?

What the court decided

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