Orissa High Court
Vijay Krishna Poultry Pvt. Ltd vs State Of Orissa & Others on 18 June, 2021
HIGH COURT OF ORISSA: CUTTACK.
W.P.(C) NOS. 8774 & 9010 OF 2019,
W.P.(C) NO.20178 OF 2020
In the matter of applications under Articles 226 and 227 of Constitution of India.
In W.P.(C) No. 8774 of 2019
Vijay Krishna Poultry Pvt. Ltd, Surya Nagar,
Unit No. VII, Bhubaneswar, represented
through its Director, P. Vivek. ..... Petitioner
-Versus-
State of Orissa & others ..... Opp. Parties
In W.P.(C) No. 9010 of 2019
Deepak Kumar Panda ..... Petitioner
-Versus-
State of Orissa & others ..... Opp. Parties
In W.P.(C) No. 20178 of 2020
Pratap Kumar Nayak ..... Petitioner
-Versus-
State of Orissa & others ..... Opp. Parties
For Petitioners : Mr. Goutam Mukherji,
(In all the writ petitions) Senior Advocate
M/s. Anam Charan Panda,
Partha Mukherji, S.D. Ray,
S. Sahoo, S. Panda &
S. Priyadarsini.
For Opp. Parties : Mr. Arun Kumar Mishra,
(In all the writ petitions) Addl. Government Advocate
2
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Date of Judgment by virtual mode:18.06.2021
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P R E S E N T:
THE HONOURABLE SHRI JUSTICE K.R. MOHAPATRA
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K.R. MOHAPATRA, J. The Petitioners in all these writ petitions assail the orders of
Settlement Authorities under the Orissa Survey and Settlement Act,
1958 (for short 'the Act, 1958'). Although the facts in each of these writ
petitions are slightly different from each other, but the question of law
involved in all these writ petitions being one and the same, those are
taken up together for proper adjudication.
2. W.P.(C) No. 8774 of 2019 has been filed assailing the order
dated 23rd March, 2013 passed by the Assistant Settlement Officer, Camp at
Rental Colony, Bhubaneswar-Opposite Party No.2 in Objection Case
No. 9121/942 of 2012, whereby he rejected the claim of the Petitioner to
record Hal Plot No. 648 to an extent of Hc.0.2023 and Plot No. 649 to an
extent of Hc.0.3682 under Khata No.894 in mouza Sundarpur and directed to
record the same in Government Khata under Abada Jogya Anabadi status.
2.1 The averments made in the said writ petition reveal that one
Harekrushna Samantaray made an application for lease of a piece of
Government land, which was registered as W.L. Case No. 1356 of 1978. The
said W.L. Case was allowed vide order dated 16th April, 1980 and R.O.R. in
respect of Plot No. 781/1050 measuring an area of Ac.1.500 decimals under
Khata No.176/65 in sthitiban status was issued in favour of said Harekrushna
Samantaray. When the lessee was enjoying the leasehold property peacefully,
the Additional District Magistrate, Bhubaneswar initiated suo motu Revision
Case No. 214 of 1987 under Section 7-A (3) of the Orissa Government Land
Settlement Act, 1962 (for short 'the O.G.L.S. Act') and cancelled the lease by
order dated 13th August, 1987 and directed the Tahasildar, Bhubaneswar-
Opposite Party No.3 to record the case land in Government khata. Being
aggrieved, the lessee moved this Court in OJC No. 5589 of 1994, which was
allowed vide order dated 25th July, 2000/4th September, 2000 directing the
Additional District Magistrate, Bhubaneswar for fresh adjudication of
Revision Case No.214 of 1987. Accordingly, the said revision case was heard
afresh and vide order dated 14th February, 2003, the Additional District
Magistrate, Bhubaneswar dropped the revision case. Pursuant to the order
dated 14th February, 2003, the R.O.R. was corrected accordingly in the name
of the lessee. Due to his legal necessity, the lessee sold the leasehold property
to one Sagar Kar through Registered Sale Deed No. 3493 dated 7th July, 2004.
Said Sagar Kar in turn sold the said property to the present Petitioner through
his Power of Attorney Holder vide Registered Sale Deed No.3700 dated 1st
May, 2007 and delivered possession. By the time the Petitioner purchased the
land in question, it had lost its character of being used as agricultural land. As
the Petitioner purchased the same for his business purpose, he applied for
conversion of the case land, which was registered as OLR Case No.5751 of
2009. The Petitioner was directed to pay conversion charges, i.e., premium
and arrear rent, to the tune of Rs.15,170/-, which the Petitioner paid
immediately on 30th January, 2009. Since the settlement operation was going
on in that the area, the Petitioner approached the Assistant Settlement Officer
for preparation of R.O.R. in his name and the said application was registered
as Objection Case No.9121/942 of 2012. The Settlement Authority, however,
did not take any step for disposal of the said objection case for which the
Petitioner approached this Court in W.P.(C) No.22248 of 2013, which was
disposed of on 30th September, 2013 directing the Opposite Party No.2 to
dispose of the objection case by the end of December, 2013. Since no notice
was issued to the Petitioner to participate in the said objection case till 2016,
he again filed Misc. Case No. 18246 of 2016 in the disposed of W.P.(C) No.
22248 of 2013. Accordingly, this Court vide order dated 22nd November, 2016
directed the Assistant Settlement Officer to dispose of the said objection case
within a period of two months, if the same is pending. Despite communication
of the said order, the Opposite Party No.2 did not make any communication to
the Petitioner. The Petitioner therefore filed CONTC No. 1517 of 2017, which
was disposed of vide order dated 27th November, 2017 granting further two
months' time to dispose of the said objection case. In spite of the same, the
Petitioner was kept in dark about the status of the objection case for which he
applied for the certified copy of the order sheet of the objection case and on
receipt of the same, the Petitioner came to know that the said objection case
had already been disposed of since 23rd March, 2013 on the ground that the
Petitioner failed to produce the certified copy of the order passed in W.L.
Case No.1356 of 1978 and a direction was made for recording of the case land
in Government Khata under Abada Jogya Anabadi status. Accordingly,
R.O.R. under Section 12-B of the Act, 1958 was prepared in Khata No. 894 in
the name of Government under Abada Jogya Anabadi status.
3. W.P.(C) No. 9010 of 2019 has been filed assailing the order
dated 24th September, 2013 passed by the Additional Sub-Collector,
Bhubaneswar-Opposite Party No. 3 in suo motu appeal, i.e., Suit No. 2408 of
2013, purportedly exercising power under Section 22(2)(a) of the Act, 1958
directing to record the land in question in Anabadi status.
3.1 It reveals from the averments made in the said writ petition that
one Kanta Bewa being a Scheduled Caste landless widow applied for
settlement of a piece of Government land in mouza Andharua along with
other similarly situated applicants. The authorities under the O.G.L.S Act
proceeded with all the applications and by a common order dated 29th May,
1974 in Lease Case No. 543 of 1974 directed to record Plot No.2083 to an
extent of Ac.1.500 decimals under Khata No.805 in mouza Andharua in
favour of said Kanta Bewa. Accordingly, R.O.R. in respect of Khata No.
621/42, Plot No.2083/3152 in mouza Andharua was prepared in the name of
said Kanta Bewa under sthitiban status. Said Kanta Bewa for her legal
necessity sold the land in question to one Khyamamayee Pradhan vide
registered sale deed dated 8th November, 1982 after obtaining permission
from the competent authority under Section 22 of the O.L.R. Act, 1960 vide
order dated 10th June, 1982 in Revenue Misc. Case No. 314 of 1982. When
said Khyamamayee Pradhan was in peaceful possession over the land, the
Additional District Magistrate, Bhubaneswar initiated a suo motu revision
case under Section 7-A (3) of the O.G.L.S. Act, in Revision Case No. 174 of
1986, against the lessee, namely, Kanta Bewa. Said Kanta Bewa having
alienated the property did not defend the revision case. However,
Khyamamayee Pradhan filed an application before the Additional District
Magistrate, Bhubaneswar for being impleaded as a party to the said revision
case. The Additional District Magistrate, Bhubaneswar, however, rejected the
said application vide order dated 8th May, 1986 and subsequently cancelled
the lease granted in favour of Kanta Bewa vide order dated 4th September,
1987. Said Khyamamayee Pradhan being a bona fide purchaser, finding no
other alternative, filed T.S. No. 76 of 1988 before learned Civil Judge (Senior
Division), Bhubaneswar seeking declaration of the order of cancellation by
the Additional District Magistrate, Bhubaneswar to be void and also to
declare the right, title and interest of the land in question in her favour. The
suit was decreed on consent vide judgment and decree dated 20th July, 1998
and 1st August, 1998 respectively. The said judgment and decree being not
challenged attained its finality. Accordingly, 'K' Form was also issued to
maintain the R.O.R. in Khata No.621/42 in the name of Kanta Bewa.
Subsequently, pursuant to the judgment and decree passed in T.S. No. 76 of
1988, said Khyamamayee Pradhan sold the land in question to one Dr. Mirza
Abid Alli Baig and his wife, Dr. Sabina Abid Alli Baig, vide Registered Sale
Deed No. 2368 dated 9th June, 1999 and delivered possession. Thereafter, said
Dr. Baig and his wife sold the land in question to the Petitioner in the said
writ petition through their registered Power of Attorney Holder, namely,
Ashok Kumar Padhi vide RSD No.7807 dated 7th September, 2007 and
delivered possession. As the settlement operation was going on in that area
and said Khyamamayee Pradhan produced all the relevant records before the
settlement authority including the judgment and decree passed by the Civil
Court. Accordingly, Yadast was prepared in the name of the Petitioner under
Annexure-8. However, at such a juncture, the Additional Sub-Collector,
Bhubaneswar-Opposite Party No. 3 initiated a suo motu appeal under Section
22(2)(a) of the Act, 1958 in Suit No. 2408 of 2013 and vide his order dated
24th September, 2013 directed to maintain the R.O.R. in the name of the
Government under Anabadi Khata. It is contended in the writ petition that
neither the Petitioner nor his vendors was ever noticed in Suit No. 2408 of
2013, which was initiated on 23rd August, 2013 after lapse of 14 (fourteen)
years from the date of the judgment and decree passed in T.S. No. 76 of 1998.
4. W.P.(C) No. 20178 of 2020 has been filed assailing the order
dated 22nd December, 2012 (Annexure-1) passed by the Assistant Settlement
Officer, Camp at Rental Colony, Bhubaneswar-Opposite Party No.2 in suo
motu Objection Case No. 6560/1006 of 2012, whereby a direction was issued
to record the land in question in Government Khata under Anabadi status.
4.1 The averments made in the said writ petition reveal that the
father of the Petitioner, namely, Balaram Nayak, was granted permanent lease
of a piece of Government land in Sabik Plot No.564/775 under Sabik Khata
No.229/18 to an extent of Ac.4.500 decimals in mouza Bhuasuni under
Chandaka P.S. pursuant to the order passed in W.L. Case No. 475 of 1967-68.
Accordingly, Jamabandi register was prepared in the name of said Balaram
Nayak and he enjoyed the suit property on payment of land revenue thereof.
After his death, his legal heirs stepped into his shoes and enjoyed the
leasehold property. During settlement operation, the settlement authorities
prepared draft R.O.R. (Parcha) in the name of the Petitioner, his brothers and
mother. Initially khata number in the said draft R.O.R. was mentioned as 254,
but subsequently it was corrected as Khata No.298. When the Petitioner along
with his co-sharers were waiting to receive final R.O.R., they came to know
that the land in question has been directed to be recorded in the name of the
Government under Anabadi status vide order dated 22nd December, 2012 in
Objection Case No.6560/1006 of 2012 initiated on 15th November, 2012. It is
contended in the writ petition that the Petitioner being in possession over the
case land was never served with any notice nor he was given any opportunity
to put-forth his case before the order dated 22nd December, 2012 was passed.
As such, he has filed this writ petition assailing the said order.
5. Mr. Mukherji, learned Senior Advocate for the Petitioners
contending that in all these writ petitions, the question of law involved being
the same, i.e., non-compliance of the mandatory provisions of law by the
settlement authorities, made a prayer for analogous hearing.
6. Mr. Arun Kumar Mishra, learned Additional Government
Advocate for the State did not object to the same. Accordingly, these matters
were heard analogously and disposed of by this common order.
7. It is contended by Mr. Mukherji, learned Senior Advocate for
the Petitioners that in all these writ petitions, notices of the proceedings were
never served on the respective Petitioners. Copy of the R.O.R. annexed to
W.P.(C) No.20178 of 2020, reveals that it was published on 13th November,
2013, but in the list of final publication of the R.O.Rs. of villages attached to
the preliminary counter affidavit in W.P.(C) No. 9010 of 2019 for Bhuasuni
mouza reveals that the date of publication of the R.O.R. was 21st November,
2012. Rule 29(3) of the Orissa Survey and Settlement Rules, 1962 (for short,
'the Rules, 1962') provides that the Assistant Settlement Officer shall give a
certificate under his seal and signature in the finally published R.O.R. as well
as map but from the R.O.Rs. annexed to the writ petitions, it appears that one
Umakanta Swain, who joined as Settlement Officer on 31st July, 2015 [page-7
& 8 of the rejoinder affidavit filed in W.P.(C) No. 9010 of 2019], had signed
the said R.O.Rs. A person who joined in 2015 could not have signed the
R.O.Rs. published in 2013. It establishes that final publication of the R.O.R.
has not been done in accordance with law. As such, the entire settlement
operation beyond the stage of Section 11 of the Act, 1958 in the aforesaid
villages, namely, Andharua, Sundarpur and Bhuasuni, is vitiated. Further, the
State Government in the preliminary counter affidavits filed in the aforesaid
writ petitions have categorically admitted that there is no gazette publication
of the notification under Section 13(2) of the Act, 1958, which goes to show
that settlement operation has not yet come to an end. As such, the writ
petitions are competent and can be adjudicated by this Court without
relegating the parties to file revision under Section 15(b) of the Act, 1958.
7.1 He further submitted that the Odisha Special Survey and
Settlement Act, 2012 (for short 'the Special Settlement Act, 2012') came into
force with effect from 26th September, 2012 on receipt of the assent of the
Governor. Thus, in view of Section 4 of the Special Settlement Act, 2012, the
settlement operation in the aforesaid villages, which were at the stage of
Section 11 of the Act, 1958 ought to have been proceeded under the new Act,
namely, Special Settlement Act, 2012 from that stage. Relying upon the
decision in the case of Nazir Ahmed -v- Emperor, reported in AIR 1936 Privy
Council 253, Mr. Mukherji, learned Senior Advocate submitted that if the
manner of doing a particular act is prescribed under the statute, the Act must
be done in that manner or not at all. He further relied upon the order dated 26th
April, 2018 passed by this Court in W.P.(C) No. 9675 of 2015, whereby in a
similar circumstance, this Court while setting aside the order passed by the
Assistant Settlement Officer, Camp at Rental Colony, Bhubaneswar, directed
the Assistant Settlement Officer, Major Settlement, Jobra, Cuttack to finally
record the disputed land in favour of the Petitioners therein.
7.2 Relying upon the affidavit dated 11th January, 2021 filed by the
State in W.P.(C) No. 8774 of 2019, Mr. Mukherji, learned Senior Advocate
submitted that district Khurda has been notified under Special Settlement Act.
Strangely, however, the said notification was not given effect to and the
proceedings under the old Act, namely, Orissa Survey and Settlement Act,
1958. Had the proceeding under the new Act, i.e., Special Settlement Act,
2012, been undertaken, the land owners would have been benefitted with a
larger window to put-forth their objections as provided under Rule 15(2) of
the Rules framed thereunder. They would have got an opportunity to put-forth
their objections, if any, under Rule 15(3) of the Odisha Special Survey &
Settlement Rules, 2012 (for short 'the Rules, 2012') before the Additional
District Magistrate, Bhubaneswar. By not adhering to the said procedure
provided under the new Act and Rules, the land owners including the
Petitioners are seriously prejudiced. The principles of harmonious
construction and the Latin maxim of leges posteriors priores conterarias
abrogant (later laws abrogate earlier contrary laws), as held by Hon'ble
Supreme Court in the case of Essa and Others -v- The State of Maharashtra,
through STF, CBI Mumbai and Others, reported in (2013) SCC Online SC
255, it is held that a later legislation beneficial to the public interest would
prevail and in such circumstances, it was incumbent upon the authorities to
proceed in accordance with the later legislation, i.e. the Special Settlement
Act, 2012 and that having not been done, the impugned orders are liable to be
set aside and the cases are liable to be remanded to the settlement authorities
to proceed from the stage of Section 11 in accordance with the Special
Settlement Act and Rules framed thereunder.
8. This Court in course of hearing of the matter on 10th November,
2020 in W.P.(C) No. 20178 of 2020 passed the following order:-
"Due to outbreak of COVID-19, this matter is taken up
through video conferencing.
Heard Mr. Goutam Mukherji, learned Senior Advocate
along with Mr. A.C. Panda, learned counsel for the
petitioner and Mr. Arun Kumar Mishra, learned Additional
Government Advocate for the State-opposite parties.
Mr. Arun Kumar Mishra, learned Additional
Government Advocate for the State submits that in view of
the submission made by Mr. Goutam Mukherji, learned
Senior Advocate elaborating the scope of the provision
under Sections 12-B and 13 of the Orissa Survey and
Settlement Act, 1958 read with Rules 29 and 30 of the
Orissa Survey and Settlement Rules, 1962 and Sections 4,
11 and 12 of the Orissa Special Survey and Settlement Act,
2012 read with Rules 15 and 16 of the Orissa Special
Survey and Settlement Rules, 2012, a detailed counter
affidavit will be necessary. He will also make further
submission on the effect of word 'may' used in Rule 29 of
the Orissa Survey and Settlement Rules, 1962 for which he
prays for some time for the same.
Counter affidavit, if any, shall be filed by 24.11.2020
after serving copy thereof on Mr. A.C. Panda, learned
counsel for the petitioner.
Put up this matter on 01.12.2020, as prayed for by Mr.
Arun Kumar Mishra, learned Additional Government
Advocate for the State for further hearing of the case."
8.1. The matter was thereafter adjourned on several occasions
and on 12.01.2021, an affidavit dated 11.01.2021 was filed in W.P.(C)
No. 8774 of 2019.
14. Mr. Mishra, learned Addl. Government Advocate for the
State submitted that the impugned orders are the outcome of non-
cooperation of the claimants/petitioners therein. They were either absent
at the time the objection cases were taken up for hearing or though
present could not produce relevant documents in support of the claim to
record the land in their favour. Section 13(3) of the Act, 1958 is clear to
the effect that the entries in the R.O.Rs. so published shall be the
evidence of the matter referred to in such entry and shall be presumed to
be correct until it is proved by evidence to be incorrect. If the
Petitioners have sufficient materials in support of their case, they can
produce the same before the revisional authority by filing a revision. In
the present case, the notification for initiation of settlement operation in
the aforesaid villages was made in the year, 1995, which is an admitted
fact. After conducting survey step by step following due procedure of
law as provided under the Act and Rules, final publication has already
been made under Section 12-B of the Act, 1958 on different dates as per
the list appended to the affidavit dated 11th January, 2021 filed in
W.P.(C) No. 8774 of 2019.
15. Rule 29 of the Rules, 1962 provides that a copy of the map
and R.O.Rs. finally framed shall be finally published by the Assistant
Settlement Officer by placing them for public inspection, free of charge,
for a continuous period of seven days at such convenient place as he
may determine and the seventh day of such publication shall be deemed
to be the date of final publication of the R.O.Rs. and Map. Sub-rule (2)
of Rule 29 provides that not less than seven days before the final
publication of the R.O.Rs. in accordance with sub-rule (1), the Assistant
Settlement Officer shall issue a notice in Form No. 6 to be published in
the manner specified in Rule 6. In the affidavit dated 24th November,
2020 filed by the Assistant Settlement Officer in W.P.(C) No. 8774 of
2019, a copy of the public notice in compliance of the Rule 29 of the
Rules has been annexed. As such, there is no procedural defect for final
publication of the R.O.Rs. in the aforesaid revenue villages. He further
submitted that no survey has been conducted as per the Special
Settlement Act, 2012 and the Rules framed thereunder, which came into
force with effect from 28th September, 2012. Sub-section (1) of Section
3 of the Special Settlement Act, 2012 makes it clear that a notification
should be published in the gazette expressing intention of the
Government to conduct the special survey and settlement in any part or
the whole part of the State. On the date, i.e., 28.09.2012, when the
Special Settlement Act, 2012 came into force, the settlement operation
under the Act, 1958 was nearing completion. Thus, the Government
thought it proper not to make any notification under Section 3(1) of the
Special Settlement Act, 2012, which would have further delayed the
process of finalization of settlement operation. The said notification was
not issued for the general interest of the public. Mr. Mukherji, learned
Senior Advocate for the Petitioners without pointing out the defects, if
any, in the final publication of R.O.Rs. under Section 12-B of the Act,
1958 harped upon the applicability of the Special Settlement Act, 2012.
By proceeding under the Special Settlement Act, 2012, the land owners
would have got few more days to file their objection to the finally
framed R.O.Rs. and map, but it would have otherwise delayed the
matter. It is not the case of the Petitioners that they did not get ample
time to file their objection to the finally framed R.O.Rs. published by
the Assistant Settlement Officer under Rule 29 of the Rules, 1962.
17. It is further submitted by Mr. Mishra, learned Addl.
Government Advocate that in W.P.(C) No. 8774 of 2019, the Petitioner
cannot raise any objection with regard to application of Rule 15 of the
Special Settlement Rules, 2012, as, much before the final publication of
R.O.Rs. in respect of said mouza (Sundarpur), the Petitioner had filed
his objection on 26th December, 2012 before the Settlement Officer as is
evident from Annexure-1 annexed to the said writ petition, but for his
absence on the date of hearing, though notice was duly served and for
non-production of relevant documents, his claim was disallowed.
18. The land in question in W.P.(C) No. 9010 of 2019 was of
village/mouza Andharua and final publication has been made on 21st
January, 2013. The sabik status of the land was Anabadi, which was
subsequently leased out. The Additional Sub-Collector-cum-Settlement
Officer, Bhubaneswar initiated a suo motu /appeal under Section
22(2)(a) of the Act, 1958 and the land owners were duly noticed. Had
the Petitioners produced the judgment and decree passed by the Civil
Court, the same could have been considered by the appellate Court
while disposing of the matter. Due to absence of the claimant and non-
production of the relevant documents, the Additional Sub-Collector,
Bhubaneswar had no other option than to direct for recording of the land
in sabik status, i.e., Anabadi.
In W.P.(C) No.20178 of 2020, an order passed in suo motu
Objection Case has been challenged. Although there is no endorsement
of the ASO to the effect that notices on the opposite parties therein have
been made sufficient, but, the status of the land in sabik R.O.R. being
Anabadi, the same was directed to be recorded as such in absence of any
other material to the contrary. The land involved in the said writ
petition situates in village/mouza was of Bhuasuni and final publication
of the R.O.R. in respect of the land in question was made on 22nd
November, 2012.
19. In all these writ petitions, R.O.Rs. in respect of
mouzas/villages having been published under Section 12-B of the Act,
1958, the only remedy available to the Petitioners is to file a revision
under Section 15(b) of the Act, 1958 for correction of R.O.Rs. in their
name. As such, these writ petitions are not maintainable. In that view of
the matter, he prayed for dismissal of these writ petitions.
20. Having heard learned counsel for the parties at length and
perused the materials on record placed before this Court.
21. Mr. Mukherji, learned Senior Advocate for the Petitioners
categorically submitted that settlement operation went on smoothly till
the stage of Section 11 of the Act, 1958, i.e., till preparation of draft
R.O.Rs. and hearing of objection. The irregularity and illegality
commenced from that stage onwards. Thus, this Court has to examine
as to whether there is any infraction of law and procedure committed by
the settlement authority beyond the stage of Section 11 of the Act, 1958
up to preparation of final R.O.Rs. under Section 12-B of the Act, 1958.
It is further to be examined as to whether the Petitioners in all these writ
petitions have an efficacious remedy under Section 15(b) of the Act,
1958 to assail the correctness of the final R.O.Rs. so published.
22. As submitted by learned counsel for the parties and as
appears from the impugned orders in all these writ petitions, it is crystal
clear that either the Petitioners herein were absent on the date of hearing
of the objection cases/suo motu appeal case or failed to produce relevant
documents in support of their case. Thus, a question arises as to whether
the authorities under the Act have followed due procedure of law while
adjudicating the objection cases/suo motu appeal case, as referred to
above. In W.P.(C) No. 8774 of 2019, it is apparent from the impugned
order under Annexure-1 that no notice was ever issued to the Petitioner
for adjudication of the objection case. There is also no endorsement in
the impugned orders to the effect that notices were served on the
Petitioners before final adjudication of the said objection case.
23. In W.P.(C) No.9010 of 2019, the order dated 24th
September, 2013 passed in suo motu appeal is under challenge.
Although an endorsement is made to the effect that notice was duly
served on the parties and the Opposite Parties (present Petitioners) were
absent on call on the date of hearing, but there is no material on record
to come to a conclusion that notices were, in fact, served on the
Petitioners therein. The preliminary counter affidavit filed by Opposite
Party No.4 does not also reveal that notice of the suo motu appeal i.e.
Suit No. 2408 of 2013, was served on the Petitioners.
24. The order sheet of the impugned order as at Annexure-1 in
W.P.(C) No. 20178 of 2020 reveals that a suo motu objection case was
initiated at the instance of the Assistant Settlement Officer. Although
the Petitioner therein was impleaded as Opposite Party and direction
was issued vide order dated 7th December, 2012 to issue notice to the
Petitioner, who was the Opposite Party therein, but the order sheet does
reveal that such notice was ever issued or it was served on the present
petitioner.
25. Although opportunities in the aforesaid writ petitions were
given to the State-Opposite Parties to file a detailed counter affidavit,
but, they preferred not to file any detailed counter affidavit in spite of
taking several adjournments.
26. In view of the above, it can be safely said that notices in the
aforesaid objection cases/appeal were not served on the present
Petitioners to put-forth their case by filing relevant documents. The
impugned orders in the aforesaid writ petitions can be set aside on the
ground of non-compliance of principles of natural justice alone. But, in
view of other legal contentions raised by learned counsel for the parties,
this Court proceeds to examine the same.
27. It is contended by Mr. Mukherji, learned Senior Advocate
for the Petitioners that there are discrepancies in the dates of publication
of R.O.Rs., as discussed in the previous paragraphs. He further
contended that since there is no notification under Section 13(2) of the
Act, 1958 declaring that R.O.Rs. have been finally published, mere
publication of R.O.Rs. under Section 12-B of the Act, 1958 will not take
away the right of the Petitioners to challenge the order passed by the
settlement authority. Mr. Mishra, learned Addl. Government Advocate
for the State although admitted that there is no notification under
Section 13(2) of the Act, 1958, but submitted that the same is not
mandatory and will not take away the effect of final publication of
R.O.Rs. under Section 12-B of the Act, 1958. He further submitted that
Section 15(b) of the Act, 1958 only refers to final publication under
Section 12-B of the Act and not to the notification under Section 13(2)
of the Act as submitted by Mr. Mukherji, learned Senior Advocate. For
ready reference, Section 12-B, Section 13 and Section 15 of the Act,
1958 are reproduced herein below:
"12-B. Final publication of record-of-rights - (1) When all
such objections and appeals are disposed of, the Assistant
Settlement Officer shall finally frame the record-of-rights
incorporating all such alterations as may be necessary to give
effect to the orders passed on such objections and appeals and
shall cause it to be finally published in the prescribed manner
and such publication shall be conclusive evidence that the
record has been duly made under this Chapter.
(2) Separate drafts and final records may be published
for different local areas or parts thereof.
xxx xxx xxx xxx xxx xxx xxx
13. Presumption as to final publication and correction of
record-of-rights. - (1) Any record-of-rights prepared and
finally published under this Chapter or a certified copy thereof
or extract therefrom shall be conclusive evidence of such
publication.
(2) The Government may by notification declare with
regard to land in any local area or village that record-of-rights
has been finally published and such notification shall be
conclusive evidence of such publication.
(3) Every entry in a record-of-rights so published shall
be evidence of the matter referred to in such entry and shall be
presumed to be correct until it is provided by evidence to be
incorrect:
Provided that, if any entry in a record-of-rights is
altered in a subsequent record-of-rights, the later entry shall be
presumed to be correct until it is proved by evidence to be
correct, but the previous entry shall be admissible as evidence
of the facts existing at the time such entry was made.
xxx xxx xxx xxx xxx xxx xxx
15. Revision by Board of Revenue. - The Board of Revenue may
in any case direct-
(a) of its own motion the revision of any record-of-rights, or any
portion of a record-of-rights, at any time after the date of final
publication under Section 12-B but not so to affect any order
passed by a Civil Court under Section 42;
(b) on application made within one year from the date of final
publication under Section 12-B the revision of record-of-rights
or any portion thereof whether within the said period of one
year or thereafter but not so as to affect any order passed by a
Civil Court under Section 42 :
Provided that no such direction shall be made until
reasonable opportunity has been given to the parties concerned
to appear and be heard in the matter."
28. From a conspectus of the aforesaid provisions of the Act,
1958, it can be safely construed that when all objection cases/ appeals
are disposed of, the Assistant Settlement Officer shall publish the final
R.O.Rs. under Section 12-B of the Act, 1958. Sub-section (1) of Section
13 provides that any R.O.R. prepared and finally published or a certified
copy thereof or extract therefrom shall be conclusive evidence of such
publication. Sub-section (2), provides that the Government may publish
such a notification, which shall be conclusive evidence of such final
publication. Mr. Mukherji, learned Senior Advocate submitted that the
word 'may' used in the said provision shall be construed to be 'shall'
and in support of the same, he relied upon the case law in the case of
Shri Rangaswami, Textile Commissioner & Others -v- Sugar Textile
Mills (P) Ltd. & another, reported in AIR 1977 SC 1516, wherein the
Hon'ble Supreme Court at paragraph-2 held as under:
"2. As held by this Court in State of Uttar Pradesh v. Jogendra
Singh, [1964] 2 S.C.R. 197 at 202 it is well settled that the word
"may" is capable of meaning "must" or "shall" in the light of the
context and that where a discretion is conferred upon a public
authority coupled with an obligation, the word "may" which
denotes discretion should be construed to mean a command.
Considering the purpose of the relevant empowerment and its
impact on those who are likely to be affected by the exercise of
the power, we are clear that the power conferred on the Textile
Commissioner to issue directions is coupled with the duty to
specify the particular period for which the directions shall be
operative. Directions of the kind envisaged by clause 20 are
influenced and justified by exigencies which render it imperative
that the directions be reviewed from time to time. That becomes
feasible only if the directions are limited expressly to a
determinate period of time at the end of which a fresh review of
facts and circum stances becomes obligatory. There is a fear
that a direction not limited in point of time may continue to
operate even after it has outlived its utility for the reason merely
that the need to review it is not clearly perceived. Besides, the
manufacturers must know, in order that they may organize their
business in their own interest as well as in the interest of the
community at large, as to how long any particular embargo is
going to be operative."
He also relied upon the decision in the case of Union of India
& others -v- A.K. Pandey, reported in 2009 (10) SCC 552, wherein it
has been held at paragraph -10 as under:-
"10. In his discussion on the subject, "Mandatory and Directory
or Permissive Words" Crawford in the afore-noticed treatise
says:
"Ordinarily the words "shall" and "must" are mandatory, and the
work "may" is directory, although they are often used inter-
changeably in legislation. This use without regard to their literal
meaning generally makes it necessary for the courts to resort to
construction in order to discover the real intention of the
legislature. Nevertheless, it will always be presumed by the court
that the legislature intended to use the words in their usual and
natural meaning. If such a meaning, however, leads to absurdity,
or great inconvenience, or for some other reason is clearly
contrary to the obvious intention of the legislature, then words
which ordinarily are mandatory in their nature will be construed
as directory, or vice versa. In other words, if the language of the
statute, considered as a whole and with due regard to its nature
and object, reveals that the legislature intended the words "shall"
and "must" to be directory, they should be given that meaning.
Similarly, under the same circumstances, the word "may" should
be given a mandatory meaning, and especially where the statute
concerns the rights and interests of the public, or where third
persons have a claim de jure that a power shall be exercised, or
whenever something is directed to be done for the sake of justice
or the public good, or is necessary to sustain the statute's
constitutionality.
Yet the construction of mandatory words as directory and
directory words as mandatory should not be lightly adopted. The
opposite meaning should be unequivocally evidenced before it is
accepted as the true meaning; otherwise, there is considerable
danger that the legislative intent will be wholly or partially
defeated."
29. On a close reading of the aforesaid provisions in the light of
the case laws cited (supra), it can be safely said that in view of the tenor
and language employed in Section 12-B and Section 13(1) of the Act,
1958, the notification referred to Section 13(2) of the Act, 1958 is
directory and not mandatory. In view of language of Section 13(1) of the
Act, 1958, publication of the RORs under Section 12-B of the Act, 1958
do not lose their status of finality. Section 15(a) and (b) of the Act, 1958
refers to publication of the final R.O.R. under Section 12-B of the Act,
1958 and not to a notification under Section 13(2) of the Act, 1958.
Thus, non-issuance of the notification under Section 13(2) of the Act,
1958 does not in any way take away the effect of final publication of
R.O.R. under Section 12-B of the Act, 1958. As such, there is force in
the submission of Mr. Mishra, learned Addl. Government Advocate to
the effect that a revision under Section 15(b) of the Act would be
maintainable against final publication of the R.O.R. under Section 12-B
of the Act, 1958.
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 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.
31. An argument has been advanced by Mr. Mukherji, learned
Senior Advocate to the effect that by operation of Section 4 of the
Special Settlement Act, 2012, further proceedings of the settlement
operation in question ought to have been made under the provisions of
the Special Settlement Act, 2012 and not under the provisions of the
Orissa Survey and Settlement Act, 1958. Section 3 and 4 of the Odisha
Special Survey and Settlement Act, 2012 reads as follows:
"3. Intention for survey and settlement - (1) The
Government may, by notification, express its intention to
carry out special survey and settlement in any part or the
whole of the State, in accordance with the provisions of this
Act not withstanding anything contained in the Odisha Survey
and Settlement Act, 1958.
(2) Where a notification is published under sub-section(1),
the Tahasildar shall publish a proclamation to that effect in
the prescribed manner.
4.Reorganizing ongoing survey operations - The
Government may, by order, reorganize the ongoing survey
operations in the districts concerned or in any area, as the
case may be, to bring the same in conformity with the
provisions of this Act, so far as it may be deemed necessary,
in the prescribed manner and the earlier proceedings shall
not be construed to be illegal to any extent on account of the
special Survey conducted under this Act."
32. From a close reading of the aforesaid provision, it appears
that firstly, the Government may by a notification under Sub-section (1)
of Section 3 express its intention to carry out special survey and
settlement under the Special Settlement Act, 2012 in a particular area of
the State; secondly, the concerned Tahasildar shall publish a
proclamation in the prescribed manner to that effect; and thirdly, there
has to be an order under Section 4 in order to bring the settlement
operation to the fold of the Special Settlement Act, 2012, make an order
to that effect. Admittedly, there is no such order passed by the
Government to bring in fold the settlement operation initiated under the
Act of 1958 to the fold of Special Settlement Act, 2012 except in respect
of village Khurda. It is also not clear as to whether any proclamation
under Section 4(2) has been made in respect of mouza Khurda or not.
The enactment of Special Settlement Act, 2012 does not make the
settlement operation initiated under the Act of 1958, redundant or
abated. Had an order been passed under Section 4 of the Special
Settlement Act, 2012, then the settlement operation initiated under the
Act of 1958 would have continued under the provisions of the Special
Settlement Act, 2012. In view of the clear and unambiguous language
of Sections 3 and 4 of the Special Settlement Act, 2012, it can be safely
said that the settlement operation initiated under the Act of 1958 does
not become illegal on account of enactment of the Special Settlement
Act, 2012. No order having been passed by the Government under
Section 4 of the Special Settlement Act, 2012, which is discretionary,
the argument of Mr. Mukherji, learned Senior Advocate does not hold
good.
In view of my findings recorded above, rest of the issues
raised by learned counsel for the parties need no discussion. It is,
however, open to the parties to raise such issues, if so advised before the
settlement authorities.
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.
34. With the aforesaid observation and direction, these writ
petitions are disposed of accordingly.
34.1 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 25th March, 2020 as modified by Court's Notice No.4798
dated 15th April, 2021.
...........................
K.R. Mohapatra, J.
Orissa High Court, Cuttack.
Dated the 18th June, 2021/bks
