Sakhibewa And Others vs State Of Odisha And Others
2022 Latest Caselaw 1669 Ori

     IN THE HIGH COURT OF ORISSA AT CUTTACK

                   O. J. C. No.4048of 1994



SakhiBewa and others                         ....           Petitioners
                                 -versus-
State of Odisha and others                   ....     Opposite Parties


Appeared in this case:

For Petitioners              :       Mr. Mahadev Mishra, Advocate
                                        for Petitioner Nos.1 & 3 and
                                      Mr. N. P. Parija, Advocate for
                                                      Petitioner No.2

For Opposite Parties         :             Mr. DebakantaMohanty,
                                   Additional Government Advocate

 CORAM:
 THE CHIEF JUSTICE
 JUSTICE R. K. PATTANAIK


                             JUDGMENT

04.03.2022 Dr. S. Muralidhar, CJ.

1. The challenge in the present petition is to an order dated 1st March, 1984 passed by the Special Officer & Competent Authority, Urban Agglomeration, Cuttack in ULC Case No.96 of 1976 and to an order dated 5thMay, 1987 passed by the Member, Board of Revenue, Orissa, Cuttack in ULC Appeal No.164 of 1984.

2. Earlier, the present Petitioners had filed OJC No.2550 of 1987 challenging the same impugned orders. On 1st November 1991, the said writ petition was dismissed for non-prosecution. When the Petitioners filed M. J. C. No.10 of 1994 on 7th January, 1994 seeking restoration of OJC No.2550 of 1987, the application was dismissed with a liberty to the Petitioners to file a fresh petition. Thereafter, the present petition was filed.

3. By an order dated 30th July, 2009, this Court allowed the writ petition primarily on the ground that the taking over of the Petitioners' land under the Urban Land (Ceiling and Regulation) Act, 1976 (ULC&RA) was no longer legally sustainable after the repeal of the ULC&RA by the Urban Land (Ceiling and Regulation) Repeal Act, 1999 (ULC&RRA). Accordingly, a direction was issued that the land belonging to the Petitioners should be returned to them.

4. The above order dated 30th July, 2009 passed by this Court was challenged by the State of Orissa in the Supreme Court of India in Civil Appeal No.6490 of 2014. The said appeal came to be allowed by the Supreme Court of India by a judgment dated 23rd November, 2021 setting aside the order dated 30th July, 2009 of this Court and remanding OJC 4048 of 1994 to this Court for a fresh decision. The Petitioners here were asked to pay the National Legal Services Authority costs of Rs. 50,000. The costs directed to be paid by the Supreme Court have been paid by the Petitioners herein and proof of payment has been placed on record.

5. The specific direction of the Supreme Court in the said judgment was that the Division Bench of this Court should "consider the case on behalf of the State that the possession of the surplus land was already taken over by the Tehsildar on 25.04.1988." It was held that in case the Petitioners hereinwere not entitled to the benefit of the Repeal Act, i.e. the ULC&RRA, this Court would then consider submissions on behalf of the State "on maintainability of the subsequent writ petition." The Supreme Court also required this Court to consider:

(i) "submissions on behalf of the State on the maintainability of the subsequent writ petition, as the earlier writ petition being OJC No.2550 of 1987 was dismissed for non- prosecution in which also the order passed by the Competent Authority dated 01.03.1984 and the order passed by the Board of Revenue dated 05.05.1987 were under challenge, which were also the subject matter of the subsequent writ petition being OJC No.4048 of 1994";

(ii) the observations made by thisCourt in the order passed in restoration application being M.J.C. No.10 of 1994 filed for restoring the OJC No.2550 of 1987 by which this Court dismissed the restoration application with the observation that the original writ petitioner may file a fresh petition, 'if permissible'. Therefore, this Court had also to interpret and consider the expression 'if permissible'.

6. This Court has heard the submissions of Mr. Mahadev Mishra, learned counsel for Petitioner Nos.1 & 3, Mr. N. P. Parija, learned counsel for Petitioner No.2 and on behalf of Opposite Parties,Mr. DebakantaMohanty, learned Additional Government Advocate (AGA).

7. The facts leading to the filing of the petition have been set out succinctly in the aforementioned judgment of the Supreme Court as under:

"2.1 That the proceedings under the provisions of the Act, 1976 were initiated with respect to the holdings of the original writ petitioner No.1 - SakhiBewa. By order dated 01.03.1984, the Competent Authority under the Act, 1976 declared Ac. 0.865-7 as excess vacant land. Final statement under Section 9 of the Act, 1976 was issued on 27.03.1984.

2.2 That thereafter a notification under Section 10(1) of the Act, 1976 was issued on 30.04.1984 with respect to the land declared as excess vacant land. The original landowners filed an appeal before the Appellate Authority in the month of May, 1984. A declaration under Section 10(3) of the Act, 1976 was published on 26.10.1984. That thereafter the Competent Authority sent a notice dated 30.11.1984 under Section 10(5) of the Act, 1976 to the respondents - original landowners to deliver vacant possession of the excess vacant land to Tehsildar.

2.3 That an appeal was preferred by the original landowners against the order passed by the Competent Authority declaring Ac. 0.865-7 land as excess vacant land, which came to be dismissed by the Board of Revenue - Appellate Court vide order dated 05.05.1987.

2.4 That according to the State the Tehsildar, Sadar, Cuttack, has taken over the possession of the land on 25.04.1988. The

respondents - original writ petitioners filed a writ petition being OJC No.2550 of 1987 before the High Court challenging the order passed by the Competent Authority dated 01.03.1984 as well as the order passed by the First Appellate Court - Board of Revenue. The said writ petition came to be dismissed for non-prosecution on 01.11.1991. After a period of approximately three years a restoration application was filed being M.J.C. No.10 of 1994. But the same came to be dismissed by the Division Bench by observing that the grounds for the delay are far from satisfactory and that there is no justification either for condoning the delay and annulling the earlier order of dismissal. However, the Division Bench observed that the petitioner may file a fresh petition, if permissible. That thereafter the respondents herein filed a fresh petition before the High Court being OJC No.4048 of 1994 again challenging the order passed by the competent authority dated 01.03.1984 as well as the order passed by the Board of Revenue dated 05.05.1987 which were as such subject matter of writ petition being OJC No.2550 of 1987, which was dismissed for non-prosecution on 01.11.1991. That an ex parte ad interim order was passed by the High Court on 10.06.1994 and it was ordered that the authorities may take over the possession of the vacant surplus land but will not change the nature or character of the land until further orders from the court."

8. At this stage, it must further be noted that in the counter affidavit filed in the present writ petition, the stand of the State was that the possession of the land in question had already been taken over on 25th April, 1988. A perusal of the said order dated 25th April, 1988 of the Tahasildar refers to the fact that the authorities undertook a demarcation of the land and surplus land was taken over by the F.I.SadarII and the Amin Sri G.C. Pattanaik on 2ndApril, 1988.

9. Indeed, the specific averment in the counter affidavit filed by the District Magistrate and Collector, Cuttack is "Tahasildar,

Sadear, Cuttack on 02.04.88 took over vacant possession of the case land as evident from letter No.2080 dated 25.4.88 and local map."It was repeatedly asserted in replies to paras 20, 21 and 21(a) of the writ petition as under:

"(r) That in reply to the averment made in Para-20 of the Writ Petition, it is respectfully submit that the Hon'ble High Court in Misc. case No.4229/94 arising out of OJC No.4048/94 have passed orders as follows:

"As an interim it is ordered that O.Ps. may take over possession of the vacant surplus land as determined in the orders Annexure-3 and 4 but they will not change the nature and character of the land until further orders from this Court."

But prior to this, the Tehasildar had taken over possession on 2.4.88 as evident from his letter No.2080 dt.25.4.88.

(s) That in reply to the averments made in Para-21, this deponent has nothing to comment.

(t) That in reply to the averments made in Para 21(a) of the Writ Petition, it is most respectfully submits that as per section 3(1)(a) of the Urban Land Ceiling and regulation Repeal Act, 1999 clearly stipulates the functioning of any eviction made under section-3 of Section-10 possession of which has been taken over by the State Government or any persons duly authorized by the State Government in this behalf or by the Competent Authority shall not be affected. Therefore, alleged plea to drop the ULC Case No.96/1976 does not arise at all."

10. The Petitioners have not been able to dispute the above averments by placing materials on record to prove that possession of the land in question was not taken over by the Tahasildar,Sadar, Cuttack. In the absence of any documents to show to the contrary, the Court has no difficulty in accepting the

case of the Opposite Parties that in fact vacant possession of the land was taken over way back on 25th April, 1988 itself.

11. As pointed out by the Supreme Court of India, one important aspect was the Resolution dated 5th April, 2002 and the Clarification issued by a Notification dated 24th July, 2002. The said Resolution reads as under:

"Thus as per the provisions laid down under the said Repeal Act, the following clarifications are issued.

i) No compensation should be paid for land, possession of which has not been taken over by the Govt. after vesting U/s. 10(3) of the Urban Land (Ceiling & Regulation) Act, 1976. The Legal process initiated under the said Act will also be closed.

ii) Where possession of land has been taken over and compensation has not been paid or partly paid, steps should be taken for payment of compensation.

iii) Continuance of Govt. Control over the exempted land is no more required with effect from 5.4.2002."

12. Once it is clear that the Government already took over the possession way back on 25th April 1988, which the Petitioners could not counter by placing any documents on record, all that was required to be donewas for the Government to take steps for payment of compensation. The question, therefore,of directing the return of the land to the Petitioners does not arise.

13. There are both savingsand repeal clauses in the ULC&RRA, which read as under:

"3. Savings.-- (1) The repeal of the principal Act shall not affect--

(a) the vesting of any vacant land under sub-section (3) of Section 10, possession of which has been taken over by the State Government or any person duly authorised by the State Government in this behalf or by the competent authority;

(b) the validity of any order granting exemption under sub- section (1) of Section 20 or any action taken thereunder, notwithstanding any judgment of any court to the contrary;

(c) any payment made to the State Government as a condition for granting exemption under sub-section (1) of Section 20.

(2) Where--

(a) any land is deemed to have vested in the State Government under sub-section (3) of Section 10 of the principal Act but possession of which has not been taken over by the State Government or any person duly authorised by the State Government in this behalf or by the competent authority; and

(b) any amount has been paid by the State Government with respect to such land then, such land shall not be restored unless the amount paid, if any, has been refunded to the State Government.

4. Abatement of legal proceedings.--All proceedings relating to any order made or purported to be made under the principal Act pending immediately before the commencement of this Act, before any court, tribunal or other authority shall abate:

Provided that this section shall not apply to the proceedings relating to sections 11, 12, 13 and 14 of the principal Act in so far as such proceedings are relatable to the land, possession of which has been taken over by the State Government or any person duly authorised by the State Government in this behalf or by the competent authority."

14. The effect of the above clauses has already been considered by the Supreme Court of India in the aforementioned judgment in the appeal filed by the State against the earlier order of this Court. The Supreme Court interpreted the repealing provisions thus:

"4.2 A fair reading of Sections 3 and 4 of the Repeal Act, 1999 makes it clear that all proceedings relating to any order made or purported to be made under the principal Act (Act, 1976) pending immediately before the commencement of the Repeal Act, 1999, before any court, tribunal or other authority shall abate. Section 4 of the Repeal Act shall not apply provided possession of land has been taken over by the State Government or any person duly authorised by the State Government in this behalf or by the competent authority. Therefore, if the possession of the surplus land/land has been taken over by the State Government or any person duly authorised by the State Government in this behalf or by the competent authority, in that case, the proceedings relating to any order made under the principal Act, 1976 shall not abate, meaning thereby that the Repeal Act, 1999 shall not affect all those proceedings with respect to the land of which the possession has been taken over. Therefore, before declaring the proceedings as having abated in view of Sections 3 and 4 of the Repeal Act, 1999, it has to be considered and decided whether possession of the surplus land/land has been taken over by the State Government or any person duly authorised by the State Government in this behalf or by the competent authority or not. If it is found and held that the possession of the surplus land has been taken over, in that case, the proceedings shall not be declared as having been abated."

15. Once it is clear that the possession of the surplus land has been taken over by the State Government then the proceedings cannot be declared as having abated.

16. Lastly, the effect of the order passed by this Court in the restoration application is required to be considered. The Court had while declining to restore the earlier writ petition,only allowed the filing of afresh petition ifthatwas otherwise 'permissible' in law.In the considered view of the Court, the present petition was not maintainable. Once the order dismissing the earlier petition i.e. OJC No.2550 of 1987 attained finality, the question of another writ petition being entertained seeking the same relief did not arise. In other words, there was no express leave granted by this Court for filinganother writ petition. All that was said wasthat a fresh writ petition could be filed 'if permissible'. Such petition is clearly not maintainable on the principles of res judicata particularly since the parties are the same, the issues are the same and the earlier decision has attained finality.

17. For all of the aforementioned reasons, the Court finds no merit in the present petition and it is dismissed as such. The interim orders, if any, stand vacated.

(S. Muralidhar) Chief Justice

(R. K. Pattanaik) Judge

M. Panda