Orissa High Court

Shrebatsa Mishra vs State Of Odisha And Others on 8 February, 2023

        IN THE HIGH COURT OF ORISSA AT CUTTACK

                           WP(C) No.4481 of 2018
   Shrebatsa Mishra                                ....                      Petitioner
                                        -versus-
   State of Odisha and others                      ....              Opposite Parties


   Advocates appeared in this case :

   For Petitioner :              Mr. S.S. Das, Advocate

   For Opposite Parties : Mr. P.K. Rout, A.G.A.
   CORAM:
   JUSTICE ARINDAM SINHA
   JUSTICE SANJAY KUMAR MISHRA

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                 Date of hearing and Judgment: 08.02.2023
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   ARINDAM SINHA, J.

1. Mr. Das, learned advocate appears on behalf of petitioner and

submits, impugned is communication dated 15th October, 2015,

whereby the administration informed his client that the Government

had been pleased to decide, due to non-availability of land, monetary

grant in lieu of land will be given to landless Jawans and landless ex-

service men, who have served in the forward areas during 26th

October, 1962 to 31st January, 1964. He submits, his client served at

the front in the period.

2. He draws attention to order dated 18th September, 2012 made

by coordinate Bench in his client's earlier writ petition WP(C)

no.3422 of 2006. Reproduced below are two paragraphs from said

order.

"xx xx xx Now Mr. Behera submits that the Tahasildar, Jatani, is taking steps for allotment of another land available within Jatani Tahasil in favour of the petitioner.

Considering the said submissions, we direct that the entire process of allotment of land in favour of the petitioner shall be completed within a period of three months from today. Personal appearance of Mr. Behera is dispensed with.

The writ petition is disposed of accordingly xx xx xx".

(emphasis supplied)

Mr. Das points out, counter has been filed. He draws attention to paragraph 8 in the counter and demonstrates that land was not given due to lack of identification, not lack of availability.

3. Mr. Das submits further, his client had made query under

Right to Information Act, 2005. The Public Information Officer

(PIO), Additional Tahasildar, Jatni answered the queries on

communication dated 15th September, 2021, disclosed by his client's

additional affidavit dated 20th September, 2021. The information

obtained by petitioner is reproduced below.

"With reference to your RTI Application dated 26.07.2021 I am to say that khata No.363, Plot No.129, area Ac 34.935 dec., Kissam-Puratanpatita in which 6 numbers of residential houses constructed over approximate area Ac.2.200 dec., some part of this plot used for playground and some portion of land growing forest and remaining area of the plot is vacate.

               Accordingly to point No-2
                        Yet   no   government     project     has   been
               sanctioned.
               Accordingly to point No-3
                        Applicant has not specified the matter of

information sought for. There is no provision for distribution (ଆବ ନ) of government land.

This is for your kind information."

(emphasis supplied)

4. On 18th November, 2022, in our order we had made

observations in context of said order dated 18th September, 2012.

Paragraphs 5 and 6 from our order is reproduced below.

"5. The administration through the Tahasildar, Jatani had submitted steps were being taken for allotment of another land available within Jatani Tahasil, in favour of petitioner. Thus there was direction for the entire process of allotment of land in

favour of petitioner to be completed. The order has become final. State does not have room to maneuver.

6. List on 28th November, 2022."

5. Mr. Rout, learned advocate, Additional Government Advocate

appears on behalf of State. Drawing attention to Resolution no.7390

dated 19th February, 2014, he points out, this resolution taken by the

Home Department and published by authority in Odisha Gazette

Extraordinary on 10th March, 2014 was basis for impugned

communication dated 15th October, 2015. Clause 5 is applicable to

petitioner. Sub-clause (ix) under the clause makes all pending cases

seeking agricultural land to be disposed of in accordance with the

resolution.

6. He relies on order made by the first Division Bench of this

Court in Pratima Mohanty V. State of Odisha, reported in 2021

(Supp.) OLR 766, paragraph 22, reproduced below.

"22. Indeed with the scarcity of land available for allotment, the Government is constrained to review the earlier policy and this per se cannot be said to be arbitrary or irrational. Viewed from any angle, it is not possible to agree with Mr. Mishra that there is a deliberate failure on the part of the Opposite Parties to adhere to the assurance given to the Petitioner's husband that he would be allotted land after he was found eligible way back in 1966.

The ingredients for applying the doctrine of legitimate expectation do not exist in the present case since the petitioner who had repeatedly refused to offers for allotment of land by insisting that the land which would be allotted in a particular location within Cuttack city when in fact at the same time she was insisting she needs the land for agricultural purposes."

He submits, petitioner's case stands covered by Pratima Mohanty

(supra). There should not be interference.

7. In reply Mr. Das submits, by impugned circular his client was

requested to furnish clear consent/willingness to avail monetary grant

with an undertaking not to proceed with Court proceeding. He

reiterates, his client is entitled to allotment as omission to allot was

not on scarcity of availability but lack of identification. There is

government land available, as demonstrated by information had on

the query made. Furthermore, upon there having been made said order

dated 18th September, 2012, his client's case for allotment stood

determined and disposed of on compliance directed by the coordinate

Bench, for the process of allotment to be completed within a period of

three months from that day. The resolution has no application to his

client's entitlement to allotment.

8. Order dated 18th September, 2012, made by coordinate Bench

in petitioner's earlier writ petition WP(C) no.3422 of 2006, carried

direction that the entire process of allotment of land in favour of

petitioner shall be completed within a period of three months from

that date. State neither sought review nor petitioned to the Supreme

Court for special leave to appeal therefrom. The direction has become

final, as we had observed earlier for notice of State. Hence,

petitioner's case for allotment cannot be said to be pending and

covered by the resolution. Decision was taken on allotment to be

made. There was omission on part of State to comply and thereafter to

not comply by reliance on the resolution passed long after, is State

trying to take advantage of its own wrong.

9. In Pratima Mohanty (supra), as will appear from reproduced

above paragraph 22, petitioner therein was wanting allotment of

agricultural land in a particular location within Cuttack city and it was

found that in fact at the same time she said she needs the land for

agricultural purposes. It was also found that the petitioner had

repeatedly refused the offers for allotment of land by such insistence.

In those facts the Court found lack of ingredients to apply doctrine of

legitimate expectation. As such, Pratima Mohanty (supra) does not

come to aid of contention raised by State in defending impugned

communication.

10. We reproduce below clauses 2 and 3 from Resolution dated

19th February, 2014.

"2. Now, the situation with regard to availability of land has further worsened with passage of time. It has become difficult to find Government land for implementation of projects even for developmental purposes funded from the State exchequer. In many occasions, land reserved for specific purposes in RoR are now required to be dereserved for other public purposes. Because Revenue & D.M. Department has not been able to meet the requirement of land for Administrative Department, a policy for direct purchase of private land for social development projects has, meanwhile been formulated and communicated in Revenue & D.M. Department Letter No.26223/R & D.M. dated the 6th July, 2013.

3. Therefore, in supersession of all previous Resolutions/instructions issued by Home Department in this regard from time to time, Government, after careful consideration, have been pleased to decide that monetary grant in lieu of agricultural land shall be given to the eligible Jawans who served in the forward areas during the period from the 26th October, 1962 to 31st January, 1964 and landless ex-servicemen. The amount of monetary grant in lieu of agricultural land in

each case shall be as indicated in column 3 of Annexure-I."

(emphasis supplied) The resolution refers to earlier resolutions, commencing with Home

Department Resolution dated 14th May, 1963.

11. It was commendable on part of the Central and State

Governments to formulate policy for giving allotment of land on

raiyati basis to the men in uniform, who had served at the front in the

period. The Centre and State had decided to invoke provisions in

Government Grants Act, 1895, since repealed and Odisha

Government Land Settlement Act, 1962, to implement object of the

decision, to allot. This was in recognition of those men and

acknowledgement for having so served. The recognition and

acknowledgement thereby is of significant importance as India is a

democracy and State action manifests will of the people. It appears,

the matter of expressing gratitude by allotment of land required

readiness and willingness on part of the Government. Of course, the

Government has also to provide for settlement of government lands

for other and further important emerging purposes. In this situation,

said Resolution dated 19th February, 2014 appears to be lowering the

readiness on part of the Government to allot to this category of

persons, in the order of priority relegated to be given monetary benefit

in lieu of allotment. The hostilities taken place between 26th October,

1962 to 31st January, 1964 obviously recedes from memory. Some

intended allottees have become litigants.

12. This writ petition is, in effect, to enforce direction made in the

earlier writ petition. In moulding the relief, we see it that way. We

agree with view taken by a learned Single Judge in the High Court at

Calcutta, on second writ petition being maintainable for enforcing

direction passed in the earlier. The view was taken in Indrapuri

Studio v. State of West Bengal, reported in 2003 (3) Calcutta High

Court Notes (CHN) 148. Paragraphs 35 to 37 of the judgment,

available at 2003 SCC Online Cal 236, are reproduced below.

"35. This writ petition is virtually a petition before this Court for enforcement of the order passed by this Court in the earlier writ petition. A second writ petition for enforcement of the earlier order is very much maintainable.

36. In the case of Bibekananda Mondal v. State of West Bengal, reported in (2003) 1 WBLR (Cal) 213, this Hon'ble Court specifically held that without initiating a proceeding for contempt, the Court can quash any order or proceeding done in disregard of such order which may also tantamount to contempt. The relevant portion from paragraph 6 of the said judgment is quoted hereunder:

"6. It is therefore, settled law that the second writ application is maintainable for implementation of an earlier order of the writ Court. This Court must issue proper directions for proper implementation of previous directions. Where there has been an order, the order must be complied with. An act done is wilful disobedience of a Court Order is not only contempt, but also, an illegal and invalid act. The language used in Article 226 of the Constitution of India is couched in comprehensive phraseology and the said Article recognizes a very wide power on the High Courts to remedy injustice wherever it is found."

37. The Supreme Court in the case of Devaki Nandan Prasad v. State of Bihar, reported in AIR 1983 SC 1134, entertained a second writ application under Article 32 of the Constitution of India and passed specific order directing the authority to do what was earlier directed by the Supreme Court on the first writ application."