Orissa High Court

Prabodha Kumar Senapati And vs State Of Odisha And Others on 10 February, 2023

         IN THE HIGH COURT OF ORISSA AT CUTTACK
                               WP(C) No.19056 of 2022

      Prabodha Kumar Senapati and                     ....                     Petitioners
      others
                                           -versus-
      State of Odisha and others                      ....              Opposite Parties


      Advocates appeared in this case :

      For Petitioner :              Mr. Suryakanta Dash, Advocate
                                    Mr. H. K. Moharana, Advocate

      For Opposite Parties : Mr. A. K. Nanda, AGA
                             Mr. A. K. Sharma, AGA

      CORAM:
      JUSTICE ARINDAM SINHA
      JUSTICE SANJAY KUMAR MISHRA

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                      Date of hearing and Judgment 10.02.2023
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ARINDAM SINHA, J.

1. Mr. Dash, learned advocate appears on behalf of petitioners. They are

ten in number. On query from Court Mr. Dash submits, they are villagers and

representing cause of the village.

2. He submits, by order dated 13th June, 2022 the Tahsildar purported to

find that plot no.3097 in Hal khata, of area 88 decimals and having kissam

'Smasan' has lost its character since long and not being used for the purpose.

Accordingly, kissam of the land was directed to be changed to 'Patita' from

Sarbsadharana khata to Abada Jogya Anabadi khata, for alienation in favour

of Commerce and Transport Department, Government of Odisha, to construct

Bus Stand.

3. He takes us back in time, to notification dated 30th May, 1988 to point

out that the Smasan was in plot no.3343 in Sabik khata no.643, having area

1.32 acres. By the notification there was made exchange by taking away 36

decimals from the Smasan, to give corresponding area from plot no.3341 in

Sabik khata no.49, having area of 45 decimals. He submits, though the

Government took way land from the Smasan, it did not effect the exchange.

As such, the Smasan stood reduced to area below 1 acre from original 1.32

acre.

4. He submits, therefore, objections put in by the villagers were not duly

considered by the authorities in proposing to appropriate from the remaining

area of Sarbsadharana Smasan, 88 decimals, by saying that the land has not

been used for the purpose, since long. On query from Court he submits,

prayers in the writ potion are twofold. Firstly, to prevent alienation of 88

decimals as has now been sought to be made and secondly, for enforcement

of the exchange regarding 36 decimals of land earlier taken away by the

Government.

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

appears on behalf of State. He submits, the Gram Panchayat by resolution

no.2 dated 30th June, 2022 said that the land has completely lost its

characteristics. It is not being used as Smasan place since last 100 years and

there is no sign of any cremation structure existing over it. The resolution

goes on to say that for local development, the Panchayat wants to de-reserve

this Smasan kissam land to Patita-cum-Abadi Jogya Anabadi khata, for

eventual alienation of suit land in favour of Road Transport and Commerce

Department, to develop Bus Stand-cum-Market Complex and the Punchayat

has no objection if same is effected for the purpose by Revenue authority

Tahsildar. He then points out from circular dated 27th August, 2014 that it had

reference to judgment of the Supreme Court in Jagpal Singh v. State of

Punjab, reported in (2011) 11 SCC 396. He refers to sub-clause (j) in clause

3 of the circular. We reproduce the sub-clause.

"3.(j) Where the land is recorded as smasana/burial ground/grave yard etc., in the record of rights and the same is absolutely required for the project, the requisitioning authority shall have to provide equal extent of suitable alternate sites having similar facilities as are

available at the existing sites. The classification of land required by the requisitioning authority may be changed under the provisions of Rule 34(e) of the Orissa Survey and Settlement Rules, 1962."

(emphasis supplied)

6. He also points out that de-reservation case no.11/22 has been initiated.

By order dated 13th June, 2022 the Tahsildar acknowledged the requirement

for providing land in exchange. He submits, it will appear from said order

that plot no.1923 in khata no.1892 having 93 decimals has been identified

thereby, for alienating 88 decimals bearing kissam 'Gochar' to Smasan. The

land is in mouza Gop.

7. On query from Court regarding alienation earlier of 36 decimals

without land given in exchange, as contended by petitioners, he hands up

order-sheet in WP(C) no.37183 of 2022 (Md. Idrish Saha and others vs.

State of Odisha and others), carrying orders made by the Single Bench

including, inter alia, direction for interim measure to maintain status-quo. He

submits, there are encroachments on the land of area 36 decimal, intended to

be given in exchange. On encroachment case initiated, this Court has

interfered and directed status-quo to be maintained. That is why the exchange

could not and cannot be effected.

8. We have not been shown any contemporaneous or immediately

preceding evidence, for the Tahsidlar to have found by said order dated 13th

June, 2022 that the land comprising of plot no.3097of area 88 decimals has

lost its character since long and not been used for the purpose. Resolution of

the Gram Panchayat came after the order, on 30th June, 2022. It appears from

said order dated 13th June, 2022 itself that on the contrary there was objection

before the Tahsildar. On top of that we are not prepared to accept that

notification dated 30th May, 1988 was issued on non-application of mind, in

respect of land that had lost its character of purpose, in notifying exchange in

respect of 36 decimals. It transpires that in the name of development the

Government is seeking to alienate vacant land earmarked for communal

purpose citing judgment of the Supreme Court and reporting compliance of

exchange but, the land offered in exchange was encumbered and occupied.

As a result, land for communal purpose is therefore disappearing.

9. We reproduce below paragraph 4 from Jagpal Singh (supra).

"4. What we have witnessed since Independence, however, is that in large parts of the country this common village land has been grabbed by unscrupulous persons using muscle power, money power or political clout, and in many States now there is no an inch of such land left for the common use of the people of the village, though it may exist on paper. People with power and pelf operating in villages

all over India systematically encroached upon communal lands and put them to uses totally inconsistent with their original character, for personal aggrandisement at the cost of the village community. This was done with active connivance of the State authorities and local powerful vested interests and goondas. This appeal is a glaring example of this lamentable state of affairs."

10. Opposite party nos.3 and 4 are directed to first complete alienation in

respect of 36 decimals in plot no.3341, recorded in Sabik khata 49 and ensure

access for communal user. The second prayer stands allowed.

11. On compliance with above direction said opposite party nos.3 and 4

will, as condition precedent for alienation of 88 decimals earmarked for Bus

Stand and, as the Panchayat says, also for market complex, first alienate plot

no.1923 in khata no.1892 of mouza Gop bearing kissam 'Gochar' to mutate it

as kissam 'Smasan' in respect of 88 decimals along with ensuring access for

communal user. Mr. Dash submits, the proposed exchange land is 8 km.

away from the village. Whether or not the proposed land for exchange is a

suitable alternate site having similar facilities as are available in the existing

site not being subject matter of this writ petition, we are not required to go