Orissa High Court

Hadu Paltasingh vs State Of Orissa & Ors on 14 July, 2023

                   ORISSA HIGH COURT: CUTTACK

AFR                      W.P(C) NO. 23028 OF 2015

        In the matter of an application under Articles 226 and
        227 of the Constitution of India.
                              ---------------

        Hadu Paltasingh              .....               Petitioner


                                   -Versus-


        State of Orissa & Ors.       .....          Opp. Parties


            For petitioner     :   M/s. Tanmay Mishra and
                                   S. Senapati, Advocates

            For opp. parties : Mr. H.M. Dhal,
                               Addl. Govt. Advocate


        P R E S E N T:

THE HONOURABLE DR. JUSTICE B.R.SARANGI AND THE HONOURABLE MR JUSTICE MURAHARI SRI RAMAN

DECIDED ON : 14.07.2023

DR. B.R. SARANGI,J. The petitioner, by means of this writ

petition, seeks to quash the order dated 02.01.2015

passed in O.G.L.S Revision No.2 of 2014 under

Annexure-9, by which opposite party no.2-Collector,

Khurdha has cancelled the lease sanctioned in favour of // 2 //

the petitioner as per Section 7-A(3) of the Odisha

Government Land Settlement (Amendment) Act, 2013.

2. The factual matrix of the case, in brief, is that

the petitioner had filed an application in prescribed

format under the Orissa Government Land Settlement

Act, 1962, (hereinafter to be referred in short as

"OGLS Act, 1962") before the competent authority on

15.04.1976 for grant of lease of a piece of land

measuring Ac.4.000 dec. out of plot no.910/1126

under khata no.293 in Mouza-Nayakote for agriculture

purpose. In pursuance thereof, W.L. Case No.98 of

1976 was instituted and a notice was published by the

Tahasildar, Khurda inviting objections from the

general public. A notice was also sent to the concerned

Gram Panchayat, i.e., Olasingha G.P., where the land

is situated, which was received by the then

Sarapanch, Olasingha G.P. Thereafter, the Tahasildar,

Khurda also directed the Revenue Inspector to cause

an enquiry regarding the statements made by the

petitioner in his application form. In response thereto,

the R.I. enquired into the matter, as per provisions of // 3 //

the OGLS Act, 1962 and the OGLS Rules, 1974 about

the eligibility of the petitioner regarding his landed

property, income, etc., and submitted his report before

the Tahasildar for settlement of the land. After due

enquiry and after receipt of the report from the

Panchayat, following due procedure as laid down in

the statute, the Tahasildar leased out one acre of land

in favour of the petitioner, vide order dated

26.08.1978.

2.1 As per the order of the Tahasildar, the R.I.

went to the spot and after necessary measurement,

handed over possession of the land to the petitioner.

The Tahasildar also issued Form 'K' in favour of the

petitioner. Since then the petitioner is in peaceful

possession of the land till date.

2.2 While the matter stood thus, on the report of

opposite party no.3-Sub-Collector, Khurdha, opposite

party no.2-Collector, Khurda initiated a proceeding

under Section 7-A(3) of OGLS (Amendment) Act, 2013

by instituting OGLS Revision No.2 of 2014 and issued

a show-cause notice dated 12.08.2014 to the // 4 //

petitioner alleging that the land has been settled in his

favour under a mistake of fact and on account of

material irregularity of procedure.

2.3 After receiving the show-cause notice, the

petitioner filed his show-cause reply dated 09.09.2014

(Annexure-8) in OGLS Revision No.2 of 2014 annexing

all the documents, which he had received under the

Right to Information Act, 2005, denying and disputing

all the allegations. It was specifically submitted by the

petitioner that before granting lease in his favour, the

provisions of the OGLS Act, 1962 and the OGLS Rules,

1974 had been properly followed and there was no

irregularity in granting lease in his favour. It was

further stated that the findings given by the Sub-

Collector in his enquiry report, which formed the basis

for initiation of the revision proceeding, have no basis

at all and perverse, for which dismissal of the revision

case was prayed.

2.4 Opposite party no.2-Collector, Khurdha,

without verifying the documents filed by the petitioner

and without considering the objection filed by the // 5 //

petitioner and without taking into account the

material evidences available on record in their proper

perspective, passed the impugned order dated

02.01.2015 in OGLS Revision No.2 of 2014, whereby

the lease sanctioned in favour of the petitioner was

cancelled. It is also alleged that no specific finding

with regard to his objection was given by the revisional

authority. Hence, this writ petition.

3. Mr. S. Senapati, learned counsel appearing

for the petitioner vehemently contended that since the

land in question was settled in favour of the petitioner

in the year 1978, the OGLS (Amendment) Act, 2013 is

not applicable to the case of the petitioner. Thus,

initiation of the revision proceeding under Section 7-

A(3) of the OGLS Act, 1962 as per said amendment

after 36 years of settlement of the land is not

maintainable in the eye of law. It is contended that if

the statute prescribes a mode to do in a particular

manner, without assigning any reason and without

following due procedure, the action taken by opposite

party no.2-Collector, Khurda cancelling the lease // 6 //

granted in favour of the petitioner cannot be sustained

in the eye of law, as he had got the lease settled in his

favour by following due procedure. It is further

contended that though the petitioner had taken a

specific plea in his application and also advanced

argument at the time of hearing, the same was not

taken into consideration nor any finding has been

recorded to that effect by the Collector, Khrdha, while

passing the impugned order dated 02.01.2015 in

OGLS Revision No.2 of 2014. Thereby, the said order

cannot be sustained in the eye of law, being without

jurisdiction, and is liable to be quashed. The action of

the Collector, Khurdha is hit by limitation under

Section 7A(3) of the OGLS Act, 1962. To substantiate

his contentions, he has relied upon Purna Ch.

Pradhan v. State of Orissa & Ors, 2006(I) OLR 184;

Nirmal Kumar Pattnaik v. State of Orissa & Ors.,

2012(Supp.-II) OLR 450 and Bata Krushna Nayak v.

State of Orissa & three Ors.,2010 (I) OLR 723.

4. Mr. H.M. Dhal, learned Addl. Government

Advocate appearing for the opposite parties contended // 7 //

that since there were irregularities in the settlement of

land in favour of the petitioner, the same having been

detected on perusal of the records and report of the

Sub-Collector, Khurdha, the Collector, Khurdha

issued notice to the petitioner by initiating OGLS

Revision No.2 of 2014. Thereby, after giving

opportunity of hearing to the petitioner, the Collector,

Khurdha passed the impugned order dated 02.01.2015

in OGLS Revision No.2 of 2014 cancelling the lease

sanctioned in favour of the petitioner as per Section 7-

A(3) of the OGLS (Amendment) Act, 2013. Therefore,

the Collector, Khurdha has not committed any

illegality or irregularity in passing the impugned order

so as to cause interference by this Court at this stage.

5. This Court heard Mr. S. Senapati, learned

counsel appearing for the petitioner and Mr. H.M. Dhal,

learned Addl. Government Advocate appearing for the

State-opposite parties in hybrid mode. Pleadings have

been exchanged between the parties and with the

consent of learned counsel for the parties, the writ // 8 //

petition is being disposed of finally at the stage of

admission.

6. Before delving into the issue involved in this

case, the relevant provisions of Section 7-A(3) of the

OGLS Act, 1962, as they existed prior to amendment

vide the OGLS (Amendment) Act, 2013, are reproduced

herein below:-

"The Collector may, of his own motion or otherwise, call for and examine the records of any proceeding in which any authority, subordinate to it has passed an order under this Act for the purpose of satisfying himself that any such order was not passed under a mistake of fact or owing to a fraud or misrepresentation or on account of any material irregularity of procedure and may pass such order thereon as he thinks fit.

Provided that no order shall be passed under this sub-section unless the person affected by the proposed order has been given a reasonable opportunity of being heard in the matter.

Provided further that no proceeding under this sub-section shall be initiated after the expiry of fourteen years from the date of the order."

7. As per the second proviso to Section 7-A(3),

no proceeding under this sub-section shall be initiated

after the expiry of fourteen years from the date of the

order. But the aforesaid provisions by way of

amendment have been substituted on 13.11.2013. By // 9 //

virtue of amendment, the limitation period of 14 years,

as per second proviso to Section 7A(3), has been

removed. But fact remains, initiation of cancellation

proceeding of lease granted vide W.L. Lease Case No.98

of 1976 was made on 08.08.2014 by issuing notice to

the petitioner and by that time 14 years from the date of

settlement of the land in favour of the petitioner had

expired. More so, the notice does not contain anything

with regard to any irregularity committed in the

allotment of land in favour of the petitioner. In absence

of any specific mention with regard to the same in the

notice nor in order dated 08.08.2014 directing for issue

of notice, the impugned action taken under Section

7A(3) of the OGLS Act, 1962 cannot be sustained in the

eye of law.

8. Apart from the same, the petitioner had

specifically pleaded in paragraph-7 of his objection to

the following effect:-

"7. That the second proviso to Sub-Section-(3) of Section-7-A of O.G.L.S. Act, specifically provides that no proceeding under the said section shall be initiated after expiry of 14 years from the date of order. It is also well settled principle of law that the authority has no jurisdiction to initiate any proceeding U/s.7-A(3) of O.G.L.S. Act, after // 10 //

expiry of 14 years and initiation of any Revision proceeding U/s.7-A(3) of O.G.L.S. Act, 1962 after expiry of 14 years from the date of order of settlement of land is not maintainable in the eye of law. It is humbly submitted that as the land in question has been settled in the year 1978, the amendment act is not applicable to the case of the applicant/Opp. Party. Therefore, as the present revision proceeding U/s.7-A(3) of O.G.L.S. Act, 1962 has been initiated after about 36 years of settlement of land, it is not maintainable in the eye of law and the same is liable to be dropped/dismissed."

Referring to such averment, learned counsel for the

petitioner advanced his argument, but on perusal of the

order impugned, it would be apparent that no finding to

that effect has been recorded nor has any discussion

been made in regard to the same therein. The Collector,

Khurdha is duty bound to answer the argument

advanced on behalf of the petitioner, when the question

of law is involved and more so when such pleadings are

available in the objection filed by the petitioner.

8.1 In this connection it is worthwhile to notice

the principles of exercise of power with reference to

limitation provided under the statute as laid down in

various judgments.

// 11 //

It has been succinctly laid down by the

Supreme Court of India in Thirumalai Chemicals Ltd.

v. Union of India, (2011) 6 SCC 739 as follows:

"Limitation provisions, therefore, can be procedural in the context of one set of facts but substantive in the context of different set of facts because rights can accrue to both the parties. In such a situation, test is to see whether the statute, if applied retrospectively to a particular type of case, would impair existing rights and obligations. An accrued right to plead a time bar, which is acquired after the lapse of the statutory period, is nevertheless a right, even though it arises under an Act which is procedural and a right which is not to be taken away pleading retrospective operation unless a contrary intention is discernible from the statute Therefore, unless the language clearly manifests in express terms or by necessary implication, a contrary intention a statute divesting vested rights is to be construed as prospective. A statute, merely procedural is to be construed as retrospective and a statute while procedural in nature affects vested rights adversely is to be construed as prospective."

It is not a case for enforcement of right but it

is a case of exercise of power by the authority designated

under the relevant statute. When the officer has taken

recourse to the proceedings and exercised his power, it

has to be in accord with the provisions at the time the

authority under the statute seeks to exercise power

conferred by the statute. It goes without saying that

such exercise of power has to be in accordance with the

conditions under which such power can be exercised.

// 12 //

There is no vested right in any authority to exercise

powers in future. In State of UP v. Aryaverth Chawl

Udyog, (2015) 17 SCC 324 the Supreme Court of India

referring to S.C. Prashar v. Vasantsen Dwarkadas,

(1964) 1 SCR 29, observed as follows:

"35. It would be relevant here to notice the observations of the Constitution Bench of this Court in S.C. Prashar Vrs.

VasantsenDwarkadas, (1964) 1 SCR 29 = (1963) 49 ITR 1. Kapur, J., in a separate judgment, quoting the Privy Council in Delhi Cloth & General Mills Co. Ltd.Vrs. ITC, (1926-27) 54 IA 421 = 1927 SCC OnLine PC 76 has brought home the point that if after change in law, the period of time prescribed for action by the Tax Authorities has already expired, then subsequent change in the law does not make it so retrospective in its effect as to revive the power of the Tax Authority to take action under the new law. The relevant observations are as follows: [S.C. PrasharVrs. VasantsenDwarkadas, (1964) 1 SCR 29 = (1963) 49 ITR 1, SCR pp. 73- 74]

"*** In Delhi Cloth & General Mills Co. Ltd.Vrs. ITC, (1926-27) 54 IA 421 = 1927 SCC OnLine PC 76, it was held that no appeal lay against the decision of a High Court if it was given before appeals to the Privy Council were provided for. In that connection Lord Blanesburgh observed at p. 425: (IA p. 425 = SCC OnLine PC)

'*** their Lordships can have no doubt that provisions which, if applied retrospectively, would deprive of their existing finality orders which, when the statute came into force, were final are provisions which touch existing rights.'

In all these cases the Privy Council proceeded on the principle that if the right of action had become barred according to the law of limitation in force, subsequent enlargement of the period of time does not revive the remedy to enforce the rights already // 13 //

barred. The same principle, in my opinion, would apply to the periods specified in Section 34 of the Act and if the period prescribed for taking action had already expired, subsequent change in the law does not make it so retrospective in its effect as to revive the power of an Income Tax Officer to take action under the new law. It is one of the canons of construction of statute of limitation that in the absence of express words, a necessary intendment, no change in the period of limitation can revive the right to sue which has become barred nor can it impair the immunity from any action which had become final after the lapse of a specified period of time."

When a statute confers any power on a statutory

authority, howsoever wide the discretion may be, it

should be exercised with circumspection; such power

must not smack arbitrariness, mechanical application

of mind and backed by whims and caprice. In such

cases, the power so exercised cannot be said to

withstand the test of judicial scrutiny.

In the present case, as is apparent from the

record, the Collector, Khurdha initiated proceeding on

08.08.2014 which is around 36 years after from the

date of order of the Tashasildar, i.e., 26.08.1978, is

flagrant violation of the provisions ignoring purport of

the second proviso to Section 7A(3) of the OGLS Act, as // 14 //

it stood at the relevant point of time. In such view of the

matter, the exercise of power of revision is beyond the

period stipulated under the second proviso to Section

7A(3) of the OGLS Act.

8.2. Reliance was placed on behalf of the

petitioner on Purna Ch. Pradhan (supra), wherein this

Court took note of the fact that in case fraud committed

on the authority for obtaining a lease, the date of

detection of such fraud would be the relevant date for

calculation of the period of limitation. The second

proviso to Section-7-A(3) of the OGLS Act, 1962

provides that no proceeding under the said Section

shall be initiated after expiry of 14 years from the date

of order. Therefore, the initiation of the proceeding

against the petitioner by the authority is wholly without

jurisdiction.

8.3. In Bata Krushna Nayak (supra), this Court

also held that the original lease was granted long back

in 1974 whereas the order of the revisional authority

was passed in 1998, i.e. about 24 years after the grant

of lease. Therefore, under the second proviso to Section-

// 15 //

7-A(3), no proceeding can be initiated after expiry of

fourteen years from the date of the order granting lease.

8.4. In Nirmal Kumar Pattanaik (supra), this

Court held that suo motu lease revision initiated under

Section 7-A(3) of the OGLS Act, 1962 after a lapse of 25

years is without jurisdiction.

9. No doubt, there was no question of any

fraud or misrepresentation on the part of the petitioner

for settlement of land in his favour nor is it the case of

the opposite parties that the petitioner had committed

any fraud or misrepresentation in settling the land in

his favour. Law is well settled that fraud vitiates every

solemn action and thereby the entire proceeding. As

such, in absence of any allegation of fraud on the part

of the petitioner and misrepresentation by the

petitioner, the impugned order cannot be sustained in

the eye of law.

10. As it appears, the Collector, Khurdha, on

perusal of the connected records received from the

Tahasildar and the report of the Sub-Collector,

Khurdha, found irregularities. The relevant part of the // 16 //

order impugned containing the findings of the Collector,

Khurdha to the above effect are extracted hereunder:-

"1) No proper enquiries were conducted about the eligibility and availability of the land in the name of the lessee and family members.

2) Priority has not been maintained as per Section 3(2) of the Act where it has been stipulated that 70% of the land should be settled in favour of the STs & SCs.

3) Enquiry has also not been conducted properly about the income of the lessee and her wife as per the section 5(3) of the rules.

4) Proclamation has not been made as per the rules 5(4) by beat of drum in village as well as in the panchayat.

5) The most and vital point is that an area of Ac 0.450 dec of land also been sanctioned in the name of the wife of the lessee Kamala Dei from the same plot vide the W.L. case no.1133/78-79 in the same manner and same procedure."

From the above, it can be safely inferred that, while

passing order dated 08.08.2014 for issuing notice to the

petitioner, nothing was pointed out as to what

irregularities were committed and, as such,

irregularities have been taken note of by the Collector,

Khurdha on perusal of the records and report of the

Sub-Collector, Khurdha, that too without giving

opportunity of hearing to the petitioner. The Collector,

without independent application of mind, simply

directed to issue notice under Section 7A(3) of the OGLS

Act, 1962 based on review note of Sub-Collector.

// 17 //

11. The first proviso to Section 7A(3) makes it

clear that no order shall be passed under this sub-

section unless the person affected by the proposed

order has been given a reasonable opportunity of being

heard in the matter. Therefore, if some irregularities

were pointed out on perusal of the records, it was

incumbent upon the Collector, Khurdha to point out the

same to the petitioner by giving opportunity of hearing.

Without doing so, the finding arrived at by the

Collector, Khurdha, that irregularities were committed

in the matter of settlement of the land in favour of the

petitioner, cannot be sustained in the eye of law.

Therefore, the impugned order has been passed without

complying with the principles of natural justice.

11.1. The soul of natural justice is 'fair play in

action'.

In HK (An Infant) in re, 1967 1 All ER 226

(DC), Lord Parker, CJU, preferred to describe natural

justice as 'a duty to act fairly'.

In Fairmount Investments Ltd. V. Secy of

State for Environment, 1976 2 ALL ER 865 (HL), Lord // 18 //

Russel of Killowen somewhat picturesquely described

natural justice as 'a fair crack of the whip'.

In R. v. Secy. Of State for Home Affairs, ex

p. Hosenball, Geoffrey Lane, LJ, 1977 3 All ER 452

(DC & CA), preferred the homely phrase 'common

fairness' in defining natural justice.

Natural justice, another name of which sense

justice, is the name of those principles which constitute

the minimum requirement of justice and without

adherence to which justice would be a travesty. Natural

justice accordingly stands for that "fundamental quality

of fairness which being adopted, justice not only be done

but also appears to be done".

12. In Swadeshi Cotton Mills v. Union of India,

AIR 1981 SC 818, the meaning of natural justice came

up for consideration and the apex Court held as follows:-

"The phase is not capable of a static and precise definition. It cannot be imprisoned in the straight-jacket of cast-iron formula. Historically, "natural justice" has been used in a way, "which implies the existence of moral principles of self evident and unarguable truth", "natural justice" by Paul Jackson, 2nd Ed. Page-1, In course of time, judges nurtured in the traditions of British jurisprudence, often invoked it in conjunction with a reference to // 19 //

"equity and good conscience". Legal experts of earlier generations did not draw any distinction between "natural justice" and "natural law". "Natural justice" was considered as "that part of natural law which relates to the administration of justice".

13. In Bhagwan v. Ramchand, AIR 1965 SC

1767, the apex Court held that the rule of law demands

that the power to determine questions affecting rights of

citizens would impose the limitation that the power

should be exercised in conformity with the principles of

natural justice.

14. In Union of India v. Mohd. Ramzan Khan,

AIR 1991 SC 471 : (1991) 1 SCC 588, the Three-Judge

Bench of the apex Court clarified that non-furnishing of

the report would amount to violation of the rules of

natural justice and make the final order liable to

challenge.

15. The aforesaid question had ultimately came

up for consideration before a Constitutional Bench in

the case of Managing Director, ECIL v. B. Karunakar,

AIR 1994 SC 1074 : (1993) 4 SCC 727, wherein relying

upon the Five-Judge Bench view in Union of India v.

// 20 //

Tulsiram Patel, AIR 1987 SC 1919 : (1986) 3 SCC 35,

the apex Court considered the question whether after

Forty-second Amendment the charged employee was

entitled to demand a second opportunity and came to

the conclusion that whatever right such an employee

had of a second opportunity to show cause against the

proposed punishment had been taken away by the

Forty-second Amendment and there was no provisions of

law under which a Government servant could claim that

right. But in B. Karunakar (supra), the apex Court

explained that in Tulsiram Patel (supra) the Court had

not dealt with the procedure to be followed by the

disciplinary authority after the inquiry officer's report is

received by it. The question whether the delinquent

employee should be heard by the disciplinary authority

to prove his innocence of the charges levelled against

him when they were held to have been proved by the

enquiry officer, although he need not be heard on the

question of the proposed penalty, was neither raised nor

answered in Tulsiram Patel (supra). The Constitution

Bench in B. Karunakar (supra) approved the approach

taken in Union of India & Ors. v. E. Bashyan, AIR // 21 //

1988 SC 1000 and the decision in Mohd. Ramzan

Khan (supra) to the effect that whenever the enquiry

officer is other than the disciplinary authority and the

report of the enquiry officer held the employee guilty of

all or any of the charges with proposal for any

punishment or not, the delinquent employee was

entitled to a copy of the report to enable him to make a

representation to the disciplinary authority against it

and the non-furnishing of the report amounted to

violation of the principles of natural justice. Though the

aforementioned matter is decided in the context of a

service dispute, the underlying principle is very much

applicable so far as compliance of the principle of

natural justice is concerned.

16. In view of the discussions made above, this

Court is of the considered view that very initiation of the

proceedings under Section 7A(3) of the OGLS Act by the

Collector, Khurdha in OGLS Revision No.2 of 2014,

without specifying the details of the irregularities said

to have been committed in the matter of settlement of

the land in favour of the petitioner, amounts to non-

// 22 //

compliance of the principles of natural justice and the

action taken in the said revision case is barred by

limitation provided under second proviso to Section

7A(3). Therefore, the order dated 02.01.2015 passed by

the Collector, Khurdha in OGLS Revision No.2 of 2014

cancelling the lease sanctioned in favour of the

petitioner as per Section 7A(3) of the OGLS

(Amendment) Act, 2013, having been passed after a

long lapse of 36 years, cannot be sustained in the eye of

law. Accordingly, the order impugned is liable to be

quashed and is hereby quashed.

17. In the result, the writ petition stands allowed,

but, however, under the circumstances of the case there

shall be no order as to costs.





                                                                 (DR. B.R. SARANGI)
                                                                      JUDGE


           M.S. RAMAN, J.                   I agree.


Signature Not Verified                                             (M.S. RAMAN)
Digitally Signed
                                                                       JUDGE
Signed by: ALOK RANJAN SETHY
Designation: Secretary
Reason: Authentication
Location: Orissa High Court