Lambodar Prasad Singh vs State Of Odisha & Ors
2023 Latest Caselaw 11188 Ori

                   ORISSA HIGH COURT: CUTTACK

AFR                      W.P(C) NO. 1465 OF 2015

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

Lambodar Prasad Singh and Anr. ..... Petitioners

-Versus-

State of Odisha & Ors. ..... Opp. Parties

For petitioners : M/s. (Ms.) Pratyusha Naidu, G.R. Mohapatra and A. Das, Advocates

For opp. parties : Mr. A.K. Mishra, Addl. Government 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 : 13.09.2023

DR. B.R. SARANGI, J. Assailing the order dated 02.08.2014

under Annexure-5 passed by the Additional District

Magistrate, Bhubaneswar in Revision Case No.889 of

1998 cancelling the lease after 24 years by exercising

power under Section 7A of the Odisha Government // 2 //

Land Settlement Act, 1962 (for short the "OGLS Act,

1962"), the petitioners have approached this Court by

filing this writ petition.

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

that opposite party no.4-Jhari Nayak, being a

landless person, applied for settlement of certain

Government lands in his favour. On the basis of his

application, W.L. Case No.2868 of 1974 was registered

before the Tahasildar, Bhubaneswar. After observing

all formalities, like issuing public notice, inviting

objection etc., the Tahasildar, Bhubaneswar

conducted field enquiry and also enquired through

Amin as well as R.I with regard to the genuineness

of the applicant. After being satisfied that opposite

party no.4-Jhari Nayak has satisfied the eligibility

criteria, as stipulated under Section 3 (3) of the OGLS

Act, 1962, that he was a poor person and did not

possess more than one standard acre of land and was

a landless agricultural labourer, the Tahasildar,

Bhubaneswar settled Ac.1.500 decimals of land in

favour of opposite party no.4 and granted lease in his // 3 //

favour in the year 1974. On the basis of the

settlement, opposite party no.4-Jhari Nayak applied

to the Tahasil authorities and, accordingly, ROR

was prepared in his name.

2.1. After obtaining lease, opposite party

no.4-Jhari Nayak was in cultivating possession of

the land for more than 11 years. But, due to rapid

growth in and around Bhubaneswar city in those

years and the lands surrounding the leasehold land

of opposite party no.4-Jhari Nayak were converted

into homestead lands and buildings came up all

round, consequentially it became difficult for him to

cultivate the lands to earn his livelihood. Having no

other way out, for the sake of survival, said opposite

party no.4-Jhari Nayak, who is a Scheduled Caste

person applied for permission under Section 22(1)(b)

and (4) of the O.L.R Act, being registered as Revenue

Misc. Case No. 122 of 1983, before the Tahasildar,

Bhubaneswar and concerned authorities to permit

him to transfer the lands in favour of the petitioners

as well as some others.

// 4 //

2.2. After being satisfied with the cause shown,

the Revenue Officer, granted permission to opposite

party no.4-Jhari Nayak to alienate the properties so

as to enable him to purchase cultivable lands at a

separate place and earn his livelihood. After

obtaining permission from the Revenue

Officer, Bhubaneswar, opposite party no.4 executed

registered sale deed no.8675 dated 17.08.1983

alienating an area of Ac. 0.250 in favour of

petitioner no.2 and another sale deed bearing no. 8677

on the same date alienating Ac. 0.250 dec. in favour

of petitioner no.1 out of plot no.1400/1761, khata

no. 325/129 of Mouza-Pathargadia. The sale deeds

were duly registered before the Sub-Registrar,

Bhubaneswar.

2.3. After purchasing the lands through the

registered sale deeds dated 17.08.1983, the petitioners

applied for mutation of the lands in their favour and the

competent revenue authority, after scrutinizing all the

documents, being satisfied that the sale was in

accordance with law and was otherwise permissible and // 5 //

that the petitioners have acquired valid right, title and

interest over the lands purchased by them, allowed

mutation and issued RORs in favour of the petitioners.

2.4. The petitioners also regularly paid rent and

possessed the land as rightful owners since 1983. At

this point of time, a suo motu revision was initiated

being W.L. Revision Case No. 889 of 1998 by the

Additional District Magistrate, Bhubaneswar, in

exercise of powers conferred upon him under Section

7A of OGLS Act, 1962 against opposite party no.4-Jhari

Nayak alone, in which the petitioners were not

impleaded as parties though the authorities had

granted permission to opposite party no.4-Jhari

Nayak to alienate the properties in favour of the

petitioners. Since opposite party no.4-Jhari Nayak

did not contest the case, as he had no interest in the

land, the Additional District Magistrate, Bhubaneswar,

vide order dated 11.08.1998, allowed the Revision Case

No.889 of 1998 without giving opportunity of hearing to

the petitioners, who had valid right, title and interest

over the properties.

// 6 //

2.5. Challenging the said order dated 11.08.1998

passed by the Additional District Magistrate,

Bhubaneswar, the petitioners approached this Court by

filing W.P.(C) No.4793 of 2004 seeking to quash the

order of cancellation of the lease granted in favour

of the opposite party no.4, mainly on the ground that

the said order was passed behind the back of the

petitioners and, as such, there was gross violation of

the provisions of OGLS Act, 1962.

2.6. This Court, vide order dated 03.08.2005,

taking note of the flagrant violation of the principles

of natural justice and equity was pleased to set aside

the order dated 11.08.1998 cancelling the lease

passed in Revision Case No.889 of 1998 and

directed the Additional District Magistrate,

Bhubaneswar to conduct de-novo hearing and

dispose of the said revision case after giving

opportunity of hearing to the petitioners. To avoid

unnecessary delay, this Court also directed the

petitioners to appear before the concerned

authorities on 09.08.2005 and file their show cause.

// 7 //

The Additional District Magistrate, Bhubaneswar

was also directed to dispose of the said revision case

as expeditiously as possible.

2.7. In compliance of the said order, the

petitioners appeared before the Additional District

Magistrate, Bhubaneswar on the date fixed and

submitted certified copy of the order dated

03.08.2005. But instead of taking any initiative to

dispose of the said revision case, the Additional

District Magistrate, Bhubaneswar adjourned the

case from time to time and by this process, 31

adjournments were made from 2002 to 2013.

Therefore, against the inaction of the authority, the

petitioners again approached this Court by filing

W.P.(C) No.299 of 2013 and this Court, vide order

dated 09.07.2013, disposed of the said writ petition

with a direction to the Additional District Magistrate,

Bhubaneswar to dispose of the said revision case

and also directed the petitioners to appear before the

authority on 24.07.2013 and further directed that on

the said date the authority would fix a date for // 8 //

hearing. In course of hearing, the petitioners drew

attention of the Court to the report dated

03.06..2008 furnished by the R.I., Chandaka, which

clearly revealed that the said authority had

conducted spot visit and was satisfied that it was a

fit case where permission should be granted to

opposite party no.4 to alienate the property.

Accordingly, he was permitted to alienate the land in

favour of the petitioners. But, without taking into

consideration the same, the Additional District

Magistrate, Bhubaneswar passed the impugned

order dated 02.08.2014. Hence, this writ petition.

3. Ms. P. Naidu, learned counsel appearing

for the petitioners vehemently contended that the

order dated 02.08.2014 passed by the Additional

District Magistrate, Bhubaneswar in Suo Motu Revision

Case No.889 of 1998 is a cyclostyled order, which was

prepared for all the cases initiated under Section-7A of

the OGLS Act, 1962 and, as and when required, the

facts of the case were changed suitably. The said

order of cancellation of lease, granted in favour of // 9 //

opposite party no.4-Jhari Nayak, has been passed

on the ground that he had transferred the land and

thus got involved in commercial benefit. But, the

Additional District Magistrate has lost sight of the

fact that by efflux of time the lands, which were leased

out to opposite party no.4-Jhari Nayak, a poor

agricultural labourer became unfit for cultivation,

as the surrounding lands were converted to

homestead lands and buildings. Consequentially,

it was not possible for him to cultivate the lands

any further and he had no other way out but to

alienate the same for the sake of survival. It is

further contended that the sale has been effected

only to meet the bona fide requirement, which is

apparent from the sale deed that opposite party

no.4-Jhari Nayak intended to purchase some

cultivable lands elsewhere so that he would be

able to cultivate the same. Thereby, while

considering the revision application, the

Additional District Magistrate, Bhubaneswar has

not taken note of the said fact and passed the // 10 //

impugned order mechanically without application

of his mind. It is further contended that the lease

was granted in favour of opposite party no.4-Jhari

Nayak in way back in the year 1974 in W.L. Case

No.2868 of 1974 and the lands were under

cultivating possession of Jhari Nayak for about 9

years. But due to conversion of nature of the

surrounding lands to homestead, it became

difficult for him to cultivate the lands any further

and, therefore, after completion of the locking

period, as stipulated in the lease deed, he applied

for permission and, after obtaining the same, sold

the lands to the petitioners in the year 1983.

Thereby, it is contended that the Suo Motu

Revision Case No. 889 of 1998, initiated under

Section 7A of OGLS Act, 1962 in the year 1998

violating the provisions made in the second

proviso to Section 7A of the said Act, cannot be

sustained in the eye of law. To substantiate her

contentions, she has relied upon Hadu

Paltasingh v. State of Orissa, 2023(II) OLR 539;

// 11 //

Laxmidhar Tarai v. Collector, Puri & anr.,

2018(II) OLR 1012 and Bata Krushna Nayak v.

State of Orissa, 2010(I) OLR 723.

4. Mr. A.K. Mishra, learned Additional

Government Advocate appearing for the State-opposite

parties contended that since the lease was granted in

favour of opposite party no.4-Jhari Nayak and even

though he sold the said land, after due permission from

the competent authority, to the petitioners, that ipso

facto cannot give the benefits to have possession of the

same and claim right, title and interest over the

property. Therefore, in the suo motu revision, the

Additional District Magistrate, Bhubaneswar has

cancelled the lease. As such, no illegality or irregularity

has been committed by the Additional District

Magistrate, Bhubaneswar in passing the impugned

order dated 02.08.2014 cancelling the lease so as to

warrant interference of this Court at this stage.

5. This Court heard Ms. P. Naidu, learned

counsel appearing for the petitioners and Mr. A.K.

Mishra, learned Addl. Government Advocate appearing // 12 //

for the State-opposite parties in hybrid mode. Though

the original lessee has been impleaded as proforma

opposite party, after the sale was effected, the

petitioners switched over to the shoes of the said

opposite party. Therefore, pleadings having been

exchanged between the contesting parties, with the

consent of learned counsel for the parties, the writ

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 7A(3) of the

OGLS Act, 1962, as they existed prior to amendment,

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

herein below:-

"Sec. 7A(3). 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 // 13 //

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. Admittedly, the order of settlement was

passed in favour of opposite party no.4-Jhari Nayak in

1974 in W.L. Case No.2868 of 1974 and the suo

motu revision, bearing Revision Case No.889 of

1998 was initiated under Section 7A of the OGLS

Act, 1962 in the year 1998, after a lapse of 24

years, that too against the person, namely, Jhari

Nayak, who had no right, title and interest over

the land on the date of initiation of the proceeding.

8. On the basis of factual matrix, as

discussed above, it appears that the lease was

granted in favour of opposite party no.4-Jhari

Nayak in the year 1974, mutation was done and

accordingly ROR was issued. But, subsequently,

under compelling circumstances, he, being a

Scheduled Caste person, sought permission from

the Government under the OLR Act in 1983 and // 14 //

sold the said land to the petitioners. But, the suo

motu revision proceeding under Section 7A of the

OGLS Act, 1962 was initiated on 23.06.1998 after

24 years.

9. Law is well settled that as per the second

proviso to Section 7A(3) of the OGLS Act,1962 no

proceeding under this sub-section can be initiated

after expiry of 14 years from the date of the order

of settlement of the land. Therefore, the initiation

of suo motu proceeding under Section 7A of the

OGLS Act, 1962 after 24 years is uncalled for in

the eye of law. The Additional District Magistrate,

Bhubaneswar initiated the suo motu proceeding

on the ground that the alienation of land in favour

of the petitioners by opposite party no.4 got

involved in commercial benefit and, as such,

opposite party no.4 had no real necessity to

alienate the land. But fact remains, alienation of

land in favour of the petitioners was done and

they are in peaceful possession of the same, but,

when the suo motu proceeding was initiated in // 15 //

1998, no notice was issued to the petitioners, who

have purchased the land by following due

procedure and after getting all clearance from the

different forums as per law. Without impleading

them as parties, the Additional District

Magistrate, Bhubaneswar has disposed of the suo

motu proceeding cancelling the lease granted in

favour of opposite party no.4, which was assailed

before this Court earlier and on remand also, the

said authority, without application of mind,

reiterated the same thing, which is not

permissible.

10. 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.

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 // 16 //

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 accordance 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.

There is no vested right in any authority to exercise

powers in future.

// 17 //

In State of U.P v. Aryaverth Chawl Udyog,

(2015) 17 SCC 324, the apex Court 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. Vasantsen Dwarkadas, (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. Prashar Vrs. Vasantsen Dwarkadas, (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 // 18 //

the period of time does not revive the remedy to enforce the rights already 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.

11. In the present case, it is apparent from the

record that the Additional District Magistrate,

Bhubaneswar initiated the suo motu revision

proceeding under Section 7A of the OGLS Act, 1962 on

23.06.1998 after about 24 years from the date of order

of the Tahasildar, Bhubaneswar in 1974. Thereby, there // 19 //

is flagrant violation of the provisions ignoring purport of

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

1962, as 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, 1962.

12. Much reliance has been placed on the

judgment in Hadu Paltasingh (supra), wherein this

Court took note of earlier judgments of this Court in

Purna Chandra 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 and held in paragraphs-8.2 to 8.4 of

the said judgment as follows:

"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 // 20 //

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-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."

13. On perusal of the records, it is made clear

that there was no question of any fraud or

misrepresentation on the part of the petitioners for

settlement of land in their favour nor is it the case of the

opposite parties that the petitioners had committed any

fraud or misrepresentation in settling the land in their

favour. Rather the land has been settled in favour of the

petitioners by following due procedure of law. Therefore,

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

petitioners and misrepresentation by the petitioners, the

impugned dated 02.08.2014 passed by the Additional

District Magistrate, Bhubaneswar in Suo Motu Revision // 21 //

Case No.889 of 1998 cannot be sustained in the eye of

law.

14. In Laxmidhar Tarai (supra), this Court held

that poor people must not suffer at the ends of mighty

Government, when proceedings for cancellation of

leases granted in 1972 was initiated in 1999, and the

order cancelling leases was quashed and set aside.

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

in paragraph-6 of the judgment, held as follows:

"6. The legal position which has arisen in this proceeding came up for consideration by this Court in the case of Rama Chandra Pandav v. State of Orissa and Ors. (W.P(C) No. 14364 of 2006 decided on 9.11.2006) and in the said case this Court held that since the petitioner had purchased a portion of the leasehold land from the original lessee, the order of the Additional District Magistrate was not sustainable as the same was contrary to the provisions of the Orissa Government Land Settlement Act and accordingly, quashed the same. Further, we find 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. Under the second proviso to Section 7A (3) referred to above, no proceeding can be initiated after expiry of fourteen years from the date of order granting lease. Since in the instant case the proceeding u/s. 7-A(3) of the OGLS Act was initiated by the revisional authority after 24 years of grant of lease, i.e, beyond // 22 //

the statutory period of limitation prescribed, on that ground also the present Writ Petition succeeds."

16. In view of the aforesaid provision of law and

taking note of the decisions of this Court, as discussed

above, this Court is of the considered opinion that the

impugned order dated 02.08.2014 passed by the

Additional District Magistrate, Bhubaneswar in Suo

Motu Revision Case No.889 of 1998 cannot be sustained

in the eye of law. Accordingly, the same is liable to be

quashed and is hereby quashed.

17. The writ petition is allowed. However, there

shall be no order as to costs.

                                                                (DR. B.R. SARANGI)
                                                                     JUDGE


            M.S. RAMAN, J.            I agree.


                                                                    (M.S. RAMAN)
                                                                       JUDGE


                           Orissa High Court, Cuttack
                           The 13th September, 2023, Alok
Signature Not Verified
Digitally Signed
Signed by: ALOK RANJAN SETHY
Designation: Secretary
Reason: Authentication
Location: orissa high court
Date: 15-Sep-2023 17:18:37