Orissa High Court
Mohd. Kutabuddin vs State Of Odisha on 2 September, 2025
Author: K.R. Mohapatra
Bench: K.R. Mohapatra
Signature Not Verified
Digitally Signed
Signed by: MADHUSMITA SAHOO
Designation: Senior Stenographer
Reason: Authentication
Location: High Court of Orissa, Cuttack
Date: 03-Sep-2025 18:46:16
IN THE HIGH COURT OF ORISSA AT CUTTACK
W.P.(C) No. 35122 OF 2020
(An application under Articles 226 & 227 of the Constitution of India)
*****
Mohd. Kutabuddin
...... Petitioner
-Versus-
1. State of Odisha
2. Tahasildar, Bhubaneswar
....... Opp. Parties
Advocates appeared:
For Petitioner : Mr. Sourav Suman Bhuyan, Advocate
along with
Mr. Soubhagya Kumar Rath, Advocate
For Opp. Parties : Mr. Swayambhu Mishra,
Additional Standing Counsel
CORAM :
MR. JUSTICE K.R. MOHAPATRA
MISS JUSTICE SAVITRI RATHO
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Heard and disposed of on 02.09.2025
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JUDGMENT
By the Bench;
1. This matter is taken up through hybrid mode.
2. The Petitioner in this writ petition seeks to assail the
order dated 22nd January, 2003 (Annexure-1 series) passed by
the Additional Tahasildar, Bhubaneswar in W.L. Case No.296 of
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Location: High Court of Orissa, Cuttack // 2 //
Date: 03-Sep-2025 18:46:16
1970, whereby the lease granted in favour of one, Kalandi
Charan Martha was resumed under Section 3-B of the Odisha
Government Land Settlement Act, 1962 (for brevity 'the Act').
3. Mr. Bhuyan, learned counsel being authorized by Mr.
Rath, learned counsel for the Petitioner submits that Plot No.726
to an extent of Ac.1.470 decimals and Plot No.728 to an extent
of Ac.0.500 decimals under Khata No.207 situated in Mouza
Sunderpur under Bhubaneswar Tahasil in the district of Khurda
(for brevity 'the case land') was leased out in favour of one,
Kalandi Charan Martha for agricultural purpose and a lease Patta
was issued in his name under Khata No.219. For legal necessity,
the lessee sold Ac.0.470 decimals out of Plot No.726 (for brevity
'the purchased land') to the Petitioner and delivered possession.
Since then, the Petitioner is in possession over the purchased
land exercising his right, title and interest thereon. However, the
Petitioner did not get the purchased land mutated in his name.
Subsequently, a proceeding under Section 3-B of the Act was
initiated by the Additional Tahasildar, Bhubaneswar for
resumption of the case land in terms of the direction of this
Court in OJC No.9449 of 1993.
4. It is further submitted by Mr. Bhuyan, learned counsel
that although notices were directed to be issued to the lessee and
the affected persons, but at no point of time either the lessee or
the Petitioner was served with notice of the said resumption
proceeding. Thus, the Petitioner was in dark about the
resumption proceeding. The Additional Tahasildar,
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Location: High Court of Orissa, Cuttack // 3 //
Date: 03-Sep-2025 18:46:16
Bhubaneswar relying upon the field visit report dated 5th
October, 2002, directed for resumption of the case land vide
order dated 22nd January, 2003 (Annexure-1 series). The
Petitioner being not served with any notice could not defend his
case in the said proceeding. It is further submitted that the order
sheet in resumption proceeding at Annexure-1 series makes it
clear that at no point of time, notice was served either on the
lessee or on the Petitioner. Although general notice inviting
objection was directed to be issued and a direction was also
made that copies of the said notice be sent to the
GP/Municipality concerned sued, but, there is no material on
record to show that such direction was ever complied with.
4.1 It is also submitted that although the impugned order was
passed on 22nd January, 2003, but the Petitioner for the aforesaid
reasons, could not know about the same. When the staff of the
Bhubaneswar Tahasil went to the spot to measure the case land,
the Petitioner could know about the order of resumption in
respect of the case land, including the purchased land has been
passed. Hence, he prays for setting aside the impugned order
under Annexure-1 series and to remit the matter to the
Additional Tahasildar, Bhubaneswar for fresh adjudication of
the resumption proceeding giving opportunity of hearing to the
parties concerned.
5. Mr. Mishra, learned Additional Standing Counsel
vehemently objects to the submission made by Mr. Bhuyan,
learned counsel appearing for the Petitioner. It is his submission
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Date: 03-Sep-2025 18:46:16
that the writ petition is hopelessly barred by time. He further
submits that general notice was issued pursuant to the direction
of the Additional Tahasildar, Bhubaneswar vide its order dated
25th June, 2002. The Petitioner could have responded to the same
and contested the resumption proceeding. It is further submitted
that a field visit was also done by the concerned Additional
Tahasildar, Bhubaneswar along with RI and Amin on 5th
October, 2002. During field visit, they observed that neither
Kalandi Charan Martha, the lessee, was in possession over the
case land nor was the land being used for the purpose it was
leased out. As such, there is no infirmity in the impugned order.
Pursuant to the direction dated 22nd January, 2003, the case land
has been recorded in government khata and is kept reserved for
developmental purpose. Thus, the writ petition merits no
consideration and is liable to be dismissed.
6. Upon hearing learned counsel for the parties and on
perusal of the record, this Court finds that the case land was
settled in favour of one, Kalandi Charan Martha by virtue of a
lease and lease Patta under Annexure-2 was issued in his favour
in the year, 1973. For his legal necessity, said Kalandi Charan
Martha sold out Ac.0.470 decimals out of Plot No.726 (the
purchased land) to the Petitioner for valuable consideration and
delivered possession. It is claimed that the Petitioner is in
possession over the case land since then exercising his right, title
and interest thereon. It further reveals from the record that
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Date: 03-Sep-2025 18:46:16
mutation Record of Right (RoR) has not been prepared in the
name of the Petitioner.
7. Section 3-B of the Act reads as under:
"3-B. Resumption of land and imposition of penalty:
- [Any officer authorized under clause (e) of section 3
may resume any land settled by him, if he has reasons
to believe that¯
(a) the person with whom the land was settled,
has used it for any purpose other than that
for which it was settled; or
(b) the person, other than homesteadless
person or landless agricultural labourer,
has not used the land for a period
exceeding three years from the date of
such settlement,
and may impose a penalty of an amount not exceeding
one thousand rupees on such person :
Provided that no order under this section
shall be passed without giving such person a
reasonable opportunity of being heard in the matter :
Provided further that any land settled
prior to the commencement of the Odisha Government
Land Settlement (Amendment) Act, 2013, if not used
within a period of three years from the date of such
commencement, the authorized officer shall resume
such land."
8. Perusal of the impugned order under Annexure-1 series
reveals that during field visit, it was ascertained by the
Additional Tahasildar, Bhubaneswar that said Kalandi Charan
Martha (lessee) was not in possession over the case land and the
case land was not being used for the purpose the lease was
granted. But, the law requires that before resumption, the lessee
or any person likely to be affected should be afforded with an
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Location: High Court of Orissa, Cuttack // 6 //
Date: 03-Sep-2025 18:46:16
opportunity of hearing. Further a finding should be recorded that
the lessee was not in possession over the case land or not
utilizing the same for the purpose it was leased out for a period
exceeding three years from the date of settlement. Such a
finding is conspicuously absent in the impugned order under
Annexure-1 series.
9. Although a direction was made to issue notice to the
lessee as well as the affected persons and a general proclamation
was also directed to be issued inviting objection, but, there is
nothing on record that such direction was ever complied with.
On the other hand, order dated 5th September, 2002 reveals that
the lessee was absent on call. There is also nothing on record to
show that the lessee or the Petitioner, who is the subsequent
purchaser, was ever served with notice of the resumption
proceeding much less.
10. Since a valuable civil right of the Petitioner is taken away
without affording him an opportunity of hearing and mandatory
procedure as required under Section 3-B of the Act has not been
followed, this Court feels that the resumption proceeding should
be adjudicated afresh giving opportunity of hearing to the parties
concerned including the Petitioner.
11. Accordingly, the impugned order dated 22nd January,
2003 under Annexure-1 series passed by the Additional
Tahasildar, Bhubaneswar in W.L. Case No.296 of 1970 is set
aside and the matter is remitted to the Additional Tahasildar,
Bhubaneswar with a direction for de novo adjudication of the
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Location: High Court of Orissa, Cuttack // 7 //
Date: 03-Sep-2025 18:46:16
resumption proceeding from the stage of issuance of notice and
providing opportunity of hearing to the parties concerned
including the Petitioner. The Additional Tahasildar,
Bhubaneswar shall act upon production of certified copy of this
order, which is undertaken to be produced before him on or
before 8th October, 2025. It is made clear that no 3rd party
interest shall be created by any of the parties till disposal of the
resumption proceeding in W.L. Case No.296 of 1970
12. The writ petition is allowed to the aforesaid extent. In
the facts and circumstances of the case, there shall be no order as
to costs.
Urgent certified copy of this judgment be granted on
proper application.
(K.R. Mohapatra)
Judge
(Savitri Ratho)
Judge
Orissa High Court, Cuttack,
Dated 2nd September, 2025/Madhusmita
