Krushna Ch. Panda and anr. Vs. State of Orissa and ors.

Krushna Ch. Panda and anr. vs State of Orissa and ors.

Disposition Application allowed Court Orissa Decided Nov 07, 2005

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Citation: sooperkanoon.com/536239
Court: Orissa High Court
Judge: C.J. and; M.M. Das, J.
Decided On: Nov 07, 2005
Case Number: W.P. (C) No. 12410 of 2005
Subject: Property
Disposition: Application allowed

Case Summary

AI-generated summary - not the official court judgment text.

- Sections 100-A [As inserted by Act 22 of 2002], 110 & 104 & Letters Patent, 1865, Clause 10: [Dr. B.S. Chauhan, CJ, L. Mohapatra & A.S. Naidu, JJ] Letters Patent Appeal Order of Single Judge of High Court passed while deciding matters filed under Order 43, Rule1 of C.P.C., - Held, After introduction of Section ...

Key legal issue: Property
Outcome / disposition: Application allowed
Acts & sections: Orissa Government Land Settlement Act, 1962 - Sections 3B and 7A(3); ;Orissa Development Authorities Act; Orissa Government Land Settlement Rules

Parties & Advocates

Appellant / Petitioner

Krushna Ch. Panda and anr.

Advocate Mr. P. K. Rath

Respondent

State of Orissa and ors.

Legal References

Acts: Orissa Government Land Settlement Act, 1962 - Sections 3B and 7A(3); ;Orissa Development Authorities Act; Orissa Government Land Settlement Rules
Reported In: 101(2006)CLT173; 2006(1)OLR1

Excerpt

- sections 100-a [as inserted by act 22 of 2002], 110 & 104 & letters patent, 1865, clause 10: [dr. b.s. chauhan, cj, l. mohapatra & a.s. naidu, jj] letters patent appeal order of single judge of high court passed while deciding matters filed under order 43, rule1 of c.p.c., - held, after introduction of section 110a in the c.p.c., by 2002 amendment act, no letters patent appeal is maintainable against judgment/order/decree passed by a single judge of a high court. a right of appeal, even though a vested one, can be taken away by law. it is pertinent to note that section 100-a introduced by 2002 amendment of the code starts with a non obstante clause. the purpose of such clause is to give the enacting part of an overriding effect in the case of a conflict with laws mentioned with the non obstante clause. the legislative intention is thus very clear that the law enacted shall have full operation and there would be no impediment. it is well settled that the definition of judgment in section 2(9) of c.p.c., is much wider and more liberal, intermediary or interlocutory judgment fall in the category of orders referred to clause (a) to (w) of order 43, rule 1 and also such other orders which poses the characteristic and trapping of finality and may adversely affect a valuable right of a party or decide an important aspect of a trial in an ancillary proceeding. amended section 100-a of the code clearly stipulates that where any appeal from an original or appellate decree or order is heard and decided by a single judge of a high court, no further appeal shall lie. even otherwise, the word judgment as defined under section 2(9) means a statement given by a judge on the grounds of a decree or order. thus the contention that against an order passed by a single judge in an appeal filed under section 104 c.p.c., a further appeal lies to a division bench cannot be accepted. the newly incorporated section 100a in clear and specific terms prohibits further appeal against the..........land bearing plot no.516/ 1679 under khata no.489/48 measuring ac.1,000 was leased out in favour of the said applicant. the name of the said lessee-lingaraj rath was recorded in the record of right in 'sthitiban' status. while in possession of the said land, the original lessee-lingaraj rath sold a part of the same by a registered sale deed to one subasini barei. he also sold another portion of the said land to one jayabana kumar singh. the said j. k. singh, in turn, sold the said land to one sushama das. petitioner no.1- krushna chandra panda has purchased the land to the extent of ac.0.25 from smt. subasini barei and petitioner no.2- laxmipriya rath has purchased the land to the extent of ac.0.45 from smt. sushama das by registered sale deeds. it also appears that in mutation case no.5519 of 2001, the tahasildar, bhubaneswar mutated the purchased land in favour of petitioner no.1.3. it is the case of the petitioners that after purchasing the land as mentioned above, they have constructed their residential houses over the said purchased properties and are residing thereon, peacefully. the petitioners allege that a resumption proceeding under section 3-b of the act was initiated by the tahasildar, bhubaneswar in the year 2002 i.e. after lapse of 24 years from the date of grant of the lease and by order dated 24.11.2003 (annexure-1), the tahasildar has illegally resumed the land and has directed correction of the record of right.4. mr. rath on behalf of the petitioners contends that the impugned order having been passed after lapse of about 24 years, is vitiated under law. he further submits that no notice having been issued to the petitioners, the principles of natural justice have been violated and the concerned authority having allowed the mutation by recording the names of the petitioners in 'sthitiban' status over the land, it would not be open for the tahasildar to take recourse to section 3-b of the act.5. mr. mohanty, learned addl. govt. advocate.....

Full Judgment

ORDER

1. Heard Mr. P. K. Rath, learned counsel for the petitioners and Mr. P. K. Mohanty, learned Addl. Government Advocate.

2. The petitioners in the present application call in question the order of resumption of lease passed under Section 3-B of the Orissa Government Land Settlement Act, 1962 (hereinafter referred to as 'the Act') by the Tahasildar, Bhubaneswar. The facts of the case reveal that in W.L. Case No. 1781 of 1978 initiated by an application filed by one Lingaraj Rath, after following due, procedure as prescribed under the Act and the Rules framed thereunder, the land bearing Plot No.516/ 1679 under Khata No.489/48 measuring Ac.1,000 was leased out in favour of the said applicant. The name of the said lessee-Lingaraj Rath was recorded in the Record of Right in 'Sthitiban' status. While in possession of the said land, the original lessee-Lingaraj Rath sold a part of the same by a registered sale deed to one Subasini Barei. He also sold another portion of the said land to one Jayabana Kumar Singh. The said J. K. Singh, in turn, sold the said land to one Sushama Das. Petitioner No.1- Krushna Chandra Panda has purchased the land to the extent of Ac.0.25 from Smt. Subasini Barei and petitioner No.2- Laxmipriya Rath has purchased the land to the extent of Ac.0.45 from Smt. Sushama Das by registered sale deeds. It also appears that in Mutation Case No.5519 of 2001, the Tahasildar, Bhubaneswar mutated the purchased land in favour of petitioner No.1.

3. It is the case of the petitioners that after purchasing the land as mentioned above, they have constructed their residential houses over the said purchased properties and are residing thereon, peacefully. The petitioners allege that a resumption proceeding under Section 3-B of the Act was initiated by the Tahasildar, Bhubaneswar in the year 2002 i.e. after lapse of 24 years from the date of grant of the lease and by order dated 24.11.2003 (Annexure-1), the Tahasildar has illegally resumed the land and has directed correction of the record of right.

4. Mr. Rath on behalf of the petitioners contends that the impugned order having been passed after lapse of about 24 years, is vitiated under law. He further submits that no notice having been issued to the petitioners, the principles of natural justice have been violated and the concerned authority having allowed the mutation by recording the names of the petitioners in 'Sthitiban' status over the land, it would not be open for the Tahasildar to take recourse to Section 3-B of the Act.

5. Mr. Mohanty, learned Addl. Govt. Advocate vehemently argued that Section 3-B of the Act empowers the officer authorized on that behalf to resume any land if the person with whom the land was settled used it for any purposes other than that for which it was settled and may impose a penalty as prescribed thereunder. He further submitted that from a reading of the impugned order it would be evident that petitioner No: 1. was present before the Tahasildar, Bhubaneswar on 24.9.2002 when the matter was taken up.

6. We have perused the impugned order Annexure-1 in which it has been mentioned that petitioner No.1 was present before the Tahasildar on 24.9.2002. However, we find that the Tahasildar, Bhubaneswar has not found any irregularity in grant of the lease, but basing on his local inquiry, has concluded that the original lessee- Lingaraj Rath is not in possession of the said land and has sold it to different persons who have constructed buildings and boundary wall over the said land though the said land was originally leased out for agricultural purpose.

7. The reason for initiation of a proceeding under Section 3-B of the Act as it appears from the impugned order, is derived from the order passed in a writ petition (OJC No.9449 of 1993) and the Tahasildar has stated in the impugned order that the direction in the said writ petition was issued by this Court to enquire into the matter relating to lease of lands in Bhubaneswar Tahasil through a senior officer in the rank of a Secretary to find out as to whether the Tahasildar has settled the land by misuse of power and further directed the Government to examine as to whether the cases are covered under Section 3-B of the Act. There is nothing on record to show that notices of the resumption case under Section 3-B of the Act were issued to the petitioners i.e. the purchasers who would be affected by the order, even though the Tahasildar during his enquiry, came to know that the original lessee has alienated the property.

8. Though Section 3-B of the Act does not specifically provide for issuance of notice to the affected parties as provided under the proviso to Section 7-A(3) of the Act, but never the less since by resumption of the land under Section 3-B of the Act the right of the lessee or the subsequent transferee who was enjoying the lease-hold land would come to an end, in our view, before passing an order of resumption under the said section, compliance to the principles of natural justice would be a bare requirement and the order passed in violation thereof cannot be sustained. We further find that the area in which the land in question is situated, has been marked as residential zone in the Master Plan framed under the Orissa Development Authorities Act and the petitioners who are the subsequent purchasers, have constructed their houses after due approval of the building plans by the competent authority of the Bhubaneswar Development Authority.

9. Considering the above facts, we are of the view that the impugned order under Annexure-1 cannot be sustained and we accordingly quash the said order dated 24.11.2003 passed by the Tahasildar, Bhubaneswar in Misc. Case No.2 of 2002, arising out of W.L. Case No.1781 of 1978.

10. The writ application is, accordingly, allowed.

11. Urgent certified copy of this order be granted on proper application.

Same Court & Year Orissa · 2005 Same Parties Krushna Ch. Panda and anr. vs State of Orissa and ors. Same Subject Property Same Judge C.J. and; M.M. Das, J. Acts & Sections Orissa Government Land Settlement Act, 1962 - Sections 3B and...

Property