Orissa High Court
Case Details
ORISSA HIGH COURT: CUTTACK W.P.(C) NO. 10176 OF 2016 In the matter of an application under Article 226 of the Constitution of India. --------------- AFR Trilochan Sahoo ..… Petitioner -Versus- State of Odisha and others ….. Opp. Parties For petitioner : M/s. D.K. Sahoo-1, and B.K. Behera, Advocates. For opp. parties : Mr. S.S. Kanungo, Addl. Government Advocate P R E S E N T: THE HONOURABLE DR. JUSTICE B.R.SARANGI AND THE HON’BLE MR. JUSTICE MURAHARI SRI RAMAN Date of hearing and Judgment : 26.09.2023 DR. B.R. SARANGI, J. By means of this writ petition, the petitioner seeks to quash the orders dated 12.05.2015 and 05.06.2015 passed by the Addl. Tahasildar, Naktideula in the district of Sambalpur under Annexure- 6, by which reduction of area of Ac.0.01 decimals has Page 1 of 29 been made from Plot No.1506 (P), Khata No.151, Kisam- Basti of Mouza- Sahebi. 2. The factual matrix of the case, as is borne out from the record, is that Hadibandhu Sahu, the father of the petitioner was in peaceful occupation of Plot No.1568 measuring area Ac.0.05 dec., Kisam-Gharabari under Khata No.151 of Mouza-Sahebi under the erstwhile Tahasil of Rairakhol in the district of Sambalpur for more than 50 years. After his death, the same was settled in favour of the petitioner in an amicable partition amongst the brothers of the petitioner, in which the aforesaid plot was fallen to the share of the petitioner. As such, on his application, the said plot was mutated in his favour in Abadi Basti Lease Case No.1192 of 2011. The record of rights was also issued in favour of the petitioner in Khata No.150/179, Plot No.1568 measuring an area Ac.0.050, Kisam- Gharabari. While issuing the record of rights, the revenue authority, Naktideula wrongly mentioned the caste of the petitioner as “Chasa” instead of “Teli”, for Page 2 of 29 which the petitioner applied for its correction and, as such, corrected record of rights was also issued in his favour in the year 2014. But the area was reduced by Ac.0.01 dec. from its original record of rights, i.e., Ac.0.05 dec., by showing an area of Ac.0.04 dec. Against reduction of area of Ac.0.01 dec., the petitioner filed Abadi Basti Appeal No.12 of 2014 before the Sub-Collector, Rairakhol, who, vide order dated 25.03.2015, remanded the matter to the Tahasildar with a direction to conduct an enquiry regarding possession of the petitioner for settlement of applied land, as per the provisions of OGLS (Amendment) Rules, 2010. Consequentially, the Tahasildar conducted the enquiry on 12.05.2015 and found that the petitioner has constructed his dwelling house over an area of Ac.0.04 decimals out of Ac.0.05 decimals in Plot No.1568 (P) in Khata No.151 under Kisam-Basti of Mouza-Sahebi and residing their prior to 26.02.2006. Consequentially, the Tahasildar directed for settlement of the same in favour of the petitioner on rayati status, as per the provisions contained under clause-5 (d) of Rule-5B of Page 3 of 29 OGLS (Amendment) Rules, 2010 and, thereafter, vide order dated 05.06.2015, closed the case. Hence, this writ petition. 3.
Legal Reasoning
Mr. D.K. Sahu-1, learned counsel appearing for the petitioner vehemently contended that the petitioner was in occupation of an area of Ac.0.05 decimals of land as per the record of rights issued on 24.12.2013 under Annexure-2 by the Tahasildar, Naktideula and such possession would relate back to a date of more than 50 years by occupation of his father having his residential house as a homesteadless person. Thereby, the petitioner has acquired a title by way of adverse possession. After the death of the father of the petitioner, the same was fallen to the share of him and from that date he is in possession of an area of Ac.0.05 decimals. Therefore, there is no valid and justifiable reason to reduce the area of Ac.0.01 dec. and mentioning the same as Ac.0.04 dec., pursuant to order dated 12.05.2015 in Abadi Basti Case No.1192 of 2011, and closure made thereof vide order Page 4 of 29 dated 05.06.2015 in Annexure-6, cannot be sustained in the eye of law. So far as mentioning of Ac.0.04 dec. instead of Ac.0.05 dec. is concerned, the same has been done without following due procedure, more particularly without complying the principles of natural justice. It is further contended that in the order impugned dated 12.05.2015 it has been clearly mentioned that one Rajkishore Sahu has sold the land to an extent of Ac.0.01 dec. from plot no.1568, Khata No.151 of Mouza-Sahebi to one Sarat Dehury, who is opposite party no.7 to the writ petition. But nothing has been placed on record to show that any opportunity was given to Rajkishore Sahu and Sarat Dehury, the so called seller and purchaser of the property, to produce any material to justify the same. Thereby, it is contended that reduction of area of Ac.0.01 dec. by the Tahasildar amounts to arbitrary and unreasonable. It is further contended that the provisions contained in the OGLS (Amendment) Rules, 2010 have not been followed, because originally the area was coming under the Rairakhol Tahasil but subsequently due to Page 5 of 29 bifurcation of the Tahasil, it was coming under Naktideula Tahasil, the Tahasildar of which, without any application of mind and without giving opportunity of hearing to the petitioner, has passed the order by reducing the area of Ac.0.01 dec. on the plea of sale by Rajkishore Sahu to opposite party no.7-Sarat Dehury. Therefore, the same cannot be sustained in the eye of law. Consequentially, he seeks for quashing of the orders dated 12.05.2015 and 05.06.2015 passed by the Addl. Tahasildar, Naktideula under Annexure-6. 4. Mr. S.S. Kanungo, learned Addl. Government Advocate appearing for the State-opposite parties contended that Lalita Sahu, resident of Sahebi applied for settlement of Abadi land on behalf of her husband Trilochan Sahu in permanent heritable and transferable status under Rule 5 (B) of the OGLS (Amendment) Rules, 2010, the details of which run as follows:- Mouza Khata No Plot No Area Kisam Sahebi 151 1568 0.05 Basti Page 6 of 29 It is contended that the then Tahasildar instituted OGLS Case No.1192 of 2011 and settled an area of Ac.0.05 decimals, as mentioned above, in favour of Trilochan Sahu son of Hadibandhu Sahu of Village-Sahebi, as per order dated 09.09.2012. As such, the ROR was corrected for an area of Ac.0.05 decimals in favour of Trilochan Sahu. As per Rule-5 (B) of Schedule-V of OGLS (Amendment) Rules, 2010, the settlement of land beyond Ac.0.04 dec. and upto Ac.0.10 dec. in rural areas requires approval of Sub-Collector. Since the Tahasildar corrected the ROR, without taking approval of the Sub-Collector, later on realizing the mistake the Tahasildar revised his own order dated 09.09.2012 and modified it on 20.05.2014 by reducing the area to Ac.0.04 decimals. Against the aforesaid order, the petitioner preferred appeal before the Sub-Collector, Rairakhol and the same was registered as Appeal Case No.12 of 2014 and by order dated 25.03.2015 the Sub-Collector remanded the matter to the Tahasildar with a direction to conduct a fresh Page 7 of 29 inquiry regarding the possession of the land and examine the eligibility of the applicant for settlement of land as per OGLS (Amendment) Rules, 2010 vide G.O. dated 11.02.2010. Pursuant to the said order, the Addl. Tahasildar conducted an enquiry and ascertained that the petitioner, a resident of Sahebi, has constructed a dwelling house over an area of Ac.0.04 dec. on the M.S. Plot No.1568 (P) under M.S. Khata No.151, Kisam-Basti of Mouza-Sahebi and he is residing there with his family prior to 26.02.2006. Simultaneously, it was ascertained that one Sarat Dehury, son of Jodi Dehury of village Sahebi was occupying remaining Ac.0.01 dec. of land of M.S. Plot No.1568 (P) of Mouza-Sahebi. Thereby, the petitioner is not in possession of entire land/area of Plot No.1568 for a period of at least 3 years prior to the appointed date, i.e., 26.02.2009. Thus, it is contended that the petitioner is not eligible for settlement of the entire area of Ac.0.05 decimals, as claimed by him. It is further contended that since the area of Ac.0.01 dec. of land of M.S. Plot No.1568 is in possession of one Sarat Page 8 of 29 Dehury, the Tahasildar is well justified in settling an area of Ac.0.04 dec. of land in favour of the petitioner. Thereby, no illegality or irregularity has been committed by the authority so as to cause interference of this Court at this stage. 5. This Court heard Mr. D.K. Sahu-1, learned counsel appearing for the petitioner and Mr. S.S. Kanungo, learned Addl. Government Advocate appearing for the State-opposite parties in hybrid mode and perused the record. Pleadings having been exchanged between the parties, the matter has been disposed of finally with the consent of learned counsel for the parties at the stage of admission. 6. On the basis of the factual matrix, as delineated above, it is made clear that an area of Ac.0.05 decimals of land appertaining to Plot No.1568 (P), Kisam- Basti, Khata No.151 of Mouza-Sahebi was initially settled in favour of the father of the petitioner and, thereafter, by way of succession, the same has been recorded in the Page 9 of 29 name of the petitioner and, as such, he is in possession of the same and staying there by constructing a dwelling house. As such, vide order dated 09.09.2012 passed in OGLS Case No.1192 of 2011, the land measuring an area of Ac.0.05 dec. was settled in favour of the petitioner. Accordingly, ROR was issued for an area of Ac.0.05 decimals. But, as per the provisions contained under Rule-5 (B) of Schedule-V of OGLS (Amendment) Rules, 2010, the settlement of land beyond Ac.0.04 dec. and upto Ac.0.10 dec. in rural areas requires approval of the Sub-Collector. As it appears, the Tahsildar had corrected the ROR, without taking the approval of the Sub- Collector, and later on realizing the mistake the Tahasildar revised his own order dated 09.09.2012 and modified the same on 20.05.2014 by reducing the area to Ac.0.04 dec. Against the said order, the petitioner preferred appeal before the Sub-Collector in Appeal Case
Decision
No.12/2014, which was disposed of by the Sub-Collector by remanding the matter back to the Tahasildar with a direction to conduct a fresh enquiry regarding the Page 10 of 29 possession of the land and examine the eligibility of the petitioner for settlement of land as per OGLS (Amendment) Rules, 2010 vide G.O. dated 11.02.2010. Basing upon such direction, the Addl. Tahasildar conducted an enquiry and it was found that the petitioner was in possession of Ac.0.04 dec. and an area of Ac.0.01 dec. was in possession of one Sarat Dehury, which was stated to be purchased from one of the co-sharers, namely, Rajkishore Sahu and such sale was made orally. But nothing was placed on record or produced at the time of enquiry by the Tahasildar with regard to such sale. Therefore, against reduction of area from Ac.0.05 dec. to Ac.0.04 dec. by the Tahasildar, without giving opportunity of hearing, the petitioner has approached this Court by filing the present writ petition. 7. While entertaining the writ petition, this Court, vide order dated 13.06.2016, passed the following order:- “Order dated 13.06.2016 “Six extra copies of the writ petition be served on learned Additional Government Advocate, Page 11 of 29 who accepts notice on behalf of opposite party nos.1 to 6, within three days enabling him to obtain instruction in the matter. List this matter after six weeks.” Misc. Case No.9416 of 2016 As an interim, it is directed that status quo as on today with regard to the land appertaining to Plot No.1568, Khata No.151 of mouza- Sahebi under Rairakhol Tahasil in the district of Sambalpur shall he maintained by the parties till the next date.” Thereafter, on 11.05.2022, this Court, in I.A. No. 18039 of 2019, passed the following orders:- “1. Heard Mr.D.K.Sahoo, learned counsel for the petitioner and Mr.D.K.Mohanty, learned Addl. Government Advocate. 2. At the outset on oral prayer, Mr.Sahoo, learned counsel for the petitioner is permitted to correct the description of the father’s name Interlocutory of the in Application. schedule the This is an application for impletion of 3. party to the writ petition. 4. Considering the submissions made and the grounds taken in the application the prayer for impletion is allowed. 5. Mr.Sahoo consolidated cause title in course of the day. undertakes to file 6. I.A is accordingly disposed of. W.P.(C) No. 10176 of 2016 Page 12 of 29 7. Issue notice to newly added opposite party through registered post with A.D., no.7 requisites shall be filed by 13th May, 2022. 8. List this matter on 11th July 2022. 9. Interim order passed earlier shall continue till the next date.” Again, on 22.02.2023, this Court passed the following orders:- “1. Mr. Sahoo, learned advocate appears on behalf of petitioner and submits, impugned is order dated 12th May, 2015 made by the Additional Tahsildar, by which one decimal of land belonging to his client was settled on private opposite party no.7. He demonstrates from impugned order that purported local enquiry was relied upon to find the sale, though no document was produced. Nanda, learned 2. Mr. advocate, Additional Government Advocate appears on behalf of State. He submits, private opposite party no.7 had asserted, he had purchased the land. 3. Mr. Dhar, learned advocate appears on virtual mode for private opposite party no.7. He is not audible. Private opposite party no.7 has file additional affidavit disclosing proof of purchase, either on conveyance or otherwise. liberty to 4. List on 1st March, 2023.” Further, on 21.03.2023, this Court passed the following orders:- Page 13 of 29 “1. Mr. Sahoo, learned advocate appears on behalf of petitioner and with reference to his submissions recorded in order dated 22nd February, 2023 he submits, the Tahsildar had found on report of enquiry that his client was in possession of 5 decimals of land. Accordingly there was allotment. Admittedly, the rural area. His client constructed house on four decimals and there was a the little open space, being remaining one decimal. land in in is Now the administration, by impugned 2. order, is seeking to take away one decimal, on allegation of sale to opposite party no.7. No document has been produced. This resumption in respect of one decimal was done without notice to his client. Nanda, learned advocate, 3. Mr. Additional Government Advocate appears on behalf of State and submits, clear guidelines were there regarding power of the Tahsildar to settle land. He refers to guideline no.5 (a) and (b), disclosed in the counter. Reproduced below are clauses (a) and (b) of guideline no.5. the “5. Powers to settle land : (a) The settlement of land under these rules shall be made by the Tahsildar where for homestead purpose and the total extent of land with the application does not exceed 4 decimals (one- twenty fifth of an acre) and is situated in rural area. is used land (b) Cases involving area of land used for homestead purposes will be approved by the Sub Collector if the extent of land is up to four (one-twenty fifth of an decimals Page 14 of 29 acre) in urban area or exceeds four decimals but does not exceed ten decimals (one-tenth of an acre) in rural area. xxx xxx xxx (emphasis supplied) He submits, soon after the Tahsildar realized error committed, there were orders made in year 2015 itself, to cancel the allotment and make fresh allotment of four decimals. 4. By our earlier order dated 22nd February, 2023 we had given liberty to opposite party no.7 to file additional affidavit disclosing proof of purchase. Said opposite party goes unrepresented. to detriment petitioner. It does appear from materials disclosed 5. and on record that petitioner was found to be in possession of five decimals, when the allotment was made. The Tahsildar, in such situation, deciding to recall the allotment and making fresh allotment of four decimals, without referring to the Sub-Collector for approval to allot five decimals, was an act done the circumstances, we require a report to be filed by the Collector, Deogarh on extent of land in possession of petitioner at present time and whether there is possession by some other in respect of one decimal of land, constituted in the original allotment of five decimals made to petitioner. In event some other person is found, documentary evidence of interest in the land must be obtained from such person. State will file the report through additional affidavit, to be accepted on adjourned date upon advanced copy served. In 6. List on 11th April, 2023.” Page 15 of 29 On 11.04.2023, this Court, in I.A. No. 4702 of 2023, passed the following orders:- “1. Mr. Sahoo, learned advocate appears on behalf of petitioner and submits, application has been made by his client owning error in submission that concerned Collector was of Deogarh. Direction in paragraph-5 in our order dated 21st March, 2023 ought to have been made on Collector, Sambalpur. Sharma, 2. Mr. advocate, Additional Government Advocate appears on behalf of State and confirms concerned is Collector, Sambalpur. learned The direction made in paragraph-5 of 3. our order dated 21st March, 2023 be carried out by Collector, Sambalpur. The affidavit will be accepted on adjourned date, upon advance copy served. 4. 5. The I.A. is disposed of. List on 2nd May, 2023” 8. In compliance of the order dated 21.03.2023, an additional affidavit was filed on behalf of the Collector, Sambalpur, paragraph-3 whereof reads as under:- “3. That, as per the direction of the Hon’ble (deponent) Court, Tahasildar, Naktideul alongwoth Revenue Supervisor, Revenue Inspector, Naktideul and Amin, Record Room proceed to the disputed land and demarcated the spot in presence of Sri Trilochan Sahoo, Page 16 of 29 the petitioner, Sri Sarat Dehury and Sri the Rajkishor Sahoo, elder brother of petitioner and prepared a sketch map. From the demarcation, it is ascertained that the petitioner-Sri Trilochan Sahoo is in possession of Plot No.1568/2569, area 0.04 dec. In respect of the rest 0.01 dec. of land it is found that one Sarat Dehury is in possession of 0.00785 dec. of land and residing in a dwelling house constructed over it, which is indicated in pink colour in the sketch map. Rest of the area out of that 0.01 dec. land is in possession of the petitioner-Sri Trilochan Sahu as indicated in green colour of the sketch map. Copy of sketch map is annexed herewith as ANNEXURE-C/5.” In view of the aforesaid affidavit filed by the Collector, it is made clear that admittedly the petitioner was in possession of Ac.0.05 decimals of land but out of that, when enquiry was conducted, it was found that he was in physical possession of Ac.0.04 decimals of land and in respect of rest Ac.0.01 decimals of land, it was found that one Sarat Dehury was in possession of Ac.0.00785 dec. of land and residing in a dwelling house constructed over it. But in the local enquiry report, which has been placed on record as Annexure-D/5, it has been specially mentioned that out of the said plot no.1568, Ac.0.01 dec. of land is Page 17 of 29 possessed by Sarat Dehury-opposite party no.7, by constructing a shop room, for last four to five years. It has also been mentioned therein that he had purchased the same orally from one Rajkishore Sahu, one of the co- sharers, but could not produce any material or document to satisfy and, as such, the same has been reflected in paragraph-4 of the affidavit filed by the Collector. 9. In Sheodhyan Singh v. Mst. Sanichara Kuer, AIR 1963 SC 1879, the apex Court held that whenever there is any misdescription of property, the real intention of the parties has to be gathered from the surrounding circumstances. Ordinarily it is said that depending upon the facts and circumstances of each case, whenever there is a conflict in description of property in sale deed or any other instrument so far as plot number, khata number and boundaries are concerned, generally speaking the boundaries are to prevail. The aforementioned view was also taken into consideration by this Court in Dinabandhu Sethi v. Page 18 of 29 Chintamani Sahu, AIR 1971 Ori. 215, Dhobei Behera v. Nabaghana Senapati, 1973 (2) CWR 1255, Babaji Dehuri v. Biranchi Ananta, Vol.81 (1996) CLT 651. 10. In view of clear admission in the affidavit, as referred to above, there is no dispute on the fact that the petitioner was in possession of Ac.0.05 dec. of land out of Plot No.1568 and, as such, it is admitted that the petitioner is in occupation of Ac.0.04 decimals and, so far as Ac.0.01 dec. of land is concerned, the same was sold by Rajkishore Sahu in favour of opposite party no.7. Even though opposite party no.7 has entered appearance through his counsel, he has not preferred to file any counter affidavit or produced any document to show that he had purchased the land from Rajkishore Sahu. In absence of any material to that extent, the so called sale cannot be treated to be a valid sale. More so, a claim with regard to oral sale has been made, but nothing has been placed on record before this Court justifying the same as valid. Above part, the ROR issued in Annexure-2 clearly Page 19 of 29 indicates that the petitioner was in possession of Ac.0.05 decimals of land. But subsequently the Additional Tahasildar, without giving any opportunity of hearing to the petitioner and without complying with the principles of natural justice, reduced the same to Ac.0.04 decimals, thereby causing shortage of Ac.0.01 dec. But the reasons for occupation of Ac.0.01 dec. of land by opposite party no.7-Sarat Dehury cannot have any justification, due to non-production of the relevant records. As such, at best opposite party no.7-Sarat Dehury can be construed to be an unauthorized occupant of the area allotted in favour of the petitioner. Merely because allotment of Ac.0.05 decimals of land in favour of the petitioner requires approval of the Sub-Collector and the same having not been done by the Tahasildar, he cannot suo motu reduce the area from Ac.0.05 decimals to Ac.0.04 decimals without giving any opportunity of hearing to the petitioner and without complying with the principles of natural justice, as the ROR indicates that the petitioner was in possession of Ac.0.05 decimals of land vide Annexure-2. Page 20 of 29 11. The essential of compliance of natural justice is nothing but a duty to act fairly. Natural justice is an antithesis of arbitrariness. It, therefore, follows that audi alteram partem, which is facet of natural justice is a requirement of Art.14. The word ‘nature’ literally means the innate tendency or quality of things or objects and the word ‘just’ means upright, fair or proper. The expression ‘natural justice’ would, therefore, mean the innate quality of being fair. Natural justice, another name of which is common sense of 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 must not only be done but also appears to be done. The soul of natural justice is “fair play in action”. Page 21 of 29 12. In HK (An Infant) in re, 1967 1 All ER 226 (DC), Lord Parker, CJ, preferred to describe natural justice as 'a duty to act fairly'. 13. In Fairmount Investments Ltd. v. Secy. of State for Environment, 1976 2 All ER 865 (HL), Lord Russel of Killowen somewhat picturesquely described natural justice as 'a fair crack of the whip'. 14. 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. 15. In Ridge v. Baldwin, (1963) 2 SLL RT 66 at 102, Lord Morris of Borth-y-Gest observed that “it is well established that the essential requirements of natural justice at least include that before someone is condemned he is to have an opportunity of defending himself, and in order that he may do so that he is to be made aware of the charges or allegations or suggestions which he has to meet ... My Lords, here is something which is basic to our Page 22 of 29 system: the importance of upholding it far transcends the significance of any particular case". 16. In Byrne v. Kinematograph Renters Society Ltd, (1958) All ER 579, while considering the requirements of natural justice, Justice Narman, J said. “........First, I think that the person accused should know the nature of the accusation made; secondly, that he should be given an opportunity to state his case; and thereby, of course, that the tribunal should act in good faith. I do not think that there really is anything more”. 17. In Russel v. Duke of Norfolk, (1949) 1 All ER 109, Tucker, LJ, observed that one essential is that the person concerned should have a reasonable opportunity of presenting his case. The view of Tucker, LJ, in Russell's case (supra) has been approved by the Supreme Court of India in Rattan Lal Sharma v Managing Committee,