The High Court
Case Details
IN THE HIGH COURT OF ORISSA AT CUTTACK W.P.(C) No.19288 of 2011 In the matter of an application under Article 226 & 227 of the Constitution of India. ----------- Pankajini Mishra … Petitioner(s) -Versus- State of Orissa & Ors. …. Opposite Parties For Petitioners … M/s. S.N.Sharma & P.K.Mishra. For Opposite Parties … Mr.S.Ghose, Addl. Govt. Advocate PRESENT: J U D G M E N T THE HONOURABLE JUSTICE BISWANATH RATH Date of Hearing and Judgment:16.02.2023
Decision
Biswanath Rath, J The writ petition involves the following prayer: “Under the circumstances, it is therefore prayed that this Hon’ble court may graciously be pleased to issue notice on the opp. parties and after hearing the parties may allow the writ petition and issue a writ in the nature of certiorari quashing annexures-8, 9 and 10 and the opp. parties may be directed to assess the conversion charge on the petitioner’s land @ Rs.30,000/- per acre and the rent at the same rate as it is being paid by the raiyats for the similar land in the vicinity i.e. the rent fixed in ROR under annexure-7. And any other further order/orders as would deem fit and proper be also passed in order to give complete relief to the petitioner. And for this act of kindness the petitioner as in duty bound shall ever pray.” 2. Background involving the case is that petitioner possesses a piece of land in the village- Turanga, Block-Talcher, erstwhile District-Dhenkanal to the extent indicated in Annexure-1 series and his application for conversion of the said land appears to have been considered and disposed of but making an assessment in the Page 1 of 7 // 2 // conversion fee @ Rs.3,00,000/- per acre vide Annexure-8. This order having been challenged in appeal and revision vide Annexures-9 and 10, appears to have been dismissed in confirmation of the original order. 3. Mr.Sharma, learned counsel appearing for the petitioner taking this Court to the disclosures at page- 13 of the brief clearly disclosing the land belong to Mouza-Turanga further reading together with the first notification brought in the determination of conversion fee dated 28.01.2006 vide Annexure-3 attempted to submit that conversion fee so far as the petitioner’s land is concerned, should have been made covered in Sub-Clause-4 of notification dated 28.01.2006 . Reading through Clause-2, Sub- clause-B, Clause- 2 and Sub-Clause-(iv) at pages- 20 and 21 of the brief also taking this Court to the notification issued by the Government bringing in the developed area through Annexure-5, petitioner village finds place at Sl.No.124, running page -23 therein made an attempt to convince the Court that the conversion fee in the interest of justice and in view of the aforesaid declaration should have been 30,000/- per acre and thus claimed the competent authority assessing conversion fee @ Rs.3,00,000/- per acre becomes bad. It is accordingly prayed for interfering in the impugned order at Annexures-7, 9 and 10 and setting aside the same. 4. Taking this Court to the counter averment in paragraph-9, it has also been brought to the notice of the Court that there is clear disclosure indicating the petitioner’s land does not come under the Municipal area and thus submits there is no application of conversion fee @Rs.3,00,000/- per acre to the land involved herein. Page 2 of 7 // 3 // 5. Mr.Ghose, learned Additional Government Advocate appearing for the contesting opposite parties on the other hand while not disputing that the land of the petitioner belong to rural area Turanga and outside of Municipal area, but however reading through the amended provision in the O.L.R. Act, Clause-2 running page-20 of the brief contended that the land of the petitioner situates within one and half kms. of one side of the National Highway and thus claims, there is right approach in applying the conversion assessment @Rs.3,00,000/- per acre. So far as the observation of the authorities involved through the impugned orders, there is however no doubt that there is no proper appreciation of the issue involvement of the case land, if required to be applied under Clause-iv of the amended provision at Annexure-4. It is in the circumstance, Mr.Ghose, learned Additional Government Advocate attempted for supporting the impugned orders. 6. Considering the rival contentions of the parties, this Court finds there is no dispute that petitioner brings an application for conversion under the provision of section 8(A) of the O.L.R. Act vide Annexue-2 by filing such application on 10.10.2008. On perusal of the document relied on by the petitioner through Annexure-3, a notification issued on 28.01.2006, this Court finds Clause-1 Sub-Clause-b and Clause-4 therein dealing with the rate of assessment on different category of land reads as follows: “(b) Areas within one-half Km. i.e. 500 meters on either side of National Highways for which premium is payable Rs.3 lakh per acre (Clause-1) Area on both sides of National Highways from Bhubaneswar Municipal Corporation to Khurda Municipality, Chhatrapur N.A.C. to Kanisi, Bhubaneswar Municipal Corporation to Pipili N.A.C., Puri Municipality to Chandaanpur, Cuttack Municipal Corporation to Tangi, Badachana to Jaraka, Kuakhia to Panikoili, Vyasanagar, Chandikhol to Duburi, Paradeep N.A.C. to to Angul Bhootmundei, Panikoili N.A.C. to Page 3 of 7 // 4 // Rourkela Municipality to Talcher Meramumndali Banharpal Municipality, Sambalpur Municipality to Hirakud N.A.C., Sambalpur Municipality to to Burla N.A.C., Rourkela Municipality Lathikata, to Biramitrapur Municipallity. Areas on both sides of National Highways situated within the limits of Municipalities/ N.A.Cs, namely Angul, Aska, Baripada, Bargarh, Balugaon, Bhadrak, Bhawanipatna, Brajarajnagar, Deogrh, Dhenkanal, Ganjam, Gopalpur, Jaleswar, Keonjhargarh, Jeypore, Kendrapara, Kesinga, Khariar, Koraput, Nayagarh, Nawarangpur, Nuapada, Rambha, Soro, Sunabeda, Talcher, Titilagarh and Vyasanagar.” Area covered by Development Plans, Master Plans but the Municipality/N.A.C. except as mentioned in 1, 2 ad 3 above.” falling outside Choudwar, Junagarh, “4. Area for which premium is payable @Rs.30,000 per acre (Clause-IV) 7. This Court here finds, it appease, for the notification dated 19.03.1988 petitioner’s case ought to come under this clause but this notification since brought in 1988, an endeavor ought to have been made by Tahasildar to find if petitioner’s land still comes under development area or it has been included in municipal area by 2008, when petitioner applied for con version. 8. This Court at the same time finds consequent upon issuing Clause-2 therein reads as follows: “2. Land situated in any area within one- forth Km. on either side of State Highways running within the Municipal/N.A.C. areas for which premium Rs.1 lakh per acre is to be paid (Clause-II) Areas on both sides of the State Highways through Barapali, Bhanjanagar, passing Hinjilicut, Boudh, Jagatsinghpur, Joda, Kantabanjhi, Padampur, Parlakhemundi, Rayagada, Rajgangpur, Sundargarh and Subarnapur.” Digapahandi, Phulbani, There is another Clause-2 available at page 20 of the brief prescribes as follows: “(2) The rate at which the conversion fees shall be payable per acre of agricultural land situated at different places of the State, for conversion of its use to any purpose other than agriculture on and Page 4 of 7 // 5 // after the commencement of the Orissa Land Reforms (Amendment) Act, 1993 shall be as follows: .. Rs.3,00,000/- Orissa Act 12 of 1994 (i) Land situated within any Municipal area or in areas within one-half kilometer on either side of such National Highways as the State Government may, by notification, specify from time to time . (ii) Land situated in any area within one- forth kilometer on either side of such State Highways as the State Government may, by notification, specify from time to time. (iii) Land situated in a Municipal area or a Notified area, or in any area notified as Urban area under the Orissa Government Land Settlement Rules, 1983 made under the Orissa Government Land Settlement Act, 1962, other than any land mentioned in clauses (ii) and (ii). (iv) Land situated in such developing areas as the State Government may, by notification, specify, from time to time, other than any area covered by clauses (i), (ii) and (iii). (v) Land situated in any area not covered by clauses (i), (ii), (iii) and (iv) 7. .. Rs.30,000/- .. Five percentum of the market value of such land or Rs.1,000/- whichever is more.” The provision at (iv) providing scope of assessment of ..Rs.75,000/- Orissa Act 33 of 1962 .. Rs.1,00,000/- conversion fee on land situated in developing areas notified from time to time for conversion of its use to any purpose other than agriculture. Reading through this provision and together with the disclosures at Annexure-1, this Court finds there is no dispute that the petitioner’s land not only belong to Sarad Jala Do Fasal but undisputedly, the land is in category of agricultural land. In the circumstance and reading through the aforesaid provision, this Court finds provision at Annexue-4, Clause 2 (i) perhaps been applied to such land. For the opinion of this Court for there is clear disclosure though Annexure-6, this Court again finds paragraph-3 at page-26 of Annexure-6 reads as follows: “3. A question has arisen regarding the rate of premium to be charged for allowing conversion by the side of the N.H. In such cases, the corresponding area specific rate notified in the notification referred to above is actually the relevant rate. For instance, suppose an application is received for conversion of agricultural land for non-agricultural purpose by the side of the N.H.42 in village Boinda of Angul district. This village is not within any municipal area nor is it included within any master plan/development plan. Therefore, Page 5 of 7 // 6 // in this case the relevant rate of conversion premium is Rs.1,000.00 per acre. Suppose, for example, a similar application relating to conversion by the side of the N.H. within the municipal limit of Angul is received. In that case conversion premium will have to be charged at the corresponding area specific rate, which is Rs.75.000/- per acre. Similarly, if conversion has taken place by the side of N.H. in a mouza falling outside the municipal limit but within a notified master plan/development plan, then premium will be charged at the rate of Rs.30,000/- per acre. Instead of applying these area specific rates of premia in cases of conversion by the side of National High Ways, instances have come to our notice of premium having been charged at the uniform rate of Rs.3.00 lakhs per acre irrespective of the location. Wherever such mistakes have been committed, necessary correction should be made forthwith.” 8. In this notification, there is also clarification issued to all the Collectors to have conversion assessment at the particular rate. Even though there has been amendment to the provision at Section 8(A) of the O.L.R. Act through Annexure-4, this Court finds the amendment brought therein through second Sub-Clause- 2 (iv) is keeping in view the communication to the Collector already issued in 1998. In the circumstance, this Court finds , there might be justification in considering the conversion assessment involving the land in rural area absolutely in rural area completely outside Municipality jurisdiction applying Clause-1 second Sub-clause-2 at page- 20 of the brief. 9. This Court finds force in the submission made Mr.Sharma, learned counsel for the petitioner. This Court, accordingly, interferes in all the three orders and however for there requires fresh assessment of the conversion even strictly in terms of 2nd Sub-Clause-2 (iv), while also keeping in view the notification of the Government dated 22.12.1998 vide Annexure-6 and further after entering into a formal enquiry to find if petitioner’s land still covered by notification at Annexure-5 and if in 2008 area in which petitioner’s land situated was not brought within Municipal and/or Notified Area, if any, this Court remits the matter back to the Tahasildar, Angul to consider the fresh assessment exercise of the Page 6 of 7 // 7 // conversion fee in the light of the direction made hereinabove and dispose of the Section 8(1) proceeding accordingly. 10. The writ petition stands disposed but however with the order of remand and direction therein. No cost. ….…………………… Biswanath Rath, J. Orissa High Court, Cuttack. Dated 16th day of February, 2023/SKS Page 7 of 7