The High Court
Case Details
IN THE HIGH COURT OF ORISSA AT CUTTACK WP(C) No.19056 of 2022 Prabodha Kumar Senapati and others …. Petitioners -versus- State of Odisha and others …. Opposite Parties Advocates appeared in this case : For Petitioner : Mr. Suryakanta Dash, Advocate Mr. H. K. Moharana, Advocate
Legal Reasoning
For Opposite Parties : Mr. A. K. Nanda, AGA Mr. A. K. Sharma, AGA CORAM: JUSTICE ARINDAM SINHA JUSTICE SANJAY KUMAR MISHRA ---------------------------------------------------------------------------------------------- Date of hearing and Judgment 10.02.2023 ---------------------------------------------------------------------------------------------- ARINDAM SINHA, J. 1. Mr. Dash, learned advocate appears on behalf of petitioners. They are ten in number. On query from Court Mr. Dash submits, they are villagers and representing cause of the village. 2. He submits, by order dated 13th June, 2022 the Tahsildar purported to find that plot no.3097 in Hal khata, of area 88 decimals and having kissam Page 1 of 7 ‘Smasan’ has lost its character since long and not being used for the purpose. Accordingly, kissam of the land was directed to be changed to ‘Patita’ from Sarbsadharana khata to Abada Jogya Anabadi khata, for alienation in favour of Commerce and Transport Department, Government of Odisha, to construct Bus Stand. 3. He takes us back in time, to notification dated 30th May, 1988 to point out that the Smasan was in plot no.3343 in Sabik khata no.643, having area 1.32 acres. By the notification there was made exchange by taking away 36 decimals from the Smasan, to give corresponding area from plot no.3341 in Sabik khata no.49, having area of 45 decimals. He submits, though the Government took way land from the Smasan, it did not effect the exchange. As such, the Smasan stood reduced to area below 1 acre from original 1.32 acre. 4. He submits, therefore, objections put in by the villagers were not duly considered by the authorities in proposing to appropriate from the remaining area of Sarbsadharana Smasan, 88 decimals, by saying that the land has not been used for the purpose, since long. On query from Court he submits, prayers in the writ potion are twofold. Firstly, to prevent alienation of 88 decimals as has now been sought to be made and secondly, for enforcement WP(C) no.19056 of 2022 Page 2 of 7 of the exchange regarding 36 decimals of land earlier taken away by the Government. 5. Mr. Nanda, learned advocate, Additional Government Advocate appears on behalf of State. He submits, the Gram Panchayat by resolution no.2 dated 30th June, 2022 said that the land has completely lost its characteristics. It is not being used as Smasan place since last 100 years and there is no sign of any cremation structure existing over it. The resolution goes on to say that for local development, the Panchayat wants to de-reserve this Smasan kissam land to Patita-cum-Abadi Jogya Anabadi khata, for eventual alienation of suit land in favour of Road Transport and Commerce Department, to develop Bus Stand-cum-Market Complex and the Punchayat has no objection if same is effected for the purpose by Revenue authority Tahsildar. He then points out from circular dated 27th August, 2014 that it had reference to judgment of the Supreme Court in Jagpal Singh v. State of Punjab, reported in (2011) 11 SCC 396. He refers to sub-clause (j) in clause 3 of the circular. We reproduce the sub-clause. “3.(j) Where the land is recorded as smasana/burial ground/grave yard etc., in the record of rights and the same is absolutely required for the project, the requisitioning authority shall have to provide equal extent of suitable alternate sites having similar facilities as are WP(C) no.19056 of 2022 Page 3 of 7 available at the existing sites. The classification of land required by the requisitioning authority may be changed under the provisions of Rule 34(e) of the Orissa Survey and Settlement Rules, 1962.” (emphasis supplied) 6. He also points out that de-reservation case no.11/22 has been initiated. By order dated 13th June, 2022 the Tahsildar acknowledged the requirement for providing land in exchange. He submits, it will appear from said order that plot no.1923 in khata no.1892 having 93 decimals has been identified thereby, for alienating 88 decimals bearing kissam ‘Gochar’ to Smasan. The land is in mouza Gop. 7. On query from Court regarding alienation earlier of 36 decimals without land given in exchange, as contended by petitioners, he hands up order-sheet in WP(C) no.37183 of 2022 (Md. Idrish Saha and others vs. State of Odisha and others), carrying orders made by the Single Bench including, inter alia, direction for interim measure to maintain status-quo. He submits, there are encroachments on the land of area 36 decimal, intended to be given in exchange. On encroachment case initiated, this Court has interfered and directed status-quo to be maintained. That is why the exchange could not and cannot be effected. WP(C) no.19056 of 2022 Page 4 of 7 8. We have not been shown any contemporaneous or immediately preceding evidence, for the Tahsidlar to have found by said order dated 13th June, 2022 that the land comprising of plot no.3097of area 88 decimals has lost its character since long and not been used for the purpose. Resolution of the Gram Panchayat came after the order, on 30th June, 2022. It appears from said order dated 13th June, 2022 itself that on the contrary there was objection before the Tahsildar. On top of that we are not prepared to accept that notification dated 30th May, 1988 was issued on non-application of mind, in respect of land that had lost its character of purpose, in notifying exchange in respect of 36 decimals. It transpires that in the name of development the Government is seeking to alienate vacant land earmarked for communal purpose citing judgment of the Supreme Court and reporting compliance of exchange but, the land offered in exchange was encumbered and occupied. As a result, land for communal purpose is therefore disappearing. 9. We reproduce below paragraph 4 from Jagpal Singh (supra). “4. What we have witnessed since Independence, however, is that in large parts of the country this common village land has been grabbed by unscrupulous persons using muscle power, money power or political clout, and in many States now there is no an inch of such land left for the common use of the people of the village, though it may exist on paper. People with power and pelf operating in villages WP(C) no.19056 of 2022 Page 5 of 7 all over India systematically encroached upon communal lands and put them to uses totally inconsistent with their original character, for personal aggrandisement at the cost of the village community. This was done with active connivance of the State authorities and local powerful vested interests and goondas. This appeal is a glaring example of this lamentable state of affairs.” 10. Opposite party nos.3 and 4 are directed to first complete alienation in respect of 36 decimals in plot no.3341, recorded in Sabik khata 49 and ensure access for communal user. The second prayer stands allowed. 11. On compliance with above direction said opposite party nos.3 and 4 will, as condition precedent for alienation of 88 decimals earmarked for Bus Stand and, as the Panchayat says, also for market complex, first alienate plot no.1923 in khata no.1892 of mouza Gop bearing kissam ‘Gochar’ to mutate it as kissam ‘Smasan’ in respect of 88 decimals along with ensuring access for communal user. Mr. Dash submits, the proposed exchange land is 8 km. away from the village. Whether or not the proposed land for exchange is a suitable alternate site having similar facilities as are available in the existing site not being subject matter of this writ petition, we are not required to go into the question. Our this direction, therefore, cannot be said to have decided the issue, if raised in future. WP(C) no.19056 of 2022 Page 6 of 7 12. Upon effecting the alienations and ensuring access thereto for communal user, as directed above by dealing with all objections, said opposite party nos.3 and 4 will proceed to make the alienation for stated purpose of having Bus Stand in the village. 13. We make it clear that till the alienation and user are made in respect of the Smasan, of aggregate area 1.32 acres, status-quo is to be maintained in respect of existing land recorded as Smasan.
Decision
14. The writ petition is disposed of. 15. ( Arindam Sinha ) Judge ( S. K. Mishra ) Judge Prasant Sahoo WP(C) no.19056 of 2022 Page 7 of 7