MD. Atiul @ Ata @ Ataul Rasul & Anr. .… v. State of Odisha & Others
Case Details
Signature Not Verified Digitally Signed Signed by: SANGRAM DAS Reason: Authentication Location: High Court of Orissa, Cuttack Date: 20-Nov-2023 16:58:24 IN THE HIGH COURT OF ORISSA AT CUTTACK WRIT PETITION (CIVIL) No. 27448 of 2023 & 34460 of 2023 (An application under Articles 226 & 227 of the Constitution of India) W.P.(C) No. 27448 of 2023 MD. Atiul @ Ata @ Ataul Rasul & Anr. .…… Petitioners Versus State of Odisha & Others ….… Opposite Parties W.P.(C) No. 34460 of 2023 MD. Atiul @ Ata @ Ataul Rasul & Anr. ……. Petitioners State of Odisha & Others Advocate(s) appeared in this case:- For Petitioners : Versus ……. Opposite Parties
Legal Reasoning
Mr. B.Sahoo, Advocate(in both cases) For Opposite Parties : Mr.S.K.Padhi, Senior Advocate Along with Mr.S.S.Mohanty, Advocate Mr.K.K.Das, Additional Standing Counsel (in both cases) CORAM : JUSTICE B.P. ROUTRAY JUDGMENT 10th November, 2023 B.P. Routray,J. 1. Heard Mr. B.Sahoo, learned counsel for the Petitioners, Mr. S.K. Padhi, learned Senior Counsel along with Mr. S.S. Mohanty, learned counsel for Opposite Party No.4 and Mr. K.K. Das, learned ASC for State-Opposite Parties. W.P.(C) Nos.27448 of 2023 & 34460 of 2023 Page 1 of 6 Signature Not Verified Digitally Signed Signed by: SANGRAM DAS Reason: Authentication Location: High Court of Orissa, Cuttack Date: 20-Nov-2023 16:58:24 2. The issues involved in both the Writ Petitions being interconnected are heard together and disposed of by this common judgment. 3. Initially W.P.(C) No. 27448 of 2023 was filed challenging the order of Sub-Collector, Sundargarh condoning the delay in the mutation appeal. Subsequently, during pendency of said writ petition, the final order was passed in the mutation appeal which was subject matter of challenge in the other writ petition i.e. W.P.(C) No. 34460 of 2023. Therefore, as the cause of action in the earlier writ petition is merged with the subsequent writ petition, the earlier writ petition i.e. W.P.(C) No. 27448 of 2023 is disposed of as such governed by the result of W.P.(C) No. 34460 of 2023. 4. The common facts in both the writ petition, particularly concerning W.P.(C) No. 34460 of 2023, are that, the father of the writ petitioners namely, Asgar Ali purchased a piece of land in Plot No. 574 from one Trilochan Patel in the year 1999 vide RSD No. 121 and then he mutated the land in his favour in the year 2008. Subsequently, in 2022 a mutation appeal was preferred by present Opposite Party No.4 and the final order passed in said mutation appeal is the subject matter of dispute before this Court. Mr. Sahoo, learned counsel for the Petitioner submits that entertaining mutation appeal after 14 years of the order of the Tahasildar, Kutra correcting record in favour of the Petitioners is itself not entertainable being barred by limitation and secondly, the Petitioners are in continuous possession over the land in question since 1999 being the bona fide purchaser of the same from W.P.(C) Nos.27448 of 2023 & 34460 of 2023 Page 2 of 6 Signature Not Verified Digitally Signed Signed by: SANGRAM DAS Reason: Authentication Location: High Court of Orissa, Cuttack Date: 20-Nov-2023 16:58:24 Trilochan Patel. Mr. Sahoo thus prays to set aside the order of the Sub- Collector, Sundargarh passed in the mutation appeal. 5. The case of Opposite Party No.4 is that, initially vide Government of Odisha Gazette Notification No. 1237 dated 3rd September 1985 an area of Ac 42.77 decimals of village Khatkurbahal in the District of Sundargarh was acquired for public purpose for mining operation by IPISP Cement Co. Ltd. Then on 8th April 1987, physical possession of an area measuring Ac 35.45 decimals out of the same was made over to said IPISP Cement Co. Ltd. for mining operations and thereafter the surface right was granted on 20th August 1987. IPISP Cement Co. Ltd. was subsequently transferred to M/s. Shiva Cement Ltd. in the year 1997. Said Shiva Cement Ltd. was non-functional during the initial periods which was subsequently taken over/acquired by JSW in the year 2017 and thereafter steps were taken to make the same functional. The Tahasildar, Kutra on the basis of acquisition of land issued ROR bearing No. 400/489 in favour of Shiva Cement Ltd. for an area measuring Ac 30.45 decimals. The balance area of 05 Acres as per notification dated 8th April 1987, in respect of which the physical possession was made over to the then IPISP Cement Co. Ltd., no ROR was though initially prepared but steps were taken for the same later. In course of time and by virtue of the steps initiated by Shiva Cement Ltd. those balance land of 05 Acres was recorded in favour of them except present land measuring Ac 0.36 decimals. 6. Mr. Padhi, learned Senior Counsel submits that the acquisition of land for mining operation in favour of the predecessor company of present Opposite Party N.4 is never disputed and the same is quite clear W.P.(C) Nos.27448 of 2023 & 34460 of 2023 Page 3 of 6 Signature Not Verified Digitally Signed Signed by: SANGRAM DAS Reason: Authentication Location: High Court of Orissa, Cuttack Date: 20-Nov-2023 16:58:24 from the notifications appended to the counter affidavit. He further submits that when the acquisition and handing over of physical possession in favour of Shiva Cement Ltd. is not disputed, the alleged sale of land in favour of the father of the Petitioners in 1999 is non-est in the eye of law and the Petitioners cannot claim any benefit by virtue of such sale made in their favour. Mr. Padhi, learned Senior Counsel continuous to submits that the claim of the Petitioner is non-suited on the face of the fact that the acquisitions have been made for the purpose of the Company (Opposite Party No.4) specifically by land acquisition proceeding. 7. On such rival contentions advanced by respective parties, what is found undisputed on record is regarding acquisition of the land in question in the year 1985 and subsequent handing over of possession in 1987 with the surface right for mining operation of limestone and dolomite. As seen from the notification dated 20th August 1987 under Annexure-C/4, the possession for surface operation over an area of Ac 35.45 decimals including Plot No. 574 measuring Acre 0.36 decimals was accorded in favour of the lessee and such aspect of the matter remains unquestioned and undisputed by the Petitioners. Therefore, the claim of the Petitioners by virtue of the sale deed executed in their favour in the year 1999 that is much after to the land acquisition proceeding was completed and surface right was handed over, has become non-suited in the present context. Therefore, no merit remains in favour of the Petitioners to get the land mutated in their favour. So far as the possession of the Petitioners over the case land is concerned, the same is not subject matter of consideration before this Court and W.P.(C) Nos.27448 of 2023 & 34460 of 2023 Page 4 of 6 Signature Not Verified Digitally Signed Signed by: SANGRAM DAS Reason: Authentication Location: High Court of Orissa, Cuttack Date: 20-Nov-2023 16:58:24 therefore, this Court refrains from giving any opinion on the same or about any right flown therefrom. 8. With regard to the objections raised by the Petitioners for condoning the delay in entertaining the mutation appeal by the Sub- Collector is concerned, as stated by the facts narrated above, the condonation of delay is found well-justified. It is for the reason that, the non-functioning of initial IPISP Cement Co. Ltd., its subsequent acquisition by Shiva Cement Ltd. and transfer of operation of the same to JSW authorities, is never disputed. The additional fact that ROR could not be prepared in respect of balance 05 Acres, as stated above, including the case land measuring Acre.0.36 decimals, is also not a fault on the part of Opposite Party No.4. Therefore, the reasons assigned by the Appellate Authority to condone the delay from 2008 to 2022 can be said justifiable. As such, no merit is seen in the contention of the Petitioners to interfere with the impugned order of the Sub-Collector on the ground of limitation. 9. As discussed above on merits of the case based on the acquisition of land and subsequent notification granting surface right, the Petitioners are not found entitled for any relief in their favour.
Decision
10. Accordingly, both the Writ Petitions are dismissed. W.P.(C) Nos.27448 of 2023 & 34460 of 2023 Page 5 of 6 Signature Not Verified Digitally Signed Signed by: SANGRAM DAS Reason: Authentication Location: High Court of Orissa, Cuttack Date: 20-Nov-2023 16:58:24 11. However, it is observed that the result of these Writ Petitions shall not affect the alleged right of the Petitioners to pursue their case, based their continuous possession, if any, over the case land in appropriate forum. Judge (B.P. Routray) Sangram Das, Jr.Steno W.P.(C) Nos.27448 of 2023 & 34460 of 2023 Page 6 of 6