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IN THE HIGH COURT OF ORISSA AT CUTTACK WP(C) NO.36508 OF 2022 In the matter of an application under Articles 226 & 227 of the Constitution of India. ---- Chakradhar Joshi …. Petitioner -versus- State of Odisha & Others …. Opposite Parties Appeared in this case by Hybrid Arrangement (Virtual/Physical Mode): For Petitioner- Mr. Samir Kumar Mishra, Senior Advocate Mr. Mohendra Kumar Mohapatro Advocate For Opposite Parties- Mr. G. N. Rout Additional Standing Counsel CORAM: MR. JUSTICE D.DASH MR. JUSTICE G. SATAPATHY Date of Hearing :16.01.2024 :: Date of Judgment:29.02.2024 Dash, J. The Petitioner, by filing this writ petition, has invoked the jurisdiction of this Court under Article 226 & 227 of the Constitution of India, for quashing the order dated 29.06.2022, passed by the Special Land Acquisition Officer, Lower Suktel Irrigation Project, Balangir (Opposite Party No.2) in Case Record No.01 of 2019-20 as at Annexure-6 for initiation of recovery proceeding as against the Petitioner. Page 1 of 14 // 2 // 2. Facts necessary for the purpose are as under:- The Petitioner was the recorded owner of the land measuring Ac 0.105 decimal appertaining to Holding No.50 assigned with Plot No.1628/1670 in Mouza Chudapali in the District of Balangir. On 04.09.2002, the Petitioner had applied for conversion of the classification of the land from “Berna Mamuli” to “Gharabari” under section 8-A of the Odisha Land Reforms Act, 1960 (For short, ‘the OLR Act’) which was numbered as OLR Case No.273 of 2002. When the matter stood thus, the State Government published notification under section 4(1) of the Land Acquisition Act, 1894 (for short, ‘the L.A. Act’) for acquisition of the said land and other lands in the locality. The notification was published on 29.12.2003. The land of the Petitioner was covered under the said notification expressing the intention for acquisition. Finally, the Petitioner’s land as above described was acquired by the State for the Lower Suktel Irrigation project. Since the Petitioner had constructed a house over a portion of the land covering Ac 0.93 decimal and was residing therein with his family as per the prevailing guideline of the State, he was considered as a displaced person under Odisha Resettlement and Rehabilitation Policy of 2006. But as the classification of the land of the Petitioners was “Berna Mamuli”, he was finally awarded with the compensation of Rs.1,02,196.00/- where the market price of the land was assessed taking the classification “Berna Mamuli” as per the record position. 3. The Petitioner, thereafter, filed a writ petition numbered as WP(C) No.11818 of 2005 challenging an order dated 03.09.2005, Page 2 of 14 // 3 // passed by the Tahasildar, Balangir in OLR Case No.273 of 2002. This
Decision
Court finally disposed of that writ petition by order dated 29.01.2007. The Order runs as follows:- “Heard. The Petitioner has approached this Court being 2. the order dtd.3.9.2005 passed by aggrieved by Tahasildar, Bolangir in OLR Case No.273/2002. Admittedly, the petitioner is the owner of A0.105 dec of land appertaining to Holding No.50 of Plot No.1628/1670. The Kissam of that land is “Barnali”. The petitioner filed an application under section 8 of the O.L.R Act with a prayer to convert the kissam of the said land as “homestead”. The petition, as it appears from the order sheet, was filed on 04.09.2002. The order dtd.16.8.2004 reveals that though the petitioner was called upon to deposit certain admissible fees the same was not deposited. Thereafter by the impugned order dtd.3.9.2004 the petition was dismissed on the ground that a notification under Section 4 (1) of the Land Acquisition Act was published on 29.12.2003 and as such the petition for conversion was not maintainable. 3. These facts are strongly repudiated by learned counsel for the petitioner mainly on the ground that similar application filed by some others after the petitioner filed his application having been allowed, not allowing the petitioner’s application amounted to gross discrimination. It is further submitted that at no point of time the petitioner was asked to deposit the conversion fees and such observation made in the impugned order is an error apparent on the face of the record. 4. Learned counsel for the State, on the other hand, submitted that the writ petition is not maintainable on the ground that after publication of the notification under Rules 4(1) of the Land Acquisition Act, no Page 3 of 14 // 4 // conversion can be allowed. It is also submitted that in consonance with Sections 73(C) and 8(C) of the O.L.R. Rules the conversion cannot be allowed. to factual discrepancies, I have heard learned counsel for the parties at 5. length. Though learned counsel for the State was directed file a counter affidavit by order dtd.24.01.2006, no counter affidavit has been filed. After going through the records as this Court finds that there are certain there are allegations with regard to discrimination on the ground that similar application filed by others at a later stage was allowed whereas the petitioner’s application was rejected and that at no point of time the petitioner was called upon to file conversion fees, this Court feels that it is a fit case where the matter should be remitted back to the court of Tahasildar, Bolangir once again for fresh disposal and I direct accordingly. i.e. 6. It is made clear that this Court has not made any observation on the merits of the contentions raised and it is open to the Tahasildar to dispose of the petition on the basis of the materials available and strictly in consonance with law within a period of six weeks from the date of communication of this order. The Tahasildar shall also consider the effect of conversion of the land, if any, made by the Petitioner without obtaining permission. The order be communicated to the Tahasildar, Bolangir at the cost of the petitioner.” 4. After this order that OLR case registered on the application under section 8-A of the OLR Act which had been rejected on 16.08.2004 was reopened and finally, said application was allowed on 23.04.2007 wherein conversion of the classification of the land of Ac 0.93 from “Berna Mamuli” to “Gharabari” was allowed. On the basis of said order, the earlier award awarding a sum of Rs.1,06,283.00/- Page 4 of 14 // 5 // towards compensation paid to the Petitioner for the said acquisition of land, which he had received on protest, was recalculated and a sum of Rs.8,20,076.00/- was further paid to the Petitioner. During special audit of the account of the Opposite Party No.2 for the period from August, 2009 to October, 2009, an objection was raised as to payment of excess compensation to the Petitioner. The objection was that without approval of Government when on the date of notification under section 4(1) of the L.A Act, the kisam of the land as per the record was “Berna Mamuli”, the subsequent order as to conversion of the kisam of the land and based upon that grant and payment of the enhanced compensation for the land taking into account that converted kisam as Gharabari was not permissible, the revised awarded amount was illegally paid. The Opposite Party No.1 therefore has passed an order for recovery for a sum of Rs.8,20,076.00/- from the Petitioner which is challenged in the present writ petition. The Opposite Party No.2 and 3 as well as Opposite Party No.4 on the above facts have stated all in support of the order of recovery of the above amount from the Petitioner. 5. We have heard Mr. S. K. Mishra, learned Senior Counsel assisted by Mr. M. K. Mohapatro, learned Counsel for the Petitioner and Mr. G.N. Rout, learned Additional Standing Counsel for the Opposite Parties at length. We have carefully gone through the averments taken in the writ petition as well as the counter and perused all the documents annexed thereto. Page 5 of 14 // 6 // 6. In view of the rival case as presented and submission advanced, according to us, two issues arise before us for decision which are as follows:- (a) Whether in view of the closure of the Land Acquisition Proceeding by way of payment of compensation in terms of the award passed by the Opposite Party No.2 under section 11 of the L.A. Act, the Tahasildar exercising the jurisdiction under section 8(A) of the OLR Act could have converted the Kisam of the land to Gharabari and if said order of conversion is nonest in the eye of law? and (b) Whether on the face of the classification of the land in question as Berna Mamuli in the Record of Right standing in the name of the Petitioner as on the date of publication of the notification under section 4(1) of the L.A. Act by virtue of the subsequent order of conversion of the Kisam of the land in question that too after the final award was passed by the Opposite Party No.2 assessing the compensation payable for the land to the Petitioner taking the classification of the land as Berna Mamuli could have been revised/reviewed by enhancing the compensation. 7. Proceeding to answer the first question, it would be apt and proper to give a careful reading to the provision contained in section 8(A) of the OLR Act. The provision reads as under:- Page 6 of 14 // 7 // “8-A conversion of agricultural land for purposes other than agriculture (1) Notwithstanding anything contained in Section 8- (a) the authorized officer may, where an application is made to him by a raiyat in the prescribed form for conversion of the use of any agricultural land belonging to him for purposes other than agriculture, allow such conversion, if he is satisfied that such conversion shall not violate- (i) (ii) any master plan, improvement scheme, development plan or town planning scheme, made or published under the Odisha Town Planning Improvement Trust Act, 1956 the Odisha (Odisha Act 10 of 1957) or under Development Authorities Act 14 of 1982 or under any law for the time being in force and applicable to such land; and any other condition or conditions as may be prescribed for the purpose of dealing with bona fide cases of such conversions. (b) xxxxxxxx (C) xxxxxxxx (d) xxxxxxxx (2) xxxxxxxx (i) xxxxxxxx (ii) xxxxxxxx (iii) xxxxxxxx (iv) xxxxxxxx (v) xxxxxxxx xxxxxxx xxxxxxx xxxxxxx xxxxxxx xxxxxxx xxxxxxx xxxxxxx xxxxxxx xxxxxxx xxxxxxxx xxxxxxxx xxxxxxxx xxxxxxxx xxxxxxxx xxxxxxxx xxxxxxxx xxxxxxxx xxxxxxxx Explanantion- xxxxxxxx xxxxxxx xxxxxxx Page 7 of 14 // 8 // (a) xxxxx xxxxxxx xxxxxxx xxxxxx xxxxxx (b) xxxxx xxxxxxx xxxxxxx xxxxxx xxxxxx (c) xxxxx xxxxxxx xxxxxxx xxxxxx xxxxxx (3) xxxxx xxxxxxx xxxxxxx xxxxxx xxxxxx 8. The above provision begins with an non obstante clause that “notwithstanding anything contained in Section 8 of the OLR Act, upon an application being made by a Raiyat in the prescribed form (Form No.25) before the Authorized Officer for conversion of the use of any agricultural land belonging to him for the purposes other than agriculture, such conversion may be allowed on arriving at a satisfaction that the same shall not violate sub clause (i) & (ii) of clause (a) of sub section 1. Clause b of said sub section 1 of section 8-A of the Act says that when the conversion is allowed, the Raiyat is required to pay conversion fees for such land calculated at the rate specified in sub section (ii) and then the Kisam of the land so converted shall be accordingly corrected in the record. 9. Section 8 of the Act states as under:- “8.Eviction of Raiyats- (1) Subject to other provisions of this Act and notwithstanding any contract, custom or usage or decree or order of any Court, a raiyat shall be liable to eviction only if he- (a) has used the land comprised in his holding in a manner which renders it unfit for the purposes of agriculture; or Page 8 of 14 // 9 // (b) has leased out the land in contravention of the provisions of Section 6 or has failed to cultivate the land personally; or (c) has used of the land for any purpose other than agriculture. Keeping in view the above provisions, when we look at the Form No.25, it is seen that under column 8 of the said Form, the applicant is required to state as to the date from which the land is intended to be used/already used for non-agricultural purpose. This shows that even a person, who has already used the land for non-agricultural purpose making him liable for eviction under section 8 of the OLR Act if no eviction has taken place initiating necessary proceeding in that regard in accordance with the provision contained in section 8 of the Act, he can still maintain an application for conversion. But only when the conversion is allowed, it shall be so recognized in the eye of law. 10. It is not in dispute that the Kisam of the land in question as per the record was “Berna Mamuli”. On 04.09.2002, the Petitioner applied for conversion of the user of the land for non-agricultural purpose as “Gharabari” (homestead). It is stated that the Authorized Officer- Opposite Party No.4 sat over the matter and did not take any action on that application for a long period of time. The order sheet of that OLR Case No. 273 of 2002 filed by the Petitioner under Annexure-2 reveals that on receipt of the application, the notice was issued to the Petitioner fixing the date of hearing on 11.10.2002. The Petitioner having remained absent on 11.10.2002, the case was posted to 10.01.2003 and then again awaiting service of notice, it was posted to 20.02.2003. Finally, on 03.09.2004, the application was rejected in view of the publication of the notification under section 4(1) of the L.A Act and Page 9 of 14 // 10 // that was again reaffirmed while dealing with the grievance petition of the Petitioner by order dated 16.08.2004. The Petitioner then filed a writ petition before this Court, which was numbered as WP(C) No.11818 of 2005. The said writ petition stood disposed of on 29.01.2007. This Court then passed the order which has been reproduced in paragraph 3 as above. 11. A careful reading being given to the said order as reproduced; it is seen that on that occasion while the matter was remitted to the Court of Tahasildar for fresh disposal, it had been made clear that the Court has not made any observation on the merits of the contentions raised and it was open to the Tahasildar to dispose of the petition on the basis of the materials available and strictly in consonance with law. It had also been indicated that the Tahasildar shall also consider the effect of conversion of the land, if any, made by the petitioner without obtaining permission, hinting thereby for any action if so necessitated under section 8 of the OLR Act if the conversion is not allowed. After this order, the Tahasildar however allowed the conversion of the use of the agricultural land for non-agricultural purpose by order dated 13.04.2007, the Petitioner has deposited the conversion fees on 23.04.2007. With such change of classification of the land in question from “ Berna Mamuli” to “Gharabari”, the Land Acquisition Officer has computed and disbursed the differential amount of compensation of Rs.7,16,326/- taking the Kisam of the land as “Gharabari” over and above the compensation previously assessed at Rs.1,06,283/- taking Page 10 of 14 // 11 // the Kisam of the land as “Berna Mamuli” on 05.02.2007 and paid to the Petitioner. 12. The claim of the petitioner as not laid in the petition is not that the Petitioner was using the land as homestead prior to the filing of the application under section 8-A of the OLR Act. Moreover, the application in Form 25, which the Petitioner had filed, has not been annexed to the present writ petition, to enable the Court to know as to what had been written therein, whether said use for purpose other than agriculture was prior to the application or it was so intended to be used afterwards. When it was stated in the earlier writ petition that in said OLR Case No.273 of 2002, the Tahasildar by order dated 16.08.2004 had asked the Petitioner to deposit certain admissible fee which the petitioner had not deposited, for which the petition was later on dismissed on the ground of publication of notification under section 4(1) of the L.A. Act on 29.12.2003, no such document has been filed in the present writ petition before us. The orders on that score as to direction to deposit are not filed especially when the Opposite Party have refuted that fact and it had also been so refuted in the previous writ proceeding. In fact, it reveals from the order dated 29.01.2007 passed by the Court in WP(C) No.11818 of 2005 that these facts were strongly refuted from the side of the State. It had been clearly so mentioned in the order noted at paragraph-3 which is reproduced at the risk of repetition for proper appreciation. Page 11 of 14 // 12 // “it is further submitted that at no point of time, the Petitioner was asked to deposit the conversion fees and such observation made in the impugned order as an error apparent on the face of the record. The order sheet, which the Petitioner has filed reveals that when during the proceeding for conversion publication of notification under section 4 (1) of the L.A. Act was made, the application for conversion was rejected.” 13. When we read the provision contained in Section 8-A of the OLR Act, we no where find the scope of allowing such conversion of the use of any agricultural land for the purpose other than agriculture from any anterior point of time. Even though a Raiyat is using the agricultural land for non- agricultural purpose, the conversion of the user would stand legally accepted only when the order under section 8- A of the OLR Act is passed allowing such conversion and it has to take effect from that particular date. The land in question which was sought to be used for purpose other than agriculture must be in the hands of the applicant as capable of being so used. In the given case, the notification under section 4 (1) of the Land Acquisition Act was published on 29.12.2003, and, the declaration under section 6(1) of the Act has followed. So, when on 03.09.2004, the application for conversion was rejected, as by then the notification under section 4(1) of the L.A. Act had already been published. The Petitioner then having moved this Court, the matter has been remitted to the Tahasildar for reconsideration of the question of conversion on its own merit without in anyway being influenced by the order in that writ petition. Page 12 of 14 // 13 // In our considered view, the Tahasildar on 13.04.2007 had no jurisdiction at all to sit over the matter of conversion of the user of the land from that of agriculture to other than agriculture as by then, the award for acquisition of the said land had already been passed and the land acquisition proceeding had been closed whereby the land was not in the hands of the Petitioner so as to be used. As already stated, such order of conversion of the user of agricultural land for any purpose of other than agriculture cannot be effective and thus not recognizable in law from a date anterior to the date of the order and that apart, since it is passed in favour of the owner of the land, who intends to use for non- agricultural purpose or who had used it for non- agricultural purpose, such were not the state of affair prevailing in respect of the land of the Petitioner as on the date of said order passed on 13.04.2007, whereby the conversion was allowed, the land in question was no more remaining with the Petitioner having been acquired and vested with the State free from all encumbrances. Therefore, in our considered view, the order dated 13.04.2007 was without jurisdiction and as such nonest in the eye of law. 14. In that view of the matter, the Land Acquisition Officer had no jurisdiction to revise/review the award and enhance it by further a sum of Rs.7,16,326/- taking the kisam of the land as “Gharabari” as if it was so existing in the record and deeming as such as on the date of notification under section 4(1) of the L.A. Act. Therefore, in our considered view that the order dated 29.06.2022 passed by the Opposite Party No.2 in Case Record No.01 of 2019-20 under Annexure-6 for initiation of recovery proceeding against the Petitioner Page 13 of 14 // 14 // stands to the legal scrutiny and as such is well in order and not liable to be interfered in exercise of extraordinary writ jurisdiction. 15. Accordingly, the writ petition stands dismissed. There shall however be no order as to cost. (D. Dash), Judge. (G. Satapathy), Judge. G. Satapathy, I agree Gitanjali Signature Not Verified Digitally Signed Signed by: GITANJALI NAYAK Designation: Junior Stenographer Reason: Authentication Location: OHC Date: 01-Mar-2024 18:02:23 Page 14 of 14