Decided on February 03,2020



D.Dash,J. - (1.) The petitioners, by filing this writ application, have prayed for a declaration that the action of the Collector, Kandhamal, (Opposite Party no.2), Sub-Collector, Kandhamal, (Opposite Party no.3) as also the Tahasildar, Khajuripada, (Opposite Party no.3) in converting the Kisam of the land measuring Ac.5.932 decimals covered under 10 plots of Khata No.218 from GOCHAR to PATITA being assigned with Khata No.220 under said 10 plots as illegal. They have further prayed to direct the Opposite Party no.2 to consider their grievance as also those of other co-villagers in this regard.
(2.) Facts necessary for the purpose are as under: The villages, namely, Kaladi and Tilakpada under Khajuripada Tahasil in the sub-division of Kandhamal of the district of Kandhamal is a Scheduled Area as per the Presidential Order, i.e, the Scheduled Areas (States of Bihar, Gujurat, Madhyapradesh and Odisha) Order, 1977 made in exercise of powers conferred by subparagraph 6 of the 5 th Schedule of the Constitution of India. It is stated that the opposite party no.4 suddenly affixed a proclamation/notification in mouza Kaladi and Tilakpada regarding establishment of Durgapati 8th Specialized India Reserved Battalion (hereinafter called as the Battalion?) and for the purpose, ten plots of land of Gochar kisam in mouza Kaladi under Khata No.218 measuring Ac.5.932 decimals have been converted to kisam Patita under Khata no.220. It is said that said establishment of Battalion had been objected to by the people of the locality by conversion of said land from Gochar to Patita. It is further stated that although the petitioners and others had raised serious objection to such conversion of kisam of land after having come to know about the move by notice dated 21.12.2018 as under Annexure-1 series, those have not been duly considered. In this way, the conversion of kisam of the aforesaid land having been made, opposite party no.4 made a proclamation on 11.07.2016 for establishment of the Battalion over that land under Khata no.220 as it stood after conversion of kisam. This was again objected to by the petitioners and others and so also the subsequent communication made by the opposite party no.4 in that connection. A meeting in the village being convened, said action of opposite parties for establishment of the Battalion over the land by conversion of its kisam from Gochar to Patita was deprecated and it was decided to raise objection in proper quarters. It is the case of the petitioners that the villagers of the said locality are depending on said land kept for being used for grazing of cattles. It is next stated that the land in question in the area being within the declared Scheduled Area, the provisions of Panchayats (Extension to the Scheduled Areas) Act, 1996 (in short, the PESA?) is fully applicable. So, it is said that such action of the opposite parties as to conversion of the kisam of the land from Gochar to Patita is in contravention of the provisions of clause (i) and (n) of section 4 of PESA. Their case is that the provision of the aforesaid Act having been thrown to the winds by the State authorities-opposite parties in the matter, said order of conversion of kisam of land is illegal and thus liable to be quashed. It may be stated here that on 21.12.2015, notification as to establishment of the Battalion at Mouza-Kaladi had been published after conversion of the kisam of the land from Gochar to Patita. On 11.2.2016 and 26.2.2016, communications were made for the awareness of the general public as regards such move inviting their objections/suggestions, if any. On 11.7.2016, proclamation was issued for establishment of the Battalion. On 10.8.2016, the petitioners and others raised their objection in the above connection as regards the establishment of the Battalion on the following grounds: (i) contravention of clause (i) and (n) of section 4 of PESA; and (ii) existence of burial ground over the land.
(3.) The opposite parties 2 and 4, in their counter, have averred that for such conversion of kisam of land, all the procedures as prescribed in Odisha Government Land Settlement Act and rules made thereunder have been scrupulously followed and so also in the matter of alienation of the land after said conversion of kisam of land. It is stated that the villagers have been given the opportunity to raise their objection at every stage and they having been heard with reference to the objections, the decisions have been taken. While not disputing that the provisions of PESA have their applicability in so far as the place where the land in question situates; it is stated that since the provisions of PESA does not at all get attracted for the subject matter, viewed with the purpose, the decision so taken is not in contravention of clause (i) and (n) of section 4 of PESA. It is stated that such process of alienation does not also affect any individual right. It has been further averred that the objections raised are with ulterior motive with a bid to somehow put to block the process and move of the State for prevention of nuxlite activities in the area, which has already witnessed a communal riot as also in relation to serious law and order problems.;

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