MOHAMMAD RAFIQ,K.R.MOHAPATRA,JJ. -
(1.) The petitioner, in this writ petition, calls in question the order dated 17.01.2009 (Annexure-5) passed by the SubCollector, Bhubaneswar (OP No.2) in Waste Land Appeal Case No.08 of 2008 thereby confirming the order dated 30.06.2003 (Annexure-4) passed by Additional Tahasildar, Bhubaneswar in WL Case No.850 of 1974 initiated under Section 3-B of Odisha Government Land Settlement Act, 1962 (for short, 'the Act').
(2.) Facts in nutshell relevant for proper adjudication of this case are that one Debara Badara-opposite party No.3 being a landless person, applied for settlement of a piece of Government land. On the basis of his application, WL Case No.850 of 1974 was initiated by the Tahasildar, Bhubaneswar and observing formalities and due procedure of law, an area of Ac.1.000 decimal was settled in his favour. Accordingly, Record of Right (Annexure-1) in respect of Plot No.590/970/985 under Khata No.176/4 in Mouza Sundarpur under Chandaka Police Station in the district of Khordha (for short, 'the case land') was issued in favour of opposite party No.5.
Due to his legal necessity, the opposite party No.5 sold an area of Ac.0.500 decimal in favour of the petitioner vide RSD No.11244 dated 30.12.1988 (Annexure-2), after obtaining permission of the Revenue Officer, Bhubaneswar in Revenue Misc. Case No.288 of 1987 and delivered possession thereof. While the matter stood thus and the petitioner was in peaceful possession over the case land, the Tahasildar, Bhubaneswar (OP No.3) initiated a proceeding under Section 3-B of the Act on the ground that the opposite party No.5 was not using the land for agriculture purpose, for which it was leased out. As such, pursuant to the direction of this Court, vide order dated 29.01.1996 in OJC No.9449 of 1993 and in obedience to the direction of the Government of Odisha in the Department of Revenue as well as direction of Collector, Khordha, resumption proceeding in respect of the case land was initiated under Section 3-B of the Act in WL Case No.850 of 1974. Ultimately, vide order dated 30.06.2003 (Annexure-4) passed in WL Case No.850 of 1974, the Additional Tahasildar, Bhubaneswar (OP No.4), cancelled the lease granted in favour of opposite party No.5 in respect of the case land and resumed the same. Since the order under Annexure-4 was passed by the Additional Tahasildar, Bhubanesar in WL Case No.850 of 1974 neither issuing notice nor providing any opportunity to the petitioner, he moved this Court in W.P.(C) No.9281 of 2007 assailing the said order, which was disposed of on 09.10.2007 granting liberty to the petitioner to file appeal against the order dated 30.06.2003 (Annexure-4). Accordingly, the petitioner filed WL Appeal Case No.850 of 1974, before opposite party No.2-Sub-Collector, Bhubaneswar, who by his order dated 17.01.2009 (Annexure5) dismissed the appeal and thereby confirmed the order passed by the Tahasildar, Bhubaneswar under Annexure-4. He further directed to delete the name of opposite party No.5 from ROR and to record the case land in Government Khata. Hence, this writ petition is filed for the aforesaid relief.
(3.) Mr. Mohapatra, learned counsel for the petitioner reiterating the aforesaid factual position of the case, submitted that initiation of the proceeding under Section 3-B of the Act is illegal. The proceeding for resumption can be initiated only when the land is used for a purpose other than for which it was leased out. The proceeding under Section 3-B of the Act was initiated pursuant to the direction of this Court dated 29.01.1996 passed in OJC No.9449 of 1993 (Sarat Kumar Sahoo Vs. A.D.M., Khurda and others,1996 81 CutLT 513). It was observed therein that the land adjoining the State Capital had been settled by Tahasildar, Bhubaneswar for agricultural purpose by exercising power under Odisha Government Land Settlement Act, 1962. Since irregularities in large number of such Settlement was observed by this Court, the State Government was directed therein to enquire into the matter through a Senior Officer in the rank of Secretary and on enquiry if it comes to the light that the Tahasildars by misuse of power had settled the land, necessary legal and administrative action should be taken against them and further if the land so settled are used otherwise for the purpose for which it was leased out the Government should proceed against the lessee in accordance with law. Accordingly, Government of Odisha in the Revenue and Excise Department decided to deal with the cases under Section 7-A(3) of the Act. However, in those cases where a proceeding under Section 7-A(3) of the Act could not be initiated due to lapse of 14 years from the date of such settlement, it was decided to initiate proceeding under Section 3-B of the Act by the Tahasildar, Bhubaneswar to deal with such cases. In the instant case, no enquiry by an Officer in the rank of Secretary was conducted. The Tahasildar, Bhubaneswar on presumption that the land was being used for a purpose other than agriculture, initiated the proceeding for resumption. As such, the initiation of the proceeding under Section 3-B of the Act is per se illegal. He further submitted that neither the petitioner nor the original lessee was ever noticed at the time of so-called enquiry conducted by the Revenue Inspector along with the Tahasildar. It is his submission that the land is still being used for agriculture purpose.;