LOKANATH SINGH Vs. STATE OF ORISSA

JUDGEMENT

(1.) THE writ petitioner claimed assignment of land on the basis that he was a retired Army Personnel. He was not found to be eligible for assignment of land on that basis. But, he was found to be eligible for assignment of land on the basis that he was a landless person. He was therefore, granted a lease of 2 acres of land in mouza Harida Pada under Bhubaneswar Tahasii. He took possession of the said land. He had put up fence around it and had planted cashew plants. It may be noted that the land was to be used by him for agricultural purpose and he was expected to cultivate the land.

(2.) WHILE he was thus in possession, it appears that a village road was taken through the property. The petitioner has not clearly disclosed the circumstances under which the road was taken through the property that was leased out to him and what steps he took at the appropriate time to assert his right and if he indicated his unwillingness to the passing of the road through his property. But, the fact remains that a road had come into existence covering an extent of 0.190 decimals. The petitioner continued to be in possession of the rest of the land which had got divided into two in view of the making of the road. These things happened in the early 1980s. The petitioner continued to have possession of the land even in the year 1994 as can be seen from a report in that behalf Annexure -11 which was made sometime in the year 1994. Meanwhile, in the settlement proceedings the land does not appear to have been settled in the name of the petitioner. A small extent of land out of the 2 acres was also used for constructing a residential building under the Indira Abas Yojana. The land taken for that purpose is said to be 0.050 decimals. It is not clear what was the attitude adopted by the petitioner at that time though now he has come forward with a case that the taking of a road through his property and using of a bit of land for the purpose of constructing a building under the Indira Abas Yojana was without his consent. Whatever it be, the petitioner made a representation and it is seen from paragraph 8 of the writ petition that the Under Secretary to the Government, Revenue and Excise Department, advised the Collector to settle the claim of the petitioner by way of compensation. The petitioner was presumably not content to receive the compensation and seems to have insisted on an alternate piece of land being assigned to him and even in claiming a settlement of more extent than 2 acres. The request was not acceded to. Ultimately the authority turned down the claim for alternate land raised by the petitioner. It was also held that he was not entitled to a lease of 5 acres of land since he did not qualify for assignment of such an extent on the basis of his being an ex -service -man. His claim for compensation was also negatived on the basis that the land which was to be used by him and which was admittedly put in his possession had not been used by the petitioner for agricultural purpose from the year 1969 till the date of the order, i.e., 14.12.2001. It is in this context that the petitioner has approached this Court with the present writ petition for the issue of a writ of mandamus directing the opposite parties to comply with his claim for allotting him 2 acres of land in exchange for the land allotted to him under the earlier order of allotment. He has also prayed for the issue of a writ of certiorari to quash the order described as Annexure -23 to the writ petition, which is seen to be a prescription for medicine. We take it that what the petitioner seeks is the quashing of Annexure 22 order, since that is seen to be the order of the Collector denying him relief.

(3.) LEARNED Additional Government Advocate in answer submitted that 2 acres of land was put in possession of the petitioner in the year 1969 and thereafter he was in possession. Even going by the allegations in the writ petition and the annexures thereto, the petitioner had taken possession of the land, had fenced it and had planted cashew plants. Once a land was leased out to the petitioner and he had been put in possession, it was his duty to protect that land and if any acquisition of that land was proposed, to object to the same or in the alternative, claim compensation for the same and the petitioner could not take the position that the Government was bound to protect his interest even long after the grant of lease, and transfer of possession to him. The Additional Government Advocate further submitted that same was the position regarding the small extent used during implementation of the Indira Abas Yojana and if the petitioner did not assert his rights, the Government cannot be faulted and the petitioner cannot turn round and ask for some other land. The Additional Government Advocate pointed out that the petitioner had never cultivated the land and he cannot take advantage of his absence or lack of proper care of the land and make additional claims, and that too, at this distance of time. He further submits that there is no reason to interfere at the instance of the petitioner.