GIRISH CHANDRA MOHANTY Vs. STATE OF ORISSA

JUDGEMENT

(1.) Assailing the order dated 4.9.2010 passed by the Additional District Magistrate, Bhubaneswar in Lease Revision Case No. 815 of 1998 under Annexure-10, the present writ petition has been filed by the petitioner.

(2.) Petitioner's case in nutshell is that, he was a Flight Lieutenant in Air Force and participated in the external aggression and otherwise entitled to 5 acres of land free of premium ready for cultivation at Government cost. To that extent, he has relied upon the Government resolutions dated 14.5.1963 at Annexure-1, 11.4.1964 at Annexure-2, 7.7.1969 at Annexure-3 and on the basis of such Government resolutions, he made an application on 9.5.1967 for determining his eligibility to get such benefit as admissible to him. Accordingly, the Revenue Officer, Puri vide letter dated 19.9.1967 under Annexure-6 declared that the petitioner is entitled for concession granted by the State Government and accordingly, direction has been given to the Tahasildar, Bhubaneswar to take action immediately with communication to the Revenue Officer, Puri. In Annexure-7 such allotment has been made and R.O.R. has been issued in his favour, but in Annexure-8, he has been called upon to make payment towards reclamation cost for the lease land lying unreclaimed and to produce the relevant documents for verification on 25.9.1984. At this juncture, the Additional District Magistrate initiated Lease Revision Case No. 815 of 1998 under Section 7-A(3) of the Orissa Government Land Settlement Act, 1962 in short, "OGLS Act" and by order dated 28.7.1998, the Addl. District Magistrate set aside the settlement of the Government land in favour of the petitioner vide order dated 30.9.1978 passed in W.L.Case No.101 of 1968-69. Challenging the same, writ application bearing O.J.C.No.17101 of 2001 was filed and this Court by order dated 28.7.2003 quashed the order of the Additional District Magistrate in Lease Revision Case No. 815 of 1998 and directed for rehearing of the case once again. In compliance to the order of this Court, the Additional District Magistrate in Annexure-10 dated 4.9.2010 has come to a conclusion that the Tahasildar, Bhubaneswar has violated the statutory provisions in settling the case land in favour of the petitioner and acted beyond the jurisdiction vested in him and committed gross material irregularities and legal infirmities thereby he having no power, the order so passed is a nullity and non est in the eye of law, and accordingly, set aside the order of settlement passed in W.L.Case No.101/1968-69. Hence, the writ peetition.

(3.) The State has filed counter affidavit. In paragraph-6 thereof, it is specifically stated that the petitioner applied to the Tahasildar in the prescribed form as per Rule 3(2) of the Orissa Government Land Settlement Rules, 1974 only on 22.12.1975. Thus, it is evident that in between 6.9.1975 and 21.12.1975, there was no application pending with the Tahasildar, Bhubaneswar. The Tahasildar having no lease application, however, issued general proclamation inviting objections from the public to settle the case land in favour of the petitioner. In paragraph-9 of the said counter affidavit, it is specifically stated that the delegation of power to act under the Government Grants Act was only made on 2.8.1986 and it is further stated that the settled principle that the power, which is not specifically conferred, is specifically forbidden. Therefore, the delegated power, which is exercised by the Tahasildar in 1978 to settle the case land with the petitioner, is not sustainable in the eye of law and reiterated the fact that the land has been settled in favour of the petitioner under the OGLS Act and not under the Government Grants Act, 1895 and, therefore, the order so passed by the Additional District Magistrate is wholly and fully justified and the same cannot be quashed. Further, it is urged by the learned Addl. Government Advocate that since the petitioner submitted the application in the prescribed form under the OGLS Rules. The Tahasildar is estopped to grant the benefits under the Government Grants Act, 1895 as the land has been settled under the OGLS Act. So far as the contentions raised in Annexures-4 & 5 are concerned, no reply has been given in the counter affidavit.