AJAYA KUMAR PANI Vs. STATE OF ODISHA

JUDGEMENT

(1.) This writ petition involves a challenge to the order passed by the appellate authority as well as the revisional authority vide Annexures-8 and 9 herein.

(2.) Factual background as narrated and disclosed in the course of hearing appears to be, this is 3rd round of litigation by the Petitioners. Petitioners claiming to be the children of Smt. Basanta Kumari Devi the original lessee, are enjoying a lease of Ac.1.23 decimals of land under Khata No.79, Plot Nos.45, 47 and 48 in village Jamuhata in Keonjhar district being granted by the Tahasildar, Keonjhar on 19/11/1986 involving Encroachment Case No.1 of 1985-86 purely for agricultural purpose. Order passed in the Encroachment Case No.1 of 1985-86 is enclosed as Annexure-1. It is claimed that on the basis of the above order as well as the report of the Revenue Supervisor dtd. 16/8/1986 settlement was made in favour of the Petitioners. It is claimed that settlement was made after issuing of proclamation and invitation of objections. In a further development Rayati Patta was issued in favour of the mother of the Petitioners. Petitioners have enclosed the report of the Revenue Supervisor as well as Rayati Patta as Annexures-2 and 3 respectively. Petitioners have also enclosed the rent receipt in proof of collection of rent in respect of the disputed property. It is alleged that after lapse of 14 years an appeal vide Lease Appeal No.1 of 2000 was filed before the Court of the Sub-Collector, Keonjhar challenging the order of the Tahasildar, Keonjhar dtd. 19/11/1986 vide Annexure-1, also intending to cancel the lease involved. Accordingly notices were issued fixing the date of hearing in the matter of condonation of delay and admission of the matter to 12/10/2000. Petitioners themselves have enclosed the memorandum of appeal and the delay condonation application as Annexures-5 and 5/A respectively, which, however, clearly disclosing appeal to have been preferred in 1997. Further verification in the delay condonation application was made on "". day of August, 1997. In paragraph 5 it is alleged that without service of notice on the lessee the delay was condoned and the appeal was also admitted thereby. Further without sufficiency of notice, the appeal was also allowed by the order dtd. 27/4/2001. For the attempt of the State authorities to evict the Petitioners on the basis of the appeal order, the lessee was constrained to move T.S. No.79 of 2001 on the file of the Civil Judge (Sr. Divn.), Keonjhar for declaring the order dtd. 27/4/2001 null and void. The suit was decreed by the judgment dtd. 9/5/2003 thereby declaring the order in Lease Appeal No.1 of 2000 as null and void and further directing for reopening of the Lease Appeal No.1 of 2000 for fresh hearing, but after providing opportunity of hearing to the lessee. Petitioners have filed copy of the judgment in T.S. No.79 of 2001 at Annexure-7. It is here claimed that after disposal of the suit finding the lessee died in the meantime i.e. on 5/6/2003 a prayer for substitution of the legal heirs of the deceased lessee was made and notices were accordingly issued to the legal heirs to appear in the proceeding on 14/12/2004 for hearing on the question of substitution. It is alleged that substitution was allowed without even any application for setting aside of abatement and condonation of delay. Petitioners being the legal heirs on their appearance in the proceeding on 29/11/2007 through their Advocate requested for supply of a copy of the appeal memorandum. Copy of which was also supplied to the legal heirs as appearing at Annexures-5 and 5/A to the writ petition. Appeal again involved an ex parte order of eviction on 11/8/2008. Based on a notice being issued by the Tahasildar to the Petitioners to vacate the lease hold property by 10/9/2009, Petitioners were even unable to move an application for stay before the revisional authority, for the Additional District Magistrate, Keonjhar-Opposite Party No.2 remaining busy in administrative matters, the Petitioners were constrained to file W.P.(C) No.13368 of 2008 in the High Court of Orissa for quashing of the order dtd. 11/8/2008 along with a stay application. W.P.(C) No.13368 of 2008 got disposed of by the High Court thereby quashing the order dtd. 11/8/2008 and remanding the matter to the appellate authority for fresh adjudication of the appeal. After remand order of this Court Lease Appeal No.1 of 2000 was freshly disposed of by the order dtd. 26/6/2009 vide Annexure-8 thereby holding that there is no illegality or impropriety in the said order dtd. 27/4/2001. For a statutory remedy of revision available U/s.12(2) of the OPLE Act the Petitioners challenged the order at Annexure-8 through OPLE Revision No.3 of 2009 alongwith an application for stay. It is claimed through paragraph no.16 that OPLE Revision No.3 of 2009 was posted to 19/8/2009 for hearing on admission and on which date the matter could not be taken up. The case was next posted to 31/8/2009. On 31/8/2009 hearing on admission of the revision was made in the involvement of the Government pleader. It is alleged that even though the revision was admitted, there was no stay order passed by the revisional authority. It is further alleged that for the revisional authority not granting any interim protection, Petitioners were again constrained to move this High Court in W.P.(C) No.11087 of 2010 thereby seeking a direction to the revisional authority to dispose of the revision as expeditiously as possible and also praying therein for stay of operation of the order dtd. 26/6/2009 till disposal of the revision. The Hon"ble High Court, however, while disposing of the writ petition directed the revision to be disposed of within a period of three months. The OPLE Revision No.3 of 2009 was finally disposed of on 25/11/2010, however on affirmation of the appeal order, resulting filing of the present writ petition.

(3.) Mr. Mukherjee, learned Sr. Advocate appearing on behalf of the Petitioners in the above background of the matter bringing in the entire narration made hereinabove, attacked the orders at Annexures-8 and 9 on the ground that reopening of the lease case on the basis of the allegation that the lease was obtained on misrepresentation of fact and non-disclosure of the issue that husband of Smt. Basanta Kumari Devi was a Primary School Teacher and was not a landless person and thus the applicant in the lis played fraud with the public authority, remains incorrect and baseless. Mr. Mukherjee, learned Sr. Advocate appearing on behalf of the Petitioners taking this Court to the inquiry report of the Revenue Supervisor at Annexure-2 contented that the Revenue Supervisor adopted a fair procedure in the inquiry with the involvement of all concerned and thereafter submitted his report after taking evidence from local people. It is also contended that after the submission of such report the Tahasildar himself also visited the spot and found, mother of these Petitioners was the real encroacher and the encroachment was unobjectionable. It is also contended that before finalizing the lease aspect there was issuance of proclamation thereby inviting objection before settlement of land in favour of the mother of the Petitioners and the public authority did not receive any objection. Mr. Mukherjee, learned Sr. Advocate appearing on behalf of the Petitioners also contended that once a party attempts to reopen an issue already settled on the premises of playing fraud by the beneficiary, responsibility lies on such party for not only making pleadings on fraud but also need to prove such allegation. It is specifically argued by Mr. Mukherjee, learned Sr. Advocate appearing on behalf of the Petitioners that neither there is any allegation of fraud pleaded nor proved. There is even no action against the person playing fraud. Mr. Mukherjee, learned Sr. Advocate appearing on behalf of the Petitioners further also on the ground of institution of appeal after 14 years contended that such long delay should not have been condoned ordinarily. Mr. Mukherjee, learned Sr. Advocate appearing on behalf of the Petitioners also contended that once the appeal period is 30 days and even assuming that there involves an allegation of fraud, there may be entertaining of such appeal at least within one year of detection of such fraud following the provisions at Sec. 17 of the Limitation Act. It is further submitted that for the fraud having been detected in August, 1997, the appeal should have been filed before 13/8/1998. Mr. Mukherjee, learned Senior Advocate for the appeal brought in 2000 contended that there was gross delay in filing the appeal on 25/9/2000. Mr. Mukherjee, learned Sr. Advocate appearing on behalf of the Petitioners also takes advantage of some development through OLR Case No.102 of 2000 vide Annexure-4 thereby allowing conversion of lease hold land to homestead land, while also taking advantage of acceptance of rent by the public authority after grant of such lease.