GOVINDA CHANDRA SAHOO Vs. STATE OF ORISSA

JUDGEMENT

(1.) Here is a sad -but not necessarily unusual -story of lamentable state of affairs of our public life. Very valuable lease rights in the immovable property vested in the Grama Sasan have been disposed of by the Gram Panchayat clandestinely for a song in violation of basic norms in collusion with those who matter. Loss to the tune of at least Rs. 10 Lacs has been caused thereby seriously affecting much needed development projects.

(2.) WITHIN the area of Dhinkia Gram Panchayat in the District of Jagatsinghpur exists a water tank bearing a popular name 'Badara Zora'. In the year 1991 -92 the water tank was managed and operated by the Gram Panchayat and thereafter it was leased out on year to year basis by public auctions. Dillip Kumar Behera -opp. party No. 7 - as highest bidder in the auction for the year 1993 -94 had become the lessee. The term of the lease was to expire with the end of June, 1994. The B.D.O. fixed the public auction of lease rights for further period on 24 -3 -1994. The auction was postponed first to 12.5.1994, then to 2.6.1994 and lastly to 18.6.1994 on various grounds including administrative exigencies and absence of the bidders at the time of auction. On 15.6.1994, i.e., 3 days before the last date fixed for auction, the Gram Panchayat passed the following resolution transferring the lease rights in favour of opp. party No. 7 for the sum of Rs. 6 Lacs approximately (10% over the last year's bid): 'On consideration of the fact that there was excess bid for the year 1993 -94 in comparison to other year's and the lessee Sri Dillip Kumar Behera has sustained loss due to spread of diseases among the fish and on the said basis, he has submitted a representation, it is resolved that on addition of 10% to the last year's lease amount, the said Sairat be leased out to him for the period of three years. This resolution is forwarded to the Sub -Collector, Jagatsinghpur, with a request for approval.'

(3.) RULE 86 and onward Rules of the Orissa Gram Panchayat Rules, 1968 (the Rules) framed by the State Government by virtue of authority conferred by the Orissa Gram Panchayat Act, 1964 (the Act) ' deal with the manner of transfer of property of Grama Sasan. We reproduce Rule 86 for ready reference : '86. (1) No immovable property vested in a Grama Sasan shall be transferred by way of sale, gift, mortgage or exchange without the approval of the State Government. (2) Whenever in respect of any property vested in or under the management and control of the Grama Sasan, the State Govt. deem it expedient so to do, they may by general or special order made in that behalf and subject to such conditions, as may be specified therein, direct that such property shall be leased out in favour of any Registered Co -operative Societies by negotiation. The agreement for such lease shall be in Form F. (3) Notwithstanding anything contained in these rules, the water area vested in or under the management and control of the Grama Sasan may with the approval of the Collector be leased out by negotiation for a period not exceeding 10 years in favour of an individual who is a fisherman by caste or profession, any group of individuals or Registered Co -operative Societies consisting only of fishermen by caste or profession, landless labourers, marginal farmers, scheduled caste and scheduled tribe persons, who are desirous to take pisciculture on modern line in such water area and are recommended by the Chief Executive Officer of the Fish Farmers Development. Agency within whose operational jurisdiction such water area is situated. When such agency is not in operation such recommendation can be made by the district level Fisheries Officer. The lease consideration for the first two years of the lease shall not be less than the amount equal to average of the lease amount of the water area for the last three years and from the third year shall be at the rate of five hundred rupees per year per hectare. The lease amount for a year should be paid in advance and if the amount is not paid in advance, the lease shall automatically stand cancelled. The agreement for such deed shall be in Form 'F'. (4) The management of the property vested in a Gram Sasan for the time being in any manner whatever. Excepting the property mentioned in Sub -rule (3) shall be made in the manner hereinafter provided.' Sub -rule (1) specifies that no immovable property vested in the Grama Sasan shall be transferred by way of sale, gift, mortgage or exchange without the approval of the State Government. Sub -rule (2) permits the State Government to direct such property to be transferred on lease by negotiation in favour of any Registered Co -operative Societies subject to conditions that may be specified. Directions can be issued by general or special order. Sub -rule (3) deals specially with the water areas vested in or under the management and control of the Grama Sasan. Grama Sasan has been given discretion to lease out by negotiation, with the approval of the Collector, the water areas for a period not exceeding 10 year in favour of certain classes of persons and/or bodies who desire to take to pisciculture on morden basis. For this recommendation by the Chief Executive Officer of Fish Farmer Development Agency or in his absence by the district level Fisheries Officer is necessary. Some other conditions are also attached to such lease. Sub -rule (4) makes it abundantly clear that excepting the property mentioned in Sub -rule (3) the rest shall be managed only in the manner provided hereinafter. Rule 87 lays down that the properties shall be leased out only by public auction for which detailed procedure is prescribed.