DRAUPADI SENAPATI Vs. STATE OF ORISSA

JUDGEMENT

(1.) The petitioner Smt. Draupadi Senapati has filed this application tinderArticle 226 of the Constitution of India seeking a writ of mandamus quashing theOrder No. 575 dated 18. 2. 1981 of the District Panchayat Officer, Cuttack, communicated to her that the Collector, Cuttack, has been pleased to cancel the order of long term lease of the tank, Tala, Pokhari at Nadiasabaspur under Kusupur Grama Panchayat in her favour and for a direction to the opposite parties to act upon the lease approved by the Collector, Cuttack, underOrder No. 2423/G. P. dated 19 -7 -1980. The State of Orissa through its Secretary, Community Development Department. The Collector, Cuttack, District Panchayat Officer, Cuttack and the Kusupur Grama Panchayat through its Sarpanch have been impleaded in the application as opposite party Nos. 1 to 4 respectively, Opposite parties 5 to 8 have been granted lease of the tank in question after the impugned order was passed.

(2.) THE gist of the petitioner's case is that she carries on business of collecting spawn and rearing and selling fish. She sells fish fries regularly to the Fisheries Department, Government of Orissa, to different Grama Panchayats and individuals. As such, she is a 'fisherman' by profession. She was granted lease of the tank, Tala Pokhori of Nadashaspur, by the opposite party No. 4, Grama Panchayat for a period of 3 years ending with 31st March, 1981. According to the petitioner, after taking the said lease she cleared the tank of weeds and hyacinth and reared fish therein. During the subsistence of this lease she applied for grant of long term lease of the said tank for a period of 10 years from 1981 -82, The Grama Panchayat on consideration of her application passed a resolution recommending her case for grant of lease for ten years. The Collector, Cuttack, accorded approval to the lease of the tank in her favour byOrder No. 2423/G. P., dated 19 -7 -1980 (Annexure -1) and the said decision was communicated to the petitioner under Memo, No. 2425/ G. P., dated 9 -7 -1980 by the District Panchayat Officer, Cuttack. The petitioner thereat ter took steps for execution of the document of lease, purchased stamp papers and engrossed thereon the agreement to be executed. Since the Sarpanch of the Grama Panchayat did not execute the agreement, she sent a registered letter (Annexure -2) requesting to be intimated the date and place where the document would be executed. Copie3 of the said letter were sent to the Collector and the Block Development Officer, Cuttack, On receipt of the letter the B.D. O. wrote to the Sarpanch directing him to enter into the agreement before 5 -1 -1981 (Annexure -3). On 24 -2 -1981, the petitioner paid Rs. 100/ - to opposite party No, 4, towards the first two instalments under the long term lease covering the period till the end of March, 1933 and a receipt was granted in token of such payment (Annexure -5). It is the further case of the petitioner that she subsequently learnt that by order dated 18 -2 -1981 the District Grama Panchayat Officer, opposite party No. 3, has communicated the order of the Collector, opposite party No. 2, cancelling the order of long term lease of Tata Pokhari of Nadiasahaspur under Kusupur Grama Panchayat in her favour. The petitioner asserts that she has not received the said order. On getting the copy of the order (Annexure -6) she has filed the writ petition for the reliefs noticed earlier. According to the petitioner there having been a completed contract between her and the Grama Panchayat regarding the grant of long term lease of the tank in question, it was not open to the collector. Cuttack to cancel the said lease. Indeed, the letter has no such power under the provisions of the Orissa Grama Panchayat Act and the Rules framed thereunder. The petitioner further contends that in any view of the matter if the Collector. Cuttack, intended to cancel the order according to approval for the long term lease in her favour he should have given her anopportunity to have her say before passing the order under Annexure -6.

(3.) SRI S Mi.hra -1, the learned counsel for the petitioner has urged that the decision of the Collector, Cuttack. to cancel the lease in favour of the petitioner is vitiated due to non -observance of the principles of natural Justice and fair play. He further contends that the authority has not acted within the provisions of the statute and the while taking the said decision. The learned counsel for the parties while supporting the impugned order have raised the question that the writ application is not maintainable since the relief sought by petitioner is for enforcement of a contract.