BANWARILAL AGARWALA Vs. TAHASILDAR, ATHAMALLIK

JUDGEMENT

(1.) THE Petitioner challenges the order of the Sub -Divisional Officer dated 21 -2 -1976 annexed as Annexure -4 the order of the Additional District '' Magistrate dated 14 -10 -1976 annexed as Annexure -5 as well as the order of the Revenue Divisional Commissioner dated 30 -4 -1978 annexed as Annexure -6 to the writ petition.

(2.) THE Petitioner 's case is that 0. 14 decimals of land out of plot No. 68, khata No. 3 lying between the house of the Petitioner and the main road was settled in his favour by the Tahasildar in Lease Case No. 654/72 by order dated 8 -6 -1974. Pursuant to the said order, patta was issued in favour of the Petitioner as per Annexure -2, and name of the Petitioner was also recorded in the Records -of -Rights as per Annexure -3. Subsequently an appeal was filed before the Sub -Divisional Officer which was numbered as Lease Appeal No. 6 of 1975 and the Sub -Divisional Officer by his order dated 21 -2 -1976 quashed the order of the Tahasildar dated 8 -6 -1974. The Sub -Divisional officer, however, directed the Tahsildar to enquire into the fact as to whether there is any passage and approach to the house of the Petitioner and if the Tahasildar is satisfied that there is any reasonable passage then he may lease out a reasonable area to the Petitioner to be used as a passage to his house. The Petitioner carried a revision to the Additional District Magistrate. The Additional District Magistrate dismissed the revision and confirmed the order of the Sub -Divisional Officer, but on the ground other than those taken by the Sub -Divisional Officer. This order of the Additional District Magistrate has been annexed as Annexure -5. The Petitioner carried a further revision to the Revenue Divisional Commissioner who by order dated 30.4 -1978 rejected the .same on a finding that no second revision lies under Section 7A (1) of the Orissa Government Land Settlement Act (hereinafter to be referred to as 'The Act '). This order of the Revenue Divisional Commissioner is annexed as Annexure -6.

(3.) MR . Mohanty, the learned Counsel for the Petitioner then challenged the legality of the order of the Sub -Divisional Officer as per Annexure -4 as well as the order of the Additional District Magistrate as per Annexure -5. According to Mr. Mohanty, the conclusion of the Sub -Divisional Officer that the land in question has not been used for the purpose for which the lease was applied for is not the requirement of Section 3 -B of the Act, and, therefore, the order directing resumption is illegal. We do not find any force in the aforesaid contention. The Sub -Divisional Officer does not exercise the power of resumption contained in Section 3 -B of the Act. On the other hand, the Sub -Divisional Officer exercises the power of appeal as contained in Section 7 of the Act. There is no restriction on the power of the appellate authority while hearing an appeal against an order made under Section 3 of the Act. In the absence of any restriction, it must be assumed that it is as wide as that of the original authority and if the Sub -Divisional Officer comes to the conclusion that the original order of settlement is contrary to law or is not in accordance with the procedure laid down under the Act, then he could be free to interfere with the order of settlement. The Sub -Divisional Officer found as a fact that the application had been made by the Petitioner for the purpose of excavating a tank to be used by the general public. In that view of the matter the land could not have been settled for the purpose of construction of a house and the Sub -Divisional Officer, therefore, as an appellate authority -was fully justified in interfering with the order of settlement. We have ourselves examined the application of the Petitioner and it has been clearly stated therein that the land applied for would be used for excavating a tank to be used by the public at large. In that view of the matter the Tahasildar was fully in error in setting the land for the purpose of construction of a house. That apart, while examining the original record, we found that Annexure -2 as has been filed in this case done not tally with the original document, There is no mention in the original document that purpose of lease is for construction of 'Ghar ', In such circumstances it must be held that the Petitioner has not approached this Court with clean hands. We do not find any error in the order of the Sub -Divisional Officer so as to be interfered with by this Court in exercise of its extraordinary jurisdiction. .