2017 Supreme(SC) 321

SUPREME COURT OF INDIA
Dipak Misra, Praffula C. Pant, JJ.
Orissa Olympic Association Th. General Secretary – Appellant
Versus
State of Orissa & Anr. – Respondents
CIVIL APPEAL NO.6450 OF 2016 (Arising out of S.L.P. (Civil) 34373 OF 2014)
Decided On : 03-04-2017

IMPORTANT POINTS
The suit land, whereon 23 shops have been constructed and rented out, belongs to the State Government and deserves to be resumed by the State Government;
A part of the ‘Kalyan Mandap’ is built on the Government land and a portion of it on the leasehold area of the association;
The arrangement entered into by the association with M/s. INCON Associates is absolutely illegal and there is a conflict of interest since the Secretary’s son and son-in-law have been inducted as partners in the concerned firm;
There is revenue loss as the audit report of the Accountant General is appreciated;

Headnote:(a) Orissa Prevention of Land Encroachment Act, 1972 – Odisha Olympic Association granted lease – Constructing a Kalyan Mandap and 23 shops – Whether within lease land or encroachment of public land outside the lease – OOA submitting lease deed and other materials – State of Odisha not producing original lease deed etc. – Supreme Court appointing a committee – Committee acting on directions of Supreme court in letter and spirit – Utilising services of trained and experienced Amins and Orissa Space Application Center (ORSAC) – Concluding that Kalyan Mandap and the 23 shops are encroachment – No reason to differ – Theses structures being functional for two decades – Their demolition on ground of encroachment not justified – These structures with the land on which they stand ordered to vest in State Government. (Para 43)

       AIR 2000 SC 3272; (2000) 5 SCC 652; (1982) 2 SCC 134; AIR 1996 Orissa 199; AIR 2014 Orissa 140; AIR 2002 Orissa 147 – Referred

       (b) Conflict of interest – Odisha Olympic Association leasing out land to INCON for construction of Kalyan Mandap and 23 shops and earning rent therefrom – Later son and son-in-law of Secretary of the Association joining as partners of INCON – Conflict of interest – Transgression of the fundamental principle of fair administration and governance. (Para 54, 55)

       (2015) 3 SCC 251; (1979) 1 SCC 308; (2004) 5 SCC 689; (1995) 6 SCC 749 – Relied upon

       (1994) 2 Cal LJ 456 – Cited with approval

       Facts of the case:

       The appellant-association was granted lease of land measuring acres 20.808 decimals appertaining to Sabik Settlement Plot No. 156 and portions of Plot Nos. 139, 143, 155 and 177 for the construction of a stadium. The lease deed was executed on 04.09.1949 and registered on 24.09.1949. After obtaining the lease of the land, the appellant raised high compound walls enclosing the lease hold area. However, to the north eastern side, a space measuring about 75 decimals was left outside the compound for the purpose of parking in respect of which also the possession remained with the appellant.

       Subsequently the association was granted further areas for which fresh lease deed was executed. The plaintiff has pleaded that the leasehold area of acres 20.808 decimals included an area of acres 6.520 decimals of Sabik Plot No. 139. An area of 0.048 decimals of this plot was then included in the barbed wire compound of the then Secretariat which is in occupation of the Branch Recruiting Office.

       During Hal settlement operation certain mistakes occurred in recording of different plots. As far as Sabik Plot No. 139 is concerned, a part of it measuring an area of acre 0.705 decimals was included in the Hal Plot No. 7 out of which acre 0.630 decimals were within the compound of the plaintiff-association and acre 0.075 decimals was outside (0.630 + 0.075 = 0.705) the land. Thus, the total land was acre 0.705 decimals. Further, the Hal Plot No. 7 also included portions of Sabik Plot Nos. 137 and 140 and thereby Hal Plot No. 7 with a total area of acre 0.880 decimals stood included in the Hal Khata No. 203 which was recorded in the name of the State as “rakhit”. The Hal settlement Khatian was finally published on 11.04.1988 but it was not available to the public.

       The Tahsildar initiated proceeding against the appellant under the Orissa Prevention of Land Encroachment Act, 1972 for eviction.

       The appellant, after serving notice u/s 80 CPC instituted the suit for right, title and interest and permanent injunction in respect of the suit property, i.e., Khata No. 203, Plot No. 7 measuring acre 0.705 decimals corresponding to part of Sabik Plot No. 139 on the ground that the land had been leased out in its favour. A relief was also sought to declare that the record of Hal Plot No.7 in Hal Khata No. 203 so far as it related to acre 0.705 decimals of Sabik Plot No. 139 be declared incorrect. That apart, the plaintiff alternatively prayed for a declaration that it had perfected title over the suit land by way of adverse possession.

       The trial Judge had decreed the suit of the plaintiff-appellant and permanently restrained the defendants, the State of Orissa and its functionaries, from disturbing the peaceful possession of the plaintiff-association over the suit land.

       Single Judge of the High Court has set aside the judgment and decree passed by the trial court.

       Finding of the Court:

       The suit land, whereon 23 shops have been constructed and rented out, belongs to the State Government;

       A part of the ‘Kalyan Mandap’ is built on the Government land and a portion of it on the leasehold area of the association;

       The association could not have constructed the ‘Kalyan Mandap’ in this manner and, therefore, the portion of the land deserves to be resumed by the State Government;

       The arrangement entered into by the association with M/s. INCON Associates is absolutely illegal and there is a conflict of interest since the Secretary’s son and son-in-law have been inducted as partners in the concerned firm;

       There is revenue loss as the audit report of the Accountant General is appreciated; that the Secretary of the association could not have been instrumental in unauthorised construction on the government land and in generating revenue therefrom;

       Result: The judgment and decree of the trial court are set aside.