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1996 Supreme(Ori) 61
High Court Of Orissa
D. M. PATNAIK, PRADIPTA RAY
PRASANNA NARAYAN SARANGI - Appellant
Versus
STATE OF ORISSA - Respondent
O. J. C. 2815 Of 1992
Decided On : 04/18/1996
A.MOHAPATRA, B.Sarangi, G.RATH
The principles of natural justice require that a proper determination should be made after consideration of the petitioner's case and giving him an opportunity of hearing.
Headnote:
LAND LEASE - UNAUTHORIZED POSSESSION - EXCESS LAND - SETTLEMENT - NATURAL JUSTICE - ODISHA DEVELOPMENT OF INDUSTRIES, SETTLEMENT OF INDUSTRIAL DISPUTES AND LABOUR WELFARE ACT, 1966 - SECTION 10(1) - ORISSA GENERAL CLAUSES ACT, 1968 - SECTION 2(29) - ORISSA RULES OF BUSINESS, 1974 - RULE 10 - ORISSA LAND REFORMS ACT, 1960 - SECTION 3(1) - ORISSA REVENUE CODE, 1966 - SECTION 13(1) - SUMMARY: The petitioner was allotted a government plot on lease basis. He took possession of the plot and constructed a ground floor. When he approached the Development Authority for permission to construct the first floor, it was found that he had possessed certain land beyond the lease-hold area. The Government directed him to vacate the land. The petitioner challenged the order, contending that he should be settled in respect of the excess land by paying premium at the rate prevalent in the year 1984 and that the direction to vacate the land without giving him an opportunity to place his case violated the principles of natural justice.
Fact of the Case:
The petitioner was allotted a government plot on lease basis. He took possession of the plot and constructed a ground floor. When he approached the Development Authority for permission to construct the first floor, it was found that he had possessed certain land beyond the lease-hold area. The Government directed him to vacate the land.
Finding of the Court:
The court held that the petitioner was in fact in possession of the excess area of Ac. 0.113 decs. though this may vary either way on fresh measurement, if necessity so arises. Government have not come forward with a positive case if this excess land of Ac. 0.113 decs, leaving aside the leasehold area of 5600 sq. feet belonging to the petitioner, was available as on 9-5-84 within the boundary shown in the corner plot of the petitioner as per Annexure 1.
Issues: 1. Whether the petitioner should be settled in respect of the excess land by paying premium at the rate prevalent in the year 1984? 2. Whether the direction to vacate the land without giving the petitioner an opportunity to place his case violated the principles of natural justice?
Ratio Decidendi: 1. The court held that in the absence of all the particulars, it is not possible for this Court to settle the present dispute between the parties. Therefore, Government have to find out after fresh enquiry and after giving the petitioner an opportunity of being heard whether the petitioner is liable to be evicted from the excess land in question. In case Government decide to settle the land in question in favour of the petitioner, the rate of premium should be calculated at the rate prevalent in the year when the petitioner possessed the excess land in question. 2. The court held that the letter (Annexure-5) claim of the petitioner was considered in his absence. The letter (Annexure 6) does not indicate that the petitioner was heard in person or through any of his agents. Therefore, it is appropriate that considering the claim of the petitioner and further considering the stringent measure proposed to be taken against the petitioner, he should be given an opportunity of personal hearing in the matter.
Final Decision: The court allowed the writ petition, quashed Annexure-6, and set aside the directions to vacate the excess land in question. The petitioner's claim for settlement may be reconsidered by the Government after giving him opportunity of being heard. The matter shall be disposed of within a period of three months from the date of receipt of this order. Till the matter is disposed of by the Government, the petitioner shall not be evicted from the said excess land in question.
D. M. PATNAIK, J.
( 1 ) THE petitioner assails the order of the Government of Orissa in the General Administration Department vide Annexure 6 directing him to give up the unauthorised possession of the land beyond his leasehold area.
( 2 ) THE petitioner's case is, he was allotted a Government plot bearing No. BJ-12 measuring an area of 78' (m) x 80' (m) in the Kalpasa area, Bhubaneswar on lease basis. The plot being a corner plot having roads on three sides of it, he paid on extra 10% of the premium at the rate of Rs. 80,000/- per acre. Pursuant to the agreement dated 27-3-84 (Annexure 2), he took delivery of possession of the plot on 9-5-84-Annexure. In course of time, he constructed the ground floor after requisite permission from the Bhubaneswar Development Authority. For construction of the first floor he approached the Development Authority for permission. The said Authority on verification found the petitioner to have possessed certain land beyond the lease-hold area. The Bhubaneswar Development Authority (for short, the 'b. D. A. ') informed the Government of such unauthorised possession vide Annexure 4 dated 23-5-91. It requested the Government either to settle the excess land or to take steps for eviction. The petitioner on being informed of this, by his letter dated 24-5-91 under Annexure 5 informed the Government that he had not gone beyond the area shown in the map, Annexure 1 and even if it was found, he had so done, he should be settled in respect of that excess land. Government by their letter dated 21-3-92 under Annexure 6 informed the petitioner to vacate the land. The petitioner assails the said order of the Government as arbitrary and violative of the principle of natural justice.
( 3 ) THE Government in their counter-affidavit claim that the total area under possession of the petitioner is found to be Ac. 0. 267 decimals out of which the excess area works out as Ac. 0. 113 decimals which the petitioner has to vacate since this amounts to unauthorised possession.
( 4 ) HEARD Mr. G. Rath, learned Senior Counsel for the petitioner and Mr. A. K. Mohapatra, learned Additional Government Advocate in the matter. The contentions of Mr. Rath is two fold in support of the petitioner's case. Firstly, relying on the case of The Palestine Kupat Am Bank Co-operative Society Ltd. v. Govt. of Palestine, reported in AIR 1948 PC 207, it is contended that once the delivery of possession of the land is given with reference to the fixed boundary line of the plot in question as per the sketch map attached to the lease deed (Annexure 1), any area in excess if at all is found within the said plot, the petitioner should be settled in respect of the said excess land by paying premium at the rate prevalent in the year 1984 and it would not be proper to evict him from the land; secondly, it is argued that the direction of the Government being for eviction from the land under Annexure 6, such a direction should not have been given without giving the petitioner an opportunity to place his case and therefore, there has been violation of the principles of natural justice.
( 5 ) WITH regard to the first contention of Mr. Rath, so far as the decision referred to above is concerned, I find the game to be distinguishable on facts. In the aforesaid case, their Lordships, no doubt, held that the extent of the grant was fixed by the boundaries and not by the area and that the difference in the area thus bounded and the area stated was substantial. The reason for their Lordships to hold that way was, because of the 'rough' and 'uncultivated' nature of the most of the 'ground' which lay between them. It was further reasoned that errors of this description appeared to have been 'notorious' in the Turkish Empire before the days of precise surveying and Article 47 of the Ottoman Land Code made provision that in the cases to which it applied the area stated should be ignored where boundaries had been fixed and pointed out. In the case at hand, w
