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2010 Supreme(Ori) 373
2010 (Supp.-II) OLR — 847
B.P. DAS AND B.N. MAHAPATRA, JJ.
Surendranath Ghosh Trust Estate, Kolkata...Petitioner
Versus
State of Orissa & others...Opp. Parties
W.P.(C) No. 2990 of 2008
(Date of Judgment : 2.7.2010)
For Petitioners:M/s. Ramakanta Mohanty, D. Mohanty, A.P. Bose, S.N. Biswal, P. Jena, D.P. Patnaik & D. Varadwaja
For Opp. Parties:Mr. M.S. Sahoo,
Addl. Standing Counsel
Headnote:1. ORISSA GOVERNMENT LAND SETTLEMENT ACT, 1962 - Sec. 2(b-2) - O.G.L.S. (Amendment) Rules, 1993 - Rule 5-B (3)(a) - Whether the petitioner-Trust was entitled to be settled with the land in question on permanent pattadar status under the O.G.L.S. Act and Rules ? Rule 5-B is applicable only in respect of those Khasmahal lands leased out prior to the 9th day of January 1991 - In the present case, khasmahal land in question was not leased out to the petitioner - Trust prior to the 9th day of January, 1991 - As per Sub-rule 3(a) the land in question must be in use and in occupation by any person as homestead - Petitioner is a trust and not a person as defined in section 2(b-2) of the Act, 1962 - No Khasmahal land can be settled in favour of the present petitioner-Trust in terms of Sub-rule 3(a) of Rule 5-B read with Rule 5-B of the O.G.L.S. (Amendment) Rules, 1993. (Para - 6)
2. PRACTICE AND PROCEDURE - When any action of the State or its instrumentalities is not in accordance with the rules or regulations and supported by the statute, the Court must exercise its jurisdiction to declare such an act as illegal and invalid.
(Para - 7)
3. PROCEEDINGS - Non-compliance of mandatory requirements vitiates the proceedings. (Para - 7)
4. STATUTE - Whenever any action of the authority is in violation of the provisions of the statute or the action is constitutionally illegal, it cannot claim any sanctity in law - There is no obligation on the part of the Court to santify such an illegal act - Wherever the statutory provision is ignored, the Court cannot become a silent spectator to such an illegality and it becomes the solemn duty of the Court to deal with the person (s) violating the law with heavy hands. (Para - 7)
5. WRIT - Writ jurisdiction is discretionary in nature and must be exercised in furtherance of justice - Court has to keep in mind that its order should not defect the interest of justice nor it should permit an order to secure dishonest advantage or perpetuate an unjust gain or approve an order which has been passed in contravention of the statutory provisions. (Para - 10)
6. PRACTICE AND PROCEDURE - When the statute provides for a particular procedure, the authority has to follow the same and is not permitted to act in contravention of the prescribed provisions. (Para - 10)
7. PLEADING - A party has to plead its case and produce/adduce sufficient evidence to substantiate its stand taken in the petition and, in case the pleadings are not complete, the Court is under no obligation to entertain such plea.
8. INDIAN REGISTRATION ACT, 1908 - Sec. 17(b) - Creation, declaration, assigning right and interest on several immovable properties worth more than Rs. 100/- in favour of the Trust - Requires registration as per section - Unless the Trust is registered the said trust deed does not become operative. (Para - 12)
9. TRUSTEE - The trustees being the creatures of the trust cannot act contrary to the purpose for which the trust has been created. (Para - 14)
10. FRAUD - Court cannot be a party to a case founded on massive frauds, illegalities and irregularities - Court has a solemn duty to lift the veil to arrive at the truth - Every action of the State and its instrumentality should be fair, legitimate and above board and without any affection or aversion. (Paras - 15 and 16)
JUDGMENT
B.N. MAHAPATRA, J. : The petitioner, which is a Trust called “Surendranath Ghosh, Trust Estate, Calcutta”, being repre¬sented through its trustees has filed this writ petition with a prayer for quashing the condition Nos. 2,3,4,7,8,9 and 10 imposed under order dated 25.09.2007 (Annexure-2) passed by opp. party No.2-Collector, Puri while approving the lease of permanent Pattadar status as settled by O.P. No.3-Tahasildar in favour of the petitioner.
2. Bereft of unnecessary details, the facts and circum¬stances giving rise to the present writ petition are that, ac¬cording to the petitioner the land measuring an area Ac. 0.193 decimals under Khata No. 79, Sabik Plot No. 87 in Sabik Mouza : Balukhand Khasmahal corresponding to Hal Khata No. 67, Hal Plot No. 126 measuring an area Ac.0.193 decimals under Puri Municipal¬ity, Ward No. 12, Holding No. 754 in Hal Mouza Nolia Sahi, Unit No. 12, Puri Town, P.S. Sea Beach, Puri was originally leased out on 07.11.1924 in favour of one Surendranath Ghosh, son of Late Bhola Nath Ghosh of Sheorapalli, P.S. Srirampur, Dist: Hoogly for sixteen years. On 08.11.1940, the said lease was renewed in favour of said Surendranath Ghosh for thirty years extending the lease period up to 07.11.1970. Opp. Party No.2-Collector, Puri on the basis of recommendation of O.P.No.3-Tahasildar, vide his order dated 10.09.2004 passed in Balu Lease Renewal Case No.4/2004, renewed the lease granted on 08.11.1940 to Surendra¬nath Ghosh in favour of Surendranath Ghosh Trust Estate, Calcutta for two consecutive terms of 30 years each with retrospective effect from 08.11.1970. Pursuant to said order dated 10.09.2004 of O.P. No.2, the Renewal Lease Agreement (Annexure-1) was exe¬cuted on 3rd October, 2005 and the same was registered on 25.10.2005. After the Renewal Lease Agreement was registered on 25.10.2005, the petitioner made an application to O.P. No.3-Tahasildar, Puri for grant of permanent lease of the said land which was registered as BPL Case No. 20/2005. The Tahasildar settled the land in question in favour of the petitioner-Trust on permanent Pattadar status and sent the BPL case record to O.P. No.2-Collector, Puri for approval. The O.P. No.2 while approving the lease of permanent Pattadar status under the Orissa Govern¬ment Land Settlement Act, 1962 (for short ‘the OGLS Act’) imposed certain terms and conditions as per Annexure-2 and directed the Tahasildar to incorporate the said terms and conditions in the lease deed. Being dissatisfied with the said terms and condi¬tions, the petitioner has filed the present writ petition for quashing those conditions. This Court vide ex parte order dated 25.06.2009 dismissed the writ petition on merit with the follow¬ing observation.
“In view of the above mentioned facts and circumstances as well as the facts that the period of lease has already expired on 08.11.1970 and the lessee is not utilizing the lease hold land for homestead purpose for not less than five years on the ap¬pointed dated i.e. 9.1.1991 and no rent having been collected from the lessee since 1975 and also that the land had been re¬corded as Sarakari Khata since 1988, no case in favour of the petitioners is made out.”
Misc. Case No. 8396 of 2009 was filed by the petitioner with a prayer to recall the above order dated 25.06.2009 and to restore the case to original file and to rehear the matter on merit. Vide order dated 02.12.2009, this Court recalled its earlier order dated 25.06.2009. Thereafter, the matter was heard at length on 06.05.2010 and 10.05.2010.
3. Mr. R. Mohanty, learned counsel appearing for the petitioner, submitted that originally the land in question was leased out in favour of late Surendranath Ghosh on 07.11.1924 for sixteen years. On 08.11.1940, it was renewed for another thirty years. Surendranath Ghosh died on 19.01.1973. Before his death, an unregistered private Trust was created by said Surendranath Ghosh consisting of his family members on 30.06.1971. On 26.11.1971 this T
