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2010 (Supp.-II) OLR — 1066
B.P. DAS AND B.N. MAHAPATRA, JJ.
Naran Nayak...Petitioner
Versus
State of Orissa and another...Opp.Parties
W.P.(C) No.4477 of 2010
(Date of Judgment : 29.7.2010)
(Para - 14)
2. ORISSA GOVERNMENT LAND SETTLEMENT RULES, 1974 - Rule 3(4) - After necessary enquiry, Tahasildar or the Authorised Officer is of the opinion that settlement of land could be granted, he shall publish a proclamation and invite objections - A mandatory requirement - Statutory requirement is violated - Procedures prescribed in rules are to be strictly followed before settling Government land in favour of any person as those are not empty formalities.
(Paras - 20 and 21)
3. CONSTITUTION OF INDIA, 1950 - Art. 226 - Inordinate delay or laches is by itself a ground to refuse relief to the petitioner irrespective of merit of his claim - Delay or laches is one of the factors, which should be borne in mind while exercising discretionary power under Art. 226 of the Constitution of india. (Para - 8)
4. PRACTICE AND PROCEDURE - When the action of the State or its instrumentalities is not on par with the rules or regulations and not supported by the Statute, Court must exercise its jurisdiction to declare such an act to be illegal and invalid.
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; and there is n obligation on the part of the Court to sanctify such an illegal act. Whenever the statutory provision is ignored, Court cannot become a silent spectator to such an illegality and it becomes the solemn duty of the Court to deal with the persons violating the law with heavy hands.
(Para - 21)
5. STATUTE - Every statutory provision requires strict adherence for the reason the Statute creates rights in favour of the citizens, and if, any order is passed de hors the same, it cannot be held to be a valid order and cannot be enforced. (Para - 21)
JUDGMENT
B.N. MAHAPATRA, J. : The petitioner calls in question the legality and validity of the order dated 17.07.1989 of the Additional District Magistrate, Bhubaneswar (here-in-after called “the Revisional Authority”) passed under Section 7-A (3) of the Orissa Government Land Settlement Act, 1962 (for short “the OGLS Act”) in Revision Case No.56 of 1989 by which the Revisional Authority set aside the order dated 23.06.1975 of opposite party No.2-Tahasildar, Bhubaneswar, who settled an area of Ac.1.000 of land in Plot No.250 under Khata No.745 in Mouza: Chandaka (here-in-after referred to as “the suit land”) in W.L. Case No.926 of 1975 in favour of the petitioner and further directed to correct the record accordingly and take over possession of the suit land.
2. Bereft of unnecessary details, the facts and circum¬stances giving rise to the present writ petition are that on 05.06.1975 the petitioner applied to the Tahasildar-opposite party No.1 for grant of lease of the suit land in his favour, which was registered as W.L. Case No.926 of 1975. The Tahasildar vide his order dated 23.06.1975 granted settlement of the suit land in favour of the petitioner under the provisions of the OGLS Act. According to the petitioner, he was issued R.O.R. in respect of the aforesaid suit land and he is in continuous possession of the suit land from the date the lease was granted. The petitioner constructed a residential house on a portion of the suit land and out of its usufructs he maintained his family. The petitioner also paid rent to the Government which was accepted till the lease was cancelled by the Revisional Authority. In the revision proceeding initiated under Section 7-A (3) of the O.G.L.S. Act, the Revisional Authority called upon the opp.party to show cause as to why the lease granted in his favour should not be can¬celled. In response to said notice, the petitioner neither filed his show cause reply nor attended the hearing. The Revisional Authority vide his order dated 17.07.1989 had cancelled the lease of the suit land on the ground that there were material irregu¬larities as well as legal infirmities in settling the suit land in favour of the petitioner. Hence, this writ petition.
3. Mr. Ashok Tripathy, learned counsel appearing on behalf of the petitioner submitted that the impugned order under Annexure-2 has been passed by the Revisional Authority arbitrari¬ly without application of judicial mind and contrary to the provisions of Section 7-A of the O.G.L.S. Act. After grant of the lease, the petitioner is in continuous possession over the suit land and has paid rent upto 1989. A suo motu revision was initi¬ated after a lapse of more than 14 years. In view of the specific bar provided under Section 7-A(3) of the O.G.L.S. Act, the Revi¬sional Authority was not empowered to do so and therefore, the impugned order is without jurisdiction. The petitioner was also not given sufficient opportunity of hearing before the impugned order was passed. Placing reliance on the judgment of this Court in Chandan Ku. Sethi & Ors. v. State & Ors., 2010 (1) CJD (HC) 194 and Madhuchhanda Das v. State of Orissa and others., 1998 (II) OLR 36, it was argued that under Section 7-A(3) lease cannot be cancelled for non-compliance of non-existent Rules.
4. Mr. J.P. Patnaik, learned Additional Government Advo¬cate appearing on behalf of the State, raised preliminary objection that the writ petition is liable to be dismissed on the ground of delay and latches. No satisfactory explanation has been given by the petitioner explaining the delay in approaching this Court in the year 2010 under Articles 226 and 227 of the Consti¬tution challenging the order passed in the year 1989. He further submitted that the petitioner is also otherwise not entitled to get any relief on the grounds taken in the writ petition. Settle¬ment of the Government land in favour of the petitioner have suffered from material irregularities and procedure as well as legal infirmities
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