HIGH COURT OF ORISSA: CUTTACK W.P.(C). No. 2990 of 2008 In the matter of an application under Articles 226 and 227 of the Constitution of India. -------- Surendranath Ghosh, Trust Estate, Kolkata … Petitioner. -Versus- State of Orissa & others … Opp.Parties. 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 ---------- P R E S E N T: THE HONOURABLE SHRI JUSTICE B.P.DAS AND THE HONOURABLE SHRI JUSTICE B.N.MAHAPATRA Date of hearing: 10.05.2010 : Date of judgment : 02.07.2010 B.N.MAHAPATRA, J The petitioner, which is a Trust called “Surendranath Ghosh, Trust Estate, Calcutta”, being represented 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 circumstances giving rise to the present writ petition are that, according 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 Municipality, 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 Surendranath 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 executed 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 Government Land Settlement Act, 1962 (for short ‘the OGLS Act’) imposed certain terms and conditions 2 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 conditions, 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 following 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 appointed dated i.e. 9.1.1991 and no rent having been collected from the lessee since 1975 and also that the land had been recorded 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 Trust applied for renewal of the lease before the Collector, Puri. Accordingly, Khasmahal lease was renewed in favour of the petitioner-Trust in Balu Lease Renewal Case No. 4 of 2004 for two consecutive terms of 30 years each with retrospective effect from 08.11.1970 and the lease deed was executed on 03.10.2005. The OGLS Act 3 prescribes the modalities for settlement of the Government land. Under Section 2(b), Explanation (i) of the OGLS Act Khasmahal land has been included as Government land. Section 3 of the OGLS Act prescribes the modalities for settlement of such Government land. Sub-section 4(a) of Section 3 of the OGLS Act prescribes that renewal of such Khasmahal land shall be deemed to have been leased out under the OGLS Act. Section 3(4) (c) of the OGLS Act mandates such settlement on permanent basis with heritable and transferable rights. In view of the aforesaid position of law, the petitioner-Trust applied for permanent settlement of the land in question leased out to it under Annexure-1. The same was registered as Balu Permanent Lease Case No.20/2005 under the provisions of the OGLS Act and Rule 5 B of the Orissa Government Land Settlement Rules, 1983 (for short ‘the OGLS Rules’). The manner of settlement of such Khasmahal land has been prescribed under Schedule-V appended to the Rules in Paragraph 3 thereof. In fact, considering all this, O.P.No.2-Collector, Puri by the impugned order dated 25.09.2007 (Annexure-2) approved the settlement of leasehold property in favour of the petitioner on permanent basis. While so ordering, the Collector has imposed certain conditions particularly condition Nos. 2, 3, 4, 7, 8, 9 and 10, which are contrary to law and without any authority. Nowhere under the provisions of the OGLS Act and OGLS Rules and Schedule-V appended thereto, the authority is empowered to impose such conditions while recognizing the permanent right of a lessee. The O.P.No.2 has basically failed to understand the provisions prescribed for grant of permanent lease where the right accrues in favour of the lessee is heritable and transferable. In support of his 4 contention, Mr. Mohanty placed reliance upon the decisions of this Court in Republic of India Vs. Prafulla Ku. Samal & Ors., ILR 1976 CUTTACK 1392, Sunil Kumar Dass(dead) by L.Rs. & Ors. Vs. The Revenue Divisional Commissioner, Central Division, Cuttack & Ors., 2008 (I) OLR 530, Sourindra Narayan Bhanja Deo Vs. Member, Board of Revenue, Orissa & Ors., 2004 (II) OLR 332 and OJC No.3417/96 disposed of on 11th December, 2007. Relying on the decision of this Court in Sourindra Narayan Bhanja Deo’s case (supra), Mr. Mohanty vehemently argued that in the matter of renewal of Khasmahal lease option is left to the lessee and the Khashmahal authorities cannot refuse renewal of lease if the lessee opts for the same. The opposite parties for the first time are taking the stand that the impugned conditions have been imposed keeping in view the provisions contained in the Trust Deed. Such a stand is wholly misconceived and has no legal sanction. So far as the petitioner-Trust is concerned, it has no bearing on the rights conferred on the petitioner-Trust under law. The Trust is a Juristic person and is entitled to be conferred with all the permanent right that law has prescribed in respect of the leasehold property. If there is any violation of the terms of the Trust, the provisions of the Indian Trust Act will take care of the situation. But in no event, after conferring valid permanent title on the petitioner, the State Government has further power to limit such a permanent right. The right accrues in respect of Khasmahal land is in no way different from that which one reserves in his own private land. Therefore, O.P. No.2 has no right to impose any terms and conditions 5 while approving the lease of permanent Pattadar status as settled by O.P.No.3-Tahasildar in favour of the petitioner-Trust. 4. On being noticed, the opposite party Nos. 2 and 3 have filed counter affidavit. Mr. M. Sahoo, learned Addl. Standing Counsel for the State repudiating the stand taken by the petitioner contended that the land in question is Khasmahal property of the Government and the Collector, Puri is the administrator of the property under the provisions of the Estate Manual, 1990. The petitioner has no locus standi to challenge the order passed by the Khasmahal authority. Since the petitioner has filed this writ petition by suppressing the material facts, the same is not maintainable. Due to non-renewal of lease after expiry of the lease period on 07.11.1970, the leasehold land had been recorded in the Sarakari Khata No.67 in Hal ROR finally published in the year 1988. The petitioner-Trust through its Trustees applied for lease of the land in question in Balu Lease Renewal Case No.4 of 2004. Considering the charitable activities of the Trust, Collector, Puri was pleased to renew the lease for two consecutive terms of thirty years each with retrospective effect from 08.11.1970 with certain conditions. Otherwise, it would have been resumed due to gross violation of lease conditions and non-use of the leasehold land for which the same had been sanctioned. In pursuance of the orders of the Commissioner of Consolidation, Orissa, Bhubaneswar passed in RP No.69 of 2005, the record was corrected in the name of Sri Surendranath Ghosh Trust Estate, represented through its Trustee, namely, Nimai Kumar Ghosh vide new Khata No.61/18. When the lease was in force till 2030, the Trust applied for permanent lease by filing BPL Case No.20/2005. After expiry of the term 6 of lease on 07.11.1970, no family member of the lessee was using the land in question for residential purpose. There was no scope for permanent lease under the provisions of the OGLS (Amendment) Rules, 1993 due to the fact that such lease was renewed up to 07.11.2030. The Trust Estate with an intention to transfer the leasehold land applied for permanent lease in BPL Case No.20/2005. So, the Collector has rightly imposed the conditions to prevent the Trust Estate from utilizing the property for personal benefits. The provisions of the OGLS (Amendment) Act, 1993 are not applicable to the case of the petitioner as the term of the lease had already expired since 08.11.1970. The lessee was not using the leasehold land for homestead purpose for a period of not less than five years as on the appointed date, i.e., 09.01.1991. The land in question was under the Government Khata and no rent was being collected from anybody since 1975, as such lease was not in force on the appointed date, i.e., 09.01.1991 as prescribed in the OGLS (Amendment) Rules. Referring to Clauses-5(Kha) and 5(Cha) of the Trust deed it is contended that the lease sanctioning authority has every right to impose any conditions to safeguard the leasehold property from any alienation or misuse. The Government of Orissa in Revenue & Disaster Management Department have cancelled the lease sanctioned in favour of Raibahadur Hazarimal Trust Fund and resumed the land due to transfer of the same for personal benefit by the trust members. Therefore, the writ petition is not at all maintainable and is liable to be dismissed. 5. The rival contentions raised at the Bar drive us to go to the genesis of the case to appreciate the respective contentions and for effectual adjudication of the relevant issues involved. 7 6. It would be appropriate to decide first the issue relating to the relief sought for by the petitioner-Trust in the present writ petition. The petitioner’s grievance is that opposite party no.2-Collector is not justified in imposing the terms and conditions while approving the lease-hold land in question in favour of the petitioner-Trust on permanent Pattadar status in his order dated 25.9.2007 (Annexure-2) passed in BPL Case No.20/2005. In order to deal with the said issue, it is necessary to decide whether the petitioner-Trust was entitled to be settled with the land in question on permanent Pattadar status under the OGLS Act and Rules. In other words, as to whether O.P. No.3-Tahasildar and O.P.No.2-Collector are respectively justified in settling and approving the land in question on permanent Pattadar status in favour of the petitioner-Trust in BPL Case No.20/2005. The order of the Collector dated 25.09.2007 (Annexure-2) reveals that the Tahasildar, Puri has settled the land in question in favour of Sunrendranath Ghosh Trust Estate, Calcutta and Marfatdars Gautam Kumar Ghosh, Nimain Kumar Ghosh, Partha Ghosh of 19/1 Rahasbehari Ghosh, Calcutta on permanent Pattadar status as per sub-Rule 3(a) of Rule 5-B of the OGLS (Amendment) Rules, 1993. Relying on the said Rules the Collector, Puri approved the Settlement of the land in question in favour of the petitioner- Trust on permanent Pattadar status as made by the Tahasildar. The letter No.294 dated 28.09.2007 of the Deputy Collector, Puri reveals that the land in question as settled by the Tahasildar, Puri has been approved by the Collector, Puri in favour of the petitioner-Trust as per Sub-Rule 3(a) of Rule 5-B of the OGLS (Amendment) Rules, 1993. The petitioner also relied upon the provisions of Rule 5-B of the OGLS Rules and schedule-V appended to 8 Rule 5-B in terms of paragraph-3 thereof in support of its claim. The petitioner-Trust through its power of Attorney Holder also made an application to Tahasildar, Puri on 03.11.2005 in Form No.1 for permanent settlement of the leasehold land relying on the OGLS (Amendment) Rules, 1993. Now, it is necessary to examine what is contemplated in Rule 5-B and Sub-Rule 3(a) of the said Rule of the OGLS (Amendment) Rules, 1993 on which both the parties have placed reliance. The relevant provisions of Rule 5-B and Sub-Rule 3(a) of Rule 5-B are reproduced below. “5-B. Notwithstanding anything contained in rules 3, 5, 5-A, 8,11,12, 13, Settlement of Khasmahal and Nazul land, Gramakantha Parmbok and Abadi land leased out prior to the 9 th day of January 1991 shall be made in the manner prescribed in in Schedule-V.” xx xx xx xx xx 3(a) Tahasildar on being satisfied after enquiry that any Nazul/Khasmahal land is used and in occupation by any person as homestead for a period of not less than five years as on the appointed day shall settle the said land in favour of the person holding such land, on execution of lease deed in Form IV. In case of a sub-lessee and subsequent sub-lessee such settlement shall take effect on production of the stamped receipt in Form I from the date of payment of such compensation to the person (s) immediately under whom they held the land; Provided that on each such settlement, approval of the Collector shall be obtained.” (underlined for emphasis) Perusal of the above provisions makes it amply clear that settlement of Khasmahal and Nazul land leased out prior to 9th day of January, 1991 shall be made in the manner prescribed in Schedule-V. Rule 3(a) of Schedule-V provides that the Tahasildar on being satisfied after enquiry that any Khasmahal land is used and in occupation of any person as homestead for a period of not less than five years as on the appointed day i.e. 09.01.1991 shall settle the said land in favour of the person holding such land on execution of lease deed in Form No.IV. Thus Rule 5-B is 9 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. It is only for the first time the land in question was leased out in Balu Lease Renewal Case No.04/2004 vide order dated 10.09.2004 passed by O.P. No.2-Collector, Puri in favour of the petitioner-Trust. That apart, as per sub- rule 3(a), the land in question must be in use and in occupation by any person as homestead. The term ‘person’ has not been defined in the OGLS Rules. But the term ‘person’ has been defined in the OGLS Act. Sub-rule (2) of Rule 2 to the OGLS Rules provides that “words and expressions used but not defined in these rules shall have the same meaning as are respectively assigned to them in the Act”. The term ‘Person’ as has been defined in Section 2 (b-2) in the OGLS Act runs as follows: “(b-2) ‘Person’ means any person, the total extent of whole land excluding homestead, together with lands held by all the members of his family who are living with him in common mess is less than one standard acre and whose total annual income together with the total annual income of all the members of his family living with him in common mess, does not exceed rupees three thousand and six hundred or an amount which the State Government may, by notification from time to time, specify in that behalf;” (underlined for emphasis) The petitioner is a Trust and not a person as defined in Section 2(b-2) of the OGLS Act, 1962. This position is clear from the fact that the relevant expressions are ‘homestead’ and ‘held by all the members of the family’, ‘living in common mess’ ‘annual income of all the members of the family’. Therefore, 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-5B of the OGLS (Amendment) Rules, 1993. Moreover, sub-Rule 3(a) of 10 Rule-5B further requires that the Khasmahal land should be used by a person as homestead for a period of not less than five years on the appointed date. But the order of the Collector dated 10.09.2004 reveals that a building constructed on the Khasmahal land is used for commercial purpose without permission of Khasmahal authority and no resumption proceeding has been initiated. Thus, in the present case, the competent authorities failed to exercise their mind to the above pre-conditions stipulated in the statute before settling/approving lease of Khasmahal land on permanent Pattadar status in favour of the petitioner-Trust. As it appears, O.P.No.3-Tahasildar, Puri vide his order dated 30.03.2007 passed in BPL Case No.20/2005 has settled the land in question in favour of the petitioner-Trust on permanent Pattadar status with heritable and transferable right closing his eyes towards the statutory requirement of the OGLS Act and the Rules. The Collector, Puri also without examining the validity/legality of the Tahasildar’s recommendation accepted the settlement made by the Tahasildar ignoring the relevant provisions of the statute though of course has imposed certain terms and conditions. 7. It is the settled law that 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. In Sirsi Municipality by its President, Sirsi Vs. Cecelia Kom Francis Tellis, AIR 1973 S.C. 855, the Supreme Court observed that the rules or the regulations are binding on the authorities. 11 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 no obligation on the part of the Court to sanctify 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. (See R.N. Nanjundappa Vs. T. Thimmaiah & Anr., AIR 1972 SC 1767, Sultan Sadik Vs. Sanjay Raj Subba & Ors., AIR 2004 S.C. 1377) Thus, the legal position remains, 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. [See Swastik Agency & 2 Ors., -v- State Bank of India, Main Branch, Bhubaneswar & 3 Ors., 107 (2009) CLT 250] Non-compliance of mandatory requirements vitiates the proceedings. The Collector and the Tahasildar are responsible Government officers working in the Revenue Department. They are supposed to know the law relating to leasing out of Government properties. Ignorance of the same cannot be considered as bliss. Apart from the above, in paragraph 9 of the counter affidavit, it is stated that the OGLS (Amendment) Act is not applicable to the case of the petitioner due to the fact that the term of lease had expired since 8.11.1970. The lessee was not using the leasehold land for homestead purposes for a 12 period of not less than five years as on the appointed date i.e. 9.1.1991. The Khasmahal land in question was recorded in Sarakari Khata since 1988. These averments have not been denied by the petitioner in his rejoinder. However, the petitioner in paragraph 11 of the writ petition has averred that as per Section 3(4)(c)(i) of the OGLS Act, right accrued under the provisions of the permanent lease is heritable and transferable. For the reasons stated above, since the petitioner is not a person as defined in Section 2 (b-2) of the OGLS Act, Section 3(4)(a) and Section 3(4) (c)(i), relied upon by the petitioner which speak of a person have no application to the case of the petitioner. Besides, the petitioner also does not fulfill the other conditions provided under those sections. 8. The apex Court in New India Assurance Co., Shimla Vs. Kamla & Ors., AIR 2001 SC 1419 held as follows :- “As a point of law we have no manner of doubt that a fake licence cannot get its forgery outfit stripped off merely on account of some officer renewing the same with or without knowing it to be forged. Section 15 of the Act only empowers any licensing authority to “renew a driving licence issued under the provisions of this Act with effect from the date of its expiry.” No licensing authority has the power to renew a fake licence and, therefore, a renewal if at all made cannot transform a fake licence as genuine. Any counterfeit document showing that it contains a purported order of statutory authority would ever remain counterfeit albeit the fact that other persons including some statutory authorities would have acted on the document unwittingly on the assumption that it is genuine.” Thus, merely because some Revenue Officers have settled and approved the lease in favour of petitioner-Trust on permanent Pattadar status that cannot confer any right on the petitioner-Trust over the land in question as the same has been granted illegally without adhering to the statutory provisions. Therefore, settlement of the land in question in favour of the 13 petitioner-Trust on permanent Pattadar status as made by the Tahasildar and approved by the Collector in BPL Case No.20/2005 being not in consonance with law is ab initio void and unsustainable. 9. In view of our findings that grant of lease of permanent Pattadar status in BPL Case No.20/2005 in favour of the petitioner-Trust is void ab initio because of the illegalities, irregularities committed by the Revenue authorities, the relief sought for by the petitioner-Trust in the present writ petition does not merit consideration. Consequently, even though there is no quarrel over the legal propositions settled by this Court in the cases relied upon by the petitioner, they are of no help to the petitioner. The apex Court in Badrinath -v- Government of Tamil Nadu & Ors., AIR 2000 S.C. 3243, observed that once the basis of a proceeding is gone, all consequential acts, actions, orders would fall to the ground automatically. 10. Law is well settled that the writ jurisdiction is discretionary