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Judgment
Mr. Bose, learned advocate appears and submits, son of recorded possessor of the land had filed the writ petition. Original petitioner died and at present his clients are the substituted daughter-in-law and grand children of recorded possessor.
He submits, impugned are annexures 5, 6 and 7, orders passed by the administration to remove his clients’ presence in the land for facilitating transfer to private opposite party no.5. There was no notice to the son of recorded possessor, when purported report stating said person had died and the land lay vacant, was relied upon to make ex-parte order leading to transfer of the land to opposite party no.5.
Mr. Sahu, learned advocate appears on behalf of private opposite party no.5 and submits, the transfer was made in year 2013. His client asserted ownership over the land openly and continuously thereafter. The writ petition brought in year 2018 should not be entertained on ground of delay. Mischievous intent is apparent. Furthermore, the writ petition is not maintainable as section 7 under Orissa Government Land Settlement Act, 1962 provides for alternative efficacious remedy of appeal. He submits, his client has filed for vacating the interim order.
On query from Court Mr. Bose points out statements made in paragraph 9 of the writ petition, reproduced below.
“9. That when the opp. party no.5 in the 2nd week of July 2018 came over the suit land and stacked building materials the petitioner objected to same and showed him the copy of the R.O.R. (Annexure-7) and stated that he has got a lease in his favour and he is the owner of the property.”
We have perused counter filed by private opposite party no.5. Paragraph 9 in the writ petition has not been specifically dealt with. Mr. Sahu relies on paragraph 11. Said paragraph and paragraphs 12 and 13 are reproduced below.
“11. That the lease in question was sanctioned by the Revenue Divisional Commissioner by order dated 2.1.2013 and the opposite party No.5 had deposited the entire premium on 22.3.2013. The Lease Deed under Annexure-A/5 was executed on 11.5.2013. In the meantime more than 5 years have passed. No explanation whatsoever is available on record for invoking the extra-ordinary jurisdiction of this Hon’ble Court after elapse of 5 years. In such view of the matter, the writ petition is not maintainable and is also liable to be dismissed on that count.
That the writ petition is otherwise not maintainable and is liable to be dismissed.
That the averments which have not been specifically denied are hereby denied.”
Perused impugned orders. We notice there is no dispute that petitioners’ ancestor was recorded possessor. Mr. Sahu points out, he was forcible possessor. Notwithstanding, State found fit to cause enquiry and issue notice, obviously with intent to deal with the land. We are convinced resort to such procedure was because petitioners’ ancestor was recorded possessor.
State appears to have found that vacant land was lying vacant and recorded possessor had died. The information of death was not accompanied by who were the legal representatives or relatives left behind or persons surviving the deceased. Then, State says it followed prescribed procedure of proclamation by beat of drums and attestation of notice in outer door wall of the office. No villager objected. All this was done State asserts, yet no one informed of the legal representatives.
State proceeded to transfer the land. We have perused lease deed dated 11th May, 2013 and find that opposite party no.5 received lease hold interest in the land as vacant. On the top of that we have fact of the land remaining vacant till there was movement to construct and son of recorded possessor having noticed the same, moved Court by this writ petition. In view of what we have said above, we find this a fit case for interference in exercise of writ jurisdiction, inspite of statutory remedy, if available. This is simply because action of State is to be demonstrated as having had been duly done.
State will be heard in support of their assertion of due procedure followed leading to the transfer. Furthermore private opposite party will also to be heard on obtaining sanction for construction, interim order passed on 23rd August, 2018 and what construction exists as on date.
By consent, list on 28th November, 2022. The interim order to continue till next date.
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