Chairman-cum-managing Director, Industrial Infrastructure Development Corporation Of Orissa, Idco Tower, Janapath, Bhubaneswar, District Khurda, Odisha vs Late Surgeon Vice Admiral Gp Panda Through His Legal Heirs And Others … Respondent (S) With

CHAIRMAN-CUM-MANAGING DIRECTOR, INDUSTRIAL INFRASTRUCTURE DEVELOPMENT CORPORATION OF ORISSA, IDCO TOWER, JANAPATH, BHUBANESWAR, DISTRICT KHURDA, ODISHA … APPELLANT(S)

VERSUS

LATE SURGEON VICE ADMIRAL GP PANDA THROUGH HIS LEGAL HEIRS AND OTHERS … RESPONDENT (S)

WITH

CIVIL APPEAL NO. 5152 OF 2023 (@ SLP (C) No. 20490 of 2018)

WITH

CIVIL APPEAL NO. 5153 OF 2023 (@ SLP (C) No.17857 OF 2023 @ D.NO. 26693 OF 2018)

J U D G M E N T

S.V.N. BHATTI, J.

1. The Appeals arise from the Judgment dated 24.01.2018

in Writ Petition (Civil) No. 9988 of 2006 on the file Signature Not Verified Digitally signed by of High Court of Orissa, Cuttack. The respondents in Nisha Khulbey Date: 2023.08.23 10:12:22 IST Reason:

the Writ Petition are the appellants in S.L.P.(C) No.

1 14949 of 2018 and S.L.P.(C) No. 20490 of 2018. The

D.No.26693 of 2018 is at the instance of the Writ

Petitioner. The High Court, through the Judgment dated

24.01.2018, firstly held that the land admeasuring

acres 4.800 decimals, leased out to original petitioner

Shri GP Panda has been properly identified. The High

Court also held that initiating resumption proceedings

in Resumption Case No. 1 of 2006 by the Tehsildar,

Bhubaneswar, is illegal. Hence, the substantive reliefs

against the Judgment or claim in the Appeals filed by

the respondents in the Writ Petition.

2. One Surgeon, Vice Admiral GP Panda, filed Writ

Petition against the State of Orissa and three others.

Pending Writ Petition, Industrial Infrastructure

Development Corporation of Orissa (for short, ‘IDCO’)

was impleaded as Respondent No.5.

3. The Writ Prayers, in effect, are directed against

the respondents not to interfere with the lawful

possession and enjoyment of the Writ Petitioner over

an extent of acres 4.800 decimals in Plot No. 1288

under Khata 420, village Pathargadia (for short,

‘petition land’) and restrain the continuation of R.C.

No. 1 of 2006 initiated by Tehsildar, 2 Bhubaneswar/Appellant No.8 herein. The dispute, in

fact, or the enforceable right claimed by the

petitioner could be appreciated by taking note of the

following admitted circumstances and also by

considering the disputed facts.

4. Surgeon Vice Admiral Ganesh Prasad Panda applied

for allotment of Government land under an existing

policy enabling the assignment of Government land to

the armed personnel who have participated on the

frontline of the North-East Border in the Indo-China

war. Surgeon Vice Admiral Ganesh Prasad Panda was an

Ex-Army personnel who satisfied the criterion for

assignment of Government land to Ex-Defence personnel.

The credentials and the applicability of the

eligibility criteria for the assignment of Government

land to the armed personnel who participated in the

Indo-China war were examined by the Home Department of

the State. Through Communication, District Office, vide

60990/S/4/350 dated 19.04.1979, it was accepted that

the said Surgeon Vice Admiral Ganesh Prasad Panda was

eligible for assignment of Government land under the

Policy in vogue. The Tehsildar, Bhubaneswar, in W.L.

Case No. 1686 of 1979, on 07.05.1981, settled the

3 petition land in favour of Surgeon Vice Admiral Ganesh

Prasad Panda. The land was identified with the sketch.

The consequence of the settlement, one can infer, is

possession of settled land was made over to Surgeon

Vice Admiral Ganesh Prasad Panda.

4.1 The District Collector, Bhubaneswar, noticing an

alleged infringement/illegality in the instant

assignment, had taken up Revision Case No. 59 of 1982

against the Assignment Order dated 07.05.1981. On

13.01.1983 (Annexure-P2), the District Magistrate,

Bhubaneswar, dismissed the Revision Petition. The first

petitioner claimed to be in continuous and

uninterrupted possession of petition land. In 1989, as

is evident from the record, the Writ Petitioner got the

assigned property surveyed, settled, and specifically

got earmarked with boundaries. The petition land

consists of an extent of acres 4.800 decimals in Plot

Number 1288 out of the total extent of 52.470 acres.

The Writ Petitioner claims to have bought the petition

land under cultivation and, later on, converted the

petition land into a farmhouse. The petitioner claimed

actual enjoyment of the petition property.

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5. The State addressed a letter dated 03.04.2001

(Annexure-P3) to the Tehsildar, informing that State

identified a patch of Government land measuring 52.470

acres in Pathargadia under Bhubaneswar Tehsil, adjacent

to Infocity. The State desired Tehsildar to process the

alienation proposal of land identified by IDCO

expeditiously. From the record, it appears that the

alienation of land in favour of IDCO commenced on the

request of IDCO of identified land but not after

verifying whether Government land claimed by the State

is free from encumbrances and available for assignment.

5.1 On 17.02.2005, Collector approved the allocation

of acres 42.870 decimals in Plot No.1288 being Khata

No. 420, in Pathargadia, in favour of the State. IDCO

alleges that the Subordinate Officers of the District

Administration interfered with the possession,

demolished the existing structures, and threatened to

dispossess IDCO from the petition land. The averment

in the Counter Affidavit of Respondent Nos. 1 to 4/LRs

herein dated 13.11.2006 evidences the state of affairs

on possession or enjoyment. Still, there is

prevarication in the thinking of Respondent Nos. 1 to

4 and without cancelling or repossessing the settled

5 land claims to have sold in favour of the State. The

averment in the said Counter Affidavit on possession

reads thus:

“It is humbly submitted that the Plot No. 1288 of Mouza Pathargadia of an area of 42 acres 870 decimals has been leased out/allotted in favour of IDCO in W.L.Case No.34 of 2004 and, at present, IDCO is in lawful possession over the said area. Out of the same plot, an area of 4.800 decimals was allotted in favour of the petitioner for agricultural purpose. Since, the petitioner did not use the allotted land for the purpose it was sanctioned, resumption proceeding has been initiated against the petitioner vide Resumption Case No.1 of 2006.”

The above averment reiterates allotment of

Government land, possession of the IDCO, and initiation

of resumption proceedings for alleged breach of

assignment condition.

6. On 20.03.2006, a Show Cause Notice under Section

3(B) of Orissa Government Land Settlement Act, 1962 was

issued to IDCO proposing to resume petition land on the

ground of alleged violation of conditions of the grant.

In the year 2016, Surgeon Vice Admiral Ganesh Prasad

Panda died and his Legal Representatives (LRs) were

brought on record. The LRs are continuing the 6 litigation. The alienation, confirmation, etc.,

formalities in favour of IDCO, were completed by the

District Administration on 14.02.2006. Thereafter, a

Notice proposing to resume petition land, was issued.

The above narrative discloses that the High Court has

considered the prayers not by entertaining a finding

on a disputed question of fact but on the material on

record.

7. IDCO’s case is that the settlement of the petition

land has been under the Government Grants Act, 1865.

The settlement does not specify a condition for

performance by IDCO and a consequence warranting

resumption for not performing the condition. The High

Court, on examination within the discretionary

jurisdiction under Article 226 of the Constitution of

India, recorded findings available from the record. The

High Court examined the record, nature of the grant in

favour of IDCO, initiation of Revision against the

Assignment Order, and recorded the finding in favour

of IDCO. The disputed question is, what are the

conditions the assignee breached, or what are the

conditions violated by the assignee warranting

resumption after two and a half decades of assignment.

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8. The learned Counsel, Shri Subhasish Mohanty,

appearing for State, and learned Senior Counsel, Shri

Jana Kalyan Das, appearing for IDCO, argued with

considerable force that the High Court, in the exercise

of its jurisdiction under Article 226 of the

Constitution of India, without reference to trial,

recorded findings on disputed questions of fact. It is

argued that entertaining a Writ Petition and

adjudicating the dispute of the nature, as the present,

would be beyond the jurisdiction of the High Court

under Article 226 of the Constitution of India. The

High Court, through the impugned Judgment, also decides

the property's identity when there is a contest by the

State and IDCO. Party-in-person replies that once the

grant in favour of Vice Admiral Ganesh Prasad Panda is

accepted, the said admission in law would take within

its fold identification of plot, delivering of actual

and vacant possession to the assignee, i.e., Vice

Admiral Ganesh Prasad Panda. Therefore, the

identification of petition land by the High Court is

on the very documents issued by the official

respondents. Thus, the Writ Court did not liberally

entertain the discretionary jurisdiction to adjudicate

disputed questions of fact.

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9. We have taken note of rival submissions and perused

the record.

10. The State and IDCO are invoking the jurisdiction

of this Court under Article 136 of the Constitution of

India. They must make out that the needs of justice

demand interference by the Supreme Court having plenary

jurisdiction against the impugned Judgment (See

Arunachalam v. P.S.R. Sadhanantham and another1.

11. Independent of the findings recorded by the High

Court, it needs to be borne in mind the view taken by

this Court in State of Uttar Pradesh and others v.

Maharaja Dharmander Prasad Singh and others2 on the

power of re-entry by the lessor.

12. Let us examine, firstly, the chronology stated in

the preceding paragraphs. The total extent of land in

Plot No. 1288 is 52 acres, 470 decimals. On 07.05.1981,

IDCO was assigned, in Plot Number 1288, agricultural

land admeasuring acres 4.800 decimals. By issuing the

Resumption Notice, the Tahsildar admitted Writ

Petitioner’s possession of the petition land. It is

1 (1979) 2 SCC 297/AIR 1979 SCC 1284) 2 (1989) 2 SCC 505

9 evident from the record that even before initiating

proceedings for recovery, the possession of allotted

land of an extent of acres 42.870 decimals is stated

to have been given to IDCO by the State. It is also not

clear whether the assignment in any manner overlaps

with the petition land assigned to Vice Admiral Ganesh

Prasad Panda. The State assumed the power of re-entry

of the land settled on a higher pedestal and that the

resumption of land in favour of the State as automatic.

12.1 The above observation is necessary for, firstly,

if we assume that the land alienated to IDCO is

different or distinct, then, interference with

possession of petition land is arbitrary and illegal.

Secondly, if the extent viz. petition land and land

settled in favour of IDCO, then, without dispossessing

the petitioner(s), in the manner known to law, the

settlement in favour of IDCO, by including petition

land, is illegal and unconstitutional.

12.2 The law on the power of re-entry is fairly well-

settled. The re-entry without reference to the law, in

the facts and circumstances of this case, has been

rightly held in favour of the Writ Petitioners. The

10 serious objection of the State against impugned

Judgment is that the High Court has decided disputed

questions of facts. After perusing the Judgment, we

consider that the High Court recorded a finding not by

deciding a fact in issue on title, identity, or

entitlement but from the record and admitted documents.

The solitary ground raised against the impugned

Judgment, therefore, deserves to be rejected. The

answer of the High Court on Points 1 and 2 is available,

and the method adopted by the respondent-State for

dispossessing or attempting to dispossess the first

petitioner is unconstitutional and illegal. The State

ought not to approbate and reprobate on the possession

of Vice Admiral Ganesh Prasad Panda of petition land.

13. Though the impugned Order in Civil Appeal no. 5153

of 2023 (@ SLP (C) No.17857 of 2023 @ D.No. 26693 of

2018) filed by the LRs of Vice Admiral Ganesh Prasad

Panda is substantially in their favour, still the

Appeal is filed raising a few grounds. The Appeal, in

our considered view, need not have been filed and even

if it is filed, we are of the view that re-examination

of those prayers by this Court, particularly, keeping

in view the findings recorded while dismissing the

11 Appeals filed by the State and IDCO, we see no reason

to entertain the Appeal.

14. We do not see merit in the Appeals and are

accordingly dismissed. No orders on costs.

...............J. [J.B. PARDIWALA]

..............J. [S.V.N. BHATTI] NEW DELHI;

AUGUST 22, 2023.

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