IN THE HIGH COURT OF ORISSA AT CUTTACK
W.P.(C) No.22924 of 2020
Srinath Mishra .... Petitioner
Petitioner in person
-Versus-
State of Odisha and others .... Opposite Parties
Mr. Ishwar Mohanty, ASC
CORAM:
THE CHIEF JUSTICE
JUSTICE R.K. PATTANAIK
DATE OF JUDGMENT : 29.07.2022
R.K. Pattanaik, J
1. Instant writ petition is at the behest of the Petitioner under Articles 226 and 227 of the Constitution of India, 1950 for issuance of a writ of mandamus or directions of like nature to the Opposite Parties to summarily evict the encroacher from the case land; to direct O.P.Nos.3&4 to enquire into the allegation regarding forcible occupation of gochar, anabadi and endowment land by O.P.No.5 with reference to the provisions of the Orissa Government Land Settlement Act, 1983 (hereinafter referred to as 'the OGLS Act'); to stop construction work over the land in question; and also to pass appropriate orders deemed just and proper in the facts and circumstances of the case.
2. The Petitioner approached this Court challenging the action of O.P. Nos. 1 to 4 in allowing O.P.No.5 for raising a construction of a grinding unit over an area of 100 acres of land for production of cement from a unit at Haridaspur, P.S./Tahasil-Dharmasala. According to the Petitioner, the above factory is proposed over the agricultural land with human habitation having number of villages around which is likely to affect a population of 30,000 on account of pollution and other hazards. As per the claim of the Petitioner, O.P.No.5 is said to have encroached huge area of gochar land and has surrounded it by a boundary wall without any sanction and approval of the revenue authorities and that apart, lands which are recorded with Lord Jagannath and in the name of Bhagabat Gosain over plot Nos.917, 925 & 942 under Khata No.168/19 situated in Nanapur mouza have also been illegally possessed in contravention of the endowment law. The Petitioner alleged that the local administration clandestinely changed the kisam of gochar of land in order to facilitate its transfer in favour of O.P.No.5 through the Industrial Infrastructure Development Corporation, Orissa (IDCO) and the above action is contrary to law as the Supreme Court of India deprecated the utilization of gochar land and even regularizing the possession of unauthorized occupants. It has been further claimed by the Petitioner that a representation was submitted to O.P.No.4 with a copy to O.P.No.3 for eviction of O.P.No.5 for its unauthorized possession of the schedule land but no action was taken thereon and not only that, the Board of Revenue was also approached for a direction to O.P.No.3 to cancel the dereservation orders. With the above contention, the Petitioner pleaded that not only the gochar land was diverted for commercial purpose but also the endowment lands of the deities were handed over to O.P.No.5 for construction of the cement factory in gross violation of the provisions of law which, therefore, requires an enquiry followed by eviction of the illegal occupier and thereby restoring the land to the Government.
3. Heard Mr. S. Mishra in person, Mr. Ishwar Mohanty, learned ASC for O.P.Nos.1 to 4 and Mr. B.P. Mohanty, learned counsel for O.P.No.5.
4. O.P.No.5 filed a counter affidavit denying all the allegations of the Petitioner and pleaded that there is no cause of action to bring the litigation and material facts have also been suppressed and therefore, the matter deserves to be dismissed in limini. It is pleaded by O.P.No.5 that the instant writ petition is filed suppressing the fact of an earlier proceeding for the self-same cause of action disposed of by the National Green Tribunal in O.A. No.12 of 2015(EZ), wherein, by order dated 18th December, 2019, a Committee was constituted to inspect the project in question and verify the allegations and to take appropriate action against the project proponent, if such allegation is found to be correct. Further pleaded by O.P.No.5 that after obtaining necessary permission from O.P.No.3 under the OLR Act, large extent of land measuring an area of 152 acres was purchased and also obtained approval in respect thereof besides permission from statutory authorities for the said purpose and after taking over possession the land fenced it by a boundary wall and since some Government land was found lying within that area, the Industrial Promotion and Investment Corporation of Orissa Ltd.(IPICOL) was moved for alienation and allotment of the same and in that regard, necessary recommendation was received from SLFC for its acquisition by IDCO. As also pleaded, O.P.No.5 moved for considering the alienation and in that regard, O.P.No.3 as per the provisions of OGLS Act and Rules allowed dereservation of the Government land in favour of IDCO for establishment of industries and allied facilities including social infrastructure. In so far as some land of Bhagabat Gosain which also fell within the area of the land acquired, the concerned Marfatdars have in the meantime approached the Commissioner of Endowments in O.A. No.28 of 2019 seeking no objection certificate which is pending disposal. In response to the above, the Petitioner filed a rejoinder and reiterated the facts and position of law with regard to misutilization of the land by dereservation and further encroachment by O.P.No.5 for setting up of the proposed factory over the same. The O.P.Nos.1 to 4 have not filed any counter affidavit but opposed the claim of the Petitioner regarding alleged violations while sparing the schedule land for the establishment of the unit.
5. The Petitioner contended that such unauthorized possession of the schedule land by O.P.No.5 is brazenly manifest considering the fact that the local administration without following the law and restrictions in place illegally dereserved the gochar land and also handed over the lands of deities without approval of the endowment authority and besides that the representation under Annexure-3 was not considered and no action was taken in that regard. Mr. Mishra contended that the gochar plots have been illegally converted with kisam being changed and transferred in favour of O.P.No.5 by the order of O.P.No.3 (Annexure-1). Furthermore, Mr. Mishra placed reliance on the following decisions of the Supreme Court in the case of State Jharkhand and others v. Pakur Jagran Manch and others (Civil Appeal No.436 of 2011) and Jagpal Singh and others v. State Punjab and others (Civil Appeal No.1132 of 2011) which are with regard to dereservation of gochar land and encroachment of the land possessed by the GPs in collusion with the officials of the local administration besides a letter dated 5th Mach, 2018(Annexure-2) from the Secretary, Animal Welfare Board of India addressed to the Chief Secretary of all the States/UTs seeking information vis-à-vis gochar lands and the extent of which have been converted/dereserved; illegally possessed or encroached besides other details in compliance of the guidelines of the Apex Court in Pakur Jagran Manch case (supra) contending that a Uniform National Policy for gochar land is being contemplated by Government of India. Mr. Mishra submitted that under Annexure-3&4, representations were submitted to O.PNo.4 and the Board of Revenue (O.P.No.2) but it yielded no result. Thus, by referring to the decisions in Pakur Jagran Manch and Jagpal Singh (supra), Mr. Mishra finally contends that the directions and observations contained therein have not been scrupulously followed by the local administration while handing over the gochar land and other lands of the deities for which statutory approval/sanction is required.
6. Mr. Mohanty, learned ASC contended that there has been no illegality committed by O.P.Nos.3&4 while dereserving the gochar land and handing it over to O.P.No.5 for construction of the cement unit. It is further contended that necessary permission, such as, clearance from the State Environment Impact Assessment Authority (SEIAA) after purchase of the schedule land has been obtained by O.P.No.5. The learned counsel for O.P.No.5 strongly objected to the allegations of the Petitioner and submitted that necessary approval was obtained from O.P.No.3 vide Annexure-C/5 with regard to purchase of land having been allowed by virtue of Section 38(B) of the OLR Act and that apart, permission from different authorities, like State Pollution Control Board, Orissa (SPCB) in terms of Section 21 of Air (P&CP) Act, 1981 and Section 25 of Water (P&CP) Act, 1974 under Annexure-D/5 and consent for establishment of the unit vide Annexure-B/5; permission from the SEIAA vide Annexure-E/5; and also permission of the Director of Factories and Boilers, Orissa under Annexure-F/5 have been obtained. It is further apprised to the Court that the land after conversion was recorded in the name of O.P.No.5 with the ROR issued vide Annexure-G/5. It is lastly contended on behalf of O.P.No.5 that transfer vis-à-vis the lands of the deities is pending consideration before the Commissioner of Endowments in O.A.No.28 of 2019 under Section 19 of the Orissa Hindu Religious Endowments Act (in short 'the OHRE Act') and as such, no illegality has been committed and in the meantime, the Marfatdars and other villagers have agreed and received an amount of Rs.6,08,901/- paid through cheque for renovation of village temple at Muraripur. Finally, it is contended by the learned counsel for O.P.No.5 that for the self-same cause of action, a matter was carried to the National Green Tribunal and therefore, the Petitioner should not be permitted to reagitate it. A copy of the order dated 18th December, 2019 (Annexure-A/5) of the National Green Tribunal in O.A. No.12 of 2015 is referred to while contending that the present litigation should not be entertained which would result in abuse of process of law.
7. On a bare perusal of Annexure-A/5, the Court finds that the dispute involving O.P.No.5 has been a subject matter of adjudication by the National Green Tribunal which was at the instance of the Petitioner and in that proceeding by order dated 23rd September, 2019, a Committee comprising of representatives from the Regional Office of CPCB, SPCB and SEIAA, Orissa was constituted to inspect the project and verify the allegations and to submit a report. In that case, the Petitioner had alleged violation of the conditions of environmental clearance by O.P.No.5. Admittedly from Annexure-G/5, it would appear that the schedule land stands recorded with O.P.No.5 and in that respect, ROR has been issued. From the counter affidavit of O.P.No.5 and looking at Annexures-B/5 to F/5, it further appears that necessary permission has been obtained from different statutory bodies for the purpose of establishment of the unit. As regards the lands of the deities, it has been brought to the notice of the Court that the permission to sale it and issuance of no objection certificate is pending decision before the Commissioner of Endowments in O.A. No.28 of 2019 which is revealed from Annexure-J/5 series. In fact, one more writ petition in W.P.(C) PIL No.26587 of 2017 had been filed earlier involving O.P.No.5 which was disposed of by order dated 22nd March, 2021 considering the fact that the matter is subjudice in O.A. No.28 of 2019 for permission and grant of no objection certificate in accordance with Section 19 of the OHRE Act which is stated to be still pending disposal. In such view of the matter, there is nothing on record to show that O.P.No.5 bypassed any statutory requirements, rather, it seems to have obtained the necessary permission/sanction under Annexure-B/5 to F/5 and furthermore, the proceeding with regard to the property of the deities, it is awaiting decision by the Endowment Commissioner, who had appeared and filed a counter affidavit in W.P.(C) PIL No.26587 of 2017. Against the aforesaid background of facts, the Court does not find any violation apparent on the face of record to hold that O.P.No.5 is guilty thereof.
8. The next contention of the Petitioner is regarding illegal conversion of gochar land without following the provisions of OGLS Act and its transfer in favour of O.P.No.5. The Petitioner alleged that the gochar plots were converted and kisam was changed fraudulently to facilitate the transfer in favour of O.P.No.5. No doubt, the Apex Court in Pakur Jagran Manch (supra) concluded that dereservation of any Government land earmarked as gochar should only be under exceptional circumstances and for valid reasons and therefore, any attempt either to illegally convert the same or its encroachment should be resisted and firmly dealt with. Similarly in Jagpal Singh (supra), the Apex Court came down heavily on encroachment of land belonging to GP which was perpetuated in collusion with the local officials and directed that even if permanent structures have been raised on such land, the same shall have to be removed and any regularization of such illegality must not be permitted and the action by the State Government in that respect was held to be without jurisdiction. The above proposition is meant to preserve the gochar land for the purpose of grazing and common use by the villagers and when any such dereservation is required, the direction has to be strictly followed. In the instant case, it is only alleged by the Petitioner that conversion was made illegally without compliance of the provisions of OGLS Act. The essence of the argument is that in collusion with the officials of the local administration, the kisam of gochar plots were changed and then transferred to O.P.No.5. There is no detailed information shared by the Petitioner to satisfy the Court as to the extent of land recorded as gochar and how much has been dereserved for industrial and allied purpose. If there is no surplus gochar land available, then there may be a concern for the local administration. The Petitioner did not share the details of the gochar plots and extent thereof at least to make out a prima facie to show that the land left out after acquisition is not sufficient to meet the demands of the local villagers and therefore, dereservation should not have been permitted. The Petitioner simply alleged that illegality has been committed and the local administration secretly changed the kisam of gochar plots so that it could ultimately be transferred in favour of O.P.No.5. A process has been followed for the purpose of dereservation under the provisions of the OGLS Act and Rules and finally, the record of right was corrected. In order to examine the grievance and complaint on illegal acquisition and possession of the land in question by O.P.No.5 and proceed further, the Court requires some material to satisfy itself of the need of an enquiry. Rather, O.P.No.5 appears to have obtained required statutory permission and sanction of the authorities under Annexure-B/5 to F/5. Thus, for the foregoing reasons the Court reaches at a conclusion that there is no need of any directions issued requiring its indulgence in the matter.
9. Accordingly, it is ordered.
10. In the result, the writ petition stands dismissed.
(R.K. Pattanaik) Judge (Dr. S. Muralidhar) Chief Justice TUDU
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