Odisha HC: Cause of concern if no surplus gochar land available. Petitioner only alleged illegality of conversions [29.072022]

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

Orissa High Court in Ranka Sahoo & Ors. vs. State Of Odisha & Ors. [13.08.2021]

IN THE HIGH COURT OF ORISSA AT CUTTACK 

W.P.(C) PIL No.8527 of 2016 

Ranka Sahoo and others                                                                                                 .... Petitioners 

                                                                                                         Mr. Soubhagya S. Das, Advocate 

 -versus- 

 State of Odisha and Others                                                                                         .... Opp. Parties 

                                                                          Mr. D.K. Mohanty, AGA for State - Opposite Parties 

 

CORAM: THE CHIEF JUSTICE 

                 JUSTICE B. P. ROUTRAY 

 ORDER

Order No. 13.08.2021 

I.A. No.10038 of 2021

1. This is an application seeking recall of the order dated 19th July, 2021 by which the writ petition has been disposed of.

2. For the reasons stated in the I.A. the same is allowed. W.P.(C) No.8527 of 2016 is restored to its original file.

W.P.(C) No.8527 of 2016

3. The detailed argument of Mr. Soubhagya S. Das, learned counsel for the Petitioners and Mr. D.K. Mohanty, learned Additional Government Advocate for Opposite Parties have been heard. The Court has also been taken through the counter affidavit and rejoinder affidavit filed in the petition.

4. The grievance in the petition is the alleged encroachment of Plot Nos.88 and 89 in Khata No.131 in Mouza-Jhansipatna by Opposite Party Nos.4 to 48. The claim is that these two plots were meant for common burial and cremation and these have been encroached upon illegally by the said Opposite Parties.

5. In the counter affidavit it is inter alia stated as under:

"xxxxx xxxxxxxxxx xxxxxxxx It is submitted that in Mouza Jhansipatna, there are 40 nos. of Refugee families living by encroaching Plot Nos.88 and 89 under Khata No.131 of Mouza Jhansipatna since 60 years kisam of which is "Smasan". But the Smasan (cremation ground) was created on p;ortion of Plot No.138 measuring Ac.1.163 dec., Khata No.132, Rakhita Anabadi in Mouza Jhansipatna Kisam of which is Gochar. The dispute is arising out of these Smasan Plots bearing Nos.88 and 89. In compliance of the order dated 20.08.2014 passed in W.P.(C) No.15001/2014, demarcation of plot Nos.88 and 89 was made by the then Tahasildar, Tangi. After physical demarcation of both the Plots aforementioned, it was found that there are encroachments over the above plots. Accordingly, on 11.11.2014, an attempt was made to evict the encroachers from those lands so as to make the said two plots encroachment free but due to stiff resistance from the encroachers and their family members, physical eviction could not be carried out.

It is relevant to mention here that the inhabitants of Jhansipatna Mouza were using a portion of Plot No.138 measuring Ac.1.163 dec. of Khata No.132 with Kisam 'Gochar' as Smasan for last 60 years whereas the refugee Bengalies are staying over Plot Nos.88 and 89 for more than 60 years. It is ascertained from the Block Office, Tangi that some developmental works like cement concrete road, electrification, ten nos. of Government tubewells, I.A.Y. houses have been made / constructed by the Block Administration over Plot No.88 and 89.

It is further relevant to mention here that in the mean time steps have been initiated under the provisions of OGLS Act and Rules to declare another patch of land measuring Ac.0.500 dec. out of total area of Ac.1.163 dec. of Plot No.138 and an area of Ac.0.022 dec. out of total Ac.0.813 dec. of Plot No.141 of Khata No.132 in Mouza Jhansipatna, Kissam "Gochar" as 'Smasan' by changing the Kissam of land as the said plots were earlier being used as "Smasan" by the people of Jhansipatna Mouza.

xxxxxx xxxxxxxx xxxxxxxx."

6. Mr. Das, learned counsel for the Petitioners vehemently contests the above averments and states that the authorities are not interested in evicting the so-called illegal encroachers who according to him have not been residing there for the last 60 years.

7. The submissions of Mr. Das in the rejoinder affidavit filed clearly demonstrate that the petition raises highly disputed question of fact. What apperars to be essentially a civil dispute, has been converted into a writ petition. The issue involves the rights of several private parties, Opposite Parties 4 to 48, who may have different types of claim for which evidence will have to be led, examined and a determination arrived at. This kind of an elaborate exercise is not possible in a writ petition.

8. Mr. Das then refers to the observations of Supreme Court in Jagpal Singh v. State of Punjab (2011) 11 SCC 396 where certain observations have been on the need to remove encroachers from the common lands of villages. While the requirement to follow the rule of law and to preserve the common lands in villages can hardly be doubted, whether in the facts of the case there has been in fact been an encroachment and who should be removed after being declared as encroacher is a matter of determination after examining the evidence that is presented. Such an exercise is not possible to be undertaken in the present writ petition, given the disputed questions of fact. The Petitioners will have to work out their remedies in appropriate civil proceedings for this purpose in accordance with law.

9. The writ petition is disposed of with the above observations.

10. An urgent certified copy of this order be issued as per rules.

                    (Dr. S. Muralidhar)                                     ( B.P. Routray) 

                        Chief Justice                                                  Judge

Orissa High Court in Sukra Lakra & Ors. vs. M/s Shri Mahavir Ferro Alloys Pvt. Ltd. [26.08.2021]

IN THE HIGH COURT OF ORISSA AT CUTTACK 

 W.P.(C) Nos.10435 of 2014, 25922 of 2013, 21728 of 2012 and 4005 of 2014 

W.P.(C) No.10435 of 2014                                                        ... 

Sukra Lakra and others                                                                                    Petitioners 

                                                                                                    Mr. S. K. Pal, Advocate 

 -versus- 

M/s. Shri Mahavir Ferro Alloys Pvt.                                        ...           Opposite Parties 

Ltd. and others 

                                                                                                          Mr. S. N. Das, ASC 

W.P.(C) No.25922 of 2013                                                       ... 

Rajkishore Dhanwar and others                                                                      Petitioners 

                                                                                                   Mr. S. K. Pal, Advocate 

                                                                               -versus- 

M/s. Shri Mahavir Ferro Alloys Pvt.                                       ...     Opposite Parties Ltd. and another 

                                                                                                        Mr. S. N. Das, ASC 

W.P.(C) No.21728 of 2012                                                      ... 

Jambu Barla and others                                                                                 Petitioners  

                                                                                            Mr. U. K. Samal, Advocate 

-versus- 

State of Odisha and others                                                      ...          Opposite Parties 

                    Mr. Gautam Mukherji, Senior Advocate for OPP. Party No.4 and Mr. S. N. Das, ASC 

W.P.(C) No.4005 of 2014                                                       ... 

Ranjit Barwa and others                                                                               Petitioners 

                                                                                           Mr. U. K. Samal, Advocate 

 -versus- 

State of Odisha and others                                                    ...           Opposite Parties 

                                                                                                       Mr. S. N. Das, ASC 

CORAM: THE CHIEF JUSTICE 

                 JUSTICE B. P. ROUTRAY 

ORDER

26.08.2021 Order No.

17. Dr. S. Muralidhar, CJ.

1. These four petitions arise in the background of a common set of facts and are accordingly being disposed of by this common order.

2. The first petition i.e. W.P.(C) No.10435 of 2014 filed by 33 residents of village Goibhanga, P.O. Kalunga, P.S./Munsiff Panpos, District Sundargarh with a prayer that Annexure-1 to the petition, which is a notice under Section 4 (1) of the Land Acquisition Act, 1984 (LA Act) dated 21st November, 2009 should be quashed.

3. In W.P.(C) No.25922 of 2013 filed by 3 residents of village Gadhei Balanda, P.S. Brahmanitarang, District Sndargarh, the prayer is for quashing of a notification dated 22nd November, 2007 under Section 4 (1) of the LA Act on the ground that such acquisition is in violation of Section 3 (iii) of the Orissa Scheduled Areas Transfer of Immovable Property (By Scheduled Tribes) Regulation, 1956 ('the 1956 Regulation').

4. The third W.P.(C) No.21728 of 2012 is by 6 residents of village Goibhanga, P.O. Kalunga, P.S. Bramhanitaranga, District Sundargarh, which again prays for quashing of the notification dated 21st November, 2009 issued under Section 4 (1) of the LA Act.

5. The fourth W.P.(C) No.4005 of 2014 filed by 5 residents of village Goibhanga, P.O. Kalunga, P.S. Bramhanitaranga, District Sundargarh praying for a direction to quash the Lease (Industrial) Case initiated for de-reservation.

6. What is common to all these four petitions is that the land has been acquired by the State Government for the purposes of expansion of the factory of M/s. Shri Mahavir Ferro Alloys Pvt. Ltd. (which has been impleaded as Opposite Party No.1 in W.P.(C) No.10435 of 2014 and W.P.(C) No.25922 of 2013).

7. In W.P.(C) No.21728 of 2012, it is additionally pointed out that the Tahasildar, Lathikata had initiated Lease (Industrial) Case No.1 of 2012 to dereserve the land acquired in favour of IDCO. In this petition, on 14th January 2013, the Court while directing notice to issue to the Opposite Parties, the further proceedings in the aforementioned Lease (Industrial) Case No.1 of 2012 was stayed. Subsequently, on 27th January 2014, the following order was passed vacating the interim order of stay:

"Heard Mr. Samal, learned counsel for the petitioners and Mr. U.C. Patnaik, learned counsel for the intervener.

Mr. Samal, learned counsel for the petitioners submits that the present writ application has been filed seeking two fold reliefs, which are reads as follows:

"(c) issue rule Nisi calling upon the opposite parties as to why the notice under annexures-2 & 3 shall not be quashed and the initiation of Lease (Industrial) Case No.1 of 2012 shall not be quashed/dropped;

(d) if the opposite parties do not show cause or shown insufficient cause, issue a writ in the nature of mandamus or any other appropriate writ/writs, order/orders, direction/directions in quashing the notice under Annexures-2 & 3 and a further direction be made to the opposite party No.5 to drop the initiation of Lease (Industrial) Case No.1 of 2012."

Mr. Samal further submits that the land acquisition proceeding is covered under the notice (Annexures-2 & 3) whereas the land lease in favour of the intervener in Lease (Industrial) Case No.1 of 2012 appertains to certain Government land.

Learned counsel for the petitioner prays to restrict the writ application to the challenge made to the acquisition notice under Annexures-2 & 3 alone and seeks liberty to file a separate application, if required, against the lease granted in Lease (Industrial) Case No.1 of 2012. The prayer in the present writ petition is confined to the land acquisition proceeding.

In view of the above, necessary correction be made in the prayer and liberty as sought for is also granted.

Since the matter relates to land acquisition proceeding, the same be listed before the assigned Bench for consideration.

Interim order dated 14.01.2013 passed in Misc. Case No.18669 of 2012 stands vacated."

8. As far as W.P.(C) No.25922 of 2013 is concerned, notice was issued to the Opposite Parties on 12th March, 2014 and on 2nd August 2016, a status quo order was passed in respect of the land measuring an area of Ac.39 dec. in Mouza-Jaiabahal under Brahmanitaranga Police Station in the district of Sundargarh. In W.P.(C) No.10435 of 2014, notice was issued on 4th August, 2014 and IDCO was impleaded as a party by the subsequent order dated 21st January, 2015. However, no interim order was passed at any stage.

9. There have been important developments in these cases since the filing of the present petitions. There being no stay of the land acquisition proceedings at any time. In fact there could not have been such an interim order since, as will be noticed hereafter, the entire land acquisition proceedings including the passing of the Award was concluded even before the filing of any of these petitions. The fact remains that the challenge to the notifications under Section 4 (1) of the LA Act was raised after the conclusion of the land acquisition proceedings.

10. Following the notification dated 21st November, 2009 under Section 4 (1) of the LA Act, the declaration under Section 6 of the LA Act was issued on 12th August, 2010. The consequential Award was published on 9th January 2012. Only thereafter was W.P.(C) No.21728 of 2012 filed, on 14th November, 2012. W.P.(C) No.25922 of 2013 was filed on 27th November, 2013. W.P.(C) No.4005 of 2014 was filed on 26th February, 2014 and W.P.(C) No.10435 of 2014 was filed on 4th June, 2014. The Court has been informed that the lands in question were handed over to IDCO on 7th July, 2010 itself. The railway siding on the extra land acquired for the factory of Opposite Party No.1 in W.P.(C) No.10435 of 2014 and W.P.(C) No.25922 of 2013 has already come up. In other words, the purposes of the acquisition already stand served.

11. There is no particular reason given for not filing these petitions before the passing of the Award. Nothing is indicated in these petitions to explain the delay. Also the subsequent events, particularly the passing of the Award, do not appear to be accounted for in any of the petitions.

12. Learned counsel for the Petitioners in W.P.(C) No.10435 of 2014 and W.P.(C) No.25922 of 2013 urged that the mandatory procedure of hearing objections under Section 5-A of the LA Act has not been complied with. Reliance is placed in this context on the decisions in Radhy Shyam v. State of Uttar Pradesh, (2011) 5 SCC 553 and Devendra Singh v. State of Uttar Pradesh, 2011 (5) Supreme 466.

13. Mr. Samal, learned counsel appearing for the Petitioners in the companion petitions urged that the mandatory provisions of the Regulation Act applicable to tribal lands have not been complied with. Reliance is placed on Jagpal Singh v. State of Punjab, (2011) 11 SCC 396 to urge that the lands in question are public utility lands and cannot possibly be de-reserved. Secondly, it is pointed out that the proceedings have been initiated by the Tahasildar and not by the Collector and, therefore, there is a violation of Section 3A (1) of the Orissa Government Land Settlement Act, 1962 (OGLS Act).

14. Mr. Das, learned Additional Standing Counsel appearing for the State refutes the last mentioned contention and points out that the initiation of the de-reservation proceedings was indeed by the Collector. He refers to the counter affidavit filed in W.P.(C) No.21728 of 2012. He refers to the fact that not only the Award has been passed but also some of the land owners have already received payments and the challenge has been made long after these steps have been completed.

15. Indeed, the question of belated challenge to the land acquisition proceedings is significant. In Sawaran Lata v. State of Haryana, 2010 (4) SCC 532, the Supreme Court held as under:

"When the person challenges Section 4 notification on any ground, it should be challenged within a reasonable period, and if the acquisition is challenged at a belated stage, the petition deserves to be dismissed only on this count".

It has been further held that ... If the interested person allows the grass to grow under his feet by allowing the acquisition proceedings to go on and reach its terminus in the award and possession is taken in furtherance thereof and vested in the State free from all encumbrances, the slumbering interested person would be told off the gates of the Court that his grievance should not be entertained..."

16. The counter affidavit filed also points out that after issuance of the above notifications under Section 4 (1) of the LA Act, no objections were received under Section 5 (A) of the LA Act.

17. As regards de-reservation proceedings in Lease (Industrial) Case No.1 of 2012, it is pointed out that this was initiated in 2010 but the actual de-reservation orders were passed by the Collector, Sundargarh on 10th April, 2012. After the de-reservation and correction of the ROR, IDCO submitted an application for settlement / alienation of the Government land. To this, objections were invited by an order dated 2nd November, 2012.

18. It is further pointed out that the Petitioners have not given the particulars of the land over which they claim to be in cultivating possession. They have also not produced documents to show ownership of the land. Indeed, the Court finds that the subsequent developments have rendered a challenge raised by these writ Petitioners futile.

19. In the counter affidavit filed on behalf of IDCO, it is pointed out that the contention that the Petitioners had developed the forest land and made it for cultivation in terms of the Scheduled Tribes and Other Dwellers (Recognition of the Forest Rights Act), 2006 is a false one since the land has been registered as "Patita Land" in the ROR. IDCO points out that it had already deposited a sum of Rs.3,74,24,663/- with the Land Acquisition Officer, Sundargarh on 7th July, 2010 for payment of compensation.

20. The Court is, therefore, not inclined to interfere with the notifications issued under Section 4 of the LA Act at this stage when all of the above stages of the acquisition processes already stood completed even before the writ petitions came to be filed.

21. The writ petitions are according dismissed, but in the circumstances, with no order as to costs. An urgent certified copy of this order be issued as per rules.

                        (Dr. S. Muralidhar)                                              (B.P. Routray) 

                            Chief Justice                                                           Judge

Orissa High Court in Lukrak Alias Ludrak Sunari vs State of Orissa [Order dated 17.05.2017]

Orissa High Court

SA--140/1990 (17 May, 2017)

PRESENT: THE HONOURABLE DR. JUSTICE A.K.RATH 

Date of hearing: 12.05.2017 : 

Date of judgment: 17.05.2017 

Dr. A.K.Rath, J 

This is plaintiffs appeal against a reversing judgment in a suit for declaration of right, title and interest and permanent injunction.

2. The suit schedule land is a tank and its ridge appertaining to Khata No.170, Plot Nos.617 and 618, area Ac.3.30 dec. and Ac.0.41 dec. of Mouza-Sikuan Kular in the district Kalahandi.

3. The case of the plaintiff is that one Chandra Sunari was the original owner of the suit tank. He had excavated the tank for the purpose of irrigation and pisciculture. There was partition amongst the sons of Chandra in the year 1930. The suit tank fell to the share of Lambodar. After his death, the plaintiff being the successor, inherited the suit property. The plaintiff is in possession of the suit tank peacefully, continuously and openly for more than 40 years and as such, perfected title by way of adverse possession. He came to know that the suit tank had been recorded in the name of the State Government under Rakhit Khata. In spite of his protest, the Block Development Officer, Khariar, defendant no.3 leased out the suit tank to defendant no.4. With this factual scenario, he instituted the suit seeking the reliefs mentioned supra.

4. Defendants filed written statement denying the assertions made in the plaint. It is pleaded that Chandra Sunari had no semblance of right, title and interest over the suit reservoir. He had not constructed the same. The tank is recorded in the name of the State of Orissa under Rakhit Khata. The assertion of the plaintiff that he was in possession of the suit tank for more than 40 years peacefully and perfected title by way of adverse possession had been specifically denied. The suit reservoir had been transferred to the Duajhar Gram Panchayat on 11.6.1956 by the Government of Orissa in the Revenue Department. Neither the plaintiff nor his forefather had ever possessed the suit tank. The BDO, Khariar, defendant no.3, had leased out the suit tank to defendant no.4.

5. On the inter se pleadings of the parties, learned trial court struck six issues. To substantiate the case, the plaintiff had examined two witnesses and on his behalf, one document had been exhibited. On behalf of the defendants, two witnesses had been examined and five documents exhibited. Placing reliance on Jamanbandi register, vide Ext.1, learned trial court came to hold that the suit land was in possession of Chandra Sunari. He excavated the suit tank. He was in possession of the same. It further held thatevidence of D.W.1 shows that the suit property belongs to the State and has been recorded in the Rakhita Khata. The plaintiff does not dispute the claim of the defendants. The suit tank was in possession of the plaintiff since the time of his grand-father. The plaintiff had perfected title by way of adverse possession. Held so, it decreed the suit.

6. Assailing the judgment and decree of the learned trial court, the State of Orissa filed Title Appeal No.13/14 of 1986-89 before the learned Sub-Judge, Nawapara. The learned appellate court, on a threadbare analysis of the evidence, both oral and documentary as well as pleadings, came to hold that Plot Nos.617 and 618 stands recorded in the name of the State of Orissa as reserve. Ext.B-permanent register of sairat shows that Plot Nos.117 and 118 measuring Ac.3.30 decimals and Ac.0.41 decimals of MauzaSikuarakala which are tank and ridge had been transferred to the Gram Panchayat for pisciculture. The same is maintained by the Tahasil Office. Ext.C discloses that the suit tank had been transferred to Dua Jhar Gram Panchayat for pisciculture. Ext.E- register maintained by the BDO discloses that the tank had been transferred to the Gram Panchayat. It further held that the suit tank is the property of the State and plaintiff has no semblance of right, title and interest over the same. Held so, learned appellate court allowed the appeal. It is apt to state here that during pendency of the second appeal, the appellant no.1 died, whereafter his legal representatives have been brought on record.

7. The second appeal was admitted on the following substantial question of law enumerated in Ground No.(ii). The same is -

(ii) Whether the learned lower appellate court can ignore the principles laid down inarticles 64 and 65 of the limitation act to non-suit the plaintiff. In the facts and circumstances of this case the suit land having been recorded in the name of plaintiffs grand father since 1922-23 (Ext.1) and he being in continuous possession since then, the plaintiff has acquired title to the suit property. In course of hearing the following substantial question of law was framed.

1. Whether the plaintiff can maintain the suit for declaration of title on the basis of adverse possession in the absence of date of entry into the suit land ?

8. Mr. Balakrishna, learned counsel for the appellants, submitted that Chandra Sunari was the original owner of the suit land. He had excavated the tank over the suit property for the purpose of irrigation and pisciculture. In the family partition amongst his sons, the suit tank fell to the share of the father of the plaintiff. After the death of his father, the plaintiff inherited the suit land along with the other properties. Jamanbandi, Ext. 1, shows that the suit lands as per 1922-23 settlement records have been improved by Chandra Sunari. There is no reason to disbelieve the same. He further submitted that the plaintiff was in possession over the suit land. He was not dispossessed from the suit land at any point of time and as such, he has perfected title by way of adverse possession. There is no evidence on record that the suit tank was leased out to defendant no.4.

9. Per contra, Mr. Mishra, learned Addl. Standing Counsel, submitted that the suit land has been recorded in the name of the Government under Rakhit Khata. The suit lands are the property of the Government. There is no material on record that the plaintiff has perfected title by way of adverse possession. The suit tank is recorded in the name of the State and the same was leased out to defendant no.4. The plaintiff has no semblance of right, title and interest over the same.

10. Before proceeding further, it is apt to refer to the decision of the apex Court in the case of Karnataka Board of Wakf v. Govt. of India (2004) 10 SCC 779. The apex Court at para 11 of the report observed as under :- "In the eye of the law, an owner would be deemed to be in possession of a property so long as there is no intrusion. Non-use of the property by the owner even for a long time won't affect his title. But the position will be altered when another person takes possession of the property and asserts a right over it. Adverse possession is a hostile possession by clearly asserting hostile title in denial of the title of the true owner. It is a well-settled principle that a party claiming adverse possession must prove that his possession is "nec vi, nec clam, nec precario", that is, peaceful, open and continuous. The possession must be adequate in continuity, in publicity and in extent to show that their possession is adverse to the true owner. It must start with a wrongful disposition of the rightful owner and be actual, visible, exclusive, hostile and continued over the statutory period." The court further observed that plea of adverse possession is not a pure question of law but a blended one of fact and law. Therefore, a person who claims adverse possession should show: (a) on what date he came into possession, (b) what was the nature of his possession, (c) whether the factum of possession was known to the other party, (d) how long his possession has continued, and (e) his possession was open and undisturbed. A person pleading adverse possession has no equities in his favour. Since he is trying to defeat the rights of the true owner, it is for him to clearly plead and establish all facts necessary to establish his adverse possession. (Emphasis laid)

11. The suit land is a big tank having area of Ac.3.71 dec. The same has been recorded in the name of the State Government. It was transferred to Dua Jhar Gram Panchayat. The tank was leased out to defendant no.4 to allot the job work under the food for work programme. There is no pleading with regard to the date of entry of the plaintiff into the suit land. Mere possession of the suit land for long time is not suffice to hold that the plaintiff had perfected title by way of adverse possession, unless the classical requirements of adverse possession nec vi, nec clam, nec precario are pleaded and proved. Adverse possession is a mixed question of fact and law. On a threadbare analysis of the evidence available on record, both oral and documentary as well as pleadings, learned appellate court has negatived the plea of adverse possession of the plaintiff over the suit tank. Findings recorded by the learned appellate court cannot be said to be perverse. The substantial questions of law are answered accordingly.

12. Before parting with the case, it is apt to refer to a decision of the apex Court in the case of Jagpal Singh and others v. State of Punjab and others (2011) 11 SCC 396. The apex Court has expressed its concern over the public utility on lands in villages used for centuries used for the common benefit of the villagers of the village and held thus:- 

2.Since time immemorial there have been common lands inhering in the village communities in India, variously called gram sabha land, gram panchayat land, (in many North Indian States), shamlat deh (in Punjab etc.), mandaveli and poramboke land (in South India), Kalam, Maidan, etc., depending on the nature of user. These public utility lands in the villages were for centuries used for the common benefit of the villagers of the village such as ponds for various purposes e.g. for their cattle to drink and bathe, for storing their harvested grain, as grazing ground for the cattle, threshing floor, maidan for playing by children, carnivals, circuses, ramlila, cart stands, water bodies, passages, cremation ground or graveyards, etc. These lands stood vested through local laws in the State, which handed over their management to Gram Sabhas/Gram Panchayats. They were generally treated as inalienable in order that their status as community land be preserved. There were no doubt some exceptions to this rule which permitted the Gram Sabha/Gram Panchayat to lease out some of this land to landless labourers and members of the scheduled castes/tribes, but this was only to be done in exceptional cases.
 3.The protection of commons rights of the villagers were so zealously protected that some legislation expressly mentioned that even the vesting of the property with the State did not mean that the common rights of villagers were lost by such vesting. Thus, inChigurupati Venkata Subbayya vs. Paladuge Anjayya, 1972(1) SCC 521 this Court observed : "23. It is true that the suit lands in view of section 3 of the estates abolition act did vest in the Government. That by itself does not mean that the rights of the community over it were taken away. Our attention has not been invited to any provision of law under which the rights of the community over those lands can be said to have been taken away.. The rights of the community over the suit lands were not created by the principal or any other landholder. Hence those rights cannot be said to have been abrogated by section 3(c) of the estates abolition act. What we have witnessed since Independence, however, is that in large parts of the country this common village land has been grabbed by unscrupulous persons using muscle power, money power or political clout, and in many States now there is not an inch of such land left for the common use of the people of the village, though it may exist on paper. People with power and pelf operating in villages all over India systematically encroached upon communal lands and put them to uses totally inconsistent with their original character, for personal aggrandisement at the cost of the village community. This was done with active connivance of the State authorities and local powerful vested interests and goondas. This appeal is a glaring example of this lamentable state of affairs. Held so, the apex Court issued the following directions:-

 Before parting with this case we give directions to all the State Governments in the country that they should prepare schemes for eviction of illegal/unauthorized occupants of Gram Sabha/Gram Panchayat/ Poramboke/ Shamlat land and these must be restored to the Gram Sabha/ Gram Panchayat for the common use of villagers of the village. For this purpose the Chief Secretaries of all State Governments/Union Territories in India are directed to do the needful, taking the help of other senior officers of the Governments. The said scheme should provide for the speedy eviction of such illegal occupant, after giving him a show cause notice and a brief hearing. Long duration of such illegal occupation or huge expenditure in making constructions thereon or political connections must not be treated as a justification for condoning this illegal act or for regularizing the illegal possession. Regularization should only be permitted in exceptional cases e.g. where lease has been granted under some Government notification to landless labourers or members of Scheduled Castes/Scheduled Tribes, or where there is already a school, dispensary or other public utility on the land.

13. In the result, the appeal is dismissed. No costs. DR. A.K.RATH, J Orissa High Court, Cuttack. The 17th May, 2017/Pradeep.

Source : https://www.casemine.com/judgement/in/5927089f4a93264758bc2f2e

Orissa High Court in Muralilal Patel vs. State of Orissa & Anr. [Order dated 12.04.2017]

Orissa High Court

RSA--18/2005 (12 Apr, 2017)

PRESENT: THE HONOURABLE DR. JUSTICE A.K.RATH 

Date of Hearing: 06.04.2017 & Date of Judgment:12.04.2017 

Dr.A.K.RATH, J. 

This is an appeal by the plaintiff.

2. The dispute pertains to a big tank having an area of Ac.36.68 dec. of land appertaining to C.S. Holding No.184, Khata Nos.1106, 1107, 1264, 1265, 1302 and 1306 of mouza Sikabahanga in the district of Bolangir.

3. The case of the plaintiff is that his great grandfather Pati Sai alias Patel was the Gountia (Thikadar) of village Sikabahenga. Thereafter his grandson Hari Sai (Patel) and after him, his son Dharamsingh Patel was the Gountia of the village till the year 1950. The village was originally a forest. Pati Sai had cleared the forest and settled there. He reclaimed some waste lands and excavated a tank. He was using the water of the tank for irrigation of his land. He was also carrying on pisciculture. On 27.11.1822, the then Superintendent of Patna-State had granted protected status to him over the tank due to his long possession and improvement made over it. In 1894 the tank was recorded in the name of Pati Gountia in Jalamagna khata. During the settlement of the year 1916, the same was recorded in the name of Hari Sai Patel. While the mater stood thus, during the settlement of the year 1936, all the tanks and tanks of Patna-State, whether private or public, were recorded in the name of Patna-State in Jalchar khata. In spite of the same, Hari Sai Patel remained in possession of the same. There was discontentment amongst the subjects of Patna-State due to inclusion of all the water tanks of the State in Jalachar khata. The King of Patna-State issued a proclamation that inclusion of water tanks in Government Jalchar khata would not affect the right of its owner. He invited objection from the persons who had interest on those tanks. Accordingly, Hari Sai Patel filed a petition before the Sub-Divisional Officer, Revenue of the then Patna-State claiming his ownership and fishery right over the suit tank. After merger of Patna-State with the Union of India, the said case was transferred to the Superintendent of Land Records and renumbered as Fishery Case No.25 of 1950. The Superintendent of Land Records by order dated 14.3.50/14.9.51 issued Patta of the suit tank in favour of Hari Sai. After Hari Sai his son Dharamsingh Patel became the owner of the tank. The Government of Orissa transferred the same to Saunthpur Gram Panchayat and, thereafter to the Irrigation Department of the Government of Orissa. The transfer was not lawful and binding on him. The defendants have no semblance of right, title, interest and possession over the tank. On 1.7.1994, the defendants objected the plaintiff and his father to do pisciculture. After issuing notice to the Collector, Bolangir under section 80 of the c.p.c. and the Sarpanch of Saunthpur Gram Panchayat under section 138 of the orissa gram panchayat act, he instituted the suit for declaration of right, title and interest over the suit tank, confirmation of his possession with right of pisciculture over it, in alternate delivery possession of the same to him evicting the defendants and permanent injunction restraining the defendants from entering into the tank.

4. The State of Orissa, defendant no.1 contested the suit without filing the written statement. The defendant no.2 filed a written statement denying the assertions made in the plaint. According to defendant no.2, the plaintiff has no right, title, interest and possession over the suit tank. The lands, which were in possession of Dharamsingh Patel as Thikadar of the village, had been settled in his name as raiyat after abolition of Thakidari system. The Sub-Divisional Officer, Bolangir had transferred the suit tank to Saunthpur Gram Panchayat on 27.5.1962. Since then the Gram Panchayat is exercising its ownership over it. Village Sikabahanga was under Chhatamakhana Gram Panchayat for a certain period. Dharamsingh Patel, father of the plaintiff, was the Sarpanch of Chhatamakhana Gram Panchayat in the year 1967-68. He had maintained the suit tank on behalf of the Gram Panchayat. The plaintiff and his relatives had taken lease of the suit tank from Chhatamakhana Gram Panchayat in the year 1970-71, 1972-73 and 1974-75 respectively. From the year 1991, the suit tank is under the direct supervision of the Minor Irrigation Department of the Government of Orissa and the same is reserved for public purpose. The Minor Irrigation Department has spent a huge amount of money for its maintenance. No notice had been issued to the defendants before institution of the suit.

5. Stemming on the pleadings of the parties, the learned trial court struck eleven issues. To substantiate the case, the plaintiff had examined three witnesses and on his behalf, nineteen documents had been exhibited. The defendants had examined two witnesses and on their behalf, seven documents had been exhibited. The learned trial court, on a thread bare analysis of the evidence on record, both oral and documentary, and on an anatomy of the pleadings, came to hold that father of the plaintiff and the plaintiff had not exercised their rights of fishery over the suit tank after its transfer to Chhatamakhana G.P. in the year 1962 and latter to Saunthpur Gram Panchayat except taking lease of the same for the year 1974-75. The other persons had taken lease of the tank from the Panchayat annually in between the year 1967 to 1994. It further held that the plaintiff and his ancestors were neither in possession of the suit tank nor had exercised fishery right over it in between 1950-95. Held so, the learned trial court dismissed the suit. The unsuccessful plaintiff challenged the judgment and decree of the learned trial court before the learned District Judge, Bolangir, which was subsequently transferred to the court of the learned Addl. District Judge, (FTC), Bolangir and renumbered as Title Appeal No.27/49 of 2000-02. The said appeal was dismissed.

6. The Second Appeal was admitted on 1.12.2006 on the following substantial questions of law:

1. When defendants do not claim any right over the suit tank on the basis of adverse possession, whether findings of the learned courts below that the suit is barred by Article 64 and 65 of Limitation Act is sustainable in the eye of law ?

2. When both the courts below have not discarded the most important and material documentary evidences like Ext.2 to Ext.7 and Ext.12, Ext.13, Ext.14 & 14(A) and Ext.15 which show that land record, Superintendent has conferred fishery right on the father of the plaintiff, whether dismissal of the suit for declaration of the fishery right of the plaintiff on the ground that plaintiff is not in possession of the suit tank is illegal, perverse and is not sustainable in the eye of law ?

3. When defendants do not plead and prove that from which date they possessed the suit tank adversely to the interest of plaintiff, whether findings of both Courts below that fishery right of the plaintiff has been extinguished can be sustained in the eye of law ?

4. Whether findings of the Court below that defendant no.1 is in possession of the suit land cannot be sustained in the eye of law when the defendant no.1 has failed to produce and prove so called lease deed on the basis of which he claims to be in possession of the suit tank ?

7. Heard Mr.Budhiram Das, learned Advocate for the appellant and Mr.Swayambhu Mishra, learned Additional Standing Counsel for respondent no.1.

8. Mr.Das, learned Advocate for the appellant submitted that the great grandfather of the plaintiff was the Gountia of the village. He excavated the suit tank. He was using the water of the said tank for irrigation of his agricultural land. He was rearing fish on the tank. After him, his grandson Hari Sai Patel and thereafter his son Dharmsingh Patel became the Gountia of the village. The then Supt. of Patna-State had granted protected status to Pati Gountia over the said tank. In 1894 settlement, the suit tank was recorded in the name of Pati Gountia in Jalamagna khata. The same was also recorded in the name of Hari Sai Patel in settlement year 1916. However, in the settlement of the year 1936, the same was recorded in the name of Patna-State in Jalachar khata, but then Hari Sai Patel remained in possession of the same. When the King of Patna- State issued a proclamation inviting objection from the persons, who had interest over the tank, Hari Sai Patel filed a petition on 21.2.1942 before the Sub-Divisional Officer, Revenue, Patna-State claiming his ownership and fishery right over the suit tank. After merger of the Patna-State with the Union of India by order dated 14.3.50/14.9.51, the Suptd. of Land Records issued patta in favour of Hari Sai Patel. After Hari Sai Patel, his son Dharmasingh Patel became the owner of the said tank. He further submitted that notwithstanding transfer of land in favour of Saunthapur Gram Panchayat and therafter Irrigation Department, the plaintiff has unfettered right to carry on pisciculture over the land.

9. Per contra, Mr.Mishra, learned Additional Standing Counsel for respondent no.1 submitted that Gountia system in the State has been abolished. After abolition of Gountia system, the State of Orissa became the paramount owner of the suit tank. The lands, which were in khas possession of the Gountia, had been settled in his name. Neither the ancestors of the plaintiff nor the plaintiff was in possession of the suit tank. The suit tank was transferred by the State in favour of Saunthapur Gram Panchayat. The father of the plaintiff was Sarpanch of Chhatamakhana Gram Panchayat in the year 1967-68 and had maintained the suit tank on behalf of the said Gram Panchayat. The plaintiff and his relatives had taken lease of the suit tank from Chhatamakhana Gram Panchayat in the year 1970-71, 1972-73 and 1974-75. Since 1991 the suit tank is under the direct supervision of Minor Irrigation Department of Orissa.

10. In Gangadhar Sai and others Vrs. The Collector, Bolangir and others (S.A.No.90 of 1994 disposed of on 3.3.2017), the question arose as to whether right to catch and carry away the fish is a profit or benefit arising out of land is immovable property within the meaning and ambit of the Transfer of Property Act, and its sale has to be by means of a registered instrument in case its value exceeds Rs.100/-.

11. This Court held : Ananda Behera and another v. State of Orissa and another, AIR 1956 SC 17 is a locus classicus on the subject. The dispute pertained to fishery rights of the plaintiffs over a portion of Chilka lake. The estate was vested in the State of Orissa under the Orissa Estates Abolition Act. Long before vesting of the estate, the petitioners had entered into contracts with the ex proprietor Raja of Parikud and had obtained from the latter, on payment of heavy sums, licences for catching and appropriating all the fish from the fisheries detailed in the schedule of the petition. The State of Orissa refused to recognise the licenses and were about to re- auction the rights. At this juncture, the petitioner had approached the apex Court under article 32 of the constitution of indiaon the ground that their fundamental rights enshrined under Articles 19(1)(f) and 31 (I) were infringed. The question arose before the apex Court as to whether the petitioners had acquired any rights or interests in "property" by their several "purchases". The Constitution Bench of the apex Court held that the lake is immoveable property. After promulgation of the Orissa Estate Abolition Act, it vested in the State of Orissa. Right to catch and carry away fish in specific sections of the lake over a specified future period amounts to licence to enter on the land coupled with a grant to catch and carry away the fish, that is to say, it is a profit a prendre which has been regarded as a benefit that arises out of the land and, as such, is immoveable property. If profit a prendre is regarded as tangible immoveable property and the property value is more than Rs.100/- it requires registration under section 54 of the transfer of property act. The same view was followed in the Bihar Eastern Gangetic Fishermen Co-operative Society Ltd. v. Sipahi Singh and others, AIR 1977 SC 2149. The apex Court in uncertain terms held that the right to catch and carry away the fish being a 'profit a prendre' i.e. a profit or benefit arising out of the land, it has to be regarded as immovable property within the meaning of the Transfer of Property Act, read in the light of section 3 (26) of the general clauses act. If a 'profit a prendre' is tangible immovable property, its sale has to be by means of a registered instrument in case its value exceeds Rs.100/- because of section 54 of the transfer of property act. If it is intangible, its sale is required to be effected by a registered instrument whatever its value. Therefore, in either of the two situations, the grant of the 'profit a prendre' has to be by means of a registered instrument. Accordingly, the transaction of sale of the right to catch and carry away the fish if not effected by means of a registered instrument would pass no title or interest.

12. The ratio in the case of Gangadhar Sai (supra) applies with full force to the facts of this case.

13. The dispute pertains to the plaintiffs claim over the suit tank, the value of which, by no stretch of imagination is less than Rs.100/-. Right to catch and carry away the fish is a profit a prendre. The same is construed to be immovable property within the meaning and ambit of the Transfer of Property Act, 1982. Its sale has to be by means of a registered instrument in case its value exceeds Rs.100/- Since no registered instrument has been executed, the plaintiffs have no rights over the tank in question. Further the Gountia system in the State has been abolished. The tank vested in the State free from all encumbrances. The State of Orissa is the paramount owner of the tank.

14. Resultantly, the appeal fails and is dismissed. No costs.

15. Before parting with the case, it is apt to refer to a decision of the apex Court in the case of Jagpal Singh and others Vrs. State of Punjab and others (2011) 11 SCC 396. The apex Court has expressed its concern over the public utility on lands in villages used for centuries used for the common benefit of the villagers of the village and held thus:-

2.Since time immemorial there have been common lands inhering in the village communities in India, variously called gram sabha land, gram panchayat land, (in many North Indian States), shamlat deh (in Punjab etc.), mandaveli and poramboke land (in South India), Kalam, Maidan, etc., depending on the nature of user. These public utility lands in the villages were for centuries used for the common benefit of the villagers of the village such as ponds for various purposes e.g. for their cattle to drink and bathe, for storing their harvested grain, as grazing ground for the cattle, threshing floor, maidan for playing by children, carnivals, circuses, ramlila, cart stands, water bodies, passages, cremation ground or graveyards, etc. These lands stood vested through local laws in the State, which handed over their management to Gram Sabhas/Gram Panchayats. They were generally treated as inalienable in order that their status as community land be preserved. There were no doubt some exceptions to this rule which permitted the Gram Sabha/Gram Panchayat to lease out some of this land to landless labourers and members of the scheduled castes/tribes, but this was only to be done in exceptional cases.

3.The protection of commons rights of the villagers were so zealously protected that some legislation expressly mentioned that even the vesting of the property with the State did not mean that the common rights of villagers were lost by such vesting. Thus, in Chigurupati Venkata Subbayya vs. Paladuge Anjayya, 1972(1) SCC 521 (529) this Court observed : "23. It is true that the suit lands in view of section 3 of the estates abolition act did vest in the Government. That by itself does not mean that the rights of the community over it were taken away. Our attention has not been invited to any provision of law under which the rights of the community over those lands can be said to have been taken away.. The rights of the community over the suit lands were not created by the principal or any other landholder. Hence those rights cannot be said to have been abrogated by section 3(c) of the estates abolition act."

4. What we have witnessed since Independence, however, is that in large parts of the country this common village land has been grabbed by unscrupulous persons using muscle power, money power or political clout, and in many States now there is not an inch of such land left for the common use of the people of the village, though it may exist on paper. People with power and pelf operating in villages all over India systematically encroached upon communal lands and put them to uses totally inconsistent with its original character, for personal aggrandizement at the cost of the village community. This was done with active connivance of the State authorities and local powerful vested interests and goondas. This appeal is a glaring example of this lamentable state of affairs. Held so, the apex Court issued the following directions:-

23. Before parting with this case we give directions to all the State Governments in the country that they should prepare schemes for eviction of illegal/unauthorized occupants of Gram Sabha/Gram Panchayat/ Poramboke/ Shamlat land and these must be restored to the Gram Sabha/ Gram Panchayat for the common use of villagers of the village. For this purpose the Chief Secretaries of all State Governments/Union Territories in India are directed to do the needful, taking the help of other senior officers of the Governments. The said scheme should provide for the speedy eviction of such illegal occupant, after giving him a show cause notice and a brief hearing. Long duration of such illegal occupation or huge expenditure in making constructions thereon or political connections must not be treated as a justification for condoning this illegal act or for regularizing the illegal possession. Regularization should only be permitted in exceptional cases e.g. where lease has been granted under some Government notification to landless labourers or members of Scheduled Castes/Scheduled Tribes, or where there is already a school, dispensary or other public utility on the land. ....

 Dr.A.K.Rath, J. Orissa High Court, Cuttack. The 12th April, 2017/CRB.

Source : https://www.casemine.com/judgement/in/596a0e4dce686e4be9d7b8f8