Ori HC | Decision taken on land under Schedule Area must be in the direction of securing rights of citizens as guaranteed under the Constitution

Orissa High Court: D. Dash J. dismissed the petition on the ground that State being the owner of the land under Scheduled Area as per the Scheduled Areas (States of Bihar, Gujarat, Madhyapradesh and Odisha) Order, 1977 in exercise of power conferred under 5th Schedule of the Constitution of India is has a solemn function and is under duty as ordained under the Constitution in securing its citizens and their enjoyment of the rights as guaranteed to them under the Constitution and any decision taken by the State in the furtherance of the said objective is valid in the eyes of law.

The present writ petition has been represented by counsel/s  A.K. Sahoo, S.Pradhan and N. Mallick on behalf of petitioners  S. Palit AGA on behalf of Opposite Parties 1 to 4, J. Bhuyan, A. Routray, D. Behera and P.K. Jena; S. Jena, G.B. Jena J. Mohanty on behalf of intervenors.

Facts

  1. The villages, namely, Kaladi and Tilakpada under Khajuripada Tahasil in the sub-division of Kandhamal of the district of Kandhamal is a Scheduled Area as per 5th Schedule of the Constitution of India.
  2. OP 4 suddenly affixed a proclamation/notification in mouza Kaladi and Tilakpada regarding establishment of Durgapati 8th Specialized India Reserved Battalion (hereinafter called as the “Battalion”) and for the purpose, ten plots of land of Gochar kisam in mouza Kaladi under Khata No. 218 have been converted to kisam Patita under Khata no. 220.
  3. The petitioners and others had raised serious objection to such conversion of kisam of land by notice dated 21.12.2018 which were not been duly considered. A proclamation was made by Opposite Party 4 on 11.07.2016 for establishment of the Battalion over the converted land.
  4. A village meeting was convened deprecating the said conversion of the land and it was decided to raise objection in proper quarters.
  5. The original petitioner’s 2, 3 and 5 later filed three affidavits separately on 27.1.2020 stating that presently they do not have any objection since the Government has decided for establishment of a Medical College and Hospital over that land and has decided to shift the Battalion to a nearby place where the constructions for the establishment of the Battalion have already started, and they have come to be added as opposite parties 6 to 12  as their names were deleted in the cause title as petitioners (hereinafter called as “intervenor petitioners)
  6. The intervenor petitioners have stated that deployment of Battalion is necessary to combat the prevailing Maoist activity in the district of Kandhamal and other adjacent district for progress of developmental process and emphasized that there should be establishment of Battalion over the land as it is earmarked for the same purpose and should not be used for any other purpose, whatsoever including the setting up of Medical College and Hospital.
  7. The OP’s 13 to 18 were added by a belated intervention application stating that the district being a riot prone area and since had witnessed a serious communal riot in December, 2007, the decision for establishment of the Battalion need be carried out. They further submitted that the conversion of the kisam of the land from Gochar to Patita is not in contravention of the provision of PESA. They further submitted that the writ application has been filed with ulterior motive to foil the decision of the Government for establishment of the Battalion.

Contentions made by the petitioners:

  1. The said land is kept for being used for grazing of cattle by the members of the locality.
  2. The land in question in the area being within the declared Scheduled Area, the provisions of Panchayats (Extension to the Scheduled Areas) Act, 1996 (PESA) is fully applicable. So the conversion of the kisam of the land from Gochar to Patita is in contravention of the provisions of clause (i) and (n) of Section 4 of PESA and hence the conversion of kisam of land is illegal and thus liable to be quashed.
  3. It was further submitted that on 21.12.2015, notification as to establishment of the Battalion at Mouza-Kaladi had been published after conversion of the kisam of the land from Gochar to Patita. On 11.2.2016 and 26.2.2016, communications were made for the awareness of the general public as regards such move inviting their objections/suggestions, if any. On 11.7.2016, proclamation was issued for establishment of the Battalion. On 10.8.2016, the petitioners and others raised their objection in the above connection as regards the establishment of the Battalion on grounds of contravention of clause (i) and (n) of section 4 of PESA and existence of burial ground over the land.

The arguments made by OP’s 2 & 4:

  1. All the procedures as prescribed in Odisha Government Land Settlement Act and rules made thereunder have been scrupulously followed in the matter of alienation of the land after said conversion of kisam of land.
  2. It was further submitted that the villagers were given the opportunity to raise their objection at every stage and the decision was taken after the objections were duly heard.
  3. The provisions of PESA do not at all get attracted to the subject matter, viewed with the purpose hence the decision so taken is not in contravention of clause (i) and (n) of section 4 of PESA and such process of alienation does not also affect any individual right.
  4. It was further averred that the objections raised are with ulterior motive with a bid to somehow put to block the process and move of the State for prevention of Naxalite activities in the area, which has already witnessed a communal riot as also in relation to serious law and order problems.
  5. It was submitted that Government took a decision for establishment of a Medical College and Hospital in the area using this Government land vide order dated 11.01.2017 as the establishment of the Battalion was urgent and the Government was compelled to shift the construction of the Battalion to a nearby place in the adjoining district where the construction work has already commenced so far which at present the question of establishment of a Battalion over the land in question is a foregone conclusion. He, however, submitted that it makes no difference in the matter of establishment of the Battalion at Belaguntha in the district of Ganjam, which is at a short distance from the present place as that is also an ideal location best suited for the purpose. It was submitted that the decision for establishment of the Battalion was for the benefit of the general public and so also the present decision for establishment of Medical College and Hospital in catering the need of the inhabitants of the Scheduled Area in getting proper and advanced health care at door step, which is the need of the hour.
  6. The submission of the intervenor opposite parties that establishment of the Battalion is not objected to and it be established in the place is clearly a mischievous one when it is quite certain that the same is no more possible.
  7. It was further averred that the intervenor-petitioners have come when it has clear that the move of the original petitioners as laid would not succeed in questioning the conversion of kisam of land.

Observations of the High Court:

  1. The Court observed the State is the owner of the land and has followed the procedure prescribed under Odisha Government Land Settlement Act as the Government has not gone for acquisition of the land but took a decision that its land is ideal for use for the purpose other than the purpose as per the recorded Kisam hence no case for contravention of section 4(i) or any other provision of PESA holds ground.
  2. The objection that the decision of conversion of the kisam of the land from Gochar to Patita being illegal does not hold water as consultation was not the legal need.
  3. The very moves of the petitioners as also the interveners clearly appear to be vexatious and must fail as the decision to establish a Medical College and Hospital which will cater to the need of the people in getting immediate Health Care with advanced treatment is for serving public good.
  4. The decision for establishment of the Battalion in the Scheduled Area is in the direction of discharge of the State’s function and to ensure peaceful living of its citizen in an atmosphere under law and order and providing people a free and fearless environment for their decent living with human dignity guaranteed under Article 21 of the Constitution.

In view of the above, it is clear that both the decisions taken by the Government were wholly in the direction of securing rights of the citizens as guaranteed under the Constitution and the move of the petitioners were on frivolous grounds and were against the public interest and standing in the way of discharge of the State’s solemn function and duty as ordained under the Constitution in securing its citizens and their enjoyment of the rights as guaranteed to them under the Constitution.

In view of all the aforesaid discussion and reasons, the writ application stands dismissed. And interim order stands vacated.[Geetanjali Kanhar v. State of Odisha, 2020 SCC OnLine Ori 50, decided on 03-02-2020]

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