Orissa High Court: A Division Bench of B. R. Sarangi and K. R. Mahapatra, JJ., allowed the petition and directed to execute the lease deeds in favour of the petitioners for permanent settlement.
The facts of the case are such that one Late Bira Kishore Kar, son of Late Krushna Chandra Kar was the original lessee of the case land which was granted in his favour for a period of 30 years w.e.f. 01.04.1973 valid up to 01.04.2003. Late B.K. Kar sold the aforesaid land to the present petitioners vide registered sale deeds executed on 04.11.1985 with due consideration, and since then all the petitioners are residing on the homestead land having constructed residential houses thereon and are in peaceful possession over the same. The petitioners are also paying holding tax as well as rent in respect of the suit land. Mr B. K. Kar also had a residential house over the said land which was separately mutated in the name of the petitioners and Records of Rights were also published separately in favour of each of the petitioners. After registration of these Khasmahal lands the petitioner applied for a permanent settlement to the Collector, Cuttack for favour of approval as required under Rule 3(a) of Orissa Government Land Settlement Rules, 1983 (for short “OGLS Rules, 1983”) which was returned several times on flimsy grounds. Even in the recommendation of the Tahsildar, matter remains pending before Collector, Cuttack. The present petition was filed in the nature of mandamus to command the authority to permanently settle the leasehold lands in favour of the petitioners.
Counsel for the petitioners submitted that the petitioners are in possession of the leasehold land,
by constructing their residential houses over the same, for more than five years as on the appointed date and the Tahasildar, Sadar, Cuttack having recommended the case of the petitioners for permanent settlement, in view of the position of law that the leasehold estate of the Khasmahal land is heritable and transferable with a right of renewal, the Collector, Cuttack should have approved the leasehold land for permanent settlement in accordance with the provisions contained in Section 3(4)(c) of the OGLS Act, 1962 read with Rule-5-B of the OGSL Rules, 1983 read with Rule 3(a) of the Schedule-V of OGLS Rules, 1983.
The Court relied on judgment Satyapriya Mohapatra v. Ashok Pandit, 1984 SCC OnLine Ori 82 wherein it was held
“4. ………………. It has been held therein that a leasehold estate in the Khasmahal land is heritable and transferable with a right of renewal. It has also been held that the right of lease in respect of such land is in no way different from that which one has in his own private land. The lessee’s right in the Khasmahal land being heritable and transferable, the lessee can create a permanent right of tenancy in his holding. ……………..”
The Court observed that as provided in Schedule-V of the OGLS (Amendment) Rules, 1993 the Tahasildar, on being satisfied after enquiry that any Khasmahal land in occupation by any person as homestead for a period of not less than 5 years as on the “appointed date”, shall settle the said land in favour of the person holding such land on execution of the lease deed in form-IV subject to approval of the Collector.
The Court further observed that the Collector, Cuttack, who is a public authority, has failed to exercise its power vested under the statute.
The Court held “The Collector, Cuttack is directed to grant approval to the recommendation made by the Tahasildar, Sadar, Cuttack, as required for permanent settlement of the leasehold land in favour of the petitioners under Rule-3(a) of OGLS Rules”[Nirmal Chandra Panigrahi v. State of Odisha, W.P. (C) NO. 15300 OF 2019, decided on 17-05-2021]
Arunima Bose, Editorial Assistant has reported this brief.
For Petitioners: Mr Nirmal Chandra Panigrahi (in person), Mr Budhadev Routray, M/s. N.K. Tripathy, D. Dhal, J. Biswal and S.D. Routray
For OPs: Mr Ashok Kumar Parija