Full Judgment Text
IN THE SUPREME COURT OF INDIA
2023INSC753
CIVIL APPELLATE JURISDICTION
CIVIL APPEAL NO. 5151 OF 2023
(@ S.L.P.(C) No. 14949 of 2018)
CHAIRMAN-CUM-MANAGING DIRECTOR,
INDUSTRIAL INFRASTRUCTURE DEVELOPMENT
CORPORATION OF ORISSA, IDCO TOWER,
JANAPATH, BHUBANESWAR, DISTRICT
KHURDA, ODISHA … APPELLANT(S)
VERSUS
LATE SURGEON VICE ADMIRAL GP PANDA
THROUGH HIS LEGAL HEIRS AND OTHERS … RESPONDENT (S)
WITH
CIVIL APPEAL NO. 5152 OF 2023
(@ SLP (C) No. 20490 of 2018)
WITH
CIVIL APPEAL NO. 5153 OF 2023
(@ SLP (C) No.17857 OF 2023
@ D.NO. 26693 OF 2018)
J U D G M E N T
S.V.N. BHATTI, J.
1. The Appeals arise from the Judgment dated 24.01.2018
in Writ Petition (Civil) No. 9988 of 2006 on the file
Signature Not Verified
Digitally signed by
Nisha Khulbey
Date: 2023.08.23
10:12:22 IST
Reason:
of High Court of Orissa, Cuttack. The respondents in
the Writ Petition are the appellants in S.L.P.(C) No.
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14949 of 2018 and S.L.P.(C) No. 20490 of 2018. The
D.No.26693 of 2018 is at the instance of the Writ
Petitioner. The High Court, through the Judgment dated
24.01.2018, firstly held that the land admeasuring
acres 4.800 decimals, leased out to original petitioner
Shri GP Panda has been properly identified. The High
Court also held that initiating resumption proceedings
in Resumption Case No. 1 of 2006 by the Tehsildar,
Bhubaneswar, is illegal. Hence, the substantive reliefs
against the Judgment or claim in the Appeals filed by
the respondents in the Writ Petition.
2. One Surgeon, Vice Admiral GP Panda, filed Writ
Petition against the State of Orissa and three others.
Pending Writ Petition, Industrial Infrastructure
Development Corporation of Orissa (for short, ‘IDCO’)
was impleaded as Respondent No.5.
3. The Writ Prayers, in effect, are directed against
the respondents not to interfere with the lawful
possession and enjoyment of the Writ Petitioner over
an extent of acres 4.800 decimals in Plot No. 1288
under Khata 420, village Pathargadia (for short,
‘petition land’) and restrain the continuation of R.C.
No. 1 of 2006 initiated by Tehsildar,
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Bhubaneswar/Appellant No.8 herein. The dispute, in
fact, or the enforceable right claimed by the
petitioner could be appreciated by taking note of the
following admitted circumstances and also by
considering the disputed facts.
4. Surgeon Vice Admiral Ganesh Prasad Panda applied
for allotment of Government land under an existing
policy enabling the assignment of Government land to
the armed personnel who have participated on the
frontline of the North-East Border in the Indo-China
war. Surgeon Vice Admiral Ganesh Prasad Panda was an
Ex-Army personnel who satisfied the criterion for
assignment of Government land to Ex-Defence personnel.
The credentials and the applicability of the
eligibility criteria for the assignment of Government
land to the armed personnel who participated in the
Indo-China war were examined by the Home Department of
the State. Through Communication, District Office, vide
60990/S/4/350 dated 19.04.1979, it was accepted that
the said Surgeon Vice Admiral Ganesh Prasad Panda was
eligible for assignment of Government land under the
Policy in vogue. The Tehsildar, Bhubaneswar, in W.L.
Case No. 1686 of 1979, on 07.05.1981, settled the
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petition land in favour of Surgeon Vice Admiral Ganesh
Prasad Panda. The land was identified with the sketch.
The consequence of the settlement, one can infer, is
possession of settled land was made over to Surgeon
Vice Admiral Ganesh Prasad Panda.
4.1 The District Collector, Bhubaneswar, noticing an
alleged infringement/illegality in the instant
assignment, had taken up Revision Case No. 59 of 1982
against the Assignment Order dated 07.05.1981. On
13.01.1983 (Annexure-P2), the District Magistrate,
Bhubaneswar, dismissed the Revision Petition. The first
petitioner claimed to be in continuous and
uninterrupted possession of petition land. In 1989, as
is evident from the record, the Writ Petitioner got the
assigned property surveyed, settled, and specifically
got earmarked with boundaries. The petition land
consists of an extent of acres 4.800 decimals in Plot
Number 1288 out of the total extent of 52.470 acres.
The Writ Petitioner claims to have bought the petition
land under cultivation and, later on, converted the
petition land into a farmhouse. The petitioner claimed
actual enjoyment of the petition property.
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5. The State addressed a letter dated 03.04.2001
(Annexure-P3) to the Tehsildar, informing that State
identified a patch of Government land measuring 52.470
acres in Pathargadia under Bhubaneswar Tehsil, adjacent
to Infocity. The State desired Tehsildar to process the
alienation proposal of land identified by IDCO
expeditiously. From the record, it appears that the
alienation of land in favour of IDCO commenced on the
request of IDCO of identified land but not after
verifying whether Government land claimed by the State
is free from encumbrances and available for assignment.
5.1 On 17.02.2005, Collector approved the allocation
of acres 42.870 decimals in Plot No.1288 being Khata
No. 420, in Pathargadia, in favour of the State. IDCO
alleges that the Subordinate Officers of the District
Administration interfered with the possession,
demolished the existing structures, and threatened to
dispossess IDCO from the petition land. The averment
in the Counter Affidavit of Respondent Nos. 1 to 4/LRs
herein dated 13.11.2006 evidences the state of affairs
on possession or enjoyment. Still, there is
prevarication in the thinking of Respondent Nos. 1 to
4 and without cancelling or repossessing the settled
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land claims to have sold in favour of the State. The
averment in the said Counter Affidavit on possession
reads thus:
“It is humbly submitted that the Plot No.
1288 of Mouza Pathargadia of an area of 42
acres 870 decimals has been leased
out/allotted in favour of IDCO in W.L.Case
No.34 of 2004 and, at present, IDCO is in
lawful possession over the said area. Out of
the same plot, an area of 4.800 decimals was
allotted in favour of the petitioner for
agricultural purpose. Since, the petitioner
did not use the allotted land for the purpose
it was sanctioned, resumption proceeding has
been initiated against the petitioner vide
Resumption Case No.1 of 2006.”
The above averment reiterates allotment of
Government land, possession of the IDCO, and initiation
of resumption proceedings for alleged breach of
assignment condition.
6. On 20.03.2006, a Show Cause Notice under Section
3(B) of Orissa Government Land Settlement Act, 1962 was
issued to IDCO proposing to resume petition land on the
ground of alleged violation of conditions of the grant.
In the year 2016, Surgeon Vice Admiral Ganesh Prasad
Panda died and his Legal Representatives (LRs) were
brought on record. The LRs are continuing the
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litigation. The alienation, confirmation, etc.,
formalities in favour of IDCO, were completed by the
District Administration on 14.02.2006. Thereafter, a
Notice proposing to resume petition land, was issued.
The above narrative discloses that the High Court has
considered the prayers not by entertaining a finding
on a disputed question of fact but on the material on
record.
7. IDCO’s case is that the settlement of the petition
land has been under the Government Grants Act, 1865.
The settlement does not specify a condition for
performance by IDCO and a consequence warranting
resumption for not performing the condition. The High
Court, on examination within the discretionary
jurisdiction under Article 226 of the Constitution of
India, recorded findings available from the record. The
High Court examined the record, nature of the grant in
favour of IDCO, initiation of Revision against the
Assignment Order, and recorded the finding in favour
of IDCO. The disputed question is, what are the
conditions the assignee breached, or what are the
conditions violated by the assignee warranting
resumption after two and a half decades of assignment.
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8. The learned Counsel, Shri Subhasish Mohanty,
appearing for State, and learned Senior Counsel, Shri
Jana Kalyan Das, appearing for IDCO, argued with
considerable force that the High Court, in the exercise
of its jurisdiction under Article 226 of the
Constitution of India, without reference to trial,
recorded findings on disputed questions of fact. It is
argued that entertaining a Writ Petition and
adjudicating the dispute of the nature, as the present,
would be beyond the jurisdiction of the High Court
under Article 226 of the Constitution of India. The
High Court, through the impugned Judgment, also decides
the property's identity when there is a contest by the
State and IDCO. Party-in-person replies that once the
grant in favour of Vice Admiral Ganesh Prasad Panda is
accepted, the said admission in law would take within
its fold identification of plot, delivering of actual
and vacant possession to the assignee, i.e., Vice
Admiral Ganesh Prasad Panda. Therefore, the
identification of petition land by the High Court is
on the very documents issued by the official
respondents. Thus, the Writ Court did not liberally
entertain the discretionary jurisdiction to adjudicate
disputed questions of fact.
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9. We have taken note of rival submissions and perused
the record.
10. The State and IDCO are invoking the jurisdiction
of this Court under Article 136 of the Constitution of
India. They must make out that the needs of justice
demand interference by the Supreme Court having plenary
jurisdiction against the impugned Judgment (See
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Arunachalam v. P.S.R. Sadhanantham and another .
11. Independent of the findings recorded by the High
Court, it needs to be borne in mind the view taken by
this Court in State of Uttar Pradesh and others v.
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Maharaja Dharmander Prasad Singh and others on the
power of re-entry by the lessor.
12. Let us examine, firstly, the chronology stated in
the preceding paragraphs. The total extent of land in
Plot No. 1288 is 52 acres, 470 decimals. On 07.05.1981,
IDCO was assigned, in Plot Number 1288, agricultural
land admeasuring acres 4.800 decimals. By issuing the
Resumption Notice, the Tahsildar admitted Writ
Petitioner’s possession of the petition land. It is
1
(1979) 2 SCC 297/AIR 1979 SCC 1284)
2
(1989) 2 SCC 505
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evident from the record that even before initiating
proceedings for recovery, the possession of allotted
land of an extent of acres 42.870 decimals is stated
to have been given to IDCO by the State. It is also not
clear whether the assignment in any manner overlaps
with the petition land assigned to Vice Admiral Ganesh
Prasad Panda. The State assumed the power of re-entry
of the land settled on a higher pedestal and that the
resumption of land in favour of the State as automatic.
12.1 The above observation is necessary for, firstly,
if we assume that the land alienated to IDCO is
different or distinct, then, interference with
possession of petition land is arbitrary and illegal.
Secondly, if the extent viz. petition land and land
settled in favour of IDCO, then, without dispossessing
the petitioner(s), in the manner known to law, the
settlement in favour of IDCO, by including petition
land, is illegal and unconstitutional.
12.2 The law on the power of re-entry is fairly well-
settled. The re-entry without reference to the law, in
the facts and circumstances of this case, has been
rightly held in favour of the Writ Petitioners. The
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serious objection of the State against impugned
Judgment is that the High Court has decided disputed
questions of facts. After perusing the Judgment, we
consider that the High Court recorded a finding not by
deciding a fact in issue on title, identity, or
entitlement but from the record and admitted documents.
The solitary ground raised against the impugned
Judgment, therefore, deserves to be rejected. The
answer of the High Court on Points 1 and 2 is available,
and the method adopted by the respondent-State for
dispossessing or attempting to dispossess the first
petitioner is unconstitutional and illegal. The State
ought not to approbate and reprobate on the possession
of Vice Admiral Ganesh Prasad Panda of petition land.
13. Though the impugned Order in Civil Appeal no. 5153
of 2023 (@ SLP (C) No.17857 of 2023 @ D.No. 26693 of
2018) filed by the LRs of Vice Admiral Ganesh Prasad
Panda is substantially in their favour, still the
Appeal is filed raising a few grounds. The Appeal, in
our considered view, need not have been filed and even
if it is filed, we are of the view that re-examination
of those prayers by this Court, particularly, keeping
in view the findings recorded while dismissing the
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Appeals filed by the State and IDCO, we see no reason
to entertain the Appeal.
14. We do not see merit in the Appeals and are
accordingly dismissed. No orders on costs.
...............J.
[J.B. PARDIWALA]
..............J.
[S.V.N. BHATTI]
NEW DELHI;
AUGUST 22, 2023.
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