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Judgment
D. Dash, J
The petitioners, by filing this writ application, have prayed for a declaration that the action of the Collector, Kandhamal, (Opposite Party no. 2),
Sub-Collector, Kandhamal, (Opposite Party no. 3) as also the Tahasildar, Khajuripada, (Opposite Party no. 3) in converting the Kisam of the
land measuring Ac.5.932 decimals covered under 10 plots of Khata No. 218 from “GOCHAR†to “PATITA†being assigned with
Khata No. 220 under said 10 plots as illegal. They have further prayed to direct the Opposite Party no. 2 to consider their grievance as also those
of other co-villagers in this regard.
Facts necessary for the purpose are as under:
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 the Presidential Order, i.e, the Scheduled Areas (States of Bihar, Gujurat, Madhyapradesh and Odisha) Order, 1977
made in exercise of powers conferred by sub-paragraph 6 of the 5th Schedule of the Constitution of India.
It is stated that the opposite party no. 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 measuring Ac.5.932 decimals have been converted to kisam Patita under Khata no. 220. It is said
that said establishment of Battalion had been objected to by the people of the locality by conversion of said land from Gochar to Patita. It is further
stated that although the petitioners and others had raised serious objection to such conversion of kisam of land after having come to know about
the move by notice dated 21.12.2018 as under Annexure-1 series, those have not been duly considered. In this way, the conversion of kisam of
the aforesaid land having been made, opposite party no. 4 made a proclamation on 11.07.2016 for establishment of the Battalion over that land
under Khata no. 220 as it stood after conversion of kisam. This was again objected to by the petitioners and others and so also the subsequent
communication made by the opposite party no. 4 in that connection. A meeting in the village being convened, said action of opposite parties for
establishment of the Battalion over the land by conversion of its kisam from Gochar to Patita was deprecated and it was decided to raise objection
in proper quarters.
It is the case of the petitioners that the villagers of the said locality are depending on said land kept for being used for grazing of cattles. It is next
stated that the land in question in the area being within the declared Scheduled Area, the provisions of Panchayats (Extension to the Scheduled
Areas) Act, 1996 (in short, ‘the PESA’) is fully applicable. So, it is said that such action of the opposite parties as to 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. Their case is that the
provision of the aforesaid Act having been thrown to the winds by the State authorities-opposite parties in the matter, said order of conversion of
kisam of land is illegal and thus liable to be quashed.
It may be stated here 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 the following
grounds:
“(i) contravention of clause (i) and (n) of section 4 of PESA; and
(ii) existence of burial ground over the land.â€
The opposite parties 2 and 4, in their counter, have averred that for such conversion of kisam of land, all the procedures as prescribed in Odisha
Government Land Settlement Act and rules made thereunder have been scrupulously followed and so also in the matter of alienation of the land
after said conversion of kisam of land. It is stated that the villagers have been given the opportunity to raise their objection at every stage and they
having been heard with reference to the objections, the decisions have been taken.
While not disputing that the provisions of PESA have their applicability in so far as the place where the land in question situates; it is stated that
since the provisions of PESA does not at all get attracted for the subject matter, viewed with the purpose, the decision so taken is not in
contravention of clause (i) and (n) of section 4 of PESA. It is stated that such process of alienation does not also affect any individual right.
It has been 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 nuxlite activities in the area, which has already witnessed a communal riot as also in relation to serious law and order
problems.
It is pertinent at this stage, to mention that on 27.1.2020, the original petitioner nos. 2, 3 and 5 have filed three affidavits separately. They have
stated that although they were raising objections for the Battalion being established at the place, presently they do not have any objection since the
Government has decided for establishment of a Medical College and Hospital over that land by putting up required constructions having taken a
decision as to shift of the Battalion to a nearby place at Belaguntha in the district of Ganjam where the constructions for the establishment of the
Battalion have already started. Filing such affidavits, they stated to be no more interested to remain within the arena of the proceeding as
petitioners. In view of that, their names have been deleted in the cause title and they are no more in the arena of this proceeding.
The intervener-petitioners vide I.A. No. 4184 of 2018 at this belated stage have come to be added as opposite parties 6 to 12 and their petition
has been allowed vide order dated 29.1.2020 passed by this Court. They have stated that in view of the prevailing Maoist activity in the district of
Kandhamal and other adjacent district with the growing and continuous demand from the side of the local inhabitants to combat the same by
deployment of Battalion in the locality for progress of developmental process; there should be establishment of Battalion over the land and that
being earmarked for the purpose be not used for any other purpose, whatsoever including the setting up of Medical College and Hospital.
The opposite parties 13 to 18 have come to be added as as such as their belated intervention application vide I.A. No. 9418 of 2019 has been
allowed by this Court on 29.1.2020. Their case is 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. In so far as the land in question is concerned, it is submitted
that the conversion of the kisam of the land from Gochar to Patita is not in contravention of the provision of PESA. They submit that the writ
application has been filed with ulterior motive to see that the decision of the Government for establishment of the Battalion is somehow foiled.
Reiterating the averments made in the writ application, learned counsel for the petitioners submitted that in the matter of conversion of kisam of
the land in question, there has been contravention of provision in clause (i) and (n) of section 4 of PESA. According to him, in the matter as
mandatorily required under clause (i) of section 4 of PESA, the Grama Sabha or the Panchayat at the appropriate level has not been consulted
before such conversion and said power rest with the Panchayat under clause (n) of section 4 of PESA has been usurped by the State, which is not
permissible and as such all the actions taken in that regard are illegal. The objection as to the existence of burial ground which had been mentioned
in the original objection filed before the authority on 10.08.2016 is not pressed into service and given a gobye. In view of the above, it was
submitted that such conversion of kisam of the land is nonest in the eye of law being without jurisdiction. According to him, in the matter of
conversion of kisam of land in contravention of the provisions of PESA as applicable and by following the provision of the Odisha Government
Land Settlement Act which has no application especially in such matter of conversion of kisam of the land is nonest in the eye of law. He submitted
that the decision of conversion of kisam of land being nonest, at present, the kisam of the land is to be taken as Gochar which is objectionable and,
therefore, neither the State nor anyone else can put up any such construction over the said land which cannot be used for any purpose whatsoever
other than as it stood recorded.
Learned counsel for the opposite parties-intervenors have reiterated the stand as taken in their counter as aforementioned.
Learned Additional Government Advocate submitted that now the Government has taken a decision for establishment of a Medical College
and Hospital in the area using this Government land as also other nearby land. It was submitted that in view of the move of the petitioner before this
Court by filing the writ application and for the interim order passed by this Court on 11.01.2017 in Misc. Case No. 19481 of 2016, the
establishment of the Battalion, which was the urgent need, Government was compelled to take a decision for shifting it 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. It was submitted that 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.
According to him, these intervenor-petitioners have come when it has become as clear as the noon day that the move of the original petitioners as
laid would not succeed in questioning the conversion of kisam of land.
Placing the provisions in clause (i) and (n) of section 4 of PESA, he contended that those provisions have absolutely no application to the
matter in hand and thus the question of holding the action as to conversion of kisam of the land to have been taken in contravention of the
provisions of PESA does not arise.
On the rival submissions, the first question that stands for answer is as to whether the decision of conversion of the Kisam of the land in
question from that of ‘Gochar’ to ‘Patita’ is in contravention of the provisions of the PESA and the action as is said to have been
taken as to conversion of the Kisam of land by following the provisions of Odisha Government Land Settlement Act and the rules made thereunder
if has the legal sanction.
Section 3 of PESA provides the extension of Part IX of the Constitution relating to Panchayats to the Scheduled Areas with the exceptions
and modifications as are provided in section 4 of the said Act.
Section 4 of PESA begins with non-obstante clause that notwithstanding anything contained under Part IX of the Constitution, the Legislature
of a State shall not make any law under that Part which is inconsistent with the features as have been stated under clause (a) to (o). Here, the
petitioners have alleged contravention of the provision in clause (i) of section 4 of PESA. It says that the Gram Sabha or the Panchayats at the
appropriate level shall be consulted before making the acquisition of land in the Scheduled Areas for development projects and before resettling or
rehabilitating persons affected by such projects in the Scheduled Areas, further regarding coordination at the State level as to the actual planning
and implementation of the projects in the Scheduled Areas. (Emphasis is provided on the word ‘acquisition’)
In the present case, the State is the owner of the land. It is true that the Kisam of the land stood as Gochar. But, as in this case, the State has
not gone for acquisition of land and the State having taken a decision that its land is ideal for use for the purpose other than the purpose as per the
recorded Kisam has followed the procedure prescribed under the law made by the Legislature, i.e, Odisha Government Land Settlement Act and
the rules made thereunder for such conversion of the kisam, there arises no case for contravention of the provision of PESA. The PESA has
empowered the Grama Sabha/Panchayat at appropriate level with the right to mandatory consultation in land acquisition, resettlement and
rehabilitation of displaced person. But here there being no acquisition of these land belonging to anyone for the purpose, the provisions of clause (i)
of section 4 has no applicability at all that in such matter of conversion of the Kisam of the land. For the purpose, thus said consultation was not the
legal need. It is not denied that in taking the decision as to conversion of the kisam, objections have been invited, there being hearing; other
process, as provided in the Act and rules, have been followed.
In view of the above, the objection that the decision of conversion of the kisam of the land from ‘Gochar’ to ‘Patita’ being
without jurisdiction is nonest does not hold water. The kisam of the land having been changed to Patita, the State being its owner, when decided
that over that land and other lands nearby, a Medical College and Hospital would be established to cater the need of the people of the area as to
getting the proper attention in the matter of immediate Health Care with advanced treatment as also the development of the area in serving public
good in so many ways, the very moves of the petitioners as also the intervenors clearly appear to be vexatious and must fail.
As regards the decision for establishment of the Battalion over the land and nearby land in the Scheduled Area, it is clearly seen to be in the
direction of discharge of the State's function and duty in doing the needful for the peaceful living of its citizen in an atmosphere being duly
maintained with the law and order in further providing the people to live in a free and fearless manner/way and environment being in a position to
exercise all such rights guaranteed and as available to them for their decent living with human dignity as a part of the constitutional right, i.e. right to
life as guaranteed under Article 21 of the Constitution.
In so far as the decision for establishment of the Medical College and Hospital over there, it is again in the direction of providing proper and
advanced health care facilities to the inhabitants of the locality as well as all others, at the door step which right they enjoy under the Constitution as
a part of their right to life as citizens when it rests with the State as its duty to so provide proper health care and medical aid to protect their health
as is now available in the present days without being faced with any such hurdles in view of inequality in any such front which is their fundamental
right. This decision under challenge being wholly in the direction of securing such right to the citizens as guaranteed under the Constitution, present
move of these petitioners on such frivolous grounds is clearly seen to be vexatious running against the public interest and standing on 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.
The path of litigation has been chosen for achieving such mischievous objective at the cost of the interest of the public at large and in that, they
having obtained an interim order, have succeeded in depriving the citizens of their right for over a period of more than two (2) years. The
intervenor-petitioners have also come to join the petitioners at a later stage in raising their objections, although in a different way; nonetheless the
aim stands the same so as to block the implementation of the decision of the State. The time has come for the courts to appropriately react and
respond in such matters and in my considered view, it is a fit case to so rise.
In view of all the aforesaid discussion and reasons, the writ application stands dismissed. Consequently, the interim order of status quo passed
by this Court on 11.1.2017 in Misc. Case No. 19481 of 2016 stands vacated.
Each of the petitioners are imposed with cost of Rs. 30,000/- (rupees thirty thousand) and each of the intervenors are also imposed with cost
of Rs. 10,000/- (rupees ten thousand) to be deposited with the Registry of this Court within a period of two months. On deposit of the amount as
above, the Registry would do well to transfer the same to the account of the Odisha State Legal Services Authority for its proper utilization in
providing free legal aid and services to those in need.