Lokanath Singh vs State of Orissa and Another

P.K. Balasubramanyan, C.J.—The writ petitioner claimed assignment of land on the basis that he was a retired Army Personnel. He was not found to be eligible for assignment of land on that basis. But, he was found to be eligible for assignment of land on the basis that he was a landless person. He was therefore, granted a lease of 2 acres of land in mouza Harida Pada under Bhubaneswar Tahasii. He took possession of the said land. He had put up fence around it and had planted cashew plants. It may be noted that the land was to be used by him for agricultural purpose and he was expected to cultivate the land.

While he was thus in possession, it appears that a village road was taken through the property. The petitioner has not clearly disclosed the circumstances under which the road was taken through the property that was leased out to him and what steps he took at the appropriate time to assert his right and if he indicated his unwillingness to the passing of the road through his property. But, the fact remains that a road had come into existence covering an extent of 0.190 decimals. The petitioner continued to be in possession of the rest of the land which had got divided into two in view of the making of the road. These things happened in the early 1980s. The petitioner continued to have possession of the land even in the year 1994 as can be seen from a report in that behalf Annexure-11 which was made sometime in the year 1994. Meanwhile, in the settlement proceedings the land does not appear to have been settled in the name of the petitioner. A small extent of land out of the 2 acres was also used for constructing a residential building under the Indira Abas Yojana. The land taken for that purpose is said to be 0.050 decimals. It is not clear what was the attitude adopted by the petitioner at that time though now he has come forward with a case that the taking of a road through his property and using of a bit of land for the purpose of constructing a building under the Indira Abas Yojana was without his consent. Whatever it be, the petitioner made a representation and it is seen from paragraph 8 of the writ petition that the Under Secretary to the Government, Revenue and Excise Department, advised the Collector to settle the claim of the petitioner by way of compensation. The petitioner was presumably not content to receive the compensation and seems to have insisted on an alternate piece of land being assigned to him and even in claiming a settlement of more extent than 2 acres. The request was not acceded to. Ultimately the authority turned down the claim for alternate land raised by the petitioner. It was also held that he was not entitled to a lease of 5 acres of land since he did not qualify for assignment of such an extent on the basis of his being an ex-service-man. His claim for compensation was also negatived on the basis that the land which was to be used by him and which was admittedly put in his possession had not been used by the petitioner for agricultural purpose from the year 1969 till the date of the order, i.e., 14.12.2001. It is in this context that the petitioner has approached this Court with the present writ petition for the issue of a writ of mandamus directing the opposite parties to comply with his claim for allotting him 2 acres of land in exchange for the land allotted to him under the earlier order of allotment. He has also prayed for the issue of a writ of certiorari to quash the order described as Annexure-23 to the writ petition, which is seen to be a prescription for medicine. We take it that what the petitioner seeks is the quashing of Annexure 22 order, since that is seen to be the order of the Collector denying him relief.

According to learned counsel for the petitioner, though the land was initially leased out to the petitioner and the petitioner had been put in possession and had taken possession of the land, fenced it and had planted cashew plants in it, a village road was taken through that land without his consent and without paying him compensation and that a further extent was used for the purpose of putting up a construction under the Indira Abas Yojana and in that situation, the petitioner was entitled to have another extent of 2 acres of land in place of the land originally assigned to him in the year 1969 and the authorities were not justified in not granting him an alternate site. It is also contended that at one point of time, the District Collector had asked the Tahasildar to look into the feasibility of allotting an alternate site to the extent of 2 acres to the petitioner in place of the land originally assigned to him. Notwithstanding the fact that the petitioner made representations to the authorities, no positive relief has been granted to him in spite of his repeated complaints and it is in that context that the petitioner has come to this Court praying for the reliefs set out. Counsel contended that this Court may direct the authorities concerned to allow him an alternate extent of 2 acres of land in place of 2 acres of land which was earlier leased out to him. Counsel also made a feeble attempt to suggest that the petitioner would be entitled to an assignment of 5 acres of land on the basis of his being an ex-service man. But, counsel had to concede that the particular qualification referred to for entitlement for such an assignment was not possessed by the petitioner.

Learned Additional Government Advocate in answer submitted that 2 acres of land was put in possession of the petitioner in the year 1969 and thereafter he was in possession. Even going by the allegations in the writ petition and the annexures thereto, the petitioner had taken possession of the land, had fenced it and had planted cashew plants. Once a land was leased out to the petitioner and he had been put in possession, it was his duty to protect that land and if any acquisition of that land was proposed, to object to the same or in the alternative, claim compensation for the same and the petitioner could not take the position that the Government was bound to protect his interest even long after the grant of lease, and transfer of possession to him. The Additional Government Advocate further submitted that same was the position regarding the small extent used during implementation of the Indira Abas Yojana and if the petitioner did not assert his rights, the Government cannot be faulted and the petitioner cannot turn round and ask for some other land. The Additional Government Advocate pointed out that the petitioner had never cultivated the land and he cannot take advantage of his absence or lack of proper care of the land and make additional claims, and that too, at this distance of time. He further submits that there is no reason to interfere at the instance of the petitioner.

We have anxiously considered the rival submissions. It is a fact that the petitioner was given lease of an extent of 2 acres of land in the year 1969, and he was put in possession. Even according to the petitioner, he had fenced the property and had planted cashew plants. Once a lease is granted and the lessee is put in possession, it is the duty of the lessee to protect his title as lessee and his possession. If there was any acquisition, it was for him to raise his objection or to claim compensation before the appropriate authority at the appropriate time. If there was no acquisition, but there was forceful dispossession, it was for him to protect his right and possession by approaching the appropriate Court. By simply making belated representations to the authorities, the petitioner cannot cover up his failure to protect his property, settled on him by way of lease by the Government as early as in the year 1969. Once the land is put in his possession on the grant of a valid lease, it is his duty to protect that property and take steps to have the record corrected showing his right over the land. It is not open to him to throw the blame on others much after the event. Therefore, the argument on behalf of the petitioner that the land should now be exchanged with another 2 acres of land, cannot be accepted. There is also the fact noticed that the petitioner had never raised any cultivation in the land leased out to him, though he claims to have planted cashew plants. Thus, on the whole, apart from the laches or delay in this matter, we also find that the petitioner has not made out a case for the issue of a writ of mandamus directing the opposite parties to lease out in his favour or to settle on him, another 2 acres of land in lieu of the land originally leased out to him.

It is seen that at one point of time the Under Secretary to the Government, Revenue and Excise Department, advised the Collector to settle the claim of the petitioner by way of adequate compensation. Notwithstanding the laches of the petitioner in following up that direction and notwithstanding his recalcitrance in projecting his claim, we think that in the interests of justice, the direction of the Under Secretary to the Government, Revenue and Excise Department made sometime in the year 1997 or 1998 should be directed to be implemented. It appears that though a portion of his land was utilised for the purpose of making a road and another small portion was utilised for the purpose of making construction for Indira Abas Yojana, the petitioner was not paid any compensation. Of course, there is laches on his part is not claiming compensation in the appropriate manner at the appropriate time before the appropriate authority or forum and in not taking steps to protect his right and possession. All the same, we consider that in the circumstances of the case, taken as a whole, some compensation can be awarded to the petitioner. It is seen that the area taken up for the road (0.190 decimals) and for Indira Abas Yojana (0.050 decimals) comes to 0.240 decimals. We must notice that the road was made in the 1980s and a small bit was used for the Indira Abas Yojana sometime after the year 1995. Of Course, strictly speaking we may have to remand this matter back to the Collector or to the Tahasildar to make an assessment of the compensation payable to the petitioner for the loss of this extent. But, considering the age of the petitioner and the oldness of the claim, we think that we should put an end to this controversy finally in this proceeding itself. The land lost is 0.240 decimals. Considering the claim of the petitioner that he is an ex-service man and has served this country, we think that an amount of Rs. 24,000/- can be considered as a reasonable compensation for the land lost to him. In the circumstances, we think it appropriate to round it up to Rs. 25,000/-.

While, therefore, we disallow the prayers made by the petitioner in the writ petition, we direct the opposite parties to pay the petitioner a sum of Rs. 25,000/- (Rupees twenty-five thousand) towards compensation for the extent of land lost to him out of the land settled on him by way of lease. It is made clear that the petitioner will be free to enjoy the rest of 2 acres of land with him. The opposite parties will also take necessary steps to correct the settlement records, if necessary, to indicate the right of the petitioner over the balance extent of land out of the 2 acres of land originally leased out to him. The amount of compensation of Rs. 25,000/-will be paid or tendered to the petitioner within a period of four months from today. If the opposite parties fail to pay the sum of Rs. 25,000/- within the time as fixed above, the said amount will bear interest @ 12% per annum from the date of expiry of four months from this date, until it is paid or tendered.

Pradip Mohanty, J.

I agree.