1. Mr. Dash, learned advocate appears on behalf of petitioner and submits, his client is purchaser from original allottee, who was granted lease of jawan land. Accordingly, the lease was in respect of 5 acres under the policy. His client duly purchased the land but was not noticed in the suo moto lease revision case initiated by the administration. He submits, in paragraphs 6 and 8 of the writ petition, there is explanation to effect that his client was possessing the land for long on paying the rent. When at a later point of time rent was not accepted, his client pursued for the same. However, he did not know regarding cancellation of the lease and thereby threat to his possession, as he was not made a party nor noticed in the lease revision case. Hence, on discovery, he presented his writ petition on 6th June, 2016. He submits, there was no delay. However, he relies on judgment of the Supreme Court in Tukaram Kana Joshi v. M.I.D.C. reported in AIR 2013 SC 565, paragraphs 9 and 10.

2. He points out from impugned order that one of the grounds for cancelling the lease was that the land was not used for purpose of the lease, being agriculture. His client’s vendor had got recorded the land under kisam Sharada-3. He draws attention to paragraph-5 in impugned order, extracted and reproduced below.

“5. The Asst. Settlement Officer has reported that the land has not been put to cultivation and it is lying fallow as bushy jungle.”

The lease was granted on 15th September, 1975. The Lease Revision Case no.597 of 1998 resulted in order dated 30th June, 1998 cancelling the lease. Said order has been impugned in the writ petition. Mr. Dash submits, the unamended provision of limitation in section 7-A of Odisha Government Land Settlement Act, 1962 was operative at the time of grant and cancellation of the lease. The lease revision case could not have been initiated, as barred by limitation on prescribed period of 14 years. It is no matter that subsequently the provision stood deleted by substitution of amended sub-section (3).

3. He relies on view taken by a Division Bench of this Court in Rajkishore v. State reported in 1994(II) OLR-149, paragraph-7. He submits, thereby the Court noticed, inter alia, lease was granted in respect of 5 acres of land, inconsistent with the Act of 1962. On that and other inconsistencies, view taken was that the lease stood granted under lease principles read with Government notifications, which made special provision for the category of persons, who cannot be treated as private persons.

4. He reiterates, the suo moto case was initiated beyond prescribed time of limitation and hence, barred. His client moved this Court on discovery of what happened behind his back. Without prejudice he submits, since the lease was granted to his client’s vendor under lease principles and Government notifications, not covered by the Act of 1962, it follows, section 7-A in it cannot operate against the vendor and therefore against him. There should be interference.

5. Mr. Sharma, learned advocate, Additional Government Advocate appears on behalf of State. He submits, by Odisha Government Land Settlement (Amendment) Act, 2013 (Odisha Act 26 of 2013), notified on 13th November, 2013 and published by authority in Odisha Gazette Extraordinary on same day, the prescribed period stood substituted, empowering the Collector to on his own motion or otherwise, call for and examine the records of any proceeding relating to allotments. The proceeding having duly been initiated, it was found that the grant was made on practice of fraud. The allottee had misrepresented about being landless. Apart, the land could not have been allotted because it was recorded as ‘Chot Jungle’ and therefore formed part of communal forest. Section 3 in Orissa Communal Forest and Private Lands (Prohibition of Alienation) Act, 1948 prohibits alienation of forest land.

6. He then relies on view taken by the first Division Bench of this Court in, inter alia, W.P.(C) no.33349 of 2011 (Asha Hans v. State of Odisha and others), in which there was finding that illegality was committed. The Court was of the considered view that since, in that case also, the fraud was detected in year 1998 and thereafter the administration had taken action to proceed to cancel the leases, such action cannot be held as unfair or unjustified. He also relies on paragraph-5 in the counter, reproduced below.

“5. That, it is humbly submitted that due to many number of fraudulent settlement committed previously in Bubaneswar Tahasil, Hon’ble High Court in OJC No.9449/93 81(1996 CLT-513) Sarat Sahoo -Vrs- ADM,

Bhubaneswar) has observed that :

“Before parting with the case, we would like to observe that it has come to our notice that Government lands adjoining the State Capital, have been settled by the Tahasildar, Bhubaneswar for agricultural purpose in exercise of power under the Act. Those lands are most valuable and are fit for use as ‘house site’. A probe is necessary to ascertain as to the extent of such lands settled by the Tahasildar and their present use. We, therefore, direct the State Government to enquire into the matter through a senior Officer in the rank of Secretary and on enquiry if it comes to light that the Tahasildar by misuse of power has settled the lands, then necessary legal and administrative action should be taken against him and further if the lands so settled are used otherwise than the purpose, Government should proceed against the lessees in accordance with law.”

(emphasis supplied)

He relies on judgment of the Supreme Court in State of Orissa v. Brundaban Sharma reported in 1995 Supp (3) SCC 249, paragraphs 16 and 18.

"7. Without prejudice he submits, the writ petition suffers from inordinate delay. Court should not exercise extraordinary jurisdiction under article 226 in the Constitution in aid of a person, who has moved on inordinate delay, thereby pointing to laches. There is no explanation in the writ petition on the delay. He relies on Chapter-XV in Rules of the High Court of Orissa, 1948. He submits, rule 3 in the chapter provides for requirements to be fulfilled on writ petitions filed in the Court. The particulars required have been given in appendix-1, referred to in the rule. Drawing attention to appendix-1 he submits, under heading details of the application, point-6 says, delay, if any, in filing the petition has to be on explanation therefor, to be stated with reasons for not filing it earlier. There has been non-compliance of this requirement. He relies on judgment of the Supreme Court in Union of India v. N. Murugesan (paragraphs 21 to 24)."

8. Next he relies on view taken by this Court in Chandradhoja Sahoo v. Member, Board of Revenue, Orissa reported in 2009 (II) OLR-8, paragraph-11, reproduced below.

“In view of these provisions in the Act 1 of 1948, the irresistible conclusion is that no communal or forest land shall be leased out without previous sanction of the Collector. Any transaction contrary to or in violation of the provisions of Section 3 would be treated as void and inoperative and would not confer any right on any party to the transaction. Undisputedly, the nature of the case land was recorded as “Kanta Jungle” as would appear from the order granting lease in favour of the petitioner. From the averments made in the counter affidavit it would further appear that no previous sanction of the Collector was obtained before grant of lease. On the contrary, serious irregularities have been committed while granting the lease about which it was stated in the counter affidavit. It is also revealed from the counter affidavit that before grant of lease no enquiry was ever conducted. In such view of the matter, we have no hesitation than to come to a conclusion that the order granting lease in favour of the petitioner is absolutely unsustainable. We have also noticed that no lease deed was executed by the State of Orissa nor any patta was issued in favour of the petitioner in pursuance of grant of lease.”

9. Several points of law are involved in this writ petition as have arisen on rival submissions made by the parties. First is regarding substituted sub-section (3) in section 7-A of the Act of 1962. Earlier, there was provision of prescribed period of limitation to be 14 years, for initiation of suo moto/reopening a waste land case and on amendment by substitution, the prescribed period stood omitted. Second point arising is that fraud unravels all. Fraud has been practised by false declaration made by original allottee of the lease, in having suppressed he was not landless. On discovery of fraud, there can be enquiry and that is not barred by limitation. Third point is regarding inordinate delay in filing the writ petition, for petitioner to be turned away by Court on refusing to exercise the extraordinary jurisdiction under article 226 in the Constitution. Fourth point is, communal forest land cannot be alienated without permission of the Collector under section 3 in the Act of 1948. Fifth point is, in cases of allotment by lease to jawans, the leaseholds referred to as ‘jawan land’, were not granted under the Act of 1962 but on lease principles and Government notifications.

10. We are to deal with the points of law arising as stated in last preceding paragraph. On the first point of limitation, we have no hesitation in taking the view that the amendment by substitution made on 13th November, 2013, could not have retrospective effect as in the period before, there was a provision of limitation operating. The initiation of the suo moto lease revision case was clearly barred by limitation, initiated against the order of settlement dated 15th September, 1975, in year 1998, resulting in impugned order dated 30th June, 1998. The initiation of the suo moto case was after a period of much more than 14 years.

11. The second point to be decided is on fraud as unravels all and thereby rendering inoperative the prescribed period of limitation for initiating the lease revision case. In the counter State has relied on directions made by an earlier Division Bench of this Court in Sarat Sahoo (supra), requiring a probe, as necessary to ascertain extent of land settled by the Tahsildar and their present use. There was direction on the State Government to enquire into the matter by a senior officer in the rank of Secretary and on enquiry, if it came to light that the Tahsildar, by misuse of power has settled the land, then necessary legal and administrative action should be taken against him and further, if the land so settled was not being used for the purpose, Government should proceed against the lessees in accordance with law. Materials on record do not disclose that there was enquiry made by the Secretary, in respect of the lease hold in question, for there to be direction to initiate a suo moto lease revision case. Contention of State has also been that the land could not have been alienated under the Act of 1948. It does not appear from view taken and directions made in Sarat Sahoo (supra), relied upon regarding the probe and inquiry that, contention of State of alienation made of forest land was under consideration in that case. State, as opposite party in the writ petition, appears to have taken contrary alternative pleas in defence. This is because if they rely on Sarat Sahoo (supra) for initiation of the suo moto lease revision case then they have to confine themselves to grant of lease, for agriculture purpose to vendor of petitioner, as the lease hold not used for the purpose. Action to be taken on the fraud alleged was against their own officer. Action to be taken on lessee was confined to the purpose of the lease. This action, on user other than for purpose of the lease, could have been taken against petitioner’s vendor within the prescribed period of limitation. The sale happened after 10 years of the allotment. No discovery of fraud was necessary or for that matter, directions from this Court.

12. In this context petitioner has relied on Rajkishore Das (supra). View taken therein were on facts of petitioner therein being an ex-army personnel. He had applied for allotment, being a landless person. His application was registered as Waste Land Case no.864 of 1977. Suo moto proceeding under section 7-A(3) under the Act of 1962 was also initiated against said petitioner. The Division Bench, in those facts took the view, conclusion is irresistible that settlement of 5 acres of land in favour of said petitioner was not made in accordance with the provisions of the Act of 1962. It was under the lease principles read with Government notifications, which makes special provision for special categories of persons, who could not be treated on the same footing as private individuals. We have not been shown anything for us to take a different view. We by our judgment dated 2nd November, 2022 in W.P.(C) no.8953 of 2021 (M/s. Green Square Infratech Private Limited and another v. State of Odisha and others) had expressed a somewhat similar view in paragraph 7 therein, reproduced below.

“7. It transpires that the Jawans were to be given the concession of settlement of land, as reward. It could not be given under existing land laws. Hence, there was direction by the Government to make the settlement under Government Grants Act, 1895 and confirm status of raiyat, as defined under Orissa Land Reforms Act, 1960, to the allottees. The controversy here is whether original allottee was eligible to obtain the concession as a Jawan, who had served in the front.

13. In view of what we have said in last two preceding paragraphs, it is not necessary for us to enquire on requirement of pleading and proof of fraud. Nevertheless, fraud stands defined by section 17 in Contract Act, 1872. The section is reproduced below.

“17. “Fraud” defined.—“Fraud” means and includes any of the following acts committed by a party to a contract, or with his connivance, or by his agent1 , with intent to deceive another party thereto of his agent, or to induce him to enter into the contract:

(1) the suggestion, as a fact, of that which is not true, by one who does not believe it to be true;

(2) the active concealment of a fact by one having knowledge or belief of the fact;

(3) a promise made without any intention of performing it;

(4) any other act fitted to deceive;

(5) any such act or omission as the law specially declares to be fraudulent. Explanation.—Mere silence as to facts likely to affect the willingness of a person to enter into a contract is not fraud, unless the circumstances of the case are such that, regard being had to them, it is the duty of the person keeping silence to speak, or unless his silence is, in itself, equivalent to speech.”

Here we must note that if original allottee had suggested as a fact that he was landless and the authority believed such suggestion to be true and thereby there was concealment of fact, of owning other land, there may have been fraud practised on the authority. Impugned order says that original allottee, inspite of having duly been served show cause notice, did not appear. It must be kept it mind that original allottee sold to petitioner. The counter does not deal specifically with allegations made in the writ petition and particularly paragraphs 6 and 8. Petitioner has asserted that he paid rents. There is no denial. The assertion has not been dealt with at all. In the circumstances, we are presented with situation, where the finding of fraud is by the administration. It is the same administration, which was directed to probe misuse of power by the Tahsildars. As such the finding by the authority itself that there was practice of fraud, on a premise of earlier misuse of power by the authority, particularly where the allottee had sold and was no longer interested and presumably therefore did not appear and petitioner not noticed, for it to be sustained would be unjust. Furthermore, upon the prescribed period having elapsed, there being no allegation of petitioner having participated in the alleged fraud, he cannot be visited with the consequences aforesaid, of not using the land for the purpose, a cause with State from the beginning and as stood barred by limitation. The declaration of law in Brundaban Sharma (supra) has no application in the facts and circumstances of the case.

14. We also notice that in impugned order there is statement that the lease revision case is maintainable and delay if any is condoned under section 17 of Limitation Act, 1963. Said section deals with effect of fraud or mistake. Sub-section (1) is reproduced below.

“17. Effect of fraud or mistake.—(1) Where, in the case of any suit or application for which a period of limitation is prescribed by this Act,- xxx xxx xxx”

(emphasis supplied)

By then operating provision in section 7-A (Act of 1962), prescribed period of limitation was 14 years. The period stood prescribed by the Act of 1962, being a local law. Section 29 in Limitation Act, 1963 saves period of limitation prescribed by, inter alia, local laws. Section 17 therein is applicable to period of limitation prescribed by the Limitation Act itself. It cannot be said to be applicable on prescribed periods by local or special laws as those periods stand saved by the Limitation Act itself, as not prescribed thereunder.

15. Another contention of State has been that forest land stood prohibited for alienation under the Act of 1948. Clause (c) under definitions section 2 in the Act of 1948 defines forest land. The definition is extracted and reproduced below.

“(c) “forest land” includes any waste land containing shrubs and trees and any other class of land declared to be forest land by a notification of the State Government.”

Section 3 was also relied upon. It is reproduced below.

“3. Prohibition of Alienation of Communal Forest and Private Lands – (1) Notwithstanding anything contained in any other law for the time being in force or any express or implied agreement but subject to the provisions of Sub- section (2), no landlord shall, without the previous sanction of the Collector sell, mortgage, lease or otherwise assign or alienate or convert into raiyati land any communal forest or private land or create occupancy rights therein:

Provided that nothing in this sub-section shall be deemed to prohibit a landlord from leasing out his private land for a period not exceeding two years without previous sanction of the Collector.

(2) When a piece of land comes within the definition of “forest” as given in the Orissa Preservation of Private Forests Act, VIII of 1947, and also within the definition of “communal land” or “forest land” as given in this Act the previous sanction given by the appropriate authority under the clause (a) of sub-section (1) of section (3) of that Act shall be deemed to be the previous sanction as required by subsection (1)

(3) Any landlord who contravenes the provisions of sub-section (1) and any agent of the landlord who abets such contravention shall be punishable with fine which may extend to 1000 rupees:

Provided that no landlord shall be liable to the penalty provided in this subsection of any contravention that took place prior to the date of the passing of this Act.

(emphasis supplied)

16. On query from Court we have not been shown that the Act of 1948 carries definition of ‘communal forest land’. Moving on, we find from section 3 that there is prohibition of alienation of communal forest and private lands. The prohibition is on the landlord, as cannot make the alienation without previous sanction of the Collector. Landlord has been defined in clause (d) under said definitions section 2. The definition is reproduced below.

“(d) “landlord” means-

(i) in relation to estates governed by the Madras Estates Land Act, 1908 (Madras Act I of 1908), “land-holder” as defined in that Act, and

(ii) in relation to cases governed by the Orissa Tenancy Act, 1913 (B. and O. Act II of 1913), “landlord” as defined in that Act.”

Odisha Tenancy Act, 1913 defines landlord under sub-section (9) of definitions section 3. It says, landlord means a person, immediately under who a tenant holds and includes the Government. Sub-section (5) under definitions section 3 in Tamil Nadu Estates Land Act, 1908 (earlier Madras Estates Land Act, 1908) defines land-holder to be a person owning an estate or part thereof and includes every person entitled to collect the rents of the whole or any portion of the estate by virtue of any transfer from the owner or his predecessor-in-title or of any order of a competent Court or of any provision of law. It is clear, therefore that meaning of land-holder under the Act of 1908 does not include Government, whereas meaning of landlord under Odisha Tenancy Act, 1913, does. In interpreting meaning given in sub-section (9) of definitions section 3 in the 1913 Act, the Government as landlord can only be a person, immediately under who a tenant holds. The land, if came within meaning forest land as communal forest, cannot be ascertained from materials on record. Impugned order says it bore kisam ‘chot jungle’. Under the Act of 1962, reservation is to be made in respect of chot jungle and those chot jungles not reserved could and can be settled under the Act. Here we are concerned with prohibition of alienation of communal forest and private lands by the landlord. Original allottee got allotment in a waste land case. He was not tenant. Government was not landlord. No question of alienation arises. Furthermore, consequences of alienation, provided in section 3 of the 1948 Act is penal against the landlord and abettor, not re-possession.

17. State relied on N. Murugesan (supra). The reliance was on passages extracted from earlier judgments of said Court. The passages are reproduced below.

“21. In this regard reference to a passage from Karnataka Power Corpn. Ltd. v. K. Thangappan would be apposite: (SCC p. 325, para 6)

‘6. Delay or laches is one of the factors which is to be borne in mind by the High Court when they exercise their discretionary powers under Article 226 of the Constitution. In an appropriate case the High Court may refuse to invoke its extraordinary powers if there is such negligence or omission on the part of the applicant to assert his right as taken in conjunction with the lapse of time and other circumstances, causes prejudice to the opposite party.’

After so stating the Court after referring to the authority in State of M.P. v. Nandlal Jaiswal restated the principle articulated in earlier pronouncements, which is to the following effect: (Karnataka Power Corpn. Case, SCC p.326, para 9)

‘9. … the High Court in exercise of its discretion does not ordinarily assist the tardy and the indolent or the acquiescent and the lethargic. If there is inordinate delay on the part of the petitioner and such delay is not satisfactorily explained, the High Court may decline to intervene and grant relief in exercise of its writ jurisdiction. It was stated that this rule is premised on a number of factors. The High Court does not ordinarily permit a belated resort to the extraordinary remedy because it is likely to cause confusion and public inconvenience and bring, in its train new injustices, and if writ jurisdiction is exercised after unreasonable delay, it may have the effect of inflicting not only hardship and inconvenience but also injustice on third parties. It was pointed out that when writ jurisdiction is invoked, unexplained delay coupled with the creation of third-party rights in the meantime is an important factor which also weighs with the High Court in deciding whether or not to exercise such jurisdiction.’

22. In State of Maharashtra v. Digambar a three-Judge Bench laid down that: (SCC p. 692, para 19)

‘19. Power of the High Court to be exercised under Article 226 of the Constitution, if is discretionary, its exercise must be judicious and reasonable, admits of no controversy. It is for that reason, a person's entitlement for relief from a High Court under Article 226 of the Constitution, be it against the State or anybody else, even if is founded on the allegation of infringement of his legal right, has to necessarily depend upon unblameworthy conduct of the person seeking relief, and the court refuses to grant the discretionary relief to such person in exercise of such power, when he approaches it with unclean hands or blameworthy conduct.’

23. Recently in Chennai Metropolitan Water Supply and Sewerage Board v. T.T. Murali Babu, it has been ruled thus: (SCC p. 117, para 16) ‘16. Thus, the doctrine of delay and laches should not be lightly brushed aside. A writ court is required to weigh the explanation offered and the acceptability of the same. The court should bear in mind that it is exercising an extraordinary and equitable jurisdiction. As a constitutional court it has a duty to protect the rights of the citizens but simultaneously it is to keep itself alive to the primary principle that when an aggrieved person, without adequate reason, approaches the court at his own leisure or pleasure, the court would be under legal obligation to scrutinise whether the lis at a belated stage should be entertained or not. Be it noted, delay comes in the way of equity. In certain circumstances delay and laches may not be fatal but in most circumstances inordinate delay would only invite disaster for the litigant who knocks at the doors of the court. Delay reflects inactivity and inaction on the part of a litigant—a litigant who has forgotten the basic norms, namely, ‘procrastination is the greatest thief of time’ and second, law does not permit one to sleep and rise like a phoenix. Delay does bring in hazard and causes injury to the lis.”

The Supreme Court in above extracted paragraph 6 from Karnataka Power Corpn. Ltd. [(2006) 4 SCC 322] said delay or laches is one of the factors to be borne in mind. The High Court may refuse to invoke its extraordinary powers if there is negligence or omission on part of the applicant, to assert his right. We reiterate, petitioner in paragraphs 6 and 8 of the writ petition has pleaded ignorance and subsequent discovery, for delay in moving the writ petition. As aforesaid, there is no denial in the counter. As such, we cannot find negligence or omission on his part. Passage from paragraph-16 in T.T. Murali Babu [reported in (2014) 4 SCC 108] says doctrine of delay and laches should not be lightly brushed aside. In exercising an extraordinary and equitable jurisdiction the Constitutional Court has duty to protect rights of citizens but simultaneously must be alive to the primary principle that when approach is by a person without adequate reason and at his own leisure or pleasure, there should be scrutiny as to whether the lis, at a belated stage, should be entertained. In most circumstances, inordinate delay would only invite disaster for the litigant. Here again, petitioner cannot be said to be guilty of having had approached without adequate reason, at his own leisure or pleasure. On rules of procedure being hand maid to justice, there are several declarations by the Supreme Court.

18. In Tukaram Kana Joshi (supra) the Supreme Court dealt with delay on presenting the writ petition. Paragraph-10 is reproduced below.

“10. The State, especially a welfare State which is governed by the Rule of Law, cannot arrogate itself to a status beyond one that is provided by the Constitution. Our Constitution is an organic and flexible one. Delay and laches is adopted as a mode of discretion to decline exercise of jurisdiction to grant relief. There is another facet. The Court is required to exercise judicial discretion. The said discretion is dependent on facts and circumstances of the cases. Delay and laches is one of the facets to deny exercise of discretion. It is not an absolute impediment. There can be mitigating factors, continuity of cause action, etc. That apart, if whole thing shocks the judicial conscience, then the Court should exercise the discretion more so, when no third party interest is involved. Thus analysed, the petition is not hit by the doctrine of delay and laches as the same is not a constitutional limitation, the cause of action is continuous and further the situation certainly shocks judicial conscience.”

(emphasis supplied)

State action is of cancelling lease granted to original allottee, taken beyond the prescribed period of limitation and without notice to petitioner, who is bonafide purchaser for value having registered conveyance. To visit him with consequences of alleged fraud, if accepted to have been practised then must be with participation of the Tahsildar on misuse of power, where there is no allegation of petitioner being involved in the practice, shocks the judicial conscience. Relief of petitioner does not involve any third party interest. He being in continuous possession has continuity in cause of action.

19. In view of aforesaid, impugned order dated 30th June, 1998 cancelling the lease is set aside and quashed. Concerned authorities will cause correction in the record within four weeks of communication.

20. The writ petition is disposed of.