JUDGMENT
Dipak Misra, J.
1. Warrantableness of the orders passed by the Collector Koraout under Section 7-A(3) of the Orissa Government Land Settlement Act, 1952 (hereinafter referred to as ‘the Act’), cancelling the lease granted in favour of the petitioners by the Tahasildar Umerkote and the affirmation of the same by the Revenue Divisional Commissioner (Southern Division) Berhampur, are called in question in these writ applications invoking the Extraordinary Jurisdiction of this Court.
2. As factual backdrop and legal controversy involved are similar and the counsel for the parties advanced a single set of argument, these writ applications are take-up together and are disposed of by this common judgment.
3. The factual matrix giving rise to these bunch of the writ applications may be stated in a concise manner. Chandra Kala Padhi, the petitioner in OJC No. 1864/90, filed an application before the Tahsiidar, Umerkots for settlement of land situated in Plot Nos.530/A, 433/4, 649/1, villag Murtuma, District-Koraput, measuring Ac. 2.00 of land as she was a landless person. The said application was registered as Lease Case No. 9176/76.Ganesh Chandra alias Kumar Padhi the petitioner in OJC No. 1865/90 had filed an application before the Tahasildar for grant of lease in Lease Case No. 9177/76 for an area measuring Ac-2.00 situated in Plot Nos. 530/A, 438/4 and 649/1 of village Murtuma, District-Koraput. Krushna Padhi, the original petitioner in OJC No. 1867/90 had filed an application in respect of plot Nos. 530/A, 438/4, 649/1 forming the subject-matter of Lease Case No. 198/76 for an area measuring Ac. 2.00. Srinivas Padhi, the petitioner in OJC No. 1866/90 had sought for grant of lease measuring Ac. 2.00 of Sand appertaining to Plot Nos. 530-A, 433/4. 649/1 in Lease Case No. 917/76. After following due procedure, the Revenue Officer granted lease in favour of these petitioners on certain terms and conditions. As there was dispute, with regard to fixation of salami, the Revenue Officer issued notice to these petitioners and ultimately, in violation of the principles of natural justice, bahind their back, cancelled the leases. Thereafter, on the basis of a report submitted to him, he initiated encroachment proceedings against them under the provisions of Orissa Public Land Encroachment Act. Appeals were preferred by all the petitioners and the Sub-Collecor, Nawrangpur, allowed the appeals and set aside the orders of eviction. Directions were issued for dropping of encroachment proceedings atter depositing the salami @ Rs. 1801-per acre. In comoliance of the said direction, the petitioners deposited the salami. Thereafter, while they were in peaceful enjoyment of the lease hold area, the Collector, Koraput, initiated sou motu proceedings undar Section 7-A (3) of the Act, being O. G. P. S. Revision Nos. 108/84, 109/84, 110/84 and 111/84 respectively against the petitioners as enumarated hereinbefore. The said authority passed orders for cancellation and setting aside of the lease granted in favour of the petitioners as there had been non-compliance of the procedure and further the petitioners did not belong to the categories who were entitled for such settlement. Being aggrieved by the orders passed by the Collector, Koraput, the petitioners preferred revisions before the Revenue Divisional Commissioner (S. D.), Berhampur which were registered as Revision Case Nos.39/88,48/88 and 42/88 41/68 respectively.The opp. party No.4, the Commissioner affirmed the orders passed by the Collector and dismissed the revisions. Hence the present writ applications at the instance of the aggrieved grantees.
4. A counter-affidavit has been filed by the opposite parties who have supported the orders passed by the Collector and the Revenue Divisional Commissioner asserting that the land had been settled with the petitioners in flagrant violation of O. G. L. S. Act, and therefore, the orders cancelling the lease and the orders affirming the same are on unassailable.
5. We have heard Sri R. K. Mohapatra, the learned Senior Counsel for the petitioners and sri Jairaj Behera, the learned Additional Government Advocate. Though number of contentions have been raised in the writ applications the learned Senior Counsel confined his argument to a singular contention, namely, the lease having been granted on the basis of lease principles, the provisions of the Orissa Government Land Settlement Act, could not have been taken recourse to for the cancellation of the same. Developing his submission, he has canvassed that the lease granted under the lease principles, operates in a different sphere and grant of lease or settlement of land under the O. G. L. S. Act is absolutely in a separate spectrum. The mode, the purpose, the procedure and the paraphernalias are different than the prescribed under the lease principles and therefore, the jurisdiction conferred under the said Act cannot be availed of by the authority for the purpose of cancelling the lease granted under the lease principles. Sri Jairaj Behera, the learned Additional Government Advocate supports the orders of the authorities and vehemently refutes the contentions raised by the learned counsel for the petitioners. It is submitted by Sri Behera that the land in question have been leased out under the Act as the procedures have been followed in accordance with the provisions of the Act and the rules made there-tinder and the Court is required to see the real tenor of the order but not the form or the language used in the order. The learned counsel while addressing on merits has also pointed out the petitioners in all these cases were not entitled to be the grantees of the land and on suppression of facts they had been granted the lease and as the same have been cancelled, by taking recourse to a statutory provision, the same should not be disturbed in exercise of Extraordinary jurisdiction of this Court.
6. To appreciate the rival contentions of the parties, we have perused the records of the lease cases. Reference to the procedures adopted by the Tahasildar and the Collector in one case would suffice. in case of Chandra Kala Padhi, it has been mentioned that the application has been filed for grant of lease of Government land. It has also been mentioned that according to lease principles she is landless and as such is entitled to two acres of land. On the basis of this application, the Additional Tahasildar, Umerkote issued general notice inviting objections and after due enquiry on the basis of the report submitted by the Revenue Inspector, the Additional Tahasildar concerned granted the lease in favour of the said applicant. Similar is the situation ill all the cases. We have also perused the forms in which the applications have been submitted. The ‘Forms’ are different than the form which has been prescribed under the OGLS Ruses, 1974. We find from the order-sheet maintained by the Revenue Officer that he has dealt with the applications as if they were preferred under the lease principles. We also notice that the Collector, while passing the order has observed as follows :
“The opposite party has not filed the lease application before the Tahasildar as required under Rule 3 (1) of the Orissa Government Land Settlement Rules, 1974.”
Thus, it Is apparent that the applications were not under the Act but were under the lease principles and grant, as is clear, under the said principles.
7. This being the factual position, we will now address ourselves in regard to the issue whether grant of lease under the lease principles or otherwise is liable for cancellation under the provisions of the Act.
The Orissa Government Land Settlement Act, : 1962 (Orissa Act 33 of 1962) was enacted to provide for settlement of Government !and in the State of Orissa. The ‘Statement of Objects and Reasons’ of the Act are reproduced below for batter appreciation :
“Statement of Objects and Reasons-At present settlement of Government waste Sands is being made according to the exhaustive instructions issued from time to time and also according to provisions in various Acts, Rules, Orders, customary practice and usage in force in various parts of the State. The power to reserve Sand for communal and other public purposes, levy of salami, charging of rent, application fees and other fees and the authority to dispose of such application are different according to the laws and rules in force in different parts of the State. This makes its administration difficult and gives cause for complaint by the public due to lack of uniformity. . The present Bill Is therefore proposed to be enacted as a general legislation formulating a set of uniform principle regarding lease of Government waste lands overrid0ing provisions of various Acts, Rules, Orders, customary practice and usage in force in various parts of the Slate instead of tinkering with the individual laws with the primary objective of governing the settlement of waste lands in a planned manner uniformly throughout the State,”
Keeping the said Objects and Reasons in view, it has been provided under Section 3 for Reservation and Settlement of Government lands. It is appropriate to quote the said section :
“3. Reservation and settlement of Government lands-(1) Notwithstanding anything to the contrary in any law or any custom, practice or usage having the force of raw Government shall not be deemed to be debarred from exercising all or any of the following powers in respect of Government lands, namely:
(a) to reserve such portion, of the lands as they deem proper for the purpose of being used as house-sites or for any communal or industrial purpqse or for any other purpose whatsoever ;
(b) to charge premium for settlement of any such land;
(c) to charge rent for the lands so settled;
(d) to charge fees on application for settlment of lands and such other fees as may be necessary for or incidental to the disposal of such application at such rates as may be prescribed and all such fees shall be payable in the prescribed manner; and
(e) to authorise any officer of Government not below the rank of a Tahasildar to dispose of applications for settement of lands and to settle the same in such manner as may be prescribed and subject to the provisions of Sub-sections. (2) and (3) :
Provided that no Government land recorded as Gochar shall he reserved for any purpose mentioned in Clause (a) or settled under Clause (e) without being de-reserved in accordance with the provisions Contained in Section 3-A.
(2) In the settlment of lands under Clause (e) of Sub-section (1), seventy per certum thereof shall be settled with the persons belonging to the Scheduled Tribes and the Scheduled Castes in proportion to their respective populations in the village in which the lands are situated and the remaining lands shall be settled with the other persons not belonging to the aforesaid categories :
Provided that if sufficient number of persons belonging to the aforesaid categories are not available in the village in which the lands are situated or being available are not willing to accept the settlement of land, so much of the land reserved for the said persons as cannot be settled with them may be settled with other persons.
(2-a) The maximum extent of land to be settled under this section with any person for purposes of agriculture or for purposes of homestead shall be such as may be determined by Government from time to time.
(3) The settlement of lands under this section shall be made in the following order of priority, namely :
(a) co-operative farming societies formed by landless agricultural labourers;
(b) any landless agricultural labourers of the village in which the land is situate or of any neighbouring village;
(c) ex-servicemen or members of the Armed Forces of the Union, if they belong to the village in which the land is situate;
(d) raiyats who personally cultivate not more then one standard acre of land; Explanation-In this clause the expression “standard acre” has the meaning assigned to it in the Orissa Land Reforms Act, 1960 (Orissa Act 16 of 1960); and
(e) in the absence of persons belonging to any of the foregoing categories, any other persons.”
We may now advert to the scheme of the Act.Section 3-A deals with power to de-reserve land Section 3-B deals with Resumption of land and imposition of penalty Section 4 deals with Settlement of char and diara lands; Section 5-A deals with prepartion of schemes for management and development of Gochar lands; and other provisions of the Act deal with Appeal, Revision, delegation of powers and power to make rules. The rules framed under the Act provide the procedure for urban land and reservation for house-siting, de-reservation principles, manner of settlement of Government land principles for settlement, settlement of land for homestead purpose in rural areas, settlement of house-sites in urban areas and such other ancilary matters. Thus, it is quite clear that the Act has a different purpose and it has its own inbuilt and exhausti. e procedure for reservation and settlement of Governmant land. We may profitably refer to the case of Anugraha Narayan Tiwari v. Tahasildar, Nawapara and Anr., reported in 78(1994)CLT 467 in which this Court expressed thus :
“9…The O. G. L. S. Act devised a complete different procedure for reservation and settlement of Government lands. The provisions came into operation only when specific Government lands were available for reservation and settlement with an inbuilt procedure that first of all reservation was to be made in order of priority amongst co-operative farming societies formed by landless agricultural labourers, any landless agricultural labourers of the village in which the land was situate, and raiyats who personally cultivated not more than one standard acre of contiguous land…. ”
8. This being the position, there is no difficulty to conclude that the grant of lease on the basis of lease principles is quite different than the lease of land granted under the provisions of the Act. There is no prohibition under the Act for granting lease under the lease principles. It is nowhere being mentioned in the Act that the lease principles have been superseded. Once it is held that they are in force and do not have any conflict with the provisions of the Act, there is no bar on the part of the Revenue Officer to grant lease on the approved lease principles. Whether a grant is correct or not, is in accordance with the said provisions or not, or whether there has been any error or lacuna is such a grant is quite different than the competency to grant. If a particular land has been leased out or settled in favour of an applicant, either under the approved lease principles or otherwise but not under the provisions of the Act. the said settlement or lease is not available for being set aside in exercise of jurisdiction conferred under Section 7-A (3) of the Act. Our view is fortified by a decision rendered in the case of Raj Kishore Das v, State of Orissa and Ors., reported in 1994 (II) OLR 149, wherein their Lord-ships have held thus :
“………In the aforesaid premises the conclusion is irresistible that the settlement of five acres of land in favour of petitioner was not made in accordance with the provisions of the Act, but it was under the lease principles read with Government notification which made special provision for special categories of persons who could not be treated on the same footing as private individuals. It, therefore, follows that a suo motu proceeding under Section 7-A (3) of the Act could not be resorted to for examining the corectness or otherwise of the settlement made in favour of the petitioner. The suo motu proceeding initiated against, the petitioner is, therefore, held incompetent and the order of the Additional District Magistrate in Annexure-5 is bound to be quashed on this count alone……………….”
9. From the aforesaid decision, it is beamingly clear that if the land is not settled under the Act, initiation of action under Section 7-A (3) of the Act cannot be taken recourse to.
10. In the case at hand, we find the application -was not in the form prescribed under the rules. On the contrary it was filed clearly stating that it was under the lease principles. The Tahasildar dealt with it as if it was under the lease principles. He had not dealt with it under the principles of O. G. L. S. Act. The provisions made therein are quite different than the provisions for grant of lease under the lease principles. A landless person is also entitled for grant of lease under the said principles and the Tahasildar has exercised his jurisdiction by granting lease invoking his jurisdiction under the lease principles. In any view of the matter, the order has not been passed under the O. G L. S. Act. It is not disputed by the learned counsel for the opposite parties that a landless person can file an application for grant of lease. Whether there has been illegality or procedural illegality or fraud or mis-representation is another matter. We are only concerned at this juncture whether the Collector in exercise of his suo motu power under Section 7(1) (a) (b) of the Act could have cancelled the lease, if the same was not granted under the Act. It is crystal clear that such a cancellation, taking recourse to the provisions of the Act. is impermissible. The action of an authority not competent to act as provided under the law cannot be sustained. We are, therefore, of the considered view that the order of cancellation passed by the Collector (Annexure-6) and the confirmation thereof by the Revenue Divisional Commisioner (Southern Division), Berhampur, (Annexure-7) are liable to be quashed and we accordingly do so.
11. In the result, the writ applications are allowed. However, there shall be no order as to costs.
P.C. Naik, J.
12. I agree.