B.P. DAS, J.1. The petitioner has filed this writ petition challenging the order dated 30.1 .2004 passed by the Revenue Divisional Commissioner, Southern Division, Berhampur, O.P.1 in O.G.L.S.R.C. No. 13/2002, vide Annexure-1.
2. The brief facts, as delineated in this writ petition, tend to reveal as follows:
The petitioner, who claims to be the Proprietor of a hotel “M/s. Hotel Khusi” at Bhawanipatna, on 1.1.2001 applied to the Tahasildar, Kalahandi, O.P.3 for grant of lease of a government land measuring an area of Ac. 0.500 decimals under Khata No. 1456 plot No. 15281 5999 for running a hotel-cum-lodge. The Tahasildar on receipt of such application directed the Amin to cause a field enquiry and submit report by 3.1.2001. Pursuant to such direction of the said Tahasildar, the Amin verified the records and submitted a report indicating that the said plot was not reserved for any purpose and was also free from encumbrances. Considering the Amin’s report, the Tahasildar issued a proclamation inviting objection from public within thirty days of its publication, vide Annexure-2. A copy of the proclamation was sent to the Sub-Collector, Bhawanipatna, Executive Officer, Bhawanipatna Municipality, Block Development Officer, Bhawanipatna Sadar, for wide publication and a copy was also fixed on the notice of the Tahasil Office for information of the general public, as per Rule 5(5) of the O.G.L.S. Rules, 1983. As no objection was received from any quarter during the prescribed period, on 2.2.2001 the Tahasildar visited the spot and found that the land was free from encroachment and encumbrances and there was no mine or mineral and standing trees on the land. Thereafter, he fixed the premium and directed the petitioner to pay a sum of Rs. 37,975/- towards the land value after sanction of the lease and submitted the records to the Sub-Collector, Bhawanipatna for onward transmission to the Collector, Kalahandi, O.P.2 for final order. The Sub-Collector recommended for sanction of lease of the government land in favour of the petitioner. The Collector, Kalahandi, O.P.2 by order dated 24.11.2001 sanctioned lease of the government land in question in favour of the petitioner on the terms and conditions stipulated therein, vide Annexure-5 and intimated the same to the concerned authorities.
After sanction of the lease, the petitioner deposited the full premium amount where after the lease deed was executed in her favour for a period of ninety-nine years, vide Annexure-6. The petitioner took delivery of possession of the land and after getting permission from the Special Planning Authority, Bhawanipatna, constructed the hotel building on the lease-hold plot and started her hotel business. According to the petitioner, the Tahasildar also made necessary correction in the ROR in favour of the petitioner, copy of which is Annexure-8. The allegation of the petitioner is that while she was continuing her hotel business on the said plot of land, some persons having business rivalry with her made allegation of irregularity in sanction of the lease basing upon which the Collector on 22.6.2002 called for the lease case records from the Tahasil Office, Kalahandi and filed an application before the R.D.C., O.P.1 under Section 7-A(1) of the O.G.L.S. Act to revise the lease order issued vide Order No. 1980 dated 24.11.2001 (Annexure5). The R.D.C. by the impugned order dated 30.1.2004 (Annexure-1) allowed the revision application by quashing the order of the Collector sanctioning lease of the disputed land in favour of the petitioner.
3. Though the revision application was filed beyond the prescribed period of limitation, the R.D.C. condoned the delay and entertained the same for adjudication. The R.D.C. in the impugned order in Annexure1 has indicated that the land was earlier classified as ‘Jalachar Kissam’ under plot No. 1528 of Khata No. 1454 of Bhawanipatna town. It was de-reserved by the Collector, Kalahandi on 25.11.1997, vide case No. 1/97 and the R.O. R. was corrected by changing the Kissam of the land from ‘Jalachar’ to ‘Ghaspadia’. Section 3(1 )(a) of the O.G.L.S. Act provides for reservation of land. Section 3-A(1) provides’ for dereservation of land reserved under Section 3 (1 )(a). According to the R.D.C., the finding of the Collector that ‘Jalachar Kissam’ of land has lost its character and it is now lying vacant as ‘Grass Field Kissam of land’, is not correct and legal as the land was never reserved for settlement under Section 3 (1 )(a) of the Act. He held that the change of Kissam of the land and the correction of record of rights could have been done under the provisions of the Survey Settlement Act, and hence the change of classification of the suit land is illegal and beyond the jurisdiction of the Collector, Kalahandi.
4. Learned counsel for the petitioner draws our attention to Rule 4 of O.G.L.S.Rules, 1983, which lays down principles for dereservation. Sub-rule (ii) of Rule 4 of O.G.L.S. Rules, 1983 provides as follows:
“4. (ii) In case of objections filed before the Tahasildar, he shall hear the parties on a date fixed by him and, after such hearing, shall forward his recommendation to the authorized officer for orders. On receipt of recommendation from the Tahasildar, the authorizing officer may, on being satisfied with the grounds advanced by the Tahasildar for de-reservation, accept and modify to the extent, if he considers necessary or reject the same. The orders passed by the authorized officers shall be communicated to the concerned Tahasildar. When the authorized officer passes orders for de-reservation such orders shall be published in the I manner prescribed in Sub-rule (5) of Rule 5. The Tahasildar I shall thereafter make necessary corrections in the record-of rights.”
Learned counsel for the petitioner referring to the aforesaid proviso submits that after the process of de-reservation is over, the Tahasildar can make necessary correction in the Record of Rights.
5. The stand taken by the O.Ps. 2 and 3 in the counter affidavit is similar to the stand taken by the R.D.C. in the impugned order.
This plea cannot give any strength to the O.Ps. 2 and 3 as the order passed by the R.D.C. fails to withstand the judicial scrutiny.
6. On a bare reading of the impugned order, we find that the R.D.C. has not kept the provisions of Rule 4 of the O.G.L.S. Rules, 1983 in view, which in our considered opinion, he ought to have done. Apart from that, it is submitted, the character of the land has been changed, inasmuch as a construction has been made over the land with the permission of the appropriate authority, and the petitioner is running her business there. In our view, it would be proper on the part of the R.D.C. to re-consider the matter taking note of the aforesaid construction as well as provisions of the O.G.L.S. Rules and pass a fresh order.
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r />Accordingly, we quash the order dated 30.1.2004 passed in O.G.L.S.R.C. No. 13/2002 by the Revenue Divisional Commissioner, Southern Division, Berhampur, O.P.1, vide Annexure-1 and remand the said matter to the R.D.C., O.P.1, for fresh disposal keeping the provisions of Rule 4 of the O.G.L.S. Rules, 1983 in view, without being influenced by his previous order. If in the meantime, any new Act or statute has been enacted, that may also be taken care of by the said authority. In the result, we allow this writ petition and quash the impugned order of the R.D.C. We remand the matter to the R.D.C. for fresh disposal of the O.G.L.S.R.C. in the light of the direction/observation made above. S. PANDA, J. I agree. Petition allowed.
