# ORISSA OLYMPIC ASSOCIATION TH. GENERAL SECRETARY v. STATE OF ORISSA & ANR

- **Citation:** [2017] 6 S.C.R. 813
- **Court:** Supreme Court of India
- **Decided:** 2017-04-03
- **Case number:** Civil Appeal No. 6450of2016
- **Bench:** Dipak Misra, Praffula C. Pant
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/orissa-olympic-association-th-general-secretary-v-state-of-orissa-anr-32032
- **Pages:** 68

## Headnote

Orissa Prevention of Land Encroachment Act, 1972:
Encroachment on Government land - Appellant-association
was granted lease of land for construction of stadium - Dispute
arose regarding a part of a plot on which 23 shops and a part of
Kalyan mandap was built by the appellant-association - State
contended that the said portion of land was outside the limit of the
leased out area to the appellant-association - Appellant contended
that the said part was also granted under lease and erroneously
excluded by the State records - Held: A committee of judicial officers
was constituted to measure the lease hold area and submit report
whether the 23 shops and Kalyan mandap were within the said lease
hold land - On perusal of report of the Committee and other
materials on record, two aspects were clear (i) the appellantassociation encroached upon the property of the State Government
and built 23 shops and, as the report of the Committee would reflect,
Kalyan mandap stands partly on the government land; (ii) the
property that stands on the government land has to go back to the
government - Further, the Ka(van Mandap should vest in the State
Government and shall be managed by the District Collector.
B
c
D
E
F
Audit of income derived from suit land -Appellant-association
was granted lease of land for construction of stadium - Dispute
arose regarding part of a plot on which 23 shops and a part of
Kalyan mandap was built by the appellant-association, ·which was
also claimed by the State Government - Whether the income received
from the said land were audited and the amount derived properly G
accounted by the appellant-association - Held: The association
has raised construction by encroaching upon the Government land
- There is a lot of gap between the figure arrived at by the
Accountant General on the basis of the market rent and the figure
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B
SUPREME COURT REPORTS
[2017] 6 S.C.R ..
arrived at by the expert engaged by the appellant-association -
State has shown the revenue generated after it was handed over to
it which indubitably shows that the 23 shops were given on luwer
rent and similarly Kalyan mandap h.ad been let out at a very low
price or there had been collusion to show lower receipt though
actually there was high c.ollection on rents - It has to be borne in
mind that the revenue has been generated by constructing on the
government land and profits has been earned from the same - That
warrants scrutiny and investigation -
Central Bureau of
-
Investigation directed tu investigate into the matter keeping in view
the report of the Accountant General and other aspects.
c
D
E
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Conflict of Interest - Appellant-association was granted lease
of land for construction of stadium - Dispute arose regarding·a
part of a plot on which 23 shops and a part of Kalyan mandap was
built by the appellant-association, which was also claimed by the
State Government - Appellant-association executed contract with
Mis. 'I' for purpose of holding marriages and sun of associations
general secretary was partner in Mis. 'I' - Further. there was
allegation that sun and sun-in-law were also partners - In such a
situation conflict of interest arises - Held: The suit land whereon
23 shops were constructed and rented out, belongs to the State
Government and a part of Kalyan Mandap is also built on the
Government land - In the instant case, the son of the Secretary of
the association is a partner in the jihn that had been given contract
- The son might have been inducted as a partner at a later stage
but the fact remains that the father was the Secretm:v of the
association - The arrangement entered into by the association with
A1/s. 'I' was absolutely illegal and there was conflict of interest since
the Secreta1y s son and son-in-law were inducted as partners in the
concerned firm; also there was revenue loss as the audit re1jort of
the Accountant General is appreciated; the Secretary of the
association could nut have been instrumental in unauthorised
co

## Text

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[2017] 6 S.C.R. 813
ORISSA OLYMPIC ASSOCIATION TH. GENERAL SECRETARY
A
v.
STATE OF ORISSA & ANR.
(Civil Appeal No. 6450of2016)
APRIL 03, 2017
[DIPAK MISRA AND PRAFFULA C. PANT, JJ.]
Orissa Prevention of Land Encroachment Act, 1972:
Encroachment on Government land - Appellant-association
was granted lease of land for construction of stadium - Dispute
arose regarding a part of a plot on which 23 shops and a part of
Kalyan mandap was built by the appellant-association - State
contended that the said portion of land was outside the limit of the
leased out area to the appellant-association - Appellant contended
that the said part was also granted under lease and erroneously
excluded by the State records - Held: A committee of judicial officers
was constituted to measure the lease hold area and submit report
whether the 23 shops and Kalyan mandap were within the said lease
hold land - On perusal of report of the Committee and other
materials on record, two aspects were clear (i) the appellantassociation encroached upon the property of the State Government
and built 23 shops and, as the report of the Committee would reflect,
Kalyan mandap stands partly on the government land; (ii) the
property that stands on the government land has to go back to the
government - Further, the Ka(van Mandap should vest in the State
Government and shall be managed by the District Collector.
B
c
D
E
F
Audit of income derived from suit land -Appellant-association
was granted lease of land for construction of stadium - Dispute
arose regarding part of a plot on which 23 shops and a part of
Kalyan mandap was built by the appellant-association, ·which was
also claimed by the State Government - Whether the income received
from the said land were audited and the amount derived properly G
accounted by the appellant-association - Held: The association
has raised construction by encroaching upon the Government land
- There is a lot of gap between the figure arrived at by the
Accountant General on the basis of the market rent and the figure
813
H
814
A
B
SUPREME COURT REPORTS
[2017] 6 S.C.R ..
arrived at by the expert engaged by the appellant-association -
State has shown the revenue generated after it was handed over to
it which indubitably shows that the 23 shops were given on luwer
rent and similarly Kalyan mandap h.ad been let out at a very low
price or there had been collusion to show lower receipt though
actually there was high c.ollection on rents - It has to be borne in
mind that the revenue has been generated by constructing on the
government land and profits has been earned from the same - That
warrants scrutiny and investigation -
Central Bureau of
-
Investigation directed tu investigate into the matter keeping in view
the report of the Accountant General and other aspects.
c
D
E
F
G
H
Conflict of Interest - Appellant-association was granted lease
of land for construction of stadium - Dispute arose regarding·a
part of a plot on which 23 shops and a part of Kalyan mandap was
built by the appellant-association, which was also claimed by the
State Government - Appellant-association executed contract with
Mis. 'I' for purpose of holding marriages and sun of associations
general secretary was partner in Mis. 'I' - Further. there was
allegation that sun and sun-in-law were also partners - In such a
situation conflict of interest arises - Held: The suit land whereon
23 shops were constructed and rented out, belongs to the State
Government and a part of Kalyan Mandap is also built on the
Government land - In the instant case, the son of the Secretary of
the association is a partner in the jihn that had been given contract
- The son might have been inducted as a partner at a later stage
but the fact remains that the father was the Secretm:v of the
association - The arrangement entered into by the association with
A1/s. 'I' was absolutely illegal and there was conflict of interest since
the Secreta1y s son and son-in-law were inducted as partners in the
concerned firm; also there was revenue loss as the audit re1jort of
the Accountant General is appreciated; the Secretary of the
association could nut have been instrumental in unauthorised
construction on the government land and in generating revenue
therefrom; furthe1; there was serious concern about the nature of
revenue generation utilisation and the fuss sustained - Therefore.
the agreement between the association and Mis. 'I' declared null
and void - The Secretary, who is accountable to the public, failed
to conduct himself as required under law - He is debarred from
contesting for any post in the association.
ORISSA OLYMPIC ASSOCIATION TH. GENERAL SECRETARY
v. STATE OF ORIS SA & ANR.
Issuing the directions, t~e Court
HELD: 1. The report subl'nitted by the Committee headed
by the District Judge, Cuttack regarding the measurement of
lease hold area was accepted. Further, a report on audit of the
accounts in respect of 23 shops and Kalyan Mandap on disputed
land was also submitted by the Accountant General· of Odisha. 23
shops are situated on the Government° land and part of the Kalyan
Mandap is also situated on the Government land. This makes it
quite clear that the association ha.s raised construction by
encroaching upon the Government land and the expert engaged
by the association gives the opinion that Rs. 97.33 lakhs by way
of rent had been earned. There is a lot of gap between the figure
arrived at by the Accountant General of Orissa on the basis of
the market rent and the figure arrived at by the expert. That
apart, the State has shown the revenue generated after it was
handed over to it which indubitably shows that either the 23 shops ·
were given on lower rent and similarly;Kalyan Mandap had been
let out at a very low. price or there had been collusion to show'
lower receipt tho~gh actuall)'. there was high collection on rents.
This would require investigation, [Para. 48] [874-F-H; 875-A]
2. The controversy does not end· here; In earlier
proceedings, this Court had noted about· the indudioit of the sonin-Iaw of the Secretary as a partner' in the firm Ml!! 'I' Assodates
that has entered into agreement with the association. l:{e miglit
have been inducted at a later stage. There was also all~gation
that the son and son-in-law are also partn~rs. In such a situation,
the conflict of interest 11rises. [Para 49] [~75-B] ·
3. As per the report submitted by the CAG and the revenue
generation of the State, it is crystal clear that it is incumbent to
look at how and under -what circumstances the agreements were
entered into at a low rate and what amount was actually collected
and what happened to the said sum. It has to be borne in mind
that the revenue has been generated by constructing on the
government land and profit has been earned from the same. That
warrants further scrutiny and investigation. [Para 50] (875-C]
4.1 Another aspect which cannot be ignored relates to
conflict -of interest. This Court had noted that. the son and
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SUPREME COURT REPORTS
[2017] 6 S.C.R.
son-in-law of the General Secretary of the Orissa Olympic
Association, were partners. The concept of conflict of interest is
well established. A person who is accountable to the public and
deals with public affairs is not expected, as required under the
law, to have any personal interest. He is not to act in a manner
where it is perceived that he is directly or indirectly the
beneficiary; or for that matter, extends the benefit ·to a person of
immediate proximity. [Para 51) [875-D-G)
4.2 When an administrator is discharging public function,
he is also required to avoid any type of conflict of interest. Any
action that would show conflict of interest is a transgression of
the fundamental principle of fair administration and governance.
It can be stated with certitude that the principle of rule of law
does not countenance such conflict of interest. It is clear as day
that the relationship between the two individuals and their different
obligations expose conflict of interest. It is an interest where
one may abuse the public office to gain personal benefit either
directly or indirectly. In the instant case, the son of the Secretary
of the association is a partner in the firm that had been given the
contract. The son might have been inducted as a partner at a
later stage but the fact remains that the father was the Secretary
of the association. [Para 54) [878-B-E]
5. It is concluded that the suit land, whereon 23 shops have
been constructed and rented out, belongs to the State
Government; that a part of the 'Kalyan Mandap' is built on the
Government land and a portion of it on the leasehold area of the
association; that the association could not have constructed the
'Kalyan Mandap' in this manner and, therefore, the portion of
the land deserves to be resumed by the State Government; that
the arrangement entered into by the association with Mis. 'I'
Associates is absolutely illegal and there is a conflict of interest
since the Secretary's son and son-in-law have been inducted as
partners in the concerned firm; that there is revenue loss as the
audit report of the Accountant General is appreciated; that the
Secretary of the association could not have been instrumental in
unauthorised construction on the government land and in
generating revenue therefrom; that there is a serious concern
about the nature of revenue generation utilisation and the loss
ORISSA OLYMPIC ASSOCIATION TH. GENERAL SECRETARY
817
v. STATE OF ORI SSA & ANR..
sustained and that there is something rotten in the management A
of the affairs in fiscal aspects. (Para 55] (878-E-H; 879-A]
6. Having so concluded, the following directions are
issued:-
(i) The Collector, Cuttack, shall take over possession of
23 shops and the 'Kalyan Mandap'.
B
(ii) The Department of Revenue shall be entitled to continue
the tenancy and maintain the Kalyan Mand:ip and manage the
affairs of the said property through District Collector, Cuttack.
(iii) No tenant or anyone shall be entitled to institute any
C
litigation in any manner in respect of the said property involved
in this appeal that has arisen from T.S. No. 312 of 1991 instituted
in the Court of Additional Civil Judge, Senior Division, Cuttack.
(iv) The government, if it decides to manage the properties
by entering into fresh agreement, is at liberty to do so.
0
(v) The agreement between ·the association and M/s. 'I'
Associates is declared null and void.
(vi) As the conflict of interest is obvious and the Secretary,
who is accountable to the public, has failed to conduct himself as
required under the law, he is debarred from contesting for any · E
post in the association. (Para 56] (879-B-E]
· 7. Keeping in view the report of the Accountant General
and the grave doubt that emerges with regard to realisation of
rent or otherwise, there has to be investigation and, accordingly,
it is directed that the Central Bureau of Investigation shall
investigate into the matter keeping in view the report of the
Accountant General and the other aspects which pertain to 23
shops and the Kalyan Mandap. If anything ancillary is required,
the investigating agency can also look into those aspects. [Para
57] [879-F]
Gram Panchayat of Village Naulakha v. Ujagar Singh
and others AIR (2000) SC 3272; State of Rajasthan v.
Ha1phool Singh (dead) through his LRs. (2000) 5 SCC
652 : (2000] 3 SCR 958; Government of Andhra
Pradesh v. Thummala Krishna Rao and another (1982)
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SUPREME COURT REPORTS
[2017] 6 S.C.R.
2 SCC 134 : (1982] 3 SCR 500; State v. Bhanu Mali
AIR 1996 Orissa 199; Durgadevi Agarwal/a v. State
of Orissa AIR 2014 Orissa 140; Labangalata Panda
v. State of Orissa AIR 2002 Orissa 147; Sheyodyhan
Singh v. Sanicharakuer [1962] 2 SCR 753; Board of
Control for Cricket' in India v. Cricket Association of
Bihar and others (2015) 3 SCC 251 : [2015] 1 SCR
1~5; V. C. Rangadurqi v. D. Gopalan and others (1979)
1 SCC 308 : [1979] 1 SCR 1054; Noratanmal
Chouraria v. M.R. Murli and another (2004) 5 SCC
689 : (2004] 1 Suppl. SCR 266 -'- referred to.
Case Law Reference
AIR (2000) SC 3272
referred to
Para 12
(2000] 3 SCR 958
referred to
. Para 12
[1982) 3 SCR 500
referred to
Para 28
AIR 1996 Orissa 199
referred to
Para 28
AIR 2014 Orissa 140
referred to
Para 28
AIR 2002 Orissa 147
referred to
Para 28
· [1962} 2 SCR 753
referred to
Para 29
(2015) 1 SCR 165
referred to
Para 51
[1979) 1SCR1054
referred to
Para 52
[2004] 1 Suppl. SCR266
. referred to
Para 53
CIVIL APPELLATE JURISDICTION: Civil Appeal No. 6450
of2016.
<>
From the Judgment and Order dated 29.11.2014 of the High Court
of Orissa at Cuttack in First Appeal No. 1.W of 2001.
Raghavendra S. Srivatsa, Gaurav Khanna, Advs. for the Appellant.
Krishnayan Sen, ·uddyam Mukherjee, Himanshu Bhushan,
Ms. Binu Tamta, Vika~ Bansal, G. S. Makkar, D. S. Mahra, Advs. for
the Respo_udents.
Th~ Judgment of the Court was delivered by
ORISSA OLYMPIC ASSOCIATION TH. GENERAL SECRETARY
v. STATE OF ORISSA& ANR.
DIPAK MISRA, J. 1. The assailment in the instant appeal, by
special leave, is to the legal acceptability of the judgment and order
dated 29.11.2014 passed by the High Court ofOrissa, Cuttack, in First
Appeal No. 158of2001 whereby the learned Single Judge ha_s set aside
the judgmt::nt and decree dated 16.04.1999 and 21.04.1999 respectively
passed by the learned Additional Civil Judge, Senior Division, Cuttack in
T.S. No. 312 of 1991 wherein the learned trial Judge had decreed the
suit of the plaintiff-appellant and permanently restrained the defendants,
the State of Orissa and. its functionaries, from disturbing tiie peaceful
possession of the plaintiff-association over the suit land .
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. . . 2. The facts which are essential to be exposited for the purpose
. -Of the -present appeal are that the appellant-association was granted c
lease of land measuring acres 20.808 decimals appertaining to Sabik
SettlementPlotNo.156andportionsofPlotNos.139, 1.43, 155and 177
for. the construction of a stadium. The lease deed was executed on
04.09.!949 and registered on 24.09.1949. After obtaining the lease of
the land, the appellant raised high compound walls enclosing the lease
D
hold area. However, to the north eastern silie, a space measuring about
75 decimals was left outside the compound for the purpose of parking in
respect of which also the possession remained with the appellant.
3. As further averred in theojJlaint, subsequent to the grant of
lease in the year 1949, the association was granted further areas for
· which fresh lease deed was executed. The. plaintiff has pleaded that the
leasehold area of acres 20.808 decimals included an area of acres 6.520
decimals of Sabik Plot No. 139. An area of 0.048 decimals of this plot
was then included in the barbed wire compo~nd of the then Secretariat
which is in occupation of the Branch Recruiting Qffjce. It was put forth
that though the recorded area of Plot No. 139 was acres 7.345 decimals,
yet on actual spot measurement, it was acres 6.568 decimals. It was
asserted that the entire area was within the compound of the associatiorr
' except the area of acres 0.075 decimals that was left outside the compound
for the purpose of parking anll the area of acres 0.048 decimals which
was within the Secretariat endosure.
4. It was further asseverated in the plaint that during Hal settlement
operation, due to lack of supervision, certain mistakes occurred in
recording of different plots. As far as Sabik Plot No. 139 is concerned,
a part of it measuring an area of acre 0.705 decimals was included in the
Hal Plot No. 7 out of which acre 0.630 decimals were within the
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SUPREME COURT REPORTS
[2017] 6 S.C.R.
compound of the plaintiff-association and acre 0.075 decimals was outside
(0.630 + 0.075 = 0.705) the land. Thus, the total land was acre 0.705
decimals. It had been further set forth that the Hal Plot No. 7 also included
portions of Sabik Plot Nos. 137 and 140 and thereby Hal Plot No. 7 with
a total area of acre 0.880 decimals stood included in the Hal Khata No.
203 which was recorded in the name of the State as "rakhit". It was
contended that the said record was erroneous in view of the fact that no
part of the said plot was in Khas possession of the State. As indicated
earlier, acres 0.705 decimals relating to Sabik Plot No. 139 was in
possession of the appellant. The remaining area of acre 0.175 decimals
relating to Sabik Plot No 137 and Plot No. 140 was in possession of the
Branch recruiting office. Prior to the settlement, there was no "rakhit"
land by the side of the road to be recorded in the name of the State. A
number of very old houses belonging to the plaintiff and to the Branch
recruiting office physically stood on this Hal Plot No. 7. The Hal
settlement Khatian was finally published on 11.04.1988 but it was not
available to the public. It was alleged that the land in question was in
possession of the association and further though a vast area covering
about twenty four acres was in possession, yet the incorrect entry/
inclusion in the Hal settlement could not be detected earlier as the Hal
Settlement Map was not available.
5. As set forth in the plaint, the Tahsildar initiated proceeding against
the appellant under the Orissa Prevention of Land Encroachment Act,
1972 (for brevity, "the Act") vide Encroachment Case No. 213/1 of
1990/91 under the Act for eviction and the said proceeding was based
on the wrong record as mentioned above.
6. Because of these circumstances, the appellant, after serving
notice u/s 80 CPC instituted the suit for right, title and interest and
permanent injunction in respect of the suit property, i.e., Khata No. 203,
Plot No. 7 measuring acre 0.705 decimals corresponding to part of Sabik
Plot No. 139 on the ground that the land had been leased out in its
favour. A relief was also sought to declare that the record of Hal Plot
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No.7 in Hal Khata No. 203 so far as it related to acre 0.705 decimals of
Sabik Plot No. 139 be declared incorrect. That apart, the plaintiff
alternatively prayed for a declaration that it had perfected title over the
suit land by way of adverse possession.
7. The defendants filed the written statement admitting that the
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plaintiff-association was in possession of the area as claimed. It also
ORISSA OLYMPIC ASSOCIATION TH. GENERAL SECRETARY
v. STATEOFORISSA&ANR. [DIPAKMISRA,J.]
accepted that the association had constructed a massive stadium and
many other houses and the entire area was enclosed by high compound
walls. The defendants-respondents denied that the leasehold area of
acres 20.808 decimals included an area of acres 6.520 decimals of Sabik
Plot No. 139. It was their stand that it included an area of acres 6.222
decimals. It was averred that an area acres 20.808 decimals had been
leased out for twenty years for construction of stadium as per
Government order in letter no. 17484 dated 29.6.1949 and lease deed
bearing No. 4524 dated 29.9.1949 was executed and subsequently
renewed vide Deed No. 2526 dated 19.4.1974 for a period of another
twenty years. It was also pleaded that the Government sanctioned an
area acres 2. 703 decimals in their Sanction Order No. 11680 dated
22.2.1959 for construction oflndoor Stadium and an area of acres 1.939
decimals for sinking a Swimming Pool, Swimming Club and a Restaurant,
but no lease deed in respect of acres 1.939 has been executed. It was
further pleaded that during Hal settlement, the total area of acres 24.733
decimals has been recorded in the name of the appellant-Association
including an area of acres 1.222 decimals out of acres 1.939 as referred
to above for which no lease deed has yet been executed and the
differential area measuring acre 0.717 decimals (acres 1.939- acres
1.222) has been recorded during Hal settlement in Government Rakhit
Khata and the plaintiff-Association is in unauthorized possession of acre
0.634 decimals out of the said area of acre 0.717 for which encroachment
case was initiated and an order of eviction has been passed.
8. On the basis of the pleadings, the learned trial Judge framed
the following issues:-
!. Whether the plaintiff is in possession of the suit land from the
year 1949 and has perfected title by adverse possession?
2. Whether the suit land has been recorded in Rakhit Khata due
to lapses of the plaintiffassociation?
3. Whether the suit land is liable to be settled on lease basis in
favour of the plaintiff?
4. Whether notice U/s 80- C.P.C. has not been served?
5. To what relief, if any, the plaintiff is entitled to?
9. To prove its case, the plaintiff-association examined the manager
of the association and the defendants did not examine any witness in
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SUPREME COURT REPORTS
[2017] 6 S.C.R.
support of their stand. As stated earlier, the trial Judge, by its judgment
dated 10.04.1999, decreed the suit and permanently restrained the
defendants from disturbing the possession of the plaintiff-association
over the suit land. It was contended before the High Court that the State
Government had filed before the High Court Misc. Case No. 497 of
2001 seeking leave to produce the final order passed in O.P.L.E. Case
No. 21311/90-91 as additional evidence and Misc. Case No. 121 of2003
for appointment of a receiver.
I 0. It was further urged that the suit for declaration of right, title
and interest was not maintainable in v·iew of the provisions contained in
the O.P.L.E. Act and the suit was barred under Section 16 of the said
Act. It was further submitted that since the land had been recorded in
the rakhit khata, the direction to lease out the suit property and the decree
for permanent injunction as passed by the court below was contrary to
the provisions contained in Section 9 ofC.P.C. and that from the conduct
of some State officials, it appeared that the interest of the State had not
been properly safeguarded and as a result, the decr~e had been passed.
11. It is apt to note here that an application under Order I Rule I 0
CPC was filed in Misc. Case No. 122 of 2003 to implead Mis. Sanjit
Sama) represented through Managing Partner, registered office at
Mahatab Road, Cuttack-12 as respondent no. 3, Sanjit SamaL Managing
Partner of Mis. INCON ASSOCIATES, Mahatab Road, Cuttack - 12
as respondent no. 4 and Sanjaya Behera, partner of Mis. INCON
ASSOCIATES, Slo. Ashirbad Behera, Seikh Bazar, Chandinichowk, P.S.
Lalbag, Cuttack as respondent no.5. The application was allowed on
17.11.2014 and the aforesaid persons stood imp leaded as co-respondents.
12. The High Court referred to the decisions in Gram Panc/myat
of Village Nau/aklia v. Ujagar Singh and others1 and State of
Rajastltan v. Harpliool Singh (dead) through Iris LRs1 and came to
hold as follows:-
·
"15. On perusal of the pleadings of the parties, it appears'that the
Tahasildar, even though, was arrayed as a defendant, was never
authorized by the Collector to file written statement admitting the
claim. The Collector, under the Code of Civil Procedure, represents
the State. No written statement without the authorization of the
Collector could have been filed admitting the claim of the plaintiff
I AIR 2000 SC 3272
2 (2000) s sec 652
ORISSA OLYMPIC ASSOCIATION TH. GENERAL SECRETARY
v. STATE OF ORIS SA & ANR. [DIP AK MISRA, J.]
and the trial court ought not to have accepted the said written
statement as that of the defendant no. I - Collector, who
represented the State. It is further pertinent to mention that the
case record of the OPLE Proceeding was kept away from the
trial court and no evidence, either oral or documentary, was-adduced
from the side of the defence during the trial. As indicated here-inbefore, the present appeal was also not filed with due promptitude
inasmuch as according to the Collector, Cuttack vide his affidavit
. filed on 20.12.2002, the conducting Advocate did not inform him
the result of the suit till 17.4.2000 though the decree was passed
on21.4.1999.
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I have also perused the material evidence adduced on behalf of C
the plaintiff-respondent. It appears to me that the Tahasildar
colluded with the plaintiff and a collusive decree has been passed.
Therefore without expressing any opinion on merit of the suit, I
set- aside the judgment dated 16.04.1999 and decree dated
21.04.1999 passed by the learned First Additional Civil Judge
(Senior Division),Cuttack, in Title Suit No.312 of.1991 and remit
the matter back for adjudication in accordance with law. This
being an order of open remand of the suit as per the provision
under Order 41, Rule-23A of the C.P.C., there shall be a retrial of
the suit before the court below. If so advised, the defendants may
amend the written statement and adduce evidence which the trial
court shall permit in accordance with law. The plaintiff also shall
not be precluded from amending his plaint or adducing additional
evidence. But this being a suit of the year 1991, the trial court
shall make endeavour to dispose of the same within six months
from the date of communication of this order. Both the parties are
directed to cooperate with the trial court in this regard."
13. After so holding, the High Court dealt with the application for
appointment ofreceiver. It referred to the agreement dated 20-7-1998
between the association and M/s !neon Associates as a tenancy
agreement for a monthly rent of Rs. 17,000/-. It copiously produced the
terms and condiHons of the agreement and, thereafter, it observed thus:-
"The Orissa Olympic Association is a public body. Ad1riittedly, no
public notice was given inviting applications to invest in the
construction ofKALYAN MANDAP. It may be remembered that
the suit was filed after receipt of the notice in the O.P.L. E.
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proceeding and the learned Civil Judge (Senior Division), Cuttack
by order dated 7 .11.1991 passed the status quo order even though
the court was aware that for the self- same land, a proceeding
under the OPLE Act was continuing. It is also admitted in the
objection/counter affidavit filed before this Court that a portion of
the land is situated over the alleged encroached area. The order
of status quo was vacated by the learned Civil Judge (Senior
Division) by order dated 27.11.1996.
Therefore, the construction made appears, prima facie, to
be in violation of the statutory prohibition and status quo order
passed by the trial court."
14. The High Court took 1iote of the fact that the possession of
the association was prima facie permissive in nature and that the
agreement entered into by the association with Mis !neon Associates
was under mismanagement and, accordingly, appointed the Collector,
Cuttack to take over possession of the administration and open an interest
bearing Bank Account and deposit in the said Account the rent collected
from the tenants including the rent received from the Kalyan Mandap
by Mis Incon Associates. It further directed as follows:-
"20. Mis. INCON Associates is also directed to deposit the
advance money received from the prospective occupants from
today with the Collector and the balance amount shall b .. e
collected by the Collector and deposited in the Bank account during
the pendency of the suit. The Collector, Cuttack is also directed
to secure the property and the income thereof in due promptitude
and to take all necessary steps for preventing the same from any
damage or danger and report compliance to this Court through
, the trial court."
15. It is necessary to note here that looking to the affairs of the
association, the learned Single Judge directed:-
" ... the Additional Director General of Police, Crime Branch,
Cuttack to make an enquiry into the entire affairs of the Olympic
Association, which in my prima facie view, has become the
parental property of some individuals. If prima facie materials
emerged during enquiry, a case should be registered under
appropriate sections of the Indian Penal Code or any other
provisions oflaw, and the same should be investigated. The report
ORISSA OLYMPIC ASSOCIATION TH. GENERAL SECRETARY
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v. STATE OF ORIS SA & ANR. [DIP AK MISRA, J.]
of the Additional Director General of Police, Crime Branch and/
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or the Investigating Officer, shall be placed before this Court within
. three months from today."
Again:-
"23. If the trial court arrives at conclusion that taking advantage
of the suit, the plaintiff-respondents have enriched themselves,
the State will also be at liberty to recover the i II gotten by initiating
appropriate legal proceeding. The State is also directed to make
appropriate audit in respect of the financial affairs of the Olympic
Association and take suitable action as deemed proper under law."
16. We have heard Mr. Gopal Subramaniam and Mr. Raju
Ramachandran, learned senior counsel appearing for the appellant assisted
by Mr. Raghavendra S. Srivatsa, Mr. Krishnayan Sen and Mr. Ashok
Panigrahi learned counsel for the State and Ms. Binu Tamta, learned
counsel for the Comptroller and Auditor General of India (CAG).
17. To appreciate the controversy, the orders passed by this Court
from time to time are necessary to be adverted to. Initially, this Court
had passed an order of stay of the judgment of the High Court. Thereafter,
the matter was taken up on 19.1.2015 and, on that day, the Court
formulated certain questions of law which are as follows:-
" As pure questions of law arise in this special leave petition, no
counter affidavit need be filed. The questions that emerge for
consideration are:
i) Whether the lessee of the present character, that is, the Orissa
Olympic Association, could have filed a suit for right, title and
interest against the State, that is, the superior landlord?
ii) Whether the plea ofadverse possession can be set forth by the
"Association" against the State, ifthe suit property is beyond the
area granted under the lease deed?
iii) Assuming the area in question is a part of the ·lease deed,
whether the lessee can put forth a plea of adverse possession?
iv)Assuming the suit land/property is situate within the lease hold
area, whether the grantor, that is, the State Government, cannot
take steps to resume the land for violation of the terms and
conditions of the lease deed?
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v) Whether the income that is received by use of the suit property
should not be taken into account and why should it not be the legal
obligation of the petitioner-Association to satisfy the Court that
the accounts have been audited and the amount derived has been
properly accounted for?
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vi) If the accounts have not been audited, as required in law,
whether the individuals that look after the affairs of the Association
in respect of the suit property, would be criminally liable or not?
vii) Whether the persons in management of the property could
not be criminally proceeded, if it is found that they have mismanaged
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and utilized the income fortheir individual benefit?
As we find, the High Court has appointed the Collector, the
respondent No. I, as the receiver. The said part of the order reads
as follows:-
. "The appellant No. I - State of Orissa. represented by the
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Collector, Cuttack is directed to take over possession of the
property, whereafter, the Collector shall open an interest bearing
Bank Account and deposit in the said Account the rent collected
from the tenants including the rent received from the Kalyan
Mandap by Mis. INCON associates. M/s. INCON Associates
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is also directed to deposit the advance money received from
the prospective occupants from today with the Collector and
the balance amount shall be collected by the Collector and
deposited in the .Bank account during the pendency of the suit.
The Collector, Cuttack is also directed to secure the property
and the income thereof in due promptitude and to take necessary
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steps for preventing the same from any damage or danger and
report compliance to this Court through the trial court."
We have asked Mr. Raju Ramachandran, learned senior counsel
appearing for the petitioner to satisfy us whether the said paragraph
requires interference and also whether proper management of
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the buildings, whatsoever the character/nature may be, situate on
the disputed land, is warranted or not.''
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18. Thereafter, the Court referred to the directions issued by the
High Court for appointment of receiver and asked the learned senior
ORISSA OLYMPIC ASSOCIATION TH. GENERAL SECRETARY
v. STATE OF ORISSA & ANR. [DIP AK MISRA, J.]
counsel appearing for the appellant to satisfy the Court whether the said
paragraph required interference and also whether proper managemei1t
of the buildings, whatsoever the character/nature may be, situate on the
disputed land, is warranted or not. The matter was adjourned tu 22.1.2015
for consideration of the necessary arrangement pertaining to management
and further hearing of the special leave petition. The interim order passed
on 11.12.2014 was allowed to remain in force till the next date of hearing,
i.e., 22.1.2015. On 22.1.2015, the Court, after referring to the questions
framed on the earlier occasion, recorded as follows:-
"Mr. Gopal Subramaniam, learned senior counsel appearing for
the petitioner-Association has very fairly conceded that as far as
question No.( iii) is concerned, the petitioner was wrongly advised
to put forth such a plea, for it is a well established principle of law
that a lessee cannot set forth a plea of adverse possession. In
view of the aforesaid, issue no. (iii) stands closed."
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19. Thereafter, the Court adverted to issue no. (v) and, in that
context, the following order was passed:-
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"On a query being made, learned senior counsel, submitted that
the suit was instituted in the year 1991 in respect of 0.705 acres
claiming right, title and interest and other reliefs and the income
received from the property situated on that area is regularly audited
by a statutory auditor. In our considered opinion, there has to be
audit for the purpose of verification so that we can eventually be
satisfied. Considering the facts and circumstances in entirety, we
direct that the accounts in respect of "Kalyan Mandap" and 23
shops standing on the disputed area" (suit area 0,705 acres) be
made by the Accountant General of Orissa at Bhubaneswar. The
said exercise shall be completed within a period of six weeks.
The report of the Accountant General shall be placed before this
Court. The Registrar (Judicial) shall send a copy of the order
passed today to the Accountant General of Orissa at Bhubaneswar
by fax/e-mail and regular post forthwith so that he can take steps
in promptitude.
As advised at present, we shall delve upon the issue whether the
necessary arrangement pertaining to management of the aforesaid
property is required to be made. Without expressing any opinion
finally, as we cannot today as the special leave petition is pending,
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we think that there should be a Committee of Management which
shall take over possession of the "Kalyan Mandap" and the 23
shops standing on the area for the purpose of management. The
committee shall consist of the.Collector, Cuttack and two Additional
District Magistrates to be nominated by the Collector. The
Coinmittee shall be liable to- be supervised by the Secretary,
Revenue and Disaster Management. We hasten to clarify, ifthere
is any contract which has been executed by the Association
througq J\1/s. INC ON Associates for the purpose of holding any
marriage that should be allowed to continue. But all correspondence
and discussion on ev.ery aspect shall be done with the Committee.
The Collector may nominate one of the Committee members for
this purpose butthe final decision shall be taken by the Committee.
We have so directed, as we do not want that the 4 allocation of
the marriage hall for the purpose of marriages be cancelled.
However, after today, Mis. INCON Associates shall not enter
irito any fresh contract. The Committee shall take over the
management by 25.01.201 S positively. Mr. Subramaniam, learned
senior counsel submitted that no one shat I raise any obstruction in
taking over the management. The Collector is at liberty to
. requisition the police assistance, if he has to take care of any
obstruction regard being had to the situation. .
All "tlie twenty-three shop keepers shall pay the rent to the
.Committee and the income shall be collected by the authorised
agent of the Committee. If anypne would deviate in doing so, he
would be )fable for contempt of this Court. It will be the duty of
the Managing Committee to see that the buildiflgs are properly
maintained. We have modified the order of Stay to the aforesaid
extent.
The income derived from the date of taking over possession and
any income that is derived earlier thereto shall be kept in an interest
earning.account in the State Bank of India, Main branch, near the
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Collectorate, Cutt_ack.
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The documents that have been exhibited before the trial court are
permitted to be filed by either of the parties.
This is an interim arrangement subject to final adjudication of the
special leave petition."
ORISSA OLYMPIC ASSOCIATION TH. GENERAL SECRETARY
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v. STATE OF ORISSA& ANR. [DIPAK MISRA, J.]
20. The aforesaid order clearly states that it was an interim
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arrangement and that the matter was directed to be listed on 24.3.2015.
Be it noted, on that day, keeping in view the direction issued by this
Court on 22.1.2015, the Accountant General of State of Odisha had
submitted his report in a sealed cover. Learned senior counsel appearing
for the appellant put forth that he may be granted an opportunity to look
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into the report and file an objection duly certified by the competent
authority including 'the Auditor or Chartered Accountant. A copy of the
report of the Accountant General, Odisha, was directed to be served on
the learned counsel for the appellant as well the learned counsel for the
State. At that juncture, a submission was canvassed by the learned
senior counsel for the appellant and, after hearing at length, the following
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order was passed:-
" At this juncture, another aspect need to be stated. We are inclined
to say so, as it is submitted by Mr. Gopal Subramanium, learned .
senior counsel appearing for the petitioner that the report submitted
by the Accountant General cannot be accepted on the face value
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and that is why, as stated earlier, he intends to file an objection to
the same. But a pregnant one, there has to be finality to the audit.
As advised at present, we may say, in case an occasion arises to
test the report and the objection to be filed thereto, this Court may
think of sending both the reports to The Comptroller and Auditor
General of India, who shall scrutinize both the reports and, if E
required, by sending a team of auditors. We say no more on that
score for the present. Only a thought expressed.
At this juncture, we will be failing on our duty if we do not take
note of the stand quite vehemently put forth by Mr. Gopal
Subramanium that the constructions are within the lease hold area
and they have been constructed to raise funds. To deal with the
said aspect, we would like the State to file the lease deed in original,
as the petitioner has already filed the certified copy of the lease
deed. How the same would be addressed to shall be thought of
after there is delineation with regard to the accounts.
An ancillary question may arise as to whether a lessee, especially,
Orissa Olympic Association, which i~ involved in pubic duty, can
be engaged in this kind of activities on a mercurial or spacious
ground ofraising funds to sustain the stadium without the consent
of the lessor.
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Let the objection t(),the report of the Accountant General be filed
within two weeks hence.