JUDGMENT : K. Ramamurthy, Member. - This is a suo-motu revision under Section 38-B of the O E. A. Act on the basis of the statement of facts moved by Collector, Cuttack against order dated 1-10-1982 passed by the Tahasildar, Sadar, Cuttack in O. E. A. Case No. 56 of 1968-69. Facts of the case are as follows :- 1. Disputed land measures an area of 33 acres in Sabik Plot No 39, Sabik Khata No. 235 and an area of Ac, 13.25 in Sabik Plot No. 11/1800, Sabik Khata No 235 total Ac 46.25 in village Bidyadharpur corresponding to Hal Khata No. 330, Hal Plot No 38 area Ac 32 75 and Hal Plot No. 8, area Ac 14.50 total Ac. 47.25. 2. Bhagaban Das, the ex-intermediary granted an unregistered Patta relating to this land in favour of the O. P. on whose application O. E. A. Case No. 56 of 68-69 was tarted. 3. The Tahasildar settled Ac 32.75 of land in favour of opposite party by his order dated 1-10-1982. 4. Addl. Standing Counsel argues that Tahasildar did not enquire whether Bhagaban Das was actually Intermediary. This is a Lakhraj Bahal land in the village. The shareholders are- (1) N. Bharati 6 annas share. (2) S.N. Singh 4 annas 6 pies share. U.N. Singh R.N. Singh (3) Durga Prasad Bhagat 3 annas 3 pies (4) Bhagaban Das 2 annas 3 pies. 5. Jamabandi was filed by N. Bharati wherein it was stated that Bhagaban Das mortgaged this land to D.P. Bhagat. In Compensation Case 2/63 compensation was paid to Baheldars (1) to (3) above, but not to Bhagaban Das. Addl. Standing Counsel says that Bhagaban Das has not been recognised as ex-intermediary in any revenue records. He has no right to give lease of this land and receive rent. Tahasildar did not look into this. 6. Alternatively Addl. Standing Counsel argues even assuming that he was an Intermediary, such bahal interest was not partitioned by metes and bounds. Bhagaban Das has, therefore, no authority to lease out this plot, particularly when he had only interest to the extent of 2 annas 3 pies and that he had mortgaged the land to D.P. Bhagat. 7. O. P. did not take any step for mutation from 1943 to 1968. 8. Lakhraj Bahel cannot be leased out from Rakhit Khata. Bhagaban Das has, therefore, no authority to lease out this plot, particularly when he had only interest to the extent of 2 annas 3 pies and that he had mortgaged the land to D.P. Bhagat. 7. O. P. did not take any step for mutation from 1943 to 1968. 8. Lakhraj Bahel cannot be leased out from Rakhit Khata. O.P. could not be treated as tenant as he was not as such before vesting. Therefore, there is no question of order under Section 8(1) 9. Plot No. 11/1800 measuring 13 25 acres and plot No. 33/1800 reporting 22.05 acres was claimed by the O P. But these are included in the agricultural farms of O. U. A. T. No. objection had been raised by O. P. while giving these lands to O.U.A. T. Lastly, he says that no Jamabandi was given in favour of the O. P. and an such Section 8(1) was not attracted. 10. Shri Srinivas Misra (2), Advocate appearing for the O. P. argues that Section 38-B shall not be attracted in this case. The Collector feels that this lease is fraudulent. He could invoke Section 5(i) of the O. E. A. Act and set-aside the lease. Secondly, if Jamabandi does not mention O. P. is tenant, his right under Section 8(1) is not affected Civil Court can consider this claim of tenancy. He referred to the affidavit and supplementary Jamabandi filed by B Das, the ex-entermediary. He argues that Section 8(1) is declaratory in nature. It does not contemplate any judicial order under this section. Therefore, section 38-B cannot be invoked against this order. At best it can be considered as administrative order 11. Sri Misra also alleged malafide on the part of the Collector, because Sub-Registrar refused to register the sale of part of the disputed land by the O. P. 12. Sri Misra relies on a decision in O. J. C. No. 639/72 dated 17-4-1974 in which it is held that an order under Section 8(1) by a Tahasildar is an administrative direction and not an order under O. E. A. Act and as such does not affect right, title, interest of another tenant. He also referred to 37(1971) C. L. T. 389 in which it has been held that there is no provision in O. E. A. Act to determine the rival tenancy right under Section 8(1). He also referred to 37(1971) C. L. T. 389 in which it has been held that there is no provision in O. E. A. Act to determine the rival tenancy right under Section 8(1). He also quoted 43(1977) C. L. T. 156 at page 159, wherein it has been held that non-submission or submission of Jamabandi by ex-intermediary will not affect the right of the tenant in possession. He referred to 1961 I. L. R. Cuttack 595, wherein it is held that acceptance of rent creates agricultural tenancy. Written patta is not essential. 13. He points out that mortgagee is entitled only to claim compensation in such cases and he has no right on the land. Was it usufructory or simple mortgage ? He says that O. P. did not claim O. U. A. T. area. So he had no objection to the alienation to the alienation of this land to O. U. A. T. 14. He also says that the Khata is Nijchas and not Rakhit. 15. Adl. Standing Counsel says that Section 38-B is very wide and can be invoked even when 5(i) cases have not been started. 16. I find that in this case in the original Jamabandi O. P's name was not included. This was made subsequently. The supplementary Jamabandi is not in file. This action of B. Das ex-intermediary in filing affidavit is suspicious. He had only 2 annas 3 pies interest. He did not even file the case for compensation as he mortgaged his interest to another person. The original Jamabandi was filed by other share-holders. It is very odd that B. Das filed a supplementary Jamabandi and also filed affidavit to support the cause of the opposite party at a later stage. 17. The order of the Tahasildar is administrative in nature. How for it is reasonable is something which can be looked into. For no valid reason Tahasildar has settled 32.75 acres of land with O P. 18. I would, therefore, conclude that the lease deed by Bhagaban Das in favour of O. P. is after-thought, concocted at a late stage to get occupancy right. A share-holder-zamadar has no right to create occupancy right in his land on his own. Therefore, O. P. at best can be a temporary tenant and not an occupancy ryot and the ex-intermediary cannot confer an occupancy status under Government after vesting of the estate. 19. A share-holder-zamadar has no right to create occupancy right in his land on his own. Therefore, O. P. at best can be a temporary tenant and not an occupancy ryot and the ex-intermediary cannot confer an occupancy status under Government after vesting of the estate. 19. There is no reason why the disputed, land has been settled on the O. P. without looking into the above aspects, namely the locustandi of the ex-Zamindar granting lease on his own who mortgaged his share to another. So the whole order of the Addl. Tahasildar appears to be unreasonable and without any logic. 20. I would, therefore, set aside the order dated 1-10-1982 of the Tahasildar in O. E A Case 56 of 1968-69 and cancel this settlement. Final Result : Allowed