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2007 DIGILAW 711 (ORI)

Bhramarabara Nayak v. Tahasildar, Nimapada

2007-09-12

A.S.NAIDU

body2007
JUDGMENT A. S. NAIDU, J. : Six petitioners have filed this writ petition with a prayer to quash Annexure-4 the order dated 1.7.1996 passed by the Commissioner, Land Records & Settlement, Orissa, Cuttack, in R.P. Case No.1594 of 1994, confirming the order dated 28th October 1993, Annexure-3, passed by the Settle¬ment Officer, Puri, in A.C. Suit No.2188 of 1983 and dismissing the revision. 2. In course of argument of the writ petition, a petition was filed by Petitioner Nos. 2 and 6 praying to delete their names from the cause title as they wanted to withdraw their claim asserted in the writ petition. Consequently, by order dated 20th November, 2006 the names of Petitioner Nos. 2 and 6 were deleted. 3. The lands in dispute were the part and parcel of ex-intermediary estate of Choudhury family of Nimapara. According to the petitioners the ex-intermediary (Zamindar) had inducted one Raghu Nayak as a tenant by executing a “Hata Pata” dated 15th November, 1944. Consequent upon vesting of estate within the State Government under the provisions of Orissa Estates Abolition Act, in the year 1952 all the lands vested with State, free from all encumbrances. After vesting in ex-intermediary submitted ‘Zamanbandi’ in favour of Raghu Nayak, the lessee. In consonance with the Zamabandi, a Tenancy ledger was opened in favour of Raghu Nayak. The State authorities accepted rent from Raghu Nayak and his tenancy right was protected under Section 8(1) of the Estates Abolition Act and he was deemed to be a tenant under the State. After death of Raghu Nayak, the petitioners being his legal heirs and successors were said to have inherited the properties measuring Ac.7.10 decimals corresponding to Sabik Plot No.1064 (P). While matter stood thus, settlement operations commenced in the mouza where the disputed lands are situated. At the rent objection stage, the petitioners filed petition claiming title over Hal Plot No.2109 corresponding the Sabik Plot having an area of Ac.4.91 decimals.The Asst. Settlement Officer, in his order however, rejected the said petition and recorded the lands in favour of the State Government with a note of illegal posses¬sion of the petitioners. But then, at the instance of the Taha¬sildar, Nimapara, it is alleged the Settlement officer deleted the note of possession made in favour of the petitioners. Being aggrieved, the petitioners approached the Settlement Officer claiming occupation status over the land. But then, at the instance of the Taha¬sildar, Nimapara, it is alleged the Settlement officer deleted the note of possession made in favour of the petitioners. Being aggrieved, the petitioners approached the Settlement Officer claiming occupation status over the land. The Settlement Officer, opposite party No.3, after hearing the parties and perusing the materials, rejected the claim of the petitioners. The said order was assailed by the petitioners under Section 32 of the Orissa Survey and Settlement Act, 1958 before the Commissioner, Land Records & Settlement, Orissa, Cuttack, in R.P. Case No.1594 of 1994. According to the petitioners, the ‘Zamanbandi’ had been prepared in favour of their ancestor Late Raghu Nayak, and in consonance with the said ‘Zamabandi’ they were deemed to be the tenants under the State Government and their tenancy right had been confirmed by the State by accepting rent. Thus, the Settlement Officer had acted illegally and with material irregu¬larity in not declaring their occupancy title. The claim of the petitioners was resisted by the Tahasildar Nimapara. It was stated that in consonance with the circular issued by the Government, there should be no note of possession. It was, however, stated that in course of scrutiny a number of forgery committed by different persons in Konark area came to the notice of the authority and, as such, the concerned authorities of Revenue Department did not accept the petitioners as tenants under the State Government. That apart, the Settlement Authority had no authority to decide the question of right, title and interest and he was only vested with the power to prepare records which are fiscal in nature. It is well settled that the Record-of-Rights neither creates nor extinguishes any title. As the peti¬tioners failed to establish their title over any portion of the land, the Settlement Officer rightly dismissed their case. 4. The Commissioner after hearing the learned counsel for the parties and perusing all the materials, came to the conclu¬sion that the order directing deletion of the note of illegal possession made in favour of the petitioners by the Settlement Officer was valid and justified and dismissed the revision. Being aggrieved the petitioners have approached this Court. 5. Mr. 4. The Commissioner after hearing the learned counsel for the parties and perusing all the materials, came to the conclu¬sion that the order directing deletion of the note of illegal possession made in favour of the petitioners by the Settlement Officer was valid and justified and dismissed the revision. Being aggrieved the petitioners have approached this Court. 5. Mr. Sarangi, learned counsel appearing for the peti¬tioners, forcefully submitted that by virtue of the ‘Hata Patta’ executed in favour of Raghu Nayak, the petitioners were accepted as tenants.After vesting of the estate, the intermediary on being satisfied that Raghu Nayak was in possession of the land as tenant, prepared the ‘Zamabandi’ and submitted the same. It is stated that in view of Zamabandi, Ekpadia i.e., the tenancy ledger, was prepared and the petitioners were accepted as tenants under the State. Thus, in fitness of things, the land measuring Ac.1.75 decimals which was the area indicated in Zamabandi ought to have been recorded in favour of the petitioners and Record-of-Rights ought to have been prepared accordingly. 6. After receiving notice, the Tahasildar Nimapara, has filed a counter affidavit taking the stand that in fact the ex-intermediary inducted Raghu Nayak as tenant in respect of only Ac.0.75 decimals of land through an unregistered ‘Hata Pata’. The intermediary right vested in the State in the year 1953, free from all encumbrances. After vesting, the ex-intermediary had submitted a ‘Zamabandi’ with an area of Ac.0.75 decimals only in favour of Raghu Nayak. It is alleged that the tenancy ledger was thereafter manipulated and fraudulently an area of Ac. 1.75 decimals was inserted. During the settlement operation, the records were verified and it came to the knowledge of the Taha¬sildar Nimapara and the Collector, Puri that large scale of manipulations had been done in Konark area. Consequently, the Tahasildar initiated suo motu Revenue Misc. Case bearing No. 1365 of 1979 against the lessee in respect of Khata No.415/12. After verification of ‘Zambandi’ and tenancy ledger and on being satis¬fied that the actual area in respect of which Late Raghu Nayak was inducted as a tenant was only Ac.0.75 decimals and not Ac. 1.75 decimals, necessary orders were passed to correct, the tenancy ledger accordingly under intimation to the Collector, Puri and other authorities. A copy of the order has been en¬closed to the counter affidavit as Annexure-B/1. 1.75 decimals, necessary orders were passed to correct, the tenancy ledger accordingly under intimation to the Collector, Puri and other authorities. A copy of the order has been en¬closed to the counter affidavit as Annexure-B/1. On the basis of such settlement, the claim of the petitioners that the Record-of-Rights out to have been prepared in their favour in respect of Ac. 1.75 decimals is strongly repudiated and it is emphatically submitted by learned Addl. Government Advocate that in fact the petitioners having not come to Court with clean hands, the writ petition should be dismissed on that ground alone. 7. The intervenors who have entered appearance supported the case of the State and submitted that out of Ac. 0.75 decimals they have purchased some portion thereof by means of registered sale deed from the petitioners. 8. The Tahasildar Nimapara, has also filed an additional counter affidavit reiterating the stand that in fact, Late Raghu Nayak, the predecessor-in-interest of the petitioners, was in¬ducted as a tenant only in respect of Ac. 0.75 decimals by the ex-intermediary and after vesting of the estate, ‘Zamabandi’ was submitted in respect of said Ac. 0.75 decimals in favour of Raghu Nayak. Therefore, the claim raised by the petitioners that Hal Plot No. 2109 corresponded to Sabik Plot No. 1604 (P) of Sabik Khata No. 415/12 by fraudulently antedating the ‘Hata Pata’ is unfounded and that after coming to know about the fraud and manipulation, the authorities have rightly cancelled the fraudu¬lent Hata Pata. It is further averred in the additional counter affidavit that the petitioners have already sold more that an area of Ac. 0.75 decimals, to which they were otherwise not entitled, out of Sabik Khata No.415/12 and Sabik Plot No. 1604 (P) of village Konark to different persons at different times. A list of such alienations has been reflected in Paragraph-6 of the Additional counter affidavit and it is urged that the petitioners have sold Ac. 1.10 decimals though they were not entitled to alienate that extent of land. 9. I have heard the learned counsel for the parties at length, perused the averments made in the writ petition, counter affidavit filed by the opposite parties and the documents annexed to the same and have also gone through the records of the Taha¬sildar and the Settlement Officer which were called for from the Courts below. 9. I have heard the learned counsel for the parties at length, perused the averments made in the writ petition, counter affidavit filed by the opposite parties and the documents annexed to the same and have also gone through the records of the Taha¬sildar and the Settlement Officer which were called for from the Courts below. After perusing the entire records, particularly the records of the Tahasildar and Settlement Officer, this Court finds that there is allegation with regard to scam for grabbing the State’s property. It is further alleged that attempts were, made rather successively, to tamper and manipulate the ‘Zamaban¬di’ and tenancy ledgers were prepared thereby claiming huge areas in the village Konark. No doubt there is large escalation of price of land in village Konark and its vicinity. 10. Be that as it may, in the case at hand, the orders passed by the Settlement Officer in appeal (Annexure-3) as well as the order passed by the Commissioner in revision vide Annex¬ure-4 are assailed. The petitioners claimed to be the occupancy tenants in respect of Ac. 1.75 decimals. But then, the Settlement records, as stated earlier, neither create nor extinguish title over any property. The petitioners have failed to produce any document before this Court to establish their title. The ‘Hata Pata’, a copy of which is available on record is an unregistered document. The genuineness of such ‘Hata Pata’, and Zamabandi and the registered sale deed said to have been prepared on the basis of said “Hata Pata” vis-a-vis the tenancy ledger, is shrouded in suspicion. In exercise of certiorari jurisdiction this Court cannot decide the genuineness or otherwise of the said document. After going through the impugned orders, this Court is satisfied that the authorities have not committed any error apparent on the face of the record.Law is well settled that this Court while exercising certiorari jurisdiction should be slow to interfere with the finding of facts of the authorities below, unless it is satisfied that the conclusions arrived at by the said authorities are unreasonable and based on no evidence and/or absurd. As the impugned orders do not suffer from any such infirmity, I am not inclined to interfere with the orders passed by the authorities below and dismiss the writ application giving liberty to the petitioners to establish their right, title or interest over the properties in consonance with law before the appropriate authori¬ty. Application dismissed.