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2007 DIGILAW 950 (ORI)

SUDHA KAUR v. SECRETARY TO GOVERNMENT OF ORISSA

2007-12-20

I.M.QUDDUSI, SANJU PANDA

body2007
JUDGMENT : 1. Since common questions are involved in all these writ petitions, on consent of the parties, they were heard analogously and this common judgment is passed, which shall govern the three writ petitions. 2. Facts: W.P.(C) No. 9975 of 2006: Petitioner along with two other persons, namely, Snehalata Sharma and Pawan Kumar Shivhare jointly purchased a piece of land in the year 2005 including the building from the vendors who had purchased the said land in the year 1985 and whose names find place in the R.O.R. with Bebandobasta status. The names are Daljeet Singh, Manjeet Singh and Jagjeet Singh, S/o. Kesari Singh. The details of the said land are given below: Unit No. Khata No. Plot No. Kissam Area 43 386 475/P Basagruha Ac.0.30 decimals District: Sundargarh, (Rourkela) W.P.(C) No. 5134 of 2007; The Petitioner purchased a piece of land in the year 2000 measuring an area of 1061 sq. ft. out of Ac.0.170 decimals of plot No. 480 under khata No. 379 from one Sri Vishnu Kumar Agarwal vide sale deed No. 615 dated 11.10.2000. Said Vishnu Kumar Agarwal had purchased the said land from one Sri Charan Das Babuta, transferer, under the valid registered sale deed No. 1085 dated 17.9.1993. The land in question is Bebandobasta in status and the schedule of the said land is given below: LAND SCHEDULE District-Sundargarh, Village-Rourkela Town, Unit No. 43, Khata No. 379, Plot No. 480(P) area 34', 10" X 31", 8" = 1061 sq.ft. Total Ac.0.215 dec. Kisam Gharabari W.P.(C) No. 5135 of 2007: Petitioner purchased a piece of land in the year 2005 measuring an area of Ac.0.5 decimals from one Sri Anand Padia S/o. Sawarmal Padia vide registered sale deed No. 2324 dated 26.7.2005 and said Anand Padia had purchased the said land from one Smt. Subasi Saha wife of Siblal Saha vide registered sale deed No. 1903 dated 17.11.1994 whose name finds place in the R.O.R. and the status of the land is Bebandobasta. The details of the said land are given below: Unit No. Khata No. Plot No. Kissam Area 43 420 908/1064 Gharabari Ac.0.05 dec. District: Sundargarh, village-Rourkela town. 3. In all these writ petitions challenge has been made to the Government Circular No. EA-II-16/2000/57677/R., dated 6th December, 2000 issued by the Government of Orissa, Revenue Department as illegal and arbitrary and the same is not in accordance with the statute and rules. District: Sundargarh, village-Rourkela town. 3. In all these writ petitions challenge has been made to the Government Circular No. EA-II-16/2000/57677/R., dated 6th December, 2000 issued by the Government of Orissa, Revenue Department as illegal and arbitrary and the same is not in accordance with the statute and rules. Thus, the Petitioners have invoked the jurisdiction of this Court under Article 226 of the Constitution of India. 4. The case of the Petitioners are that after purchasing the said lands, they along with their family members were residing in the said land by constructing dwelling houses and they filed applications before the Tahasildar for correction of the record-of-rights. The Tahasildar rejected their applications on the ground that the State Government has issued a circular wherein it is stated that the Tahasildar shall correct the record-of-rights in the name of the persons who is a pre-1983 transferee or the successor-in-interest of the Bebandobasta land and the Government is planning to bring back the land to the Government Khata as per the Circular dated 6th December, 2000. 5. For better appreciation, the relevant portion of the said Circular are quoted below: ...Thus, transferees of such land transferred by such service tender holders or their successors-in-interest through valid registered sale deed prior to 25.8.1983 should be recognized except in case of transfers in favour of family deities and transfers in respect of any Trust Estate land. R.O. Rs have presumptive value of evidence u/s 13(3) of the Orissa Survey and Settlement Act, 1958. Since in the R.O. Rs the land is recorded in bebandobasta status, the Tahasildar is bound by law to presume that the land in question is vested with Government and the persons whose names appear therein or their ancestors were possessing the land on the date of vesting and on the date of final publication of the R.O. Rs. He cannot go against the entries made in the R.O. Rs unless the R.O.R. is corrected on the strength of orders of Board of Revenue is revision cases or on the strength of orders of civil Courts or orders in writ petitions.... 6. The Petitioners challenge the said Circular mainly on the ground that this Court in the case of Smt. Sarala Kumari Rath Vs. 6. The Petitioners challenge the said Circular mainly on the ground that this Court in the case of Smt. Sarala Kumari Rath Vs. Khati Rout and Others, held that persons who are in personal cultivation of any land and recorded as sub-tenants or under-raiyats in respect of such land in the record-of-rights under law in force in any part of the State and their successors-in-interest shall be deemed to be raiyats subject to provision of Section 4(5) to (8) of the OLR Act. Successor-in-interest includes a transferee and there is no relevance in fixing a cut off date i.e. pre-1983 transferee and post-1983 transferee should also be recognized as land owners as per Section 5 of the OLR Act and the Government Circular dated 6th December, 2000 need be quashed. 7. The learned Addl. Government Advocate has traversed the assertions made by the Petitioners and has filed a counter affidavit wherein they have specifically stated that the Circular dated 6th December, 2000 is a comprehensive document containing a set of guidelines about how to deal with the Bebandobasta lands. In order to wipe out the Bebandobasta status from the record-of-rights by means of a special drive, the Circular clarifies the procedure for settlement of rent thereof with the sole intention to check colossal loss of Government Revenue. Previously, the Government had already issued instructions to recognize the transfers made till 8.5.1975. It was seen that a large extent of such land still remained in the hands of the transferees in an inchoate stage throughout the State. Hence, the Government extended the concession to recognize all transfers after 8.5.1975. As such, in the circular dated 6th December, 2000 instructions have been issued to recognize all such transfers except in case of Trust Estates and of private deities made through registered sale deed upto 25.8.1983 and as the land recorded in the Bebandobasta status is a vested land with the Government, the possessors cannot claim right, title and interest over it. They cannot transfer the same unless it is settled on rent in their favour with raiyati status. They cannot transfer the same unless it is settled on rent in their favour with raiyati status. Since the present Petitioners had purchased the lands and the sale transactions were made in the years 2000 and 2005, the Tahasildar cannot mutate the said land and those land after vesting have become property of the Government and as such cannot be mutated in favour of the transferee without following due procedure of law. Hence, they have stated that the writ petitions are devoid of merit and liable to be dismissed. 8. Considering the aforesaid rival contentions, the question to be decided in these writ petitions is whether the circular issued on 6th December, 2000 by the State Government is valid and subject to the jurisdiction of this Court under Article 226 of the Constitution of India. 9. It is well settled that the Central Government or the State Government can give administrative instruction to its servants how to act in certain circumstances but that will not make such instruction statutory rules which are justifiable in certain circumstances in order that executive instruction have the force of statutory rules. It must be shown that they have been issued either under the authority conferred on the Central Government or the State Government by some statute or under the Constitution. 10. Broadly speaking, the administrative rules, regulations and instructions, which have no statutory force, do not give rise to any legal right in favour of the aggrieved party and cannot be enforced in any Court of law against the Administration The executive orders, appropriately so-called, do not confer any legally enforceable right on any person and impose no legal obligation on the subordinate authorities for whose guidance they are issued. Such an order would confer no legal and enforceable right on the party concerned even if any of the directions is ignored. Their breach may subject the subordinate authority to disciplinary or other appropriate action, but they cannot be said to be in the nature of statutory rules having force of law subject to the jurisdiction of the Court. Thus, even if there has been any breach of such executive instruction, that does not confer any right on any member of the public to ask for a writ against the Government by a petition under Article 226 of the Constitution of India. 11. Thus, even if there has been any breach of such executive instruction, that does not confer any right on any member of the public to ask for a writ against the Government by a petition under Article 226 of the Constitution of India. 11. The Notification as stated above was issued by the Government in Revenue Department to settle the lands which still continue in Bebandobasta status after vesting in the State. People are continuing in possession of the land without paying any rent for the same and the holdings are still in an inchoate stage. 12. Before Independence all the lands were under Ex-ruler and Ex-intermediaries. They gave certain lands in favour of such persons who were rendering service to them and some persons were tenant under them. After Independence, Orissa became a State. It was necessary to enact progressive legislation relating to agrarian reforms and land tenures consequent on the gradual abolition of intermediary interest and vesting of land with the State under Estates Abolition Act and Merged States Act, 1950. Section 7(g) of Merged State Laws prescribes for settlement of land in favour of the persons who possessed the land in lieu of service during the Ex-ruler or Ex-intermediaries and fare and equitable rent shall be fixed for the said land. After merger of the princely State and abolition of estate, some of the, persons got the land settled in their favour and rent was assessed out there are vast areas of land which still continue in Bebandobasta status for which rent could not be assessed and Government looses the revenue. Considering the same, the Government issued the aforesaid circular for settling the land in favour of the persons who are in possession of the land as per the aforesaid R.O.R. While doing so, care has to be taken by the Tahasildar of several provisions of OLR Act and Regulation II, Indian Registration Act. 13. Considering the position of law as stated in the foregoing paragraphs, the Circular issued by the State Government on 6th December, 2000 is only an instruction issued to the subordinate authorities in respect of lands which are under Bebandobasta status and it clarifies the procedure for settlement of rent thereof. Admittedly, in these writ applications, the Petitioners are purchasers of the years 2000 and 2005. Admittedly, in these writ applications, the Petitioners are purchasers of the years 2000 and 2005. The land in question vested with the Government after the abolition of intermediary interest or merger of estate, as the case may be. There was no enquiry about the fact as to who was in possession of the property at the time of vesting or merger. Hence, there is no illegality in the said Circular which also does not violate any statutory rule. The instruction contained in the said Circular is procedural in character and not of substantive nature. Law is well settled that R.O.R. does not confer any title nor does an order disallowing correction of R.O.R. take away title, if there be any. 14. In view of the aforesaid legal position, this Court does not want to interfere with the impugned Circular dated 6th December, 2000 issued by the Government of Orissa, Revenue Department. Accordingly, the writ petitions are dismissed being devoid of merit. I.M. Quddusi, J. 15. I agree. Final Result : Dismissed