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2008 DIGILAW 503 (ORI)

Sricharan Swain v. State of Orissa

2008-07-03

A.S.NAIDU, B.P.RAY

body2008
JUDGMENT A. S. NAIDU, J. — The order dated 10th March, 1993 passed by Addl. District Magistrate, Cuttack in O.E.A. Appeal No.4/1990 is assailed in this Writ application mainly on the ground that the said authority had no jurisdiction to entertain an appeal filed under Section 9 of the O.E.A. Act as the order of settle¬ment made in favour of the petitioner was passed under the provi¬sions of the Orissa Tenancy Act. 2. The petitioner claiming to be a tenant in respect of Ac.2.00 lands out of Ac.4.30 appertaining to C.S. Plot Nos.52 and 56 under C.S. Khata No.25 of Mouza-Sasan has asserted, that the said lands originally belonged to the Ex-landlord of Kujang Estate and were recorded under Anabadi Khata No. 25 with a status of “Puratana Patia” in the record of rights published in the year 1929. According to him his ancestor after obtaining due permis¬sion from the ex-intermediary and after being inducted as tenant reclaimed the above lands with considerable expenses and were in cultivating possession of the same by raising paddy crops and by paying land revenue (Bhag) to the ex-landlord who granted rent receipt in token of payment of the same. The estate in question, it is submitted, vested in the State in the year 1954 and the petitioner, who was in possession immediately before vesting, continued to remain in cultivating possession as a tenant without any hindrance from any quarter, but then as the ex-landlord did not submit any “Ekpadia” (rent schedule) in favour of the petitioner, no rent (land revenue) was collected from him. The petitioner therefore approached the Tahasildar, Marsaghai with a prayer to settle the lands in his favour in consonance with the provisions of the Orissa Tenancy Act. The said petition was registered as Revenue Misc. Case No.15/1984. The Tahasildar invited public objections on the claim put forth by the petition¬er. However no objections were received from any quarter within a period of thirty days. After conducting local enquiry through R.I. and perusing the report of the Revenue Inspector and on being satisfied that the petitioner had taken the land on lease on payment of “Salami” to the ex-landlord of Kujang Estate during the year 1950, vide Receipt No.10894 dtd. However no objections were received from any quarter within a period of thirty days. After conducting local enquiry through R.I. and perusing the report of the Revenue Inspector and on being satisfied that the petitioner had taken the land on lease on payment of “Salami” to the ex-landlord of Kujang Estate during the year 1950, vide Receipt No.10894 dtd. 12.7.1950 and that the petitioner had paid’ Bhag dues from 1354-55 to 1357-58 Sala and that the petitioner was in cultivating possession since the date of his induction as tenant without any obstruction and that he had completed thirty years of possession held that he had ac¬quired occupancy right over the lands in consonance with the provision of the Orissa Tenancy Act, the Tahasildar by his order dtd. 19.7.1985 directed to correct the R.O.Rs and to record the lands in the name of the petitioner as sthitiban raiyat subject to payment of rent, etc. According to the petitioner in consonance with the order passed by the Tahasildar he paid rent and other amounts as per the order and continued. 3. In the year 1986 some of the villagers of village Bhopal tried to grab the properties which were settled in favour the petitioner and created disturbance in the peaceful possession of the petitioner. It is further submitted that Hadibandhu Swain and some other villagers filed T.S. No.384/1986 challenging the order of settlement made in favour of the petitioner and also to declare that the petitioner had no right, title and interest over the properties. According to the petitioner the then Munsif, Kendrapara dismissed the said suit. Being enraged by the said action, it appears, some of the villagers tried to enter into the lands and disturb the peaceful possession of the petitioner. Consequently, the petitioner was constrained to approach the Civil Court by filing a suit for permanent injunction which was registered as T.S. No.385/1984 against some of the villagers. The then Munsif, Kendrapara after discussing the evidence adduced by both the parties in extenso came to a categorical finding that the plaintiff of the said suit, i.e. the petitioner had acquired valid right, title, interest and possession over the lands and that the defendants had utterly failed to establish their plea. Consequently the suit was decreed and the villagers of village Bhopal, P.S.- Mahakalapad were restrained from disturbing the peaceful possession of the petitioner. Consequently the suit was decreed and the villagers of village Bhopal, P.S.- Mahakalapad were restrained from disturbing the peaceful possession of the petitioner. Thereafter in consonance with the decree, it is stated, the petitioner continued to remain in possession. It is also submitted that the said decree has not been assailed before any Court and had attained finality. It is further submitted that during pendency of the said suit, the present opposite parties 4 to 40 were also some of the villagers who had filed an appeal under Section 9 of the O.E.A. Act in the Court of A.D.M., Cuttack. The A.D.M. held that the Tahasildar, Marsaghai committed some error of procedure of law in settling the lands in favour of the petitioner in several Misc. Cases and allowed the appeal. Consequently, he set aside the order passed by the Tahasildar. Being aggrieved by the said order, the peti¬tioner has approached this Court. 4. Mr. Bhuyan, relying on the Full Bench decision of this Court in the case of Radhamani Dibya and others v. Braja Mohan Biswal & others reported in 57 (1984) C.L.T. 1 (F.B.) submitted that there is no provision for an appeal against any order passed under Section 8(1) and that the A.D.M. committed an error appar¬ent on the face of law in entertaining the appeal. The same being an act without jurisdiction, the order cannot be sustained. It is further submitted that even otherwise the appellate authority acted illegally and with material irregularity in doubting the correctness of the order passed by the Tahasildar and the com¬ments made in different paragraphs of the order were only based on surmises and conjectures and as such the order cannot be sustained even on merits. 5. After receiving notice though opposite parties have appeared no counter affidavit has been filed. Thus, more or less the facts stated in the Writ application are to be accepted applying the principles of non-traverse. Mr. Palit, learned counsel for the opposite parties, however forcefully submitted that the Tahasildar did not properly appreciate the materials and without any basis settled the lands in favour of the petitioner with occupancy raiyat. According Mr. Palit the lands were record¬ed as Anabadi and communal in nature. Thus, the entire villagers have a right over the said lands. That apart no tenancy can be created in respect of Anabadi lands. This fact, according to Mr. According Mr. Palit the lands were record¬ed as Anabadi and communal in nature. Thus, the entire villagers have a right over the said lands. That apart no tenancy can be created in respect of Anabadi lands. This fact, according to Mr. Palit, was not kept in mind by the Tahasildar. The enquiry con¬ducted by Tahasildar, it is stated, was a perfunctory one and as the petitioner had practised fraud, the order passed by the Tahasildar cannot be sustained. It is stated that fraud nullifies an order and in the case at hand as the petitioner has not come with clean hands and had suppressed vital facts, thereby practis¬ing fraud, the order of Tahasildar cannot be sustained. Learned counsel for the State more or less reiterated the stand taken by other opposite parties. 6. We have heard learned counsel for the parties at length, perused the documents and the order passed by the Tahasildar. Perusal of the record reveals that the lands were never recorded as communal lands. On the other hand, it was recorded as Anabadi lands which otherwise meant that the lands were not cultivated. The petitioner, in order to establish his case of induction as a tenant by the intermediary, relied upon the receipt granted by ex-intermediary way back on 12.7.1950 acknowledging receipt of Salami and other dues in respect of the disputed lands. He has also filed Bhag receipts for about 4 to 5 years. Admittedly, the Estate vested in the year 1950. Perusing the report of the Revenue Inspector after spot enquiry and the rent receipts the Tahasildar came to the conclusion that the petitioner was in possession of the lands for more than thirty years as a tenant. The order of Tahasildar further reveals that prior notice was issued which were hung in conspicuous places of the locality including the Grama Panchayat office inviting objec¬tions. Section 8(1) of the O.E.A. Act stipulates that any person who immediately before the date of vesting of an estate in the State was in possession of any holding as a tenant under an intermediary was, and on and from the date of vesting to be deemed to be a tenant of the State and such person was to hold the land in the same rights and subject to the same restrictions and liabilities, as were immediately before the date of vesting. The receipt granted by the ex-intermediary in token of payment of Salami on 12.7.1950 coupled with the receipt in token of receipt of the Bhag clearly reveals that the petitioner was a tenant on the date of vesting. Thus on and from the date of vesting he became non-occupancy raiyat under the State Government. He con¬tinued in possession of the lands as before under the State and, as would be evident from the order of Tahasildar and field en¬quiry, he was in continuous possession for a period of more than thirty years. Thus, he became a settled raiyat under Section 23 of the Orissa Tenancy Act. (see 57(1984) C.L.T. 1 supra. That apart some of the villagers claiming that the lands were of communal character filed T.S. No.384/1986 before the then Munsif, Kendrapara, the said suit was dismissed. It also appears that the present petitioner filed T.S. No.385/1986 praying for permanent injunction. While deciding the said suit, title being consequen¬tial, the trial Court on the basis of evidence adduced held that the petitioner had acquired valid right, title and interest over the lands and decreed the suit, thereby restraining the villagers from interfering with the possession of the petitioner. The said order, as it appears, has not been varied. That apart as has been held by the Full Bench of this Court supra, no appeal lies to the A.D.M. under Section 9 of the O.E.A. Act against an order passed under Section 8(1) of the said Act. Thus, the A.D.M. acted ille¬gally and with material irregularity in entertaining the O.E.A Appeal No.4/1990 and thus the order dtd. 10.3.1993, vide Annex¬ure-3, cannot be sustained. 7. For the discussions made in the preceding paragraphs, this Court is satisfied both on facts and law that by virtue of the order passed by the Tahasildar in Rev. Misc. Case No.15/1984 coupled with the decree passed in T.S. No.385/1986 by the then Munsif, Kendrapara, the petitioner had acquired occupancy right under the provisions of Orissa Tenancy Act and that the A.D.M., Cuttack had no jurisdiction or authority to entertain O.E.A. Appeal No.4/1990 and the decision passed vide Annexure-7 cannot be sustained. Accordingly the said order is quashed and the order passed by the Tahasildar is confirmed. Consequently, the Writ application is allowed. Application allowed.