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2008 DIGILAW 858 (ORI)

SATYABADI PRADHAN v. DAYANIDHI PRADHAN

2008-09-19

P.K.TRIPATHY

body2008
JUDGMENT : P.K. Tripathy, J. - Heard further argument and the judgment is as follows. 2. The award passed by the Subordinate Judge, Deogarh on 22.04.1991 in Land Acquisition Case No. 21 of 1987 is under challenge. That case was registered in the court of Subordinate Judge, Deogarh on the basis of a reference u/s 30 of the Land Acquisition Act, 1894 (in short the Act, 1894) sent by the Zonal Officer. The land in dispute measuring Ac. 16.53 decimals in Khata No. 4 and AC.0.10 decimals in Khata NoA/3, totally measuring AC.16.63 decimals was acquired for Rengali Dam Project. The Land Acquisition Collector made payment of the compensation by granting % to the claimantsappellants and % to the opposite parties-respondents. That was opposed by the claimants and, accordingly the aforesaid reference was made. 3. Before noting down the facts, the genealogy as not disputed at the Bar is as follows: The above is the genealogy of the family of the claimants-petitioners. The above is the genealogy of the family of the opposite parties respondents. 4. Admittedly, late Natabara was Gauntia of village Talabahali. Admittedly, he defaulted in making payment of the revenue to the State as the Gauntia and, therefore, he surrendered his Gauntiship and left the village in 1936 and in his place late. Baidyanath was appointed as the Gountia. Claimants petitioners are the sons of late Natabara whereas the opposite party members are the sons of late Baidyanath. 5. According to the case of the Petitioners/appellants notwithstanding abandoning the Gauntiship as well as the village, Petitioners made attempt to retain possession of the lands in abandoned holding, i.e., Sabik Khata NosA and 4/3 corresponding to the lands recorded in hall settlement holding No. 8, but late Baidyanath did not entertain their claim. However, after coming into force of the Orissa Merged Territories (Village Offices Abolition) Act, 1963 (in short the Act, 1963) they put forth their claim and got favourable order from the T Tahasildar, Deogarh in Revenue Misc. Case No. 9", of 1967, Ext. 1. That order of Tahasildar, dated 10.02.1969, though challenged by opposite party members, but the above noted order of the Tahasildar was maintained by the Addl. District Magistrate, Sambalpur in O.M.T. Appeal No. 9(D) of 1969, Ext.2 and also by the Board of Revenue in O.M.T. Appeal No. 11 of 1980, Ext.3 pronounced on 26.03.1982. 1. That order of Tahasildar, dated 10.02.1969, though challenged by opposite party members, but the above noted order of the Tahasildar was maintained by the Addl. District Magistrate, Sambalpur in O.M.T. Appeal No. 9(D) of 1969, Ext.2 and also by the Board of Revenue in O.M.T. Appeal No. 11 of 1980, Ext.3 pronounced on 26.03.1982. Petitioners further state that opposite parties challenged that order in OJC No. 1050 of 1982 and as per order dated 29.06.1989, ExtA, the Division Bench of this Court dismissed the writ application for non-prosecution. Petitioners state that notwithstanding preparation of the record of right in favour of the opposite parties as per Ext.A on the basis of the order, Ext.B, the right, title and interest of the Petitioners is established over the acquired land and under such circumstance, they are entitled to the entire compensation amount. Accordingly, they put forth their claim. In that process, they also state that the opposite party members having no manner of right, title, interest and possession, they are not entitled to any amount of compensation. 6. The opposite parties, on the other hand, in their written statement advanced the case that on the date of settlement of the Gauntiship with Baidyanath the said Gountia also claimed for settlement of the abandoned undeveloped 'padia' land in his favour as Gountia raiyati land and such land was recorded in favour of Baidyanath as per order dated 09.03.1943 passed in Revenue Misc.Case No. 36/42-43 of the Revenue Officer of the Bamanda State and accordingly the land which was in possession of Baidyanath on assuming the Gountiship was developed and made cultivable and valuable land. From the year 1936 onwards, i.e., after Baidyanath became the Gauntia of that village, neither Natabara nor his heirs and successors ever came and claimed title, and/ or possession over any part of the disputed property and, therefore, they are not entitled to the settlement of the land under the Act, 1963 nor to the compensation for acquisition of the land. Accordingly they claim that the entire compensation amount should come to them. 7. Learned Subordinate Judge, Deogarh framed the single issue to the effect in between both the rival claimants who 'are entitled to the compensation or whether it is to be apportioned. 8. Accordingly they claim that the entire compensation amount should come to them. 7. Learned Subordinate Judge, Deogarh framed the single issue to the effect in between both the rival claimants who 'are entitled to the compensation or whether it is to be apportioned. 8. It appears from the referral documents available in the lower court record that under declaration No. 14986 dated 08.03.1984 published in the Orissa Extra-ordinary Gazette Notification NoA34 dated 26.03.1984 the land was acquired and quantum of compensation amount has been determined there. While participating in the proceeding u/s 30 of the Act, 1894 neither party claimed for enhanced compensation. Therefore, correctness of determination of the valuation is not an issue involved in this case though the successful party in this proceeding may make a claim in accordance with Section 28-A. 9. Both the parties did not adduce any oral evidence. Appellants Petitioners relied on document marked Exts. 1 to 4(as noted above) and the Respondents-opposite parties relied on the record of rights, the judgment in the Rent Case as Exts. A and B and the order-sheets in Revenue Misc. Case No. 61/84 of 1935,1936 and 1937 by which Gountiship was vested with Baidyanath as Ext. C and the certified copy of the order in Revenue Misc. Case No. 36/1942-43 dated 09.03.1943 marked Ext.D. On appreciating the aforesaid documentary evidence, learned Subordinate Judge held that notwithstanding the orders in Exts. 1 to 3, the order Ext.B together with the record of right, ExtA proves title and possession in favour of the opposite parties and, therefore, they are entitled to the entire compensation amount Opposite parties 5 and 6 being the daughter and son of opposite party No. 4, no award was passed in their favour in view of the award passed in favour of opposite party No. 4. 10. Learned Counsel for the Appellants argues that Exts. C and O, ipso facto, does not confer any right, title, interest or possession of the disputed property on Baidyanath or his successors. Apart from that, genuineness of those documents relating to initiation of such proceeding has been doubted in the order Ext1. Such documents were not produced for perusal of the courts when the matter was under consideration by the revenue authorities up to the level of the Board of Revenue and, under such circumstance, if Exts. C and O are eliminated by virtue of Exts. Such documents were not produced for perusal of the courts when the matter was under consideration by the revenue authorities up to the level of the Board of Revenue and, under such circumstance, if Exts. C and O are eliminated by virtue of Exts. A and B, the opposite parties cannot claim a title even though the record of right was prepared in the year 1982. On the other hand, the order for settlement having been passed in favour of the Appellants by the Tahasildar in the year 1969 and confirmed in Exts. 2 and 3 should get preference for awarding the compensation in their favour. Accordingly, he argues to set aside the impugned award of the Subordinate Judge and to pass the award in favour of the Appellants. On the other hand, learned Counsel for the Respondents argues that Exts. C and O cannot be eliminated because they are the original documents on the basis of which late Baidyanath got Gountiship and right over the property to possess and on the basis of that his title was confirmed in the proceeding before the settlement authority as per the order Ext B and therefore, the order of the Tahasildar, Ext1 and the confirming order of the superior revenue authority have no superseding affect over that order. He further argues that the order of the Tahasildar and further part of the orders in Exts. 2 and 3 are not validly considered order and, therefore, those orders by themselves do not confer any title or possession in favour of the Appellants. Accordingly, he argues to dismiss the appeal with cost 11. It is not disputed at the Bar that it is the settled principle of law that in a proceeding u/s 30 of the Act, 1894, the court while adjudicating a reference has the jurisdiction to decide all questions arising between the parties relating to right, title, interest and Possession of the acquired property and all questions incidentally there to. Since both the parties admit to that legal position, no citation in support of this settled Position is noted herein. While deciding an issue of this nature relating to apportionment, the primary factor, which is to be considered is as to who is entitled to the compensation. According to the provision in the Act, 1894 "a person interested" is entitled to the compensation. While deciding an issue of this nature relating to apportionment, the primary factor, which is to be considered is as to who is entitled to the compensation. According to the provision in the Act, 1894 "a person interested" is entitled to the compensation. Section 3(6) of the Act provides that "the expression "person interested" includes all persons claiming an interest in compensation to be made on account of the acquisition of land under this Act and a person shall be deemed to be interested in land if he is interested in an easement affecting the land". It has to be found out as to which of the parties satisfy the criteria as "person interested". 12. Exhibit 'c' is the document, which speaks about surrendering Gountiship by Natabara. There it has been recorded that Baidyanath, the new Gountia, who opted to deposit the arrear amount also suggested for settlement of the other abandoned lands as Gauntia raiyati land in his favour. Ext. D is an act in furtherance of that initiation and it appears from Ext. D that after discussing all the facts and circumstances relating to surrender of Gauntiship, abandonment of village by Natabara with his family, and the land being lying fallow and deteriorating, the property under acquisition was settled in favour of Baidyanath. A settlement of that nature and a mere entry in a revenue record are distinguishable. A settlement of the above nature always creates a right whereas a revenue entry mayor may not indicate such a right but if identifies the person from whom rent or revenue is to be collected. Therefore when a settlement of the above nature creates a right, such person comes within the meaning of "person interested" to claim compensation. While discussing about the order, Ext.D in the order Ext.1, the Tahasildar has doubted its genuineness and procurement of such document and also presumed that way simply because the opposite parties could not produce the original record. The reasons thereof is flimsy on the part of the Tahasildar, inasmuch as, the original record would have been in the possession of the State or the Darbar and the opposite parties could not be blamed for non-production of the original. Be that as it may, Ext.D is the document, which proves the right created in favour of Baidyanath together with the factum of possession in their favour. Be that as it may, Ext.D is the document, which proves the right created in favour of Baidyanath together with the factum of possession in their favour. In the case before the Settlement Officer, vide Objection No. 219/81/34/12 the Appellants admitted the factum of possession in favour of the Respondents. There also they did not claim to have taken possession of the property on the basis of the order Ext. 1 passed on 10.02.1969. 13. As against that claim of the Appellants as "person interested" is totally relying on Exts. 1, 2 and 3. As noted above, Exts. 2 and 3 are concurrent orders of the superior revenue authority and Ext.1 is the order which was passed by the Tahasildar, Deogarh in Revenue Misc. Case No. 9, of 1967 said to be passed u/s 7(1) of the Act, 1963. Section 7 thereof is quoted hereunder: Settlement of abandoned and surrendered holdings and waste land-(1) All abandoned and surrendered holdings in the possession of the holder of a Village Office and all waste lands reclaimed by him from and after the 1st day of January, 1949 shall be, so far as may be practicable, settled with the previous holders or their heirs, or with landless persons and small-holders of land in the prescribed manner. (2) All waste lands reclaimed prior to the said date shall be settled with the holder of a Village Office with rights of occupancy therein on a fair and equitable rent. (3) Notwithstanding anything to the contrary in Sub-sections (1) and (2) in the territories of the former State of Pal-Lahara, waste lands reclaimed by the Sarbarakar prior to the first day of January, 1942 shall be settled in the manner specified in Sub-section (2) and waste lands reclaimed on and after the said date in the manner specified in Sub-section (1). 14. On a mere perusal of the aforesaid provision it is to be understood that claim is to be entertained on abandoned and surrendered holding but in possession so also settlement of waste land reclaimed by 1st January, 1949, if such person was holder of village office. This requirement of law was not at all taken into consideration by learned Tahasildar, Deogarh and he waylaid himself by calling upon the opposite parties in the case to prove their case without asking the claimants in that case to prove their case. This requirement of law was not at all taken into consideration by learned Tahasildar, Deogarh and he waylaid himself by calling upon the opposite parties in the case to prove their case without asking the claimants in that case to prove their case. Apart from that, when the aforesaid requirement of law was not satisfied by the claimants that they were in possession on the date of claim, their claim for settlement as against the claim of the person in possession could not have been countenanced. The Tahasildar waylaid himself to consider the claim of partition and possession in the family of Baidyanath as a tactics to defeat the claim of the Appellants. The further orders in Exts. 2 and 3 in effecting seal of approval to the aforesaid findings of the Tahasildar also suffers from similar lacuna. In addition to that in Ext. 1, there was order for provisional settlement. Section 7(1) does not speak of provisional settlement. Learned Counsel for the Appellants argues that under the said circumstance it should be treated as settlement by ignoring the word "provisional". On the other hand, Respondents argue that it should be treated as no settlement because of the use of the word 'provisional'. Interpretation of the word "provisional" is not necessary in view of the fact that the order of settlement passed in Ext.1 and followed in the judgments, Exts. 2 and 3 are non-sustainable because of the aforesaid lacuna and above all the factum of possession being with the descendents of Baidyanath all throughout from 1936 and onwards. For the reasons stated above, this Court finds that the Appellants have not been able to make out their case as "person interested" to be entitled to any amount of compensation assessed for the land under Khata NosA and 4/3 and accordingly the Appeal is dismissed. 15. Under the given facts and circumstances, parties are directed to bear their respective cost of litigation. Hearing fee be assessed at contested scale. Final Result : Dismissed