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2010 DIGILAW 705 (ORI)

Raj Kishore Mohapatra v. Tahasildar Pipili

2010-10-25

B.P.RAY

body2010
JUDGMENT B.P. RAY, J. — This writ petition is directed against the order dated 19.8.2009 passed by the learned Addl. Tahasildar, Pipili rejecting the petition of the petitioner for correction of the Record of Rights on the ground that since the Record of Rights has been finally published on dated 30.1.1988 under Section 22(2) of the Orissa Consolidation of Holdings and Prevention of Fragmentation of Land Act, 1972, the Tahasildar has no jurisdiction to correct the finally published Record of Rights on the basis of cause of action which arises prior to the date of final publication of Record of Rights. The petitioner has questioned the legality of the impugned order under Annexure-2 to the writ petition. 2.The factual matrix of the case in nutshell is that the petitioner has moved the Tahasildar, Pipili in Misc. Case No.322 of 1975 with the prayer to declare him as a tenant under the State of Orissa. The case of the petitioner is that in 1927 settlement the suit plots were under Khas possession and recorded in the names of ex-intermediaries, namely, Harihar Ghose, S/o- Ramlal Ghose of Markendeswar Sahi, Puri town, Radha Krushna Das and Dina Krushna Das, S/o- Gobinda Prasad Das of Village-Siuli under Khata Nos.307 and 721 of Mouza-Siuli respectively. The ex-intermediaries, Radha Krushna Das and Dina Krushna Das out of their share of Ac.14.10 granted Patta and rent receipts in favour of the petitioner to an extent of Ac.10.27 over plot No.662 (Ac.2.44), Plot No.771 (Ac.2.06), Plot No.821 (Ac.2.38), Plot No.993 (Ac.1.17) and Plot No.996 (Ac.2.92) in total Ac.10.27 under Khata No.307 of Mouza-Siuli by delivering possession to him and the said plots correspond to 1966 settlement Plot Nos.755, 824, 961, 1157 and 1169 measuring area of Ac.2.05, Ac.2.12, Ac.1.42, Ac.1.50 and Ac.2.81 respectively under Khata No.598 of Mouza Siuli. The petitioner in support of his claim filed all the relevant documents. The petitioner in support of his claim filed all the relevant documents. 3.The order 18.4.1977 passed by the Tahasildar, Pipili under Annexure-1 reveals that he had invited public objection by beating of drum, called for report from the R.I. and apart from that he had himself made field enquiry on 25.11.1976 on his administrative side for his own satisfaction and he has personally taken statements of the local villagers to ascertain the genuineness of the claim of the petitioner and the local people stated before him that the suit plots are in khas possession, being cultivated from the time of their fore-fathers and the villagers have no objection. The Tahasildar taking into consideration the documents, like the Ekpadia, filed by the ex-intermediary after vesting showing the petitioner as tenant under him since 1940, the Patta granted by the ex-intermediary on 1.1.1940, the rent receipts issued by the ex-intermediary, the report of the R.I., regarding the fact of possession of the petitioner in his own finding has passed order declaring the petitioner as a tenant under the State of Orissa from the date of vesting i.e. 1952-53 and as such directed the Record Keeper for correction of R.O.R. in favour of the petitioner as Stitiban status, Kisam-Baje Fasal-I subject to payment of back rent to the Government from 1952-53 onwards in respect of the suit plots, but the area has been reduced to Ac.9.90. In compliance to the order passed by the Tahasildar, the petitioner has deposited rent of Rs.1815/- with Nazir vide M.R. No.22/1097 dated 25.5.1977. 4.As no action was taken by the official of the opp.party No.1 for correction of R.O.R. despite the petitioner’s approaching on several occasions, the petitioner was constrained to move the opp.party No.1 alleging harassment for more than 17 years and the Tahasildar, vide his order dated 25.1.1995, (under Annexure-1 series to the writ petition) taking note of such inordinate delay, again directed for correction of R.O.R. after verification and conversion report of the Amin. The Tahasildar in his order dated 15.6.1995 has recorded that the Amin has submitted his conversion report stating that the Sabik 1966 Settlement suit plots now correspond to Hal Plot Nos.430, 450, 460, 565 and 862 under Khata No.800 of Mouza-Siuli and directed the Record Keeper to correct the R.O.R. 5.Being aggrieved with the complete inaction of the office of the Tahasildar, Pipili for correction of R.O.R. and feeling harassed, the petitioner approached this Court in W.P.(C) No.8205 of 2009 and the same was disposed of on 17.6.2009 with the observation that if the petitioner files an application before the appropriate authority, suitable decision as early as possible shall be taken. 6.The petitioner again applied to the opp.party No.1 on 26.6.2009 afresh praying therein for correction of R.O.R. But the opp.party No.1, without considering the matter in its proper perspective, vide his order dated 19.8.2009, has dropped the petition of the petitioner for correction of R.O.R. on the ground of want of jurisdiction. 7.The Tahasildar in the counter affidavit has disputed the claim of the petitioner stating that the suit land is a part of ex-intermediaries of Estate which had vested to the Govt. free from all encumbrances. It is also stated that there is no provision in law or any executive instruction for declaring anybody as a tenant on the basis of fraud documents. It also states that Section 8(1) of Orissa Estate Abolition Act, 1951 does not authorize the O.E.A., Collector-cum-Tahasildar to declare any body as tenant. It is further urged by the Tahasildar that O.E.A. Revision No.7 of 2010 has been filed before the Member, Board of Revenue, Orissa under Section 38(b) of the O.E.A. Act challenging the order dated 18.4.1977 of the Tahasildar and the name of the petitioner was not incorporated as tenant in the records of Pipili Tahasil soon after vesting of the ex-Estate, hence it is clear that the ex-intermediaries had not transferred any record of tenancy in favour of the petitioner. 8.This Court had directed the Tahasildar, Pipili to produce records. Despite several adjournments for the purpose, the Tahasildar failed to produce the same, for which a proceeding for violation having been initiated the Tahasildar filed show cause stating that due to outbreak of fire on 3.10.1996, valuable records/documents of Pipili, Tahasil were gutted and destroyed. Therefore, this Court directed the Collector, Puri to submit records. Despite several adjournments for the purpose, the Tahasildar failed to produce the same, for which a proceeding for violation having been initiated the Tahasildar filed show cause stating that due to outbreak of fire on 3.10.1996, valuable records/documents of Pipili, Tahasil were gutted and destroyed. Therefore, this Court directed the Collector, Puri to submit records. Accordingly, the Collector, Puri filed an affidavit stating that after thorough search, records pertaining to Misc. Case No.322 of 1975 and Ekpadia furnished by ex-intermediary in Pipili Tahasil, are not available in the Record Room of Pipili Tahasil. 9.From order sheet, under Annexure-1, filed by the petitioner, I find that he has filed rent receipts and patta issued by the ex-intermediary and as per the order dated 03.02.76 of the Tahasildar, the same has formed part of record and in his order dated 24.7.76, the Tahasildar, Pipili has recorded that he has verified the report of the R.I. which says that the petitioner is in possession since the days of his father and from the Jamabandi record, it appears that the ex-intermediary has admitted the petitioner as tenant and the ex-intermediary has granted patta in favour of the petitioner with effect from 1940 and the rent receipts granted by the ex-intermediary on verification has been found to be correct as per Jamabandi. From order dated 18.4.1944 passed by the Tahasildar, it is clear that the petitioner has submitted Ekpadia and the Tahasildar has made field verification in his administrative capacity. Hence, the decision relied on by the State reported in AIR 1994 SC 853 ; S.P. Chengalvaraya Naidu (dead) by L.Rs., v. Jagannath (dead) by L.Rs. and others has no application because of failure of the opp.parties to produce records to prove the contrary and even no inference can be drawn with regard to fraud. 10.Mr. Mishra, learned Addl.Govt. Advocate strenuously argued that the land in question being ‘Gochar’, the same could not have been settled. Mr. Patnaik, learned counsel for the petitioner submitted that the term ‘Gochar land’ has been defined as communal land under Section-2 of the Orissa Communal Forest and Private Lands (Prohibition of Alienation) Act, 1948 and the said Act came into force on 1st April, 1948 and the same has no retrospective effect. Since in the instant case, the lease has been granted by the ex-intermediary admittedly on 01.01.1940, hence in my considered view, the submission of Mr. Since in the instant case, the lease has been granted by the ex-intermediary admittedly on 01.01.1940, hence in my considered view, the submission of Mr. Mishra, learned Addl. Govt. Advocate cannot be accepted. The decision cited by the learned Addl.Govt. Advocate reported in 96(2003) CLT 720(SC); State of Orissa v. Nityananda Satpathy and another has no application to this case. 11.Mr. Patnaik, learned counsel for the petitioner further submitted that as per Section 8(1) of the O.E.A. Act, a tenant under the ex-intermediary before the date of vesting need not apply for such declaration, rather such a tenant who was in possession of the land under ex-intermediary immediately before the date of vesting shall be deemed to be holding the land under the same terms and conditions and restrictions to which he was subjected to prior to vesting. The petitioner relied on the decisions reported in Vol.90(2000)CLT 395 and 2007 (I) OLR 510 in support of his contention. In my considered view, when admittedly the predecessors of the petitioner and thereafter the petitioner have been in possession of the suit land on the date of vesting as tenant under the ex-intermediary, the Tahasildar has rightly accepted the petitioner as tenant. Besides, Section 8(1) of the O.E.A. Act contains deeming provision. 12.Apart from the above, the Tahasildar in his order under Annexure-1 has clearly stated that he has verified all documents and found them to be correct and genuine and he has himself made field verification. The opp.party could not file any document to falsify the claim of the petitioner. So far as filing of the Revision Case is concerned, the same is definitely an act of after thought and the same has been filed during proceeding before this Court, that too after lapse of 33 years and no reasonable and logical explanation is forthcoming justifying the action after such a belated stage. Moreover, mere filing of revision will not take way the effect of the order of the Tahasildar. Justice, equity and fair-play demand that the Tahasildar should have issued direction and instructed his office to correct the R.O.R., but unfortunately the Tahasildar, Pipili again has pushed the petitioner into doldrums. In view of my observation herein above, the impugned order of the Addl. Tahasildar, Pipili under Annexure-2 is set aside and the writ petition is allowed. Justice, equity and fair-play demand that the Tahasildar should have issued direction and instructed his office to correct the R.O.R., but unfortunately the Tahasildar, Pipili again has pushed the petitioner into doldrums. In view of my observation herein above, the impugned order of the Addl. Tahasildar, Pipili under Annexure-2 is set aside and the writ petition is allowed. The Tahasildar, Pipili is directed to correct the R.O.R. in favour of the petitioner within a period of two months from the date of communication of the order of this Court. No costs. Petition allowed.