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2011 DIGILAW 495 (ORI)

Prativa Pradhan v. State of Orissa

2011-09-16

B.K.MISRA, L.MOHAPATRA

body2011
JUDGMENT L. MOHAPATRA, J. — The petitioners in this Writ Petition question the legality of the order passed by the Addl.Tahasildar, Bhubaneswar dated 22.6.2010 under Annexure-7. 2.The petitioner are the legal heirs of late Ladukishore Pradhan. The said Ladukishore was serving in Indian Army. During his life time, he submitted an application before the Tahsildar - opposite party No.3 for allotment of Ac.5.000 decimals of agricultural land under the Government Grants Act, 1895 and in terms of the Revenue Department letter No.29827 dated 25.6.1990. The then Tahasildar registered the application as W.L. Lease Case Nos.167 and 474 of 1966-67. After due enquiry and following the due procedure an area of Ac.2.650 decimals was sanctioned in his favour from Sabik Plot No.784 under Khata No.245 of Mouza - Sampur for settlement. Earlier also an area of Ac.2.350 decimals of land was sanctioned in favour of said Ladukishore from Sabik Plot No.75/2007 under Khata No.666 (575/134) of Mouza - Patrapada by the same Tahasildar vide order dated 13.5.1967 in W.L. Lease Case No.474 of 1966-67 making it a total of Ac.5.000 decimals of land. Though after such settlement ‘patta’ had not been issued in favour of late Ladukishore, after receipt of the eligibility certificate in August, 1970 from the Collector, Puri, ‘patta’ in respect of land at Sampur was issued in his favour. In respect of the land at Mouza - Patrapada ‘patta’ was also issued after verification of the eligibility certificate. Late Ladukishore remained in possession of both the plots and paid land revenue from time to time. At the relevant time late Ladukishore was working at Sunebada in the district of Koraput and also after retirement stayed at Semiliguda. During Consolidation operation late Ladukishore was serving at Sunebeda and could not take steps before the Consolidation authorities, as a result of which the land at Patrapada extending to an area of Ac.2.350 decimals was recorded in favour of State Government as ‘Patita’ Plot No.321 under Khata No.780. The final record of rights was also published in the year 1983-84 indicating the State Government as the owner of the said property. The final record of rights was also published in the year 1983-84 indicating the State Government as the owner of the said property. The petitioners, who are the legal heirs of Late Ladukishore came to know about the above wrong recording by the Consolidation authorities in January, 2006 and filed a revision petition before the learned Commissioner, Consolidation and Settlement, Orissa, Bhubaneswar under Section 37 (1) of the Orissa Consolidation of Holdings and Prevention of Fragmentation of Land Act, 1972, which was registered as Consolidation Revision Case No.7 of 2007. The learned Commissioner disposed of the revision on 26.7.2007 directing the Tahasildar, Bhubaneswar to check the relevant papers, conduct due enquiry inviting the parties, examine all relevant original documents and decide the matter as per law. In compliance of the said order passed by the learned Commissioner, the Addl. Tahasildar, Bhubaneswar in the impugned order held that he has no jurisdiction to effect any mutation in corresponding Sabik and Hal Record of Rights. The said order is the subject matter of challenge in this Writ Petition. 3.Undisputedly Ac.2.350 decimals of land were settled in favour of late Ladukishore Pradhan by the then Tahasildar in W.L. Lease Case No.474 of 1966-67 on the basis of the recommendation of the Home Department as late Ladukishore was a Jawan and was entitled to such settlement under the Government Grants Act, 1895. After remand by the learned Commissioner, Consolidation and Settlement, field verification was made by the Revenue Inspector, Patrapada and his report reveals that Hal Plot No.321 corresponds to Sabik Plot No.75 of 2007 and Sabik Khata No.575/108. The petitioners also found to be in possession with a stone boundary. On further verification of records, it was found that the kissam of the land in Sabik Plot No.75 was ‘Kanta Jungle’ and therefore, alienation of such land is prohibited under Sub-section (1) of Section 3 of the Orissa Communal Forest and Private Lands (Prohibition of Alienation) Act, 1948. Therefore, the Addl.Tahasildar in the impugned order held that such alienation of land having been made in favour of late Ladukishore Pradhan in contravention of the aforesaid provision, the same is void and accordingly mutation is not permissible. 4.Mr. Samantaray, learned counsel appearing for the petitioners assailed the impugned order passed by the Addl. Therefore, the Addl.Tahasildar in the impugned order held that such alienation of land having been made in favour of late Ladukishore Pradhan in contravention of the aforesaid provision, the same is void and accordingly mutation is not permissible. 4.Mr. Samantaray, learned counsel appearing for the petitioners assailed the impugned order passed by the Addl. Tahasildar on the ground that the above land in Mouza-Patrapada had been settled in favour of late Ladukishore Pradhan under the Government Grants Act, 1895 from out of the land reserved for defence personnel. It was further contended by Mr. Samantaray, learned counsel for the petitioners, that late Ladukishore could not take steps during the Consolidation operation as he was working at Sunabeda in the district of Koraput and the land was wrongly recorded in favour of State Government as ‘Patita’ by the Consolidation authorities. When the present petitioners came to know about such wrong recording, they immediately approached the learned Commissioner, Consolidation and Settlement, Orissa, Bhubaneswar by way of filing a revision under Section 37 (1) of O.C.H. & P.F.L. Act, 1972. The learned Commissioner by order dated 26.7.2007 directed the Tahasildar, Bhubaneswar to conduct an enquiry, verify the records and deal with the case in accordance with law. According to Mr. Samantaray, learned counsel appearing for the petitioners, that the settlement of the aforesaid land in favour of the late Ladukishore cannot be said to be in contravention of Section 3 of the Orissa Communal Forest and Private Lands (Prohibition of Alienation) Act, 1948. It was contended by him that the said Act has no application to the facts of the present case. It was further contended by him that when the land was settled in favour of late Ladukishore by the Tahasildar in the year 1971 the Forest Conservation Act had not come into force and therefore, there was no bar in settlement of a land, even if the same is recorded as ‘Kanta Jungle’. Mr. Samantaray, learned counsel appearing for the petitioners also submitted that the Addl. Tahasildar in the impugned order having proceeded on the basis of wrong assumption of law, the said order is liable to be set aside. Mr. Samantaray, learned counsel appearing for the petitioners also submitted that the Addl. Tahasildar in the impugned order having proceeded on the basis of wrong assumption of law, the said order is liable to be set aside. 5.Learned counsel appearing for the State submitted that even at the time of settlement of land in favour of late Ladukishore, the land had been recorded as ‘Kanta Jungle’ and therefore, such land could not be settled in favour of late Ladukishore for agricultural purposes. On the basis of the above submission, it was further contended by learned counsel for the State that once the land is found to be recorded as ‘Kanta Jungle’, mutation is not permissible. 6.Before we deal with the contention of learned counsel appearing for both parties, we feel it necessary to refer certain orders passed by different authorities in the present case. Late Ladukishore had submitted an application in the year 1966 for grant of lease in respect of Ac.5.000 decimals of land out of Plot No.75 under Anabadi Khata No.666 of Mouza - Patrapada. The said application was registered as W.L. Case No.167 of 1966-67. The order dated 01.9.1966 reflects that after receipt of the application, the Tahasildar sent the same to Home Department for scrutiny in order to find out whether late Ladukishore was eligible for such concession. At the same time the Revenue Inspector, Patrapada was also directed to submit a report. The order dated 20.8.1970 passed in the said W.L. Case shows that the eligibility certificate was granted by Home Department and the Revenue Inspector, Patrapada had also given a proposal for grant of lease in respect of Ac.2.650 decimals reserved for Jawans in his circle. Since the entire Ac.5.000 decimals of land was not available in Mouza - Patrapada late Ladukishore also expressed his willingness to take the rest of the land from Mouza - Sampur. After completing all formalities required for settlement of said land, the Tahasildar by order dated 18.2.1971 sanctioned Ac.2.650 decimals of land for lease in favour of late Ladukishore in village - Sampur out of Plot No.784 under Khata No.245. Similarly Ac.2.350 decimals of land in village - Patrapada out of Plot No.75 under Khata No.666 was also sanctioned in favour of late Ladukishore. Similarly Ac.2.350 decimals of land in village - Patrapada out of Plot No.75 under Khata No.666 was also sanctioned in favour of late Ladukishore. Therefore, it is evident from the orders passed by the Tahasildar in the aforesaid two W.L. Cases that Ac.2.650 decimals of land was sanctioned in favour of late Ladukishore in Village - Sampur out of Plot No.784 under Khata No.245 and Ac.2.350 decimals of land was sanctioned in Village - Patrapada out of Plot No.75 under Khata No.666, making it a total of Ac.5.000 decimals. From Annexure-3 it appears, that ‘patta’ was also granted in favour of late Ladukishore in respect of both he lands. From the report of the Revenue Inspector after remand, it is also clear that the petitioners are in actual physical possession of the land with a stone boundary. In the ‘patta’ granted in favour of late Ladukishore, the kissam of the land was described as ‘Bajefasal’ and not as ‘Kanta Jungle’ as stated in the affidavit filed by the Tahasildar. There is nothing on record to show that the said land settled in favour of late Ladukishore had been recorded as ‘Kanta Jungle’ in any record. During Consolidation operation in that area late Ladukishore did not take any steps and the land was recorded in the name of the State Government and the kissam has been described as ‘patita’. No document has been produced by the Tahasildar in his affidavit to show that the said land had been recorded as ‘Kanta Jungle’ in any record. Even accepting the contention of learned counsel for the State that before settlement, the land had been recorded as ‘Kanta Jungle’, Section 3 of the Orissa Communal Forest and Private Lands (Prohibition of Alienation) Act, 1948 has no application. Section 3 of the said Act prescribes for prohibition of the alienation of communal forest and private lands. The Addl.Tahasildar in the impugned order has referred to Sub-section (1) of Section 3 of the said Act. The said proviso prescribes that notwithstanding anything contained in any other law for the time being in force or any express or implied agreement, but subject to the provisions of Sub-section (2), no landlord shall, without the previous sanction of the Collector, sell, mortgage, lease or otherwise assign or alienate or convert into raiyati land any communal forest or private land or create occupancy rights therein. The said Sub-Section only imposes such prohibition in respect of intermediaries and accordingly the said section has no application to the facts of the present case. The land in favour of late Ladukishore having been settled under the Government Grants Act, the O.G.L.S. Act, 1962 may not have any application. Even if, we consider the submission of learned counsel for the State that the land prior to settlement had been recorded as ‘Kanta Jungle’ and could not be settled in favour of late Ladukishore, we find that by that time the land had been settled in favour of late Ladukishore the Forest Conservation Act has also not come into force. Therefore, under no circumstances, the land could be recorded in favour of State Government in the Consolidation proceeding when the same had already been settled in favour of late Ladukishore and ‘patta’ had been issued. Because of the mistake committed by the Consolidation authorities, the matter was brought to the notice of the learned Commissioner, Consolidation and Settlement in a revision case under Section 37 (1) of the O.C.H. & P.F.L. Act. The Learned Commissioner being satisfied about the illegality committed during Consolidation operation directed the Tahasildar, Bhubaneswar to conduct an enquiry, verify the records and proceed in accordance with law. Therefore, the Addl. Tahasildar, Bhubaneswar ignoring the entry made during Consolidation operation in favour of the State Government should have allowed the petitioners application for mutation on the basis of the lease granted by the then Tahasildar in favour of late Ladukishore as well as the ‘patta’ granted in favour of late Ladukishore. Mr. Samantaray, learned counsel appearing for the petitioners drew attention of the Court to a decision of this Court in the case of M/s. Swamy Resorts Pvt. Ltd. v. State of Orissa and others (W.P.(C) No.9857 of 2007 disposed of on 19.2.2008). A similar question with reference to Forest Conservation Act, 1980 was considered by this Court and it was observed in the said judgment that the land involved in the said Writ Petition though had been shown as ‘Jungle-II’, the same having been already come within the Bhubaneswar Development Authority and the kissam of the land having been changed to homestead and various allotments already having been made in that area, the earlier entry describing the kissam of the land as ‘Jungle-II’ has lost its character as ‘Jungle-II’. Similar is the position in the present case. The area in which the land has been settled in favour of late Ladukishore has come within the Bhubaneswar Development Authority and if at all at any point of time the said land had been described as ‘Kanta Jungle’, it has lost its significance, considering the fact that the lands in these two Mouzas have been used for the purpose of homestead and permission has been granted for construction of houses. 7.For the reasons stated above, we set aside the order dated 22.6.2010 under Annexure-7 and direct the Addl.Tahasildar, Bhubaneswar to process the application for mutation and dispose of the same in accordance with law keeping in mind the observations made above. The Writ Petition is accordingly disposed of. B.K. MISRA, J.I agree. Petition disposed of.