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2012 DIGILAW 539 (ORI)

Keshar Ahmad Khan v. Ramkinkar Singh Deo

2012-12-13

S.K.MISHRA, V.GOPALA GOWDA

body2012
JUDGMENT S.K. MISHRA, J. 1. In this appeal the appellant has assailed the judgment passed on 16.09.2011 by the learned Single Judge in Review Petition No. 25 of 2009 allowing the review application and recalling the order passed by the learned Single Judge on 07.02.2007 dismissing OJC No. 6709 of 1994. 2. The facts leading to filing of this appeal may be succinctly stated as follows:– The present appellant filed OLR Case No. 42 of 1976 under Section 36-A of the Orissa Land Reforms Act, 1960, hereinafter referred to as 'the OLR Act' for brevity, claiming to be Bhag Chasi in respect of Ac. 4.49 decimals of land belonging to the respondent No.1 's father–Satyabrata Singh Deo. The respondent No.1's application was dismissed by the Revenue Officer-cum-Tahasildar, Khariar on 15.11.1976. He came to the finding that the appellant was a 'C' class contractor having no land near the case land and no agricultural land anywhere. He also observed that the land in question adjoining to Khariar-Nuapada road is not capable of growing crops as claimed by the appellant and is rather suitable for development into house site. The appellant preferred an appeal against the said order, which was dismissed on 22.03.1977 by the Additional District Magistrate, Kalahandi. The appellant preferred a review against the said order, which was registered as Review Case No. 145 of 1977 and it came before the Revenue Divisional Commissioner, Orissa, Bhubaneswar, hereinafter referred to as 'the RDC' for brevity. The learned RDC, on 06.12.1979, ail owed the revision and remanded the matter back to the Revenue Officer-cum-Tahasildar, Khariar with specific directions. The learned RDC held that from the record it is apparent that no notice was served on the villagers under Section 27-B of the Orissa Land Reforms (General) Rules, 1965, hereinafter referred to as 'the Rules' for brevity, inviting objections to the settlement claimed by the respondent. He further held that the record does not show notice having been issued to the members of the local committee for consultation. He observed that Rule 27-C of the Rules prescribed that the Revenue Officer shall consult the committee in a meeting on the appointed date. Observing that Rule has not been complied with, the RDC has held that the omissions vitiate the proceeding. He observed that Rule 27-C of the Rules prescribed that the Revenue Officer shall consult the committee in a meeting on the appointed date. Observing that Rule has not been complied with, the RDC has held that the omissions vitiate the proceeding. Accordingly, the orders of the lower Court were set aside and the case was remanded to the Revenue Officer, Khariar for convening a meeting of the local committee for consultation and to come to the finding keeping in view the evidence on behalf of the respondent and during the local enquiry collected earlier. 3. After such remand, the OLR Case No. 42 of 1976 was dealt with by the Revenue Officer-cum-Tahasildar, Khariar. On 21.06.1980 the prayer of the appellant was allowed. OLR Ceiling Appeal No.2 of 1989 and OLR Revision Case No.9 of 1991 preferred against the order by the respondent and his mother. Having been dismissed by the order dated 19.06.1990 passed by the Sub-Collector, Nuapada and order decided on 25.06.1994 passed by the Collector, respectively, the respondent No.1 filed OJC No. 6709 of 1994 assailing the orders of the Sub-Collector and Collector upon remand. 4. OJC No. 6709 of 1994 was disposed of on 07.02.2007, wherein learned Single Judge held that the Collector, Nuapada after perusing the materials and discussing the evidence confirmed the findings arrived at by the authorities. The Collector, Nuapada further observed that in the meantime the case lands had vested with the State in consonance with the provisions of OLR Act as the same were declared ceiling surplus land. He further held that the landowner having received compensation amount, according to the Collector, it was not open to him to assail the order of vesting of the disputed land as he ceases to be landlord any further. Learned Single Judge further held that the landlord knowing about the fact of vesting of the ceiling surplus land cannot argue that the proceeding initiated under Section 36-A of the OLR Act is not maintainable. Accordingly, the writ petition was dismissed. 5. A writ appeal was filed against the said order, which was registered as W.A. No. 11 of 2007 and came before this Court for disposal of 19.01.2009. The appeal was disposed of as withdrawn giving liberty to the respondent to file an application for review. A review application was filed, out of which, this present appeal arises. 5. A writ appeal was filed against the said order, which was registered as W.A. No. 11 of 2007 and came before this Court for disposal of 19.01.2009. The appeal was disposed of as withdrawn giving liberty to the respondent to file an application for review. A review application was filed, out of which, this present appeal arises. The review application was disposed of on 16.09.2011 wherein the learned Single Judge took into the various contentions raised at the Bar and has come to the conclusion that the, application under Section 36-A of the OLR Act should be reheard to comply the orders of the learned RDC as described above. 6. We find it apposite to quote the exact words of the learned Single Judge to appreciate the findings recorded by him. The conclusion arrived at by the learned Single Judge reads as follows:– "22. Thus, admittedly, no general notice was issued to the villagers on 13.02.80 while convening meeting of the local committee on 29.2.80. Though notices were issued to the members of local committee by order dated 13.2.80, meeting of the members of the local committee was held on 19.2.80, i.e. before expiry of seven days from the date of issuance of notices. None of the members of the local committee appears to be resident of village Gadaramunda in which case land is situated. Shri Rao learned counsel appearing for the petitioner brought to the notice of this Court order dated 25.6.94 in OLR Revision Case No.9 of 1991 and urged that specific contention was made before the Collector that notice was issued to the residents of village Chindaguda instead of Gadaramunda. Also finding of the-local committee was in respect of Plot No. 18 in case of case Plot No. 60. It was also contended that in the revisional order under challenge in the writ petition, specific reference has been made to order dated 19.2.80. However, Collector, Nuapada rejected petitioner's contention on the basis of presumption that Revenue Officer-cum-Tahasildar was not likely to deviate himself from complying with the remand order of the RDC. 23. Thus, it is found that in allowing the application under Section 36-A of the OLR Act, the Revenue Officer-cum-Tahasildar does not appear to have complied with the mandatory provisions under Rules 27B and 27C of the Rules. 23. Thus, it is found that in allowing the application under Section 36-A of the OLR Act, the Revenue Officer-cum-Tahasildar does not appear to have complied with the mandatory provisions under Rules 27B and 27C of the Rules. Petitioner's grievance of non-compliance by Revenue Officer-cum-Tahasildar of the remand order to comply with provisions under the said Rules and record finding on the basis of evidence collected earlier has not been considered in OLR Ceiling Appeal No.2 of 1989 and OLR Revision Case No.9 of 1991. 24. Also, petitioner's contention of non-compliance of said provisions has not been referred to or dealt with in the order dated 7.2.2007 passed in OJC No. 6709 of 1994. In passing the said order, sought to be reviewed in this proceeding, this Court appears to have been actuated solely by the submissions relating to petitioner's choice not to retain the case land and vesting of the case land with the State as ceiling surplus case land and receipt of compensation by the petitioner. In doing so, the settled position of law, as pointed out in the decision of Hajari Jayasingh vs. State of Orissa and others reported in 46 (1978) CLT (Notes 85) 43, that upon declaration of ceiling surplus land in vesting with the State application under Section 36A of the OLR Act is not maintainable in respect of the land declared to be surplus, does not appear to have taken note of. 7. In that view of the matter, the question that is to be determined in this case, boils down to determine the following questions. (i) Whether the land which is vested with the State as ceiling surplus land of the landlord can be the subject matter of an application under Section 36A of the OLR Act? and (ii) Whether such land can be settled in the name of a tenant in view of the fact that the land has vested on the State free from all encumbrances? 8. Section 45 of the Orissa Land Reforms Act, 1960 provides for vesting surplus land in the Government. It reads as follows:– "45. and (ii) Whether such land can be settled in the name of a tenant in view of the fact that the land has vested on the State free from all encumbrances? 8. Section 45 of the Orissa Land Reforms Act, 1960 provides for vesting surplus land in the Government. It reads as follows:– "45. Surplus lands to vest in Government – With effect from the date on which the statement becomes final under sub-section (3) of Section 44, the interest of the person whom the surplus land relates and all land holders mediately or immediately under whom the surplus land being held shall stand extinguished and the land shall vest absolutely in the Government free from all encumbrances." 9. A plain reading of the provision reveals that from the date the draft statement becomes final under sub-section (3) of Section 44 of the Act, the interest of the person to whom surplus land relates and all land holders mediately or immediately under whom the surplus lands were being held shall stand extinguished and the said land shall vest absolutely in the Government free, from all encumbrances. The scope of the Section is that any land holder, who holds the land in his name and the land has been declared surplus, it shall vest with the Government free from all encumbrances. It also includes that any person, who is holding the land mediately or immediately under whom surplus as being held shall stand extinguished. Thus, a person, who is holding land under a landlord shall also cease to have any right over land on vesting of the land in question as surplus land. 10. In this case, a ceiling case has been initiated against the land holder, namely, Satyabrata Deo. He has filed an affidavit on 03.09.1976 wherein he has indicated in Schedule–C the name of the persons, who are in possession of the land as 'Shag Chasi'. At SI. No. 13 of the said Schedule, the name of the appellant-Keshar Ahmad Khan is reflected and he is indicated to have possessed Ac 4.49 decimals of land. However, there has been tempering of record and the name of Keshar Ahmad Khan has been scored through but a careful reading of the same reveals that the name of Keshar Ahmad Khan as 'Shag Chasi' appears in the Schedule list. However, there has been tempering of record and the name of Keshar Ahmad Khan has been scored through but a careful reading of the same reveals that the name of Keshar Ahmad Khan as 'Shag Chasi' appears in the Schedule list. The final order has been passed on 29.08.1977, which includes lands of Chindaguda and Bijepur. The lands of village-Chindaguda have not been included in the list of land vested to the Government. Therefore, it is clear that the land in question did not vest to the State and, therefore, the appellant has right to file an application under Section 36A of the Act for recognizing his tenancy over the land. He has filed application under Section 36A of the Act in 1976 and that is prior to the date of vesting. 11. In that view of the matter, this Court is of the opinion that the land, which vested in the State Government as ceiling surplus land, does not include the land involved in this case and as such the State can be settled in the name of tenant under Section 36A of the Act. 12. Since the tenant has proved that the land holder or landlord has recognized that the present appellant was holding the land as tenant under him (Bhag Chasi) in the affidavit sworn by the predecessor in the interest of the respondent, this Court is of the opinion that there is no justifiable reason to remand the case for further enquiry and accordingly, it is held that the order passed by the learned Single Judge is erroneous to that effect. Hence, the order passed by the learned Single Judge requires interference. In the result, the writ appeal succeeds. The judgment passed by the learned Single Judge on 16.09.2011 in Review Petition No. 25 of 2009 is hereby set aside. I agree. Writ appeal succeeds.