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2014 DIGILAW 212 (ORI)

RITA MOHAPATRA v. STATE OF ORISSA

2014-03-28

C.R.DASH

body2014
JUDGMENT : C.R. Dash, J. - The petitioner, in this writ petition, impugns the order dated 26.08.2011 passed by the Member, Board of Revenue, Odisha, Cuttack in O.S.S. Case No. 289 of 2003. Late Pradipta Gangadeb (father of present opposite party No. 6) was the ruler of ex-State of Deogarh. The land appertaining to plot No. 254 under MS Khata No. 183 measuring an area of Ac.0.25 decimals is a species of homestead land with a pucca house on it. The land is situated under Deogarh Municipality area and aforesaid late Pradipta Gangadeb was the owner of the land. On 27.01.1990 late Pradipta Gangadeb executed a Registered Sale Deed in respect of the aforesaid land in favour of the petitioner and delivered possession of the same with the building to the petitioner. The petitioner from the date of purchase, remained in peaceful possession over the same and she is stated to have constructed her residential house there. The petitioner filed Mutation Case No. 781 of 1990 before the Tahsildar, Deogarh to mutate the land in question in her favour. Learned Tahsildar rejected such Mutation Application, inter alia, on the ground that the land sold by late Pradipta Gangadeb being a ceiling surplus land and he being the land owner having received the compensation amount on 11.10.1991, the land cannot be mutated in favour of the petitioner. The petitioner moved the Sub-Collector, Deogarh in appeal by filing Appeal No. 1 of 1992. Before the appellate forum also she failed, as the appeal was rejected on the selfsame ground. The petitioner thereafter filed revision vide Mutation Revision No. 74 of 1994 before the Commissioner, Land Records and Settlement. Subsequently the revision was transferred to the Member, Board of Revenue and numbered as O.S.S. Case No. 289 of 2003. Before the Member, Board of Revenue, all the points regarding saleable interest on the part of late Pradipta Gangadeb were raised. It was specifically averred before the Revisional Forum that in view of Section 2(14) of the O.L.R. Act and the decision of this Court reported in Mahurilal Agarwalla Vs. Dusasan Sahu and Others, and un-reported decision of this Court in O.J.C. No. 635 of 1977, the land in question having belonged to species of homestead category, the same is not includible in the ceiling surplus area of late Pradipta Gangadeb. Dusasan Sahu and Others, and un-reported decision of this Court in O.J.C. No. 635 of 1977, the land in question having belonged to species of homestead category, the same is not includible in the ceiling surplus area of late Pradipta Gangadeb. The Member, Board of Revenue however, without addressing the points raised before him, held that the land having been vested to the government absolutely and free from all encumbrances on 26.06.1984 after final order was passed by the Revenue Officer in O.L.R. Case No. 5 of 1974, late Pradipta Gangadeb had no saleable interest on 27.01.1990 and for that reason R.S.D. No. 65 dated 27.01.1990 executed in favour of the petitioner is not sustainable. 2. It is pertinent to mention here that O.L.R. Case No. 5 of 1974 was initiated against late Pradipta Gangadeb for determination of the ceiling area. On 10.02.1980 Pradipta Gangadeb had filed a petition before the Revenue Officer to exclude the land in question from the ceiling proceeding, as the same is a homestead land with a pucca house on it. Without determining the said question, ceiling surplus area was determined by the Revenue Officer holding the land in question to be a ceiling surplus area. Opposite party No. 6, by filing a counter, has admitted receipt of compensation by late Pradipta Gangadeb in respect of the land in question on 11.10.1991. He is however ready and willing for refund of the compensation amount already received. 3. Learned counsel for the petitioner submits that the land in question being a homestead land is not includible in the ceiling surplus proceeding in view of Section 2(14) of the O.L.R. Act. If wrongly the same has been included, the order determining the land in question to be a ceiling surplus area is a nullity and non-est in the eye of law, especially in view of Section 2(14) of the O.L.R. Act. Learned Addl. Government Advocate however supports the impugned order, but he is not in a position to say as to why the aforesaid question stated to be raised before the revisional forum has not been addressed by the revisional forum. 4. Learned Addl. Government Advocate however supports the impugned order, but he is not in a position to say as to why the aforesaid question stated to be raised before the revisional forum has not been addressed by the revisional forum. 4. From the rival contentions of the parties, the following question has got to be examined, namely:- (1) Once under the Orissa Land Reforms Act the Revenue Officer comes to hold that the property is beyond the ceiling area, what is the effect of such a decision? 5. Under the O.L.R. Act, jurisdiction has been conferred on the Revenue Officer to determine the ceiling area and elaborate provisions have been made as to the consequence of such determination. Finality is attached to the decision of the Revenue Officer in regard to the ceiling area subject to the result of the appeal or revision. Therefore, when no appeal or revision is carried, the Revenue Officer's decision becomes final. As a consequence of such determination, the surplus lands vests in the State absolutely and free from all encumbrances. The ownership of the landholder or raiyat ceases. 6. While learned counsel for the petitioner and learned counsel for opposite party No. 6 do not dispute this analysis, it is contended that the property being a homestead land with pucca house standing on it located within the municipality area of Deogarh town and not being the land which could be shown to be capable of being used for agricultural purposes, the land in question does not come within the ambit and purview of the Act, and the Revenue Officer lack jurisdiction to deal with the property while proceeding to decide the ceiling and its size. In this view of the matter, the determination by the Revenue Officer is a nullity, non-est in the eye of law and therefore the determination has no validity at all, and finality contemplated in the Act would not attach to the decision and the sale in favour of the petitioner by late Pradipta Gangadeb is legal and justified. Decision of this Court in Mahurilal Agarwalla's case (supra) supports this contention of the petitioner. Perusal of the impugned order shows that learned Member, Board of Revenue has not at all addressed the aforesaid question stated to have been raised before him by the learned counsel for the petitioner. Decision of this Court in Mahurilal Agarwalla's case (supra) supports this contention of the petitioner. Perusal of the impugned order shows that learned Member, Board of Revenue has not at all addressed the aforesaid question stated to have been raised before him by the learned counsel for the petitioner. In such view of the fact, it is a fit case where the matter is to be remanded to the learned Member, Board of Revenue for determination of the aforesaid question at his end. Accordingly, the matter is remanded to the Member, Board of Revenue, Odisha, Cuttack for disposal afresh in accordance with law, addressing the question discussed supra. The matter be disposed of within six months from the date of appearance of the parties before the Member, Board of Revenue. Learned Member, Board of Revenue is directed to act upon on production of a certified copy of this order. The writ petition is accordingly disposed of. Final Result : Disposed Off