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2014 DIGILAW 44 (ORI)

Rama Devi v. Government of Orissa

2014-01-20

M.M.DAS

body2014
JUDGMENT : M. M. DAS, J. - This writ application has been filed impunging the order dated 17.09.2012 passed by the Member, Board of Revenue-opposite party No.2 in OSS Case No. 1216 of 2009. 2. The petitioners have sought for quashing the said order mainly on the ground that the settlement authorities, under the Orissa Survey and Settlement Act, 1958 (hereinafter referred to as 'the Act') have no jurisdiction or power to either ignore or pass orders contrary to an order passed on an application under Sections 6 and 7 of the Orissa Estate Abolition Act, 1951 (hereinafter referred to as 'the OEA Act'). 3. The facts leading to filing of the present writ application as stated by the petitioners is that the petitioners are the successors of Choudhury Keshab Chandra Mohapatra, Ex-intermediary, who as in possession of the land in Mouza-Gadakana under Khata No. 918 measuring an area of Ac. 18.64. After the intermediary estate was abolished under the OEA Act, the said property vested with the State under the said Act. Upon such vesting, the predecessor-in-interest of the petitioners, who as the Ex-intermediary over the aforesaid land, filed an application under Sections 6 and 7 of the OEA Act, which was registered as OEA Case No. 13/61-62. The said OEA Case was disposed of by the OEA Collector on 11.03.1962 with the following order: "Originally the lands was applied for Choudhury Keshab Chandra Mohapatra, Malati Bewa, Raghunath Mohapatra. Subsequently, Malati Bewa, Raghunath waived their interest in favour of Kesab Mohapatra. Naib Tahasildar reports that Keshab Mohapatra is in possession of the land. Notice inviting public objection will duly served. No objection petition is received. The lands are ordered to be settled in name Choudhury Keshab Chandra Mohapatra as follows: "Mouza - Pandara, Khata 167, A-14-88, Mouza-Gadakana, Khata 918, A - 18-64 Khata 918/2, A 21.00 The prevailing rate of rent of the lands reported by the concerned N. Tahasildar in the vicinity of so classification is Rs. 175 NP per acre for khata no. 918 and 918/2, Rs. 1.56 N. P. per acre for Khata No. 167. I accept this to be fair and equitable rent and the lands be assessed accordingly. Realize rent from date of vesting per acre rent roll accordingly. Inform the N.T. after appeal period is over. 175 NP per acre for khata no. 918 and 918/2, Rs. 1.56 N. P. per acre for Khata No. 167. I accept this to be fair and equitable rent and the lands be assessed accordingly. Realize rent from date of vesting per acre rent roll accordingly. Inform the N.T. after appeal period is over. Sd/- illegible Collector, u/s. 6 & 7 of the O.E.A. Act." Thus the land was settled with the predecessors-in-interest of the petitioners. Accordingly, the ROR was issued in their favour under Annexure-3 to the writ application. Thereafter, the settlement operation was commenced in the year 1972-73 in the disputed mouza. The petitioners stated that as Chudhury Keshab Chandra Mohapatra could not take appropriate steps, the land was recorded in favour of the Government of Orissa in its G.A. Department. Subsequently, during the hal settlement, after coming to know about such wrong recording of land measuring Ac. 2.215 decimals out of Ac. 18.64 decimals in Sabik Khata No. 918, Plot No. 1726 corresponding to hal Plot No. 7590 under hal Khata No. 3449 in the name of the G.A. Department, the petitioners filed an application before the settlement authorities to record their names. Such application was rejected. An appeal was preferred, being. Appeal Case No. 546 of 2004 before the opposite party No.3 - Settlement Officer, Cuttack - Puri Major Settlement, Jobra-Cuttack. The appellate authority rejected the appeal. The petitioners have stated that an enquiry was conducted as per the direction, where a report was submitted that the petitioners are in possession of the suit land since the year 1953. But the said report was not accepted by the appellate authority with an observation that the order passed in OEA Case is a pre-sabik document. Challenging the said order of rejection of the appeal, the petitioners preferred W.P.(C) No.10909 of 2008 before this Court. This Court disposed of the writ application on 01.12.2008 directing the petitioners to file revision before the appropriate forum. Pursuant to the order passed by this Court, the petitioners filed a revision case under Section 32 of the Act before the Commissioner, Land Records and Settlement, which was registered as OSS Case N. 1216 of 2009. This Court disposed of the writ application on 01.12.2008 directing the petitioners to file revision before the appropriate forum. Pursuant to the order passed by this Court, the petitioners filed a revision case under Section 32 of the Act before the Commissioner, Land Records and Settlement, which was registered as OSS Case N. 1216 of 2009. Subsequently, the opposite party No.2-Member, Board of Revenue was delegated with the power to function as the Commissioner and the revision case was adjudicated by him, in which the impunged order has been passed, by which the Member, Board of Revenue rejected the revision case. Being aggrieved, the petitioners have preferred the present writ application. 4. A counter affidavit has been filed by the opposite party No. 1-State, wherein, it has been admitted that the petitioners are the successors of ex-intermediary of late Choudhury Keshab Chandra Mohapatra. The khas possession of the ex-intermediary over the disputed property has been denied. The order passed on the application under Sections 6 and 7 of the O.E.A. Act is contended to be non est in the eye of law. It is also stated that the said order is liable to be set aside. The revisional authority has come to a conclusion that the petitioners are not entitled to any relief on the basis of an illegal settlement made by the Tahasildar, Bhubaneswar in O.E.A. Case No. 13/1961-62. 5. If appears that the O.E.A. Collector, who is a statutory authority under the O.E.A. Act passed the order in the year 1962 after due enquiry directing settlement of the case land in favour of late Choudhury Keshab Chandra Mohapatra. The said order was never challenged by anybody, and has attained finality. 6. 5. If appears that the O.E.A. Collector, who is a statutory authority under the O.E.A. Act passed the order in the year 1962 after due enquiry directing settlement of the case land in favour of late Choudhury Keshab Chandra Mohapatra. The said order was never challenged by anybody, and has attained finality. 6. Learned counsel for the petitioners relied upon the decision in the case of Narayan Chandra Pradhan and others v. The Tahasildar, Bhubaneswar and another, 2013 (II) OLR 490 and submitted that answering a similar question, this Court in the aforesaid case, while rejecting the contention of the State that the order passed in the O.E.A. Act case is a fraudulent order, came to the conclusion that the Tahasildar, Bhubaneswar committed an illegality in rejecting the petitioners' case therein for mutation and allowed the writ petition quashing the order of the Tahasildar and remitting the matter back to him to reconsider and pass orders afresh on the petitioners' claim of mutation of the case land in the light of the observations made in the said judgment within a stipulated period. 7. Law by now is well settled that if an authority has jurisdiction to deal with the matter of settling the land, the question whether the order passed to settle the land was in order has no relation with jurisdiction of the authority and if the order passed by such an authority is improper or illegal, the same cannot be treated as void and it remains enforceable until it is set at naught in an appropriate proceeding by the appropriate authority. (See Trilochan Singh and another v. Commissioner of Land Records and Settlement, Orissa and others, 79 (1995) CLT 507). In the case of Chunti Patra and others v. State of Orissa and others, 81 (1996) CLT 292, 1995 (I) OLR 537 this Court has held that the order passed under the O.E.A. Act if was alleged to be wrong, it could have been challenged before a proper forum in an appropriate proceeding, but as the said order was not challenged, it remained enforceable and binding and could not be overlooked or ignored by the authority under the Orissa Survey and Settlement Act. In the case of Prafulla Chandra Muduli and others v. State of Orissa and others, 2005 (Supp.) OLR 950, it was laid down that invoking provisions of the Orissa Survey and Settlement Act, a Settlement Officer cannot sit in appeal and nullify an order passed by the O.E.A. Collector and, that too, more than two decades after the order passed by the O.E.A. Collector, which might be right or wrong. In the event, a wrong order was passed, the Statute provides the procedure to rectify the same. The observations made by the Settlement Officer that the O.E.A. Collector lacked jurisdiction was misconceived. In paragraph-8 of the judgment, it was held as follows: "Law is well settled, that an order passed under a statute which provides a remedy, the said remedy can only be invoked for modifying, rectifying or challenging the order by any person aggrieved. An order passed under one statute by a superior authority can under no stretch of imagination be varied or held to be without jurisdiction by an authority exercising power under another independent statute. Thus, the Settlement Officer lacked initial authority and jurisdiction to examine the propriety or otherwise of the order passed by the OEA Collector two decades after. The Settlement Officer lost sight of the cardinal principle that, orders passed by the said authority can neither create nor extinguish a title. At the other hand, the authorities under the OEA Act are empowered to settle lands in consonance with Sections 6, 7 and 8 of the said Act, thereby creating right, title and interest in respect of the lands settled." 8. It is to be further observed that if an order is voidable one, the same is required to be set aside by the competent Court. The Supreme Court in the case of Inderjit Singh Grewal v. State of Punjab and another, 2011 (2) OJR 747 (SC), 2011 (II) OLR (SC) 875 in reference to the above principle of law held that such principle is an insurance against an anarchic possibility of a 'subordinate Court ignoring and flouting the order of a superior Court by opining the same to be void. The ratio laid down by the Hon'ble Supreme Court can be made applicable to the facts of the present case to the effect that the order passed by the statutory authority under the O.E.A. Act cannot be ignored as without jurisdiction, by an authority under the O.S.S. Act. 9. In view of the above position of law and facts of the present case, this Court is of the considered view that the settlement authority in not correcting the Record of Rights in the name of the petitioners committed an illegality and the appellate authority in Appeal Case No. 546 of 2004 as well as the revisional authority in O.S.S. No. 1216 of 2009 also erred in law in confirming the order of the settlement authority. 10. In the result, therefore, the said orders passed by the Assistant Settlement Officer, the appellate authority and the revisional authority under Annexures-6, 5 and 1 respectively stand quashed. The settlement authority is directed to record the disputed property, which was recorded in the name of late Choudhury Keshab Chandra Mohapatra in O.E.A. Case No. 13/1961-62, in the name of the petitioners in the Record of Rights to be published during the hal settlement, if not already published. However, if the R.O.R has already been finally published, the same shall be corrected to the above effect by recording the names of the petitioners in the said R.O.R as occupancy tenants. 11. The writ petition is accordingly allowed. There shall be no order, as to costs. Petition allowed.