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2014 DIGILAW 486 (ORI)

State v. Pravabati Das

2014-08-13

AMITAVA ROY, B.R.SARANGI

body2014
JUDGMENT B.R. Sarangi, J. 1. By way of the present appeal, the appellants-writ petitioners have called in question the legality, propriety and correctness of the order dated 21.06.2013 passed by the learned Single Judge in W.P. (C) No. 14474 of 2012 whereby direction has been given for correction of the R.O.R. in accordance with the order passed by the competent authority under the Orissa Estates Abolition Act, 1951 (hereinafter referred to as the O.E.A. Act) as per the provisions of Section 15(b) of the Orissa Survey & Settlement Act, 1958 (hereinafter referred to as the O.S.S. Act). 2. The fact as it appears from the record, is that respondent no.1 is the wife and respondent no. 2 and 3 are the sons of late Satyabadi Das. The dispute relates to Sabik Khata No.1 under Sabik Plot No.9 comprising of an area Ac.20.00 dec. which corresponds to Hal Khata No. 330 under Hal Plot No. 11, area Ac.2.72 dec. and Hal Plot No.12, area 17.55 dec. under Mouza-Bidyadharpur in the district of Cuttack. The land has been vested with the Government free from all encumbrances under sub-Section(1) of Section 3 of the O.E.A. Act vide Notification No. 22613-EA dated 21.05.1960 of the Revenue Department, State of Orissa. After eight years of vesting of the estate, Satyabadi Das, husband of respondent no.1 filed an application before Tahasildar, Cuttack to declare him as a tenant in respect of the disputed land on the ground that he has got the land on the basis of an unregistered Hat Patta issued by the ex-intermediary. Bhagaban Das, ex-intermediary granted lease of the case land in favour of late Satyabadi Das by executing lease deed dated 21.03.1944 upon payment of Salami and rent. Thereafter, late Satyabadi Das used to pay rent to the ex-intermediary, which has been admitted by way of an affidavit sworn by him on 24.10.1968. By virtue of vesting of estate of the intermediary with the State, Ac.20.00 dec. of land under Sabik Plot No.9 was settled with late Satyabadi Das under the provision of O.E.A. Act by order dated 10.10.1982 passed in Misc. Case No. 53 of 1968-69 by O.E.A. Collector-cum-Tahasildar, Sadar Cuttack. During the settlement operation, the case land under Hal Plot Nos. 11 and 12 has been wrongly recorded as Abada Jogya Anabadi in the name of the State Government under Hal Settlement Khata No. 330. Case No. 53 of 1968-69 by O.E.A. Collector-cum-Tahasildar, Sadar Cuttack. During the settlement operation, the case land under Hal Plot Nos. 11 and 12 has been wrongly recorded as Abada Jogya Anabadi in the name of the State Government under Hal Settlement Khata No. 330. Respondent no.1 filed an application under Section 15(b) of the O.S.S. Act by way of a revision for correction of the R.O.R. 3. Learned Additional Commissioner, Settlement and Consolidation, Odisha, Cuttack by order dated 15.02.2011 passed in R.P. No 717 of 2010 filed Under Section 15(b) of the O.S.S. Act, remitted the matter back to the Tahasildar, Cuttack Sadar to verify the relevant documents and record the suit Hal Plot No. 11 area Ac.2.72 dec. and plot No. 12 area Ac.14.05 dec. in the names of respondents under a separate Khata after carving out from the impugned R.O.R. No. 330 as per law. The aforesaid order was challenged in W.P. (C) No. 14476 of 2012 by the State alleging that the said order has been passed without appreciating the materials on record, without verifying the records and without looking at the matter of settlement of land under O.E.A. Act and that the said settlement is without jurisdiction and the entire matter of settlement under O.E.A. Act is nothing but fraud on Court and the order of settlement in favour of the predecessor of the respondents by the Tahasildar, is without jurisdiction inasmuch as the Tahasildar has no jurisdiction to settle such a huge patch of land. On the aforesaid ground the State prayed for setting aside the revisional order. 4. It is admitted fact that the State-appellant had not disputed the order dated 10.10.1082 passed in Misc. Case No. 53 of 1968-69 by the O.E.A. Collector-cum-Tahasildar, Sadar Cuttack declaring and recognizing the tenancy right of the predecessor of the respondents over the case land under Section 8(1) of the O.E.A. Act, who immediately before the date of vesting of the estate was in possession as a tenant under an intermediary and continued as such under the State Government from the date of vesting. The said order has not been challenged in higher forum, which has reached its finality. The said order has not been challenged in higher forum, which has reached its finality. Consequently, the application filed by the respondents in R.P. Case No. 717 of 2010 under Section 15(b) of the O.S.S. Act for correction of the R.O.R. in accordance with the order passed by the O.E.A. Authority has been considered by the learned Addl. Commissioner, Settlement and Consolidation, Odisha, Cuttack, who passed order remitting the matter back to the Tahaildar, Sadar Cuttack to verify the relevant documents and to record the suit Hal Plot No. 11 area Ac.2.72 dec. and Plot No. 12 area Ac.14.55 dec. in the names of respondents under a separate Khata after carving out from the impugned R.O.R. No. 330 as per law. It is not in dispute that the order passed in Misc. Case No. 53 of 1968-69 declaring the tenancy right of the predecessor of the respondents over the case land is still in force. 5. Mr. Sidhartha Mishra, learned Additional Government Advocate for the State-appellants submits that the appellants have already preferred revision under Section 38 of O.E.A. Act challenging the order dated 10.10.1982 passed by the O.E.A. Collector-cum-Tahasildar, Sadar Cuttack in Misc. Case No. 53 of 1968-69 under Section 8(1) of the O.E.A. Act, which is pending before the competent authority. Therefore, another order passed by the settlement authority under Section 15(1) of the O.E.A. Act cannot and should not have been given effect to when the matter is subjudice before the appropriate forum. 6. Mr. Shyamananda Mohapatra, learned Senior counsel appearing for the respondents strenuously urged that mere preferring a revision under Section 38 of the O.E.A. Act challenging the order dated 10.10.1982 passed in Misc. Case No. 53 of 1968-69 under Section 8(1) of the O.E.A. Act by O.E.A. Collector-cum-Tahasildar, Sadar Cuttack cannot ipso facto take away the right of the respondents on the basis of the rights accrued by virtue of such order. The Addl. Commissioner, Settlement and Consolidation, Odisha, Cuttack in exercise of revisional power under Section 15(b) of the O.S.S. Act has only directed the Tahasildar, Sadar Cuttack to verify the relevant documents and record the suit Hal Plot No. 11 area Ac.2.72 dec. and Plot No. 12 area Ac.14.05 dec. in the names of respondents under a separate Khata after carving out the same from the impugned R.O.R. No. 330 as per law. and Plot No. 12 area Ac.14.05 dec. in the names of respondents under a separate Khata after carving out the same from the impugned R.O.R. No. 330 as per law. Accordingly, such correction of the R.O.R. does not create or extinguish title. He also further urged that in view of the catena of judgments of the apex Court that even if an order is void-ab-initio unless there is declaration to that effect obtained by the person aggrieved from the competent Court, the same shall remain valid. 7. Considering the rival contention raised by the parties and on perusing the records, it appears that the disputed land has been settled in favour of the predecessor of the respondents on consideration of the application filed under Section 8(1) of the O.E.A. Act vide order dated 10.10.1982 passed in Misc. Case No. 53 of 1968-69 by the O.E.A. Collector-cum-Tahasildar, Sadar Cuttack on the ground that the predecessor of the respondents is in possession of the property by virtue of lease deed executed by the ex-intermediary on 21.3.1944 on payment of salami and rent for which he has been granted a hata pata. The ex-intermediary also admitted the lease in an affidavit sworn by him on 24.10.1968. So on the basis of such recording by invoking the revisional power under Section 15(b) of O.S.S. Act, the predecessor of the respondents prayed for settlement of the land by making correction of the R.O.R. which has been allowed by the Additional Commissioner, Settlement and Consolidation, Odisha, Cuttack. It is stated at the Bar that challenging such order of settlement passed by the O.E.A. Collector-cum-Tahasildar, Sadar Cuttack on 10.10.1982 in Misc. Case No. 53 of 1968-69, revision under Section 38 of the O.E.A. Act is pending before the competent authority and after affording due opportunity, hearing of that proceeding has already been completed and judgment is to be delivered by the Revenue Divisional Commissioner (Central Division), Odisha, Cuttack. At this stage if the correction of the R.O.R. in compliance to the order passed by the Addl. Commissioner, Settlement and Consolidation, Odisha, Cuttack is given effect to, it will cause prejudice to the appellants. Law is well settled in plethora of decisions that recording in R.O.R. neither creates any title nor extinguishes the same. If the learned Addl. At this stage if the correction of the R.O.R. in compliance to the order passed by the Addl. Commissioner, Settlement and Consolidation, Odisha, Cuttack is given effect to, it will cause prejudice to the appellants. Law is well settled in plethora of decisions that recording in R.O.R. neither creates any title nor extinguishes the same. If the learned Addl. Commissioner, Settlement and Consolidation, Odisha, Cuttack directed the Tahasildar in exercise of power conferred under Section 15(b) of the O.S.S. Act to verify the relevant documents and record the suit Hal Plot No. 11 area Ac.2.72 dec. and plot No. 12 area Ac.14.55 dec. in the name of the respondents under a separate Khata after carving out the same from the impugned R.O.R. No. 330 as per law, it will no way affect the revision preferred by the appellants under Section 38 of the O.E.A. Act. Therefore, the order passed by the learned Single Judge that the order passed under O.S.S. Act in which direction has been given for correction of the R.O.R. in accordance with the order passed by the competent authority under the O.E.A. Act, the same cannot be interfered with unless the order so passed by O.E.A. Collector-cum-Tahasildar, Sadar Cuttack in exercise of power under Section 8(1) of the O.E.A. Act is modified/clarified/set aside by the competent authority under the O.E.A. Act in exercise of the power under Section 38 of the said Act. 8. In view of such position, we are of the considered opinion, that the observation/ direction issued by the learned Single Judge cannot be interfered with until the order passed by the O.E.A. Collector-cum-Tahasildar, Sadar Cuttack under Section 8(1) of the O.E.A. Act is modified/clarified/set aside by the competent forum. It is stated that in exercise of power under Section 38 of the O.E.A. Act, the matter has already been heard by the competent O.E.A. Authority and judgment is yet to be pronounced. Therefore, any recording made by the Tahasildar, Sadar Cuttack pursuant to the order passed under Section 15(b) of the O.E.A. Act shall be subject to the outcome of order passed by the Revisional Authority under Section 38 of the O.E.A. Act and at this stage we are not inclined to interfere with the order passed by the learned Single Judge. Therefore, any recording made by the Tahasildar, Sadar Cuttack pursuant to the order passed under Section 15(b) of the O.E.A. Act shall be subject to the outcome of order passed by the Revisional Authority under Section 38 of the O.E.A. Act and at this stage we are not inclined to interfere with the order passed by the learned Single Judge. However, any recording/correction of the R.O.R. by the Tahasildar, Sadar, Cuttack in compliance to the order passed in revision under Section 15(b) of the O.E.A. Act would abide by the result of the order passed under Section 38 of the O.E.A. Act. 9. With this observation the Writ Appeal is disposed of. Order accordingly.