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2014 DIGILAW 70 (ORI)

Parbati Mohapatra v. State of Orissa

2014-01-29

C.R.DASH, M.M.DAS

body2014
JUDGMENT M. M. DAS, J. – In both these writ petitions, the petitioners have assailed the order dated 25.4.2008 passed by the learned Member, Board of Revenue, Orissa, Cuttack in O.E.A.R.C. No.6 of 2003. 2. Facts reveal that the land in revenue district Bhadrak, mouza Kuansh, appertaining to Sabik Plot No. 1531 corresponding to Hal Plot No. 1885 and 1885/2172 constituting a total area of Ac. 0.55 decimals originally stood recorded in the name of Ex-intermediary, Susilabala Dasi. The aforesaid land was vested with the State under the O.E.A.Act on 7.9.1953. Consequent upon vesting of the estate, the ex-intermediary filed an application for settlement and fixation of fair and equitable ground rent of the aforesaid land under Sections 6 and 7 of the O.E.A.Act. The said application was registered as Rent Fixation Case No. 33/56-57. In the said proceeding, one Radhashyam Boiti and Ratnakar Jena raised their claim of tenancy in respect of Ac. 0.05 1/2 decimals of land. By order dated 30.11.1959, the O.E.A. Collector directed fixation of rent for an area of Ac. 0.44 1/2 decimals of land in favour of the ex-intermediary, settling the balance Ac. 0.05 1/2 decimals of land in the names of the said Radhashyam Boity and Ratnakar Jena. The said order was passed basing on the enquiry report submitted by the Amin which has been annexed to the writ petition as Annexure-2. From the above report, it also revealed that plot No. 1531 under Khata No. 74 measuring an area of A. 0.50 decimals of sabik settlement was recorded as "Ghara and Bari". Against the aforesaid order, the ex-intermediary preferred O.E.A. Appeal No. 266/59-60 challenging the settlement of A. 0.05 1/2 decimals of land out of the above plot in the names of Radhashyam Boity and Ratnakar Jena. Though the said appeal was allowed by the Addl. District Magistrate, Balasore on 16.2.1962, it appears from the appellate Court order that the appellate Court set aside the order of O.E.A. Collector and remitted the matter back to the O.E.A.Collector for fresh adjudication. The O.E.A. Collector by his order dated 25.2.1972 after remand, categorically found that only Ac. 0.44 1/2 decimals of land in Plot No. 1531 under Khata No.74 is in possession of the ex-intermediary and directed settlement of the said land in her favour observing that Ac. 0.05 1/2 decimals of land out of Ac. The O.E.A. Collector by his order dated 25.2.1972 after remand, categorically found that only Ac. 0.44 1/2 decimals of land in Plot No. 1531 under Khata No.74 is in possession of the ex-intermediary and directed settlement of the said land in her favour observing that Ac. 0.05 1/2 decimals of land out of Ac. 0.50 decimals has already been taken over possession by the Government as per the order dated 30.4.1965. Consequent upon fixation of fair and equitable rent, Sri Radhakanta Bose, grandson of the ex-intermediary sold the sad property in favour of the petitioners. In W.P.(C) No. 7678 of 2008, the petitioners claim that after purchase, the Hal R.O.R. has been published in 1988 in the name of the petitioners wherein the land has been recorded as "Gharabari". The petitioners claim to be in possession over the said property. It also appears that a civil suit was filed by the petitioner against some outsider where the Collector was a party, who has filed a written statement in the said suit, inter alia, stating that M.S. Plot No. 1885 has been recorded in the name of the present petitioners and there exists residential house of the plaintiffs-petitioners over the said plot. The final R.O.R. published in 1988 has not been challenged by anybody. The petitioners have also raised the question that the revision under Section 38-B of the O.E.A.Act initiated after 31 years from the date of fixation of rent by settling the land in the name of ex-intermediary, is hopelessly barred by time. 3. Learned counsel for the State argued that in view of the provisions of Section 6 of the O.E.A.Act not only "Kutchery Ghar" but also the land appurtenant thereto could not have been settled in favour of the ex-intermediary and has been held in the case of Kumar Simal Sinha (deceased) and after him, his legal representatives and others v. State of Orissa and others, AIR 1962 SC 1912 , the legislature placed a property as 'homestead' in two categories, namely, (1) a dwelling house used by the intermediary for his own purposes and (2) any building comprised in such estate and primarily used as office or Kutchery for the administration of the estate. In respect of the first category, the Act provides in Section 6 that portion of the homestead shall be deemed to be settled by the State with the intermediary, who will continue to hold it as a tenant under the State Government, subject to payment of fair and equitable ground-rent, except where under the existing law no rent is payable in respect of homestead lands. With regard to second category in the definition of the homestead, which has not been permitted to the outgoing intermediary has reference to "any building comprised in such estate used as office or Kutchery". He, therefore, submits that since the administrative office or Kutchery Ghar comes within the definition of the homestead, it must include all appertaining lands to such building. In relation to the contention of the petitioner that the revision initiated after 31 years from the date of fixation of rent by the O.E.A.Collector by settling the land in the names of the intermediary is hopelessly barred by time, learned counsel for the State relying upon various decisions more specifically the decision of the Hon'ble Supreme Court in the, case of State of Orissa and others v. Brundaban Sharma and another, 1995 Supp. (3) SCC 249, submitted that the Hon'ble Supreme Court in the said case answering the question whether lapse of time is an excuse to refrain from exercising the revisional power, held that there is no reason or excuse to refrain from exercising such power under Section 38-B of the Act. 4. Mr. Rath, learned counsel for the petitioners, on the contrary, relying upon several decisions of this Court as well as the Hon'ble Supreme Court including the decision in the case of Brundaban Sharma (supra) submitted that the Courts have settled the law that revisional power under Section 38-B of the act has to be exercised in a reasonable manner which inheres the concept of its exercise within a reasonable time. Absence of the period of limitation for exercising such revisional power clearly indicates that such power should be exercised with caution or circumspection to effectuate the purpose of the Act or to prevent miscarriage of justice or violation of the provisions of the Act or misuse or abuse of the power by the lower authority or fraud or suppression. Absence of the period of limitation for exercising such revisional power clearly indicates that such power should be exercised with caution or circumspection to effectuate the purpose of the Act or to prevent miscarriage of justice or violation of the provisions of the Act or misuse or abuse of the power by the lower authority or fraud or suppression. Law has also been well settled that length of time for exercising such jurisdiction depends on the factual scenario in a given case. Referring to the aforesaid judgment of the Hon'ble Supreme Court in the case of Brundaban Sharma (supra), it would be seen that the Hon'ble Supreme Court in the facts of the said case was dealing with the right of opposite party therein based on a patta granted to him by one Gokulananda purported to be in the year, 1944, which was on a white plain paper without any approval by any competent authority. The Supreme Court referring to the provisions of Section 137 of the Central Provinces Land Revenue Act, 1981 and the rules framed thereunder, finding that under Clause-3 thereof Lambodar alone was entitled to dispose of the waste lands and not the cultivable lands etc., which would be under his management subject to the provisions thereunder and further finding that the revenue records disclose that the grantee of the patta had no title to grant patta and it being only on a white paper, the Tahasildar was not right in recognizing the respondent as tenant under Section 5 (1) read with Section 8(1) of the O.E.A.Act, came to the conclusion that the settlement by the Tahasildar is clearly without jurisdiction and held that lapse of time cannot be an excuse to refrain from exercising the revisional power to unravel fraud and to set it right. Under the circumstance of that case, the Hon'ble Supreme Court held that a delay of 27 days in initiating the revision under Section 38-B of the Act cannot be faulted with. However, the Hon'ble Supreme Court referring to its various earlier judgments as well as the judgments of this Court categorically, held that there cannot be a straight jacket formula to find out whether a revision under Section 38-B of the Act has been initiated beyond a reasonable period. 5. However, the Hon'ble Supreme Court referring to its various earlier judgments as well as the judgments of this Court categorically, held that there cannot be a straight jacket formula to find out whether a revision under Section 38-B of the Act has been initiated beyond a reasonable period. 5. In the case of Nityananda Satpathy and others v. Member, Board of Revenue, Orissa, Cuttack and others, 1996 (II) OLR 262, a Division Bench of this Court considering the same question referring to various judgments of the Hon'ble Supreme Court as well as the Full Bench decision of this Court in the case of Laxminarayan Sahoo v. State of Orissa, 1991 (I) OLR 82, laid down that revisional power under Section 38-B of the Act has to be exercised in a reasonable manner which necessarily stipulated that it should be exercised within a reasonable time and what is reasonable time would differ from the facts of each case. In the said case, the delay in initiating the revision was held to be unreasonable and the revisional order was set aside. 6. In view of the position of law as discussed above, two questions are to be answered in the present case being (1) whether the revision in which the impugned order was passed was initiated beyond a reasonable period in the facts of the case? (2) whether 'Kutchery Ghar' which is to vest with the Government and is situated over A. 0.05 1/2 decimals of land already recorded in the name of the Government should include the entire plot recorded as "Gharabari" out of which Ac. 0.44 1/2 decimals of land has been settled with the vendor of the petitioner? While answering the above questions, it would be appropriate to take into consideration the fact that the authorities of the State were very much aware with regard to settlement of the land over M.S. Plot No. 1885, as the Collector in the civil suit filed by the petitioners against some outsiders, has admitted that the aforesaid plot has been recorded in the name of the present petitioners and there are residential houses of the petitioners over the said plot. Further, the question of fraud does not rise in the instant case and there is no material to show that the State was not aware of such settlement of the aforesaid plot in the name of the petitioners in the settlement operation. Further, the question of fraud does not rise in the instant case and there is no material to show that the State was not aware of such settlement of the aforesaid plot in the name of the petitioners in the settlement operation. The revisional authority has also assigned no reason for its conclusion that the settlement of Ac. 0.44 1/2 decimals of land along with building by the O.E.A.Collector, in his order dated 25.5.1972 was not in accordance with the provisions of Section 6 of the O.E.A.Act. Though the revisional authority has dealt with the question of limitation but he has not assigned any reason as to why after about 31 years of fixation of rent under Section 6 of the O.E.A.Act, in favour of the ex-intermediary, he exercised the revisional power. The definition of 'homestead' as given in Clause (1) of Section 2 of the O.E.A.Act is as follows : "'homestead' means a dwelling house used by the intermediary for the purposes of his own residence or for the purpose of letting out on rent together with any courtyard, compound, garden, orchard and outbuildings attached thereto and includes any tank, library and place of worship appertaining to such dwelling house but does not include any building comprised in such estate and used primarily as office or kutchery for the administration of the estate on and from the 1st day of January, 1946." 7. A bare reading of the above definition would go to show that the dwelling house used by the intermediary for the purpose of his own residence or for the purpose of letting out on rent, includes any courtyard, compound, garden, orchard and outbuildings attached thereto and includes any tank, library and place of worship appertaining to such dwelling house. However, though the definition includes any building used as office or kutchery for the administration of the estate but such building used as office or kutchery, under the definition of 'kutchery', does not include the courtyard, compound, garden etc. as has been included with the dwelling house of the intermediary. 8. However, though the definition includes any building used as office or kutchery for the administration of the estate but such building used as office or kutchery, under the definition of 'kutchery', does not include the courtyard, compound, garden etc. as has been included with the dwelling house of the intermediary. 8. Therefore, keeping the above position of law, in view, it is to be concluded that the revisional authority by initiating the revision case under Section 38-B of the O.E.A.Act after 31 years from the date of the order by which the land in question was settled with the ex-intermediary by fixing its ground rent under Section 6 of the O.E.A.Act, has not acted with caution or circumspection to effectuate the purpose of the Act or to prevent miscarriage of justice or violation of the provisions of the Act or misuse or abuse of the power exercised by the O.E.A. Collector-cum-Tahasildar. There is also no element of fraud involved in the facts of the present case. We have, therefore, no hesitation to hold that the revisional authority could not have initiated the revision case in which the impugned order has been passed. We are also of the view that 'Kutchery Ghar' which stood over Sabik Plot No. 1531 measuring Ac. 0.05 1/2 decimals of land does not include the entire plot and Hal Plot No. 1885 out of which Ac. 0.44 1/2 decimals of land was settled in favour of the ex-intermediary could not have been recorded in the name of the Government as the same cannot be constituted to be appertaining land of Kutchery Ghar. This is more fortified from the report of the Revenue Inspector on the basis of which the O.E.A.Collector-cum-Tahasildar settled the ground rent in respect of the said Ac. 0.44 1/2 decimals of land in favour of the ex-intermediary in OEA Rent Fixation Case No. 33/1956-57 coupled With the statement of the Collector made in the written statement filed in the suit where the petitioners are plaintiffs, inter alia, stating that the suit property measuring Ac. 0.44 1/2 decimals of land constitutes the residential house of the petitioners. 9. In the result, the impugned order dated 25.4.2008 under Annexure-1 along with the entire proceeding in O.E.A. Revision Case No.6 of 2003 are hereby quashed. 10. This writ petition is accordingly allowed, but in the circumstances, there shall be no order as to cost. 0.44 1/2 decimals of land constitutes the residential house of the petitioners. 9. In the result, the impugned order dated 25.4.2008 under Annexure-1 along with the entire proceeding in O.E.A. Revision Case No.6 of 2003 are hereby quashed. 10. This writ petition is accordingly allowed, but in the circumstances, there shall be no order as to cost. C. R. DASH, J. I agree. Petition allowed.