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2015 DIGILAW 4 (ORI)

Debesh Das v. State of Orissa

2015-01-06

B.N.MAHAPATRA, INDRAJIT MAHANTY

body2015
Judgment : I. Mahanty, J. In the above three writ applications since a common issue of law and fact has been raised, the same are taken up together on the consent of the learned counsel for the respective parties. 2. In this batch of writ applications, the petitioners have sought to challenge the orders in Annexures-1, 2 and 3 passed under the Orissa Government Land Settlement Act, 1962 rejecting their applications filed for settlement of the land in their favour. 3. Shorn of unnecessary details, suffice it is to note herein that each of the petitioners filed OGLS cases before the Tahasildar (Sadar), Sambalpur-Opposite Party No.4 seeking settlement of land in their names on which, they claim to be in occupation/possession as sub-lessees under the private opposite parties 5 and 6. The said OGLS applications were rejected on 31.07.2002 under Annexure-1 and the appeals preferred by the petitioners before the Sub-Collector, Sambalpur were also dismissed vide order dated 21.04.2003 under Annexure-2. Thereafter the petitioners preferred revision before the Collector, Sambalpur and the said revisions were also dismissed on 26.02.2004 under Annexure-3. Challenging the concurring orders passed by the Tahasildar (sadar), Sambalpur; Sub-Collector, Sambalpur (appellate authority) and Collector, Sambalpur (Revisional authority), the present applications came to be filed. 4. The brief case of the petitioners is that the petitioners were sub-lessees under the predecessors of Opposite Parties 5 and 6 prior to the cut-off date i.e. 09.01.1991 and raised a claim on the basis of Section 3(4) of the Orissa Government Land Settlement (Amendment) Act, 1990 which is quoted as hereunder: “3. 4. The brief case of the petitioners is that the petitioners were sub-lessees under the predecessors of Opposite Parties 5 and 6 prior to the cut-off date i.e. 09.01.1991 and raised a claim on the basis of Section 3(4) of the Orissa Government Land Settlement (Amendment) Act, 1990 which is quoted as hereunder: “3. Reservation and settlement of Government land (4) Notwithstanding anything to the contrary contained in the preceding sub-sections or in any law or any custom, practice or usage having the force of law – (a) any Khasmahal land or Nazul land, except where such land is used as homestead in any urban area, which has been leased out prior to the appointed date, shall whether the lease, where it had already expired, has been renewed or not prior to such date, be deemed to have been leased out under this Act to the person holding such land whether as a leasee, or as a sub-lessee either under the lessee or under a sub lessee: Provided that – (a) (i) any such lessee who is entitled to receive any rent from sub-lessee under him, or (ii) any such sub-lessee who is entitled to receive any rent from a subsequent sub-lessee under him, Under any instrument executed for such lease or sublease, as the case may be, shall be paid a compensation by the sub-lessee or subsequent sub-lessee, as the case may be, equivalent to ten times the said rent in the manner as may be prescribed. (b) The compensation so payable shall, if not paid by the concerned sub-lessee or subsequent sub-lessee, as the case may be within the prescribed period, be recoverable from him by the Tahasildar having jurisdiction over the area as arrears of land revenue and be paid to the concerned lessee or sub-lessee, as the case may be, in the manner as may be prescribed; (b) any Gramakantha Parambok land or Abadi land, except where such land is used as homestead in any urban area, which is in occupation by any person for not less than five years as on the appointed date, shall be settled with the said person in such manner, by such officer and subject to such terms and conditions as may be prescribed: Provided that any such land which is situated in an urban area shall be settled on lease-hold basis and in case of other lands settlement shall be on raiyati basis; (c) any Khasmahal land, Nazul land, Gramakantha Parambok land or Abadi land, which is used and in occupation by any person as homestead in ay urban area for not less than five years as on the appointed date, shall, subject to the payment of compensation in the case of Khasmahal and Nazul land as mentioned in the proviso to Clause (a), be settled – (i) in the case of Khasmahal or Nazul land, with the person lawfully holding such land on and from the date the compensation is paid; and (ii) in the case of Gramakantha Parambok and Abadi land, with the person in occupation of such land on and from the appointed date, on permanent basis with heritable and transferable rights. Explanation – For the purposes of this sub-section, the expression ‘appointed date’ shall mean the date of publication of the Orissa Government Land Settlement (Amendment) Act, 1990 in the Official Gazette.” Both the parties accept that the cut-off date in terms of the said (Amendment) Act, 1990 was 9.1.1991. 5. Learned counsel for the petitioners asserts that on their applications being filed, the Tahasildar conducted a spot enquiry on 30.01.2002 as per direction of the Collector and recorded a finding that the petitioners were found to be in occupation of a portion of the leasehold land on “monthly rental basis”. 6. 5. Learned counsel for the petitioners asserts that on their applications being filed, the Tahasildar conducted a spot enquiry on 30.01.2002 as per direction of the Collector and recorded a finding that the petitioners were found to be in occupation of a portion of the leasehold land on “monthly rental basis”. 6. It appears that certain rent receipts were also produced by the petitioners in the OGLS case which indicate that the petitioners claiming settlement were occupying their land on “monthly rental basis”. The Tahasildar reached a finding of fact that “the petitioners have also not produced any substantive documents/evidences to prove that they are occupying a portion of the leasehold land as “sub-lessee” or “subsequent sub-lessee” and consequently, rejected the application on a finding that, the petitioners are occupying the land on monthly rental basis under the predecessors of Opposite Parties 5 and 6. 7. Mr. Mohanty, learned Senior Advocate appearing for Opposite Parties 5 and 6 submits that the land in question had been leased out by a registered lease-deed No.103/1948 in favour of Yubarani Saheba Smt. Sade Rajya Laxmi by the Government for the purpose of constructing a Cinema Hall on 26.04.1948 and prior to the terms of lease expired on 31.3.1960, applications had been filed by Yubarani Saheba seeking renewal of the lease for the period of 90 years and sanction order thereon was passed by the competent authority on 1.4.1960. Basing upon the said sanction order, Nazul Renewal Case No.453 of 1969 was filed whereafter, the Collector, Sambalpur communicated the sanction of renewal to the Tahasildar by order dated 10.5.1979. The Tahasildar, Sambalpur in compliance of the directions of the Collector, called upon Yubarani Saheba to deposit rent and solatium by direction dated 27.8.1979. Before the actual renewal lease-deed executed, Yubarani Saheba passed away in the year, 1984 and opposite parties 5 and 6 who are the successors of the original lessee applied for substitution and modification of the renewal sanction order in their favour. The Tahasildar, Sambalpur submitted the case record before the Collector on 19.06.1986 seeking his approval of the revision of the earlier order dated 10.05.1979 and to direct settlement in favour of the substituted legal heirs (Opposite Parties 5 and 6). While the matter was pending, OGLS (amendment) Act, 1990 came into force on 9.1.1991 whereafter, Nazul Misc. The Tahasildar, Sambalpur submitted the case record before the Collector on 19.06.1986 seeking his approval of the revision of the earlier order dated 10.05.1979 and to direct settlement in favour of the substituted legal heirs (Opposite Parties 5 and 6). While the matter was pending, OGLS (amendment) Act, 1990 came into force on 9.1.1991 whereafter, Nazul Misc. Case No.19/1992 was initiated for the purpose of grant of sanction of lease in favour of Opposite Parties 5 and 6. While the said Nazul Misc. Case was pending, directions were issued for deposit of premium in favour of opposite parties 5 and 6. Necessary premium was deposited and directions were also issued for correction of ROR in favour of Opposite Parties 5 and 6. Although the entire procedure for renewal of Nazul case in favour of Opposite Parties 5 and 6 were completed, the present petitioners filed OGLS cases before the Tahasildar claiming settlement of the land in their possession on the basis of Section 3(4) of the OGLS Act, as amended in the year 1990. 8. As discussed hereinabove, the Tahasildar rejected the prayer of the petitioners, inter alia, on the finding that the petitioners could not produce any substantive documents/evidence to prove that they are occupying the portion of the leasehold area as “sub-lessee” or “subsequent sub-lessee”. The said finding has been confirmed by both the appellate authority as well as the revisional authority. 9. Sri Mohanty, learned Sr. Advocate for opposite parties 5 and 6 placed reliance on the judgment of this Court in the case of Satyapriya Mohapatra v. Ashok Pandit and others, 59 (1985) C.L.T. 407 and in particular, the observation of the Hon’ble Court in Para-10 and 11 thereof which is quoted hereinbelow: “10. Concurrent findings of facts of competent authorities giving cogent reasons therefore are not open to challenge unless such findings are perverse and based on no evidence. See AIR 1983 SC 535 Mrs. Labhkumar Bhagwani Shah v. Janardhan Mahadeo Kalan. In certiorari proceedings, the High Court does not sit as an appellate authority and it is not to review the evidence and arrive at an independent finding, as observed by the Supreme Court in 1983 UJ (SC) 297 : "( AIR 1983 SC 454 ), Bhagat Ram v. State of Himachal Pradesh. Labhkumar Bhagwani Shah v. Janardhan Mahadeo Kalan. In certiorari proceedings, the High Court does not sit as an appellate authority and it is not to review the evidence and arrive at an independent finding, as observed by the Supreme Court in 1983 UJ (SC) 297 : "( AIR 1983 SC 454 ), Bhagat Ram v. State of Himachal Pradesh. As has been held by the Supreme Court in AIR 1975 SC 1297 Babhutmal Raichand Oswal v. Laxmibai R. Tarte, the power of superintendence of the High Court is limited to see that the subordinate Courts or Tribunals function within the limits of their authorities. It cannot correct some errors of fact by examining the evidence and reappreciating it. In AIR 1984 SC 38 Mohd. Yunus v. Mohd. Mustaqim, it has been held: "A mere wrong decision without anything more is not enough to attract the jurisdiction of the High Court under Article 227. The supervisory jurisdiction conferred on the High court under Article 227 of the Constitution is limited to seeing that an inferior Court or Tribunal functions within the limits of its authority and not to correct an error apparent on the face of the record, much less an error of law. In this case there was, in our opinion, no error of law much less an error apparent on the face of the record, there was no failure on the part of the learned Subordinate Judge to exercise jurisdiction nor did he act in disregard of principle of natural justice. Nor was the procedure adopted by him not in consonance with the procedure established by law. In exercising the supervisory power under Article 227, the High Court does not act as an Appellate Court or Tribunal. It will not review or re-weigh the evidence upon which the determination of the inferior court or tribunal purports to be based or to correct errors of law in the decisions." These principles of law have been referred to and followed by this Court in (1984) 57 Cut LT 368 : (1984 Cri LJ 1389) Bharat Sasmal v. Addl. Sessions Judge, Puri and others. 11. There has been no jurisdictional error in the instant case nor has there been violation of the principles of natural justice. No error of law has been committed. No finding has been passed apparently on the basis of an error of the record. Sessions Judge, Puri and others. 11. There has been no jurisdictional error in the instant case nor has there been violation of the principles of natural justice. No error of law has been committed. No finding has been passed apparently on the basis of an error of the record. We find that none of the contentions raised on behalf of the petitioner can prevail. The decisions taken by the House Rent Controller and the appellate authority are not to be interfered with by this Court in its writ jurisdiction.” 10. In the aforesaid judgment, the Hon’ble High Court came to hold that the power of superintendence of High Court is limited to see that the subordinate courts or tribunals function within the limits of their authorities but it cannot correct some errors of fact by examining the evidence and re-appreciating it. 11. Learned Senior Counsel for the private opposite parties 5 and 6 essentially submits that the present case, in essence, seeks the interference of this Court in the writ jurisdiction by re-appreciating the facts of the case. 12. After having heard the learned counsel for the respective parties and on perusing the impugned orders as well as the citation referred hereinabove, we queried the learned counsel for the petitioners as to whether any evidence is on record to substantiate the fact that the petitioners were sub-lessees. Learned counsel for the petitioners fairly admits that no documentary evidence in support of the claim of the petitioners as ‘sub-lessee’ is available. Apart from the same, admittedly, no oral evidence has also been led to substantiate their case of being sub-lessees. 13. Considering the submissions made, we are of the considered view that this Court has to limit its exercise of authority within the limits of its jurisdiction that is “power of superintendence” and three forums below, i.e. the Tahasildar, Sub-Collector as well as the Collector having exercise the jurisdiction over the matter, we find no error of law to permit any interference with the same. Accordingly, we find no merit in this batch of writ applications and the same stands dismissed. Interim orders dated 7.3.2006 passed in all the writ applications stand vacated.