Research › Search › Judgment

Orissa High Court · body

2016 DIGILAW 494 (ORI)

Madan Mohan Jena v. State of Odisha

2016-07-11

K.R.MOHAPATRA, S.PANDA

body2016
ORDER : K.R. Mohapatra, J. The petitioners in this writ petition assail the initiation of the proceeding by the Member Board of Revenue, Odisha, Cuttack under Section 38-B of the Orissa Estate Abolition Act, 1951 (for short ‘ the Act’) in O.E.A. Revision Case No. 32 of 2009. 2. Brief factual matrix relevant for proper adjudication of the case is as follows: The R.O.R. dated 22.1.1930 in respect of ‘Nizdakhal’ Khata No. 127, Plot No. 478, Touzi No. 2174 to an extent of Ac. 4.07 decimals Kisam ‘Pokhari’ of mouza Dharadharpur, P.S. Jagatsinghpur in the district of Cuttack, (for short ‘the case land’) stood recorded in the names of Gopal Saran Bose, Hari Saran Bose and Mahendra Saran Bose, Nimain Saran Bose and Nistarani Devi (wife of Adeita) of village Gopalpur as Ex-intermediary in the third part Khewat No. 1. While the matter stood thus, said Gopal Saran Bose, Hari Saran Bose and Mahendra Saran Bose vide Registered Sale Deed No. 2383 dated 21.5.1937(Annexure-2) sold Ac.2.05 decimals, i.e., 50% of the area of their intermediary right over the case land to one Daitari Jena. Said Daitari Jena expired on 26.7.1937 and his only son Krushna Mohan Jena stepped into his shoes. Gopal Sharan Bose died issueless. After the death of Gopal, Mahendra Saran Bose sold an area of Ac.01.7½ Kadi (his share) to Madan Mohan Jena vide Registered Sale Deed No. 6896 dated 27.10.1953 (Annexure-3). On 16.5.1955, Krushna Mohan Jena (only son of late Daitari) inducted Kishore Mohan Jena and Nirmal Chandra Jena (his sons) as tenants issuing Chirastahi Patta vide Registered Lease Deed No.3286 dated 16.5.1955. Subsequently, Rabindra Saran Bose being the only legal heir of late Hari Saran Bose inducted Madan Mohan Jena and Nirmal Kumar Jena as tenants in respect of Ac.1.01.7.5 Kadi by executing permanent lease deed (Chirastai Patta) vide Registered Lease Deed No. 243 dated 17.1.1958. In that process, said Madan Mohan Jena, Kishore Mohan Jena, Nirmal Chandra Jena, Pradipta Kumar Jena and Pratap Kumar Jena possessed the entire case land. In the year, 1963, the intermediary estate under the third part Khewat vested to the State and accordingly, the case land vested in Government. At this juncture, Madan Mohan Jena (petitioner no. In that process, said Madan Mohan Jena, Kishore Mohan Jena, Nirmal Chandra Jena, Pradipta Kumar Jena and Pratap Kumar Jena possessed the entire case land. In the year, 1963, the intermediary estate under the third part Khewat vested to the State and accordingly, the case land vested in Government. At this juncture, Madan Mohan Jena (petitioner no. 1) for himself and on behalf of two brothers, namely, Kishore Mohan Jena and Nirmal Chandra Jena, filed an application under Section 8(1) of the O.E.A. Act, which was registered as O.E.A. Case No. 212 of 1968 on the file of Additional Tahasildar, Jagatsinghpur. The Tahasildar, Jagatsinghpur after conducting enquiry vide his order dated 11.9.1969 directed to open Zamabandi and realize rent under Section 8(1) of the Act in respect of Ac.3.4 decimals out of the case land in favour of Madan Mohan Jena, Kishore Mohan Jena and Nirmal Chandra Jena. Likewise, a petition was filed by Madan Mohan Jena for recording of the balance Ac.1.30 decimal of the case land in favour of the petitioners on lease. Accordingly, O.E.A. Case No. 2045 of 1970 was initiated. The Addl. Tahasildar-cum-OEA Collector, Jagatsinghpur vide his order dated 16.4.1973 directed settlement of the said Ac.1.30 decimals in favour of all the petitioners (Madan Mohan Jena, Kishore Mohan Jena, Nirmal Chandra Jena, Pradipta Kumar Jena and Pratap Kumar Jena) and further directed to realize Rs. 6.18 towards rent and Rs.1.55 towards cess from the date of vesting and also to pay a sum of Rs.8.54 towards salami. Accordingly, the R.O.R. in respect of the case land to an extent of Ac. 4.06 decimals was issued in favour of all the petitioners on 28.2.1983. In the year 1989, consolidation operation started in the village. The villagers filed Objection Case No. 3256/730/89 in the court of Consolidation Officer, Raghunathpur objecting recording of the case land in favour of the petitioners. The Consolidation Officer, Raghunathpur refused to entertain the objection filed by the villagers holding the objection to be not maintainable on the ground that the consolidation authorities cannot sit over the orders passed by the revenue court. Thus, the villagers approached the Collector, Jagatsinghpur assailing the correctness of the orders passed by the O.E.A. authorities. The Consolidation Officer, Raghunathpur refused to entertain the objection filed by the villagers holding the objection to be not maintainable on the ground that the consolidation authorities cannot sit over the orders passed by the revenue court. Thus, the villagers approached the Collector, Jagatsinghpur assailing the correctness of the orders passed by the O.E.A. authorities. The Collector, Jagatsinghpur, accordingly submitted a report before the Member, Board of Revenue, Odisha, Cuttack on 20.6.2009 basing upon which a proceeding under Section 38-B of the O.E.A. Act was initiated in OEA Revision Case No. 32 of 2009. Simultaneously, the villagers assailing the order of the Consolidation Officer, Raghunathpur, moved the Deputy Director of Consolidation in Consolidation Appeal No. 11 of 2013. The Deputy Director of Consolidation disposed of the appeal by his order dated 31.12.2013 refusing to entertain the appeal on the ground of pendency of the revision before the Member, Board of Revenue. However, holding that the order of the O.E.A. Collector has not reached its finality, the Deputy Director of Consolidation directed recording of the case land (tank) in the Government Khata. Assailing the said order, the petitioners preferred Revision Case No. 290 of 2014 under Section 36(1) of the Orissa Consolidation of Holdings and Prevention of Fragmentation of land Act, 1972 before the Commissioner, Consolidation, Odisha, Cuttack. The Commissioner, Consolidation while issuing notice in the matter directed the parties to maintain status quo over the suit land. The said revision is pending for disposal. 3. The factual back drop of the case is not much disputed, when Mr. Bhaktahari Mohanty, learned Senior Advocate appearing for the petitioners contended that Gopal, Hari and Mahendra had executed Registered Sale Deed No. 2383 dated 21.5.1937 alienating Ac. 2.03.5 kadi i.e. 50% share of the intermediary right in favour of Daitari, Mr. K.K Mishra, learned Addl. Government Advocate for the State submitted that Gopal, Hari and Mahendra had sold land in excess of their share as they had less than half share over the case land. One Nistarani Devi had equal share over the case land to that of Nirmal, the father of Gopal, Hari and Mahendra. Thus, Ac. 2.03.5 Kadi sold by the above named three brothers is in excess of their share. Mr. One Nistarani Devi had equal share over the case land to that of Nirmal, the father of Gopal, Hari and Mahendra. Thus, Ac. 2.03.5 Kadi sold by the above named three brothers is in excess of their share. Mr. Mohanty, learned Senior Advocate appearing for the petitioners assailed the initiation and maintainability of the proceeding under Section 38-B of the Act before the Member, Board of Revenue, Odisha, Cuttack on the ground that fixation of fair rent under Section 8(1) of the Act being an administrative order is not revisable. Further, land settled in favour of Madan Mohan Jena vide order dated 16.4.1973 by the Addl. Tahasildar, Jagatsinghpur was under lease principles. Thus, power conferred under Section 38-B of the Act cannot be invoked to assail the correctness of the settlement made vide order dated 16.4.1973. Further, the revision, if any, ought to have been initiated within a reasonable time. The Addl. Tahasildar, Jagatsinghpur, vide his order dated 1.9.1969, has fixed the fair rent in respect of Ac. 3.4 decimals of land in exercise of power under Section 8(1) of the Act in O.E.A. Case No. 212 of 1968. Likewise, the Addl. Tahasildar-cum-OEA Collector vide his order dated 16.4.1973 passed in OEA Case No. 2045 of 1970 had settled Ac. 1.3 decimals of land out of the case land in faovur of Madan Mohan Jena and others. Correctness of the aforesaid two orders passed on 1.9.1969 and 16.4.1973 is under challenge before the Member, Board of Revenue, Odisha, Cuttack in Revision Case No. 32 of 2009. Delay in preferring the revision has not been explained in the report of the Collector, Jagatsinghpur dated 20.06.2009 on the basis of which Revision Case No. 32 of 2009 was initiated. There is also no material on record to explain the delay in preferring the revision. 4. Mr. Mohanty further relied upon the decisions of the Hon’ble Supreme Court in the cases of Chennai Metropolitan Water Supply and Sewerage Board and others –v- T.T. Murali Babu, reported in AIR 2014 SC 1141 and Jt. Collector, Ranga Reddy Dist. and another –v- D. Narsing Rao and others, reported in 2015 SC 1021, to substantiate his argument to the effect that unexplained delay in putting law into motion is fatal. Ripened civil rights accrued in favour of the petitioners cannot be taken away so lightly and callously without following due process of law. Collector, Ranga Reddy Dist. and another –v- D. Narsing Rao and others, reported in 2015 SC 1021, to substantiate his argument to the effect that unexplained delay in putting law into motion is fatal. Ripened civil rights accrued in favour of the petitioners cannot be taken away so lightly and callously without following due process of law. ‘Kumbhakarna’ slumber of the State Government has crippled its right to prefer the revision, The right accrued in favour of the petitioners cannot be taken away by filing the revision after more than three decades. Mr. Mohanty also assailed the initiation of the revision on the ground of estoppel, violation of principles of the natural justice and adverse possession. Thus, he prayed to quash the proceeding in Revision Case No. 32 of 2009 pending before the Member, Board of Revenue, Odisha, Cuttack initiated under Section 38-B of the Act. 5. Mr. K.K. Mishra, learned Addl. Government Advocate submitted that the application filed by the petitioners before the O.E.A. Collector abundantly makes it clear that the application was under Sections 6, 7 and 8 (1) of the Act. Thus, necessarily the petitioners have prayed for settlement of the land under Sections 6 and 7 of the Act. Thus, legality or regularity of such proceeding is amenable to the jurisdiction of the Member, Board of Revenue under Section 38-B of the Act. Moreover, law is well-settled that when the Tahasildar while exercising his power under Section 8(1) of the Act exceeds his jurisdiction, the same is amenable and/or open to challenge in proceeding under Section 38-B of the Act. He further submitted that the transactions, i.e., Registered Sale Deed No. 6896 dated 27.10.1953 alienating Ac.1.01-7 ½ Kadies by Mahendra Saran Bose in favour of Madan Mohan Jena, Registered Lease Deed No.3286 dated 16.5.1955, wherein Kishore Mohan Jena and Nirmal Chandra Jena were inducted as tenants by Krushna Mohan Jena and Registered Lease Deed No. 243 dated 17.1.1958 executed by Rabindra Saran Bose in favour of Madan, Kishore and Nirmal were admittedly executed after 01.01.1946. Thus, the transaction made needs approval of the Member, Board of Revenue under Section 5(1) of the Act. The mandatory provisions of law/procedure having not been followed by the Addl. Tahasildar-cum-OEA Collector while passing the impugned orders, the same are vulnerable under Section 38-B of the Act. Thus, the transaction made needs approval of the Member, Board of Revenue under Section 5(1) of the Act. The mandatory provisions of law/procedure having not been followed by the Addl. Tahasildar-cum-OEA Collector while passing the impugned orders, the same are vulnerable under Section 38-B of the Act. Relying upon the decision in the case of State of Orissa –v-Brundaban Sharma, reported in (1995) Supp.3 SCC 249, he submitted that the orders can be interfered with by the Member, Board of Revenue. Hence, he prayed for dismissal of the writ petition. 6. Section 38-B of the Act provides that the Board of Revenue may, on its own motion or on a report from the Collector call for and examine the record of any proceeding in which any authority subordinate to it has made any decision or passed an order under this Act for the purpose of satisfying itself as to the regularity of such proceeding or the correctness, legality or propriety of such decision or order. Admittedly, fixation of fair rent under Section 8(1) of the Act is an administrative order and the same is not amenable to the jurisdiction of the Member, Board of Revenue under Section 38-B of the Act. The said view has been taken in the cases of Chandra Sekhar Rath –v-Collector, Dhenkanal, reported in 1988 (II) OLR 572 and State of Orissa –v-Baidyanath Jena, reported in 2013 (II) OLR 780 . But, when the OEA Collector usurps jurisdiction conferred on him under Section 8(1) of the Act and passes an order, the same shall be treated to be a proceeding under the Act and Section 38-B of the Act would be attracted. The Board of Revenue in exercise of power conferred by Section 38-B of the Act can test the veracity of the same. Thus, exercise of power under Section 38-B depends upon the facts and circumstances of each case and the nature of the order passed under Section 8(1) of the Act. Accordingly, initiation of the proceeding under Section 38-B of the Act cannot be said to be wholly without jurisdiction at the threshold. The conclusion with regard to jurisdiction can be arrived at after assessment of the facts involved and the nature of the order passed in each case. Accordingly, initiation of the proceeding under Section 38-B of the Act cannot be said to be wholly without jurisdiction at the threshold. The conclusion with regard to jurisdiction can be arrived at after assessment of the facts involved and the nature of the order passed in each case. Further, there is no dispute to the settled law that when the land is settled under the lease principles as per the Government instruction extending the time to make an application for settlement of the land already vested in Government, the same cannot be treated to be a settlement under the Act. (See 1988 (I) OLR 520). Thus, Section 38-B of the Act cannot have any application since the settlement in question was not under the provisions of the said Act. (See 63 (1987) CLT 526). The petitioners claim that the balance Ac.1.31 decimal of land out of the case land was settled in their favour by way of lease in O.E.A. Case No.2045 of 1970 by order dated 16.04.1973 (Annexure-7). Perusal of Annexure-7 reveals that the said proceding was initiated pursuant to an application under Sections 6, 7 and 8(3) of the Act by the petitioners. Though Mr. Mohanty, learned Senior Advocate submitted that the said application was filed by the petitioners in terms of provisions made in G.O. No.14399/R dated 02.03.1964, no material is available on record in support of the same. On the other hand, order sheet under Annexure-7 reveals a different state of affairs. Nomenclature of an application, of course, is not material for consideration. It is the subject matter of the petition and prayer made therein are the guiding factor for consideration of an application. In the facts and circumstances and more particularly in absence of sufficient material on record to reach at a conclusion, the Member Board of Revenue, before whom the revision is pending should examine the matter in detail. 7. Mr. Mohanty, learned Senior Advocate for the petitioners vehemently argued that initiation of the proceeding under Section 38-B of the Act suffers from delay and latches. He submitted that no period of limitation has been provided for initiation of a proceeding under Section 38-B of the Act. However, it should be within a reasonable time and period of 40 years and 37 years cannot, at all, by no stretch of imagination, be said to be a reasonable period under Section 38-B of the Act. He submitted that no period of limitation has been provided for initiation of a proceeding under Section 38-B of the Act. However, it should be within a reasonable time and period of 40 years and 37 years cannot, at all, by no stretch of imagination, be said to be a reasonable period under Section 38-B of the Act. He verily relied upon the decision of this Court in the case of Nityananda Satpathy and others –v-Member, Board of Revenue and others, reported in 1996 (II) OLR 262, wherein it has been held that no time limit is fixed to initiate a proceeding under Section 38-B of the Act, but the power should be exercised in a reasonable manner within a reasonable time which depends on facts and circumstances of each case. It should not be done arbitrarily. Similar view has also been taken in the decision in the cases of Labanybati Devi and others –v-Member, Board of Revenue and others, reported in 1993 (II) OLR 365 and Smt. Parbati Mohapatra and another Vs. State of Odisha and others, reported in 2014 (I) OLR 825 . He also relied upon the decision in the case of T.T. Murali Babu (supra), wherein the Hon’ble Supreme Court at paragraph-16 held as follows: 16. Thus, the doctrine of delay and laches should not be lightly brushed aside. A writ court is required to weigh the explanation offered and the acceptability of the same. The court should bear in mind that it is exercising an extraordinary and equitable jurisdiction. As a constitutional court it has a duty to protect the rights of the citizens but simultaneously it is to keep itself alive to the primary principle that when an aggrieved person, without adequate reason, approaches the court at his own leisure or pleasure, the Court would be under legal obligation to scrutinize whether the lis at a belated stage should be entertained or not. Be it noted, delay comes in the way of equity. In certain circumstances delay and laches may not be fatal but in most circumstances inordinate delay would only invite disaster for the litigant who knocks at the doors of the Court. Be it noted, delay comes in the way of equity. In certain circumstances delay and laches may not be fatal but in most circumstances inordinate delay would only invite disaster for the litigant who knocks at the doors of the Court. Delay reflects inactivity and inaction on the part of a litigant – a litigant who has forgotten the basic norms, namely, “procrastination is the greatest thief of time” and second, law does not permit one to sleep and rise like a phoenix. Delay does bring in hazard and causes injury to the lis. In the case at hand, though there has been four years’ delay in approaching the court, yet the writ court chose not to address the same. It is the duty of the court to scrutinize whether such enormous delay is to be ignored without any justification. That apart, in the present case, such belated approach gains more significance as the respondent-employee being absolutely careless to his duty and nurturing a lackadaisical attitude to the responsibility had remained unauthorisedly absent on the pretext of some kind of ill health. We repeat at the cost of repetition that remaining innocuously oblivious to such delay does not foster the cause of justice. On the contrary, it brings in injustice, for it is likely to affect others. Such delay may have impact on others’ ripened rights and may unnecessarily drag others into litigation which in acceptable realm of probability, may have been treated to have attained finality. A court is not expected to give indulgence to such indolent persons -who compete with ‘Kumbhakarna’ or for that matter ‘Rip Van Winkle’. In our considered opinion, such delay does not deserve any indulgence and on the said ground alone the writ court should have thrown the petition overboard at the very threshold.” He also relied upon the decision in the case of D. Narsing Rao and others (supra), wherein the Hon’ble Supreme Court at paragraph-24 held as follows: “24. To sum up, delayed exercise of revisional jurisdiction is frowned upon because if actions or transactions were to remain forever open to challenge, it will mean avoidable and endless uncertainty in human affairs, which is not the policy of law. To sum up, delayed exercise of revisional jurisdiction is frowned upon because if actions or transactions were to remain forever open to challenge, it will mean avoidable and endless uncertainty in human affairs, which is not the policy of law. Because, even when there is no period of limitation prescribed for exercise of such powers, the intervening delay, may have led to creation of third party rights, that cannot be trampled by a belated exercise of a discretionary power especially when no cogent explanation for the delay is in sight. Rule of law it is said must run closely with the rule of life. Even in cases where the orders sought to be revised are fraudulent, the exercise of power must be within a reasonable period of the discovery of fraud. Simply describing an act or transaction to be fraudulent will not extend the time for its correction to infinity; for otherwise the exercise of revisional power would itself be tantamount to a fraud upon the statute that vests such power in an authority.” 8. The aforesaid principles laid down by the Hon’ble Supreme Court set out a guideline for consideration of issue of limitation. Further, in the case of Brundaban Sharma (supra), it has been held that revisional power conferred on the Board of Revenue under Section 38-B of the Act should be exercised in a reasonable manner which inheres the concept of exercising power within a reasonable time. Absence of limitation is an assurance to exercise the power with caution or circumspection to effectuate the purpose of the Act. Length of time depends on the factual scenario in a given case. Thus, the question of limitation, which is necessarily an issue involving mixed questions of fact and law, has be scrutinized taking into consideration the aforesaid guidelines set out by the Hon’ble Supreme Court. 9. Admittedly, the petitioners immediately after receipt of the notice in Revision Case No. 32 of 2009 have approached this Court assailing the maintainability of the revision. They have not raised such a question before the Board of Revenue. It remains undisputed that the Board of Revenue is competent to adjudicate the question of maintainability of the revision under Section 38-B of the Act. They have not raised such a question before the Board of Revenue. It remains undisputed that the Board of Revenue is competent to adjudicate the question of maintainability of the revision under Section 38-B of the Act. In that view of the matter, we feel it proper to remit the matter back to the Board of Revenue, Odisha, Cuttack to adjudicate the issue of maintainability of the revision. 10. In view of the above, this Court disposes of the writ petition remanding the matter back to the Member, Board of Revenue, Odisha, Cuttack with a direction to adjudicate the issue of maintainability along with other issues giving opportunity of hearing to the parties taking into consideration the discussion and observation made herein above.