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2017 DIGILAW 1299 (ORI)

Sakuntala Dash v. State of Odisha

2017-11-13

S.K.MISHRA

body2017
ORDER 13.11.2017. Heard learned Counsel for the petitioner and learned Addl. Govt. Advocate. This is the second journey of the petitioner to this Court. It is apparent from the record that on the earlier occasion, the petitioner had filed a writ application bearing W.P.(C) No.23582 of 2013, which was disposed of by this Court on 21.7.2014. Keeping in view the facts of the case, I find it apposite to quote the entire order passed by a Bench of this Court. “Heard learned Counsel for the petitioner and Mr. S. Mishra, leaned Addl. Government Advocate. Perused the records. No counter affidavit indicating whether Record of Rights in respect of the case land in Hal Plot No.2833, Ac.0.100 under Hal Khata No.1795 in village-Ghatika has been finally published or not is filed by the learned State Counsel, though directed earlier. Learned Addl. Government Advocate, however, submits verbally that Record of Rights have been finally published in respect of Ghatika Mouza in the recently concluded settlement. The petitioner challenges the order passed by the Assistant Settlement Officer under Annexure-2 in rent Case No.15756 of 2013, directing to record the case land in the name of the State Government and the confirming order of the Settlement Officer-cum-Additional Sub-Collector, Bhubaneswar in appeal case No.3517 of 2013. Petitioner’s case is that one Chandra Nayak was granted lease of the case land vide W.L. Case No.1272/1966-67. The kisam of the land was ‘Ghara Bari’ and accordingly Record of Right in the name of Chandra Nayak was prepared in respect of the case land appertaining to sabik Plot No.1215/1534 under Khata No.327/169. Thereafter, said Chandra Nayak, after obtaining permission from the Sub-Divisional Officer, Bhubaneswar in revenue Misc. Case No.1 of 1976 under Section 22 of the OLR Act sold the said land to the petitioner on 24.3.1976 under a registered deed (Annexure-3). The petitioner got possession and not the land mutated in her name and accordingly got corrected Record of Right in her favour bearing Khata No.327/169, Plot No.1215/1534 and she went on paying land revenue to the State Government. The petitioner thereafter, constructed a house on the land and staying there. During the recent settlement in respect of village –Ghatikia where the case land is situated, draft Record of Right was published in the name of the petitioner. The petitioner thereafter, constructed a house on the land and staying there. During the recent settlement in respect of village –Ghatikia where the case land is situated, draft Record of Right was published in the name of the petitioner. It transpires that the Assistant Settlement Officer-cum-opposite party No.4, himself initiated suo motu objection Case bearing No.15756/2042 of 2013, showing the State Government as the objector and the petitioner as opposite party and has rejected the claim of the present petitioner and directed to record the land in the name of the State Government, stating that neither the petitioner nor the Tahasildar, Bhubaneswar produced the lease case record and other documents. The said order has been confirmed by the Additional Sub-Collector-cum-Additional Settlement Officer, Bhubaneswar, in appeal. It is submitted by the learned Counsel for the petitioner that the draft Record of Right was published in the name of the petitioner basing on the Record of Right published in the name of the petitioner’s vendor. Chandra Nayak and also the mutation Record of Rights was prepared in the name of the petitioner on the basis of the sale deed executed by Chandra Nayak in her favour and that there being no objection made by the State Government or the Tahasildar, the Assistant Settlement Officer could not have initiated a suo motu objection case. Learned Counsel for the State submits that final Record of Right having been published the petitioner can avail the alternative remedy of revision u/s. 15(b) of Orissa Survey and Settlement Act before the Commissioner of Settlement. Apparently, no objection either by the Tahasildar or any authority of the Government was filed challenging the Draft Record of Right published in favour of the petitioner. Settlement Authorities have no jurisdiction to consider the validity and propriety of lease, granted in favour of any person of Government land either under the Government Land Settlement Act or any other statute. They have only to make the draft Record of Right final unless any objection has been filed by any person to change the draft Record of Right on the basis of any action or event which has the effect of negating the lease of her vendor or invalidating petitioner’s sale deed. They have only to make the draft Record of Right final unless any objection has been filed by any person to change the draft Record of Right on the basis of any action or event which has the effect of negating the lease of her vendor or invalidating petitioner’s sale deed. Since the petitioner’s vendors had been recorded with the land and the Record of Right was corrected showing that he had been granted lease of the land, the petitioner as purchaser from the original lessee should have been finally recorded in the Record of Right in conformity with the draft Record of Right, unless the State would be able to show that the lease granted in favour of the original lessee has been cancelled and the land resumed. The ASO has also stated in his order that the Tahasildar did not produce any document, which means that there was nothing on record to show that the lease granted in favour of the petitioner’s vendor was either cancelled or set aside by any competent authority. Therefore, the order passed by the ASO, and the Additional Sub-Collector-cum-Settlement Officer on same ground are unsustainable and accordingly I set aside the same. Similar, view has been taken by a Division Bench of this Court in W.P. (C) No.8402 of 2014. If the Record of Right in respect of the case land has been finally published in favour of the State, the same shall also be deemed to have been quashed. The matter is remitted back to the Assistant Settlement Officer-opposite party No.4 to adjudicate it afresh on its own merits, after providing opportunity of hearing to the petitioner as well as to the Tahasildar, Bhubaneswar, if necessary. The whole exercise shall be completed within a period of four months, from the date of appearance of the petitioner before the ASO and on production of a certified copy of this order. The petitioner shall appear before ASO-opposite party No.4 on 6th August, 2014 and produce the certified copy of this order whereafter the ASO shall proceed as directed.” After remand of the case, the case was listed before the A.S.O. on 20.10.2014. Thereafter, it suffered an adjournment and was listed on 22.11.2014. On that date in pursuance to this Court’s order, though the case was taken up, the A.S.O. directed the Amin to cause a field enquiry and place the report. Thereafter, it suffered an adjournment and was listed on 22.11.2014. On that date in pursuance to this Court’s order, though the case was taken up, the A.S.O. directed the Amin to cause a field enquiry and place the report. Thereafter, the report was placed before the A.S.O. the Xerox copy of which is filed herewith as Annexue-13. It is borne out from the record that as per the order of this Court and the order of the A.S.O., spot verification was carried on and the positive report of the Amin is that there is a co-relation of Hal-Sabik plot number. The sabik plot No. being Plot No.1215/1534 and the current Plot number is 2833. However, ignoring the said report, in complete violation of the order of this Court, the A.S.O. has observed as follows : “ x x x x The details of the case is that Hal Plot No.2833 with an area Hc.0.0405 has been recorded as per her purchase during the stage of Khanapuri operation. This hall plot No.2833 co-relates to Sabik Plot No.1215 (P). Sabik Plot No.1215 with an area of Ac.53.055 stood recorded as Anabadi. During the objection hearing stage, a suo motu case was initiated to verify the genuineness of recording as both the parties could not able to produce all the relevant documents and maps it was kept in favour of Govt. as per the Sabik R.O.R. In W.P. (C) No.23582/13, Hon’ble High Court vide orders dated 21.7.14 has set aside the orders of A.S.O. and Add. Sub-Collector and remitted back to A.S.O. to adjudicate it afresh on its own merit. The O.P. has submitted that an area of Ac.0.100 was leased out to Chandra Naik out of Sabik Plot No.1215 vide W.L. Case No.1272/66-67. So, the same has been recorded in the Tahsil R.O.R. vide Plot No.1215 in Khata No.327/169. The vendor of the O.P. after obtaining permission from the Sub-Collector has transferred the same land to the O.P. The O.P. has also mutated the same in the Tahasil level and the Tahasildar R.O.R. has been prepared in her favour vide Khata No.327/169 and Plot No.1215/1534 with an area of Ac.0.100 dec. She submitted that she is in possession over Hal Plot No.2833 which co-relates to Sabik Plot No.1215/1534. Hence, prayed to keep the Khanapuri record intact. She submitted that she is in possession over Hal Plot No.2833 which co-relates to Sabik Plot No.1215/1534. Hence, prayed to keep the Khanapuri record intact. The Cout has no jurisdiction to interfere with the R.O.R. prepared by the Tahasil authorities, but to keep the Hal R.O.R. accordingly. Neither the Tahasildar nor the O.P. submitted the map of Sabik Plot No.1215/1534 to co-relate with the Hal map to know actually which Hal Plot co-relates to Sabik Plot No. 1215/1534.The map of full sabik plot No.1215 is available in this office. So, many hal plots have been created for the same in the hal map. For want of the map of Bata Plot No.1215/1534 which is a part of sabik Plot No.1215 the co-related hal plot cannot be ascertained. Verified the yaddast prepared during the Khanapuri stage of Settlement operation. It is seen that during this stage only records have been prepared basing on the possession only and no sabik and hal co-relation of Sabik Plot No.1215/1534 with Hal Plot No.2833 has been made, which is the most essential document (map) require to record the suit hal plot in her favour. In view of the above discussion and for want of the map of Sabik Plot No.1215/1534, it will not be proper to record any Hal plot in favour of the O.P. without making Sabik and Hal co-relation. Accordingly, the claim of the petitioner is allowed. Keep Hal Plot No.2833 Hc.0.0405; in “Abad Jogya Anabadi” Khata. As this case has been taken up U/s. 21 of the OSS Act, 1958, the O.P. has scope to file appeal against this order.” It is also borne out from the record that on the self same ground, the objection of the petitioner in the objection case has been over-ruled, which is available in Annexure-9 at page 32 of the brief. Once that order has been set aside, it was illegal on the part of the A.S.O. to modify the draft ROR and prepare the final ROR in the name of the State Govt. as “Abada Jogya Anabadi”. Raising objection to the writ application, Mr. K.K. Mishra, learned Addl. Govt. Advocate submitted that the order passed by the A.S.O. after remand is revisable under Section 15 (b) of the Orissa Survey and Settlement Act, 1958. The stand taken by the settlement authority and their Counsel runs contrary to each other. as “Abada Jogya Anabadi”. Raising objection to the writ application, Mr. K.K. Mishra, learned Addl. Govt. Advocate submitted that the order passed by the A.S.O. after remand is revisable under Section 15 (b) of the Orissa Survey and Settlement Act, 1958. The stand taken by the settlement authority and their Counsel runs contrary to each other. The settlement authority while passing order has observed that the order is appealable, but by that time the final publication of ROR was made, the revision application under Section 15 (b) is only maintainable. However, I am not inclined to accept the contention of Mr. Mishra and dismiss the writ petition in view of the fact that a Bench of this Court has given a specific direction to the A.S.O. and the A.S.O. in complete violation of the order of this Court has again reiterated its own order, which has already been set aside by this Court. Thus, the considered view of this Court is that the writ application is maintainable. The other point of submission raised by the learned Addl. Govt. Advocate is that the sabik map has not been produced and there is no co-relation of hal-sabik map. However, this Court takes into consideration the order passed in Annexure-9, i.e. the order passed by the A.S.O. in Objection Case No.15756/2043/13 wherein the objection of the State Govt. was allowed only on the ground that there is no Hal-Sabik co-relation, but that order has already been quashed by this Court in the aforesaid writ application (W.P.(C) No.23582 of 2013), as quoted above. In addition to that field verification has been made and it is apparent from the field verification report prepared by the Amin, that at the time of field verification in presence of witnesses, the Hal-Sabik map co-relates. So in that view of the matter, the impugned order should not have been passed by the A.S.O. In that view of the matter, the writ application is allowed. The order dated 3.12.2014 passed by the A.S.O. in Objection Case No.15756/2043 of 2013 is hereby quashed. The Tahasildar, Bhubaneswar, opposite party No.5 is directed to prepare Hal Khata No.1795, Hal Plot No.2833 area Ac.0.100 dec. The order dated 3.12.2014 passed by the A.S.O. in Objection Case No.15756/2043 of 2013 is hereby quashed. The Tahasildar, Bhubaneswar, opposite party No.5 is directed to prepare Hal Khata No.1795, Hal Plot No.2833 area Ac.0.100 dec. of mouza Ghatikia, corresponding to Sabik Khata No.327/169, Sabik Plot No.1215/1534 in the name of the petitioner and issue record of right in her favour within a stipulated period of sixty days from the date of production of a certified copy of this order. However, there shall be no orders as to costs. Issue urgent certified copy as per Rules. Application allowed.