Research › Search › Judgment

Orissa High Court · body

2017 DIGILAW 766 (ORI)

Hadibandhu Swain v. State of Orissa

2017-07-20

B.K.NAYAK, D.P.CHOUDHURY

body2017
JUDGMENT : D.P. Choudhury, J. Since both the writ petitions involve common questions of facts and law, they were taken up for hearing together and are being disposed of by this common judgment. 2. Challenge has been made to the order passed by the Additional District Magistrate, Cuttack, opposite party no.2 purportedly passed under Section 9 of the Orissa Estates Abolition Act, 1951 (hereinafter called as “the Act, 1951”) 3. FACTS The unshorn details of the case of the petitioner in O.J.C. No.8478 of 1993 are that the petitioner was a tenant in respect of two acres of land out of Ac.4.30 decimals in C.S. Plot No.52 under C.S. Khata No. 25 of Mouza-Sasan. Similarly, the petitioner in O.J.C. No.8479 of 1993 asserted that the petitioner was a tenant in respect of three acres of land out of Ac.11.85 decimals pertaining to C.S. Plot No.56 under C.S. Khata No.25 of Mouza-Sasan. It is asserted by both the petitioners that another person, namely, Sricharan Swain was similarly in possession of two acres of land out of Ac.4.30 appertaining to C.S. Plot No.52 one acre of land in Plot No.56 under C.S. Khata No.25 of Mouza-Sasan. The petitioners in these two cases and Sricharan Swain have been in possession of the respective case lands having been leased out by Ex-landlord of Kujanga Estate. They have been in possession of their respective land in question before the vesting of case lands with the State Government and paying the shares in the produces (bhag) as rent to the Ex-landlord who had granted rent receipt in token of payment of the same. 4. Be it stated that the above case lands vested with Government in 1954 but both the petitioners and another Sricharan Swain continued to remain in possession as tenants of their aforesaid respective case lands. The Ex-landlord purportedly omitted to submit the Ekpadia Register in the name of the petitioners to the State Government. When the petitioners came to know that the Ex-landlord has not submitted Ekpadia register, they applied under Orissa Tenancy Act, 1913 (hereinafter called as “the Act, 1913”) to declare them as occupancy tenants under the State as they have been in possession of respective case lands for more than twelve years by the time of filing of the cases before the Tahasildar, Marshaghai, opposite party no.3 registered as Revenue Misc. Case No.14 of 1984 of Hadibandhu Swain (petitioner in O.J.C. No. 8478/1993), Revenue Misc. Case No.15 of 1984 of Sricharan Swain and Revenue Misc. Case No. 16 of 1984 of Jharinath Swain (petitioner in O.J.C. No. 8479 of 1993). After the necessary general public proclamation and the report of the Revenue Inspector confirming the possession of the respective petitioners and Sricharan Swain over their respective case lands, the Tahasildar declared them as settled tenant and directed to pay the rent from the year 1952-1953 vide Annexure-1 to the respective writ petitioners. 5. It is stated that some villagers, without filing any objection before the opposite party no.3, tried to interfere with the peaceful possession of the petitioners and Sricharan Swain for which the petitioner Jharinath Swain filed T.S.No.384 of 1986 and said Sricharan Swain filed T.S. No. 385 of 1986 before the Civil Court concerned for permanent injunction against the opposite parties-villagers. At the same time, opposite party-Sidheswar Sahu for himself as well as for the villagers filed T.S. No. 387 of 1986 before the same Civil Court challenging the decision of the Tahaisildar, Marshaghai, opposite party no.3, but said plaint was rejected. On the other hand, T.S. No.384 of 1986 was decreed ex parte on 30.1.1990 and T.S. No. 385 of 1986 was contested but in the contested T.S., learned Munsif restrained some villagers from interfering with the possession of the plaintiff-petitioner by observing that the plaintiff-petitioners have got right, title, interest and possession over the respective case lands. 6. Be it stated that the petitioners and Sricharan Swain have already got recorded their respective case land in the major settlement in their favour. In the meantime, some villagers filed writ petition before this Court being registered as O.J.C. No.2225 of 1987 against petitioners and Sricharan Swain challenging the orders passed by opposite party no.3-Tahasildar, but the writ petition was rejected as this Court declined to interfere with the order of the opposite party no.3 passed in the aforementioned revenue misc. cases. It is alleged inter alia that since the opposite parties-villagers could not be successful in any manner, they filed O.E.A. Appeal Nos.4, 5 and 6 of 1990 under Section 9 of the Act, 1951 before the Additional District Magistrate, Cuttack, opposite party no.2 challenging the order passed by the opposite party no.3 in the respective revenue misc. cases. cases. It is alleged inter alia that since the opposite parties-villagers could not be successful in any manner, they filed O.E.A. Appeal Nos.4, 5 and 6 of 1990 under Section 9 of the Act, 1951 before the Additional District Magistrate, Cuttack, opposite party no.2 challenging the order passed by the opposite party no.3 in the respective revenue misc. cases. The opposite party no.2, without having jurisdiction to entertain any appeal against the order purportedly passed by the opposite party no.3 under Section-8(1) of the Act, 1951, illegally set aside the order passed by the opposite party no.3 settling the case land in favour of the petitioners and Sricharan Swain and the said orders are impugned in these two writ petitions and O.J.C. No. 8599 of 1993 filed by Sricharan Swain before this Court. Hence, the writ petitions. 7. SUBMISSIONS Smt. Sujata Jena, learned counsel for the petitioners submitted that the impugned orders passed by the Additional District Magistrate, Cuttack, opposite party no.2 are improper and illegal because the opposite party no.3 has passed order purportedly under Section-8(1) of the Act, 1951 inasmuch as the petitioners like Sricharan Swain are occupying the case lands as bhag tenant under the Ex-landlord and after vesting, continued to possess the same under the State Government. She further submitted that the petitioners and Sricharan Swain have been paying the produce as rent and have obtained the rent receipts from the Ex-landlords. In spite of non-submission of Ekpadia Register by the Ex-landlords, they continued to possess the same. It is settled in law that the occupancy tenants under Section-8(1) of the Act, 1951 who continue to possess the land even after vesting, need not file any application for settlement in their names as they continued to be the occupancy tenants having similar interest therein under the State Government. She further submitted that Section 9 of the Act, 1951 applies to the appeal preferred against the order passed under Sections 6 and 7 of the said Act, but not against an order purportedly passed under Section-8(1) of the Act, 1951. 8. She further submitted that Section 9 of the Act, 1951 applies to the appeal preferred against the order passed under Sections 6 and 7 of the said Act, but not against an order purportedly passed under Section-8(1) of the Act, 1951. 8. It is further submitted by Smt. Jena, learned counsel for the petitioners that the order of the Tahasildar, Marshaghari, opposite party no.3 has been passed under the Act, 1913 settling the land in favour of the petitioners and Sricharan Swain, who are admittedly the tenants but not landlords for which no appeal lies against such orders and the learned Additional District Magistrate, Cuttack, opposite party no.2 has passed the impugned orders having no jurisdiction to pass the same. 9. She also relied on the decision of the Civil Court in respect of Sricharan Swain whereunder the concerned Civil Court has found the right, title, interest and possession over the land possessed by Srichararan Swain and accordingly, permanently restrained the defendants, who are also arrayed as some of the villager in the writ petition filed by Sricharan Swain from interfering with the possession of said Sri Swain. She further submitted that in the Civil Suit filed by the villagers, they could not succeed and similarly the Civil Suit filed by the Jharinath Swain vide T.S. No. 384 of 1986 was decreed ex parte. Not only this but also the order of the opposite party no.3 has been well confirmed by this Court in OJC No. 2225 of 1987 filed by some of the villagers. Thus, the impugned orders passed by the opposite party no.2 without going through all these decisions passed in favour of the petitioners and Sricharan Swain are not only vulnerable but also liable to be quashed. 10. Mrs. Jena, learned counsel for the petitioners relied upon the decision of this Court passed in the case of Radhamani Dibya and others Vs. Thus, the impugned orders passed by the opposite party no.2 without going through all these decisions passed in favour of the petitioners and Sricharan Swain are not only vulnerable but also liable to be quashed. 10. Mrs. Jena, learned counsel for the petitioners relied upon the decision of this Court passed in the case of Radhamani Dibya and others Vs. Braja Mohan Biswal and others; 57 (1984) C.L.T. 1 (F.B.) where Their Lordships have observed that no appeal can be entertained by the A.D.M. against the order passed under Section-8(1) of the Act, 1951 and further in the said decision, it has been held that person having possession of any holding as a tenant becomes non-occupancy raiyat under the State after vesting because he becomes a settled raiyat under Section 23 of the Act, 1913 being in possession of more than 12 years and as such by virtue of status, he acquires the occupancy right under the State. She further submitted that the entire facts and circumstances of that case are similar to the facts and circumstances of these writ petitions and in view of the principle decided by the Full Bench of this Court in the aforesaid decision, the writ petitions should be allowed. She also contended that vide order dated 22.03.1994 passed in Misc. Case Nos.2017 and 2018 of 1994 arising out O.J.C. No.8479 of 1993, prayer for analogous hearing of O.J.C. No.8479 of 1993 with O.J.C. No.8599 of 1993 was allowed, but in the meantime O.J.C. No.8599 of 1993 has already been disposed of by a Division Bench of this Court vide judgement dated 03.07.2008 allowing the writ petition by quashing the impugned order passed by the opposite party no.2 and accordingly similar order should be passed in these two writ petitions. In toto, she submitted that relying on the decision of the Full Bench of this Court in the case of Radhamani Dibya and others (Supra) and the decision of the Division Bench of this Court passed in respect of Sricharan Swain (O.J.C. No. 8599 of 1993), these writ petitions should be allowed. 11. No counter affidavit has been filed in these writ petitions on behalf of the State-opposite parties. Smt. U. Padhi and Mr. 11. No counter affidavit has been filed in these writ petitions on behalf of the State-opposite parties. Smt. U. Padhi and Mr. P. Palit, learned counsels appearing for the private opposite parties submitted that the contention of Smt. Jena, learned counsel for the petitioners requires close scrutiny because the case lands asserted by the respective petitioners and Sricharan Swain (petitioner in O.J.C. No. 8599 of 1993) are communal lands and they are used to observe different activities of villagers thereon for which the order of the Tahasildar, Marshaghari, opposite party no.3 settling the lands in their favour is illegal and improper. They submitted that the order of the opposite party no.3 passed in respective misc. cases do not disclose that they have been passed under Section-8(1) of the Act, 1951 for which there is no bar for the opposite party no.2 to entertain the appeals. The impugned orders passed by the opposite party no.2 are quite speaking orders and opposite party no.2 rightly has held that the State was not heard in the matter and the opposite party no.3, without following the proper procedure, has settled the land in favour of the petitioners for the reasons best known to him. So, they submitted that the impugned orders are bad in law and prayed to dismiss the writ petitions. 12. Mr. B.P. Tripathy, learned Additional Government Advocate, without filing any counter affidavit on behalf of the State-opposite parties, supported the contention of the learned counsels appearing for the private opposite parties. According to him, the case lands, being Government lands, should not be settled in favour of any individual and for the best interest of the public, the case lands should be enjoyed by the villagers. Of course, he did not dispute the genuineness of any document filed by the petitioners. On the other hand, he supported the impugned orders passed by the opposite party no.2 and submitted to dismiss the writ petitions. 13. POINT FOR DETERMINATION The main point for determination is; (1) Whether the impugned orders passed by the Additional District Magistrate, Cuttack, opposite party no.2 are illegal and without jurisdiction and liable to be quashed? 14. DISCUSSIONS Considered the submission of the respective learned counsels. Annexure-1 in both the writ petitions show that on 19.07.1985, the Tahasildar, Marshaghari, opposite party no.3 has considered the applications filed by the petitioners. 14. DISCUSSIONS Considered the submission of the respective learned counsels. Annexure-1 in both the writ petitions show that on 19.07.1985, the Tahasildar, Marshaghari, opposite party no.3 has considered the applications filed by the petitioners. It appears from the said order that he has issued notice inviting public objections within a period of thirty days, but no objection was filed. He has also gone through the report of the concerned Revenue Inspector which discloses that the petitioners are in occupation of the case lands. The Tahasildar, Marshaghai has gone through the receipts showing payment of salami and rent to Ex-landlords of Kujanga by the petitioners. He has given the finding that for more than thirty years, respective petitioners were in possession of the respective case lands and as such they have acquired occupancy right over their land under the provisions of the Act, 1913. So, he directed for preparation of the Record of right and payment of rent from 1952-1953 after fixation of the same. Annexure-3 shows that Sricharan Swain had filed T.S. No. 385 of 1986 before the learned Munsif, Kendrapara whereunder his right, title, interest and possession has been decreed in his favour and the defendants, who are some of the villagers in the writ petitions filed by him vide O.J.C. No. 8599 of 1993, have been restrained permanently from disturbing his possession over his suit land. Annexure-4 shows that respective petitioners have been issued with Record of Right in their favour with Stitiban status. Annexure-5 shows that some of the villagers have filed a writ petition before this Court vide O.J.C. No. 2225 of 1987 challenging the said Record of Right basing on the settlement of the land by the opposite party no.3 in favour of the present petitioners, who were also parties to that writ petition. That writ petition (O.J.C. No. 2225 of 1987) was found to be rejected vide order dated 01.07.1988 with the following observation: “10. 01.07.1988 - Since the final record of right has been published, after passing of the impugned order, and a title suit is also pending between the same parties, we do not feel inclined to admit this writ application. It is accordingly rejected. 15. From the aforesaid order passed in O.J.C. No.2225 of 1987, it is clear that the said writ petition was rejected. It is accordingly rejected. 15. From the aforesaid order passed in O.J.C. No.2225 of 1987, it is clear that the said writ petition was rejected. From the aforesaid materials, which are not controverted by any of the opposite parties, it must be observed that the orders were passed by the opposite party no.3, the Tahasildar, Marshaghai settling the respective case lands in favour of the petitioners (Hadibandhu Swain and Jharinath Swain) although the final order does not disclose under what Section of law the cases have been disposed of. But as it appears from the tenor of the order dated of 19.07.1985 that they have declared the occupancy right of the petitioner over the respective case land under the provisions of the Act, 1913 and accordingly, opposite party no.3 directed for correction of the Record of Right. The tenor of the orders further shows that the petitioners have been accepted as occupancy tenants being in uninterrupted possession before the vesting and after the vesting of the case land with the State Government. 16. It is reported in Radhamani Dibya and others (Supra) that Section-8(1) of the Act, 1951 makes no provision for an application. It is merely declaratory of the continuity of the tenure of tenants as it was immediately before the date of vesting. Their Lordships, in the said Full Bench decision, have also held that no application was entertainable for determining rival claims under Section-8(1) of the Act, 1951. Thus, it is the duty of the concerned Tahasildar, without even filing of any application, should recognize the possession of the tenants who are tenants under the Act, 1913. In the instant cases, the impugned orders show that the opposite party no.3 has declared the petitioners as occupancy tenants under the Act, 1913 and obviously passed the order under Section-8(1) of the Act, 1951. Mere non-mention of the provision of law in an order does not make the order non-est per se when the case is about the possession of the tenant under Ex-intermediary and after vesting also under the State, which can be considered under relevant provision of law. Under no stretch of imagination, the applications can be termed as Sections 7 and 8 of the Act, 1951. So, the orders passed by the opposite party no.3 are orders passed under Section-8(1) of the Act, 1951. 17. Under no stretch of imagination, the applications can be termed as Sections 7 and 8 of the Act, 1951. So, the orders passed by the opposite party no.3 are orders passed under Section-8(1) of the Act, 1951. 17. The Full Bench of this Court, at paragraph-12 of the judgment rendered in the case of Radhamani Dibya (Supra) has observed in the following manner: “xx xx xx xx Section 8(1) of the Orissa Estates Abolition Act makes no provision for an application. No enquiry is contemplated under this section. The section is merely declaratory of the continuity of the tenure of the tenants as it was immediately before the date of vesting. As no application was entertainable for determining rival claims under section 8(1) the Tahasildar had rightly dismissed the same. But although there is no provision for an appeal against any order passed under section 8(1), the learned Additional District Magistrate entertained the appeal and recognized defendants 7 and 8 as tenants in respect of the suit lands. Apparently the learned Additional District Magistrate exercised a jurisdiction not vested in him. His order as per Ext.F is, therefore, without jurisdiction and void.” With due respect to the aforesaid decision of the Full Bench of this Court, it is clear that no appeal under Section 9 of the Act, 1951 lies against the order passed by the Tahasildar passed under Section-8(1) of the said Act. The impugned orders of opposite party no.2 show that they have been passed under section 9 of the Act, 1951 on the order of the Tahasildar, Marshaghai, opposite party no.3 purportedly passed under Section-8(1) of the Act, 1951. So, relying upon the ratio decided by this Court in its Full Bench, such impugned orders are void for having been passed without jurisdiction. 18. This Court, in O.J.C. No. 8599 of 1993 filed by Sricharan Swain, has also taken the same view and has passed the following order vide order dated 03.07.2008: “7. For the discussions made in the preceding paragraphs, this Court is satisfied both on fact and law that by virtue of the order passed by the Tahasildar in Rev. Misc. 18. This Court, in O.J.C. No. 8599 of 1993 filed by Sricharan Swain, has also taken the same view and has passed the following order vide order dated 03.07.2008: “7. For the discussions made in the preceding paragraphs, this Court is satisfied both on fact and law that by virtue of the order passed by the Tahasildar in Rev. Misc. Case No. 15/1984 coupled with the decree passed in T.S. No. 385/1986 by the then Munsif, Kendrapara, the petitioner had acquired occupancy right under the provisions of Orissa Tenancy Act and that the A.D.M., Cuttack had no jurisdiction or authority to entertain O.E.A. Appeal No. 4/1990 and the decision passed vide Annexure-7 cannot be sustained. Accordingly, the said order is quashed and the order passed by the Tahasildar is confirmed. Consequently, the Writ application is allowed.” With due respect to the aforesaid decision of the Division Bench of this Court, since the facts and circumstances of the present cases are similar to the facts and circumstances of the aforesaid writ petition and the principle decided by this Court in its Full Bench, as referred hereinabove, we are of the view that the impugned orders passed by the Additional District Magistrate, Cuttack, opposite party no.2 vide Annexure-1 in both the writ petitions, cannot be said to have been passed legally and as such they are liable to be quashed. The point for determination is answered accordingly. 19. CONCLUSION In terms of the above discussions, we are of the considered view that the order passed by the Tahasildar, Marshaghai, opposite party no.3 in Revenue Misc. Case Nos.14 and 16 of 1984 in respect of the respective petitioners are correct and the impugned orders passed by the Additional District Magistrate, Cuttack, opposite party no.2 under Annexure-7 in both the writ petitions, are liable to be quashed. Consequently, we quash the impugned orders passed by the Additional District Magistrate, Cuttack under Annexure-7 to the writ petitions and confirm the orders passed by the Tahasildar, Marshaghai, opposite party no. 3. The Writ Petitions are disposed of accordingly. B.K. Nayak, J. I agree.