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2018 DIGILAW 473 (ORI)

LAXMI DEBI BARIK v. KRUSHNA CHANDRA BEJA

2018-04-25

BISWANATH RATH

body2018
JUDGMENT : Biswanath Rath, J - This writ petition involves a challenge to the order dated 21.9.2002 passed by the Commissioner, Consolidation and Settlement, Orissa, Bhubaneswar in Revision Case No.294 of 1990, vide Annexure-5, a proceeding under Section 15 (b) of the of the Orissa Survey & Settlement Act, 1958. 2. Short background involved in the case is that the suit land is the part and parcel of Anabadi Khata No.303, Plot No.294, Touzi No.1322, total area Ac.52.50 decimals recorded in the name of ex-Intermediary, Madhusudan Dev, the proprietor of the Patia Estate, as disclosed in the finally published record-of-right in the year 1931. Nityananda Beja, the father of the opposite party nos.1, 2 and 3 and the father of the petitioner obtained the settlement of land in respect of Ac.48.00 decimals relating to suit Hal Khata No, .619, Hal Plot No.329 from the ex-Intermediary. Said Nityananda Beja was in possession of the aforesaid land till the date of vesting and after his death, the opposite party nos.1, 2 and 3 remained in possession of the land on payment of rent to the Kanika Estate till the date of vesting. It is also disclosed that after vesting, the ex-Landlord Kanika Estate submitted Ekpadia in favour of Nityananda Beja and it is accordingly on submission of Ekpadia, Zamabandi was opened in favour of Nityananda Beja by Zamabandi No.303/10 for an area of Ac.48.00. It is further also disclosed that on submission of Ekpadia, Tenant Ledger was opened in the name of Nityananda Beja by the Tahasildar, Sadar, Cuttack showing Nityananda Beja as the stitiban tenant under the Landlord. It is further pleaded that while the situation stood as above, the opposite party nos.1 to 4, who are the legal heirs of the deceased Nityananda Beja, executed a registered deed of relinquishment in favour of the petitioner in respect of the aforesaid land on 10.4.1991 and from the date of execution of relinquishment deed, the petitioner is continuing his possession of the aforesaid land. It is at this stage, for the wrong recording of the land in hal record-of-right showing General Administration Department pertaining to Hal Khata No.619, Hal PlotNo.329, Area Ac.47.805 decimals with an endorsement in the remark column to the effect that the land is in illegal possession of Nityananda Beja resulting therein filing of Settlement Revision Case No.294 of 1990 before the Commissioner, Consolidation & Settlement, Orissa, Bhubaneswar challenging the hal record-of-right making the present petitioner as petitioner no.4 in the aforesaid revision. On notice, Tahasildar, Bhubaneswar appeared and contested the case on the ground that Ac.3.52 decimals of land out of Sabak Plot No.321, Sabak Khata No.472 corresponding to Hal Plot No.329 in Hal Khata No.619 in favour of Nityananda Beja by the O.E.A. Collector in O.E.A. Misc. Case No.297 of 1979 which was subsequently cancelled by Member, Board of Revenue under Section 38(b) of the O.E.A. Act vide Revision Case No.27 of 1992 based on which the Commissioner, Consolidation & Settlement, Bhubaneswar dismissed the Settlement Revision Case No.294 of 1990 by the impugned order dated 21.9.2002 appearing at Annexure-5 to this writ petition. 3. Filing the writ petition, Sri Mohanty, learned counsel appearing for the petitioner challenged the impugned order on the premises that for the settlement of rent roll in favour of Nityananda Beja showing Krushna Chandra Beja as a tenant under the Landlord before vesting a revision under Section 15 (b) of the Orissa Survey & Settlement Act was very much maintainable. The rent roll by the Landlord having been admitted, there is no occasion on the part of the revisional court to ignore the tenancy right of the petitioner. Sri Mohanty contended that the revisional authority committed an error in ignoring the provision of Section 8(1) of the O.E.A. Act and, therefore, erred in refusing to record the name of the petitioner on the basis of the very relinquishment deed. For the vesting of the land, existence of the rent roll and tenancy ledger being prepared by the competent authority are all binding on the settlement authority, dismissal of the revision solely on the basis of order passed by the Member, Board of Revenue in Revision Case No.27 of 1992 having no bearing in the present case making the revisional order illegal. Further, the area involved in the revision before the Board of Revenue being based on a different subject matter arising of a complete separate lease, Sri Mohanty, learned counsel for the petitioner submitted that the dispute involved in the revision before the Board of Revenue had no bearing on the case at hand. There is also misapplication of the provision of Section 38-B of the O.E.A. Act making the revisional order otherwise bad. In sum and substance, this Court finds the claim of Sri Mohanty, learned counsel appearing on behalf of the petitioner is solely based on the lease, production of rent roll, creation of ekpadia and the zamabandi record thereby. It is in the above premises, Sri Mohanty, learned counsel prayed this Court for interfering in the impugned order and setting aside the same. 4. Sri A.K.Mishra, learned Additional Government Advocate appearing for the State-opposite parties attempted to justify the impugned order on the premises that Nityananda Beja was never inducted as a tenant by the ex-Intermediary and was never in possession of the case land before or on the date of vesting. The ex-Intermediary had even never submitted any ekpadia showing Nityananda Beja as a tenant. The zamabandi relied on by the petitioner is also a forged one and fabricated document to settle the case of the petitioner. Sri Mishra, learned Additional Government Advocate contended that in fact there is no such zamabandi opened involving the disputed plot. The disclosures and the rent receipt are completely different from the requirements under Sections 65 and 66 of the Orissa Tenancy Act and not on rent receipt from Schedule-II. It is also stated that as per the record-of-right published in the year 1931 in favour of the ex-Intermediary, Madhusudan Dev, involving Plot No.294 showing Kisam of the land as "Jhati Jungle" measuring Ac.52.50 decimals. The vesting has been undertaken following a notification dated 27.11.1952 issued by the Government in Revenue Department in exercise of power under Sub-section 1 of Section 3 of the O.E.A. Act, 1951. The record-of-right published in the year 1973 disclosing Government of Orissa as the owner of the land. The vesting has been undertaken following a notification dated 27.11.1952 issued by the Government in Revenue Department in exercise of power under Sub-section 1 of Section 3 of the O.E.A. Act, 1951. The record-of-right published in the year 1973 disclosing Government of Orissa as the owner of the land. Sri Mishra, learned Additional Government Advocate referring to the provision under Subsection 5 of Section 5 of the Orissa Tenancy Act contended that even assuming that Nityananda Beja is tenure-holder and having a right of intermediary but such right extinguished on coming into force of the O.E.A. Act following the provision under Section 8-A (3) of the O.E.A. Act, 1951 on failure of filing of claims within the specified period thereunder. The Settlement Authority having a limited role is not vested with the power to declare the status of a person, land having vested in the year 1952, revision filed under Section 15(b) of the O.E.A. Act in the year 1990 after lapse of 38 years, the revision was also otherwise liable to be dismissed on account of delay. It is also contended by Sri Mishra that though originally the land records were available in Cuttack Tahasil but the same were transferred to Bhubaneswar Tahasil in between 1969-70. Sri Mishra, therefore, contended that Annexure-1, a zamabandi prepared in the name of Nityananda Beja obtained from Cuttack Tahasil in the year 1981 appears to be concocted and fabricated. Ultimately, Sri Mishra, learned Additional government Advocate contended that even assuming the land was leased out in favour of Nityananda Beja in the year 1949 cannot confer the status of raiyat and cannot be treated as transfer of interest of intermediary to the lessee and the lease has automatically expired on the vesting of the land. All these aspects having taken into account of the authority dealing with the application under Section 15(b) of the Orissa Survey & Settlement Act, Sri Mishra, ultimately contended that there is no infirmity in the impugned order leaving any scope for this Court for interfering in the same. 5. Even though a set of counsel appearing on behalf of opposite party nos.1, 2 and 4, nobody is present in Court at the time of hearing. The matter is decided only hearing the submission of learned counsel for the petitioner and learned counsel for the State and also taking into consideration of the materials available on record. 6. 5. Even though a set of counsel appearing on behalf of opposite party nos.1, 2 and 4, nobody is present in Court at the time of hearing. The matter is decided only hearing the submission of learned counsel for the petitioner and learned counsel for the State and also taking into consideration of the materials available on record. 6. Considering the rival contentions of the parties, this Court finds that there is no dispute that Madhusudan Dev, the ex-Intermediary was the original recorded owner of the land in question. It is at this stage, considering the claim of the petitioner involving a lease in between the exIntermediary and the father of the petitioner, namely, Nityananda Beja, this Court finds the ex-Intermediary granted the aforesaid land in favour of Nityananda Beja through a Hata Patta. Copy of the ekpadia appears to have been obtained in the year 1981. The ekpadia has no disclosure as to when this ekpadia was prepared. But, however, it discloses that the land was transferred to Nityananda Beja showing Nityananda Beja to be in the capacity of raiyat. Zamabandi was also created as appearing at Annexure-2, but, however, appearing to be obtained from the office of the Tahasildar, Cuttack in the year 1981 when the records were transferred to the Bhubaneswar Tahasil. So authenticity of such document is also remain in doubt. Perusal of Annexure-3, a Nadabipatra, filed by the petitioner, it appears, the relinquishment deed at Annexure-3 has a clear indicator that the person relinquishing the property indicated therein to have receive the property involved by virtue of a permanent patta. Similarly, record-of-right vide Annexure-4 finally published under the provision of Orissa Survey & Settlement Act, 1958 and the rules therein on 7.6.1988 and the revision herein was filed in the year 1990. From the rival contentions of the parties, this Court finds the claim of the petitioner solely based on a Hata Patta, submission of ekpadia, rent roll again comes of a zamabandi thereby. Petitioner also claims its protection over the disputed property under Section 8(1) of the O.E.A. Act. It is at this stage, looking to the contest of the State-opposite parties in the court below, it appears in O.E.A. Misc. Case No.297 of 1979 filed by the petitioners therein, the O.E.A. Collector settled the land in favour of Nityananda Bija. Petitioner also claims its protection over the disputed property under Section 8(1) of the O.E.A. Act. It is at this stage, looking to the contest of the State-opposite parties in the court below, it appears in O.E.A. Misc. Case No.297 of 1979 filed by the petitioners therein, the O.E.A. Collector settled the land in favour of Nityananda Bija. But during course of submission, there is a clear admission by Sri A.K.Mishra, learned Additional Government Advocate that the disputed property involved therein is not only outside property claimed herein but also has an outcome of a separate lease. Therefore, this Court finds there has been much emphasis by the Settlement Commissioner on the decision involving O.E.A. Misc. Case No.197 of 1979 making the order impugned an outcome of improper consideration. 7. In view of the above, this Court observes, for the decision involving O.E.A. Misc. Case No.197 of 1979 having no bearing on Section 15(b) of the Orissa Survey & Settlement Act Proceeding, it was incumbent upon the Commissioner to decide the claim of the petitioner and objection of the opposite parties on the basis of other materials available on record. Looking to the observations of the Commissioner in the final part of the order starting from page 23 to 25 of the order, this Court finds the entire decision involving application under Section 15(b) of the Orissa Survey and Settlement Act is solely based on the outcome involving O.E.A. proceeding. 8. In the circumstance, this Court while interfering in the impugned order, sets aside the same and remits the matter back to the Commissioner, Consolidation & Settlement to re-adjudicate the Settlement Revision Case No.294 of 1990 but remaining within the parameters of the powers on such authority available under Section 15(b) of the Orissa Survey & Settlement Act, 1958 taking into the documents involving the case at hand but, however, by giving opportunity of hearing to both the sides. It will be open to the parties to rely on the citations cited herein before the competent authority which shall also be taken into consideration while dealing with the matter and also keeping in view the serious challenge to the authenticity of the records produced by the petitioner. It will be open to the parties to rely on the citations cited herein before the competent authority which shall also be taken into consideration while dealing with the matter and also keeping in view the serious challenge to the authenticity of the records produced by the petitioner. This Court while remanding the matter on setting aside of the order at Annexure-5 makes it clear that it has not expressed any opinion on the merit of the case and the case requires to be examined afresh but without being influenced by the observations already made in the impugned order. In the circumstances, there is no order as to cost.