Research › Search › Judgment

Orissa High Court · body

2018 DIGILAW 52 (ORI)

Lily Nanda v. State of Odisha

2018-01-09

S.K.MISHRA

body2018
ORDER W.P.(C) No.4566 and 4565 of 2017. 09.01. 2018. Heard learned Counsel for the petitioners and learned Addl. Standing Counsel. 2. In both the writ applications, the petitioners assail the order passed by the learned Member, Board of Revenue, Odisha, Cuttack on 27.12.2016 in O.S.S. Case No.1102 and 1101 of 2015 dismissing the claims of the petitioners to record the land bearing Plot No.1215/1390 measuring an area of Ac.0.100 decimal recorded as Stitiban in Khata No.326/83 of Bhubaneswar. 3. Facts of the case are not in dispute. In the year, 1968-69, lease record of rights called “Dakhal Satwa Sunya” status was recorded in the name of Kedar Nath Nanda as per the khata bearing No.327/25 having Plot No.1215/1389 measuring an area Ac.0.100 decimal. On 04.11.1968, lease agreement was executed. In the year, 1968-69, another lease record of rights was recorded in the name of Narayan Nanda, who happens to be the younger brother of Kedar Nath Nanda, as per the Khata being No.327/26 having plot No.1215/1390 measuring an area of Ac.0.100 decimal. On 20.11.1969, another lease agreement was executed in favour of Narayan Nanda. On 24.04.1974, Narayan Nanda sold the land in favour of Kedar Nath Nanda. The said land is Plot No.1215/1390 pertaining to Khata No.326/83 of Mouza – Ghatika, Bhubaneswar. In 1976, the Tahasildar, Bhubaneswar mutated the land records in favour of Kedar Nath Nanda. Thereafter, the petitioners were in possession of both the pieces of land have paid the rent receipts to the authorities. 4. While the matter stood thus, the settlement operation started for Bhubaneswar and the draft record of rights was prepared in favour of the Kedar Nath Nanda having an area Ac.0.200 decimal. 5. On 22.07.2011, Kedar Nath Nanda executed a gift deed in favour of his son Samir Ranjan Nanda. On that day also, he executed another gift deed in favour of his daughter-in-law, Lily Nanda. In both the cases, on 13.08.2012. BDA approved the building plan. Thereafter, they constructed house and residing there. On 27.12.2016, an application filed by Samir Ranjan Nanda and Lili Nanda for preparing the record of rights in their name with respect to the two plots, was dismissed and it was ordered that the record of rights be prepared in the name of G.A. Department. 6. The learned Addl. Thereafter, they constructed house and residing there. On 27.12.2016, an application filed by Samir Ranjan Nanda and Lili Nanda for preparing the record of rights in their name with respect to the two plots, was dismissed and it was ordered that the record of rights be prepared in the name of G.A. Department. 6. The learned Addl. Standing Counsel very emphatically argued that the lease deed prohibits a 3rd party transfer and, therefore, the sale and gifts are void ab initio and consequently, the donee has not acquired any title. He drawn attention of the Court to Clause 10 of the agreement in both the cases. It is appropriate to take note the extra words used. “ 10. That the lessee shall not by any means or in any way whatsoever bequeath, mortgage, charge, transfer assign sub-let or part with possession of his holding or any portion thereof to any person without first obtaining the written permission of the Tahasildar, on behalf of the Collector, Puri. Any bequeath, transfer, assignment sub-letting and parting with possession of the holding or part thereof without the permission of the Tahasildar on behalf of the Collector, Puri and he may determine this lease and take khas possession of the holding or part thereof. In case of unauthorised bequeath taking effect from the date of the lease the option to take khas possession will accrue on the death of the lessee.” 7. Basing on this clause, it was argued by the learned Addl. Standing Counsel for the State that the sale and both gift deeds are void ab-initio and it will not create any title in favour of the vendee and the subsequent donees. However, a careful examination of the aforesaid clause shows that it stipulates any bequeath, mortgage, charge, transfer assign sub-let of holding or any portion thereof without the permission of the Tahasildar on behalf of the Collector, Puri, he may determine the lease and take khas possession of the holding or part thereof. It is provided that in case of unauthorised bequeath taking effect from the date of lease the option to take khas possession will accrue from the death of lessee. So, the clause itself does not provide that a transfer without permission of the revenue authorities, will be void, rather, the revenue authorities with a power to cancel the lease and take possession thereof. So, the clause itself does not provide that a transfer without permission of the revenue authorities, will be void, rather, the revenue authorities with a power to cancel the lease and take possession thereof. But in case of a will, the said cancellation of lease and taking khas possession will accrue on the death of the lessee. Thus, the revenue authority has the jurisdiction to cancel the lease and take possession thereof after following the procedure established by law. The revenue authorities empowered to carry out settlement operation do not have the jurisdiction to come to a conclusion that conditions of the lease deed has been violated and all subsequent transfers are void. Thus, the cancellation of lease deed and taking possession thereof can only be undertaken by the Collector and the Tahasildar may take steps on behalf of the Collector. 8. Any recording made pursuant to the O.E.A.Act, O.P.L.E. Act and O.G.L.S. Act cannot be set at naught by the survey & settlement authorities. Hence, this Court is of the opinion that the order passed by the learned Member, Board of Revenue is illegal in both the cases and hence, the writ applications are allowed. 9. The orders dated 27.12.2016 passed in OSS Case No.1101/2015 and OSS Case No.1102/2015 are hereby quashed. The preparation of record of rights in favour of the G.A. Department is hereby quashed. The Tahasildar, Bhubaneswar is directed to prepare fresh records of rights in favour of the present petitioners within a period of sixty working days after expiry of the period of limitation of appeal. There shall be no order as to costs. Both the writ applications are disposed of. Urgent certified copy of this order be granted as per rules. Applications disposed of.