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2018 DIGILAW 530 (ORI)

BIJAY KUMAR BAL v. COLLECTOR, PURI

2018-05-09

BISWANATH RATH

body2018
JUDGMENT : Biswanath Rath, J. - This writ petition involves a challenge to the order dated 3.8.2009 passed by the learned Member, Board of Revenue, Orissa in OSS Case No.43 of 2003. 2. Short background involved in the case is that the property in question appertaining to Sabik Khata No.109, Plot No.961 measuring an Area Ac.26.13 decimals out of Ac.230.92 decimals corresponding to Hal Khata No.175, Plot No.1199 measuring an area of Ac.7.25 decimals, Plot No.1205/1221 measuring an area of Ac.18.88 decimals of Mouza- Khalakata under Nimapara Police Station in the district of Puri originally belong to State Government and the kisam of the land was recorded as Anabadi. The petitioner claimed that the ex-Intermediary, namely, Dhaneswar Routray and others on 14.4.1939 through Hata Patta leased out the said land to the father of the petitioner. After death of Bansidhar Bal, the father of the petitioner, the petitioner is in possession of the suit land and he has been paying rent under Jamabandi No.102/86. This fact also gets discloses from the Tenant Ledger No.102/86. Petitioner while admitting that the suit land was part of Anabadi land, which has been leased out to the father of the petitioner by the ex-Intermediary through Hata Patta taking place much prior to the date of vesting of the land. Tenant ledger has also been opened accordingly. It further reveals from the settlement operation in the locality, the Tahasildar, Nimapara-opposite party no.4 filed a case bearing Suit No.4562/1983 before the Additional Settlement Officer, Puri to record the suit land in favour of the State Government. The Additional Settlement Officer disallowed the claim of the Tahasildar on 19.2.1985 appearing at Annexure-1. Being aggrieved by the order passed by the Additional Settlement Officer, opposite party no.1 preferred a revision before the Member, Board of Revenue vide OSS. Case No.43 of 2004. The present petitioner appeared in the case and the case was disposed of allowing the revision vide Annexure-2 impugned herein. 3. Sri Samal, learned counsel appearing for the petitioner challenged the impugned order on four counts. Case No.43 of 2004. The present petitioner appeared in the case and the case was disposed of allowing the revision vide Annexure-2 impugned herein. 3. Sri Samal, learned counsel appearing for the petitioner challenged the impugned order on four counts. Firstly the order of the revisional authority is contrary to the material available on record, secondly there is manifest error involving the impugned order, thirdly the proceeding initiated under Section 32 of the Orissa Survey & Settlement Act was hopelessly barred and lastly learned counsel for the petitioner challenged the order on the premises that when the revision petitioner attributed fraud against the petitioner, it becomes the duty of the revisional petitioner to establish the fact of fraud on the premises that the order impugned suffers on account of all the four counts, learned counsel for the petitioner requested this Court for interfering in the impugned order and setting aside the same. 4. Sri K.K.Mishra, learned Additional Government Advocate appearing for the State-opposite parties apart from reiterating the grounds taken in the counter affidavit filed by the opposite party nos.1 to 4 and the plea taken before the revisional authority also contended that the disputed land was recorded as Anabadi land of ex-Intermediary, namely, Dhaneswar Routray in the year 1939. Sri Mishra alleged that on coming into effect the Orissa Estate Abolition Act, neither any ekpadia was submitted by the ex-Intermediary nor any such documents were seized by the O.E.A. Collector from the ex-Intermediary following the provision at Section 5 (i) of the Orissa Estate Abolition Act. The settlement operation was started much after the vesting of the land with the Government and not final recordof-right was published in favour of the petitioner on the basis of alleged unregistered Hata Patta submitted before the Settlement Authority on 23.8.1980. The Tahasildar entertained an application purportedly under Section 8(i) of the Orissa Estate Abolition Act and the Additional Tahasildar, Nimapara allowed the Misc. Case No.859 of 1981without obtaining confirmation order from the Member, Board of Revenue required under Section 5 (i) of the Orissa Estate Abolition Act. Being aggrieved, the Tahasildar filed an appeal registered as Suo Motu Appeal No.4652 of 1983 under Section 22 (A) of the Orissa Survey & Settlement Act challenging the not final record-of-right published in favour of the petitioner. Being aggrieved, the Tahasildar filed an appeal registered as Suo Motu Appeal No.4652 of 1983 under Section 22 (A) of the Orissa Survey & Settlement Act challenging the not final record-of-right published in favour of the petitioner. On 19.2.1985, the appeal filed by the State was dismissed for the availability of unregistered Hata Patta thereby accepting the tenancy of the petitioner's father under the ex-Intermediary. After the Collector, Puri came to know the above development filed the revision under Section 32 of the Orissa Survey & Settlement Act taking the plea that since the disputed land was in the nature of Anabadi, popularly known in the locality as "Jhaun Bana" being no agriculture character, there was no scope for the ex-Intermediary for leasing out such land. Sri Mishra, learned Additional Government Advocate while disputing the Hata Patta, claimed to have been granted by the ex-Intermediary in favour of the petitioner, also contended that for the nature of the land, there was no occasion for leasing out of such land by the ex-Intermediary. Ekpadia, if any, showing such land has no existence in the eye of law, learned Additional Government Advocate also contended that there was no Ekpadia submitted by the ex-Intermediary nor the O.E.A. Collector seized any such documents from the ex-Intermediary. On the entertainment of the application under Section 8 (1) of the Orissa Estate Abolition Act, Sri K.K.Mishra, learned Additional Government Advocate submitted that for the provision contained in Section 5(i) of the Orissa Estate Abolition Act, the Misc. Case No.859 of 1981 should not have been considered without obtaining the confirmation order from the Member, Board of Revenue. Further, on the premises that the ekpadia, if any, available being a manufactured document, Sri Mishra, learned Additional Government Advocate contended that opening of tenant ledger and acceptance of rent, all are eye wash and as a result of production of fraudulent document, Sri Mishra thus contended that for the challenging of fraud played by the petitioner in the previous proceeding and after coming to know that a fraud has been played involving such property, the Collector has no other option than to initiate the proceeding under Section 32 of the Orissa Survey & settlement Act, 1985. Taking reliance of the decisions rendered in the cases of State of Orissa & others v. Brundaban Sharma & Anr., (1995) Supp3 SCC 249, State of Orissa v. Nityananda Satpathy & others, (2003) 7 SCC 146 , State of Orissa & others v. Harapriya Bisoi, (2009) 12 SCC 378 and in the case of State of Orissa v. Baidyanath Jena (since dead) represented through his legal heirs and others, (2013) 116 CutLT 805, Sri Mishra, learned Additional Government Advocate submitted that for the observation contained in the revisional order and the support of the decision relied on by the State, there is no infirmity in the impugned order thereby requiring any interference of this Court. 5. Miss.S.Mohanty, learned counsel appearing for the intervenor while supporting the stand taken by the petitioner submitted that there has been illegal consideration of the case of the petitioner by the revisional authority and for delay in the institution of the proceeding under Section 32 of the Orissa Survey & Settlement Act, the revision ought to have been dismissed by the revisional authority. 6. Considering the rival contentions of the parties, this Court finds at the first instance, petitioner's claim is solely based on issuance of a Hata Patta in favour of his father, purported to have been issued on 14.4.1939 by the ex-Intermediary. Petitioner's father also claimed to have been paying rent under Jamabandi No.102/1486 which also appears to find place in the Tenant Ledger No.102/86. Considering all these facts, the Additional Settlement Officer rejected the proceeding initiated by the Tahasildar, Nimapara vide order at Annexure-1. A revision was also preferred before the Member, Board of Revenue bearing OSS Case No.43 of 2003 under Section 32 of the Orissa Survey & Settlement Act. Taking into consideration the allegations of the State Counsel as borne from the revision petition, it appears the State all through claimed that the land was in the nature of Anabadi more specifically in the nature of Jhaun Bana. Petitioner has also admitted all through in the lower court proceeding along with a specific admission in paragraph-6 of the writ petition that disputed land was a part of Anabadi land for no dispute in between the parties and the land got vested with the State under the provision of the Orissa Estate Abolition Act. Petitioner has also admitted all through in the lower court proceeding along with a specific admission in paragraph-6 of the writ petition that disputed land was a part of Anabadi land for no dispute in between the parties and the land got vested with the State under the provision of the Orissa Estate Abolition Act. This Court finds for the admitted nature of land being Anabadi, there was no question of ex-Intermediary having any right of lease of the Anabadi land. The intermediary interest need to be vested under the Orissa Estate Abolition Act, 1951 includes homestead means a dwelling house used by the intermediary for the purposes of his own residence or for the purpose of letting on rent together with any courtyard, compound, garden, orchard and out buildings attached thereto and also includes any tank, library and place of worship appertaining to such dwelling house but does not include any building comprised in such estate and used primarily as office or kutchery for the administration of the estate on and from the first day of January, 1946 and Khas Possession with reference to the possession of an Intermediary of any land used for agricultural or horticultural purposes, means the possession of such Intermediary by cultivating such land or carrying on horticultural operations thereon himself with his own stock or by his own servants or by hired labour or with hired stock. For the claim of the parties that the land is in the nature of Anabadi, particularly, called as "Jhaun Bana", this Court finds neither the intermediary had any right to lease the land in question nor looking to the status of the land, the disputed land was in a position to be leased out. Further, looking to the materials available on record, this Court finds for the provision under Section 5 (j) of the Orissa Estate Abolition Act, the exIntermediaries were mandated to handover compulsorily all the records of tenancy (called "Ekpadia" on local parleyance) of the land of the ex-Estate on vesting failing to so, Collectors were authorized under law to seized such records from them. There is no seizure of of any such documents admittedly. 7. There is no seizure of of any such documents admittedly. 7. In the circumstances, this Court looking to the provision at Section 8 (1) of the Orissa Estate Abolition Act finds it becomes automatic to treat a person, who immediately before the date of vesting of an estate in the State Government was in possession of any holding as a tenant, shall be deemed to be a tenant under the State. This Court makes it clear that there cannot be a tenant in respect of an Anabadi Land. There is no provision under Section 8(1) of the Orissa Estate Abolition Act to accept applications from the tenants in respect of Anabadi Land and declare them as tenant. For the clear material available that neither the exIntermediary submitted any ekpadia nor there was seizure of any such document by the Tahasildar under the Orissa Estate Abolition Act and for the nature of land involved herein, this Court finds decision involving the petitioner declaring the petitioner as a tenant by the Tahasildar becomes bad and without competency. 8. From the pleadings, this Court also finds while the petitioner claiming that he became a tenant under Section 8(1) of the Orissa Estate Abolition Act, but at the same time, the petitioner also claimed that for his long possession over the disputed property, the petitioner inherits the same by virtue of Sections 23 and 30 of the Orissa Tenancy Act. This Court finds the petitioner being conscious that he is not likely to get protection under Section 8 of the Orissa Estate Abolition Act, he had very consciously made the alternate claim. Now coming to the finding on the question of limitation and justifying such question showing of a decision by the petitioner of this Court rendered in W.P.(C). No.365 of 2002, this Court finds the decision referred to by the petitioner is completely distinguishable for the allegation of the State that the opening of tenant ledger, payment of rent, all are as a result of fraud practice by the petitioner and the decision relied on by the learned counsel for the petitioner has no application to the case. This Court here also finds the revision involved herein was initiated under Section 32 of the Orissa Survey & Settlement Act, 1958. This Court here also finds the revision involved herein was initiated under Section 32 of the Orissa Survey & Settlement Act, 1958. Though the provision did not stipulate any time frame in initiating such proceeding but considering the involvement of allegation of fraud and State having succeeded in establishing the allegation of fraud in the revision record, this Court finds the delay in filing the revision under Section 32 of the Orissa Survey & Settlement Act was condonable. The claim of the State opposite parties on the question of limitation gets support from the decision rendered in the case of State of Orissa & others v. B Brundaban Sharma & Anr., (1995) Supp3 SCC 249, where the Hon'ble Supreme Court in categoric terms held validity of a non est order can be questioned in any proceeding at any stage and thereby condoned the delay of 27 years in filing the revision. This Court finds the claim of the State opposite parties also gets support of the decision rendered in the case of State of Orissa & others v. Harapriya Bisoi, (2009) 12 SCC 378 . Perusing the revisional order, this Court finds the revisional authority having taking into consideration all the issues involved herein answered the same correctly. Considering the submission of learned counsel for the petitioner on the allegation of finding of the revisional authority is contrary to the materials available on record, this Court observes for the recording of the averments therein is with regard to nonfiling of ekpadia before the revisional court and it should not be misconstrued for any other purpose. 9. For the observation made hereinabove, the reasoning assigned by the revisional authority and the support of the decision to the case of the opposite parties indicted hereinabove and the provisions of the Orissa Estate Abolition Act as well as the Orissa Survey & Settlement Act, the claim of the State opposite parties, this Court while finding that there is no infirmity in the impugned order finds no scope to interfere in the impugned order in exercising power under Article 227 of the Constitution of India. 10. In the result, the writ petition fails. However, there is no order as to cost. Final Result : Dismissed