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2021 DIGILAW 255 (ORI)

Prafulla Kumar Mishra v. State Of Odisha

2021-06-18

K.R.MOHAPATRA

body2021
ORDER K.R. Mohapatra, J. - Petitioners being aggrieved by order dated 25.05.2017 (Annexure-8) passed by the Additional SubCollector, Jajpur (OP No.3) in Settlement Appeal [Suit No.101 of 2017 (84 of 2017)] have filed this Writ Petition in which, the claim of the Petitioners to record Hal Plot No.113 under Hal Khata No.182 to an extent of Ac.0.20 decimal situated in Mouza Umapada under Vyasanagar tahasil in the district of Jajpur (for short, 'the case land') in their name has been rejected. 2. Short narration of facts as reveal from the averments made in the writ petition are that, one Sri Jogi Mallick being a landless person was settled with Sabik Plot No.1/491 under Khata No.126 to an extent of Ac.1.00 decimal in mouza Umapada under Vyasanagar tahasil in the district of Jajpur in Lease Case No.58 of 1963-64. Said Jogi Mallick executed a gift deed in favour of his son-in-law, namely, Sri Hrusikesh Mallick on 23.01.1974 in respect of the lease hold property and delivered possession thereof to him. Due to legal necessity, said Hrusikesh Mallick after obtaining permission from the competent authority under Section 22 of the Orissa Land Reforms Act, 1960 (for short, 'the OLR Act') alienated the case land out of the lease hold property in favour of the father of the petitioners, namely, Pravakar Mishra vide Registered Sale Deed dated 06.05.1974. Father of the petitioners thereafter went on paying rent in respect of the case land. While the matter stood thus, the settlement operation started in the area. During settlement operation, Yadast was prepared in the name of Pravakar Mishra and draft R.O.R. was also published under Section 12 of the Orissa Survey and Settlement Act, 1958 (for short, 'the Settlement Act') under Annexure-6 in his name under stithiban status fixing the rent. In the meantime, the Tahasildar, Sukinda issued notice (Annexure-9) to the original lessee, namely, Jogi Mallick to submit his willingness to part with an area of Ac.0.17.5 decimals out of his lease hold property for construction of a stadium. Since the father of the petitioners had already purchased the land by then, he filed Lease Case No.6 of 2009 before the Tahasildar, Vyasanagar to settle the land in his name and give an area of Ac.0.20 decimal in lieu of the acquisition of land for construction of stadium. Since the father of the petitioners had already purchased the land by then, he filed Lease Case No.6 of 2009 before the Tahasildar, Vyasanagar to settle the land in his name and give an area of Ac.0.20 decimal in lieu of the acquisition of land for construction of stadium. Pursuant to the direction of the Tahasildar, Vyasanagar in Lease Case No.6 of 2009, an enquiry was conducted. The Revenue Inspector, Kantajhari submitted his report on 06.05.2009 (Annexure-10) stating therein that since father of the petitioners was in occupation of the case land which is required for construction of stadium, an alternative site should be settled with him. While the matter stood thus, on the basis of letter No.1027 dated 21.02.1991 issued by the Tahasildar, Vyasanagar-opposite party No.4, the Assistant Settlement Officer, Jajpur initiated Objection Case No.6142 and directed the case land to be recorded in Government khata under 'Anabadi' status vide his order dated 30.04.1991 (Annexure-7). Neither the father of the petitioners nor the petitioners were served with notice nor given opportunity of hearing in the said objection case. Thus, the petitioners were ignorant about the order under Annexure-7. 2.1 Accordingly, the case land was recorded in the name of the Government. The petitioners subsequently came to know about the order passed by the Assistant Settlement Officer under Annexure-7 and moved this Court in W.P.(C) No. 4633 of 2017 assailing the said order. This Court, vide order dated 21.03.2017, disposed of the writ petition granting liberty to the petitioners to file an appeal under Section 22 of the Settlement Act assailing the order passed under Annexure-7. Accordingly, the petitioners filed appeal, which was registered as Suit No.101 of 2017. The Additional Sub-Collector, Jajpur-opposite party No.3, on verification of the materials placed before him, came to hold that the Hal Plot No.113 to an extent of Ac.0.200 decimals with Gharabari kissam corresponds to Sabik Plot No.1/491(P) under Hal Khata No.354 as (Rakhita). The Jamabandi No.311 stood recorded in the name of Pravakar Mishra of village-Sampur to an extent of Ac.0.20 decimals. The Jamabandi No.311 stood recorded in the name of Pravakar Mishra of village-Sampur to an extent of Ac.0.20 decimals. He also verified the registered gift deed executed by said Jogi Mallick in favour of his son-in-law, the registered Sale Deed No.4088 dated 06.05.1974 executed by Sri Hrusikesh Mallick in favour of Pravakar Mishra in respect of the case land, the tenants ledger prepared in the name of Pravakar Mishra, the death certificate of Pravakar Mishra as well as corresponding legal heirs certificates issued in favour of the petitioners and also the Jamabandi No.126/10/2 of the year 1988-89. On verification, he found those documents to be valid under law. However, holding that the Jamabandi prepared in the name of the father of the petitioners cannot be accepted as it has not been confirmed by the Member Board of Revenue, Odisha, Cuttack under Section 5(1) of the Orissa Estates Abolition Act, 1951 (for short, the OEA Act') Act in terms of ratio in the case of State of Odisha and others -v-Brudaban Sharma, reported in 1995 Supp. (3) SCC 249 and also State of Odisha and others -v- Harapriya Bisoi, reported in (2009) 12 SCC 378 . Accordingly, the said appeal was dismissed vide order dated 25.05.2017 (Annexure-8). Assailing the same, this writ petition has been filed. 3. The Tahasildar, Vyasanagar filed counter affidavit on behalf of opposite party Nos.1, 2 and 4 refuting the case of the petitioners. It is specifically averred therein that Sabik Plot No.1 of Mouza Umapada was recorded in the Government Khata under kissam jungle. Thus, any transaction made out of said land without due permission of the competent authority is void. Payment of rent by Pravakar Mishra does not confer any right, title and interest over a jungle kissam of land. In view of the above, the Tahasildar, Vyasanagar had rightly filed the objection case before the Settlement Authority on the ground that the documents produced by the petitioners do not disclose the plot number of the case land. Further, the tenants' ledger produced by the petitioners has shown plot number to be 1/491. No evidence has been produced by the petitioners to show that the case land has been settled under the O.E.A. Act in favour of said Sri Jogi Mallick. Further, the tenants' ledger produced by the petitioners has shown plot number to be 1/491. No evidence has been produced by the petitioners to show that the case land has been settled under the O.E.A. Act in favour of said Sri Jogi Mallick. Even if, such a settlement was made, the same is bad in law and without jurisdiction in absence of any confirmation by the Member Board of Revenue, Odisha, Cuttack under Section 5(1) of the O.E.A. Act. Further, the land recorded under jungle kissam cannot be recorded in favour of private individuals without any valid order by the competent authority. The father of the petitioners, namely, Pravakar Mishra had also filed Lease Case No.6 of 2009 and pursuant to the direction in W.P.(C) No.20484 of 2016, the Tahasildar, Vyasanagar had disposed of the said lease case vide order dated 21.07.2017 (Annexure-A/4) to the counter affidavit. Further, in view of the ratio in the case of Brudaban Sharma (supra) and also Harapriya Bisoi (supra), the claim of the petitioners cannot be entertained as the settlement in favour of Sri Jogi Mallick was not in accordance with law. Rejoinder to the counter affidavit and reply to the same has also been filed bringing certain documents on record for adjudication of the case. 4. Miss Mahapatra, learned counsel for the petitioners laid her submission reiterating the averments made in the writ petition and rejoinder. Miss Mahapatra further submitted that the lease granted in favour of Sri Jogi Mallick was never challenged. Further, the opposite parties in their counter affidavit do not dispute the registered gift deed executed by the lessee, namely, Sri Jogi Mallick in favour of his son-in-law, namely, Sri Hrusikesh Mallick as well as the registered sale deed executed by said Sri Hrusikesh Mallick in favour of the father of the petitioners, namely, Pravakar Mishra. The main plank of objection raised by the State Government is that the land was earlier recorded as jungle kissam of land and could not have been settled in favour of the Sri Jogi Mallick and further no confirmation under Section 5(1) of the O.E.A. Act having not been made by the Member Board of Revenue, Odisha, Cuttack, the lease granted in favour of Sri Jogi Mallick cannot sustain in the eyes of law. The contentions raised by the State Government are without any basis, inasmuch as the Settlement authority cannot sit over the lease granted in favour of said Jogi Mallick. Further, the leasehold property being settled in favour of said Jogi Mallick under lease principles, provisions under Section 5(1) of the O.E.A. Act is not applicable to the case at hand. 4.1 She further contended that the Objection Case No. 6142 was initiated on the file of Assistant Settlement Officer on the basis of a letter No.1027 dated 21.02.1991 issued by the Tahasildar, Sukinda. Opportunity of hearing was neither given to the petitioners nor their father while entertaining the objection case. The order in the said objection case was passed on 30.04.1991 under Annexure-7 without stating the reasons for directing to record the land in the name of the Government. It is her submission that when the draft R.O.R. under Section 12 of the Settlement the Act had already been published in the name of the father of the petitioners he should have been given an opportunity of hearing in the said objection case. However, having learnt about such order, the petitioners filed W.P.(C) No.4633 of 2017 before this Court assailing the said order, which was disposed of on 21.03.2017 granting liberty to the petitioners to file an appeal under Section 22 of the Settlement Act. Accordingly, the petitioners filed an appeal under Section 22 of the Settlement Act, which was registered as Suit No.101 of 2017. On perusal of the impugned order passed in said Suit No.101 of 2017 under Annexure-8, it reveals that the Additional Sub-Collector, Jajpur-opposite party No.3 on verification of the documents as well as the para-wise report, found the documents to be valid under law and can be taken into consideration. However, only on the ground that Jamabandi was prepared without getting confirmation from the Member Board of Revenue, Odisha, Cuttack under Section 5(1) of the O.E.A. Act, disallowed the said appeal vide order dated 25.05.2017 (Annexure-8). Thus, the impugned order is not sustainable in the eyes of law. 5. It is her contention that the plea of the State Government to the effect that the land was recorded under jungle kissam do not borne out from the record and for the first time before this Court such a plea has been taken. Thus, the impugned order is not sustainable in the eyes of law. 5. It is her contention that the plea of the State Government to the effect that the land was recorded under jungle kissam do not borne out from the record and for the first time before this Court such a plea has been taken. Such a plea is also not sustainable in view of the fact that utilizing the case land, a stadium has already been constructed. 5.1 Accepting the lease in favour of said Jogi Mallick to be a valid one, the Tahasildar, Sukinda had issued notice under Annexure-9 to said Jogi Mallick and others to give consent for acquisition of the land for construction of the stadium and for allotment of the alternate site for the same. Since the father of the petitioners had already purchased the land by then, he filed Lease Case No. 6 of 2009 to allot an alternate site in his favour in view of acquisition of the case land for construction of the stadium. However, the Government has taken a plea that such lease case has already been disposed of. In that view of the matter, the impugned order under Annexure-8 is not sustainable in the eyes of law and a direction be made to the Settlement Authority to publish the final R.O.R. and settle the case land in favour of the petitioners, or in the alternative to settle a suitable plot with similar measurement and amenities to the petitioners. 6. Mr. Mishra, learned Additional Government Advocate for the State vehemently objected to such submission of learned counsel for the petitioners and reiterated the averments made in the counter affidavit as well as reply to the rejoinder affidavit. His main plank of argument was that the land claimed by the petitioners does not co-relate to the land leased out in favour of said Jogi Mallick. It is further contended that the petitioners by practicing fraud have managed to get their names entered in the settlement record. He further contended that the land is a jungle kissam of land and could not have been settled in favour of said Jogi Mallick and in that premise late Pravakar Mishra or his legal heirs, namely, petitioners cannot lay any claim over the same. It is further contended that the petitioners are taking different plea at different points of time. He further contended that the land is a jungle kissam of land and could not have been settled in favour of said Jogi Mallick and in that premise late Pravakar Mishra or his legal heirs, namely, petitioners cannot lay any claim over the same. It is further contended that the petitioners are taking different plea at different points of time. As such, they do not deserve any discretion of this Court. Supporting the impugned order, he contended that no confirmation having been made to lease out the land in question in favour of said Jogi Mallick under Section 5(1) of the O.E.A. Act, the basis of the claim of the petitioners fails, as the lease in favour of said Jogi Mallick was without jurisdiction and is void. Hence, he prays for dismissal of the writ petition. 7. Heard learned counsel for the parties at length and scrutinized the materials on record. On perusal of the impugned order under Annexure-8, it appears that the Additional Sub-Collector, Jajpur-opposite party No.3 while adjudicating Suit No.101 of 2017 filed by the petitioners under Section 22 of the Settlement Act, has categorically stated that he has verified the Jamabandi No.311 stood recorded in the name of Pravakar Mishra, Registered Gift Deed bearing No. 451 dated 23.01.1974 executed by lessee, said Jogi Mallick in favour of his son-in-law, namely, Hrusikesh Mallick in respect of Sabik Plot No.1/491(P) to an extent of Ac.1.00 decimals. He also verified the Registered Sale Deed No.4088 dated 06.05.1974 executed by Hrusikesh Mallick in favour of the father of the petitioners, namely, Pravakar Mishra, the tenants' ledger, page 222 of which discloses that it has been prepared in the name of Pravakar Mishra in respect of Khata Nos. 126/10/2 to an extent of Ac.0.20 decimals. He has also verified the death certificate of said Pravakar Mishra dated 20.06.2011 as well as the legal heirs certificate issued in favour of the petitioners. He further verified the rent receipt in respect of Jamabandi No.126/10/2 of the year 1988-89. On verification of the same, he found the documents to be valid under law. Thus, the plea taken by Mr. Mishra, learned Additional Government Advocate for the State to the effect that by practicing fraud, the petitioners managed to get their names recorded in settlement record, is unfounded. On verification of the same, he found the documents to be valid under law. Thus, the plea taken by Mr. Mishra, learned Additional Government Advocate for the State to the effect that by practicing fraud, the petitioners managed to get their names recorded in settlement record, is unfounded. Further, such a plea was also not taken before the Additional SubCollector, Jajpur during adjudication of Suit No.101 of 2017. It further appears that the plea taken by Mr. Mishra to the effect that the case land does not co-relate to the lease hold property of said Jogi Mallick is also without any basis, as the Additional Sub-Collector, Jajpur on verification of the documents, found Hal plot No. 113 to an extent of Ac.0.200 dec. with 'Gharabari' kisam corresponds to Sabik Plot No. 1/491(p), the Jamabandi No.126/10/2 to an extent of Ac.0.20 decimals has been validly prepared in the name of said Pravakar Mishra. There is no whisper in the impugned order under Annexure-8 to the effect that the case land was recorded as jungle kissam of land. Such a plea is taken by the State Government for the first time in the counter affidavit before this Court without any supporting materials to that effect. True it is that, a document purportedly issued by the Tahasildar, Vyasanagar on 30.12.2017 (Annexure-C/4) to the counter to show that Sabik Khata No.126 was recorded under Anabadi jungle kissam, but said document does not inspire any confidence as it reveals that author of the letter could not verify the Sabik R.O.R. in respect of the land in question as it was mutilated. He relied upon Amin report No.58, which is also not a part of the case record. It is also not known under what circumstances such an Amin report, if any was prepared. Further, no appeal under Section 12-A of the Settlement Act being filed assailing the draft Record of Right published under Section 12 of the Settlement Act in the name of the father of the petitioners, the same remained un-assailed. Further, no objection case could have been entertained by the Assistant Settlement Officer under Annexure-8 after publication of the draft R.O.R. under Section 12 of the Settlement Act. As such, the Assistant Settlement Officer has acted without jurisdiction in entertaining Objection Case No.6842 on the basis of letter No.1027 dated 21.02.1991 issued by the Tahasildar, Sukinda. Further, no objection case could have been entertained by the Assistant Settlement Officer under Annexure-8 after publication of the draft R.O.R. under Section 12 of the Settlement Act. As such, the Assistant Settlement Officer has acted without jurisdiction in entertaining Objection Case No.6842 on the basis of letter No.1027 dated 21.02.1991 issued by the Tahasildar, Sukinda. Thus, the Settlement Authority has no other option than to publish the final R.O.R. in respect of the case land in favour of the father of the petitioners and after his death in the name of the petitioners under Section 12-B of the Settlement Act. 8. On verification of record it appears that utilizing the case land, a stadium has already been constructed by the N.A.C., Sukinda. Thus, the plea of Mr. Mishra, learned Additional Government Advocate for the State to the effect that the claim of the petitioner cannot be entertained as it was a jungle kissam of land, is not sustainable in the eyes of law. 8.1 As the case land has already been utilized for the purpose of construction of a stadium of N.A.C., Sukinda, an alternate site with equal area and potentiality should be settled in favour of the petitioners. 9. Accordingly, this Court has no hesitation in setting aside the orders passed under Annexures-8 and 9 and also any subsequent action taken or order passed in pursuance thereof and directs the opposite party Nos. 1 to 4 to settle a land with equal area and potentiality in the same township in favour of the petitioners, as expeditiously as possible, preferably within a period of six months by observing due procedure of law. 10. The writ petition is allowed to the aforesaid extent, but in the circumstances there shall be no order as to costs. 11. The disposed of case record called for convenience of adjudication of this writ petition be sent back to the concerned Section immediately. 12. As the restrictions due to resurgence of COVID-19 situation are continuing, learned counsel for the parties may utilize a printout of the order available in the High Court's website, at par with certified copy, subject to attestation by the concerned Advocate, in the manner prescribed vide Court's Notice No. 4587 dated 25th March, 2020 as modified by Court's Notice No. 4798 dated 15th April, 2021.