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2021 DIGILAW 294 (ORI)

Rengutu NagZ v. State of Odisha

2021-07-07

S.K.MISHRA

body2021
JUDGMENT : S.K. Mishra, J. The petitioner, being a member of the scheduled category, in this writ application has challenged the order passed by the Joint Commissioner, Settlement and Consolidation, Sambalpur-opposite party no.2 in Revision Case No.52/2005 dismissing the revision application filed by the petitioner under Section 37 of the Orissa Consolidation of Holdings and Prevention of Fragmentation of Land Act, 1972 (hereinafter referred to as the “OCHPFL Act”). In the revision application, the petitioner prayed to prepare the record of rights with respect to Hal Plot Nos.442/3 and 362 of Khata No.21 of village Dahukbudu, P.S.-Dunguripali, Dist-Sonepur on the ground that a lease has been granted by the learned Tahasildar, Rampur in his favour in O.L.R. Case No.11/1983. 2. The opposite party no.2 without entering into the merits of the claims of the petitioner disposed of the petition observing as follows: “It is alleged by the learned counsel for the opposite parties that the issue is related to the outcome of the result passed by the revenue authorities in O.L.R. Case No.527 of 1975 and the present O.L.R. Case No.11/1983 is a part and parcel to the main O.L.R. proceeding of the year 1975. It is argued that in the midst of continuation of the O.L.R. proceeding the matter has even been raised before the Hon’ble High Court and the issues have been settled. It is, therefore, submitted by the opposite parties that the petitioner has suppressed the matter and illegally tries to grab the properties of the opposite parties totally misleading the court. It is vehemently urged by the learned counsel that the surplus land of the opposite parties in the O.L.R. proceeding relates to the lands of village Kapasira but not of village Dahukbud. As such it is stated that the petitioner has got no locustandi in raising the present revision and therefore it is liable to be dismissed. No satisfactory replies comes from the side of the petitioner on the very submission of the opposite parties and therefore he stands as nothing but a silence spectator over the saying of the opposite parties and utterly fails in his submission”. From the aforesaid order, it is clear that the order allegedly passed by this Court in a writ application do not form part of the record. From the aforesaid order, it is clear that the order allegedly passed by this Court in a writ application do not form part of the record. The number of such proceeding, which was stated to have been disposed of by this Court, has not been mentioned in the order. In order to appreciate the case, it is appropriate to take note of certain facts in chronological order. 3. On 15.7.1975 O.L.R. Case No.527/1975 of the court of the learned Tahasildar, Rampur was initiated for determining the ceiling surplus land of one Kunja Padhan who is the predecessor in interest, being the father of opposite party no.6-Krushna Chandra Padhan, of opposite parties 6 to 11. Then notices were issued. The case suffered several adjournments. On 27.8.1976 the Tahasildar, Rampur recorded that the ceiling surplus holder Sri Kunja Padhan, S/o. Birabara Padhan of village – Kapsira has got Acs.113:858 of land in the village Kapsira and Dahukbudu (Khata Nos.36, 37, 38, 39, 40, 41 and 42 of village Kapasira and Khata No.21 of village Dahukbudu). After examining the records and taking into consideration various points raised before him, the Tahasildar allowed Kunja Padhan to retain within his ceiling limit, Plot Nos.945, 946, 996, 1018, 1397, 1398, 1399, 1398/part total measuring an area of Ac.10.000 of Khata No.36 of village Kapsira. He further allowed, the valid Kunja, homestead land pertaining to Plot Nos.993, 994, 995, 1453, 1682, 1798, 889 measuring an area of 1:050 pertaining to Khata No.36, 39 and 42 of the Village, Kapsira. Shri Padmanav Padhan, S/o. Kunja Padhan, was also allowed to retain the land of Ac.12 acres pertaining to Khata Nos.36, 37 and 38 of the aforesaid village. The second son of Kunja Padhan, namely, Gandharba Padhan was allowed to retain Ac.10.000 acres of land pertaining to Khata Nos.39 and 40 of the aforesaid village. The younger son of Kunja Padhan, namely, Krishna Chandra Padhan was allowed to retain 12 acres of land pertaining to Khata Nos.40 and 41 of the said aforesaid. The Tahasildar held that a total 68:808 acres of land is the ceiling surplus of land and shown as such. The younger son of Kunja Padhan, namely, Krishna Chandra Padhan was allowed to retain 12 acres of land pertaining to Khata Nos.40 and 41 of the said aforesaid. The Tahasildar held that a total 68:808 acres of land is the ceiling surplus of land and shown as such. They pertains to a various plots of Khata Nos.41, 42, 43, 36, 39, 40, 41 and 42 of village Kapsira and various plots of Khata No.21 of Dahukbudu It is pertinent to note that Plot No.362 measuring an area of Ac.0.650 and Plot No.442 measuring an area of Ac.1:600 was included in the resumed land of the ceiling surplus holder. Accordingly, draft statement was published and notices were issued on 29.10.1976 to the objectors. Objections were filed by various persons, but the same were rejected. The ceiling holdings of Kujna Padhan and his three sons were recast by the learned Tahasildar. Kunja Padhan was allowed to retain Ac.10.090 of lands of Khata Nos.36, 37 and 225. Padmanav Padhan was allowed to retain about Ac.12:004 of land pertaining to Khata Nos.40 and 36. Gandharva Padhan was allowed to retain Ac.690 of lands pertaining to Khata Nos.36, 40 and 42 of village Kapsira. Krushna Padhan was allowed to retain 12:100 acres of land pertaining to Khata Nos.36, 40 and 42 of village Kapsira and holding No.21 of village Dahukbudu. This Court carefully examined the plots that were allowed to be retained by Krushna Padhan pertaining to Khata No.21 of Village Dahukbudu they are as follows: Plot Nos. Areas 354 0.900 355 0.990 351 0.220 358 0.890 359 0.620 Some plots of Khata Nos.36 and 39 were excluded from the ceiling proceeding and allowed to be retained by the recorded tenants as they were found to be homestead land. Those lands pertained to Khata Nos.36 and 39. As such as against the initial calculation of Ac. 68.808 decimals of lands, the revenue authorities declared that the recorded tenant Kunja Padhan had Ac 64.608 of lands as ceiling surplus lands, and, therefore, the draft statement was confirmed. On 29.11.1976 the draft statement was prepared, signed and published. On 4.5.1983 the Tahasildar received intimation that the learned Addl. District Magistrate (LR), Balangir has dismissed the OLR Case No.23/1977 confirming the order dated 25.1.1977 passed by the learned Revenue Officer. On 29.11.1976 the draft statement was prepared, signed and published. On 4.5.1983 the Tahasildar received intimation that the learned Addl. District Magistrate (LR), Balangir has dismissed the OLR Case No.23/1977 confirming the order dated 25.1.1977 passed by the learned Revenue Officer. Thereafter on 7.7.1983, the Tahasildar, Rampur received a letter from the office of the Advocate General, Orissa, Cuttack that the recorded tenant/ceiling surplus holder has initiated writ application bearing No.OJC 1225/1975 (Basista Padhan and others Vs. State and others). It is further apparent from the order sheet that the said writ petition has been withdrawn on 9.6.1983. Hence, the Tahasildar, Rampur directed his office to take action for distribution. On 28.7.1983, the Tahasildar, Rampur received an intimation that the Collector, Balangir in OLR Revision Case No.29/2018 has stayed further proceeding of the ceiling case. However, on 13.12.1983 further intimation was received that the OLR Revision Case No.29/2028 has been dismissed. On 30.12.1983 the Revenue Inspector, Bhatbahali intimated the Tahasildar, Rampur that he has taken possession of the vested ceiling surplus land measuring an area of Ac.62:458 of lands. The R.I. further intimated that the lands have been distributed to the landless persons of village Kapasira and Dahukabudu. On 7.1.1984 the Tahasildar, Rampur received intimation from this Court that in OJC No.2859/1983 a stay order has been passed restraining the Tahasildar from distribution of land as per Anexure-1 to the writ application if not already distributed. The record does not show what happened thereafter. So this Court call for the record of OJC No.2589/1983. The Registry of this Court informed that records of the OJC No.2589/1983 has been destroyed. 4. Mr. Arjuna Charan Behera, learned counsel for the Petitioner, first contended that as per Section 45 of the Orissa Land Reforms Act, 1965(hereinafter referred to as the “OLR Act for brevity). The surplus land cannot be recorded in the name of the surplus land holder or his legal heirs. So the orders passed by the Tahasildar impugned before the learned Member, Board of Revenue is not sustainable as it is without jurisdiction. Mr. Behera further pointed out that it is not disputed that the Plot in question has been allotted to the Petitioner and it is found to be surplus land of the predecessor of interest of the private Opposite Parties. Mr. Behera further pointed out that it is not disputed that the Plot in question has been allotted to the Petitioner and it is found to be surplus land of the predecessor of interest of the private Opposite Parties. He would further argue that the order of the Member, Board of Revenue is a non reasoned one and without referring to the orders of this High Court allegedly passed in O.J.C. No.2859/1983, the learned Member, Board of Revenue committed error on record by dismissing the revision of the Petitioner. He, therefore, prayed that the order should be set aside and direct the Tahasildar to record the land in question in the name of the present Petitioner and possessions of the land to be delivered to him. 5. Learned counsel for the private Opposite Parties 6 to 11, on the other hand, argued that the matter was before the Civil Court in a civil proceeding bearing C.S. No.27/2005 and, therefore, the writ Court should not interfere with the matter. It is also argued that since the High Court has set aside the original order passed by the Tahasildar in the ceiling surplus proceeding under the OLR Act, this Court should not interfere in the matter. 6. It is not disputed that the learned Member, Board of Revenue, in the cryptic order held that the matter has been settled by the High Court. However, record reveals that the first OJC No.1225/1997 was allowed to be withdrawn on 09.6.1983. Later on in a proceeding the Collector, Bolangir initiated the Revision Case No.29/1983, but the same was dismissed. The case of the Opposite Parties 6 to 11 are that they have challenged the order of the Collector In OJC No.2859/1983 wherein a stay order has been passed, but the Opposite Parties never produced any final order passed by the Court in the said OJC and there is nothing on record to show that the OJC was decided in favour of the predecessor in interest of Opposite Parties 6 to 11. 7. Section 101 of the Indian Evidence Act, 1872 provides for burden of proof, which reads as follows: “Burden of proof-Whoever desires any Court to give judgment as to any legal right or liability dependent on the existence of facts which he asserts, must prove that those facts exist. 7. Section 101 of the Indian Evidence Act, 1872 provides for burden of proof, which reads as follows: “Burden of proof-Whoever desires any Court to give judgment as to any legal right or liability dependent on the existence of facts which he asserts, must prove that those facts exist. Illustrations (a) A desires a court to give judgment that B shall be punished for a crime which A says B has committed. A must prove that B has committed the crime. (b) A desires a Court to give judgment that he is entitled to certain land in the possession of B, by reason of facts which he asserts, and which B denies, to be true.” A must prove the existence of those facts. 8. Thus, whoever desires the Court to give any judgment as to any legal right etc. then he has to prove the fact he asserts. In this case in view of the order of the Tahasildar, Additional District Magistrate(LR), the undisputed fact that the earlier order passed in OJC No.1225/1997, it was the duty of the respondents appearing before the learned Member, Board of Revenue as Opposite Parties to establish that the order of declaring the ceiling surplus land of the original tenant was set aside by the High Court. That order having not been produced either before the learned Member, Board of Revenue or before this Court, this Court is of the opinion that this is a fit case where the order passed by the Tahasildar should be set aside. The learned Member, Board of Revenue should not have held that the matter has been settled by the High Court in the aforesaid OJC and should not have dismissed the revision application of the Petitioner. 9. Regarding the contentions raised by the learned counsel for the Petitioner regarding vesting of the property that is the ceiling surplus land with the Government, this Court takes note of Section 45 of the Odisha Land Reforms Act, 1960, which provides as follows:- “Section 45-Surplus lands to vest in Government-With effect from [the date on which the statement becomes final under Sub-section (3) of Section 44] the interest of the person to whom the surplus lands relate and of all land-holders mediately or immediately under whom the surplus lands were being held shall stand extinguished and the said lands shall vest absolutely in the Government free from all encumbrances.” 10. A plain reading of the aforesaid provision leaves no doubt that the surplus lands shall vest absolutely in the Government free from all encumbrances. Thus, the order passed by the Tahasildar, which was impugned before the learned Member, Board of Revenue and the order passed by the Joint Commissioner, Settlement and Consolidation, Sambalpur in Revision Case No.52/2005 dismissing the revision application of the Petitioner filed under Section 37 of the OCHPFL Act was in correct. The lands can never be recorded in the name of ceiling surplus holder. Even if the Court comes to the conclusion that it cannot be settled in the name of the Petitioner, then also it would revert back to the Government, but in no case it can be recorded in the name of the private Opposite Parties. 11. Regarding the plea that in the civil suit regarding this fact, an issue was framed to determine whether the Petitioner was a landless person or not and whether the land has been settled in his name or not. Section 67 of the OLR Act creates a clear bar to such a suit. It reads as follows:- “Bar of jurisdiction of Civil Courts-[Save as otherwise expressly provided in this Act], no Civil Court shall have jurisdiction [to try and decide] any suit or proceedings so far as it relates to any matter which any officer or other competent authority is empowered by or under this Act to decide.” 12. Thus, it is clear that once an order has been passed in the competent court or authority in a proceeding under the Land Reforms Act, the civil court has no jurisdiction to try and decide any matter as far as it relates to a question of fact which any Officer or other competent authorities empowered by or under the OLR Act. So any order passed by the civil court is of no consequence in this case. 13. Any decision taken by the Consolidation Authorities is also not final as far as the land reforms proceeding is concerned. In other words, the Consolidation Authorities do not have any power to modify, overrule or nullify the order passed by the competent authority under the Land Reforms Act. 14. In that view of the matter, the writ application is allowed. Any decision taken by the Consolidation Authorities is also not final as far as the land reforms proceeding is concerned. In other words, the Consolidation Authorities do not have any power to modify, overrule or nullify the order passed by the competent authority under the Land Reforms Act. 14. In that view of the matter, the writ application is allowed. The order passed by the Tahasildar confirmed by the Joint Commissioner and also not interfered by the Member, Board of Revenue are hereby set aside and quashed. Sabik Plot No.442/3 and 362 of Sabik Khata No.21 corresponding to Hal Plot Nos.425, 421 & 422 and Hal Khata No.17 of the consolidation settlement be recorded in the name of the Petitioner and the possession thereof be given to him as early as possible, preferably within a period of three months after harvesting of the present Kharif crops if it is found that the private opposite parties 6 to 11 cultivated in the land in question. 15. The matter arose when the village was within the jurisdiction of Collector, Bolangir. In the mean time, the District Subarnapur has been carved out. Hence, the Collector, Surbarnapur is directed to carry out the order passed by this Court without any further delay. He shall direct the Tahasildar, Rampur, to carry out the order passed by this Court as early as possible. 16. The Writ Petition is allowed with the above observations. 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 Mr. Arjuna Charan Behera, learned counsel for the Petitioner or M/s. Minati Mishra, learned counsel for the Opposite Parties 6 to 11 or Mrs. Saswata Pattnaik, learned Addl. Government Advocate appearing for Opposite Parties 1 to 5, 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.