Sri Anadi Charan Sahoo vs State Of Orissa & Others ......... Opp. ... on 14 January, 2020

[Cites 25, Cited by 17]

Orissa High Court

Sri Anadi Charan Sahoo vs State Of Orissa & Others ......... Opp. ... on 14 January, 2020

Equivalent citations: AIRONLINE 2020 ORI 2

Bench: S.K. Sahoo

IN THE HIGH COURT OF ORISSA, CUTTACK

O.J.C. No. 3839 of 1994

An application under Articles 226 and 227 of the Constitution of
India.
-----------------------------

Sri Anadi Charan Sahoo
(since dead) and others ......... Petitioners

-Versus-

State of Orissa & others ......... Opp. Parties

For Petitioners: - Mr. Ganeshwar Rath
(Senior Advocate)

For Opp. Parties: - Mr. Kishore Kumar Mishra
Addl. Govt. Advocate
-----------------------------

P R E S E N T:

THE HONOURABLE ACTING CHIEF JUSTICE KUMARI SANJU PANDA
AND
THE HONOURABLE MR. JUSTICE S.K. SAHOO
---------------------------------------------------------------------------------------
Date of Judgment: 14.01.2020
---------------------------------------------------------------------------------------

S. K. SAHOO, J. The petitioners in this writ petition have challenged

the impugned order dated 30.04.1994 passed by the Member,

Board of Revenue, Odisha, Cuttack in O.E.A. Revision Case

No.46 of 1992 vide Annexure-7 in exercise of the power under
2

section 38-B of the Odisha Estates Abolition Act, 1951 (hereafter

'O.E.A. Act') in setting aside the order dated 30.07.1979 of the

Tahasildar, Bhubaneswar passed in Vesting Case No.795/70-71

vide Annexure-4.

2. The case of the petitioners is that on 25.04.1936

through Hata Patta, Raja Madhusudan Dev of Patia gave the

agricultural land situated in Mouza Chandrasekharpur, area

Ac.1.43 dec. and Ac.1.07 dec. in sabik plot nos.300 and 299

respectively in favour of late Anadi Charan Sahoo, the

grandfather of the petitioners for cultivation as a tenant under

him. The said land corresponds to Hal Plot nos.334 and 335

respectively under Rakhit Holding no.472. The status of land in

dispute was 'Niji Chasa' as per R.O.R. published in the year 1931

vide Annexure-1. The grandfather of the petitioners being a

tenant under Raja of Patia, paid the rent which was accepted by

Raja of Patia and rent receipt thereof was issued vide Annexure-

2. In the year 1943, Raja of Kanika purchased the estate of Patia

by auction and became landlord in respect of agricultural land in

dispute and grandfather of the petitioners became deemed

tenant under Raja of Kanika, who also accepted the rent for the

year 1943 onwards and issued rent receipts in favour of the

grandfather of the petitioners. The estates were vested in the
3

State Government in the year 1954 and accordingly, estate of

Kanika was vested in the said year and grandfather of the

petitioners being in possession of the agricultural land in dispute

by raising paddy crops became tenant under State Government

by paying rent. The Tahasildar, Bhubaneswar initiated a

proceeding under section 8(1) of the 'O.E.A. Act' to enquire

about the possession and tenancy of the grandfather of the

petitioners and the same was registered as Vesting Case

No.795/70-71 and after due enquiry and on receipt of Amin's

report, he passed the order dated 30.07.1979 (Annexure-4) in

favour of the grandfather of the petitioners and held him to be a

tenant and settled the land with him. The R.O.R. was corrected

in exercise of the powers conferred under Rule 34 of the Odisha

Survey and Settlement Rules, 1962 and published accordingly in

the year 1981 vide Annexure-5 recording the name of late Anadi

Charan Sahoo in respect of land in dispute and rent was paid and

accepted by the State Government for the years 1974 to 1981,

1982 to 1985, 1985-1986 and for the year 1989 to 1994 and

rent receipts were issued vide Annexures-8/a, 8/b, 8/c, 8/d, 8/e,

8/f and 8/g annexed to the affidavit of petitioner no.2 Jitendra

Kumar Sahoo dated 13.08.2019. The petitioners in shape of

memo filed the order sheet of Suit No.2794 of 1987 initiated
4

under section 22(3) of Odisha Survey and Settlement Act, 1958

by the Settlement Authority and the order sheet indicates that

notice was issued to the G.A. Department who did not appear

and participate in the enquiry in respect of village-

Chandrasekharpur, P.S.-New Capital, Unit No.41, Dist.- Puri and

the grandfather of the petitioners was accepted as 'stitiban rayat'

and accordingly, R.O.R. was published in the year 1988 and the

grandfather of the petitioners was recorded as 'stitiban status'

and the State Government accepted rent for the year 2000 to

2001 and issued rent receipt in favour of late Anadi Charan

Sahoo. On the basis of reference from Collector, Puri for revising

the aforesaid order dated 30.07.1979 of Tahasildar,

Bhubaneswar passed in Vesting Case No.795/70-71, O.E.A.

Revision Case No.46 of 1992 under section 38-B of the O.E.A.

Act was initiated by the Member, Board of Revenue. In the

reference letter, it was indicated that while recognizing Anadi

Charan Sahoo as a tenant under section 8(1) of the O.E.A. Act

and correcting the current R.O.R., the Tahasildar failed to verify

the Ekpadia as well as the genuineness of the 'handwritten

Patta'. The Collector also expressed doubts about the

genuineness of the orders as the signatures of the Tahasildar on
5

the case record on 15.07.1979, 16.07.1979 and 30.07.1979 did

not appear to tally with each other.

The Member, Board of Revenue after hearing the

respective parties, in the impugned order dated 30.04.1994 has

been pleased to hold as follows:-

"7. A perusal of the L.C.R. shows that the
opp. party filed an application in Form "H" for
settlement of suit land. Section 8-A(1) read with
Rule 6 of O.E.A. Act prescribes Form "H" for
settlement of homestead and agricultural lands
under sections 6 and 7 of the said Act. The claim
for settlement under sections 6 and 7 is meant
for the Ex-intermediary. In the instant case, the
claim petition was filed by the opp. party when
evidently he was not an intermediary. There was
no scope for the opp. party to apply under
sections 6 and 7 for settlement of land on which
his tenancy right is claimed to have been
created before the date of vesting.

8. Besides, the opp. party produced some
rent receipts before Tahasildar only for the years
1942, 1943 and 1952 though he claims to have
acquired the land since the issue of the "hand
written Patta" i.e. from 25.04.36. Unless
continuous rent receipts from the date of
granting of lease Patta namely 1936 till the year
of vesting namely 1954 are produced, it cannot
be presumed that opp. party's possession was
6

continuous on regular payment of rent to the
Ex-intermediary from the time the hand written
Patta was granted in the year 1936. Out of this
relevant period, the rent receipts produced in
this Court by the opp. party relate to 1942 (with
3 years back rent) and 1952 only. The rent
receipts relating to the years after 1979 i.e.
after the date of the Tahasildar's order settling
the land with the opp. party are not material in
the present context. The Tahasildar also failed to
verify the Ekpadia or Tenant's Ledger. Now the
opp. party is also unable to file this very
important and relevant document i.e. Tenant's
Ledger. The list of documents filed by the opp.
party shows against serial No.5 that the Tenant's
Ledger is filed by him. On verification of the said
document, it is clear that this is a document
issued by the Tahasildar after settlement of land
in favour of the opp. party and it is not a
Tenant's Ledger which is opened in the Tahasil
on the basis of Ekpadia filed by the Ex-
intermediary and on the basis of which the rent
is collected. In the absence of the proper
Tenant's Ledger and continuous rent receipts, a
deeming provision like section 8(1) of the O.E.A.
Act will not have any application as the opp.
party cannot prove his continuity of tenure as a
tenant immediately before the date of vesting.
Hence it appears that the Tahasildar acted
beyond his jurisdiction by entertaining an
7

application which was misconceived and settling
the land on a wrong interpretation of the
relevant provisions in the statute.

9. It is further seen that the R.O.R. is finally
published in favour of the State Government and
without making State as a party to the case, the
Tahasildar -cum- O.E.A. Collector should not
have settled land in favour of the opp. party.
The land reserved for "Unnat Jojana Jogya"
should not have been settled without de-
reservation by the Collector under Orissa
Government Land Settlement Act. The
Tahasildar is competent to correct the R.O.R. for
any event which takes place after its final
publication but for any event which takes place
prior to final publication of the R.O.R., the
Tahasildar is incompetent to correct the R.O.R.
as the forum is available under section 15 of the
Orissa Survey & Settlement Act. Moreover the
estate vested in the year 1954 and the opp.
party filed his claim for the disputed land in
1971 after a lapse of 17 years.
10. I also find from the L.C.R. that the
signatures of the Tahasildar on 15.07.79,
16.07.79 and 30.07.79 do not appear to tally
with each other. This lends credence to the
Collector's reservation about the genuineness of
the orders."
8

After analysing the above, the Member, Board of

Revenue has been pleased to hold that the Tahasildar,

Bhubaneswar exercised a jurisdiction which was not vested on

him and passed orders which are erroneous and need revision.

Accordingly, the order dated 30.07.79 of Tahasildar,

Bhubaneswar passed in Vesting Case No.795/70-71 was set

aside

3. Mr. Ganeshwar Rath, learned Senior Advocate

appearing for the petitioners in his imitable style contended that

the order of the Tahasildar, Bhubaneswar dated 30.07.1979 is an

administrative order under section 8(1) of the O.E.A. Act and

therefore, it is not revisable under section 38-B of the O.E.A. Act.

He placed reliance on the Full Bench decision of this Court in the

case of Smt. Basanti Kumari Sahoo -Vrs.- State of Orissa

and others reported in Vol.73 (1992) Cuttack Law Times

868 which was followed in the cases of Daitary Rout -Vrs.-

State of Orissa reported in Vol. 100 (2005) Cuttack Law

Times 329 and Bhagaban Kar -Vrs.- State of Orissa

reported in 2008 (II) Orissa Law Reviews 838. It was

argued that even though the Hata Patta dated 25.04.1936 issued

by Raja of Patia was unregistered but rent was paid by the

deceased Anadi Charan Sahoo which was accepted and when
9

Raja of Kanika purchased the estate of Patia, he also accepted

rent from the deceased Anadi Charan Sahoo treating him as a

tenant and cultivating agricultural land. He placed reliance on

section 49 of the Registration Act, 1908 which deals with effect

of non-registration of documents required to be registered and

more particularly placed emphasis on the proviso to the said

section which states that an unregistered document affecting

immovable property and required by the Registration Act, 1908

or the Transfer of Property Act, 1882 to be registered might be

received as evidence of a contract in a suit for specific

performance under Chapter II of the Specific Relief Act, 1877 or

as evidence of any collateral transaction not required to be

effected by registered instrument. Reliance was placed in the

case of Rai Chand Jain -Vrs.- Chandra Kanta Khosla

reported in A.I.R. 1991 S.C. 744 and it was argued that an

unregistered lease deed can be looked into for collateral purpose.

He placed reliance in some of the cases of this Court i.e.

Basiruddin -Vrs.- State of Orissa reported in 1961 India

Law Reports 595, The State of Orissa -Vrs.- Bhakta

Charana Naik reported in Vol. 31 (1965) Cuttack Law

Times 654, The Collector of Puri -Vrs.- Budhinath

Samantray reported in Vol. 35 (1969) Cuttack Law Times
10

552, Naban Bewa -Vrs.- Nabakishore Samal reported in

A.I.R. 1964 Orissa 16 and Jagannath Nanda -Vrs.- Bishnu

Dalei reported in Vol. 40 (1974) Cuttack Law Times 888 to

substantiate that for creating an agricultural tenancy, no formal

document is required to be executed but it can be created by

giving possession and accepting rent and issuing rent receipts.

Learned counsel further placed reliance in the case of Gangayya

-Vrs.- S. Mandan Chand Samdaria reported in A.I.R. 1973

Madras 262 to argue that unregistered lease can be used to

prove the date on which possession in the hands of the tenant

commenced. It was further argued that the Collector, Puri

doubted the genuineness of the orders passed by the Tahasildar

as the signatures of the Tahasildar on three different dates did

not appear to tally with each other which was also accepted by

the Member, Board of Revenue without any cogent reason.

According to the learned counsel the word 'appears' imports

lesser degree of probability than proof as per the decision of the

Hon'ble Supreme Court in the case of Pyare Lal Bhargava -

Vrs.- State of Rajasthan reported in A.I.R. 1963 S.C. 1094.

He emphasized that when the Tahasildar, Bhubaneswar passed

the order settling the land with deceased Anadi Charan Sahoo on

30.07.1979, almost about fifteen years after, it was not proper
11

on the part of the Member, Board of Revenue to revise the order

exercising power under section 38-B of the O.E.A. Act. Reliance

was placed on several decisions of this Court in the cases of Sri

Laxman Kanda -Vrs.- State of Orissa reported in 1991 (II)

Orissa Law Reviews 50, Mst. Surya Rana -Vrs.- State of

Orissa reported in 1996 (I) Orissa Law Reviews 180,

Labanyabati Devi -Vrs.- Member, Board of Revenue

reported in Vol. 76 (1993) Cuttack Law Times 937 and

Nityananda Satpathy -Vrs.- Member, Board of Revenue

reported in 1996 (II) Orissa Law Reviews 262. While

concluding his argument, the learned counsel submitted that

since the impugned order suffers from non-application of mind

and there is patent illegality in the order, the same is liable to be

set aside.

Mr. Kishore Kumar Mishra, learned Addl. Govt.

Advocate on the other hand supported the impugned order and

submitted that the claim of the petitioners relating to possession

over Sabik Plot Nos.300 and 299 in Mouza Chandrasekharpur

which corresponds to Hal Plot Nos.334 and 335 respectively

under Rakhit holding No.472 is based on the handwritten

unregistered patta executed by the late Raja Madhusudan Dev of

Patia. The handwritten patta by the Ex-intermediary dated
12

25.04.1936 cannot be accepted as genuine in the absence of

Ekpadia prepared by the Ex-intermediary. It is further argued

that it cannot be presumed that the petitioner was in possession

on the date of vesting in absence of continuous rent receipts.

While recognizing the deceased Anadi Charan Sahoo as a tenant

under section 8(1) of the O.E.A. Act, the Tahasildar,

Bhubaneswar did not take into account the genuineness of the

handwritten patta. He placed reliance in the case of State of

Orissa -Vrs.- Baidyanath Jena reported in Vol.116 (2013)

Cuttack Law Times 805 and argued that a tenant can only be

recognized under section 8(1) of the O.E.A. Act if the

intermediary was validly inducted with registered document as

per section 17 of the Registration Act. He argued that the Amin's

report with regard to the land in question showed that the same

had been recorded in Rakhit Khata in favour of State in the

record of rights of the year 1974 and as such the Tahasildar has

no jurisdiction to settle such land in favour of a private person

like the deceased Anadi Charan Sahoo without first dereserving it

as per the order of the Collector. It is contended that the

petitioners produced rent receipt before the Tahasildar only for

the year 1942, 1943 and 1952 though they claim to have

acquired the land since 1936. According to Mr. Mishra, the order
13

passed by the Tahasildar, Bhubaneswar cannot be said to be an

administrative order under any stretch of imagination as the

Tahasildar by his order dated 30.07.1979 has arrived at a clear

finding that the lessee in the Vesting Case No.795/70-71 was a

tenant under Ex-intermediary before the vesting of estate and he

would be deemed to be a tenant under Government from the

date of vesting in the same rights and subject to the same

restrictions and liabilities as he was entitled to immediately

before the date of vesting as contemplated under section 8(1) of

the O.E.A. Act. Such a finding of the Tahasildar, Bhubaneswar is

totally erroneous in the eye of law as the petitioners failed to

produce continuous rent receipts. It is contended that since there

is no illegality or perversity in the impugned order passed by the

Member, Board of Revenue and the conclusions arrived at by the

revisional authority are reasonable, the writ petition should be

dismissed.

4. There is no dispute that the impugned order under

Annexure-7 has been passed in exercise of the power conferred

under section 38-B of the O.E.A. Act which was about fifteen

years after the passing of the order by Tahasildar, Bhubaneswar

in the vesting case. The section clearly states that for the

purpose of satisfying itself regarding the regularity of any
14

proceeding in which any subordinate authority has made any

decision or passed an order under the O.E.A. Act and also for

verifying the correctness, legality or propriety of the decision

taken by such subordinate authority, the Board of Revenue can

call for and examine the record of such proceeding on its own

motion or on a report submitted by the Collector. If the

revisional authority feels that any decision or order passed by

the subordinate authority needs to be modified, annulled or

remitted, it may pass the order accordingly which can be done

only after giving opportunity of hearing to the concerned parties.

In the case of Sri Laxman Kanda (supra) which was

relied upon by the learned counsel for the petitioners, taking into

account the fact that the petitioner in that case was a tribal and

he was in possession of the land since 1945 and since 1965 his

sons were in possession of the land, it was held that ordinarily a

person who has continued in possession for such length of time

is not to be disturbed even if he is not a tribal and that more

weightage is to be attached when the person concerned is one

such. The initiation of the proceeding by the Revenue Divisional

Commissioner under section 12(3) of the Orissa Prevention of

Land Encroachment Act, 1972 against the petitioners in the year

1983 was held to be erroneous in law and accordingly quashed.
15

In the case of Mst. Surya Rana (supra), it is held

that the legality of the order passed by the Revenue Divisional

Commissioner in exercise of the power conferred under Rule 38-

A(2)(bb) read with Rule 38-A(10)(bb) of the Orissa Land

Reforms (General) Rules, 1965 framed under the Orissa Land

Reforms Act, 1960 has to be tested on touchstone of

reasonableness of time. Even though no period of limitation is

prescribed, power has to be exercised in a reasonable manner

which inheres the concept that it must be done within a

reasonable time. Absence of a provision prescribing a period of

limitation is an assurance to exercise the power with caution or

circumspection to effectuate the purpose of the Act, or to

prevent miscarriage of justice or misuse or abuse of the power

by lower authorities. It is true that when benefit has been

obtained by fraud, it does not lie in the mouth of the party to the

fraud to plead limitation to get away with the order. Lapse of

time is no excuse to refrain the authority exercising statutory

powers to unravel fraud and set the matter right.

In the case of Labanyabati Devi (supra), it is held

that since the learned Member, Board of Revenue exercised his

suo motu jurisdiction under section 59(2) of the Orissa Land

Reforms Act, 1960 after a lapse of twelve years, it was held to
16

be a case of unreasonable delay and accordingly, the order

passed by learned Member was quashed.

A Division Bench of this Court in the case of

Nityananda Satpathy (supra) held that the power of the Board

of Revenue under section 38-B of the O.E.A. Act to revise a

decision or order of any authority subordinate to it, has to be

exercised in a reasonable manner within a reasonable time and

no hard and first rule can be laid down as to what should be the

reasonable time as each case has to be decided on facts and

circumstances peculiar to it. In that case since the power under

section 38-B was exercised more than a quarter of century, it

was held that during such long years, the lands might have

suffered transfer from one hand to another creating new rights

and liabilities amongst themselves and unsettling a settled

position in abject disregard of consequences cannot be

countenanced and accordingly, the entire proceeding before the

Member, Board of Revenue was quashed on the ground that the

revisional authority failed to exercise the power in a reasonable

manner within a reasonable time. The decision rendered by this

Court in Nityananda Satpathy's case was set aside on some

other grounds by the Hon'ble Supreme Court in Civil Appeal
17

No.7670 of 1997 decided on 31.07.2003 which is reported in

(2003) 7 Supreme Court Cases 146.

In the case of State of Orissa and others -Vrs.-

Brundaban Sharma and another reported in 1995 Supp.

(3) Supreme Court Cases 249, a question arose before the

Hon'ble Apex Court as to whether Board of Revenue was justified

in exercising its jurisdiction under sec. 38-B of the O.E.A. Act

after a lapse of twenty seven years. The Hon'ble Court held that

when the revisional power was conferred to effectuate a

purpose, it is to be exercised in a reasonable manner which

inheres the concept of its exercise within a reasonable time.

Absence of limitation is an assurance to exercise the power with

caution or circumspection to effectuate the purpose of the Act or

to prevent miscarriage of justice or violation of the provisions of

the Act or misuse or abuse of the power by the lower authorities

or fraud or suppression. Length of time depends on the factual

scenario in a given case. It was further held that it cannot be

said that the Board of Revenue exercised the power under

section 38-B after an unreasonable lapse of time, though from

the date of grant of patta by the Tehsildar was of twenty seven

years.
18

In the case of Ibrahimpatnam Taluk Vyavasaya

Coolie Sangham -Vrs.- K. Suresh Reddy and others

reported in (2003) 7 Supreme Court Cases 667, the Hon'ble

Apex Court had the occasion to consider section 50-B(IV) of the

Andhra Pradesh (Telangana Area) Tenancy and Agricultural

Lands Act, 1950, which provides that the Collector might suo

motu at any point of time, call for and examine the record

relating to any certificate issued or proceedings taken by the

Tahasildar under the section for the purpose of satisfying himself

as to the legality or propriety of such certificate or as to the

regularity of such proceedings and pass such order in relation as

he may think fit. Exercise of suo motu power at any time only

means that no specific period such as days, months or years are

not prescribed reckoning from a particular date but that does not

mean that at any time should be unguided and arbitrary. In this

view, at any time must be understood as within a reasonable

time depending on the facts and circumstances of each case in

the absence of prescribed period of limitation.

In the case of Santoshkumar Shivgonda Patil and

others -Vrs.- Balasaheb Tukarm Shevale and others

reported in (2009) 9 Supreme Court Cases 352, the Hon'ble

Apex Court held that it seems to be fairly settled that if a statute
19

does not prescribe the time-limit for exercise of revisional power,

it does not mean that such power can be exercised at any time;

rather it should be exercised within a reasonable time. It is so

because the law does not expect settled things to be unsettled

after a long lapse of time. Where the legislature does not provide

for any length of time within which the power of revision is to be

exercised by the authority, suo motu or otherwise, it is plain that

an exercise of such power within reasonable time is inherent

therein.

Thus the legal principle which is set out from the

above citations is that even though no period has been

prescribed for exercising the power under section 38-B of the

O.E.A. Act, the revisional authority has to exercise the same

within a reasonable time and that to in a reasonable manner. It

depends upon the facts and circumstances of each case as to

what would be the reasonable time. There cannot be any hard

and first rule for that. However, when fraud has been committed

in obtaining an order or the decision of the subordinate authority

is based on forged documents or there is suppression of material

facts or there is violation of the provision of the Act, the

revisional authority would be fully justified in exercising its power

under section 38-B at any point of time in order to prevent
20

miscarriage of justice or misuse or abuse of the power

committed by the subordinate authority in granting relief to any

party.

In the case in hand, the settlement of land is stated

to have been made with disregard to the provisions under O.E.A.

Act and relevant documents were not taken into account before

settling the land, handwritten patta by the Ex-intermediary was

accepted as genuine without Ekpadia prepared by the Ex-

intermediary, continuous rent receipts from the date of grant of

lease patta were not produced to substantiate possession of the

land, tenancy ledger was not verified and the signatures of the

Tahasildar in the order sheet on three different dates which were

stated to have been passed within a period of fifteen days did

not tally with each other. Therefore, the submission of the

learned counsel for the petitioners that even in such a case also,

power under section 38-B of the O.E.A. Act should not have been

exercised by the revisional authority almost about fifteen years

after the order passed by the Tahasildar, cannot be accepted.

5. Coming to the next contention raised by the learned

counsel for the petitioners that the order of the Tahasildar,

Bhubaneswar dated 30.07.1979 is an administrative order under

section 8(1) of the O.E.A. Act and therefore, it cannot be revised
21

under section 38-B of the O.E.A. Act, let us first take into

account the citations placed in that respect.

In the case of Smt. Basanti Kumari Sahoo (supra),

a Full Bench of this Court while considering the provisions under

sections 8(1) and 38-B of the O.E.A. Act held that section 8(1) of

the Act is declaratory in nature and no proceeding is

contemplated under section 8(1) and therefore, no power of

adjudication of tenancy right is vested in any revenue authority

and it does not envisage settlement of land belonging to the

Government with tenancy right. The State being the owner of

the land i.e. landlord, is entitled to receive rent from its tenants

including persons deemed to be tenants under it under section

8(1). Its rights are akin to a landlord. No enquiry is

contemplated and the decision may partake the trappings of

adjudication, it is not one in exercise of powers under section

8(1) which does not authorise a proceeding or adjudication, but

the enquiry is akin to an enquiry necessitated to be undertaken

by an agent of landlord. It is further held that if in exercise of

power under section 8(1), the officer settles the land with the

applicant in course of a proceeding and confers tenancy right,

the proceeding, the adjudication and the settlement are without

jurisdiction and the Board of Revenue in exercise of power
22

conferred by section 38-B would be entitled to annul the same.

The Court went on to decide the question as to whether the

order which was annulled by the Board of Revenue was passed in

purported exercise of jurisdiction under section 8(1) or that

order was an administrative order of the officer, in charge of

collection of revenue on behalf of the State. The Hon'ble Court

held that the application filed by the petitioner under section

8(1) of the O.E.A. Act seeking settlement of the land with her

was disposed of by the officer as Estate Abolition Collector

purporting to exercise jurisdiction under section 8(1) which he

did not possess. It was held that the Board of Revenue had

jurisdiction under section 38-B to revise the order passed by the

Estate Abolition Collector, Bhubaneswar. It was further held that

even though the petitioner might have misconceived the position

of law and made application under section 8(1), the Tahasildar

should have considered the same on administrative side with a

view to satisfy himself if the petitioner was a tenant under the

State prior to vesting. The misconceived application did not

absolve the Tahasildar from proceeding in the right manner. It

was further held that the provisions contained in section 8(1) is a

decision on the administrative side and not an order passed

under section 8(1) so as to liable to be revised by the Board of
23

Revenue under section 38-B. Having said so, the Hon'ble Court

held that where the land has been settled, fresh tenancy right

has been created in purported exercise of powers under section

8(1), the Board of Revenue would be entitled to annul the

decision or correct the error in exercise of powers conferred on it

under section 38-B. Accordingly, the decision of the Board of

Revenue annulling the order of the Tahasildar was held to be

justified and the Tahasildar was directed to consider the

application filed by the petitioner afresh on the administrative

side and to take his own decision. The petitioner challenged the

order of the Full Bench before the Hon'ble Supreme Court in Civil

Appeal No.118 of 1995 which arises out of SLP(C) No.10014 of

1992 and the Hon'ble Supreme Court vide order dated

23.01.1995 reported in 1995 (I) Orissa Law Reviews (SC)

587 held that the High Court justified the Board's order to the

extent it annulled the Tahasildar's order but interfered with it

solely on the ground that the Board has no jurisdiction since the

Tahasildar's order was not a quasi-judicial order. In other words,

according to the High Court, the Tahasildar's order was an

administrative order. It was further held by the Hon'ble Supreme

Court that if that be so, one fails to understand why the matter

should be remitted to the Tahasildar once again to take an
24

administrative decision. The order of the High Court was

accordingly set aside and it was directed to the High Court to

proceed to decide the matter on merits on the premise that the

Board of Revenue had exercised the right of jurisdiction under

section 38-B of the Act. In the case of Bhagaban Kar (supra), a

Division Bench of this Court relying upon the Full Bench decision

of this Court in the case of Smt. Basanti Kumari Sahoo

(supra) held that a tenant cannot claim settlement of a land in

his favour under the O.E.A. Act and he is only to be recognized

as a tenant under the State. In the case of Daitary Rout

(supra), it was held that the order under section 8(1) of the

O.E.A. Act passed by the O.E.A. Collector cannot be construed to

be an order creating any right in favour of the petitioner for the

first time and therefore, cannot be subjected to the revisional

jurisdiction of the Board of Revenue under section 38-B of the

O.E.A. Act.

Section 8 of the O.E.A. Act, which deals with

continuity of tenure of tenants clearly stipulates that the tenant

inducted by an Ex-intermediary who was in possession of the

lands on and from the date of vesting, shall be deemed to be

tenant under the State Government. Such person shall hold the

land in the same rights and subject to the same restrictions and
25

liabilities as he was entitled or subject to immediately before the

date of vesting. This section even does not contemplate for

making of an application and initiation of a proceeding by the

O.E.A. Collector within the meaning of the Act. No quasi-judicial

proceeding is required to be initiated. Section 8(1) does not

contemplate any determination of rights by the authorities under

the Act in respect of rival claims claiming tenancy though on the

administrative side, the appropriate authority may try to find out

the person from whom rent is to be accepted. The Tahasildar is

not always bound to accept a claim raised by a person to the

effect that he was inducted as a tenant, without verifying as to

whether the claim is genuine or not. For arriving at such

satisfaction, the Tahasildar has to conduct an enquiry which is

more in the nature of administrative enquiry and not quasi-

judicial.

In the order passed by the Tahasildar, Bhubaneswar,

opposite party no.4, a clear finding has been arrived at that the

lessee Anadi Charan Sahoo in the Vesting Case No.795/70-71

was a tenant under the Ex-intermediary before the vesting of the

estate and he is deemed to be tenant under the Government on

and from the date of vesting in the same rights and subject to

same restrictions and liabilities as he was entitled to immediately
26

before the date of vesting as contemplated under section 8(1) of

the O.E.A. Act. We are of the view that such order passed by the

opposite party no.4 cannot be said to be an administrative order

inasmuch as the lands were never settled under the lease

principle rather the opposite party no.4 held that the lands were

deemed to have been settled in favour of Anadi Charan Sahoo

under the O.E.A. Act. Without most vital documentary evidence

like continuous rent receipts, Ekpadia prepared by the Ex-

intermediary or verification of tenancy ledger, the opposite party

no.4 seems to have invoked the deeming provision under section

8(1) of the O.E.A. Act and ordered correction of the entry in the

R.O.R. in favour of Anadi Charan Sahoo. The record of right of

the lands showed that the same was recorded in Rakhit khata in

favour of the State Government in the year 1974 and without

any order of dereservation from the Collector as provided under

the Odisha Government Land Settlement Act, 1962, the opposite

party no.4 has settled the land in favour of a private person like

Anadi Charan Sahoo. Therefore, in view of the decision of the

Hon'ble Supreme Court, we find no illegality on the part of the

Board of Revenue in initiating the revisional proceeding under

section 38-B of the O.E.A. Act on the reference from Collector,
27

Puri for revising the order of the Tahasildar, Bhubaneswar

passed in the vesting case.

6. The next contention raised by the learned counsel for

the petitioner is that even though the Hata Patta issued by Raja

of Patia was an unregistered one but rent was paid by the

deceased Anadi Charan Sahoo which was accepted and when

Raja of Kanika purchased the estate of Patia, he also accepted

rent from the deceased Anadi Charan Sahoo treating him as a

tenant and cultivating agricultural land. It is pertinent to note

that Ekpadia prepared by the Ex-intermediary was not produced.

Even though the deceased Anadi Charan Sahoo claimed to have

been inducted as a tenant since 1936 but some rent receipts for

the year 1942, 1943 and 1952 were produced before the

Tahasildar. The continuous rent receipts have not been

produced. The tenancy ledger was also not verified by the

opposite party no.4. Thus there cannot be any doubt that the

aforesaid documents which were very much essential for

entertaining a claim of continuous possession of the land with

the deceased since 1936 were not verified by the opposite party

no.4.

Section 49 of the Registration Act, 1908 deals with

effect of non-registration of documents required to be registered.
28

An unregistered document affecting immovable property and

required by the Registration Act, 1908 or by the Transfer of

Property Act, 1882, to be registered may be received as

evidence of a contract in a suit for specific performance under

Chapter II of the Specific Relief Act, 1877, or as evidence of part

performance of a contract for the purposes of section 53-A of the

Transfer of Property Act, 1882, or as evidence of any collateral

transaction not required to be affected by registered instrument.

By virtue of section 6 of Act 48 of 2001, with effect from

24.09.2001, the words "or as evidence of part performance of a

contract for the purposes of section 53-A of the Transfer of

Property Act, 1882" was omitted. Thus even an unregistered

document can be received as evidence for the purposes

mentioned in the proviso to section 49 of the Registration Act.

The learned counsel for the petitioner submitted that

unregistered handwritten patta can be used for collateral

purpose in view of the proviso to section 49 of the Registration

Act. The literal meaning of the word 'collateral' itself shows that

it is only 'supplementary or secondary purpose' and 'not direct'.

Passing of the title to the lessee of land by an instrument cannot

be said to be collateral purpose i.e. supplementary or secondary

purpose. It is the main purpose for which the instrument is
29

executed affecting the immovable property comprised in the said

instrument. The expression "collateral purposes" is a very vague

one and the Court must decide in each case whether the purpose

for which unregistered document is sought to be used as really a

collateral one or is to establish directly the title to immovable

property sought to be conveyed by the document. By the simple

device of calling "collateral purpose", a party cannot use an

unregistered document in any legal proceedings to bring about

indirectly the fact which would have had it registered. Therefore,

as a rule, as a proof of passing of title in favour of any person,

an unregistered document cannot be received in evidence. A

document required by law to be registered, if unregistered, is

inadmissible as evidence of a transaction affecting the

immovable property but it may be admitted as evidence of

collateral facts or for any collateral purpose i.e. for any purpose

other than that of creating, declaring, assigning, limiting or

extinguishing a right to immovable property. An unregistered

document can be looked into for collateral purposes even though

it does not create title in respect of the land and the factum of

date of commencement of possession on the basis of such

document can be taken into account provided there is other

evidence to show the continuity of possession.
30

In the case of Gerua Biswal -Vrs.- Kshyama

Biswal reported in A.I.R. 1962 Orissa 107, it is held that,

where in the case of an unregistered Kararnama when the

members of a joint family effect a severance in status and each

of the parties gave up his claim in respect of certain family lands

already in the exclusive possession of the other, the document is

inadmissible under section 49 of the Registration Act as evidence

of any transaction affecting the properties for want of

registration and further no oral evidence can be given to prove

the terms of the partition in view of section 91 of the Evidence

Act. Though the document could be used for 'collateral' purpose

for proving the severance of joint family status, it would not be

admissible to prove the nature of possession subsequent to the

execution of the document because that would be using the

document virtually for proving the allotment of the properties at

the partition, the very purpose for which it is prohibited to be

used under section 49 of the Act. In the case of Dandapani

Sahoo -Vrs.- Kshetra Sahoo and others reported in Vol.31

(1965) Cuttack Law Times 33, it was held that there is no

dispute over the proposition that an unregistered partition deed

can be used as an evidence to show severance of joint status,
31

but it is not admissible to prove the actual allotment of specific

properties to different shares.

In the case of Baidyanath Jena (supra) on which

the learned counsel for the State placed reliance, it was held that

a tenant can only be recognized under section 8(1) of the O.E.A.

Act if the intermediary was validly inducted with registered

document as per section 17 of the Registration Act, sections 105

and 107 of the Transfer of Property Act and followed by Ekpadia

submitted by the intermediary with the approval of the Board of

Revenue under section 5 of the O.E.A. Act.

Though reliance was placed by the learned counsel

for the petitioners in the case of Rai Chand Jain (supra) that an

unregistered lease deed executed by both the parties can be

looked into for collateral purposes and also in the case of

Gangayya (supra) to fortify the contention that unregistered

lease deed can be used to prove the date on which possession in

the hands of the tenant commenced, but it cannot be lost sight

of the fact that though it is the case of the petitioners that the

deceased Anadi Charan Sahoo was inducted as a tenant by Raja

Madhusudan Dev of Patia since 1936 for agricultural purposes

but only rent receipts for the year 1942, 1943 and 1952 were

produced before the Tahasildar. In absence of any continuous
32

rent receipts or tenancy ledger and Ekpadia prepared by the Ex-

intermediary the continuity of possession with the deceased on

the date of vesting cannot be accepted. Moreover the copy of the

unregistered Hata Patta annexed as Annexure-1 to the writ

petition does not contain any seal of Raja Madhusudan Dev of

Patia or the signatures of the Raja or the tenant. The top and

bottom date of the document vary. The document seems to have

been executed on 25.04.1936 but one person has signed the

document putting the date as 24.04.1936. Therefore, the

authenticity of the document is also doubtful. Therefore, we are

of the humble view that the unregistered Hata Patta is no way

helpful to show that the deceased was in possession of the land

as a tenant under the Ex-intermediary before the date of vesting

and therefore, he would be deemed to be a tenant under the

State Government from the date of vesting.

At this stage, some of the decisions of this Court

cited by the learned counsel for the petitioners needs

consideration. In the case of Basiruddin (supra), it is held that

no formal document is necessary to create an agricultural

tenancy. In the said case, while considering section 175(3) of the

Government of India Act, it was held that the State like any

ordinary landlord, can induct a tenant for cultivation of land for
33

agriculture purposes who may acquire all the rights of a tenant

available to him in law without a formal document being

executed and the question of execution of a document in the

manner prescribed under section 175(3) does not arise at all. In

the case of Bhakta Charana Naik (supra), it is held that it is

open to a landlord to create a tenancy by giving possession and

accepting rent and such a tenancy can be proved by evidence

other than the production of the lease deed. In the case of

Budhinath Samantray (supra), even though it was a case of

unregistered lease deed but it was held that plaintiff can prove

his tenancy by payment and acceptance of rent from him by the

landlord by proving the rent receipts. In the case of Naban

Bewa (supra), it is held that if the lease was for agricultural

purposes, under section 117 of the Transfer of Property Act, a

lease can be created orally and by delivery of possession and in

order to confer any lease-hold right, a registered document is

not essential. In the case of Jagannath Nanda (supra), it is

held that a formal document is not necessary to create an

agricultural tenancy and a tenant can be inducted to one

agricultural holding by mere acceptance of rent whereafter he

would acquire the status of a tenant.
34

The above decisions cited by the learned counsel for

the petitioners are no way helpful for the petitioners as even

though it is claimed to be an agricultural tenancy from the year

1936 by virtue of Annexure-1, the authenticity of which is

doubtful feature but continuous rent receipts are lacking apart

from the vital documents like tenancy ledger and Ekpadia.

7. In the reference letter submitted to the Member,

Board of Revenue, it is indicated that while recognizing the

deceased Anadi Charan Sahoo as a tenant under section 8(1) of

the O.E.A. Act and correcting the current R.O.R. under Rule 34 of

Orissa Survey and Settlement Rules, 1962, the Tahasildar failed

to verify the Ekpadia as well as the genuineness of the

'handwritten patta'. The Collector also expressed doubts about

the genuineness of the orders as the signatures of the Tahasildar

on the case record on 15.07.1979, 16.07.1979 and 30.07.1979

did not appear to tally with each other.

The Member, Board of Revenue initiating a revision

proceeding under section 38-B of the O.E.A. Act after receipt of

the reference letter verified the lower Court record and found

that the deceased Anadi Charan Sahoo filed an application in

Form 'H' for settlement of suit land. Form 'H' as per Rule 6 of the

Odisha Estate Abolition Rules, 1952 is for settlement of
35

homestead and agricultural land under sections 6 and 7 of the

O.E.A. Act which is meant for the Ex-intermediary. Since the

deceased Anadi Charan Sahoo was not an intermediary, the

learned Member rightly held that there was no scope on the part

of the deceased to apply in Form 'H' for settlement of land on

which his tenancy right was claimed to have been created before

the date of vesting. According to us, there is no perversity in

such finding.

The rent receipts pertaining to the years 1942, 1943

and 1952 were produced before the Tahasildar by the deceased

claiming to have acquired the land through handwritten patta in

the year 1936. The learned Member held that the rent receipts

are not continuous till the year of vesting from the date of

handwritten patta. The rent receipt vide Annexure-3 to the writ

petition does not indicate the signature of the issuing person.

The years have been overwritten. Therefore, we are of the view

that the learned Member rightly held that in absence of

continuous rent receipts, proper tenant's ledger and Ekpadia, a

deeming provision like section 8(1) of the O.E.A. Act will have no

application.

It is also not disputed that even though the estate

was vested in the year 1954 but the deceased Anadi Charan
36

Sahoo filed his claim application in the year 1971 which was

after a lapse of seventeen years. The lands in question as per

1974 settlement operation was recorded under Rakhita Khata

and kissam was 'Unnat Jojana Jogya' and no possession note in

favour of the deceased was mentioned in the R.O.R. and there

was no dereservation order passed by the Collector under Odisha

Government Land Settlement Act and therefore, the learned

Member rightly held that the Tahasildar -cum- O.E.A. Collector

should not have settled the land in favour of the deceased.

The learned Member also on verification of the L.C.R.

found that the signatures of the Tahasildar on three different

dates within a span of fifteen days did not appear to tally with

each other. Even though in the case of Pyare Lal Bhargava

(supra), it is held that the word 'appears' imports lesser degree

of probability than proof but there are several other grounds as

discussed above were taken into account by the learned Member

to hold the illegality committed by the Tahasildar in holding the

deceased Anadi Charan Sahoo to be a tenant under section 8(1)

of the O.E.A. Act.

We are satisfied that there is proper assessment of

the facts and circumstances of the case as well as the documents

by the learned Member, Board of Revenue while passing the
37

impugned order under Annexure-7 in setting aside the order

dated 30.07.1979 of the Tahasildar, Bhubaneswar in Vesting

Case No.795/70-71 and it stands the test of judicial scrutiny. We

find no illegality, impropriety or perversity in the said order

rather it appears to be a reasoned order. Therefore, in view of

the law laid down by the Hon'ble Supreme Court in the case of

Syed Yakoob -Vrs.- K.S. Radhakrishnan reported in A.I.R.

1964 S.C. 477, we do not find it to be a fit case to exercise our

certiorari jurisdiction to interfere with the impugned order.

In view of the foregoing discussions, we find no merit

in the writ application which is accordingly dismissed. The

interim order dated 01.06.1994 passed in Misc. Case No.4000 of

1994 stands vacated. No cost.

.......................
S.K. Sahoo, J.

S. Panda, A.C.J. I agree.

......................

S. Panda Acting Chief Justice Orissa High Court, Cuttack The 14th January 2020/Pravakar/Sisir/RKM/Sukanta

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