Orissa High Court
Bijay Kumar Bal vs Collector on 9 May, 2018
Author: Biswanath Rath
Bench: Biswanath Rath
ORISSA HIGH COURT: CUTTACK
W.P.(C) No.12253 of 2009
In the matter of an application under Articles 226 and 227 of the
Constitution of India.
----------
Bijay Kumar Bal Petitioner
-versus-
Collector, Puri & others Opp. Parties
For Petitioner : Mr.G.P.Samal, S.K.Biswal,
P.K.Panda and D.Mishra.
For Opp.Parties : M/s.B.Mohanty, D.P.Mohanty,
P.K.Nayak, B.Das,
T.K.Mohanty, P.K.Swain and
M.Pal.
(Intervenor)
M/s.R.K.Mohanty, D.Mohanty,
S.Mohanty, S.Mohanty and
A. Mohanty.
(Intervenor)
Mr.Biswajit Mohanty.
(Intervenor)
Mr.K.K.Mishra, Addl. Government
Advocate.
Date of Hearing: 01.05.2018
Date of Judgment: 09.05.2018
P R E S E N T:
THE HONOURABLE MR. JUSTICE BISWANATH RATH
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
2
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. Firstly the order of the
3
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 record-of-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
4
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. 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,
5
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 Supp.(3) 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 CLT 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
6
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. 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
7
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 ex-Intermediaries 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. 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
8
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 ex-
Intermediary 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. Though
9
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 Supp.(3) 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 non-filing 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
10
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.
Biswanath Rath,J.
Orissa High Court, Cuttack The 9th day of May, 218/sks