Orissa High Court
Narayan Chandra Pradhan And Others vs The Tahasildar on 30 July, 2013
Author: B.K. Patel
Bench: B.K. Patel
HIGH COURT OF ORISSA : CUTTACK.
W.P.(C) NO.17917 of 2011
In the matter of an application under Articles 226 and 227 of the
Constitution of India.
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Narayan Chandra Pradhan and others ...... Petitioners
- Versus-
The Tahasildar, Bhubaneswar and another ...... Opposite Parties
For Petitioners : M/s. Madhumati Agrawal
and T.K. Mishra
For Opp. Parties : Addl. Govt. Advocate
PRESENT:
THE HONOURABLE SHRI JUSTICE B.K. PATEL
Date of Hearing: 3.5.2013 :: Date of Judgment -30.7.2013
B.K. PATEL, J.Aggrieved by order at Annexure-6 dated 26.4.2011 passed by opp. Party no. 1- Tahasildar, Bhubaneswar in Rev. Misc. Case No.13 of 2010 rejecting petitioners‟ claim for recording of the case land by way of mutation in their names, the petitioners have filed this writ petition with a prayer to direct opposite party no.1- Tahasildar, Bhubaneswar by appropriate writ for correction of Record of Rights in respect of case land in consonance with order passed by the OEA Collector under the Orissa Estates Abolition Act, 1951 (for short the „O.E.A. Act‟).
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2. Petitioners‟ case is that case land relating to erstwhile estate of ex-intermediary of Killa Gadkana was settled with the ex- intermediary by the O.E.A. Collector under Sections 6 and 7 of the O.E.A. Act by order under Annexure-2 dated 8.3.1961 passed in OEA Case No. 13 of 1959-60. Petitioners purchased the case land from the ex-intermediary on the strength of registered sale deed at Annexure-1 dated 23.7.1965. However, in the current settlement Record of Rights, the case land was wrongly recorded as „Rakhit Anabadi‟ in the name of State Government. Nonetheless, the petitioners are in peaceful possession of the case land since the date of purchase. It is alleged that on 18.8.2008 some persons claiming themselves to be officials of the State Government destroyed the barbed wire fence around the case land to certain extent. Apprehending forcible dispossession, the petitioners filed W.P.(C) No. 19494 of 2008 which was disposed of by this Court by order dated 30.1.2009 directing the Tahasildar, Bhubaneswar to conduct an enquiry into the allegations made in the writ petition and take appropriate decision in the matter. It was also directed that till completion of enquiry, status quo in respect of the case land be maintained. Petitioners also assert to have filed Mutation Case No. 3614 of 2009 before the Tahasildar, Bhubaneswar for recording of the case land in their names. However, the Tahasildar, Bhubaneswar, instead of proceeding with the mutation case, passed the impugned order rejecting the petitioners‟ claim of mutation of the 3 case land in their names concluding that order dated 8.3.1961 passed in OEA Case No. 13 of 1959-60, which is the basis of petitioners‟ claim over the case land, having been passed without jurisdiction is a nullity and void, and consequently, subsequent sale by the ex- intermediary to the petitioners is deemed to be void.
3. It was contended by the learned counsel for the petitioners that the impugned order passed by Tahasildar, Bhubaneswar amounts to illegally sitting in appeal over the order passed by the OEA Collector under the O.E.A. Act. It was strenuously argued that case land was settled with the ex-intermediary about 50 years back on 8.3.1961 and the order passed in OEA Case No. 13 of 1959-60 having not been assailed by the State, has attained finality. It was incumbent on the part of the Tahasildar, Bhubaneswar to act upon the order passed by OEA Collector which is in force and enforceable. According to the learned counsel for the petitioners, even if an order is void, a declaration to that effect has to be made by competent authority or court. In absence of such declaration, the impugned order is liable to be quashed. In support of her contentions, learned counsel for petitioners placed reliance on decisions of this Court in Trilochan Singh and another vs. Commissioner of Land Records and Settlement, Orissa and others: 79 (1995) CLT 507, Chunti Patra and others vs. State of Orissa and others: 81 (1996) 4 CLT 292 and Prafulla Chandra Muduli and others vs. State of Orissa and others: 2005 (Supp.) OLR- 950.
4. A counter affidavit has been filed by opposite party no.1 wherein it has been averred that Killa Gadakana estate including the case land was vested in the State in the year 1954. Prior to the vesting the case land stood recorded in the name of the ex-intermediary. After the vesting the State became the owner and is in possession of the case land. It is asserted that the order dated 8.3.1961 passed by the O.E.A. Collector in OEA Case No.13 of 1959-60 is a fraudulent order created by the petitioners with the collusion of low level revenue functionaries. Therefore, subsequent sale of the case land by the ex- intermediary is ab initio void. The petitioners never took any step for getting the case land recorded in their names during the settlement operation which continued till 1973-74. The case land has already been recorded in the name of the State Government as there was no settlement made in favour of the ex-intermediary under the O.E.A. Act. Opposite party no1- the Tahasildar, Bhubaneswar has rightly rejected petitioners‟ claim of mutation holding that order passed by the O.E.A. Collector is fraudulent. It has been pleaded that order passed in O.E.A. Case No.13 of 1959-60 being a fraudulent one is void ab initio and has to be treated as non est. In substance, petitioners‟ claim is resisted and impugned order passed by the Tahasildar, Bhubaneswar is sought to be defended on the assertion that the sale 5 deed under Annexure-1 dated 23.7.1965 has been executed by the ex- intermediary in favour of the petitioners on the basis of a fraudulent order passed in O.E.A. Case No.13 of 1959-60. It is also averred that order in O.E.A. Case No.13 of 1959-60 has been challenged by the State before the Member, Board of Revenue under Section 38 (B) of the O.E.A. Act in O.E.A. Revision Case No.5 of 2013.
5. It was contended by the learned counsel for the State that though order of settlement under the O.E.A. Act was passed on 8.3.1961 and the sale deed on the strength of which petitioners‟ claim to have purchased the case land was executed on 23.7.1965, the petitioners did not take any step for recording of the case land by the settlement authorities during the settlement operation. Therefore, the petitioners are estoppels from instituting mutation proceeding before the Tahasildar. It was also contended that order of settlement under the O.E.A. Act was obtained in O.E.A. Case No.13 of 1959-60 by practising fraud. As the settlement order under the O.E.A. Act was obtained by fraud, the same is not binding on any authority. In this connection, reliance was placed by the learned counsel for the State on the decision of the Hon‟ble Supreme Court in State of Orissa and others -vrs.- Brundaban Sharma and another : 1995 Supp. (3) SCC
249. It was also specifically contended that the State has already initiated O.E.A. Revision Case No.5 of 2013, copy of which is Annexure-C/1, before the court of Member, Board of Revenue under 6 Section 38 (B) of the O.E.A. Act assailing the order of settlement passed in favour of vendor of the writ petitioners in O.E.A. Case No.13 of 1959-60.
6. In the decision in State of Orissa and others -vrs.- Brundaban Sharma and another (supra) scope and ambit of revisional power of Board of Revenue under Section 38 (B) of the O.E.A. Act was the subject matter of analysis. It was held that conferment of tenancy rights by the Tehsildar without obtaining prior confirmation of the Board of Revenue being void, can be questioned by invoking Section 38 (B) of the O.E.A. Act at any stage even after elapse of 27 years.
7. In the present writ petition, while defending the order passed by the Tahasildar, Bhubaneswar by asserting that the Tahasildar has rightly refused to allow petitioners‟ claim of mutation on the basis of finding that order of settlement passed under the O.E.A. Act was without jurisdiction, being obtained by fraud, the opposite parties admit to have resorted to provision under Section 38 (B) of the O.E.A. Act in questioning the legality of order passed in O.E.A. Case No.13 of 1959-60 by filing O.E.A. Revision Case No.5 of 2013 before the court of Member, Board of Revenue. The moot question that arises for determination in this writ petition is as to whether in a proceeding for mutation under the Orissa Survey and Settlement Act (for short „the O.S.S. Act‟), the Tahasildar, 7 Bhubaneswar can ignore the order passed under the O.E.A. Act by holding that order passed under the O.E.A. Act was without jurisdiction.
8. In Trilochan Singh and another (supra) the short point stated to have arisen for consideration before this Court was as to whether authorities under the Orissa Survey and Settlement Act, 1958 (for short „the O.S.S. Act‟) can ignore an order passed under the O.E.A. Act on the basis that order passed under the O.E.A. Act was without jurisdiction. In answering the question it was held at paragraph-8 of the judgment:
"The original order of settlement was passed by an authority who had jurisdiction to deal with the matter. The question whether settlement was in order has no relation with jurisdiction of the authority. If an authority who has jurisdiction passes on order which is improper or illegal, the same cannot be treated as void. It remains enforceable until it is set at naught in an appropriate proceeding by an appropriate authority. xx xx xx xx."
9. Similar view was taken in answering the identical question by this Court in Chunti Patra and others (supra) and it was held at paragraph 6 of the judgment:
"xx xx xx xx In the instant case, an order of settlement was passed in favour of the petitioner by an authority under the Orissa Estates Abolition Act, 1951 (in short "O.E.A. Act"). If the order of settlement was wrong, it could have been challenged before a proper forum in an appropriate proceeding. But as the said order was not challenged, it remained enforceable and binding and could not be overlooked or ignored by the authority under the Orissa Survey & Settlement Act, 1952. Admittedly, in this case, no steps were taken to get the order of settlement annulled. The order, therefore, had to be respected and could not be ignored by the authorities under the Orissa Survey & Settlement Act, 1952."8
10. In Prafulla Chandra Muduli and others (supra) it has been held by this Court that by invoking provisions of the O.S.S. Act, a Settlement Officer cannot sit in appeal and nullify an order passed by the O.E.A. Collector, and that too more than two decades after. Orders passed by the O.E.A. Collector might be right or wrong. In the event a wrong order was passed, statute provides the procedure to rectify the same. Observations made by the Settlement Officer that the O.E.A. Collector lacked jurisdiction was misconceived. It was held at paragraph 8 of the judgment:
"Law is well settled that an order passed under a statute which provides a remedy, the said remedy can only be invoked for modifying, rectifying or challenging the order by any person aggrieved. An order passed under one statute by a superior authority can under no stretch of imagination be varied or held to be without jurisdiction by an authority exercising power under another independent statute. Thus, the Settlement Officer lacked initial authority and jurisdiction to examine the propriety or otherwise of the order passed by the OEA Collector two decades after. The Settlement Officer lost sight of the cardinal principle that orders passed by the said authority can neither create nor extinguish a title. At the other hand, the authorities under the OEA Act are empowered to settle lands in consonance with Sections 6, 7 and 8 of the said Act, thereby creating right, title and interest in respect of the lands settled."
11. Principle laid down by this Court in the above cited decisions is in consonance with the high principle of law that even if an order is void or voidable, the same is required to be set aside by the competent court, as pointed out by the Hon‟ble Supreme Court in Inderjit Singh Grewal -v- State of Punjab & Anr.: 2011(2) OJR 747 (S.C.). This principle is an insurance against the anarchic possibility 9 of a sub-ordinate court ignoring and flouting the order of a superior court opining the same to be void.
12. In answering the question as to whether it is permissible for a party to treat the judgment or order as null and void without getting it set aside from the competent court, it was held at paragraphs 12, 13 and 14 in Inderjit Singh Grewal -v- State of Punjab & Anr. (supra) as follows:-
"12.However, the question does arise as to whether it is permissible for a party to treat the judgment and order as null and void without getting it set aside from the competent court.
The issue is no more res integra and stands settled by a catena of decisions of this Court. For setting aside such an order, even if void, the party has to approach the appropriate forum. (Vide: State of Kerala v. M.K.Munhikannan Nambiar Manjeri Manikoth, Naduvil (dead) & Ors., AIR 1996 SC 906; and Tyabbhai M. Bagasarwalla & Anr. V. Hind Rubber Industries Pvt. Ltd., AIR 1997 SC 1240).
13. In Sultan Sadik v. Sanjay Raj Subba & Ors. AIR 2004 SC 1377, this court held that there cannot be any doubt that even if an order is void or voidable, the same requires to be set aside by the competent court.
14. In M. Meenakshi & Ors. V. Metadin Agarwal (dead) by Lrs. & Ors., (2006) 7 SCC 470, this Court considered the issue at length and observed that if the party feels that the order passed by the court or a statutory authority is non-est/void, he should question the validity of the said order before the appropriate forum resorting to the appropriate proceedings. The Court observed as under:-
"It is well settled principle of law that even a void order is required to be set aside by a competent Court of law, inasmuch as an order may be void in respect of one person but may be valid in respect of another. A void order is necessarily not non-est. An order cannot be declared to be void in collateral proceedings and that too in the absence of the authorities who were the authors thereof."
Similar view has been reiterated by this Court in Sneh Gupta v. Devi Sarup & Ors. (2009) 6 SCC 194.
From the above, it is evident that even if a decree is void ab initio, declaration to that effect has to be obtained by the person aggrieved from the competent court. More 10 so, such a declaration cannot be obtained in collateral proceedings."
13. The impugned order passed by the Tahasildar, Bhubaneswar in Rev. Misc. Case No.13 of 2010 rejecting petitioners‟ claim of mutation under the O.S.S. Act concluding that order passed under the O.E.A. Act in O.E.A. Case No.13 of 1959-60 is a nullity and void, having been passed without jurisdiction, is directly in conflict with and violation of above stated settled principles. Tahasildar has no authority to ignore an order passed under the O.E.A. Act while considering mutation under the O.S.S. Act. The opposite parties have virtually conceded this position by admitting that State has filed O.E.A. Revision Case No.5 of 2013 assailing the legality of order passed by O.E.A. Collector in O.E.A. Case No.13 of 1959-60. In such view of the matter, order of the Tahasildar, Bhubaneswar passed in Rev. Misc. Case No.13 of 2010 is not sustainable in law and is liable to be quashed. The matter is required to be remitted back to the Tahasildar, Bhubaneswar for reconsideration and passing order afresh on the petitioners‟ claim of mutation.
14. Accordingly, the writ petition is allowed. Order dated 26.4.2011 under Annexure-6 passed by the Tahasildar, Bhubaneswar in Rev. Misc. Case No.13 of 2010 is quashed. The matter is remitted back to the Tahasildar, Bhubaneswar to reconsider and pass order afresh on the petitioners‟ claim of mutation of the case land in the light of observations made above expeditiously preferably within a 11 period of two months from the date of receipt of copy/production of certified copy of this order.
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B.K. Patel, J.
Orissa High Court, Cuttack, Dated 30th July, 2013/B. Jhankar