Orissa High Court
Alekh Chandra Rath And Anr. vs Commissioner Of Land Records And ... on 1 May, 1989
Equivalent citations: AIR1989ORI240, AIR 1989 ORISSA 240, (1989) 2 ORISSA LR 135 (1990) 69 CUT LT 310, (1990) 69 CUT LT 310
JUDGMENT P.C. Misra, J.
1. The petitioners in this writ application have prayed for quashing the order of the Commissioner of Land Records and Settlement, Orissa, Cuttack in Revision Case No. 3098/77 and also the order passed by the same authority in Misc. Case No. 11/79 annexed to the writ application as Annexures-9 and 15 respectively. The property in dispute measures Ac. 3.16 decimals in Hal Settlement Khata No. 1076, comprising Hal Plot No. 4735/5164 measuring Ac. 1.00 and Hal Plot No. 4735/ 5174 measuring Ac. 2.16 decimals. According to the petitioners, the said property corresponds to Sabik Plot No. 4047 under Sabik Khata No. 918/14.
2. The record of rights of the Major Settlement which was finally published some time in the year 1975 recorded Hal Plot No. 4735/5174 measuring Ac. 2.16 decimals under Hal Khata No. 1076 in the name of the Government under Anabadi Khata. In the remarks column of the said record of rights, unauthorised possession of present opp. party No. 2 Batakrishna Pani, was recorded. He (present O.P. No. 2) filed a revision before the Commissioner of Land Records and Settlement, Orissa, Cuttack registered as R.P. Case No. 3096/77 praying for correction of the record of rights; (i) by describing him as the owner of the land and; (ii) correcting the area of the said plot as Ac. 2.50 decimals in place of Ac. 2.16 decimals. The said revision case was disposed of by the Commissioner of Land Records and Settlement by his order dated 9-11-78 (Annexure-9) partly allowing the claim of opp. party No. 2 directing correction of the record by way of taking out plot No. 4735/5174 measuring Ac. 2.16 decimals from out of Anabadi Khata No. 1076 and recording the same in the name of present opp. party No. 2. The prayer for correction of the area of the plot was refused by the same order. The present petitioner No. 1, as the Secretary of Sri Aurobindo (Kendra) Dhyana Mandir filed an application in Feb., 1979 before the Commissioner of Land Records and Settlement, Orissa praying for hearing of the aforesaid revision Case No. 3098/77 afresh on the ground that the disputed land really belongs to Sri Aurobindo (Kendra) Dhyana Mandir and the present opp. party No. 2 has obtained an order in his favour in the said revision case without impleading the real owner and suppressing the relevant facts. The said application was registered as Misc. Case No. 11/79 and the Commissioner of Land Records and Settlement by his order dated llth Jan., 1980 (Annexure-15) rejected the same. The petitioner No. 1 claims to have derived title from Sri Sailaranjan Tripathy, who is petitioner No. 2 in this writ application. They have challenged the correctness of the orders of the Commissioner of Land Records and Settlement in Annexures-9 & 15.
3. In the revision filed by Opp. party No. 2 before the Commissioner of Land Records and Settlement, Orissa he claimed title in respect of Ac. 2.50 decimals of land out of Sabik plot No. 4047 through his mother Hadi Dibya, who according to him, was a permanent lessee under the Ex-intermediary Choudhury Chakradhar Mahapatra. After vesting of the intermediary interest, the O.P. 2's mother is said to have continued as a tenant under the State Government on the basis of return submitted by the ex-intermediary and she also continued to pay rent to the State thereafter. According to him, his mother died some time in the year 1967 leaving behind the opp. party No. 2, who was then a minor. During the settlement operation, he could not produce the relevant records in proof of his title and consequently the settlement authorities merely recorded his possession as unauthorised, in the remarks column in stead of recording the land in his name. As already stated, he also claimed that the area out of the aforesaid Sabik Plot in his possession has been wrongly shown as Ac. 2.16 decimals in place of Ac. 2.50 decimals. In the said revision case neither the present petitioner No. 1 nor the society whom he represents was made party. The Commissioner of Land Records and Settlement before whom the present opp. party No. 2 produced an unregistered patta dated 24-3-1942 in proof of the lease said to have been granted by the ex-intermediary in favour of his mother Hadi Dibya and some rent receipts under which rent was accepted from Hadi Dibya, came to a conclusion that the mother of the O.P. No. 2 had good title in respect of the disputed plots. Hadi Dibya having died in the year 1967, the Commissioner of Land Records and Settlement came to hold that her son, namely; present opp. party No. 2 should be described as the owner of the land and the plot should be recorded in his name by deleting the same from the Anabadi Khata. He, however, found that opp. party No. 2 has not been in possession of any land beyond Ac. 2.16 decimals and, therefore, his claim as regards the balance 34 decimals of land was rejected.
4. The present petitioners as already stated filed an application virtually praying for recall of the order in Annexure-9 claiming title over the said land and also another plot, namely; Hal Plot No. 4735/5164 measuring 1 acre mainly on the ground that they being proper parties the order passed in their absence is liable to be recalled and the revision case should be decided afresh after giving an opportunity to the present petitioners to be heard. An application was also filed to implead present petitioner No. 2 in the revision case, as according to the petitioner No. I, it is the petitioner No. 2 who had acquired the said properly by way of lease in the lease Case No. 252/60-61 granted by the then Revenue Officer and Tahasildar, Sadar duly sanctioned by the Sub-Divisional Officer, Sadar, Cuttack from whom the petitioner No. 1 acquired the same by a registered deed of gift dated 28-6-77. It was further claimed that pursuant to the deed of gift, the petitioner No. 1 possessed the property measuring 3 acres of land appertaining to Sabik Plot No. 4047 by raising stone fence around it and getting the same cultivated each year. The Commissioner of Land Records and Settlement in his final order passed in Misc. Case No. 11/79 (Annexure-15) refused to interfere saying that it has no inherent power to recall the order earlier passed and further held that the petitioner No. 1 and its vendor having slept over the matter during continuance of the settlement operation cannot be allowed to re-open the same after lapse of the period prescribed for review of the order. The Commissioner of Land Records and Settlement also held that the alleged acquisition of title by petitioner No. 1 being in the year 1977, much after the final publication of the record of rights, the record of rights cannot be corrected by reasons of a transaction which occurred subsequent to the date of such publication.
5. The petitioners in this case challenge the original order passed by the Commissioner of Land Records and Settlement in Annexure-9 on the ground that the same is a nullity as the petitioners were necessary parties to the proceeding and their right in the land cannot be negalived without giving them an opportunity of being heard. They challenge the correctness of the order in Annexure-15 on the ground that it was within the jurisdiction of the Commissioner of Land Records and Settlement to recall his previous order which the said authority refused to exercise.
6. The main question that comes for consideration in this writ application is as to whether the Commissioner of Land Records and Settlement has failed to exercise the jurisdiction in refusing to recall the final order passed in the revision case on the ground that the present petitioners were not impleaded as parties and for that reason they had no opportunity of being heard in the said case. The case of the present petitioners in Misc. Case No. 11/79 as well as in this Court is that Sabik Plot No. 4047 which corresponds to Mal plots specified above was leased out to one Sailaranjan Tripathy (Petitioner No. 2) in Lease Case No. 252/60-61 by the. Government through the Tahasildar, Sadar, Cuttack which was duly sanctioned by the Sub-Divisional Officer, Sadar, Cultack and Sailaranjan Tripathy being a follower of the divine mother "Sri Ma & Sri Aurobindo" of Pandicheri, donated the said land in favour of "Sri Aurobindo (Kendra) Dhyana Mandir" by virtue of a registered deed of gift dated 28-6-77. Thus the source of title of the present petitioners was a lease by the Government itself. The Commissioner of Land Records and Settlement has evidently not made any enquiry as to the correctness or otherwise of the aforesaid allegation regarding the acquisition of the title by the petitioner No. 2 and the subsequent transfer in favour of petitioner No. 1.
7. The law is well settled that record of rights does not create or extinguish title and the settlement authorities lack the jurisdiction to adjudicate upon the disputed questions of title. But for the purpose of revenue records, the record of rights is prepared and the law attaches the presumption of correctness to the entries made therein. The Commissioner of Land Records and Settlement while deciding the revision case had no occasion to examine the claim of the present petitioners as they were not impleaded as parties and as the revision application did not spell out anything relating to the claim of the present petitioners. Looking to an unregistered patta of the year 1942 said to have been executed by the ex-intermediary in favour of Hadi Dibya, mother of the present opposite party No. 2 and the subsequent rent receipts granted in her favour the Commissioner of Land Records and Settlement concluded that the present opposite party No. 2 is the real owner of the said property for which reason the land was ordered to be recorded in his name. True it is that the present petitioner did not prefer any revision praying for correction of the record of rights as the same did not record their names in respect of the land in question. In the circumstances, it requires to be considered as to whether their application to recall the order passed in the revision case was entertainable in law.
8. Assuming for the sake of argument that the present petitioners had acquired valid title by virtue of the lease granted by the Government in favour of the petitioner No. 2, the revisional order no doubt affects their interest. The Commissioner of Land Records and Settlement considered the maintainability of the application treating the same as an application for review though the essential prayer made was for recalling the previous order on the ground that the order passed in the revision case substantially affects their interest without giving them an opportunity of being heard. Thus it is the principle of natural justice which was said to have been violated and the petitioners' claim was that they should have been heard in the matter before their right in the land was interfered with. It is not a case where the Commissioner of Land Records and Settlement was not satisfied about the prima facie of the present petitioners and therefore, refused to recall the order; but the said authority took strong exception to the indifference of the petitioners in not raising their claim before the settlement authorities during the progress of settlement operation. The Commissioner of Land Records and Settlement then held that the inherent powers of the Court cannot be stretched to recall an order passed earlier. The Supreme Court in a case where the situation was somewhat similar to that of the present case, approved the exercise of such jurisdiction by a Court where it becomes necessary to prevent miscarriage of justice or to correct grave and palpable errors committed by it (AIR 1963 SC 1909) (Shivdeo Singh v. State of Punjab). The petitioner in that case prayed for cancellation of the order of allotment of a piece of land passed by the Director of Rehabilitation in favour of another person. The High Court cancelled the allotment order even though the allottee was not a party to the proceeding. Subsequently the allottee filed an application for impleading him as a party to the writ application and for re-hearing the whole matter. The High Court having allowed the said prayer, the matter was taken to the Supreme Court in Civil Appeal. The Supreme Court held that the subsequent petition of the allottee was maintainable and by entertaining the said petition, the High Court merely did what the principle of natural justice required it to do. It, therefore, follows that if the Court is satisfied that a person has suffered injustice on account of his non-impleadment as a party in a legal proceeding which was concluded in his absence affecting his interest, it is open for the Court to re-open the matter to comply with the requirements of the principle of natural justice. From the facts of this case narrated above, it appears to me that the application to recall the revisional order filed by the petitioner No. 1 cannot be thrown out for want of a prima facie case. In such circumstances the proper course for the revisional Court should have been to examine the correctness of the allegation made by the petitioner No. 1 and pass appropriate orders after hearing both parties on merits. This is, therefore, a clear case where the revisional authority refused to exercise jurisdiction which it possessed to recall the order earlier passed in the revision.
9. In the result, I would quash Annexure-15 and remit the matter back to the Commissioner of Land Records and Settlement to dispose of Misc. Case No. 11 of 1979 on merits after hearing both parties keeping in view the observations made herein. There shall be no order as to costs.
Agrawal, C. J.
10. I agree.