Orissa High Court
Harful Agrawal vs Tamal Behera And Others on 12 October, 2022
Author: Chittaranjan Dash
Bench: Chittaranjan Dash
IN THE HIGH COURT OF ORISSA AT CUTTACK
W.A. No. 496 of 2016
Harful Agrawal .... Appellant
Mr. Trilochan Nanda, Advocate
-versus-
Tamal Behera and Others ... Respondents
Mr. Debakanta Mohanty, Addl. Govt. Advocate
Mr. Upendra Kumar Samal, Advocate
CORAM:
THE CHIEF JUSTICE
JUSTICE CHITTARANJAN DASH
ORDER
Order No. 12.10.2022
Dr. S. Muralidhar, CJ.
06. 1. The present appeal is directed against an order dated 14th September, 2016 passed by the learned Single Judge dismissing the Appellant's writ petition i.e. OJC No.3657 of 1995 in which the Appellant had challenged an order dated 28th January, 1994 passed by the Collector, Bolangir in OLR Revision Case No.35 of 1986.
2. The background facts are that on 15th January, 1974 the Appellant purchased a piece of land admeasuring Ac 0.17 decimals corresponding to Plot No.901/1188 of Khata No.53 by way of a registered sale deed from one Sri Rameswar Behera, who admittedly, belonged to the Scheduled Caste (SC). The land in question is situated within the limits of the Notified Area Council W.A. No.496 of 2016 Page 1 of 11 (NAC), Titilagarh in Bolangir district. Admittedly, the kissam in the registered sale deed, as has been noted by the Revenue Inspector, was recorded as 'Atmamuli' i.e. an agricultural land.
3. The son of the vendor one Shri Tribikram Behera, who is the husband of Respondent No.1 and father of Respondent No.2 filed RMC No.8/35 of 1984 before the Revenue Officer (RO), Titilagarh under Section 23 of the Odisha Land Reforms Act, 1960 (OLR Act) contending that since no prior permission was taken from the RO before effecting the sale, the sale deed dated 15th January, 1974 was null and void. Thereby, Section 23 of the OLR Act was invoked.
4. By an order dated 20th March, 1986 the RO allowed the aforementioned RMC No.8/35 of 1984 holding that the sale deed in favour of the present Appellant was null and void as it was executed without prior permission of the RO under Section 22 of the OLR Act.
5. Aggrieved, the Appellant then filed OLR Appeal No.20 of 1986 which came to be allowed by the Additional District Magistrate (ADM), Bolangir by an order dated 15th October 1986. The ADM observed that the land in question was situated inside an urban area and it was homestead land. Accordingly, it was held that the provisions of the OLR Act were not applicable to the purchase of such land by the Appellant.
W.A. No.496 of 2016 Page 2 of 116. The Collector, Bolangir exercising the power of revision in OLR Revision No. 35 of 1986 set aside the above order of the ADM by an order dated 28th January, 1994. The Collector held that the provisions under Sections 22 and 23 of the OLR Act would apply to the land in question notwithstanding that it may be recorded as homestead land located within an urban area.
7. Challenging the above order dated 28th January, 1994 the Appellant filed the aforementioned OJC No.3657 of 1995 which has come to be dismissed by the learned Single Judge by the impugned order dated 14th September, 2016. Learned counsel for the Appellant informs the Court that the during the pendency of the writ petition, a status quo order was passed and has continued during the pendency of the present writ appeal.
8. This Court has heard the submissions of Mr. Trilochan Nanda, learned counsel appearing for the Appellant; Mr. U.K. Samal, learned counsel appearing for Respondent Nos.1 and 2 and Mr. Debakanta Mohanty, learned Additional Government Advocate (AGA) for the State.
9. Mr. Nanda, learned counsel for the Appellant, submitted that the observation of the learned Single Judge that the entire Titilagarh was within the scheduled area was erroneous and since that formed the basis of the impugned judgment of the learned Single Judge, it was unsustainable in law. Secondly, relying on the decisions in Mahurilal Agarwal v. Dusasan Sahu 43 (1977) CLT 681(DB), Shri Bhanuganga Tribhuban Deb v. Tahasildar-cum-Revenue W.A. No.496 of 2016 Page 3 of 11 Officer, Sambalpur, 53 (1982) CLT 1 and the judgment of the Supreme Court in Smt. Sarifabibi Ibrahim v. Commissioner of Income-tax, Gujarat AIR 1993 SC 2585, he submitted that since admittedly, the land in question was homestead land within an urban area, the provisions of the OLR Act did not apply and no prior permission was required to be obtained in terms of Section 22 of the OLR Act. He submitted that the judgment of the Supreme Court in Om Prakash Agarwal v. Batara Behera (1999) 3 SCC 231 which held that the OLR Act would apply to all lands whether located in a rural area or an urban area as long as it was being used for agricultural purpose or was capable for being used as agricultural purpose, would have to be understood in the factual context of the present case, where according to learned counsel for the Appellant, the land has been recorded, subsequent to the sale, as homestead land and in fact there was a factory of the Appellant functioning on the said land. In other words, he submits that since there was no finding that the land was capable of being used for agricultural purposes and that it is in the heart of the NAC, the OLR Act would not apply.
10. Mr. Samal, learned counsel appearing for the Respondent Nos.1 and 2 on the other hand referred to the inquiry report dated 28th November, 2016 of the Tahasildar which was submitted pursuant to the order passed by the learned Single Judge in OJC No. 3657 of 1995. In terms of the said report, it was plain that even at the time of the said inspection there was no textile mill over the land in question and the tenant was also not in possession of the land for over twenty years. Mr. Samal submitted that the W.A. No.496 of 2016 Page 4 of 11 possession in fact has now been handed over to Respondent Nos.1 and 2 and they continue to remain in possession of the land in question.
11. Mr. Debakanta Mohanty, learned AGA referred to the counter affidavit filed and, in particular, to the averments in para 3 (E) which refers to the order of the revisional authority and the finding therein that the kissam of the land was 'agricultural' at the time of the sale deed. It is submitted that unless there is a notification of the State Government under Section 73 (c) of the OLR Act exempting the land in question from the applicability thereof, the provisions of the OLR Act will continue to apply.
12. It must be noted here that both learned counsel appearing for Respondent Nos.1 and 2 as well as the learned A.G.A. did not dispute the fact that the learned Single Judge perhaps erred in observing that the entire Titilagarh was a scheduled area. It is submitted that it was in fact not a scheduled area, but that would make no difference to the applicability of Sections 22 and 23 of the OLR Act to the land in question inasmuch as the vendor of the present Appellant belonged to the SC.
13. The above submissions have been considered. A plain reading of Sections 22 and 23 of the OLR Act does not indicate that a homestead land located within an urban area is on that score exempt from the applicability of the OLR Act. This position becomes clear when the above provisions are read with Section 73 of the OLR Act, which reads as under:
W.A. No.496 of 2016 Page 5 of 11"73. Act not to apply to certain lands -
Nothing contained in this Act, shall apply -
(a) to the Government in respect of lands held by them and which is used or set apart for any public purpose;
(b) to lands held by-
(i) the Government of India;
(ii) any local authority;
(iii) any University established by law in the State;
(iv) the Bhoodan Yagna Samiti established under the Orissa Bhoodan and Gramdan Act, 1970.
(v) any Government company as defined in the Companies Act, 1956;
(vi) any Corporation established under any law in force;
(c) to any area which the Government may, from time to time by notification in the official Gazette specify as being reserved for urban, non-
agricultural or industrial development or for any other specific purpose; and
(d) to any land which was under the management of any Civil, Revenue or Criminal Court immediately prior to the 26th day of September 1970, for so long as such management continues."
As pointed out by the learned AGA, in the present case there is no notification issued exempting the land in question from the applicability of the OLR Act only because it is located in an urban agglomeration.
14. Turning now to the decision in Omprakash Agarwal (supra), the Court finds that para 3 of the said judgment is relevant for the purpose of the present case. It reads thus:
W.A. No.496 of 2016 Page 6 of 11"3. In view of the rival submissions at the Bar the first question that arises for consideration is whether the land as defined in Section 2(14) of the Act and which is either being used or capable of being used for agricultural purposes within the municipal area do come under the purview of Orissa Land Reforms Act. The Act, no doubt is a measure relating to agrarian reforms and land tenures and abolition of intermediary interest but there is no provision in the Act which excludes such agricultural lands merely because they are situated in an Urban Agglomerations. The Act applies to all land which is either used or capable of being used for agricultural purposes irrespective of whether it is situated within a municipal area or in villages. The very object of the legislation being an agrarian reform, the object will be frustrated if agricultural lands within the municipal area are excluded from the purview of the Act. In this view of the matter we have no hesitation to come to the conclusion that the Act applies to all lands which is used or capable of being used for agricultural purposes irrespective of the fact wherever the said land is situated and the conclusion of the High Court on this score is unassailable. The first submission of Mr. Sanghi is, therefore, devoid of any force. So far as the question that the vendors do not belong to the Scheduled Castes it appears that the Sub-Divisional Officer on the basis of materials produced before him came to a positive conclusion that the vendors of the sale deeds belong to Scheduled Castes which is confirmed by the record of right. This conclusion of the Sub-Divisional Officer had not been assailed before the Appellate Authority, as is apparent from paragraph 2 of the Appellate judgment. Since the finding of the Sub- Divisional Officer on the question whether the vendors of the sale deeds belong to Schedule Castes or not had not been assailed before the Appellate Authority, the said finding has become final and cannot be permitted to be re-agitated again. Rightly, W.A. No.496 of 2016 Page 7 of 11 therefore, the High Court did not consider the said question and in our considered opinion, that question cannot be reopened now."
15. It is plain, therefore, in terms of the above decision, the OLR Act would apply "to all land which is either used or capable of being used for agricultural purposes irrespective of whether it is situated within a Municipal area, villages." In other words, merely because the land is within the NAC of Titilagarh would not exclude from the applicability of the OLR Act as long as it is shown that it is either being used or capable of being used for agricultural purposes.
16. Learned counsel for the Appellant vehemently contended that since a textile factory was operating on the land in question by the Appellant for long, there is no finding that the land is "capable of being used for agricultural purpose". It is seen that while delivering the impugned judgment, the learned Single Judge in the operative portion issued the following directions:
"10. Keeping in view the decision of the Hon'ble Apex Court in the aforesaid case and as this Court in the present case finds that the petitioner has already made a lot of developments over the disputed land that too with the consent of the actual land owner and further with the approval of the public authority, instead of asking for restoration of possession, this Court directs the original authority (Revenue Officer, Titilagarh) to conduct an enquiry through its agency to ascertain the actual occupation of the land by a person belonging to general caste by virtue of sale over which the construction of the Textile Mill has been made and taking into consideration the present market price W.A. No.496 of 2016 Page 8 of 11 of the land prevailing in the locality, to pass an order to grant appropriate compensation to the Opp.Party No.1. The entire exercise is directed to be completed within a period of three months from the date of communication of this judgment."
17. Pursuant to the above directions in the impugned judgment, the Tahasildar undertook the exercise of determining what the current status of the land was. The Tahasildar in a report dated 28th November, 2016 inter alia observed as under:
"With reference to the letter on the subject cited above I am to say that the actual occupation of Sabik Plot No.901/1188 corresponding to Hal Plot No.1824/3810 of Mouza Titilagarh 'Ka' has been enquired by the Revenue Supervisor in the field with reference to R.O.R. The enquiry report of the Revenue Supervisor reveals that the Sabik Plot No.901/1188 Ac. 0.17 decimals corresponds to current Hal Plot No.1824/3810 Ac 0.184 stands recorded under Holding No.423 in the name of Harful Agrwal S/o. Ramajilal Agrawal of Village:-
Titilagarh 'Ka'. On enquiry it is ascertained that now there is no textile mill over the case land and the recorded tenant is also not in possession over the case land since around last twenty years. The villagers present at the time of field enquiry stated that there was a textile mill over the suit land prior to twenty years and after civil dispute the textile mill has been closed. In the field it is seen that in one side of the plot there is a fried rice mill over the approximate area of 10 ft X 30ft and in another side there is a damaged house of around 20ft X 40 ft where the textile mill was running. Further the said damage has been given on rented basis to a fertilizer retailer who is using this as store house and the fried rice mill is being run by an outsider who is also paying rent to L.Rs of Late Tribikram Behera."W.A. No.496 of 2016 Page 9 of 11
18. The factual situation, therefore, is that there is now no textile mill over the land in question and the Appellant is also not in possession. It is, therefore, not possible to accept the plea of the Appellant that factually it has been shown that the land in question is not capable of being used for agricultural purposes.
19. This Court has perused the decisions in Mahurilal Agarwal (supra), Shri Bhanuganga Tribhuban Deb (supra), and the judgment of the Supreme Court of India in Smt. Sarifabibi Ibrahim (supra). As far as the last-mentioned decision is concerned, it was not in the context of the OLR Act. It was in the context of the Bombay Tenancy and Agricultural Lands Act. Further, the question that was being addressed by the Court arose under the Income Tax Act, 1961. Consequently, the Court finds that the said decision is distinguishable on facts since questions regarding the nature of the land and the restrictions on transferability have to be addressed in terms of the local law which in this case is the OLR Act.
20. As far as the decision in Mahurilal Agarwal (supra) is concerned, it is seen that it is a decision of the Division Bench of this Court dated 10th May, 1977 and whereas the decision of the Supreme Court in Omprakash Agarwal (supra) is dated 10th March, 1999 and would obviously prevail over the decision of this Court. Likewise, the decision of this Court in Shri Bhanuganga Tribhuban Deb (supra) has to be read now in the context of the subsequent decision of the Supreme Court in Omprakash Agarwal W.A. No.496 of 2016 Page 10 of 11 (supra) the relevant portion of which has been extracted hereinbefore.
21. Since the law in the question is governed by the decision in Omprakash Agarwal (supra), the Court has no hesitation in holding that in the present case there is no escape from the applicability of Sections 22 and 23 of the OLR Act to the land in question. This is irrespective of the fact that the learned Single Judge may not have been correct in observing that the entire Titilagarh area would be a scheduled area. The fact remains that Sections 22 and 23 of the OLR Act do apply to the land in question and inasmuch as prior permission was not obtained at the time of execution of the sale deed in favour of the Appellant, it was unsustainable in law. For the aforementioned reasons, the Court finds no ground to interfere with the impugned judgment of the learned Single Judge. The appeal is dismissed. The interim order passed earlier stands vacated.
22. The operative directions of the learned Single Judge as regards compensation payable to the present Appellant would have to be worked out in accordance with law in accordance with the report of the Tahasildar.
(Dr. S. Muralidhar) Chief Justice (Chittaranjan Dash) Judge S.K. Jena/Secy.
W.A. No.496 of 2016 Page 11 of 11