Orissa High Court
Susanta Kumar Jena & Another vs Smt. Basanti Sethi & Others on 25 August, 2014
Author: B.R.Sarangi
Bench: Amitava Roy, B.R.Sarangi
ORISSA HIGH COURT: CUTTACK
W.A. No. 238 of 2012
In the matter of an appeal under Article 4 of the Orissa High Court Order, 1948 read with
Clause 10 of the Letter Patent Constituting the High Court of Judicature at Patna.
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Susanta Kumar Jena & ......... Appellants
another
-versus-
Smt. Basanti Sethi & .......... Respondents
others
For appellants : M/s. Prahallad Kar,
A.K. Mohanty & G.D. Kar
For respondents : M/s. N.K. Sahu, B. Swain and,
S.K. Sahoo (For Respondent
Nos.1 & 2)
PRESENT:
THE HONOURABLE THE CHIEF JUSTICE SHRI AMITAVA ROY
AND
THE HONOURABLE DR. JUSTICE B.R.SARANGI
Date of hearing and judgment : 25.08.2014
Dr. B.R.Sarangi, J.The appellants being the legal heirs of the deceased-writ petitioner in O.J.C. No. 7296 of 1998 have filed the instant appeal challenging the judgment dated 13.02.2012 passed by the learned Single Judge confirming the order dated 27.10.1997 (Annexure-7 to the writ petition) passed by the Joint Commissioner, Settlement and Consolidation, Bhubaneswar in Revision Case No.70 of 1994 setting aside the order of Consolidation Officer, Bhadrak dated 04.06.1993 passed in Objection Case No.505 of 1992 (Annexure-4 to the writ petition) and the order of the 2 Deputy Director, Consolidation, Bhadrak passed in Appeal Case No.29 of 1993 (Annexure-5 to the writ petition).
2. The factual backdrop of the case in hand is that C.S. Plot No.963 was recorded as Puratan Patita in the name of ex-landlord, Mrutunjaya Narayan Praharaj which was divided into several plots under M.S. Khata No.385, M.S. Plot No.1049. The disputed land relates to M.S. Plot No.1049 comprising an area of Ac.0.84 under M.S. Khata No.385 which is a part of Plot No.963 measuring Ac.5.11 dec. under C.S. Khata No.179. M.S. Khata No.385 was recorded in the name of State of Orissa as Abadjogya Anabadi whereas M.S. Plot No.1049 so far it relates to Ac.0.84 recorded as "Patita". Tenants Ledger in respect of area Ac.2.36 dec. out of Ac.5.11 dec in respect of C.S. Plot No.963 under C.S. Khata No.179 was opened in the name of Kameswar Narayan Praharaj. Respondents/opposite party nos.1 and 2 purchased the disputed land from their vendor, Kameswar Narayan Praharaj in whose name tenancy ledger stood. Therefore, during consolidation operation „parcha‟ was issued in respect of the said disputed plot in favour of the respondents/opposite party nos.1 and 2.
3. The writ petitioner filed Objection Case No.505 of 1992 stating, inter alia, that the disputed plot be recorded as Abadjogya Anabadi and respondents/opposite party Nos.1 and 2 have no right, title and interest over the same. Accordingly, respondents/opposite party Nos.1 and 2 contested the objection case categorically stating that the ex-landlord Mrutyunjaya Praharaj had leased out Ac.2.36 out of Ac.5.11 of the disputed C.S. Plot NO.963 in favour of his son Kameswar Narayan Praharaj in whose favour Tenants Ledger was opened. Kameswar Narayan Praharaj sold the disputed land to one Gangadhar Senapati by 3 way of registered sale deed dated 29.03.1966, who in turn sold Ac.0.40 dec. out of the same to Fakir Charan Tripathy by way of registered sale deed dated 17.02.1978. Subsequently, by virtue of the registered sale deeds dated 24.06.1983 and 02.09.1983 Aparna Tripathy, widow of Fakir Ch. Tripathy sold the said Ac.0.40 dec. in favour of opposite party No.1. By virtue of registered sale deed dated 09.09.1983 Gangadhar Senapati had sold Ac.0.22 dec. of the disputed property to opposite party no.1 and by virtue of another sale deed dated 09.09.1983 Gangadhar Senapati also sold the rest Ac.0.22 dec. of the disputed land to opposite party No.2 and they have been paying rent to the State and as such they have right, title and interest over the said land. While deciding the objection case the Consolidation Officer categorically stated that M.S. Plot was recorded in favour of the State in Abadajogya Anabadi Khata. During initial stage of consolidation operation, the said disputed plot was recorded as L.R. Plot No.1049, Ac.0.84 in favour of respondents/opposite party Nos.1 and 2 on the basis of the intimation slip issued in Mutatin Case Nos.1750 and 1751. The Consolidation Officer also found that the Tenants Ledger in respect of Ac.2.63 out of the disputed C.S. Plot was opened in favour of Kameswar Narayan Praharaj. The Consolidation Officer directed to record the disputed M.S. Plot No.1049 in the name of the State in Abadajogya Anabadi Khata under Kisam-Patita on the finding that the lease of the disputed land along with other land measuring Ac.2.36 by Mrutyunjaya Narayan Praharaj in favour of his son Kameswar Narayan Praharaj, who was then a minor, was void.
Considering the age of Kameswar Narayan Praharaj as 9 years as described in the sale deed dated 02.04.1961, the Consolidation Officer came to the conclusion that Kameswar Narayan Praharaj might have born in the year 1952 and therefore, the purported lease in his favour after 1952 by the ex-intermediary was void 4 under the provisions of Section 5 (i) of Orissa Estate Abolition Act and therefore, there was no valid basis for preparation of Tenant Ledger in favour of Kameswar Narayan Praharaj. In addition to the same, the Consolidation Officer also found, relying on the report of the R.I. that the Tenants Ledger contained no plot number for which it was opened. Therefore, the disputed plot could not be related to the land covered under the Tenants Ledger and hence, any transfer of the disputed land by Kameswar Narayan Praharaj and the subsequent transfer of the same made in favour of respondents/opposite party Nos.1 and 2 were void and did not confer any right, title and interest in their favour.
4. Assailing such order of the Consolidation Officer in Objection Case No.505 of 1992, respondents/opposite party Nos.1 and 2 preferred appeal before the Deputy Director, Consolidation, Bhadrak which was registered as Appeal No. 29 of 1993. Upon hearing the appellate authority came to hold that the genuineness of Hatapatta said to have been issued by ex-landlord in favour of his infant son- Kameswar Narayan Praharaj was doubtful as the same had not been produced as a consequence whereof he confirmed the order of the Consolidation Officer and dismissed the appeal by order under Annexure-5. Respondents/opposite party Nos.1 and 2 challenging the said order passed by the appellate authority filed Revision Case No.70 of 1994 before the Joint Commissioner, Settlement and Consolidation, Bhubaneswar, who by affording opportunity of hearing to the parties, allowed the revision, vide Annexure-7 and set aside the orders of the Deputy Director of Consolidation and the Consolidation Officer holding that the courts below had failed to appreciate one important document, i.e. the Tenancy Ledger.
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5. It is the settled law that by accepting rent tenancy can be created. Even if the story of Hatpatta failed then Kameswar could be treated as tenant, as State had accepted him as tenant by accepting rent from him. That apart the documents filed by the revision petitioner such as M.S. R.O.Rs and Plot index showed that the entire suit Plot had been recorded in the names of different persons in „Stitiban‟ status. Further while the Consolidation Officer had given much importance to M.S. Entry, the revisional authority did not accept that on the ground that it was the settled law that a settlement entry neither creates nor extinguishes title, and the share had been rectified within 12 years of its publication.
5. Challenging the said revisional order, the present appellants being the legal heirs of the writ petitioner approached this Court by filing O.J.C. No. 7296 of 1998 stating inter alia that the purported lease of the disputed land along with other lands by ex-landlord in favour of the minor son Kameswar Narayan Praharaj was void as the lease was in contravention of Section 3 of the Orissa Communal, Forest and Private Lands (Prohibition of Alienation) Act, 1948 inasmuch as the disputed land was a communal land being recorded as „Patita‟ and lease was purportedly executed after 1.1.1946 and as such no lease deed was produced either before the Consolidation Officer or before the Deputy Director in appeal. Therefore, the preparation of Tenant Ledger in the name of Kameswar was without any basis and as such the respondent- opposite parties 1 and 2 derived no title on the basis of their purchase. It is further stated that a proceeding under Section 5 (1) of the Orissa Estates Abolition Act initiated before the O.E.A. Collector in Misc. Case No.1 of 1992 challenging the validity of the lease in favour of Kameswar is pending for consideration. Therefore, the Consolidation Revisional Authority should have stayed its stand in revision case awaiting the decision of the proceeding initiated under Section 5 (1) of the O.E.A. Act. 6
6. The respondent-opposite parties 1 and 2 filed counter affidavit stating that the provisions of the 1948 Act relating to prohibition of transfer contained therein were not applicable as the disputed land was not coming under the said category or class to which the 1948 Act applied. That apart, the lease of the disputed land along with other lands by the ex-landlord in favour of his son Kameswar could not be said to be invalid merely because the proceeding under Section 5 (1) of the O.E.A. Act had been initiated without an inquiry being made by the O.E.A. Authority to come to the conclusion that the lease was made to defeat any provision of the O.E.A. Act or for obtaining higher compensation for the land. At the same time, it was stated that by acceptance of rent by the State from Kameswar, tenancy had been created even if the story of lease by a „Hatapata‟ fails which was a settled principle, and therefore, claimed that this Court should not interfere with the revisional order passed by the competent authority. In addition to the same, it is further stated that besides the disputed land, other lands which were leased out to Kameswar had been sold at different points of time to different persons and they have been recorded in the names of the purchasers and neither the State nor anybody else challenged the validity of the same.
7. Learned Single Judge considering the above aspects came to a conclusion rejecting the contentions raised before the revisional authority by the writ petitioner stating that law is well settled that if on the basis of uncontroverted facts, certain legal consequence has to be ensued on the basis of the legal principles, that would amount to question of law which can be raised during revisonal stage even though it was not urged at the original or appellate stage. Thereby His Lordship rejected the contention of learned counsel for the writ petitioner/appellants herein. The plea of creation of tenancy by acceptance of rent by the State was not raised by 7 the respondents/opposite parties before the Deputy Director, Consolidation. So far as the proceeding under Section 5(i) of the OEA Act is concerned he has not expressed any opinion and kept the matter open to decide the question on merit in the said proceeding and confirmed the revisional order under Annexure-9 passed by the Joint Commissioner of Consolidation by dismissing the writ petition.
8. Learned counsel for the appellant/petitioner strenuously urged before this Court that the learned Single Judge has not dislodged the findings of the Consolidation Officer as well as that of the appellate authority. He strenuously urged that the lease of Ac.0.31 of land stood in favour of the minor son, but no such lease was produced at any stage. It is urged by him that the lease in favour of the said minor son was void. Therefore, any consequential transfer also could not be sustained in the eye of law. He has relied upon Section 23 of the Orissa Tenancy Act and also finding of the appellate Court that the present respondents/opposite party Nos.1 and 2 did not posses the suit land and rather the same was being used as playground of a School which was not dislodged by the Joint Commissioner of the Consolidation or the learned Single Judge in their judgments. In order to substantiate his case he has relied upon the case in Sri Narayan Gosain & others v. The Collector, Cuttack & others, AIR 1986 Orissa 46 and State of Orissa and others v. Harapriya Bisoi, 2009 (II) OLR (SC) 229.
9. Per contra Mr. N.K. Sahu, learned counsel appearing for the respondents/opposite party nos.1 and 2 supported the finding of the learned Single Judge and argued with vehemence that on the basis of recording in the Tenants‟ ledger after vesting of the estate, rent being accepted and recognized tenancy being recognized, the contention raised by the appellant/petitioner cannot sustain and rather 8 by accepting rent, right accrued in favour of respondents/opposite party Nos.1 and 2, as a consequence whereof they were entitled to enjoy the property. It is further urged that the appellant/petitioner had locus standi to challenge settlement of any property in favour of respondents/opposite party Nos.1 and 2 as in essence he was not a "person aggrieved". Rather he claimed that he was one of the villagers espousing the cause on the ground that the disputed land was a playground of a School. It is stated that at his instance the proceeding was not maintainable as he had no authority to challenge the settlement in favour of respondent Nos.1 and 2. On the basis of undisputed facts mentioned above, the C.S. Record of Rights of the disputed land i.e. C.S. Plot NO.963 reveals that the said plot was recorded in Anabadi Khata describing as "Puruna Padia". There is nothing in Annexure-1 to show that it was set apart for use of general public or community. On the other hand, from Annexure-2 which is the M.S R.O.R. of the disputed land, it appears that the same was recorded in Abada Yogya Anabadi khata of the Government with status "Patita" mentioning thereby "fallow". The R.O.R. clearly reveals that it neither recorded the disputed land as Gochar, Rakhita or "Sarvasadharana" and as such there is no material to show that at any point of time the disputed land was set apart for common use of villagers. Therefore, the provisions of Section 3 (1) of the 1948 Act imposing prohibition for alienation of any communal forest or private land by landlord without previous sanction of the Collector is not applicable. Section 4 (1) of the 1948 Act provides that any transfer in violation of Section 3 effected after 01.04.1946 shall be void and inoperative. Section 2(a) (ii) of the Act defines "communal land" in relation to a case governed under the Orissa Tenancy Act, as land recorded as Gochar, Rakhit or Sarbasadharana in the R.O.R. or waste lands are either expressly or impliedly set apart for common use of villagers whether recorded as such in the ROR or not. 9
10. In view of such position, this Court has no hesitation to hold that the land granted in favour of Kameswar by the Ex-Landlord was hit by other provision of the 1948 Act. As it further reveals, the „Hatpata‟ said to have been granted by the Ex-Landlord in favour of Kameswar was not produced before any other authorities or during the Consolidation proceeding but taking note of Tenancy Ledger by the Consolidation Officer or the Deputy Director, it was held that the Tenancy Ledger had no basis. At the same time, after the vesting, Kameswar cannot be treated as tenant since the State accepted the rent from him. Once the State accepted rent, the tenancy of Kameswar has been recognized. This fact is not disputed by the appellant/petitioner. In order to substantiate such contention, reliance has been placed on the decision in the case of Jagannath Nanda v. Bishnu Dalei & others, 40 (1974) CLT 888, where Clause-9 of Section 3 of the Tenancy Act was under
consideration and this Court held that Clause (9) of Section 3 of the Orissa Tenancy Act says that the expression "land-lord" includes Government. Consequently for the purpose of tenancy laws, Government is in the same position of land-lord. It is well settled that under the tenancy laws a formal document is not necessary to create an agricultural tenancy and a tenant can be inducted to an agricultural holding by mere acceptance of rent whereafter he would acquire the status of a tenant. This position has been well recognized in Basiruddin & Another v. State of Orissa & others, 1961 ILR Cutt 595, Bhikari Tripathy v. Kashinath Misra & others, 1964 ILR Cutt 289, State of Orissa and others v. Bhakta Charan Naik and others, 1965 ILR Cutt 22 and The Collector of Puri v. Budhinath Samantray and another, Vol.35 (1969) CLT 552.
11. Considering the above proposition of law and applying the admitted facts in hand since Kameswar was paying rent from the date of preparation 10 of Tenancy Ledger and thereafter the tenants of respondents/opposite party nos.1 and 2 from the date of their purchase and subsequent thereto by the respondent Nos.1 and 2 to the State Government after vesting, it clearly substantiated that tenancy had been created in favour of Kameswar even in absence of any proof of any original lease. Once the tenancy was created in favour of Kameswar and the State after vesting recognized his tenancy, right accrued in favour of respondents/opposite Party Nos.1 and 2 to continue as recorded tenants and they were entitled to enjoy the disputed plot in question. So far as reliance placed on Sri Narayan Gosain (supra) is concerned, learned counsel for the appellant/petitioner cannot have any application of the same to the present context and in the said judgment reliance was placed on Section 105 of Transfer of Properties Act in order to enjoy the property on transfer and for satisfying the requirement, it is necessary under the Contract Act to have a valid contract. As it appears, the tenancy of Kameswar as well as respondent Nos.1 and 2 was accepted by accepting the rent which was recognized by the State.
Therefore, the validity or invalidity of the original lease deed need not be gone into, and the ratio of the decision in Sri Narayan Gosain case (supra) is not applicable to the case in hand.
12. Reliance has been placed on State of Orissa and others v.
Harapriya Bisoi (supra) to the effect that the suppression of material documents would amount to vitiate any similar process is not applicable to the present facts and circumstances in view of the fact there is no suppression of any material document nor has any fraud been practised in any manner. Rather the appellant/petitioner tried to beat around the bush to create a title by approaching different forums putting respondent Nos.1 and 2 to harassment of facing a series of legal proceedings. 11
13. Mr. N.K. Sahu, learned counsel for respondent-opposite party urged that the present appellant/petitioner was not a „person aggrieved‟ and therefore, at his instance the proceeding was not maintainable.
According to Black‟s Law Dictionary, "aggrieved party" refers to a party whose personal, pecuniary or property rights have been adversely affected by another person‟s actions or by a court‟s decree or judgment.
14. In Shobha Suresh Jumani v. appellate Tribunal, Forfeited Property, (2001) 5 SCC 755 : AIR 2001 SC 2288, the apex Court held that from the scheme of the Act it is clear that " any person aggrieved" by an order of the competent authority would mean a person whose property is held to be illegally acquired under the Act and which is to be forfeited or whose legal rights qua the said property are adversely affected. A relative or associate who has no interest or right in such property cannot be held to be a person aggrieved. It is true that the wife may be aggrieved because her husband‟s properties are forfeited. But that would not confer a right to file an appeal against such order. There is no infringement of her legal right. For the purposes of the Act husband and wife are different entities. If the properties standing in the name of a relative or associate are forfeited on the ground that smugglers or foreign exchange manipulators were holding the said properties in their names or that such properties are legally acquired, then to that extent, for challenging the said finding, the relative or associate can be held to be person aggrieved by the order of the competent authority. But, a relative or associate cannot be considered to be aggrieved if the properties belonging to the smuggler or foreign exchange manipulator are forfeited under the Act.
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15. In Sidebotham, Re,exp Sidebotham case (Ch D at p.465) in paragraph-5, it has been held that the words „person aggrieved‟ do not really mean a man who is disappointed of a benefit which he might have received if some other order had been made. A „person aggrieved‟ must be a man who has suffered a legal grievance, a man against whom a decision has been pronounced which has wrongfully deprived him of something or wrongfully refused him something, or wrongfully affected his title to something".
16. In Jasbhai Motibhai Desai v. Roshan Kumar case (1976) 1 SCC 671 in paragraph-13 the apex Court held that the expression "aggrieved person"
denotes an elastic, and to an extent, an elusive concept.
".......It cannot be confined within the bounds of a rigid, exact, and comprehensive definition. At best, its features can be described in a broad tentative manner. Its scope and meaning depends on diverse, variable factors such as the content and intent of the statute of which contravention is alleged, the specific circumstances of the case, the nature and extent of the petitioner‟s interest, and the nature and extent of the prejudice or injury suffered by him."
17. Considering this proposition and applying the same to the present context, it appears that the petitioner is not a „person aggrieved‟ and at his instance the proceeding cannot sustain. That apart so far as the proceeding under Section 5 (1) of the OEA Act is concerned, which was initiated during the year 1992, long after the vesting in the State and is pending, to which the learned Single Judge has not expressed any opinion on the merits of the said proceedings.
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18. In the aforesaid facts and circumstances of the case, this Court unhesitatingtly holds that there is no error in the judgment of the learned Single Judge calling for any interference with the same in the present appeal while confirming the view taken by the Joint Commissioner of Consolidation and Settlement in revision vide order Annexure-7.
Accordingly, the Writ Appeal fails and is dismissed.
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Dr.B.R.Sarangi, J.
Amitava Roy, C. J. I agree.
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Amitava Roy,C. J.
Orissa High Court, Cuttack
The 25th August, 2014 Alok/Jagdev