Orissa High Court
Prahallad Behera vs State Of Orissa And Another on 20 November, 2017
Author: A.K. Rath
Bench: A.K. Rath
HIGH COURT OF ORISSA: CUTTACK
S.A. No.219 of 1990
From the judgment and decree dated 27.3.1990 and 11.4.1990
respectively passed by Smt. M. Pattnaik, learned Addl. District
Judge, Bhadrak in T.A. No.75/227 of 1986/87 reversing the
judgment and decree dated 12.11.1986 and 20.11.1986
respectively passed by Shri P.N. Sahu, learned Munsif, Bhadrak in
O.S. No.136/85-I.
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Prahallad Behera .................. Appellant
---versus--
State of Orissa and another ................... Respondents
For Appellant : Miss Soumya Mishra, Advocate
For Respondents : Mr. R.P. Mohapatra, A.G.A.
JUDGMENT
P R E S E N T:
THE HON'BLE DR. JUSTICE A.K. RATH
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Date of Hearing : 10.11.2017 │ Date of Judgment:20.11.2017
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Dr. A.K. Rath, J.This second appeal by the plaintiff is directed against the decision dated 27.3.1990 passed by the learned lower appellate court in T.A. No.75/227 of 1986/87 reversing the decision dated 12.11.1986 of the learned trial court in O.S. No.136/85-I.
2. Plaintiff-appellant instituted the suit for declaration that the order dated 5.4.1984 passed by the Tahasildar, Bhadrak, defendant no.2, in Case No.1 of 1976 under Sec.5(i) of the Orissa Estate Abolition Act (in short, 'O.E.A. Act') is void and without jurisdiction. It was pleaded that the suit land originally belonged to ex-landlord, Habibur Raheman. The ex-landlord executed an unregistered lease deed in his favour on 13.6.1943 and delivered 2 possession. He paid rent to the ex-landlord. He reclaimed the suit land, silted up tanks, grew paddy and other vegetables over the vacate land. He had also constructed a farm house. He was in possession of the land for 40 years and acquired occupancy right. After vesting, rent was paid to the State. While the matter stood thus, the consolidation operation in the area, where the land falls, started in the year 1979. The consolidation authorities granted ROR in his favour. At the instance of some persons, defendant no.2 initiated Case No.1 of 1976 under Sec.5(i) of the O.E.A. Act against him. Case was not transferred to the consolidation authorities. In the said proceeding, legal heirs of the landlord were not parties. Without affording any opportunity to him, the defendant no.2 set aside the lease and declared that right, title and interest of the plaintiff stood extinguished. The said order is void, inoperative and does not affect his title.
3. The defendants resisted the claim of the plaintiff stating that the nature of the land is communal. The suit land belonged to Mattowali Malna Md. Habibur Raheman. The same was recorded under Anabadi khata. The status of the land was Bajyapti Mandhya- Satwadhikari. The land vested in the State free from all encumbrances after coming into force of the O.E.A. Act. The plaintiff appeared in Case No.1 of 1976. He failed to produce hatpatta. He had not adduced any evidence. The lease deed was not in existence. The alleged lease deed was a fabricated one. The rent receipts granted by the ex-landlord were fabricated. The defendant no.2 was the competent authority to initiate proceeding. In the said case, he visited the spot and found that there are two tanks over the suit schedule land. The villagers are using the tank. The villagers stated that they have constructed a house as village library. He further 3 found that the plaintiff was not in physical possession. The plaintiff had not acquired any right, title and interest.
4. Learned trial court struck nine issues. Plaintiff adduced evidence, both oral and documentary. No evidence was adduced by the defendants. Learned trial court came to hold that no notice was issued to the plaintiff and the ex-landlord in Case No.1 of 1976. The order sheet does not reveal that the defendant no.2 had verified the ekpadia submitted by the ex-landlord. The order passed by the defendant no.2 is void. Held so, it decreed the suit. Feeling aggrieved, the defendants filed appeal before the learned District Judge, Balasore, which was subsequently transferred to the court of the learned Additional District Judge, Bhadrak and renumbered as T.A. No.75/227 of 1986/87. Learned lower appellate court held that the date of the unregistered lease deed, Ext.7, is shown as 13.6.43. The plaintiff instituted the suit, when he was 55 years. He was 13 years old when the alleged lease deed was executed. On scanning of the said document, it held that the portion showing the age of the plaintiff had been torn away. No evidence was adduced by the plaintiff with regard to the age at the time of execution of the lease deed. The order passed by the defendant no.2, Ext.3, shows that the plaintiff was absent. It revealed that the defendant no.2 made a spot enquiry and found that the disputed land is communal in nature. Plaintiff never possessed the same. The hatpatta issued by the ex-intermediary had been created after 1.1.1946. It further held that the proceeding initiated by the defendant no.2 was well within the jurisdiction of defendant no.2 and the order was legal and valid. Held so, it allowed the appeal.
5. The second appeal was admitted on the following substantial questions of law.
4"(A) Whether the declaration in question could be adjudicated by Consolidation authorities or is to be adjudicated by the Civil Court ?
(B) Whether the successor of the ex-landlord were necessary parties in O.E.A. proceeding ?"
6. Heard Miss Soumya Mishra on behalf of Mr. S.N. Mishra, learned counsel for the appellant and Mr. R.P. Mohapatra, learned A.G.A. for the respondents.
7. Miss Mishra, learned counsel for the appellant submitted that the suit land originally belonged to ex-landlord. He granted an unregistered lease deed in favour of the plaintiff. The plaintiff was in possession of the same. The plaintiff paid rent to the ex-landlord. The land vested in the State. He paid rent to the State. The defendant no.2 had no jurisdiction to initiate proceeding under Sec.5(i) of the O.E.A. Act, since the area came under the purview of the consolidation operation. In the said case, opportunity was not provided to the plaintiff. The ex-landlord was not a party. Thus the order is nullity. The consolidation ROR has been issued in his favour. She further contended that the proceeding before the O.E.A. Collector abated. She relied on the decision of the apex Court in the case of Gorakh Nath Dube vs. Hari Narain Singh and others, AIR 1973 SC 2451.
8. Per contra, Mr. Mohapatra, learned A.G.A. for the respondents submitted that the land originally belonged to ex- landlord. The same vested in the State free from all encumbrances. The O.E.A. Collector had jurisdiction to initiate proceeding under Sec.5(i) of the O.E.A. Act. The Collector has jurisdiction to set aside any settlement or lease made by the proprietor of an estate after 01.01.1946, if he is satisfied that the same had been made with the object of defeating any of the provision of the Act for determining 5 higher compensation thereunder. The lease was required to be registered under Sec.17 of the Indian Registration Act, but the same has not been done. He further contended that the plaintiff had not brought to the notice of the consolidation authorities nor the O.E.A. authority relating to continuation of proceedings before the respective forums. Under Sec.4(4) of the Orissa Consolidation of Holdings and Prevention of Fragmentation of Land Act, 1972 (hereinafter referred to as "OCH & PFL Act") abatement is not automatic. A judicial order is necessary. He further contended that under Sec.39 of the O.E.A. Act, civil court has jurisdiction to entertain the suit. He relied on Full Bench decision of the Patna High Court in the case of Ram Nath Mandal and others vs. Jojan Mandal and others, AIR 1964 Patna 1 and the decision of this Court in the case of Bishnu Mohan Mallik vs. Dhruba Naik, 1986 (II) OLR--566.
9. Before adverting the contentions raised by the parties, it is necessary to set out the provisions of Sec.5(i) and Sec.39 of the O.E.A. Act.
"5(i) Where the Collector is satisfied in respect of the settlement or lease of any land or mines or minerals comprised in such estate or the transfer of any kind of interests in any building used primarily as office or cutchery for the collection of rent of such estate or as rest houses for estate servants on duty or as golas for storing rent in kind or part thereof, made or created at any time after the 1st, day of January, 1946, that such settlement, lease or transfer was made with the object of defeating any provisions of this Act or obtaining higher compensation thereunder, he shall have power to make enquiries in respect of such settlement, lease or transfer and may, after giving reasonable notice to the parties concerned to appear and be heard, set aside any such settlement, lease or transfer, dispossess the person claiming under it and take possession of such property in the manner provided 6 in Clause (h) on such terms as may appear to him to be fair and equitable:
Provided that in case where the Collector decides not to set aside any such settlement, lease or transfer he shall refer the case to the Board of Revenue for confirmation of the settlement, lease or transfer and the orders passed by the Board of Revenue in this behalf shall be final:
[Provided further that the period of limitation for the realization by the State Government of dues in respect of such of the leases, settlements, or transfers as have been the subject-matter of an inquiry under this clause, shall, with respect to the period after the date of vesting, be three years from the date of the order setting aside or confirming the same, made by the Collector or by the Board of Revenue as the case may be, unless a longer period of limitation is applicable in respect of such dues under any other law for the time being in force in relation to such lease, settlement of transfer.] xxx xxx xxx
39. Bar to jurisdiction of Civil Courts in certain matters -- No suit shall be brought in any Civil Court in respect of any entry in or omission from a Compensation Assessment roll or in respect of any order passed under Chapters II to VI or concerning any matter which is or has already been the subject to any application made or proceeding taken under the side Chapters."
10. The civil court has plenary jurisdiction. Seventy-five years ago, the Privy Council in the case of Secretary of State vs. Mask & Co., AIR 1940 PC 105 held that the exclusion of the jurisdiction of the civil courts is not to be readily inferred, but that such exclusion must either be explicitly expressed or clearly implied. It is also well settled that even if the jurisdiction is so excluded, the civil courts have jurisdiction to examine into cases where the provisions of the Act have not been complied with, or the statutory 7 tribunal has not acted in conformity with the fundamental principles of judicial procedure.
11. In Ram Nath Mandal and others (supra), the Full Bench of Patna held that under Section 117 of the T.P. Act, a lease for agricultural purposes is not necessary to be made by a written instrument and it may be effected by an oral agreement in which case the question of registration will not arise. However, if the transaction is reduced to writing, then in the case of lease from year to year or for any term exceeding a year or reserving a yearly rent, registration would be required under Section 17 of the Registration Act, and if unregistered the lease will be inadmissible in evidence under Section 49 of the Registration Act and other evidence of its terms will be precluded under Section 91 of the Evidence Act. In that case, the claim of creating of tenancy on the basis of rent receipts in pursuance of an oral agreement was negatived on the ground that no such case had been put forward by the plaintiff in the plaint.
12. Admittedly, the suit land belonged to ex-landlord. On a scanning of the unregistered lease deed, learned lower appellate court came to hold that a portion of the same where the age was mentioned is torn up. The same is a fabricated one. On a cursory perusal of the said document, it is evident that the portion meant for age was torn. The suit was instituted in the year 1985 when the plaintiff was 55 years. He was born in the year 1930. The deed was said to have been executed on 13.6.1943, i.e., when he was 13 years of age. It is highly inconceivable that a minor of 13 years old could approach the ex-landlord to cultivate the land.
13. Case No.1 of 1976 was initiated by the defendant no.2. The impugned order revealed that opportunity of hearing was 8 provided to the plaintiff. In the said case, the plaintiff appeared and filed written statement also. The O.E.A. Collector visited the spot and found that there were two tanks over the same. The villagers were using the tank. The plaintiff remained absent in spite of the notice. The nature of the land is communal. The alleged unregistered lease deed was not produced before him. He passed a reasoned order. The order does not suffer from any procedural infirmity. The O.E.A. Collector was well within the jurisdiction to initiate proceeding. As held by the Privy Council in the case of Secretary of State (supra) that even if the jurisdiction is so excluded, the civil courts have jurisdiction to examine into cases where the provisions of the Act have not been complied with, or the statutory tribunal has not acted in conformity with the fundamental principles of judicial procedure. Both the courts held that there is no procedural infirmity. Opportunity of hearing was provided to the plaintiff.
14. The decision in the case of Gorakh Nath Dube (supra) is distinguishable on facts. The question arose before the apex Court as to whether a suit for cancellation of a sale deed, which was pending on the date of the notification under Section 4 of the U.P. Consolidation of Holdings Act of 1954, abates under Section 5 (2) of the Act. The apex Court held that the validity of sale deeds, gift deeds, and wills could be gone into in proceedings before the consolidation authorities, because such questions naturally and necessarily arose and had to be decided in the course of adjudications on rights or interests in land which are the subject matter of consolidation proceedings. It was further held that distinction can be made between cases where a document is wholly or partially invalid so that it can be disregarded by any court or 9 authority and one where it has to be actually set aside before it can cease to have legal effect.
15. In the wake of aforesaid, the appeal, sans merit, deserves dismissal. Accordingly, the same is dismissed. The parties will bear their own costs throughout.
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Dr. A.K. Rath, J.
Orissa High Court, Cuttack The 20th November, 2017/Basanta