Orissa High Court
Binodini Bhue & Others vs State Of Odisha; Represented By .... ... on 24 September, 2024
Bench: D. Dash, V. Narasingh
IN THE HIGH COURT OF ORISSA AT CUTTACK
W.P. (C) No.27980 of 2021 (A)
&
W.P.(C) No.9419 of 2022 (B)
In the matter of applications under Articles 226 & 227 of the
Constitution of India, 1950.
----
W.P. (C) No.27980 of 2021 : (A)
1. Binodini Bhue & others .... Petitioners
-Versus-
1. State of Odisha; represented by .... Opp. Parties
Secretary to Government, Revenue
& Disaster Management
Department & Others
W.P. (C) No.9419 of 2022 : (B)
1. Debarchan Padhan; and another .... Petitioners
-Versus-
1.State of Odisha represented by ....
Opposite Parties
the Collector, Bargarh and others wherein Opposite
Parties 8 to 15 are
Proforma
Opposite Parties
Appeared in this case by Hybrid Arrangement
(Virtual/Physical Mode):
=========================================================
For Petitioners - M/s. Nirod Ku. Sahu,
B.Swain & S.K. Nayak
(Advocates in W.P.(C)
No.27980/2021).
M/s.D.Mohapatra, M.R.Pradhan,
J. Barik & P.K. Singhdeo
W.P.(C) No.27980 of 2021 & W.P.(C) No.9419 of 2022 Page 1 of 44
(Advocates in W.P.(C)
No.9419/2022).
For Opposite Parties - Mr. G.N. Rout,
Addl. Standing Counsel for
O.Ps.1 to 5 in W.P.(C)
No.27980/2021 and for O.Ps.1 to 4
in W.P.(C) No.9419/2022).
- Mr. S.K. Mishra, Sr. Advocate,
J.Pradhan & P.S. Mohanty
(For Interveners in W.P.(C)
No.27980/2021.
- M/s.Nirod Ku. Sahu, B.Swain,
S.K. Nayak, A. Panda,
N.R.Sahoo & S.S. Sahu
(For Caveator in W.P.(C)
No.9419/2022)
CORAM:
MR. JUSTICE D. DASH
MR. JUSTICE V. NARASINGH
Date of Judgment: 24.09.2024
The Petitioners, by filing the Writ Petition as at (A), have invoked the jurisdiction of this Court under Articles 226 & 227 of the Constitution of India, seeking a direction for quashing the letter dated 05.12.2019 issued by the Additional Assistant Commissioner of Endowments, Sambalpur-Opposite Party No.6 to the extent that the contents/observations made in the said letter is not applicable to the property of the Petitioners recorded under the Hal Khata No.2414/1716 comprising Plot Nos.4445, 4446 and 4449 covering an area Ac.1.20 decimals and that those Page 2 of 44 W.P.(C) No.27980 of 2021 & W.P.(C) No.9419 of 2022 lands do not form a part and parcel of the land under Khata No.2525 recorded in the name of the Deity and that the properties of the Petitioners as above have no nexus with the property of the Deity.
Since the Writ Petition as at (B) also concerns with the same subject matter and the Petitioners therein have filed the Intervention Application (I.A. No.3182 of 2024) in the present Writ Petition as at (A); both the Writ Petitions had been heard together for their disposal by the common judgment in view of the order dated 04.08.2022 passed in W.P.(C) No.14215 of 2021.
2. Case of the Petitioners runs as under:-
(A) The Sub-Divisional Officer, Bargarh by issuing the SANAND on 25.05.1935 had appointed Late Sana Jhankar, a member of Sahara Caste of Mouza Bargarh as Village Jhankar and allotted him Ac.21.25 decimals of land from Hamid Settlement Khata No.269 towards Jhankar Jagir Mafi/ Gandai Naukari Mafi.
(B) The property which is the subject matter of the present writ petition, is under Hal Khata No.2416/1716 under Plot Nos.4445, 4446 and 4449 measuring Ac.1.20 decimals. These lands, according to the Petitioners were part of Jagir land of Sana Jhankar corresponding to the land under Hamid Settlement Khata No.269, Plot No.247 (Part). The Major Page 3 of 44 W.P.(C) No.27980 of 2021 & W.P.(C) No.9419 of 2022 Settlement Operation in the area started in the year, 1962. On 10.07.1964 during Khanapuri stage of the Major Settlement, the above Jagir land of Late Sana Jhankar was recorded in his name under the Not Final Khata No.1134 as would be evident from the certified copy of the Munsarim's Mistake List prepared during the Major Settlement Operation. From that Munsarim Mistake List that entire Ac.21.25 decimals out of the land under Hamid Settlement Khata No.269 was recorded in the name of Sana Jhankar with the status 'Gandai Naukari Mafi'.
(C) However, at the stage of preparation of the Draft Record of Right during Major Settlement Operation, the aforesaid Jagiri land of Sana Jhankar of 'Not Final' Khanapuri Khata No.1134 was recorded in his name exclusively under corresponding Major Settlement Khata No.2525. It is stated that the Jagir land of Sana Jhankar under Hamid Settlement Khata No.269 was never the property of 'Deity' or Grama Devi Bije Nijgaon, which is the point of dispute. Those were recorded in the name of Late Sana Jhankar vide M.S. Khata No.2525 along with other plots. (D) When the matter stood thus, the Orissa Offices of Village Police (Abolition) Act, 1964 came into force/operation in the undivided District of Sambalpur. By the operation of the provision of the said Act, all the Jagir lands stood vested in the State free from all encumbrances as per section-3 of the Act. Page 4 of 44 W.P.(C) No.27980 of 2021 & W.P.(C) No.9419 of 2022 Under section-4 of the Act, a right upon the respective Village Police Officer was conferred for settlement of the Jagir lands with right of occupancy therein on fixation of fair and equitable rent to be determined in the manner prescribed under the Act subject to the provision of sub-section-2 of section-4 of the said Act.
(E) In pursuance of the above, VPA Case No.01 of 1967-68 was initiated. The Tahasildar, Bargarh, being empowered under the said Act, initiated the above noted case and submitted the record to the Collector, Sambalpur for issuance of notice to Sana Jhankar as he was in possession of the land as the Choukidar Jhankar. The Collector after verification, issued notice to Sana Jhankar in Form-1 and public notice in Form-2 and returned the file to the Tahasildar for further necessary action at his end. The notice issued by the Collector was served upon Sana Jhankar on 24.12.1968. On 09.01.1969, the Sub-Divisional Officer, Bargarh as required for the purpose, certified the SANAND of appointment dated 25.09.1935 issued to Late Sana Jhankar in respect of his Jagir land. Sana Jhankar then submitted the application with the schedule of his Jagir land accompanied with the SANAND so certified evidencing possession over the land and his appointment as Village Police Officer.
Page 5 of 44 W.P.(C) No.27980 of 2021 & W.P.(C) No.9419 of 2022 (F) Thereafter, on 27.05.1969, General Notice in Form-4 as at Appendix-1 was issued inviting objections from the interested individuals to participate in the hearing. Besides the above, land under Hamid Settlement Khata No.269, other Jagir lands of different Jagirdars relating to three Hamid Settlement Khatas of 139, 140 and 92 were also involved in the said VPA case for consideration. The settlement proceeding of Sana Jhankar in VPA case was considered on the basis of total extent of Jagir land given to him i.e. Ac.21.25 decimals available in Hamid Settlement Khata No.269. During pendency of the said VPA case, Sana Jhankar died.
After the death of Sana Jhankar complying all the procedural formalities as prescribed under the Act and the Rules prescribed thereunder and after conducting necessary inquiry relating to possession, the Tahasildar, Bargarh settled the Jagiri land in favour of the four sons of Late Sana Jhankar by passing the order on 23.04.1971 which reads as under:-
"Applicant Sana Sahara's two sons, namely Chandramani, Haribhajan are present. Applicant who was the Lambardar Jhankar has since died, his four sons' are in cultivating possession of the lands. As such half of the service lands are to be settled in favour of the four sons namely (1) Candramani, (2) Haribhajan, (3) Balamuknda, (4) Raju. Prepare draft Jamabandi and put up case to 30.05.1971".
Page 6 of 44 W.P.(C) No.27980 of 2021 & W.P.(C) No.9419 of 2022 (G) Pursuant to the same, on 18.11.1973, final Jamabandi of the settled land was signed by the Tahasildar and direction was given for preparation of the Patta in triplicate. The Jamabandi was prepared in Form-7 allotting Ac.10.07 decimals of land to four sons of Sana Jhankar and Ac.0.55 decimals to the Grama Sasan. On 25.11.1973, the Tahasildar, Bargarh passed the order that out of the land under Hamid Settlement Khata No.269, Ac.10.07 decimals be recorded under Rayati status in the name of four sons of Sana Jhankar and accordingly, rent was directed to be collected from them w.e.f. 01.08.1967. Out of the remaining land of Ac.21.25 decimals, Ac.10.63 decimals was kept reserved for Seva Puja of the Village Deity and Ac.0.55 decimals was settled in the name of Grama Sasan. In that VPA Proceeding for the first time, provision for allotment of aforesaid land for Seva Puja of Deity was made from the Jagir land of Sana Jhankar after its vesting with the State. On 20.06.1970, when the settlement proceeding under OVPA Act was going on, the final Record of Right of the Major Settlement of the Jagir lands of Late Sana Jhankar was published and that was recorded under M.S. Khata No.2525 reducing the area to Ac.18.04 decimals under the status 'Bebandobasta'. In view of that recording, Bebandobasta Case No.09 of 1984 was started. Though the property in question was settled in VPA Case No.01 of 1967-68 in the name of four sons of Late Sana Jhankar, the Major Settlement Record of Right was Page 7 of 44 W.P.(C) No.27980 of 2021 & W.P.(C) No.9419 of 2022 published under Bebandobast status. So for fixation of the rent, Tahasildar, Bargarh started the above noted Bebandobast Case No.09 of 1984 and its reallotment in consonance with the order of the settlement in VPA Case. Notice was served on the legal heirs of Late Sana Jhankar, general proclamation was also made. On 15.10.1984, The Tahasildar, Bargarh received the detail report from the Amin in respect of the land under Hamid Settlement plot corresponding to those involved in the Major Settlement Khata No.2525 recorded in the name of Sana Jhankar under Bebandobast Khata. The Tahasildar, Bargarh, verified the Hamid Settlement Record in Hamid Settlement Khata No.2525, the respective area settled in VPA Case No.01 of 1967-68 and by taking into account the fact that an area of Ac.15.75 decimals to be available in the field as Ex-Jhankar Jagir land of Sana Jhankar, reallotted the area in consonance with the settlement allowed in VPA Case No.01 of 1967-68. The area of land under Khata No.2525 was divided into three parts, Ac.8.60 decimals were allotted to four sons of Sana Jhankar under Rayati status from M.S. Khata No.2525, Ac.0.55 decimals to Grama Sasan under Rayati status and Ac.6.68 decimals was kept reserved for observance of Seva Puja of the village Deity. In this way by allotting in respect of the area out of land under Major Settlement Khata No.2525, the Tahasildar by order dated 23.11.1985 directed for correction of the Record of Right. Page 8 of 44 W.P.(C) No.27980 of 2021 & W.P.(C) No.9419 of 2022 Accordingly, order was passed for issuance of intimation slip to the local Revenue Inspector to correct the relevant Register maintained in the Office. On 30.03.1989, the Tahasildar passed an order for fixation of rent by giving detail description of the respective area allotted to the four sons of Sana Jhankar, to the Grama Sasana and to the Deity out of the land under Major Settlement Khata No.2525. As per the said direction, the Record Keeper prepared original Record of Right of M.S. Khata No.2525 by excluding the land measuring Ac.8.60 decimals out of the land under said original Khata and allotting the same in favour of the four sons of Sana Jhankar assigning a separate Khata. (H) After necessary correction in the original Record of Right as per the order dated 30.03.1989, the original Khata No.2525 was given to the Deity with the resettled area of Ac.6.68 decimals under the Marfatdarship of four sons of Sana Jhankar. The land measuring Ac.0.55 decimals was taken away and recorded separately in a Khata in the name of Grama Sasan. (I) Thus, it is said that the land under original M.S. Khata No.2525 recorded under Bebandobast status in the name of Sana Jhankar is the settled property of the Deity is misleading and that is so projected by showing some ministerial work done by the Record Keeper on the basis of the order passed in Bebandobast Case. After correction of the Record of Right, the Page 9 of 44 W.P.(C) No.27980 of 2021 & W.P.(C) No.9419 of 2022 property allotted to the Deity having an area Ac.6.68 decimals was recorded separately under Hal Khata No.2525 and the Record of Right was finally published which has no nexus at all with the present land forming the subject matter of this Writ Petitions as at (A) and (B). The property of the four sons of Sana Jhankar of which the present land is a part comprises an area Ac.1.20 decimals; under Plot No.4445 measuring Ac.0.68 decimals, Plot No.4446 measuring Ac.0.40 decimals and Plot No.4449 extending to Ac.0.10 decimals was assigned with a new Khata bearing No.2414/1716.
During pendency of the Bebandobast Case No.09 of 1984, since the property in question had already been settled in the name of the four sons of Sana Jhankar, Haribhajan Jhankar, the father of the present Petitioner Nos. 2 and 3, filed an application under section-23-A of the Orissa Land Reforms Act, 1960 (for short hereinafter called as 'the OLR Act') for eviction of one Parsuram Agrawal, as he was in unauthorized occupation of land under M.S. Khata No.2525 corresponding to Hal Khata No.2414/1716 under Plot Nos.4445, area Ac.6.68 decimals, 4446 area Ac.0.40 decimals and 4449 area Ac.0.10 decimals which had been settled in their name. The application was numbered as OLR Case No.104 of 1987. Said Parsuram Agrawal contested the proceeding by disputing the title of Haribhajan Jhankar. On 31.03.1989, the Sub-Collector, allowed the application filed by Page 10 of 44 W.P.(C) No.27980 of 2021 & W.P.(C) No.9419 of 2022 Haribhajan Jhankar and directed for eviction of that Parsuram Agrawal, who is not a member of Scheduled Tribe from the said land in question and ordered for the restoration of the land in favour of Haribhajan Jhankar.
Revision being carried by said Parsuram Agrawal, after being unsuccessful in the original forum; the Collector, Bargarh in Revision Case No.03 of 1991, confirmed the order of the Sub- Collector. Said Parsuram then filed Writ Petition which was numbered as OJC No.1287 of 1995. During pendency of this Writ Petition, both Parsuram and Haribhajan died. So in place of Parsuram, his son Suresh Agrawal pursued the said Writ Petition.
(J) By order dated 31.10.2008, the Writ Petition was dismissed by this Court and the order of the Sub-Collector as well as the Collector called in question in the said Writ Petition were confirmed with the observation that the order of settlement made in VPA Case No.01 of 1967-68 is genuine and the proceeding undertaken in Bebandobast Case No.09 of 1984 is legal.
Said Suresh Agrawal then carried a Writ Appeal, which was numbered as W.A. No.229 of 2008. During pendency of such, said Suresh Agrawal filed a Civil Suit claiming the title over the land in dispute, taking the selfsame pleas which had Page 11 of 44 W.P.(C) No.27980 of 2021 & W.P.(C) No.9419 of 2022 been taken in the eviction proceeding under section-23A of the OLR Act.
In that Civil suit, Suresh Agrawal being the Plaintiff, filed one Interim Application under Order-39 Rule-1 and 2 of the Code of Civil Procedure (for short, the CPC) seeking injunction against the Petitioners in restraining them from interfering with his possession over the land in question. By order dated 23.10.2009, learned Civil Judge (Senior Division), Bargarh dismissed the Application.
When the matter stood thus, the Writ Appeal (W.A. No.229 of 2008) filed by the Suresh Agrawal was dismissed by rejecting the contentions raised therein upholding the eviction in terms of OJC No.1287 of 1995. Thus, the Rayati status of the Petitioners under the Hal Khata No.2414/1716 under Plot Nos.4445, area Ac.6.68 decimals, 4446 area Ac.0.40 decimals and 4449 area Ac.0.10 decimals was again confirmed. (K) Said Suresh Agrawal being aggrieved by the order in the Writ Appeal preferred Special Leave Petition (SLP) before the Hon'ble Apex Court which was numbered as SLP(C) No.16431 of 2011.
On 11.07.2021, the SLP was dismissed and consequentially the order of eviction of Suresh Agrawal from the land in question attained finality. However, on the prayer of Suresh Page 12 of 44 W.P.(C) No.27980 of 2021 & W.P.(C) No.9419 of 2022 Agrawal, liberty was granted to him to move the High Court by filing one Review Application.
On 07.05.2013, Suresh Agrawal in order to obviate order of eviction challenged the order of the learned Civil Judge (Senior Division) in I.A. No. 11 of 2009 before the learned District Judge, Bargarh by filing an Appeal. The Appeal was dismissed.
Then said Suresh Kumar Agrawal again challenged the order passed in the said Appeal (FAO No.09 of 2009) in a Writ petition which was numbered as W.P.(C) No.13315 of 2013, which too was dismissed by this Court on 02.07.2013.
Assailing the same, Suresh Agrawal preferred SLP i.e. SLP(C) No.33237 of 2013 before the Hon'ble Supreme Court and that was again dismissed by order dated 01.11.2013. (L) In the meantime, the Sub-Collector, Bargarh proceeded for execution of the order of eviction and issued the Warrant in Form No.16 of the OLR Rules in Execution Case No.1 of 2009 to execute the order of eviction vide order dated 11.09.2013. (M) When matter stood thus, one Durga Prasad Sharma (who according to these Petitioners had been set up by the said Suresh Agrawal), filed Writ Petition in the form of Public Interest Litigation (PIL) alleging that the property coming under Hal Khata No.2414/1716 under Plot Nos.4445, 4446 and 4449 area Ac.1.20 decimals has been fraudulently settled and allotted in Page 13 of 44 W.P.(C) No.27980 of 2021 & W.P.(C) No.9419 of 2022 favour of Haribhajan Jhankar. He, therefore, prayed for the invocation of the Extra Ordinary Writ Jurisdiction of this Court to protect the property of the Deity or in the alternative to direct the Member, Board of Revenue, Odisha and the Revenue Divisional Commissioner, Sambalpur to cause inquiry into the matter and submit a report with the appropriate remedial measure to be taken. These present Petitioners were however not made parties in the said Writ petition. By order dated 21.05.2014, this Court in the said Writ Petition filed by Durga Prasad Sharma, impleaded Grama Devi Bije Nijgaon represented through its Marfatdars and the Commissioner of Endowments as parties. An interim order was passed on 21.05.2014 to maintain status-quo over the land in dispute. The Execution Proceeding before the Sub-Collector thus was kept in abeyance, in view of such interim order.
It is apposite to note that, in the said Writ Petition (PIL), the Commissioner of Endowments and the Grama Devi Bije Nijgaon through Marfatdars did not file any reply. (N) On 27.03.2015, the Collector, Bargarh and Tahasildar, Bargarh, the Opposite Party Nos.4 and 5 to the said Writ Petition filed their counter affidavit. They clarified the position stating that the settlement made in the name of the predecessor's of the present Petitioners in VPA Case No.01 of 1967-68 to be Page 14 of 44 W.P.(C) No.27980 of 2021 & W.P.(C) No.9419 of 2022 genuine; the property given to the Petitioners in Bebandobast Case No.09 of 1984 was said to be legal; in further stating that there exists no such irregularity therein.
In the counter filed by the State, the stand of the State on the basis of the record made clear that the properties of the Deity's have been recorded by allotting the Hal Khata No.2525, area Ac.0.68 decimals which has no nexus with the land under Plot Nos.4445, 4446 and 4449 comprising an area of Ac.1.20 decimals under Khata No.2414/1716 allotted in favour of Haribandhu Jhankar.
(O) In the meanwhile, Suresh Agrawal who had filed that Review application in terms of the leave of the Hon'ble Apex Court for review of the order passed in Writ Appeal No.229 of 2011, numbered as RVWPT No.275 of 2011 stood dismissed. The Division Bench in disposing the Appeal on 08.11.2017 concluded as under:-
" xxxx xxxx xxxx xxxx Therefore, the inevitable conclusion is that, while considering the matter, the learned Single Judge has considered the materials available on record and accepted the settlement made in favour of Late Haribhajan Jhankar in VPA Case No.1967-68 as genuine and legal in the eye of law."
Page 15 of 44 W.P.(C) No.27980 of 2021 & W.P.(C) No.9419 of 2022 Said order in Review was again challenged by said Suresh Agrawal by filing SLP(C) No.37290 of 2017 before the Hon'ble Supreme Court.
By order dated 29.01.2018; the SLP was dismissed and thereby the judgment passed in the W.P.(C) No.13315 of 2013, Writ Appeal No.229 of 2011 as well as the RVWPT No.2752 of 2011 received confirmation.
(P) At this juncture, in the pending Writ Petition(C) No.9885 of 2014 which had been filed by Durga Prasad Sharma, the Petitioners filed Misc. Case No.5227 of 2018 for vacation of the order of status-quo by seeking their impleadment therein. It is apt to note that in that W.P.(C) No.9885 of 2014, two individuals namely, Debarchan Pradhan and Ananta Pandey who have now filed I.A. No.3182 of 2024 in the present Writ petition to be impleaded as Opposite Party Nos.7 and 8; who had also filed one I.A. No.8865 of 2018 in W.P.((C) No.9885 of 2014 praying therein that they should be heard in the matter as they have filed VPA Revision Case No.01 of 2018 before the Member, Board of Revenue challenging the settlement order passed in VPA Case No.01 of 1967-68 alleging serious fraud in grabbing the Government Property.
In such background, on 24.07.2018, W.P.(C) No.21162 of 2013 was filed by the present Petitioners seeking direction to the Sub-Collector for execution of the order of eviction passed in Page 16 of 44 W.P.(C) No.27980 of 2021 & W.P.(C) No.9419 of 2022 OLR Case No.04 of 1987, which has been confirmed all through and attained finality. This Court by order dated 11.01.2019 disposed of the said Writ Petition directing the Sub-Collector, Bargarh to carry out the order within a period of one month from the date of production of the certified copy of the order. The Sub-Collector on 13.06.2019 in that Execution Case No.01 of 2009 directed the Tahasildar to execute the order of eviction by demolishing the structures standing over the land and restore the possession of the same in favour of the Petitioners.
Then, said Suresh Agrawal went up to file one Complaint on 01.07.2019 in the Court of learned Sub Divisional Judicial Magistrate (S.D.J.M.), Bargarh vide 1CC Case No.28 of 2019 alleging therein that fraud had been practiced in the matter of settlement of the land in VPA case.
The present Petitioner's and Government Officials alleged to have been involved in the process were arraigned as accused persons. The Complaint was sent to the Police under section- 156(3) of the Code of Criminal Procedure (for short, 'the Cr.P.C') which is still pending investigation.
(Q) At this stage, Suresh Agrawal further approached this Court by filing a Writ Petition in W.P.(C) No.11911 of 2019 praying to allow him six weeks time to vacate the land and premises.
Page 17 of 44 W.P.(C) No.27980 of 2021 & W.P.(C) No.9419 of 2022 This Court by order dated 12.07.2019 accepted the prayer of Suresh Agrawal in allowing six weeks time to vacate the land or else to face the consequences. After expiry of the period allowed by this Court, Suresh Agrawal, however, again filed certain applications before the Tahasildar to defer the eviction, the same were rejected and the Tahasildar restored the possession of the land in favour of the Petitioners and issued certificate of execution and delivery of possession to the Petitioners in respect of the land in question.
3. When the matter stood thus in the Complaint being sent to the Police for investigation, the Sub-Inspector (S.I.) of Police entrusted with the investigation, having written a letter to the Additional Assistant Commissioner of Endowments, Sambalpur, the letter which has been impugned in the Writ Petition has been issued by the Additional Assistant Commissioner of Endowments which has again brought everything to stand still and put the Petitioners back to square one.
The Petitioners having got the possession of the property in question, when wanted to sell a portion of the property to clear up their loan dues and meet the expenses on account of long drawn litigation as also to purchase some agricultural lands in their locality, filed an application seeking permission of the Competent Authority under section-22 of the OLR Act. Public Page 18 of 44 W.P.(C) No.27980 of 2021 & W.P.(C) No.9419 of 2022 notice being issued in that proceeding, present interveners namely, Samir Kumar Pradhan, Prashant Kumar Mohapatra, Kishore Chandra Dash, Chittaranjan Mohapatra and 16 others filed Writ petition in W.P.(C) No.14215 of 2021 claiming the property to be the property of the Deity i.e. Grama Devi Bije Nijagaon by projecting that letter of the Additional Assistant Commissioner of Endowments, Sambalpur dated 22.12.2019 as the sole basis even though the earlier W.P.(C) No.9885 of 2014 had been dismissed declining such reliefs.
The present Petitioners were added as Opposite Party Nos.7, 8 and 9 in the said Writ petition vide order dated 22.04.2021. When the Petitioners appeared in the Writ petition, they have been granted liberty to file their affidavit explaining as to why said PIL shall not be entertained. At the same time, the Commissioner of Endowments, Collector, Sub-Collector, Bargarh and Tahasildar and the Additional Assistant Commissioner of Endowments, Sambalpur were also directed to file their affidavits. The present Petitioners filed their detail counter affidavit with all the supporting documents and prayed for dismissal of the said vexatious litigation by imposing exemplary cost. The Petitioners also submitted detail objections before the Additional Assistant Commissioner Endowments against said issuance of the letter which has been impugned in the Writ Petition in seeking recall of the said letter dated Page 19 of 44 W.P.(C) No.27980 of 2021 & W.P.(C) No.9419 of 2022 05.12.2019. But that has yielded no fruitful result. In this situation, when the PIL i.e. W.P.(C) No.14215 of 2021 remained pending and the letter dated 22.12.2019 issued by the Additional Assistant Commissioner, Endowments was not recalled; the Petitioners having their lawful right over the property in question which has been affirmed by all the Courts including the Hon'ble Apex Court in different proceedings have been compelled to file the present Writ Petition on 08.09.2021.
In the meantime, the Tahasildar, Bargarh on his behalf and on behalf of the Collector, Sub-Collector, Bargarh in Opposite Party Nos.3,4 and 5 filed their counter affidavit in W.P.(C) No.14215 of 2021.
They have admitted the position that the property which is the subject matter of the present Writ Petition is the Rayati lands of the Petitioners. On the basis of the record, it has been detailed by them in the counter affidavit. It is stated in detail as to how these Petitioners have acquired undisputed title over the property in question. The relevant portion of the counter affidavit runs as under:-
" xxxx xxxx xxxx xxxx
16. That the present Opposite Party No.6, 7 & 8 filed Execution Case No.1 of 2009 for execution of the order of eviction. During pendency of the Execution Case, one Durga Prasad Sharma filed W.P.(C) PIL No.9885 of 2014 before this Hon'ble Court claiming the property Page 20 of 44 W.P.(C) No.27980 of 2021 & W.P.(C) No.9419 of 2022 under Khata No.2414/1716, Plot No.4445, 4446 & 4449, area Ac.1.20 dec. as the property of the deity. In the said writ petition, the counter was filed on behalf of the Collector, Baragarh and the Tahasildar, Bargarh explaining the position of the aforesaid property. The aforesaid PIL was dismissed vide order dt.247.2018. On 13.06.2019, the learned Sub-Collector was pleased to direct for evictin of unauthorized persons in Execution Case No.1 of 2009 arising out of OLR Case No.104/87. On 28.08.2019, this deponent was pleased to execute the aforesaid order, wherein the unauthorized occupant was evicted and the possession was restored in favour of the present Opposite Party No.7,8 & 9. In view of the facts stated above, it is humbly submitted that Binodini Bhue, Jagadananda Bhue and Nigamananda Bhue are the recorded tenants and rightful owner over Khata No.2414/1716, Plot No.4445, 4446 & 4449 area Ac.1.20 decimal. It is false to allege that the aforesaid plots were recorded under Khata No.2525 in the name of Sri Sri Grama Devi Bije Nijgaon marfat sevayat Chandramani Jhankar, Haribhajan, Raju Jhankar, S/o. Sana Jhankar under the status 'Niskara'.
xxxx xxxx xxxx xxxx xxxx "
The above counter affidavit has been filed by the present Petitioners under Annexurer-26 by way of additional affidavit.
4. The Opposite Party No.5 (Tahasildar, Bargarh) for and on behalf of the Opposite Party No.4 (Sub-Collector) and Opposite Party No.2 (Collector, Bargarh) in the counter affidavit reiterated the position that the present Petitioners are the recorded owners Page 21 of 44 W.P.(C) No.27980 of 2021 & W.P.(C) No.9419 of 2022 of the land under Hal Khata No.2414/1716 under Plot Nos.4445, 4446 and 4449 admeasuring Ac.1.20 decimals. It is stated that the aforesaid plots were recorded in Khata No.2525 in the name of Sri Sri Grama Devi Bije Nijgaon is false. It has also been placed that during pendency of the present Writ petition by order dated 11.03.2022, the learned Member, Board of Revenue, Odisha has disposed of VPA Revision Case No.01 of 2018 with a clear finding that the property in question is the Rayati property of Binodini Bhue, Jagadananda and Nigamananda Bhue having no nexus with the land under Khata No.2525 recorded in the name of the Deity.
5. The Petitioners in their additional affidavit have also stated about the disposal of the VPA Revision Case by the Member, Board of Revenue stating that the said VPA Revision case filed after lapse of 47 years by the Petitioner of W.P.(C) No.9419 of 2022 under section-8(2) of the OVPA Act has been dismissed and the claim made by the Petitioners of W.P.(C) No.9419 of 2022 that the property in dispute is the property of the Government and that the predecessors of the present Petitioners by practising fraud has managed to grab the Government property by obtaining an illegal order of settlement have been rejected on merit. They state that that all these proceedings which were initiated by the Interveners being set up by Suresh Agrawal after the passing of the eviction order has Page 22 of 44 W.P.(C) No.27980 of 2021 & W.P.(C) No.9419 of 2022 ended with the finding that it is the Rayati property of the Petitioners.
6. At the cost of brevity, it is worth reiterating that required the Interveners after the disposal of the VPA Revision case have filed, W.P.(C) No.9419 of 2022 as at (B) challenging the order of the Revisional Authority and in that writ petition, the present Petitioners have been impleaded as the Opposite Party Nos.5 to
7.
7. It is pertinent to mention here that in view of the pendency of the present Writ Petition, the W.P.(C)(PIL) No.14215 of 2021 has been put to an end by order dated 04.08.2022 since the matter in dispute would stand to be decided in the present Writ Petition as well as the Writ Petition No. 9419 of 2022. In view of that, order in the PIL, the W.P.(C) No.9419 of 2022 filed by the Interveners as the Petitioners as at (B) has been tagged together and heard analogously.
The Petitioners of W.P.(C) (PIL) No.14215 of 2021 have again filed Intervention Petition in the present Writ Petition which has been numbered as I.A. No.5872 of 2023 and order has been passed that they would also be heard in the present Writ Petition and accordingly, those Intervener- Petitioners have also been heard along with the Petitioners of W.P.(C) No.9419 of Page 23 of 44 W.P.(C) No.27980 of 2021 & W.P.(C) No.9419 of 2022 2022, who have filed the Intervention Petition numbered as I.A. No.3182 of 2024.
8. The Intervener-Petitioners in the I.A. No.5872 of 2023 and the Intervener-Petitioners in the I.A. No.3182 of 2024 who have filed W.P.(C) No.9419 of 2022 have filed their affidavits; wherein the pleas taken are identical.
It has been reiterated that the property which has been the subject matter of the Writ petition is the property of the Deity. It is also their case that the land in question as per the Hamid Settlement Record was originally under Khata No.269 belonged to Bijay Jhankar occupied by Gajaraj Das, who has Zamindar/Gountia of the Mouza and in the Major Settlement, the property was settled in the name of Sri Sri Grama Devi Nijgaon under Khata No.2525 measuring an area of Ac.21.25 decimals. They have further stated that the land under Khata No.2525 belongs to the Deity and the Petitioners by committing fraud have managed to record the land in their favour by creating ROR vide Khata No.2414/1716 under Rayati status assigned with Plot Nos.4445, 4446 and 4449 which was originally under Khata No.2525.
It is also their case that the VPA proceeding under VPA Case No.01 of 1967-68 and the subsequent Bebandobast Case No.09 of 1984 are vitiated with fraud in as much as Sana Jhankar was appointed on 09.01.1969; whereas the proceeding had been Page 24 of 44 W.P.(C) No.27980 of 2021 & W.P.(C) No.9419 of 2022 undertaken in 1967-68. They state that Sana Jhankar was Ganda by caste, when the post of village Jhankar/Police was reserved for Scheduled Caste person only. The father's name of four sons of Sana Jhankar is different as would be evident from the VPA case record. Sana Jhankar died before 23.04.1971 and therefore, the very claim in Bebandobast case is illegal. They state that Bebandobast Appeal No.01 of 2022 challenging the order of the Bebandobast case passed on 23.11.1985 is pending and an order has been passed by the Collector constituting a Committee to make an inquiry into the illegality in respect of the said Bebandobast case. The Additional Assistant Commissioner of Endowments (Opposite Party No.6) in that Bebandobast Appeal has stated that Sana Jhankar was never the Temple Priest / Pujaka. It is further stated that in Civil Suit No.62 of 2009 filed against these Petitioners, they have been set ex-parte. Thus, the property in dispute is said to be the property of the Deity and therefore, while taking up the Bebandobast case, the Authority should have served notice as mandated under section-69 of the Odisha Hindu Religious Endowments Act, 1951 (for short, 'the OHRE Act').
9. To be more specific assailing the settlement of the land in the proceeding under OVP Act; it is asserted that:- (a) the order sheet of V.P.A. Case does not refer to the basis of issuing notice to San Jhankar; (b) San Jhankar having filed the Application for Page 25 of 44 W.P.(C) No.27980 of 2021 & W.P.(C) No.9419 of 2022 settlement on 19.01.1969, the proceeding was initiated prior to that; (c) discrepancies in the noting in that VPA proceeding as regards the particular office held by San Jhankar; (d) the ROR made by the Settlement Authority is without any basis and the ROR was issued prior to the settlement; (e) discrepancies with regard to the date of issuance of ROR and that being signed by the Tahasildar and (f) incorrect facts mentioned in the settlement order.
Banking on these pointed features, the settlement is said to be vitiated by fraud, and it is submitted that since fraud vitiates all such actions the same can be put under a scanner even in any collateral proceeding as the same would render all such action from it's very inception void and nonest.
10. With the above case and counter case of the parties, the following points arise for consideration:-
"(A) Whether, H.S. Khata No.269, H.S. Plot No.247(P) area Ac.1.20 dec. corresponding to M.S. Khata No.2525, Plot No.4445, 4446 and 4449 area Ac.1.20 dec. which further corresponds to Hal Khata No.2414/1716 was/is at all the property of the deity at any point of time as claimed by the Interveners?
(B) Whether, the settlement of the land in dispute made in favour of the predecessors-in-interest of the present petitioner in VPA Case No.01 of 1967-68 and in Bebondabasta Case No.09 of 1984 can at all be said to be vitiated with fraud as alleged?"Page 26 of 44
W.P.(C) No.27980 of 2021 & W.P.(C) No.9419 of 2022
11. We have heard Mr. N.K. Sahu, learned Counsel for the Petitioners and Mr. G.N. Rout, learned Additional Standing Counsel for the Opposite Party Nos. 1 to 6 at length. We have also heard Mr. Dayananda Mohapatra, learned Counsel for the Intervener Petitioners in I.A. Case No.3182 of 2024 who are the Petitioners of the W.P.(C) No.9413 of 2022 as at 'B' and Mr. Samir Mishra, learned Senior Counsel for the Petitioners in I.A. No.5872 of 2023 in great detail.
We too diligently perused the written notes of submission filed on behalf of the Petitioners and the Intervener-Petitioners, who have filed the W.P.(C) No.9413 of 2022 as at 'B'.
12. Admitted position stands that the legal battle relating to the land in question as noted in the foregoing paragraphs while stating the facts of the case of the Petitioners have been continuing for more than four decades (40 years) by now.
Be that as it may, in the meantime, Tahasildar, Bargarh (Opposite Party No.5) has already delivered the possession of the land in question to the present Petitioners and that is on 28.08.2019 by evicting Suresh Agrawal, who was then in unauthorized possession of the land in question which was in possession of his Predecessors-in-Interest from the prior point of time. His claim over the property in question has been negated in several rounds of litigations in all forums. Furthermore, the challenge to the right and ownership over the property by these Page 27 of 44 W.P.(C) No.27980 of 2021 & W.P.(C) No.9419 of 2022 Petitioners handing down from the hands of their predecessors has been upheld although in all these prior rounds of litigations.
The Commissioner of Endowments (Opposite Party No.6) and the persons in management of the Deity were aware about the same at least it can be said from the time when the order of dismissal of W.P.(C) (PIL) No.9885 of 2014 was passed by this Court on 24.07.2018. The declaration of the Rayati status of the present Petitioners over the land in dispute as ordered in VPA Case No.01 of 1967-68 and the subsequent fixation of rent in Bebandobast Case No.09 of 1984 by the Competent Authority being impugned in several proceedings before this Court and carried up till the Hon'ble Supreme Court on several occasions which mainly arose out of OLR Case No.104 of 1987 under section-23A of the OLR Act initiated by the predecessor of the present Petitioners against Suresh Agrawal, finally, the order of eviction of Suresh Agrawal has not only been passed and confirmed but also has been executed in the field.
In all those proceedings, the order passed in VPA Case No.01 of 1967-68 and Bebandobast No.09 of 1984 were held to be in order, both in law and on facts. Said order on passing such twin tests has received the seal of approval by the Apex Court in SLP(C) No.16431 of 2019, the SLP having been dismissed.
The said Suresh Agrawal then having also instituted Civil Suit No.62 of 2009 has all through failed to get an interim order Page 28 of 44 W.P.(C) No.27980 of 2021 & W.P.(C) No.9419 of 2022 of injunction. Even though in that injunction matter, said Suresh Agrawal had knocked the door of the Apex Court, the move too has failed. But then also there is no end to it and now the Intervenor-Petitioners at this patently belated stage are assailing order in the OVPA proceeding alleging fraud to have been played therein. The order passed in that proceeding under OVPA Act was challenged in the Revision before the learned Member, Board of Revenue which too has been dismissed.
13. The Collector, Bargarh (Opposite Party No.2) and Tahasildar, Bargarh (Opposite Party No.5) in their counter have clearly stated that the property in dispute is not the property of the Deity and it is Rayati property of the present Petitioners in further clarifying that the land under Hal Khata No.2414/1716 under Plot Nos.4445, 4446 and 4449 and measuring Ac.1.20 decimals as had been allotted to the present Petitioners has no nexus with the land under Hal Khata No.2525 measuring Ac.6.68 decimals belonging to the Deity.
The following statements made in the said counter affidavit are of seminal significance:-
"In the meantime, the Petitioners in connected W.P.(C) No.9419 of 2022 being set up by Suresh Agarwal filed VPA Revision Case No.1 of 2018 before Member, Board of Revenue, Orissa, Cuttack questioning the order of settlement made in VPA Case No.9 of 1984. The settlement in VPA Case No.1 of 1967-68 was challenged by taking altogether a deferent stand that; by Page 29 of 44 W.P.(C) No.27980 of 2021 & W.P.(C) No.9419 of 2022 misleading sand in connivance with the revenue authorities, the son's of Late Sana Jhankar have fraudulently managed to grab the Most Valuable Government Property by setting aside the order of settlement in calling for (1) VPA Case No.//67-68, (11) Bebandobast Case No.9/84(111) OLR Case No.104/1987, (IV) OLR Case No.1/2009. In this Revision, Samir Kumar Pradhan and his group claiming them as the so-
called Trusty in the management of the Deity had impleaded themselves as parties and participated in the hearing of the revision by filing intervention petition. Now they have intervened in this writ petition after disposal of their PIL W.P.(C) No.14215 of 2021. Learned Member, Board of Revenue on calling for the necessary report from Collector, Bargarh & the Settlement Officer, Sambalpur examined the order of settlement made in favour of the predecessors of the petitioner in VPA Case no.1 of 1967-68 and the correctness and regularity of the proceedings taken up in Bebandobast Case No.9/84 in respect of the land in dispute and dismissed the revision vide its order 11.03.2022 not only on the ground of limitation but specifically holding in the order that the property in dispute is neither the property of the deity nor the same is the property of the Government as claimed, rather, the same is the Rayati property of the petitioners and has been rightly settled under the VPA Act."
(Emphasis supplied)
14. The order dated 11.03.2022 passed by the learned Member, Board of Revenue being gone through, it is found that besides holding the Revision to be barred by limitation and lack of Page 30 of 44 W.P.(C) No.27980 of 2021 & W.P.(C) No.9419 of 2022 jurisdiction to interfere, the Revisional Authority having not stopped there has also gone into the merit and as it appears, being alive to the detail facts as reflected in the records and addressing the rival contentions by giving sound reasons has dismissed the Revision. Before the Member, Board of Revenue, the Intervener-Petitioners, namely, Debarchana Pradhan and Ananta Pradhan, who claim themselves to be the protectors of the Deity's property being Hindu Public and have filed W.P.(C) No.9419 of 2022 as at (B) challenging the final order in Revision, had contended that the property in question is the property of the Deity and stated that the Government property have been grabbed by the present Petitioners. All those contentions are found to have been addressed and finally repelled by the Revisional Authority.
15. In the present writ petition, the Petitioners have called in question the letter dated 22.12.2019 issued by the Additional Assistant Commissioner Endowments (Opposite Party No.6) under Annexure-26 that has been issued in course of investigation of the Complaint (ICC Case No.28 of 2019) filed by that Suresh Chandra Agrawal alleging fraud to have been practised in the matter of settlement of the land and order in VPA case as well as Bebandobast case. In the face of the record that, said stand of Suresh Chandra Agarwalla in various legal proceedings in relation to the land in question having been Page 31 of 44 W.P.(C) No.27980 of 2021 & W.P.(C) No.9419 of 2022 raised had been repeatedly negated, the letter in question has been issued only basing upon the letter of the Investigating Officer which has now cast cloud over the right of the Petitioners in respect of the property in question, when in numerous judicial proceedings before the Revenue Court, High Court and the Apex Court, the stand of Suresh Chandra Agarwalla has been whittled down and the right of these Petitioners over the land has been repeatedly upheld. Thus the answer on such issue has attained finality, which in our view is no more open to challenge.
16. Be that as it may, adverting to the factual position as culled out from the rival pleadings and the documents annexed thereto, is that the land in dispute was originally under Hal Settlement Khata No.269, Plot No.247(part). Said property was given on Jagir to the grandfather of the present Petitioner Nos.2 and 3 namely, Sana Jhakar. It was conveyed by a SANAND dated 20.05.1935. The Munsarim's Mistake List which is a public document prepared at the preliminarily Khanapuri stage during Major Settlement operation reveals that Sana Jhankar was allotted Ac.21.25 decimals out of which the dispute at the present is in respect of a part of it. From Sabik Khata No.269 towards Gandai Naukari Mafi. By preparation of the Record of Right in the Major Settlement, the Jagir land of Sana Jhankar was recorded under Khata No.2525 corresponding to Not Final Page 32 of 44 W.P.(C) No.27980 of 2021 & W.P.(C) No.9419 of 2022 Khanapuri Khata No.1132 exclusively in the name of Sana Jhankar.
Thus, it is manifestly clear from the record that Hamid Settlement Khata No.269 was not the property of the Deity as claimed.
In the final Record of Right under Khata No.2525, the area was reduced to Ac.18.04 decimals under Bebandobast status, which was the Jagir land of Late Sana Jhankar which vested with the State by operation of the provisions of the OVPA Act, which carries the legal presumption until successfully elbowed through rebuttal evidence, which is woefully lacking in the present case.
17. The land in question is situated in the erstwhile Sub- Division of Bargarh which was originally in the District of Sambalpur and therefore, the provision contained in Central Province Tenancy Act, 1998 (for short called as 'the CPT Act') was holding the field which classified five categories of tenants in the Central Province which are as follows:-
" (1) Absolute occupancy tenants;
(2) Occupancy tenants;
(3) Village service tenants;
(4) Sub-tenants; &
(5) Ordinary tenants."
18. Section-44 of the CPT Act, provided that neither the service tenant nor can a sub-tenant would acquire occupancy Page 33 of 44 W.P.(C) No.27980 of 2021 & W.P.(C) No.9419 of 2022 rights in a service holding and the service tenant cannot create tenure in his holding beyond the term of his holding. As per the Hamid Settlement Report, Jhankars were originally Village Priests and subsequently, they were appointed as the Watchmen of the Village Property and no property was given to them in lieu of rendering the service to the Deity. And it was given to the service tenants by the State for their maintenance. However, the Jhankar used to pay Zabti assessment. Service tenants were being appointed by the Deputy Commissioner or Settlement Officer, who had the power in certain circumstances to appoint the servants and terminate the service of village servant. Section-
54 of the CPT Act states about the incidents of Village Service Tenants and as per the definition, a tenant of a holding, who is recorded in the papers of the current settlement of the area in which the holding comprises as holding his land rent free or on favourable terms and conditions of rendering as Villager Service Tenants. Under Note-II of Section-55, in the District, the classes of tenants were recognized and that reads as under:-
"The following classes of tenants were recognized as service tenants in the district such as; Jhankar, Choukidar, Negi (Clerk), the Kumbhar, the Lohar, the Nariha, the Bhandari, and Dhoba."
19. Section-56(1) of CPT Act deals with devolution and transfer of Village Service Tenant's right and as per the same, Page 34 of 44 W.P.(C) No.27980 of 2021 & W.P.(C) No.9419 of 2022 when Village Service Tenants dies, resigns or lawfully dismissed, his right in the Village Service Holding shall pass to his successors in office. Above being the statutory provisions for correction of service tenancy in the Central Provinces, the appointment of Service Tenant was not permanent in character and was depending upon the satisfaction of the Appointing Authority under the State. When such is the legal position, allegation made by the Intervener-Petitioners that Hamid Settlement Khata No.269 was recorded in the name of Bijay Jhankar s/o Bhola Jhankar under different plots, comprising of Ac.21.25 decimals is not at all acceptable, when not even a single document has been produced to ascertain as to by what time, the name of Bijay Jhankar came to be recorded in the name of disputed property and under what status / capacity.
The present Petitioners have produced the SANAND of appointment dated 25.05.1935 showing that Sana Jhankar was appointed as Village Jhankar by the Competent Authority over Jagir land of Ac.21.25 decimals from Hamid Settlement Khata No.269 and that SANAND has subsequently been certified and accepted in VPA proceeding and recognizing the appointment of Sana Jhankar as Village Police and retention of Hamid Settlement Khata No.269 measuring Ac.21.25 decimals as his Jagir land, there has been the settlement of the land in favour of Page 35 of 44 W.P.(C) No.27980 of 2021 & W.P.(C) No.9419 of 2022 Sana Jhankar. The allegations, therefore, have absolutely no base to stand upon.
So also the allegation that the allotment of land to the Jhankar's for rendering service as servitor and in lieu of such service they were retaining the land is having no basis. Therefore, it has to be held that the property allotted to the predecessors of the present Petitioners namely, Sana Jhankar from the property of the State and that it was given on Jagir to him in the year, 1935 by that SANAND and till date of vesting, he was the Jagirdar.
In that view of the matter, the irresistible conclusion is that the land under Hamid Khata No.269, Plot No.247(part) measuring Ac.1.20 decimals corresponding to Major Settlement Khata No.2525 assigning with Plot Nos.4445, 4446 and 4449 measuring Ac.1.20 decimals which further corresponds to the land under Hal Khata No.2414/1716 which stands recorded in the name of the present Petitioners was not the property of the Deity.
The learned Member, Board of Revenue in VPA Revision Case No.01 of 2018 having made detail discussion and assigning cogent reasons has rightly held the property to be the Rayati property of the Petitioners. When such is the finding of the Competent Revisional Authority under the OVPA Act having the jurisdiction over the matter as has also been held by learned Page 36 of 44 W.P.(C) No.27980 of 2021 & W.P.(C) No.9419 of 2022 Member, Board of Revenue and their stand in the judgement dated 31.10.2008 passed in OJC No. 1281 of 1995 and the judgment dated 08.11.2017 in RVWPET No.275 of 2011 holding the order passed in VPA Case No.01 of 1967-68 and the subsequent order passed in Bebandobast Case No.09 of 1984 to be genuine and legal which have remained as such being refused to be interfered by the Hon'ble Apex Court, being free from any such infirmity; the claim of the interveners-Petitioners that the property in dispute is the part of the land under Plot No.2525 and as such the property of the Deity is wholly misconceived and such a claim at this highly belated stage appears to have been made solely to protract the litigation as long as possible by abusing the process of law. Such move, in the considered view of this Court amounts to abuse of process of law in depriving the lawful beneficiaries of the orders passed by the Competent Court or Tribunal in legal/ quasi legal proceeding from enjoying the benefit and to somehow mount pressure to surrender their legal rights.
20. It may be stated at this stage, that when the property by virtue of the provision of section-4 of the OVPA Act vested with the State free from all encumbrances, the State becoming the owner had the right to settle such land on the Jagiridars with the right of occupancy as mandated under the provisions of the OVPA Act. The Hon'ble Supreme Court by considering the Page 37 of 44 W.P.(C) No.27980 of 2021 & W.P.(C) No.9419 of 2022 nature of such type of settlement of the land by virtue of the provisions of Orissa Merged Territories Village Officers Abolition Act, 1963 in case of Maguni Charan Dwivedi Vs. State of Orissa and Another; (1976) 2 SCC 134 has categorically said that in order to be entitled to the settlement contemplated under the provisions of the said Act, the requirement is that the Village Officers or the other persons as stated under the provision has to be in separate and actual cultivating possession immediately before the particular date as stated. It has been further held that:-
"In order to be entitled to the settlement contemplated by Sub-Section (1) of Section-5, the Village Officers or the other persons mentioned in the Sub-Section had to be in "separate and actual cultivating possession"
immediately before April 1, 1966. Indisputably the words "each such persons" occurring in sub-Section (1) of Section 5 includes the holder of Village Officer, so that in order to be eligible for settlement of the land with occupancy right, he must also be in separate and actual cultivating possession of the 'bhagra land' immediately before the appointed date."
21. So, upon vesting of the land, the crucial determining factor for settlement of the same is the possession of the land immediately before the date of vesting which the Competent Authority under the Act is required to examine and decide under the relevant provision of the Act following the Rules Page 38 of 44 W.P.(C) No.27980 of 2021 & W.P.(C) No.9419 of 2022 made thereunder and accordingly pass the order either settling the land or refusing the settlement as prayed for.
In our given case, the Authorities after detail and thorough inquiry, have found that the grandfather of the Petitioners was in possession of the land in question immediately before the date of vesting and accordingly, the order of settlement has followed in VPA case No.01 of 1967-68. Therefore, the said order is not open to challenge after such long lapse of time, when in the meantime, several round of litigations having arisen, said order has not been touched upon or tinkered/ with or in any way been adversely commented upon in any manner.
According to us, in the earlier rounds of litigation, the right of the Petitioners having been questioned on several grounds including the ground of fraud specifically taken by one Durga Prasad Sharma (W.P.(C) No.9885 of 2014); the principles contained in Explanation VI to Section II of the CPC also squarely comes into play in view of the settled position of law that the principles of Resjudicata which is based on sound public policy to put an end to the litigation at one point of time has the applicability to the writ proceedings as well.
Therefore, in the backdrop of the longstanding history of the litigations concerning the land in question in order to put final end to the same, this time, the Court again in clear terms confirms the Rayati rights of the Petitioners over the land in Page 39 of 44 W.P.(C) No.27980 of 2021 & W.P.(C) No.9419 of 2022 question in further declaring that the same is not the part of the property of the Deity.
22. That apart, again coming to the allegation of fraud in the matter of settlement of the land in question in favour of the predecessors of the Petitioners way back in the year 1971 vide order dated 23.04.1971 in VPA Case No.01 of 1967-68; it first be stated that such an allegations as to practicing fraud in obtaining the order of settlement is being placed after lapse of 50 years. This order of settlement which is questioned as the outcome of fraud being perpetrated by the predecessors of the Petitioners upon the Authority was also the subject matter before the series of litigations which are not necessary to be stated as that would be unnecessarily burdening the judgment. In all those litigations as already stated, the order has withstood the legal test. In any case, the claim of the Petitioners is centering round the order of settlement in VPA Case No.01 of 1967-68 and the subsequent order in Bebandobast Case No.09 of 1984, which is pursuant to the order in VPA case. The Revisional Authority as provided under section-8(2) of the OVPA Act has already decided the matter on 11.03.2022 holding in clear terms that the property in question is the Rayati property of the Petitioners and it has no connection with the Deity. Such a claim being advanced by the Petitioners therein (Interveners Petitioners in W.P.(C) No.27980 of 2021) Page 40 of 44 W.P.(C) No.27980 of 2021 & W.P.(C) No.9419 of 2022 and the Petitioner in W.P.(C) No.9419 of 2022, after five decades (50 years) of passing of the order of settlement, the Revisional Authority still sat over to decide the revision. For the purpose of such adjudication report from the Collector (Opposite Party No.2) was called for. The Report had explained the position of the record pre-vesting and also post vesting which have been found to be well in order and free from any such infirmity. The Collector (Opposite Party No.2) has reiterated that the property in dispute is Rayati property of the Petitioners and it has no nexus with the property of the Deity in further asserting the order of settlement passed in VPA Case No.01 of 1967-68, the order passed in Bebandobast Case No.09 of 1984 to be free from any such factual or legal infirmity.
In the meantime, the Competent Authority sitting over the Execution Proceeding at the behest of these Petitioners for restoration of possession of the land pursuant to the order passed in a proceeding for restoration under the OLR Act has delivered the possession of the said property to the Petitioners on 28.08.2019.
There being no such foundation as regards perpetration of fraud in order to grab the Government property, the moves before us appear to be only to somehow frustrate the previous orders standing in favour of the Petitioners holding their Rayati right over the property in question, by not allowing the Page 41 of 44 W.P.(C) No.27980 of 2021 & W.P.(C) No.9419 of 2022 Petitioners to exercise the rights as the owners of the said land in question and make the legal process never ending and as such the same are bound to fail.
In the given facts and circumstances, it clearly appears that the Interveners-Petitioners have tried to grind the judicial system by leveling false allegations including the allegation of fraud having no foundation. Notwithstanding that for establishment of fraud, the standard of acceptance of the plea stands on appreciation beyond reasonable doubt. The Intervener-Petitioners, in our considered view, are thus required to face the legal consequences for the vexatious litigations. The learned Additional Assistant Commissioner of Endowments, Sambalpur-Opposite Party No.6 in the given facts ought not to have issued that letter dated 05.12.2019, impugned in this Writ petition. In fact, that Durga Prasad Sharma filed W.P.(C) (PIL) No.9558 of 2014, claiming the property in question to be the property of the Deity; further leveling the allegation and asserting that the settlement order has been obtained in VPA Case No.01 of 1967-68, which has been subsequently recognized in Bebandobast Case No.09 of 1984 by practicing fraud.
The said writ petition was dismissed by order dated 24.07.2018 and more pertinently, in the said writ petition, the State had filed the counter denying the allegation of fraud etc. and the Additional Assistant Commissioner of Endowments and Page 42 of 44 W.P.(C) No.27980 of 2021 & W.P.(C) No.9419 of 2022 Deity being parties, have not challenged the final order passed therein and therefore, the writ petition filed by the Interveners- Petitioners by pressing into service that very letter dated 05.12.2019 issued by the Additional Assistant Commissioner of Endowments, Sambalpur-Opposite Party No.6 must fail.
The Intervener-Petitioners in I.A. No.3182 of 2024 who have filed the W.P.(C) No.9419 of 2022 as at 'B' and the Intervener-Petitioners in I.A. No.5872 of 2023 appear to have suddenly arisen from deep slumber and have come forward to object the settlement of land in question in the proceeding under OVAP Act when, in fact, they have for all these period of more than five decades have maintained stoic silence. The moves at their behest is a glaring instance of abuse of the process of the Court. The main purpose as appears is to entangle the Petitioners in endless litigation and deprive them from enjoying the property in question by exercising all the rights over the same as the rightful owners which being repeatedly challenged has been upheld by the Courts including the Hon'ble Apex Court in several rounds of proceedings, one after the other.
In the wake of aforesaid discussion and reasons, the letter dated 05.12.2019 passed by the Additional Assistant Commissioner of Endowments, Sambalpur-Opposite Party No.6 under Annexure-23 is hereby quashed in its entirety holding that the same is without any Authority and nonest in the eye of Page 43 of 44 W.P.(C) No.27980 of 2021 & W.P.(C) No.9419 of 2022 law. It is reiterated that the direction issued in the letter in respect of the property as recorded under Hal Khata No.2414/1716 under Plot Nos.4445, 4446 and 4449 measuring an area of Ac.1.20 decimals is dehors the law and it is declared that the same is not the part and parcel of the property under Khata No.2525 recorded in the name of the Deity and as such has no nexus.
23. Resultantly, the writ petition (W.P.(C) No.27980 of 2021) as at (A) is allowed.
The writ petition W.P.(C) No.9419 of 2022 as at (B) is dismissed.
The Petitioners of the said petition who are also the Petitioners in I.A. No.3182 of 2024 are held liable to pay cost of Rs.2,50,000/- (Rupees two lakh and fifty thousand) and the Petitioners in I.A. No.5872 of 2023 are held liable to pay of Rs.2,50,000/- (Rupees two lakh and fifty thousand). The costs be deposited with the Odisha State Legal Services Authority (OSLSA), Cuttack within four weeks hence failing which proceeding for recovery of the same as arrear of land revenue.
A copy of this judgment be forwarded to the Secretary, OSLSA, Cuttack for information and necessary action.
(V. Narasingh),
Signature Not Verified (D. Dash),
Digitally Signed
Signed by: NARAYAN HO
Judge. Judge.
Narayan
Reason: Authentication
Location: OHC
Date: 30-Sep-2024 18:43:40
Page 44 of 44
W.P.(C) No.27980 of 2021 & W.P.(C) No.9419 of 2022