Orissa High Court
Sarat Kumar Bal And Another vs State Of Orissa And Others ......... ... on 15 January, 2014
Author: B.R.Sarangi
Bench: B.R.Sarangi
ORISSA HIGH COURT: CUTTACK
WRIT PETITION (CIVIL) No. 12388 of 2005
In the matter of an application under Articles 226 and 227 of the Constitution of
India.
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Sarat Kumar Bal and another ......... Petitioners
-versus-
State of Orissa and others ......... Opposite Parties
For petitioner :M/s. Manmohan Sahu, S.K.Mallick, G.Mallick
& T.Sethi
For opp. parties : Addl. Govt. Advocate
PRESENT:
THE HONOURABLE KUMARI JUSTICE S. PANDA
AND
THE HONOURABLE DR. JUSTICE B.R.SARANGI
Date of hearing: 13.12.2013 | Date of judgment : 15 .01.2014
Dr. B.R.Sarangi, J.The petitioners, who are the son and daughter of Late Gopinath Bal, has filed this writ petition assailing the ex parte decision dated 18.3.2005 taken by the Member, Board of Revenue, Orissa, Cuttack in O.E.A. Revision No.139 of 2000 under Section 38-B of the Orissa Estate Abolition Act, 1951 annulling the order of the Additional Tahasildar-cum-OEA Collector, Sukinda passed in OEA Lease Case No. 69/77 dated 9.2.78/15.2.78 and directing to restore the land to the Government by recording the same in the Government khata.
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2. The fact of the case, in nutshell, is that Sukinda Estate vested with the State Government on 27.11.1952. The O.E.A. Case has been filed in 1977, i.e. 25 years later and registered as OEA Lease Case No. 69/77 by Late Gopinath Bal for settlement of the suit plots, such as Ac.1.00 out of plot no. 162 Ac.41.20 and Ac.0.50 out of plot no.41 Ac.344.50 on the ground that he was in possession of the same since last 19/20 years and has shown mis-receipt from the Sukinda Estate soon before vesting of the estate. The classification of the land is "Anabadi Sala Jungle" and it is stated that on the basis of payment of patta salami and display of receipt since 1952-53, the same should be settled in his favour. The O.E.A. Collector by order dated 9.2.1978/15.2.1978 directed for settlement of the land in favour of Late Gopinath Bal in O.E.A. Lease Case No. 69/77.
3. On examination of the case records, the Collector, Jajpur having found gross irregularities committed by the OEA Collector in disposal of the OEA lease case, made a reference to the Member, Board of Revenue to set aside the said order in exercise of the revisional power under Section 38-B of the O.E.A. Act, 1951.
4. Notice was issued to the son and daughter of Late Gopinath Bal, who are the present petitioners before this Court and they entered their appearance through their counsel Mr.S.Das, but they remained absent during hearing of the revision case even though notice was duly served on them. Therefore, they were set ex parte. Earlier Mr.S.Das, learned counsel had filed written note of argument and the same has been taken into consideration by the 3 Member, Board of Revenue, who on perusing the lower court record and report of the Tahasildar, Sukinda, passed the impugned order.
5. Mr.M.M.Sahu, learned counsel appearing for the petitioner strenuously urged that the Member, Board of Revenue has not given opportunity of hearing in compliance to the principle of natural justice. Further, he urged that no illegalities or irregularities has been committed by the O.E.A. Collector in settling the land in favour of Late Gopinath Bal in OEA Lease Case No. 69/77 and stated that the Additional Tahasildar has issued possession certificate and tenancy ledger information as per Annexure-4, which reveals that rent has been collected from the tenant Late Gopinath Bal from 1978-79 up to 1998-99. Pursuant to the order passed in OEA Lease Case No.69/77, Late Gopinath Bal and after him, the present petitioners, are residing there by constructing pucca residential houses from the date of lease and in the event any order is passed detrimental to their interest, it will cause great irreparable loss to them as they will be thrown out of their own residential house after staying there for long 35 years. It is further urged that the Collector, Jajpur without causing any enquiry in proper perspective behind their back has reviewed the order passed with regard to settlement of the land in favour of Late Gopinath Bal. Apart from the same, in the previous settlement the land was recorded as "Anabadi Sala Jungle", but as per the HAL ROR published on 14.3.2000 those lands have become "Abad Jogya Anabadi", which will go to show that the lands are no longer "Sala Jungle". Above all, it is strenuously urged that Late Gopinath Bal is a settled raiyat of village Nimapali having stitiban status in respect of Khata No.202 and he possessed the disputed land since 1957. Therefore, if any illegalities or 4 irregularities committed by the Tahasildar, Sukinda, no action had been taken by the landlord under Section 61(2) of the Orissa Tenancy Act, 1913 by making an application to the Collector for ejectment against Late Gopinath Bal who possessed the disputed land since 1957. Therefore, late Gopinath Bal and after him the present petitioners have acquired occupancy right in respect of the suit land. Further it is urged that the Government of Orissa under Revenue and Excise Department had written Letter No.37430-R-GE(CTC)-224/65 dated 31.05.1965 addressed to the Director of Land Records and Survey, Orissa, Cuttack, under the subject "Disposal of encroachment cases in the Sukinda Tahasil", wherein it has been specifically mentioned that a rayat who by way of encroachment has reclaimed for agricultural or homestead purpose any waste land included in village and remained in possession continuously for 4 (four) years from the date of first reclamation acquires raiyati right over the said reclaimed lands immediately after the said period of four years provided his land lord has not during these four years applied to the Collector for his ejectment. It is further urged that the erstwhile land recorded as "Sal Jungle" has lost its identity and late Gopinath Bal having reclaimed such lands and having remained in possession continuously for four (4) years, using the same for homestead purpose by constructing their residential house and no ejectment suit having been filed against late Gopinath Bal within four (4) years from the date of reclamation, he has acquired the raiyati right over the said lands and therefore, the petitioners are entitled to retain such disputed lands.
6. Learned Addl. Government Advocate, appearing for the State argued with vehemence that there is gross irregularity committed by the O.E.A. 5 Collector in settling the Government land in favour of the late Gopinath Bal in O.E.A. lease case No.69/77. He stated that the O.E.A. Act provides the cutoff date as "01.01.1946". If an intermediary or a tenant was in possession of the vested land by that date, then only his case can be considered by the O.E.A. Court. But in the present case the year of commencement of possession has been mentioned as "since 1952-53" in the application and "since last 19/20 years" in the report of the Revenue Inspector. Therefore, in no case the intermediary or a tenant shall be in possession of the vested land prior to 01.01.1946 and as such, the O.E.A. Collector has no jurisdiction to settle the land on his own accord. That apart, individual and general notices have been sent by designating the case as "Vesting Case" where as the case was initiated as "O.E.A. Lease case" and as such, there is no provision in O.E.A. Act to maintain either category of the above cases. Further the notices have been issued without Process Register number of the Tahasil Office thereby the said notices have no legal sanction and cannot also be treated as notice issued in the aforementioned O.E.A. Lease case. In view of such position the O.E.A. Collector could not have settled the land in favour of late Gopinath Bal in the said O.E.A. Lease case which is improper, illegal and irregular and above all without jurisdiction.
7. To the above contention of the rival parties, the following questions arise for consideration in this writ petition:
(i) Whether irregularities have been committed in the matter of settlement of the land in favour of late Gopinath Bal by O.E.A. Collector in O.E.A. Lease Case No. 69/77 ?6
(ii) Whether the petitioners have got any right to remain in possession of the property in question in view of the provisions contained in Sec.61(2) of the Orissa Tenancy Act, 1913?
(iii) Whether the Member, Board of Revenue, Orissa, Cuttack has given opportunity of hearing to the petitioners?
(iv) To what order?
8. Admittedly, the O.E.A. Act provides the cutoff date as "01.01.1946". If an intermediary or a tenant was in possession of a vested land by that date, he can make an application for settlement of such land in his favour. Admittedly Sukinda Estate vested with the State Government on 27.11.1952. It is the further admitted case that O.E.A. Case was filed by late Gopinath Bal, father of the present petitioners during the year 1977 and registered as O.E.A. Lease case No.69-77, i.e., 25 years later than the date of vesting. However, at the time of filing of such application late Gopinath Bal had not produced any document to substantiate his claim of such settlement. Had the ex-intermediary inducted late Gopinath Bal as a tenant, he would have submitted ekpadia in his favour at the time of vesting of the estate and the tenancy ledger could have been prepared in his favour by Tahasil Office, but no such documents were available with the O.E.A. Collector at the time of disposal of the said O.E.A. Case. When no record was available with the O.E.A. Collector and the Revenue Inspector, there was no scope for them to start field inquiry and settle the land in favour of late Gopinath Bal. But the O.E.A. Collector has relied upon the field inquiry report of the Revenue Inspector, which has not been prepared by following prescribed procedure, to mean neither the neighbouring tenants have been asked to confirm the possession nor have any authenticated 7 documents been verified before preparation of such report. The Revenue Inspector, Hariput recommended for settlement of the land in favour of the late Gopinath Bal on the ground that he was in possession of the land since last 19/20 years. Late Gopinath Bal showed one mis- receipt of Sukinda Estate soon before the vesting of estate. The classification of the land was "Anabadi Sala Jungle". Late Gopinath Bal was in possession of a part of the suit plot. The report of the Revenue Inspector contains no illegal description. Therefore, the settlement of the land in favour of late Gopinath Bal is the outcome of non-
application of mind by the O.E.A. Collector and there are gross discrepancies in such settlement. Apart from the same, the O.E.A. Act having provided the cutoff date as "01.01.1946". Only the ex-intermediary or tenant who was in possession of the vested land by that date, their cases can be considered by the O.E.A. Act. But in the present case, the year of commencement of possession has been mentioned "since 1952-53" in the application filed by the late Gopinath Bal and the report of the Revenue Inspector indicates " since 19/20 years" and more so, admittedly the Sukinda estate vested with the State Government on 27.11.1952. In no case it relates to the cutoff date of vesting under the O.E.A. Act. Therefore, the O.E.A. Collector could not have settled the land in favour of Late Gopinath Bal and if such settlement has been made, it is without jurisdiction.
9. On perusal of the records, it is found that notices have been issued without the Process Register number of the Tahasil Office and as such, the notices have been sent by designating the case as "Vesting Case" where as the case was initiated as "O.E.A. Lease Case". There is no such provision in the O.E.A. act to maintain either category of the above cases thereby notices have 8 no legal sanction and cannot also be treated as notices issued in the aforementioned O.E.A. Lease case.
10. The Revenue Inspector has reported the classification of the case lands as "Anabadi Sal Jungle", which cannot be settled under the provision of O.E.A. Act due to enactment of Forest Conservation Act, 1980. If an Anabadi land is to be settled with any individual on lease basis, then approval from the Board of Revenue is a must as per the provisions of the O.E.A. Act. But, no such approval has been taken by the O.E.A. Collector while passing the order on 09.02.78/15.02.78 in O.E.A. Lease Case No.69/77. In order to substantiate the case of late Gopinath Bal, no Zamabandi, Ekpadia or Tenancy Ledger have been filed at the time of vesting of the estate and more so, availability of the said document also did not arise as he himself admitted that he did not get patta from the ex-intermediary. As such, there was no scope for the O.E.A. Collector for settlement of the land. Gross irregularity has been committed by the O.E.A. Collector while settling the land in favour of the late Gopinath Bal because if late Gopinath Bal got the land on lease basis and the O.E.A. Collector felt that the lease is genuine, then he could have got approval from the Board of Revenue, which has not been done in the said lease case. Therefore, the settlement of the land in O.E.A. Lease case No. 69/77 dated 09.02.78/15.02.78 by the Addl. Tahasildar-cum-O.E.A. Collector, Sukinda is not justified as the same is without jurisdiction.
11. The Member, Board of Revenue invoking the power under section 38-B of the O.E.A. Act, perused the records and considered the same in proper prospective. Further, the power of the Member, Board of Revenue under 9 section 38-B of the Act remains no more res integra in view of the decisions of the apex Court in State of Orissa v. Brundaban Sharma and another, 1995 (Supp.) 3 SCC 249 and in State of Orissa v. Nityananda Satpathi Vol.-96 (2003) CLT 720 (SC) and this Court in State of Orissa V. Baidyanath Jena and Others, 2013 II CLR 923. In the case of State of Orissa v. Baidyanath Jena (supra), this Court has held that the object of conferment of power under Section 38-B on the Member, Board of Revenue is to prevent collusive or fraudulent acts or actions on the part of the intermediary or lower level officers to defeat the object of the Act. If that be so, then the Member, Board of Revenue can set right the same by invoking the power U/s. 38-B of the O.E.A. Act. Therefore, the impugned order passed by the learned Member, Board of Revenue is well within his jurisdiction and as such, he is wholly justified in setting aside the settlement made in favour of Late Gopinath Bal by invoking the power under Section 38-B of the O.E.A. Act.
12. Mr. M.M. Sahu, learned counsel for the petitioners strenuously urged that if it is held that there was irregularity or illegality by Additional Tahasildar-cum-OEA Collector then the petitioners' father having possessed the disputed land since 1957 no action had been taken by the land lord under Section 61(2) of the Orissa Tenancy Act, 1915 by making application to the Collector for his ejectment and as such, he has acquired occupancy right in respect of the said land. He relied upon the letter dated 31.5.1965 of the Government of Orissa Revenue and Excise Department addressed to the Director of Land Records and Survey, Orissa, Cuttack with regard to the "disposal of the encroachment cases in Sukinda Tahasil" which specifically 10 states that a raiyat who by way of encroachment has reclaimed for agricultural or homestead purpose any waste land included in village and remained in possession continuously for four years from the date of first reclamation acquires raiyati right over the said lands against the said reclaimed land immediately after the said period of four years provided his land lord has not during these four years applied to the Collector for his ejectment. It is stated that the erstwhile land recorded as "Sal Jungle" having lost its identity and late Gopinath Bal having reclaimed such land and having remained in possession continuously for four years using the same for homestead purpose where actually present petitioners are residing by constructing their residential houses and no ejectment suit having been filed against late Gopinath Bal within four years from the date of reclamation have acquired raiyati rights over the said lands, thereby the petitioners are entitled to retain the said disputed land. To such contention, it is stated that these questions have been raised for the first time in this proceeding and as such, this vital question which is to be adjudicated by the appropriate authority under the provisions of the Orissa Tenancy Act. More particularly, when the Member, Board of Revenue, Orissa, Cuttack is considering the settlement of land in favour of Late Gopinath Bal pursuant to the O.E.A. Lease case in exercise of power conferred under section 38-B of the O.E.A Act, he is to see the legality and propriety of the order passed by the competent authorities. While doing so, he has not committed any illegality or irregularity in setting aside the order passed by the O.E.A. Collector as the same has been done without jurisdiction.
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13. So far as non-compliance of the principles of natural justice is concerned, it is stated that in course of hearing of the revision case by the Member, Board of Revenue, neither the advocate for the present petitioners nor the present petitioners themselves were present, therefore they should have been given opportunity of hearing in the matter. It is the admitted case of the parties that notices had been issued to the present petitioners pursuant to which they appeared through their counsel, participated in the proceeding and filed their written arguments but on the date of effective oral hearing, the lawyer of the petitioners was not present. In view of this it cannot be said that no opportunity of hearing was given, rather whatever contentions they have to raise, they have filed the same by way of written argument, which has been considered by Member, Board of Revenue and on consideration of the same the Member, Board of Revenue, Orissa, Cuttack has passed the impugned order and therefore, cannot be said that there is noncompliance of the principles of natural justice.
14. In view of the aforesaid facts and circumstances, the writ petition fails and the same is accordingly dismissed.
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Dr.B.R.Sarangi, J.
S.Panda, J.
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S.Panda, J.
Orissa High Court, Cuttack The 15th January, 2014/PKSahoo