Orissa High Court
Bijaya Gantayat And Others vs The Collector Jajpur Others on 30 August, 2016
Author: K.R. Mohapatra
Bench: K.R. Mohapatra
HIGH COURT OF ORISSA: CUTTACK.
W.P.(C) No. 15024 OF 2004
In the matter of an application under Articles 226 and 227 of
Constitution of India.
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Bijaya Gantayat and others ...... Petitioners
-Versus-
The Collector, Jajpur others ...... Opp. Parties
For Petitioners : M/s. Rangadhar Behera,
S.A.Nayeem & P.K.Pattnaik
For Opp. Parties : Addl. Government Advocate
(For O.P. 1 to 3)
M/s. B. Bhuyan, P.Mohanty,
B.N.Mishra, C.R.Swain
& G.R.Parida
(For rest O.Ps.)
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Date of Judgment: 30.08.2016
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PRESENT:
THE HON'BLE KUMARI JUSTICE S. PANDA
AND
THE HON'BLE SHRI JUSTICE K.R. MOHAPATRA
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K.R. Mohapatra, J.The Petitioners in this Writ Petition assails the order dated 20.10.2004 (Annexure-12) passed by the Additional District Magistrate, Jajpur in O.E.A. Appeal No.2 of 2000 confirming the order dated 12.05.1993 (Annexure-11) passed by the Sub-Collector, Jajpur in OEA Case No.1 of 1982 passed under Section 5(i) of the Orissa Estate Abolition Act, 1952 (for short, 'the OEA Act').
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2. Plot No.458 to an extent of Ac.1.73 decimal out of Ac.2.98 decimal under Sabik Khata No.115, Mouza: Patunia, PS:
Balichandrapur corresponding to Hal Plot No.603, Hal Khata No.46 (case land) is the subject matter of dispute in this writ petition.
3. The case of the Petitioners as reveals from the Writ Petition is that Raichandra Dakhin Ray Mohapatra and others were landlords in respect of Jermahal Alumagiri Hal Dharanidhar Touzi No.8396 under 'Nizzot' status as per the Sabik ROR of 1929. Due to non-payment of land revenue, the entire Touzi was auctioned in Rent Suit No.8230 of 1945-46 in the Revenue Court of Jajpur. One Brahmananda Jena and others were auction purchasers. The said Brahmananda Jena sold his 1/3rd share (the case land) to one Smt. Sachi Dei, wife of Padma Charan Jena of village Kotapur, vide Sale Deed No.946 dated 13.02.1946. She remained in cultivating possession of the case land. In the year 1954, said Sachi Dei inducted Guru Charan Jena of Kotapur in respect of Ac.0.60 decimal (Sabik Plot No.458) and Gagan Bihari Jena in respect of Ac.1.13 decimal from Sabik Plot No.458 as tenant and accordingly issued Ekpadia. Said Guru Charan and Gagan Bihari remained physical and cultivating possession of the case land on payment of rent to the ex- intermediary. On submission of rent roll by ex-intermediary, tenancy ledger was opened by the concerned Tahasildar in their favour and they continued to pay rent to the Government after vesting of the estate in the year 1960. When Touzi No.8396 (which includes the case land) was vested in the State, compensation was paid to the ex-intermediaries. Accordingly, Sachi Dei received compensation in respect of case land in 3 Case No.868 of 1960. Said Gagan Bihari Jena for his legal necessity sold Ac.1.13 decimal from Sabik plot No.458 to the petitioners vide registered sale deed No.2030 dated 18.07.1980 for considerations. Likewise, Guru Charan also sold Ac.0.64 decimals of land leased out in his favour to the petitioners vide RSD No.2035 dated 18.07.1980 for considerations and delivered possession to them. On purchase, the petitioners applied the Tahasildar, Darpan for mutation of the land in their favour in Mutation Case No.1285/85 and 1286/85. The Tahasildar following due procedure of law mutated the case land in favour of the petitioners on 13.08.1985. The villagers, namely, opposite parties 4 to 6 of Patunia assailing such recording of the case land in favour of the petitioners filed a proceeding which was entertained by the Tahasildar as a petition under Section 5(i) of the Act. On receipt of the petition, the Tahasildar conducted due enquiry and transmitted the case record to the Sub-Collector, Jajpur. The Sub-Collector, Jajpur upon receipt of the case record initiated OEA Case No.1/82 on his file and issued notice to the parties including the petitioners to put forth their case. Upon hearing the parties, the Sub-Collector, Jajpur set aside the settlement made in favour of the petitioners in exercise of power under Section 5(i) of the OEA Act and directed the Tahasildar, Darpan to take possession of the case land and report compliance in exercise of power under Section 5(h) of the OEA Act vide his order dated 12.05.1993 (Annexure-
11) Assailing the same, the petitioners preferred OEA Appeal No.2 of 2000 before the Additional District Magistrate, Jajpur. On consideration of materials on record, and upon hearing the parties, the Additional 4 District Magistrate vide his order dated 20.10.2004 (Annexure-12) confirmed the order passed under Annexure-11 and thereby dismissed the appeal, which is under challenge in this writ petition.
The Opposite Party No.3, namely, Tahasildar Dharmasala filed counter affidavit justifying the action taken under Annexure-12. It is contended in the counter affidavit that the petitioners were never in possession of the case land. The land remained fallow and was being used by the villagers of Patunia for communal purpose. Thus, the villagers filed a petition before the Tahasildar for cancellation of lease granted in favour of the petitioners. The Tahasidar, Darpan upon receipt of the petition, made field enquiry and scrutinized records pertaining to the case land. In his report, he stated that the villagers will be put to serious inconvenience if the case land would be leased out in favour of the petitioners. He, narrating the history of the case land, therefore, recommended for cancellation of the lease and submitted the case record to the Sub-Collector, Jajpur on 14.09.1981. It is further stated in the counter affidavit that Sachi Dei, having acquired the intermediary status and the land in question being in 'Nizzot' and was in Khas possession of the intermediary, had never applied for settlement under Sections 6/7 of the OEA Act. Further, so-called tenancy was created in favour of Guru Charan Jena and Gagan Bihari Jena after 01.01.1946. Again, Gagan Bihari Jena and Guru Charan Jena had never applied for recognizing them as tenant under Section 8(1) of the OEA Act. Thus, the settlement made in favour of the petitioners was not in accordance with law and has been rightly set aside by the Sub-Collector as well as Addl. 5 District Magistrate, Jajpur under Sections 11 and 12 of the OEA Act. Therefore, he prayed for dismissal of the Writ petition. The Petitioners filed rejoinder to the counter filed by opposite party No.3 stating that since said Sachi Dei did not chose to retain the case land she did not make any application under Section 6/7 of the OEA Act and therefore, she preferred to receive compensation by filing Case No.868 of 1960 (Annexure-3). In the rejoinder, the petitioners disputed the factual averments made in the counter affidavit filed by opposite party No.3.
4. Villagers represented by opposite parties 4 to 7 filed their counter affidavit denying averments and allegations made in the Writ Petition. They reiterated the stand taken by opposite party No.3 in his counter affidavit. They further stated that the case land was being used by the villagers for communal purpose. It is being used for pasture and Dandi. In rainy season, when the area gets water logged, villagers used to net jute thereon. The Petitioners surreptitiously got the land recorded in their name though they were never in possession. A portion of the case land is being used as play ground of the School of the village. Similarly, 'Melana' and other festivals are being observed on the land in question. They further stated that the order of the Addl. District Magistrate is revisable by the Member, Board of Revenue. The petitioners without availing the efficacious statutory remedy available to them have approached this Court by filing the writ petition, which is not maintainable. The petitioners have deliberately suppressed the fact of filing of Title Suit No.238 of 1990 before the learned Munsif [now Civil Judge (Junior Division), Jajpur] for permanent injunction. In the said 6 suit, some of the villagers, namely, Ankura Ch. Rout and others representing the villagers were impleaded as parties. However, injunction order was passed in favour of the petitioners in the suit. The villagers unsuccessfully challenged the same in appeal. Therefore, they preferred Civil Revision No.206 of 1992 before this Court. The aforesaid Revision was disposed by this Court vide order dated 09.11.1992, inter alia, directing the Munsif to dispose of the suit within two months from the date of receipt of the order. Thus, they prayed for dismissal of the writ petition.
The petitioners also filed rejoinder to the counter filed by opposite parties 4 to 7 disputing the factual averments made in the said counter affidavit.
5. Having heard Mr.Behera learned counsel for the petitioners, Mr.Bhuyan, learned counsel for the for the private opposite parties 4 to 7 and Mr.K.K.Mishra, learned Additional Government Advocate appearing for the State-opposite parties, following questions crop up for consideration in this writ petition.
(i) Whether the Vendors of the petitioners namely, Guru Charan Jena and Gagan Bihari Jena were recognized as tenants by the OEA authorities?
(ii) Whether the transactions made after 01.01.1946 requires confirmation under Section 5(i) of the OEA Act?
(iii) Whether the petitioners acquire right, title and interest pursuant to the sale deed No.964 of 13.02.1946?
(iv) To what relief the petitioners are entitled to?
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6. So far as question No.(i) is concerned, though the petitioners strenuously urged that Sri Guru Charan Jena and Gaganbehari Jena were recognized as tenants under Section 8(1) of the OEA Act, no material was produced in support of the same. It is the case of the petitioners that the case land along with some other properties stood recorded in the Nizzot status in favour of the ex-intermediaries, namely, Raicharan Dakhin Ray Mohapatra and others. As he could not pay the land revenue, the said Touzi No.8396 was auctioned in Rent Suit No.8230 of 1945-46. One Brahmananda Jena and others were the auction purchasers. Said Brahmananda Jena sold his share in the ex- intermediary to Smt. Sachi Dei, wife of Padma Charan Jena of village Kotapur vide RSD No.946 dated 13.02.1946. Thus, Sachi Dei stepped into the shoes of ex-intermediary. In such capacity she submitted Ekpadia in the year 1954 in favour of Guru Charan Jena and Gagan Bihari Jena and others (vendors of the petitioners in respect of the case land). Consequent upon vesting of the estate in State, said Guru Charan Jena and Gagan Bihari Jena continued to pay rent to the State. However, there is no material on record as such to show that they (Guru Charan and Gagan Bihari) were, in fact, recognized as tenants by the concerned Tahasildar at any point of time. Merely because the Government accepted the rent from Guru Charan Jena and Gaganbehari Jena it cannot be at all held that they were recognized as tenants under the State. Mere acceptance of rent does not confer any right of tenancy in favour of Gruru Charan Jena and Gagan Bihari Jena. An enquiry as contemplated under Section 8(1) of the OEA Act has to be 8 conducted by the Tahasildar for recognisation of the tenants as such. No such enquiry, as required under the provisions of O.E.A. Act, having been made in the case at hand, the vendors of the petitioners cannot be said to be recognized as tenants. Moreover, Sachi Dei had accepted the compensation in Compensation Case No.868 of 1960 in terms of Section 24 of the OEA Act in respect of the estate in question. It is further transpired from the case record that after vesting of the estate, the case land was not settled with anybody. In that view of the matter, the claim of the petitioners that their vendors, namely, Guru Charan Jena and Gagan Bihari Jena were recognized as tenants cannot be accepted.
7. Section 5(i) of the OEA Act provides that, where Collector is satisfied that settlement, lease or transfer of any kind of land, which was a part of the intermediary, 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 in Clause (h) of Section 5 of the OEA Act. In the case at hand, Petitioners claim that their vendors were inducted as tenants in the year 1954, which is much after 01.01.1946. Upon receipt of complaint of the villagers, Tahasildar, Darpan initiated a proceeding under Section 5(i) of the OEA Act and submitted the case record to the Sub-Collector along with his enquiry report to pass necessary orders. On field enquiry and receiving the evidence from the 9 villagers as well as the petitioners, Tahasildar reported that the case land was lying fallow and was being utilized by the villagers as pasture and Dandi and was also been used for netting of jute when the area becomes water logged. He also reported that the land was never possessed by the petitioners at any point of time. Thus, he recommended for resumption of the land under Section 5(h) of the OEA Act. In Appeal, the petitioners could not produce any material except the mutation records which neither creates nor extinguishes right of the parties. The Petitioners also could not produce any material to challenge the veracity of the report submitted by the Tahasildar. Thus, learned Additional District Magistrate rightly held that the transfer of the land was made to frustrate the provisions of the OEA Act and hence directed for resumption of the land under Section 5(h) of the Act.
Petitioners claim that the case land was classified as Nizzot and the ex-landlords were possessing the same. Mr. Behera, further submitted that it is the settled law that the Nizzot land are private land of ex-landlords. The villagers have no right over the same as no communal right can be created in respect of the private land of the ex- intermediary. In support of their case, he relied upon a decision of this Court reported in ILR 1966 Cuttack 661. There is no dispute with regard to the ratio deci dendi in the case law cited. The classification of 'Nizzot' lost its significance after Sachi Dei accepted the compensation in Compensation Case No.868 of 1960. Moreover, the case land has been recorded in the status of 'Puruna Padia', which was not fit for cultivation. Thus, the contention of Mr.Behera has no force, more 10 particularly when Sachi Dei had accepted the compensation in respect of the case land for vesting of the estate in the State.
From the discussion made above, it appears that both the Sub-Collector as well as the Addl. District Magistrate, Jajpur have categorically come to a conclusion that the report of the Tahasildar with regard to the status of the land was correct. Thus, the Additional District Magistrate has rightly exercised the power under Section 5(i) of the OEA Act in cancelling the transfer made after 01.01.1946.
8. So far as question Nos. (iii) and (iv) are concerned, in view of the discussions made above, Sachi Dei having accepted the compensation in respect of estate in question, which includes the case land, could not have inducted Guru Charan Jena and Gagan Bihari Jena as tenants. Further, the correctness of the Ekpadia submitted by said Sachi Dei in favour of Guru Charan Jena and Gagan Bihari Jena was never verified by the Tahasildar after vesting of the estate as discussed earlier. Mere acceptance of rent does not create any right in favor of Guru Charan Jena and Gagan Bihari Jena. Further, after vesting of the estate, the case lnad was never settled with Guru Charan Jena and Gagan Bihari Jena, the venders of the petitioners. However, the petitioners after purchasing the case land in the year 1980 initiated Mutation Case and got the land recorded in their name in stitiban status. The current settlement ROR does not create any right in favour of the petitioners. In that view of the matter, the Petitioners are not entitled to any relief in the writ petition.
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9. In view of the discussions made hereinabove, this Court finds no infirmity in the orders passed under Annexures-11 and 12. Thus, the Writ petition being devoid of any merit is dismissed, but in the circumstances there shall be no order as to costs.
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K.R. Mohapatra, J.
S. Panda, J. I agree.
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S. Panda, J.
Orissa High Court, Cuttack.
Dated the 30th August,2016/ss