Orissa High Court
Case Details
ORISSA HIGH COURT : C U T T A C K O.J.C. NO.13429 OF 2001 In the matter of an application under Articles 226 & 227 of the Constitution of India. Babaji Behera & ors. : Petitioners -Versus- Tahasildar, Bhubaneswar & ors. : Opp.Parties For Petitioners : M/s.B.H.Mohanty, R.K.Nayak, T.K.Mohanty, J.K.Bastia & D.P.Mohanty For O.Ps. :
Legal Reasoning
Mr.U.K.Sahoo, ASC CORAM : JUSTICE BISWANATH RATH Date of Hearing & Judgment : 19.10.2022 1. The Writ Application involves a challenge to the impugned order at Annexure-2 passed by the Competent Authority in exercise of revisional power under Section 25 of the Orissa Survey & Settlement Act, 1958 (in short, “the O.S.S. Act”). 2. Background involved herein, in 1973-74, Hal R.O.R. being published, the disputed property was recorded in the name of the Petitioners in Stitiban status under Hal Khata No.627 with Plot Nos.1338, 3581, 3584, 4735/5165 and 4699 appearing at Annexure-1. It is claimed, Page 1 of 8 // 2 // even after publication of Record of Rights, Tahasil Records were corrected recording four out of five Plots in the name of G.A. Department compelling the Petitioners to file R.P. Case No.241/1980 under Section 25 of the O.S.S. Act for correction and fixation of appropriate rent. This case appears to have been allowed in favour of the Petitioners, vide Annexure-4 directing the Competent Authority for necessary correction in the Record of Rights. This order not being worked out, the Petitioners preferred O.J.C. No.2103/1981 challenging the inaction of the Competent Authority in working out the direction under Annexure-4. On 14.9.1981, O.J.C. No.2103/1981 was allowed directing the competent Authority to comply with the order passed in R.P. Case No.241/1980, vide Annexure- 5. After the aforesaid order, there appears, there has been compliance of this Court’s direction. In the meantime, State of Orissa filed O.J.C. No.2475/1984 challenging the order at Annexure-4 involving R.P. Case No.241/1980. In the hearing process of the above Writ Application, this Court finds, there is already involvement of another R.P. Case No.242/1980 pending at the instance of the Petitioners but in respect of a different Khata but however for the same Mouza. O.J.C. No.2475/1984 was allowed with an order of remand to the Commissioner for fresh decision in R.P. Case No.242/1980, vide Annexure-3. In the meantime, part of Plot Nos.3581 and 3584 were acquired by the South-Eastern Page 2 of 8 // 3 // Railways. As no award was passed, the Petitioners preferred O.J.C. No.11080/1997, which was allowed in favour of the Petitioners thereby directing payment of compensation to the Petitioners by order of this Court dated 27.6.2000. It is after the remand direction of this Court in
Decision
O.J.C. No.2475/1984, the R.P. Cases were heard together and disposed of by the impugned order, vide Annexure-2 thereby declining the claim of the Petitioners resulting in filing the present Writ Application. 3. Taking this Court to the entire background involved herein and reading through the impugned order, particularly at Pages-28 & 29 of the Brief involving Paragraph-8 of the impugned order, Mr.D.P.Mohanty, learned counsel for the Petitioners contended, once the Competent Authority comes to record that there has been consideration of the case of the entire Mouza-Gadakana in the State Government’s procedure and recording the claim of the State that O.Ps.1 to 3 therein, who have stated that all tenants were recorded in Sabik Khata No.918, are recorded as tenants in Khata No.627 and further claiming that after vesting under the Orissa Estate Abolition Act, tenant whosoever over the land was brought into Khata No.1076. It is thus claimed, there was no room for the Competent Authority to give a view contrary to the materials and pleadings available on Record and thereby again asking the Petitioners to produce the material to support their case. Mr.Mohanty further claimed, Page 3 of 8 // 4 // for there is concrete material taking over all tenants under the Hal Settlement to the Sabik Settlement as per the Tenants Ledger details, the Commissioner instead of asking the Petitioners to establish their case through materials ought to have allowed the Application thereby giving suitable direction. Mr.Mohanty, learned counsel for the Petitioners, in the above background of the matter, claimed for allowing the Writ Application thereby setting aside the order at Annexure-2. 4. Mr.U.K.Sahoo, learned Additional Standing Counsel for O.Ps.1 to 4, however, while not disputing that there was re-opening of the R.P. Case involved herein by virtue of the Writ direction of this Court and there has been disposal of R.P. Case No.241/1980, further while not denying the recording the Competent Authority at Paragraph-8 of the impugned order on the admission aspect by O.Ps.1 to 3 but taking this Court to the counter plea in Paragraph-8 contended, for the plea in Paragraph-8 of the counter affidavit of the O.Ps., there appears, there is justified consideration by the Competent Authority and requested this Court for dismissing the Writ Application, as not having any merit. 5. In spite of a set of Counsel representing the Intervenors, none is present. Page 4 of 8 // 5 // 6. Considering the rival contentions of the Parties, this Court for the undisputed fact that R.P. Case No.241/1980 was re-opened ultimately by remand order of this Court in disposal of O.J.C. No.3475/1984 straightway proceeded to find the Competent Authority in Paragraph-8 of the impugned order observed as follows :- “8.So far as the issue No.2 is concerned the impugned order of the Commissioner Dt.26.9.80 passed in the Revision Petition No.241/80 having been quashed by the Hon’ble High Court is available for adjudication afresh basing on the evidences led by the parties. In the revision petition 241/80, the petitioners have submitted that they got the settlement final patta in respect of Ac.9.25 of land situate in Mouza, Gadakana under Jamabandi khata No.8=918/27 corresponding to Hal Khata No.627. Since the final patta was not sent to the appropriate authority for settlement of rent, the rent in respect of the aforesaid land was not settled and incorporated in the final R.O.R. Basing on the report of the Settlement Officer, the prayer of the petitioner was allowed. This was challenged by the State of Orissa through the Collector, Puri in the O.J.C. No.2475 of 1984. It has been submitted by the learned Govt. Advocate that the Commissioner ought to have taken into consideration the entire back ground of the Settlement proceeding in respect of Mouza Gadakana and sought to have held that the recording of plots in khata No.627 was a fraudulent activitity since at no previous stage this was raised by the opposite parties. In their counter the Opposite Parties 1 to 3, have stated that all tenants who were recorded in sabik khata No.918 are recorded as tenants in khata No.617 in Hal Settlement, Khata No.1076 is the Govt. Khata and after vesting under the Orissa Estate Abolition Act any tenant over the land was brought into khata No.1076 of the govt. on that principle plot No.1338, 3581, 3589, 4735/5165 and 4699 have been shown in khata No.627 belonging to the tenant under Section 8(1) of the Act. By mistake they had been included in the Govt. khata. In the draft khatian and in tenant khata their name was not reflected by mistake and was recorded in Sarkari Khata wrongly contrary to the Ekpadia of the intermediary. From the above averments, it is therefore clear that the Petitioners have Page 5 of 8 // 6 // land must prove claimed their title over the disputed land under Section 8(1) of the O.E.A. and basing on the Ekpadia submitted by the Ex- Intermediary. If so, the settled principle of law is that the petitioners who claim tenancy under the State of Orissa over the disputed tenancy by documentary their evidences. If they claim that the disputed lands were leased out to them by the ex-intermediary through hata patta their claim must be corroborated by submission of Ekpadia by the ex-land lord, opening of jamanabandi in their favour basing on the Ekpadia by the Tahasildar concerned, rent receipts issued to them by the ex- land lord before vesting and rent receipts issued by the Tahasildar after vesting. The petitioners had not led any evidences to that effect to prove their tenancy over the disputed land. Nor they have led any evidences to prove that they have taken nay step before appropriate Revenue Authority under the provisions of the O.E.A. Act to get the disputed land settled in their favour in the stitiban status. After carefully assessing the evidences available on records the obvious conclusion, I derive is that the petitioners have utterly failed to prove their tenancy over the suit lands. The evidences also have led me to believe the assertion of the learned Govt. Advocate before the Hon’ble High Court of Orissa in O.J.C. No.2475 of 1984 that the recording of the plots in the khata No.627 was fraudulent activity since at no previous stage this was raised by the opposite parties.” Reading the aforesaid, this Court finds, there is clear observation by the Competent Authority recording the admission of the O.Ps.1 to 3 that the tenants whosoever there at the time of vesting have been recorded in Sabik Khata No.918 and are recorded as tenants in Hal Khata No.627 in Hal Settlement Khata No.1076. This Court finds, O.Ps.1 to 3 therein also claiming that by mistake they had been included in the Government Khata but so far it relates to Plot Nos.1338, 3581, 3589, 4735/5165 and 4699 mistakenly, further in the draft khatian and tenant khata, their names were not reflected by mistake and were recorded in Sarkari Khata. State Page 6 of 8 // 7 // even admitting the above recording to be contrary to Ekpadia of the intermediary. It is in the circumstance, this Court finds, for there is concrete material available with the Competent Authority, it was simply necessary on the part of the Competent Authority to find out if the names of the Petitioners were already appearing as tenants through Ekpadia of the intermediary and have been brought in Sabik corrected Khata No.918 and in Hal Khata No.627 in Settlement Government Khata No.1076. In the circumstance, there is no due discharge of application of mind of the Competent Authority. Further findings of the Competent Authority also run contrary to the stand of O.Ps.1 to 3 appearing therein. 7. So far as the claim of Mr.Sahoo, learned Additional Standing Counsel through the counter affidavit, this Court observes, for already involvement of a quasi judicial proceeding and a clear stand already taken by the State, there is no room for the State in bringing a different case through the counter to give an improvement to their plea in the original proceeding. 8. In the circumstance, this Court interfering with the order at Annexure-2 but however as a decision is required to be taken from within the materials available on Record, remands the matter to the Commissioner, Consolidation & Settlement, Bhubaneswar for re-disposal of Settlement Revision Petition No.241/1980 only entering into the Page 7 of 8 // 8 // examination to find the names of the Petitioners in the Tenant Ledger through Ekpadia at the time of vesting of the property in the State. In the event their names found in the Tenant Ledger, there should be a simple direction while maintaining the Record of Rights, vide Annexure-1, to assess the correct rent involving the Petitioners are concerned by completing the entire exercise within a period of two months from the date of communication of this judgment. 9. The Writ Application succeeds but however with an order of remand. ….……………………… (Biswanath Rath, J.) Orissa High Court, Cuttack. The 19th October, 2022/M.K.Rout, A.R.-cum-Sr.Secy. 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