An application under Articles 226 & 227 of the Constitution of India. *** v. Sarojini @ G. Sarojini @ Gunam Sarojini
Case Details
ORISSA HIGH COURT : CUTTACK WP(C) No.18344 of 2010 An application under Articles 226 & 227 of the Constitution of India. *** V. Sarojini @ G. Sarojini @ Gunam Sarojini … Petitioner. -VERSUS- Member, Board of Revenue, Orissa, Cuttack & Others … Opposite Parties. Counsel appeared for the parties: For the Petitioner : Mr. S.S. Rao, Sr. Advocate. Along with Mr. B.K. Mohanty, Advocate. For the Opposite Parties : Mr. G. Mohanty, Standing Counsel. P R E S E N T: HONOURABLE MR. JUSTICE ANANDA CHANDRA BEHERA WP(C) No.18344 of 2010 Page 1 of 15 Date of Hearing : 15.01.2025 :: Date of Judgment : 31.01.2025 ANANDA CHANDRA BEHERA, J.— J UDGMENT 1. This writ petition has been filed by the petitioner praying for quashing the final order dated 30.08.2010 (Annexure-2) passed in OLR Revision No.59 of 2003 by the Opposite Party No.1(Member, Board of Revenue, Orissa, Cuttack). 2.
Legal Reasoning
The factual backgrounds of this writ is that, a ceiling case vide OLR Case No.16 of 1974 was initiated by the Opposite Party No.4 (Revenue Officer-cum-Tahasildar, Rayagada) against the petitioner alleging possession of ceiling surplus land i.e. more than 10 standard acres having total area of Ac.32.91 cents under Khata No.41 in village Barijholla by her (petitioner) in the District of Rayagada recorded in her name. In that OLR Case No.16 of 1974, the petitioner submitted objection denying possession of any ceiling surplus land stating that, the land possessed by her under Khata No.41 in Mouza-Barijholla are all unirrigated class-IV dry land and the Kisam/status of the properties under Khata No.41 has been WP(C) No.18344 of 2010 Page 2 of 15 indicated by the settlement authorities as dry land, but erroneously the Opposite Party No.4 has stated to the said properties as Class-II land instead of Class-IV land. There is no irrigation facility to the said land from the Rayagada Gedda Irrigation Project. For which, at any cost, the land under Khata No.41 in village Barijholla in the name of the petitioner cannot be treated as Class-II land, but in fact, the said land under Khata No.41 are all Class-IV land. The petitioner has further stated in her objection that, the properties under Khata No.41 being dry land, crops like Arhar Dal (Kandula) was cultivating in some of the plots of that Khata No.41 till the establishment of Jeypore Sugar Company and some of the plots thereof were lying fallow. After establishment of Jeypore Sugar Company, the petitioner raised sugarcane in some of the plots in Khata No.41, which is yielding 3 crops in a period of 4 years and as such, there is no one crop in one year in any portion of the properties covered under Khata No.41. For which, all the properties covered under Khata No.41 are class- IV land, but not Class-I, Class-II or Class-III. Any land under Khata No.41 cannot be treated as irrigated as per Section WP(C) No.18344 of 2010 Page 3 of 15 2(13) of the OLR Act, 1960 as there is no assured source of irrigation facility to the said land from any irrigation project of Central Government or State Government or any private source of lift irrigation from any perennial water source to the same. In spite of that, the Revenue Officer-cum-Tahasildar, Rayagada passed final order on dated 20.02.1976 in that OLR Case No.16 of 1974 holding that, all the properties covered under Khata No.41 in Mouza-Barijholla in the name of the petitioner as class-II land and the petitioner is in possession of ceiling surplus land and the amount of ceiling surplus land is Ac.16.41 decimals and directed to take possession of the said ceiling surplus land i.e. Ac.16.41 decimals from the petitioner. 3. On being dissatisfied with the said Order dated 20.02.1976 passed by the Revenue Officer-cum-Tahasildar, Rayagada (Opposite Party No.4) in OLR Case No.16 of 1974, the petitioner preferred an appeal vide OLR Appeal No.16 of 1976 under Section 58 of the OLR Act before the A.D.M. Rayagada (Opp. Party No.2), but that OLR Appeal of the petitioner was dismissed on dated 12.07.1976. WP(C) No.18344 of 2010 Page 4 of 15 Then, she (petitioner) filed revision under Section 59 of the OLR Act vide O.L.R. Revision No.74 of 1976 against the dismissal order passed in OLR Appeal No.16 of 1976, but the said O.L.R. Revision was also dismissed. 4. Thereafter, the petitioner filed writ petition vide O.J.C. No.2164 of 1981 challenging the said dismissal order of the OLR Revision No.74 of 1976 before this Hon’ble Courts. Like the petitioner, the other affected persons (those were the members of the joint family of the petitioner previously) filed separate writ petitions vide OJC No.2163 of 1981 and OJC No.2165 of 1981 and all the above three writ petitions including O.J.C. No.2164 of 1981 were disposed of by this Hon’ble Courts in setting aside the Order of the Revisional Authority (those were challenged separately in the said writ petitions) vide separate Orders in each writ petitions passed on dated 28.08.1991 directing A.D.M., Rayagada to investigate afresh i.e. whether the land involved in the respective ceiling proceedings are irrigated or not, giving liberty to the respective parties in the respective ceiling cases to adduce further evidence, as they choose giving same observations in all the WP(C) No.18344 of 2010 Page 5 of 15 three writ petitions including in the writ petition of the petitioner vide OJC No.2164 of 1981. As per the directions of this Hon’ble Courts in OJC No.2164 of 1981, A.D.M., Rayagada (O.P. No.2) initiated OLR Revision No.8 of 1992 for enquiring into the matter relating to the properties involved in OLR Ceiling Case No.16 of 1974 afresh. 5. During fresh enquiry, A.D.M, Rayagada took fresh evidence and he (A.D.M, Rayagada in this writ petition) himself made field enquiry on dated 08.01.1998 with Tahasildar, Rayagada and his staffs and obtained report from the Assistant Engineer, OLIC Rayagada. On the basis of fresh evidence along with his personal field enquiry report and the report of the Assistant Engineer, OLIC Rayagada, the Opp. Party No.2 (A.D.M, Rayagada) passed final Order (Annexure-1) in OLR Revision No.8 of 1992 giving observations that, “the land under Khata No.41 in Mouza(Village) Barijholla are not irrigated land and there is no irrigation facility near the said land. The said land are dry land without any assured source of irrigation to the same as defined under Section 2(13) of the OLR Act, WP(C) No.18344 of 2010 Page 6 of 15 1960. In some of the plots under Khata No.41, only the crops like Arhar (Kandula) are growing and other plots are lying fallow. All the properties covered under Khata No.41 in village Barijholla are Class-IV land, but not class-II land. For which, there is no land in access of ceiling limit with the petitioner V. Sarojini @ G. Sarojini @ Gunam Sarojini. In the said final order (Annexure-1), the Opposite Party No.2 directed Tahasildar, Rayagada (Opposite Party No.4) to drop the ceiling case No.16 of 1974 against the petitioner.” Thereafter, the Collector, Rayagada moved the Opposite Party No.1 (Member, Board of Revenue, Cuttack, Odisha) challenging the above final order vide Annexure-1 passed by the Opposite Party No.2 in OLR Revision No.8 of 1992 in favour of the petitioner and accordingly, OLR Revision No.59 of 2003 was initiated before Member, Board of Revenue (Opposite Party No.1) as OLR Revision No.59 of 2003. As per final Order dated 30.08.2010 passed by the Opposite Party No.1 in OLR Revision No.59 of 2003 (vide Annexure-2), Annexure-1 passed by the Opposite Party No.2 was set aside assigning the reasons that, “when sugarcane was growing in the case lands as per the objection of the petitioner and sugarcane crop can never be grown without irrigation facilities and when sugarcane WP(C) No.18344 of 2010 Page 7 of 15 crops remain in the ground for a period of 15 months, for which, there is nothing exceptional about having 3 sugarcane crops in four years and when it is found from the field enquiry report conducted in connection with OLR Appeal No.16 of 1976 that, the case land was getting irrigation and when the certificate proceeding vide Certificate Case No.8 of 1963 was initiated against the land holders for realization of water charge duties and sale-proclamation was issued, then, it is held that, the case land are irrigated land, but subsequent backtracking on this fact is of no help.” 6. On being aggrieved with the aforesaid final Order dated 30.08.2010 (Annexure-2) passed in OLR Revision Case No.59 of 2003 by the Member, Board of Revenue, Orissa, Cuttack(Opposite Party No.1), the petitioner of this writ petition challenged the same by filing this writ petition praying for quashing the said Order dated 30.08.2010 passed in OLR Revision Case No.59 of 2003 (Annexure-2) by the Opposite Party No.1 on the ground that, the findings and observations made by the Opposite Party No.1 in the Annexure-2 for setting aside the final Order dated 24.01.1998 passed by the Opposite Party No.2 in Annexure-I are baseless and without materials on record only on surmises and conjunctures. For which, the same is to be quashed and same observations like WP(C) No.18344 of 2010 Page 8 of 15 Annexure-1 has already been quashed in other writ petitions filed by the other petitioners vide O.J.C. No. 1050 of 1993 and WP(C) No.15237 of 2013 in respect of properties of the same vicinity. 7. I have already heard from the learned counsel for the petitioner and the learned Standing Counsel for the Opposite Parties. 8. It is the undisputed case of the parties that, the Kisam of
Decision
the properties involved in the writ petition are dry land. As per Lexicon of Revenue Terms “Kisam” means “Classification of land on the basis of nature, situation, productivity, irrigation, silt deposit, uses etc.” 9. Classification of land forms an important item of work, during survey settlement operation, since it enables the Government as well as the land holders to know the nature and quality of land, they hold as well as the rent payable for the land by the land holder. 10. The law relating to the classification of land has been clarified in the ratio of the following decisions: WP(C) No.18344 of 2010 Page 9 of 15 I. In a case between Collector, Koraput Vs. Badar Pujari reported in 43 (1977) CLT 695 (B.R)—The classes of Land for the purpose of the OLR Act has been defined in Section 2 (5-a). Different criteria are adopted by settlement authorities for classification of land in the Record of Rights. Therefore, the two classifications need not necessarily be the same. If paddy was not grown or cannot be grown on unirrigated land it would come within class IV and not class III. II. In a case between Smt. G. Sarada Devi vrs. Member, Board of Revenue reported in 76 (1993) CLT 821 (DB). As per Section 2(13) of OLR Act, 1960 “irrigated by private tank or private well is not irrigated land as per the definition”. III. In a case between Bhikari Sahu & Others Vs. State of Orissa & Others reported in ILR 1975 Cuttack 843, As per Section 2(13) of OLR Act, 1960—Irrigated land—Perennial water source meaning—The said water source does not come to an end; not drying up in summer. Thus, land irrigated by a private tank or private well, which is not a perennial water source, cannot be construed as “irrigated land”. Irrigation facility from any private source by means of a tube well cannot be held to be assured source of irrigation. 11. As per dictionary meaning “dry” means without water. “Dry Land” means unproductive land due to deficient in rain fall. 12. As per Section 2(13) of OLR Act, 1960, “Irrigated land means, land, which is assured of irrigation from an irrigation project constructed or maintained or improved or controlled by the Central Government or the State Page 10 of 15 WP(C) No.18344 of 2010 Government or by a body corporated established under any law for the time being in force and includes land which is assured of irrigation from any private source by means of lift irrigation from any perennial water source operated by diesel or electric power, but does not include continually water-lodged lands or sand cast lands.” 13. It appears from the record that, the Assistant Engineer OLIC, Rayagada as well as Tahasildar, Rayagada had submitted report in the ceiling proceeding those have been perused and reflected by the A.D.M. Rayagada in the final order (Annexure-1) passed in OLR Revision No.8 of 1992. As per the report of the Assistant Engineer OLIC, Rayagada, the land in village Barijholla and Khaliguda are not irrigated land, but, two plots in village Jayaramguda are getting irrigation. The report of the Tahasildar, Rayagada is going to show that, the land were irrigated earlier and the same will be irrigated in future under the ayacut of siltiguda MIP. The personal field visit report dated 08.01.1998 of ADM, Rayagada with Tahasildar, Rayagada is going to show that, WP(C) No.18344 of 2010 Page 11 of 15 plot No.32/1 and 32/3 measuring an area of Ac.0.70 decimals and Ac.0.75 decimals are getting water facilities from the lift irrigation corporation, where crop like Arhar (Kandula) has been grown and most of the plots have been led as fallows. He (ADM, Rayagada) did not find any trace of any water facility in the case lands in village Barijholla and the properties in village Khaliguda are also lying fallow like the properties in village Barijholla. He did not find any trace for irrigation there. As such, during field visit of the ADM, Rayagada with Tahasildar and his staffs, he did not find any irrigation facility from any assured irrigation sources to the case land and gave his findings in Annexure-1 that, “when the properties of village Barijholla involved in the ceiling proceedings are dry land and the question of raising any paddy on the same does not arise, but only, the crops like Arhar (Kandula) are rasing on the same at times, then, the said lands are held as the class-IV land and the said land being class-IV land cannot come within the purview of ceiling surplus land of the petitioner.” 14. When the above findings and observations of ADM Rayagada(Opposite Party No.2) vide Annexure-1 are on the basis of (i) the report of the Assistant Engineer OLIC Rayagada WP(C) No.18344 of 2010 Page 12 of 15 and Tahasildar, Rayagada (ii) his own personal field visit report with Tahasildar, Rayagada and staffs and (iii) through fresh evidence that, “there is no irrigation facility to the case land situated in village Barijholla and the paddy crops are not capable to be grown in the said land, but only crops like Arhar (Kandula) are being grown at times in some of the properties thereof, as the said crops can only be grown in dry land and as such, all the land involved in the ceiling case are dry land, but when, the Opposite Party No.1 in its Judgment dated 30.08.2010 (Annexure-2) in OLR Revision No.59 of 2003 set aside the same assigning the reasons that, sugarcane was grown on some of the case land and sugarcane crop can never be grown without irrigation facilities and sugarcane crops remain on the ground for a period of 15 months, for which, 3 sugarcane crops can be raised within 4 years and the report of the SDO, Rayagada is going to show that, the case land was getting irrigation previously and certificate proceeding was initiated for realization of the water charges” then, at this juncture, the above reasons assigned by the Opposite Party WP(C) No.18344 of 2010 Page 13 of 15 No.1 in Annexure-2 for setting aside Annexure-1 cannot be sustainable/acceptable under law. Because, the above findings in Annexure-2 by the Opposite Party No.1 i.e. the case land were getting irrigation facilities previously without giving any definite/specific finding about the availability of present irrigation facilities through any perennial water source to the same is held to be baseless. So, the aforesaid findings and observations made by the Opposite Party No.1 in Annexure-2 for setting aside Annexure- 1 passed by the Opposite Party No.1 on the basis of the surmises/conjunctures/inferences without any basis for the reasons assigned above are held to be as baseless. That apart, the other two writ petitions vide OJC Nos.1050 of 1993 and WP(C) No.15237 of 2013 filed by others (those were the family members of the petitioner previously) challenging the similar nature of findings and observations given by the Opposite Party No.1 in other revisions in respect of the land in the vicinity of the case law of this writ petition in the other ceiling cases initiated against them alleging irrigation facility from the same irrigation project have already WP(C) No.18344 of 2010 Page 14 of 15 been set aside by this Hon’ble Courts and the final observations of the Additional District Magistrate (Opposite Party No.2) holding the land involved in the said writ petitions treating the same as class-IV land have already been restored. 15. When, as per the findings and observations made above, the impugned order (Annexure-2) passed by the Member, Board of Revenue (Opp. Party No.1) in OLR Revision No.59 of 2003 has been held as baseless, then, at this juncture, the said order vide Annexure-2 passed by the Opposite Party No.1 cannot be sustainable under law. 16. Therefore, the final Order dated 30.08.2010 (Annexure-2) passed by the Member, Board of Revenue, Orissa, Cuttack (Opp. Party No.1) is quashed and the final Order dated 24.01.1998 (Annexure-1) passed by the learned ADM, Rayagada is restored. As such, the writ petition filed by the petitioner is allowed, but without cost. Signature Not Verified Digitally Signed Signed by: RATI RANJAN NAYAK Designation: Senior Stenographer Reason: Authentication Location: High Court of Orissa, Cuttack, India. Date: 03-Feb-2025 15:49:56 High Court of Orissa, Cuttack The 31 .01. 2025// Rati Ranjan Nayak Sr. Stenographer WP(C) No.18344 of 2010 (ANANDA CHANDRA BEHERA) JUDGE Page 15 of 15