The High Court
Case Details
Signature Not Verified Digitally Signed Signed by: BASANTA KUMAR BARIK Reason: Authentication Location: High Court of Orissa, Cuttack Date: 24-Nov-2023 14:51:10 IN THE HIGH COURT OF ORISSA AT CUTTACK W.P.(C) No.16454 of 2015 (In the matter of an application under Articles 226 and 227 of the Constitution of India) Sri Bimalendu Chatterjee and others …. Petitioners -versus- State of Odisha and others …. Opposite Parties Advocate(s) appeared in this case:- For Petitioners
Legal Reasoning
: Mr. D.P. Mohanty, Advocate For Opposite Parties : Mr. U.K. Sahoo, A.S.C. CORAM: JUSTICE B.P. ROUTRAY JUDGMENT 20th November, 2023 B.P. Routray, J. 1. Heard Mr. D.P. Mohanty, learned counsel for the Petitioners and Mr. U.K. Sahoo, learned Additional Standing Counsel for the State- Opposite Parties. 2. The impugned order dated 27.02.2015 passed in Settlement Revision No.145 of 2012 of Additional Commissioner of Settlement W.P.(C) No.16454 of 2015 Page 1 of 9 Signature Not Verified Digitally Signed Signed by: BASANTA KUMAR BARIK Reason: Authentication Location: High Court of Orissa, Cuttack Date: 24-Nov-2023 14:51:10 and Consolidation, Balasore under Annexure-11 is challenged in present writ petition. 3. The Petitioners are the LRs of one Surama Sundari Chatterjee. 4. The property in question is pertaining to Sabik Settlement Khata No.410 having Plots No.38/2, 1588/2, 38/3, 1588/3 and 1589/1 corresponding to Hal Khata No.579 with Plots No.762, 763, 1067 and 1068 of mouza-Srikanthapur in the district of Balasore. 5. Initially Khasmahal lease in respect of the property in question was granted in favour of Surama Sundari Chatterjee in the year 1934 for a period of 15 years. In the year 1949, the same was renewed for a further period of 15 years till 1964 and again renewed for another period of 15 years till 1979. In the meantime, said Surama Sundari Chatterjee died and her LRs (present Petitioners) applied for renewal of said Khasmahal lease in the year 1982 vide Khasmahal Lease Case No.2/1982. But said application of the year 1982 was lost and could not be traced out. In this regard, information was supplied under the RTI Act to the Petitioners on 6.1.2007. Thereafter the Petitioners applied afresh before the Tahasildar vide Lease Case No.9/2007. W.P.(C) No.16454 of 2015 Page 2 of 9 Signature Not Verified Digitally Signed Signed by: BASANTA KUMAR BARIK Reason: Authentication Location: High Court of Orissa, Cuttack Date: 24-Nov-2023 14:51:10 6. Pending said lease proceeding, the land in question was recorded in Government Khata in favour of P.W.D. Department in the year 1987 during Hal settlement. So Lease Case No.9/2007 filed by the Petitioners was dropped by the Tahasildar since the land was recorded in favour of Government in the meantime. The Petitioners again approached the Collector, Balaosre in his original jurisdiction to settle the land in their favour which was also rejected and thereafter it was carried in appeal and revision. The revisional order dated 27.02.2015 is the subject of matter of challenge in the present writ petition. 7. Mr. D.P. Mohanty, learned counsel for the Petitioners submits that the Khasmahal lease being permanent in nature, the recording of the land in Hal settlement operation in favour of the Government is not permissible and therefore, their application for settlement should be allowed. 8. State has filed their counter taking the same stand that in the meantime the land has been recorded in Government Khata in the Hal settlement and the application filed thereafter by the Petitioners for settlement is therefore not maintainable. W.P.(C) No.16454 of 2015 Page 3 of 9 Signature Not Verified Digitally Signed Signed by: BASANTA KUMAR BARIK Reason: Authentication Location: High Court of Orissa, Cuttack Date: 24-Nov-2023 14:51:10 9. On the backdrop of such rival contentions stated above, the grant of Khasmahal lease in favour of Surama Sundari Chatterjee in the year 1934 and subsequent renewal thereafter remains admitted. It is further seen from the copy of the Yadast under Annexure-3 that during the Hal settlement operation upon field enquiry said Surama Sundari Chatterjee was found in possession of the land and therefore, the order was passed on 28.6.1973 in the Hal settlement, as recorded in the Yadast, to prepare the ROR in favour of said Surama Sundari Chatterjee. 10. When it remains undisputed about the initial status of the land as Khasmahal property granted in favour of the predecessor-in-interest of the Petitioners, the question falls for determination here is that, whether the Khasmahal lease granted in favour of Surama Sundari Chatterjee can be treated as permanent lease and subsequent recording of the land in Government khata is liable to be set aside ? 11. Law is no more res integra on the status of the land in respect of a Khasmahal lease. In Sunil Kumar Dass (dead) by L.Rs. and others vs. The Revenue Divisional Commissioner, Central Division, Cuttack and others, 2008 (I) OLR – 530, this Court have narrated the principles as follows: W.P.(C) No.16454 of 2015 Page 4 of 9 Signature Not Verified Digitally Signed Signed by: BASANTA KUMAR BARIK Reason: Authentication Location: High Court of Orissa, Cuttack Date: 24-Nov-2023 14:51:10 “21. The question emerges now is – What is the status of Khasmahal lease hold property ? Law is well settled regarding the principles of resumption of Khasmahal land and renewal of lease of such land. In this regard, we may refer to a decision of this Court in Republic of India v. Prafulla Kumar Samal, I.L.R. 1976 Cuttack 1392, in paragraph 4 of whereof it was held: “…….Rights of a lessee in Khasmahal lands are in no way different from those which one has in his own private land. Clause (15) of the lease-deed confers a right of renewal on the lessee, and as has been pointed out earlier, the said right cannot be denied by the lessor. Besides the lessee’s right in the Khasmahal and transferable the lessee can create a permanent right of tenancy in his holding. Thus, in all respect the rights of a lessee are just similar to those of an owner of a private land. (See 1935 CLT 34 : Munshi Abdul Kadir Khan v. Munshi Abdul Latif Khan and 1937 CLT 67 : Madhusudan Swain v. Durga Prasad Bhagat)” land being heritable The decisions rendered by this Court in the cases of Sankarlal Verma v. Smt. Uma Sahu, 1993 (I) OLR 187, and Satyapriya Mohapatra v. Ashok Pandit, 59 (1985) CLT 407, make it crystal clear that Khasmahal land is heritable and transferable with a right of renewal and right of lessee in respect of such land is in no way different from that which one has in his own private land. In Abhimanyu Sahu v. Narayan Chandra Sahu, 2000 (I) OLR 85, this Court while dealing with a case in which the trial Court had rejected the prayer of the plaintiff for partition on the ground that the property being Khasmahal Property and the lease having expired and having not been renewed, the parties could not claim any right for partition, took the aid of the decisions rendered in Prafulla Kumar Samal (supra) as well as Braja Kishore Sahu v. Smt. W.P.(C) No.16454 of 2015 Page 5 of 9 Signature Not Verified Digitally Signed Signed by: BASANTA KUMAR BARIK Reason: Authentication Location: High Court of Orissa, Cuttack Date: 24-Nov-2023 14:51:10 Sailabala Sahu, 1995 (II) OLR 348, and did not accept the plea of the trial Court. Looking at the above judicial pronouncements, it is clear that impletion of the Collector as a party to the claim for partition of Khasmahal property is not necessary. In all respect the rights of a lessees are similar to those of an owner of a private land.” 12. In Dinesh Chhapolia & Another vs. State of Orissa and others, 2008 (I) CLR – 171, it has been decided as follows: “14. The State in its wisdom has issued a circular on 19th June, 1970 in respect of Khasmahal leases of Puri Town that in case of unauthorized transfers, transfer fees at the rate of twelve times the annual rent would be chargeable. The said circular would also to be put in services so far as other Khasmahal lands are concerned lest there would be discrimination. Apart from the aforesaid provision, Rule 20 of the Bihar and Orissa Government Estate Manual clearly stipulates that in case of contingencies like Clause 2, resumption can be made and possession can be recovered only through Civil Court. For the sake of brevity Rule 20 of the said Manual is quoted herein below: “When a tenant holds land from Government under a lease containing a clause which authorizes the lesser to resume possession of the whole or part of the lands of the tenancy, this power of resumption shall only be exercised if the land is required for a public purpose, and the power of resumption shall not be exercised without the sanction of the Board of Revenue.” 15. In the case of Sourindra Narayan Bhanja Deo v. Member, Board of Revenue (supra) this Court held that resumption of a land without taking recourse to Civil Court was not justified. W.P.(C) No.16454 of 2015 Page 6 of 9 Signature Not Verified Digitally Signed Signed by: BASANTA KUMAR BARIK Reason: Authentication Location: High Court of Orissa, Cuttack Date: 24-Nov-2023 14:51:10 16. Added to it, the Orissa Government Land Settlement Act has been amended by Orissa Act 1 of 1991 which came into force in the year 1993. In consonance with the amended provisions, a lessee of a Khasmahal land is conferred with permanent and heritable right. Clause (c) of Amended Act Sub-section (4-a) of Section 3 of the Amended Act reads as follows: “Any Khasmahal land, Nazul land, Gramakantha Parambok land or Abadi land which is used and in occupation by any person as homestead in any urban area for not less than five years as on the appointed date, shall subject to the payment of compensation in the case of Khasmahal and Nazul land as mentioned in the proviso to Clause (a), be settled— (i) in the case of Khasmahal or Nazul land, with the person lawfully holding such land on and from the date the compensation is paid; and (ii) in the case of Gramakantha Paramokand Abadi land, with the person in occupation of such land on and from the appointed date, on permanent basis with heritable and transferable rights.” The intention of the Legislature is thus very clear that a lessee of Khasmahal land has a permanent right over the leasehold and he/she is entitled to a permanent settlement of the leasehold.” 13. In Jyoti Ranjan Mohanty vs. Alok Ranjan Mohanty and others, 2013 (II) CLR – 102, this Court held as follows: “8. Considering the rival submission of the parties, the question is to be determined in this appeal as to whether Ac.0.100 decimals as shown in Schedule-A property being Khasmahal property is liable to be partitioned or not and whether respondent 13 is a necessary party to the appeal ? The second question is taken up first for consideration. W.P.(C) No.16454 of 2015 Page 7 of 9 Signature Not Verified Digitally Signed Signed by: BASANTA KUMAR BARIK Reason: Authentication Location: High Court of Orissa, Cuttack Date: 24-Nov-2023 14:51:10 Admittedly, respondent No.13 is not a party to the suit and she has also not filed any appeal against the judgment and decree passed by the Court below. If she is aggrieved by the said judgment and decree in any manner, she is at liberty to prefer a separate appeal and her claim cannot be decided in this appeal. Accordingly she has been deleted as respondent No.13. Admittedly, Schedule-A property under plot No.2254, Khata No.1498 area Ac.0.100 decimals is khasmahal property, which was leased out to be predecessor in interest of defendant No.1 and he is continuing in possession of the same till date. In view of the decision rendered in the cases of Abhimanyu Sahu, Sourindra Narayan Bhanj Deo and Sunil Kumar Dass (Supra) where their Lordships have held that Khasmahal lease-hold property is partible and transferable and right of renewal is inherent with the lessee.” 14. Schedule-V of Odisha Government Land Settlement Rules, 1983 was replaced on 11.2.2010, wherein it has been provided in Clause 1(b) that a person including his lawful predecessors-in-interest, who was in possession of a Khasmahal land on the basis of lease granted by the Government, whether renewed or expired, shall be eligible for settlement of land in his favour for homestead purpose. In the case at hand, it remains undisputed that the land in question has been used for homestead purpose and Pucca building has been constructed thereon by Surama Sundari Chatterjee since long. As stated earlier, the order was passed in the Yadast during the Hal settlement operation to record W.P.(C) No.16454 of 2015 Page 8 of 9 Signature Not Verified Digitally Signed Signed by: BASANTA KUMAR BARIK Reason: Authentication Location: High Court of Orissa, Cuttack Date: 24-Nov-2023 14:51:10 the land in favour of said Surama Sundari Chatterjee. Despite this, the land was recorded in 1987 during Hal settlement operation in Government khata in favour of P.W.D. Department. Therefore, applying the principles discussed above as settled in several decisions of this Court, the conclusion deduced is that such recording of the land in favour of Government during Hal settlement is impermissible and illegal as such. Accordingly, the refusal of the authorities to record the land in favour of the Petitioners, who are the successors-in-interest of Surama Sundari Chatterjee, is held bad in the eye of law. 15.
Decision
In the result, the impugned order is set aside and the status of the Petitioners as tenants in respect of the land in question is settled. The Record of Rights shall be corrected within a period of four months from today. 16. The writ petition is disposed of as allowed. (B.P. Routray) Judge B.K. Barik/Secretary W.P.(C) No.16454 of 2015 Page 9 of 9