TRINATH NAIK Vs. COMMISSIONER LAND REFORMS

JUDGEMENT

(1.) THE petitioner has prayed for issuance of writ of certiorari quashing the order dated 10.10.1996 under Annexure-4 passed by the Commissioner, Land Reforms and Settlement, Orissa, Cuttack - opp. party no. 1 in Revision Case No. 303 of 1993. THE said revision was filed by the opp. party no. 2 and the original opp. party no. 3 for correction of the finally published record of rights in the Hal settlement under section 15 of the Orissa Survey and Settlement Act, wherein the disputed properties measuring Ac.8.36 decimals were recordedsolely in the name of the petitioner. It is the admitted case ofthe parties that the disputed properties were original recordedin the name of their common ancestor - Rahash Ganda, whowas performing the duties of a Chowkidar of the village and thedisputed land was a Chowkidari Jagir land which was beingenjoyed by said Rahash Ganda. THE petitioner's case is thatBaikuntha Ganda, the father of the petitioner, was performingthe duties of Chowkidar of the village and the land in questionwas being enjoyed by him as Jagir land after the death ofRahash, who was the father of Baikuntha Ganda. Upon thedemise of Baikuntha, the present petitioner claims to beenjoying the Jagir land in lieu of his service as Chowkidar andafter abolition of the Chowkidari, the disputed lands weresettled in favour of the petitioner in Misc. Case No. 64 of 1964by the order of the Collector dated 4.6.1965. Uponcommencement of the hal settlement operation, the settlementauthorities after enquiry prepared the final record of rightsexclusively in the name of the petitioner in the year 1989.According to the petitioner, at a belated stage, i.e., after fouryears, the opp. party no. 2 and the original opp. party no.3(who has been substituted during the pendency of the writpetition by his legal heirs, who are opp. parties 3(i) to 3(iv)) filed the Revision Case No. 303 of 1993 before the opp. party no. 1 -Commissioner, for correction of the finally published record ofrights and the Commissioner relying upon the special reportcalled for from the Tahasildar, allowed the said revisiondirecting recording of the name of the opp. party no.2 and theoriginal opp. party no. 3 jointly along with the petitioner inrespect of the disputed properties. It has been furthercontended on behalf of the petitioner that the Commissionerhas relied upon the order dated 4.3.1968 passed by theAdditional Tahasildar, Boudh in Chowkidari Case no. 725 of1965 in which the Additional Tahasildar settled the land inquestion jointly in the names of the petitioner and NilakanthaGanda, the father of opp. party no.2 and original opp. partyno.3.

(2.) LEARNED counsel for the petitioner submitted thatonce the land was settled in Revenue Misc. Case No. 101 of1964 by the Collector on 4.6.1965, no land was furtheravailable to be settled jointly in the name of the petitioner andin the name of late Nilakantha Ganda in Chowkidari Case No.725 of 1965 by the Additional Tahasildar. He relied upon thedecision in the case of Trilochan Singh and another v.Commissioner of Land Records and Settlement, Orissa andothers, 79 (1995) CLT 507 in support of his contention that once the original order of settlement was passed by an authoritywho has jurisdiction to deal with the matter and the said orderremained unchallenged, even if the said order is improper andillegal, the same cannot be treated as void and it remainsenforceable. In the said case, a Division Bench of this Courtwas dealing with a question of settlement made under theOrissa Estates Abolition Act. This Court in the facts of the saidcase held that the order of settlement in favour of thepetitioners therein could be set at naught in a proceeding underthe O.E.A. Act. The settlement having created a right in favourof the petitioners, the same is presumed to be valid unlessdeclared otherwise. It was further held that person assailing itsvalidity is to get such a declaration from a proper forum in aproper proceeding. Unless that is done, the order remainsenforceable.