PRAFULLA KUMAR MISHRA Vs. STATE OF ODISHA

JUDGEMENT

(1.) Petitioners being aggrieved by order dtd. 25/5/2017 (Annexure-8) passed by the Additional SubCollector, Jajpur (OP No.3) in Settlement Appeal [Suit No.101 of 2017 (84 of 2017)] have filed this Writ Petition in which, the claim of the Petitioners to record Hal Plot No.113 under Hal Khata No.182 to an extent of Ac.0.20 decimal situated in Mouza Umapada under Vyasanagar tahasil in the district of Jajpur (for short, 'the case land') in their name has been rejected.

(2.) Short narration of facts as reveal from the averments made in the writ petition are that, one Sri Jogi Mallick being a landless person was settled with Sabik Plot No.1/491 under Khata No.126 to an extent of Ac.1.00 decimal in mouza Umapada under Vyasanagar tahasil in the district of Jajpur in Lease Case No.58 of 1963-64. Said Jogi Mallick executed a gift deed in favour of his son-in-law, namely, Sri Hrusikesh Mallick on 23/1/1974 in respect of the lease hold property and delivered possession thereof to him. Due to legal necessity, said Hrusikesh Mallick after obtaining permission from the competent authority under Sec. 22 of the Orissa Land Reforms Act, 1960 (for short, 'the OLR Act') alienated the case land out of the lease hold property in favour of the father of the petitioners, namely, Pravakar Mishra vide Registered Sale Deed dtd. 6/5/1974. Father of the petitioners thereafter went on paying rent in respect of the case land. While the matter stood thus, the settlement operation started in the area. During settlement operation, Yadast was prepared in the name of Pravakar Mishra and draft R.O.R. was also published under Sec. 12 of the Orissa Survey and Settlement Act, 1958 (for short, 'the Settlement Act') under Annexure-6 in his name under stithiban status fixing the rent. In the meantime, the Tahasildar, Sukinda issued notice (Annexure-9) to the original lessee, namely, Jogi Mallick to submit his willingness to part with an area of Ac.0.17.5 decimals out of his lease hold property for construction of a stadium. Since the father of the petitioners had already purchased the land by then, he filed Lease Case No.6 of 2009 before the Tahasildar, Vyasanagar to settle the land in his name and give an area of Ac.0.20 decimal in lieu of the acquisition of land for construction of stadium. Pursuant to the direction of the Tahasildar, Vyasanagar in Lease Case No.6 of 2009, an enquiry was conducted. The Revenue Inspector, Kantajhari submitted his report on 6/5/2009 (Annexure-10) stating therein that since father of the petitioners was in occupation of the case land which is required for construction of stadium, an alternative site should be settled with him. While the matter stood thus, on the basis of letter No.1027 dtd. 21/2/1991 issued by the Tahasildar, Vyasanagar-opposite party No.4, the Assistant Settlement Officer, Jajpur initiated Objection Case No.6142 and directed the case land to be recorded in Government khata under "Anabadi" status vide his order dtd. 30/4/1991 (Annexure-7). Neither the father of the petitioners nor the petitioners were served with notice nor given opportunity of hearing in the said objection case. Thus, the petitioners were ignorant about the order under Annexure-7.

(3.) The Tahasildar, Vyasanagar filed counter affidavit on behalf of opposite party Nos.1, 2 and 4 refuting the case of the petitioners. It is specifically averred therein that Sabik Plot No.1 of Mouza Umapada was recorded in the Government Khata under kissam jungle. Thus, any transaction made out of said land without due permission of the competent authority is void. Payment of rent by Pravakar Mishra does not confer any right, title and interest over a jungle kissam of land. In view of the above, the Tahasildar, Vyasanagar had rightly filed the objection case before the Settlement Authority on the ground that the documents produced by the petitioners do not disclose the plot number of the case land. Further, the tenants' ledger produced by the petitioners has shown plot number to be 1/491. No evidence has been produced by the petitioners to show that the case land has been settled under the O.E.A. Act in favour of said Sri Jogi Mallick. Even if, such a settlement was made, the same is bad in law and without jurisdiction in absence of any confirmation by the Member Board of Revenue, Odisha, Cuttack under Sec. 5(1) of the O.E.A. Act. Further, the land recorded under jungle kissam cannot be recorded in favour of private individuals without any valid order by the competent authority. The father of the petitioners, namely, Pravakar Mishra had also filed Lease Case No.6 of 2009 and pursuant to the direction in W.P.(C) No.20484 of 2016, the Tahasildar, Vyasanagar had disposed of the said lease case vide order dtd. 21/7/2017 (Annexure-A/4) to the counter affidavit. Further, in view of the ratio in the case of Brudaban Sharma (supra) and also Harapriya Bisoi (supra), the claim of the petitioners cannot be entertained as the settlement in favour of Sri Jogi Mallick was not in accordance with law. Rejoinder to the counter affidavit and reply to the same has also been filed bringing certain documents on record for adjudication of the case.