BIBUDHENDRA MISRA Vs. BOARD OF REVENUE

JUDGEMENT

(1.) THE petitioner in this writ application has sought for quashing/deleting the observation made by the opposite party No.2, Joint Commissioner of Land Records and Settlement, Cuttack in his common order dated 31.08.2004 under Annexure -1 passed in R.P. Case Nos.2358, 2359, 2360, 2361, 2362, 2363, 2364, 2365 and 2366 of 2003. The petitioner and others, who filed the above R.P. cases, are the successors -in -interest of late Damayanti Devi. C.S. Plot No.3050 under Khata No.703 was recorded in the name of Gopaljew Takur Bije Gopaljew Lane, Marfat Mahanta Jagannath Das in Bajyapti Sthitiban status. The said Mahant Jagannath Das leased out land measuring Ac.0.300 decimals in favour of Damayanti Devi by a Registered Lease Deed No.4392 dated 08.10.1945. One Darala Devi, who was a tenant under the deity sold Ac.0.200 decimals of land from the eastern side of the said C.S. plot No.3050, by a registered sale deed No. 3144 dated 09.07.1946 to late Damayanti Devi, common ancestor of all the petitioners in the aforesaid R.P. Cases. The above lease land and purchased land of Damayahti Devi, during the Hal Settlement, was subdivided into various plots, as mentioned in the impugned order. The property was partitioned between the petitioners in the R.P. Cases after they succeeded to the same from Damayanti Devi. On the basis of such partition, they filed Settlement Appeal Case No.1720 of 1995 for recording their names separately, in which an order was passed to record the said land separately in Sikkimi Khata under the deity Gopal Jew in the name of the respective parties against the respective plots. After final publication of the record of rights, the petitioners filed the R.P. Cases under Section 15 of the Orissa Survey and Settlement Act, 1962 with a prayer to record their names with regard to their respective lands in Bajyapti Sthitiban status pursuant to the Revenue Department G.O. No.86/79 -69683/R. dated 24.09.1979 relying on the decision of this Court in the case of Bibhuti Bhusan Mohanty v. Kulamani Das and others, 1973 (I) CWR 351. The G.O. and the aforesaid decision of this Court are with regard to interpretation of Section 236 (I) of the Orissa Tenancy Act as amended in 1946, which provides that incidents of any tenancy of any tenant including the holder of a service, tenure in respect of the homestead in which such tenant ordinarily resides shall be regulated by the provisions of the said Act applicable to land held by an occupancy raiyat. Section 236(1) begins with a non -obstante clause that the said provision will operate notwithstanding anything contained in the said Act.

(2.) THE learned Commissioner, Land Records and Settlement -opposite party No.2 interpreting the said provision and relying upon the ratio of the aforesaid decision in the case of Bibhuti Bhusan Mohanty (supra) and further taking note of the registered lease deed executed by the Mahanta in favour of Damayanti Devi, which was for consideration and where permission was also accorded to construct residential house on the lease land and finding that the petitioners have constructed their residential houses on it and residing therein, held that the common ancestor of the petitioner, i.e., late Damayanti Devi acquired occupancy right in her favour. He further held that C.S. Khata No.703 having been recorded with Bajyapti Sthitiban status, the respective petitioners in the R.P. Cases should also be recorded with regard to their respective plots in Bajyapti Sthitiban status. However, from the conclusion, it appears that the opposite party No.2 fell into an error in disposing of the R.P. Cases with the following direction.

(3.) GRIEVANCE of the petitioner is that the review application has not been proceeded with at all and though he has applied for the certified copy of the order -sheet in the review application, the same has not been granted to him for which he has been compelled to approach this Court under Articles 226 and 227 of the Constitution.