RASIKA CHANDRA TIRIA Vs. STATE OF ODISHA

JUDGEMENT

(1.) THIS Writ Petition has been filed by the Petitioner challenging the decision of the Member, Board of Revenue, Odisha, Cuttack dtd.01.11.2008 passed in O.E.A Revision Case No.141 of 2006 under Section 38 -B of the Odisha Estates Abolition Act, 1951 (hereinafter referred to as "the Act").

(2.) THE dispute is related to the land appertaining to Plot No.404 under Khata No.52 measuring an area of Ac.1.33 decimals situated in Village Rampas, P.S. Jajpur Road in the district of Jajpur, which was recorded in the name of the Ex -Proprietor Raja Saheb, Sukinda of Sukinda Estate. It is contended by the Petitioner that the ex -intermediary of Sukinda Estate had given the aforesaid Land to the Petitioner as "Jagiri" for the purpose of rendering service of 'Khamara, Jaguali' to protect the property of the estate. The ex -intermediary had issued 'Hatapatta' in favour of the Petitioner for the said land and the Petitioner paid rent to the Sukinda Estate and obtained rent receipts. The Estate was vested with the Government in the year 1952 -53 by notification dtd. 27.11.1952. While matter stood thus, in the year 1983 the Petitioner filed an application before the O.E.A Collector -cum -Tahasildar, Sukinda Tahasil for acceptance of tenancy and to fix fare and equitable rent, which was registered as O.E.A Vesting. Misc. Case No.585 of 1983. The O.E.A Collector -cum -Tahasildar, Sukinda Tahasil called for a report from the Revenue Inspector, Dangadi and also issued general proclamation inviting objections to know whether anybody has any objection to the claim of the Petitioner. No objection was received by the Tahasildar within the statutory period. The Revenue Inspector also submitted report stating that the land was given by Raja Saheb, Sukinda as 'Jagir' for the purpose of rendering service of 'Jaguali' to protect the property of Estate. After receiving the report from the Revenue Inspector, Dangadi and on verifying the document, the O.E.A Collector accepted the Petitioner as tenant vide order dtd. 08.2.1984. Thereafter, the Petitioner was paying rent regularly and has obtained rent receipts thereof. After lapse of twenty -four years, the Collector, Jajpur filed application invoking jurisdiction under Section 38 -B of the Act before the Member, Board of Revenue, Odisha, Cuttack assailing the order dtd. 08.2.1984 passed by the O.E.A Collector -cum -Tahasildar, Sukinda in O.E.A Vesting Misc. Case No.585 of 1983, which was registered as O.E.A Revision Case No.141 of 2006. The Member, Board of Revenue, Odisha, Cuttack by the impugned order while setting aside the order dtd. 08.2.1984 passed by the O.E.A Collector -cum - Tahasildar, Sukinda directed that the suit land be recorded in the 'Anabadi' Khata of the State Government as it was prior to vesting and the possession be also resumed by Tahasildar, Vyasnagar with immediate effect.

(3.) LEARNED Addl. Government Advocate submits that the Hon'ble Apex Court has already settled the law that there is no scope for the tenant to file an application under Section 8 (1) of the Act to declare him as tenant and to accept rent after lapse of long period from the date of vesting. He further submits that since the Petitioner claims the land as a service tenure (Jagir land) his claim is coming under Section 8 (2) of the Act and the said provision clearly provides that any person who is discharged from the conditions of village service may file an application before the Collector immediately after the vesting in the prescribed manner for settlement of the land held by him under the conditions of village service and the land shall be settled with him with occupancy right in such rent as may be determined by the Collector in the prescribed manner. The Petitioner claims the land as service tenure and no document has been filed by him to show that he was possessing the land/holding the land for the purpose of particular service. Service tenures are essentially of two categories. If the land was originally granted burdened with service, prima -facie that grant will not be resumable by the grantor. If the original grant was merely that of an office to be remunerated by the use of certain land, such a grant will be resumable when the incumbent ceases to perform the duties of that office. In respect of the former class of grants all that the grantor would be entitled to is the performance of the service, but grantee's interest in the property could not be taken away. In the present case the Petitioner has not filed any document in support of his contention that he was possessing the land as 'Jagir' for the purpose of rendering service of Jaguali to protect the property of Estate. Therefore, the Member, Board of Revenue, Odisha, Cuttack has rightly passed the impugned order and the same need not be interfered with. In support of his contention Learned Addl. Government Advocate has relied on the decisions of the Supreme Court as well as this Court reported in 1995 Supp (3) Supreme Court Cases 249, 2009 AIR SCW 4806 and 96 (2003) CLT 721.