KISHORI RANJAN DASH 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. 18.10.2008 passed in O.E.A. Revision Case No.294 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.1112 under Khata No.352 measuring an area of Ac 0.28 decimals situated in Village -Nizgarh, P.S. Sukinda in the district of Jajpur, which was recorded in the name of the Proprietor Gunanidhi Das of Sukinda Estate. The plea of the petitioner is as follows: Gunanidhi Das executed 'Hatapatta' of the land in favour of one Bimala Sundari Debi, W/o Padmanabha Das, who had 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, Bimala Sundari Debi 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. Case No. 35 of 1980. The O.E.A. Collector -cum -Tahasildar, Sukinda' Tahasil called for a report from the Revenue Inspector, Nizagarh and also issued general proclamation inviting objection to know whether anybody has any objection to the claim of Bimala Sundari Debi. No objection was received by the Tahasildar within the statutory period. The Revenue Inspector also submitted report on 17.4.1980 stating that rent was paid by Bimala Sundari Debi to the ex -Estate on 17.11.1952 and she obtained Receipt No.3951 from the ex -Estate of Sukinda and she was possessing the land. After receiving the report from the Revenue Inspector, Nizagarh, and on verifying the document, the O.E.A. Collector accepted her as tenant vide order dtd. 01.12.1980. Thereafter, she was paying rent regularly and has obtained rent receipts thereof. The present petitioner being the son of Bimala Sundari Debi is the only legal heir and, in possession of the said land. During Hal Settlement the said land was recorded under Khata No.89, Plot No. 1895 measuring an area of AC.0.17 decimals and Plot No.1896 measuring an area of Ac.0.22 decimals and Patta was issued in the name of the petitioner by the Settlement Authority. In the Hal Settlement R.O.R. published on 31.5.1992 the land was recorded under Khata No.884, Plot No.1895 measuring an area of AC.0.30 decimals in the name of the Government under Anabadi Khata with note of illegal possession reflecting the name of the petitioner The petitioner filed a petition before the Commissioner, Land Records and Settlement Odisha, Cuttack under Section 15 (b) of the Odisha Survey and Settlement Act, 1958, which was registered as R.P. Case No. 7751 of 1997 to correct the Records of Right in his name. The Commissioner by order dtd. 25.9.2002 while allowing the Revision Petition directed the Tahasildar, Sukinda to record the suit land in favour of the petitioner in a separate Khata in sthitiban status within four months from the date of receipt of the order. Thereafter, on the request of the Collector, Jajpur a Revision was filed before the Member, Board of Revenue, Odisha, Cuttack under Section 38 -B of the O.E.A. Act, 1951 challenging the order passed by the O.E.A. Collector in the year 2006, which was registered as O.E.A. Revision Case No.294 of 2006. The Member, Board of Revenue, Odisha, Cuttack by the impugned order directed that the suit land shall be recorded in the 'Anabadi' Khata of the State Government as it was prior to vesting and the possession be also resumed by Tahasildar, Sukinda 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. In support of his contention learned Addl. Government Advocate has relied on the decisions of the Supreme Court as well as his Court reported in 1995 Supp (3) Supreme Court Cases 249, 2009 AIR SCW 4806 and 96 (2003) CLT 721. 4.1 In the case of State of Odisha and others v. Brundaban Sharma and another reported in 1995 Supp (3) Supreme Court Cases 249 the Supreme Court held that the lease of land allegedly granted by the intermediary to the tenant prior to the date of vesting and conferment of tenancy rights by the Tahasildar without obtaining prior confirmation of the Board of Revenue is without jurisdiction. Collector of revenue or rent thereafter is an administrative act and it does not operate as recognition of pre -existing right, title or interest in the land of the -tenant. The Board of Revenue can exercise revisional powers in respect of orders, decisions, etc. made prior to coming into force of Section 38 -B but initiation of revisional power must be from and after coming into force of the Section. No period of limitation prescribed under the Act for revision and validity of a nonest order can be questioned in any proceeding at any stage. Since conferment of tenancy rights by the Tahasildar without obtaining prior confirmation of the Board of Revenue is void, the Board of Revenue justified in quashing the said order even though 27 years had elapsed since the grant of Patta by the Tahasildar. 4.2. In the case of State of Odisha and others v. Harapriya Bisoi reported in 2009 (2) OLR (SC) 229 : 2009 AIR SCW 4806 the Supreme Court held that mere execution lease by intermediary in favour of a person would not confer status of 'raiyat' on lessee nor would protect possession of such lessee under Section 8 of the Act. A 'lease' would amount to a transfer of an interest of the intermediary in the land to the lessee. In such a situation, far from being a tenant protected under Section 8 of the Act, the lessee would in fact step into the shoes of the intermediary with his interest being liable for confiscation and his entitlement limited to compensation from the State. On the other hand, for protection under Section 8 of the Act one has to be a 'raiyat' cultivating the land directly and having the rights of occupancy under the tenancy laws of the State. Thus a 'lessee' who is not actually cultivating the land i.e. who is not a 'raiyat' would not be within the protection of Sub -section 2(4) of Section 8 of the Act in its residuary part states that 'intermediary' would cover all owners or holders of interest in land between the raiyat and the State. Lands in question lying fallow and were not in physical possession of any person, thus the lands being not cultivated by the claimant, lessee, cannot be considered as 'raiyat'. The Supreme Court also taken note of large tract of uncultivated land lying in city and various claims made thereon on the basis of fraudulent title papers alleged issued by ex -intermediaries. 4.3 In the case of State of Odisha v. Nityan.and Satpathy and others reported in 96 (2003) CLT 721 this Court held that for the purpose of taking benefit of the provisions of Section 7(1) (a) of the Act, the intermediary must be in cultivating position of the said land either by himself, with his own stock or by his own servants or by hired labour or with hired stock. The nature and character of the land being nonagricultural, the same evidently was not in cultivating position of the intermediaries and, thus an application for settlement of such land by the intermediaries purported to be in terms of Section 7 of the Act was not maintainable. Furthermore, the land being not used either for cultivation or for horticulture purposes on the date of vesting did not attract the provisions of clause (a) of Sub -section (1) of Section 7 of the Act.