RITA MOHAPATRA Vs. STATE OF ORISSA

JUDGEMENT

(1.) THE petitioner, in this writ petition, impugns the order dated 26.08.2011 passed by the Member, Board of Revenue, Odisha, Cuttack in O.S.S. Case No.289 of 2003.

(2.) LATE Pradipta Gangadeb (father of present opposite party no.6) was the ruler of ex -State of Deogarh. The land appertaining to plot no.254 under MS Khata No.183 measuring an area of Ac.0.25 decimals is a species of homestead land with a pucca house on it. The land is situated under Deogarh Municipality area and aforesaid late Pradipta Gangadeb was the owner of the land. On 27.01.1990 late Pradipta Gangadeb executed a Registered Sale Deed in respect of the aforesaid land in favour of the petitioner and delivered possession of the same with the building to the petitioner. The petitioner from the date of purchase, remained in peaceful possession over the same and she is stated to have constructed her residential house there. The petitioner filed Mutation Case No.781 of 1990 before the Tahsildar, Deogarh to mutate the land in question in her favour. Learned Tahsildar rejected such Mutation Application, inter alia, on the ground that the land sold by late Pradipta Gangadeb being a ceiling surplus land and he being the land owner having received the compensation amount on 11.10.1991, the land cannot be mutated in favour of the petitioner. The petitioner moved the Sub -Collector, Deogarh in appeal by filing Appeal No.1 of 1992. Before the appellate forum also she failed, as the appeal was rejected on the selfsame ground. The petitioner thereafter filed revision vide Mutation Revision No.74 of 1994 before the Commissioner, Land Records and Settlement. Subsequently the revision was transferred to the Member, Board of Revenue and numbered as O.S.S. Case No.289 of 2003. Before the Member, Board of Revenue, all the points regarding saleable interest on the part of late Pradipta Gangadeb were raised. It was specifically averred before the Revisional Forum that in view of Section 2 (14) of the O.L.R. Act and the decision of this Court reported in Mahurilal Agarwalla vs. Dusasan Sahu, 43 (1977) C.L.T. 681 and un -reported decision of this Court in O.J.C. No.635 of 1977, the land in question having belonged to species of homestead category, the same is not includible in the ceiling surplus area of late Pradipta Gangadeb. The Member, Board of Revenue however, without addressing the points raised before him, held that the land having been vested to the government absolutely and free from all encumbrances on 26.06.1984 after final order was passed by the Revenue Officer in O.L.R. Case No.5 of 1974, late Pradipta Gangadeb had no saleable interest on 27.01.1990 and for that reason R.S.D. No.65 dated 27.01.1990 executed in favour of the petitioner is not sustainable.

(3.) LEARNED counsel for the petitioner submits that the land in question being a homestead land is not includible in the ceiling surplus proceeding in view of Section 2 (14) of the O.L.R. Act. If wrongly the same has been included, the order determining the land in question to be a ceiling surplus area is a nullity and non -est in the eye of law, especially in view of Section 2 (14) of the O.L.R. Act. Learned Addl. Government Advocate however supports the impugned order, but he is not in a position to say as to why the aforesaid question stated to be raised before the revisional forum has not been addressed by the revisional forum.