AFR KHIROD KUMAR SWAIN Vs. STATE OF ORISSA

JUDGEMENT

(1.) The petitioners claiming to be villagers of Adatira in the district of Cuttack have filed this application to quash the order dated 27.11.2002 passed by the Commissioner, Land Records and Settlement, Odisha, Cuttack in R.P. No.9439/2001 directing the Tahasildar, Niali to make an enquiry for ascertaining the names of the successors of deceased Pari Mallick and record the suit Hal plot No.2466 area Ac.1.00 decimals in their favour in a separate khata in sthitiban status under Orissa Survey and Settlement Act, 1958.

(2.) The epitome of the facts of the case in hand is that the Tahasildar, Niali leased out area Ac.1.00 decimals out of area Ac.3.87 decimals from Sabik Khata No.262, Plot No.2156 of mouza Padatira in favour of one late Pari Mallick without inviting any public objection, without publishing any public notice and without observing mandatory provisions of leasing process as provided under law. The land in question being an objectionable land meaning thereby, it is a "Gochar" land, that cannot be leased out in anybody's favour. On the basis of the objection raised, learned Additional District Magistrate, Cuttack cancelled the said lease and declared the same as "Rakhita" Khata, which is being used as public land by the villagers. More so, on the basis of lease granted, the Tahasildar, Niali had mutated the land in favour of Pari Mallick and subsequently, Sub -Collector, Sadar, Cuttack by order dated 30.11.1996 in Mutation Appeal No.101/1995 remitted the matter back to the Tahasildar, Niali with direction to record the suit land in favour of Government in "Rakhita" Khata and submit a compliance within one month after informing the party concerned. Fakira Mallick, son of late Pari Mallick, the original lessee filed Revision Petition No.9439/2001 under Section 15(b) of the Orissa Survey & Settlement Act, 1958 before the Commissioner, Land Records & Settlement, Orissa, Cuttack, who without considering the material facts mentioned above, by order dated 27.11.2002 directed that the suit Hal Plot No.2466 area Ac.1.00 decimals be taken out from Hal Khata No.759 and be recorded in favour of all the successors of late Pari Mallick and for this purpose the Tahasildar, Niali will make an enquiry to ascertain the names of the successors of deceased Pari Mallick and record the suit Hal Plot in their favour in a separate khata in sthitiban status. Hence this application.

(3.) Mr. K.K. Swain, learned counsel for the petitioner strenuously urged that while passing the impugned order dated 27.11.2002, the Commissioner, Land Records and Settlement, Orissa, Cuttack has not taken into consideration the fact that the lease granted in favour of late Pari Mallick by the Tahasildar has been cancelled by the Additional District Magistrate, Cuttack. Subsequently, the mutation allowed by the Tahasildar, has also been set aside by the Sub -Collector in Mutation Appeal No.101/1995. Without considering the material aspects, the Commissioner, Land Records & Settlement, Orissa, Cuttack by order dated 27.11.2002 in R.P. No.9439/2001 filed by one Fakira Mallick who is one of the legal heirs of the deceased Pari Mallick under Section 15(b) of the Orissa Survey and Settlement Act vide Annexure -4 directed that the suit Hal Plot No.2466 area Ac.1.00 decimals be taken out from Hal Khata No.759 and be recorded in favour of all the successors of late Pari Mallick and further directed the Tahasildar, Niali to make an enquiry for ascertaining the names of the successors of deceased Pari Mallick and record the suit land in their favour in a separate khata under Sthitiban status. Such action of the Commissioner is in gross violation of the provisions of law. Therefore, he seeks for quashing of Annexure -4.