KHOKA DAS Vs. STATE OF ORISSA AND OTHERS

JUDGEMENT

(1.) The petitioner in this writ application has prayed for quashing Annexure-4, which is an order of settlement in respect of Ac. 1.11 decimals of land appertaining to plot No. 4567 of Khata No. 1178 of Mauza Sana Krushnapur, in favour of opposite party No. 4. The petitioner has also prayed for a direction to opposite parties 2 and 3 to settle Ac. 10.00 of land including the aforesaid land in favour of the petitioner in accordance with the provisions of Sec. 7 of the Orissa Prevention of Land Encroachment Act (hereinafter referred to as the "O.P.L.E. Act").

(2.) According to the case of the petitioner, the disputed 10.00 acres of land including other lands were the "Khas Dakhal Anabadi" land of the ex-intermediary Bhupendranath Mandal. Prior to vesting of the land under the provision of the Orissa Estates Abolition Act (hereinafter referred to as the "O.E.A. Act"), the disputed land was leased out to Harekrushna Das, the father of the petitioner, as per registered deed No. 5629, dated 29-6-1952. Thereafter, said Harekrushna Das possessed the land and after his death in 1992, the petitioner continued in possession and had been paying rent to the State Government. In the Major Settlement Record-of-Rights published in the year 1973, the disputed property had been recorded under Anabadi Khata No. 1179 in the name of the State with note of forcible possession since 1962 of Harekrushna Das. It is alleged that L.E. Case No. 298 of 1979 had been initiated against Harekrushna Das wherein ultimately penalty and arrear rent were realised from the present petitioner as per receipt dated 26-3-1994 (Annexure-3). During the pendency of the said, the petitioner had applied to the Tehsildar for settlement of the entire disputed land in his favour in view of possession of himself and his father for more than thirty years. However, it is alleged that the Tahsildar has settled a portion of the said land measuring Ac. 1.11 dec. in favour of opposite party No. 4 as per the order under Annexure-4 in I. E. Case No. 184 of 1990 which is being impugned in this writ petition. It is alleged thatthe portion of the disputed land has been settled with opposite party No. 4 without following the procedure indicated in the O.P.L.E. Act and the Rules thereunder. It is further alleged that since the petitioner and before him his father were in possession since 1952, the entire disputed land should be settled with the petitioner.

(3.) A counter affidavit has been filed on behalf of the Tahsildar (Opposite Party No. 3) denying the allegations made in the writ application. It is alleged that the disputed land had been recorded as "Puruna Padia" and Jungle and was not the 'Khas Dakhal' land of the exlandlord. It is further alleged that since the lease had been created after 1-1-1946, the same was invalid in view of the provisions in Sec. 5(i) of the O.E.A. Act. The right of late Harekrushna Das under the so-called permanent deed of lease was seriously disputed. It is alleged that the disputed land was all along lying vacant and was not under the possession of the father of the petitioner. The possession of the petitioner and his father for more than thirty years has been disputed. It has been alleged that in view of the illegal possession, which had been noted in the Record-of-Rights of 1973, steps were taken under the O.P.L.E. Act for eviction of Harekrushna Das and after taking" possession, a portion of the land has been subsequently settled with opposite party No. 4 in accordance with the provisions of the O.P.L.E. Act and the Rules thereunder.