BRAJA KISHORE MOHAPATRA Vs. MITU SAHU

JUDGEMENT

(1.) IN this writ application, challenge is to the order dated 27 -2 -1991 (Annexure -1) of the Additional District Magistrate, Angul in OEA Appeal Case No. 18 of 1986 by which he has modified the order dated 1.2 -8 -1985 (Annexure -5) of the OEA Collector in OEA Case No. 932 of 1973 by excluding plot No. 72 measuring Ac. 5. 02 decimals (tank) and plot No. 181 measuring Ac. 1. 14 decimals (Bandha Adi) from being settled with the petitioners.

(2.) KHATA No. 9 admeasuring Ac. 28. 29 decimals in mouza Gangadharpur, P. S. Parjang in Kamakhyanagar Sub -Division was recorded jointly in the names of one Duttahari Mohapatra and others who were predecessors in interest of the petitioners under the status ''Panapik Lakhraj Bahel' in the revenue settlement of the year 1923 -24, which vested in the State free from all incumbrances under Section 3 -A of the Orissa Estates Abolition Act, 1951 (hereinafter referred to as 'the Act') vide Revenue Department Notitication N -o. 29251 dated 2 -5 -1973. The disputed property i. e. Plot No. 78 (Ac. 5. 02 decimals) and Plot No. 181 (Ac. 1. 14 dec.) being part of the aforesaid Khata No. 9 also came to be vested in the State. The petitioners as the' intermediaries in khas possession of the lands including the disputed lands, applied for settlement under Section 7 of the Act to the OEA Collector -cum -Tahasildar, Kamakhyanagar which was registered as OEA Case No. 9V3 of 1979. The OEA Collector by order dated 31 -5 -1977 settled Ac. 2. 38' decimals of land under Section 7 of the Act with the petitioners and resumed possession of Ac. 22.71 decimals. The disputed lands were within the area resumed by the OEA Collector. Being aggrieved by the aforesaid resumption, the petitioner filed Appeal No. 16 of 1977 before the Additional District Magistrate, Dhonkanal. The appellate authority by order dated 21 -7 -1981 remanded the case to the OEA. Collector for re -disposal with specific direction that the petitioners should be given an opportunity of hearing in the matter. In the meantime, the Ha1 settlement operation came in and the disputed lands were recorded in the name of the petitioners vide Bebandobast Khata No. 27. As there was delay in the disposal of the case by the OEA Collector after the matter was remanded to him, the petitioners applied for settlment of the lands including the disputed lands to the Tahasildar, Kamakhyanagar vide OEA Lease Case No. 33 of 1985. The Tahasildar issued' proclamation inviting objections and since no objection was filed within the statutory period of 30 days, he settled the lands including the disputed lands with the petitioners on rayati basis subject to payment of salami and back rent vide order dated 23 -5 -1985 (Annexure -2).Following the said order, the petitioners were duly issued with patta (Annexure -3) In the meanwhile, the OEA Collector in pursuance of the order of remand took up the matter for hearing and passed order on 18 -8 -1986 (Annaxure -5) settling the lands including the disputed lands with the petitioners under Section 7 of the Act. Being aggrieved by the order of settlement (Annexure -5), opp. party No.1 filed appeal bearing OEA Appeal Case No. 12 of 1986 before the Additional District Magistrate, Angul who by impugned order dated 27 -6 -1991 (Annexure - 1) held that the disputed lands being tank and/or adi were not available to be settled with the ex -intermediaries ' under Section 7 of the Act inasmuch as the tank and/or adi could not be possessed by cultivating them for agricultural or horticultural purposes. He accordingly, directed the disputed lands to stand vested in the State. As already indicated the aforesaid part of the impugned order is the subject -matter of challenge in this writ application.

(3.) SECTION 7 (1) (a) of the Act so far as relevant, provides that on and from the date of vesting, all lands used for aggicultural or horticultural purposes, which were in khas possession of an intermediary on trie date of such vesting shall notwithstanding anything contained in the Act be deemed to be settled by the State Government with such intermediary who shall be entitled to retain possession thereof and hold them as raiyats under the State Government having occupancy rights in respect of such lands subject to the payment of such fair and equitable rent as may be determined by the Collector From the aforesaid provision, it is clear that an intermediary can have the benefit of it if he was found in khas possession of the tends used; for agricultural or horticultural purposes on the date of vesting.