SRI RABINDRANATH ROUTRAY Vs. SANJUKTA SWAIN AND ORS.

JUDGEMENT

(1.) The grievance of the Petitioner in this writ petition is that opposite party No. 1, who is none other than his sister, fraudulently obtained an order on 28.8.2002 from the Tahasildar, Sadar, Cuttack, opposite party No. 2, in OLR Case No. 297 of 2002 under Sec. 8(A) of the OLR Act wherein she was permitted to surrender her raiyati rights in respect of the land in plot No. 179 measuring an area of Ac.0.12 decimals in mouza Unit -37, Badambadi. Therefore, she converted the Kissam of the case land from agricultural purpose to homestead purpose since 1984 and as per the R.I.'s report, such conversion no way hampered the irrigation facilities to the neighbouring plots or obstructed the natural water flow or caused water logging in the vicinity and proclamation under Rule 5(5) of the OGLS Rules, 1985 was duly served. The suit plot relates to Cuttack Municipality area. The Petitioner had filed municipality holding tax receipt, electricity bill, water sanction order and on the basis of those documents the Petitioner was assessed to pay 50% of the rate of premium as she used the land for non -agricultural purpose prior to commencement of OLR Amendment Act, 1993. She was assessed to pay a total of Rs. 16800/ - towards 50% of the premium. As regards the arrear of land revenue, since the conversion was done in the year 1984, the Applicant was liable to pay arrear of land revenue for total area of Ac.0.112 decimals from 1984 -85 to 2001 -2002. According to the provision of Sub -rule 4(2) of Rule 12 -A of the OLR Act, the rate of rent was fixed at Rs. 500/ - per acre per annum. So the total arrear of land revenue came to Rs. 1200/ -. Both the premium and the land revenue, in total, came to Rs. 18000/ - as arrear of land revenue and she was directed to pay the same within one month.

(2.) It is submitted by the learned counsel for the Petitioner that opposite party No. 1 misrepresenting herself as the only legal heir of Khetra Mohan Routray, the recorded owner, who is the father of the Petitioner and opposite party No. 1 and by practising fraud obtained the order passed by the Tahasildar, Sadar, Cuttack by virtue of which the ROR was corrected and she paid the premium and rents of Rs. 16,800/ - vide rent receipt No. 910056 dated 19.01.03. Being aggrieved by the said order, the Petitioner filed RP Case No. 780/2004 before the Commissioner, Settlement and Consolidation, Cuttack under Sec. 15(b) of the Orissa Survey and Settlement Act, 1958 to record his name and his sister's name in the ROR on the basis of the registered family partition deed No. 5851 dated 17.12.1984. As per the said registered partition deed (Annexure -1), out of the said plot the Petitioner and opposite party No. 1 are entitled to 50% each, i.e. an area of Ac.0.055.5 links each. The Joint Commissioner, Settlement after due service of notice by order dated 30.9.2005 remanded the case to the Tahasildar, Sadar, Cuttack for giving effect to the registered partition deed, Annexure -1 specifically directing him to hear the parties, verify the relevant documents and field possession and make correction of ROR. Opposite party No. 2 on receipt of the order from the Joint Commissioner submitted a report that the Petitioner and opposite party No. 1 being the son and daughter are the legal heirs of Khetra Mohan Routray. Opposite party No. 1 on receipt of the notice from the Tahasildar in Remand Revision Petition, filed an application before the Joint Commissioner to recall the order of remand dated 30.9.2005 on the ground that the order passed in OLR Case No. 297 of 2002 under Sec. 8 -A of the OLR Act and the same was final. Therefore, the ROR cannot be corrected by the Settlement authority and the order was passed in Criminal Misc. Case No. 70 of 2006 under Sec. 144(1), Code of Criminal Procedure and the land pass book was prepared basing on the order in the OLR Case. She stated that she exclusively got the land in the OLR Case and basing on the said order, the ROR was corrected. Therefore, the remand order was liable to be recalled. On the said recall application, opposite party No. 4, the Joint Commissioner passed an order staying the further hearing in the Remand RP application. It is further submitted by the learned Counsel for the Petitioner that as the impugned order was obtained by opposite party No. 1 by practising fraud on the OLR authority, the same is not sustainable in the eye of law and since the Settlement authority has no jurisdiction to set aside the order passed in the OLR Case, the Petitioner has approached this Court for redressal of this grievance.

(3.) The opposite party No. 1 has filed a counter affidavit in this case. Learned Counsel for opposite party No. 1 submitted that by virtue of the order of the Tahasildar, she obtained a lease deed from the State Government for non -agricultural purpose and got the land pass book on 28.12.2005 and also got the property on the basis of an unregistered partition deed made between herself and the Petitioner in respect of the said land. Therefore, she obtained an absolute ownership over the said property and this writ petition has been filed by the Petitioner after the said fact came to his knowledge in the year 2005. He further submitted that this writ petition should be dismissed on the ground of delay.