SATYABADI PRADHAN Vs. TAHASILDAR

JUDGEMENT

(1.) By this writ petition under Article 226 of the Constitution of India petitioner seeks to quash the order under Annexure 6 passed by opposite party No. 2, the Sub-Divisional Officer, Berhampur in O.E.A. No. 1 of 1976 and the consequential notice under Annexure 7 issued by opposite party No. 1, the Tahasildar-cum-O.E.A. Collector, Digapahandi in C. P. No. 1281 of 1966. Petitioner further prays for issue of a writ of mandamus and/or any other appropriate order prohibiting and/or restraining the opposite parties either from taking any action or in any manner interfering with the possession and enjoyment of the petitioner over the disputed property by virtue of the aforesaid order.

(2.) The case of the petitioner is that his ancestors purchased certain lands locally known as Gangasagar bila along with the disputed land measuring about A 4.77 decimals in Khasra No. 13 and Khewat No. 22 of mouza Gada Chaitanpur from one Bhagirathi Pattanaik and others by a registered sale deed dated 28th May, 1919. The lands were Dar-mila Inam lands belonging 1o Bada Khe-mandi Estate. The disputed land was initially recorded as a tank. But in course of time the same was changed into a cultivable land and was in exclusive possession of the petitioner. On 1-6-1953 the Bada Kh'emandi Estate vested in the Slate. After vesting neither the ex-intermediary nor any other person filed any application under Sections 6, 7 and 8 (3) of the Orissa Estates Abolition Act (hereinafter called the 'Act') for settlement of the disputed land within the prescribed period. According to the petitioner, the time for making application was extended by the Government from time to time and on 22-9-1966 the father of the petitioner filed an application under Sections 6 and 7 of the Act which was registered as C. P. No. 1281 of 1966 before the Tahasildar-cum- O.E.A. Collector, Digapahandi and on 21-2-70 notices were issued. Thereafter on 9-4-1970 the Tahasildar-cum-O.E.A. Collector directed the Revenue Supervisor to visit the spot personally and conduct a local enquiry. On enquiry, as it was found that names of some other persons had been entered in the preliminary R.O.R. as co-rayats (Khatadars), notices were issued to the said Khatadars, but they endorsed no objection. The Tahasildar-cum-O.E.A. Collector (opposite party No. 1), after considering the report of the Revenue Supervisor, allowed the application of the petitioner, settled the land with him, fixed Rs. 4.50 as fair and equitable rent with effect from 1-6-1953 and directed the petitioner to pay salami equal to three times of the rent, as the petitioner's application was not made in time. He, accordingly, directed preparation of the rent roll. On 21-9-70, i.e. after the appeal period was over, the rent roll was signed and the petitioner was directed to deposit Rs. 64.41. Petitioner duly deposited the sum. After the settlement of the disputed land with the petitioner, petitioner was regularly paying rent and cess to the Government and obtaining receipts therefor. Thereafter in the year 1971, he mortgaged the said land to the Land Mortgage Bank and got a loan of Rs. 4,000 for development of cultivation in the said land. In the years 1972-73 and 1974-75 opposite party No. 1 also sanctioned loan of Rs. 600 for purchasing bullock cart and Rs. 400 for development of the said land respectively to the petitioner. In the year 1975 petitioner also got a loan of Rupees 1,500 from Canara Bank on mortgage of the said land for purchasing fertilisers etc. The allegation of the petitioner is that opposite parties 4 to 11 in order to harass him falsely initiated M. C. Irrigation Case No. 9 of 1975 under Irrigation Act before opposite party No. 1, even though by that time the tank had lost its character and became cultivable land and the land was getting water for cultivation purposes from the nearby Ghodahada Canal. Accordingly notice for payment of water tax from 1975-76 was served on the petitioner with respect to the said land. During the pendency of the aforesaid M. C. Irrigation Case, on 18-2-1976 opposite parties 4 to 11 filed Orissa Estates Abolition Appeal No. 1 of 1976 against the order of opposite party No. 1, settling the land with the petitioner under Annexure 1 dated 17-870 passed in C. P. No. 1281 of 1966, before opposite party No. 2, the Sub- Divisional Officer, Berhampur as per the executive instructions of the Government for settlement of lands under Sections 6 and 7 of the Act along with an application under Section 5 of the Limitation Act to condone the delay (which was more than 5 years). The said O.E.A. Appeal No. 1 of 1976 was posted to 9-3-76 and on that day opposite party No. 2 without giving any notice to the parties or without calling for the records of the case, has condoned the delay of about more than 5 years and remanded the case to opposite party No. 1 for fresh disposal in accordance with law --vide his order under Annexure 6. In pursuance of the order of opposite party No. 2 under Annexure 6 dated 9-376, opposite party No. 1 has issued a notice under Annexure 7 to the petitioner in C. P. No. 1281 of 1976. These Annexures 6 and 7 are now under challenge in this writ petition.

(3.) Mr. Palit, learned counsel appearing for the petitioner, contends that the opposite party No. 2 has no power to condone the delay of about more than 5 years; that the Limitation Act has no application to this case; that the petitioner having acquired a vested right in the land, notice should have been issued to him before disposal of the case ex parte; and that the opposite party No. 2 having passed the order arbitrarily and capriciously behind the back of the petitioner without giving any notice to the parties, the same is in violation of the principles of natural justice and liable to be quashed.