Natha Naik vs Surendra Naik And Others
2022 Latest Caselaw 2410 Ori

                  IN THE HIGH COURT OF ORISSA AT CUTTACK
                                   W.P.(C) No.4157 of 2004

            Natha Naik                                 ....             Petitioner
                                                      Mr. S.S. Parida, Advocate

                                          -Versus-

            Surendra Naik and others                   ....     Opposite Parties
                                                       Mr. D.K. Mohanty, AGA
                       CORAM:
                       THE CHIEF JUSTICE
                       JUSTICE R. K. PATTANAIK
                                        ORDER

Order No.                              04.05.2022

            R.K.Pattanaik, J

06. 1. By invoking writ jurisdiction under Article(s) 226 and 227 of the Constitution of India, 1950, the Petitioner has assailed the legality and judicial propriety of the order dated 7th January, 1986 (Annexure-5) passed in OEA Lease Appeal Nos.1 of 1983 and 14 of 1985 by the Sub-Divisional Officer, Puri Sadar (OP No.8) as well as the decision dated 26th December, 2003 in OEA Lease Revision Case Nos.2 and 3 of 1986 (Annexure-6) of the Additional District Magistrate, Puri (OP No.9) on the grounds inter alia that the authorities concerned fell into serious error firstly by directing remand for reconsideration of OEA Lease Case No.328 of 1980 and then dismissing his claim on the ground of being not in khas possession of the schedule land and hence, not entitled to any relief as per Section(s) 6 and 7 of the Orissa Estates Abolition Act, 1951

(hereinafter referred to as the 'OEA Act') which are, as a result, liable to be set aside.

2. The Petitioner contends that an application was filed before the Additional Tahasildar, Nimapara, Puri (OP No.7) in OEA Lease No.328 of 1980 for settlement of the schedule land situated over Sabik Plot No.1041 measuring an area of Ac.0.40 decimals out of Ac.2.16 decimals under Sabik Khata No.141 and also Sabik Plot No.1075 with an area of Ac.0.03 decimals out of Ac.1.14 decimals under Sabik Khata No.180 of Mouza-Chhotarapur on the ground that he as well as others were tenants under the ex-intermediary and after an amicable settlement, to be in possession of the land in question since more than 50 years with a Gharabari status. As per the Petitioner, the schedule land stood vested with the Government in the year 1953 and after vesting, his grandfather paid rent to the Government for the year 1966 to 1970 which would be evident from the notice i.e. Annexure-1 series. It is further claimed that OP No.7 issued public notice inviting objections, conducted field enquiry and finally, when no objection was received, after considering the materials available on record, settled the schedule land in his favour in OEA Lease Case No.328 of 1980 vide Annexure-2. Later to the above settlement under Annexure-2 in respect of Plot Nos.1041 and 1075 under Khata Nos.141 and 180 respectively, in total, measuring Ac.0.64 dc., the Petitioner claimed that rent was paid to the Government for the year 1982-83 and 1983-84 under Annexure-3 series and thereafter, it was recorded in consolidation settlement appertaining to Plot Nos.1277 and 1273/1366 under Khata No.146 and final ROR (Annexure-4) was

accordingly published. The Petitioner's contention is that the Appellants in OEA Lease Appeal Nos.1 of 1983 and 14 of 1985 approached OP No.8 against the above settlement without any locus which were allowed but it was sent back for fresh adjudication vis-à-vis the claim the Petitioner without properly appreciating the subject matter in dispute against which the matter was carried in revision, however, it also ended in dismissal on the premise that he was not in khas possession of the schedule land and hence, not entitled to the benefits of Section(s) 6 & 7 of the OEA Act. According to the Petitioner, the above decision of the revisional authority under Annexure-6 cannot be sustained in law since because a third case was made out moreover when there was only a remand for review of the claim. It is lastly apprised to the Court that in respect of the schedule land, T.S. No. 252 of 1986 and T.S. No.148/344 of 1990/1986 were instituted by the Petitioner before the court of learned Additional Munsif, Puri against the predecessor-in-interest of OP Nos.1 to 5 and the Sarpanch of Kundhei GP which were dismissed, where after, T.A. Nos.14 of 1991 and 8/71 of 1993/1992 were filed, wherein, a decree of permanent injunction was granted against the defendants setting aside the judgment in the suits and thereafter, the respondents filed S.A. Nos.4 and 238 of 1995 which are stated to be still pending before this Court and under the above circumstances, while the Petitioner has been in possession of the land which after being duly settled with him by OP No.7, the concerned authorities could not have overruled vide the impugned orders under Annexure-5 & 6.

3. Heard Mr. S.S. Parida, learned counsel for the Petitioner and Mr. D.K. Mohanty, learned AGA for OP Nos.6 to 9. None appeared for OP Nos.1 to 4, whereas, notice against OP No.5 returned unserved.

4. Mr. Parida submits that the schedule land was settled with the Petitioner by virtue of the order under Annexure-2 on the satisfaction that he had been in long possession and in the meanwhile, having acquired the occupancy right and moreover, the ex-intermediary having not filed any claim as per Section 7 of the OEA Act and accordingly, settled it fixing rent and cess on payment of salami and back rent from 1953 to 1981 but then, both the authorities in appeals and revisions on erroneous and alien ground rejected such claim though initially with a remand for reconsideration and then dismissing it on merit. Mr. Parida further contends that the possession of the Petitioner was confirmed in T.A. Nos.14 of 1991 and 8/71 of 1993/92 which was completely lost sight of while disposing of the claim by common orders under Annexure-5 & 6 which are, therefore, to be set aside being not in confirmity with law.

5. Mr. Mohanty, learned AGA, on the contrary, justified the decision of the revisional authority vide Annexure-6 by contending that the Petitioner was found not to be in khas possession and hence, was held not entitled to the benefits of Section(s) 6 & 7 of the OEA Act. In other words, according to Mr. Mohanty, the land in question could not have been settled with the Petitioner by OP No.7 in OEA Lease Case No.328 of 1980 when he was not found

to be in khas possession of it and therefore, impugned orders under Annexures-5 & 6 require no interference.

6. Admittedly under Annexure-2, the schedule land was settled with the Petitioner on the ground that the ex-intermediary did not furnish any claim in respect thereof and such settlement was in terms of Section 7(1)(b) of the OEA Act. Under Annexure-5, OP No.8 entertained doubt as to if the Petitioner to be an ex- intermediary so as to justify the settlement of the land in terms of Section 7(1) of the OEA Act and accordingly, remanded the case. As to the revisions before OP No.9, ignoring the remand as directed by OP No.8, the claim of the Petitioner was out rightly rejected on the ground that the land was not in his khas possession and furthermore for being recorded as anabadi with kisam padia in 1928 ROR.

7. OP Nos.1 to 4 filed counter affidavit and opposed the claim of the Petitioner stating that the schedule land was illegally recorded during consolidation settlement merely by following the order of the OEA authority and that apart, no such application could have been entertained at the instance of a tenant. According to the contesting private opposite parties, the Petitioner managed to get the land in question settled with him by approaching OP No.7, who without jurisdiction, passed the order in OEA Lease Case No.328 of 1980 which was rightly set aside by the authorities below. It is contended that the suit which has been filed by the Petitioner is for permanent injunction without seeking declaration of right, title and

interest vis-à-vis the schedule land and therefore, decree in appeal cannot be of any assistance to substantiate the alleged claim.

8. In terms of Section 7 of the OEA Act, certain lands in khas possession of the intermediaries are settled with them as raiyats having occupancy rights on payment of rent. By a deeming fiction created under law, (a) all lands used for agricultural or horticultural purposes in khas possession of an intermediary on the date of vesting; (b) lands for the said purposes but held by a temporary lessee or lessees of an intermediary who owns either as intermediary or in any other capacity with less than 30 acres of land in total extent situated within the State; (c) lands for such purposes but in possession of a mortgagee which immediately before the execution of the mortgage bond were in khas possession of such intermediary shall be settled with the intermediary and all the share holders who are to retain possession thereof as raiyats under the State Government having occupancy rights in respect of such lands subject to payment of fair and equitable rent as determined by the Collector which is mandated in Section 7 of the OEA Act. In the instant case, it is made to suggest that the land was settled under Section 7(1)(b) of the OEA Act whereupon OP No.8 raised a doubt as to if the Petitioner was really an ex- intermediary. However, from Ext.2, it appears that the land was settled with the Petitioner not as an ex-intermediary but as a tenant in absence of any claim filed by the ex-intermediary, namely, Madan Mohan Dev and others. It is contended that as because the Petitioner and others were kuta tenants under the ex-intermediary,

considering possession of the schedule land in such capacity, OP No.7 settled it under Annexure-2, whereby no illegality was committed, which has been strongly objected to by OP Nos.1 to 4 on the ground that such settlement was not permitted in law. A settlement under Section 7 of the OEA Act can only be in respect of lands in khas possession of the ex-intermediaries which are retained by them as raiyats. The Petitioner was not the ex- intermediary which is evident from Annexure-2. But, since the settlement prima facie appeared to be under Section 7 of the OEA Act, OP No.8, therefore, directed a remand to find out if at all the Petitioner was an ex-intermediary. However, such a determination may not have been required when the Petitioner was considered to be a tenant by OP No.7. Then, the question would be, how in that case, the schedule land was settled with the Petitioner in OEA Lease Case No.328 of 1980 when it could not have been in terms of Section 7 of the OEA Act. If the Petitioner was a tenant under the ex-intermediary, who apparently did not submit any records recognizing such tenancy, OP No.7 merely by accepting a request ought not to have settled it under Annexure-2 fixing rent and cess on payment of salami. It is not brought to the notice of this Court as to manner in which such lease was granted. Under the OEA Act, a procedure is prescribed with regard to confirmation of tenancy. In the present case, OP No.7 long after vesting in the year 1953 settled the schedule land with the Petitioner in 1981 which was subsequently challenged by the predecessor-in-interest of OP Nos.1 to 5 by raising competing claim. OP No.9 considering the objection of the opposite parties therein to the effect that the

application vis-à-vis the schedule land could have been by the ex- intermediary under Sections(s) 6 & 7 of the OEA Act and not the Petitioner, whose claim of possession over the same was stated to be 20 years prior to the lease and the fact that the local R.I. furnished a report disclosing such possession to be barely five years prior to 1982 and taking into account the revenue records with a conclusion that it was not under his khas possession dismissed the claim which in the humble opinion of the Court should not be interfered with in absence of any satisfactory explanation as to how and according to which of the provisions of the OEA Act, such settlement was allowed by OP No.7.

9. Mr. Parida cited the following decisions of this Court in Choudhury Balaram Das v. the Commissioner, Consolidation and others 2004 (II) OLR 528 and Manmohan Rout and others v. State of Orissa and others 74(1992) CLT 454 while contending that the authorities concerned committed serious error in rejecting the claim of the Petitioner. However, in the considered view of the Court, the above decisions do not render any assistance supporting the claim of the Petitioner in whose favour the schedule land was settled despite having no clarity as to how such settlement was permitted merely being a tenant under the ex-intermediary more so when it was accomplished by resorting to Section 7 of the OEA Act. In so far as the suit for injunction is concerned which was decreed in appeal in T.A. Nos.14 of 1991 and 18/71 of 1983/1992, the Court is also of the opinion that such a decision which is under challenge in appeal before this Court is again unlikely to help and

assist the Petitioner in support of the alleged claim. Having regard to the above facts, the inevitable conclusion would be that the authorities below rightly declined to believe and entertain the claim of the Petitioner over the schedule land and as a corollary, the decision vide Annexure-5 & 6 cannot be said to suffer from any legal infirmity so as to require this Court's interference in a writ jurisdiction.

10. Accordingly, it is ordered.

11. In the result, the writ petition stands dismissed.

(R. K. Pattanaik) Judge

(Dr. S. Muralidhar) Chief Justice

KC Bisoi