Sarat Chandra Parida And vs State Of Odisha And Others
2022 Latest Caselaw 2741 Ori

        IN THE HIGH COURT OF ORISSA AT CUTTACK
                     W.P.(C) No.6554 of 2004

   Sarat Chandra Parida and                ....            Petitioners
   another
                                  Mr. Srinivas Mishra-2, Advocate

                                -Versus-

   State of Odisha and others             ....        Opp. Parties
                                         Mr. D.K. Mohanty, AGA
                                    Mr. H.N. Mohapatra, Advocate

             CORAM:
             THE CHIEF JUSTICE
             JUSTICE R.K. PATTANAIK
            DATE OF JUDGMENT :20.05.2022

 R.K. Pattanaik, J
1.

The Petitioners have filed the instant writ petition invoking under Article(s) 226 and 227 of the Constitution of India, 1950 challenging the impugned order dated 9th March, 2004 passed in O.E.A. Appeal No.6 of 2003 (Annexure-3) by the learned Additional District Magistrate, Dhenkanal (O.P.No.2) on the grounds inter alia that the jurisdiction was wrongly exercised and therefore, it is not tenable in law and thus, liable to be interfered with.

2. The Petitioners contention is that by virtue of an executive instruction of the Government dated 6th December, 2012 (Annexure-1), the land in question which had vested and recorded as bebandobast, was settled in their favour by order dated 14th August, 2001 of O.P.No.3 which was appealable to the Sub-Collector but, O.P.No.2 erroneously entertained an appeal in

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terms Section 9 of the Orissa Estates Abolition Act, 1951 (hereinafter referred to as 'the OEA Act') and then, passed the impugned order under Annexure-3 which is, therefore, untenable in law.

3. It is pleaded that the subject in question stood recorded under Khata No.8 measuring Ac.13.15 dec. in Sabik ROR as debottar bahel interest of O.P.No.4 which corresponds to Hal Khata No.199 with an area of Ac.12.77 dec. which was, however, subsequently recorded in the name of O.P.No.4 in bebandobast status. The Petitioners claimed to be in cultivating possession of the case land on payment of rent to O.P.No.4 prior to the merger of princely State with State of Orissa, inasmuch as, intermediary interest was vested in 1972 and since the subject was not in khas possession, O.P.No.4 did not apply for statutory settlement in terms of Section 8-A of the O.E.A. Act and hence, was recorded in bebandobast status. It is the further case of the Petitioners that the State Government in order to convert bebandobast lands for use released the executive instruction under (Annexure-1) with a provision to initiate suo motu lease proceeding to settle it in favour of persons in actual cultivating possession since the date of vesting on realization of salami and payment of back rents and in case of rejection of any one's claim, appeal within thirty days to lie before the Sub-Collector. In so far as the present case is concerned, O.P.No.2 entertained the appeal under Section 9 of the OEA Act which has been challenged by the Petitioners on the ground that it should have been before the Sub-Collector as per Annexure-1 but then, such a preliminary objection was rejected.

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According to the Petitioners, the appeal was not maintainable since because it was to be filed before the Sub-Collector in view of clause XXIII of the executive instruction i.e. Annexure-1. It is also claimed by the Petitioners that since the schedule land was settled under the lease principles, O.P.No.2 in any case could not have admitted the appeal filed under Section 9 of the OEA Act. The Petitioners on the aforesaid grounds have questioned the legality and judicial propriety of the impugned order under Annexure-3 passed by the O.P.No.2.

4. Heard Mr. S. Mishra-2, learned counsel for the Petitioners; Mr. D. Mohanty, learned AGA and Mr. H.N. Mohapatra, learned counsel appearing for O.P. Nos.1 to 3 and O.P.No.4 respectively.

5. Mr. Mishra-2 contended that O.P.No.2 committed gross error in law by entertaining the appeal under Section 9 of the OEA Act when the scheduled land was settled with the Petitioners as per Annexure-1 and furthermore, the appeal was to lie before the Sub-Collector in view of clause XXIII thereof and the above provision was not duly taken cognizance of, while examining the jurisdictional objection raised by the Petitioners before O.P.No.2 and therefore, Annexure-3 cannot be sustained in law.

6. However, Mr. Mohanty, learned AGA and Mr. Mohapatra appearing for O.P.No.4 justified the decision of O.P.No.2 in so far as the maintainability of the appeal under Section 9 of the OEA Act is concerned by contending that since it is a case where the claim was allowed, Clause XXIII would not have applied. It is further contended that since the settlement was effected under

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the OEA Act and Rules, challenging the order of O.P.No.3 under Annexure-2 had to be before O.P.No.2 under Section 9 of the OEA Act and therefore, rightly the jurisdiction was exercised.

7. A decision in the case of Smt. Basanta Kumari Dei v. Krushnapriya Devi and others 2006 SCC Online Ori: (2007) CLT 183 is cited at the Bar to contend that the appeal before O.P.No.2 was incompetent. So to say, the exercise of appellate jurisdiction by O.P.No.2 has been under challenge advancing an argument that such an appeal should have been before the Sub- Collector as per and in view of Clause XXIII of Annexure-1.

8. On a bare reading of Annexure-1, it would appear that steps were taken by the Government to settle bebandobast lands lying unutilized after vesting and in many such cases, remained with inchoate status with persons continued to possess the same without paying rents. For that purpose, a detailed procedure was prescribed, as to in what manner, the lands to be settled with the persons in cultivating possession of it since the date of vesting. It is discernible from Annexure-1 that the above decision of the Government was primarily with a view to settle the lands which are held as (a) service tenure under the ex-ruler of the erstwhile princely State or any member of his family; (b) khamar/nizjote/private lands of the ex-rulers of the merged territories; (c) homestead land of ex-intermediaries and land in their khas possession; and (d) land held for service as village servants/land held for rendering personal service to the ex- intermediaries. In terms of Annexure-1, the bebandobast lands were to be settled on payment of salami at the rate prescribed per

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acre with back rents from the date of vesting vis-à-vis different classes/categories besides homestead lands. In the instant case, Clause XXIII of Annexure-1 is referred to which stipulates that in case of rejection of claim of any person, a thirty days time for appeal to the Sub-Collector should be allowed. Essentially, the challenge to Annexure-3 is that O.P.No.2 was not competent to entertain the appeal under Section 9 of the OEA Act, especially when, the schedule land was settled by virtue of Annexure-1.

9. O.P.No.2 condoned the delay under Section 5 of the Limitation Act considering the facts and circumstances peculiar to the case and while entertaining the appeal filed under Section 9 of the OEA Act passed impugned order i.e. Annexure-3 admitting it and posting it to 6th April, 2004 for hearing. In other words, the preliminarily objection on jurisdiction raised by the Petitioners before O.P.No.2 was rejected and the appeal was held maintainable.

10. There is no denial to the fact that in Sabik ROR, the land was settled with debattor bahel interest of O.P.No.4, where after, the status was bebandobast in Hal settlement which then led O.P.No.3 to settle the same in favour of the Petitioners as per Anenxure-1. It is contended that the ancestors of the Petitioners were in possession of the schedule land, for which, O.P.No.3 settled it with them by order under Annexure-2.

11. The State's contention is that the explanation below second proviso to Section 9(1) of the OEA Act indicates that the Collector of the district mentioned therein shall for the purpose

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of the provision include the Additional District Magistrate and therefore, the appeal was filed before O.P.No.2. In the decision of Basanta Kumari Dei (supra), this Court held that no appeal under Section 9 of the OEA Act would lie against an order passed in a suo motu bebandobast proceeding initiated on the basis of the Government circular by referring to the proviso of Section 8(3) thereof, whereby, sub-Section 3 shall not apply to a trust estate which vested in the Government on or after the date of coming into force of the Orissa Estates Abolition (Amendment) Act, 1970. Since the estate had vested in the State after 1970 i.e. in the year 1974, the Court therein held that the Additional District Magistrate would not be competent to entertain the appeal under Section 9 of the OEA Act. On a proper reading of the above decision, it would appear that a subject of bebandobast proceeding would be amenable to challenge under Section 9 of the OEA Act if it comes within the purview of Section 8(3) thereof provided the trust estate had vested prior to the commencement of the Orissa Estates Abolition (Amendment) Act, 1970. In the instant case, the settlement of the land has been by virtue of Annexure-1. Furthermore, since the claim has been allowed, certainly Clause XXIII of Annexure-1would have no application. But to question such a settlement, the case has to fall within the ambit of Section 8(3) of the OEA Act with the exception that the trust estate had not vested on or after 1970. The land in question claimed to be a trust estate declared vide O.E.A. Case No.117 of 1980 appeared to have vested in the year 1972. Since the year of vesting stands undisputed, the appeal under Section 9 of the OEA Act would not be maintainable.

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12. For the reasons as aforesaid, the impugned order under Annexure-3 is clearly unsustainable on the ground of jurisdiction to maintain the appeal under Section 9 of the OEA Act. Notwithstanding the above, the party aggrieved is not precluded from challenging the settlement on merits as per the remedy available under law.

13. Accordingly, it is ordered.

14. In the result, the writ petition stands allowed. As a corollary, the impugned order dated 9th March, 2004 passed in O.E.A. Appeal No.6 of 2003 (Annexure-3) by the learned Additional District Magistrate, Dhenkanal is hereby quashed. However, in the circumstances, there is no order as to costs.

(R.K. Pattanaik) Judge

(Dr. S. Muralidhar) Chief Justice

TUDU