Orissa High Court
Bipin Bihari Hazira vs Tahasildar on 28 August, 2023
ORISSA HIGH COURT: CUTTACK
AFR W.P(C) NO. 21417 OF 2017
In the matter of an application under Article 226 of the
Constitution of India.
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Bipin Bihari Hazira ..... Petitioner
-Versus-
Tahasildar, Chandabali
and others ..... Opp. Parties
For petitioner : M/s. S.K. Nayak-2, Kintara,
S.S.K. Nayak, A. Behera,
G.C. Roy, K. Behera and
S.K. Panda, Advocates.
For opp. parties : Mr. A.K. Mishra,
Addl. Government Advocate
[O.P.1]
M/s. Goutam Mishra,
Sr. Advocate along with
M/s A. Dash, J.R. Deo and
A. Khandai, Advocates
(O.Ps. 2 to 5)
P R E S E N T:
THE HONOURABLE DR. JUSTICE B.R.SARANGI
AND
THE HONOURABLE MR JUSTICE MURAHARI SRI RAMAN
Date of Judgment : 28.08.2023
DR. B.R. SARANGI, J. The petitioner, by way of this writ petition,
seeks to quash the order dated 03.03.2017 passed in
Khashmahal Case No. 01 of 2016 under Annexure-4, by
which the Tahasildar, Chandabali has dropped the said
case by recording that as the case land has been
transferred to A.J.A. (Abad Jogya Anabadi) Khata for
inability of parties to produce relevant document, it cannot
be settled.
2. The factual matrix of the case, in brief, is that
the land in question situated in Chandabali village under
khata no.127, plot no.517, measuring an area Ac.0.13
decimals and plot no.516 measuring an area Ac. 0.04 dec.
totalling an area of Ac. 0.17 dec. was under the possession
of the grandfather of the present opposite party nos. 2 to 5,
namely, Late Hari Hazira. The possession over the case
land by Hari Hazira stands reflected in the Khasmahal
register. After the death of Hari Hazira, his son Late
Bichitra Nanda Hazira, who is the father of present opposite
party nos. 2 to 5, was in continuous and uninterrupted
possession over the said land. During his life time, the
father of present opposite party nos. 2 to 5 had constructed
a residential house consisting of 17 rooms, out of which 6
rooms had been used by him and his family members and
the rest rooms had been let out to different persons. The
father of opposite party nos. 2 to 5, being a landless person,
had been maintaining himself and his family members from
out of the rent collected from the tenants, as he had no
other source of income excepting that. After the death of the
father of the present opposite party nos. 2 to 5, opposite
party nos. 2 to 5 inherited the possession by way of
succession over the case land, as it was possessed by their
father, which had been duly verified and enquired by the
Revenue Inspector, Chandabali. The case of the petitioner is
that the land in question should have been settled in his
favour, as the same is a Khasmahal land, which was in
occupation of his grand-father, namely, Late Hari Hazira.
But, as the petitioner could not produce any documents
before the authority and the land was transferred to A.J.A.
Khata for inability of parties to produce relevant document,
the land could not be settled and the proceeding so initiated
was dropped. Hence, this writ petition.
3. Mr. S.S.K. Nayak, learned counsel appearing for
the petitioner contended that the petitioner has a right to
claim the benefit as the land in question, i.e., sabik plot no.
589 measuring an area of Ac. 0.13 decimal, plot no. 590
measuring an area of Ac. 0.2 decimal, plot no. 591
measuring an area of Ac. 0.2 dec., i.e., in total Ac. 0.17 dec.
under sabik khata no. 40 of Mouza Chandabali in the
district of Bhadrak, is a Khasmahal land and it was leased
out by the Tahasildar in the name of Khetrabasi Sahoo and
said Khetrabasi Sahoo sold the said land to one Hari
Hazira, who was the common ancestor of the petitioner and
opposite parties 2 to 5 through R.S.D. No. 531 dated
12.07.1993. By virtue of amicable arrangement between
Shakidutta Khan, Bhallava Nath, Hari Hazira, Giridhari
Majhi, the said sabik plot was possessed by Hari Hazira.
After death of Hari Hazira, his son Padmanava Hazira
(father of the present petitioner) inherited the said sabik
plot. Similarly, after death of Padmanava Hazira, Bichitra
Hazira and Bipinbihari Hazira inherited the said sabik plot.
Now Bichitra Hazira is dead. Bipinbihari Hazira and the
legal heirs of Bichitra Hazira who are the present opposite
parties 2 to 5 are in possession over the said Sabik land.
During the Hal settlement operation the above Sabik plots
became Hal plot nos. 517 & 516 under Hal Khata No.127.
But that Hal plots wrongly recorded under "Abad Jogya
Anabadi" khata, though the name of Hari Hazira, who was
common ancestor of petitioner and opposite party nos. 2 to
5, has been recorded in the remark columns and Kisam of
land has been recorded as Gharabari-1. Therefore, the
petitioner filed an application on 17.11.2016, which was
registered as Khasmahal Case No.01/2016 for settlement
the suit plot in his name and the names of his co-sharers,
who are the present opposite parties 2 to 5. But the
Tahasildar dropped the said Khasmahal Case on
03.03.2017. Thereby, the Tahasildar has committed gross
illegality and irregularity, for which the petitioner has
approached in the present writ petition. It is further
contended that Section-5 B of Orissa Government Land
Settlement Act provides that, if any Khasmahal land has
been occupied prior to 26.02.2006 and used for homestead
purpose, it shall be settled in favour of occupier by the
Tahasildar in the manner prescribed in Schedule-V of
O.G.L.S. Act. But here the Tahasildar, without going
through the above provision, has simply dropped the said
Khasmahal case on the ground that the said suit plot has
been recorded under A.J.A. Khata. Therefore, the petitioner
has approached this Court in the present writ petition.
4. Mr. A.K. Mishra, learned Addl. Advocate
vehemently contended that in view of the letter of Revenue
Inspector dated 25.11.2010, which has been placed on
record as Annexure-A/2, so far as plot No. 516 is
concerned, the same has been recorded as Gharabari-1
measuring an area of Ac. 0.04 decimal and in the remark
column it has been mentioned that the same is under
unauthorised occupation of Prafulla Kumar Sahu, Amulya
Chandra Sahu, Binod Kumar Sahu, Kumud Chandra Sahu,
Subodh Kumar Sahu, Prabodh Kumar Sahu, Golak
Chandra Sahu, S/o Chintamani Sahu, Antaryami Sahu,
Purnananda Sahu S/o- Yudhistir Sahu and Niranjan Sahu,
S/o Suresh Sahu. So far as Plot No. 517 is concerned, the
same has been recorded as Gharabari-1 measuring an area
of Ac. 0.13 decimal, which has been recorded in the name
of Hari Hazira, S/o-Purastam Hazira. Therefore, there are
two separate plots and two separate areas and two sets of
persons are in occupation. Consequentially, the settlement
has to be done on the basis of the occupation of the
persons mentioned in the report of the R.I. As none of the
parties have produced any material to establish their claim
to settle the plot in their favour, ultimately, the Tahasildar
dropped the same. Therefore, there is no illegality or
irregularity committed by the authority in passing the order
impugned, so as to cause interference by this Court at this
stage.
5. Mr. Jyoti Ranjan Deo, learned counsel appearing
on behalf of opposite parties 2 to 5 contended that they
being the legal representatives of deceased Bichitrananda
Hazira, who happens to be the son of Hari Hazira, in whose
favour the plot has been recorded as per the report of the
Revenue Inspector under Annexure-B/2, the same should
have been settled in their favour being Khasmahal land. It
is further contended that they are in possession of the land
for more than 50 years and also produced the relevant
documents for recording of the land in their favour. He
further contended that by dropping the proceeding, the
Tahasildar has committed an error apparent on the face of
record and, therefore, the matter should be remitted back
to the Tahasildar for reconsideration by affording
opportunity of hearing to all the parties. In support of his
contention, he has placed reliance on the judgment of the
apex Court in the case of New Okhla Industrial
Development Authority v. Kendriya Karmachari
Sahkari Grih Nirman Samiti, (2006) 9 SCC 524 and also
of this Court in the case of Nirmal Chandra Panigrahi v
State of Odisha, 2021 SCC OnLine Ori 807, in which one
of us (Dr. Justice B.R. Sarangi) was a member.
6. This Court heard Mr. S.S.K. Nayak, learned
counsel for the petitioner; Mr. A.K. Mishra, learned Addl.
Government Advocate for the State; and Mr. J.R. Deo,
learned counsel appearing for opposite parties no.2 to 5 in
hybrid mode and perused the records. Pleadings have been
exchanged between the parties and with the consent of
learned counsel for the parties, the writ petition is being
disposed of finally at the stage of admission.
7. It is an admitted fact that the opposite parties
no. 2 to 5 are in possession of the land appertaining to plot
no. 517 under Hal khata no.127 measuring an area of Ac.
0.13 dec. and Plot No. 516 measuring an area of Ac. 0.04
dec. totalling an area of Ac. 0.17 dec. But fact remains, as
per the report of the R.I., so far as plot no. 516 measuring
an area of Ac. 0.04 dec. is concerned, the same has been
recorded as Gharabari-1 and in the remark column it has
been mentioned that the same is in unauthorised
occupation of Prafulla Kumar Sahu, Amulya Chandra
Sahu, Binod Kumar Sahu, Kumud Chandra Sahu, Subodh
Kumar Sahu, Prabodh Kumar Sahu, Golak Chandra Sahu,
S/o- Chintamani Sahu, Antaryami Sahu, Purnananda
Sahu S/o- Yudhistir Sahu, Niranjan Sahu, S/o- Suresh
Sahu. So far as plot no. 517 measuring an area of Ac. 0.13
dec. is concerned, the same has been recorded as
Gharabari-1. The said plot stands recorded in the name of
Hari Hazira, S/o-Purastam Hazira. Therefore, if it is a
Khasmahal land, then in that case the authorities are to
proceed in accordance with law, keeping in view the
principle decided by this Court in the case of Nirmal
Chandra Panigrahi (supra). In the said case, reference
has also been made to the case of Sankarlal Verma and
others v. Smt. Uma Sahu and others, 1993 (I) OLR 187;
Sourindra Narayan Bhanja Deo v. Member, Board of
Revenue, Orissa, 98(2004) CLT 397 Vishnu Deo Roy v.
Rajesh Kumar Tiwari, 2018(I) OLR 31 and Rajat Kumar
Rath v. Collector, Cuttack (W.P.(C) No.3674 of 2005
disposed of on 18.04.2005). Consequentially, this Court
remanded the matter.
8. Applying the said ratio to the present case, it is
made clear that the Tahasildar, Chandabali, who is a public
authority, has failed to exercise its power in accordance
with the Statute. Therefore, in exercise of the power
conferred under Article 226 of the Constitution of the India,
this Court is of the considered view that let the Tahasildar,
Chandabali apply its mind and pass appropriate order in
accordance with law.
9. In the above of the matter, the order dated
03.03.2017 passed by the Tahasildar, Chandabali in
Khasmahal Case No. 1 of 2016 under Annexure-4 is hereby
quashed and the matter is remitted back to the Tahasildar,
Chandabali to adjudicate Khasmahal Case No. 1 of 2016
afresh by affording opportunity of hearing to all the parties
and conclude the same as expeditiously as possible,
preferably within a period of six months from the date of
communication of the judgment.
10. The writ petition stands disposed of accordingly.
However, there shall be no order as to costs.
(DR. B.R. SARANGI)
JUDGE
M.S. RAMAN, J. I agree.
(M.S. RAMAN)
Signature Not Verified JUDGE
Digitally Signed
Signed by: ARUN KUMAR MISHRA
Designation: ADR-cum-Addl. Principal Secretary
Reason: Authentication Orissa High Court, Cuttack
Location: Orissa High Court, Cuttack
The 28th August, 2023, Arun
Date: 30-Aug-2023 17:22:14
