Jayshree Das vs Member
2023 Latest Caselaw 8753 Ori

          ORISSA HIGH COURT : C U T T A C K
                         W.P.(C) No.2742 of 2023
                 An application under Articles 226 & 227 of
                      the Constitution of India, 1950


Jayshree Das                                                 : Petitioner

                                    -Versus-

Member, Board of Revenue, Odisha, Cuttack                    : Opposite Parties
&Ors.


For Petitioner                                       : Mr. P.K. Mohanty,
                                                           Sr. Adv.
                                                       M/s.P. Mohanty,
                                                           P.K. Pasayat,
                                                           S.N. Dash, S.K. Sahu,
                                                           M. Patri
For Opposite Party Nos.1 to 5                        : Mr. U.K. Sahoo, ASC


                                    JUDGMENT

CORAM :

JUSTICE BISWANATH RATH Date of hearing & judgment:: 08.08.2023

1. Heard the submissions of the parties.

2. This Writ Petition involves the following prayer:-

"Under the facts and circumstances as narrated above, this Hon'ble Court may be graciously pleased to admit this Writ Application and issue RULE NISI calling upon the Opposite Parties to show cause along with records as to why the impugned Order dated 22.03.2022 of O.P. No.1 vide Annexure-6, to the extent of the part of direction to record the status of the Scheduled land, as "leasehold" shall not be quashed and further as to why, it shall not be commanded to record such status as "Sthitiban", thereby upholding/restoring the same as per RoR vide Annexure-2,

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and consequently make necessary corrections in this regard in the Status Column of Hal ROR No. 2239/3 (Annexure-7), And if the opposite parties fail to show cause and/or show insufficient or false cause, make the said RULE NISI absolute;

And further be pleased to pass any other Order/Orders as may be deemed fit and proper."

3. Factual background involved in this case appears to be; the scheduled land of Ac.0.100 being a part of an area of Ac.1.50 with the Kissam as Sarad III was granted by way of lease to one Sankar Behera, S/o. Nath Behera, resident of Nijagaon, caste-Gopal in Waste Land Case no.1669 / 1974, for which necessary Patta was issued to him by O.P. No.3 on 7.04.1976 under Sabik Khatiyan No.325/144 in Stitiban status. Sankar Behera after occupying the land for more than 19 years to meet his legal necessities sold the case land to the present Petitioner on 15.04.1995 by Regd. Sale Deed No.1038 for consideration of Rs.40,000/- and delivered possession to the Petitioner. By virtue of such sale the Petitioner acquired the right, title and interest of the case land and is in peaceful physical possession of the same since then. The land was accordingly mutated in the name of the Petitioner in a new Khata No.325/1137 also in sthitiban status. Thereafter during Khanapuri stage of the last Settlement operation, the scheduled land Ac.0.100 with new plot no.2576/1 was recorded in the name of the Petitioner again in stitiban status by the order of the learned Asst. Settlement Officer dated 5.01.2006 in Yadst No.2576/1. In compliance to the aforesaid order in the Yadast, parcha for the scheduled land under Hal Plot No.2576/6756 with an area Ac.0.100 was issued in the name of the Petitioner in stitiban status. Opposite Party No.3 under the provisions of Section 8A of the Odisha Land Reforms Act, 1960 converted the case land to Gharabari Kissam in Bhubaneswar

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Tahasil vide OLR Sec-8A Case no.3958/2009 on payment of Rs.3050/- towards premium and other fees to the Government and fixed a rent of Rs.3.00 and cess of Rs.2.00 at the rate applicable to Gharabari Kissam of land. Subsequently the scheduled land was illegally recorded as abad jogya khata by the Asst. Settlement Officer during objection hearing stage and without relying on the Sabik records maintained by the Tahasildar and in ignoring the yadast and parcha. The Petitioner, therefore, after final publication of records approach the learned Member, Board of Revenue, Odisha through revision U/s.15(b) of the OSS Act, 1958 to record the scheduled land in her name in stitiban status by revisiting the entries in the finally published records. Considering the case of the Petitioner while the learned Member, Board of Revenue, Odisha directed to record the scheduled land in the name of the Petitioner, the status of the land, however, was illegally directed to be recorded as leasehold instead of Stitiban vide his order dated 22.03.2022 in OSS Case No.1421 of 2017. The Tahasildar, Bhubaneswar, accordingly, issued ROR to the Petitioner only in Dakhal Swatwa Sunya status vide Hal ROR No.2239/3. Being aggrieved with the said order the Petitioner approached this Court by way of this Writ Petition.

4. Taking this Court to the grounds taken in the Writ Petition together with the order of this Court in W.P.(C) No.17697 of 2019 Mr. Mohanty, learned Senior Advocate appearing on behalf of the Petitioner claimed that the issue involved herein is already decided by the order of this Court in W.P.(C) No.17697 of 2019 and therefore, claims that the benefit granted therein should be extended to the Petitioner herein.

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5. Mr. Sahoo, learned ASC, on the other hand, though did not dispute to the factual aspect herein, however, also contended that the principle requires to be decided here is already decided through the order of this Court in the above noted Writ Petition and accordingly, submitted that the order of this Court dated 30.03.2021 passed in W.P.(C) No.17697 of 2019 is squarely applicable to the case at hand.

6. Considering the rival contentions of the parties, this Court finds, there is no dispute at Bar that the order of this Court dated 30.03.2021 in W.P.(C) No.17697 of 2019 has clear application to the case at hand. This Court looking to the history in preparation of record all through and as narrated hereinabove finds, the kisam of the land was already in stitiban status. The matter did not end here. There is even allowing of Section-8(A) of the OLR Act application and acceptance of conversion fee by the State long since and all these remains binding on both sides. This Court, therefore, while allowing this Writ Petition, keeping in view the direction contained in the above disposed of Writ Petition finds, the direction part in the impugned order at Annexure-6 to keep the status of the land in leasehold remains bad and thus interfering to the said extent only and in modification of the final part of the direction in maintaining the record of rights, directs for preparation of the record of rights involving the property involved herein to maintain the status of the land as stitiban and further in the classification Gharabari, while also keeping in view that the decision of the competent authority in the Section 8(A) of the OLR Act proceeding remains unchallenged as of now.

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7. Let the corrected desired Record of Rights be brought within a period of six weeks from the date of production of a copy of this judgment herein.

8. Writ Petition succeeds. No cost.

(Biswanath Rath) Judge

Orissa High Court, Cuttack.

The 8th day of August, 2023// Ayaskanta Jena, Senior Stenographer

Signature Not Verified Digitally Signed Signed by: AYASKANTA JENA Designation: Senior Stenographer Reason: Authentication Location: High Court of Orissa Date: 14-Aug-2023 14:08:59