Orissa High Court
Smt. Banashree Mahakud vs Executive Engineer (R & B) on 4 December, 2023
Author: R.K. Pattanaik
Bench: R.K. Pattanaik
IN THE HIGH COURT OF ORISSA AT CUTTACK
RSA No.358 of 2005
Smt. Banashree Mahakud .... Appellant
Mr. R.K. Mohanty, Advocate
-Versus-
Executive Engineer (R & B), .... Respondents
Bhadrak & Others
Mr. YSP Babu, AGA
CORAM:
JUSTICE R.K. PATTANAIK
DATE OF JUDGMENT:04.12.2023
1. The appellant has filed the instant appeal under Section 100 of
the Civil Procedure Code, 1908 questioning the correctness of the
impugned judgment in Title Appeal No.38 of 1999, whereby, the
judgment and decree in Title Suit No.90 of 1996 stands set aside
on the grounds inter alia that the same is against the weight of
evidence and not in accordance with law.
2. The plaintiff as appellant instituted the suit for declaration of
her occupancy right over the suit schedule land and permanent
injunction against the respondents. The State contested the suit
with a joint WS filed by the respondents. The case of the plaintiff
is that C.S. Khata No.69 stood recorded in the name of the then
District Board, Balasore with status 'Jamadharjya Jogya' and later,
it was leased out in favour of her grandfather, who possessed the
same by constructing a thatched house over it. It also pleaded that
in the year 1984, the plaintiff applied for rent fixation in respect
of the suit land registered as R.F. Case No.3105 of 1984, wherein,
Smt. Banashree Mahakud Vrs. Executive Engineer (R & B), Bhadrak & Others
respondent No.3 settled the suit land by order dated 30th
October, 1985 and issued rent schedule declaring her as a raiyat.
With the above pleading, the occupancy right was claimed by the
plaintiff, considering which, the court of 1st instance decreed the
suit. In other words, objection of the defendants was rejected
declaring the plaintiff's occupancy right over the suit land.
3. The respondents challenged the findings of the court in
appeal. The learned Lower Appellate Court overruled the
decision in Title Suit No.90 of 1996 and allowed the appeal with
the conclusion that such a direction to record the suit land in
favour of the plaintiff in Misc. Case No.2899 of 1988 is
impermissible under law and against the provisions of the Orissa
Estates Abolition Act, 1951 (hereinafter referred to as 'the Act'). It
has been further concluded that the plaintiff could manage to
settle the suit land in her favour in connivance with the local
revenue authority, who did not have the power to do so and also
while dealing with a suo motu resumption proceeding. Being
aggrieved of, the plaintiff filed the instant appeal on the ground
that the learned Lower Appellate Court could not have ignored
recognition of her occupancy status and when acceptance of rent
stands proved and never challenged at any point of time.
4. Heard Mr. Mohanty, learned counsel for the appellant and
Mr. Babu, learned AGA for the State appearing for the
respondents.
5. Mr. Mohanty, learned counsel for the appellant submits that
during 1928 settlement, Sabik RoR in respect of suit land under
Khata No.69 was published in the name of District Board,
Balasore liable to fixation of fair and equitable rent which was
leased out in favour of the appellant's grandfather. It is contended
that all the District Boards were abolished by virtue of Odisha Act
Smt. Banashree Mahakud Vrs. Executive Engineer (R & B), Bhadrak & Others
7 of 1960 with effect from 26th January, 1961 and accordingly, the
land with District Board at Balasore stood vested with the
Government in Revenue Department free from all encumbrances
except the tenancy right in view of Section 8(1) of the OEA Act,
inasmuch as, all the tenants under the intermediary continued to
hold the lands under the State Government. According to Mr.
Mohanty, R.F. Case No.3105 of 1984 was initiated by respondent
No.3 under the OEA Act for fixation of rent in respect of the suit
land measuring an area Ac.0.27 decimal, wherein, the original
lease deed and rent receipts prior to 1960 were filed and by order
dated 30th October, 1985 rent was fixed and rent schedule (Ext.2)
was prepared leading to the collection of arrear rent and salami
vide Ext.3 with the tenancy ledger (Ext.4) prepared. In so far as
the suit land is concerned, it relates to Plot No.1547 in respect of
which arrear rent was realized from the plaintiff and it is
contended that during 1989-90 major settlement, RoR in respect
of C.S. Plot Nos.1547 and 1566 stood recorded in the name of
the State Government. After such recording, it is further pleaded
that suo motu resumption proceeding was initiated with an order
passed therein vide Annexure-6 with a direction for correction of
the revenue record, however, in 1990, encroachment proceeding
in L.E. Case No.268 of 1990 was initiated for eviction of the
appellant in respect M.S. Plot Nos.1918 and 1891 under M.S.
Khata No.1014 and finally, eviction order under Ext.7 was passed.
It is lastly submitted that despite an order in Misc. Case No.2899
of 1988 i.e. Ext.6, no rent was accepted nor any correction was
made to the RoR, as a result of which, the appellant filed the suit
for a declaration that she has acquired right of occupancy vis-à-vis
the schedule land and also to restrain the respondents from
entering into the land and disturbing her peaceful possession.
With the above facts on record not being disputed, Mr. Mohanty
contends that the suit was rightly decreed in favour of the
Smt. Banashree Mahakud Vrs. Executive Engineer (R & B), Bhadrak & Others
appellant but without any justifiable reason, it was set aside by
the court in appeal.
6. Mr. Babu, learned AGA for the State appearing for the
respondents would submit that the decision of the learned Lower
Appellate Court is perfectly justified and in accordance with law
since the suit land could not have been settled with the appellant
in R.F. Case No.3105 of 1984 and Misc. Case No.2899 of 1988.
The reason assigned by the court below, as according to Mr.
Babu, learned AGA for the State, is in confirmity with Section 8(1)
of the OEA Act. In other words, it is contended that such
settlement in favour of the appellant could not have been
permitted as the OEA, Collector-cum-Tahasildar, Bhadrak is not
competent and legally authorized. The learned Lower Appellate
Court in view of the fraud noticed, as finally submitted, rightly
interfered with the decree and hence, impugned decision calls for
no interference.
7. Considering the pleadings on record, the following substantial
questions of law are formulated:
(i) Whether the learned lower appellate court was
correct in ignoring the rent schedule i.e. Annexure-2
issued under the provisions of the OEA Act while
dismissing the suit?
(ii) Whether the learned court below was justified in not
taking cognizance of recognition of the occupancy status
of the plaintiff under Section 8(1) of the OEA Act so
declared by the authority concerned?
(iii) Whether it was correct to interfere with the decree
of the suit when resumption proceeding and order
passed therein have not been challenged and when such
challenge is barred under Section 39 of the OEA Act?
Smt. Banashree Mahakud Vrs. Executive Engineer (R & B), Bhadrak & Others
8. The suit land corresponds to Plot Nos.1547 and 1566 under CS
Khata No.69 appertains to Plot Nos.1892, 1892/2362 and 1918 of
M.S. Khata No.1014. The C.S. plots stood recorded with the
District Board, Balasore and subsequently settled in the name of
PWD Department as made to reveal from Exts.9 and 1
respectively. The learned civil court declared occupancy right in
favour of the plaintiff in respect of both the C.S. plots.
Considering the order in R.F. Case No.3105 of 1984 and order
dated 15th May, 1989 in Misc. Case No.2899 of 1988, whereby,
correction to the MS RoR was directed confirming the possession
of the plots, the occupancy right was declared in favour of the
appellant. The learned Lower Appellate Court, however,
overruled it with a view and conclusion that fraud was
perpetuated to ensure the plots settled with the appellant and in
so far as the above proceedings are concerned, the same are
nonest in the eye of law since defendant No.3 did not have the
authority to do so.
9. As regards the lease, the contention of the plaintiff is that it was
in favour her grandfather in respect of C.S. Khata No.69. Not a
scrap of document was produced before the courts below in
support of the alleged lease. The plaintiff did not bother to cause
production of any such record regarding the lease on the strength
of which the occupancy right was demanded. The plaintiff heavily
relied on Ext.6 and the order in R.F. Case No.3105 of 1984 and
other documents, such as, Exts.2, 4, 5 and 5/a, which are the Rent
Schedule, Tenant Ledger and rent receipts respectively. It is
claimed that the lease document was produced before defendant
No.3 which led to the settlement of the plot in R.F. Case
No.3105 of 1984 followed by the order in Misc. Case No.2899 of
1988. The details of the lease could not be elicited by the plaintiff
nor did she make any attempt to call for record while demanding
Smt. Banashree Mahakud Vrs. Executive Engineer (R & B), Bhadrak & Others
the occupancy right in respect of Plot Nos.1547 and 1566. In fact,
Plot No.1566 stood included with a direction to correct the M.S.
RoR after order in Mis. Case No.2899 of 1988 was passed. In
absence of any evidence regard the lease and particular details
brought on record, in the considered view of the Court, it was
therefore rightly not given any weightage and importance. In
other words, the learned Lower Appellate Court did not commit
any illegality in not accepting the plea of tenancy of the plaintiff.
10. As to the orders in R.F. Case No.3105 of 1984 and Misc. Case
No.2899 of 1988, the learned Lower Appellate Court further held
that defendant No.3 had no authority to settle the plots in favour
of the appellant which is not permissible. The occupancy right has
been declared in exercise of jurisdiction under Section 8(1) of the
OEA Act which is challenged by the State. If the above provision
is read and understood, it relates to confirmation of tenancy by a
deeming effect when the tenant is treated so under the State
Government after vesting provided he had been inducted as such
by the ex-intermediary and the OEA authority is only to
undertake an administrative exercise. In other words, no
adjudicatory process is contemplated with any application
received from any one claiming himself as a tenant under the ex-
proprietor except an enquiry necessary to ascertain existence of
such tenancy, which is by virtue of Section 8(1) of the OEA Act.
11. Regarding the effect of Section 8(1) of the OEA Act, this Court
in Radhamani Dibya and Others Vrs. Braja Mohan Biswal and
Others AIR 1984 Ori 77 held and observed that Section 8(1) of
the OEA Act makes no provision for any such application to be
entertained and for the said purpose, no enquiry is contemplated,
the same being merely declaratory of the continuity of the tenure
of tenancy as it was immediately before the date of vesting. The
said view stands reiterated in Basanti Kumari Sahu Vrs. State of
Smt. Banashree Mahakud Vrs. Executive Engineer (R & B), Bhadrak & Others
Orissa and Others 1992 (I) OLR 41, wherein, it is concluded that
the State being the owner is entitled to receive rent from its
tenants including persons deemed to be tenants under Section 8(1)
of the OEA Act as such rights are akin to a landlord. It has been
further held and observed therein that the statutory authority has
been vested with power to collect rent on behalf of the State
from its tenants and where the revenue records indicate a person
as a tenant and the Government has been receiving rent from
such person, there is no difficulty for the OEA authority to accept
the same but where there is no record that a person is a tenant
but nevertheless comes forward and offers rent for acceptance,
the authority is under obligation to satisfy himself that the claim
in that regard is justified and for such limited purpose, an enquiry
is necessary and that perforce has to be administrative in nature
and its mode and nature would have to be determined by the
facts and circumstances of a particular case. So, therefore, in the
decision (supra), it was held that though an enquiry is
contemplated and the decision may partake the trapping of an
adjudication, it is not one in exercise of powers under Section 8(1)
of the OEA Act which does not authorize a proceeding and
adjudication but the enquiry is akin to an enquiry necessitate to
be an undertaken by any agent of a landlord and where in
exercise of such authority, land is settled in course of a proceeding
conferring the tenancy right, it would be without jurisdiction.
Having regard to the facts of the present case, in absence of any
evidence on lease and manner of enquiry held on earlier tenancy
vis-à-vis the plaintiff's grandfather, the adjudicatory exercise
which was undertaken by defendant No.3 in R.F. Case No.3105
of 1984 in respect of one of the plots and thereafter, by order
under Ext.6 in Misc. Case No.2899 of 1988 shall have to be held
as beyond jurisdiction not conceived of and contemplated under
the OEA Act as Section 8(1) thereof is declaratory in nature, the
Smt. Banashree Mahakud Vrs. Executive Engineer (R & B), Bhadrak & Others
fact and position of law which was lost sight of by the court of 1st
instance but was duly corrected by the learned Lower Appellate
Court.
12. Regarding the fraud alleged by the State, it is to be held that
due to want of evidence in support of the alleged lease, the Court
does not find any reason to interfere with the finding of the
Lower Appellate Court which is to the effect that the appellant
stage managed the orders in R.F. Case No.3105 of 1984 and Misc.
Case No.2899 of 1988. It is reiterated that absence of credible
evidence on the alleged lease and other details regarding the
possession ever since such lease, the Court is having no other
option except to conclude that the tenancy could not have been
declared in favour of the plaintiff, furthermore when, there is no
clarity on record that defendant No.3 had exercised the
jurisdiction with an administrative enquiry. Consequently, the
substantial questions of law stand answered against the appellant.
13. Hence, it is ordered.
14. In the result, the appeal is hereby dismissed, however, in the
circumstances, there is no order as to cost.
(R.K. Pattanaik)
Judge
TUDU
