Orissa High Court
Somanath Mohapatra & Others vs State Of Odisha And Others on 9 February, 2023
IN THE HIGH COURT OF ORISSA AT CUTTACK
WP(C) No.2443 of 2023
Somanath Mohapatra & others .... Petitioners
-versus-
State of Odisha and others .... Opposite Parties
Advocates appeared in this case :
For Petitioner : Mr. H. Mohapatra, Advocate
For Opposite Parties : Mr. G.N. Rout, A.G.A.
CORAM:
JUSTICE ARINDAM SINHA
JUSTICE SANJAY KUMAR MISHRA
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Date of hearing and Judgment: 09.02.2023
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ARINDAM SINHA, J.
1. Mr. Mohapatra, learned advocate appears on behalf of
petitioners. He submits, his clients are heirs of the recorded tenant. He
draws attention to annexure 1 being extract of the RoR showing his
clients' grandfather as recorded tenant.
2. He submits, the OEA Collector-cum-Tahsildar purported to
initiate a Bebandobasta case on 9th July, 2016. He demonstrates the
case was initiated in respect of plot no.2031 being kissam gharabari.
Furthermore, the case was registered under sections 7/9 of Odisha
Estates Abolition Act, 1951 and, inter alia, circulars dated 6th
December, 2000 and 11th January, 2016. He submits, section 7 is not
applicable as it is in respect of land used for agricultural and
horticultural purposes. So far as section 8 is concerned he submits, it
provides continuity of tenure of tenants. He reiterates, his clients'
grandfather was the recorded tenant.
3. He submits, impugned is order dated 30th October, 2018 made
in the suo motu case. He refers to aforesaid circular dated 6th
December, 2000 to submit, it was for purpose of fixation of rent. He
hands up also aforesaid circular dated 11th January, 2016 to submit,
there was made thereby, continuity of said purpose for fixation of rent
in respect of land having Bebandobasta status. He points out from
impugned order that it was made in respect of plot 2035. Said plot is
under his clients' possession and occupation. He submits, parallely
there was mutation case and in it, in respect of plot 2031 recorded in
name of the grandfather, his clients came to be recorded in respect of
renumbered plot 2035. The only thing that could be done was fixation
of fair and equitable rent but by impugned order, there was direction
to record case land under the Abada Jogya Anabadi Khata and initiate
encroachment case against his clients. He submits, there be
interference.
4. Mr. Rout, learned advocate, Additional Standing Counsel
appears on behalf of State. He draws attention to said circular dated
6th December, 2000, clause 3 (viii) (c) to submit, the Collector duly
acted in terms of the clause. The Collector committed no illegality in
seeking satisfaction regarding settlement. It is only after such
satisfaction obtained, fixation of rent is to be done. The Collector was
not satisfied regarding settlement. There should be no interference.
5. We do not find there is any dispute of facts. We had
ascertained from Mr. Rout regarding dealing with the writ petition,
whether to be on counter filed. No necessity thereof was the
submission.
6. We reproduce below clause 3 (viii) (c) from circular dated 6th
December, 2000.
"3 (viii)(c) Homestead land of ex-
intermediaries and lands in khas possession of the ex-
intermediaries.
All homestead lands comprised in an estate in
possession of the ex-intermediaries including
buildings, structures existing thereon (except the land
or premises used as Kacheries etc.) were deemed as
settled with the intermediaries subject to payment of
fair and equitable rent by the Collector in the
prescribed manner, provided they were used for such
homestead purposes prior to 1.1.1946. Similarly,
agricultural and horticultural lands in khas possession
of the ex-intermediaries were allowed for settlement
and determination of rent under section 7 of the O.E.A.
Act. In such cases the test for deciding whether any
such vested land in Bebandobasti status can be settled
with the occupier is to find out if the present occupier
was the ex-intermediary or his successor or valid pre-
25.8.1983 transferee. Here again the presumptive
value of the R.O.Rs that the land in question is vested
land or that the persons recorded in the R.R.Os were
in possession of the land on the date of final
publication of the R.O.R. should not be questioned by
the Tahsildar. He should be satisfied if evidence is
available from the local enquiry and hearing that the
person presently possessing is the ex-intermediary or
his successor or pre-25.8.1983 transferee. If his
finding on this is in alternative he should settle the
land with the person concerned and by assessing fair
and equitable rent without any hesitation."
(emphasis supplied.)
7. As aforesaid, there is no dispute on facts. Land in possession
of petitioners and referred to as case land in impugned order bears
kissam gharabari. Such lands were deemed to have been settled with
the intermediaries subject to payment of fair and equitable rent by the
Collector in the prescribed manner, provided they were used for such
homestead purposes prior to 1st January, 1946. This appears to be the
case since, there is reference in impugned order to petitioners'
ancestor as being recorded tenant, borne out by annexure 1 (RoR).
Petitioners have obtained mutation. It is only in respect of agricultural
and horticultural lands that in proceeding with Bebandobasta cases
suo motu there can first be question of settlement and thereafter
fixation of rent. Even in respect of settlement of agricultural land in
Bebandobasta status, the Tahsildar should not question the finally
published RoR.
8. We are convinced neither section 7 nor 8 nor aforesaid
circulars were properly applied for the authority to obtain jurisdiction
to have made impugned order. It is set aside and quashed.
9. The writ petition is allowed and disposed of.
( Arindam Sinha )
Judge
]
( S. K. Mishra )
Judge
P. Pradhan
