ANADI CHARAN SAHOO (SINCE DEAD) Vs. STATE OF ORISSA
LAWS(ORI)-2020-1-9
HIGH COURT OF ORISSA
Decided on January 14,2020

Anadi Charan Sahoo (Since Dead) Appellant
VERSUS
STATE OF ORISSA Respondents

JUDGEMENT

S.K.SAHOO,J. - (1.) The petitioners in this writ petition have challenged the impugned order dated 30.04.1994 passed by the Member, Board of Revenue, Odisha, Cuttack in O.E.A. Revision Case No.46 of 1992 vide Annexure-7 in exercise of the power under section 38-B of the Odisha Estates Abolition Act, 1951 (hereafter 'O.E.A. Act') in setting aside the order dated 30.07.1979 of the Tahasildar, Bhubaneswar passed in Vesting Case No.795/70-71 vide Annexure-4.
(2.) The case of the petitioners is that on 25.04.1936 through Hata Patta, Raja Madhusudan Dev of Patia gave the agricultural land situated in Mouza Chandrasekharpur, area Ac.1.43 dec. and Ac.1.07 dec. in sabik plot nos.300 and 299 respectively in favour of late Anadi Charan Sahoo, the grandfather of the petitioners for cultivation as a tenant under him. The said land corresponds to Hal Plot nos.334 and 335 respectively under Rakhit Holding no.472. The status of land in dispute was 'Niji Chasa' as per R.O.R. published in the year 1931 vide Annexure-1. The grandfather of the petitioners being a tenant under Raja of Patia, paid the rent which was accepted by Raja of Patia and rent receipt thereof was issued vide Annexure 2. In the year 1943, Raja of Kanika purchased the estate of Patia by auction and became landlord in respect of agricultural land in dispute and grandfather of the petitioners became deemed tenant under Raja of Kanika, who also accepted the rent for the year 1943 onwards and issued rent receipts in favour of the grandfather of the petitioners. The estates were vested in the State Government in the year 1954 and accordingly, estate of Kanika was vested in the said year and grandfather of the petitioners being in possession of the agricultural land in dispute by raising paddy crops became tenant under State Government by paying rent. The Tahasildar, Bhubaneswar initiated a proceeding under section 8(1) of the 'O.E.A. Act' to enquire about the possession and tenancy of the grandfather of the petitioners and the same was registered as Vesting Case No.795/70-71 and after due enquiry and on receipt of Amin's report, he passed the order dated 30.07.1979 (Annexure-4) in favour of the grandfather of the petitioners and held him to be a tenant and settled the land with him. The R.O.R. was corrected in exercise of the powers conferred under Rule 34 of the Odisha Survey and Settlement Rules, 1962 and published accordingly in the year 1981 vide Annexure-5 recording the name of late Anadi Charan Sahoo in respect of land in dispute and rent was paid and accepted by the State Government for the years 1974 to 1981, 1982 to 1985, 1985-1986 and for the year 1989 to 1994 and rent receipts were issued vide Annexures-8/a, 8/b, 8/c, 8/d, 8/e, 8/f and 8/g annexed to the affidavit of petitioner no.2 Jitendra Kumar Sahoo dated 13.08.2019. The petitioners in shape of memo filed the order sheet of Suit No.2794 of 1987 initiated under section 22(3) of Odisha Survey and Settlement Act, 1958 by the Settlement Authority and the order sheet indicates that notice was issued to the G.A. Department who did not appear and participate in the enquiry in respect of village- Chandrasekharpur, P.S.-New Capital, Unit No.41, Dist.- Puri and the grandfather of the petitioners was accepted as 'stitiban rayat' and accordingly, R.O.R. was published in the year 1988 and the grandfather of the petitioners was recorded as 'stitiban status' and the State Government accepted rent for the year 2000 to 2001 and issued rent receipt in favour of late Anadi Charan Sahoo. On the basis of reference from Collector, Puri for revising the aforesaid order dated 30.07.1979 of Tahasildar, Bhubaneswar passed in Vesting Case No.795/70-71, O.E.A. Revision Case No.46 of 1992 under section 38-B of the O.E.A. Act was initiated by the Member, Board of Revenue. In the reference letter, it was indicated that while recognizing Anadi Charan Sahoo as a tenant under section 8(1) of the O.E.A. Act and correcting the current R.O.R., the Tahasildar failed to verify the Ekpadia as well as the genuineness of the 'handwritten Patta'. The Collector also expressed doubts about the genuineness of the orders as the signatures of the Tahasildar on the case record on 15.07.1979, 16.07.1979 and 30.07.1979 did not appear to tally with each other.
(3.) The Member, Board of Revenue after hearing the respective parties, in the impugned order dated 30.04.1994 has been pleased to hold as follows:- "7. A perusal of the L.C.R. shows that the opp. party filed an application in Form "H" for settlement of suit land. Section 8-A(1) read with Rule 6 of O.E.A. Act prescribes Form "H" for settlement of homestead and agricultural lands under sections 6 and 7 of the said Act. The claim for settlement under sections 6 and 7 is meant for the Ex-intermediary. In the instant case, the claim petition was filed by the opp. party when evidently he was not an intermediary. There was no scope for the opp. party to apply under sections 6 and 7 for settlement of land on which his tenancy right is claimed to have been created before the date of vesting. 8. Besides, the opp. party produced some rent receipts before Tahasildar only for the years 1942, 1943 and 1952 though he claims to have acquired the land since the issue of the "hand written Patta" i.e. from 25.04.36. Unless continuous rent receipts from the date of granting of lease Patta namely 1936 till the year of vesting namely 1954 are produced, it cannot be presumed that opp. party's possession was continuous on regular payment of rent to the Ex-intermediary from the time the hand written Patta was granted in the year 1936. Out of this relevant period, the rent receipts produced in this Court by the opp. party relate to 1942 (with 3 years back rent) and 1952 only. The rent receipts relating to the years after 1979 i.e. after the date of the Tahasildar's order settling the land with the opp. party are not material in the present context. The Tahasildar also failed to verify the Ekpadia or Tenant's Ledger. Now the opp. party is also unable to file this very important and relevant document i.e. Tenant's Ledger. The list of documents filed by the opp. party shows against serial No.5 that the Tenant's Ledger is filed by him. On verification of the said document, it is clear that this is a document issued by the Tahasildar after settlement of land in favour of the opp. party and it is not a Tenant's Ledger which is opened in the Tahasil on the basis of Ekpadia filed by the Exintermediary and on the basis of which the rent is collected. In the absence of the proper Tenant's Ledger and continuous rent receipts, a deeming provision like section 8(1) of the O.E.A. Act will not have any application as the opp. party cannot prove his continuity of tenure as a tenant immediately before the date of vesting. Hence it appears that the Tahasildar acted beyond his jurisdiction by entertaining an application which was misconceived and settling the land on a wrong interpretation of the relevant provisions in the statute. 9. It is further seen that the R.O.R. is finally published in favour of the State Government and without making State as a party to the case, the Tahasildar -cum- O.E.A. Collector should not have settled land in favour of the opp. party. The land reserved for "Unnat Jojana Jogya" should not have been settled without de- reservation by the Collector under Orissa Government Land Settlement Act. The Tahasildar is competent to correct the R.O.R. for any event which takes place after its final publication but for any event which takes place prior to final publication of the R.O.R., the Tahasildar is incompetent to correct the R.O.R. as the forum is available under section 15 of the Orissa Survey and Settlement Act. Moreover the estate vested in the year 1954 and the opp. party filed his claim for the disputed land in 1971 after a lapse of 17 years. 10. I also find from the L.C.R. that the signatures of the Tahasildar on 15.07.79, 16.07.79 and 30.07.79 do not appear to tally with each other. This lends credence to the Collector's reservation about the genuineness of the orders." ;


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