ORISSA HIGH COURT: CUTTACK
O.J.C.NO. 1288 OF 1998
In the matter of an application under Articles 226 and 227 of
the Constitution of India.
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Trinath Naik (Ganda) …… Petitioner
-Versus-
Commissioner, Land Reforms &
Settlement, Orissa, Cuttack
and others. …… Opp. Parties
For Petitioner : Mr. Ashok Tripathy
For Opp. Parties: M/s. J.S.Mishra.
H.S.Mishra, S.Behera,
U.Satpathy &
A.K. Panigrahi
(For O.Ps 2 and 3)
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Date of judgment- 23.07.2010
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P R E S E N T:
THE HONOURABLE SHRI JUSTICE M.M. DAS
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M. M. DAS, J. The petitioner has prayed for issuance of writ of
certiorari quashing the order dated 10.10.1996 under
Annexure-4 passed by the Commissioner, Land Reforms and
Settlement, Orissa, Cuttack – opp. party no. 1 in Revision
Case No. 303 of 1993. The said revision was filed by the opp.
party no. 2 and the original opp. party no. 3 for correction of the
finally published record of rights in the Hal settlement under
section 15 of the Orissa Survey and Settlement Act, wherein the
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disputed properties measuring Ac.8.36 decimals were recorded
solely in the name of the petitioner. It is the admitted case of
the parties that the disputed properties were original recorded
in the name of their common ancestor – Rahash Ganda, who
was performing the duties of a Chowkidar of the village and the
disputed land was a Chowkidari Jagir land which was being
enjoyed by said Rahash Ganda. The petitioner’s case is that
Baikuntha Ganda, the father of the petitioner, was performing
the duties of Chowkidar of the village and the land in question
was being enjoyed by him as Jagir land after the death of
Rahash, who was the father of Baikuntha Ganda. Upon the
demise of Baikuntha, the present petitioner claims to be
enjoying the Jagir land in lieu of his service as Chowkidar and
after abolition of the Chowkidari, the disputed lands were
settled in favour of the petitioner in Misc. Case No. 64 of 1964
by the order of the Collector dated 4.6.1965. Upon
commencement of the hal settlement operation, the settlement
authorities after enquiry prepared the final record of rights
exclusively in the name of the petitioner in the year 1989.
According to the petitioner, at a belated stage, i.e., after four
years, the opp. party no. 2 and the original opp. party no.3
(who has been substituted during the pendency of the writ
petition by his legal heirs, who are opp. parties 3(i) to 3(iv)) filed
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the Revision Case No. 303 of 1993 before the opp. party no. 1 –
Commissioner, for correction of the finally published record of
rights and the Commissioner relying upon the special report
called for from the Tahasildar, allowed the said revision
directing recording of the name of the opp. party no.2 and the
original opp. party no. 3 jointly along with the petitioner in
respect of the disputed properties. It has been further
contended on behalf of the petitioner that the Commissioner
has relied upon the order dated 4.3.1968 passed by the
Additional Tahasildar, Boudh in Chowkidari Case no. 725 of
1965 in which the Additional Tahasildar settled the land in
question jointly in the names of the petitioner and Nilakantha
Ganda, the father of opp. party no.2 and original opp. party
no.3.
2. Learned counsel for the petitioner submitted that
once the land was settled in Revenue Misc. Case No. 101 of
1964 by the Collector on 4.6.1965, no land was further
available to be settled jointly in the name of the petitioner and
in the name of late Nilakantha Ganda in Chowkidari Case No.
725 of 1965 by the Additional Tahasildar. He relied upon the
decision in the case of Trilochan Singh and another v.
Commissioner of Land Records and Settlement, Orissa and
others, 79 (1995) CLT 507 in support of his contention that
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once the original order of settlement was passed by an authority
who has jurisdiction to deal with the matter and the said order
remained unchallenged, even if the said order is improper and
illegal, the same cannot be treated as void and it remains
enforceable. In the said case, a Division Bench of this Court
was dealing with a question of settlement made under the
Orissa Estates Abolition Act. This Court in the facts of the said
case held that the order of settlement in favour of the
petitioners therein could be set at naught in a proceeding under
the O.E.A. Act. The settlement having created a right in favour
of the petitioners, the same is presumed to be valid unless
declared otherwise. It was further held that person assailing its
validity is to get such a declaration from a proper forum in a
proper proceeding. Unless that is done, the order remains
enforceable.
3. Learned counsel for the opp. parties, on the
contrary, submitted that the order dated 4.6.1965 passed by
the Collector in Revenue Misc. Case No. 61 of 1964 was not an
order in accordance with law and the Collector had no
jurisdiction to pass such an order. Therefore, according to him,
the opp. parties nor their predecessor Nilakantha Ganda was
bound by the said order. After the abolition of the Chowkidari
under the Orissa Offices of Village Police (Abolition) Act, 1964,
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(for short, ‘the Act’), a claim petition was filed by late Nilakantha
Ganda which was registered as Chowkidari Case No. 725 of
1965 and was decided by the Additional Tahasildar on 4.3.1968
directing recording of the disputed land jointly in the name of
the petitioner and late Nilakantha Ganda. Thereby the land was
settled jointly in the name of the petitioner and the predecessor
in interest of the opp. parties. Therefore, the settlement
authorities could not have omitted the names of the opp. parties
from the finally published record of rights. Learned counsel
further submitted that neither there is any illegality or
impropriety in the impugned order and, this Court, should not
interfere with the same while exercising its jurisdiction under
Article 226 of the Constitution by issuing a writ of certiorari.
4. Admittedly, the land in question being a Jagir
land was being possessed in lieu of service by the common
ancestor of the parties, i.e., Rahasha as a Chowkidar of the
village. Upon coming into operation of the
Act, the office of Village Police (Chowkidari) was abolished and
the said Jagir land vested with the State free from all
encumbrances as per the provisions of section 3(1) (e) of the
Act. Section 4 of the Act makes provision for settlement of Jagir
lands which provides as follows:-
“4. Settlement of lands and solatium-
(1) All Jagir lands resumed under the provisions
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of this Act shall, subject to the provisions of Sub-
section (2), be settled with rights of occupancy
therein on a fair and equitable rent to be
determined in the prescribed manner, with the
Village Police Officer or with him and all those
other persons, if any, who may be holding the
land or any part thereof as his co-sharer or as
tenants in pursuance of any local custom, usage
or practice under him or under such co-sharer to
the extent that each such person was in separate
and actual cultivating possession of the same
immediately before the appointed date.
(2) The total area of such land in possession
of each such person shall be subject to a
reservation of a certain fraction thereof in favour
of the Grama Sasan within whose limits the land
is situate and the extent of such reservation shall
be determined in the following manner, namely:-
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Land possession Extent of reservation
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Less than 10 acres Nil 10 acres or above but less 5 per cent. than 33 acres. 33 acres or above but 10 per cent less than 100 acres. 100 acres or above 20 per cent. but less than 200 acres. 200 acres and above 30 per cent.
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(3) The rent determined under sub-section (1)
shall be payable with effect from the appointed
date and the rent for the period prior to such
determination shall be recoverable within three
years therefrom.
(4) All persons entitled to the settlement of
Jagir lands under sub-section (1) shall, in the
prescribed manner and within the prescribed
period, file claims before the prescribed authority
and on failure of filing such claim the person
concerned shall be debarred from claiming any
right under this section.
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(5) Any person with whom lands are settled
under sub-section (1) shall on payment of such
fees as may be prescribed, be entitled to a Patta
containing the prescribed particulars.
(6) Where the emoluments in relation to any
Village Police Officer consists only of
remuneration in cash, such officer shall, as soon
as may be after the appointed date, be entitled to
be paid as solatium a sum equivalent to the total
emolument for the period of twelve months
immediately preceding the said date and to the
settlement of one acre of cultivable land with
rights of occupancy therein, on a fair and
equitable rent to be determined in the prescribed
manner:
Provided that in cases where any Village Police
Officer has already been settled with one acre of
cultivable land with rights of occupancy therein
prior to the appointed date solely in consideration
of the impending abolition of his office, the
settlement so made shall for all purposes, be
deemed to be settlement of land made under this
sub-section.”
5. ‘The prescribed manner’ referred to in the above
section is dealt with in Chapter-III of the Rules framed under
the Act, i.e., Rules 9 to 18. The said Rules prescribe that the
Tahasildar is the competent authority to prepare a draft
Jamabandi in respect of service Jagir lands of each village
containing the particulars as mentioned in Rule 9 upon making
a local enquiry, as per Rule 10. Then a proclamation shall be
made as provided in Rule 11. Under Rule 12, the draft
Jamabhandi shall be published by the Tahasildar inviting
objections thereto. Objections, if any received are to be
disposed of by the Tahasildar under Rule 13. Final Jamabandi
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and sketch map shall thereafter be made with corrections, if
any, of the draft Jamabandi under Rule 14 and thereafter, the
Tahasildar is to issue to each of the persons with whom the
Jagir lands are settled a Patta in a form to be specified by the
Board of Revenue in that behalf under Rule 15. The Tahasildar
has been defined in Rule 2 (6) to mean the Chief Officer in-
charge of the Revenue administration of a Tahasil and includes
an Additional Tahasildar.
6. From the facts of the present case, it is revealed
that the Additional Tahasildar in Chowkidari Case No. 725 of
1965 passed orders on 4.3.1968 settling the disputed land in
favour of the petitioner and late Nilakantha Ganda ancestor of
the opp. parties. The Collector had no jurisdiction either under
the Act or the Rules framed thereunder to deal with and settle
Chowkidari Jagir lands. Therefore, the order passed by the
Collector in Revenue Misc. Case No. 61 of 1964 on 4.6.1965 on
which the petitioner relied upon is not in accordance with law
and is not a valid order passed under the Act.
7. In view of the above, the Commissioner, Land
Reforms and Settlement – opp. party no. 1 was correct in
relying upon the order passed by the Additional Tahasildar
while allowing the impugned Revision Case No. 303 of 1993
filed by the opp. party no. 2 and the original opp. party no. 3.
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This Court, therefore, does not find any
infirmity/illegalities/impropriety in the impugned order. The
original opp. party no. 3 having expired during pendency of the
writ petition, the disputed property is to be recorded jointly in
the name of the petitioner, opp. party no. 2 and the legal heirs
of opp. party no. 3, who have been substituted as opp. party
nos.3(i) to 3(iv).
8. The writ petition is, therefore, dismissed being
devoid of merit, but in the circumstances, without cost.
……………………….
M. M. Das, J.
Orissa High Court, Cuttack
July 23rd ,2010/Biswal
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