R.N. Misra, J.
1. The petitioner is a public limited company. It acquired217.76 acres of Anabadi lands in September, 1952, on lease basis from Sir S. M. Bose, the ex-intermediary. These lands are located in mauzas Kapaleswarpur and Chhatisa on the other side of the river Mahanadi. In 1958, the company again acquired a little more than twelve acres of Anabadi lands from the same ex-intermediary. Proceedings were taken for settlement of rent under the Orissa Survery and Settlement Act. 1958 (Orissa Act 3 of 1959) (hereinafter referred to as the 'Act') and in all five cases were registered for the purpose. The Assistant Settlement Officer in charge of Rent Settlement (opposite party No. 3) assessed the rent per acre at the rate of Rs. 250 for the lands within the Chhatisa mauza and at the rate of Rs. 200 per acre within Kapaleswarpur.
The petitioner challenged the aforesaid fixation of rent as arbitrary before the appellate authority. The Settlement Officer (appellate authority-opposite party No. 2) noticed the contentions of the petitioner in the impugned order (Annexure 3) and stated:--
'..... Now coming to the first contention of the appellant that the factory is only on Ac. 63.81 dec. of land and the rest of the area is used either as road or lying fallow it may be pointed out here that the road in question is used by the factory. The fallow land is kept for further industrialisation. Therefore, the contention that for the area, not utilised for the actual factory site, the rent should be low, is not acceptable. The rent should be uniform for the entire holding.
Regarding the second contention of the appellant that Government have given Rs. 2,000 per acre as compensation for acquiring the land from the Titagurh Paper Mill, it may be said here that the land was originally given on lease to M/s. Titagurh Paper Mill by the Government for establishing the paper industry. For industrial purposes Government grant lease of land with a nominal salami. As such when the land is taken back by the Government compensation is determined only by taking into account the subsequent development, if any. made in the land and the Salami included. In no case the compensation paid by the Government in the land previously leased out to a firm should be the representative market value of the area.
Similarly, the third contention of the appellant that lands are being sold in the area at the rate of Rs. 4.000 per acre, it is seen that the A.S.O. during rent stage has verified a number of R.S.Ds. (we are told the abbreviation means 'Recent Sale Deeds') in the area. He has discarded the sale deed where the price is too high or too low and the consents of the parties are not supposed to be given freely. Aftertaking into account such of the deeds, the A.S.O. has determined the market value at the rate of Rs, 20,000 per acre. The contention of the appellant that lands are being sold at the rate of Rs. 4,000 per acre is not substantiated. As such, the market value fixed by the Assistant Settlement Officer during the rent stage of Rs. 20,000 Appears to be fair.
Another contention of the appellant is that Government have no power to fix up the rent policy. In this connection a reference may be made to Section 19 of the Orissa Survey and Settlement Act, 1958. The section lays down clearly that the Government have power to prescribe the principle for fixing the fair and eciuitable rent. As such the contention that under the statute Government is not empowered to fix up the rent policy is not tenable.
Since the A.S.O. has determined the market value on the basis of the sale deed where the price is not too high or too low and the consent is supposed to be given freely by the parties, I accept the market value of Rs. 20,000 per acre in the area as fair. Since one per cent of the market value is the annual rent, the rent fixed up by the A.S.O. at the rate of Rs. 200 per acre, per annum is fair and equitable. No change in this respect is necessary now.'
2. In the counter-affidavit given by opposite parties 2 and 3 in this proceeding, it has been stated:--
'..... The opposite party No. 3 followed the instructions of Government issued from time to time for fixation of fair and equitable rent The market value being the primary factor for the assessment of rent, it was fixed at Rs. 25,000 and Rs. 20,000 for different lands. It is not correct that the land was Anabadi in character. The land was intended for industrial purposes and rent was assessed keeping that in view. It is not correct that Anabadi lands for housing purposes in these mauzas were being sold for Rs. 2,000 to Rs. 4,000. The petitioner has not substantiated these facts by any concrete data.....'
3. A preliminary objection is raised on behalf of the opposite parties that the petitioner should not be allowed relief, if any, in this proceeding as alternate remedies are available. A revision lies under Section 25 of the Act. A suit also lies under Section 42 of the Act. We are not impressed with the preliminary objection. The opposite parties 2 and 3 appear to have acted contrary to law and there is force in the contention of Mr. Mohanty for the petitioner that relief by way of revision before the Board of Revenue would be illusory as the objectionable material upon which reliance hasbeen placed by the opposite parties 2 and 3 had emanated from the Board. The cause of action for the suit arises upon the final publication of the Record of Rights.
4. As we find, Section 20 requires the Assistant Settlement Officer to fix fair and equitable rent in the prescribed manner. Under Section 19 of the Act, principles for fixing rent have been indicated. Sub-sections (1) and (2) thereof provide:--
'(1) Notwithstanding anything contained in any law or custom for the time being in force, the Government may prescribe the principles for fixing fair and equitable rent having regard to--
(a) the average price of crops during the preceding ten years other than the years which the Government may notify to be or to have been either famine years or abnormal years in respect of any local area;
(b) crop or crops normally grown on such land;
(c) situation of land and the nature of the soil;
(d) the maximum rent assessed on land of similar quality and productivity elsewhere in the State.
(2) Notwithstanding any law, custom or contract in force, the rent so fixed shall be deemed to be the rent payable for the land.'
Sec. 43 authorises Rules to be made for the purposes of carrying out the provisions of the Act. Chapter V of the Rules made under the Act makes detailed provisions for the settlement of rent. Rules 48, 49, 50 and 51 are some of the relevant Rules indicating what features are to be taken into account in the matter of determination of fair rent. These Rules under Chapter V are relatable to the provisions of Section 19 (1) of the Act.
The petitioner's counsel contends that the considerations which have weighed with the Assistant Settlement Officer in settling the rent and upholding the same in appeal are contrary to the scheme of the statute and the Rules made thereunder. 'Prescribed' as indicated in Section 20 of the Act has been defined in Section 2 (6) of the Act to mean 'prescribed by rules made under the Act'. As Chapter V prescribes the Rules to give effect to the provisions of Sections 19 and 20 of the Act, executive instructions upon which reliance has been placed by the appellate authority and in the counter-affidavit in the proceeding are irrelevant. The Assistant Settlement Officer was bound to follow the provisions of the statutes and the Rules made thereunder and should not have been guided by executive instructions beyond the purview of! the Act and the Rules. We are satisfied!that the assessment of rent under the Act has not been made keeping the terms of the Act and the requirements of the Rules in view. The concerned public authorities have allowed their statutory functions to be guided by executive instructions and have failed to discharge their duty as required under the Law.
5. We accordingly quash the assessment as upheld in appeal and require the authorities under the Act to fix the rent in accordance with the statute and the Rules made thereunder. The writ application succeeds. No costs.
B.K. Ray, J.
6. I agree.