B.P. Ray, J.
1. In this writ application under Articles 226 & 227 of the Constitution of India, the Petitioner seeks to assail the proceedings initiated by the Board of Revenue to recall its own order. The Board of Revenue by order 7.1.2005 passed in Misc. Case No. 12 of 2004 had directed the Tahasildar, Bhubaneswar to correct the R.O.R. as per the order passed in W.L. Case No. 75 of 1979 within 15 days from the date of receipt of the order. This order is sought to be recalled by the State of Orissa through its Special Secretary, G.A. Department by filing an application before the Member, Board of Revenue which has been registered as Misc. Case No. 7 of 2007. Learned Member by Order Dated 10.9.2007 has stayed the operation of the Order Dated 7.1.2005 passed in Misc. Case No. 12 of 2004. The Petitioner seeks to assail quashing of the entire proceedings initiated in Misc. Case No. 7 of 2007 in the fife of the Member, Board of Revenue.
2. Bereft of unnecessary details, the case of the Petitioner is that on 19.1.1979 the father of the Petitioner late Chakradhar Jena applied for a lease of Government land in village Patia under Khata No. 493, Plot Nos. 434, 436 & 295 for an area of Ac.1.94 dec. Accordingly, W.L. Case No. 75 of 1979 was registered and notice was issued inviting objection and the case was posted to 30.1.1979. But the case was not put up on 30.1.1979 and instead it was put up on 24.2.1979, when the following order was passed:
24.2.79:-The case is put up today. Istahar has been served duly. Objection period is over. No objection received. The report of R.I. has not been received. Ask Amin to report and put up on 24.3.79.
Thereafter, the matter was put up on 24.3.79 and the Tahasildar passed the following order:
24.3.79:-Report of Amin received. Perused the report along -with reservation proceeding. The reservation proceeding of village Patia has been finalized by the settlement organization duly settlement operation. The R.O.R of the village has been finalized in the year 1973. The Plot Nos. 434,436,295 have been recorded as 'Kanta Jungle' in the R.O.R But it is not found place in the reservation proceeding. All Govt. lands in village Patia have been taken into account while preparing reservation proceeding and reservation has been made for specific purposes. This plot being recorded as 'Kanta Jungle' has not been reserved for any specific purpose after spot enquire reports that there is no forest growth over the land and cultivation except a portion measuring an area Ac. 1.94 decs. (full plot) is found surplus land after reservation of land for different purposes. As per paragraph 4(1) of the instruction for reservation of Govt. land for specific purposes, the surplus land after reservation will be available for settlement with tenants for agriculture purposes. Non-recording of this plots in the reservation proceeding finalized by the settlement organization is no doubt a mistake.
Thus in the above circumstances there is no bar to lease out this plot to landless persons for the purpose of agriculture.
The Istahar though duly published, no objection has been received during the stipulated period. The applicant in this case is a landless. In the meaning of lease principle and he is entitled for settlement of agriculture land. The following land is therefore settled in favour of Sri Chakradhar Jena, S/o Late Raghu Jena, Patia for agriculture purpose as per sketch map attached. He is liable to pay rent @ of 'BAGAYAT DUI' Land ScheduleName Mouza Khata Plot AreaSri Chakradhar Jena Patia 493 434 Ac.0.79 decs.S/o Late Raghu Jena 436 Ac.0.32 decs.295 Ac. 0.83 decsTotal Ac. 1.94 decs.
3. After the appeal period was over, the Tahasildar directed to correct the R.O.R. and issued Patta in favour of father of the Petitioner. Since no Patta was issued in favour of late Chakradhar Jena, the Petitioner filed an application purported to be Under Section 4 of the Board of Revenue Act to correct the record of rights in pursuance of the order passed in W.L. Case No. 75 of 1979. In the said case the State of Orissa was represented by the Tahasildar, Bhubaneswar. The Board of Revenue by Order Dated 7.1,2005 passed the following orders:
7.1.2005:-This Misc. Case is put up for consideration, today. The Learned Standing Counsel is present. Perused the petition. This case has been filed by Sri Biswajit Jena, S/o- Late Chakradhar Jena of Village-Patia under Bhubaneswar Tahasil, covering Khata No. 493 Plot Nos. 434 (Ac.0.79), 436 (Ac.0.32) and 295 (Ac.0.83) comprising an area of (Ac.0'79 + Ac.0.32 + Ac.0.83) Ac.1.94 of Patia (Mouza) seeking implementation of the order passed by the Tahasildar, Bhubaneswar in W.L. Lease Case No. 75 /1979 wherein specific order was passed to correct the R.O.R. but is pending since 1979. It is seen that this case has hot been filed under any provisions of any Act, hence maintainability of this case is questioned. Heard the Learned Standing Counsel. The prayer of the Petitioner appears genuine. The Learned Standing Counsel opines that a direction to Tahasildar, Bhubaneswar should be issued for implementation of orders passed in W.L. Case No. 75/1979, if not yet executed. I agree with the contention of the Learned Standing Counsel.
Considering the gravity of the issue involved with a view to giving relief to the applicant, in exercising the powers conferred Vis 4 of the Board of Revenue Act, 1957, Tahasildar, Bhubaneswar is hereby directed to correct the R.O.R. as per orders passed.in the W.L. Case No. 75/1979 (if not yet implemented) within 15 days from the date of receipt of this order and report compliance to my office failing which action as deemed proper will be taken against him. A copy of this order be endorsed to Secretary, Board of Revenue for needful.
This misc. case is dropped.
4. As the said order was not implemented, the Petitioner filed a writ application in this Court which was registered as W.P.( C) No. 279 of 2007. A single Bench of this Court by Order Dated 26.2.2007 disposed of the Writ Petition at the stage of admission directing the Tahasildar, Bhubaneswar to comply with the direction issued by the Member, Board of Revenue vide Order Dated 7.1.2005 in Misc. Case No. 12 of 2004.
5. Being aggrieved by the. order passed in the aforesaid Writ Petition, the State of Orissa represented through General Administration Department filed a 'Writ Appeal registered as W.A. No. 126 of 2007 alleging therein that the Government land of village Patia was brought under the control of G.A. Department with effect from 5.9.1988 vide Housing & Urban Development Department Notification No. 8205 for all purposes. Therefore, without hearing the G.A. Department, implementing any order passed by this Court is not binding. By Judgment dated 23.7.2008, a Division Bench of this Court set aside the order passed by the Hon'ble single Judge and remitted the matter to Hon'ble single Judge to decide the case on merit after giving an opportunity of hearing to all concerned. As the matter stood thus, the State ot Orissa represented through its Special Secretary in General Administration Department filed a petition before the Member, Board of Revenue to recall the Order Dated 7.1.2005 passed in Misc. Case No. 12 of 2004. The Learned Member, Board of Revenue after receiving the application and hearing the parties by Order Dated 10.9.2007 stayed operation of Order Dated 7.1.2005. The Petitioner has filed the present writ application to quash the entire proceeding initiated vide Misc. Case No. 7 of 2007.
6. An exhaustive counter affidavit has been filed on behalf of Opp. Party Nos. 3 & 5 which was sworn to by the Tahasildar, Bhubaneswar. It was stated in the said counter affidavit that the Tahasildar has examined the case records in W.L Case No. 75 of 1979 on receipt of the order passed in W.R(C) No. 279 of 2007 & found that the lease case record was completely forged & fabricated one & so also the report of the Revenue Inspector under Annexure-4. It was also stated that the lease application of the Petitioner did not bear any date & no Court fee was paid in as much as the signature of the Tahasildar appended to the lease application was not genuine. The application form did not contain the full residential address in as . much as there was no mention of permanent home address. The information required under column 7 of the application form regarding annual income from different sources was not specifically stated. It was stated that the.signature of the Tahasildar in W.L. Case was forged & fabricated & so also Istahar. Neither any general notice was issued to the concerned Grama Panchayat nor any notice was published by bit of drum & the service of notice was not affirmed by the Nazir of the Tahasil. Similar was the position with regard to the signature found place in the Amin report. The Amin report was stated to be forged & fabricated one. Having stated thus, it was averred that the order passed by the Tahasildar was unsustainable since the same has been passed upon the forged & fabricated case records. It was also stated that no proper enquiry was conducted as to whether the Petitioner was a landless person or not. Therefore, the Petitioner was not eligible for grant of the alleged land by way of lease. It was also stated that the W.L. Case Register indicates that W.L.Case No. 75, of 1979 was entered in a forged & fabricated manner. The W.L. Case Nos. 71 to 77 of 1979 were entered in the W.L. Case Register on 19.1.1979, which shows that in fact no W.L. Case bearing No. 75 was filed in the year 1979. Therefore, W.L. Case Register was false & it was fabricated for the purpose of the case.. It was also stated in the counter affidavit that though Plot Nos. 434,436 & 295 were recorded as 'Kanta Jungle', in the R.O.R. the said fact did not find place in the reservation proceeding. It was also further stated in the counter affidavit that in the Order Dated 24,3.1979, neither any rent nor any cess has been assessed & the same has been left blank. The case records do not reveal about the delivery of possession of the land after the grant of the lease in question. Since the Order Dated 24.3.1979 was not in existence, the case record was not sent to the record room of the Tahasil, The manner of obtaining the certified copy by the Petitioner in the year 2002 after 25 years of grant of lease in the year 1979 throws serious doubt about the veracity of the order. Accordingly, it was stated that the lease case records were manufactured in the year 2004 & the lease case records were totally false & fabricated. Since the case records were not sent to the record keeper of the Tahasil, no correction could be effected in the R.O.R. & in absence of any intimation slip issued to the Revenue Inspector, no correction could be effected in the Jamabandi Register or the continuance Khatian at the Revenue Inspector level & no new holding could be created in the name of the alleged lessee at the level of R.I. Similarly, in absence of a new holding, no Tenants' Ledger in the name of the alleged lessee could be opened. Therefore, in absence of a separate holding, opening of tenant's ledger in the name of the Petitioner & realization of rent by the Revenue Inspector was unlawful. It was also stated that the land in question is recorded as 'Jungle'. As per the provisions of the Orissa Communal Forest & Private Lands (Prohibition of Alienation) Act, 1948, forest land can not be leased out to private individual without proper procedure. Therefore, it was stated in the counter affidavit that the alleged order passed in W.L. Case No. 75 of 1979 was also not executable.
7. After hearing Mr. S.K.Padhi, Learned Senior Counsel for the Petitioner & Learned Addl. Govt. Advocate & after going through the averments made in the Writ Petition & counter affidavit filed on behalf of Opp. Party Nos. 3 & 5 & on consideration of the pleadings of the parties, the following questions arise for consideration:
(i) Whether the grant of lease in favour of the Petitioner was valid, legal and justified in view of the provisions contained in Sections 3 & 4 of the Orissa Communal Forest & Private Lands (Prohibition of Alienation) Act 1 of 1948?
(ii) Whether the Member, Board of Revenue was justified in directing correction of record of rights in the name of the Petitioner in pursuance of the grant of lease in favour of the Petitioner?
8. In order to answer the aforesaid questions, more particularly question No. (i), it is necessary to refer to the relevant provision of the Orissa Communal Forest & Private Lands (Prohibition of Alienation) Act 1 of 1948, (hereinafter, referred to as 'the Act 1 of 1948'). Sections 3 & 4 of the Act which have a bearing on the issue are quoted hereunder:
3. Prohibition of the alienation of communal forest and private lands-
(1) Notwithstanding anything contained In any other law for the time being in force or any express or implied agreement, but subject to the provisions of Sub-Section (2), no landlord shall, without the previous sanction of the Collector, sell, mortgage, lease or otherwise assign or alienate or convert into raiyati land any communal, forest or private land or crate occupancy rights therein:
Provided that nothing in this Sub-Section shall be deemed to prohibit a landlord from leasing out his private land for a period not exceeding two years without previous sanction of the Collector.(2) When a piece of land comes within the definition of 'forest' as given in the Orissa Preservation of Private Forests Act, VIM of 1947, and also within the definition of 'communal land' or 'forest land' as given in this Act the previous sanction given by the appropriate authority under Clause (a) of Sub-Section (1) of Section 3 of that Act shall be deemed to be the previous sanction as required by Sub-Section (1).
(3) Any landlord who contravenes the provisions of Sub-Section (1) and any agent of the landlord who abets such contravention shall be punishable with fine which may extend to one thousand rupees:
Provided that no landlord shall be liable to the penalty provided in this Sub-Section of any contravention that took place prior to the date of the passing of this Act.4. Transaction of the nature specified in Section 3 to be void-(l) Any of transactions of the nature prohibited by Section 3 which took place on or after the 1st day of April, 1946, shall be void and inoperative and shall not confer to take away or be deemed to have conferred to take away any right whatever on or from any party to the transaction:
Provided that nothing contained in this Sub-Section shall be deemed to invalidate-
(i) any such transaction in respect of private land or forest land entered into prior to the 30th day of November, 1947, in favour of any religious, charitable or educational institution or of any hospital or of any local authority or co-operative society registered either under the Madras Co-operative Societies Act, VI of 1932 or the Bihar and Orissa Co-operative Societies Act, VI of 1935, as the case may be, of any other public body or institution;
(ii) any such transaction in respect of private land or forest land entered into prior to the 30th day of November, 1947, in favour of any person in good faith and for valuable consideration;
(2) If any dispute arises as to the validity of the claim of any person to any land under Clauses (i) and (ii) of the proviso to Sub-Section (1), it shall be open to such person to apply to the District Judge of the district in which the land is situated for a decision as to the validity of such claim.
(3) The District Judge to whom an application is made under Sub-Section (2) shall, after giving notice to all the persons concerned in the transaction or interested in the land and also where the application is not made by the (State Government) to the State Government, decide whether the claim to the land is valid or not, and his decision shall be final and not subject to appeal or revision in any superior Court.
(4) The (State Government) may, by notification, make rules for the purpose of carrying into effect the provisions of this Section and in particular as to the fees to be paid in respect to the applications referred to in Sub-Section (3) and the procedure to be followed by the District Judge.
The Act 1 of 1948 was enacted to prohibit alienation of all communal, forest and private lands. The statement of objects and reasons of the Act are more relevant. In the statement of objects and reasons, in support of the enactment, it was stated that the Government have reasons to believe that the land lords are resorting on large scale alienation and assignment of communal, forest and private land on receipt of high premium in the wake of abolition of Jamindaris. Alienation of communal and forest land was very much detrimental to the public interest while alienation of private land in favour of the persons paying high premium was affecting the existing temporary leases and creating strained feeling. To achieve this purpose, the Act 1 of 1948 was enacted.
9. Now, let Us see the scheme of Sections 3 & 4 of the Act. Section 3 of the Act, states inter alia that before grant of lease of any communal forest, the p'revious sanction of the Collector was mandatory. In other words, Section 3 of the Act prohibits alienation of communal and forest land without previous sanction of the Collector with which we are presently concerned. Section 4 of the Act states that after the 1 st day of April, 1946 any of the transactions of the nature prohibited by Section 3 shall be void and in-operative and shall not confer or take away or be deemed to have conferred or taken away any. right whatever on or from any party to the transaction.
Since there has been prohibition for alienation of communal and forest land in Section 3 of the Act, it is necessary to refer to the meaning of 'communal land' and 'forest land' as defined in the Act.
Section 2(a)(ii) defines 'communal land' as follows:
in relation to cases governed by the Orissa Tenancy Act, 11 of 1913, lands recorded as gochar rakshit, or sarbasadharan in the record-of-rights or waste lands which are either expressly or impliedly set apart fro the common use of the villagers, whether recorded, as such, in the record-or-rights or not:
Clause (ii) (c) of Section 2 defines 'Forest land' in the following manner:
(c) 'forest land' includes any waste land containing shrubs & trees & any other class of land declared to be forest land by a notification of the Provincial Government;
10. Keeping in view the aforesaid definition of communal land as well as forest land as defined in the Act, it would appear that the land which was leased out in favour of the Petitioner being Kanta Jungle is coming within the meaning of forest land as well as the communal land as defined in Section 2 of the Act. Necessarily, alienation of such nature of land has been prohibited under Section 3 of the Act and violation thereof renders the same void as would appear from Section 4 of the Act. Admittedly, the nature of land is 'Kanta Jungle', the alienation of whibh has been prohibited under the Act. There is no material on record to show that previous sanction of the Collectpr was obtained before the grant of lease. Since previous sanction of the Collector was not obtained as visualized under Section 3 of the Act, the transaction is held to be void in view of the provision of Section 4 of the Act. Admittedly, the disputed lands are uncultivable as it is recorded as 'Kanta Jungle' i.e. thorny bushy forest and were lying fallow and were not in physical possession of any person. Therefore, the grant of lease land in favour of the Petitioner for agricultural purpose is illegal. The Apex Court in a recent Judgment delivered on 20th April, 2009 in Civil Appeal Nos. 2656 of 2009 and 2657 of 2009 in the case of State of Orissa and Ors. Vrs. Harapriya Bisoi held that:
There is also no force in the contention that unless there was a notification under Section 2(b) of the Act declaring a particular land to be forest land, the applicability of the Act would be excluded. The definition of 'forest land' in that Section is an inclusive one and shows thaf 'forest land' would include not only waste land containing trees, shrubs and pasture lands but also any other class of lands declared by. Government to be forest land. This does not mean that before a piece of land could be said to be forest land there would have to be a notification by the Government under the Act.
11. In view of these provisions in the Act 1 of 1948, the irresistible conclusion is that no communal or forest land shall be leased out without previous sanction of the Collector. Any transaction contrary to or in violation of the provisions of Section 3 would be treated as void and inoperative and would not confer any right on any party to the transaction. Undisputedly, the nature of the case land was recorded as 'Kanta Jungle' as would appear from the order granting lease in favour of the Petitioner. From the averments made in the counter affidavit it would further appear that no previous sanction of the Collector was obtained before grant of lease. On the contrary, serious irregularities have been committed while granting the lease about which it was stated in the counter affidavit. It is also revealed from the counter affidavit that before grant of lease no enquiry was ever conducted. In such view of the matter, we have no hesitation than to come to a conclusion that the order granting lease in favour of the Petitioner is absolutely unsustainable. We have also noticed that no lease deed was executed by the State of Orissa nor any patta was issued in favour of the Petitioner in pursuance of grant of lease.
12. We are of the considered view that no legal or valid .right has accrued in favour of the Petitioner in pursuance of the impugned grant of lease under Annexure-2. The question No. (i) is answered accordingly. In view of the aforesaid conclusion with regard to the question No. (i) that the order granting lease in favour of the Petitioner was neither legal nor justified, it is. not necessary to examine the other question, i.e. No. (ii), since that question has become academic.
We accordingly, direct the State Government to comply with the directions to resume the land in question forthwith and report compliance to this Court within a month hence.
13. In view of the above, the writ application fails and the same is accordingly dismissed.
I.M. Quddusi, A.C.J.
I agree.