Judgment:
A.S. Naidu, J.
1. The parties to these two Writ applications and the subject-matters being the same, on the request of the learned Counsel both the cases are taken up together.
2. The property in dispute is situated in Mouza-Mirzapur under Cuttack district measuring Ac.0.74 'decimals appertaining to plot Nos. 902 and 796 under Khata No. 344. The same stood recorded in the 1930 Settlement in the name of Lord Jagannath Mahaprabhu, Bije-Puri under Bajyapti Madhya Satwadhikari' status. Babaji Charan Mohanty and others were recorded as the Marfatdars. Opposite parties 3 to 6 in OJC No. 2288 of 1995 claimed that the said land was being cultivated by their father during his lifetime and after him they were cultivating the same as Bhag Tenants. They also asserted that they were paying Bhag dues to the intermediary prior to vesting under proper receipts. Admittedly the estate vested in the State in consonance with a blanket Notification dated 25th April, 1963 issued under Section 3-A of the Orissa Estates Abolition Act. Admittedly after vesting no application in consonance with Sections 6 and 7 of the OEA Act was filed by the ex intermediary within the prescribed time. Assuming that the property was part of a Trust Estate, no steps were also taken by the trustees or the Collector under Chapter-II-A (since repealed by Orissa Act 33 of 1970) for declaration that it was a trust estate. Consequently the property vested in the State. However despite the aforesaid events, by a registered partition deed dated 5.8.1967 inter se between the family members of Babaji, the property was allotted to the share of aforesaid Babaji Charan Mohanty and he continued to collect Raj Bhag from opposite parties 3 to 6.
3. While matter stood thus, Babaji Charan Mohanty gifted away the land appertaining to plot No. 902 to one Nirupama Dei alias Patnaik vide registered gift deed dated 20.8.1968. Thereafter in the year 1975 Babaji and Nirupama Dei sold the property in dispute by a registered sale deed dated 21.2.1975 to one Nirupama Jena. Said Nirupama Jena filed an application on 30.9.1975 under Section 7 read with Section 8A of the OEA Act praying for settlement of the land in her favour. The said application was registered as OEA Case No. 168 of 1975. Subsequently she modified her claim and prayed that the land in question might be settled in favour of Lord Jagannath Mahaprabhu, Bije-Puri. During pendency of the said proceedings, Nirupama Jena by a registered sale deed dated 26.3.1980 sold the land appertaining to plot No. 902 to Bhagaban Kar and Jogendra Kar (petitioner Nos. 1 and 4 respectively in both the Writ applications); and the lands appertaining to plot No. 796 to Dhruba Charan Kar and Ghanashyam Kar (petitioner Nos. 2 and 3 respectively in both the Writ applications). After their purchase, all the aforesaid four persons filed another petition under Section 7 read with Section 8A of the OEA Act which was registered as OEA Case No. 78 of 1980, but the OEA Collector directed to settle the lands in favour of Lord Jagannath Mahaprabhu, Marfat Nirupama Jena. The said order of the OEA Collector was assailed in Appeal and Revision, but then remained unaltered.
4. Assailing the said confirming order, opposite parties 3 to 6 in these Writ applications filed OJC No. 1772 of 1982 before this Court inter alia claiming that the lands question ought to have been settled with them as they had purchased the same by registered sale deeds. Thereafter an application was filed by the transferees from Nirupama Jena seeking their impletion as parties to the said OJC which petition was directed to be considered at the time of hearing of the OJC and they were granted liberty to file their counter-affidavit. After hearing learned Counsel for all the parties, this Court disposed of the said OJC by judgment dated 27th March, 1990 with an observation that the application filed for settlement of the lands by the intermediary was beyond the prescribed period and, as such, the order of settlement was an act without jurisdiction and thus invalid. This Court annulled the order settling the lands in favour of Lord Jagannath Mahaprabhu, represented by opposite party No. 1 in that OJC. In consonance with the judgment in OJC No. 1772 of 1982, the Tahasildar corrected the record-of-rights by deleting the names of the present petitioners and recording the lands with the State. The said order is assailed in present OJC No. 9046 of 1993.
5. Opposite parties 3 to 6 had also filed an application before the Tahasildar to recognise them as tenants under Section 8(1) of the OEA Act which was registered as OEA Case No. 1691 of 1981. The Tahasildar by order dated 2.6.1994 declared the said opposite parties as tenants under the State. The said order dated 2.6.1994 (Annexure-4) is assailed in OJC No. 2288 of 1995.
6. According to the petitioners, the period prescribed for filing application under Sections 7 and 8A by the ex intermediaries who were in Khas possession of the lands was extended time to time by the State by way of different Notifications. In spite of that it was noticed by the State that a number of intermediaries had failed to file their application for settlement of lands and were occupying the lands by not paying any land revenue, and thus the State was suffering huge financial loss. To curb such illegality/irregularity, a set of principles were formulated by the State commonly known as 'Lease Principles'. Under the said Principles, further time was granted to ex intermediaries to file applications for settlement and it was stipulated that such applications would be disposed of if the applicants satisfied the requirements of the OEA Act, and subject to payment of 'Salami'.
7. According to Mr. Mohanty, learned Counsel for the petitioners, in spite of extension of the period time to time, many lands remained unsettled as concerned intermediaries failed to avail that opportunity. Consequently the Tahasildars were empowered to initiate suo motu proceedings and settle the lands in consonance with law. He submitted that this aspect was not considered by this Court while disposing of OJC No. 1772 of 1982. He further submitted that as the petitioners had filed their application after expiry of the statutory period, the same ought to have been considered by the OEA Collector and the lands ought to have been settled in their favour bereft of earlier decision.
8. This Court carefully went through the judgment passed in OJC No. 1772 of 1982. The subject-matter of dispute as well as the parties to that OJC were the same as in the present two OJC. It appears that after discussing the entire facts and circumstances of, a Division Bench of this Court came to the conclusion that the application for settlement of land filed by the petitioners having been made beyond the prescribed period ought not to have been entertained by the Sub-Collector. The judgment passed in the said OJC No. 1772 of 1982 has not been assailed or varied, and thus still remains binding on all. Therefore the plea taken by the petitioners that the belated application filed by them ought to have been considered by the revenue authorities having already been answered by this Court needs no further consideration and is negatived.
9. So far as claim of tenancy of the petitioners in OJC No. 2288 of 1995 is concerned, perusal of the impugned order Annexure-4 reveals that the Tahsildar considered all the facts and circumstances and basing upon documentary evidence, such as, ROR of 1930, original 'Hatta Patta' dated 7.4.1940, Written Statement of Babaji Charan Mohanty in OLR Case accepting tenancy, copies of Rent Receipts (eleven in number) in respect of payment of Bhag dues of the petitioners and also by their father to the ex landlord from 1943 to 1975, Report of the R.I., Sankeswar dated 16.5.1993, Deposition of Radha Ch. Mohanty ex intermediary in criminal cases and other relevant materials, arrived at the conclusion that the petitioners were inducted as tenants in respect of the disputed land prior to vesting and they were continuing as such after the vesting. Thus they were to be deemed as tenants under the State under Section 8(1) of the Act. After arriving at such conclusion the Tahsildar ordered the lands to be settled in favour of the petitioners under Sthitiban status subject to payment of back rent, vide Annexure-4. The said order is assailed by the petitioners mainly on the ground that there is no provision in law to initiate proceeding under Section 8(1) of the OEA Act. Even otherwise, according to Mr. Mohanty, the order of the Tahsildar vide Annexure-4 to settle the lands with the tenants under Sthitiban status was totally misconceived and the same is liable to be quashed.
The aforesaid submission of Mr. Mohanty is strongly repudiated by Mr. Budhadev Routray. According to him the Tahsildar did consider all the relevant materials and in fact did arrive at the conclusion that the opposite parties 3 to 6 were inducted as tenants by the ex intermediary and were continuing as such on the date of vesting. Thus they were deemed to be tenants under the State. Mr. Routray, of course, admitted that the order of the Tahsildar to settle the lands in favour of the tenants under Sthitiban status was under misconception, but then, he submitted, as the conclusion arrived at by the Tahsildar was just and proper, the order Annexure-4 may not be interfered with.
10. After hearing learned Counsel for the parties at length and perusing the entire materials produced, this Court finds force in the submission of Mr. Mohanty that within four corners of the OEA Act there is no provision for initiation of proceeding for settlement so far as tenants are concerned. There is in fact no dispute with regard to the legal proposition that if a person was inducted as tenant by an ex intermediary before vesting and was in possession of the lands on the date of vesting and thereafter, he should be deemed to be a tenant under the State in consonance with Section 8(1) of the Act, but then the Tahsildar is not bound to accept such a claim without verifying whether the claim is genuine or not. For arriving at such satisfaction the Tahsildar has to conduct an enquiry which should be administrative in nature and not quasi-judicial. Law is well settled that if two rival persons claim to be tenants, the Tahsildar having no jurisdiction to decide the inter se dispute has to call upon the parties to get their rights decided by a civil Court.
11. To sum up, it will be worthwhile to say that if only one person or a group of persons approach the Tahsildar claiming their right on the ground that they were inducted as tenants by the ex intermediary prior to vesting and were in possession of the land in question on the date of vesting and were continuing as such, the Tahsildar was to conduct an administrative enquiry and peruse the documents in support of their respective stands, examine the neighbouring land owners and such other person whom he may consider necessary in the facts and circumstances of the case, and arrive at the conclusion whether the person or the group of persons was/were in fact inducted as tenant(s) under the State or not. It is needless to say that a tenant cannot claim settlement of a land in his favour under the OEA Act. He is only to be recognized as a tenant under the State.
This view of mine gets fortified by a Full Bench decision of this Court in the case of Smt. Basanti Kumari Sahu v. State of Orissa reported in 73 (1992) CLT 868 : 1992(I)OLR 41.
In the case at hand, as would be evident from the order Annexure-4 and the discussion made above, the Tahsildar had considered all the relevant documents in course of the enquiry conducted by him and had come to the conclusion that opposite parties 3 to 6 were inducted as tenants and were in possession of the lands in question on the date of vesting and were still continuing as such. However, the Tahsildar committed an error in directing to settle the lands in their favour under Sthitiban status. This portion of the order of the Tahsildar being contrary to law, cannot be sustained.
12. Thus while upholding the decision of the Tahsildar that opposite parties 3 to 6 had been inducted as tenants by the ex intermediary and were in possession of the lands on the date of vesting and thereafter till date, quashes the order recognizing them as tenants under the State in consonance with Section 8(1) of the OEA Act.
With these observations/directions this Court disposes of both the Writ Petitions.
B.P. Ray, J.
13. I agree.