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. ------------- 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) ----------------------- Date of judgment- 23.07.2010 ------------------------ P R E S E N T: THE HONOURABLE SHRI JUSTICE M.M. DAS ----------------------------------------------------------------------------------------------- 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 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 2 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 3 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, 4 (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 5 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:- ---------------------------------------------------------- Land possession Extent of reservation ---------------------------------------------------------- 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. --------------------------------------------------------- (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. 6 (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 7 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. 8 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 9 10