K. C. Singh Deo vs Niladri Sahu - 1996 Supreme(SC) 993

Judicial Analysis Court Copy Headnote Facts Arguments Court observation

1996 Supreme(SC) 993

1999(5) Supreme 392
Supreme Court of India
(From Orissa High Court)
S. Rajendra Babu and S.N. Phukan, JJ.
K.C. Singh Deo -Appellant
versus
Niladri Sahu (Dead) by LRs. & Ors. -Respondents
Civil Appeal No. 10361 of 1996
Deciced on 12-5-1999
Counsel for the Parties :
For the Appellant : Janaranjan Das, Advocate.
For the Respondents : P.N. Mishra, Sr. Advocate, (S. Mishra) Advocate for Ms. Rekha Palli, Ms. R.S. Jena, Advocates.

Headnote:Orissa Land Reforms Act, 1960 -Section 4(1)(h)-Respondent Nos. 1, 2 and 3 filed application for declaration as Raiyats under Section 4(1)(n) of the Act-For Survey Plot Nos. 719, 915, 804, 805, 297, 266 and 957-In village Padampur-Appellant filed objection-Applications rejected-Appeal -Appellant should have put forth, his claim of heriditory trustee before Orissa Estate Abolition Collector appointed under Orissa Estates Abolition Act, 1951-Plea of appellant not accepted - Respondent Nos. 1, 2 and 3 failed to prove their possession-Could not be declared Raiyats-Revisional authority accepted finding - Reference -Board of Revenue accepted findings of Revenue authorities regarding personal cultivation of land by Respondent Nos. 1 to 3-Reference rejected - Order challenged before High Court-High Court confirmed declaration of Revenue Officer that respondents Raiyats in respect of land covered by Survey No. 719-Declaration of Raiyats in respect of Survey Nos. 957, 804 and 805 rejected-Board of Revenue directed to consider matter afresh in respect of Survey Nos. 915, 266 and 297-Supreme Court agreed with High Court that to acquire status of Raiyat under Section 4(1)(h) land has to be vested estate-Did not agree with High Court that possession of land not condition for acquiring Raiyati right-Person can make application for declaration under Section 4(1)(h)-Period to be counted from date of commencement of Act-Unless person in possession of vested land cannot make application-Date of possession to be decided by revenue authority in terms of sub-section (2) of Section 4 of the Act-Impugned judgment modified to the extent that revenue authority to consider question of possession alongwith claim of appellant.
       Held : Unless a person is in actual physical possession of land the question of personal cultivation could not arise and, therefore, he cannot claim Raiyati right. We are, therefore, of the opinion that possession is a must for the purpose of considering whether a person has acquired the status of Raiyat under Clause (h) of sub-section (1) of Section 4 of the Act. (Para 12)
       Under sub-section (2) a person can make an application for declaration of Raiyati right under Clause (h) of sub-section (1) of Section 4. The period within which such application is to be made is fixed by sub-section (2) and, it is clear from the said sub-section that the period is to be counted, under main sub-section, from the date of commencement of the Act. Under the first proviso it would be from the date of commencement of Orissa Land Reforms (Amendment) Act, 1966, under the second proviso from the date of commencement of Orissa Land Reforms Act, 1973 and under the 4th proviso from the date of commencement of Orissa Land Reforms (Second Amendment) Act, 1975 or on the date of vesting of the estate in the Government, whichever is later. (Para 13)
       Unless a person is in possession of the vested land he cannot make an application as would appear from sub-section (2) of Section 4. Therefore, date of possession would depend on nature of the claim put up by a person for his Raiyati right and this date is to be decided by the revenue authority in terms of the above sub-section (2). (Para 14)

JUDGMENT

S.N. Phukan, J.-This appeal is directed against the judgment of the Orissa High Court in O.J.C. No. 602 of 1978. By the impugned judgment and order, the High Court after interpreting Section 4(1)(h) of Orissa Land Reforms Act, 1960 (for short the Act) did not agree with the findings of the Board of Revenue that under the above section possession of land by the person on date of vesting is necessary for the purpose of declaration as a Raiyat. Shortly stated facts are as follow :

2. Respondent Nos. 1, 2 and 3 filed an application for declaration as Raiyats under Section 4(1)(h) of the Act for Survey Plot Nos. 719, 915, 804, 805, 297 266 and 957 in village Padampur where respondents reside. This village was part of the estate of Badagada and the estate was abolished by Orissa Estates Abolition Act, 1951 (for short the Act of 1951) and the land vested in the Government free from all incumbrances w.e.f. 01.06.1953. In the above application for being declared as Raiyats, the appellant before us filed objection on the ground that the land in question belonged to the Deity of Sri Jagannath Mahaprabhu of which the appellant was a trustee. The Revenue Officer held that the respondents herein failed to prove possession of the land and the appellant also did not take any step for declaration that it was a trust estate and, therefore, rejected both the applications. In appeal filed by the appellant it was held that the appellant should have put forth his claim of heriditory trustee before the Orissa Estate Abolition Collector appointed under Act of 1951. Therefore, the plea of the appellant was not accepted. Regarding Respondent Nos. 1, 2 and 3 it was held that they failed to prove their possession and, therefore, could not be declared as Raiyats. This finding was also accepted by the Revisional Authority. A reference was made to the Board of Revenue by the Revisional Authority and the Board also agreed with the findings of the Revenue Authorities regarding personal cultivation of the land by Respondent Nos. 1 to 3 and, therefore, reference was rejected.

3. The Tribunal constituted under Act of 1951 declared the Deity Sri Jagannath Mahaprabhu as religious trust of public nature on an application filed by the appellant.

4. The order of Board of Revenue was challenged before the High Court by the Respondent Nos. 1 to 3 and the High Court by the impugned order held, inter alia, as follows :

(1) under Section 4(1)(h) of the Act for giving status of Raiyat requirement that the person would be holding the land on the date of vesting of the land on the government was not envisaged under the above sub-section and, therefore, finding of the Board of Revenue was contrary to law.

(2) according to the High Court the requirements for a declaration that the person is a Raiyat are (i) the land is in a vested estate (ii) such land is held by the person under the Government and (iii) (a) the person holding land is a temporary lessee in personal cultivation of the land for agricultural purposes, or (b) holds in mediately or immediately under such temporary lessee or (c) is a successor in interest of any such persons.

5. Regarding factual aspects, the High Court confirmed the declaration of the Revenue Officer that the respondents are Raiyats in respect of land covered by Survey No. 719; the claim of the respondents for declaration of Raiyats in respect of Survey No. 957, 804 and 805 was rejected and the Board of Revenue was directed to consider the matter afresh in light of the judgment in respect of Survey No. 915, 266 and 297.

6. We have heard Mr. Janaranjan Das, learned counsel for the appellant and Mr. P.N. Mishra, learned counsel for the respondent.

7. We extract below the relevant provisions of the Act namely Clause (h) of Sub-section (1) and sub-sections (2), (3) and (4) of Section 4 :

“4. Raiyats-(1) The following persons shall be deemed to be raiyats for the purpose of this Act in respect of the lands held by th

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