The distinction between claims under S.6 and S.7 must be maintained. The enquiry must be confined to possession and not khas possession.

Judgement

R. N. MISRA, C.J.:- The petitioner in this application under Article 226 of the Constitution challenges the appellate decision of the Additional District Magistrate, opposite party No. 3, dated 27-8-1977 upholding the rejection of a claim, for settlement under S.6 of the Orissa Estates Abolition Act (hereinafter referred to as the Act ),

2. The petitioner made an application on 29-6-1973 purporting to be under Sections 6 and 7 of the Act for settlement of 30.39 acres of land covering tanks, homestead with building, road and orchards, all located within mouza Jatannagar of Sadar Police Station of District Dhenkanal. The claim was duly published under Section 8-A of the Act in compliance of order dated 4-1-1974. No objection was, however, filed on 28-4-1975 the Collector under the Act recorded the following order :-

"The claim petition relates to the lands held under Nijchas of the applicant in respect of which rent has been assessed under the O.P.L.R. (Assessment of Rent) Act, 1958. As per Revenue Department clarification issued in letter No. 81272/R. dated 8-12-1973 the lands held by the applicant in his khas possession do not form an estate and as such he cannot be taken as an intermediary as defined in the O.E.A. Act. Consequently, the case is dropped."

On 21-7-1976 the Collector recorded another order to the following effect :-

"Sri J. Mohapatra, Authorised Agent of Sri N.P. Singh. Dhenkanal is present.

This is a claim filed by Sri N.P. Singh Deo under Sections 6 and 7 of the O.E.A. Act in respect of the Holding Nos. 1, 7, 12, 13, 20, 24, 25,26, 32, 33 and 34 of the village Jatannagar consequent on abolition of his estate in Revenue Department Notification No. 17804/R, dated 13-3-1973.

This case was dropped on 24-4-1975 for wrong interpretation of Government letter No. 81272/R dated 8-12-1973 in which Government have issued certain clarification regarding estate. I have gone through the said Circular of the Government which says that the private lands of Ruler in occupation of permanent tenant or an occupancy tenant is subject to abolition as the Ruler comes in between the State and tenant. Since Government order is clear and there are occupancy tenants in his estate. I revive the claim of the petitioner.

General notice inviting objection was issued. The notice was served on 27-1-1974 and period of 90 days for filing objection has been over. No objection petition has been filed. The Authorised Agent filed one supplementary memo today. Amin to conduct field enquiry and report by 5-8-1976."

The Amin furnished a report after spot verification. Thereafter the Collector visited the spot. He appears to have recorded statements of some persons said to be occupying the premises. On 9-9-1976 he passed the final order in the proceeding. He took the view that the petitioner was entitled to settlement of 29.75 acres of land. He found that one of the items of claim was 56 decimals relating to plot No. 177 which had a double-storied building. In regard to the claim for this plot, he held :-

So far as the area of Ac. O.56 out of plot No. 177 in Khata No. 1 is concerned, it stands recorded as Jungle in the Settlement records. However, now a building stands on this plot. As revealed from my spot enquiry report dated 27-8-1976, the building is a completely deserted one and has been abandoned since long. Though the plot on which the building stands; is recorded in the name of ex-intermediary, he has never used or occupied it in any manner. The building is a very big one. It is not in a fit state for occupation. Therefore, in the strict sense it cannot be called a dwelling house. It has never been used by the ex-intermediary. Therefore, it can at best marginally come within the definition of the term "homestead" as defined in S.2 (i).

It is clear that the building or the structure has been never used or occupied by the ex-intermediary. He has employed a part-time worker to look to his Khamar house but he has not engaged anybody to watch this