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1998 Supreme(Ori) 109
High Court Of Orissa
PRADIPTA RAY
MADHUCHLIANDA DAS - Appellant
Versus
STATE OF ORISSA - Respondent
O. J. C. 3984 Of 1995
Decided On : 05/05/1998
Important Points
Subject
Land Reforms - Lease - Cancellation
Headnote
LAND REFORMS - LEASE - CANCELLATION - JURISDICTION - NOTICE - LIMITATION - VALIDITY OF ORDER - VOID AB INITIO - APPEARANCE OF LEGAL HEIRS - EFFECT - ORISSA LAND REFORMS ACT, 1960 - SECTION 28 - ORISSA GOVERNMENT LAND SETTLEMENT RULES, 1963 - RULE 3 - ORISSA GOVERNMENT LAND SETTLEMENT RULES, 1974 - RULE 3.
Fact of the Case:
The petitioner challenged the validity of the order passed by the Additional District Magistrate setting aside the settlement of land with Golak Majhi and the order passed by the Additional Tahasildar rejecting the prayer of the petitioner for mutation of the land in her favor. The petitioner purchased a portion of the leasehold land from the widow of the original lessee, Mini Bewa, who had obtained permission from the Revenue Officer to sell the land under Section 28 of the Orissa Land Reforms Act, 1960.
Finding of the Court:
The court held that the impugned orders were void ab initio as they were initiated against a dead person, but the widow of the deceased lessee voluntarily appeared in the proceeding and abandoned the plea that the proceeding was a nullity. Therefore, the court held that the proceeding could not be treated as a nullity merely because it was initiated against a dead person.
Issues: 1. Whether the impugned orders were void ab initio as they were initiated against a dead person? 2. Whether the widow of the deceased lessee could be brought on record and the proceeding could be treated as initiated on the date of her appearance? 3. Whether the lease could be declared invalid for non-compliance of Rule 3 of the Orissa Government Land Settlement Rules, 1974, which were not in force at the time of grant of lease?
Ratio Decidendi: 1. The court held that the proceeding was not a nullity as the widow of the deceased lessee voluntarily appeared in the proceeding and abandoned the plea that the proceeding was a nullity. The court relied on the judgment of the Supreme Court in N. Jayaram Reddi v. The Revenue Divisional Officer, Kurnool, which held that a decree against a dead person is treated as a nullity because it cannot be allowed to operate against his legal representatives when he was never brought on the record to defend the case. However, if the legal representative voluntarily appears in the proceeding, it cannot be said that his option to be governed by the decree is against the law or any concept of public policy or purpose, or the public morality. 2. The court held that the widow of the deceased lessee could be brought on record and the proceeding could be treated as initiated on the date of her appearance. The court relied on the decisions in R. Rajyalakshmamm v. R. Kanniah, Smt Prempiari v. Dukhi, and K. Ismail v. Pavu Rama, which held that when the legal heirs of a deceased defendant are brought on record or they themselves appear, the suit or proceeding is to be taken to have been filed on the date when such step is taken. 3. The court held that the lease could not be declared invalid for non-compliance of Rule 3 of the Orissa Government Land Settlement Rules, 1974, as these Rules were not in force at the time of grant of lease.
Final Decision: The court quashed the impugned orders and directed the Additional District Magistrate to dispose of the matter afresh after giving an opportunity of hearing to the petitioner.
BIJAN RAY, C.Choudhury, R.K.MOHANTY
R. K. PATRA, J.
( 1 ) BY this application under Articles 226 and 227 of the Constitution, the petitioner-Madhuchhanda Das challenges the validity of the order dated 21. 7. 1987 of the Additional District Magistrate, Bhubaneswar in Lease Revision Case No, 410 of 1986 (Annexure-7) setting aside the settlement of land measuring Ac. 1. 00 with one Golak majhi as well as the order dated 7. 12. 1994 passed by the Additional Tahasildar, bhubaneswar (Annexure-6) rejecting the prayer of the petitioner for mutation of the land in her favour.
( 2 ) AS averred in the writ application, the tahasildar, Bhubaneswar by order dated 15. 7. 1974 settled land measuring Ac. 1. 00 in plot No. 502 (renumbered as 502/1204) in khata No. 359 (renumbered as 255/64) located in Mouza Ogalapada with Golak Majhi (vide W. L. Case No. 2198 of 1973 ). The leasehold property was duly recorded in the R. O. R. in the name of the said lessee (Annexure-3 ). During the year 1982-83, the lessee-Golak majhi died and his widow-Mini Bewa and his minor children succeeded to the property. As the widow and her children were in financial constraint, they moved the Revenue officer-cum-Tahasildar under Section 22 of the Orissa land Reforms Act seeking permission to sell ac. 0. 250 decimals out of the lease-hold land of Ac. 1. 00 in favour of the petitioner. Their application was registered as Misc. Case No, 377 of 1986. The Revenue Officer after making due enquiry by order dated 10. 11. 1986 (Annexure-4) granted permission to the widow to sell the land. On the basis of the permission, Mini Bewa sold the land (Ac. 0. 250) in favour of the petitioner for Rs, 5,000/- by regigstered sale-deed dated 26. 12. 1986 (Annexure-5), The petitioner took delivery of possession of the land. With a view to obtain loan for construction of residential house, she applied to the Tahasildar for mutation of the property in her favour vide Mutation Case No. 8356 of 1994. The Tahasildar, however, by order dated 7. 12 1994 (Annexure-6) rejected the application for mutation on the ground that the disputed land is now under khata No. 359 as per the order of the Additional District Magistrate, the allegation of the petitioner is that she could know about the order of the Additional district Magistrate only in January, 1995 after her application for mutation was rejected by the additional Tahsildar. According to the petitioner, the order of the Additional District magistrate is illegal and without jurisdiction in as much as there was no notice to the petitioner and the initiation of the proceeding itself by him (Additional District Magistrate) against a dead person was void
( 3 ) IN the counter-affidavit filed on behalf of the Additional District Magistrate (opp party no. 2) it has been stated that Mini Bewa, the widow of the, original lessee appeared on 27. 2. 1986 and filted a petition for time which was allowed. Thereafter she (did not take any steps in the proceedings and ultimately by the impugned order dated 21 7 1987 the Additional District Magistrate set aside the order of settlement dated 15. 7 19-74 of the Tahasildar made in favour of Golak Majhi It has been further pleaded that the widow ofthe original lessee did not disclose before the Additional district Magistrate that she had sold away a portion of the lease-bold property in favour of the petitioner and as such question of issuing any notice to her (petitioner) did not, arise
( 4 ) SHRI Ray, learned counsel for the petitioner raised the following points (I) The impugned order of the Additional District Magistrate at annexure-7 is void in as much as it was initiated and passed against a dead person. (II) No notice was issued, far less an opportunity of being heard was given to the petitioner before the impugned order was passed (III) The impugned order cancelling the lease is illegal inasmuch as it was based on the alleged violation of rule 3 of 1974 rules which were not in force at the time of grant of lease, the said rule having been br
